The following notes provide a step-by-step overview of the litigation process. The stages of litigation may vary from jurisdiction to jurisdiction. Also, settlement can occur at any time, even after trial.
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Click on the relevant term below to reveal a description.
Notice of Action
The Notice sets out what the claim is, for example a claim for money owed or property to be returned. The Notice also states the Plaintiff’s intention to take the matter to court.
The Plaintiff must usually wait from 21 to 90 days after sending the Notice before proceeding to the next step in the litigation process, (step 2 below). Many disputes settle in this time, avoiding the cost and delay of going to court.
Summons / Application
It must be issued out of an appropriate court which has jurisdiction to deal with the matter described in the summons.
It will be addressed to the person against whom the claim is brought. (The Defendant) It will usually be accompanied by a document known as a ‘Statement of Claim’. A statement of claim sets out in some detail why the Plaintiff is bringing the claim and what orders the Plaintiff is asking the court to make.
In some cases the summons must be personally served on the Defendant. In other cases it is sufficient to send it to the Defendant’s address.
Defence / Counterclaim
The statement of claim and the defence when read together enable the court to know what it is that the parties are arguing about, and to have some idea of what evidence will be presented if the matter goes to trial.
Both the statement of claim and the defence are important documents which must be very precisely prepared.
A party would not normally be allowed to present evidence in court that is outside the matters identified in the statement of claim and/or the defence.
If the Defendant does not file a defence then after the time limit (usually 21 days) has elapsed the Plaintiff may ask the court to issue a ‘default’ judgment against the Defendant.
Discovery / Disclosure
This discovery, in many cases, may only be 20 or 30 pages, but in other cases can be thousands of pages.
Notice to Admit
Directions and Hearings
A matter will not be allowed to go into the trial list until the judge is satisfied that both sides have adequately prepared their evidence for presentation to the court.
For this conference it is necessary to make an estimate of how long the trial will take and to discuss any special arrangements for witnesses that may be coming from interstate or overseas.
Those matters that do proceed to trial must wait their turn in the court’s trial list which can often mean waiting for many months or even up to a year.
After hearing the evidence of a trial, a judge may give a judgment straight away or may wish to consider the matter further before giving a decision. This can also, on some occasions, result in further delays of several months.
Third Party Proceeding
Should the trial proceed and the Plaintiff only get an order for $15,000, the Defendant, in effect, wins the matter on costs because he can say to the court “I was always willing to pay that amount and there was no need to have a trial”. This shifts the costs risk onto the Plaintiff.
Until the trial is over the judge is not aware of the filed offer. Either party can file offers from time to time with differing costs benefits.
If your claim is for personal injury, the law says that you must begin the litigation process outlined above within three years.
If your claim is under contract or relates to property damage, you usually have six years in which to begin the litigation process outlined above.
If that time has passed, only in exceptional circumstances will the court allow you to enter into litigation to try to recover your claim.
Flow chart to show process
Free legal advice.
If you have some questions, want some advice or want to get the process underway, contact Scammell & Co. to arrange a meeting. In many cases (not all) the first 30 minutes of your first meeting is free. This can give time to outline your matter and for us to give you preliminary advice.
235 St Vincent Street,
South Australia 5015
(08) 8447 4466
107 Walkerville Tce,
South Australia 5081
(08) 8342 0300