A civil dispute is one which arises between private parties (including governments acting in their private capacity) and excludes criminal prosecutions.

This chapter will introduce the themes and theory of civil dispute resolution (CDR) and explain the structure and limitations of this book to assist readers in navigating through the chapters. This chapter will also introduce the procedures for resolving civil disputes, each of which will be canvassed in more detail in subsequent chapters. While this book need not be read cover to cover, it is recommended that Chapters 1, 2 and 3 be read first as they are fundamental to understanding the remainder of the book.

This chapter concerns civil litigation trials. Trials are actually one of the least common means of civil dispute resolution. In addition to the significant portion of civil disputes which are resolved without any recourse to litigation, the overwhelming majority of civil litigation cases which are commenced never make it to trial. Most cases for which litigation proceedings commence are resolved by ADR1 or summary disposition.2 This is because trials are one of the most expensive aspects of litigation, so it is natural for civil disputants and courts to avoid trials wherever possible in the interests of efficiency. However, a full trial is the only way civil disputants are able to put their entire case, with all the evidence, before an independent decision-maker applying full due process and fully exercising their right to be heard. Accordingly, the decision by parties to pursue the trial process is an example of the key civil dispute resolution theme of balancing efficiency against due process.

This is the first chapter in this book to focus predominantly on the role of the courts and litigation in civil dispute resolution. Part B of this book focuses predominantly on civil procedure in the courts; however, this chapter concerns the interaction between courts and alternative dispute resolution (ADR) and the management of court resources which is central to the themes and theory of civil dispute resolution (CDR). Much of the analysis in Chapters 2 and 3, including balancing competing objectives, managing cases, access to justice and open justice, are strongly influenced by limitations on court resources and the management of those limitations. ADR and summary disposition are the key tools available to the courts to limit exploitation of court resources. Matters resolved through ADR can then be consensually dismissed by the courts. While ADR is the preferred way to limit party use of court time, some parties do not respect the scarcity of the court’s resources or the rights of their opposing parties, and non-consensual summary disposition then becomes the court’s key tool for managing parties and the structure of their disputes. Therefore, this chapter will focus on ADR run in conjunction with litigation.

This chapter considers the protection afforded to documents as part of the litigation process. The documents in question include both the pre-trial documents discussed in both Chapter 11 and Chapter 12 and documents that are produced at trial. It is more difficult to protect the confidentiality of documents produced at trial because most trials are held in open court. Civil dispute resolution inevitably involves the provision of information between parties and this can come at a significant cost to party confidentiality. Litigation involves an even greater sacrifice of confidentiality as the key requirement for open justice means that confidential material discussed in open court can become public knowledge through judgments, court transcripts or media reporting of open court hearings.1 However, even litigation attempts to minimise the invasion of party privacy, and privilege is one of the key protections the law provides to ensure that the need to put material before the court does not create perverse incentives for parties.

This chapter concerns the procedure for those rare but important civil disputes which proceed through the entire litigation process to judgment and, in some case, beyond. As this book has demonstrated, most cases settle prior to trial, which means that those cases which proceed through trial and on to judgment tend to be the ones with the most adversarial and persistent parties. However, for some cases, even judgment does not bring an end to proceedings. Judgments are considered final and enforceable as soon as they have been delivered, but they may also be incomplete and appealable and further disputes can arise after judgment. Appeals are a critical example of one of the key balancing themes in this book — being the balance between due process and efficiency.1 Appeals provide an opportunity to concentrate the hearing of the most legally difficult cases before the highest judges, which enables the development of high-level binding precedent by superior courts. However, appellate processes come at a high price for the efficiency aims of civil procedure as they require significant time and money.

Commencing proceedings is one of the most important steps in litigation and, for most cases, it signals the first involvement of the court in the dispute. However, there are important considerations for a plaintiff before commencing proceedings even when the plaintiff is confident litigation is the best way to proceed. This chapter will also consider these precursors to commencing proceedings.1

This chapter continues the analysis begun in Chapter 2 regarding the theory of civil dispute resolution (CDR). Chapter 2 focused on the many conflicts which must be balanced by governments, courts, ADR practitioners and parties engaging with CDR, and how those conflicts define and explain CDR. This chapter will consider two key principles: access to justice and open justice, which underlie our dispute resolution system and how these principles play out through policy, legal reform and practice. These principles interact in sometimes complex ways with the balancing acts discussed in Chapter 2. The ability of every member of society to access justice and the openness of the justice system are two of the most important requirements of the civil justice system but they are simultaneously complex and impossible to achieve.

Civil dispute resolution does not only occur through ADR and mainstream courts; there is also a significant volume of civil litigation heard by specialist courts and tribunals that have been created by statutes with specific and limited jurisdictions. Many specialist areas of law are dealt with by “super tribunals” run by every state and territory except Tasmania, which is committed to introducing a super tribunal in 2021. The super tribunals are commonly described as: ACAT (ACT), NCAT (NSW), NTCAT (NT), QCAT (Qld), SACAT (SA), SAT (WA) and VCAT (Vic). The state-based super tribunals are relatively recent and each deal with a number of different types of disputes which were previously dealt with by smaller, more specialised tribunals.1 Many statutory tribunals resolve disputes relating to administrative decisions by government, and government-related institutions and organisations. However, there is a wide variation in the jurisdiction of these super tribunals, with some replacing only a portion of statutory tribunals and others comprehensively replacing statutory tribunals. In addition, in some jurisdictions, the super tribunal can hear all civil disputes up to a certain threshold and effectively acts as a small claims court.

Discovery is the term used to describe the process whereby parties to litigation provide each other with documentary evidence which might be relevant to a case before the courts. Discovery of documents between parties, also called “disclosure” in some jurisdictions, is a critical part of civil litigation and a significant differentiator from ADR processes where parties rarely have access to each other’s documents.1 Where general discovery is ordered by a court, parties must provide each other with access to all relevant documents, generally including all documents on which they wish to rely in court prior to the hearing.

The remainder of this book is dedicated to the complex, well-defined and extensively legislated processes of litigation. Chapters 9 to 16 detail the key aspects of litigation in the chronological order most civil disputes progress through. This chapter, however, introduces concepts foundational to, or recurrent in, the litigation process concerning how the key stakeholders — parties (or their lawyers) and the courts themselves — interact with each other.

The laws and rules governing the professional obligations of lawyers, including the allocation of legal costs, vary between different Australian jurisdictions. This chapter will explain the different types of legal costs and discuss generally how courts deal with costs disputes between lawyers and their clients (solicitor-client costs). This chapter will also consider how courts allocate costs between parties in litigation (party-party costs and indemnity costs), including the important impact of settlement offers on costs consequences and the growing role of litigation funders. This chapter will also consider the use of costs as both a compensatory and deterrent mechanism, including in the context of interlocutory skirmishes and personal liability of legal practitioners for costs.