Chapter 6.3

Question 1

Factors to consider before initiating
a civil claim

Answer 1

• Costs
• limitation of actions
• enforcement issues

Question 2

Costs

Answer 2

A party involved in a civil dispute may incur costs in resolving that dispute.
The costs include
- fees for legal representation,
- disbursements (such as court fees, mediation fees and expert witness fees),
- and possible costs to be paid to the other party if the plaintiff is not successful, (adverse cost order)

Question 3

Fees for legal representation

Answer 3

The costs of legal representation include fees for solicitors and barristers, which often vary based on several factors: the complexity and duration of the case, the dispute resolution body involved (e.g., VCAT, which may not allow lawyers), the size of the case (e.g., number of witnesses and documents), and the expertise of the legal professionals. Lawyers typically charge per hour, and more experienced ones charge higher fees. These high costs can be a barrier for individuals considering legal action, and plaintiffs must weigh whether the costs outweigh the amount they are seeking in the claim.

Question 4

Disbursements

Answer 4

When issuing a claim in court or a tribunal, a party may need to pay various disbursements (out-of-pocket expenses), including:
- Court or tribunal fees (e.g., filing, hearing, and jury fees)
- Mediation fees (for a mediator and venue, depending on how mediation is organized)
- Expert witness fees (for professionals providing expert opinions, such as medical experts)
- Costs for technology used to manage and sort through documents, especially in larger cases.

The specific disbursements will depend on the complexity of the case and the forum where the claim is heard.

Question 5

Adverse costs orders

Answer 5

If a plaintiff loses a civil claim, they may not only cover their own legal costs but could also be ordered to pay some of the defendant’s costs, known as an adverse costs order. The general rule is that the losing party pays the winning party’s costs. This potential financial risk may deter plaintiffs from pursuing claims.

Question 6

Before initiating a claim, plaintiffs should consider

Answer 6

• The total cost of resolving the dispute
• Their ability to cover those costs
• Whether potential damages outweigh the expenses
• Eligibility for legal aid or free assistance
• Ability to pay the defendant’s costs if ordered
• Risks of paying the other side’s costs and potential asset loss.

Question 7

The reasoning for imposing limitations on the plaintiff

Answer 7

• the defendant does not have to face an action after a significant amount of time
• evidence is not lost and people can still remember what happened
• disputes can be resolved as quickly as possible, to promote social cohesion. That is, it is in the best
  interests of the community that disputes be settled quickly so that they do not ‘linger’ or ‘fester’ in
  the community.

Question 8

Limitation of actions

Answer 8

Limitation of actions refers to the restriction placed on the time within which a civil action can be
commenced. For most types of claims, the plaintiff will need to commence the proceeding within a
certain period of time. Once that period has passed, the plaintiff may be ‘time barred’ (prevented) from
seeking remedy

Question 9

Enforcement issues

Answer 9

Normally, there are two ways that a plaintiff will obtain a settlement or remedy:
* by settling with the defendant before the court or tribunal hands down a decision
* by the court or tribunal making a decision about liability and awarding a remedy such as damages.

Before initiating a claim, the plaintiff needs to consider whether the defendant is able to pay, and if so,
whether the defendant will pay.Even if the defendant can pay, the plaintiff may have to issue enforcement proceedings to force a
defendant to comply with a remedy

Question 10

issues that the plaintiff needs to consider before initiating a claim

Answer 10

• Has assets or money to pay, or if they are bankrupt
• Is capable of paying, even if not bankrupt
• Is in jail, overseas, or uncontactable, making payment difficult
• Has a company with assets or access to other funds

Even if the defendant can pay, enforcement proceedings may be necessary to ensure compliance.