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Court procedures in Australia differ across state and federal jurisdictions. Generally, all share a common focus on managing cases to ensure a just and efficient outcome. This approach allows parties to regularly assess and refine their litigation strategy at each stage to work toward their desired result.
Pre-litigation action
Prior to issuing proceedings, parties may attempt to resolve the dispute by correspondence or alternative dispute resolution (ADR) methods like mediation.
Australian courts encourage parties to utilise ADR methods and usually require the parties to attempt mediation at least once after the commencement of proceedings.
In some jurisdictions, it is necessary to show that genuine steps have been taken to seek to resolve the dispute before the commencement of proceedings. Failure to comply with that obligation can lead to cost orders being made against a party.
Some disputes warrant the commencement of legal proceedings without prior notice to the parties. For example, if there is a significant risk the defendant will hide or dispose of assets to avoid complying with the court’s orders, or to preserve the subject matter of the dispute (including the current state of affairs).
Australian courts can make urgent orders when required. Orders can be made on an interim basis to maintain the status quo while the case is ongoing, in addition to any final orders granted at the end of the proceedings.
If a party believes they have a claim but it lacks sufficient information to decide whether to start proceedings, or against whom the proceedings should be brought, they can apply for pre-action discovery orders. These orders, if made, provide for the respondent to produce specific documents or categories of documents. After reviewing the disclosed documents, the applicant can then decide whether to proceed with their claim.
Pleadings
Legal proceedings usually begin by filing an originating process (e.g. writ, summons, claim or originating application) with the relevant court then serving that document on the defendant (in certain jurisdictions called respondent). The method of service depends on the type of defendant:
- A corporation can be served by delivering the document to its registered office.
- An individual must be served by handing it to the person.
- Solicitors can accept service on behalf of their clients.
- If the defendant takes steps to avoid service, the court may allow alternative methods of service, such as email or post.
- If the defendant is overseas, it may be necessary to seek the leave of the court to serve them.
Once a proceeding is commenced, the parties are usually required to exchange pleadings that detail the cause of action alleged, the nature of the defence and the facts to be relied upon. The pleadings are to be sufficiently detailed so as to ensure the other party is aware of the case they must meet and not be surprised at trial. Pre-trial disputes about whether pleadings are satisfactory are common.
Case management
Australian courts use case management procedures with the aim of resolving disputes as quickly and efficiently as possible by pushing the parties to prepare the matter for hearing.
Case management hearings (also known as directions hearings) are held regularly to enable the court to supervise the progress of the litigation and ensure compliance with orders.
A trial will be set down after pleadings have closed and evidence exchanged. The time of trial will depend on factors such as the urgency and complexity of the matter, the court’s availability, and the steps taken by parties to progress the action. It may be possible to list a matter for trial urgently if the court considers it necessary. However, for more complex cases, it can take several years before the case is ready to proceed to trial.
Documentary evidence
Documentary evidence can be obtained through various processes provided for in the relevant court’s rules:
- discovery involves the exchange of documents relevant to the proceeding (or limited to certain categories) between the parties;
- subpoenas are issued to non-parties to compel production of specific documents; and
- notices to produce are issued to other parties requesting specific documents.
A failure to comply with requests for evidence can result in a range of consequences including adverse cost orders, the refusal to allow a party to rely upon documents they only disclose at trial, and /or inferences being drawn about a party’s credibility.
Whichever disclosure process is adopted, parties will have an opportunity to withhold documents from production on the basis of legal professional privilege, without prejudice privilege and/or public interest immunity.
Witness evidence
Parties may need to lead evidence from both witnesses of fact and expert witnesses. Witnesses of fact will give evidence of their recollection of facts relevant to the case and refer to relevant documents. In commercial cases, evidence in chief may be given by way of written statements or affidavits or orally at trial. The process varies between the courts in Australia.
Expert witnesses will provide an opinion on issues within their specialist field. Expert witnesses will prepare a report ahead of the trial, which will be provided to the parties. It is common for parties’ expert witnesses to hold a conclave, where the experts consult with one another in an attempt to agree elements of their evidence, such as methodologies. Experts are regularly cross-examined on the content of their reports and commonly examined together at the same time.
Trial processes
At trial, the parties will typically each give an opening address, lead evidence from their lay witnesses and thereafter any expert witnesses, and conclude by making closing submissions.
Witnesses in commercial and civil cases typically provide their evidence in written affidavits or witness statements prepared and provided to other parties in advance. The opposing party will then typically have an opportunity to cross examine each witness at trial. Re-examination of the witness may also occur, however limited to the scope of the questions asked. Evidence in chief may be adduced orally in certain circumstances, such as where an affidavit or statement has not been obtained beforehand or the rules require it (e.g. criminal jurisdiction). There is not usually an opportunity to cross examine a witness before a final hearing.
Civil and commercial suits are decided by judges, while criminal trials of significant offences tend to be heard by juries with limited exceptions.
There is no set timeframe within which a court must deliver judgment; however, many Australian courts aim to publish judgments within three months of the conclusion of trial.
Remedies
There are a wide range of remedies available in Australian courts ranging from damages or other monetary compensation, injunctions requiring a party to do something or restraining them from doing something, or a declaration affirming the rights in respect of a power or thing. In some claims, courts also have a broad jurisdiction to craft orders to address the circumstances of the case.
Costs
Costs usually follow the event, with some exceptions. This means that an unsuccessful party is generally ordered to pay a portion of the successful party’s costs of the proceeding. Typically, a party will not be able to recover the full extent of the costs they incurred. These adverse costs orders prevent frivolous applications being issued and encourage resolution of issues early.
In exceptional circumstances (such as where a party has advanced a hopeless case, abused the court’s processes or acted vexatiously) the court may make orders for costs on a full indemnity basis.
Appeals
The avenues for appeal vary between jurisdiction, but in general, any appeal is heard by a higher court. Not all orders can be appealed. Orders are usually stayed, or postponed, pending the outcome of the appeal. To certain courts, leave (or permission) to appeal is required before the appeal itself is heard. Special leave to appeal is sometimes required in order to appeal to the High Court of Australia, which is the final appellate court.
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