First Steps in Civil Litigation

18th Feb 2020

At Liston Legal we regularly deal with civil cases, for both plaintiffs (claimants) and defendants.

Civil proceedings can be started for many reasons including contractual disputes, claims for personal injuries as well as claims to recover money or debts owed by the other party. Civil disputes also include enforcing rights, dissolving partnerships and associated court proceedings. They may also involve claims against local councils and other government bodies. You may also wish to defend or dispute a claim by a council or government body.

Getting started

You need to know which court or tribunal is the right place to start a claim, which forms to use and the fees that apply.

You can start a civil claim in various ways depending on the type of claim and whether you are taking the matter to a court or tribunal. Each court or tribunal uses particular forms, rules and procedures.

Consider alternatives

You should consider whether there are alternative methods for reaching an agreement rather than commencing court proceedings. Litigation can be expensive and time consuming. It may be in your interests to try to resolve your dispute without going to court. Alternative forms of dispute resolution, such as arbitration or mediation, can be successful even in large commercial disputes.

The court process before hearing

In most cases, there will be a number of case management appearances required before the case is listed for a hearing. These include pre-trial conferences and a status conference. These stages exist to encourage settlement of the claim and to ensure the case preparation is on track.

When a hearing date is allocated the case may also be referred to mediation, a form of alternative dispute resolution.

What happens during a hearing?

Civil hearings are generally heard by a judge without a jury. Hearings usually proceed in the following way:

  • The case is listed to commence before a particular judge or magistrate at a nominated court on a nominated day and time.
  • The plaintiff's case is opened. Witnesses can be called or the evidence can be by way of affidavit (formal statement).
  • The defendant's case is opened. Witnesses can be called or the evidence can be by way of affidavit.
  • The plaintiff may respond.
  • All witnesses can be cross-examined (challenged) by the other party.
  • Each party may give final submissions
  • The judge hands down a judgment usually some days / weeks after the case has concluded. If (rarely) there is a jury, the jury delivers the verdict soon after the evidence and submissions are made.

Decisions

The judge must be satisfied that a case has been made out "on the balance of probabilities". This is a lower standard of proof than the criminal standard of "beyond reasonable doubt".

Have you received a Statement of Claim or Summons?

If you have received or been served with a Statement of Claim or Summons you should immediately contact your lawyer for advice on how to respond. You normally have twenty-eight days from the date of receipt or service in which to respond. Sometimes you only have fourteen days to respond. You need to decide, with the help of a lawyer, whether you want to admit or defend the claim.

If you do not respond in the time allowed, judgment could be entered against you.

If you want to defend the claim you will need to file a defence. If you believe someone else is responsible for the claim, you may also want to consider filing a cross-claim.

Served with a Summons?

If a party has started a case against you by way of summons, you must let them and the Court know if you wish to defend the claim. It is important to:

  • file an appearance document before you can take any step in proceedings, including appearing in Court; and
  • attend Court on the day nominated in the summons.

 If you do not enter an appearance or do not attend at Court on the day your case is listed in the Summons, the Court may make a binding decision, including a costs order, against you in your absence.

How can we help you?

If you have any questions, please contact Chris Leahy of our Glen Innes office. We look forward to helping you with all your civil litigation needs.

NSW Court web sites:

http://www.courts.justice.nsw.gov.au

http://www.districtcourt.justice.nsw.gov.au

http://www.supremecourt.justice.nsw.gov.au