The litigation process

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Every court (and tribunal) in Western Australia (including the Federal Court and other federal jurisdictions) has separate rules for the conduct of proceedings. Some use different nomenclature to describe parties and processes, but the principles are much the same.

Commencing proceedings An applicant (plaintiff) commences an action against a respondent(respondent) by filing a writ (summons or application) at the appropriate court (tribunal).  The writ identifies the parties to the action and must include at least a brief summary of the basis of the action and the relief sought.  The court imprints its seal on the writ and charges a filing fee.

The writ and all subsequent documents filed at the court must also be served on the other parties to the action.

Serving the writ The applicant must serve upon the respondent a copy of the sealed writ, generally within 12 months Most courts require individual respondents to be served in person; corporate respondents may be served by mail at their registered offices.

If it is not possible to serve a respondent in person the applicant may apply to the court for an order for substituted service –service by some other method where the action will come to the attention of the respondent.

Commercial process servers and sometimes court bailiffs serve writs on behalf of applicants.

Appearing to the writ and default judgment Upon being served with a writ, the respondent may file a notice of intention to defend the action (appearance) within the time specified on the writ (usually 10 days).   If he fails to do so, the respondent will be taken to admit the claim and the applicant may apply to the court for default judgment.

If the claim is for a specific amount only (liquidated damages), the court will enforce the judgment immediately.  If the claim is for other relief (unliquidated damages) the court will conduct a hearing to determine what relief it should grant.

A court may set aside a default judgment if it is reasonable to do so.

Pleadings Pleadings inform the court and the parties of the issues to be determined at trial.  At trial, the court will confine the parries’ arguments to matters raised in their pleadings.

Within a short time of the respondent giving notice of his intention to defend the action (usually 14 days), the applicant must file a statement (statement of claim) setting out the facts that  he intends to prove to establish his claim

The respondent then has a similar time to file a responsive defence and, if he chooses to do so, a cross-claim.

If a cross-claim is filed, the applicant must file a defence to cross-claim.

The parties may amend their pleadings although sometimes at late stages only with the leave of the court.

Summary judgment If it appears that a party has no arguable claim or defence, the opposing party may apply for summary judgment.

This procedure is particularly useful in debt collection matter where a debtor has defended an action only to delay the inevitable outcome.  . In this situation the respondent has the onus of satisfying the court by way of a detailed affidavit that he at least has an arguable defence.

If the court is not so satisfied it will summarily award judgment to the applicant. If the court is suspicious about the defence, it may impose conditions (usually an order for a payment into court) on the respondent’s right to continuing to defend the action.

Interim (interlocutory) relief Sometimes it may be important to obtain relief before trial – for example, to preserve disputed property, or to restrain a respondent from transferring assets overseas or destroying evidence – the Courts will rely on affidavit evidence to grant an interlocutory injunction to preserve the status quo until the merits of the case can be fully determined. In truly urgent cases, injunctions may be obtained from a judge after hours or by telephone.

An applicant for an interlocutory injunction must disclose to the court all material facts – favourable or otherwise – that might influence the court’s decision.  The court will generally not grant an injuction without an undertaking from the applicant to compensate anyone who ultimately proves to unjustly suffer loss by its operation.

Disclosure (discovery) All parties must disclose the existence (or previous existence) of all relevant documents in their possession, power or control – including documents that may be unfavourable to their case.  With limited exceptions copies of disclosed documents must be made available to other parties upon request.  This obligation 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 a party’s possession, power or control regardless of who has physical custody – for example, documents kept on by a party’s bank, accountant or lawyer.

Parties are usually required to swear an affidavit listing the documents that are being disclosed.

Case management
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 All 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 When the preliminaries are complete either party may enter the matter or trial.
Trial 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 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, ad 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 garnished (i.e. paid from the judgment debtor’s debtor directly to you).

 

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