Affidavit: An affidavit is an individual’s evidence presented in written form. This evidence can only be first-hand knowledge of the individual giving the evidence. Affidavits must be properly affirmed as being ‘true and correct’ and witnessed by someone who is authorised, which includes lawyers, justices of the peace and notaries.
Case Management: This is a typical pre-trial procedure that many courts require of litigants to reduce the time and increase efficiency. Case management systems could be:
- Actions commencing only when they satisfy the court’s timetable requirements;
- Matters resolved through alternative dispute resolution where possible;
- Extensions and adjournments rarely granted.
Debt recovery: This is the process of attempting to gain back monies that are owed to you by a company. Creditors can often make a statutory demand for payment of debt under the Corporations Act 2001 (Cth).
Default judgment: If, after 28 days has passed since the defendant was served with the statement of claim, there has been no response then the applicant may ask for default judgment from the court. Note that default judgments can be set aside in an interlocutory application by the defence if they can provide affidavit evidence detailing the reasons for having defaulted and if there is a reasonable defence.
Defence: A defence must be filed within 28 days of being served with the statement of claim. Each claim should be replied to, and in general, the defendant can say they agree, disagree, or neither agrees nor disagrees with a claim.
Discovery: In a matter before the court, discovery is the process where each party is expected to present its legal arguments and relevant evidence in support of its case to the other. This is so they have access to relevant information to use as evidence, prepare for trial and properly advise their clients on prospects of success. Note that discovery is different to a subpoena.
Interlocutory applications: These refer to applications to the court that occur in the intermediate stages before the case goes to a hearing. Parties must file a notice of motion and serve this on all parties. Applications may vary and can include applications for discovery, subpoenas, withdrawal, interrogatories and setting aside the default judgment.
Interrogatories: This is the process in which you can get the other party to answer certain questions to obtain sworn answers. These answers can form part of the evidence at the hearing. There are strict rules that govern the type of questions that can be asked.
Mareva Order: A Mareva order is an order made by a court usually to prevent a debtor from disposing of their assets before paying a creditor. This order can only be made once debt recovery proceedings have begun, and a court can make the order either before the proceedings have been settled or after judgment but before enforcement. Breach of a Mareva order will be seen as contempt of court.
Settlement: This can occur at any stage before a matter is determined by a court and courts will often encourage settlement. If a settlement offer is rejected but turns out to be better than what the court orders regarding damages, then the court can ask the rejecting party to pay indemnity costs to the party that offered the settlement.
Statement of Claim: This is the document that is needed to commence any case in court. Each court will have its statement of claim form which the applicant must fill out and serve in triplicate to the court and the other parties.
Subpoena: This is a common court order used to either require a witness to attend court to give evidence or for a party to produce documents for the court as evidence in a case. Failure to comply with a subpoena can constitute contempt of court. Subpoenas are generally more specific and do not have as wide as scope as discovery.