CIVIL DISPUTE AND LITIGATION
What is Civil Litigation?
Civil litigation is the process of private parties resolving a dispute, where the plaintiff may be rewarded with a remedy or relief to recognise the loss or damage that the plaintiff suffered as a result of the defendants wrongful actions. The plaintiff is the person who lodges a civil claim against another person(s), whilst the defendant is the person(s) who the claim was lodged against
How does this work?
If you feel that you’ve been wronged but the nature of the matter is non-criminal, which often requires the involvement of the Police, then you may be able to commence a civil action against the wrongdoer. The types of disputes that are dealt with under civil law include disputes between:-
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Neighbours
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Customers and suppliers
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Business partners
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Landlords and tenants
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Buyers and sellers of property
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Home owners and builders
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Employees and employers
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Executors or beneficiaries in deceased estates
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Owners of copyrights and patents
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Creditors and debtors
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Accident victims
Different legal matters have different time limitations. It is important that you seek legal advice as early as possible. This will prevent you from losing the opportunity to seek compensation from the wrongdoer.
What does the civil litigation process involve？
Prior to the commencement of court proceedings, it is paramount that the wrongdoer is offered an opportunity to settle the dispute without going to court. This will save both time and money.
If attempts to privately settle the dispute fail, there are a number of alternative dispute resolution methods that can be used such as round table negotiation, conflict mediation, conciliation, and arbitration. If all attempts to settle the dispute fail, then the dispute will be taken to trial.
Trial proceedings are lengthy and somewhat complex. They involve the stages of commencing proceedings, pleadings (where the dispute is described by the plaintiff and defended by the defendant), further and better particulars, discovery (disclosure of documents by both sides), trial (where the judge will hear the testimony of witnesses and make a ruling in the dispute), settlement and appeal at the option of the losing party.
The court forms that are required to commence a civil suit vary according to the dispute type and the originating State. It is recommended to seek legal advice in regard to this.
Contact us for more advice in relation to how we can assist you in settling your dispute.
Defending a Civil Claim Against You
Once the defendant is served with the Writ or Originating Motion, they must file a Notice of appearance within 10 days and serve a sealed copy to the Plaintiff. Extensions on the timeframe may occur if the Writ was served interstate or outside of Australia. The defendant must then file a defence within 30 days of filing the Notice of appearance and served on the Plaintiff.
If a defence is not filed within 30 days of filing the notice of appearance, the plaintiff may request the court to enter into a default judgement or apply for summary judgement against the defendant.
Pre-Trial
Case Management
An important part of case management is the administrative mention procedure, this is the process that results in consent timetabling orders. This process starts by the court sending a notice to both parties setting out the date that the consent timetabling order needs to be filed by. The parties must contact each other and agree on the timetabling orders before this date. If an agreement cannot be reached then the parties can request more time from the court.
Directions Hearing
If the parties can still not agree on the timetabling order, then the matter may be listed for a directions hearing. A directions hearing is a preliminary hearing where the judge can check on the progress of the case and make any necessary orders to ensure the case is progressing. It involves setting timeframes for when certain things need to be complete, such as filing or serving documents.
Disclosure and Discovery
Discloser and discovery are where both parties are obligated to share and provide all documents and relevant information about the issues in the case with each other. To prepare for discovery and disclosure, both parties will need to make what is known as an affidavit of documents. This is where the parties make a list of the relevant documents that they, or the other side, may want to use as evidence. Even once discovery and disclosure are done, both parties must still continue to share all relevant documents with the other party throughout the case.
Settlement
The parties may choose to settle if they come to an agreement any time before or during trail. If a settlement is reached then both parties must sign consent orders and file them with the court, they then become court orders. Settling as early as possible is encouraged.
Summary Judgement
A summary Judgement is when the judge makes a decision about the case before it goes to trial. According to the Civil procedure act, either the defendant or the plaintiff can make a request for a summary judgement. A summary judgement will only occur if the judge is reasonably satisfied that the claim or the defence has no real prospect of success.