A basic guide to taking legal action in Victoria

Rose Lawyers on 21 December 2018

When you have a dispute you want to resolve with someone, and you cannot resolve this dispute outside of Court, you will be looking to commence legal action. Legal action (also known as a proceeding, or litigation) involves presenting your dispute to a Court and letting the justice system consider the evidence and make a decision as to an outcome.

When you take legal action it can be expensive and costly. If possible, it is usually best to try and resolve matters prior to going to Court. Sometimes, this won't be possible and initiating Legal proceedings may be the only way forward. Whatever stage you are at in your Legal action, is important to seek Legal advice prior to engaging with a party in civil or commercial litigation.

This is a short guide to how to commence proceedings for legal action in Court, and what you need to do. If you are looking for advice on your legal matter, Rose Lawyers are experienced litigation lawyers in Melbourne who can assist you at every stage. Call us for a free phone consultation on 03 9878 5222.

I have a dispute with someone and I can't resolve it

legal action

For some disputes, you may be able to send them a letter of demand. This letter of demand needs to do a number of things:

  • Clearly identify both parties involved in the action.
  • Clearly identify the issue at hand.
  • Outline the basis on which the issue has arisen - for example, is it an issue with a contract, a vehicle collision, or the removal of property from premises?
  • State any proposed solution to the matter - for example, a payment by one party to another party, or a promise to stop doing something.

Your letter of demand also needs to include an outlined timeframe that you want to have things settled by. You should state what needs to happen if that timeframe expires with no action or settlement taken. For example, you might write: "If payment is not received within seven days of the date of this letter I reserve the right to take legal action to recover monies owed without further notice to you."

Commencing proceedings

Once an outlined period (in this case, seven days) is up, you can commence proceedings in the relevant Court for your matter. Proceedings are usually - but not always - started off with Statement of Claim.

Statement of Claim

A Statement of Claim is a document that outlines the issue you have, and the orders you are seeking against the other party. Your Statement of Claim also needs to outline what type of payment, costs and/or injunction you are after. An injunction is where you are requesting someone to stop something. Or you might be seeking specific performance, where you request someone to do something.

For example, your Statement of Claim might outline that you are looking for Specific Performance from a neighbour to remove a dangerous tree. Or it might seek injunction relief from a neighbour to stop his dogs from digging under your fence and ruining the woodwork. On a commercial scale, an injunction might be sought against a landlord to stop them entering your property with no reason or notice.

Writs

When starting proceedings in the Supreme Court of Victoria you will need to file a Writ using a Form 5A. A Writ is a document that calls the issue to Court.

Serving a Complaint on the other party

commence proceedings

Once a Complaint has been issued, it needs to be served on the other party involved. There is then a set period of time you have to wait before any further action can be taken. The amount of time to wait depends on how and where the Complaint was served. During this period of time, the other party can respond by filing a Notice of Defence. This Notice of Defence sets out what the other party believes and why they disagree with you.

  • If a Notice of Defence is not received in the timeframe outlined then you can apply for a Default Judgement
  • A Default Judgement can be made because the other party has 'defaulted' on responding with their defence

Once you have applied for a Default Judgement you can begin proceedings to enforce this Order of Default Judgement. This will usually require the other party to do what you have outlined in your Statement of Claim.

If the other party files a Notice of Defence, then your matter will usually be listed for mediation or perhaps a hearing. This begins the formal process of having a Court decide your case.

Contact Rose Lawyers for advice on commencing legal proceedings

Are you looking to start proceedings against another party? It is a good idea to get legal advice to make sure you are following the correct Court procedure and meeting all the steps required to successfully start an action. Rose Lawyers are experienced litigators and can assist you at every stage. Call us today on 03 9878 5222 to speak to our Melbourne litigation lawyers about your matter.