What is litigation?

Litigation refers to the process of taking legal action. A litigation lawyer acts on your behalf when a dispute arises. This can include a commercial dispute, civil dispute or a criminal proceeding brought against you.

By its very nature, litigation is typically the most stressful area of law for people to deal with, especially when it involves going to Court and your costs start to mount. You can take steps to avoid this stress by being well prepared, engaging an experienced and confident lawyer and having a commercial or pragmatic approach to your dispute.

What is the process of going to Court?

Going to Court involves a number of steps and is different in each jurisdiction. The court process for family law matters is worlds apart from the court process for a commercial or business disputes such as franchise agreement disputes. A typical civil dispute in the Magistrates’ Court, however, might look like this:

  • Writing to the other side or contacting them by other means to clearly explain your position and demanding that they rectify their conduct (for example by paying you money they owe you) within a specified time-frame;
  • If the other side is cooperative, engaging in discussions to try and resolve the matter without the need to issue Court proceedings, for example by agreeing that the other side will pay you by the end of the week;
  • If the other side refuses to cooperate, issuing Court proceedings by preparing the relevant Court documents including the complaint and any affidavits (a sworn statement of a witness);
  • Attending a mediation where the parties negotiate with each other to resolve the matter on the day. This is often required by the Court before having a final hearing of your matter;
  • Attending a final hearing of the matter. At the final hearing:
    1. Lawyers from both sides will typically make opening submissions which involve explaining their case to the Court.
    2. The plaintiff’s witnesses will then give their evidence. This is called an examination in chief. The defendant’s lawyers will then cross-examine the plaintiffs’ witnesses.
    3. The defendants’ witnesses will give their evidence followed by being cross-examined by the plaintiff’s lawyers.
    4. Lawyers on both sides will make their closing submissions which involves persuading the judge to make the decision that you want by explaining what the issues are, what the law is and what evidence you are relying on so that the Court will find in your favour.
  • The Court decides and final orders are made. Final orders are effectively the outcome of the hearing. For example, where a debt is involved and that debt has been proven in Court, final orders may require the losing party to pay the winning party the debt, interest and the winning party’s legal costs.

Resolving your legal dispute without going to Court

In our experience, most disputes do not end up inside a Courtroom but rather are resolved by clearly demonstrating to the other side the strengths of your case, minimising the weaknesses of your case and demonstrating the weaknesses of their case. After this, the parties will engage in negotiations and find a commercially realistic resolution.

Mediation

Mediation is a structured negotiation process in which an independent mediator assists the parties in negotiating an agreement to resolve their dispute. Mediation is useful as it allows parties to come to a compromise without the need to go to court. There are a number of advantages to mediation including the following:

  • You can avoid the legal costs of preparing and running a trial;
  • You can exert greater control of the outcome because you are agreeing on a decision rather than letting a court make the decision for you;
  • You can avoid the stress of a court trial; and
  • Mediation is private, and the terms of any agreement can require the parties to maintain confidentiality. In contrast, many court hearings and judgments are recorded and accessible to the public.

Pre-litigated dispute resolution

You do not have to issue court proceedings before you attempt to resolve your dispute through mediation. Pre-litigated dispute resolution is increasing in popularity as it allows parties to come together to negotiate an outcome before even having to issue court proceedings. Resolving a matter before any court proceedings are issued can save you a lot of money on legal fees.

A pre-litigated mediation is similar to a court-ordered mediation, however, there are no proceedings on foot. At a pre-litigated mediation, the participants would typically have lawyers represent them and the parties would engage a mediator to mediate between them. If you have a dispute and believe it can be resolved at an early stage, we recommend that you engage a dispute resolution lawyer to assist you.

What we do

Destra Law is a Box Hill law firm, located in the Eastern suburbs of Melbourne. We service clients all over Victoria, interstate and in the federal jurisdictions. We assist clients by providing cost-effective and innovative solutions to their legal problems and legal disputes. We will act on your behalf in the following jurisdictions:

  • Magistrates’ Court of Victoria
  • Supreme Court of Victoria
  • County Court of Victoria
  • Federal Circuit Court
  • Federal Court
  • Family Court
  • Victorian Civil and Administrative Tribunal (VCAT)

Our areas of expertise

We can assist you with the following disputes:

  • Contractual disputes
  • Shareholders disputes
  • Franchise disputes and franchising
  • Property disputes
  • Business disputes
  • Debt recovery
  • Contesting wills and will disputes
  • Debt recovery
  • Family law disputes
  • Employment disputes
  • Criminal law and criminal charges

Franchising and Franchise disputes

At Destra Law, we have a keen interest in franchising law and franchise disputes. Franchising and franchise systems have recently received a lot of attention in the media, mainly because of unfair and harsh contract terms or because of the mistreatment and oppression of franchisees by franchisors. Franchises have also received a lot of attention because of bad behaviour by franchisees, such as underpaying their staff and damaging the reputation of the franchise system.

If you are a franchisor, it is important that you have a strong franchise system which protects your franchise and your franchise’s reputation. If you are a franchisee or are considering becoming a franchisee, it is important to understand all of your rights and obligations and to remember that if a franchisor is treating you unfairly, you may have a legal remedy against them.

What is the franchising code of conduct?

The Franchising Code of Conduct is a mandatory industry code which applies across Australia. The code regulates the conduct of franchisors and franchisees. On 1 January 2015, a revised franchising code commenced which replaced the old code.

Your rights and obligations under the Franchising Code of Conduct are in addition to those under the Australian Consumer Law and the Competition and Consumer Act. The Code, the Australian Consumer Law and the Competition and Consumer Act are lengthy and provide you with a wide array of rights as well impose various obligations on you. If you have any questions about your rights and obligations under the Code, we recommend that you seek legal advice from a franchise dispute lawyer or a franchising lawyer.

What is a disclosure document?

Franchisors are required to provide prospective franchisees with a copy of a disclosure document prior to the prospective franchisee entering into the franchise agreement. The disclosure document is a document that summarises necessary information about a franchisor and the franchise system that you may need to know before you decide whether or not to enter into a franchise agreement.

What is a franchise agreement?

The franchise agreement is the most important document when it comes to the running of a successful franchise arrangement. The franchise agreement is the contract between the franchisor and franchisee which sets out each of the parties’ responsibilities and rights in relation to the operation of the franchised business.

Franchise agreements can often be one-sided, heavily favouring the franchisor at the expense of the franchisee. Despite this, it is important to remember that the franchise agreement must comply with the Franchising Code of Conduct and that if you are considering becoming a franchisee, you can negotiate the terms of the franchise agreement. A good franchising lawyer can assist you with this.

We have acted for both franchisors and franchisees in drafting franchise agreements, negotiating franchise agreements, resolving franchise disputes without the need to go to court, taking franchise disputes to court and obtaining hundreds of thousands of dollars in damages.

Contractual disputes

Contractual disputes usually occur when parties have conflicting interpretations over the terms of a contract, whether certain terms exist or whether a contract exists at all. Most people understand that a contract is a legal document between two or more parties that sets out what is required of each party in a particular transaction. Verbal agreements and implied agreements can also be binding on the parties, even if there is already a written contract in place.

If you are preparing a contract, it is important that you include everything that you have agreed upon in the written contract to avoid disputes about what was agreed on later. Hiring a contract lawyer or contract dispute lawyer to assist you in preparing your contract can save you a lot of money in the long run.

Contesting wills and will disputes

You can contest or challenge a will if you believe:

  1. the will was incorrectly executed or tampered with;
  2. the will was unduly pressured by others;
  3. the testator (the person who made the will) was incapable of making a will;
  4. the meaning of the will is unclear; or
  5. insufficient provision has been made to you (provided you are an eligible person) and the testator had an obligation to provide for your proper maintenance.

Please check out our wills and estates information page where we have answered some commonly asked questions in relation to contesting wills and making family provision claims.

Family law disputes

Family law begins before you even contact a family lawyer. If you have separated or are about to separate, follow these practical measures to protect yourself.

  • Do not antagonise the situation. Try to remain civil with your ex-partner. This may assist you in resolving property and parenting issues with minimal involvement from lawyers.
  • Change the passwords to all your individual accounts. Especially your bank accounts and any other financial accounts. Don’t forget that your ex-partner may also have access to your social media and email accounts. Change these passwords too to protect your privacy. Use an unrelated password your ex would not be able to guess.
  • Check all your bank account and mortgage accounts to make sure that your partner hasn’t withdrawn any money. If they have, contact the bank immediately and let them know what has happened. You should also seek urgent legal advice. Even if they haven’t withdrawn any money, you should contact the bank and tell them to make a note that you have separated.
  • Compile all your financial documents and other important documents. Make copies of these and store them in a safe location.
  • Start collating all your financial records and determine the financial position of both you and your ex-partner as best you can. Determine all your assets, your liabilities and your superannuation.
  • Draft a new will and revoke any existing powers of attorney.
  • Seek independent legal advice from a family lawyer.

Please check out our family law information page where we have answered some commonly asked questions about family law.

Criminal law disputes

Being arrested or charged with an offence can be extremely stressful. You may have been incorrectly charged or have committed a once off mistake that you regret. This, coupled with the uncertainty as to what will happen to you, your livelihood and your life can cause great anxiety to you. It is important that you remain calm and remember that there is help available to you.

Please check out our criminal law information page where we have answered some commonly asked questions about criminal law.

 

The information is intended to be a general guide only and is not intended to constitute professional or legal advice. Destra Law expressly disclaims any and all liability for any loss or damage arising from reliance upon any information on this webpage. To discuss concerns about Litigation, please do not hesitate to contact Destra Law on 9898 8282 or by filling out our contact form.