1.8 Overview of legal proceedings
Legal action usually means challenging the actions of one or more people, companies or public bodies in a court or tribunal. Before you can start legal action you must have:
a valid “cause of action”
standing to appear before the court or tribunal
evidence to support your arguments
started legal action before the expiry of the limitation period
Before starting legal action
You should always speak to a solicitor before taking any legal action. Legal action can be costly. For information about costs in legal proceedings, read our Fact Sheet on Costs. It may be helpful to consider Alternatives to legal action before you start legal action.
Cause of action
A cause of action is the legal reason or grounds on which a court or tribunal recognises a claim. A cause of action could arise from common law, legislation or a contract. You may have a cause of action if an Act or the regulations gives you the power to bring a legal action. For example, an Act may give a person a statutory right to appeal a decision to the Supreme Court or the Lands, Planning and Mining Tribunal.
You may also be able to bring a case if you have a common law cause of action. For example, negligence, nuisance and trespass are examples of common law causes of action. It is important to note that even if it seems that someone has done something “wrong”, this may not give rise to a legal cause of action.
Standing (also called locus standi) is the legal right to ask a court or tribunal to hear a case. The purpose of standing is to make sure that only people who have a legitimate interest in a matter are allowed access to a court or tribunal.
Sometimes legislation confers rights of standing on parties to allow them to bring court actions. Such legislation will state what type of person can bring legal action. If there is no applicable legislation, common law tests for rights of standing will apply. The common law test for standing will depend on the type of remedy that is being sought and the court in which the case is brought. The different State, Territory and Commonwealth courts have developed different legal tests for standing. The common law tests are continually changing as new cases are heard before the courts.
In general, if a person is not granted standing under legislation, a person or group wishing to enforce environmental laws will usually have to demonstrate a “special interest” in the matter over and above other members of the public in order to show that they have standing. This might mean having to prove a special relationship with a particular environment, or show that property or economic interests are affected, or show spiritual or cultural ties to particular land. As the legal tests for demonstrating a “special interest” can sometimes be hard to meet, not all individuals or groups can bring legal actions.
Evidence is used to prove the facts in a case. Usually it is needed to prove each element of a cause of action. Evidence can be in presented in different forms. Examples of evidence might include:
Witness evidence from individuals who were present at the time. This may be in the form of witness statements or oral evidence presented at a hearing
Expert evidence from experts such as professionals or academics who can comment in an expert capacity on the evidence
Evidence given by audio or video link[i]
Original documents or certified copies of documents (e.g. licences, permits, contracts, log books)
Copies of public documents
Samples or objects
Official copies of legislation
Official copies of legislative/administrative instruments
Bills of lading and ship’s articles and registers
Certain types of evidence are inadmissible, meaning that you cannot say it or use it in court. You cannot usually use evidence which was collected illegally. For example, samples or photographs which were taken whilst trespassing are likely to be inadmissible.
The Northern Territory Evidence Act and the Evidence (National Uniform Legislation) Act together set out the rules of evidence for all courts in the Northern Territory except for the Lands, Planning and Mining Tribunal[ii] and the Local Court (in small claims cases), where no rules of evidence apply.[iii]
The Lands, Planning and Mining Tribunal is not bound by the rules of evidence, but may inform itself of any matter relevant to a proceeding in any manner it thinks appropriate.[iv]
The Commonwealth Evidence Act 1995 sets out the rules of evidence which apply in all Federal courts.
In order to use evidence it needs to be relevant. In most cases, evidence can be tested in cross-examination by other parties in a hearing. Good evidence therefore needs to be reliable and accurate. For more information, read our Fact Sheet on Information and evidence.
Legal actions must be started within a specific time period set by the law. This is called the “limitation period”. If this expires, you cannot bring your legal action.
Limitation periods are different for every cause of action. Some limitation periods are set by legislation (e.g. Acts and regulations). Other limitation periods are set by the common law.
If you want to check a limitation period for an environmental law, contact the Environmental Defenders Office.
[i]ss 49E, 49F, 49G and 49H Northern Territory Evidence Act.
[ii] See s 14 of the Lands, Planning and Mining Tribunal Act.
[iii] See Northern Territory Magistrates Courts.
[iv] s 14 of the Lands, Planning and Mining Tribunal Act.