There is a reason why Courts encourage parties to explore alternative dispute resolution before and during a litigation hearing. Court can be stressful, costly and very time consuming diverting resources and time away from your business. Unfortunately though there are instances where alternative dispute methods do not resolve your matter. If that is the case, then you can consider going to Court or a Tribunal. The benefit of course to this court of action is that you will receive a definite result for your matter.

The best court (or tribunal) to hear your dispute will depend on a number of factors including:

  • The state or territory where the contract was executed – sometimes contracts or terms and conditions will specify which State jurisdiction an action should be commenced in.
  • The reasons for your claim – what is your cause of action?
  • The amount of money in dispute – depending on the amount in dispute/claimed will dictate where a Claim will need to be commenced.

Australia has two separate sets of courts – Federal Court and the State and Territory Courts.

The courts in each state and territory are separate from each other, and each is different with their own rules and procedures. Some States have Court managed processes and other States largely leave the case management under the control of the parties.

Factors to Consider Before Going to Court

What is the cost of going to court?

You’ve probably heard it a lot but taking a matter to Court is expensive.

Before proceeding with a claim, you should get an indication of the likely costs of commencing your action and the rough costs to take it to trial. You should note though that at an early juncture in the proceedings it is extremely difficult for any lawyer to predict with accuracy the ultimate costs of the action, particularly as it is unclear whether your opponent will defend the matter and if so, what defence they will file.

The total cost of going to Court will depend on a number of factors including:

  • The size of your debt or damages claim
  • How complex is your claim? Is it a debt recovery or is it something more complex?
  • What filing and other Court fees are associated with your matter?
  • Are you organised and do you have all relevant documents to hand?
  • Are you and your opponent going to be represented by a lawyer? We note that matters can be more expensive if your opponent is self-represented as often there are delays and additional assistance given to them by the Court.

You also need to give consideration to the cost of taking you and your staff away from the business in order to prepare and attend Court. This time is not insignificant. There may also be travel costs that need to be factored in.

Before you dive in you should really weigh up if you can afford it. Don’t forget that even if you are successful, your opponent may elect to appeal the decision (if there is an appealable point). This means that the matter can drag on for another six months to a year with additional costs to be incurred.

Do you want this information out in the public arena?

You may have worked for years to establish your great business reputation. Many people don’t necessarily realise the impact Court proceedings can have on your reputation. In the age of social media, things can go viral pretty fast. Alternative Dispute Resolution is usually kept behind closed doors but are you prepared for your case to go public? Remember, whatever is said is a matter of public record.

Do you all relevant documents available to prove your case?

Being organised and proactive is a great way of staying ahead of the game and keeping costs low. That means having records of relevant conversations, copies of relevant documents and key agreements available. If you have a lawyer involved, they will thank you immensely as it saves time and means they can give you a truly comprehensive advice. These documents will ultimately form part of your evidence in Court.

Does your opponent have funds to ultimately pay you?

If you have had a working relationship with someone, you may have an idea of their prospects of paying any judgment. There is little point in pursuing someone through the Courts if you know they will not have the financial capacity to pay you. There is nothing worse than receiving a ‘hollow victory’.

Are you prepared for the stress?

Court can be very stressful even for experienced business people. Don’t forget you may be required to give evidence and be cross-examined on that evidence.


At LegalVision, we appreciate that litigation can sometimes be necessary. If you need to explore alternative dispute resolution or litigation, please give one of our dispute lawyers a call to discuss. Call us on 1300 544 755 or fill out the form on this page.

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