Litigation

Litigation, is the determination of a dispute according to law, by having lawyers (solicitors and barristers) argue the case before a judge appointed by the state. It is the traditional method by which disputes, large or small, have been resolved in Australia.

Courts have been established by governments at different levels; Local, District and Supreme Courts in the States and Federal Courts like the Federal Magistrates, Federal Court and High Court on a national level. As well there is an array of specialist tribunals, over 90, which have been established to deal with such matters as immigration, industrial actions, workers compensation, human rights and many other aspects of our community living. A number of the states have also established “super tribunals” (VCAT in Victoria and QCAT in Queensland) that deal with all state related matters matters for determination, such licensing, residential tenancy and consumer disputes, to name a few. NSW will be establishing its own super tribunal, NCAT, in 2015.

However, studies show that of all of the matters filed in a court, only 5 per cent ever go on to final determination by a judge or adjudicator (tribunal member). The rest are settled, discontinued or dropped by the parties before the case is finally prepared for hearing. Many cases are discontinued because the costs start to outweigh any perceived benefit or advantage. This is particularly the situation, where a matter, decided at a lower level is then appealed to a higher court.

Lawyers are also very aware of the crippling nature of costs and do try to settle claims. This occurs even more frequently these days as parties will often make a “commercial decision” whether to incur the costs of a full blown hearing and governments, the courts and the legal profession now have a greater variety of settlement processes available. Lawyers and barristers are also required, under their various professional rules, to advise their clients of the opportunities and dispute resolution processes that are available to settle the disputes without a full hearing of all of the issues in dispute.

Whether the matter is an emotional family break-up or a large and expensive commercial breach of contract claim, alternative processes now exist which allow parties to resolve their disputes, or at the very least narrow the issues about which they disagree, at a lower cost in terms of time, money and emotional energy.

Categories: Determinative, Litigation