How do I take my matter to court?

If you are reading this you are likely in a dispute that feels unresolvable.  Whether it’s an upaid debt, a business contract gone wrong, a property issue, or a negligence claim, the frustration can be overwhelming.  You feel wronged and you want justice. Naturally, the question arises: “How do I take this to court?”

In Hollywood going to court happens overnight.  A wrong occurs and suddenly lawyers are dramatically yelling “objection!” before a jury.

In reality the legal system is procedural, methodical, and often slow.  

This post will roughly outline the general steps of taking a civil matter to court in NSW, and the crucial hurdles you must clear first.  Note that each matter is unique so we cannot outline everything that must be done for each specific case.  We are also only talking about general civil disputes here – criminal law, family law and specific tribunals all have different processes.

Before you go to court

Before we talk about how to go to court we have to talk about whether you should.

The legal system is designed so litigation is a last resort.  Judges expect parties to have made genuine efforts to resolve their dispute before filing a claim in court.  

If you rush to court without trying to settle first you may have problems with costs later (either recovering your own costs or being ordered to pay the other party’s costs), even if you win your case.

Before filing, you usually need to:

1. Negotiate directly:  Have you clearly communicated what you want and tried to find common ground with the other party?;
2. Consider Alternative Dispute Resolution (ADR):  Mediation or arbitration may resolve disputes much faster and cheaper than a court hearing;
3. Seek legal advice on the prospects:  Just because you are “in the right” morally doesn’t mean you have a strong legal case.  You need a lawyer to assess your evidence, the relevant laws, and the likelihood of success versus the cost of running the case.

A rough roadmap: taking your matter to court

If negotiations have failed and litigation is the necessary next step, here is the general process in NSW.

Choosing the right court

You cannot just walk into any courthouse.  NSW courts have different “jurisdictions,” mostly based on the amount of money in dispute:

• NSW Local Court Small Claims Division:  For disputes up to $20,000.  Procedures are simplified and less formal;
• NSW Local Court General Division:  For disputes between $20,000 and $100,000;
• NSW District Court:  Can handle matters between $100,000 and $1,250,000, and all motor accident cases;
• NSW Supreme Court:  For complex matters and disputes over $750,000.

Starting proceedings

To officially start a case you need to draft and file a document called a Statement of Claim.  The courts have specific forms/templates that you can use.  

The Statement of Claim tells the court and the other side:

• Who you are (the Plaintiff);
• Who you are suing (the Defendant);
• What happened (the facts defining your dispute);
• The legal basis for your claim; and
• What you want (the “relief” – usually money damages or a specific action).

You or your lawyer files the Statement of Claim with the Court Registry and pays a filing fee.

Service

Filing isn’t enough.  You must officially prove that the other side has received the documents so they have a chance to defend themselves.  This is called service.

There are strict rules about how documents must be served.  If service isn’t done correctly your case cannot proceed.

The defendant’s move

Once served the Defendant has a set time limit (usually 28 days) to respond.

If the Defendant ignores the claim and fails to file a defence you may be able to apply for default judgment.  There is a process to go through for that but essentially it means you win automatically because the other side didn’t show up – though enforcing that judgement is a separate hurdle which we won’t talk about here.  

A Defendant who files a defence will file a document admitting or denying your allegations.  The Defendant might also file a cross-claim, essentially suing you back and seeking their own legal remedy against you.

Pre-trial steps

This is the longest phase of litigation, often taking many months.  Hollywood rarely shows this part.  It involves preparing the evidence for trial and includes:

• Discovery:  Both sides must give each other the relevant documents they have, even the ones that hurt their own case;
• Evidence gathering:  Preparing witness statements and, if necessary, getting expert reports (eg doctors, accountants, engineers, etc);
• Directions hearings:  Court appearances where procedural matters are managed by a Registrar or Judge.

Settlement negotiations often continue in the background, and Judges often encourage the parties to settle.  

Final hearing/trial

If the matter still hasn’t settled it proceeds to a final hearing.  This is where you (or your lawyer) present your opening submissions, witnesses give evidence and are cross-examined by the other side, and legal arguments are made.  

Once the hearing concludes, the Judge or Magistrate will deliver a judgment. This might happen immediately, or they might “reserve” their decision and deliver it weeks or months later.

Things to think about

Going to court is not a decision to be taken lightly.  You should think about:

• Cost:  Legal fees, court filing fees, and expert witness fees add up quickly.  The general rule is “costs follow the event.”  This means if you win, the loser usually pays a portion (but rarely all) of your costs. Conversely, if you lose you will likely have to pay your own costs plus a large portion of the other sides costs;
• Time: The Courts are busy.  It is common for a defended matter in the District Court to take 12 to 24 months (or longer) from filing to final judgment;
• Stress and risk: Litigation is stressful.  There is no guarantee of winning.  Even the best-prepared cases can lose depending on how a witness performs on the day or how a Judge interprets a specific piece of evidence.

Next steps

The court system is a vital mechanism for enforcing rights, but it is a complex machine with strict rules of evidence and procedure.  

This post only provides an introduction and general outline to what you may face taking a matter to court – there may be further issues and processes that are specific to your case.