What is becoming clear is that people are becoming more and more reliant on outside help to resolve all manner of disputes. It also appears that an increasing amount of people want their 'day in Court' to sort out their issues and to seek justice.
However, filing a lawsuit is not as simple as you may think.
With both tribunal and court proceedings, there is currently a huge emphasis on alternative dispute resolution, with legislation often imposing very clear obligations on parties to undergo such processes before starting legal proceedings.
A couple of examples:
- Retail Leases under the Retail Leases Act 2003, before any legal proceedings can be commenced, the parties are generally required to go to the Small Business Commissioner to try to resolve the dispute through mediation. If mediation does not resolve matters, the Commissioner's office will issue a certificate which must be filed when initiating proceedings.
- Civil Disputes the Civil Dispute Resolution Act 2011 specifically requires any party to civil proceedings in the Federal Court or Federal Circuit Court to take genuine steps to resolve the dispute by agreement. Genuine steps differ from case to case but may include pre-litigation correspondence such as letters of demand, out of court negotiations and trying alternative dispute resolution options.
How will this affect you?
A breach of these statutory obligations can result in the matter being stayed or struck out, and costs orders being made against the offending party, as well as costs orders against that party's legal representative. Parties to litigation are receiving the clear message that courts and tribunals are not the 'be all and end all' for disputes, and that contested legal proceedings should only be used as a last resort.
Furthermore, the courts deal with enormous caseloads and do not look kindly on court proceedings that could have been resolved at an earlier stage. The courts have a wide discretion to award costs against a party who is found to have been wasting both the court's (and the other party's) time and money.
The upside in having to comply with these requirements is that an understanding can be gained as to the strengths and weaknesses of each party's case. This can help guide the parties to some common ground to encourage a settlement sooner rather than later. Most importantly, such dispute resolution processes will often highlight the risks to each party in going forward. These 'reality checks' are significant because they allow the parties to make informed decisions about any settlement offers in the circumstances and in light of the risks of contested court proceedings.
Accordingly, it is very important to comply with any relevant pre-litigation requirements:
- to protect your legal position should the matter proceed to court or a tribunal, or
- to provide a practical solution so that you can move on with your life.
How to Sue Someone
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
Liability limited by a scheme approved under Professional Standards Legislation.
Caroline Callegari is an Associate Principal and leads our Disputes & Litigation team. She has an advisory and advocacy practice in the following areas: Commercial Litigation, corporate and personal disputes, debt recovery and, insolvency and bankruptcy matters. Caroline can be contacted on (03) 8561 3324.