This article was produced by the Commission and appeared in the August issue of the Law Institute Journal.
Stage 1 of the Victorian Law Reform Commission’s (VLRC) civil justice review is nearing completion, with draft proposals for reform recently circulated in preparation for the forthcoming report.
There are no simple solutions to the complex problems arising out of the high cost and often protracted delays characteristic of much modern civil litigation, particularly in the higher courts.
In many respects, judicial officers have been at the forefront of reform and innovation. Law reform bodies also have an important role to play. However, reforms often do not have the desired effect and may give rise to unintended adverse consequences.
In the first stage of its civil justice enquiry, the VLRC has identified areas where it proposes to make recommendations for reform in the report due to be submitted to the Attorney General in September 2007. The VLRC believes reforms in these areas will have a major impact, not only on the procedures for conducting civil litigation and on costs and delay, but also on the ‘culture’ of dispute resolution.
The VLRC released draft reform proposals for comment in June, which addressed the following topics and policy objective(s):
Standards of conduct: One of the key policy objectives is to improve the standards of conduct of participants in the civil justice system to facilitate dispute resolution, narrow issues and reduce costs and delay. One proposed method is through the introduction of statutory ‘overriding obligations’.
Disclosure of information and cooperation before proceedings are commenced: Another key policy objective is to accelerate disclosure of relevant information, and provide timeframes for communication and standards of sensible conduct before proceedings are commenced to avoid the necessity for litigation. This is proposed through the introduction of ‘pre-action protocols’.
Getting to the truth before trial: Another objective is to simplify and accelerate the processes for obtaining relevant information and documents once proceedings have commenced but before trial, with minimal use of judicial resources and minimal cost. This is proposed through the introduction of a new pre-trial procedure for the oral examination of people with information relevant to the dispute.
Alternative dispute resolution: Another key policy objective is to encourage the use of alternative dispute resolution and to empower courts to make more frequent and more efficient use of a wide variety of alternative dispute resolution mechanisms, even without the consent of parties. This is proposed through the introduction of clearly defined statutory powers for courts and educational measures.
Expert evidence: A further key policy objective is to give the courts more clearly defined and comprehensive powers over the use of expert evidence to facilitate less adversarial, more objective and less expensive evidence during trials. The VLRC proposes that the procedures for expert witnesses recently introduced in New South Wales be adopted in Victoria with some modifications.
Class actions and public interest remedies: The VLRC proposes to confer a power on the Supreme Court to order public interest distribution of damages in class action proceedings where class members entitled to damages cannot be identified, or where identification and proof of entitlement is not practicable or cost effective. Two other reforms designed to remove technical barriers to the conduct of some types of class actions are also proposed.
Access to justice and litigation funding: To improve access to the courts the VLRC proposes to introduce a new litigation funding mechanism, which would be self-funded from a share of the proceeds of funded cases. The proposed body would not only provide support for meritorious cases and public interest cases, but would also provide an indemnity for adverse costs and meet any orders for security for costs made against the assisted party.
Costs: To monitor the proposed reforms, facilitate further reforms and provide a mechanism for direct stakeholder participation in ongoing review and reform, the VLRC proposes the establishment of a Costs Council which would operate as a division of the proposed Civil Justice Council. Other proposed reforms for costs aim to (a) achieve greater proportionality and determinacy of legal costs, including through the introduction of fixed costs, and (b) reduce the transaction costs, delays and unfairness in procedures and principles governing the recovery of costs by successful parties.
The draft proposals were circulated widely to practitioners, judicial officers, community legal centres, representative organisations and individuals who made submissions to the review. The Commission called for feedback by the end of July to enable comments to be considered in the preparation of the stage 1 report.
The commission will also be examining other options for reform, including:
• improved case management powers and procedures
• discovery of documents and disclosure of information
• assistance to self represented litigants
• procedures for the pre-trial disposal of unmeritorious claims and defences
• the harmonisation of existing rule making bodies
• miscellaneous ad hoc reforms designed to remedy technical problems.