Commencing legal proceedings, you should always consider why you are litigating in the first place, and whether that is the right choice.

However, before we address that issue, we explore what exactly is litigation in the Australian context.

Some Australian legal academia consider civil procedure as ‘the process of resolving disputes between individual parties using the system of state courts,’ or the ‘process for the resolution of civil disputes.’[1] For example, if a civil dispute arises, this may be an argument concerning loans, or corporate entities battling it out with million-dollar claims. In short, civil disputes are diverse and far-ranging.

So, if proceedings begin, where does the journey start?

The answer is that, depending on the claim, proceedings may start in either a State Court or Federal Court including:

As a matter of practicality,  areas commonly disputed in civil litigation include:

  • contract law;
  • property law;
  • commercial law;
  • employment law;
  • planning law; and
  • construction law.

While some consider civil litigation as an effective tool to ‘have your day in court,’ the days of fierce adversarial advocacy have diminished since the introduction of the Civil Procedure Act 2010 (VIC). [2] This is a view similarly shared by a Victorian Supreme Court of Appeal decision in A Team Diamond v Main Road Property Group Pty Ltd [2009] VSCA 208. The Court noted in paragraph [15] that:

There is significant public interest in the timely resolution of dispute and most efficient utilization of scarce court resources…. Because of the complexity and increased length of litigation, the obligation which rests upon legal practitioners to give courts such assistance has become increasingly important.’[3]

Before commencing legal proceedings, here are our four tips that you should consider before taking the dive.

  1. Are you taking Genuine Steps to resolve?

Considering what steps have been taken, and whether they have been genuine in resolving a dispute, are important considerations as Courts may frown upon conduct that are obstructionist or delaying.

  • Appropriate Dispute Resolution

Thankfully, most disputes can be genuinely resolved outside Court through other methods. Previously, this was considered ‘alternative dispute resolution’ however, today, there is now growing acceptance of the term accepted as, ‘appropriate dispute resolution.’ [4]

They may include:

  • Arbitration;[5]
  • Mediation;[6]
  • Negotiation;[7]
  • Expert Determination; [8]
  • Expert Appraisal;[9] or
  • Early Neutral Evaluation.[10] .                            

Internal Dispute Resolution

Also consider resolving the dispute internally.

For example, questions to ask may include:

Does the organisation have a dispute resolution process?

If so, can you progress your matter through that internal process?

By asking these questions, you may avoid unnecessary legal costs and maintain a positive relationship between yourself and the other party in dispute.

Make sure when preparing for internal dispute resolution, records of correspondence, events, and negotiations are documented and properly ordered. This will assist when engaging in a conference or assist your lawyer if you decide to institute proceedings.

 

  1. Have you considered Costs?

Gerard Brennan, Chief Justice of the High Court, once said:

‘The courts are overburdened, litigation is financially beyond the reach of practically everybody but the affluent, the corporate or the legally aided litigants…’ [11]

It is commonly understood that litigation can prove a costly exercise. This is because it is an adversarial process that involves substantial legal work.

While Courts have power to award cost orders, this is discretionary.

Generally, if successful in a proceeding, you may have orders for your legal costs. However, winning your case does entail all your legal costs are awarded as there is often a difference between actual legal costs and costs awarded. [12]

 

  1. Are your Relationships at stake?

Relationships are vital considerations to be taken into before proceeding with litigation. Civil disputes are  often emotional. In some circumstances, commencing legal action is a reactive response to emotions. Because of this, civil litigation generally does not foster relationships.

When instituting proceedings, you should consider your relationship with the person or organisation.

For example, some questions you may ask:

Is the other party a supplier that you wish to continue trading with?

Is the other party a family member or friend?

Do you want to maintain a commercial or personal relationship?

If maintaining personal or commercial relationship with the other persons are important considerations, then litigation may not be the preferred choice because of the significant emotional and monetary costs.

 

  1. What is your Purpose?

Consider the purpose for why you are commencing litigation. In White Industries v Flower & Hart [1998] FCA 806, Goldberg J considered the following:

‘The concept of ‘abuse of process’ in this context involves a party using court proceedings and procedures for a purpose unrelated to the objectives which the Court process is designed to achieve.’[13]

While motivation may assist in interpreting the reason for litigation, it is ultimately, an analysis of the purpose that is decisive. In the same decision, it was noted that:

‘It is important to distinguish between the motive for a proceeding and the purpose of the proceeding because it is the purpose of the proceeding rather than the motivation for which establishes the abuse where that purpose is to obtain relief not within the scope of the remedy available within the proceedings….’ [14]

Ensuring genuine attempts to resolve the dispute are key considerations. The Civil Procedure Act 2010 (VIC) outlines overarching obligations applied to parties in a proceeding.[15]

If you institute a proceeding, you, the person proceeding with the application, are also required to sign an overarching obligations certificate certifying that you have understood those obligations being: [16]

  • Paramount duty to the Court to further the administration of justice;[17]
  • To act honestly;[18]
  • To claim on a proper basis;[19]
  • Only to take steps to resolve the dispute;[20]
  • To cooperate;[21]
  • Not to engage in misleading or deceptive conduct;[22]
  • To use reasonable endeavours to resolve the dispute;[23]
  • To narrow the issues in dispute;[24]
  • To ensure costs are reasonable and proper;[25]
  • To minimize delay;[26] and
  • To disclose the existence of [27]

Remember, it is important to always consider the purpose for why you commenced litigation. After you determine whether you decide to engage a lawyer make sure your lawyer helps you through the process, for more information about your rights when working with your lawyer can be found here

You cal also check your rights and obligation if you decide to engage a lawyer here. 

 

Conclusion

Always consider if there are other alternative means to resolve dispute.

Can you negotiate or settle with the other party?

Do you have important commercial relationships that should be maintained?

Can you achieve a positive result other than through instituting proceedings?

While you may have your ‘day in court’ and achieve a vindication of your rights, ensure to remind yourself, why you are instituting proceedings, and the end that you seek to achieve. As former Chief Justice of the Victorian Supreme Court of Appeal, Marilyn Warren, noted:

Civil procedure reforms in Victoria and federally create obligations on all parties to litigation to adhere to a set of overarching purposes that aim to ensure the just, timely and efficient resolution of disputes.’ [28]

 

If you have any concerns or queries concerning commencing litigation or engaging in dispute resolution, then AMK Law may be able to help in your litigation or dispute resolution matter. 

 

Important disclaimer: The material contained in this publication is of a general nature only and it is not, nor is intended to be, legal advice. This publication is based on the law as it was prior to the date of you reading of it. If you wish to take any action based on the content of this publication, we recommend that you seek professional legal advice.

 

 

[1] Stephen Colbran, Peta Spender, Roger Douglas, Sheryl Jackson, Civil Procedure: Commentary and Materials (LexisNexis Butterworths Australia, 6th Edition, 2015) 2; Claudio Bozzi, Principles of Civil Procedure in Victoria (Thomson Reuters, 1st Edition, 2016) 1.

[2] Christine Parker, ‘A Critical Morality for Lawyers: our Approaches to Lawyers’ Ethics’ (2004) 30 Monash University Law Review 49, 57-60. See here for explanation of adversarial advocacy.

[3] A Team Diamond v Main Road Property Group Pty Ltd [2009] VSCA 208 (24 September 2009) [15]. See also, the case can be located here.

[4] Victorian law Reform Commission, Chapter 4: Improving Alternative Dispute Resolution (1 Jan 2008 <http://home/amklawcom/public_html.lawreform.vic.gov.au/sites/default/files/Chapter%2B4%2C%2BChapter%2B5.pdf>.

[5] Civil Procedure Act 2010 (VIC) s 3.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] FG Brennan and T Eichelbaum, “Key Issues in Judicial Administration,” Address to the 15th Annual Conference of the Australian Institute of Judicial Administration, Welling, 20 September 1996, 3-4.

[12] See examples here: Magistrates’ Court of Victoria, Scale of Costs (1 January 2018), Magistrates’ Court of Victoria, <https://home/amklawcom/public_html.magistratescourt.vic.gov.au/sites/default/files/Scale%20of%20Costs%20-%201%20January%202018.pdf>; Supreme Court of Victoria, Appendix A – Supreme Court Scale of Costs

(1 January 2018), Supreme Court of Victoria <http://home/amklawcom/public_html.legislation.vic.gov.au/domino/Web_Notes/LDMS/LTObject_Store/ltobjst10.nsf/DDE300B846EED9C7CA257616000A3571/D0F3F1C000F7FA75CA25820500109063/$FILE/15-103sra020%20authorised.pdf>.

[13] White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 AR 169, 240. See here, for reference to the case.

[14] Ibid 240. See here, for reference to the case.

[15] Civil Procedure Act 2010 (VIC) s 10.

[16] Ibid s 41.

[17] Ibid s 16.

[18] Ibid s 17.

[19] Ibid s 18.

[20] Ibid s 19.

[21] Ibid s 20.

[22] Ibid s 21.

[23] Ibid s 22.

[24] Ibid s 23.

[25] Ibid s 24.

[26] Ibid s 25.

[27] Ibid s 26.

[28] Marilyn Warren, ‘The Duty Owed To The Court: The Overarching Purpose of Dispute Resolution in Australia’ (Speech delivered at the Bar Association of Queensland Annual Conference, Gold Coast, 6 March 2011) <http://home/amklawcom/public_html5.austlii.edu.au/au/journals/VicJSchol/2011/7.pdf>.