Litigation & Dispute Resolution

If you have been injured as a result of a car accident, it is important to understand your legal rights and entitlements.

Once you have lodged a claim with TAC and have been issued a claim number, Duffy & Simon will provide you with advice on your rights to compensation for:

• Loss of income whilst you cannot work;
• Medical and like expenses you incur in healing;
• Lump sum compensation; and
• Ongoing pain and suffering and loss of earnings

It is important to review the decisions made by the TAC to ensure that you are getting what you are entitled to receive. Often, the TAC is not fully aware of your circumstances, and this can impact on the decision that they make.

Where you have suffered an injury because of someone else’s actions, there are strict time limits that apply to any claim for compensation being brought against that person.

The time limits for injury compensation claims depend on the circumstances surrounding the injury, including the age of the person and whether the injury was known to the person at the time the incident occurred.

It is important to obtain advice at the earliest possible opportunity, to ensure that you are not barred from bringing a claim for compensation against the person who has caused you injury. Duffy & Simon can assess your claim, and provide you with easy to understand advice on your rights arising from your injury.

The first step in recovering an unpaid invoice from a customer or a bad debtor is to review the terms of payment or any contract you entered into with the customer.

Secondly, if the relationship permits, you should informally contact the debtor to enquire as to the status of payment. They may have simply forgotten particularly if the invoice was payable on terms, for example, within 30 days.

Where your enquiry is met with opposition, we suggest a formal letter of demand either prepared by you or with our assistance. If the debtor fails to make payment in accordance with the terms of the letter of demand, a final notice should be sent, notifying the debtor of your intentions to commence legal action.

The amount owed to you will determine which court you seek recovery of the debt through. However, for matters under $100,000 they will usually be heard in the Magistrates Court of Victoria or in some cases the Victorian Civil and Administrative Tribunal.

You may then commence action through the appropriate court, and if successful, obtain a court order against the debtor for repayment of the debt plus interests and costs.

In the event that the debtor fails to pay the amount ordered by the court, you will then be required to enforce the court orders. There are various methods of enforcement including warrants to seize property, oral examination, and winding up of the debtor (if it is a company).

If you are successful in your application to the court, or defending any proceedings commenced against you, you are likely to recover a portion of your legal expenses incurred.

The State and Federal based courts operate on a “scale” meaning that you will recover your costs incurred based on the court scale and not the costs incurred with your solicitor.

In some cases, there are occasions where you will recover your costs on an indemnity basis meaning that the unsuccessful party will cover the costs that you have actually paid (assuming such costs are reasonable).

Costs are always at the discretion of the court and costs orders will generally reflect the way the proceeding has been conducted and whether the costs incurred by the successful party have been reasonable.

There is often the presumption that VCAT is a tribunal that will not make cost orders against a party that is unsuccessful in a proceeding. While this is generally true as VCAT is a costless jurisdiction, there are circumstances where VCAT may consider it appropriate to award costs.

S109 of the Victorian Civil and Administrative Tribunal Act 1999 (Vic) (“the Act”) contains the factors that VCAT must consider in awarding costs against a party. These are as follows:

1. Where a party has conducted the proceeding in a way that unnecessarily disadvantaged the other party. This may include failure to comply with orders or the rules of the VCAT, causing unnecessary delay that results in the proceeding being adjourned due to non-compliance, being deceitful or being vexatious;
2. A party prolonging the length of proceedings;
3. If a party has made a baseless claim in fact or law; or
4. The nature of the proceedings being particularly complex.

VCAT may also make an order for costs in circumstances where one party has offered to settle the proceeding and the other party has rejected that offer. The offer that was rejected must be in the opinion of VCAT not more favourable to the rejecting party than the offer. S112 of the Act provides the details of what VCAT must consider when making a costs order where a settlement offer has been rejected.

Cost orders in VCAT are rare but a party should always seek to comply with the orders and directions of VCAT so as to avoid any cost order exposure. This includes rejecting settlement offers from the party as you should always give settlement offers careful thought.