Civil Procedures Under Review

The following article was published in the Law Institute Journal in October 2006.

The cost, complexity and speed of civil law cases will come under review in a new Victorian Law Reform Commission (VLRC) project.

The Attorney-General’s 2004 Justice Statement identified the modernisation of the civil justice system as a key challenge for the government over the next 5–10 years. The government has recognised the importance of improving access to fair and cost-effective dispute resolution services.

As part of this commitment, Dr Peter Cashman will head a new VLRC project to provide an overview of the principles and objectives driving the civil legal system and suggest areas for future law reform.

The government has given the commission one year to provide its overview report, which could be the precursor to another more in-depth review of the system.

The terms of reference for the review are:

1. To identify the overall objectives and principles of the civil justice system that should guide and inform the rules of civil procedure; having regard to the aims of the Attorney-General’s Justice Statement: New directions for the Victorian Justice System 2004–2014, and in particular:

  • the modernisation, simplification and harmonisation of the rules of civil procedure within and across jurisdictions;
  • the reduction of the cost of litigation;
  • the promotion of the principles of fairness, timeliness, proportionality, choice, transparency, quality, efficiency and accountability.

2. To identify the key factors that influence the operation of the civil justice system, including those factors that influence the timeliness, cost and complexity of litigation;

3. To consult with the courts, the legal profession, business, government and other stakeholders on the current performance of the civil justice system as well as the overall objectives and principles of the civil justice system and potential options for reform;

4. The review should consider the operation of the rules of civil procedure in the Supreme Court, the County Court and the Magistrates’ Court;

5. The review should have regard to recent reviews of civil procedure in other jurisdictions, both within Australia and internationally;

6. The review should also have regard to the impact of current policy initiatives on the operation of the civil justice system including the proposed increase in the jurisdiction of the County Court and investments in information technology such as an Integrated Courts Management System;

7. In presenting its report, the Commission should identify areas of the civil justice system and rules of civil procedure that might form the basis of a later and more detailed review. Such areas may include, but are not limited to, the rules and practices relating to:

  • pre-commencement options;
  • pleadings;
  • discovery;
  • summary judgement;
  • expert witnesses;
  • class actions;
  • abuse of process;
  • alternative methods of dispute resolution, including alternative dispute resolution undertaken by judicial officers; and
  • judicial role in case management and listing practices, including docketing systems.

8. The commission should also identify the process by which the courts, the legal profession and other stakeholders may be fully involved in any further detailed review of the rules of procedure;

9. The Victorian Law Reform Commission should report in 12 months from the date of the commencement of the review.

Work on the review was due to begin at the start of September and an information paper will be published as soon as possible.

An extensive round of consultations is envisaged that will cover all courts, the legal profession, law reform bodies, academics, court users, business and community groups, mediators and arbitrators, and government.

The Commission wants to hear from practitioners about their and their clients’ experiences of the civil justice system. What are the barriers to accessing the courts? Are the rules and procedures too complex? Do the courts deliver effective dispute resolution services to the community? What changes are needed to ensure the system will function efficiently into the future?

Dr Cashman is a former president of the Australian Plaintiff Lawyers’ Association, a founder of the national legal firm Maurice Blackburn Cashman, and founding director of the Public Interest Advocacy Centre. He was joint commissioner in charge of the Australian Law Reform Commission’s inquiry into class actions in 1986–1987 and has lectured in civil litigation at the University of Sydney.

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