If you are a small business owner, there is a good chance that at some point you will consider suing someone, perhaps to recover a debt, or seek damages for a breach of contract, or to resolve an employment dispute.
If you are considering commencing legal action, it is important to understand the basic procedures involved.
We set out below a step by step guide to commencing legal action and provide some insight into the litigation process.
It is not enough to believe you have been wronged in order to commence legal action. You must have a “cause of action” based on a recognised legal principle, such as a breach of contract or negligence.
Even if you have a valid cause of action, you also have to be able to prove your case with evidence. You will need to consider what documents or witness statements you can get to support your claim.
Legal proceedings have to be commenced within a certain period of time of the relevant event (known as a limitation period) otherwise there is a risk that your right to bring a claim will expire, sometimes referred to as being “statute-barred”.
Limitation periods do vary – for instance, the limitation period for a breach of contract claim is six years, whereas the limitation period for personal injury claims is generally 3 years. It is critically important to get this right because, if you don’t file your claim in time, your right to do so may be lost forever.
The party who commences the proceedings is usually known as the “plaintiff”. Some courts refer to the person who starts the claim as the “claimant” or the “applicant”.
The person against whom the action is brought is known as the “defendant” or, in some case, the “respondent”.
There can be more than one plaintiff or one defendant to a legal action. If so, those additional parties are referred to as the second, third, fourth plaintiff or defendant as the case may be.
The stages of the litigation process
A legal action will generally proceed along the lines set out below.
Making a claim
Legal proceedings are commenced by a plaintiff against a defendant by a plaintiff filing a claim in Court (often referred to as “issuing, or commencing, proceedings”).
The document commencing legal proceedings is known as an originating process. An originating process contains all the key allegations made by the plaintiff against the defendant.
A fee is usually payable to the Court to file an originating process.
Service of the claim on the defendant
Once the originating process is filed, a plaintiff must serve the document on the defendant.
The requirements for service will vary, dependent on the entity (for example an entity can be either a natural person or company).
Personal service is often carried out by a professional process server, who will confirm that person’s identity, give them the relevant document(s), and complete an affidavit of service that can be filed to prove that the documents were served properly. Companies can usually be served by post at its registered office.
Service can take many forms. For instance, if a defendant is avoiding service, an application can be made to serve documents by email, text message, or even a post on Facebook.
After service, a defendant is provided a period of time within which to file a response to the plaintiff’s statement of claim. This is usually called a statement of defence or, simply, a defence.
In a statement of defence, a defendant responds to the allegations set out in the plaintiff’s claim and includes any facts the defendant intends to rely upon to say why the claim should not succeed.
Preparing the claim for hearing
Following the statement of claim and defence, the matter will generally be listed in Court for an initial hearing. Some courts refer to this as a ‘directions hearing’. In the first instance, the Court will make orders that set out the steps that need to be taken by the parties to prepare the matter for a final hearing.
The orders made by the Court might include:
- directions as to the disclosure of all documents relevant to the claim by the parties,
- preparation and service of evidence,
- appointment of expert witnesses,
- preparation of trial books (bundles of all documents the parties will refer to at trial), and
- setting a date for the final hearing.
Trial or final hearing
If a case proceeds to a final hearing, the parties take turns to present their case and their supporting evidence.
The plaintiff usually goes first by making an opening statement and then calling witnesses to give evidence. Once the plaintiff has called all their witnesses, the defendant has their turn.
Each side has the opportunity to question the other side’s witnesses. This is called cross-examination and it’s not at all like the movies.
Free tip – don’t do this:
After all the defendant’s witnesses, the defendant makes their closing submissions. Then the plaintiff makes their closing submissions.
At the end of the trial, sometimes the judge may make a decision on the spot. Other times, especially where the trial involved a lot of evidence or complex issues, the judge might issue a written decision several weeks or months later (referred to as a “reserved” decision).
In most Western Australian civil courts, the loser usually pays the winner’s legal costs. This is the general rule and there are exceptions, such as the magistrates court minor case jurisdiction (for cases less than $10,000), and the State Administrative Tribunal.
It is important to note that a costs order does not mean that you will recover 100% of your legal costs. The maximum amount of costs that can be recovered by successful litigants in Western Australian courts is limited by a scale of costs published biannually by the Legal Costs Committee.
This is an important issue that all potential litigants should discuss with their lawyer, prior to issuing proceedings.
The litigation process can be complex and risky. Commencing legal action in court is a serious step and can have significant financial consequences if you get it wrong.
This article contains a general overview of the litigation process. If you intend to commence a legal action you should first get legal advice and assistance from an experienced lawyer.
If you or someone you know wants more information or needs help or advice, please contact us.