At a Glance
- Civil litigation is initiated through the filing of originating process documents such as a statement of claim or originating application
- Jurisdiction depends on the nature and amount in dispute, determining whether the matter is heard in the Local, District, Supreme, or Federal Court
- Pre-action conduct, including attempts to resolve the dispute, is increasingly required and may affect cost orders
- Time limits (limitation periods) strictly apply, typically six years for contract claims and three years for personal injury
- The courts expect compliance with procedural rules, with non-compliance risking dismissal or costs penalties
Understanding Civil Litigation: What It Is and When It Applies
Civil litigation refers to legal proceedings between individuals or organisations to resolve disputes, enforce rights, or seek compensation. Unlike criminal cases, civil matters do not involve prosecution by the state, but they can have substantial financial and reputational consequences.
Common types of civil disputes include:
- Breach of contract
- Debt recovery
- Property and land disputes
- Defamation
- Personal injury (tort)
- Consumer law claims under the Australian Consumer Law (ACL)
The starting point for any litigation is identifying whether you have a valid legal claim. For example, in Mabo v Queensland (No 2), the High Court of Australia recognised native title based on longstanding occupation and traditional laws, marking a pivotal civil claim over land rights. While not every case reshapes legal history, the principles of rights enforcement remain the same.
Step-by-Step: Initiating Civil Proceedings
To commence civil litigation, you must follow a structured procedural path. Procedures vary by jurisdiction. In the Federal Court, case management is structured under the National Court Framework while state and territory courts use their own civil procedure regimes.
1. Determine the Correct Court
The choice of court depends on the type and value of the claim:
- Local Court: General Division civil claims up to $100,000; Small Claims Division up to $20,000. For claims involving damages arising from personal injury or death, the jurisdictional limit is $60,000, even in the General Division (NSW example; limits vary between states).
- District Court: General civil claims up to $1,250,000 (increased from $750,000 for most claims filed on or after 16 December 2022) and can handle claims exceeding $1.25 million if both parties consent. It has unlimited jurisdiction for motor accident and work injury claims.
- Supreme Court: Unlimited monetary jurisdiction; generally handles high-value or legally complex matters.
- Federal Court: For matters involving federal laws, such as corporations, bankruptcy, or discrimination.
For instance, a claim against a company for breach of a service agreement worth $200,000 would likely be filed in the District Court in most states.
2. Pre-Action Procedures
Many Australian courts require parties to attempt resolution before filing a claim. The Civil Procedure Act 2005 (NSW) and similar legislation in other jurisdictions promote dispute resolution through letters of demand, negotiations, or mediation.
Failure to comply can result in cost penalties, even if you win the case. The Court has repeatedly emphasised that parties must engage in pre-litigation dispute resolution in good faith, and that mere formal or superficial compliance is insufficient to meet the court’s expectations.
3. Filing the Originating Process
This is the formal step that starts litigation. The most common documents are:
- Statement of claim – used in most disputes to outline facts, legal basis, and relief sought
- Originating application – used in equity or interlocutory matters
The document must be filed with the relevant court registry and served on the defendant within strict timeframes.
4. Service of Documents
Proper service ensures the defendant is legally aware of the proceedings. Acceptable methods include personal service, postal service (if permitted), or electronic service under court rules. If service is defective, resulting steps (including default judgment) may be vulnerable to being set aside..
5. Defendant’s Response
The defendant typically has 28 days (in most jurisdictions) to file a defence, subject to variations depending on the court and manner of service. If no defence is filed, the plaintiff may seek default judgment. If a defence is filed, the case moves toward directions hearings and potentially trial.
Limitation Periods: Don’t Miss the Deadline
Limitation periods are governed primarily by the Limitation Act 1969 (NSW) and related legislation. Common time limits include:
- Contract claims: 6 years from the date the cause of action accrues
- Australian Consumer Law damages claims: 6 years
- Defamation: 1 year from publication, extendable to up to 3 years with court approval
- Personal injury claims: subject to specific statutory regimes, including discoverability tests, long-stop periods, and extension provisions
Once a limitation period expires, the claim will ordinarily be permanently barred unless a statutory extension applies.
What Happens After Filing?
Once proceedings are underway, the court will set timelines for:
- Exchange of evidence
- Disclosure (discovery) of relevant documents
- Directions hearings
- Mediation (in many jurisdictions, compulsory)
The goal is to streamline the process and encourage resolution. Courts have broad powers to penalise delay or non-compliance, including striking out claims or awarding adverse costs.
A Lawyer’s Perspective: Common Pitfalls
In practice, we often see clients delay initiating proceedings, thinking negotiation will resolve the matter. While dialogue is important, procrastination can be costly. One client waited 11 months to file a $150,000 contract claim. By then, key witnesses had moved overseas and the limitation period was nearly expired. We had to rush the filing, weakening the evidentiary position.
Another frequent issue is inadequate drafting of the statement of claim. A vague or overly broad claim may be struck out or fail at trial. Precision in stating facts and legal grounds is essential.
Key Takeaways
- Start with a clear legal cause of action supported by evidence
- Follow pre-action protocols seriously to avoid cost penalties
- File within limitation periods — once they expire, your claim is likely barred
- Choose the correct court based on value and jurisdiction
- Engage legal advice early to ensure procedural compliance and strategic advantage
Frequently Asked Questions
What is the difference between a statement of claim and an originating application?
A statement of claim is used in most civil disputes to detail the plaintiff’s case and relief sought, while an originating application is typically used for interlocutory matters or equitable remedies, often with supporting affidavits.
Can I represent myself in civil litigation?
Yes, individuals may represent themselves (litigants in person), but courts still require compliance with procedural rules. Mistakes in filing, service, or deadlines can lead to dismissal, even for self-represented litigants.
How long does civil litigation usually take?
Simple matters may resolve in 6–12 months, but complex cases can take 2–3 years or longer, especially if a trial is required. Court backlogs and party conduct influence timelines.
Are mediation and negotiation mandatory?
In many courts, such as the NSW Supreme Court, parties must attend mediation unless there is a good reason not to. The courts strongly encourage alternative dispute resolution to reduce burden and costs.
Can I claim legal costs if I win?
Yes, the general rule is that “costs follow the event”, meaning the loser pays the winner’s costs. However, courts have discretion, and unreasonable conduct during litigation may affect cost awards.
How We Can Help
We regularly assist individuals and businesses in initiating and defending civil litigation across multiple jurisdictions in Australia. Our services include:
- Assessing the strength of potential claims and available remedies
- Drafting and filing originating processes
- Ensuring compliance with pre-action requirements
- Managing evidence and discovery
- Representing clients at mediation and trial
We focus on strategic, cost-effective approaches to litigation. Early engagement helps avoid procedural missteps and maximises the chances of a favourable outcome.
