Going to Court: The Litigation Process

Going to court can be a confusing and frustrating experience if you have never been before. It is not what you see on the TV and in movies, where whole court proceedings seem to finish in days with little preparation. In reality, court proceedings take many months, usually at least six months and often up to two years or more. The court sets a timetable to complete many steps requiring hours of work and the preparation of often hundreds of pages of documents, even for simple matters. This article will outline the court process from start to finish, providing clear explanations for each step.

Before Legal Proceedings Start

Claims and Communications

Most commercial disputes start with correspondence between the parties. You may engage a lawyer at this early stage to help you assess your legal position and available options. Once engaged, your lawyer will take over all communications with the other party or their lawyer. This will include sending a formal letter of demand, which is an essential step before a party issues proceedings.

Mediation

Parties will often try to resolve the dispute before issuing court proceedings. This may be informal, between the parties, or more formal, such as using an independent mediator like those offered by the NSW Small Business Commissioner.

Starting Legal Proceedings:

Briefing Counsel

Court hearings are almost always run by a lawyer working with a barrister, known as counsel. This barrister assists with strategy and all stages of court proceedings. This includes appearing in court. 

Your solicitor can brief counsel at any stage before a hearing, but there are benefits to briefing counsel as early as possible so they can provide strategic guidance and expert advice on your legal position. Briefing counsel involves your solicitor providing counsel with a comprehensive summary of your case and copies of all the key documents. 

Pleadings

This is the stage where each party sets out their legal positions in formal legal documents. These include:

• statement of claim: proceedings are usually started with the initial claim, referred to in most courts as a statement of claim. The party filing a claim is called the plaintiff or applicant;
• defence: the other party, called the defendant or respondent, then has a period of time, usually between 21 and 28 days, to file its defence;
• cross-claim: the defendant may also file a cross-claim or counterclaim with its defence if it has a claim against the plaintiff;
• defence to cross-claim: if a defendant files a cross-claim, the plaintiff must file a defence to this; and
• reply: some courts allow the plaintiff to file a reply to respond to matters raised in the defence. 

Court Attendance: Directions

This is the first of several court attendances before the hearing starts. They are administrative attendances only and are sometimes online if there are no contentious issues to deal with. 

Depending on the court, this first hearing may be referred to as a:

• directions hearing;
• call over; or 
• pre-trial review.

The purpose is usually to set the timetable for the remainder of the proceedings. 

Interlocutory Hearings

An interlocutory hearing is a mini hearing to deal with a procedural matter relating to the main proceedings. There may be one or more interlocutory hearings held between the filing of pleadings and the main hearing.

Interlocutory hearings occur when the parties do not consent to a procedural matter, such as whether to:

• amend pleadings;
• make further orders for discovery; or 
• apply for an urgent injunction.

Mediation

Mediation can also occur at any time during the proceedings. In some cases, the parties will request the mediation. In others, the court will order the parties to attend mediation as part of the timetable for the proceedings. 

Evidence

Disclosure

Parties can request documents from each other and third parties to use as evidence to support their position. Common steps in disclosure involve:

• discovery, where the parties ask each other to produce certain categories of documents relating to their claim or defence. The court timetable allows time for parties to ‘discover’ documents and review those documents; and
• subpoenas, where parties can request that third parties produce documents relevant to the proceedings. 

Preparing Evidence

Parties prepare the written evidence they will rely on to prove their claim or defence. The plaintiff files its evidence first, followed by the defendant some weeks later. This is usually in the form of an affidavit, with documents attached, or annexed, to it. 

If there is a large volume of documents, they are collated in a separate file called an exhibit. Once prepared, affidavits are usually filed with the court and served on the other party.

Expert Evidence

Parties can rely on experts to give evidence on matters that require specific expertise, such as on accounting, construction or web development issues. Expert evidence must comply with certain requirements to prove the expert has the appropriate experience to give the evidence. 

Hearing Preparation

Court Attendance: Pre-Trial Review

There is usually a final ‘administrative’ attendance before the hearing date to ensure the parties are ready for the hearing.

Hearing Preparation

Preparation can be substantial, depending on the number of witnesses and the complexity of the matter. Hearing preparation steps can include:

• conferences with counsel to prepare witnesses for cross-examination; 
• preparation of a ‘Court Book’ which the judge and the parties use. It contains copies of all documents all parties will rely on at the hearing; and
• counsel preparation of submissions and other documents the court may require, such as a chronology or statement of agreed facts.

The Hearing

Court Attendance: The Hearing

Hearings can last from one day to many weeks, depending on the complexity of the matter. In most cases, barristers represent their parties in court, with instructing solicitors also attending.

In some cases, a party is self-represented. This means they have no lawyer acting for them. Hearing days can be long, usually involving meetings with your legal team before and after court. 

Judgment and Costs

The judge or magistrate will deliver their judgment once hearing all evidence submissions from the parties. Sometimes they deliver their judgment orally and on the spot, called ‘ex tempore’.

Most often, however, their judgments are ‘reserved’. This means they consider the evidence and write a detailed judgment published at a later date, often some months after the hearing. The judgment will include any costs orders.

Appeals

In most courts, a party can appeal the court’s decision. There is usually a time limit in which parties must lodge an appeal, and the appeal then involves a repeat of the first hearing process, with further legal submissions made. 

Key Takeaways

Even the most basic court proceedings involve many steps and months of legal work and court attendances. It can help to know what every step involves and what some of the unfamiliar jargon and legal concepts mean. If you need assistance with a commercial dispute, contact LegalVision’s litigation lawyers on 1300 544 755 or fill out the form on this page.