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Things to consid​er before taking formal legal action

​​​​​Before you either commencing court proceedings, or oppose a claim against you, you may wish to ask the following questions:

    ​​​Are there alternatives to formal court proceedings?

    ​You may try to resolve your dispute (or at least some aspects of it) before you start a court case using a process called mediation

    Is the Supreme Court the right place for your dispute​?

    Before taking any steps, it is first necessary to identify where you should start your case. 

    Examples of cases that can be brought in the Supreme Court include:

    • Claims for money or damages in excess of $750,000
    • Claims in relation to wills or estates
    • Cases where you require an order that someone stop doing or do something where you say you have a legal right to such an order
    • Disputes about the ownership, management or financial position of companies
    • Matters about the possession of land.

    The Supreme Court also determines all pro​bate applications​​ where the deceased had assets in New South Wales, but the vast majority of these applications are resolved without formal, contested court proceedings. 

    There are a number of other ​courts and tribunals in New South Wales who handle civil disputes. Reviewing the websites of other jurisdictions could help you determine if your dispute should be resolved in another court or tribunal​. The LawAssist website ​contains detailed help in resolving civil disputes commonly handled in other State courts and tribunals. 

    You should also be aware that some civil disputes must be determined in Comm​​onwealth courts or tribunals​

    Are ​​​y​​ou out of time?

    Before you start your case, you should check that you are not out of time. Civil proceedings must be started within a fixed period called a limitation period.  After the limitation period has expired, the claim usually cannot be brought. ​You may need to seek legal assistance​ to help determine whether or not you are out of time.

    Can you pay filing fees and/or hearing fees associated with your cas​​e?

    ​When you file some documents either online or in the Registry, you will be required to pay a filing fee. Documents that require a fee to be paid include any documents commencing proceedings, as well as notices of motion and subpoenas. These fees can be quite substantial. Current fees are published on the Court's websitehere. If you cannot afford to pay the fees, you can apply for a waiver or postponement of payment in certain circumstances. You will need to complete an application form from the Supreme Court website available here and supply supporting documentat​ion. If you are a Pensioner or in receipt of Centrelink benefits you will need to provide a copy of your Centrelink card. More information can be obtained from the Registry. 

    Importantly, even if your fee is postponed until after your case has been decided, you may still be required to pay part of the filing fees first. If any fees are postponed, it is only until the end of the case, at which time they will become payable.  

    Also, if your case proceeds to a formal hearing before a Judge or Associate Judge, you will be charged a "hearing allocation fee". Current fees are set out on the Supreme Court website available here.  If your matter settles before the allocated hearing date, you will still be charged the hearing allocation fee. If you are unable to pay the fee immediately you may make an application to have the fee postponed until the case is finished. Even if the filing fees to start your case were postponed, you will still need to make a new application to postpone the hearing allocation fee. 

    ​Hav​e you considered other legal costs you might incur during the proceedings?

    Just because you​​​ cho​ose not to pay a lawyer to represent you does not mean that you will not incur costs by bringing a matter to​​ Court. This is one reason why, if you can, it is much better to settle a dispute out of Court than to engage in litigation.

    ​​If you are unsuccessful in your case, the Court may order you to pay the other party's costs. If they are legally represented, it may mean that you have to pay for their solicitors, barristers and Court fees. If you are successful however, you may be awarded costs which may enable you to recover some of the fees that you have paid or owe, for example, your hearing fee, from the other party. Even if you are successful, it is unlikely that you will recover all of your costs involved in bringing the case. Your costs will not include, for example, income you have lost because you have taken time off work to come to Court.  ​


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