February 9, 2023

Commercial Law and Litigation


What is Litigation?

Litigation is the process of taking legal action and attempting to resolve disputes through the courts.

Essentially, in a legal action one party is attempting to enforce or defend its legal rights through the proceedings available in a Court or Tribunal. Whether the case is heard in a Court, or a Tribunal depends on several factors including what ‘cause of action’ relates to the particular case, the monetary limits of each court and tribunal as well as the relevant statutes that apply.

Outcomes from litigation depend on the specific cause of action and area of law in which the proceeding takes place. For example, it is common for civil litigants to pursue monetary compensation or specific performance on a contract.

What types of matters can be Litigated?

There is a wide range of matters that can be resolved by using the processes available through litigation, including but not limited to:

Commercial disputes

  • Business Disputes and Breach of Contract Claims
  • Claims for the recovery of unpaid debts
  • Shareholder Disputes, Director Disputes and Partnership Disputes
  • Breaches of Directors’ Duties
  • Shareholder Oppression Claims
  • Misleading & Deceptive Conduct and Unconscionable Conduct Claims
  • Franchise Disputes
  • Enforcement of Consumer Guarantees
  • Loans & Enforcement of Securities

Matrimonial matters

  • Determining a spousal claim in a divorce proceeding.
  • Financial Agreement on how the property should be divided without any Family Court or Federal Circuit Court involvement.
  • Where a Financial Agreement cannot be reached, applying to the Family Court or Federal Circuit Court for financial orders, including for Financial orders relating to the division of Matrimonial property; and Payment of spouse or de facto partner maintenance.
  • Employment disputes including claims for unpaid wages or entitlements as an example.

Why do I need a lawyer to litigate?

A litigation lawyer is a legal expert who represents and protects the client’s interests, either in the Courts or through alternate dispute resolutions. Their main role is to advise the client on the most appropriate strategy to resolve the issue or avoid further disputes, and to conduct litigation effectively on behalf of their client.

The Court has many rules and procedures concerning the formation and submission of required documents. It is very complex. A legal expert has the requisite knowledge and training needed to appear in interlocutory applications, negotiation processes and judgement hearings.

Depending on the facts of the case being litigated, a lawyer may seek the assistance of expert witnesses, barristers and independent valuers. These industry connections are a valued part of litigation and are central to both the progress and success of an individual’s case.

Do I have a cause of action?

A cause of action is the set of facts giving rise to the claim you are seeking to have enforced by the Court. Before starting litigation, you and your lawyer will discuss the matter and its particulars in detail, to confirm whether you have a demonstrable cause of action under existing law, which includes an examination under both Statute and the Common law. You will also discuss the laws of evidence with your lawyer as you will be required to support the facts you assert with evidence should the matter proceed to the Courts.

How do I decide whether I need to litigate or not?

Your Lawyer will consider the cause of action and relevant jurisdiction in which the Court will hear the matter. You will then be provided further advice as to whether litigation is suitable for your case as well as the costs and risks of litigation. An alternate option to litigation to resolve legal disputes that you may also consider is Alternative Dispute Resolution (ADR). Mediation, Arbitration and Expert Determination are the main forms of ADR. ADRs can be entered into voluntarily or as a result of a court order, which allows you to avoid the expense, time commitment and adversarial conflict of a trial. It should be noted that the processes of an ADR are not determined by a Court or Tribunal and have no judicial determination. It is vital to be aware this of prior to going down the ADR path, as the outcomes of any ADR process may not be enforceable, even if you are successful, and you may need to take further steps for the outcome to be enforced. In other words, if the other party fails to perform the obligations decided by ADRs processes, you may still need to apply to the court for enforcement.

Outlining the steps in the litigation process.

(1) Identify the parties

The party who commences the proceedings is known as the Plaintiff and the person against whom the action is brought is known as the Defendant. Before filing the case, the plaintiff needs to identify the defendant and make sure the defendant can be served.

(2) Initial considerations

The plaintiff must have a cause of action or a right (or eligibility) to seek legal redress against another party and provide evidence including documents or witness statements to support the claim. Additionally, legal proceedings must be commenced within the limitation period otherwise there is a risk that the claim might become barred.

(3) Legal proceedings in Court

i. Making a claim

Legal proceedings are commenced by a plaintiff against a defendant by filing a claim in a court. The plaintiff needs to submit a Statement of Claim (originating process) in the court, including the key allegation against the defendant.

ii. Service of the claim to the defendant

Once the originating process is filled in the court, the plaintiff must serve the document to the defendant.

iii. Defence

Usually, the defendant has 28 days upon the service of the originating process to file a defence to the plaintiff’s claim, in which the defendant will specify the reason that the claim should not be supported.

iv. Preparation for hearing

After the service of defence, the matter will be listed in the court. The court may issue orders to set out the steps that need to be taken by two parties to prepare for the hearing, including disclosure of documents, preparation and service of evidence and setting a date for the final hearing.

v. Trial/hearing

The parties are given the opportunity to present their case and supporting evidence in the hearing. The judge or magistrate may make a decision and provide judgement at the conclusion of the hearing, otherwise, the judgement might be reserved and handed down after the court hearing.

If you feel that you have a matter that may require litigation or maybe just need a bit more advice, please don’t hesitate to pick up the phone and call us.

Where to from here?

If you are considering litigation and are looking for assistance to determine whether or not you have a good cause of action, the importance of specialist advice is clear.

For a free, no obligation review of your current circumstances, simply pick up the phone or email us on;
Call us now: 1800 893 836
Email us now: info@bizlawyers.com.au
Website: https://bizlawyers.com.au/services/wills-a.html

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Drop us a call for a free initial consultation today!


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