The first thing you shold know is that litigation is renown for being time-consuming, expensive and stressful. It is not uncommon for matters to not be listed for trial for a year or two after commencement of the proceeding, and in some cases litigation can drag on for many years. The content of this page is addressed at the litigation process in Queensland.
Proceedings are commenced by either a plaintiff filing and serving a claim, outlining what the cause of action is and what is claimed from the defendant/s, accompanied by a statement of claim setting out the material facts and allegations, or alternatively proceedings can be commenced by an applicant filing and serving an originating application setting out what orders the applicant seek from the respondent/s accompanied by one or more supporting affidavits deposing to the evidence relevant to that application.
Originating applications generally seek very specific relief which don’t include the respondent paying the applicant any money (other than legal costs). Examples include injunctions restraining the respondent from doing something the applicant contends they shouldn’t; to compel the respondent to do something, such as disclosure company books; or, for a declaration that a certain statement or event is true. The respondents in proceedings commenced by originating application have the right to rely on their own affidavits to oppose the orders sought by the application.
For proceedings started by way of claim, the defendants have 28 days from service of the claim and statement of claim to file and serve a defence. If the defendants fails to file a defence within 28 days, the plaintiff can apply for default judgment.
If there are new issues raised in the defence that need to addressed by the plaintiff, the plaintiff may file and serve a “reply” within 14 days of being served with the defendants’ defence. Pleadings can digress into rejoinders and surrejoinders, but this happens extremely rarely.
The statement of claim, defence and reply are all called pleadings. The plaintiff pleads their case in the statement of claim and the defendant pleads their defence in the defence. Just like affidavits, there are strict rules about how pleadings are to drafted.
After the reply is served (or if the plaintiff does not intend to file a reply, after the defence is served), the pleadings are deemed to be “closed”. The parties are then to complete the discovery process within 28 days after the closing of the pleading, though this can be and is often extended for any number of reasons (eg, dispute about relevance of documents, whether documents are privileged or because of the sheer volume of disclosure it will take longer than 28 days to complete the process).
The list of documents, decades past known as the affidavit documents and is still so in the Federal Court of Australia, is a document prepared and exchanged between the parties. It must list all the documents that are relevant to the issues in the pleadings which are either in the possession or control of that party. Listing all the documents, even those which are bad for your own case, is obligatory.
As an example of what an issue in the pleadings is, if the plaintiff pleads that Mr A and Mr B are directors of company XYZ Pty Ltd, and the defendants admit that allegation in the defence, that is not an issue in the pleadings. If, however, the defendants contend that Mr B is not a director of XYZ Pty Ltd but Mr C is, then both parties must list all documents relevant to the directorship of XYZ Pty Ltd if those documents are either in that party’s possession or control. The party does not necessarily need to have physical possession of the document to be obligated to disclose the document.
To put simply, a document is in a party’s control (but not possession) if that party can obtain possession of that document without using a court process, such as a subpoena or non-party disclosure. If a payment into a bank account is in issue and the party who is the beneficiary of that bank account does not have possession of the bank statement for the relevant period, the bank statement must still be disclosed as it is in the party’s control as they can simply obtain a copy of the bank statement from the bank.
If a document is not disclosed, it can rarely be relied on at trial.
If a non-party has possession of documents which neither party has control of, parties may file and serve a notice of non-party disclosure to compel the non-party to disclose documents sought.
If everything goes without a hitch up to this stage, which it rarely does, the next step is to request a trial date. A major issue that needs to be determined early on in the proceedings is whether you will require expert evidence.
FAQ: What is expert evidence? (coming shortly)
If there are hiccups along the way, you or the other side might file and serve what are known as interlocutory applications.
FAQ: What is an interlocutory application? (coming shortly)
Once the trial date is set, parties need to prepare for trial by compiling the trial bundle and ensuring the appropriate subpoenas are issued and served on the witnesses which that party intends to call to give evidence at trial.
FAQ: What happens at trial? (coming shortly)