Litigation is not always a precise process as there can be many variables on the way to a trial. This can make estimating costs and foreseeing outcomes difficult.
Below is a brief overview of the litigation process in Queensland. The information is not intended to replace legal advice. If you have been served a claim and statement of claim, you should seek immediate advice from a Queensland Legal Practitioner with experience in commercial litigation.
Queensland Law Overview
There are various sources of law that litigants must observe when involved in a civil dispute that has commenced in the Queensland Courts.
The QLD Courts are bound by the common law of the superior Courts of the State as well as the High Court of Australia. This means, where a superior Court makes a decision on a point of law, the lower courts must follow that decision. This is known as a legal precedent.
While the Court also bound to follow the voluminous legislation that governs the State, the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) sets out the rules for the carriage of legal proceedings. For example, the UCPR provide rules for proceedings, service of documents, pleadings, settlement offers, discontinuances and other such matters.
The Evidence Act 1977 (Qld) is another important price of legislation that sets out the rules of evidence relating to admissibility, witnesses and reproductions to name a few.
Commencing Proceedings With The Claim and Statement of Claim
The claim and the statement of claim are documents that commence a legal proceeding in the civil jurisdiction. They are collectively known as the Pleadings and also include counterclaims, replies and answers. The pleadings are usually drafted by the barrister. However, in less complex matters such as debt recovery, the lawyers for the Plaintiff will usually draft the claim and statement of claim.
Once the pleadings are drafted, they will be filed in the registry of the relevant Court. See this article about the jurisdiction of the Courts. The Court Registry fulfills an administrative function of the Court in filing the documents on behalf of the parties to legal proceedings.
Service Of Documents
Once the Pleadings are filed with the Court, a stamped copy must be served upon the Defendant personally. If the Defendant is a company, the company may be served by registered post to its registered office.
If the defendant is unable to be served the documents in person, the Plaintiff may apply to the Court for substituted service which allows the Pleadings to be served by email or by other alternative means,.
Defence, Reply and Counterclaim
Upon being served, the Defendant must seek legal advice immediately, as the Defendant must file a Notice of Intention to Defend and Defence within 28 days after being served with the Claim and the Statement of Claim.
The Defence must outline whether the Defendant admits, doesn’t admit or otherwise denies what is set out in the Statement of Claim and address the facts set out in the Statement of Claim, if the Defendant claims they are also in Dispute.
The Defendant may also file a Counterclaim to the Plaintiff’s Claim and Statement of Claim, which can set out any claim for loss or damage that the Defendant alleges to have suffered due to the Plaintiff’s breach.
The Plaintiff may file a Reply to the Defense within 14 days after receiving the Defence. If this is done, the Reply must not raise new facts. However if the Defendant files and serves a Counterclaim and answer which raises further new facts, then the Plaintiff may make another Reply to them.
If the Defendant fails to file a Notice of Intention to Defend within the said period, the Plaintiff may make an Application to the Court for Default Judgment. Default Judgment is where the Court awards the matter in favour of the Plaintiff in the absence of the Defendant’s Defence or appearance in Court. If the Plaintiff applies for, and is consequently awarded default judgment then the defendant may make an application to set aside default judgment.
Once the above processes are completed, then the parties can move one step closer to Trial by taking part in the Disclosure process, described below.
Disclosure in QLD
The next phase is disclosure, sometimes also referred to as discovery. This is where the Plaintiff and Defendant exchange evidence in the proceeding. It is important to note that although there is a disclosure step in the process, disclosure can be required at any time throughout the proceeding.
The Courts have become increasingly comfortable with the parties exchanging documents electronically in the disclosure process, especially where there are voluminous materials.
Aside from the Plaintiff and Defendant disclosing documents between each other, the parties may also seek non-party disclosure. This is a process where a party to the proceeding seeks documents (or to inspect documents) from someone who isn’t a party to the proceeding.
Alternative Dispute Resolution in Queensland
At any stage the Court may order Mediation or a Settlement Conference between the parties alternatively, the parties may consent to this process. This provides the parties an opportunity to reach a Settlement before proceeding to Trial.
In commercial contracts there are often alternative dispute resolution provisions that must be followed, before commencing litigation, with the exception where urgent injunctive relief.
For example, if there is a dispute resolution clause it may require the parties to provide first enter mediation or arbitration, prior to commencing legal action, by filing a claim and statement of claim.
Interlocutory Steps in QLD
Interlocutory steps are those that are taken during the course of a proceeding, where an application can be made to the Court where a specific ruling is to be made within the proceeding.
For example directions hearings can be ordered, where the parties appear before the Magistrate or Judge to see where the parties are at in the proceedings and if any further materials are required and whether there is anything that is impeding or delaying the progress of the matter.
There may also be Applications by the parties. An example of this may be a strike out application where a party applies to the Court to strike out a part – or all of the Pleadings – other Applications may include further discovery or inspection of documents.
Another interlocutory step make an application for Summary Judgment. This is where there is significant certainty that one party will succeed requiring a Trial.
Once the interlocutory steps are completed the matter is listed for Trial. The duration of the Trial will be accurately estimated by counsel for each side, in consultation with the Judge as the matter is being set down for Trial.
Going to Trial in Queensland
At the trial, the Court will review and assess the parties’ evidence and apply the law to the facts of the case, in order to reach its final decision in the proceeding.
At the end of the trial, the Judge will often reserve his or her decision to be made at a later date. If this is the case, the Court will notify the lawyers for the parties when the decision will be made available and send the decision by email to the parties.
If the matter is not complex the Judge or Magistrate, as the case may be, may deliver judgment at the end of the trial – also known as delivering judgment Ex Tempore.