Dispute Resolution & Litigation

No. However, the court will welcome settlement negotiations to avoid unnecessary litigation if the parties can come to a settlement. The court has a duty to give ‘just, quick and cheap’ determinations on disputes. As an effect of this, courts may from time to time direct parties to engage in mediations or conciliation conferences to circumvent the need for litigation.

There are a number of alternative dispute resolution methods in which disputes can be resolved which don’t involve the significant costs of or drawn out time periods associated with litigation.

Most modern form contracts will contain a dispute resolution clause setting out the contracted resolution process that the parties agree to follow should a dispute arise.

Some of the ways in which disputes can be resolved include:

1. Informal settlement conferences – this is often an effective means of having the parties attend an informal meeting and discuss prospects of settling the dispute.
2. Mediation – this involves an independent third party who attends a private and confidential meeting between the parties to assist in managing their communication in an effort to explore settlement options and possibly reach a resolution.
3. Arbitration – a formal dispute resolution process where an independent and neutral third party (the arbitrator) can make a binding determination on a dispute.
4. Expert determination – this process involves an independent third party expert who is appointed, usually under a contract, to make a decision in relation to resolving the dispute.

Before you decide to commence court proceedings against another party, contact our Dispute Resolution department on (02) 9233 1133 to discuss any requirements you might be obligated to consider regarding ADR options before litigation.

Should you receive a document produced by the court addressed to you, it is likely that you will have to take some action to fulfil the request or order of the court.

If you are served with a Statement of Claim, it means that the other party (Plaintiff) has commenced court proceedings against you and is taking legal steps to resolve the dispute.

There are a number of steps you can take once the Plaintiff serves you with a statement of claim. These include:

1. File a Defence – if you disagree with their claim, you must, within 28 days, file a Defence from the date you are served.
2. File a Cross-Claim – if you believe you have a claim against the Plaintiff or a separate third party, you can file a Cross Claim as well as your Defence.
3. Do nothing – if you ignore the Statement of Claim and the 28-day period lapses, the Plaintiff can apply to the Court for Default Judgment.

This is an automatic order awarded by the Court where there has been no or insufficient response provided to the proceedings. This could potentially affect your credit rating long term.
You will need to act promptly and seek legal advice so as to avoid the Court making a judgment against you. If you have recently been served with a Statement of Claim or would like to talk to one of our Dispute Resolution lawyers about preparing a Statement of Claim, give us a call on (02) 9233 1133.

There is no definitive period of time a dispute may be before a court. The time frame for a matter to be heard before a Court will depend on the complexity of the claim or defence and volume of evidence needed to prosecute the claim or defence. This process can vary greatly and is usually timetabled by the court to ensure that the litigation processes in a timely manner.

Subject to the type of matter and which court it is being heard in, we can provide advice from experience as to the approximate duration, however, this maybe subject to change throughout the matter. In addition there is always the prospect of a matter being appealed after the first instance Judgment is delivered which can effect the length of time a matters requires to be brought to a final conclusion.

Reaching a settlement outside of court invariably avoids or reduces the need for lengthy, costly and distracting disputes before the court.

These are a few key terms in relation to costs and cost orders that can be made and are frequently used in litigation. These include:

1. ‘Costs follow the event’ – The general rule in NSW is that a successful party to a court proceeding is entitled to have a reasonable expectation that the court will award costs in its favour against the unsuccessful party.
2. Party/Party costs – these are often awarded to the successful party to the proceedings for legal costs that they have paid or on account of their lawyer’s fees, where the costs are found to be fair and reasonable. It is usually capped at about 60 to 80% of the costs spent.
3. Indemnity costs – these are calculated at a higher rate than party/party costs and usually apply after a specific date such as following an offer to settle the matter.
4. Security for costs – In some cases, you as the Defendant to a claim might suspect that the Plaintiff will not be able to satisfy a costs order should one be made following Judgment. In this instance, an application for security for costs can be made to the Court.

If you would like to talk to one of our Dispute Resolution lawyers further about the issue of cost orders in litigation, give us a call on (02) 9233 1133.

Once a Judgment is made by a Court in your favour, there are a number of options available to you to enforce the judgment and attempt to recover the debt. These processes include:

1. Examination Notice – This form can be issued to a debtor and requires them to answer questions about their assets and finances
2. Examination Order – This form is a court order requiring the debtor to attend court to answer questions about their assets and finances
3. Garnishee Order – these are ordered to third parties such as financial institutions or employers who hold money on behalf of the debtor, which then requires them to hold a portion of monies in the debtor’s account or wages and pay to the creditor in order to pay off the debt
4. Writ of Execution (or levy of property) – this is an order for the seizure of the debtor’s goods belonging to the debtor to sell in order to repay the debt
5. Writ for possession of property – similar to the above option, this is an order for the seizure of the debtor’s real property i.e. land or home to pay you as the creditor to satisfy the debt.

If you are unsuccessful in recovering the debt using the above processes and the debt is for more than $5,000, our Dispute Resolution team can assist you in preparing bankruptcy proceedings in the case where the debtor is an individual or in the case where the debtor is a company, preparation of winding up proceedings including a Creditor’s Statutory Demand.

Contact us on 02 4626 5077 and speak with one or our team, the first 15 minutes are free.

If ever you are served with court documents requiring you to comply with a direction of the court, or to respond to a claim, you should contact us as soon as possible. In most cases, if you receive court documents addressed to you, you will be required to act to comply with the courts request. This could vary from a court ordered request to provide evidence in person or by providing documents, filing a Defence to state your position against a claim and many other requests.

It is always important to obtain legal advice in situations where you are unsure of what you are required to do.

There is a standard form of Court procedure to follow where you or another party (the Plaintiff) has made a claim and filed it with the Court.

The sum and nature of the claim will determine whether the claim is filed in the Local, District, Supreme Court or Tribunal. There are different filing fees associated with each Court/Tribunal.

Generally, the order of events in order to see a matter through to its determination is:

1. One party files a Statement of Claim seeking remedies
2. The Statement of Claim is served on the Defendant
3. Within 28 days, the Defendant can either: a.Request further particulars; and/or
   b.File a defence; and/or
   c.File a Cross Claim
4. Evidence is then prepared by each party to the court proceedings including:
   a.Affidavits – these are filed with the Court by both parties to support their claim
   b.Discovery – this is a court-ordered process where each party is under a court order to produce documents directly relevant to the case
   c.Subpoenas – these are issued to parties who are not part of the court proceedings to produce documents or appear in Court under a court order
   d.Notice to Produce – these are issued to parties who are part of the court proceedings to seek specific documents
5. The Hearing Date is set usually within 6 – 12 months but this is not always the case as often, there are disputes and cost arguments had along the way.
6. Pre-trial mediation or potential dispute resolution is ordered – In most cases, the Court will order that the parties meet to try and resolve the dispute by way of mediation prior to the case reaching the hearing.
7. If no resolution can be reached, the case proceeds to Hearing – Parties to the proceedings attend the hearing with their legal representative and produce their case and evidence. In many jurisdictions cross examination of witnesses occurs.
8. Judgment – The presiding officer (i.e. Judge, Registrar, Member etc.) will make a judgment in favour of one of the parties to the proceedings.
9. Enforcement – The Judgment can be enforced in a number of ways by the successful party.
10. Appeal – If you do not agree with the decision or are unhappy with the result, then there is the option of applying to a higher court or Review body to appeal the decision.

If you have recently become involved in a legal dispute and need assistance with the process of going to Court and would like to talk to one of our Dispute Resolution lawyers, give us a call on (02) 9233 1133.

If you are looking at commencing a Court action or have found yourself a party to legal proceedings, it is important to understand that litigation is costly and there may be various costs you have to pay along the way.

Some of the costs you will have to pay should court proceedings be commenced include:

1. Hearing allocation fees;
2. Filing fees;
3. Fees to be paid to Court to issue documents including certificates of judgments, subpoenas etc.;
4. Lawyers/barristers fees;
5. Expert fees if required;
6. Other upfront fees; and
7. If you are unsuccessful and lose the case, the other party’s costs.

These costs may affect whether you choose to commence court proceedings or the way in which you might defend court proceedings. If you would like to talk to one of our Dispute Resolution lawyers further about the issue of costs, give us a call on (02) 9233 1133.