Activity 5b

1. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the ability of costs considerations to achieve the principles of justice requires students to write about relevant strengths and weaknesses of costs considerations. Responses will vary according to the arguments selected.

        Arguments in support of costs considerations achieving the principles of justice include:

• The prospect that an unsuccessful litigant may have indemnity costs awarded against them provides an incentive to parties to minimise the issues in dispute, and ensure that they conduct their case reasonably and ethically – this contributes to fairness in the legal process.
• The courts (and VCAT, to some extent) are able to use their discretion when ordering payment of costs – the court will only order that the costs it finds were reasonable must be compensated (this contributes to a fair allocation of costs).
• Parties have some control over the costs they incur because they are able to make choices such as the extent of their legal representation, whether they request a jury, and (within reason) where they file their claim – this gives them greater control over their access.

        Arguments against costs considerations achieving the principles of justice include:

• Funding of litigation includes obtaining legal advice, retaining legal representatives to advocate a case, and court filing and hearing fees – these combined costs of bringing a case to court can be prohibitive, and may prevent individuals from having effective access to the courts for resolution of their dispute.
• The risk of having to pay an adverse costs order to the defendant, if the action is unsuccessful, may discourage a plaintiff from pursuing their claim and testing the strength of their arguments – this acts as a barrier to a potential plaintiff accessing the legal system.
• Where opposing parties have imbalanced access to litigation funding, the conduct of the case may not be equal – there is a risk that a well-funded party may be successful because they are able to pay for superior advocacy, rather than because their case has superior merit. Ensuring that this disparity does not eventuate in cases where one party is unrepresented places an additional burden on the courts.
• Costs can reduce equality because one party could obtain an unfair advantage in terms of case preparation and presentation – each witness costs money in terms of solicitor preparation, barrister questioning, court hearing fees and potentially expert witness charges, and each piece of evidence that requires forensic testing costs money. The plaintiff may fear that they cannot afford to launch their strongest case, or that the defendant will be able to afford more options in terms of witnesses or evidence.

2. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence when referring to the arguments for and against costs considerations, that it does achieve one principle of justice. Responses will vary according to the arguments selected.