Dispute I Litigation

Dispute resolution and litigation in Australia involve various processes through which parties seek to resolve their legal conflicts. The Australian legal system encourages resolving disputes through negotiation and Alternative Dispute Resolution (ADR) methods before resorting to formal litigation.

Dispute

In Victoria, a commercial dispute refers to a disagreement between two or more parties related to business or commercial transactions. These disputes can arise in various industries and involve issues such as contracts, property, partnerships, intellectual property or financial matters. They often occur between businesses, but they can also involve individual parties, government entities or organizations.

The most common types of commercial disputes are listed below:

• Contractual
• Partnership or Shareholder
• Property and Leasing
• Intellectual Property
• Debt Recovery and Insolvency
• Consumer Protection and Trade Practices
• Employment and Workplace
• Professional Negligence
• Construction Disputes
• Competition and Consumer Law
• Debt Recovery
• Corporate
• Defamation

The disputes can be resolved mainly in following ways:

• The Dispute Settlement Centre of Victoria’s (DSCV) purpose is to empower and assist the Victorian community to prevent and resolve issues, ease pressure on the judicial system and help the community to thrive.
• Victorian Small Business Commission (VSBC) helps disputes involving small businesses such as tenancy disputes, supplier disputes or franchising issues.
• Negotiation is an informal process which involves direct discussions to reach a mutually acceptable solution without involving third parties.
• Mediation is a structured process where a neutral third party like the mediator assists the parties in reaching a settlement where the mediator does not make decisions but facilitates communication between the disputing parties.
• Arbitration is a more formal process where an arbitrator hears the evidence and arguments from both sides and makes a binding decision.
• Court is the last resort.

Victoria promotes the use of Alternative Dispute Resolution (ADR) methods like mediation and arbitration to resolve disputes without resorting to costly and time-consuming litigation.

Litigation

Commercial litigation in Victoria refers to the legal process of resolving disputes that arise in a business or commercial context through the courts. It involves legal actions between businesses or between businesses and individuals related to business activities. This can include issues such as breaches of contract, disputes over property, shareholder disagreements and other conflicts arising from commercial transactions.

Calderbank Offer

A Calderbank offer is a type of settlement offer made in legal disputes, particularly in the UK, Australia and New Zealand but also recognized in other jurisdictions. It derives from the 1975 English case Calderbank v Calderbank. The key aspect of a Calderbank offer is that it is made “without prejudice save as to costs,” meaning that the offer cannot be referred to during the trial itself to influence the outcome but can be used after the judgment to help determine costs.

Offer of Compromise

An Offer of Compromise is a formal settlement offer made by one party to another in legal proceedings to resolve the dispute without going to trial. It is commonly used in common law countries like Australia and the UK and has specific rules and consequences depending on the jurisdiction. Unlike informal settlement negotiations, an offer of compromise has strict procedural guidelines and may carry significant cost implications if it is not accepted.

Commencing Legal Action

If negotiations fail, the aggrieved party which is known as plaintiff may commence legal action by filing a writ or originating motion in the relevant court depending on the size and complexity of the dispute.

The writ will outline the claims being made while the defendant is required to file a defence outlining their response to the claims.

Interlocutory Applications

During litigation, parties may make interlocutory applications to the court to resolve procedural matters or obtain interim orders. This can include applications for summary judgment to resolve the case without a full trial or injunctions to prevent certain actions by the other party.

Jurisdiction

Different courts have specific jurisdictions to heard only certain types of cases. When application is filed in the wrong court, it may result in your case being dismissed or transferred causing delays and additional costs.

• The following are the tribunal or courts where you can file your claim:
• Victorian Civil and Administrative Tribunal (VCAT)
• Magistrates’ Court
• County Court of Victoria
• Supreme Court of Victoria
• Federal Circuit and Family Court of Australia
• Federal Court of Australia
• High Court of Australia

Appeal

If you are dissatisfied with the outcome, you may have the option to appeal the decision to a higher court, though this must be done within strict time limits and usually on a question of law.

Enforcement

In Victoria, once a judgment has been made in court, the successful party can take steps to enforce that judgment if the other party does not comply.

Based on the nature of the judgment, various enforcement options are available, including:

• Writ of Seizure and Sale allows the sheriff to seize and sell the debtor’s property to satisfy a monetary judgment.
• Attachment of Earnings involves directing the debtor’s employer to deduct a portion of the debtor’s wages and pay it directly to the judgment creditor.
• Bankruptcy or Insolvency Proceedings is for monetary judgments against individuals, bankruptcy may be pursued if the debtor cannot pay.
• Charging Orders places a charge on the debtor’s property such as real estate and ensures that the creditor can claim the value when the property is sold.

Once the court issues the enforcement orders, the creditor may work with the sheriff or relevant authorities to execute the orders such as seizing property or garnishing wages.