CLENS

Question 1

what does CLENS stand for?

Answer 1

• Costs
• Limitations of actions
• Enforcement Issues
• Negotiation Options
• Scope of Liability

Question 2

why does someone thinking of initiating a civil claim need to consider very carefully before doing so?

Answer 2

because of the significant costs involved, as well as time, stress, and potential negative publicity.

Question 3

what is the limitation of actions?

Answer 3

this refers to the restriction placed on the time within which a civil action can be commenced.

Question 4

what would happen if the plaintiff tries to bring a claim outside of their time limit?

Answer 4

the defendant may be able to raise a defence that the plaintiff is ‘time-barred’ or ‘statute-barred’ from bringing the claim.

Question 5

what is the main statute that imposes limitations on actions in Victoria?

Answer 5

the Limitations of Actions Act 1958 (Vic)

Question 6

what are the different limitation periods?

Answer 6

breach of contract and non-personal injury torts - 6 years
defamation - 1 year

Question 7

can the plaintiff extend the limitation period?

Answer 7

yes, if the court considers it to be just and reasonable.

Question 8

what are the two questions the plaintiff needs to consider in the scope of liability?

Answer 8

1. who are the possible defendants?
2. what is the extent of the defendant’s liability?

Question 9

what comes under ‘who are the possible defendants’?

Answer 9

• there is sometimes more than one person who has caused harm to the plaintiff. Eg. an employer, insurer, or person involved in the wrongdoing.
• it is important for the plaintiff to consider who has the ‘deepest pockets’.

Question 10

what comes under ‘what is the extent of the defendant’s liability’?

Answer 10

• the plaintiff needs to consider whether the defendant is fully or only partly liable for the harm caused.

Question 11

why are costs vital for the plaintiff to consider?

Answer 11

because parties are responsible for paying their own costs in a civil case.

Question 12

what would the costs involved include?

Answer 12

legal representation and disbursements.

Question 13

what costs are involved with legal representation?

Answer 13

the solicitor and barrister.

Question 14

what costs are involved with disbursements?

Answer 14

filing fees, hearing fees, mediation fees, expert witness fees.

Question 15

what happens if the plaintiff is unsuccessful in their claim? (costs)

Answer 15

they may be ordered to pay part of the defendant’s legal costs. this is known as an adverse costs order.

Question 16

what are negotiation options?

Answer 16

this involves the plaintiff considering whether the dispute can be resolved outside of a court or tribunal, using negotiation with the defendant instead.

Question 17

what are the possible negotiation options?

Answer 17

• informal discussions to identify the issues in dispute.
• arranging with a third party to help resolve the dispute.

Question 18

what are the benefits of negotiating?

Answer 18

• avoids the costs, time, and stress associated with trial.
• parties have control over the outcome, rather than it being decided by a judge or VCAT member.

Question 19

when might negotiating not be an option or the best option?

Answer 19

• one or both parties isn’t interested in/willing to participate.
• negotiation attempts have already failed.
• history of violence between parties.
• significant power imbalance between the parties, they are not on equal footing.

Question 20

what are enforcement issues?

Answer 20

involves the plaintiff considering whether the defendant is able ti comply with any settlement or order made and if they actually will. (can they afford to pay damages?).

Question 21

what is a settlement?

Answer 21

an agreement between the plaintiff and defendant outside of court.

Question 22

what is an order?

Answer 22

obtaining an order for damages from a dispute resolution body such as a court or VCAT.

Question 23

what happens if the defendant doesn’t comply?

Answer 23

the plaintiff will then have to take enforcement action through a court usually, which just adds to the cost and stress of the civil action.

Question 24

what does the plaintiff need to consider regarding enforcement issues?

Answer 24

1. is the defendant bankrupt or may declare bankruptcy?
2. do they have savings/assets?
3. are they in jail?
4. is the defendant overseas or difficult to contact?