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What to expect in your first legal battle. A basic guide to taking legal action in Australia.
If you have a dispute that you can’t resolve out of Court, you’ll most likely be looking to take legal action to resolve it. The process of taking legal action in Australia involves presenting your issue to a Court and allowing the justice system to decide the outcome based on the evidence submitted.
For those who have never experienced legal battle before, the entire process can be overwhelming given the formalities and technicalities required to present your case effectively in front of a judge.
Taking legal action can be expensive, and it usually is best to attempt alternative dispute resolution methods before having to go to Court. Depending on your circumstances, initiating litigation may be the only way forward.
It is possible to represent yourself in court without the help of a lawyer. However, it is always safer to seek legal advice from a professional before engaging in any legal proceedings. A qualified lawyer will be able to assist you at every stage of the legal process and will have the technical knowledge of applicable laws and techniques to help strengthen your case.
Here is a short guide to commencing legal action in Australia to help prepare you for your upcoming legal battle.
Depending on the dispute, you may be able to send a letter of demand detailing the following items:
- Clearly identify all parties involved in the dispute.
- Clearly define the problem at hand.
- Provide a clear outline of the basis from where the issue arose, e.g.breach of contract.
- Propose a solution to the disagreement, e.g.monetary compensation.
In your letter of demand, clearly outline a timeframe for settlement and state what can happen should the timeframe expire without any settlement. For example, you may write “Should payment not be received within seven days from the date of this letter, I reserve the right to take legal action to recover damages without further notice to you.”
Letter of demands are issued prior to going to court and is often viewed as a warning that legal action will commence should the claims contained within the letter be ignored.
Commencing legal proceedings
Proceedings usually begin with a Statement of Claim which is a document that outlines the dispute followed by the orders you are seeking against the defendant. In your statement, you will need to describe the particulars of payment, costs, injunction and/or specific performance you are after.
For example, your Statement of Claim may seek an injunction relief from a neighbour to stop their dogs digging under your fence or in a commercial setting, against a landlord from entering the property without notice. Or it may seek specific performance for a neighbour to perform a dangerous tree removal.
When you start legal proceedings in the Supreme Court of Victoria, you will need to file a writ using Form 5A to call the issue to Court.
Serving the complaint on the other party
Once a Complaint is issued, you will need to serve it on the other party. You will then have to wait for a specified time before any further action can be taken and the amount of time depends on how and where the Complaint was served.
During this time, the recipient is entitled to respond by filing a Notice of Defence which sets out points of disagreement.
If a Notice of Defence is not received within the specified timeframe, you can apply for a Default Judgement which gives you the right to begin proceedings to enforce the Order of Default Judgement and usually requires the other party to perform the requirements outlined in your Statement of Claim.
Where the party files a Notice of Defence within the specified timeframe, your legal matter will be listed for mediation or a hearing depending on the Court’s decision. Once this is done, the formal process of your legal battle begins.
Article provided by Aandi Lawyers