I've stated many times I'm not a lawyer but i can read... (and i'm aware Elwood has moved on but I'll answer the cost issues a little...)
Continuing on from the VCAT links i provided to
@Spec, here is
a link that confirms the general principle is that each party carries their own costs, which i'll repeat it here:
At VCAT each party usually pays their own legal costs unless we are satisfied it is fair to make an order for costs. This means you generally don't have your costs paid by the other party even if your case is successful.
We will only order one party in a dispute to pay some or all of another party's costs if we decide it is fair and if a party has been disadvantaged. For example:
- a party did not act appropriately (they were 'vexatious') during the case and that unnecessarily disadvantaged the other party
- a party has delayed a hearing without good reason, or made it take longer than it should
- a party has tried to deceive the Tribunal or another party
- a claim has no reasonable factual or legal grounds to support it.
Added to that, of interest is the
following link, repeated here:
if the claim is for goods and services under $15,000, we generally don’t allow a lawyer or other professional representative to speak for you at VCAT.
Of interest further up
the above mentioned page, it also states the following:
In some cases, if your party is a company then you must nominate someone to represent the company. Put the nomination in writing and have the director of the company sign it. The person representing the company must bring this document to the hearing.
You must make sure the person who represents the company:
- understands the dispute so that they can present the case
- has the company's permission to agree on a settlement
- can make promises to VCAT relating to a decision.
So when these facts are considered, other than application fees, it results in low risk of being stung legal fees for a goods and services claims less than $15,000. As in such cases lawyers are normally not permitted. Further, if a party wants a lawyer for such small claims, they need to apply for the courts permission to be represented by one, which generally isn't allowed in these small <$15,000 cases.
But YES, there is still the issue of fees being awarded under special circumstances, like if you were behaving maliciously in some way or had such a weak case you shouldn't have brought it to the tribunal. But the judge would need to believe that these "special circumstances" actually warrant an award of costs (where costs wont be in the thousands because of the above).
Normally "special circumstances" are not an issue if one has clean hands so to say... which is good because it encourages people not to waste courts time by not turning up or by telling lies. And not having lawyers present reduces each parties own costs in these small <$15,000 claims.
Though the above is for VCAT, since i had these links handy when answering spec3, NSW NCAT is much the same though i think the break point is different, $10,000 from memory.
WA they seem to not have Tribunals for minor case claims but again they are similar in principle to other states though held in a Magistrates Court rather than a tribunal (from what i have read). One big difference in WA minor case claims is that costs CAN be awarded though legal fees are excluded from these awarded costs (again from what I've read). This WA minor case cost issue seems to be in contrast to VCAT and NCAT.
It may also be that your experiance is with much much larger claims ( General Procedure Claim) where that seems a different ball game, especially where legal representation is expected and legal costs are awards.
SA seems to follow the WA principles where minor case claims are handled in teh Magistrates Court.
As is, I've got limited tribunal experiance, and I am not a lawyer as I've said, but in the few cases I've been involved in, my experiance has been no lawyers involved and no costs awarded.
Peoples individual situations may be different and their jurisdiction may have subtlties but thats why each person should discuss their situation with their state consumer group and some satte legal group (many groups that provide free legal advice, including duty lawyers at small claims tribunals themselves).
So costs aren't a big risk in small claims in some states, a slightly bigger risk for small claims in WA, SA and maybe some other states... It may be we are both both right and both wrong
As to your other points about proof, I'll address them another time as I'm feeling crap since I've been sick last couple of days. Not a great time to be sick with Covid spreading up the coast of Australia...