We are often asked by our clients “What does litigation involve?” and “How long does the litigation process take?” The answer is that each matter varies a great deal and it is never easy to predict how long a matter might take from start to finish. With that being said, civil litigation often begins the same way and follows the same basic structure. In Queensland, the Uniform Civil Procedure Rules (UCPR), provides the rules and guidelines to be followed when engaging with the Courts. The following is a general outline of the usual process of litigation in Queensland pursuant to the UCPR.
INITIATING PROCEEDINGS
To start a legal proceeding, a Claim and Statement of Claim is prepared and filed in the registry of the relevant court by the plaintiff. These documents outline what the plaintiff wants from the other party and provide the relevant facts to support the claim. It is vital that these initiating documents are drafted correctly as the rest of the proceedings are built around them. This is where a lawyer’s advice and assistance may prove extremely valuable.
DEFENCE/DEFAULT JUDGEMENT
Once served with a sealed Claim and Statement of Claim, the defendant will be required to file a Notice of Intention to Defend together with a Defence within 28 days. The defence outlines the defendant’s response to the allegations made in the Statement of Claim. If the defendant does not file a Defence within 28 days, the plaintiff may apply for Default Judgement. Ideally, the defendant should seek legal advice as soon as being served with a Claim and Statement of Claim.
REPLY
The plaintiff has an opportunity to respond to any matters raised in the Defence by way of a Reply. This document must be filed and served within 14 days of receiving a Defence.
DISCLOSURE
Once the above steps are completed, the parties will be required to provide copies of all documents (whether in hard copy or electronic format) that are relevant to the issues in dispute (whether favourable or unfavourable) to the other side. This is called disclosure. This process enables all parties to see what evidence is being relied on. It may also be at this point that the parties obtain expert evidence if required
MEDIATION
A Mediation or settlement conference can take place at any stage of a dispute but often takes place after the parties have disclosed all relevant documents and is used as a final attempt to settle a matter before a trial or hearing. A mediation or settlement conference may take place at the request of both parties, or it may be ordered by the Court or tribunal prior to trial. It is important to note that a majority of matters are settled before trial, either through a mediation, settlement conference or negotiations between the parties and/or their legal representatives.
TRIAL OR HEARING
Once all the previous steps have been completed the matter is ready to be listed for trial. At trial, each party is given an opportunity to present their case in person before the Magistrate or Judge. Once the Magistrate or Judge has heard all of the evidence and considered all submissions from the parties, a decision is handed down.
The above information is for general purposes only. It is important to note that there may be a range of other steps that need to be taken. For expert advice about your dispute and the litigation process, please call us to arrange a consultation.
