What Are Litigation Lawyers?

Do you want to know more?

Litigation Lawyers

Written by: Richard Pinkstone l Legal Team

As private citizens, we are all endowed with rights, duties and liabilities defined and recognised by our legal system which underpins the functionality of our society.  Every day we wake up to all sorts of legal interactions, mostly taken for granted: it could be satisfying an employment contract in providing services to an employer, buying a train ticket, complying with road safety rules when driving a car, ordering goods online and being a responsible member of the community.

For the most part, we observe and perform legal actions automatically as fundamental to orderly functioning.  We accept that laws are necessary for order and if things go wrong we expect an accepted procedure for fairly and independently judging a dispute.

As private citizens, we all have access to a legal system to enforce the law.  It is this access to taking a problem to Court by a citizen or company (rather than referring a criminal matter to the police) that we refer to as litigation.  The word “litigate” is derived from the Latin word “litigare” meaning in-strife and law-suit.  A lawsuit is pursuing a contested matter for a final resolution or remedy in the form of Court Orders to compel compliance.

From the outset, knowing about the complexities of litigation and not least of which are the significant costs, all sound advice is aimed at avoiding a contested dispute by way of negotiations and settlement (mediation) which requires experience in balancing the risks and uncertainty of pressing the matter before the Court and compromising on an outcome.

There is a famous phrase that says:

The only thing certain about the law are the costs.

A pragmatic or commercial approach is about achieving the best realistic outcome.  Although litigation may appear daunting, it is commonly the catalyst to resolving a dispute that would otherwise be ignored by the defending party.  Once proceedings are issued, it means the matter must run until settled with serious implications for all involved.  The other side has to weigh up the merits of defending the matter.

When Do I Need Litigation Legal Advice?

We generally represent business clients who may initiate legal proceedings in areas such as;

  • Debt recovery and insolvency between a creditor and a debtor,
  • Contract disputes (such as a falling out between shareholders or business partners),
  • Employment disputes between an employer and employees,
  • Lease disputes between a landlord and tenant; and
  • Disputed services agreements.

Other claims include:

  • Property disputes in real estate sales,
  • Building disputes,
  • Insurance claims for loss caused by negligent actions; and
  • Estate litigation over disputed Wills in respect to a claim for the inadequate provision by a family member(s).

In all these legal proceedings, the plaintiff will be seeking compensation for losses or damages arising from breaches of the defendant’s legal obligations and/or enforcement of the performance agreement as the parties intended.  This means that the justice they seek is to restore the parties to the position they would be in, had the breach of a legal obligation not occurred.

Legal Questions Around Jurisdiction

Once we have understood the nature of a dispute, we need to consider the jurisdiction.

There are many types of legal proceedings that must be brought before the appropriate Courts and in the correct jurisdictions.  Generally, the Magistrates Court of Victoria will hear matters with a jurisdictional limit to $100,00, the County Court above $100,000 and the Supreme Court above $200,000.

The Victorian Courts can hear most contractual and tortious matters whereas the Federal Courts hear employment disputes.

VCAT has a number of lists such as:

  • Retail and Commercial Leases List;
  • Building and Constructions List; and
  • Guardian and Administration List.

The process for filing an application depends on whether there is enabling legislation.  For example, an action by a company, under the Corporations Act, 2001 is commenced by Originating Motion with supporting affidavit whereas in other applications, such as a debt recovery proceeding in the Magistrates Court requires the filing of a Complaint and a Statement of Claim.

There are separate rules for each Court’s practices and procedures that must be strictly observed.

Next Steps, The Process + All The Legal Information

After the application is served the parties must comply with strict rules and timelines to get on the Court record and respond with the drawing up of and filing of pleadings.  The Court and VCAT will set out an initial hearing to understand the basic issues and set down orders being the steps that the parties must comply with until the matter is listed for trial.

Almost all matters are resolved before a final hearing before a judge and therefore it is critical to prepare carefully for the dispute from the outset.  The most basic issue other than the legal issues is the evidence being the facts that will be agreed (joined) or disputed.  Most cases are won or lost on the facts – as simple as that sounds – the facts drawn out are often not clear until the parties are well advanced in their proceedings.

A litigant is well advised to ensure they have expert reports to support that party’s submissions before they litigate disputes where the facts are open to interpretation.  Evidence may come into the Court by witness statements from witnesses who may be examined and cross-examined or by parties who depose to facts by affidavit.  Ultimately a Judge or VCAT Member has to be persuaded by evidence to accept that parties utility of the law for their sought outcome and costs if successful.

For example, a building contract may compromise an unsigned quote, terms and conditions separately available on a website or a separate email, numerous email exchanges identifying changes and variations such that figuring out what is in fact the contract is not simple and clear and attention must turn to the conduct of the parties as to their intention.  Litigation brings to light all of the imperfections of people often not protecting their interests as best they could before being locked into a commitment.

As litigation lawyers, we are required to identify to our clients whether there is a reasonable cause of action or defence, establish the onus of proof, or rebuttal of a legal presumption, considering the evidence and issues and the overall complexity and costs of conducting adversarial legal proceedings.

We have access to briefing Counsel at any level, if necessary, who are in the Courtroom specialists and are skilled at Court appearances and drafting more complex Court documents.  Complex matters can be a long term commitment.

Canny Legal + The Legal Answers You Need

Litigation may be unavoidable, particularly as a defendant.  A Court will make the orders the plaintiff seeks unless action is defended.  As a plaintiff, you will consider litigation where the loss and damage of a breach of contract or a negligent action justify the costs of the proceeding.  This question depends on the facts of each matter and case-by-case analysis.  Before a client comes to see us, they will usually have a strong view as to whether the claim is merited simply because none of us appreciates being wronged by an offending party and we have an emotional expectation that people play fair and comply with the rules or laws.

Canny Legal is well versed in all areas of litigation and alternative dispute resolution.  Our team understand that legal disputes are an unfortunate reality at one time or another and the key is to manage those with skill, sensitivity and efficiency.  Canny Legal will provide you with careful analysis of the facts and attention to detail, always with a view to maximising a case advantage whilst keeping costs to a minimum.  Our expert team have significant experience in working in the Court process and advising our clients from a commercial, practical and viable perspective of the legal proceedings.  Get in touch with our team to find out how we can help you through your legal battles.

Canny Legal Principal Solicitor Richard Pinkstone standing centre of the picture leaning to one side with his hands intertwined together, wearing a dark grey stripped suit with a white open colored shirt

Recent Posts

Sit + Stay Pet Services

Sit & Stay Pet Services Entrusting your furry four-legged friend with someone when you’re heading away overnight, engaging in training walks or one-on-one sessions or simply taking them for a...

Read More

Selling A Rental Property… That Was Your Home

Selling A Rental Property… Let’s Talk Capital Gains Tax Written by: Dale Knight l Accounting Team   So, you’ve decided to sell your rental property, but you used to live...

Read More

Entering Into Aged Care With Means Not Disclosed

Entering Into Aged Care Written by: Samantha Butcher l Advisory Team   Did you know that Centrelink and the Department of Veteran’s Affairs (DVA) use an aged care means test...

Read More

What Is A Shareholder’s Agreement + Do I Need One For My Business?

Legal Advice When It Comes To Shareholder’s Agreements? Written by: Richard Pinkstone l Legal Team   A shareholder’s agreement is a binding and legally enforceable contract encompassing the business objective...

Read More

What Does The NDIS Not Cover?

Manage Your NDIS By Understanding What The NDIS Doesn’t Cover? Written by: Anthea Taylor l NDIS Plan Management Team   As NDIS Plan Managers we are often asked by our...

Read More

2022-23 Federal Budget Breakdown

Your 2022-23 Federal Budget Breakdown As the post-pandemic economic recovery continues to take shape, Australia Federal Treasurer Josh Frydenberg has handed down the 2022-23 Federal Budget   Among the proposed...

Read More