What is Litigation?

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What Is Litigation?

Written by: Richard Pinkstone l Legal Team

 

What Is A Litigation Lawyer?

Successful litigation combines tenacity with experience and devotion to your dispute.  Legal disputes are an unfortunate reality at one time or another, but the key to managing those disputes is with skill, sensitivity and efficiency.

Put simply, a litigation lawyer is someone who will both represent you and protect your interests when there is a legal dispute, whether that be in a commercial, civil or criminal matter.

What Are The Litigation Classifications?

When it comes to litigation and the classifications that they are put into, the types of disputes that are dealt with by the Courts can broadly be divided into either Civil Litigation or Criminal Litigation.

Civil Litigation

If we have a legal problem, we are parties determine the evidence and the issues to be fought over in accordance with procedural rules.  This is what we call civil litigation under a trial-based adversarial system conducted through the Courts or less formally through Tribunals such as VCAT and less formal forums such as the Building Appeals Board.

This legal system concerns private rights which are individually pursued.  The parties to civil litigation are responsible for the investigation and the production of evidence to be put before a Court in a format that complies with evidentiary rules from which the Court makes its decision based on the information before it.

Parties can be self-represented or they can engage a professional lawyer to act on their behalf.  A party could be an individual but is often a company that is an entity capable of suing or being sued.

Criminal Litigation

Criminal laws are punitive and generally involve the prosecution of offences and charges on behalf of the Crown or State, representing the public against the individual.

We are familiar with a codefined set of behaviours that are prohibited under the Crimes Act, which may enable the criminal justice system which like civil litigation is also a trial (which can be before a fact-finding jury) based adversarial system to find a defendant guilty.  Again, criminal procedure rules and rules of evidence regulate the process in which the defendant individual fights for a right not to be punished, fined or imprisoned.

Criminal defendant litigation is a specialised practice area in rebutting the prosecution’s onus of proof being the elements of the crime.

What Disputes and Cases Can Be Solved?

There are many disputes and cases that can be solved through a number of different avenues.  We have detailed some of the most common litigation disputes that we see today and deal with in-house from VCAT Disputes to Elder Law Disputes as well as Personal Injury and Tax.  We have gone into detail on the most common disputes below;

VCAT Disputes

VCAT is vested with wide-ranging jurisdiction or Case Types and it can hear matters ranging from Goods and Services disputes (often regarding faulty goods or failures by a business to honour a warranty), retail lease disputes, building and construction disputes and guardian and administrator disputes.

There are other specialists lists.  Although the procedural rules are more relaxed than the formal Courts, the VCAT Act sets out the procedural rules and proceedings can be run in a similar way to the Courts, so it is up to the parties to establish and prove their case.

Elder Law Disputes

As we age, we may find we become more dependent on the trust invested in our children or other relatives.

In the absence of a properly drawn Enduring Power of Attorney that is being properly administered, an interested party may apply to VCAT for the appointment of a guardian and administer.  This is a powerful decision as it takes all financial and legal decision-making away from the represented person, sometimes when that person does not want to lose their independence.

VCAT takes a highly considered approach when making a finding of whether a person has a disability under the framework of the Guardian and Administration Act.  It is a protective jurisdiction and can put into focus bitter power struggles between family members that wish to align with the person which is often the parent.  People may develop dementia, however other forms of disability are harder to determine.  They include not understanding complex financial decisions when asked to sign signatures and that could include mortgages.  Or it could be the absolute trust a parent has in their child, where the will of the child unduly influences the parents’ decision in his or her favour over a rival sibling.

We recommend that a carefully considered Enduring Power of Attorney be created before capacity issues arise as it could save a family the grief of protracted litigation about the person’s capacity and the making of an Administration Order appointing an Administrator.  This can be extremely controversial for family members if an independent appointee makes decisions for the represented person that the rest of the family oppose, such as selling assets and issuing legal proceedings over any property transfers or restructures that are deemed conflicted and not in the person’s interest.

Shareholder Disputes

We often find that company shareholdings are set on the assumption that the partners will agree forever.  However, in the absence of a shareholder’s agreement, the shareholders will be stuck in a ‘Mexican Standoff’ until a Court finds that one partner is required to sell to the other or the business is put on the market.

Shareholder disputes are litigated in the Supreme Court’s commercial lists and the stakes are generally high.  These disputes can bring into focus claims of oppressive conduct (of a majority interest) to a refusal to accept a market valuation on the transfer of the shares.

We can assist in the resolution of a dispute by preparing the transfer of the shares.  We can assist in the resolution of a dispute by preparing the transfer of security documents which involves company resolutions, a transfer of shares, resignation of the retiring officeholder and the payment for the business with any adjustment for stocktake and a true-up.

Building Appeals Tribunal

Building Disputes are generally a particular category of contract dispute that is regulated by the Building Act, the Domestic Building Contracts Act and Consumer Law.

If there is a legal problem one of the fundamental issues goes to the question of liability as the issue involves cross liability or joinder of several building practitioners, from the builder to the subcontractors, to the architect, engineer and building surveyor.  We find that in owner-builder disputes as with all legal cases, the litigant is responsible for the evidence and a soundly prepared expert report is critical and should be obtained from the outset.  We also find that the question of the contract can be problematic where the original quote or contract has been varied by numerous emails and other correspondence.

We recommend that a properly drawn contract based on clear plans and specifications goes a long way to avoid the uncertainty of what was agreed to and varied.

Personal Injury + Tax

A claim for a tort is similar to any other civil litigation except that the measure of damages is assessed on a different basis and is intended to cover the reasonably foreseeable loss.  As an example, we know of a firm that had a case of termite building inspection failing to report on previous termite treatments and the loss was the costs of replacing the home.  Most negligence is covered at some point by an insurer that will have an impact on the final outcome.

Failing settlement, as with all litigation it is for the plaintiff to establish the wrong and prove loss based on often complex factual issues and expert opinion evidence.

Insolvency Litigation

It is an accepted reality that a proportion of traders and companies running businesses will fail at any given time fail and be unable to pay their debts.

If a Court makes orders that the defendant pays the claim, the defendant may not have the resources to do so.  A creditor then needs to consider how to enforce a monetary order.  If the debtor owns the property, the creditor/plaintiff can serve a bankruptcy notice which is not satisfied ultimately leading to the appointment of a trustee in bankruptcy.

A bankrupt’s property is vested in the trustee in bankruptcy is vested with the end enjoys powers under the Bankruptcy Act that facilitate the payment to the creditor’s money, including the power of sale.  Likewise, a company may be wound up and assets sold to satisfy a judgement debt.  If the debtor earns an income, a creditor can summons the debtor to the Court or an examination before the Magistrate as to what assets and income are available to satisfy the debt, and that may result in an ordered payment plan.

Alternatively, a debtor’s employer may be garnished to divert part of the debtor’s wages to the creditor.  A default judgement will result in an adverse credit agency rating that will impact the ability to take out a loan for a period of seven years.

Debt Recovery

The hierarchy of the Courts generally determines where a commercial dispute will be heard based on the monetary limits.

The Magistrates Court, for example, has a monetary limit of $100,000 for claims and therefore this Court hears the majority of the civil disputes, such as debt recovery which is a very common action in business as debtors either cannot pay their debts or refuse to for various reasons.

If we are acting for the creditor, we will prepare an initial application called a Complaint with a Statement of Claim attached if a letter of demand for the payment of the debt is ignored.  The claim will set out the pleadings as allegations based on facts.  Often a claim will cover a contract for services, the carrying out of those services and an issue of an invoice.  If the debtor files a defence the defendant will need to respond to each allegation as either an admission, a non-admission or a denial which must have a proper basis in fact.  After the claim and the defence are served, the parties can determine what issues are common or admitted and what issues are joined or are to be determined.  A defendant can also file a counterclaim against the plaintiff or a cross-claim against a third party in the same proceedings.

One of the most important processes in the litigation process is the discovery of all relevant documents.  This is where most cases are weighted in prospects as the evidence or facts determine a case and litigants often overlook or are unaware of the records that impact the success or otherwise of a case.

The Courts will order mediation to attempt to resolve disputes before the parties incur significant costs of preparing for trial.  By this time the parties mediate the parties usually have all of the evidence and the legal submissions worked out and they can be tested before a professional mediator.

How Long Does Litigation Take?

The question depends on whether the parties can settle or not, and what the Court backlog is at any given time.  It can take years.  Less complex matters are usually resolved in months.  The progress of the steps in the litigation process is determined by a timeline of agreed orders, which are usually adjourned, vacated or extended out to meet the realistic time constraints of the parties.

Part of the accepted Court process is for the parties to resolve their issues without litigation mostly by mediation or offers of compromise.  These offers can become tools in managing the risk and the uncertainty as the dispute reverts to an analysis of each party’s respective commercial offers’ which may protect them on a question of costs if the other side doesn’t accept it.

In practice, after the issues and facts have been ventilated, the tail end of the matter is a commercial settlement which factors into the assessment of the costs of litigating the matter to trial.

How To Avoid Litigation

Commercially, the opposite of litigation is carefully considered and prepared commercial agreements.

The strength of the agreement which ought to consider all practicalities and contingencies is the safest way of avoiding litigation.  Many people leave agreements, arrangements and understandings to chance and after an eventuality, the goal posts have changed and without a predetermined agreement the Court decisions through the litigation process, which in itself is uncertain.  Each person therefore should be a strategist and anticipate both positive and negative eventualities from a litigious point of view.

How Canny Group Can Help With Your Litigation Needs

Canny Legal has experience in commercial and litigation law.

We can assist in the avoidance of litigation by preparing agreements to safeguard risk or predetermine a resolution process but if ultimately the issue requires a Court to intervene we are well versed in the adversarial process.  We can prepare the appropriate applications (pleadings) and initiate proceedings to move on an issue whilst the iron is hot.  We have to take instructions on the strategies and ultimate objections.  We are guided by commerciality and take a pragmatic view and the same principles apply in a defensive case.

There are common themes in civil litigation which arise from each party having the responsibility to conduct their best case, their best evidence and do their best to convince a Court against any prevailing rebuttals or defence that the claim is made out and the Court is judiciously resolving the dispute in our client’s favour.

Get in touch with our team to have a chat about all of your litigation needs!

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

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