Civil Litigation FAQ

A statement of claim is the originating document in most civil proceedings. It sets out the parties, the facts the plaintiff alleges, the legal basis for the claim, and the relief sought. It must be drafted with sufficient particulars to inform the defendant of the case to meet.

A defence is the defendant's formal response to a statement of claim. It admits, denies, or does not admit each allegation, and sets out any positive defences (such as set-off, estoppel, or limitation periods).

Discovery is the process where parties disclose documents relevant to the issues in the proceedings. Each party produces a list of documents and makes them available for inspection. The scope and process differ between courts.

Legal professional privilege protects confidential communications between lawyer and client made for the dominant purpose of giving or obtaining legal advice (advice privilege) or for use in litigation (litigation privilege). Privileged documents need not be discovered.

Common law and equity were historically separate systems administered by separate courts. Today they are administered together but the distinction remains in practice — equity provides remedies like injunctions, specific performance, and trust enforcement that common law does not.

Summary judgment is a procedural mechanism where the court can give judgment without a trial if there is no real prospect of the other party succeeding on the claim or defence. It is typically used to dispose of weak claims or defences early.

An interlocutory application is an application made during the course of proceedings (rather than at trial) for orders such as discovery, security for costs, interim injunctions, or amendment of pleadings.

The limitation period for a contract claim is generally 6 years from the date of the breach (12 years for deeds in some states). The limitation period varies by cause of action and jurisdiction. Failure to commence proceedings in time generally extinguishes the claim.

The general rule is that costs follow the event — the unsuccessful party pays the successful party's costs. However, the court has wide discretion and can make different orders based on conduct, partial success, or settlement offers.

A Calderbank offer is a settlement offer made on a "without prejudice except as to costs" basis. If the offer is rejected and the party who made it does better at trial, the court may award indemnity costs from the date of the offer.

Mediation is a structured negotiation between the parties facilitated by a neutral mediator, aimed at reaching a settlement. Most Australian courts now require mediation (or some form of ADR) before trial. Mediation is typically confidential.

An expert witness is a person with specialised knowledge who gives opinion evidence on matters within their expertise. Expert evidence must comply with court rules requiring objectivity, independence, and acknowledgement of duties to the court.

Solicitors typically act as the client's primary legal representative — taking instructions, managing the matter, and briefing barristers. Barristers are independent specialists who appear in court and provide opinions. Some Australian jurisdictions have a fused profession.

A hearing book (or court book) is a bundle of all the documents that will be referred to at the hearing — pleadings, witness statements, key documents from discovery. It is prepared by the parties and used by the judge and counsel.

A notice of appearance is the document filed by a defendant indicating their intention to defend the proceedings. Filing it stops the plaintiff from obtaining default judgment. The next step is usually to file a defence.

Security for costs is an order requiring a plaintiff (typically a corporate plaintiff or a non-resident) to provide security for the defendant's costs in the event the claim fails. It protects defendants from being unable to recover costs after a successful defence.

A notice to produce is a request to another party to produce specified documents at trial. It is enforceable if the documents are within the party's possession or control and relevant to the issues.

A subpoena is a court order requiring a person to produce documents (subpoena to produce) or attend court to give evidence (subpoena ad testificandum), or both. Failure to comply can be punished as contempt of court.

A typical commercial case takes 12-24 months from filing to judgment. Complex matters can take longer. Many cases settle before trial — the procedural timeline is designed to encourage settlement at multiple points.

Quillio drafts pleadings in current AU format, runs discovery review at scale, builds chronologies from briefs and discovered documents, and researches AU procedural and substantive authority with citations. See /practice-areas/litigation-lawyers or start a free trial.