U3 AOS 2a lesson 2

Question 1

Factors to consider before initiating a civil claim

Answer 1

cost
limitations of actions
enforcement issue

Question 2

Cost factor: fees for legal rep

Answer 2

In some cases, a solicitor is needed to seek legal advice or to draft and file legal documents.

In more complex cases, a barrister may be needed represent their client in pre-trial hearings or present their case in court.

The cost of legal representation will depend on the complexity of the case, the experience of the legal representative, the avenue in which the matter is being heard e.g., court/tribunal.

A senior barrister can charge $600 p/h with King Council billing $1000 p/h

Question 3

Cost factor: disbursements

Answer 3

other expenses incurred as part of preparing for the case outside of legal representation. These include gathering docs, getting paper certified, collecting reports, court fees (filing fee, hearing fees, fees for a jury).

A writ in the County Court = $779
hearing fees in County Court = $800 per day
jury = $1606 for first day then $303.60 for subsequent days.

Disbursements also includes fees for expert witnesses, mediation fees organised privately

Question 4

Cost factor: adverse court orders

Answer 4

the legal requirement of one party to pay for some or all the other party’s legal costs.
maybe ordered by court

Question 5

limitations of actions factor

Answer 5

a restriction on the time limit in which a plaintiff must commence a civil action in court, after which time, the plaintiff is unable to bring an action relating to the civil wrong against the defendant.

Legislation:
Limitations of Actions Act 1958 (Vic) outlines the time frames within which different types of civil actions must be commenced.

Question 6

why limitations of actions exist

Answer 6

• Encourages parties to bring their disputes to court in a timely manner
• The ability for witnesses to recall the incident from memory remains accurate
• To ensure the quality of evidence to support the party’s claims remain high
• To ensure the defendant does not have to defend a civil action after a significant amount of time

Question 7

limitations of action: defamation

Answer 7

one year

Question 8

limitations of action: negligence

Answer 8

six years

Question 9

limitations of action: personal injury

Answer 9

3 years

Question 10

enforcement issues factor

Answer 10

A factor that involves the plaintiff considering that if they are successful in their claim, can their claim be enforced on the defendant. That is, is the defendant able to fulfil their legal obligation.

Question 11

when enforcement issues factor may be considered

Answer 11

• The defendant has/will likely declare bankruptcy or is an unemployed individual (how will they pay damages?)
• If the defendant is a company, it may not have any assets to sell to pay damages
• If the defendant is in prison or has relocated overseas permanently, it may be difficult to enforce the payment
• If the defendant cannot be identified or unknown

Question 12

enforcement issues factor sheriffs warrant

Answer 12

Even if the defendant can pay, the plaintiff may have to issue enforcement proceedings in the form of a sheriff’s warrant via the courts to seize the defendant’s goods/assets to sell them to retrieve their money.