Unfortunately, from time to time people are confronted with litigating a dispute.
Whether you choose to act for yourself as a self-represented litigant or instruct lawyers to act for you, it helps to have an understanding of the process.
Let’s take a simple debt scenario and step through the process.
If you are owed say $50,000.00 and you have exhausted all avenues available to you to have the debt repaid, you are likely to seek legal advice about how best to try and recover the debt.
Generally the first pre-litigation step is a formal Letter of Demand from your lawyer to the other party which briefly sets out how the debt arose, why it is due and payable and demanding that it be repaid within a specified time, say fourteen (14) days.
If no response is received, you may then wish to proceed to litigate your claim. Litigation is the process of taking legal action.
Step 1 – Filing your Claim
To initiate legal action, the person owed to the debt (the Plaintiff) files a Claim and Statement of Claim in the relevant Court Registry which in the case of this debt would be the Magistrates Court of Queensland. The Magistrates Court has numerous registries across the State and your lawyer will be able to advise in which registry you should commence your claim. There are filing fees payable to file your court documents.
Step 2 – Serving your Claim
Once filed, the court documents must be either served personally on the Defendant or left with an adult at the Defendant’s residential or business address. In some circumstances, they may be posted to that address. Generally your lawyer will ask process servers or the court bailiff to serve the documents unless the Defendant has solicitors acting for him or her and those solicitors have instructions from their client to accept service.
Step 3 – The Defence
Once served, the other party (the Defendant) has twenty-eight (28) days to respond to the Claim. That may be in the form of a formal Defence filed in the registry or by contacting you or your lawyer. In either case, an opportunity may arise to negotiate a resolution of the dispute without incurring further legal costs although the Plaintiff may need to consider responding to the allegations in the Defence. This is done by another court document called a “Reply”.
Step 4 – No Defence!
If a Defence is not filed and served or no satisfactory resolution of the dispute is reached with the Defendant at that stage, the Plaintiff is then in a position to enter a Judgment against the Defendant “in default” of the filing of a Defence.
The Plaintiff then becomes a “Judgment Creditor” and has a number of options to try and secure recovery of the (now) Judgment Debt which by that stage will include a component for interest on the unpaid debt and legal fees.
Step 5 – The Interlocutory Processes, Mediation & Trial
If the claim is defended, the dispute will proceed to the process of disclosure which requires each party to provide a list of documents in their possession or under their control which are relevant to the issues in dispute. This is an important step in the process which recognises the “cards on the table” approach to litigation. Following that, the parties generally mediate their dispute. Mediation is a formal process involving the appointment of an independent mediator who attempts to assist the parties to resolve the litigation. Many claims are resolved this way, if not on the day of mediation, then soon afterwards.
However, if despite the best efforts of the Mediator to assist the parties to reach a compromise the dispute does not resolve, it will proceed to a Trial before an independent third party (a Judge) who will decide the case.
However, even if a person is successful in prosecuting their claim or their defence at Trial, the other party may appeal the decision of the trial judge and the above process (albeit somewhat modified) starts all over again!
The steps outlined above are very general as obviously every dispute is different and different circumstances call for different approaches. However, whatever your situation, we can provide effective and timely advice regarding your options and assist you through what can otherwise be a daunting process.
Mary-Anne Ole, Senior Solicitor