SUCCESSFUL LITIGATION TACTICS WHICH TURN THE CASE AROUND

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It is normal for a civil proceedings to take 18 to 24 months to reach and complete a full trial.

In many cases, it could take even longer, up to 7 years. Legal proceedings is very costly and could cost hundreds of thousands of dollars. It is also highly risk, if you lose, you are very likely to also have to pay for the other party’s costs.

A decision on whether to litigate a matter must be made with extreme care.

Why Does It Take So Long?

The Australia legal system is very mature and the Court procedures are highly complex. There are many steps that must be taken in the normal course of proceedings before a case is ready for trial. This can easily take 12 to 18 months.

In addition to these steps in the normal course of proceedings, there are many other procedures in the process for interim applications to be made. These interim applications, if made, will delay the proceedings even more.

What is Litigation Tactic?

Litigation tactics are deployed to achieve your specific objectives, for example, to improve your position in order to facilitate a better outcome at negotiation, to improve your chance of success, to give you more clarity in a complicated situation, to secure or freeze assets of the other parties, etc.

However, do remember, every step you take or every application you make in the proceedings will cost you money, and it may also have cost implications if you were unsuccessful. Extreme caution must be used in deciding what tactic to use. To do this, you need highly skilled and experienced litigation lawyer to assist you.

Even though it is costly to make interim applications, in some situations, it can help you achieve an immediate “win”. One good example is a recent case we handled.

Case Study

Our client was sued by a business partner for misleading or deceptive conduct and breach of contract. It is my view that the claim was groundless or, at best, a very weak one. The partner was claiming around half a million as compensation. Our client was originally using another law firm and the claim in Court against our client proceeded for several months. Unfortunately for our client, the case was not properly conducted and the judge kept ordering costs against our client. They have also attempted to negotiate a settlement but have also failed.

Our client was stressed and felt helpless, and they came to see me for second opinion. In the first consultation with me, having briefly analysed the case, I told the client they are faced with several problems:

  1. Firstly, litigation is inherently costly and risky. For their case, I estimated over $100,000 in legal fees if the matter proceeds to a full trial. My question for them is even if they can afford it, do they want to incur this kind of expense?
  2. Secondly, they were stuck because they were being sued. They do not have a choice but to defend against the half a million dollar claim.
  3. Thirdly, they were not on the good side of the judge for continuously failed to comply with the court orders and procedures. This is undesirable.

The client was stuck in a very bad situation, having to try and save the business on the one hand, and having to deal with the legal case on the other hand. She had no control of the case and the judge was losing patience with her.

To save her situation, my advice and strategy was very clear:

  1. First, we must turn her position around from being reactive to pro-active. We must take control of the proceedings and take control of the overall situation. We want to dictate the rhythm of the matter. Can we do this? Of course we can, and we did, through the litigation tactics (see below).
  2. Secondly, we want to improve the client’s position, from being sued and having no bargaining power, to counterclaiming against the plaintiff and give her better bargaining position.

To achieve these, we made two interim applications to the Court:

  1. We applied and moved the matter into a Case Management List. As a result, we were able to move the case to another judge. Strategically, this was advantageous to the client.
  2. We then made an application to the Court for security for cost against the Plaintiff, as the business partner was a foreign person with no assets in Australia. Our application was opposed by the plaintiff’s lawyer. We were successful and the Court ordered that the plaintiff pays costs into the Court before the proceedings is allowed to continue. (see diagram – Court Order). Subsequently, the plaintiff failed to comply and as a result, the case has now been moved into an inactive list. (see diagram 2 – Court Order 2) This is an excellent example of how litigation tactics can help a party completely turn a case around. The client now does not need to spend over $100,000 in legal fees, and moreover, the plaintiff has disappeared and claim against our client is gone. This became an immediate “win” for the client.

 

 

 

 

 

 

 

 

 

 

 

 

ABOUT THE WRITER

Kelvin Tang has over 14 years’ experience practising law in Western Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing migration advice to clients, advising on “Eligible Businesses” within the definition of the Migration Regulations, assisting migrants (investor of the business) with satisfying migration requirements, making visa applications and appealing cancelled or refused visas in the Federal Court of Australia, Administrative Appeals Tribunal and Migration Review Tribunal. Kelvin also has extensive experience in civil litigation, commercial and corporate law matters.

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