By Simon Abraham

9 April 2021

Years ago I attended a talk given by Alan Dershowitz, an American lawyer well known for representing high profile criminal Defendants such as OJ Simpson.  I recall that he said “most of my clients are guilty…but that’s irrelevant.  The State has to prove their case…”.

In Australia, in our civil system, Plaintiffs need to prove their case on the balance of probabilities.   The statistics in civil cases show that Plaintiffs consistently win.

And yet, TLFC has won a number of civil cases in the past 6 months when acting for Defendants including complex partnership disputes, family trust disputes and employment disputes.

  • Re Owies Family Trust [2020] VSC 716, Re Owies Family Trust (No 2) [2021] VSC 14 and Re Owies Family Trust (No 3) [2021] VSC 114 (a series of decisions in a complex Family Trust dispute)
  • The General Trader (Australia) Pty Ltd trading as Minimax v Bourwell Pty Ltd [2020] VCAT 867 (Retail tenancies claims)

How is that possible?

Here are the lessons that we have learnt:

  1. Make sure you brief the best legal team possible. This doesn’t just include solicitors – it includes QCs, barristers, expert witnesses, cost consultants and litigation support services.

We don’t throw money at a problem and hope it goes away. Instead, we assess what is needed to win the case and sensibly deploy resources to bring about this result.

  1. Legal documents (generally known as ‘pleadings’ are important). When a defendant is forced to fight a claim with poorly drafted pleadings, it is possible to force a Plaintiff to be bound by such pleadings.   Whilst Courts often allow amendments during a hearing, it is often too late for a Plaintiff to fix problems at trial.  The best strategy is to box a Plaintiff into a weak claim months or even years in advance leaving as little scope as possible for the Plaintiff to try to wiggle out of losing arguments during the trial.
  1. Take steps to secure the outcome. No one likes a Pyrrhic victory.  It is nice to win and it is it even nicer to recover costs.  Where possible, consideration should be given early in the litigation towards obtaining security for costs or otherwise ensuring that the costs of a successful defence are paid by the other side.

Plaintiffs don’t set out to lose cases particularly in a legal system that generally penalises the unsuccessful party with an Order for Costs.  Defendants need to work hard to make sure they win – and it’s always rewarding when that occurs.

If you have any questions about defending the case brought against you please don’t hesitate to contact Simon Abraham, Rob Oxley, Samuel McMahon, Amy La Verde, Stefan Chelper or a member of our litigation team.

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