Whilst each case is different there are often some common steps involved in a commercial dispute. This article explains some of the steps commonly encountered in disputes in NSW Courts.
- you will make an enquiry with a litigation lawyer;
- the lawyer will provide you with a cost agreement and ask you to sign it before legal advice will be provided;
- an initial conference will be arranged between you and the lawyer to discuss your matter and the issues at stake e.g. breaches of contract;
- you should locate all relevant documents (preferably chronologically) and make a list of the questions that you would like to ask your lawyer;
- your lawyer will meet with you at the initial conference to get a basic understanding of the matter and usually only preliminary advice will be given;
- the lawyer will provide you with a more extensive cost disclosure document and cost agreement now that the scope of the matter is clearer;
- your lawyer will provide you with further advice about the matter including options regarding alternative dispute resolution (and any genuine steps requirements) before the matter is escalated;
- if you are the plaintiff a letter of demand will be prepared at this stage and it will set out the nature of your grievance and will seek an appropriate response from the proposed defendant;
- if you are the defendant your lawyer will suggest a suitable response to any demands that have been made;
- it may be appropriate for the parties to explore without prejudice discussions to see if the matter can resolve without resort to the court;
- there could be some merit in exploring Calderbank type offers to motivate the other party to try and settle;
- if it is unlikely that the matter will resolve (or if there is urgency) serious consideration should be given to formally commencing proceedings in an appropriate court;
- your lawyer may draft or seek instructions from you for counsel to draft an originating document (which could be a statement of claim) assuming there are reasonable prospects of success (if it is a damages claim). In the event that your lawyer considers that there are no reasonable prospects for success on a damages claim then the lawyer may inform you of those views and say that it would be inappropriate to file court proceedings;
- after you pay to your lawyer sufficient fees to cover the filing costs (or prepare a cheque payable to the court in respect of the filing fee) the originating document will be filed;
- your lawyer will then arrange for the originating process to be served on the other party in accordance with the court rules and for an affidavit to be obtained proving that it has been validly served;
- at this point your lawyer may provide you with further advice about any requirements under the practice note(s) of the relevant court;
- it may be that at this point the defendant will either file a defence or decide not to file a defence (in which case default judgement should be considered);
- if a defence is filed your lawyer will provide you with further advice regarding the defence and the next steps that need to be taken including the need for a reply, the need for a cross claim, the need for any amendments and so on;
- usually at this stage the matter will be listed for a court mention or a directions hearing so that the matter can be case managed by the court. The court will be interested to know a number of things including whether the parties are willing to mediate the dispute;
- during the case management stage various matters will need to be attended to including the preparation of the evidence and service thereof. In some cases it will be necessary to seek documents from the other party which could be by way of notice to produce, subpoenae or in some cases discovery;
- before the matter proceeds to trial further consideration should be given to resolve the dispute without having a judge decide it and there may be merit in making a further round of without prejudice offers;
- if the matter does not resolve it will proceed to trial and your lawyer will take steps to brief a barrister and arrange for the appropriate witnesses to attend;
- the hearing of the matter will depend on the nature of the evidence and submissions made by the parties so that some cases are heard for a short period (half a day) whilst other matters could take longer (go for a number of days or longer);
- sometime after the matter is heard (it could be many months) the judge will hand down a decision which will include orders about legal costs;
- in the event that the judgement is not satisfied you may need further legal advice about how to enforce it (if you are the plaintiff) and such advice could relate to garnishee orders, writs for the levy of property, and potentially the need for a bankruptcy notice/statutory demand.
Talk to a Dispute Lawyer today!
* Disclaimer:- This publication contains general information which may not suit your particular needs or circumstances. It may be summarised and include generalisations. Details that may be important in your specific circumstances might not be included. Litigant strives to ensure that the information in this publication is accurate and up-to-date, but does not represent or guarantee that it is accurate, reliable, current, complete or suitable. You should independently evaluate and verify the accuracy, reliability, currency, completeness and suitability of the information, before you rely on it. The information in this publication is not legal or other professional advice. You should obtain independent legal or professional advice that is tailored to your particular circumstances if you have concerns. To the maximum extent permitted by law, Litigant excludes liability for any loss, however caused (including by negligence), relating to or arising directly or indirectly from using or relying on any content in this publication. Litigant asserts copyright over the content of this publication.