Introduction to the Victorian civil justice system

The cicil justice system is a set of methods, processes and institutions used to resolve civil disputes

• A civil dispute between two or more individuals (or groups) in which one is making a claim against the other for remedies

• Remedies are an order made by the court designed to address a civil wrongdoing and are a legal solutino to restore the plaintiff to their original position prior to the breach of their rights

Process of a civil dispute:

Attempt to resolve dispute —> Decision to initiate a civil claim —> Resolution of dispute through mediation or at trial —> Remedy awarded or resolution reached —> Enforcement procedures

Parties to a civil dispute:

• Employers

• Children

• The government

• Government Agencies

• Corporations

Parties can be individuals or groups

Types of civil disputes:

• Wills and inheritance

• Defamation

• Trespass to land

• Breach of contract

• Nuisance

• Negligance

Burden of proof

• It lies with the party who is bringing the case

• The burden of proof lies with the planitiff

Standard of proof

• The plaintiff must prove the care on the balance of probabilities

• This means that the plaintiff must prove their version of events is more probable to have occurred than not

Factors to consider before initiating a civil claim:

• Factors for a plaintiff to consider before initiating a civil claim include

  • Costs

  • Limitation of actions

  • Enforcement issues

Costs

Costs will depend on:

• Fees for legal representation - The complexity and size of the case, and the time it will take to resolve

• Disbursements - Which dispute resolution body is used

• Adverse costs orders - the expertise of legal practitioners, a solicitor will charge between $300 - $800 per hour. A barrister can charge between $2000 - upwards of $10000 per day.

Other Cost considerations include:

• how much it will cost to have the dispute resolved?  - Solicitor fees, Court filing fees, mediation fees, Barrister fees, Court hire fees…..

• whether they have the money to pay for those costs

• whether the damages that may be awarded outweigh the costs involved in making the claim

• whether they are eligible for legal aid or free legal assistance through other means

• whether they have the money to pay for the costs of the defendant if an adverse costs order is made

• what the risks are if they are ordered to pay the other side’s costs and cannot afford to do so.

Disbursements:

• Expert evidence - If you engage proffesionals or experts to give evidence you will need to pay for their services

• Court costs - Court fees are charged on top of your own legal fees. For example, to apply to for leave to appeal to the Court of Appeal will cost you $3661.70 and then if you are granted an appeal, there will be a daily court fees on top of that which can be up to $4000 per day. To file a claim in the Magistrates court less than $500 will actually cost you $522.00 in filing fees!

Adverse Costs Orders

• A plaintiff (and defendant) must also consider that if they lose their case, costs may be awarded agaisnt them

• Not only do they not gain any rememdy, they myst also pay for the other sides legal fees

Limitation of actions

• Limitation of actions refers to the restriciton placed on the time within which a civil action can be commenced. There are different limitatio periods for different claims. For exmaple, a plaintiff only has 12 months to bring a defamation case and three to six years to bring a negligence case

• The plaintiff will need to commence the proceeding within the time limit, otherwise they may be barred (prevented) from seeking a remedy

• In some situations, the limitation period can be extended.

• In cases of historical child sexual, abuse the stature of limitations has been removed altogether

Reasons for the lmitiation of actions:

• The defendant does not have to face action after a significant period of time

• evidence is not lost and people can still remmeber the facts

• disputes can be resolved as quickly possible

Enforcement issues

• before initiating a claim, the plaintiff needs to sondier whether the defendant is able to pay, and if so, whether the defendant will pay

• Enforcement issues that the plaintiff needs to consider are:

• Whether the defendant has assets or money to pay anything to the plaintiff

• if the defendant is in jail, overseas or uncontactable

• even if the defendant is able to pay, the plaintiff may have to issue enforcement proceedings to force a defendant to comply with a remedy

Factors to consider before initiating a civil claim

Summary:

What are the costs involved —> Will the defendant say that the plaintiff is out of time to issue a claim? —> are there any issues with enforcing the remedy?