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Court Litigation and Dispute Resolution

The Courts and Tribunals exist to do justice between the parties. There are times where you have exhausted all your reasonable attempts to amicably resolve a dispute and nothing else, it seems, will work other than the intervention of the Court (to issue Orders awarding damages, injunctions and other relief measures against the defendant). The following article hopes to give you a little insight into the Court process, so that you may better appreciate what to expect.

The public should not fear the Court system. The institution exists to serve the public. But in saying that, conducting, or defending yourself, in Court proceedings, is not simple, and can be overwhelmingly technical, time intensive and costly (if mishandled). In its purest form, the Court system is designed to resolve issues, and disputes, between parties, and it has wide powers to make Orders best adapted to achieve justice in the particular case. But importantly, the Court system is open to everyone. And Court Orders must be complied with by the parties. Accordingly, if you believe that you have been wronged and have a valid claim, you are likely to be entitled to commence Court proceedings to obtain Court Orders.

However, commencing, and conducting, Court proceedings is not simple.

The Court has zero tolerance for having its time and resources wasted. The Court can only make Orders on the basis of reliable and admissible evidence (and in circumstances where the law actually provides a remedy). It is for this reason that Court proceedings are governed by highly technical Court rules, procedural rules, substantive laws and rules of evidence. As the system is adversarial (meaning, the parties are, in essence, in battle with each other until Judgment), the Court proceedings can, depending on the relative strengths and weaknesses of the parties’ cases, willingness of the parties to compromise and settle, resolve either quickly, or it can take years to resolve (only after a Trial hearing, where witnesses, for example, have been called to give oral evidence).

Court lawyers are uniquely qualified, skilled and experienced to handle Court proceedings.

Your case is best served by engaging a Court lawyer. The cost of conducting Court proceedings, or defending yourself in Court proceedings, can be expensive and the overall cost will depend on how competently the proceeding was conducted, how quickly the matter resolved (and whether you were successful in your case in the end). The other harsh, but true, reality is that there are times where you simply have no choice but to commence Court proceedings to force the hand of the other party (to either pay, or do, or not do, something), or you have been made a defendant to Court proceedings commenced by the plaintiff, in which case you essentially have no choice but to defend yourself.

There is no question about it. Court litigation can be very taxing, both mentally and financially. The law is complex. The rules governing Court procedure is complex. The Court has little tolerance for frivolous claims and tardiness. A claim, or defence, will be struck out in part, or dismissed in full, for non-compliance. Parties will be punished with adverse costs orders for improper conduct. In the circumstances, if you are serious about pursuing Court action, or you must defend yourself, you would do well to avail yourself of the skills and expertise of a Court lawyer. Find out more about the Court process below.


What is a Court Claim?

In Queensland, in order to commence Court proceedings before either the Magistrates, District or Supreme Court, you must, generally, file formal Court documents known as a “Claim” and “Statement of Claim”.

A “Claim” is an “originating process”, as it officially starts the Court proceeding once it is accepted and issued by the Court (i.e. it is stamped with the Court’s seal by the appropriate officer of the Court). A “Claim” will, amongst other matters, set out the relief (i.e. the Orders) that you are seeking from the Court. A “Statement of Claim” will set out the factual and legal basis upon which you say you are entitled to the Orders sought. The “Claim” and the “Statement of Claim” must comply with highly technical rules for pleading a case and the drafting must be to a very high standard.

A Court has the power, and will not hesitate, to strike out parts, or dismiss a case, where the “Claim” and “Statement of Claim” do not comply with the rules, or do not disclose a reasonable cause of action.

At times, however, it may be more appropriate to file a different type of originating process known as an “Application”, or the procedural rules which govern civil proceedings, known as the Uniform Civil Procedure Rules 1999 (Qld), may in fact dictate which originating process must be used depending on the specific circumstances of the case. If a Court proceeding is incorrectly started using the wrong originating process, the Court may:

  • order that the proceeding continue as if started by a claim or an application;
  • give directions the Court considered appropriate for the conduct of the Court proceeding; or
  • make any other order the Court considers appropriate, including imposing adverse costs orders against a party.

What are the general requirements of a Claim?

A “Claim” must be in the approved Court form.

A party that files a claim is known as the “Plaintiff”.

A party on whom the claim is served is known as the “Defendant”.

In the “Claim”, the Plaintiff must:

  • state briefly the nature of the claim made or relief sought in the Court proceeding;
  • include the names of all the parties to the Court proceeding;
  • include a statement in the claim notifying the Defendant:
    • the relevant time limited for filing a notice of intention to defend;
    • that if the Defendant does not file a notice of intention to defend within the time, a default Judgment may be obtained against the Defendant without further notice;
  • attach a “Statement of Claim” to the “Claim”; and
  • for a “Claim” filed in the Magistrates Court or a District Court, show the Court has jurisdiction to decide the “Claim”.

A “Claim”, once filed, remains in force for one (1) year starting on the day it is filed.

A stamped copy of the “Claim” and “Statement of Claim” must be validly served on the Defendant.

What are some common causes of action you can bring before a Court?

The most common causes of action we see pursued before the Courts include, without limitation:

  • breach of manufacturing, distribution and/or services agreements (including T&Cs)
  • breach of independent contractor agreements and/or employment agreements
  • breach of loan and/or hire agreements
  • breach of software development and/or licencing agreements
  • breach of shareholders’ agreements (or the bringing of shareholder oppression actions)
  • breach of director duties
  • breach of trustee duties
  • copyright and/or trade mark infringement
  • misrepresentation, misleading or deceptive conduct
  • action for encroachments, retaining walls and boundary disputes
  • action for outstanding debts and/or monies
  • construction disputes between builders and subcontractors (or builders and homeowners)

What is a Court Application?

A Court proceeding must be started by “Claim” unless the Uniform Civil Procedure Rule 1999 (Qld) (‘UCPR’) or other legislation require or permit the proceeding to be started by “Application”.

Unlike a “Claim”, a party that commences a Court proceeding by way of “Application” is known as the “Applicant” and the party on whom the application is served is known as the “Respondent”.

However, an “Application” is only permitted to start a Court proceeding if:

  • the only or main issue in the proceeding is an issue of law and a substantial dispute of fact is unlikely; or
  • there is no opposing party to the proceeding or it is not intended to serve any person with the originating process; or
  • there is insufficient time to prepare a “Claim” because of the urgent nature of the relief sought.

An “Application” is defined by the UCPR to mean:

  • an application starting a proceeding;
  • another application; or
  • if the court orders a proceeding started by claim to continue as an application, the claim is also an application.

What are the general requirements of a Court Application?

An “Application” must be in approved form.

An “Application” must also:

  • name as respondents all persons directly affected by the relief sought in the application, however, this rule does not apply if these rules or another law authorise the hearing of the application without notice being given to another person;
  • list the affidavits to be relied on by the Applicant at the hearing;
  • specify in the application the orders or other relief sought in the proceeding;
  • if an application is made under an Act, the application must state the name and section number of the Act under which the application is made;
  • specify the day set for hearing the application;
  • if an application is filed in the District Court or a Magistrates Court, or material filed with it, must show that the court has jurisdiction to decide the application.

Unless an exception under the UCPR or an Act applies, an application must be filed and then served on each respondent at least 3 business days before the day set for hearing the application. Unless the Court gives leave otherwise, an affidavit to be relied on by the applicant at the hearing of an application must be filed and then served on each respondent at least 3 business days before the day set for hearing the application. If all the parties to an application consent to an adjournment of a hearing of the application, they may adjourn the application by noting the adjournment on the court file or filing a consent in the approved form.

What is a Court Defence (and Counterclaim)?

If you are served with a Court Claim and Statement of Claim, you must file a Notice of Intention to Defend and Defence in the relevant Queensland Court within 28 days of being served. However, if the Service and Execution of Process Act 1992 (Cth) applies to the matter, then a notice of intention to defend must be filed within the time limited by the SEP Act. A failure to do so will expose you to having a default Court Judgment entered against you by the plaintiff (which is generally for the full amount of the Court Claim, plus interest and legal costs). You must therefore act swiftly to engage a Court lawyer to prepare a Notice of Intention to Defend and Defence for you (within the statutory timeframe).

At the same time (and during that same window), if you believe that you have a valid cross-claim against the plaintiff, you may wish to file a Court Counterclaim together with your Notice of Intention to Defend and Defence.

If you are served with a Court “Claim and Statement of Claim”, then you, the “Defendant”, are only allowed to take a step in the Court proceeding (i.e. formally defend yourself) if you have first filed a Court document known as a “Notice of Intention to Defend” in the Court registry from which the claim was issued. Following filing, a sealed copy of the notice of intention to defend must be served at the plaintiff’s address for service on the day on which the notice of intention to defend is filed, or as soon as practicable after it is filed. In the event that a defendant does not file a notice of intention to defend within time, the plaintiff may obtain a default Judgment of the Court against the defendant.

A defendant who proposes to challenge the jurisdiction of the Court to hear the claim or to assert an irregularity with the claim must file a “Conditional Notice of Intention to Defend”. If the defendant files a conditional notice of intention to defend, the defendant must apply for an order under rule 16 of the UCPR within 14 days after filing the notice.

What are the general requirements of a "Notice of Intention to Defend"

A “Notice of Intention to Defend” must:

  • be in the approved Court form;
  • have the defendant’s “Defence” attached to it;
  • must be signed and dated; and
  • contact details and address for service in accordance with rule 17 of the UCPR as if the defendant were the plaintiff for the purposes of complying with that rule.

Contact Us

If you need expert legal advice or assistance in relation to responding to, or appealing, a Show Cause Notice or an Enforcement Notice, please contact ADVIILAW today to speak to one of our experienced litigation lawyers.

Contact us on 07 3088 7937 or email us at [email protected].

Disclaimer

This commentary is of a general nature only, containing some general information for the reader.

It is not intended to be legal advice, nor can it be relied upon as legal advice, as each case will depend upon its own specific facts, matters and circumstances.

To this end, please kindly read our Website Terms and Conditions including the disclaimer contained therein carefully.

Laws, rules and principles may be subject to sudden and unexpected changes and you should always consult a lawyer about your specific circumstances before committing an act or omission in relation to your matter.

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