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Photo of litigation lawyers with client after a successful dispute resolution.

Litigation is rarely a precise process.  There can be many variables on the way to trial, which makes 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 qualified 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 and the High Court of Australia.  This means that when a Superior Court decides on the point of law, the lower courts must follow that decision. This is known as a legal precedent.

While the Court is 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 provides rules for proceedings, service of documents, pleadings, settlement offers, discontinuances and other such matters.

The Evidence Act 1977 (Qld) is another critical piece 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 commence a legal proceeding in the civil jurisdiction. The claim, statement of claim, counterclaims, replies and answers are collectively known as the pleadings.  The barrister usually drafts the pleadings.  However, lawyers often draft pleadings in less complex matters like debt recovery.

After the barrister settles the pleadings they will be filed in the court’s registry.

Service Of Documents

Lawyers engage process servers to serve defendants, who are natural persons, personally.  If the defendant is a company, it may be served at its registered office by registered post.

If the defendant is a natural person and is unable to be served the documents in person, the plaintiff may apply to the court for substituted service, which may allow service by email or other means.

Defence, Reply and Counterclaim

The defendant must file a Notice of Intention to Defend and Defence within 28 days of being served.

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 the loss or damage the defendant alleges to have suffered due to the plaintiff’s breach.

The plaintiff may file a Reply to the Defence within 14 days after receiving the defence.  The Reply must not raise new facts.  However, if the defendant files and serves a Counterclaim and answer that raises further new facts, the plaintiff may make another Reply to them.

If the defendant fails to file a Notice of Intention to Defend within the period, the plaintiff may apply to the Court for Default Judgment.

Default Judgment awards the matter to the plaintiff without the defendant present in court.  If the plaintiff applies for and is consequently awarded default judgment, the defendant may apply to set aside the default judgment.

Once the above processes are completed, the parties can move one step closer to Trial by participating 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 where there are large amounts of information or where it is otherwise more practical.

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 allows the parties to settle before proceeding to trial.

In commercial contracts, there are often alternative dispute resolution provisions that must be followed before commencing litigation, except urgent injunctive relief.

For example, a dispute resolution clause may require the parties to enter mediation or arbitration before commencing legal action by filing a claim and statement of claim.

Interlocutory Steps in QLD

Interlocutory steps are those taken during 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 in the proceedings, if any further materials are required, and whether anything is impeding or delaying the progress of the matter.

There may also be applications by the parties.  An example of this may be a strikeout 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 makes an application for Summary Judgment. This is where it is beyond doubt that one of the parties is doomed to fail.

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 to reach its final decision in the proceeding.

At the end of the Trial, the Judge will often reserve their decision to be made later.  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 simple, 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.

Related Article:  Please visit our new article on the difference between contesting a will andchallenging a will in Queensland.

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