Civil Litigation + Dispute Resolution

You have the right to remain silent … in your civil legal dispute

By the time you approach a lawyer to assist with your civil legal dispute you may have already discussed the matter in detail or sent text messages/emails to the other party, their agent, insurance company or lawyers.

Whilst you might think you are progressing the matter:

➲ This is generally a mistake!‍

Most people [unless they are experienced in litigation or legal dispute resolution] will unknowingly proceed to make these communications with the other side on an "open” basis.

This means that everything that is said or written might be capable of being used by the other parties in any subsequent legal proceedings.

We recommend you don't say or write anything until you have spoken to your lawyer

It is generally known that in any criminal matter, you have the “right to remain silent …” as this is well-covered territory on TV/Movie Legal Dramas and in the media.

When it comes to civil disputes we recommend you adopt the same position.

Our advice may be spot on when it comes to large $$ civil disputes.

Proceeding without your lawyer

When the matter is only a minor one, you may not want to go to the time and/or expense of engaging legal advice specific to your situation.

Q: How then can you proceed?

A: Very carefully, and with the assistance of some very specific legal phraseology which you may or may not have seen before.

Please refer to our blog article “How to cast a magic legal spell? The protection afforded by Without Prejudice Settlement Negotiations." for more information.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Generally speaking, to help ensure you obtain the best possible outcome, it is recommended that as soon as practical you:

1️⃣ Proceed to obtain legal advice;

2️⃣ Instruct your lawyer to inform the other side that you have a claim against them, and attempt to settle the matter; and if this is not successful

3️⃣ Proceed to take steps to enforce your legal rights without any further delay.

Apart from the risk of the lapse of any Statute of Limitations Period, if your claim seeks equitable relief, failure to provide notice to the defendant that you have a claim and intend to enforce it, may open the door to allow the defendant to seek reliance on the equitable defence of laches, or more generally estoppel with the circumstances of the case unfolding in support of these defences the longer the defendant is able to show inaction on your part.

What is the equitable defence of laches?

Laches is a defence only available to a defendant in equity, where a plaintiff's lack of diligence and activity in making a legal claim, or moving forward with legal enforcement of a right, is viewed as conduct which allows the defendant to develop a belief that the plaintiff will not be seeking to make any claim and to continue about their life dealing with their affairs in reliance on this belief. Wikipedia

In Streeter v Western Areas Exploration Pty Ltd (No 2) (2011) 278 ALR 291 at para. [635] per McLure P considered:

"Whether the conduct of the plaintiff amounted to an acquiescence or caused the defendant to alter their position in reliance on the plaintiff’s acceptance of their actions”.

Consequently, a defendant may be able to argue the equitable defence of laches on a much shorter time frame than the relevant statutory limitation period.

In Hourigan v Trustees Executors and Agency Co Ltd (1934) 51 CLR 619 per Rich J:

The Court will not “disregard the election of the party not to institute his claim and treat as unimportant the length of time during which he has slept upon his rights and induced the common assumption that he does not possess any”.

In Gillespie & Ors v Gillespie [2013] QCA 99 MARGARET WILSON J (with whom MARGARET McMURDO P & WHITE JA agreed) at para. [79] of her judgment provided a summary of the applicable law regarding the equitable defence of Laches:

"Laches is an equitable doctrine, under which delay can bar a claim to equitable relief."

Deane J (with whom Mason CJ agreed) observed in Orr v Ford that the ultimate test is that enunciated by the Privy Council in Lindsay Petroleum Co v Hurd –

“… whether the plaintiff has, by his inaction and standing by, placed the defendant or a third party in a situation in which it would be inequitable and unreasonable ‘to place him if the remedy were afterwards to be asserted’: see Erlanger v New Sombrero Phosphate Co, and also, per Rich J, Hourigan.”

The learned authors of Meagher, Gummow and Lehane’s Equity Doctrines and Remedies posit that there are two types of laches –

(i)         delay with acquiescence, where prejudice to others need not be shown; and

(ii)        more commonly, delay with prejudice to others.

However, in Fisher v Brooker Lord Neuberger said –

“Although I would not suggest that it is an immutable requirement, some sort of detrimental reliance is usually an essential ingredient of laches, in my opinion. In Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221, 239-240, Lord Selborne LC, giving the opinion of the Board, said that laches applied where ‘it would be practically unjust to give a remedy’, and that, in every case where a defence ‘is founded upon mere delay… the validity of that defence must be tried upon principles substantially equitable’.

He went on to state that what had to be considered were ‘the length of the delay and the nature of the acts done during the interval, which might affect either party, and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy’.”

Trying the validity of the defence on equitable principles involves the balancing of equities.  

In Erlanger v New Sombrero Phosphate Co Lord Blackburn said –

“…it must always be a question of more or less, depending on the degree of diligence which might reasonably be required, and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it.

The determination of such a question must largely depend on the turn of mind of those who have to decide, and must therefore be subject to uncertainty; but that, I think, is inherent in the nature of the inquiry.”

And in Fysh v Page Dixon CJ, Webb and Kitto JJ said –

“If a plaintiff establishes prima-facie grounds for relief the question whether he is defeated by delay must itself be governed by the kind of considerations upon which the principles of equity proceed.

If the delay means that to grant relief would place the party whose title might otherwise be voidable on equitable grounds in an unreasonable situation, or if, because of change of circumstances, it would give the party claiming relief an unjust advantage or would impose an unfair prejudice on the opposite party, these are matters which may suffice to answer the prima-facie grounds for relief.”

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

AUSTRALIANS CAN NOW INSURE THEMSELVES AGAINST LOSS AT TRIAL

Australian claimants looking to protect themselves against a loss at trial can now insure themselves locally instead of sourcing cover from overseas

In late 2016, Aon announced the first Australian “After the Event” (ATE) policy for claimants looking to protect themselves against a loss at trial through underwriter Ironshore Australia Pty Ltd.

ATE insurance protects claimants, whether a client or a law firm, by partially deferring payment of the premium, and payment is contingent on the success of the claim.

Eden Fletcher, National Financial Lines Placement Manager, Aon Risk Solutions Australia said this was a significant step for the Australian legal system.

“ATE insurance has been established in the UK for some time and Australian clients have been able to access the cover by going abroad. However, the overseas policies are not made with the Australian market and legislative system in mind. By being able to now access the product here, it will give clients comfort the product is fit for purpose, and is commissioned by local lawyers,” he said.

“Australia has become the most likely jurisdiction outside of the USA in which a corporation will face significant class action litigation. The risks and costs of fighting these cases are high, most are settled before they reach the courts. With a local solution now available, this provides solicitors with an opportunity to take on more cases as their client’s representative, given the client will have the protection of this insurance,” Mr Fletcher said.

The intention of this policy is not to encourage litigation, since premiums provide an incentive to settle early rather than progress deeper into trial, with the rate varying according to the stage at which the litigation is settled.

“We believe ATE insurance will be eagerly explored by law firms acting for the claimant, as it will make a higher percentage of potential class actions even more viable than present, subject to the merits of the case. When there is ATE insurance behind the case, it validates the case has a reasonable chance of success given Ironshore’s due diligence and underwriting methodology,” Mr Fletcher said.

To find out more about ATE litigation insurance:

➲ Contact Us.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

The book “Pleadings without Tears: A Guide to Legal Drafting Under the Civil Procedure Rules” by William Rose [revised & updated by Roger Eastman] we have in our law firm library in its 9th edition when it was published in 2017.

More editions of this highly valued & trusted guide will no doubt ensue.

The book was originally written back in 1990 specifically to address the problem of tears being shed over mistakes being made in Pleadings.

Trust me when I say that despite all the warnings, mistakes in Pleadings continue to this day.

There are good reasons why you don't want to be the party left crying over what could have been!

What are Pleadings?

Whether you are a self-represented litigant in a Tribunal or represent by a Solicitor or a Barrister in a Court or Tribunal the "Pleadings" will be the sum total of all of the documents containing the application or claim, the defence and counterclaim, the reply or answer, and any requests for and responses to further and better particulars.

In the case of an appeal, think of the pleadings as your stated grounds of appeal within your Notice of Appeal, etc. if you get these wrong then your appeal is likely to be dismissed or struck out before you have had the chance to actually submit the details of your appeal to the appeal court.

Why are Pleadings so important in Civil Litigation?

When you hear the member/judge say the words "the problem is in the Pleadings" or words to that effect you might need to have your tissues on hand.

A great analogy is baking a cake and discovering too late that you left out a key ingredient.

There is no guarantee you will be able to amend the Pleadings to fix the problem at the last minute.

You are generally prevented from making the same claim more than once.

Your missed claim may now be subject to the statute of limitations preventing it from being commenced as it is out of time.

An error in the Pleadings can be irreversibly fatal to the outcome of the civil litigation, or substantially impact on the result or the award of costs once the legal proceedings have completed.

A failure to state valid grounds grounds of appeal within a Notice of Appeal may cause your appeal to be dismissed or stuck out, with the potential for cost orders to be made against you for the other parties legal costs (if any) incurred in responding to your incompetent or deficient Notice of Appeal.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

NSW UCPR Procedure to file a valid timely Appeal to the NSW Court of Appeal:

1️⃣ If a Notice of Intention to Appeal (NSW UCPR Form 103) is to be filed with the Court of Appeal, it must be done so within 28 days after the material date: Uniform Civil Procedure Rules (NSW) 2005 NSW UCPR r 51.8; Supreme Court Act 1970 (NSW) s48(1)(a)(iv).

Note: The filing and service of a Notice of Intention to Appeal (NSW UCPR Form 103) is not an originating process and DOES NOT operate to commence proceedings in the Court of Appeal: NSW UCPR r 51.9 (3).

2️⃣ The material date in this case is the date of judgment, or determination of the decision being appealed.

3️⃣ The effect of filing a Notice of Intention to Appeal (NSW UCPR Form 103) is to extend the clock from 28 days to 3 months from the material date within which a Notice of Appeal (NSW UCPR Form 105) is to be filed: NSW UCPR rr 51.6, 51.9(1)(a).

4️⃣ The reason for such an effect is that if a Notice of Intention to Appeal (NSW UCPR Form 103) is not filed, the Notice of Appeal (NSW UCPR Form 105) itself must be filed within 28 days of the material date: NSW UCPR r 51.16(1)(c).  

5️⃣ Failure to lodge a Notice of Intention to Appeal (NSW UCPR Form 103) within the 28-day limitation requires two main steps to be taken:

➲ The Notice of Appeal (NSW UCPR Form 105) to be submitted; and

➲ An extension of time to be sought within that notice.

6️⃣ For the request for an extension of time, details regarding the following matters must be proffered:

➲ Explanation for the delay;

➲ No prejudice was suffered by the respondent due to the delay;

➲ The application has a real prospect of success;

➲ That the relief sought is within the Court’s jurisdiction;

➲ A compartmentalised outline of the issues/grounds of appeal to be raised.

7️⃣ Failure to satisfy the criteria set out in paragraph 6️⃣  above, which involves explaining away the delay and filing an arguable case, will result in a refusal by the Court to grant an extension of time, and accordingly, an unsuccessful appeal: Fisher v Roads and Maritime Services [2018] NSWCA 295, [5]-[7], [9], [17]-[18].

8️⃣ At the same time or before filing of the Notice of Appeal (NSW UCPR Form 105) a Summons Seeking Leave to Appeal (NSW UCPR Form 104), if leave to appeal is required (Legal advice is strongly recommended on this point) must be filed and served on each necessary party: NSW UCPR rr 51.9, 51.10.

Note: Where the subject matter of an appeal is not a monetary sum or the matter at issue amounts to the value of less than $100,000, parties must seek leave to appeal: s 101(2)(r) Supreme Court Act 1970 (NSW).

9️⃣ A copy of the Notice of Intention to Appeal (NSW UCPR Form 103) +/or Notice of Appeal (NSW UCPR Form 105) + Summons Seeking Leave to Appeal (NSW UCPR Form 104) (if applicable) must also be filed in the Court registry of the Court below or or a copy lodged with the officer of the Court below: NSW UCPR r 51.42.

🔟 If a Summons Seeking Leave to Appeal (NSW UCPR Form 104) needs to be filed, it can include the request for an extension of time (if applicable): NSW UCPR r 51.10(3).

Court Published Resources:

‍Practice Note No. SC CA 1

Common Procedural and Preliminary Issues arising in Court of Appeal Proceedings

Credits:

The above overview of the NSW UCPR Court of Appeal procedure was prepared by Shakvaan Wijetunga | Virtual Intern, Blue Ocean Law Group℠

Minor updates + Court Published Resources added by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Prior to deciding whether to commence Legal Proceedings

Laches + Limitation Periods

Please read our FAQ: What are the downsides to delaying 1️⃣ Informing the other side of my claim against them; or 2️⃣ Filing my claim with the Court?

Litigation Risk

We strongly recommend you obtain legal advice + assistance regarding:

✅ Determining whether the Debtor has the potential financial means to ultimately pay the debt + interest + legal costs should you be successful in your claim;

✅ If the Debtor is an individual, conducting a Bankruptcy Search;

✅ If the Debtor is a company, conducting a Bankruptcy Search;

✅ Determining whether the Debtor has been or is currently involved in other legal proceedings;

✅ The legal merits of your claim; and

✅ Ensuring you understand that it is extremely rare to recover your legal costs in litigation; and

✅ The inherent Litigation Risk of potential liability for the Debtor's legal costs in commencing legal proceedings in a Court, as opposed to a Tribunal;

✅ The cost + availability of litigation funding, +/or litigation insurance.

Valid + Effective Service

The requirements for valid + effective Service of a Filed Application or Statement of Claim vary depending on the relevant Court or Tribunal.

We strongly recommend you obtain legal advice + assistance regarding:

✅ The selection of the appropriate Court or Tribunal to bring suit; as well as

✅ The drafting of the required Application/Statement of Claim; and

✅ The compliant Service of same on the Debtor once legal proceedings have been filed.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

How do I ensure I get the pre-litigation steps right?

If you have a written agreement with the Debtor/standard terms of trade

The identity of the Debtor and their address for service (incl. email +/or fax) should already be clearly specified in the agreement, or provided by the Debtor as part of your standard business processes.

We also assume that the terms of your agreement will provide permission to serve notices via email or fax (if required).

If there is no written agreement

You will need to consider whether you already know the actual identity of the Debtor/Defendant and their address for notices/Service.

The Debtor/Defendant may not be the person with whom you made the original agreement, or the person who actually published the defamatory statement.

The person you might consider is the Debtor/Defendant may have been acting/dealing as an agent or employee of another person, the actual owner/s of the business, a sole trader, partnership, unincorporated association, company, etc.

If you only have the name of the business, you can start by conducting a free ASIC business names index + business names holder organisation/person searches to determine the owner of the business name, followed by a paid ASIC search to determine a valid + current address for Service.

If the Debtor/Defendant is a Company

Before sending a Letter of Demand/Statutory Demand/Concerns Notice to a Debtor company, we strongly recommend you conduct a paid current ASIC Company Search (min. cost $9) to confirm that:

✅ The Debtor/Defendant company is not currently under administration/in liquidation; and to

✅ Ascertain the companies current registered office address for service.

Legal Assistance

If you have any questions regarding the above please contact our legal team to discuss.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Application for a NSW Court appointed Referral for Pro Bono [Free] Legal Assistance

Procedure

1️⃣ An application for a Court appointed Referral for Legal Assistance must be made by a Notice of Motion setting out the order sought from the Court that assistance be granted: Uniform Civil Procedure Rules 2005 (NSW) rr 18.1, 18.3(1)(f) (‘UCPR’).

A blank [Form 20] Notice of Motion can be downloaded here.

2️⃣ Approval depends on whether the Court is satisfied that referral for legal assistance is in the interests of the administration of justice and whether the applicant is otherwise unable to obtain assistance: UCPR r 7.33(2).

3️⃣ The matters the Court may take into account for this purpose include:

⚖️ The means of the applicant;

⚖️ The applicant’s capacity to obtain legal assistance on his/her own;

⚖️ The nature and complexity of the proceedings: UCPR r 7.36(2); and

⚖️ Any other matter that the court considers appropriate.

UCPR r 7.36 is annexed in its entirety to this FAQ (refer below).

4️⃣ There must be evidence that the application has merit, best in the form of an affidavit in support of the application: Bodenstein v Voukelatos [2010] NSWSC 249, [2].

5️⃣ Should the application be successful, the referral will be made to the Pro Bono Panel of solicitors and barristers maintained by the Registrar of the Supreme Court for the very purpose of the legal assistance scheme: UCPR r 7.35; MM International (Australia) Pty Ltd v Workers Compensation Nominal Insurer [2015] NSWSC 1846, [9] (‘MM International’).

Overarching Principles to be met by the Application

6️⃣ The  application would be drafted most effectively following the matters set out in r 7.36(2): MM International, [11].

7️⃣ The interests of the administration of justice demand that complex matters be disposed of efficiently, which is best achieved through legal assistance: MM International, [17].

8️⃣ The  interests  of  the  administration  of  justice  also  demand that  the scheme  not  be exploited,  and  so  the  applicant  must  show  that  there  is  a  real  basis for  the  scheme  being productive of benefit to the applicant: MM International, [18].

9️⃣ However, the application will still be successful even if the prospects of obtaining relief from the court are slim: MM International, [19].

Grounds for Application

🔟 Pursuant to r  7.36(2)(a), if the applicant can show limited means, for example:

✅ Rented accommodation;

✅ No other assets; and

✅ An unprofitable  business;

This first matter will be satisfied: MM International, [12].

1️⃣1️⃣ Pursuant to r 7.36(2)(b), the applicant must show an inability to obtain legal assistance, whether or not due to an inability to afford to pay a solicitor: MM International, [13].

1️⃣2️⃣ Even if an applicant has previously been able to obtain legal assistance for a different matter, that fact will not prejudice the application: MM International, [14].

1️⃣3️⃣ It should also be noted that previous representation for a different matter is not the same as assistance under a previous Court referral, the latter being a bar to an application: UCPR r 7.36(2A); MM International, [16]; Clemett v NSW Lotteries Corporation Pty Ltd (No 2) [2013] NSWSC 2037, [16]-[17](‘Clemett’).

1️⃣4️⃣ Pursuant to r 7.36(2)(c), the matter for which the applicant is seeking assistance must have a degree of complexity, namely an identified question of law, for example:

➲ An issue with respect to a statute, noting that without legal assistance, identifying such a question in itself would pose difficulties to an applicant: MM International, [15]; c.f. Clemett, [14].

UCPR r 7.36

7.36 Referral to a barrister or solicitor (cf SCR Part 66A, rule 4; DCR Part 28C, rule 4)

(1) If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

(2) For the purposes of subrule (1), the court may take into account—

(a) the means of the litigant, and

(b) the capacity of the litigant to obtain legal assistance outside the scheme, and

(c) the nature and complexity of the proceedings, and

(d) any other matter that the court considers appropriate.

(2A) The court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the court is satisfied that there are special reasons that justify a further referral.

(3) The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person.

(4) If a litigant is referred for assistance under this rule, the registrar must attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the Pro Bono Panel.

(4A) If the registrar is unable to arrange legal assistance for a litigant who is referred under this rule within 28 days after the litigant’s referral, the registrar may make an order terminating the litigant’s referral.

(5) The registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral.

(6) A referral to a barrister does not prevent a referral also being made to a solicitor and a referral to a solicitor does not prevent a referral also being made to a barrister.

Credits:

The above summary of the procedure to apply for a Court appointed Referral for Legal Assistance was prepared by Shakvaan Wijetunga | Virtual Intern, Blue Ocean Law Group℠.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.