Each court has its own rules but the procedures are generally similar in civil matters.
Commencement of proceedings
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Actions are commenced by issuing a writ, summons or application (writ). The writ is sealed by the relevant court and summarises your claim against the respondent.
The person who commences the action is known as the plaintiff or the applicant (applicant). The person being sued is usually called the defendant or the respondent (respondent).
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Service
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The writ must be served upon the respondent. Private process servers and (in some cases) Court bailiffs offer this service. Generally speaking, a writ must be served personally upon the respondent within a prescribed time – generally one year from the issue date. Corporations may be served by post at their registered office. If the court is satisfied that it is impractical to serve a writ personally, it has power to make an order for substituted service allowing service by alternative means – for example, upon a person known to be in contact with the respondent or by advertising in a newspaper. |
Appearance
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Upon being served with a writ the respondent must enter an appearance to the writ if the respondent intends to defend it. If the respondent fails to enter an appearance on time you can generally obtain default judgment without any further court process. |
Pleadings
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Pleadings inform the court and the parties of the nature of the parties' claims against each other. Ultimately, they define the issues for trial.
The applicant must serve the respondent with a statement of claim setting out the facts relevant to the claim and the relief or orders sought from the court. It must be served either with the writ or within a certain time after the respondent files an appearance.
The respondent then has a limited time to serve a defence responding in detail to the facts alleged in the statement of claim. The respondent may also serve a counterclaim or cross-claim against the applicant (cross claim). If so, the applicant must in turn serve a defence to cross claim.
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Summary judgment
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Sometimes a respondent will appear in an action only to delay the inevitable judgment. If a respondent has no arguable defence to the claim, the applicant may apply to the court for summary judgment.
This procedure is particularly useful in debt collection matters. The applicant must swear an affidavit verifying the amount of the claim and that there is no valid defence.
The respondent must then serve an answering affidavit setting out full particulars of his defence. If the court is not satisfied that there is at least an arguable defence it will summarily award judgment to the applicant. If the court is suspicious about the nature of the defence, it may order the respondent to pay money into court as a condition of being allowed to maintain the action.
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Interlocutory injunctions
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In situations where it is necessary to obtain urgent relief before a matter goes to trial – for example, where the point of the action is to preserve property, or where a respondent is likely to remove assets from the jurisdiction or destroy evidence – the Courts will rely on affidavit evidence to grant an interlocutory injunction to preserve the status quo until the merits of the case are determined by the court. In truly urgent cases, injunctions can be obtained on weekends or by telephone without the other party being heard at the first hearing.
An applicant for an interlocutory injunction has a duty to disclose to the court all material facts - favourable or otherwise – that might influence the court's decision. The court will generally require the applicant to undertake to compensate any person adversely affected by the operation of its injunction if it ultimately proves to be unwarranted.
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Discovery of documents
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The litigating parties must provide each other with a list of all relevant documents that are or were at any material time within their possession, power or control. The obligation to make discovery continues until the end of the trial.
A document is relevant if it relates in any way to the dispute. Documents may include diary entries, personal notes, electronic records, text messages, recordings and private correspondence.
A document can be within your possession, power or control whether or not you have physical custody of it. if it relates in any way to the dispute, you must disclose that it exists or did at some time exist - even if it may invite unfavourable inferences to be drawn. Any document that you are able to access or demand access to (for example documents in the possession of your accountant or lawyer) must be discovered.
The list of discoverable documents must include privileged documents such as correspondence with legal advisers in contemplation of litigation and the like – but the contents of privileged documents remain confidential to the party for whom they were created.
Any party may be required to swear an affidavit verifying its list of discoverable documents. |
Inspection of documents
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Each party is entitled to inspect and make copies of the other’s discovered documents - except any privileged documents |
Case management
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Some courts hold regular file reviews to ensure that once litigation commences it proceeds according to the court's timetables. This process is called case management. |
Pre-trial conferences and mediation conferences
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All of the courts have informal processes designed to resolve or at least narrow issues in dispute. These conferences take place after the pleadings are settled and discovery has been exchanged. They are conducted on a without prejudice basis - nothing that is said at the conferences goes onto the court record or can be used by either party at a subsequent trial. The conferences are presided over by a court officer and attended by all parties and their lawyers. They are intended to afford the parties an opportunity to negotiate an informal settlement of the dispute. Probably 90% of all litigation is resolved at or before such conferences. |
Entry for trial
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When the preliminaries are complete either party may enter the matter for trial. |
Trial
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As soon as possible after the matter is entered for trial the court will allocate trial dates. Depending on how busy the court is, the trial date may be some months after the entry for trial. If the litigation proceeds to trial, your case will go before a judge who will hear oral evidence from the relevant witnesses including any expert witnesses - and submissions from your lawyer. Except in some rare cases (for example defamation) civil trials are held before a single judge. Unless the matter is very straightforward the judge will deliver a written decision some weeks after the trial finishes. In a very straightforward case he may give an immediate oral decision and provide written reasons at a later date. |
Judgment and execution
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If you obtain a judgment - either by default, after a summary judgment application or after a trial - the respondent must comply with the terms of the judgment. If he fails to do so, and the judgment is for money, you can request the court to issue execution proceedings. In these circumstances a court bailiff may seize and sell any of the respondent's assets as may be required to satisfy the judgment. There are also other provisions for judgment debtors to be examined as to their means and to have certain monies garnisheed (i.e. paid from the judgment debtor's debtor directly to you). |
Statutory demand
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A statutory demand is an alternative to issuing a summons. It is a demand addressed to a corporation setting out that the corporation owes the creditor a debt. The debt must be greater than $2,000 and it must be verified by an affidavit or attach a court judgment. It may be served upon the corporation's registered office or upon a director of the corporation.
Once a corporation has received a statutory demand it has 21 days within which either to:
- pay the demand or secure it to your satisfaction;
- apply to have it set aside in the Supreme Court.
If it does neither of those things it commits an act of insolvency and you may apply to wind the corporation up and appoint a liquidator. A liquidator will take control of the company's affairs, collect the debts owing to the company and pay out all the creditors of the company in the order set down in the Corporations Act 2001.
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