Costs and Time (VCE SSCE Legal Studies): Revision Notes
Costs and Time
Introduction
When we think about how courts make law, we need to understand that two critical factors can significantly impact this process: costs and time. These factors affect not only whether the legal system can achieve the principles of justice (fairness, equality, and access), but also whether courts get the opportunity to make law at all.
Here's the key point: courts cannot create or change law until someone brings a case before them. This means the court's law-making ability depends entirely on litigants (people who take matters to court) being willing and able to pursue their case.
For precedents to be established, litigants must often navigate the costly and time-consuming appeals process, as precedents are primarily set by appeal courts.
Litigant: A person who takes a matter to court to have it resolved.
Legal aid: Legal advice, education or information about the law, and the provision of legal services (including legal assistance and representation).
Costs of taking a case to court
Bringing a case to court involves substantial financial barriers that can prevent many people from accessing justice or creating opportunities for legal reform through precedent. Understanding these costs helps explain why some laws remain unchanged and why certain issues never reach the courts for resolution.
The cost of legal representation
To have the best chance of success in court, parties typically need professional legal representation. This is not merely a matter of convenience—it can be the difference between winning and losing a case. Here's why legal representation is so crucial:
What lawyers and barristers do:
- Conduct extensive research into relevant precedents (both binding and persuasive)
- Analyse evidence and legal documents thoroughly
- Interview and prepare witnesses for testimony
- Present legal arguments according to strict rules of evidence and procedure
- Navigate complex court processes and requirements
The impact on law-making: Without legal representation, a party faces a significant disadvantage. This creates a serious problem for the courts' law-making function because the high cost of legal representation particularly discourages people from taking civil cases to court—the very cases where precedents can be established and changed.
However, there is one potential benefit: the high costs can also discourage people with frivolous or trivial claims from clogging up the court system, ensuring that court resources are used for genuine disputes.
Court fees
Beyond legal representation, litigants must pay various court fees that can quickly escalate. These include:
Types of court fees:
- Filing fees: Charged when lodging a case with the court
- Hearing fees: Charged for each day of court hearings
- Jury costs: Additional fees if a jury is requested
Victorian Supreme Court fees (from 1 July 2023):
- Application for leave to appeal: $2,423.20 (standard application)
- Hearing fees: $896.80 for every day or part day after the first day
- Jury costs: $1,636.00 for the first day, $303.60 per day for days 2-6, and $543.60 per day from day 7 onwards
- These fees increase annually
Impact on access to justice: These costs can be prohibitive for ordinary citizens who don't qualify for legal aid. When people cannot afford to pursue cases or appeals, potential precedents never get set, and outdated or unjust laws may remain unchanged.
Time involved in bringing a case to court
The relationship between time and courts' law-making ability is complex. On one hand, courts can be remarkably efficient. On the other hand, delays can significantly undermine their effectiveness.
Courts' ability to make law quickly
Once a case reaches a superior court (where precedents are set), several factors enable relatively swift law-making:
Speed advantages:
- Cases must continue until a decision is made and the dispute resolved
- Judges are not required to follow the lengthy parliamentary process of developing, drafting, and passing bills through multiple readings in both houses
- Judges can make decisions to resolve cases and create law without extensive procedural delays
This means that when compared to parliament, courts have the potential to respond to legal issues with considerable speed.
Delays in complex cases
However, this potential for speed comes with important limitations. Appeal courts, where most precedents are established, can take months or even years to hear and determine complex cases. The following case study demonstrates just how significant these delays can be.
Case study: Eleven-year legal battle over failed mining project
Case: Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No 11) [2020] QSC 5
Background: In 2002, Chris Wallen (billionaire mining entrepreneur and owner of Sanrus) and Ken Talbot (founder of Macarthur Coal) made an agreement to develop a coal mine in Monto, Queensland. Macarthur Coal owned a 51% share of the project.
The dispute: By 2003, Macarthur Coal suspended the development, leaving Sanrus unable to continue. In October 2007, Sanrus and two other companies sued Macarthur Coal and its subsidiaries for $1.1 billion in damages for lost earnings and opportunities. The civil action formally commenced in 2008.
The timeline:
- 2008: Civil action commenced
- 2008-2019: Pre-trial stage lasting 11 years
- Court convened 62 times
- Approximately 400 files lodged with the Court's registry
- Multiple rulings made on document disclosure and evidence admissibility
- April 2019: Case finally proceeded to trial in Queensland Supreme Court
- November 2019: Supreme Court ruled in favour of Macarthur Coal
- January 2020: Parties reached an undisclosed settlement; no costs order made
Significance: This case illustrates how the complexity of a dispute can lead to extreme delays in reaching a resolution. During this 11-year period, no precedent was set, and the law-making potential of the court remained unrealized until the case finally proceeded to trial.
How costs and time affect courts' law-making ability
As a VCE Legal Studies student, you need to be able to discuss—not just explain—how costs and time affect the courts' ability to make law. This means presenting balanced, reasoned arguments about both the advantages and limitations these factors create.
Costs factors: explanation points
Positive aspects:
- Courts can manage disputes to narrow the issues, potentially saving parties costs and allowing cases to proceed to trial for final determination
- High costs may filter out frivolous claims, ensuring that only meritorious and legitimate cases reach appeal courts where precedents are set
The costs reality:
- The main costs are legal representation and court fees (filing and hearing fees)
- These costs are necessary for effective legal proceedings
Costs factors: discussion points
Limitations on law-making:
- High costs deter litigants who cannot afford them and who don't qualify for legal aid from pursuing their cases and asserting their legal rights
- Even more significantly, high costs discourage parties from pursuing the appeals process—precisely where most precedents are established
- The prohibitive nature of costs means that outdated or unjust precedents may never be challenged or brought before the court for review, leaving bad law in place
Exam technique: When discussing costs, always connect your points back to the law-making function. Don't just say "costs are high"—explain how this prevents cases from reaching appeal courts and therefore prevents precedents from being set or changed.
Time factors: explanation points
Speed advantages:
- Courts can make law relatively quickly once a dispute is before them
- Cases must continue until decisions are made to resolve disputes
- Courts avoid the lengthy parliamentary processes of bill development, drafting, and passage through both houses
Time factors: discussion points
Complexity and delays:
- Appeal courts (where most precedents are established) can take months to hear and determine complex cases
- Parties can experience significant delays in getting cases ready for trial, as demonstrated in Sanrus v Monto Coal
- Pre-trial procedures, document disclosure, and evidence admissibility issues can extend proceedings for years
Balanced analysis: While courts have the structural capacity to make law quickly, the reality of complex litigation means this advantage is often theoretical rather than practical.
Exam guidance
When asked to discuss costs and time:
- Provide balanced arguments: Show both how these factors can assist and how they limit courts' law-making ability
- Link to law-making: Always connect your points explicitly to the courts' ability to make law, not just to general access to justice
- Use specific examples: Reference the Victorian Supreme Court fees or case studies like Sanrus v Monto Coal
- Evaluate, don't just describe: Use phrases like "This suggests that..." or "The significance of this is..."
- Consider different perspectives: Think about how costs and time affect plaintiffs vs defendants, and wealthy vs disadvantaged litigants
Common command words:
- Discuss: Present multiple viewpoints with supporting evidence
- Evaluate: Make judgments about the significance or effectiveness
- Assess: Weigh up the relative importance of different factors
- Analyse: Break down the issue into components and examine relationships
Remember!
Key Points to Remember:
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Courts cannot make law without cases: The court's law-making ability depends entirely on litigants bringing disputes before them and pursuing appeals
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Costs create barriers: Legal representation and court fees (filing, hearing, jury costs) can prevent people from accessing courts, especially those who don't qualify for legal aid
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Costs can filter cases: While high costs deter many litigants, they may also ensure only meritorious claims reach appeal courts where precedents are set
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Time is paradoxical: Courts can theoretically make law quickly (no lengthy parliamentary process), but complex cases in appeal courts can take months or years to resolve
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Delays prevent law-making: When cases like Sanrus v Monto Coal take 11 years to resolve, the opportunity for timely legal reform is lost
Key terms: Litigant, legal aid, precedent, appeal courts, filing fees, hearing fees, superior courts
Critical framework: When evaluating costs and time, always ask: "How does this affect whether cases reach appeal courts and whether precedents can be set or changed?"