One interesting and slightly unusual matter that clients
sometimes don't take into consideration is the importance of
strategy and tactics in litigation.
From time to time you will be faced with a step which is unusual
not generally taken by lawyers but if followed in the appropriate
way can save the client considerable time and money.
A case we had that just finished about a month ago was for an
international company that has a brand that is famous to all which
was fighting a trademark application lodged by a competitor, was a
trademark opposition, a relatively simple matter however that
simple matter which was won by us in the Trademarks Office
escalated into a Federal Court Appeal by the other side –
significant case – very significant costs were at stake
and we won that case in the Federal Court by a very nice judgment
in our favour.
The other side then lodged an appeal to the Full Federal Court
and when you lodge an appeal to the Full Federal Court you have to
seek leave to appeal and the usual advice one gives to clients when
leave to appeal has been lodged is it is very hard to fight those,
they are almost always granted and the usual process is to agree
that the leave to appeal application will be heard at the same time
as the actual appeal. It saves time, saves costs and you know that
what is really going to happen is that the appeal itself explains
to the judges why leave to appeal should have been granted and the
whole case is heard at the same time.
We took the very unusual step in this case of saying to our
client effectively you ought to fight the leave to appeal as a
separate hearing. You would give our client the chance to focus the
judge's attention solely on the application for leave to appeal
– the client had been alerted to the fact that winning
leave to appeal applications when you are fighting the appeal is
For a number of reasons the client accepted that advice and we
fought the leave to appeal application – the client
expected after we fought the application that we would go down and
we would have to fight the appeal itself in a few months. We were
very relieved and surprised to find that we actually won the leave
to appeal application. What that meant is that the application by
the other side to get the right to appeal to the Federal Court was
refused and the case finished on the spot.
There were no further appeals possible, by taking this very
unusual step we saved the client probably hundreds of thousands of
dollars, an enormous amount of executive time in preparing for the
Federal Court Appeal to the Full Federal Court and taking a step
that was extremely unusual.
So, what it tells you, the lesson that I have learnt and I think
clients could learn from is that sometimes in litigation taking
unusual steps and following strategic advice designed to benefit
the client sometimes in unusual ways can have a very large payoff
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guide to the subject matter. Specialist advice should be sought
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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