1. Relevant Factors When Initiating a Civil Claim

2. Think …. Why might someone choose not to initiate a claim?
Why would someone want to initiate a claim?
Why might someone choose not to initiate a claim?

3. Negotiation Options Costs Limitation of Actions Scope of liability
Enforcement Issues
Factors to Consider

4. Can the dispute be resolved out of court? (95% of civil claims)
Options include:
informal discussion with legal representatives
mediation
conciliation
arbitration.
particularly advantageous where the parties wish to maintain a relationship after the negotiation.
Negotiation Options

6. In civil matters the parties bear the costs of the action
In civil matters the parties bear the costs of the action. The parties need to carefully consider the costs and the possible financial consequences if they are unsuccessful.
What will it cost? 
Will I recover the costs? 
Will the defendant be able to pay the costs? 
Costs considerations

7. The Limitation of Actions Act 1958(Vic) specifies the time limits within which actions must be initiated in Victoria. Other legislation, including the Trade Practices Act 1974 (Cth) and the Wrongs Act 1958 (Vic), also state time limitations for civil actions.
The purpose of time limits is to:
ensure that cases are initiated while recollections of events are fresh
provide for personal and business certainty
ensure that plaintiffs act within a timely manner to resolve issues.
Limitation periods vary depending on the type of action claimed:
Courts also have discretion to extend time limits
Limitation of actions
Textbook Table

8. The plaintiff must establish a causal link between the defendant’s actions and the harm caused.
In negligence it must also be shown that it is appropriate for the scope of the defendant’s liability to extend to the harm caused.
Scope of liability

9. The fact that the plaintiff has been successful in a court action and has received a judgment against the defendant does not always ensure that they get paid the amount that has been awarded. If the court makes an award of damages (or an order) that the defendant does not comply with, the court can enforce it by ordering one of the following:
A warrant for distress:
A garnishee order
An attachment of earnings
Sequestration
Bankruptcy and liquidation
Imprisonment
Problems relating to the enforcement of orders include financial costs, the uncertainty surrounding the value of the defendant’s assets and the time delay in settling the issue.
Enforcement issues

10. Other Considerations What about the publicity? Am I likely to succeed?
Is it worth the time and inconvenience? 
Which court will hear the case? 
Other Considerations