A Court or Tribunal: Make a Strategic Choice
One of the secrets to litigation success is making smart and informed decisions on where to bring your claim. This is not merely an administrative decision. It is a strategic decision which will set the tone for your case and how you can enforce the order.
Experience of the Member or Judge
The person hearing the case in VCAT will often be a person who has business experience relevant to the industry or area of concern. For example, in the ‘goods and services list’ the Member may have previous experience operating a restaurant or small business. This business experience gives the Member more than just a theoretical understanding of the industry and law that applies to it. On the other hand, a Judge’s career would have been consumed by their work as a lawyer and barrister.
Considering the different experiences, we often recommend complex legal disputes be issued in Court. However, if you are going to represent yourself or are a consumer bringing the claim, VCAT is likely to be more beneficial for you.
Constraints of Evidence
VCAT is not confined to the same rules of evidence as the Courts are. This means it is easier to rely on documents and conversations to prove your case. This is a great advantage if your documents would not usually be accepted by the Court.
In our view, the Courts are quicker to make a judgment if the other side does not defend the proceeding. This is because the Courts have a default procedure, where they will approve a judgment immediately after the time for filing a defence has expired. On the other hand, in VCAT, you will have to apply for an early judgment and often need to attend a hearing. At the hearing, you may need to still go through the process of producing all of your documents and convincing the Member to make a final order.
VCAT is a ‘no costs jurisdiction’. This means that a successful party has no entitlement to an order that their legal costs be paid by the other side. The tribunal will only award costs in exceptional circumstances, such as where the other side has failed to comply with previous orders. In our experience, it is very rare for a costs order to be made.
On the other hand, a successful person in Court will generally get an order for costs. The general rule is that costs will be awarded on the Court scale, which equates to approximately 50% of out-of-pocket legal costs. Given this entitlement, it is beneficial for you to bring the claim in a Court if you have a lawyer representing you.
Enforcing the Successful Order
Having an order, does not guarantee payment. You must then take steps to enforce the order. This is more straightforward as a Court order is immediately enforceable through the Court system. However, VCAT does not have enforcement procedures – which means you must first register the order with a Court. This is a straightforward process but allows the other side a further opportunity to delay payment.
These are all factors which our experienced litigation lawyers at Taurus Legal Management take into account, prior to deciding on whether to issue proceedings in a Court or VCAT. If you need assistance with your claim, please contact us on (03) 9481 2000 or firstname.lastname@example.org.