Going to Court

More often than not, a resolution can be found between disputing parties that avoids the expense and stress of going to court. But sometimes, where there is no middle ground, and neither party is prepared to give in to the other, there is no real option but to go to court.

Lawyers call the process of going to court, “litigation”. It is expensive and time consuming, and for the system to work, the opposing parties need to comply with court orders, and the judge who hears the case needs to deal with the matter objectively and fairly. Most of the time these ingredients all work together, and an outcome is achieved. The problem is that, whilst both parties believe they are in the right, it is not usually possible for a judge to decline to rule – there will almost always be one winner and one loser.

There are no prizes for coming second. Indeed, coming second usually means being ordered to pay most of the other side’s legal costs, in addition to having to bear all of your own legal costs, and not winning the overall case. Costs in legal cases can range from, at the low end, $20,000, right up to hundreds of thousands of dollars, and even in some very large cases, millions of dollars. A typical case that runs to a three day hearing, taking perhaps 18 months to run, might cost $80,000. An adverse costs order can be catastrophic.

When a dispute is considered in light of these costs, it becomes fairly obvious very quickly that fighting small disputes worth perhaps $10,000 – $30,000 are not usually worth it, and that it is in everyone’s interests to settle. But if the case involves an argument over hundreds of thousands of dollars, then it may well be worth it, depending on the strength of the case.

Good lawyers will assess the merits of the case from the outset. It is not enough that you feel that you have been wronged. You need to be able to prove your case through clear evidence. Written evidence is far more convincing than oral evidence, because memories fade, but documents stay as they were and provide strong contemporaneous evidence of past events. It is also important that established legal principles support your case. Do the facts and the issues clearly fall within legal arguments that have been successful in court before? Your legal adviser should help you understand all of these issues.

Court actions are commenced by the plaintiff filing a Statement of Claim with the Court. Usually the other party, called the Defendant, must file a Defence to the claim within 28 days. Then the court usually orders the parties to take it in turns to serve their evidence, usually in the form of affidavits. Subpoenas and Notices to Produce may be served, and sometimes it is necessary to seek an order for Discovery to get access to hidden documents, or to engage an expert to prepare an expert report for the proceedings. Sometimes arguments come up about what evidence is able to be included, or whether one party has complied with its obligations in preparing the case. We would usually expect there to be 3 or 4 court attendances in the process of preparing the matter for final hearing.

Court hearings usually take at least one day, and can take a number of days if the case is complicated. In most situations, we instruct barristers to represent our clients in court. You can expect to be cross-examined in court, so it is important to be honest at all times, both in what you tell your solicitor during the preparation of the case, and when you give evidence in court.

In some instances, going to court can be used for a strategic purpose. Filing a court claim can significantly increase the pressure on the parties to resolve a dispute because both parties know that if they do not reach a settlement, a day of reckoning is coming when a judge will impose an outcome which someone will not like! One strategy we have used successfully over many years is to commence court action, and then early on make an offer of settlement which is the least our client is prepared to settle for. This forces the opponent to look realistically at their case, because such offers of settlement can be relied on at the end of the case to get a costs order, especially if the offer turns out to have been lower than what the court ended up awarding.

Atkinson Vinden has deep experience in litigation, having a large team of litigation lawyers with decades of collective experience in running court cases. If you would like us to provide a case assessment of your matter, give us a call on (02) 9411 4466 or email email@avlawyers.com.au.