This article was produced by the Commission and appeared in the June 2008 issue of the Law Institute Journal.
After 18 months of extensive consultation and research, the first stage of the Victorian Law Reform Commission’s Civil Justice Review: Report was recently tabled in Parliament.
This followed the publication of a consultation paper and two exposure drafts, which facilitated feedback and input from across the legal profession.
Extensive consultation with a broad range of participants in the civil justice system found widespread support for comprehensive reform.
The level of interest and participation led to the Commission receiving an extension of six months to complete the final report.
Under the terms of reference set by Attorney-General, Rob Hulls, the Commission was required to undertake a number of tasks, including identification of the goals of the civil justice system and the principles that should guide the rules of civil procedure.
The Commission was also asked to identify the key factors that influence the operation of the civil justice system, including matters affecting the timeliness, cost and complexity of litigation.
The scope of the review was vast and presented the Commissioner in charge of the reference, Dr Peter Cashman, with the challenge of refining the areas to be addressed during the first stage of the review.
The Commission selected 12 priority areas of the civil justice system for the Commission to examine and make recommendations for reform.
These priority areas were examined in the light of the goals of the civil justice system identified by the Commission including fairness, openness, transparency, proper application of the substantive law, independence, impartiality and accountability.
The Commission made many recommendations for a first tranche of reforms and the background to, and the reasons for, these are dealt with at length in the report.
There are also recommendations for reforms that could be considered by the Commission during a second stage of the review, or by the proposed Civil Justice Council.
A snapshot of the Commission’s major recommendations includes:
• The introduction, and future expansion, of pre-action requirements for communication and exchange of information.
• The introduction of new statutory standards to govern the conduct of key participants in civil proceedings.
• Additional provisions for mandatory referral to Alternative Dispute Resolution.
• Increased judicial powers to impose limits on pre-trial processes and hearings.
• The introduction of a new procedure for pre-trial oral examination of persons with relevant information, with leave of the court.
• The introduction of a statutory provision to enable confidential (non privileged) information to be obtained prior to trial.
• Narrowing the range of documents required to be produced on discovery to those that are directly relevant.
• Additional express judicial power to limit or restrict discovery.
• New requirements for the disclosure of the identity of litigation funders and insurers.
• A new procedure for expedited, low cost, access to certain categories of readily identifiable documents.
• New provisions, based on NSW reforms, to enhance judicial control over expert evidence and expert witnesses.
• Greater assistance for self-represented litigants, including through the development, by the professional bodies, of guidelines for lawyers in dealing with self-represented litigants.
• Various measures to curtail unmeritorious claims and defences and vexatious litigation.
• Establishment of a new Justice Fund to provide financial assistance to parties with meritorious civil claims and to provide indemnity against any adverse costs order and any order for security for costs.
• Numerous reforms in relation to costs, including the establishment of a Costs Council and conferring on courts express powers to require parties to disclose estimates of costs.
• Establishment of a new body, the Civil Justice Council with ongoing statutory responsibility for review and reform of the civil justice system, including measuring the impact of reforms.
Many of the proposed reforms, if implemented, would give representatives from existing professional bodies such as the Law Institute and the Victorian Bar, together with other stakeholder groups, an enhanced role in the ongoing processes of civil justice review and reform.
Many of the Commission’s final recommendations were based on or modified to take account of the views expressed by various stakeholder groups, including the Law Institute.
The full report can be viewed online at www.lawreform.vic.gov.au