Going to court can feel complex and time-consuming, particularly if you have not been involved in legal proceedings before. This guide explains the key stages of litigation in New South Wales, with practical insight into what happens at each step.
Quick answer: What is the litigation process in NSW?
The litigation process in NSW generally involves:
- obtaining legal advice
- sound and comprehensive preparation of your case
- attempting pre-court resolution where practical
- commencing court or Tribunal proceedings
- exchanging evidence in support of each party’s case
- alternative dispute resolution, including mediation
- Trial/Court hearing if settlement is not reached
Most disputes resolve before trial through negotiation or mediation.
What is litigation?
Litigation is the formal process of resolving disputes through the court system. It typically involves one party (the plaintiff/applicant) bringing a claim against another (the defendant/respondent). However, a defendant/respondent may also make counter-claims and offset claims where they claim wrongdoing against the plaintiff/applicant or join other parties who are involved in the dispute.
Overview of the Litigation Process in NSW
Step 1: Why should you obtain legal advice early?
Obtaining legal advice early helps you understand the strength of your claim before commencing Court proceedings.
A solicitor should:
- assess the legal and factual issues
- obtain relevant documents and witness statements
- identify and advise on the merits of the claim, the risks and likely outcomes
- explain court procedures and the costs consequences
At this stage, alternative dispute resolution options may be considered before taking proceedings.
Step 2: What happens before court proceedings start?
It may be advisable to take steps to resolve the dispute before taking proceedings.
This may involve:
- sending a letter of demand outlining the basis of the claim and the amount sought
- engaging in settlement discussions through correspondence or alternative dispute resolution
There are benefits of resolving a claim before proceedings are commenced:
- minimising the risks of financial loss in the event the proceedings are lost
- limit the amount paid on legal proceedings
- avoid potentially devastating costs orders
- avoid the stress and inconvenience of Court proceedings.
Step 3: How do you commence court proceedings in NSW?
Court proceedings are commenced by filing documents in the appropriate court or tribunal.
- The appropriate court or tribunal depends on the value and complexity of the dispute, the jurisdiction (state or federal) and the type of claim or action being brought, and include: NSW Civil and Administrative Tribunal
- Local Court of NSW — generally claims up to $100,000
- District Court of NSW — common law claims up to $1,250,000, and claims in equity up to $100,000
- Supreme Court of NSW — large or complex disputes with no jurisdictional limit
- Federal Court
The primary document filed is usually a Statement of Claim, Application or Summons, which outlines:
- the facts of the dispute
- the legal basis of the claim
- the orders or damages sought
Step 4: What happens after a claim is filed?
After proceedings commence, the defendant/respondent must respond within a specified timeframe by filing a defence/response.
The defendant/respondent may:
- admit or deny the allegations
- raise legal arguments in defence
- file a cross-claim against another party
This stage identifies the issues genuinely in dispute and what each party must prove.
Step 5: What is discovery and evidence preparation?
Subpoena, Notices to Produce and discovery are means by which a party can obtain documents from the other party or a third party in order to assess and prepare their case.
Preparing evidence in support of the claim may involve:
- preparing witness statements
- obtaining expert reports in relation to liability and the quantum of the claim
Step 6: What are directions hearings and case management?
Directions hearings are procedural court appearances where the court/tribunal manages the progress of the case.
During these hearings, the court may:
- set deadlines for procedural steps
- monitor compliance with court rules
- request the parties to narrow the issues in dispute
- timetable mediation or hearing dates
Failure to comply with court directions can lead to costs penalties or, in serious cases, dismissal of the proceedings.
Step 7: What happens at mediation?
In most NSW litigation matters, parties attend mediation before a final hearing to attempt to resolve the dispute without a trial.
Mediation involves:
- an independent mediator
- confidential settlement discussions
- negotiation between the parties
Settlement can occur at any stage of proceedings and often significantly reduces legal costs and delay.
Step 8: What happens at a final hearing or trial?
If the dispute does not resolve beforehand, the dispute will proceed to a final hearing before a magistrate, judge or tribunal member.
At trial:
- witnesses give evidence
- witnesses may be cross-examined
- expert evidence may be presented
- legal submissions are made by both parties
The magistrate, judge or tribunal member may deliver judgment immediately or reserve the decision for a later date.
Step 9: What happens after judgment?
After the hearing, the court delivers its judgment and makes formal orders.
The judgment may include:
- which party was successful in the proceedings
- the amount of the damages payable
- the other orders or remedies granted
- orders regarding the payment of legal costs
If the unsuccessful party does not comply with the judgment, enforcement action may be required.
Enforcement options can include:
- garnishee orders
- writs for the levy of property
- examination notices
Step 10: Can you appeal a court decision?
Yes. A party may appeal a decision to a higher court in limited circumstances.
Appeals are generally based on:
- an error of law
- procedural unfairness
- significant legal error by the trial court
Appeals are not simply an opportunity to re-argue the entire case and must be commenced within strict time limits.
How long does litigation take in NSW?
The duration of litigation varies depending on the complexity of the dispute and the conduct of the parties.
Relevant factors include:
- the number of parties involved
- the complexity of legal and factual issues
- the availability of court time
- whether settlement occurs early
Some matters resolve within months, while more complex litigation can continue for several years.
How much does litigation cost in NSW?
Litigation can involve substantial legal costs.
Common expenses include:
- solicitor fees
- barrister fees
- expert witness costs
- court filing fees
Generally:
- each party pays their own legal costs during the proceedings
- the unsuccessful party may later be ordered to pay part or all of the successful party’s costs
However, cost recovery is rarely the full amount expended by a party, and parties often recover only a portion of their legal expenses.
How we can assist
We guide clients through each stage of the litigation process in NSW with clear and practical advice. Our team can:
- Evaluate your claim or defence
- Develop a strategic approach
- Represent you in negotiations, mediation, and court
- Focus on resolving disputes efficiently and cost-effectively
Frequently Asked Questions
How long does litigation take in NSW?
Simple disputes may resolve within months, while complex litigation can take several years.
Do all court cases go to trial?
No. Most disputes settle before a final hearing through negotiation or mediation.
Who pays legal costs in litigation?
Generally, each party pays their own legal costs during proceedings. The unsuccessful party may later be ordered to contribute to the successful party’s costs.
What happens if someone ignores a court judgment?
Enforcement options may include garnishee orders, property seizure, or examination notices.
Can you appeal a court decision?
Yes, but appeals are limited and usually require an error of law or procedural unfairness.