Litigation services

Our team

Our litigation team comprises:

• Jeremy Birman team leader
• Tobias Young
• Gregory Stockton
• Samuel Pack

Call them on 9220 4439 to discuss your needs.

How we can help

Our role is to:

• identify an outcome or a range of outcomes that are feasible and achievable;

• in consultation with you, develop the best strategy to achieve your desired outcome; and

• give you objective independent advice at all times – not sympathy or moral support.

As with most of our services, we recommend an initial consultation as the first step in determining your legal rights and remedies.

Arrange an initial consultation Find out where you stand at a short ($99) or extended consultation ($770) with our team of lawyers.  Visit initial consultation for more information Make an appointment now: use our online booking request or telephone 9220 4439 (1800 018 845 freecall from regional Western Australia) during business hours.  If you're not booking online, you could save time at the consultation by completing our Initial Consultation Form (PDF document) and bringing it with you to the consultation Tips on how to get the best value out of our services - visit doing business with us

The devil is in the detail

Generally speaking we will not embark on any litigation without first obtaining the relevant facts.

Sorting out the facts in any litigious situation is usually the most difficult part of the process. It involves obtaining a concise and chronological statement of events (proof of evidence) from the people involved; and reviewing the relevant documents.

This process can be time consuming and sometimes costly, but even small facts can mean the difference between winning and losing your case. Having all of the facts at the outset can save you a lot of money in legal fees in the long run.

Ideally, at the outset we should obtain a full set of all relevant written materials and statements from key witnesses before proceeding further.

Help us get it right - and reduce your costs

As part of taking your detailed instructions we will:

• photocopy all of the documents relevant to your case (including emails, agreements, correspondence, notes of telephone discussions and diary/calendar entries) in chronological order

• prepare a summary list of each documents (preferably in a Word or Excel table) with the date and meaningful description cross-referenced by number to the bundle of documents

• prepare a chronology of significant events

• prepare a list of the names or relevant persons and companies, their addresses and other contact details

This work is time consuming and we charge you for it. Why not save time and money by doing it yourself?

Developing a strategy

It matters not whether the cat is black or white – so long as it catches the mouse. (Zhou En Lai)

When we have ascertained the relevant facts, the objective then is to achieve the desired outcome in the most expeditious and cost effective manner. The strategy that we propose will depend on a consideration of many factors including:

• the facts;

• the amount of money involved or the value of property in dispute;

• the capacity of both parties to sustain an extended dispute;

• the capacity of your opponent to pay any amount that may be awarded in your favour;

• your objectives, for example:

  • to obtain monetary settlement from your antagonist; or

  • to successfully defend proceedings brought against you.

Court proceedings (litigation) is one of a number of weapons in a lawyer's armoury. Other ways of achieving your desired outcome may include:

• commercial pressure;

• charm and negotiation;

• statutory demand (in the case of a claim against a corporation);

• mediation.

Litigation is a potent and effective weapon in many situations but it should be used with caution. Litigation is expensive - and the loser is almost inevitably required to pay both his legal costs and those of his opponent.

There is generally no point in suing a man of straw - that is someone who can't afford to pay you if you win.

For these reasons we do not generally recommend that you engage in litigation unless:

• the facts have been fully established;

• there is a reasonable prospect of success or other useful benefit;

• all other reasonable steps to obtain a satisfactory outcome have failed.

Sometimes it’s wiser not to sue. For example:

• the threat of litigation may be more useful than actually suing: the respondent may be conscious of the effect that a writ may have on his credit rating or business reputation;

• if the respondent is under significant financial pressure, a writ may invite a barrage of similar actions that result in bankrupting the respondent’s business with no tangible results for the applicants;

• if there is no reasonable prospect of success or other useful benefit.

Know your enemy - sue the right person

Before embarking on litigation it is important to ensure that you are suing the right person. You can only sue a legal entity - not a trust or a business name. There are two types of legal entities:

• natural persons

• corporations

A business name may be owned by a legal entity - but is not a legal entity in its own right. Similarly, a trust can be sued only in the name of its trustee. If your claim is against a partnership you should sue the partners. You can ascertain details of corporation and business names from the Australian Securities and Corporations Commission (ASIC) - or we will do it for you.

Barristers and solicitors

A barrister is a lawyer who appears in court and provides advice on litigation. A solicitor is a lawyer who gives legal advice and prepares documents within a lawyer's office. He briefs a barrister to appear in court.

At Birman & Ride we call ourselves lawyers. Our lawyers are both barristers and solicitors and collectively have practised in all Western Australian and Commonwealth courts and many other quasi judicial tribunals.

In most cases we believe that it is more cost effective for you if we can provide a complete in-house legal service. However, where you require the services of senior counsel or a specialist independent opinion we will brief other lawyers on your behalf.

Courts and tribunals

The principal jurisdictions in Western Australia are:

• Supreme Court of Western Australia - unlimited jurisdiction in all matters; exclusive jurisdiction in probate and some serious criminal matters;

• State Administrative Tribunal of Western Australia – responsible for adjudicating disputes arising under specialist legislation such as the Commercial Tenancies Act and resolving appeals from administrative bodies;

• District Court of Western Australia - unlimited jurisdiction in personal injuries matters; jurisdiction in civil disputes involving up to $750 000; jurisdiction in many serious criminal matters;

• Magistrates Court of Western Australia - jurisdiction in civil matters involving up to $75,000; and relatively minor criminal matters. The Magistrates Court has also assumed the work of the former Small Claims Tribunal;

• Family Court of Western Australia - exclusive jurisdiction in family law matters.

The main Commonwealth jurisdictions are:

• High Court of Australia - ultimate court of appeal from decisions of the Supreme Courts of the States and Territories;

• Federal Court of Australia - exclusive jurisdiction in bankruptcy matters; unlimited jurisdiction in most other matters;

• Federal Magistrates Court - limited jurisdiction in matters that would otherwise be dealt with in the Federal Court or the Family Court of Australia.

What Courts can do?

Courts derive their powers from statute and (in the case of superior Courts), the common law. Not all courts have the same powers, but collectively they can amongst other things:

• award judgment for unpaid debts;

• determine and award compensation in cash (damages) for victims of negligence, breach of contract, misleading and deceptive conduct and defamation;

• vary the terms of an unfair Will;

• supervise the conduct of trustees;

• determine the ownership of land;

• force parties to contracts to perform their obligations;

• force parties to pursue a course of conduct or restrain them from not doing so;

• make declarations as to the effect of a document;

• punish those who wilfully disobey their orders;

• order the seizure and sale of assets to enforce judgments.

Learn more

Visit The litigation process.