Going to Court

Going To Court In A Civil Jurisdiction

Being involved in civil litigation will likely be a very stressful time in your life. This stress can be made worse when you are required to attend court as part of the litigation. One way to alleviate some of the stress is to have a basic understanding of how your case will proceed through the court system. It is more important than ever to understand the process owing to the recent introduction of the Uniform Civil Rules (SA) 2020 (the Uniform Rules), which has provided for a major overhaul of South Australia’s civil courts.

Which court do I go to?

Depending on the size and nature of your claim or the claim lodged against you, you will either appear in the Magistrates Court, District Court or Supreme Court of South Australia. For claims of less than $100,000.00 sought, the Magistrates Court is the appropriate court in which to lodge a claim. Anything over the $100,000.00 mark must be filed in the Higher Courts (usually the District Court of South Australia). If your claim is more specialised (such as a Commercial or Personal Injury matter) the District Court will now have new lists for those matters specifically.

Before you go to Court

The Uniform Rules have introduced new and fairly strict rules about what must be done by a party prior to going to court. These are called the pre-action procedures. An Applicant (formerly Plaintiff) must first provide the Respondent (formerly Defendant) with a Pre-Action Claim by Written Notice. This document must include:

• Sufficient material for the Respondent to provide a detailed response
• An estimate of the Applicant’s legal costs
• An offer to settle the claim in a form capable of being legally binding
• A proposed date and time for a pre-action meeting

The Respondent must provide a Pre-Action Response within 21 days (or 30 days in the case of a personal injury matter). The Respondent must also agree to the pre-action meeting or offer an alternative within 7 days of the proposed date.

At the pre-action meeting, both parties are expected to negotiate in good faith to try and avoid litigation. The primary factors in dispute must be identified and whether alternative dispute resolution is appropriate.

There are hefty consequences for failing to follow these steps. These can include the court suspending your matter until you comply or even order for costs against you.

Claim and Defence

Should the pre-action negotiations fail, the Applicant will file a Claim in the relevant court. The claim needs to be in the approved form and identify all the relevant facts and information. Once filed, the claim document must be served on the Respondent within 6 months of filing. Once a Claim is received, a Respondent has 28 days to file a Defence. Once both a claim and defence have been filed, the first Directions Hearing will be set.

The First Directions Hearing

At the first Directions Hearing of a matter, both the Applicant and Respondent are required to appear. The location of the court will depend on the Registry in which the Claim is filed. You will be notified of which court you are required at as well as a date and time.

At the first Directions Hearing, the presiding Magistrate, Master or Judge will order one or more of the following:-

• Discovery – that one or both parties provide each other with the documents on which they plan to rely
• An adjournment for settlement – if the parties are close to an agreement, the matter may be adjourned to allow for further negotiations to take place
• Expert appraisal – if the matter is capable of resolution with the involvement of an expert, an expert report may be ordered
• A date for Trial may be fixed

At all times during the court process, both parties are expected to continue to negotiate to try and reach a resolution.

Preparing for Trial

If the parties can’t reach an agreement, the case will be listed for Trial. The length of the Trial depends on the complexity of the matter, how many witnesses each party intends to call and various other factors. Depending on the size and complexity of the matter, you may also need a Barrister to represent you in court. A Barrister acts as a specialist in certain areas of law, and is usually required for their opinion prior to a trial. The Barrister will also “appear” in court on your behalf, meaning they present your case to the court.

Trial is seen as a very lengthy and expensive process. Generally, if the matter is capable of resolution outside of the courtroom, a Magistrate or Judge will do everything they can to encourage the parties to reach an agreement.

In any civil matter where you can’t reach an agreement, it is important to have lawyers on your side that can both negotiate effectively ,as well as navigate the court processes. Websters Lawyers have an experienced and successful civil litigation team who can assist with your matter at all stages. Contact us today for a free consultation.