A Beginner’s Guide to the Litigation Process

As a business owner or individual, sometimes the litigation process is unfortunately inevitable. Consulting with litigation lawyers in Sydney can be essential for navigating this complex and unique legal situation. This article will aim to guide individuals and small business owners alike through the litigation process and dispel many of the misconceptions of this process as well as focus on alternatives to litigation.

Understanding the Australian Legal Landscape

The Australian legal system is a tapestry of complex Commonwealth and state laws, each with its own nuances that affect businesses and individuals. Understanding local laws and regulations is crucial, especially since they can vary significantly across different states and territories. For example, the legal requirements for starting a business in New South Wales might differ from those in Victoria. Variations in law like these underscores the importance of seeking advice from knowledgeable litigation lawyers in Sydney or other legal professionals who are well-versed in the specific legal landscape of your region.

Initial Considerations Before Commencing Legal Action

  • Cause of Action – Common causes of action for small businesses and individuals to initiate litigation include breach of contract or negligence. This could look like a supplier failing to meet the terms of a delivery contract, which subsequently impacts a business’s operations, or an individual whose negligence of their surroundings causes injury to another.
  • Evidence – Maintaining a thorough record of communications, contracts and events is crucial, as this will be considered evidence during litigation and may need to be viewed by a judge and other legal professionals at some point. This includes emails, text messages and even social media interactions.
  • Limitation Periods – In Australia, the limitation period for contract disputes is generally six years from when the breach occurred. However, this can vary, so it’s essential to act promptly. For personal injury or contract disputes, the limitation period can vary depending on the type of claim and the jurisdiction in which the claim is made. However, it’s generally six years for both of these claim types in NSW.

It’s important to note that there are exceptions and specific circumstances that can extend or reduce these periods, such as in cases involving minors, where limitation periods may be significantly extended or removed altogether.

Identifying the Parties Involved

Understanding who is involved in a legal dispute is critical. The plaintiff is the party bringing the case, while the defendant is the one being sued. In business disputes, it’s crucial to identify the correct legal entity, be it an individual, partnership or company against whom the action is brought. Incorrect identification can lead to unnecessary complications and hold up the due legal process.

The Stages of Litigation in Australia

  • Making a Claim – Initiating a lawsuit involves filing a claim with the appropriate court. This includes preparing an originating process, which outlines the nature of the dispute and the sought-after resolution. 
  • Service of the Claim – Serving documents correctly is paramount. This might involve personal delivery, registered post, or in some cases, electronic means like email where circumstances necessitate it. 
  • Filing a Defence – The defendant has a set period to respond to the claim, typically 28 days in most Australian jurisdictions. 
  • Pre-Trial Proceedings – This stage involves the exchange of evidence, preparation for trial and possibly pre-trial conferences or mediation. 
  • Trial – The trial is the culmination of the litigation process, where both parties present their cases, examine witnesses and await the judge or jury’s decision. 
  • Judgement and Costs – The final judgement may include the awarding of costs, typically borne by the losing party. However, this is not always the case, and sometimes costs can be apportioned differently depending on how the dispute has been settled at trial.

Alternative Dispute Resolution (ADR) in Australia

ADR methods like mediation and arbitration are often pursued before litigation as they offer a less adversarial approach to resolving disputes. These methods can be more cost-effective and quicker than traditional litigation and offer a degree of confidentiality that’s often appealing to all parties.


Navigating the litigation process in Australia can be daunting. However, with a clear understanding of the legal landscape, careful preparation and the support of experienced legal professionals, businesses and individuals can effectively manage litigation and extensive legal disputes. Consultation with litigation lawyers in Sydney is invaluable when it comes to safeguarding your legal interests against potential legal challenges.

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