Litigation & Dispute Resolution
This section gives an overview of what happens in a court hearing, including information on evidence, procedures, costs and enforcement.
We have found that if a client has an understanding of what must be done in the preparation of their case, we are better able to present the case and the client is better able to understand the court system and make informed decisions.
Our aim is to obtain the best result for you in the most efficient way. Set out below is a brief description of a case brought in a Local court (for a contract/debt recovery matter).
Dispute Resolution and Business
Business needs practical solutions to commercial disputes. It is essential you know exactly where you stand and your chances of being successful in any dispute.
Our main aim is to keep you out of court. We can provide quick legal advice to assess your situation. Expert negotiation early in your case can save you time and money. Immediate action and collection of evidence is critical.
Our solicitors have expertise in many areas of litigation including:
- Contract and other commercial disputes.
- Disputes with suppliers or competitors.
- Intellectual property including copyright and trademarks.
- Trade Practices matters including Restraint of Trade, Misleading and Deceptive Conduct and Consumer Protection.
- Negligence claims.
- Debt Recovery – cost efficient, speedy, successful results.
Court cases are won or lost on evidence. A plaintiff (the person suing) must prove their case with evidence. There are rules of evidence which determine what material (oral statements, documents etc) may be used to present their case.
For example, in what appears to be a simple debt recovery the plaintiff must prove the exact terms of the contract by the parties who actually made the contract. It is not enough to say “the defendant agreed to pay me”. It is necessary to spell out the terms of the contract with supporting evidence. For example, if you are relying on an oral contract then it is necessary to provide details of any relevant conversation as follows:
I said …. They said …. I then said …. They said ….
The people who made the contract, (ie: did the talking) must generally be present to give evidence that the contract, as agreed, was not performed (evidence of what was not done) and how the amount of the claim (quantum) is made up (with evidence).
Before commencing any action, it is necessary to have:
- any and all written evidence, letters, faxes and notes relating to the formation of the contract;
- statements from all witnesses or parties giving verbatim accounts of exactly what was said;
- documentary evidence of the loss or damage suffered.
You might say “that’s easy”, but this is not always the case. The plaintiff bears the “onus of proof” and must prove with evidence, each element of their claim on the balance of probabilities (i.e., by showing there is a greater than fifty per cent chance that what is claimed is correct).
Statement of Claim
Once the above basic information is available, the solicitor can prepare the document to commence the court proceedings (a statement of claim). A statement of claim must state the “cause of action” i.e., you must give reasons why you think you are entitled to recover money from the other party and give details. The statement of claim is drafted, typed and taken with copies to be filed in court. A filing fee is paid to the court and the court issues the statement of claim.
It is then necessary to have the statement of claim served on (ie handed to) the defendant or defendants (those against whom a claim is made). The process server endeavours to serve the defendant with the statement of claim. This might take several weeks if the defendant is difficult to locate or identify. Sometimes if the defendant is difficult to serve, it is possible to make an application to the court (more affidavits and an application) to obtain substituted service, i.e., a court order that you may serve the statement of claim on relatives, etc, of the defendant.
The defendant has a certain number of days to file a defence (depending on the type of statement of claim). If they are represented by legal advisers, they will no doubt send a “request for further and better particulars”. This is usually a page of questions requesting specific details. Usually, it is reasonable to request these details. Once these particulars are answered the defendant must put on a defence. The defendant does this by filing in court a document setting out the reasons they do not regard themselves as liable to pay the amount claimed.
The court processes the defence and posts a copy of it to the solicitor for the plaintiff with a Notice of Call Over.
The Notice of Call Over sets out a date for the plaintiff’s representative and the defendant’s representative to attend before the court. It depends very much on which court proceedings are convened in as to when that will occur.
On the appointed, day the parties’ representatives appear in court. The parties give details of the nature of the case, the number of witnesses and the estimated length of hearing. A date is then set for hearing before a magistrate or it is referred to an arbitrator who will set a date for an arbitration hearing. The process can take a couple of hours depending on how many cases are in the court list and where your matter is in that list.
Hearing or Arbitration
A case may either be Arbitrated or heard by a Magistrate.
The Arbitrator writes to the parties following referral by the court to state a date for arbitration. After a date has been set for arbitration, it is normal to try to reduce the issues which will be argued in court. Admissions can be obtained for certain facts and documents which are not in issue. This is done by the preparation of two documents known as “Notice to Admit Facts” and “Notice to Admit Authenticity of Documents.”
If the matter is set down for hearing before a Magistrate, the court will usually order that each party arrange preparation of written statements of each of their respective witnesses. The statements are to be served on the other party prior to the hearing.
Witnesses can be subpoenaed to attend court on the day. A Subpoena is a court Order compelling a person to attend court as a witness. The Solicitor must arrange for personal service of the subpoena and provision of “conduct money” to the witness. The conduct money must be sufficient for the witness to get to and from court, with an allowance for a meal. Fees for loss of wages may also be payable to the witness.
The above is a very rough outline of very simple civil case. The court sets rules as to how cases must be dealt with. The rules in practice tend to favour the defendant and give them every opportunity to defend the case, with the result that they tend to prolong a case. They can seek to confess the whole claim or part of it and offer to pay it by very small instalments. They can seek adjournments from time to time.
What this amounts to is: “don’t necessarily equate justice with the law.” Don’t think because you regard your case as just, you should win. Don’t think that morally you should win, therefore you will. The law does not work that way. The rules of court and the rules of evidence do not always permit justice. Evidence is what your case is about, without evidence in a proper form you will fail.
We hope the above is not frightening, it is not meant to be frightening but it is meant to give you a concept of what litigation is all about.
Costs are a very relevant consideration in a court case and often dictate the tactics which you will use. Remember that our aim is to bring your case to a speedy and successful conclusion as soon as possible without unnecessary and wasteful costs.
Usually the unsuccessful party is ordered to pay the costs of the successful party. This means that the loser must reimburse the winner’s party/party costs. Party/party costs are those costs “necessary” to win a case. Necessary has a special meaning. It means “necessary with hindsight”. If you obtain a statement from 3 witnesses to an accident but for any reason only use the statement from one witness, you may not be allowed the cost of obtaining statements and subpoenaing the witnesses you did not use.
A solicitor must prepare a case to answer all the arguments that the defendant might put up, but if the defendant doesn’t put the arguments then the plaintiff cannot be allowed the costs of preparing to answer those arguments.
Enforcement of a Judgement Debt
A creditor currently has twelve years to enforce payment of a judgment debt. The methods of enforcement are as follows:
- Sale of Personal Property of the Debtor
- Sale of Land of the Debtor
- Attachment of Debts Due or Accruing to Debtor
- Attachment of the Debtor’s Bank Accounts
- Attachment of One Payment of Wages or Salary or the Continuous Attachment of Wages or Salary
- Bankruptcy or Winding Up
The most effective method of enforcement referred to above will usually depend upon the financial circumstances of the debtor, and whether the debtor and/or their assets can be found.
Stay of Proceedings
The court has power to stay the enforcement of a judgment debt. Usually such a stay arises as a result of the application of a debtor to pay the outstanding judgment debt by way of instalments. If the court subsequently makes instalment orders pursuant to such application, then a stay is granted and will continue to operate unless there is default by the debtor in compliance with the instalment arrangements.
Recovery of Interest on Enforcement
Interest is payable at the court rate of interest upon the balance of the judgment debt that remains unpaid from time to time. Interest shall run from the date when the judgment comes into effect until the date of final payment.
Costs of Debt Recovery
The costs of debt recovery depend on how quickly the problem debt is recovered and to a certain extent, is subject to the method of enforcement chosen by the creditor. In some circumstances, the extent of costs can depend on how evasive or “court wise” the debtor is in dealing with your debt.
We hope the above has given you some insight in the preparation of a court case for hearing. It is a sketchy outline of a simple case. Always proceed on the basis that the defendant will defend and you will have to prove every aspect of your case. To do otherwise is to be foolhardy and risks losing on a technicality.