Filing a Lawsuit
Build an airtight prosecution
Polite payment requests have fallen on deaf ears, to no success you’ve approached the other side by making an informal demand and alternative dispute resolution paths haven’t ended in a resolution.
Despite your best efforts the next steps in resolving a dispute and reclaiming what is yours could be a day in Court.
Unfortunately, it’s not as simple as saying ‘I’m going to sue’ and walking into the court room a day later.
In fact, there is a lot of paperwork, legal red tape and time involved before you get there. What’s more, it’s a complex process, which when approached without legal assistance can mean you miss important deadlines and details that can weaken your position when you finally get your day in Court.
Your success and attaining a commercially positive outcome is our priority
It’s all in the details. An airtight case, comes with a comprehensive knowledge of the law and the situation at hand (the good, the bad and the ugly). Being an open book with your lawyer will mean you can be ready for attack (and defence), arriving at a resolution sooner rather than later and without unnecessary expense.
What you need to know
In the meantime, here’s a summary of the key things you need to know that will get you on track to understanding what’s involved in actioning a lawsuit and navigating Court proceedings:
Going to Court can be time consuming, costly and stressful, so you’ll want to ensure you’ve explored all other available options before filing a claim. Make sure you speak to your solicitor before making any moves.
If alternative methods of dispute resolution haven’t worked, then filing a claim in Court may be your next step. The right Court for your dispute will depend on many factors including where the contract was undertaken, the amount of money in dispute and the reasons for your claim. It may fall under a state or territory Court, or Federal Court depending on the claim.
Before you file a claim, make sure you’ve considered the following;
- Whether there is a genuine dispute;
- Whether the other side is able to pay;
- Whether there is a time limit to file your claim;
- How the Court case will affect your business;
- Whether you can afford it – costs can include court fees, legal fees, the time away from your business, travel and accommodation.
If you decide to pursue a lawsuit, it is important to speak to a professional who understands the complexities of Court and can fight in your corner for the best commercial outcome for your situation.
Once the claim and statement of claim (Claim) are filed with the Court, you must serve the other party with a copy of the Claim, usually either to their registered office, on their solicitor, or them personally. Service can be affected by you, a bailiff, a lawyer or a private process server. However, it is important that it can be proven that service was affected.
If the defendant (the person being sued) disputes the Claim, they will usually need to file a Defence within 28 days of being served, and send you a copy of the Defence after it has been filed.
At this stage, the parties commonly engage in a process called “disclosure”. This process is where each party discloses to the other all relevant information to support their position.
Once disclosure has been finalised, usually a settlement conference will be convened by the Registrar to discuss the issues in dispute, with an attempt to resolving the matter. If a resolution cannot be reaches, the Claim usually progresses towards a trial.
Whilst you are not legally required to have representation to engage in a trial, it is advised you do, so you can get the best possible outcome for your case. If the other party seeks representation and you do not, they may have the upper hand.
Following the above pre-trial steps, you may need to attend a number of hearings in Court, and provide written submissions. If the other party has legal representation then you will need to deal with their lawyer rather than speaking with the other party directly (the same applies if you have engaged legal representation).
After the pleadings are finalised and disclosure has been completed, if there are then no offers to settle, trial will most likely proceed. Even if you have legal representation, you will still need to prepare yourself for trial, and most likely attend.
If a monetary judgment is made in your favour, it will now be time to enforce the Order. Alternatively, if a judgment is made that you disagree with, there may be avenues for appeal.
Given the complexities of litigation, the support of an experienced litigation lawyer can help guide you through the process. If you’re considering filing a lawsuit, contact us today.
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