This article was written by Kathryn Sampias

Kathryn Sampias has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Journalism. Kathryn was admitted to practice in 2005 and practised law for more than eight years, working both in private practice (mainly in defence litigation for professional indemnity disputes) and in the public service for the Australian Securities and Investments Commission (ASIC) in enforcement.

Litigation


There are several pathways to resolving a legal dispute. One of the paths to resolution is through litigation, where each party to a dispute has its time in court to argue its case. Alternatives to litigation include negotiation and mediation, where parties reach an agreement to settle the dispute outside of court. Litigation follows a specific procedure through the courts. The litigation procedure is known as civil litigation procedure.

The states and territories in Australia each have legislation that outlines their respective civil litigation procedures. This legislation stipulates what time frames must be followed, what documents must be filed and makes rules about processes that occur during litigation such as discovery. The general chronological order of a litigated matter is as follows:

  1. Pleadings in litigation

The aggrieved party or plaintiff files a claim in court and serves it on the respondent party. This statement of claim outlines:

  • the concerns of the plaintiff;
  • the reasons why they believe their claim is valid; and
  • any damages or compensation that is sought by the plaintiff in the litigation.

After the statement of claim is filed, the party on whom it is served, or defendant, has a certain number of days to reply to the claim. In their statement of defence or reply, they can respond to each specific allegation in the statement of claim filed by the plaintiff and state why they argue that each claim is untrue. The defendant to the litigation can also file a counterclaim against the plaintiff, which outlines any claim they feel they have against the plaintiff for harm done to them.

The plaintiff to the litigation will have a certain amount of time to file a reply to the defendant’s defence pleading.

  1. Discovery or Disclosure

Once pleadings have been filed in court, both parties to a litigation dispute can ask for documents held by the opposing side that might contain evidence in support of their claim. There is a certain amount of time allowed for this process of discovery or disclosure to take place. In addition to requisition documents from the opposing parties, parties to a litigation dispute can request documents from third parties requiring them to produce documents. The name of the court document that requires a third party to produce documents for a litigation dispute is a subpoena.

  1. Evidence Preparation during litigation

Once parties have had time to review all the evidence that is relevant to their claims and defences in the litigation, the evidence is then filed in court. This is usually done by way of affidavit. Documents that are evidence are annexed or attached to these. The affidavits are filed in court and on the opposing party to the dispute. Pleadings may be required to be amended after evidence is reviewed. Once the amendments are made, the amended pleadings are filed once again with the court.

Sometimes evidence is obtained during a litigation proceeding from an “expert”. The type of expert from whom evidence is obtained will depend on the type of litigation dispute. If the subject of the dispute is about a personal injury sustained by a plaintiff, expert evidence may be obtained from a medical professional. If the dispute is about money that was lost on a certain investment, an accountant may be an appropriate expert witness to provide evidence on the value of that investment.

  1. Preparation for Hearing

Once pleadings have been filed and evidence has been reviewed and filed, a court date will usually be set for mention in court. At this mention, the court will seek to satisfy itself that the parties are ready for the litigation to proceed to trial, and a trial date will be confirmed.

In the final weeks and days before the trial date, several things will need to be done by either side to ensure they are ready for trial. Depending on the complexity of the litigation matter, this could include:

  • Meetings between solicitors and counsel to ensure counsel have been briefed with all material they need for attendance in court at trial;
  • Meetings with witnesses to ensure they are prepared for examination in court;
  • Preparation of a “Court Book, which is a compilation of all documents that parties will rely on during the trial;
  • Preparation by counsel of submissions and preparation of other documents which may include a statement of agreed facts or a chronology.
  1. The Trial

The length of the litigation trial is dependent on the complexity of the matter that is in dispute. A trial could last anywhere from one day to a few weeks. Counsel, or barristers, usually speak in court and run the trial while the solicitors who briefed them on trial sit with them in court and assist them. Some parties decide to represent themselves in court and have no solicitors or barristers with them. Such parties are said to be self-represented. Trial days can be long and usually involve preparations before and after court by the legal teams.

  1. Judgment

Once the trial is concluded, the judge will deliver his or her judgment. This may be done directly at the conclusion of the trial, or there may be a delay so that the judge has sufficient time to consider all the evidence and submissions. The judgement will include orders about which parties are to pay legal costs if any such order is made as part of the judgement.

  1. Appeals against outcomes of litigation

Once a judgment has been handed down, there is a timeframe in which parties to litigation can file an appeal. Generally, appeals can only be based on a matter of law and not on a matter of fact. If an appeal is lodged, the respondent party or parties have a time limit in which they can file their response or responses to the appeal. Then there is a timeframe for the appellant to file their reply to that response.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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