 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
|
LEVEL 7, NO.1 CHANDOS ST |
|
 | |
 | |
 |
|
BSS Personal Legal Services: LITIGATION This section gives an overview of what happens in a court hearing, including information on evidence, procedures, costs and enforcement. The following notes have been prepared by us with a view to informing you as to what goes on in the preparation of a case for hearing. We have found that if a client has an understanding of what must be done in the preparation of their case, we are better able to present the case and the client is better able to understand the court system and the timing of events which that system imposes. Our aim is to obtain the best result for you in the most efficient way. Set out below is a brief description of a case brought in a Local court (for a contract/debt recovery matter). Court cases are won or lost on evidence. A plaintiff (the person suing) must prove their case with evidence. There are rules of evidence which determine what material (oral statements, documents etc) may be used to present their case. For example, in what appears to be a simple debt recovery the plaintiff must prove: 1. The exact terms of the contract by the parties who actually made the contract. It is not enough to say "the defendant agreed to pay me". It is necessary to spell out the terms of the contract with supporting evidence. For example, if you are relying on an oral contract then it is necessary to provide details of any relevant conversation as follows: I said .... They said .... I then said .... They said .... The people who made the contract, (ie: did the talking) must generally be present to give evidence: 1. that the contract, as agreed, was not performed (evidence of what was not done); 2. how the amount of the claim (quantum) is made up (with evidence). Before commencing any action it is necessary to have: 1. any and all written evidence, letters, faxes and notes relating to the formation of the contract; 2. statements from all witnesses or parties giving verbatim accounts of exactly what was said; 3. documentary evidence of the loss or damage suffered. You might say "that's easy", but this is not always the case. The plaintiff bears the "onus of proof" and must prove with evidence, each element of their claim on the balance of probabilities (ie. by showing there is a greater than fifty per cent chance that what is claimed is correct). Once the above basic information is available, the solicitor can prepare the document to commence the court proceedings (a statement of claim). A statement of claim must state the "cause of action" ie you must give reasons why you think you are entitled to recover money from the other party and give details. The statement of claim is drafted, typed and taken with copies to be filed in court. A filing fee is paid to the court and the court issues the statement of claim. Service It is then necessary to have the statement of claim served on (ie handed to) the defendant or defendants (those against whom a claim is made). The solicitor forwards the statement of claim to a process server who specialises in serving court documents. The process server then endeavours to serve the defendant with the statement of claim. This might take several weeks if the defendant is difficult to locate or identify. Once they are served, an affidavit of service is prepared and signed by the process server before a justice of the peace. That document states where, when and how the statement of claim was given or brought to the attention of the defendant. Sometimes if the defendant is difficult to serve, it is possible to make an application to the court (more affidavits and an application) to obtain substituted service, ie. a court order that you may serve the statement of claim on relatives, etc, of the defendant. Defence The defendant has a certain number of days to file a defence (depending on the type of statement of claim). If they are represented by legal advisers they will no doubt send a "request for further and better particulars". This is usually a page of questions requesting specific details. Usually, it is reasonable to request these details. They must be answered. Sometimes these requests are extremely detailed and further information from you may have to be obtained. Once these particulars are answered the defendant must put on a defence. The defendant does this by filing in court a document setting out the reasons they do not regard themselves as liable to pay the amount claimed. The court processes that defence which can take two to ten days or longer. This means the court puts the court seal on the document and posts a copy of it to the solicitor for the plaintiff. Certificate of Readiness The court then sends a notice to the parties stating that a certificate of readiness must be filed (unless it is a small claim less than $10,000.00). Once a certificate of readiness is prepared and filed, the court prepares and issues a "Notice of Call-Over". Call Over The Notice of Call Over sets out a date for the plaintiff's representative and the defendant's representative to attend before the court. It depends very much on which court proceedings are convened in as to when that will occur. On the appointed, day the parties' representatives appear in court. The Call Over is normally listed for 10.00 am but your matter may well not be called until 10.30 am or later. The parties give details of the nature of the case, the number of witnesses and the estimated length of hearing. A date is then set for hearing before a magistrate or it is referred to an arbitrator who will set a date for an arbitration hearing. The process can take a couple of hours depending on how many cases are in the court list and where your matter is in that list. Hearing or Arbitration A case may either be Arbitrated or heard by a Magistrate. The Arbitrator writes to the parties within the four weeks following referral by the court to state a date for arbitration. After a date has been set for arbitration, it is normal to try to reduce the issues which will be argued in court. Admissions can be obtained for certain facts and documents which are not in issue. This is done by the preparation of two documents known as "Notice to Admit Facts" and "Notice to Admit Authenticity of Documents." These are drafted by the solicitor, typed, copied and served on the defendant's representative. They must respond within a certain period, normally 14 days. If they do not, certain consequences follow. If the matter is set down for hearing before a Magistrate, the court will usually order that each party arrange preparation of written statements of each of their respective witnesses. The statements are to be served on the other party prior to the hearing. Witnesses Witnesses are usually subpoenaed to attend court on the day. A Subpoena is a court Order compelling a person to attend court as a witness. A Solicitor prepares the subpoena. It is then filed and issued by the court; that is, the court stamps the document and gives it back to the Solicitor. The Solicitor must arrange for personal service of the subpoena and provision of "conduct money" to the witness. The conduct money must be sufficient for the witness to get to and from court, with an allowance for a meal. Fees for loss of wages may also be payable to the witness. Court Rules The above is a very rough outline of very simple civil case. The court sets rules as to how cases must be dealt with. In the Local courts there are some 365 separate rules and the rules set out, amongst other things, the "form" of 90 different documents that may be filed in a Local court matter. The Civil Claims Act contains 86 sections which set out other procedural aspects of court processes. Several other procedural Acts also affect how the case is to be dealt with in the Local courts. The rules in practice tend to favour the defendant and give them every opportunity to defend the case, with the result that they tend to prolong a case. For example, a defendant who fails to lodge a defence within the time prescribed by the rules will often be allowed to defend an action. Costs awarded are never commensurate with the actual costs incurred by the plaintiff. You might have signed default judgment against the defendant and be endeavouring to enforce that judgment, 6 months later. The defendant may then decide that they wish to do something about the matter and may apply to the court to set aside judgment and defend the matter. This action will be successful although the defendant might be ordered to "pay your costs." This is really only a contribution to your costs. The court rules referred to above provide for many different legal gymnastics within the court system. A defendant can endeavour to change the court in which the case is to be heard. They can seek to confess the whole claim or part of it and offer to pay it by very small instalments. They can seek adjournments from time to time. What this amounts to is: "don't necessarily equate justice with the law." Don't think because you regard your case as just, you should win. Don't think that morally you should win, therefore you will. The law does not work that way. The rules of court and the rules of evidence do not always permit justice. Evidence is what your case is about, without evidence in a proper form you will fail. We hope the above is not frightening, it is not meant to be frightening but it is meant to give you a concept of what litigation is all about. Costs are a very relevant consideration in a court Case. They most often dictate the tactics which you will use. It is necessary for us to remind you to bear in mind costs throughout the case. Remember that our aim is to bring your case to a speedy and successful conclusion as soon as possible without unnecessary and wasteful costs. Usually the unsuccessful party is ordered to pay the costs of the successful party. This means that the loser must reimburse the winner's party/party costs. Party/party costs are those costs "necessary" to win a case. Necessary has a special meaning. It means "necessary with hindsight". If you obtain a statement from 3 witnesses to an accident but for any reason only use the statement from one witness, you may not be allowed the cost of obtaining statements and subpoenaing the witnesses you did not use. A solicitor must prepare a case to answer all the arguments that the defendant might put up, but if the defendant doesn't put the arguments then the plaintiff cannot be allowed the costs of preparing to answer those arguments. Enforcement of a Judgement Debt A creditor currently has twelve years to enforce payment of a judgment debt. The methods of enforcement are as follows. (a) Sale of Personal Property of the Debtor This is achieved by the issue of a writ of execution. Upon the issue of a writ, an officer of the New South Wales Sheriff's Office may mark and then subsequently seize personal property of the debtor and, after the payment of an applicable fee, sell such goods and account to the creditor for the judgment debt. (b) Sale of Land of the Debtor Where the judgment cannot be satisfied by the sale of personal property or where the sale of land would minimise personal hardship, land of the debtor may be sold under a writ of execution where the amount required to be satisfied by the writ is at least $3,000.00. Again, once such a writ is issued, the Sheriff is responsible for arranging the sale of the property for an applicable fee, and shall account from the proceeds of sale of such property to the creditor for the amount of the judgment debt. This is an extremely complicated process and for that reason is rarely used. (c) Attachment of Debts Due or Accruing to Debtor Attachment is achieved by issuing a garnishee order to a person or entity who owes moneys to the debtor. Upon receipt of such an order the person must pay to the creditor the amount he owes to the debtor. (d) Attachment of the Debtor's Bank Accounts Again, attachment is achieved by issuing a garnishee order to the relevant bank, building society or credit union who must within twenty-eight days from receipt of the garnishee order, account to the creditor for amounts held on behalf of the debtor in his account being no greater than the amount of the judgment debt. (e) Attachment of One Payment of Wages or Salary or the Continuous Attachment of Wages or Salary Again, such attachment is achieved by issuing a garnishee order to the employer of the debtor and shall operate so that the employer must account to the creditor for wages or salary to be paid to the debtor in the four weeks following the date of service of the garnishee order. An amount equivalent to the basic wage, however, must be held back for the benefit of the debtor. (f) Bankruptcy or Winding Up A judgment obtained from the Local court may be enforced by petitioning for the bankruptcy of an individual debtor by the commencement of proceedings in the Federal court of Australia. A judgment may also be enforced in the case of a debtor company by commencing proceedings in the Supreme court or Federal court of Australia seeking orders that a liquidator be appointed and the company wound up. The cost of winding up and bankruptcy are approximately $2,500.00 and therefore in case of judgments for small amounts this procedure is somewhat prohibitive. The most effective method of enforcement referred to above will usually depend upon the financial circumstances of the debtor, and whether the debtor and/or their assets can be found. Stay of Proceeding The court has power to stay the enforcement of a judgment debt. Usually such a stay arises as a result of the application of a debtor to pay the outstanding judgment debt by way of instalments. If the court subsequently makes instalment orders pursuant to such application, then a stay is granted and will continue to operate unless there is default by the debtor in compliance with the instalment arrangements. Recovery of Interest on Enforcement Interest is payable at the court rate of interest upon the balance of the judgment debt that remains unpaid from time to time. Interest shall run from the date when the judgment comes into effect until the date of final payment. Costs of Debt Recovery The costs of debt recovery depend on how quickly the problem debt is recovered and to a certain extent, is subject to the method of enforcement chosen by the creditor. In some circumstances, the extent of costs can depend on how evasive or "court wise" the debtor is in dealing with your debt. Flowchart We attach a flowchart to give you a general and simplistic overview of the different stages of a court action.
General We hope the above has given you some insight in the preparation of a court case for hearing. It is a sketchy outline of a simple case. One must always proceed on the basis that the defendant will defend and you will have to prove every aspect of your case. To do otherwise is to be foolhardy and risks losing on a technicality. |
Any questions? Contact us by email (lawyer@bullson.com.au), fax (9439 6756) or phone (9439 5299).
|
Our Services | About Us | Contact Us | Newsletter | Booklets | Careers with BSS | Links | Home
|