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5K The impact of costs and time

– civil disputes
STUDY DESIGN DOT POINT

• the impact of costs and time on the ability of the civil justice system to achieve
the principles of justice during a civil dispute

5A 5B 5C 5D 5E 5F 5G 5H 5I 5J 5K
Image: BongkarnGraphic/Shutterstock.com

Going once for $650, going twice for

$650, sold! At a rate of between $200
3.2.13.1 3.2.13.2 to $700 per hour, an individual can engage
The impact of costs The impact of time a barrister to help prepare and present
during a civil dispute during a civil dispute their civil case (Olling, 2023). Yet, with
a full day in court costing eight to 10 times
this amount, legal representation quickly
becomes inaccessible to many people.
So to what extent do costs and time impact
one’s access to justice?

Lesson introduction
The costly and time-consuming nature of civil disputes must be considered by parties
before initiating a civil claim, as it can be a significant factor that shapes the case and its
outcome once civil proceedings have started. From the high cost of legal representation
to the extensive amount of time that may be required to hear and determine the case,
the achievement of the principles of justice can be limited by these factors in the civil
justice system.

The impact of costs during

a civil dispute 3.2.13.1
Parties often incur high costs when resolving civil disputes, whether it be court fees,
engaging expert witnesses, or using legal representation. For complex claims that
need to be resolved in the courts, legal representation is often necessary and the
associated fees can discourage or prevent individuals from pursuing a civil claim
and accessing justice. Court fees also vary between the courts, and significant court
delays can increase the overall cost of resolving a civil dispute.
Additionally, given the costly nature of court proceedings, some parties are forced
to settle out of court. When parties agree to settle out of court, the plaintiff may
receive some form of compensation but it may be of a lesser amount than what
a court would have ordered. This is particularly disadvantageous for parties of
low socio-economic status who do not have the capacity to pursue a full court
proceeding and must compromise on the outcome of their dispute. Consequently,
justice may not be delivered to its fullest extent, as access to a trial and equality
within the civil justice system are denied. Conversely, plaintiffs with greater
financial resources have the ability to proceed to trial and may ultimately achieve
a better outcome than those forced to settle. LEGAL VOCABULARY
Adverse cost orders an order by a
Finally, at the conclusion of a civil dispute, courts may make adverse cost orders.
court that one party must pay for part,
Usually, a court will order the losing party to pay their own costs, as well as some or all, of another party’s legal costs.
or all of the other party’s costs.

5K The impact of costs and time – civil disputes 237

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LESSON LINKS
5K THEORY
You learnt about solicitors and
barristers in 5F Legal practitioners
in a civil dispute.
You learnt about adverse costs orders
in 4B Initiating a civil claim.
You learnt about mediation and other
methods of dispute resolution in 5B
Methods of resolving civil disputes.
LEGAL VOCABULARY
Writ a legal document that orders
a person or entity to perform or stop
performing a specific act.
LESSON LINKS
You learnt about Victoria Legal Aid
(VLA) in 2B Victoria Legal Aid and
community legal centres.
You learnt about the Victorian Civil and
Administrative Tribunal (VCAT) in 5I
The Victorian Civil and Administrative
Tribunal (VCAT).
238 Chapter 5: The principles of justice during a civil dispute
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Table 1 Types of legal costs incurred during a civil dispute
Type of legal cost Explanation
Barristers’ fees Whilst most civil claims initiated in the court settle prior to a
trial, such as via mediation, cases that must go to trial will often
require a barrister to present legal arguments and examine
witnesses. Depending on the level of experience of a barrister,
the costs of a full day in court can range from $3,000 to $5,000
(Lawyers and Legal Services Australia, 2016).
Solicitors’ fees A solicitor is often required to help parties prepare their
case, including:
• drafting court documents and letters
• researching the law and preparing evidence
• advising and instructing barristers on behalf of their clients.
Expert If expert witnesses are to be called to give evidence, they will
witness fees often charge fees. Examples of expert witnesses include doctors,
psychiatrists, and other professionals with expertise in a
particular subject area.
Court fees To commence and progress a court proceeding, parties will need
to pay fees to the court. Court fees vary between the courts and
are set at corporate, standard, and concession rates.
Fees for filing Filing documents for each stage of a civil proceeding, such
court documents as a writ, attracts a fee.
Use of a jury If a party is successful in their request for a jury trial, they
will need to cover the cost of the jury. As of 2023, the fee for
conducting a civil trial by jury, including the first day of using
the jury, costs $1,611.60 in the Victorian County Court and
$301.20 per day for the remaining six days. If a jury is required
for more than six days, the cost of a jury per day increases
to almost double the daily cost (County Court of Victoria, 2023).
Appeals A party seeking to appeal the outcome or damages awarded will
need to pay the filing fee in the appeal court, fees involved in
having a solicitor draft court or other documentation, and the
expense of the barrister to present their legal arguments to the
judges in the appeal court.
DEEP DIVE
Court fees for civil disputes
There is a wide range of court fees that can significantly add to the costs involved
in a civil dispute. As of 2023:
• filing fees in the Magistrates’ Court can amount to between $156 and $743.10.
• court hearing fees in the Magistrates’ Court of Victoria, after the first day, are $637.60
• standard court hearing fees for a trial or appeal for the first day in the Supreme
Court of Victoria are $740.
Adapted from ‘Magistrates’ Court of Victoria Fees and Costs Ready Reckoner’ (Magistrates’ Court of Victoria, 2023)
and ‘Fees’ (Supreme Court of Victoria, 2023)
Victoria Legal Aid (VLA) is available for financially disadvantaged parties in civil
cases, though only to a limited degree. For example, VLA can provide some assistance
for parties with migration matters, Centrelink payments, and parties with cognitive
disabilities. However, VLA’s resources are limited and it can usually only provide
legal representation in court for persons charged with serious indictable offences,
rather than for civil proceedings.
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Furthermore, whilst other dispute resolution bodies, like the Victorian Civil and
Administrative Tribunal (VCAT), are a low-cost alternative to the courts, there can
still be costs associated with pursuing such a case. Specifically, VCAT fees are tiered,

5K THEORY
with individual and corporate claim costs varying, whilst legal representation may
still be required in a final hearing.

REAL WORLD EXAMPLE

Tip-offs to trials
In 2013, former Police Association of Victoria boss, Paul Mullett, commenced proceedings
against former Victoria Police chief, Christine Nixon, and others. Mullett claimed he was
the victim of malicious prosecution following his suspension from Victoria Police by Nixon,
after allegedly tipping off a detective who was the subject of a murder investigation.
Mullet’s proceeding was dismissed by the Supreme Court of Victoria following a trial in
2016. In 2021, Mullet filed an application for leave to acquire new evidence and to appeal,
which was later rejected in 2022 by the High Court. Following this decision, the High
Image: Henk Vrieselaar/Shutterstock.com
Court of Australia ordered Mullet to pay approximately $2 million in legal fees that had
accumulated since 2013. Figure 1 Former Police Association of
Victoria boss, Paul Mullett, was ordered
Adapted from ‘‘It’s only half-time’: Ex-police union boss refuses to concede defeat after High Court blow’ to pay $2 million in legal fees by the High
(Houston & Juanola, 2022) Court of Australia

USEFUL TIP
An important key skill in Area of Study 2 of Unit 3 VCE Legal Studies is to ‘evaluate
the ability of the civil justice system to achieve the principles of justice during a civil
dispute’. These tables showing strengths and limitations in relation to each principle
can help you evaluate the ability of the civil justice system to achieve the principles
of justice in relation to costs.

Evaluating the ability of the civil justice system to achieve the principles of justice in relation to costs

STRENGTHS LIMITATIONS
S
ES
• Court fees and VCAT fees are tiered and the • The high costs associated with defending a civil

fees individuals must pay are in accordance with
distinct categories, including corporate, standard,
and concession or healthcare.
• The court can order adverse cost orders that
encourage a fair outcome, as the successful
party may have some or all of their legal costs
compensated.
FAIRN
claim may encourage some defendants to settle
rather than challenge a claim, leading to an
unfair outcome.
• The high costs associated with pursuing a civil
claim may encourage some plaintiffs to accept
a settlement that is unfair, or less than what they
may be awarded by a court.
• If an individual in a civil dispute cannot afford legal
representation, they may have to self-represent,
which can increase the likelihood of an unfair
outcome due to the individual’s lack of objectivity,
legal experience, and knowledge.

STRENGTHS LIMITATIONS
EQU
• Parties that are eligible for VLA can acquire legal • Parties do not equally have the opportunity to have
ALI

representation, reducing the likelihood of unequal their civil disputes resolved, due to the costs
TY

footing in the courtroom. associated with pursuing a civil claim.

• Less costly dispute resolution bodies, such as VCAT,
may not require legal representation, enabling both
parties to equally present their version of events
and mutually reach a resolution.
• The court and VCAT’s three-tiered system promotes
equality by allowing those with less financial
resources to still engage with the justice system and
not be disadvantaged by their financial situation.
• Even if both parties have legal representation, the
quality of legal representation can vary drastically,
impacting how the case is presented and whether
it is shown in the best light.
• Self-represented parties may be on unequal footing
with skilled lawyers in the courtroom and may not
possess the same ability to argue their case. This
can particularly impact vulnerable populations and
lead to unequal and unjust outcomes.

5K The impact of costs and time – civil disputes 239

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STRENGTHS LIMITATIONS
• Judicial powers of case management that allow • The high costs associated with civil proceedings,
5K THEORY

judges to order parties to attend mediation can
AC reduce legal costs as the matter can be promptly
CESS
resolved, enabling the civil justice system to remain
accessible to more individuals.
• The use of alternative dispute resolution
methods, such as mediation, prior to trial
promotes access, if successful, as they are low
cost and relatively informal.
such as court and legal representation expenses,
can discourage individuals from initiating civil
cases, hindering access to justice.
• The high costs associated with defending a civil
claim may encourage some defendants to settle,
rather than challenge a claim, limiting access
to justice in the courts for defendants.
• The high costs associated with pursuing a civil
claim may encourage some plaintiffs to accept
a settlement that is unfair, or less than what they
may be awarded by a court, limiting their ability to
engage with the justice system and access justice.
• Access to a jury in a civil proceeding may be limited
by its associated high costs.
• High costs of filing an appeal and the legal
representation needed to present an appeal may
discourage dissatisfied parties from taking such
action, undermining the access of these parties
to a just outcome.

The impact of time during

a civil dispute 3.2.13.2
There are often delays in the resolution of civil disputes, which can discourage or
LESSON LINK prevent individuals or businesses from pursuing a civil claim. Delays are undesirable
You learnt about case management for an injured party seeking compensation for loss or injury, as they hinder access
in 5D Judges, magistrates, and juries to justice in a timely manner and compound suffering. Furthermore, as trials rely
in a civil dispute. on oral evidence, court delays may impact the accuracy and reliability of evidence.

Table 2 Types of delays incurred during a civil dispute

Type of delay Explanation

Court backlogs Backlogs are caused by the courts’ caseload growing more
rapidly than the available resources needed to resolve
a court case.

VCAT delays Whilst VCAT generally has lower waiting times than the
courts, some lists and divisions may still experience delays
depending on demand and resource availability.

Gathering evidence It takes time for each party in a civil dispute to gather relevant
and preparation evidence and prepare arguments for their case. This significantly
for a trial adds to the time it takes for a case to be heard.

Trial procedures Court procedures, such as the legal practitioners’ oral

arguments and the examination of witnesses, can be a lengthy
and time-consuming process, possibly leading to a delay in the
resolution of the dispute.

The use of case management powers is imperative in reducing the impact of time
delays in civil disputes. Judges, magistrates, and VCAT members can seek to
resolve disputes in a more cost and time-efficient manner through various orders.
For example, the courts may order parties to participate in alternative dispute
resolution methods to encourage the early resolution of a case or restrict the
number of witnesses and length of submissions permitted at trial.

240 Chapter 5: The principles of justice during a civil dispute

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REAL WORLD EXAMPLE

Scrambling to solve COVID-19 setbacks

5K THEORY
Throughout the COVID-19 pandemic, VCAT experienced increased delays in determining
cases. During the first 18 months of the pandemic, VCAT’s ability to work remotely
was restricted, forcing the tribunal to only focus on hearing ‘urgent and priority cases’.
In addition, VCAT experienced a number of staff shortages, with a significant number
of experienced staff members retiring whilst restrictions were in force. As a result
of being under-resourced, the VCAT system continues to be backlogged with a number
of individuals and businesses still waiting to have their cases heard. In particular, the
Residential Tenancies List remains severely delayed as a result of VCAT receiving 10
Image: TZIDO SUN/Shutterstock.com
applications a day for urgent repairs. The State Government is calling for increased
Figure 2 VCAT has experienced continual
funding for VCAT to enable it to allocate more resources to reduce delays.
delays in the aftermath of the COVID-19
Adapted from ‘‘It’s taken all my savings’: Tribunal delays blow out to years’ (Hirst, 2023) pandemic

Evaluating the ability of the civil justice system to achieve the principles of justice in relation to time

STRENGTHS LIMITATIONS
S
ES
• Dispute resolution bodies, like VCAT, that have • Delays can compromise the application of

FAIRN
lower waiting times than the courts, can enable procedural fairness and increase stress for all
disputes to be heard and determined in a timely parties, particularly more vulnerable populations.
manner, encouraging a just and fair outcome. The • Delays can negatively impact the credibility
credibility of evidence can also be preserved if there of evidence, which inadvertently increases the
is an early or prompt determination of the case. risk of an unfair outcome.
• Case management powers can reduce the
time taken to resolve a dispute, and encourage
procedural fairness, by directing parties to abide
by certain rules and procedures that support
a swift resolution of the case.

STRENGTHS LIMITATIONS
EQU
• Orders and directions given by a dispute resolution • The use of case management powers can differ

ALI
body to reduce delays apply equally to both parties between judges, creating the potential for

and the directions given attempt to ensure equality
is achieved between the parties.
• Delays are likely to disproportionately affect
TY
unequal treatment of parties in the courts. Whilst
proactive judges can encourage equality in cases,
inequalities may be heightened in cases where case
management powers are not used to their full extent.
parties that are unfamiliar with court proceedings
and those in vulnerable circumstances, such as
individuals with low socioeconomic status. Larger
corporations or businesses may not be impacted
to the same extent due to their available resources.

STRENGTHS LIMITATIONS
• The range of dispute resolution bodies available • The delays in the justice system may discourage
to parties can ensure justice is accessible and a prospective plaintiff from initiating legal action
delivered in an efficient manner. in the first place, limiting access to a remedy. AC
CESS
• Judicial powers of case management, such as • Parties may be forced to withdraw or settle their
ordering parties to attend mediation, can encourage case due to limited financial resources, reducing
the early determination of a case and provide access to justice.
parties with a resolution in a more timely manner.
• The use of alternative dispute resolution methods,
such as mediation, can promote access as they may
result in the prompt resolution of a case. Overall,
this can relieve delays in the civil justice system and
provide more people with access to justice.

5K The impact of costs and time – civil disputes 241

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USEFUL TIP
In school SACs and the VCE exam, you are likely to be asked to discuss the impact
5K QUESTIONS

of costs and time during civil disputes in relation to the principles of justice.
Therefore, it is important that you are able to identify the impacts of costs and
time factors and evaluate their relationship with the relevant principles of justice.
Furthermore, the impacts of costs and time are often interrelated and should
be considered in conjunction, rather than as separate categories.

Lesson summary
The achievement of the principles of justice in civil disputes may be impacted by:
• the high costs associated with resolving a civil case, such as fees for legal
representation and court fees.
• the time involved in resolving a civil case, whether that be due to the nature
of the dispute or delays within dispute resolution bodies.

5K Questions
Check your understanding
Question 1
The costs and time associated with initiating a civil claim can prevent the principles of justice
from being achieved.
A. True
B. False

Question 2
Which of the following are sources of delays in the courts?
(Select all that apply)
A. Court backlogs
B. Gathering evidence and preparing for trial
C. Witness fees
D. Lengthy trial procedures

Question 3
Fill in the blanks with two of the following terms:
low high VCAT the courts

Parties incur legal costs when resolving civil disputes, such as barristers’ fees for the presentation of a

civil case at trial. Therefore, parties might consider pursuing their civil matter through , which provides

less costly dispute resolution methods.

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Question 4
Tick the box to indicate whether the following statements are strengths or limitations of the civil justice

5K QUESTIONS
system in achieving the principles of justice in relation to costs.

Statement Strengths Limitations

I. The high costs associated with proceedings, such as court fees and costs of legal representation,
can discourage individuals from initiating civil proceedings.

II. Parties that are eligible for Victoria Legal Aid may better understand legal processes
or procedures, enabling them to properly present their case.

III. There may be unequal footing if one party in a trial does not have legal representation,
preventing parties from being able to prepare and present a case of equal quality.

IV. Dispute resolution methods, such as mediation, are low-cost and relatively informal.

Question 5
Which of the following statements are true about the impact of costs and time on civil disputes?
(Select all that apply)
A. Judges have the ability to actively manage civil proceedings, such as setting time limits for the examination
of witnesses. This reduces the time it takes for a case to be heard and ensures evidence remains credible.
B. A majority of the population can afford legal representation and relatively few people need to consider the
cost of pursuing a civil dispute.
C. The delays in the civil justice system may force a prospective plaintiff to withdraw or settle their case due
to limited financial resources.
D. Most court cases are heard within one week of being initiated.
E. VCAT generally has lower waiting times than the courts, providing disputing parties with another avenue
to resolve their case in a more time-efficient manner.

Question 6
Fill in the blank with one of the following terms:
expenses delays

As trials rely on oral evidence, court may impact the accuracy and reliability of evidence, increasing

the chances of an unjust outcome.

Preparing for exams

Standard exam-style
Question 7 (2 MARKS)
Describe one impact of costs during a civil dispute.

Question 8 (4 MARKS)
Outline two reasons why there may be delays in having a case heard in the civil justice system.

Extended response
Use your answer to question 9 to support your response to question 10.

Use the following information to answer questions 9 and 10.

Cleopatra is a well-known activist in the legal community and has recently started a ‘Reduce Court Costs’
campaign. The campaign advocates for court fees, such as court filing and mediation fees, to be reduced
by 20% to make the civil justice system more accessible and affordable.

5K The impact of costs and time – civil disputes 243

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Question 9
Which of the following statements are correct about the impact of Cleopatra’s ‘Reduce Court Costs’ campaign
5K QUESTIONS

on the principle of access in relation to costs? (Select all that apply)

A. If successful, Cleopatra’s ‘Reduce Court Costs’ campaign will significantly decrease the costs associated
with the civil justice system, allowing more individuals to access justice.
B. The campaign will encourage equal access to the justice system as more individuals will have the
opportunity to pursue a case and not be obstructed by cost barriers.
C. The campaign does not address the significant costs of legal representation, meaning individuals may still
be unable to afford it, limiting access to justice.
D. Self-represented parties will automatically be given first preference and not face any delays in reaching trial.

Question 10 (5 MARKS)
Analyse the impact of Cleopatra’s ‘Reduce Court Costs’ campaign on the civil justice system in relation
to costs. In your response, consider how the campaign could enhance the ability of the civil justice system
to achieve the principle of access.
Adapted from VCAA 2022 exam Section B Q2d

Use your answer to question 11 to support your response to question 12.

Question 11
Tick the box to indicate whether the following statements are strengths or limitations of the civil justice
system in achieving the principles of justice in relation to time.

Statement Strengths Limitations

I. Case management powers can reduce the time taken to resolve a dispute and encourage
procedural fairness by directing parties to abide by certain rules and procedures that encourage
a swift resolution of the case.

II. Delays can negatively impact the reliability of evidence, which inadvertently increases the risk
of an unfair outcome.

III. Judicial powers of case management, such as ordering parties to attend mediation, can encourage
the early determination of a case and provide parties with a resolution in a more timely manner.

IV. Parties may be forced to withdraw or settle their case due to limited financial resources.

V. Delays can compromise the application of procedural fairness and increase stress for all parties,
particularly those from vulnerable populations.

Question 12 (8 MARKS)
‘The time it takes for a civil dispute to be heard in court will greatly impact the achievement of the principles
of fairness and access.’
Discuss the extent to which you agree with this statement.
Adapted from VCAA 2021 exam Section A Q6

Linking to previous learning

Question 13 (3 MARKS)
Explain how class actions aim to uphold the principle of access in relation to costs.
Adapted from VCAA 2018 exam Section A Q4b

244 Chapter 5: The principles of justice during a civil dispute

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