Civil Litigation in Australia is an umbrella term which refers to all private litigation between individuals, businesses and government entities including companies, trusts, sole traders and partnership that does not involve criminal charges. This often involves business disputes. Brander Smith McKnight’s team of commercial litigation lawyers are experts in this area of law.

Commercial litigation is a term frequently used in the USA and usually refers to civil litigation involving business entities and commercial law.

The term litigation refers to the legal resolution of disputes in court. However, in reality many of these disputes are resolved without going to court using alternative dispute resolution and also tactics such as interlocutory applications. The civil litigation lawyers at Brander Smith McKnight Sydney have extensive experience resolving disputes both in and outside of court. We pride ourselves on settling 90% of our civil litigation disputes prior to a formal hearing saving you legal expenses and time. However, if the matter proceeds to a hearing, our experienced lawyers have over 30 combined years of commercial litigation experience and will fiercely advocate for you in court.

Our experienced team provides premium and professional legal services in a cost effective manner. We understand the commercial realities of each case and provide tailored advice and strategies for success.

Commercial Disputes

Commercial disputes concern businesses, including sole traders, a company or partnership. Business disputes may arise for any number of reasons and can affect businesses of all sizes. They may relate to:

• Contracts
• Intellectual Property
• Finance Documents such as Loan Agreements and Guarantees
• Insolvency
• Debt recovery
• Directors or Shareholders Disputes
• Building and Construction Disputes
• Employment Disputes

Non Commercial Disputes

Non commercial disputes is a term that is most frequently used in the USA and refers to disputes between individuals rather than business entities.

Civil Litigation

The umbrella term of civil litigation encompasses disputes between both individuals and business entities. It includes the previously mentioned disputes involving contracts, employment, shareholder, intellectual property, partnership, directors, building and construction, financial documents, insolvency, intellectual property and debt recovery.  In addition it includes:

• Defamation Actions
• Legislative Proceedings, for instance, disputes between neighbours, involving the Trees (Disputes between Neighbours) Act 2006 NSW.
• Torts, which are private legal actions not involving a contract.  Examples of this include The Tort of Trespass, The Tort of Nuisance and The Tort of Negligence.

Alternative Dispute Resolution

Alternative dispute resolution refers to the methods used to resolve legal disputes outside of court. Resolving commercial disputes outside of court can save parties to a dispute both time and money and can avoid the stress associated with litigation. Our expert civil litigation lawyers can explain the alternative dispute resolution options available and advise on their relative suitability to your case. Some common methods are described below.

Negotiation

This is an informal method of alternative dispute resolution that sees the parties discussing the problem at hand and attempting to reach a solution through compromise.  This can be attempted before or after seeking legal advice. It is a simple and often efficient method to resolve disputes.  The civil and commercial litigation lawyers at BSM are expert negotiators and are able to put forward your issues in a concise and winning manner. A high percentage of our client’s disputes are favourably resolved using this technique.

Mediation

Mediation is an alternative dispute resolution option where an independent professional mediator helps disputing parties settle their dispute. It is the mediator’s responsibility to facilitate discussion between the parties so that they may achieve a mutually beneficial solution. Mediation is confidential and mediators must remain impartial throughout the process. You may have your lawyer present during the mediation.

Conciliation

Conciliation is a form of dispute resolution where parties try to resolve a dispute through discussion. Conciliation is assisted by a conciliator, who is an independent party that can suggest options for resolving the dispute, provide relevant information and encourage the parties’ pursuit of an agreement. Conciliators cannot enforce decisions regarding the dispute, must remain impartial throughout the process and cannot give legal advice. As with mediation, it is a flexible and confidential process that aims for an amicable and efficient resolution. You may have your lawyer present during the conciliation process.

Arbitration

Arbitration is an alternative dispute resolution process that allows disputing parties to have their dispute decided by an independent, neutral decision maker, called an arbitrator, or in some circumstances, a panel of arbitrators.  In arbitration, the disputing parties put forward arguments and evidence that the arbitrator will assess and make a decision in relation to the dispute. The process is private and subject to the parties’ agreement, can be confidential. It is the most formal alternative to litigation. The decision made by the arbitrator, called an award, is legally binding and enforceable. You may have your lawyer present during the arbitration.

Adjudication

Adjudication is a form of arbitration that is available pursuant to Building and Construction Industry Security of Payment Act 1999 (NSW), also known as SOPA, for the prompt resolution of payment claims. Both arbitration and adjudication typically involve representation by civil litigation lawyers.

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Litigation

The civil litigation lawyers at BSM have experience in federal, supreme, district and local courts as well as in tribunals and arbitrations. It is important to know which court or tribunal to file a proceeding in as different courts and tribunals have different jurisdictions, or the ability to make decisions and judgements. This is based on a number of factors including the proposed cause of action and monetary limits. In addition, court rules and procedures in relation to documents and complying with dates are complex and strict. It is important to engage an experienced lawyer to navigate this process as mistakes can be costly both in terms of money and time.

The standard process of a litigation hearing involves the plaintiff, who is the person commencing the legal proceedings, drafting, filing and serving a statement of claim. A Statement of claim sets out the plaintiff’s cause of action and damages, compensation or other remedies sought. The defendant is then obliged to file and serve a defence within 28 days. During this process the parties or the court may direct that the parties participate in mediation.

The court will then list the matter for a directions hearing and among other things provide a timetable for lay and expert evidence and eventually a hearing. A hearing is the presentation of each party’s position, evidence and legal submissions and will result in the court making a decision.

The highly experienced civil and commercial litigation lawyers at Brander Smith McKnight will listen carefully to your problem and meticulously draft the statement of claim. We provide you with the opportunity to review and revise the statement of claim prior to filing and serving it. We represent you at the directions hearing and attend to all of the legal requirements such as organising lay and expert evidence.

The BSM civil litigation team will, throughout the litigation process, seek to negotiate a rapid settlement to the matter. Apart from the alternative dispute resolution techniques previously discussed, we use tactics such as offers of compromise and interlocutory applications to gain an advantage to our clients and seek to settle the matter with minimal legal costs.

Interlocutory Application

An interlocutory application is an application filed with the court during the course of legal proceedings that may be used to gain a tactical advantage. For instance:

• An application for security of costs
• An application to strike out pleadings
• An application to transfer proceedings to a different court

This can occur anytime from the filing of the statement of claim prior to the commencement of the hearing. The civil litigation lawyers at Brander Smith McKnight are experts at using these techniques to gain an advantage for our clients.

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Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.

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