Can I sue you?

The effect of the pre-litigation steps contained in the Uniform Civil Rules 2020 (SA)

The civil jurisdiction of the South Australian Courts can determine all kinds of civil disputes (including those involving contracts, defamation and negligence), and until May 2020, it was possible to start a Court case without having taken many steps, or any, independent of the Court to try and resolve the dispute.

This is no longer the case.

Since May 2020 when the new Uniform Civil Rules 2020 (SA) (UCR) came into effect, specific steps are now required to be undertaken prior to many types of Court cases being commenced. These are described as “Pre-Action Steps”, and require that:

  • A party (called an Applicant) who wishes to sue another party (called a Respondent) must first provide to that party a “Pre-Action Claim”, which sets out detailed reasons, with evidence, why the Applicant intends to sue the Respondent and making an offer to settle the claim;
  • The Respondent must respond to the Pre-Action Claim within 21 days of being served with the Pre-Action Claim by providing a “Pre-Action Response”; and
  • If the exchange of these two documents does not resolve the dispute, all parties, together with any lawyers who are instructed, must meet (either in person or by tele- or video-conference) to try and resolve the dispute.

What do the Pre-Action Claim and Pre-Action Response need to contain?

The requirements of a Pre-Action Claim are very specific, and are outlined in rule 61.7 of the Uniform Civil Rules. The main things that a Pre-Action Claim must contain are:

  • The full name and address of the Applicant and Respondent;
  • The Applicant’s proposed “cause of action” – this is, the legal basis on which the Applicant think they have a case against the Respondent.
  • A detailed description of the facts that support the proposed cause of action;
  • If the Applicant is seeking payment of money, an explanation of how that sum has been calculated;
  • Any expert reports the Applicant may have or other key relevant documents;
  • Confirmation of the Court the Applicant would sue the Respondent in;
  • An offer to settle the matter;
  • A proposed time, date and location for a Pre-Action Meeting, if the offer isn’t accepted.

There are some additional requirements if you want to sue the Respondent for a personal injury matter.

The requirements of a Pre-Action Response are very specific, and are outlined in rule 61.9 of the Uniform Civil Rules. The main things the documents must contain are:

  • The full name and address of the Respondent;
  • A response to the Applicant’s offer;
  • If the offer is not accepted, a detailed response to the Applicant’s Pre-Action Claim;
  • Further if the offer is not accepted, responding to the proposed time, date, and location of the Pre-Action Meeting.

If the Respondent intends to bring a counterclaim, (or ‘Cross Claim’) against the Applicant, they must include the same details for that Claim as is required for a ‘Pre-Action Claim’, but can include this detail in the Pre-Action Response.

What happens if the Applicant thinks the proposed Respondent is obviously in the wrong?

When the matter will not be contested or is “genuinely not contestable” (i.e. in a clean-cut debt claim), an Applicant may, instead of a Pre-Action Claim, prepare a document called a “Final Notice”.

A Final Notice is much simpler, and does not need to provide as many details as a Pre-Action Claim. Rather, it is suitable for a Final Notice to simply set out why the Applicant believes they are entitled to what they are seeking, sometimes this may only need a sentence or two.

While a Pre-Action Claim needs only be “served” on the Respondent, a Final Notice must first be filed on the CourtSA Portal, where upon payment of a small fee (currently $23.50), the Court will seal the document, meaning it’s ready to be served on the Respondent.

Unlike a Pre-Action Claim, the Respondent is required to respond to the Final Notice by complying with whatever the Applicant has demanded (usually the payment of money). If they do not, the the Applicant can sue the Respondent.

Similarly, if the amount claimed against a proposed Respondent is $12,000 or less, then an Applicant may use this “Final Notice” process, or alternately serve a written notice of intention to commence a “minor civil” action. This notice is similar, but requires less detail than that in a Pre-Action Claim. Similarly, a proposed Respondent to this notice must provide a response within 21 days. While encouraged, there is also no formal requirement for a pre-action meeting or other alternative dispute resolution for a Claim of this amount.

What happens if either party doesn’t comply with the Pre-Action Steps?  

Should any party not comply with the Pre-Action steps, upon the Applicant suing the Respondent and the Respondent filing a Defence, the Court is required to list the matter for a “Special Directions Hearing”.

At this special hearing, the Court may make orders requiring the parties to comply with the pre-action steps, and can stop the matter from proceeding further until those steps are complied with.

Importantly, unless there is a good reason not to do so, the Court will order the non-complying party to pay 100% of the complying party’s legal costs for preparing for and attending the Special Directions Hearing!

Final comments

The overarching aim of the Pre-Action Steps is to require parties to properly articulate and understand the merits of their Claims and Defences before utilising the Court’s resources.

Since their implementation 18 months ago, we have found the Pre-Action Steps to be a useful measure to resolving civil disputes before parties need to go to the greater time and expense of being involved in litigation at Court.

If you have a claim you want to bring against a party, or have been served with a Pre-Action Claim or Final Notice, please contact us, and we can assist you.

Published 1 December 2021

The above is general in nature and is not intended to, and does not, constitute professional advice.