A commercial court case can be a daunting experience. If you or your client are a party to a case, you’ll want to learn the steps from start to finish. Also, if you’re a witness, or you have to provide documents, you’ll need to understand your role in assisting the parties and the court.
By Paul Jeffreys
(Barrister at the Victorian Bar)
The steps in a commercial court case differ depending on the relevant court or tribunal, the subject of the dispute and the parties involved in the case. For example, the process for litigation between private parties (such as a contractual or property dispute) will be different from where a private party challenges a government decision (such as a challenge to an objection decision made by the ATO).
The focus of this article is on commercial cases between private parties. Here’s a quick summary to help you understand the key steps.
START OF THE CASE
The case starts when a party files a formal document to initiate the proceeding. This document goes by different names, including, for example, an “originating application”, “originating motion” or a “writ”.
Typically, this document won’t say much about the case, but will identify the parties and the relevant court or tribunal. It will sometimes also specify the orders that the initiating party is seeking.
The initiating party needs to pay the applicable filing fee at the time of filing the initiating document.
Alleging the facts
In commercial cases involving disputed facts, the basis for the initiating party’s claim will be set out in a separate document, which is usually called a “statement of claim”. This will set out
all the relevant facts that are alleged to justify the orders sought. At this stage, though, the initiating party isn’t required to provide any supporting evidence.
The responding party will then have an opportunity to respond to the claim within a certain timeframe (typically four weeks). In this document, which is usually called a “defence”, the responding party will admit or deny the facts alleged by the initiating party.
The statement of claim and defence (or their equivalents) are referred to as “the pleadings”. These documents set out the framework for what’s relevant (and what’s not relevant) in the case.
The parties’ legal representatives are typically required to certify that, on the factual and legal material available, they have a reasonable belief in the truth of every allegation (or denial) made in the pleadings.
Once the parties have filed their pleading, the next focus is for them to gather relevant evidence.
Of course, the parties would’ve already gathered some evidence to guide the drafting of their pleading. But often their internal records won’t be fully searched until afterwards.
A party will usually obtain further evidence from external sources. In many commercial cases, the parties are required to give “discovery”. This means that they’re required to give copies of all relevant documents to other parties (with certain exceptions, such as where a document is subject to legal professional privilege).
Additionally, parties may obtain documentary evidence from non-parties, including by issuing subpoenas to a person who requires them to produce documents to the court.
Types of pre-trial evidence
Although oral examinations of witnesses are prominent in Hollywood movies, the reality is that a significant amount of evidence in commercial cases is provided in written form.
Affidavits and witness statements are common forms of written evidence filed with the court prior to trial. In those documents, the person who makes the statement will state any relevant facts personally known to them, and will annex any relevant documents.
For example, in a contract dispute, the documentary evidence will include a copy of any written contract. Where a party also alleges misleading conduct in relation to the contract, the affidavits may also detail representations made before the contract is made.
Additionally, an expert witness may prepare a report that expresses his or her opinion based on specialised knowledge that’s relevant to the issues in the case.
Parties often provide the court with a written outline of their submissions shortly before trial. This document particularises the legal and factual arguments that each party intends to make to support their case. This document helps the court comprehend the parties’ precise arguments.
Most commercial cases don’t go to full trial; they will either be discontinued or settled out of court. This often occurs because the parties conduct a formal mediation.
The court will ordinarily expect the parties to have made a genuine effort to resolve their dispute prior to trial. Running a commercial trial can be time-consuming, unpredictable and expensive, so it’s often in the parties’ financial interests to obtain certainty from an agreed resolution.
The parties can resolve their dispute at any time before the court makes its decision. But commercial disputes will typically be resolved out of court shortly before trial (once each party is familiar with their opponent’s arguments and evidence).
Except for limited circumstances, commercial cases are heard and determined by a single judge (not a jury). Depending on the volume and complexity of the evidence and arguments, the trial could run for days or weeks.
The trial broadly comprises a mix of witness examination (where the parties’ legal representatives question each witness) and argument (where the legal representatives make submissions to the court based on the anticipated or actual evidence produced at trial).
Each party has the opportunity to examine each witness. The party calling a witness will ask the witness broad and non-leading questions (called “examination-in-chief”). The opposing party then has the option to also ask questions, which are typically direct and leading (called “cross-examination”). The judge can also ask the witness questions.
A witness may be asked a range of questions relevant to the case. For example, they may have to explain the contents of documents or explain what they remember about past events or discussions that they were a part of.
The judge may express their decision at the end of the trial. However, usually the judge will “reserve” their decision, and then announce it after considering the evidence and law. Depending on the size of the case, the decision is generally announced between one and six months after completion of the trial.
The judge will provide the parties with written reasons for the decision and any important findings. The unsuccessful party will use these reasons to decide whether to appeal the judge’s decision.
The judge will usually also make an order in relation to the “costs” of the case. Generally, the unsuccessful party will have to compensate the successful party for reasonable legal costs incurred before and during the trial.
Navigating the processes and strategy of a commercial case requires legal support. However, further general information is available on the webpages of the Federal Court of Australia and the Supreme Court in your State or Territory.
Paul Jeffreys is a barrister at the Victorian Bar. Paul practices in all areas of commercial and public law, including taxation and superannuation. Prior to joining the Bar, Paul had commercial and litigation experience in private legal practice and also worked with judges of the Supreme Court of Victoria and the Federal Court of Australia.
This article first appeared in Tax & Super Australia’s Outlook magazine, which is published exclusively for members and covers topical and emerging issues within the tax, accounting and superannuation industry. Download a free preview of Outlook magazine.