Deciding to commence legal action

The following information may help you to decide whether you should start court proceedings. Ideally, you should always seek legal advice and assistance from a solicitor before commencing legal action.

Do you know what you want?

Before commencing legal action, it is important to identify what it is you want as a result of the legal proceedings. Is it compensation? Is it reinstatement of your job? Or is it simply an acknowledgement of fault and an apology? It is important to know this to determine, first, whether the court can in fact give you want you want and, second, whether what you want is worth the stress of going to court.

Do you have a cause of action?

It is not enough just to have a grievance. You must have a cause of action that is recognised by legislation or common law as giving rise to an entitlement to legal action. Negligence for example, is a cause of action. In common law, negligence has 3 elements to be proved – that another person owed you a duty of care, that the person breached their duty and the breach caused you damage. You cannot ask a court to hear a negligence claim if your claim does not satisfy all 3 elements. For example, the first two elements may be satisfied, but you may not have suffered any real damage (see our factsheet on Damages and loss).

Be aware that the court in which you raise your grievance must have power to deal with that grievance. Certain courts have the power to deal with certain causes of action. For example, negligence is a civil tort or wrong that courts exercising civil jurisdiction can hear. You cannot ask the Family Court to hear a negligence claim.

For more detailed information, see our Cause of action factsheet.

Do you have sufficient evidence?

You cannot just say what you think happened. You have to prove it; you have to produce evidence.

Evidence can be in the form of documents, sound and video recordings, written witness statements and oral statements made in court. Keep in mind that if a person gives evidence of an event, such as a car crash, then they normally have to have knowledge of that event first hand, that is, they personally saw the crash happen.

In addition, your evidence has to be believed. If you say one thing and the other party contradicts what you say, then the judge (or jury) has to decide which version he or she accepts. The judge will make the decision on the basis of considering all of the evidence and his or her assessment of the character of each witness. The solicitor or barrister for the other side will try to question the reliability or character of you and your witnesses and point out the negative aspects of your case.

For more detailed information about evidence see our Evidence and proof in civil proceedings factsheet.

Do you have a lawyer?

Legal action can be a complex and frustrating process. A lawyer can help you negotiate and understand this process and will give you the best chance of succeeding.

If you cannot afford a private lawyer, then some alternatives may be:

In exceptional circumstances you may be able to ask the court to allow another non-legally qualified person to represent you, or at least help you in court by sitting beside you, take notes and give advice. You would need to show the court why you cannot represent yourself, for example, unable to attend court because you are in prison, English is your second language or you are unable to afford a lawyer.

If you are representing yourself, LawRight’s Court and Tribunal Services may be able to help you. See the LawRight website under Services for more information.

Other factors to consider before commencing legal action

Going to court should be a carefully measured decision. Representing yourself in court is NOT easy. There are many risks involved, and you should be aware of the possible consequences:

  • It is expensive – if you lose you will likely be ordered to pay the legal costs of the winning party.
  • It is very difficult to know the likelihood of success before you start proceedings. Do not let feelings of anger, injustice or retribution fuel you into pursuing your case through the courts. Make sure you have a valid cause of action and sufficient evidence in support.
  • It is likely to be a long process.
  • It can have adverse effects on other parts of your life, such as your health, relationships and family.
  • Managing and presenting your own case requires compliance with the rules and practices of the court. Cases frequently revolve around the finer points of law or evidence, which can be difficult to understand and navigate.
  • It can be extremely stressful.

Alternatives to court proceedings

Before commencing legal action, have you:

  • Advised the other side of your complaint? It may be worthwhile writing to the other side, setting out your grievance, to give them an opportunity to put forward their point of view or even offer a solution out of court.
  • Made a complaint to the relevant regulatory body? Depending on the type of dispute, you may be able to access dispute resolution processes offered by various regulating authorities such as the Office of Fair Trading or the Health Quality and Complaints Commission
  • Tried mediation? The Department of Justice and Attorney-General provides mediation services which are generally free to the public and for a fee in relation to facilitations and workplace mediations. See their website or telephone 07 3728 7000 or 1800 017 288. See also LawRight’s fact sheet on Mediation – a short guide.

However, you need to be aware of any time limitations that apply to your case. If you do not commence legal action within the relevant time period, then it may be difficult or even impossible to have your matter heard. See our factsheet on Limitation periods for further information.