LITIGATION - Frequently Asked Questions

Date: Dec 04, 2012
Document Type: Article, Q&A

Deciding how to settle a dispute

Q: Is litigation the only way to settle my dispute?

A: Sometimes there are better ways to settle a dispute, called “alternative dispute resolution”:

  • negotiation: before or after commencing litigation, you can discussion resolution with the other party; a lawyer can help you do this
  • negotiation can occur formally (e.g. during mediation, at a pre-trial conference, by offer of compromise) or informally (e.g. over the phone, by email or letter, or at a meeting)
  • often the lawyers will set up negotiations on a “without prejudice” basis:  the parties can identify the settlement discussions as being "without prejudice", and neither side has to worry that the Court might find out what they have said (or offered) to each other to try and resolve the dispute
  • "without prejudice except as to costs" discussions can be considered by a Court once it has decided the case in ordering who should pay the costs of the proceedings. 
  • mediation is a structured negotiation involving a neutral person (the “mediator”) who helps parties talk and resolve their dispute:
    • this is less formal and stressful than Court
    • sometimes the Court orders mediation
    • the parties usually prepare "position statements" containing summaries of facts and sometimes desired resolutions
    • parties will usually be represented by lawyers, make opening statements, and each often has a private room to discuss options
    • the mediator can meet with all parties or any party
    • a resolution will be documented
    • the process can be expensive but a good mediator increases the chances of resolution
  • conciliation: an independent person identifies the issues and looks for ways to resolve the dispute; Courts, tribunals, Ombudsmen and agencies administering rights granted by legislation can use this process.
  • arbitration:
    • the “arbitrator” or “adjudicator” acts like a judge who hears the evidence and makes a decision
    • Courts or commercial contracts can refer disputes to arbitration
    • the decision becomes a judgment if held within a court system
    • otherwise, the decision is registered as a judgment in a court
    • the decision is binding on the parties.
  • Expert appraisal: an independent person who has expertise in the subject area of the dispute enquires, consults, then gives her/his opinion on the dispute; the parties can document a resolution.

Choosing a process

Q: What is the right method to resolve a dispute?

A: This depends on the following:

  • how strong your case is
  • the relationship between you and the other party: if you have an ongoing personal or business relationship with the other party (e.g. a licensing authority), you might want a less confrontational way to resolve your dispute e.g. negotiation or mediation; if a continuing relationship is unlikely you may choose a more formal process e.g. arbitration or litigation
  • all legal procedures are expensive; alternative dispute resolution processes are usually less expensive than Court, but if they do not succeed, they will add to the legal costs
  • sometimes a party does not have time for alternative dispute resolution and needs a Court order urgently to prevent irreparable damage
  • the Court process can be slow, including trial preparation, the trial itself, appeals and enforcement; negotiating or mediating a settlement can be quicker
  • enforceability: a mediated or negotiated settlement should be documented e.g. in a deed, but if settlement did not result in entry of a Court order, it will still be necessary to obtain a Court order/judgment to enforce the settlement – but at least there will be less scope for a defence to such an application
  • if it is unlikely that a party will comply with a deal it might be better to go straight for a Court imposed resolution, depending on how strong your case is
  • all legal process can be stressful, but Court can be very stressful
  • what happens in court is usually public; you may not want publicity; often mediation is used to avoid or minimise publicity
  • parties can “abuse” mediation in order to obtain a forensic advantage  
  • a court decision is binding on courts lower in the hierarchy; sometimes a party would prefer to settle rather than establish a precedent or legal principle
  • a case with technical issues might be quicker or more cheaply resolved by expert appraisal or arbitration.

Commencing litigation

Q: what are the first steps when starting Court action?

A: You need to decide which claims to raise e.g. the correct court or Tribunal – this is determined by:

  • where the claim arose
  • whether it arises under statute (law made by State or Federal parliament) - or under  common or “judge made” law
  • the amount in issue
  • the kind of claim e.g. contract law, administrative law, negligence, property law, compensation claims, commercial law, consumer protection law, wills and estates law, Family Law, industrial law etc.; sometimes there is a degree of overlap and the same facts will give rise to more than one claim 
  • the stage of the process – e.g. first hearing, appeal/review etc.; for example:
    • the Consumer, Trader and Tenancy Tribunal determines disputes about residential tenancy
    • a substantial compensation claim may end up in the District or Supreme Courts
    • an immigration decision might end up before the Migration Review Tribunal or Federal Court; other courts include the Industrial Court, Land and Environment Court, Dust Diseases Tribunal and Local Court
    • you might even ultimately end up in the Court of Appeal or High Court.

Q: What other steps might be involved in commencing civil proceedings (cases that do not involve criminal law)

A: This depends on the Court or Tribunal but usually:
  • first try and resolve the dispute – negotiation, mediation etc.; sometimes you must do this before commencing proceedings in a Court and file a document proving that you have taken “genuine steps” to resolve the dispute
  • you might have to ask the Court to assist you to “discover” the necessary evidence before you can start proceedings
  • you file an Originating Process, a Statement of Claim, a Summons or some other official application setting out all the important facts and asking for an order
  • you give a copy of that document to the other parties – by mail, professional process server etc. (depending on the Court)
  • the document usually tells the other party that if they don’t defend or respond within a specified time, you will ask the Court/tribunal for a final decision
  • if the other party responds or defends, the matter starts down the path to a contested hearing

Pre-trial procedures

Q:  How is a case prepared for trial?

A: This includes the following:
  • most courts have case management systems to assist parties prepare their cases including:

o   timetables for the parties to prepare statements of facts (e.g. affidavits)

o   orders for production of documents needed for evidence e.g. subpoenas etc.

  • some Courts or Tribunals order parties to mediate, or will broker a kind of “without prejudice” conference or meeting where the parties can speak frankly without jeopardising their official positions, and explore ways to resolve the matter without having to go to a final hearing
  • sometimes a party may make an offer to the other party to compromise the claim ; if the other party  rejects that offer but doesn’t do any better than the offer at final hearing, they may have to pay all of their own and all or some of the other party’s costs
  • a party might apply for a discrete issue to be decided before the hearing
  • a party may file a “notice of motion” or pre-hearing (interlocutory) application dealing with:
    • discovery: the other party lists and shows their relevant documents
    • interrogatories, where parties ask each other written questions; a court can order a party to answer questions
    • expert reports by e.g. doctors, engineers, builders, architects, accountants, actuaries, accident examiners or anyone else who can persuade the Court that they have an opinion based on specialised experience or training worth considering
    • a defendant can apply for security from the plaintiff for the costs the defendant will incur
    • subpoena: an order to attend court to produce documents or give evidence
    • various other matters.

Discontinuance or withdrawal

Q: Can I discontinue or withdraw proceedings?

A: Often if you started the proceedings, you can discontinue them, sometimes without permission and sometimes only with the permission of the other party or the court, but you might have to pay the costs of the other party. Sometimes you can retain the right to raise the same claims in fresh proceedings, sometimes not. There are also rules about the withdrawal of an appearance. The rules can be tricky; consult your lawyer.

Enforcement of judgments

Q: I have obtained an order or judgment – how do I enforce it?

A: Enforcement of a judgement or other final decision can include:  

  • bankruptcy or company winding up proceedings: though not strictly enforcement, if you are owed a debt exceeding certain limits, you can ask the relevant Court to appoint a person to take control of most of the property of the debtor, turn it into cash and distribute the cash to creditors; sometimes a creditor doesn’t need a judgment; the rules are complex; consult your lawyer
  • writ: the Sherriff seizes and sells the property of the debtor to satisfy judgment
  • examination: allows you to find out about the other party’s financial circumstances
  • garnishee orders: a third party (including a bank) owing money to the debtor pays you instead
  • instalment order: the parties can agree on instalments, or the Court can order instalments; the whole debt usually falls due on default
  • charging order: the creditor gets security over the debtor’s property.

Costs of Litigation

Q: who pays for litigation?

A: Unless someone else is paying your fees (e.g. where legal aid has been granted) you will have to pay your own costs and can recover costs as ordered by the Court.  Generally the unsuccessful party pays the costs of the successful party, but some Courts and Tribunals will not award costs. Again the rules are complex and depend on the case and how you run it. Ask your lawyer.

Time limits

Q: do time limits apply to litigation?

A: There are strict deadlines by which you must commence an application to a Court or Tribunal. These deadlines are known as “limitation periods”. The rules are complex. Seek advice early and help your lawyer comply with the deadlines.

Lawyers

Q: What can my lawyer do?
 
A: A lawyer can:
  • protect you by enforcing your rights
  • protect you by insisting the other party deal only with your lawyer; usually the other party has to respect this
  • advise you on the complex rules for resolving legal disputes
  • help you prepare the evidence so you get a fair hearing
  • guide you in making the difficult decisions you will have to make – but the lawyer should always leave you in the driving seat – you and not your lawyer has the right to choose your path (so long as it is permitted by the law)
  • even if you already know a lot about legal procedure, it is usually not a good idea to represent yourself, if only because you are unlikely to have the emotional detachment necessary to make difficult decisions about tactics and evidence

To speak to a litigation lawyer, ring us on 02 8268 4000.

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