Pre-Litigation Process

31 Oct

Australia has a common law system, which is a Federal system. Power is shared between the Commonwealth, six States, and two self-governing Territories. There are separate jurisdictions for each State and Territory, with their own courts and tribunals. Furthermore, a hierarchy of the courts and tribunals exist, which has jurisdiction over laws that are created by the Commonwealth Government. The uniting link of these court hierarchies is the High Court of Australia, which possesses the power of appeal for all of the court systems.

The Federal and State/Territory levels govern rules of the respective jurisdiction and civil procedure acts. While there are a few small differences between processes of Australian courts, litigation is mostly the same all throughout Australia. 

At the start of a proceeding, parties issue pleadings which highlight the issues of the dispute. These are usually in the form of a statement of claim or defence. Next comes discovery. The parties will disclose significant documents and inspect their opponents’. If necessary, subpoenas can be warranted to obtain any necessary documents from third parties. 

After discovery, each party prepares its evidence for the final trial. Witnesses in the Federal Court  will have written witness statements, prepared by lawyers to be served on the opposing party. If expert witnesses are needed then parties can engage individuals to provide specific evidence pertaining to their field of specialised knowledge. 

During this time the parties attend court regularly for the management of their case. Orders regarding the conduct of the matter are made to govern everything leading up to the final hearing. These are called Directions Hearings. After all evidence has been prepared the case proceeds.

Any party that would like an expedited hearing must have grounds for why their matter takes precedence over the court’s other cases. There are judges whose roles are to manage cases that need to be heard urgently.Litigation in Australia allows a respondent to apply for security for costs if they do not expect to recover costs from the plaintiff following a judgment.  The court can then decide whether or not to award security for costs and give the respondent some costs protection. If there is a third party funder who stands to benefit from a successful  the courts take it into consideration when granting the security. Parties involved in legal proceedings should always be mindful of the risk and predictability of litigation.

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