Litigation is a way of resolving disputes through the court system. Disputes fall into one of two following classifications: civil or criminal.
Civil cases involves a dispute between two (or more parties). Typically, both sides will be represented by lawyers, who fight for their interests and a favourable outcome. In a civil claim, you will either be:
- The Plaintiff – you have brought the claim
- The Defendant – you are defending the claim
Civil litigation is often referred to as commercial litigation. This encompasses a wide area of law such as breaches of contract, employment disputes, debt collection, shareholder disputes and neighbourhood disagreements.
In colloquial terms, civil litigation deals with matters that you can sue someone for.
In criminal litigation, a charge is brought against you by the state. The state (also known as the Crown) may be represented by a Police Prosecutor or a lawyer from the Department of Public Prosecutions. In criminal matters, the parties are referred to as:
- The Prosecution – represented by the Crown
- The Defense – the person defending themselves against the crime
If the Prosecution (representing the Crown) is able to prove you are guilty of committing the crime, punishment may include a fine, imprisonment and/or various other penalties. Just as in a civil matter, in a criminal matter the defendant will typically be represented by a lawyer.
Who is a Litigation Lawyer?
Being involved in litigious proceedings can be stressful and uncertain. However, the right lawyer will make this process as smooth as possible, whilst also fighting for an outcome that is in your interests. A litigation lawyer (also called a solicitor) is the individual who will represent, protect and assert your interests in a dispute.
What is the Purpose of a Litigation Lawyer?
The primary role of your litigation lawyer in both civil and criminal matters is to assist you in all facets of your dispute. From filing documents in Court to explaining rules of law, your lawyer is your first point of contact for matters related to your case. They are also your biggest ally in the resolution of your dispute.
Another key role for your lawyer is to communicate with others involved in your case. This includes communicating with the other party’s solicitors/the police, arranging for barristers to appear on your behalf in Court and attending mediations and negotiations with the intent to pursue a favourable outcome for you.
Documents in Litigation
The preparation of documents is a necessary part of every legal dispute. An essential task for your lawyer is to help you understand both:
- The purpose of these documents; and
- When they must be filed in court and served on the other side
Some of these documents include:
- Statements of claim
- Further and better particulars
Finding your Litigation Lawyer
The ideal solicitor to represent you will have relevant experience and a personality that allows you to work together to fight for your interests.
Litigation costs can be significant. This may include filing fees, application fees, valuations and reports by experts and potentially barristers’ fees. These costs are known as ‘disbursements’, and are charged in addition to the ‘fees’ you pay your lawyer to prepare and argue your case.
Etheringtons Solicitors are experienced in all facets of litigation. We can help you manage the uncertainty and stress of your legal matter. Additionally, we understand that strategy and dynamism are vital parts of responding to the challenges faced by clients involved in litigation proceedings.
To discuss your matter with one of our lawyers, please contact us on (02) 9963 9800.
If you have obtained a judgment against someone who owes you money (called a “debtor”), you can sometimes run into trouble enforcing that judgment if the debtor applies for an instalment order to pay the debt. Whilst the instalment order is in place, and the debtor is abiding by it, you won’t be able to enforce your judgment in other ways (such as bankruptcy proceedings, garnishees or writs).
What is an Instalment Order?
A debtor may apply to the court to pay their judgment debt by instalments, instead of by one lump sum. This is known as an ‘instalment order’.
Although it may not be ideal to receive payment of your debt in smaller instalments, if the debtor is suffering financial hardship or is not able to pay the debt in full, an instalment order will be your best bet of getting paid.
If the debtor fails to abide by the instalment order, it ceases to have any effect, and you can continue to enforce the judgment in other ways. Or, if the debtor comes into a windfall or gains better employment at a later date, you can apply to the Court to vary or rescind the instalment order on this basis.
Can You Object to an Instalment Order?
Initially the debtor will typically apply to pay very small amounts by instalments, which may mean a significant period of time before you can recover your money from them in full. In this situation, if you think that the debtor can afford to pay more than they are claiming, you may wish to object to the instalment order and try to have it set aside or varied.
In order to be successful in obtaining an instalment order, a debtor will have to prove to the Court that that their financial circumstances are such that they cannot afford to pay the debt in full, and can only afford to pay the debt in instalments over a certain period.
To do this, they will have had to provide their financial details to the Court, such as their income and liabilities.
Nevertheless, although the financial hardship of the debtor is an important consideration in the Court’s decision to make the instalment order, the Court understand that the debtor’s financial circumstances should not be the only consideration. After all, you have a judgment against the debtor for a reason, and you should be entitled to the benefit of that judgment.
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How Do You Object to an Instalment Order?
You can object to an instalment order within 14 days of receiving notice that it has been made.
There are a number of grounds on which you may be able to object to the making of an Instalment Order, including:
- If the debtor’s financial position is such they can pay the debt immediately
- If it is obvious the debtor will not be able to comply with the instalment order
- If the time it would take to pay the debt by instalment is unreasonably long (for example, dependent on the specific circumstances, 12 to 24 months is usually considered to be a “reasonable time” to repay a debt)
- If there would be no real reduction of the debt because of the amount of interest that will accrue
- If you, as the Judgment Creditor, will suffer hardship if the debt is paid by instalments.
Once you file an objection, the Court will set a time and date for the matter to be heard and you will be able to state your reasons as to why the instalment order should not be made. The Court will consider your objections and weigh them up against the financial hardship that may be suffered by the debtor if the order is not made (such as the potential for bankruptcy).
Even if the Court does not dismiss the order completely, they may decide to vary it so that the debtor needs to make larger payments towards the debt to help address your objections.
Going to court is one of the most well-known means of resolving a legal dispute. However, there are other options available outside of court. These options are types of alternative dispute resolution. Each involves a different level of assistance from a third party, from facilitating discussion through to making enforceable decisions.
Why choose alternative dispute resolution?
The court system can be costly and time-consuming. Your matter will also be documented on the public record. While some matters inevitably end up going to trial, others have the potential to be resolved with much less hassle. Even if a trial has commenced, alternative dispute resolution can still be started. Below is an outline of some of the alternatives to court which fall under the umbrella of alternative dispute resolution (ADR).
In essence, mediation is an informal conflict resolution process brought before an independent, neutral third party. Mediation gives the parties the opportunity to discuss their issues, clear up misunderstandings, and find areas of agreement. The mediator will guide discussions, ask questions, and help facilitate agreements. Typically, however, they will have no authority to make a binding decision unless both parties agree to give the mediator that power.
Conciliation also involves a third party – the conciliator – however, they take a more active role in resolving the dispute. The conciliator can offer advice to the parties about how to solve the dispute, but the parties do not have to accept this.
In arbitration, each party presents their arguments and evidence to the third party – the arbitrator. The arbitrator then makes a determination that is binding and enforceable between the parties. It is a private and typically confidential determination of a dispute. Arbitration is similar in essence to court, as the parties are bound by the decision. However, arbitration is much less formal and expensive than court, and thus can provide more flexible solutions and a less intimidating process.
Expert Appraisal and Expert Determination
Due to the complex nature of some disputes, it can be helpful to have the assistance of an expert. In expert appraisal, an expert is chosen by the parties to investigate the issues. The expert provides advice to the parties about the facts, potential outcomes and ways of implementing them.
Expert determination is similar to arbitration, however the third party is an expert in the subject matter of the dispute. This can be beneficial when it comes to dealing with intricate and specialised disputes, such as family law or corporate law matters.
Early Neutral Evaluation (ENE)
ENE exists to resolve matters earlier than with the above forms of ADR. In ENE, each party presents their arguments and evidence to a third party who makes a determination based on the broad issues involved. They also present the most efficient way to resolve the dispute. The practitioner does not determine the outcome, but can help parties to come to an effective resolution.
To discuss your legal matter including the full spectrum of options available to you, please get in touch.
Negligence occurs when one party owes another party a duty of care, and fails to take reasonable care to avoid causing damage to that party. It applies to both individuals and businesses. There are several factors that need to be satisfied for an individual or a company to successfully sue for negligence. These are:
- Duty of care;
- Breach of duty;
- Causation; and
Establishing a Duty of Care
A duty of care exists due to the characteristics of the relationship between the parties. Some relationships fall into the ‘established duty category’ – this is a relationship where it is presumed that a duty of care exists. Examples include the relationship between a teacher and pupil, doctor and patient, or employer and employee.
In other instances, a duty of care relationship may exist due to the nature of the relationship between the parties, even if no presumed duty of care exists. For example, if one party has a substantial degree of control and/or reliance over the actions of another, a duty of care may exist. In this instance the party with greater control has a duty to take reasonable care with their actions so that no harm is caused to the reliant party.
Standard of Care and Breach of Duty
If one party owes a duty of care to another, it will be necessary to determine the scope of that duty – to what extent does this duty apply. This is considered to be “the standard of care”. Under the Civil Liability Act 2002 a professional is held to the reasonable standard of their fellow professionals. For example, a doctor or an accountant would be held to the reasonable standard of doctors or accountants and what is widely accepted as competent professional practice within those fields.
In other instances, the standard of care is what a ‘reasonable person’ would do to ensure the possibility of harm is minimized. If the standard of care is not met, then the person has acted in breach of their duty owed to the other person.
Damages and Causation
For a person to be able to sue in negligence, harm as a consequence of the other person’s actions must be shown. Harm caused by negligence could be physical and/or mental. The onus is on the plaintiff to prove harm and that the defendant’s breach of duty has caused the harm. If an intervening event has occurred (i.e. an event that has broken the chain of causation), negligence will not be found. To help determine whether causation is established, the court will consider whether the party would have suffered harm ‘but for’ the actions or omissions of the other party.
Recent negligence case – collapsed balcony
In the recent case of Libra Collaroy Pty Ltd v Bhide  NSWCA 196, the NSW Court of Appeal considered who was to blame for a collapsed balcony.
Bhides owned a residential property in Collaroy, and appointed Libra Collaroy Pty Limited to manage the property. The property was leased out to a tenant. In 2012, a group of school children, including the daughter of the tenant, were on the balcony of the property when it collapsed. There had been a long history of complaints regarding the state and structural integrity of the balcony from the tenant. The tenant sued the landlord (Bhides) and the managing agent (Libra Collaroy Pty Ltd) in the District Court of NSW. Bhides and Libra Collaroy Pty Ltd then issued cross claims against each other seeking indemnity from the other. At first instance, the District Court decided that Libra Collaroy Pty Ltd was 100% liable. The decision was appealed.
The Court of Appeal decided as follows:
- Judgment for the tenant against Bhides
- Judgment for Bhides against Libra Collaroy Pty Ltd.
We can gain the following from the Court of Appeal decision:
- That delegating to a managing agent will not form a defence to a claim for personal injury damages;
- That contractual indemnity may be excused where there is a contribution to the negligence of the other party (contributory negligence); and
- That a tenant who is on notice of a risk of harm may be found liable for negligence if the tenant could have taken steps to remove the risk.
As you can see from the Court of Appeal decision above, the law of negligence is not so straightforward and it is important that you seek legal advice from a competent litigation lawyer. If you believe someone has been negligent in their actions toward you or you are being sued for negligence, do not hesitate to contact one of our experience lawyers on 02 9963 9800 or via our contact form here. For more information, check out our blog here.
Can an employer intervene in an employee’s use of social media outside work?
A recent decision by the Fair Work Commission has shed some light on this question, showing that having a detailed workplace policy can provide better protection for your company from damaging posts made by employees. Further, the decision has shown that employees need to think carefully before they comment on social media channels online.
The recent decision of Waters v Mt Arthur Coal Pty Limited concerned a dispute between an employee, Mr Waters, and his employer, the Mt Arthur open cut coal mine in the Hunter Valley. In the lead up to Christmas 2017, the coal mine was considering whether it would operate on Christmas and Boxing Day due to safety concerns arising from low staff numbers. It was announced two days before Christmas that operations would continue over these days.
Following this decision, an Industrial Safety and Health Representative issued a direction to suspend mining operation over the Christmas period due to the reduced emergency evacuation capacity. Mt Arthur received this direction but decided not to comply with it, and considered the safety risk not to be a real concern.
Mr Waters was a health and safety representative at the mine, and after receiving the safety direction he posted a Facebook status saying ‘Xmas & Boxing day shifts are off for good.’ Mr Waters was not aware this status was incorrect, and assumed the mine would comply with the safety direction. When Mr Waters confirmed with other staff members that the status was incorrect, he deleted it.
Mt Arthur terminated Mr Waters’ employment for being in contravention of a range of their workplace policies including the ‘distribution of material that is likely to cause annoyance, inconvenience or needless anxiety to your colleagues’.
The Fair Work Commission found that the Facebook post was a valid reason for dismissal. They found that the post had a relevant connection to Mr Waters’ employment, was used to communicate operational matters with other employees and was likely to damage Mt Arthur’s interests in operating the mine. The post was ultimately found to be incompatible with Mr Waters’ obligations to comply with workplace policies.
The case provides a timely reminder for employees to be extremely careful with what they post on social media, especially if it relates to their work. It also highlights how important comprehensive workplace policies are for employers. However, employers must be conscious of identifying a connection between the social media post and employment before intervening with an employee’s use of social media use outside work hours.
If you would like to speak with one of our solicitors regarding social media and the workplace, please contact us on 9963 9800 or via our contact form.
A binding financial agreement – also commonly referred to as a ‘pre-nuptial agreement’ – is an agreement sets out the division of property and child custody agreements in the event of the breakdown of a relationship. These documents are legally binding and can be enforced by the courts, which allow for certainty, trust, and peace of mind in a relationship.
However, the High Court has made it clear in a recent case that it will not enforce any binding financial agreements as a consequence of unconscionable conduct, particularly when there is a significant power imbalance between the parties. Unconscionable conduct is defined to mean conduct which is so harsh that it goes against good conscience. A common instance is when an innocent party is subject to a special disadvantage which seriously affects the ability of the innocent party to make a judgment as to their own best interests.
What are Binding Financial Agreements?
Binding financial agreements are legally binding agreements that address what happens to a couple’s finances and property in the event that there is a break down in a marriage or de-facto relationship.
The Family Law Act 1975 is the relevant legislation which applies to binding financial agreements. Importantly, a binding financial agreement can protect assets including cash, property, superannuation and inheritances.
However, in order for a binding financial agreement to be binding on the parties’, it is prudent that each party obtain independent legal advice, and the binding financial agreement must contain a statement from a legal practitioner.
Recent Case: Thorne v Kennedy
A recent High Court case has demonstrated that if a binding financial agreement is entered into in circumstances of unconscionable conduct, the agreement will not be upheld.
Thorne v Kennedy involved a binding financial agreement between a wealthy Australian property developer and his ex-wife.
The couple met online in 2006 on a website for potential brides. At the time, Ms Thorne was 36 years old, living in the Middle East with no substantial assets. Mr Kennedy was 67 years old and had assets in the vicinity of $18 million – $24 million.
Ms Thorne moved to Australia. Then, ten days before their wedding Mr Kennedy took Ms Thorne to a solicitor to obtain advice about the terms of a binding financial agreement which was purported to be entered into between them. The lawyer advised Ms Thorne that the agreement was highly prejudiced against her, and advised her not to sign it. Mr Kennedy told Ms Thorne that if she did not sign the agreement then the wedding would not go ahead. Despite the lawyer’s ‘advice, Ms Thorne signed the agreement and the wedding continued.
The couple separated in 2011 and Ms Thorne was provided with what the High Court described as a ‘piteously small’ lump sum payment based on the terms of the binding financial agreement. After lengthy legal proceedings, the High Court ruled that Mr Kennedy had taken advantage of his ex-wife’s vulnerability to obtain an agreement which was ‘entirely inappropriate and wholly inadequate.’ The agreement was entered into as a result of undue influence, illegitimate pressure and unconscionable conduct – Ms Thorne was in a foreign country, with no support system, and was entirely reliant on Mr Kennedy for financial and emotional support. Mr Kennedy had also promised to help relocate Ms Thorne’s family to Australia following the marriage. As a result, the binding financial agreement was not enforceable and was subsequently set-aside.
Impact on Binding Financial Agreements in Australia
This ruling has been considered a landmark case in the interpretation of binding financial agreements in Australia. As a consequence of the agreement being set aside, the Federal Circuit Court allowed Ms Thorne to bring a property settlement claim against Mr Kennedy.
This case serves to reinforce that binding financial agreements are not cheap documents and therefore appropriate advice and caution must be taken when entering into these agreements.
If you would like more information on how we can assist you with your binding financial agreement or any other family law matters, do not hesitate to contact us on 9963 9800 or contact us via the form here.