When a client has been waiting months to be paid, or has watched a contract fall apart, they often want to go straight to court. They’ve been patient enough, and filing feels like finally doing something.
We understand that. But in most cases, filing first and talking later is a mistake. In South Australia especially, skipping the pre-action steps can get your proceedings stayed and leave you paying the other side’s costs before the real dispute has even been looked at.
What is a pre-action claim?
Under the Uniform Civil Rules 2020 (SA), a party who wants to sue generally has to serve a pre-action claim on the other side before starting proceedings. It isn’t just a letter of demand. It has to set out the claim, the facts it relies on, what is being sought, and an estimate of the costs if the matter runs to trial. The other side then has a set time to respond, usually 21 days. For most claims, the parties are then expected to meet and try to resolve or narrow the dispute.
When proceedings are filed, the initiating documents have to confirm that those steps were taken or explain why they weren’t. The court will look at that confirmation.
The idea is simple. The court expects the parties to put their cards on the table and make a genuine attempt to resolve things before anyone spends money on litigation, and before the court spends time on it.
What happens if you skip it?
If you file without first complying with the pre-action requirements, the court can:
• list the matter for a special directions hearing to deal with the non-compliance
• make orders requiring you to take the steps you missed
• stay your proceedings until those steps are done
• order you to pay the other side’s costs of dealing with the non-compliance, often on an indemnity basis, unless you have a reasonable excuse
• take the non-compliance into account when it makes costs orders at the end of the case.
So the attempt to save time can backfire. Your claim sits on hold while you go back and serve the pre-action claim you should have served at the start. You pay for the hearing about your own default. You also start the case on the back foot in front of the court and your opponent. The courts in South Australia have treated these steps as mandatory, not optional.
The pre-action claim is an opportunity, not a hurdle
It’s easy to treat the pre-action process as red tape. In our experience, it’s often the most useful step in the whole dispute.
A well-prepared pre-action claim helps you get your case in order early. You have to identify the facts, the documents and the remedy you actually want. That often shows up strengths you can lean on and weaknesses you need to deal with, and it’s far better to find them now than halfway through discovery.
It also gives the other side a real chance to engage. Many disputes settle at this stage once the recipient sees a clearly set out claim and a realistic estimate of what litigation will cost both parties. The response tells you a lot too: what they dispute, what they concede, and how seriously they’re taking it.
And if the matter doesn’t settle, you go into proceedings with a clean record and a clear account of your own reasonableness. That matters when it comes to costs.
Are there exceptions?
Yes, but they are narrow. There may be grounds to file first and deal with pre-action steps later where urgent relief is needed, such as an injunction to stop assets being moved, or where a limitation period is about to expire. The rules also allow a party to seek an exemption from some steps. Those exceptions have to be properly justified, and they aren’t a convenient way around the process. If you think one applies, get advice before you file, not after.
Get it right from the start
The way a dispute starts often shapes the way it ends. A properly prepared pre-action claim puts you in control. It shows the other side and the court that you’re serious and reasonable, and it gives the dispute a real chance to resolve before costs start to build.
Filing without one may feel decisive. More often, it’s an expensive delay.
Authored by Connor Pangallo, Lawyer at Bird Law
