9.2 – Deciding whether or not to take civil action

Considerations regarding taking action or not!

Factors to consider when initiating civil proceedings Costs involved. The costs involved in employing legal representatives can be expensive and, in some cases, the damages a plaintiff receives will not cover the costs of legal fees. Probability of winning. Obviously plaintiffs must consider whether they are likely to win or lose the case and whether or not they are prepared to take the risk of losing valuable time and money if they are unsuccessful. Defendant's ability to pay. Another matter to consider if the plaintiff wishes to sue the defendant for damages is whether or not the defendant will be able to pay the damages. If the defendant has no money, then taking him or her to court would be more a matter of principle rather than seeking monetary compensation. Complexity of the case. Along with the complexity of the case, another consideration is whether or not there have been any similar cases in court that have been successful. Sometimes a particular type of case might not have been heard by the court before, which means that the court will be making a decision for the first time. These types of cases are sometimes called ‘test cases’, and mean a greater risk to a plaintiff because the likelihood of success is not known. Publicity. Another matter to consider is the publicity the case may generate. If a plaintiff is well known, it might be better not to proceed because other matters about his or her personal life may be aired in court, providing further content for the media. Personal circumstances. Parties taking civil action should take into consideration the effects a trial may have on their health and their family life.

Methods that can be used to resolve a civil dispute It is often most efficient for parties to aim to resolve a civil dispute between themselves in an informal manner before taking their action to court, which can be very costly, time-consuming and stressful. Parties might aim to resolve their dispute using ADR It is often more efficient and effective to resolve civil disputes using dispute resolution methods. These methods are less formal and less costly than court proceedings because no strict rules of evidence and procedure are followed and there is less need for legal representatives, and matters can generally be resolved in a more timely manner. Parties may also feel more satisfaction with the outcome because they have directly participated in the decision-making process.

Avenues of civil dispute settlement CourtOriginal civil jurisdictionAppellate civil jurisdiction Magistrates'Cases up to $ None County Cases involving unlimited amounts None Supreme (Trial Division) Cases involving unlimited amounts Appeals from the Magistrates' Court (and VCAT) on an error in law only Supreme Court of AppealNone All civil appeals from the county and supreme (trial division) courts (and VCAT if presided over by president or vice-presidents)

Aiming to reach an out-of-court settlement One of the main aims of the parties to a civil dispute must be to reach an out-of- court settlement or resolve their dispute without the need to go to court. This might be achieved if the defendant offers an acceptable amount of money to compensate the plaintiff for the breach of rights, or if the plaintiff decides to abandon the civil action. In many cases, parties are able to reach an agreement and resolve the dispute using negotiation or other methods of dispute settlement including mediation, conciliation and arbitration. The parties to a civil action must also follow various pre-trial procedures in an attempt to resolve their case prior to attending court. For example, prior to attending court both parties must exchange various written documents and information to ensure each party is fully aware of the details and facts of the case. It is hoped that this knowledge may assist the parties to reach an early settlement. If this is not possible, at the least, the exchange of this information should help minimise the length of the trial as the details and facts of the case are clarified before the trial.

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