Queensland Business Number BN21073764
Australian Business Number ABN 88 645 748 398
Developer: Ross Lee (c)
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1. Overview of the litigation process
Litigation is an adversarial process, usually determined before a judge sitting in open Court without a jury. Typically, litigation matters follow these procedural steps:
- Commencement pleadings (statement of claim and defence);
- Disclosure of documents;
- Gathering and exchange of evidence (including expert evidence);
In addition to these steps, there will commonly be a number of mentions and directions hearings before a judge along the way. If during the course of the litigation there are any disputes between the parties about the conduct of the litigation (an “interlocutory dispute”), one or other of the parties may also make an application to the Court for specific orders, usually about the future conduct of the litigation. These applications typically add to the cost of the litigation, but may bring the dispute to trial more quickly.
Both parties are required to plead the case they intend to litigate at trial. This means the plaintiff who has started the litigation must set out in a statement of claim all the allegations it intends to make against the defendant. The defendant in turn is required to set out in its defence all the reasons it says it is not liable for the case pleaded against it. The intention is that both parties are prohibited from “keeping something up their sleeve” to surprise the other party with at trial.
Generally, pleadings are only allowed to contain statements of relevant facts on which the party relies, but not the evidence by which those facts will be proved. The pleadings are designed to narrow and define the issues for decision, set the boundaries for disclosure and define the scope of the relevant evidence.
Disclosure means the process of disclosing (sometimes called “discovering”) documents that are relevant to an issue in dispute in the litigation.
Disclosure requires each party to assemble, list, and disclose (by inspection or exchange of copies) any documents on which it intends to rely, or which are relevant to an issue in dispute between the parties. This means that a party cannot simply disclose those documents that adversely affect another party’s case. The parties are required to also disclose relevant documents that support another party’s case even if those documents may harm its own case. Disclosure can be onerous and it is becoming more common for parties to seek, and for the Court to make, orders which limit the scope of disclosure. This is an important part of the litigation and will be covered in more detail in a letter to you.
- Evidence and examination of witnesses
Generally witnesses will be called by the parties to give evidence at trial. They will then need to be available during the trial in case they are required for cross-examination or re-examination at trial. In some jurisdictions, the evidence is given prior to trial in the form of a statement or affidavit, and the witness will only need to attend Court if required for cross-examination or re-examination.
Expert evidence may also be part of this process. Expert witnesses are expected to only give evidence about matters within their area of expertise, although this does include allowing them to express an expert opinion about a matter. Statements of fact on which an expert has relied must be able to be supported by independent evidence. They are expected to be impartial and not act as an advocate for the party that engaged them when doing so.
In some jurisdictions (e.g. the Planning & Environment Court of Queensland) there is a tendency to order the parties in conflict to arrange for their respective experts to meet before trial and produce a joint expert report setting out the issues they agree on and those they still disagree about. The aim of these pre-trial joint conferences between experts is to narrow areas of disagreement which may in turn help to shorten the trial.
- Alternative dispute resolution (ADR)
Depending on the type of matter in dispute and the forum, the Court may order the parties to participate in an alternative dispute resolution process, such as mediation or a case appraisal. While neither of those processes is binding on the parties in the same way as a judgment, it will give the parties an opportunity to get together to attempt to resolve the matter (or at least narrow the issues in dispute) with the assistance of an impartial third party. The parties generally share the cost of engaging the mediator. Typically, mediations are conducted on a “without prejudice” basis meaning nothing said in the mediation is able to be used against the party later. Of course, it is always open to the parties to get together at any stage for a without prejudice conference to attempt to settle the dispute, or to otherwise attempt to negotiate informally to resolve the dispute without the need for a fully contested adjudication. You may need to obtain independent accounting/tax advice on any proposed settlement on issues such as CGT; Duty; GST; Income Tax; Div 7A; or Foreign Resident Capital Gains Withholding regime (if possible acquisition or disposal of real property or interests in it).
- Trial and Judgment
A trial will typically be conducted in open Court before a judge. It is usual for the parties to engage the services of barristers for the trial, to take advantage of their particular skills in advocacy and presenting the case as well as for their knowledge of Court procedure and the rules of evidence.
The judge will hear the case, examine the admissible evidence and decide the matter by delivering a written judgment setting out his or her reasons for judgment. This requires the judge to decide on all the matters in issue between the parties.
If either party believes that there are grounds for appeal (e.g. the judge has made an error of law) they may be able to lodge an appeal against judgment. The appeal will then be determined by a higher Court. Strict time limits apply to file an appeal, and the right to apply is not automatic in all jurisdictions. For example, if a party is unhappy with the judgment of the Court of Appeal and wishes to appeal to the High Court of Australia, it must first seek leave (ask for permission) and be granted it from the High Court before any such appeal will be heard.
Generally legal proceedings must be commenced within prescribed timeframes (for example under the Limitation of Actions Act 1974 (Qld)), failing which your rights may be lost. In addition, there are prescribed timeframes during the litigation process itself that must be complied with. In some cases failure to comply can result in negative costs consequences and the action being dismissed.
Every case is different and it is difficult to state precisely how long a matter will take to resolve. Increasingly, the Courts at all levels are becoming more pro-active in managing the lists of cases currently before them and will want to adopt an active case management approach. What this means in effect is that cases that may once have dragged on for many years if one or both parties to the dispute were slow to act are now being actively pushed along by a judge and may be concluded in much less time. Despite these efforts to actively manage the case, the litigation process can still be long and drawn out. To a large degree this is affected by the complexity of the dispute and the attitude of the parties.
- Legal Costs
After delivery of the judgment, the judge will make an order about payment of legal costs. Although orders about costs are at the discretion of the Court, generally, “costs follow the event”. This means that the unsuccessful party will be ordered to pay the legal costs of the successful party, which includes lawyers’ professional fees as well as other expenses such as expert and barrister fees. Generally the Court orders the costs paid on a standard (“party and party”) basis. In effect, this means that the successful party will only recover somewhere between half and two thirds of its actual expenses. It is therefore common that a party can be successful at trial and yet still be left out of pocket.
Sometimes a Court will order that the unsuccessful party pay the other sides’ costs on an “indemnity basis”. In practice, the amount recovered will not be a full indemnity, although it will be greater than standard costs.
Regardless of jurisdiction, it is not unusual for legal costs to be in the many tens or even hundreds of thousands of dollars. Therefore, even if you succeed and are awarded costs, you could be significantly out of pocket. Similarly, if you do not succeed, you could be exposed to a significant costs order in favour of the opposing party. In addition, the process of assessing and enforcing costs can itself be costly and time consuming, and there is the further risk that the party liable for costs may ultimately not have the capacity to pay them.
During the course of the litigation, it is likely that one or more parties will make offers to settle the dispute. Even if the offer is not accepted, it can still have an effect on the outcome by affecting the costs order made by the judge. For example, if during the litigation a plaintiff made an offer to settle for less than it was ultimately awarded at trial, one possible outcome is that the defendant will be ordered to pay the plaintiff’s costs on an indemnity basis, at least from the time the offer was rejected or not accepted.
- Vagaries of litigation and other considerations
Litigation is inherently risky and uncertain because the result is not definite until judgment is given and any appeal rights are exhausted. Although it may be possible to give an opinion about prospects of success if it goes to trial, ultimately there is no certainty because of the adversarial nature of the process. For example, a witness who has said one thing in his statement may change his position under cross-examination or contradict himself, making his testimony carry less weight.
Although we have explained to you how litigation is conventionally run, you should be prepared for the unexpected as it is quite possible that the other party will take steps, raise issues or lead evidence that was not anticipated at the outset. For example, it is not uncommon for a party being sued to bring a counter-claim of its own against the party suing it. This will often increase the risks, the cost and the time it will take to resolve the dispute, and therefore increase the uncertainty of the outcome.
Furthermore, even if you are 100% successful in your claim, there is the potential that your opponent will be unable to satisfy the judgment.
You may need to obtain specialist taxation and accounting advice as to the impact of any judgment in your favour. For example, the recovery of damages could give rise to a taxation liability.
In addition to the direct legal costs and expenses associated with litigation, there are often significant disruptions to a party’s business interests or employment. Depending on the nature of the dispute, it may also attract unwanted publicity. Litigation is generally conducted in open Court so the public and the media are free to sit in Court and observe the trial. Increasingly, the pleadings themselves are often available for inspection and downloading from the Queensland Court’s website. This exposure and disruption is an unavoidable consequence of litigating.
Finally, you need to be aware that litigation can be an extremely stressful and emotionally draining process that should not be entered into lightly. Once litigation is started, you will lose some of the control you previously had – you will then be subject to the processes, procedures and timetables of the Court. It is not necessarily an easy matter to stop litigation either if you should change your mind or decide it is all becoming too hard or too costly. You may for example be required to pay some or all of the other party’s legal costs to that point before the matter can be discontinued by the Court.
Lee Lawyers is committed to respecting your right to privacy and protecting your personal information.
Lee Lawyers is bound by the Privacy Act 1988 (Cth) (Act) and the Australian Privacy Principles (APPs) set out in the Act. However, a great deal of the work performed by Lee Lawyers falls within the following permitted general situations as set out in section 16A of the Act:
- The collection, use or disclosure is reasonably necessary for the establishment, exercise or defence of a legal or equitable claim; or
- The collection, use or disclosure is reasonably necessary for the purposes of a confidential alternative dispute resolution process.
Lee Lawyers will ensure that all officers, employees and subcontractors are aware of and understand Lee Lawyers’ obligations as well as their own obligations under the Act. Lee Lawyers will achieve this through the provision of training and through maintaining and implementing internal policies and procedures to prevent personal information from being collected, used, disclosed, retained, accessed or disposed of improperly.
The purpose of this Policy is to:
- Give you an understanding of the kinds of personal information Lee Lawyers collects and holds;
- Clearly and concisely communicate how and when Lee Lawyers collects, discloses, uses, stores and otherwise handles personal information;
- Inform you about the purposes for which Lee Lawyers collects, holds, uses and discloses personal information;
- Provide you with information about how you may access your personal information, and seek correction of your personal information;
- Provide you with information about how you may make a complaint, and how Lee Lawyers will deal with any such complaint;
- Advise you of the circumstances in which Lee Lawyers is likely to disclose personal information to overseas recipients; and
- Enhance the transparency of our operations.
For the purpose of this Policy, the following terms will have the following meanings, as attributed to them by section 6 of the Act:
Health information means:
(a) Information or an opinion about:
(i) The health or disability (at any time) of an individual; or
(ii) An individual’s expressed wishes about the future provision of health services to him or her; or
(iii) A health service provided, or to be provided, to an individual;
that is also personal information; or
(b) Other personal information collected to provide, or in providing, a health service; or
(c) Other personal information about an individual collected in connection with the donation, or intended donation, by the individual of his or her body parts, organs or body substances; or
(d) Genetic information about an individual in a form that is, or could be, predictive of the health of the individual or a genetic relative of the individual.
Personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not, and whether the information or opinion is recorded in a material form or not.
Sensitive information means:
(a) Information or an opinion about an individual’s:
(i) Racial or ethnic origin; or
(ii) Political opinions; or
(iii) Membership of a political association; or
(iv) Religious beliefs or affiliations; or
(v) Philosophical beliefs; or
(vi) Membership of a professional or trade association; or
(vii) Membership of a trade union; or
(viii) Sexual orientation or practices; or
(ix) Criminal record
that is also personal information; or
(b) Health information about an individual; or
(c) Genetic information about an individual that is not otherwise health information; or
(d) Biometric information that is to be used for the purpose of automated biometric verification or biometric identification; or
(e) Biometric templates.
Collection of Personal Information
Lee Lawyers collects personal information in order to carry on its business as a law firm.
The information which Lee Lawyers collects will depend upon the reason for which it is collected. The main reasons are:
- To act as legal practitioners for clients.
- To respond to comments, enquiries or requests directed to Lee Lawyers.
The types of personal information Lee Lawyers may collect includes but is not limited to:
- Qualifications and employment history.
- Date of birth.
- Residential address.
- Postal address.
- Email address.
- Home telephone number.
- Work telephone number.
- Mobile telephone number.
- Occupation and business address.
- Financial information including details of employer, income, name of bank or financial institution.
Lee Lawyers may ask an individual to provide sensitive information. In addition, Lee Lawyers may collect sensitive information regarding any relevant third parties.
Lee Lawyers will only collect sensitive information in circumstances where:
- It is reasonably necessary for one or more of the services Lee Lawyers provides or functions Lee Lawyers carries out; and
- The relevant individual consents to the collection of the information; or
- Lee Lawyers is required or authorised by law to collect the sensitive information.
Lee Lawyers will, if it is reasonable or practicable to do so, collect personal information directly from the relevant individual.
Sometimes Lee Lawyers will collect personal information from a third party or a publicly available source. For example, Lee Lawyers may need to collect personal information from an individual’s legal adviser, from an individual’s past or current employers, from an individual’s medical practitioners, from an individual’s financial institution, etc.
If Lee Lawyers receives personal information that was not solicited, Lee Lawyers will determine as soon as reasonably practicable whether Lee Lawyers could have lawfully collected that information as part of its functions or activities. If Lee Lawyers is not satisfied that the information could be lawfully collected, then Lee Lawyers will (if it is lawful and reasonable) destroy the information or ensure that it is de-identified.
Individuals may choose to deal with Lee Lawyers anonymously or under a pseudonym where lawful and practical. Where anonymity or use of a pseudonym will render Lee Lawyers unable to provide the relevant service or do business, you may be requested to identify yourself.
For example, whenever documents are to be submitted to a court, a government agency or a financial institution, it is essential that Lee Lawyers record an individual’s name accurately.
Use and Disclosure of Personal Information
Any personal information collected by Lee Lawyers will only be used and disclosed for the purpose for which it has been provided to Lee Lawyers or as authorised under law.
Personal information provided to Lee Lawyers may be shared with its related companies. Lee Lawyers will take all reasonable and practical measures to keep such information strictly confidential.
Lee Lawyers may use an individual’s contact details in order to send the individual newsletters or other materials associated with its services. An individual may at any time opt out of receiving such materials by contacting Lee Lawyers (see the Contacting Us section for more information).
In order to perform one or more of our functions or activities, Lee Lawyers may transfer an individual’s personal information to offshore recipients in countries. In these circumstances, Lee Lawyers will take reasonable steps to ensure that the overseas recipient does not breach the APPs in relation to the information.
Personal information may need to be disclosed to external service providers or third parties engaged by Lee Lawyers in order for those service providers to fulfil their service obligations to Lee Lawyers. For example:
- IT service providers who assist in managing Lee Lawyers’ servers and networks may need to access personal information in order to maintain the servers and networks.
- Solicitors, barristers and experts engaged by Lee Lawyers may require access to personal information held by Lee Lawyers in order to investigate and advise on circumstances which may result in a claim being made, to determine whether indemnity is available for a particular claim, and to defend or resolve a claim.
Like many other businesses, Lee Lawyers relies on third party suppliers or contractors to provide specialised services such as web hosting, cloud computing technology and data storage services.
Where personal information is disclosed to an external party, Lee Lawyers will take reasonable steps to ensure that the external party treats such information confidentially and in accordance with the APPs.
There may be limited circumstances in which it is necessary for Lee Lawyers to collect a government related identifier such as a tax file number or Centrelink reference number. Lee Lawyers will not use or disclose government related identifiers unless required or authorized to do so by law or by a court or tribunal order, or in order to fulfill our obligations to a State or Territory authority.
Accuracy of Personal Information
Lee Lawyers will take reasonable steps to ensure that all personal information it collects, uses or discloses is accurate, complete and up to date.
If you believe your personal information is not accurate, complete or up to date, please contact Lee Lawyers (see the Contacting Us section for more information).
Personal information may be stored by Lee Lawyers in hard copy documents or electronically. Lee Lawyers is committed to keeping personal information secure and safe. Some of the ways we do this are:
- Requiring employees and contractors to enter into confidentiality agreements.
- Security measures for access to our computer systems.
- Providing a discreet environment for confidential discussions.
- Access control for our premises.
Lee Lawyers will review and update our security measures from time to time.
In addition, Lee Lawyers will review the personal information and sensitive information held from time to time, ensuring that information which is no longer needed for a purpose for which it was initially collected is destroyed or de-identified.
Your Privacy on the Internet
You may be able to access external websites by clicking on links Lee Lawyers has provided. Those other websites are not subject to Lee Lawyers’ privacy standards, policies and procedures. You will need to contact or review those websites directly to ascertain their privacy standards, policies and procedures.
Access to Personal Information
You may request access to personal information that Lee Lawyers holds about you (see the Contacting Us section for more information).
Lee Lawyers will acknowledge your request within 5 business days of the request being made. If access is being denied, Lee Lawyers will usually advise you in writing of the denial of access and the reasons for same within 15 business days of acknowledgement of the initial request. If access is being granted, access will usually be granted within 15 business days of acknowledgment of the initial request. Lee Lawyers will in any event advise you which timeframe applies to your request and if any delays are anticipated.
You will need to verify your identity before access to your personal information is granted.
While Lee Lawyers cannot and do not charge an “application fee” for you applying to access your personal information, Lee Lawyers may charge a fee for actually giving you access to your personal information in your preferred format (where reasonable and possible), which will cover Lee Lawyers’ costs involved in locating and collating information as well as reproduction costs.
Once your request has been processed by Lee Lawyers, you may be forwarded the information by mail or email or you may personally inspect it at the location where the information is held or another appropriate place. Whenever possible, Lee Lawyers will Endeavor to make the information available to you in the manner requested by you unless it is unreasonable to do so (e.g. if you have asked for the information to be emailed to you, Lee Lawyers will Endeavor to email the information to you. If the file size would be too large, Lee Lawyers may send you the information by hard copy instead of email).
If you are aware that Lee Lawyers holds personal information about you that is no longer accurate, complete or up to date, please contact Lee Lawyers (see the Contacting Us section for more information).
If you request access to your personal information, or if you request that Lee Lawyers correct your personal information, Lee Lawyers will allow access or make the correction unless it is considered that there is a sound reason to withhold the information, or not make the correction.
Under the Act, Lee Lawyers may refuse to grant access to personal information if:
- Lee Lawyers believes that granting access would pose a serious threat to the life, health or safety of any individual, or to public health or public safety.
- Granting access would have an unreasonable impact upon the privacy of other individuals.
- Denial of access is required or authorised by law or by a Court or Tribunal order.
- Giving access would be unlawful.
- The request for access is frivolous or vexatious.
- Legal proceedings are underway or anticipated and the information would not be accessible by way of the discovery process in those proceedings.
- Giving access would reveal Lee Lawyers’ intentions in relation to negotiations between Lee Lawyers and you in such a way as to prejudice those negotiations.
- Giving access is likely to prejudice enforcement related activities conducted by, or on behalf of, an enforcement body.
- Giving access is likely to prejudice action being taken or to be taken with respect to suspected unlawful activity or serious misconduct relating to Lee Lawyers’ functions or activities.
- Giving access would reveal information in connection with a commercially sensitive decision-making process.
If Lee Lawyers does not agree to make a correction to your personal information, you may provide a statement about the requested corrections, and Lee Lawyers will ensure that the statement is apparent to any users of the relevant personal information.
If Lee Lawyers does not agree to provide access to your personal information or to correct your personal information, Lee Lawyers will provide written reasons for the refusal and the mechanisms available to complain about the refusal (see the Complaints section for more information).
- This website uses “cookies” to facilitate website functionality and to allow a user’s device to interact more efficiently with this website.
- A cookie is a small piece of data that is sent from a website to a user’s browser or other internet enabled device.
- This website uses “session cookies”, which remain on a user’s browser or device until the user leaves the website.
- The settings on your browser or internet enabled device may allow you to disable cookies, however this may impact the functionality of this website.
If you consider that there has been a breach of the Australian Privacy Principles, you are entitled to complain to Lee Lawyers (see the Contacting Us section for more information).
Lee Lawyers will acknowledge receipt of a complaint within 5 business days.
Lee Lawyers will investigate the complaint and attempt to resolve it within 20 business days after the complaint was received. Where it is anticipated that this timeframe is not achievable, Lee Lawyers will contact you to provide an estimate of how long it will take to investigate and respond to the complaint.
If you consider that Lee Lawyers has not adequately dealt with a complaint, you may complain to the Office of the Australian Information Commissioner on the below details:
Officer of the Australian Information Commissioner (OAIC)
GPO Box 5218
SYDNEY NSW 2001
1300 363 992
You may contact Lee Lawyers by mail, email or telephone as follows:
PO Box 1310
Southport Qld 4215
Professional Standards Act 2004
Liability limited by a scheme approved under professional standards legislation.