There is a word we lawyers like to use often and typically with plenty of zeal – litigation. For the rest of the public, though, the idea of suing someone has been sensationalised by a lifetime of movies and television. The truth is that quite little is known about how the process actually works in Australia.
For some people the idea of litigation is exciting, for many it can be daunting, but I can assure you that the reality is somewhat anticlimactic.
The boring truth is that for most claims that are filed, no one will see the inside of a court room. This is a fact that seems to baffle most people as they prepare for their day in court, however, the reality is that most of the work is done via an exchange of letters and documents. The pen truly is mightier than the sword.
For those of you who have a legal problem and are feeling uneasy about taking the next step, or for those thinking ‘I don’t need to take it that far’, here is an overview of the process that may alleviate some of your uncertainty –
1. Filing a Claim
The first step is to file a Claim and Statement of Claim in the relevant court. This can be done online now. A Claim details what it is you are seeking from the defendant, and the Statement of Claim is merely an explanation of facts as to why you should have it. There is a lot of legal jargon and formalities that have to be adhered to, but in essence that is all it is.
Once the Claim has been filed it will need to be served on the Defendant. If it is a person, they will need to be personally served and we will get a process server to do it. Companies are a lot easier to serve as we can simply mail the Claim to their registered office.
3. Default Judgment
Once a Defendant has been served they will have 28 days in which to file a Notice of Intention to Defend and a Defence. If they fail to do so you are able to make an Application for Default Judgment. If they do file a Defence, there are a number of procedures that are required to go through including holding a settlement conference where negotiations can take place to obtain the best commercial outcome.
In the movies the judge will rule in your favour set to an inspirational soundtrack, the defendant will storm out in an outrage, and that is the end of the story. The reality is that obtaining Judgment is really the beginning. Just because you might have Judgment against someone doesn’t mean that they will automatically pay it. There are a few options that we can take to enforce a Judgment against a Defendant and they vary in severity from obtaining an arrest warrant to filing a creditor’s petition for bankruptcy.
One of the biggest issues that people worry about is the cost. This is a valid concern as no one wants to spend more money while chasing down money. You are able to claim scale costs from the defendant once you have obtained Judgment. Scale costs are prescribed amounts for each of the steps that your lawyer may charge you for in a proceeding. You will be charged the scale cost for each of these steps, however there will also be non-scale steps that may need to be taken. At the end of the day the decision to pursue someone in the courts should always be a commercial one.
This is of course is a simplistic overview of the process, and while at times it can get a little more complicated, overall litigation is not as dramatic or scary as it seems.
How we can help
If you are concerned about an issue and are not sure whether or not you should pursue it, feel free to contact us to discuss your options further.