Alternative dispute resolution

Your interests will usually be better served in terms of money, time, uncertainty and stress if you are able to avoid Court action by reaching a negotiated resolution. Informal arrangements are often used to reach an outcome between the parties. These include the exchange of letters setting out the parties’ requirements and main objections and by holding a without prejudice conference between the parties.
Certain agreements such as construction and insurance contracts set out a particular or initial method for dispute resolution such as arbitration. It is essential that the parties record their settlement when a compromise is reached and that the agreement comprehensively incorporates all relevant issues between the parties.

What to expect in litigation

Given the number of various interest holders and stakeholders, litigation is often difficult to control and predict. In general, after demands, advice and any negotiation have played out between the parties without a final resolution of the dispute, a Court proceeding will be issued. Usually proceedings are commenced by filling a Statement of Claim and serving it on the other party (the defendant). The Statement of Claim sets out details of the dispute and the remedy sought by the plaintiff. Defendants usually have between 10 and 21 days to respond by preparing an Appearance and/or Defence, to provide details of their Defence and consider whether to make any Counterclaim. Our Commercial Litigation Lawyers in Melbourne can guide you through this entire process.

STRICT TIME LIMITS APPLY.

It is essential that defendants consider and get advice on any Court or Tribunal Claim as soon as it is received, particularly in order to avoid a judgment in default. Once a Defence is filed, the parties will be obliged to perform pre-trial steps which help to clarify the parties’ respective arguments and explore the possibility of settlement. The following pre-trial steps are common:

• Further and Better Particulars may be requested by a party and ordered by the Court for clarifying issues in the other party’s Statement of Claim or Defence.
• Discovery usually involves the parties preparing and exchanging an Affidavit of Documents containing documents relevant to the proceeding and then either inspecting or swapping copies of the documents between the parties’ solicitors.
• Mediation or Pre-Hearing Conference is usually ordered by Courts before a date is set for trial. The parties and their solicitors are required to meet face to face before an independent person, usually an officer of the Court or one of our Commercial Litigation Lawyers in Melbourne would be appropriate.
• Directions Hearings are often required by the court to set timetables for the completion of various steps, to ensure compliance with the timetables and with the Rules of the Court and to deal with any pre-trial issues.

The Court may require the parties to obtain expert evidence before trial in order to clarify complex issues in dispute. Alternatively, the parties may tender expert reports across a range of topics, and examine expert witnesses, at trial. Parties and non-parties may be served with a subpoena or summons requiring them to attend and give evidence at a trial or to provide specified documents to the Court before a hearing. Witnesses will be required to attend if they receive at least minimum notice and money for expenses when served with a summons.
The vast majority of matters are resolved or settle before trial and parties can often request that the Court makes orders by consent. If a matter does make it to the Hearing stage it is typically heard by a Judge alone. Usually barristers are briefed to prepare for, and represent the parties at, trial. Generally the unsuccessful party may be ordered to pay the successful party’s costs of the whole proceeding. An unsuccessful party can seek permission to appeal an outcome, however the original decision can usually only be successfully appealed if the trial judge has made an error in his interpretation of the Law. Litigation can last several months or several years and generally simpler matters for smaller amounts may be run more quickly and efficiently.

Contact our Commercial Litigation Lawyers in Melbourne for further information.