Overview of the Litigation Process
So you’ve been served with a writ, or you want to sue someone. Where do you start? Going to Court is often referred to as litigation. It can be a daunting process for most people. It can also be costly and take a huge emotional toll. So before you get involved, it assists to know how the process works. This article will set out an overview of what generally occurs in a case. (It is designed as a general guide only and if you are involved in, or considering, litigation you should obtain your own legal advice about the steps required to be taken in your particular circumstances).
1. Originating Process and Pleadings
The first step in commencing a court proceeding is for the person seeking to assert a legal right to commence the proceeding. This is done by what’s called an originating process. Depending on the Court and the type of matter, the originating process may be called a Writ (which will commonly be used in the Supreme and County Courts), a Complaint (as used in the Magistrates’ Court) or an Application (VCAT). The originating process usually sets out the parties involved (i.e. who is suing whom) and what actions the defendant must take to defend the proceeding. In the higher courts, a defendant usually has to file a Notice of Appearance, which is a notice by the defendant confirming that the defendant has become a party. If the defendant is not a party to the proceeding (either through filing a Notice of Appearance or filing a defence) the plaintiff may be able to obtain a default judgment. To commence a proceeding, a plaintiff or applicant has to pay a filing or commencement fee, which ranges from a few hundred to a few thousand dollars depending on the Court.
When commencing a proceeding it is usually standard practice for a plaintiff/applicant to file his or her pleading at the same time (or, in certain cases, within a prescribed period). Pleadings are how the parties set out their case. For the plaintiff/applicant, it’s usually called a statement of claim. The defendant/respondent usually has a set period of time to file a notice of defence. The pleadings set out the facts that each party relies upon to establish their case. The principal objective of the pleadings is to work out which facts are agreed and which facts are in dispute, which helps streamline the conduct of the proceeding. You should not plead the evidence which supports the pleaded facts.
Pleadings are some of the most technical parts of the litigation process because the Court has rules about them and there is a certain formula to use which has been developed by the Courts and lawyers over hundreds of years. As pleadings define the nature and boundaries of the dispute, they can be strategic and there is an art to getting them right. They can also be a hunting ground for opportunistic lawyers or parties to run up costs with disputes about the pleadings on technical grounds. And you need to know what legal basis you have for your claim and the elements which form that legal basis before you can plead the facts giving rise to the claim. Accordingly, it is recommended that a party to have an experienced solicitor or barrister draft their pleadings as it sets the groundwork for the whole of the proceeding.
Certifications
Under the Victorian Civil Procedure Act, all parties to a proceeding in a Court must now file and serve certificates which state:
- that the parties are aware of their obligations (as set out in the Act) as to the conduct of the proceeding, including the obligations to further the administration of justice, to act honestly and to use reasonable endeavours to resolve the dispute; and
- that their pleading has a proper basis.
2. Interlocutory steps
You may have heard this term before. For many people, it would be nice to simply front up at Court and argue their case. However, things are not usually so simple. There are a number of steps which need to occur before the matter can get to trial. These steps are called interlocutory steps. How many interlocutory steps there are will vary according to the size and complexity of a case and how many disputes there are about how those steps are being carried out. For now, I will discuss the main steps common to 99% of disputes.
Directions
After a notice of defence is filed, the Court will schedule a “directions hearing” or “administrative mention” to direct the parties what steps are to be taken and set a timeframe for each of those steps. In the Magistrates’ Court and County Court than usually involves setting a date for trial and for each interlocutory step. In the Supreme Court, proceedings aren’t set down for trial until most of the interlocutory steps have occurred. In many circumstances, the parties are asked to agree on the timetable of interlocutory steps and submit the agreed timetable to the Court without the need to attend at a directions hearing. In some cases, the Courts ask the parties to attend a directions hearing so the responsible judge can find out what the case is about in order to manage it effectively.
Further & better particulars
Many statements of claim or notices of defence don’t fully set out all the details and each party will usually be permitted to ask the other to clarify their pleading. For instance, if a plaintiff pleads there was an agreement, the other party is entitled to know whether the agreement was oral or in writing, when it was formed and who entered into the agreement. After filing of the statement of claim and the defence, most courts will allow time for the parties to serve a request for further and better particulars of the pleading. The party receiving the request will usually have 14 days (or some other specified time) to provide the further and better particulars.
Discovery
Discovery is not some form of legal enlightenment but, in layperson’s terms, is about each party informing the other side of the evidence he or she holds which is relevant to the dispute. In other words, you must list all the documents you hold in your possession or control which are relevant to the dispute. This includes not only the documents and communications which will assist your case, but any documents or communications which may harm it. These days, documents not only include letters, contracts, bank statements and the like but also include electronic communications and media such as email, and recordings. The documents must be made available for inspection by the other party and the other parties is entitled to ask for copies.
There are restrictions on the other party as to the use of the information in those documents. If the information in those documents cannot be obtained from a source other than from discovery, the other party will be restricted from using the information for a purpose other than use in the proceeding in which the documents are produced.
Up Next…
Usually, once the parties have conducted the discovery process and there are no disputes as to any interlocutory steps, the parties will be ready for mediation. I will discuss that in Part 2.