How do I take legal action?

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Table of Contents

• Step One – Somebody makes a claim
• Step Two – The defendant is served the claim
• Step Three – The defendant has the option of filing a defence and/or cross-claim and/or counter-claim
• Step Four – Pleadings filed
• Step Five – Discovery
• Step Six – Subpoenas
• Step Seven – Affidavits
• Step Eight – Date set
• Step Nine – Pre-trial dispute resolution
• Step Ten – Trial/Hearing
• Step Eleven – Judgment
• Step Twelve – Appeal

If your business is involved in legal action you should understand the basic procedures involved.

Set out below is LegalVision’s step-by-step guide to taking legal action. It assumes that an event has occurred giving one party grounds to commence legal action against another, for example a person has not repaid a debt on time.

If you have any further questions you should contact a business lawyer, a contract lawyer or get online legal advice.

Step One – Somebody makes a claim

The plaintiff (also known as the applicant, who is the person making the claim against another party/person, known as the defendant or respondent) files a claim in court to take legal action.  This claim will state how the person thinks the other party has broken the law and how it has impacted them – such as negligence, breach of contract, nuisance etc.  The claim will state what remedy the person is seeking, for example compensation plus reimbursement of their costs.

Step Two – The defendant is served the claim

After the plaintiff has filed the originating papers with the court, they are then required to notify the defendant.  Notifying the defendant is known as ‘service’.  When the plaintiff ‘serves’ the claim on the defendant they must serve any documents filed with the court in support of their claim.

What is a statement of claim?

Basically, a statement of claim is a document that contains all the key allegations made by the plaintiff about the defendant which they say led to this legal claim being made.

Step Three – The defendant has the option of filing a defence and/or cross-claim and/or counter-claim

A defendant does not have to file a defence – though for obvious reasons it would be disadvantageous not to.

If a defendant files a defence then this is their opportunity to set out the basis upon which the plaintiff’s claim should not succeed.  In addition, the defendant can also raise their own legal claim against the plaintiff, which is known as a counter claim.

What is the difference between a cross-claim and a counter-claim?

A cross-claim is a claim against another defendant.  A counter-claim is a claim against the plaintiff.

Step Four – Pleadings filed

The plaintiff’s statement of claim along with the defendant’s defence and any counter/cross claims are together known as “pleadings.”  All these need to be filed with the court.

Step Five – Discovery

What is discovery?

Discovery is a court-ordered process whereby each party is required to put together a list of documents which they think relate to the case.  Discovery does not happen in all cases. If you conceal documents you will be in contempt in court and could face financial penalties and even gaol time.

Step Six – Subpoenas

Parties may choose to issue subpoenas, these are court-based orders which force third parties (parties not directly involved in the case) to produce documents or appear in court.

Step Seven – Affidavits

Parties will often be ordered to file affidavits which contain the evidence of their witnesses. Usually the defendant will then file an affidavit-in-reply.

Step Eight – Date set

After all these documents are filed then a court date is usually set.

Step Nine – Pre-trial dispute resolution

Most court processes will require you to meet with the other party in some kind of mediation to see if parties can resolve the issue before it goes to trial.

Step Ten – Trial/Hearing

If the case proceeds to a hearing, each party makes its case and presents its evidence.  Witnesses can be examined or cross-examined.  A barrister and/or solicitor usually appears for each party, except in cases where a party chooses to be self-represented or in less serious cases (e.g. involving small claims in the local court).

Step Eleven – Judgment

After the hearing the judge or magistrate will make a decision, which is called a judgment.  Sometimes this will be on the spot or otherwise they will take some time to decide and might even produce a written judgment.

Step Twelve – Appeal

In most cases if you are not happy with a court’s decision then you have the option of applying to a higher court to appeal the decision.

If you become involved in a legal dispute you should seek legal advice from a business lawyer.