Litigation FAQs
Q: How long does a proceeding take?
The duration depends on which court or tribunal the case is heard in:
- Magistrates’ Court (MCV): approximately 6–9 months
- County Court (CCV): usually 9–12 months
- Supreme Court (SCV): around 9–12 months
- VCAT (goods & services or residential tenancy): approximately 3 months
- VCAT (retail or building & construction): around 12 months
Q: What factors can affect when the trial will be held?
- Which jurisdiction the matter is in
- The location of the Court or Tribunal
- The Court’s or Tribunal’s workload
- The complexity of the case and the pre-trial work required
- Any interlocutory (interim) applications made during the process
Q: How many days will the trial take?
This depends on the number of witnesses.
- The more witnesses, the longer the trial.
- Time is required for examination and cross-examination.
- Witnesses may include clients, the other party, experts, and subpoenaed individuals.
- If an interpreter is required, expect the hearing time to roughly double.
Q: Is legal representation compulsory?
VCAT:
- Representation rules vary depending on the list.
- Usually allowed: Building & Property, Residential Tenancy, Planning
- Leave required: Goods and Services
- See: VCAT – Legal and Professional Representation
Courts (MCV, CCV & SCV):
- Individuals can self-represent.
- Companies are required to have legal representation.
- It is strongly recommended to engage a lawyer, as laypersons usually lack experience with court procedures and document requirements.
Q: What are the usual steps in a proceeding?
This varies depending on the court or tribunal, the type of case, and the relevant list.
However, common steps in a civil or commercial litigation include:
- Pleadings: Statement of Claim, Defence/Counterclaim, Reply, Further and Better Particulars
- First Administrative Mention: Timetable orders are set
- Discovery: Exchange of documents and Affidavits of Documents
- Mediation
- Expert Reports
- Witness Statements or Outlines
- Subpoenas
- Trial Preparation: Chronology, List of Issues, Court Book Index, etc.
- Pre-Trial Conference
- Trial
Interpreter needs should be considered throughout.
The sequence may vary depending on the court’s directions or practice notes.
Q: How much does it cost to run a case?
Costs vary significantly depending on:
- The jurisdiction and court level
- The case type and complexity
- The volume of documents
- Whether expert evidence is required
General cost estimates:
- VCAT: $30,000 – $150,000
- MCV: $30,000 – $80,000
- CCV: $60,000 – $150,000
- SCV: $100,000 – $250,000
Q: When is an expert report required?
Expert reports are necessary when there is uncertainty regarding the quantum (amount) claimed — for example:
- The scope or cost of repair work (e.g. water ingress, mould remediation, make-good works)
- Tenancy “make good” obligations
- Calculation of unpaid rent or audit of payments
Experts provide professional opinions that help quantify damages or clarify technical issues.
Q: What are the costs consequences of litigation?
- VCAT: Under section 109 of the VCAT Act, each party generally bears its own costs (unless contract terms state otherwise).
- Courts (MCV, CCV, SCV): The losing party usually pays the winning party’s costs, assessed per the court’s Scale of Costs.
Estimated recoverable costs:
- MCV: < 50% of total costs
- CCV: < 60%
- SCV: < 70%
Recoverable costs also depend on the handling solicitor’s hourly rate.
Q: What documents should I prepare before seeing a lawyer?
- Any existing Court or Tribunal documents
- A concise summary of the key facts (who, what, when, where, and how)
- Relevant supporting evidence
- A list of questions you wish to ask
Q: What are the risks of going to trial compared to settling early?
Risks of going to trial:
- Legal costs (your own and the other side’s if you lose)
- The uncertainty of judgment
- Enforcement risks and costs
Formula:
Total Risk = Own Legal Costs + Opponent’s Costs + Claimed Amount
Pros of settlement:
- Avoid litigation risks
- Save costs
- End the dispute early
Cons of settlement:
- Pre-litigation settlements may lack clarity about the full scope of the dispute
- Cannot enforce “summary judgment” if the other side defaults later
Late settlements:
- Legal costs will still factor into settlement terms
- The later the settlement, the more costs have already been incurred
Q: What is mediation, conciliation, arbitration, directions hearing, and trial?
Mediation / Conciliation / Conference
- These terms are used interchangeably in different jurisdictions (MCV, CCV, SCV, FWC, DBDRV, VSBC, etc.)
- Confidential and without prejudice discussions
- Aimed at early resolution, often compulsory before trial
- Settlement is voluntary and not guaranteed
Arbitration
- Similar to a trial but held privately, outside the court system
- The arbitrator’s decision is binding and enforceable
- Governed by specific arbitration rules (usually defined in the contract)
- Common in international contracts
Trial
- Formal court or tribunal hearing
- A judge (or member) makes a final, binding decision
- Each party must present and argue their case
Q: Why do I need to brief a barrister?
Barristers specialise in courtroom advocacy. Their role includes:
- Representing clients in open court
- Preparing legal arguments and cross-examining witnesses
- Providing expert advice on evidence and case strategy
Barristers’ experience often brings valuable insight both before and during proceedings.
Solicitors, by contrast, focus more on drafting documents, liaising with clients, and instructing counsel.
