What is civil litigation?

Civil litigation is the process of resolving disputes through the court system.

Examples of the types of disputes we can assist with include:

  • Contract disputes
  • Debt recovery
  • Business disputes
  • Real estate and leasing disputes
  • Wills and probate disputes
  • Consumer law disputes
  • Professional negligence disputes
  • Defamation

How is the civil court system structured? What are the various levels of appeal and are there any specialist courts?

The High Court of Australia is Australia’s highest court and exercises both original and appellate jurisdiction. The majority of the High Court’s matters are appeals from the appellate divisions of the State and Territory Supreme Courts and the Federal Court of Australia after special leave to appeal is granted. Matters heard by the High Court in its original jurisdiction include challenges to the constitutional validity of laws. High Court decisions are binding on all lower courts in Australia.

Each of Australia’s six States and two Territories has a Supreme Court which is the highest court in that State’s court system, subject only to the High Court. Each has unlimited civil jurisdiction. The Supreme Court of Western Australia hears, at first instance, monetary claims above the $750,000 threshold based on the amount claimed in the proceedings, or claims for equitable relief. Monetary claims below that threshold are heard by the District Court (up to $750,000) or the Magistrates Court (up to $75,000). The appellate division of State courts is the Court of Appeal or Full Court, which hears appeals from single judges of the Supreme Court and from certain other State courts and tribunals. The Court of Appeal has both appellate and supervisory jurisdiction in respect of all other courts in the State system.

The Federal Court of Australia (Federal Court) has jurisdiction covering almost all civil matters arising under Australian Federal law. Most notably, the Federal Court has jurisdiction to hear disputes on issues including trade practices laws, bankruptcy, corporations, industrial relations, intellectual property, native title and taxation.

The Federal Circuit Court hears less complex disputes relating to family law, administrative law, bankruptcy, industrial relations, migration and trade practices laws.

In addition, some States have established specialist courts and tribunals of limited statutory jurisdiction, designed to hear specific categories of disputes.

There are also a range of tribunals created under Federal law. For example, the Administrative Appeals Tribunal reviews a broad range of administrative decisions made by Australian Government ministers and officials, authorities and other tribunals.

What matters are dealt with in the Magistrates Court?

The Magistrates Court deals with civil matters that involve:

  • claims for debt or damages of up to $75,000;
  • minor claims for debt or damages up to $10,000;
  • consumer/trader claims over the sale, supply or hire of goods or services;
  • residential tenancy matters involving amounts up to $10,000; and
  • claims for the recovery of ‘real property’ up to a gross rental value of $75,000.

What matters are dealt with in the District Court?

The District Court is an intermediate trial court placing it between the Magistrates Court and the Supreme Court in the Western Australian courts hierarchy.

In its civil jurisdiction, the District Court deals with commercial and debt recovery matters involving claims between $75,000 and $750,000.

The District Court also has appellate jurisdiction for civil matters on appeal from the Magistrates Court.

What matters are dealt with in the Supreme Court?

The Supreme Court has the power to deal with claims where the amount in issue is over $750,000.

The Supreme Court also deals exclusively with other types of claims – for example, an action in which an injunction or a declaration is sought must be started in the Supreme Court.

Similarly a claim in relation to a Will or under the Family Provision Act must be started in the Supreme Court.

What does the litigation process involve?

We have extensive civil litigation/dispute resolution experience and can represent you, your business or company at all stages of the litigation process, which generally includes:

  • Obtaining all the relevant facts
  • Identifying possible causes of action
  • Calculating damages
  • Advising you on possible plans of action and prospect of success
  • Negotiating with other parties to resolve matters outside Court
  • Initiating Court actions (including making arrangements to file and serve court documents)
  • Briefing and working with barristers
  • Obtaining and managing evidence
    Drafting all court documents including affidavits and orders
    Seeking summary and/or default judgment orders
    Acting on summary or default judgment orders
    Acting in interlocutory proceedings (including urgent injunctions)
    Acting at final hearing/trial

What are the main stages in civil proceedings?

A civil litigation case will usually proceed along the following steps:

  • The plaintiff sends a letter of demand to the defendant setting out:
    • the issues as the plaintiff sees them;
    • the orders that the plaintiff will seek if it starts an action;
    • a genuine offer to resolve the issues in dispute – which may involve an offer to mediate; and
    • a time (at least 14 days after the date of the letter) within which the plaintiff would like the other party to respond to its letter.
  • If the matter is not resolved or the defendant does not respond to the letter of demand, the plaintiff files a writ of summons to commence the action.
  • The defendant files a memorandum of appearance indicating that the defendant intends to defend the action and providing an address for service of documents.
  • The plaintiff files a statement of claim stating the facts on which their claim is based and the orders sought from the Court.
  • The defendant files a defence, stating the facts which the defendant wishes to place before the Court in opposition to the plaintiff’s claim. The defendant may also file a counterclaim containing a claim by the defendant against the plaintiff.
  • Each party provides a list of the documents in their possession, custody or control to the other side, and permits the other side to inspect and take copies of these documents. This process is known as discovery.
  • A party may apply to the Court for orders to identify the issues in dispute more clearly called a request for particulars or to obtain information from the other side as to the case it has to meet at trial called interrogator.
  • The plaintiff enters the action for trial, signifying to the Court that the parties are ready for the action to be allocated a trial date.
  • The parties are required to attend a settlement conference (known as a pre-trial conference) where a Court Registrar may facilitate a discussion between the parties to see if the parties can agree to settle the action without going to trial. In some cases a Mediation Conference is listed.
  • If the action is not settled at the pre-trial conference the action is listed to a listing conference where trial dates may be allocated.
    The trial is held. A Judge will review all the evidence and publish a written judgment.
  • The successful party enforces the judgment.
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