Civil litigation in Queensland

This factsheet is intended only as a brief overview of the civil litigation process. For more detailed information, the hyperlinks in the text or listed at the end will take you to relevant factsheets.

Before commencing proceedings

Before you go to court there are a number of things you should consider when Deciding to commence legal action. You should consider whether you have a cause of action, whether you have the appropriate standing to bring the case, and whether you have suffered Damages and loss.

You should also consider if you have sufficient evidence, whether or not your claim is inside the relevant limitation period, and the rules about calculating time. Note that you can sometimes get an extension of time and that there are a number of cases considering extensions of time.

If there are a number of people who are in the same situation as you, you might in some special cases be able to bring a class action.

Before you engage in court proceedings you should be aware of the possibility of an adverse costs order. In Queensland, the general rule is that ‘costs follow the event’, which means that the losing party is usually required to pay the costs of the winning party.

Alternative Dispute Resolution (ADR)

Rather than going to court, you should consider some form of alternative dispute resolution such as mediation. If you have commenced court proceedings, you should also consider these options to resolve your dispute. Remember that every step taken in court proceedings may involve costs. So if you can reach a mutually agreeable settlement, you will save yourself money and stress.

Commencing proceedings in the Queensland Courts

You can commence proceedings in court by claim or application. The pleadings are the key documents that set out the terms of the legal dispute between the parties. The main pleadings are the statement of claim, the defence and the reply.

Starting court proceedings requires a number of steps. In most cases you will also need to draft a statement of claim. This is the document that sets out the facts that you rely on to establish your case.

Once your claim documents are ready you will need to pay the required filing fee (fee reductions are sometimes available), file the documents and serve them on the other party.

Defending court proceedings

If you are served with a Claim and Statement of Claim, you will need to draft and file a Defence. If you also have a cause of action against the plaintiff, you can bring a Counterclaim.

If you do not file a Defence, the plaintiff can obtain a Default Judgment against you. You can apply to the court to set aside a Default Judgment. You also may have to respond to an Enforcement Warrant.

Pre-trial steps

There are steps that the parties to a court matter take before a matter is finally decided at trial. These are called interlocutory steps. These can involve applications to the court. If the other party is legally represented you will need to deal with the other party’s lawyer. In addition, there are a number of things that the court can do to ensure that a matter is on track. It is important that you comply with the rules as otherwise you may have a costs order made against you. The court rules provide a number of time limits that apply.

Hearings

You may also need to attend court hearings to hear an application or to make directions. At hearings, there are a number of formal rules that the Court will expect you to observe (these are called Court etiquette). The judge and the lawyers may use some words that you are not familiar with. In some cases you may have to provide written submissions (or you may do this as part of your preparation).

Finalising the pleadings

Once the plaintiff has received the defence, they can file a reply. The reply should not raise any new issues. If the defendant brings a counterclaim, and the plaintiff’s reply and answer to the counterclaim raises new issues, the defendant can file a further reply to that answer.

Disclosure

For proceedings started by a claim, after the pleadings are finalised the parties should complete disclosure. Disclosure is the procedure to ensure that both parties are aware of and have access to the other party’s documentary evidence. Once disclosure is completed, the plaintiff will usually apply to have the matter set down for trial.

Summary judgment

Any time after a defence is filed, the plaintiff or defendant can apply for a summary judgement to resolve the matter without the need for a full trial. A very strong case is needed to get summary judgment. The court can grant summary judgment if the other party has no real prospect of succeeding on all or part of their claim or defence.

Progressing the case

The Court has a number of special procedures in place to supervise court matters, and the court rules provide ways to move a proceeding forward if you believe that the other party is stalling.

Correcting errors

You can amend court documents at any time before a trial date is requested to better present a case. After the trial date has been requested, the pleadings can only be amended with permission of the court (called “leave of the court”). It is always important to amend any defect in the pleadings well before you get to trial otherwise your case could fail at trial. If you are allowed to amend you might have to pay the other party’s costs.

Offers to settle

The parties can make settlement offers to try and resolve the case by agreement.

Setting down for trial

Once the parties are ready for trial (as specially defined in the rules), the parties can then take steps to have their matter set down for a civil trial date.

Trial

After a matter has been listed for trial, you will then need to prepare for and attend the trial.

After the trial

Enforcement

If you are successful you may need to enforce the money order or other (non-money) order. If you are not successful, you will need to respond to an enforcement warrant.

Appeal

If you are not successful, you may want to bring an appeal (depending on which court your matter was in) to either the Court of Appeal or the District Court.