The vast majority of litigious matters are settled outside of court, either via voluntary negotiation, mediation, or offers of compromise “on the courtroom steps”. A legal dispute does not necessarily have to escalate to an expensive courtroom battle. At Belbridge Hague Law, our focus is on sound, commercially realistic advice which promotes out of court settlement where possible. The key to successful resolution is getting in early (before documents are filed in the court), to allow the parties time in which to discuss their positions and reach a compromise.

The Australian court system is constantly changing and evolving. The first step in starting any legal action is to ensure that the matter is being brought before the court or tribunal of appropriate jurisdiction. Tribunals such as VCAT and NCAT have been designed to take the burden off the court system, offering a faster and more cost-effective option, particularly for parties who wish to proceed without legal representation. The jurisdiction in which your matter will be heard is dependent on the amount of your claim, the type of dispute which is involved and the parties to the action.

If you have received legal papers in person or in the mail, it is important that you take advice immediately. Courts and Tribunals have varying timeframes which are strictly enforced, and these differ from State to State and between jurisdictions. If you fail to take action within the prescribed timeframe, you may lose your right to defend yourself, or judgement may be made against you without your knowledge. If in doubt, check it out! Come and see us early and maximise your chance of success.

Litigation is a lengthy and protracted process. The Australian Courts are inundated with applications, and the impact of COVID-19 and recent natural disasters has unfortunately resulted in increased delays in the judicial system. Whilst an uncontested claim in the Victorian Magistrates Court or NSW Local Court may be resolved in as little as 2-3 months, litigants should be prepared for a wait of up to 2 years in most courts for final hearings and trials of defended actions.

This is comparable to the age-old question “how long is a piece of string?” – the cost involved in taking legal action varies greatly from case to case. Influencing factors in relation to the cost of litigation are the complexity of the matter, which jurisdiction it will be heard in, whether or not a barrister is engaged, how many parties are involved and whether or not those parties intend to contest or defend the action. There are court filing fees in addition to legal costs, however reductions and exemptions may apply in certain circumstances.

There is a common misconception that a successful litigant will not only be paid compensation for their loss, but will also be entitled to have all of their legal costs paid for by the other party. Case law decisions such as Calderbank v Calderbank [1976] Fam 93, [1975] 3 All ER 333 (EWCA) have set a precedent when it comes to costs orders, however it is highly unlikely that any costs order made by a court will ever equate to the amount of legal fees and outlays actually incurred by the parties. By way of example, the average costs award in a civil claim equates to approximately 30% of the money actually spent by a party to litigation. An indemnity costs order is likely to equate to approximately 60% of the amount incurred. Whilst costs orders are becoming more common in the courts, it is almost guaranteed that you will be out of pocket in relation to your litigation matter, even if you win.

Successful litigation will result in the court making judgement in your favour. If you win the case, the court will order that the other party to the proceedings do something (usually requiring the payment of money) to satisfy this judgment. In most cases, the party in question will do the right thing and satisfy the judgement in accordance with the Orders; the case is over, and everyone can move forward. If the judgement is not satisfied, further steps may be required to enforce the judgement.