What are “pleadings” and why do they matter? How long does litigation take? What documents should I give my lawyers? Do we need expert evidence, and what does that involve?
These are the kinds of questions we answer every day so we thought we’d put together a one-stop-shop of answers to help. We’re going to run through a “normal”* piece of litigation in Queensland, what the usual steps are and some terminology that might help you to understand along the way.
So if you’re contemplating litigation or about to be faced with it, read on to see what you’re up for.
*there is no such thing as normal litigation
Note – litigation is a vast area and this is a general guide only. Get in touch before acting on anything we say here, because for every rule there are a bunch of exceptions.
Getting Started in Litigation
Litigation in Queensland takes place inside what’s called an “adversarial” system.
That means there’s our side, and their side (and possibly a few other sides thrown in for good measure).
The person who starts the proceeding is usually called the plaintiff, and the person on the receiving end is usually called the defendant.
Most of the litigation process is each party putting their case to the other. That might be through formal court documents, correspondence, telephone calls or Court intervention.
Through this process, the main issues should be identified. This is so by the time you get formal negotiations or trial, everyone has a good idea what’s going on.
A basic flow of litigation in Queensland is:
- A proceeding begins;
- The parties exchange “pleadings” – the documents which set out their positions and the basic factual reasons for those positions;
- The parties exchange relevant documents – called “disclosure” in Queensland;
- If expert evidence is needed, then the parties arrange for expert reports to be produced and exchanged;
- Attempts at negotiation to settle the matter are made;
There are variations on these of course, but that’s a good picture of many Court proceedings. Let’s work through each in turn.
The pleadings are documents that determine the “issues” between the parties. They help both the parties and the Court to understand what we agree about, and what we don’t. Things we disagree about are said to be “in issue”.
The Claim and Statement of Claim
While there are other ways to do it, the most common way to start a Court action is the plaintiff filing a “Claim and Statement of Claim”.
The Claim is a short document that sets out what you want.
The Statement of Claim is a longer document that sets out the facts necessary to establish why the Court should give you what you want.
So, for example, if you were suing someone for money:
- Your Claim might say “The Plaintiff claims $150,000 as a debt owed by the Defendant to the Plaintiff, costs and interest”
- Your Statement of Claim might say:
- Who the parties are;
- What the agreement was and how it arose;
- That you performed your side of the agreement;
- That the agreement says they should have paid you now; and
- That, despite this, the Defendant hasn’t paid you.
As you might expect, the actual documents are going to be longer and more formal than this.
Once done, you pay the Court a filing fee and the documents get formally issued with a Court seal.
You then have to serve them on the Defendant. If it’s a person, you would typically have an agent serve them in person. If it’s a company, you would generally post it to their registered office (we arrange this for you as your lawyers).
Notice of Intention to Defend and Defence
You have 28 days after being served with a Claim and Statement of Claim to file a “Notice of Intention to Defend, and Defence”. If you don’t, the plaintiff might be able to just get a judgment against you – so it’s best not to waste time.
A Notice of Intention to Defend is a document that says, predictably, “we intend to defend this proceeding” and sets out your address for future correspondence. Usually, this is your lawyer’s address.
Your Defence responds to the Statement of Claim. You have three options to respond to something:
- Agree (admissions);
- Don’t agree (denials) in which case you have to explain why; or
- Say you have no clue about it (called a “non-admission”) if you can’t figure out whether it’s true or not.
Be careful about admitting things, because once you’ve done it, you need the Court’s leave to withdraw an admission.
Aside – it’s at this time you can file a “counterclaim” against the plaintiff if you have one. A counterclaim is a claim you have against the plaintiff, usually (not always) related to similar or connected facts, that runs parallel with the main proceeding.
The plaintiff then has one last chance to deal with anything new you might have raised in your Defence.
This is called a “Reply”, and the plaintiff has 14 days to file it after being served with a defence.
In theory, there is another document the defendant could file at this point called a “rejoinder” but it’s not very common so we won’t expand on this in this article.
Close of Pleadings
Once a Reply is served or the time for doing so has passed, it’s called the “close of pleadings”.
This is a bit of a misnomer because it sounds like you then can’t change things going forward.
In fact it’s common for Statements of Claim, Defences and Replies to be amended multiple times throughout a larger proceeding.
It can also be frustrating and expensive to respond to continually amended pleadings, but unfortunately you don’t have much choice.
The only real reason we care about the “close of pleadings” date is because that triggers the need to do disclosure.
Disclosure is the process of listing, and providing on request, all of the “documents” in your possession or control that are relevant to the allegations in issue in the proceeding.
You have 28 days after the close of pleadings to perform disclosure. It’s also an ongoing obligation so if you find anything else later or documents come into your possession, you have to disclose them too.
“Documents” is a wide term and refers to more than just paper. It includes electronic communications and basically anything capable of being extracted, printed, viewed or written down in a list. If in doubt – assume it’s a document.
Something is in your possession or control if you have it, or can get it – so it includes bank statements, for example, since you can just ask your bank for them.
Destroying or failing to disclose documents just because they might look bad is a terrible idea, and can get you into significant strife.
Third Party Disclosure – sometimes you might want to get access to records held by a third party, and they don’t want to (or can’t, for privacy reasons) just hand those documents over. You might be able to compel them to deliver those documents through a Court procedure. That’s one to get advice about, and be warned: you have to pay their reasonable costs of compliance, so it’s not a good time to go on a fishing expedition for every document under the sun.
There are two main types of evidence:
- Factual evidence – you saw something happen, did something, sent something.
- Opinion evidence – based on your expertise in area X, in your opinion ABC likely caused the problem.
There are a raft of rules and requirements about engaging experts in a Court proceeding in Queensland that are beyond the scope of this article. However, it’s important to discuss with your lawyers early on:
- Do you need expert evidence?
- Do you want to get your own or a joint expert report (everyone normally wants their own, but there are rules about that too)?
- What should the expert be given, when should they be engaged, and who should they be?
- What do you want expert evidence about?
Common experts include forensic accountants, IT specialists, insolvency practitioners and quantity surveyors.
Experts can also be quite expensive.
Throughout the entire Court proceeding, you should be thinking about a commercial way to resolve the dispute.
So while negotiations commonly take place after disclosure and expert evidence, they can occur at any time. Sometimes early negotiations are better, and other times they are not.
Negotiations tend to take place in a few main ways:
- Informal conversations between your lawyers and theirs;
- Correspondence setting out proposals for settlement;
- Conference between the parties; and
Most of these are self-explanatory, although we’ll explain mediation a little more.
Mediation is a process where an independent person (called the mediator) is engaged to facilitate discussions between the parties. The mediator’s job is not to make a decision, but rather to move the parties towards a resolution. Usually they are experts in a relevant field, professional mediators, Court staff, or barristers. Barristers are probably still the most common choice.
A mediator will often start with a group session and hear opening statements by the parties. They will then have independent discussions with each party and convey thoughts or messages back and forth, together with their own commentary. The point of this is to highlight the weaker parts of your case and the risks so that you are more likely to move on your settlement position.
The most common introduction to mediation is that a “good” outcome is where everyone is equally unhappy with it. In our experience, that’s about right.
The main benefit of any negotiated outcome, achieved via mediation or otherwise, is that you get the certainty of the outcome, and avoid the uncertainty and costs of going to trial.
Apart from any other reason it’s a good idea, many Courts will require you to engage in some kind of formal dispute resolution attempt before agreeing to list a matter for a trial.
A trial is called by that name for a reason.
Notice it’s not called an “easy” or a “Court directed walk in the park” – it’s called a trial.
The reason is that it’s expensive and challenging at both financial and personal levels.
Being a witness in Court isn’t fun. Nor is presenting your case to a judge who doesn’t know you or anything about you, and whose first introduction to your situation is usually the opening statements on the day.
At a trial here’s what will generally happen:
- The plaintiff will open their case with an initial statement to the Court;
- The plaintiff will then call its witnesses and present its evidence in support of its case. These witnesses will also be cross-examined (that is, asked annoying questions by) the other side’s lawyers;
- The plaintiff will close its case.
- The Defendant will then similarly present its evidence.
- The parties will give either oral or written submissions on the legal implications of the evidence they have presented.
- The Court will eventually make a decision.
How long a decision might take after a trial is impossible to predict. Sometimes it takes a week or two, and sometimes it might take 6 months or more.
Most people know that the “winner” of a Court hearing normally should expect an order that the other side pay their legal costs.
What many people don’t know is that those costs are calculated on a Court scale, and might be little or no resemblance to the costs you have actually incurred to get to a trial.
Depending on the Court and a variety of other factors, you might expect any costs order could cover around 30 – 70% of your actual legal spend, after going through the assessment process (which is a headache in itself).
So don’t commence litigation assuming that you’ll get all your costs back if you win. You probably won’t.
Things that Often Frustrate People in Litigation
We thought it might be useful to address a few common complaints about the process.
What we’ve set out above in the timeframes is the idyllic version. Realistically most matters wouldn’t be listed for a trial inside a year of starting, although it’s theoretically possible.
As we hinted above, the other party can change its case multiple times throughout the proceeding. That can get annoying. In fairness though, you have a chance to do the same.
For the reasons we already mentioned above.
While litigation is happening parties sometimes seek the Court’s intervention on smaller points (not the full trial). They do this through applications. So, for example, if you believe the other side hasn’t set out their case in sufficient detail for you to understand it, and they refuse to change, you might apply to the Court to force them.
The downside is that these applications can get expensive if there are more than a few, and they inevitably delay the progression of the matter. So while they are useful and common, it’s regularly better to try and sort things out in correspondence if you can.
Winning a case doesn’t mean you get paid. After the time and costs of significant litigation, many protagonists will find themselves in financial distress. So, even if you win, it might be that you do not get paid your judgment debt, or recover any of the costs that you have expended.
Of course there are recovery options that we can help you with, but sometimes there isn’t much to be done.
Queensland Litigation in a Nutshell
So that’s our guide to litigation in Queensland.
Of course, there are lots of options, variables and other ways of doing things beyond what we’ve set out here.
But if you’re thinking of commencing proceedings against someone, or you’ve just been sued in Court, get in touch and we’d be happy to help you out.