It is quite common in civil litigation proceedings for the Defendant or Plaintiff to be located in another state. The person you are intending to sue may live interstate or their registered office may be interstate. Either way, there are a number of things to think about if you intend to sue someone who is not in the same state as you.
Jurisdiction is the power (or more accurately authority) to make a decision on an issue. This is important to consider as different Courts have different powers and are limited by those powers. This is relevant not just for the type of issue and quantum of claim, but also to where the claim is located. If you bring a claim or cause of action in the wrong Court, the court or your opponent may seek a costs order against you.
If the person you are suing is located interstate, consider whether it is appropriate to file your claim in a Court local to the person you are suing, or perhaps whether you are relying on federal (Australia-wide) jurisdiction and so should file in a Federal Court. In many circumstances, even when turning your mind to jurisdiction, you may conclude that the Courts located near you are the appropriate Court in any event.
It is also important to consider whether the actual law is different in the different state, and if the issue in dispute arose in a different state again, you should also consider the law where the issue arose. For example, if you are located in Sydney, your opponent in Brisbane, but the issues between you and your opponent arose from actions in Adelaide, then you will need to turn your mind to all three states.
When drafting your originating process document such as your statement of claim, it is important to consider what further information you may need to add to your pleadings. You may need to put to the court that you are relying on a particular law that allows you to bring a claim from a different state, though this may not be necessary in many circumstances.
You will also need to ensure you have attached the appropriate interstate notice to your originating process. The notice is required when you have an interstate litigant.
Service may also be difficult if you are interstate. Service is the process by which you ensure the other party has received your court documents. Normal postal routes usually take longer the further you are away, though this does not change the time that service is deemed to be completed, it may in practice change the speed at which the parties can resolve the issues in dispute. This can be overcome easily today through the use of email, and online court.
Special or personal service is also a consideration, as you may need to use the professional services of a process server that you do not usually use and are unfamiliar with.
Take Home Message
Interstate proceedings can cause issues if they are not considered carefully at the start. Being located in a different state does not protect you from a claim, and it can be quite easy to sue your opponent notwithstanding they are not located in the same state as you. Nevertheless, you will need to consider more issues to ensure that you correctly follow the legal process and do not fall foul to a costs order.
If you have further questions, please contact Andrea Harrold at firstname.lastname@example.org.
This is not legal advice.