The following article was published in the Law Institute Journal in March 2007.
The submission deadline for the Victorian Law Reform Commission’s civil justice review has passed and Commission staff have begun the task of analysing the suggestions and research to develop recommendations for reform of the state’s civil justice system.
The Commission, as part of its mammoth task of overhauling the civil justice system in Victoria, released a consultation paper in September last year and has since met with representatives from courts, law firms, community legal centres, professional associations, insurers, academics, government and overseas civil justice bodies.
Full-time commissioner in charge of the project, Dr Peter Cashman, has presented papers at a number of conferences, made a presentation to the Commercial Bar Association and was the speaker at the Law Institute of Victoria President’s Lunch in November 2006.
The consultation paper asked more than 60 broad questions about aspects of the civil justice system including pre-commencement procedures, the manner in which proceedings are conducted, discovery, cost and delay.
Now the 30 November deadline for submissions has passed, the Commission has begun the process of weighing up all the suggestions, identifying areas for reform, analysing research and developing recommendations for change.
The Commission has just one year to give the Attorney-General an overview of how the civil justice system could be reformed, which will guide stage two of the project.
Within this overview, the Commission must identify the objects and principles that should drive the civil justice system. It must also identify areas for reform that would result in rule changes across jurisdictions, reduced costs, and the promotion of the principles of fairness, timeliness, proportionality, choice, transparency, quality, efficiency and accountability.
The courts have already made significant headway through their own reform initiatives. The average time it has taken to hear an appeal, for example, has dropped from 14.7 to 12 months.
More than 45 submissions have been received in response to the consultation paper.
Some of the submissions received have taken a broad view of the project, trying to cover most of the questions in the consultation paper and more. Others have focused on specific issues of particular concern.
Specific concerns about the current system detailed in submissions include:
- lack of uniformity of court rules
- complexity of pleadings
- insufficient early disclosure of evidence or other relevant material
- problems in obtaining access to information and evidence due to commercial confidentiality agreements
- the cost and unwieldy nature of discovery
- technical issues relating to subpoenas and offers of compromise
- the limited scope for grants of legal aid in civil matters
- the need for strategies to assist with increasing numbers of self-represented litigants
- the role and timing of witness statements
- the need for more judge-managed lists and greater case management
- management of complex or long cases
The Commission has also asked a diverse range of Victorian law firms to provide information about a selection of completed files, to assist in compiling a picture of the true cost of litigation.
Following the outcomes of meetings and submissions to the review, the Commission has identified ten areas for reform which will form the basis of stage one of the civil justice review. These may change as the review progresses, but currently are:
- setting overriding standards of conduct for all participants in the process
- case management
- disclosure obligations
- alternative dispute resolution
- expert witnesses
- self-represented litigants
- class actions
- specific technical problems
- mechanisms for ongoing review and reform
A report is due to be given to the Attorney-General by 4 September 2007.