Gilbert + 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 abarrister to appear in court and advocate for the client during theproceeding.19.4 Commencement of proceedingsSelecting the correct court in which to commence proceedings isimportant, as the court must have the requisite jurisdiction for thematter to be heard.Limitation periods for commencing proceedings differ accordingto the type of action and the court in which the action is to becommenced. For example, actions founded in contract and tortmust be commenced within six years running from the date thecause of action first accrues.19.5 Court procedureEach court system and tribunal has its own procedural rules.The superior courts in all jurisdictions have the power to makeinterim orders on an urgent and ex parte basis. This includesinterlocutory injunctions to operate pending a final hearing anddetermination of a proceeding, asset preservation orders andsearch orders. Each court has a duty judge who is available onshort notice (outside business hours) to hear urgent applicationswhich cannot be satisfactorily accommodated within the ordinarysystem. In particularly urgent cases, applications can be heard andorders made by telephone.In the Supreme and District Courts criminal trials for indictableoffences are normally by jury. The accused may elect to be tried byjudge alone for a state offence, but not a Commonwealth offencedue to constitutional requirements. Only Queensland and theAustralian Capital Territory require unanimous verdicts. Amajority verdict is generally accepted in all other states and theCommonwealth. The presumption in civil proceedings is that theywill be tried without a jury, unless the interests of justice otherwiserequire. Civil proceedings are usually determined by a judge, ormagistrate, without a jury. Exceptions include defamation andpersonal injury proceedings.19.6 CostsIn all Australian jurisdictions, the courts have a discretion to awardcosts as they see fit. In most cases, an unsuccessful party will berequired to pay the successful party’s costs. There are generallytwo types of costs in Australia:+ + solicitor/client costs are the costs incurred by the client for thework performed, pursuant to the retainer between thesolicitor and the client; and+ + party/party costs are costs recoverable by the client from theother party, if a cost order is made in their favour. Party/partycosts are determined under a court scale with fairly rigidprinciples (which in practice means the successful party willonly recover around 50%–70% of the total solicitor/client coststhat they have incurred).In some cases, costs will be awarded on a solicitor/client, or“indemnity” basis, where all but unreasonably incurred costs maybe recovered. Indemnity costs are discretionary and awardedupon application, where there are good reasons for doing so – forexample, where the party paying the costs unreasonably refused asettlement offer that was better than the judgment ultimatelyawarded or where there has been inappropriate conduct duringthe trial resulting in delays or additional costs.19.7 Production of documents“Discovery” is a process often ordered by a court, whereby aparty is required to produce to the other party all documentswithin a party’s possession, custody or power that may shed lighton any of the issues in the proceedings. In some situations, a partymay also be required to discover documents in the possession,custody or power of an agent or employee, documents which aparty has a right to obtain from another person and documentswhich a party would be likely to obtain, if it made a request to theowner of the document.The term “document” extends to any document, from letters andaccounts, to scrap pieces of paper recording information relevantto the matters in issue. The definition extends to electronicdocuments, email, tape recordings, microfilm, maps, plans,photographs, etc. Confidential non-privileged documents are notexempt from production (but may be the subject of confidentialityundertakings given by the other party).There are substantial differences to rules relating to discovery,depending on the rules for each court.PAGE 43