What to do if you are sued.

What to do if you are sued.

There are different laws which relate to different kinds of law suites. The procedure that needs to be followed in the early stages to prepare a response are however the same in all the courts. The Uniform Civil Procedure Rules set the procedural rules relating to most litigation, except for the Queensland Civil and Administrative Tribunal which is a much more relaxed jurisdiction.

Our focus in this article are claims relating to a commercial disputes. Civil disputes can be brought in a number of different jurisdictions.  These kinds of disputes include:

  1. interpretation of contractual clauses,
  2. failed commercial relationships including failed partnerships,
  3. Failed business transactions
  4. Failed property transactions
  5. Debts
  6. Lease dispute

The purpose of this article is examine what steps need to be taken when you have received a claim or application.

Our strong advice is that anyone served with legal papers should  obtain legal advice immediately.  There is good reason to get legal advice early.  Generally the service of a legal document requires a response within a set time frame and sometimes an appearance is required within a set time frame.  If a defence is not filed within the required time frame a plaintiff or applicant may be entitled to obtain a judgement in your absence.

Firstly take note of the court or tribunal in which the action has been taken. The name of that court is written in the title on the first page of the documents.

Secondly note the proceedings number of the action. It is usually written in the top right hand corner of the document.  This is the number that you must use to identify the action when talking with the court or tribunal.

Thirdly you should identify the date by which you are required to file your defence/response.  Often the time frame for a reply is set out in a notation on the last page of the document.  The time frame probably commences on the date of service.  Once you have identified the crucial date you must make sure that the date is not missed.  Diarise the date so it is not missed.

Also note the address for service of the other party. This is often noted at the bottom of the the first page.  In order to respond in an effective way the response must be served upon that address for service.  Failure to respond in the method required may be considered to be no response at all.

If the claim is for a sum of less than $25,000.00 then the claim may be made in the Queensland Civil and Administrative Tribunal. The UCPR does not apply to applications started in qcat.

The jurisdiction of each of the courts is set out below:

  • the Magistrates Court can hear civil cases up to a value of $150,000.00
  • The District Court hears appeals from cases decided in the Magistrates Court and disputes involving amounts of more than $150,000, but less than $750,000
  • The Supreme Court is the highest Court in Queensland and hears all civil matters involving amounts of more than $750,000.

Now that you have identified the court or tribunal in which the claim has been made select the appropriate tab below.

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Quennsland Civil and Administrative Tribunal

The simplest jurisdiction in which to defend a claim is QCAT. The reason for this is that many of the rules of procedure that apply in the courts do not apply in this Tribunal.

If you receive an application for a claim filed in qcat you can obtain information from…….

In order to make a decision courts need to make decisions about two different matters – the facts and the law.  Often the parties  tell different stories about what has happened. it is the job of the tribunal to decide which party should be believed. Once a decision is made about the facts then the court must interpret the law which is to be applied to those facts.  Often there are complex legal arguments about how the law works.  In QCAT however lawyers are not allowed to appear.  This means that he member (“judge”) must make decisions about the law without the benefit of any guidance from the lawyers who are acting for each party.

There are complex processes in the court system which are designed to make sure that each party properly understands the other parties case.  Unfortunately because these processes are complex they are usually undertaken by lawyers which makes going to court expensive.

This is why most people with a claim for less than $25000 will often bring that claim in QCAT.  Note however that claims for under $25,000 can be brought in the Magistrates Court.  This is a decision that the plaintiff must make.  Because a lot of the processes that normally apply in a court do not apply in the tribunal it is a particularly important to make sure that when you file your response you include a statement which:

  • shows a clear understanding of the allegations made against you.  We suggest that you break up any application into the individual allegations that are made. It is a mistake to try to guess or infer what the applicant is alleging, stick only to what is actually said in the document.
  • deals with each allegation separately. It may be helpful to make a list and deal with each under a heading.
  • tells the story of what happened. It is appropiate to tell the story of what happened only after the allegations have been dealt with. It is a mistake to ignore the allegations made regardless of how rediculous you may believe those allegations may be.
  • If you have witnesses that will support your account of the facts then you should obtain a statutory declaration from those witnesses and file the statutory declarations with your response.

Because QCAT is an informal jurisdiction it is possible that the allegations may change somewhat during the course of the hearing and so the stroy of what happened may provide a useful reference for the judge.

  • Once a statement has been prepared it is best to attach all documents, letters emails and other written information that tends to prove the facts that you are alleging.

Remember there is only one opportunity to have the tribunal member (judge ) hear and understand your side of the story. Regardless of how well you have prepared the written response you must present your case, and ensure that the member understands.

 

 

Although it is absolutely necessary to put everything it writing it is still essential to take the member through your case. Don’t assume. that the judge has read and understands your information

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