A Basic Guide to Civil Litigation

PUBLISHED 14 Aug 2014

The majority of matters do not proceed to Hearing. Of matters where proceedings are commenced, statistics indicate that less than 5% of these go all the way through the Court to a final Hearing.

Despite the New South Wales justice system being founded on an adversarial model of judicial determination, it is widely accepted that the reason that so few matters are resulting in final Hearing is because the majority of matters are being settled through Alternative Dispute Resolution (ADR) methods.

That said, although cases resolving through a final Hearing are seemingly rare, it is important to remember that the resolution of matter through final Hearing is an essential means of dispute resolution and that resolution through final Hearing is a system based on law with the power to compel parties to participate and to abide by the Court’s decision. 

Where matters do proceed to final Hearing, there will have been a number of case management appearances. These include Pre Trial Conferences, Status Conferences and (if necessary) Directions Hearings. You will not have be required to attend these appearances and a solicitor from our firm will appear on your behalf. These appearances are before a Registrar, Judicial Registrar and/ or a Judge, and are necessary steps to ensure that the case preparation is on track and to sort out any potential issues which may arise during the preparation of your matter. Usually the Court Orders that are made on these occasions are some form of a timetable relating to service of evidence in order to provide the Defendant with sufficient information to enable them to know the Plaintiff’s claim that they are to answer, service of the Defendant’s Defence to the Plaintiff’s claim and the arrangement and service of both the Plaintiff’s and Defendant’s evidence. Once all the necessary case preparation steps are taken, the Court will usually make an order for the parties to participate in a form of Alternative Dispute Resolution, such as an Informal Settlement Conference or a Mediation, and then list the matter for final Hearing.

If your matter proceeds to final Hearing, your matter will be heard by a Judge. Your matter will most probably run for a number of days on which the following will usually occur:

  • The case is called.
  • The Plaintiff’s case is opened. Your Barrister will call witnesses to give evidence on your behalf that may or may not include yourself. Each witness will be examined by your Barrister, cross-examined by the Defendant’s Barrister, and (if your Barrister thinks necessary) re-examined by your Barrister.
  • The defendant’s case is opened. Each witness will be examined by the Defendant’s Barrister, cross-examined by your Barrister, and (if the Defendant’s Barrister thinks necessary) re-examined by the Defendant’s Barrister.
  • Both your Barrister and the Defendant’s Barrister will give final Submissions.
  • The judge hands down a judgment. The Judge can do this a number of ways, this may be done immediately after the hearing or the Judge may reserve (postpone) the decision for a later date.

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