The Commercial Litigation Roadmap

Commercial litigation is not one decision. It is a series of gates, and at each one a business owner decides whether the next stage is worth its cost. Most disputes never pass the second gate. The expensive mistakes happen when owners drift through the gates without deciding at all.

This roadmap sets out the seven stages of a commercial dispute in Queensland from a business owner's side of the table: what happens at each stage, roughly what it costs, and the decision you are actually making before the next one begins. For the court procedure itself, see our companion guide to court proceedings in Queensland.

Before a letter is sent or answered, four questions decide whether the dispute is worth having. Does the claim have legal merit, not just moral merit? Is it inside the limitation period - six years for most commercial claims in Queensland, and the clock does not pause while you negotiate? Can the other side actually pay a judgment, because winning against an insolvent defendant is losing with extra steps? And what does winning need to look like for the exercise to have been worth it: money recovered, a contract enforced, a precedent set for other customers who are watching?

This is also the stage to preserve evidence - contracts, emails, file notes, the versions of documents as they existed - before anything is deleted in the ordinary course. What to secure and why is cheap now and sometimes impossible later.

The owner's decision: is this a dispute worth funding at all, and to what end? Our guide to pre-litigation risk assessment works through the seven questions in detail.

Most commercial disputes are resolved at this stage, and it is the cheapest one. A letter of demand from a litigation lawyer does two jobs: it states the claim precisely enough that the other side's lawyer can advise them on their real exposure, and it signals that you are prepared to go further. What follows is usually a period of without-prejudice negotiation, sometimes an informal meeting, sometimes an early mediation.

The discipline that matters here is making any settlement offer a considered one. A well-framed offer made early - and refused - can carry costs consequences for the other side later, which is leverage you bank now and spend at Stage 5. The judgment call on when a demand helps and when it just starts the meter is covered in when to initiate proceedings.

The owner's decision: what number, or non-money outcome, would you genuinely accept today to make this go away? If you cannot answer that, you are not ready to negotiate or to sue.

If negotiation fails and the claim justifies it, proceedings are filed. In Queensland the claim size sets the court: the Magistrates Court up to $150,000, the District Court up to $750,000 and the Supreme Court above that. A served defendant has 28 days to file a notice of intention to defend, so if you are on the receiving end, the clock is already running and ignoring it leads to default judgment.

Filing changes the character of the dispute. Positions harden, pleadings commit each side to a version of events, and both parties start spending real money. It also does not stop settlement: proceedings and negotiation run in parallel, and most filed claims still resolve before trial.

The owner's decision: commit to a staged budget, not to "litigation". A costed estimate for the pleadings stage, with a review gate at the end of it, keeps the decision yours. This is how we price disputes - see our fee structure.

After pleadings close, each party must disclose the documents in its possession that are directly relevant to the issues - including the ones that hurt. For a business, disclosure is usually the most labour-intensive stage: emails, accounting records, messages and file notes have to be gathered, reviewed and produced, and the other side's disclosure has to be read.

Disclosure is also where cases turn. A document that contradicts the other side's pleaded story shifts the settlement value of the claim overnight, in either direction. Owners who preserved their records at Stage 1 spend less here and get fewer surprises.

The owner's decision: reassess the claim against what the documents actually show, not what you remembered. Settlement ranges set before disclosure should be revisited after it.

Almost every commercial matter in the Queensland courts goes to mediation before trial, and this is where the majority of filed claims end. By now both sides know the documents, know their costs to date and can see the trial estimate. That combination concentrates minds.

This is also where the offers made earlier do their work. Under the Queensland rules, a party who refuses a formal offer and then fails to beat it at trial can be ordered to pay costs on the punishing indemnity basis - so a well-judged offer forces the other side to price the risk of saying no. The strategy is covered in recovering legal costs in Queensland courts, and the settle-or-fight arithmetic in litigation or settlement: a cost-benefit analysis.

The owner's decision: compare the settlement on the table against the full cost of the trial gate - fees, the 30 to 50% of costs you will not recover even if you win, management time and the risk of losing - not against the amount you feel you are owed.

Only a small fraction of commercial disputes reach a courtroom. For the ones that do, trial means briefing counsel, preparing witnesses, and days or weeks of hearing time, with judgment often reserved for months afterwards. It is the most expensive stage by a wide margin and the only one whose outcome neither side controls.

Some matters should be tried: a genuine point of principle, a claim the other side will not price sensibly, a defence of something existential to the business. The point of the roadmap is not that trial is wrong. It is that trial should be a decision made at a gate, with a budget and a clear-eyed view of the risk, rather than the place a dispute arrives by inertia.

The owner's decision: made properly at Stage 5. If you are deciding for the first time on the courtroom steps, the process has failed you.

Winning at trial produces a judgment and, usually, a costs order in your favour. Two realities temper the celebration. First, costs orders are assessed on scales that typically return 50 to 70% of what you actually spent, so even a complete win leaves a gap. Second, a judgment is a piece of paper, not money. If the losing party does not pay, enforcement is its own process: enforcement warrants over assets, garnishee orders on bank accounts and debtors, statutory demands and, at the end of the road, bankruptcy or winding-up.

This is why Stage 1 asked whether the defendant can pay. Enforcement risk belongs at the front of the roadmap, priced into every settlement decision along the way, not discovered at the end.

The owner's decision: how far to fund enforcement, and when a commercial write-off with a tax deduction beats good money after bad.

Every matter is different, but Brisbane market ranges give the roadmap its scale. District Court matters typically cost $20,000 to $80,000 in legal fees to run; Supreme Court matters $50,000 to $200,000 or more. A dispute resolved at Stage 2 usually costs a small fraction of one that reaches Stage 5, which is itself far cheaper than trial. Full figures, including hourly rates and fixed-fee ranges, are in our guide to what a commercial lawyer costs in Brisbane.

We run disputes on staged estimates for exactly this reason: a costed estimate for the current stage, a decision gate before the next one, and a settlement offer strategy designed to shift the costs burden onto the other side. Through Phronesis Litigation, we also give owners a structured read on cost, time and leverage before proceedings are ever issued.