In Brief - The Steps Involved in Commencing and Running a Civil Action

A brief rundown of the steps involved in running a cicil action. For more information fill free to call LAC Lawyers on 1300 799 888. LAC Lawyers = RESULTS

Commencing a Civil Action

A civil action is commenced either by lodging a summons or a statement of claim. The parties in a claim are the Plaintiff (one who sues) and the Defendant (the one who is sued or is defending the claim). On filing the claim, the necessary papers will then have to be served on the Defendant in accordance with the relevant Rules.

Upon receipt of the Claim by the Defendant

Once the Defendant has been served with the Statement of Claim, he can elect to either :-

1. admit liability;
2. negotiate a settlement without admission of liability; or
3. file a Defence to the claim.

Negotiating Settlement

In some instances, parties may come to an agreement to settle the matter without the need to go to court. This form of settlement is often called “alternative dispute resolution”.

An agreement is derived through negotiations and proposals for settlement are often put forward by parties with a view to settle the matter amicable. More often than not, when parties negotiate a settlement and come to an agreement, the matter or claim is then withdrawn by the Plaintiff without admission of liability by the Defendant.

When parties are unable to come to any form of settlement and negotiations have broken down, the parties then prepare to go to court for Hearing before a Judge or Magistrate.

Defending a Claim

A Defendant intending to defend the claim must lodge his Defence (Notice of Grounds of Defence) in response to each claim by the Plaintiff within 28 days of receipt of the claim.   

Alternatively the Defendant may file a counter claim against the Plaintiff. A Counter Claim is a claim by the Defendant opposing the claim by the Plaintiff and seeking relief against the Plaintiff for damages the Defendant deems to have suffered. 

The Hearing

At the Hearing the Plaintiff will first put their case forward and call witnesses, produce documents and explain the case. This is called “examination in chief”. The Plaintiff will have to satisfy the court that there is a strong case and the standard of proof to be applied is “balance of probabilities”.

The Defendant is then called upon to put forward their defence by calling witnesses and producing evidence to rebut the Plaintiff’s claim.

Thereafter, the Plaintiff is given the opportunity to respond to issues raised by the Defendant in “cross-examination”.

Decision

Once both Plaintiff and Defendant have closed their case, the matter is then before the Judge or Magistrate to grant the orders sought and deliver a decision based on the facts and evidence presented by both parties.