Gilbert + tobin - Gilbert and Tobin

The legal profession in Australia is essentially a split profession.
Lawyers will generally practise as either a barrister or a solicitor.
Solicitors provide legal advice and are involved in case preparation.
Solicitors, upon commencement of court proceedings, will brief a
barrister to appear in court and advocate for the client during the
proceeding.
19.4 Commencement of proceedings
Selecting the correct court in which to commence proceedings is
important, as the court must have the requisite jurisdiction for the
matter to be heard.
Limitation periods for commencing proceedings differ according
to the type of action and the court in which the action is to be
commenced. For example, actions founded in contract and tort
must be commenced within six years running from the date the
cause of action first accrues.
19.5 Court procedure
Each court system and tribunal has its own procedural rules.
The superior courts in all jurisdictions have the power to make
interim orders on an urgent and ex parte basis. This includes
interlocutory injunctions to operate pending a final hearing and
determination of a proceeding, asset preservation orders and
search orders. Each court has a duty judge who is available on
short notice (outside business hours) to hear urgent applications
which cannot be satisfactorily accommodated within the ordinary
system. In particularly urgent cases, applications can be heard and
orders made by telephone.
In the Supreme and District Courts criminal trials for indictable
offences are normally by jury. The accused may elect to be tried by
judge alone for a state offence, but not a Commonwealth offence
due to constitutional requirements. Only Queensland and the
Australian Capital Territory require unanimous verdicts. A
majority verdict is generally accepted in all other states and the
Commonwealth. The presumption in civil proceedings is that they
will be tried without a jury, unless the interests of justice otherwise
require. Civil proceedings are usually determined by a judge, or
magistrate, without a jury. Exceptions include defamation and
personal injury proceedings.
19.6 Costs
In all Australian jurisdictions, the courts have a discretion to award
costs as they see fit. In most cases, an unsuccessful party will be
required to pay the successful party’s costs. There are generally
two types of costs in Australia:
+ + solicitor/client costs are the costs incurred by the client for the
work performed, pursuant to the retainer between the
solicitor and the client; and
+ + party/party costs are costs recoverable by the client from the
other party, if a cost order is made in their favour. Party/party
costs are determined under a court scale with fairly rigid
principles (which in practice means the successful party will
only recover around 50%–70% of the total solicitor/client costs
that they have incurred).
In some cases, costs will be awarded on a solicitor/client, or
“indemnity” basis, where all but unreasonably incurred costs may
be recovered. Indemnity costs are discretionary and awarded
upon application, where there are good reasons for doing so – for
example, where the party paying the costs unreasonably refused a
settlement offer that was better than the judgment ultimately
awarded or where there has been inappropriate conduct during
the trial resulting in delays or additional costs.
19.7 Production of documents
“Discovery” is a process often ordered by a court, whereby a
party is required to produce to the other party all documents
within a party’s possession, custody or power that may shed light
on any of the issues in the proceedings. In some situations, a party
may also be required to discover documents in the possession,
custody or power of an agent or employee, documents which a
party has a right to obtain from another person and documents
which a party would be likely to obtain, if it made a request to the
owner of the document.
The term “document” extends to any document, from letters and
accounts, to scrap pieces of paper recording information relevant
to the matters in issue. The definition extends to electronic
documents, email, tape recordings, microfilm, maps, plans,
photographs, etc. Confidential non-privileged documents are not
exempt from production (but may be the subject of confidentiality
undertakings given by the other party).
There are substantial differences to rules relating to discovery,
depending on the rules for each court.
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