Commercial Litigation Melbourne
If you are unable to settle a dispute outside of court, through alternative dispute resolution and have gone through the steps in our commercial litigation article, you may need to commence court proceedings against the other party/s. Litigation is a complex process, and we are here to guide you through every step of Commercial Litigation Melbourne procedure as it applies here in Melbourne. The following guide includes some relevant information to consider before commencing court proceedings.
Preparing your case
Speak to your solicitor about the dispute, being sure to inform them of all the relevant details. After conducting the initial interview, your lawyer will be able to provide a preliminary outline of your case and how best to proceed with it.
There are two main factors which your lawyer will need to consider before commencing litigation. It is up to you to provide the relevant information to your lawyer so that they can determine the following:
1. Cause of Action – Refers to the legal ramifications of your situation and the information you have provided in establishing a case within the existing legal framework.
2. Appropriate Jurisdiction – A court’s jurisdiction is the authority of the court to hear and rule on a given matter. Different courts in different jurisdictions are able to hear different types of cases and hand down different judgements. There are also different monetary constraints that apply to different courts and different jurisdictions.
Each court is governed by rules which dictate how and why a case can be heard. Different types of proceedings may need to follow different types of procedures. Your lawyer can inform you of the relevant way of launching your case in court.
Generally, the court will require a statement of claim to be made by the party commencing proceedings, as well as a statement of defence issued by the defending party/s.
Statement of claim
This is a document required to commence legal proceedings in most civil jurisdictions. Some matters, such as a simple debt collection or damages claim, may require a statement of liquidated claim, which is used in cases where a known amount is being asked for by the party commencing proceedings. Your lawyer will be able to inform you of the document required to launch your case, and assist you in preparing the required information.
Once the statement of claim, or other originating process, has been submitted to the court, the court will announce a time-frame during which the defendant will have to carry out certain steps. In many jurisdictions, failure to perform these steps results in the case being judged in the plaintiffs favour by default.
Case management systems are designed to reduce the amount of time spent on court proceedings. General features of case management procedure include:
• Proceedings will not commence until parties are able to meet the court’s timetable requirements, including constraints in when the hearing and preparation can occur.
• Certain information and documents must be made available to the opposing party before proceedings can commence. This may be a statement of claim, statement of defence, or other document as required by the relevant jurisdiction.
• Courts always prefer disputing parties to settle as many matters outside of court as they can, and will recommend alternative dispute resolution methods such as mediation and arbitration. These should be attempted where possible, even if only for certain parts of your claim, as the court will look favourably upon this as a means of reducing the amount of time spent on your proceedings.
• Extensions and adjournments are only granted in ‘exceptional circumstances’, your lawyer will be able to inform you where and when adjournments or extensions may be granted.
Offers of Compromise / Settlements
Parties to legal proceedings are always encouraged to settle their dispute outside of court where possible, whether through informal negotiation or formal dispute resolution channels. As a result, courts have developed procedures that concern offers of compromise.
These rules were developed to facilitate the out of court settlement of as many matters as possible. They function to permit the parties to make a formal offer of compromise, which could resolve the case before the hearing. If not, the court will take into account a formal offer of compromise when deciding on who will pay what costs, if one is made.
This is important to consider if you are planning on litigating, as failing to accept an offer that falls within a certain range of the amount handed down at a hearing will result in the court delivering a special costs order that favours whoever made the offer of compromise.
These are applications made to the court before the hearing itself has taken place. A party is required to submit a notice of motion, which is then served to the affected parties during the hearing. These are supported by affidavits, which are statements of evidence made in support of such a motion that are sworn before a justice of the piece or solicitor.
Particulars are a type of interlocutory application made by a party seeking specific information regarding what has appeared in the statement of claim or statement of defence, or the pleading document submitted by the other party. An application for the provision of particulars should be made when the required information cannot be obtained through informal means, such as by asking the other party or their solicitor to supply the relevant details.
This is the process of examining documents that are held by the other party which may be relevant to the issue that has instigated proceedings. An application of discovery can be made to the court which would allow you to inspect certain documents held by the other party, where the court believes that you are entitled to do so. Certain kinds of documents, such as those protected by legal or professional privilege, cannot be accessed through a discover order. Protected documents include those that were brought into existence for the purposes of giving or receiving legal advice, or for specific use in litigation proceedings.
LGM Advisors is a leading commercial litigation Melbourne professional law firm, experts in commercial law and dispute resoltution. LGM Advisors have the skills, experience and expertise to ensure that you and your dispute is consulted upon with the utmost professionalism. Contact LGM Advisors today on (03) 9832 0608 or by email at firstname.lastname@example.org.
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