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Demystifying the litigation process

Anthony Ha, Avant Law - Senior Associate, Commercial & Corporate

Matthew Brooks, Avant Law - Paralegal, Commercial & Corporate

Sunday, 11 February 2024

Demystifying litigation

Although litigation can be a daunting and costly process, it can play a key role in protecting the interests of your business. Whether you believe your rights have been infringed, or if another party has brought a claim against you, it is important to be aware of the steps involved in litigation and what to expect as the claim progresses. While every matter is different, this article will provide a high-level overview of the litigation process so that you have an idea of what to expect.

1. Pre-litigation

Prior to the commencement of formal litigation proceedings in a court or tribunal, it is often beneficial to attempt to resolve the matter outside of court with the other side. This can take the form of a Letter of Demand, or simply through a telephone or in-person conference. In many cases, a well-drafted letter from your lawyer to the other side can be sufficient to reach a resolution, saving the costs and time involved with formal litigation. In certain cases, “without prejudice” offers to settle the matter may be required to preserve your rights to seek costs should the matter proceed further.

2. Statement of Claim/Initiating Applications

If the matter is not resolved through pre-litigation correspondence, proceedings may need to be commenced. Statements of Claim and Initiating Applications are documents which are used to commence proceedings. These documents often will outline the legal basis for the claim, establish the Applicant’s or Plaintiff’s version of the facts of the matter, and set out the remedies sought. Once filed in Court, it will be served on the Respondent or Defendant to notify them that a claim has been made against them.

3. Filing a Defence/Response

The Respondent or Defendant usually has 28 days from being served with a Statement of Claim or Initiating Application to file their response. Generally, this response will set out the Respondent’s or Defendant’s version of events, including any elements of the case which it may dispute. If a defence or response is not filed in the Court Registry by the due date, the Applicant or Plaintiff may be entitled to act as if the claim was not defended and the Court may accept the their case and make a default judgement in their favour.

4. Mentions

Once a defence or response has been filed, the parties will appear before the Court, who will set a timetable for the proceedings, including deadlines for when any evidence may need to be produced to the other party (or parties), as well as setting dates for the hearing.

5. Producing Evidence

Parties will have the opportunity to gather and produce relevant evidence to the Court. This is often done by way of affidavits, subpoenas, notices to produce, and the obtaining of expert evidence: 

  • An affidavit is a form of evidence whereby a witness provides a true and accurate account of their recollection of events.
  • Subpoenas and Notices to produce are formal court documents which can be served to require the recipient to produce certain documents. Subpoenas to attend may also be issued to non-parties to a hearing to require them to give oral evidence (and may be supported by an affidavit).
  • Expert evidence may also need to be obtained in relation to specific technical or academic issues in order to appropriately inform the Court on those subjects.‍

6. Formal Mediation/Settlement

At any stage during the proceedings (including up to and during the hearing or trial), the parties may attempt to settle the proceedings by reaching a mutually acceptable resolution. This may occur via informal mechanisms(such as by the exchange of correspondence between the parties, including “without prejudice” communications) as well as via more formal approaches. Mediation is a formal approach to resolution, in which parties attempt to reach a settlement before their matter goes to trial by having a conference together with a neutral mediator in a setting which is less formal and intimidating than a court hearing.

7. Hearing/Trial

The hearing or trial is the last phase of the litigation process, and the length of this phase will depend on the complexity of the legal and factual issues which are to be resolved. This is where the judge will hear both parties’ cases and consider any evidence which has been prepared. Although the judgment is often handed down immediately after the trial, in matters dealing with complex issues, the judgment may be ‘reserved’ to a later date, meaning parties may not know the outcome for some time, this can take several months subject to the Court hearing the matter.

Takeaways

Litigation is often costly and as outlined above, there are many steps to the process. The costs and time involved can vary significantly depending on the evidence, whether barristers need to be involved, and on the complexity of the issues.

If you are considering commencing proceedings to protect your interests (or if you have been informed that a person may be seeking to bring a claim against you), it is important to seek help as soon as possible, as you do not want to prejudice or otherwise weaken your case early in the process. Having Avant Law involved from the outset may also assist in reaching settlement on matters, saving you from a costly and lengthy litigation process.

We can help you

If you have any questions, or would like more information about how we can assist you or your practice, please call 1800 867 113, or to organise a confidential discussion at a time that suits you, please click here 

About the authors

Anthony Ha

Anthony Ha is a Senior Associate in Avant Law’s Commercial and Corporate law practice, based in Sydney. Anthony has over seven years’ experience advising clients in both the private and public sectors on all aspects of commercial and corporate law. His practice includes privacy, regulatory enforcement, governance, and risk and compliance matters. Before joining Avant Law, Anthony held the role of senior legal counsel in a major ASX-listed health company, whose operations covered medical and dental centres, allied health, pathology, diagnostic imaging, assisted reproductive technologies, day surgeries and hospitals. He has also worked as a senior lawyer within one of New South Wales’s largest primary and secondary education providers.

Matt Brooks

Matthew Brooks is a Paralegal who works with the Commercial and Corporate, Employment and Workplace, Property, and Estate Planning teams. Matthew is in his final year of studying a Bachelor of Commerce – Professional Accounting with a Bachelor of Laws at Macquarie University. Prior to joining Avant Law in 2022, Mathew worked in the service industry for six years, in which time he developed a passion for problem solving and client satisfaction.

Disclaimers

Disclaimer: The information in this article does not constitute legal advice or other professional advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of this content. The information in this article is current to 12 February 2024. Liability limited by a scheme approved under Professional Standards Legislation. Legal practitioners employed by Avant Law Pty Limited are members of the scheme. © Avant Mutual Group Limited 2024.

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