Dispute Resolution

What is litigation?

Litigation refers to the commencement of legal proceedings with the aim of resolving a disputed matter with assistance from a court. A civil court dispute generally arises when two or more parties are unable to resolve a matter concerning their respective legal rights and obligations. The nature and value of such matters can vary significantly and accordingly, different courts (and tribunals) have been established based on specific categories of disputes and the monetary value of a claim.

The following types of disputes are common matters that may find their way to the court room:

• contractual disputes;
• consumer claims;
• property co-ownership disputes;
• commercial and retail leasing disputes;
• partnership and shareholder disputes;
• debt recovery;
• defamation proceedings;
• intellectual property disputes;
• building and construction disputes;
• professional negligence claims;
• strata disputes;
• regulatory disputes;
• contested probate;
• family provision claims.

The parties to a civil dispute may be individuals, corporations, government bodies or other entities.

Basic terminology

Parties to a court dispute usually come across various unfamiliar terms. Although terminology can vary between different courts and jurisdictions, the following are typical of many proceedings.

Plaintiff

The party who commences legal proceedings which are generally based on the belief that the person or entity has been wronged and suffered loss as a result of the act or omission of another party.

Defendant

The party against whom the legal proceedings are commenced.

Remedy or Relief

The outcome sought by a litigant, should the matter be resolved in that party’s favour. A remedy or a relief may comprise monetary compensation for damages or loss suffered, an injunction which prevents a party from doing something, an award requiring the losing party to pay the other’s legal costs, or a combination of these. Other equitable / discretionary orders may be made such as for specific performance which is an order for a party to carry out its obligations under a contract.

Summons

or Statement of Claim –this document initiates court proceedings against the defendant. The summons or statement of claim must correctly identify the defendant, state the claim being made and the relevant law that has allegedly been breached, provide the particulars and circumstances leading to the alleged wrongdoing, and state the remedy sought.

Subpoena

A court order requiring a party (who is not a party to the proceedings) to provide certain documents relevant to the key issues in the proceeding or to attend the court as a witness in a case.

Alternative Dispute Resolution

Many disputes are resolved through alternative dispute resolution processes such as mediation, conciliation and negotiation. This is almost always preferable than commencing court proceedings, which should usually be a last resort.

Our approach is first to attempt to resolve a dispute through negotiation.  Only when this is not successful, will we prepare a case carefully for litigation. This will involve a comprehensive review of the facts and the evidence.

Going to Court

If you are involved in court proceedings, it is important to understand the relevant processes, the range of remedies that may be awarded, the likelihood of winning the case or successfully defending a matter, and the relevant cost implications.

A cause of action must be based on a breach of legislation or the common law which must be properly pleaded in a court document. Evidence may be provided by documents, statements, video or the like, to support the alleged breach and the strength of each parties’ evidence will be tested in the court room. Witnesses may be called to support your case or that of your opponent.

Court proceedings run to a strict timetable and litigation requires thorough preparation. Our litigation team will work closely with you so that you are aware of your options and properly prepared for your case.

If you need any assistance contact one of our lawyers at [email protected] or call 02 9963 9800 for a no-obligation discussion and for expert legal advice.

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