Advocates in commercial and insolvency litigation
Sometimes litigation is required to resolve commercial claims and disputes. We understand the needs of businesses, entrepreneurs and families facing commercial litigation because we specialise in this sensitive area. We represent our clients in all Australian courts as well as arbitration and mediation forums. We act in complex litigation for both plaintiffs and defendants.
Court and Representation – explained
Firm Principal Ben Sewell takes you through an explanation of court representation services
Breakdown of types of litigation
Our core services are insolvency litigation and commercial litigation advocacy and analysis. In some client engagements, we also provide non-core advocacy where counsel is engaged to provide analytical support.
|Core service: Urgent applications||Non-core (with counsel support for analysis)|
|Winding-up applications (companies) and bankruptcy applications (individuals)||Contracts and failed investments||Appointment of provisional liquidators and receivers||Defamation and protection of reputation|
|Unfair preference claims||Sale of goods and provision of services disputes||Injunctions to restrain the dilution of assets||Fair Work Act and employment (employer side only)|
|Uncommercial transaction claims, creditor-defeating disposition and fraud claims||Partnership and directorship disputes||Injunctions to restrain conduct||Trade practices (unconscionable and misleading conduct)|
|Applications to set aside deeds of company arrangements||Franchise disputes||Injunctions to restrain breach of contract||Intellectual property (excluding patent litigation)|
|Insolvent trading claims||Property disputes (real and personal)||Injunctions regarding reputation (defamation)||Solicitor / Client legal costs and negligence|
Stage 1 Case analysis
Legal work: Consult with lawyers, gather facts and evidence, undertake legal analysis, assess risks and respond to any initial letter of demand.
Injunction: If the situation is urgent/critical then an injunction will be considered.
Objective is to assess the legal and commercial position and develop a strategy going forward.
Process: Gather documents and make assumptions of facts; consultation process may be iterative.
For the wronged party: Analyse options and prospects of success, stage completed after letter of demand is issued.
For the party subject to claim: Analyse letter of demand, stage completed if proceedings are commenced by the other party.
What is the BATNA? The best alternative to a negotiated outcome. This is behind all litigation strategy and considerations include timing, value and avoiding future disputes. Litigation is not an end in itself and for Defendants who are “judgment proof” this outcome should be avoided.
Stage 2 Pleadings
Plaintiff: Draft and file claim to obtain remedy.
Defendant: Draft and file defence to formally respond to allegations.
Legal work: Drafting documents, legal analysis, engage counsel (non-core litigation or injunction), draft supporting affidavit (injunction and some jurisdictions), arrange for service and filing.
Objective: Concise and accurate commencement documents, litigation is the best alternative to negotiated agreement (BATNA).
Jurisdictions: Federal Courts (Federal Court and Federal Magistrates Court) and State Courts (Supreme and District/County Courts).
The party seeking the remedy is the Plaintiff or Applicant and the party that is being sued is the Defendant or Respondent.
Stage 3 Case management
Legal work: Court attendances, drafting motions to address preliminary issues and liaising with lawyers for the other party.
Objective: Efficient preparation of the matter for trial.
Motions are a formal application made by a party for a specific order that is preliminary to the trial – usually dealt with by solicitors as advocates.
Stage 4 Evidence
Legal work: Ascertaining what witnesses are required, preparing affidavits, engaging experts (where necessary), analysing the evidence adduced by the other party.
Objective: Identification, preparation and management of evidence that helps or harms the client’s case.
Expert evidence may be essential if an opinion is required to prove or disprove an allegation – the Court requires a report to be made and also that the qualified expert be made available for cross-examination.
An affidavit is a written statement of facts given by a natural person – it is prepared by a lawyer so that it complies with the rules of evidence and is relevant to the facts in dispute.
Stage 5 Discovery
Legal work: Identification, analysis and disclosure of all documents relevant to the proceedings.
Objective: Efficient identification and analysis of relevant documents.
Discovery is often a time-consuming process and needs to be well managed to avoid inefficiency.
Discovery is not relevant to all proceedings – if both parties agree that it is unnecessary then it may be dispensed with.
Stage 6 Mediation
Legal work: Meet with clients regarding BATNA, attend mediation to negotiate with the other party’s lawyers (with or without counsel).
All jurisdictions now either encourage or mandate mediation. Mediation is a confidential negotiation process where a professional mediator works to bring the parties together to settle the dispute.
How are disputes settled? The usual method of settling a matter is to have a consent judgment entered (if no monies were paid upfront) or by the parties signing a deed of release and settlement (if monies are paid at settlement).
Stage 7 Trial
Legal work: Preparation for hearing, briefing counsel, drafting Court books, meeting with client and witnesses, attending hearing to instruct counsel and analysing the outcome.
Objective: Obtain the best alternative to a negotiated outcome (BATNA) through litigation.
The trial (or hearing) in a civil jurisdiction is judge alone (no jury except for some defamation cases). Experienced counsel (barristers) are recommended and in important cases they should have at least 10 years of experience.
Frustrating process: Litigation is an opaque and frustrating process for non-lawyers. A comprehensive victory is unlikely and often one party walks away unhappy whilst the other is very unhappy. The disputing parties are likely to be best served by sensible lawyers that understand the risks their clients face.
Most cases do no go to a hearing. Over 90% of insolvency and commercial litigation cases settle before a hearing is completed. Some even settle on the ‘steps of the court’ – that is, the day of the hearing.
Stage 8 Appeal
Legal work: Legal analysis and filing appeal documents with the Court.
Objective: To obtain a better outcome than the decision made by the trial court.
An appeal is an application to have the trial Court’s decision reviewed. In insolvency and commercial litigation it may be decided ‘on the papers’ which means that no oral evidence is required. A very small percentage of civil trials are appealed and the grounds of appeal are usually narrow. If a judge makes a finding of fact this cannot be appealed in a civil case.
Stage 9 Judgment enforcement
Legal work: Analysis, drafting and serving enforcement documents and communicating with the other party.
Objective: To use the legal process to compulsorily satisfy a judgment debt.
What is a judgment debt? A judgment debt is an amount of money that is ordered to be paid to the successful party by the Court. This may be enforced by Court actions such as sheriff seizures or insolvency actions such as bankruptcy notices or a statement of demand.
Remember the BATNA at all times! A Defendant who has no assets in any jurisdiction is said to be “judgment proof”.
Our points of difference
- Solicitors who also act as advocates in court, mediation and arbitration proceedings
- Excellent technical knowledge of subject areas including contract law and insolvency law
- Deep knowledge of commercial litigation strategy
- Flexibility to adapt to client needs and urgency
- Support of a network of professional advisers, including barristers, forensic accountants, tax advisers and insolvency practitioners
- A commercial mind-set that helps us align our tactics with the needs of our clients