Reducing overall costs of family provision proceedings

 

2.135     The Commission notes that the Civil Procedure Act places overarching obligations on parties and their legal representatives to:

•    take steps to resolve or determine a dispute

•    use reasonable endeavours to resolve a dispute by agreement

•    narrow the issues in dispute, and

•    ensure that costs are reasonable and proportionate to the complexity or importance of the issues in dispute and the amount in dispute.  183

2.136     These overarching obligations apply to family provision proceedings, which are civil proceedings. 184 All of the obligations listed above are relevant to reducing costs in family provision proceedings, by ensuring that early settlement is a primary objective of the parties, and that applications are resolved as efficiently as possible.

2.137     In addition to these overarching obligations, both the County Court and the Supreme Court have taken measures to attempt to deal with excessive costs and delay in family provision proceedings.

2.138     Judge Misso has implemented a number of processes in the Family Property Division of the County Court, which hears family provision applications in that Court. The procedures are consistent with the Court’s aim in civil litigation ‘to process cases to resolution as efficiently as possible’ and determine matters ‘quickly and cheaply, consistent with the demands of justice’, 185 and include:

•    As far as possible, assisting parties with procedures to resolve a dispute as soon as possible if a claim has little merit, or where the defendant has no real defence. For example, parties may be required to swear an affidavit setting out the basis of their claim or defence.

•    Interrogatories being permitted, but only in exceptional cases where the time taken is justified by the likelihood that, as a result of the interrogatories, the proceeding is likely to reach resolution at an earlier stage.

•    Requiring parties to attend a judicial settlement conference, presided over by a judge, or a mediation within 60 days of the date of filing and service of an appearance. Whether the parties are ordered to attend a judicial settlement conference or intend to mediate, they are required to file and serve a statement setting out the essentials of their claim or defence. These statements are not without prejudice and may be used at trial.

•    A pilot program inMelbourne, which initially listed matters for judicial settlement conference rather than allowing them to go to mediation if the amount in dispute was less than $200,000. 186 The ceiling of $200,000 has since been lifted, with judicial settlement conferences undertaken irrespective of the size of the estate.

2.139     Although innovations in the Supreme Court Probate List do not apply to family provision proceedings (which are not heard in that list), 187 the Supreme Court has also implemented measures to reduce costs in family provision proceedings, including:

•    dispensing with affidavits and organising mediations before an associate justice on the basis of position papers, if the value of the estate is less than $500,000

•    ensuring that there is only one directions hearing and that matters do not repeatedly return to court before the trial date 188

•    the Supreme Court Probate Users Group considering rules about length and content of affidavits in family provision proceedings and otherwise considering ways and means of reducing costs.

2.140     Additionally, the Commission is aware of at least one Supreme Court case in which costs were capped. In the case of Cangia v Cangia, where the total value of the estate was $360,000 and further provision was made for the applicant, Justice Whelan had received details of the costs being claimed by the solicitors for each side: $34,687.50 for the executor’s solicitors and $62,659.50 for the plaintiff’s solicitors. 189 His Honour expressed the view that he ‘should order that the costs of each of the parties be paid from the estate in an amount not exceeding $30,000.00’.  190

2.141     As discussed at [2.55]–[2.59], above, the Supreme Court has also exercised its summary judgment discretion in some family provision matters. 191

2.142     Several legal practitioners have expressed the view to the Commission that, in their experience, it is less costly to make a family provision application in the County Court than in the Supreme Court, while others considered that the costs were much the same. Other legal practitioners and representatives of the Supreme Court observed that there was no costs disadvantage in proceeding in the Supreme Court rather than the County Court, and that a majority of practitioners continue to issue proceedings out of the Supreme Court.


Questions

FP19 Are family provision proceedings generally less costly in the County Court than in the Supreme Court?

FP20 What measures are working well to reduce costs in family provision proceedings in the County Court and the Supreme Court?

FP21 Are there any additional measures that would assist in reducing costs in family provision proceedings?

 

FOOTNOTES

183    Civil Procedure Act 2010 (Vic) ss 19, 22– 4.
184    ‘Civil proceeding’ is defined as any proceeding in a court other than a criminal or quasi-criminal proceeding: Civil Procedure Act 2010 (Vic) s 3 (definition of ‘civil proceeding’). The Civil Procedure Act applies to all civil proceedings with some exceptions, of which family provision is not one: Civil Procedure Act 2010 (Vic) s 4(1).
185    County Court of Victoria, Practice Note 6 of 2008Operation and Management of the Family Property Division, 21 August 2008, 1.
186     Ibid, 6.
187     Supreme Court of Victoria, Practice Note No 5 of 2011Probate List, 28 April 2011, 1–2.
188     In relation to family provision proceedings, r 16.05 of the Supreme Court (Miscellaneous Civil Procedure) Rules 2008 (Vic) provides that ‘no step shall be taken in the proceeding after appearance until directions have been given in accordance with Rule 16.06’. Matters may return to court for further directions where, for example, there is a breach of orders made or orders for discovery are sought.
189     Cangia v Cangia [2008] VSC 455 (31 October 2008) [55].
190     Ibid [56]
191     Jackson v Newns [2011] VSC 32 (18 February 2011); Napolitano v State Trustees Ltd [2012] VSC 345 (15 August 2012).

 

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