Focus: Changing the culture of civil litigation in Victoria
9 July 2010
In brief: The way civil litigation is conducted in Victoria could be altered significantly by a raft of recently proposed civil procedure reforms aimed at making the system more accessible, affordable, proportional and timely. Partner Andrew Maher (view CV) and Senior Associate Matthew McCarthy report.
- Civil Procedure Bill 2010
- The 'overarching purpose' and 'overarching obligations'
- Pre-litigation requirements
- Case management, discovery and dispute resolution
How does it affect you?
- The Victorian Civil Procedure Bill 2010 proposes a range of reforms to civil procedure which have the potential to change the way litigation is conducted in Victoria.
- The extent to which the reforms will change the behaviour of litigants and others involved in legal proceedings will depend on the courts' preparedness to utilise the additional powers conferred on them.
The Civil Procedure Bill 2010 (the Bill) marks the first stage of the Victorian Government's legislative response to the Civil Justice Review report published by the Victorian Law Reform Commission in May 2008 (please see our Focus). The Victorian Government has described the reforms reflected in the Bill as representing a 'generational change in the way civil litigation will be managed' with the objective of 'chang[ing] the culture of litigation' by adopting a 'less adversarial approach'. It has also been said that the reforms are an extension of civil procedure reforms introduced in other Australian and overseas jurisdictions in recent years.1
The reforms will apply to all civil proceedings in Victorian Courts, except for proceedings commenced under certain Acts2 or in the Victorian Civil and Administrative Tribunal.
The Bill's 'overarching purpose' (and the overarching purpose of the rules of court applying to civil proceedings) is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute between litigants, by requiring the courts to exercise their powers having regard to a range of objectives, including:
- the public interest in the early settlement of disputes;
- the efficient use of judicial resources;
- minimising delays in the determination of disputes; and
- ensuring that the approach to a civil proceeding is proportionate to the complexity of the issues in the proceeding and the amount in dispute.
The Bill also stipulates that all participants in legal proceedings, including litigants, insurers, litigation funders and (in part) expert witnesses, owe certain 'overarching obligations' in the conduct of litigation. Those obligations include a 'paramount duty' to the court to further the administration of justice in relation to civil proceedings and related 'appropriate dispute resolution'. They also involve requirements of honesty, co-operation, reasonableness, timeliness, cost efficiency and early disclosure of critical documents in the conduct of litigation.
The Bill grants powers to the court to penalise a person who has contravened the overarching obligations. The penalties include orders that the person pay other parties' costs and other losses (such as penalty interest) arising from the contravention, and that the person take or refrain from taking specified steps in the proceeding.
The Bill proposes that disputing parties must take reasonable steps to resolve their disputes, or to clarify and narrow the issues in dispute, before litigation commences. 'Reasonable steps' include the exchange of correspondence, information and documents relating to the dispute, and the consideration of options for resolving the dispute without the need for proceedings3. The Explanatory Memorandum states that these particular steps 'would normally be regarded as the minimum requirements' to satisfy the 'reasonable steps' obligation. Parties 'must not unreasonably refuse to participate in genuine and reasonable negotiations or appropriate dispute resolution'.
Once litigation is commenced, each party must certify whether it has satisfied the pre-litigation requirements and, if not, the non-complying parties must state briefly why that is the case. The court may order that a party (or the party's legal representative) pay other parties' costs of compliance with the pre-litigation requirements. It may also take into account a party's failure to comply with these requirements when considering questions of costs generally and in making any procedural orders in the proceeding.
The pre-litigation requirements the Bill introduces are similar to requirements that have very recently been introduced into Federal Parliament, with the Civil Dispute Resolution Bill 2010. That Bill, which was foreshadowed in our earlier Client Update, requires parties in federal civil proceedings to take 'genuine steps' to resolve their disputes before commencing proceedings in federal courts or possibly face costs consequences.
The Bill restates and expands on Victorian courts' existing case management powers. The Bill proposes to confer on the courts various powers, including to:
- identify early in the litigation those issues that require full investigation and trial and those that can be determined summarily;
- limit the length of hearings (including trial) by, among other things, limiting the number of witnesses and the time allowed for their examination and cross-examination (in some cases dispensing with cross-examination altogether);
- limit, or expand on, a party's discovery obligations (including relieving a party of the obligation to provide discovery) and to order discovery before the close of pleadings; and
- order that parties use appropriate dispute resolution to assist in the conduct and resolution of the proceedings.
The consequences of contravening a court order relating to case management may include dismissal of the proceeding (in whole or in part), disallowance or rejection of evidence adduced by the contravening party, or the award of costs against the contravening party.
The Bill also expands the courts' powers to enter summary judgment in relation to unmeritorious claims and defences, providing that summary judgment may be given where a claim, or a defence, has 'no real prospects of success'.
The Bill confers on Victorian courts a clear mandate to case manage litigation more actively than is presently the case, in order to achieve the 'overarching purpose' of facilitating the just, efficient, timely and cost-effective resolution of litigation. On this level, the Bill is a positive development in the administration of justice in Victoria.
However, precisely how some of these proposed reforms would operate in practice is not yet clear. For example, without access to privileged and 'without prejudice' information, how is a court to decide whether a prospective litigant's refusal to participate in pre-litigation dispute resolution is unreasonable? Similarly, without access to this information, how can a court, when awarding costs of that process, identify whether a party has simply been 'going through the motions' when satisfying the pre-litigation requirements? How does a court avoid ill-informed decisions by limiting documentary and oral evidence at trial? The courts will, in due course, need to answer these and other questions arising from the Bill.
Therefore, the success or otherwise of the proposed reforms in achieving the desired cultural and generational change in civil litigation will depend on the way in which courts exercise these case management powers and, in particular, impose costs and other sanctions on parties (including litigants, legal representatives and certain third parties such as insurers and litigation funders) who fail to comply with the 'overarching obligations'.
We will continue to monitor the progress of the Bill and the further stages of the Victorian Government's program to reform the civil litigation landscape in Victoria.
- Similar civil procedure reforms have been enacted in the United Kingdom, New South Wales, Queensland and federally, although the extent of reform has varied from jurisdiction to jurisdiction.
- The Family Violence Protection Act 2008; the Stalking Intervention Orders Act 2008; the Confiscation Act 1997; the Proceeds of Crime Act 1987 (Cth) and Proceeds of Crime Act 2002 (Cth); the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; the Children, Youth and Families Act 2005; the Coroners Act 2008; the Victims of Crime Assistance Act 1996; and the Sentencing Act 1991.
- The Explanatory Memorandum for the Bill notes that there are some disputes in respect of which these pre-litigation steps will not be reasonable – for example, where limitations periods are about to expire. Similarly, it may not be reasonable to take pre-litigation steps where there is a risk that property will be dissipated before proceedings commence.
- Andrew MaherPartner, Practice Leader, Disputes & Investigations,
Ph: +61 3 9613 8022
- Peter O'DonahooPartner,
Ph: +61 3 9613 8742
- Paul NicolsPartner, Sector Leader, Industrials,
Ph: +61 2 9230 4414
- Kim ReidPartner, Sector Leader, Banks & Financial Institutions,
Ph: +61 2 9230 4037
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