1. What is the nature of the dispute?
- breach of contract in relation to the purchase or sale of land
- building and construction dispute in relation to residential or commercial property
- strata title dispute
- commercial tenancy dispute
- breach of agreement for the purchase or supply of goods or services
- disputed statutory demand
- professional negligence
- misleading and deceptive conduct in relation to?
2. When did the dispute commence?
- This is important because legal proceedings must be commenced within the applicable statutory limitation period (usually 6 years)
3. What is the dollar value of the dispute? What are you claiming? What is the other party claiming?
- The amount you are claiming will determine which Court has jurisdiction to determine the dispute
- In addition to, or instead of money you might be seeking an injunction or a declaration about your rights
- You must consider what the other party is claiming, as that may offset, exceed or otherwise affect what you are claiming
4. What property (if any) is involved in the dispute?
- Is commercial or residential property involved in the dispute? This and the nature of the dispute will determine which Acts of Parliament might apply
- Is personal property involved in the dispute? If so, the Personal Property Securities Act 2009 (Cth) might apply
5. Which parties are involved in the dispute?
- You must correctly identify the names of relevant individuals and companies; for example which parties entered into a particular contract?
- Note that trading names are not legal entities
- An ASIC search should be undertaken of each company, to determine its current status, directors and shareholders, and any other relevant information
6. What is the current status of the dispute? Is the dispute already in Court (or in a Tribunal)? If so what is the current status of the legal proceeding? What is the next step?
- If the dispute is already in Court (or in a Tribunal), orders will usually have been made regarding the next steps
- You need to know what those orders are
- In some cases a failure to comply with an order of the Court (or Tribunal) can have adverse consequences for your case, including dismissal of your case
7. What evidence are you relying on for your claim or defence? (eg. contracts, quotes, emails, letters, text messages, conversations)
- To prove your claim you must have relevant evidence which supports it. Evidence you think is relevant may not admissible in Court
- The best evidence is generally contemporaneous written evidence of relevant events and circumstances, rather than a witnesses’ recollection of past events and circumstances
- You will need to gather together all of the relevant documents in support of your claim, and against it
- Civil litigation is played with all relevant documentary evidence ‘on the table’, so that it can be inspected by all parties
8. What evidence is the other party relying on?
- Usually there are 2 sides to a story
- You must consider the other party’s side of the story and the evidence they are relying on, so that it can be assessed for its strength, or otherwise
9. Has the other party appointed a lawyer? If so, who?
- I will need to contact the other party’s lawyer, to find out his/ her client’s legal position, and attitude to resolving the dispute
10. Have you already obtained legal advice? If so, from who? What was the advice?
- It can be helpful to consider another lawyer’s advice
- The other lawyer will usually have identified some or all of the relevant facts and law
- If so, it will be easier and more cost-effective for me to provide a second opinion
11. What are your objectives? What would be a good result for you?
- It is rare to achieve a 100% victory (however it can happen if you hold all the cards, and they are played correctly)
- Be realistic about what you can achieve within your budget and time frames
- Define an outcome you are prepared to live with
12. Do you have a legal budget to resolve the dispute?
- It is important to have a legal budget at the outset, which is proportionate to the amount in dispute, and the strength of your legal position
- A “win at all costs” mindset is rarely sensible, and generally ends up costing far more than anticipated
13. Do you have any time constraints to resolve the dispute?
- Dispute resolution often takes much longer than you expect
- A tailored strategy will be necessary if you have a particular time constraint
14. What steps have you taken to try to resolve the dispute?
- It is helpful to know what you’ve done to try to resolve the dispute, and what the other party has done in response
- This will enable me to determine the next steps that should be taken
15. Are you open to a negotiated resolution?
- A negotiated outcome is generally preferable to a litigated (Court) outcome
- In a negotiation you are in control of the outcome, whereas in Court the judge will be in control of the outcome
- That said, it is often necessary to commence legal proceedings in order to create sufficient leverage to achieve a satisfactory negotiated outcome