AS LAWYERS themselves can’t afford to litigate in the very courts they litigate in, some are arguing that something needs to be done. The Victorian Law Reform Commission has released a Consultation Paper that it hopes will overhaul access to justice in the state.

Litigation is expensive, “that is just a fact of life”, Law Reform Commissioner Peter Cashman said in a recent interview with Lawyers Weekly. But the costs are so high now that it is probably even beyond the reach of many lawyers. “So the question is what can be done about it.”

Victorian lawyers, litigants, judges and barristers will be able to propose changes to the way people are sued and how the civil justice system can be made fairer, cheaper and simpler as part of the upcoming review of the civil justice system.

The Victorian Reform Commission will consider costs, the role of expert witnesses, and procedures that would simplify and speed up a resolution of complaints. “It is a question of trying to come up the sensible reforms that don’t add to costs and that hopefully decrease delays so that those cases that do get to court can be resolved more expeditiously and more economically than they are at present,” said Cashman.

The desire for reform sprang in part from a broad-ranging commitment to reform, said Cashman, but also because of a string of reforms that have taken place both in Australian and internationally.

The Victorian Government, and in particular the state Attorney-General Rob Hulls, issued a broad-ranging justice statement in May 2004 in which they set out an agenda for reform both for the criminal justice area and in the civil justice area. As part of that reform initiative, the Law Reform Commission was given a reference on the civil justice system, particularly focusing on the Magistrates Court, the County Court and the Supreme Court.

The Justice Statement issue by the A-G in 2004 identified the need for a “modernisation, simplification and harmonisation of the rules of civil procedure within and across the jurisdictions of the Supreme Court, the County Court and the Magistrates’ Court”, as well as the reduction in the cost of litigation and “the promotion of the principles of fairness, timeliness, proportionality, choice, transparency, quality, efficiency and accountability in the civil justice system”.

According to Cashman, the Victorian government was interested to see whether some of the reform initiatives that had taken place in other Australian states and internationally should be followed in Victoria.

New South Wales has introduced uniform rules in the local court, District Court and the Supreme Court, while in Victoria there are still different procedural rules applicable in different jurisdictions. Queensland and South Australia have both introduced requirements in certain cases for greater disclosure of information and exchange of documentation before proceedings are commenced. “This is an effort to try and accelerate the disclosure of information and to try and result in the settlement of cases earlier than would normally be the case,” Cashman said.

In England, there have been widespread reforms in the aftermath of the Woolf Inquiry into civil justice reform, Cashman pointed out. Additionally, in Canada both British Columbia and Ontario have recently had major law reform initiatives in the civil justice area. “So there is a lot happening in the world of civil justice and I guess Victoria is in a sense trying to play catch up,” said Cashman.

But for Victoria, it’s early days yet. The inquiry does not yet focus on any particular problem or issue, argued Cashman. However, he does concede that the lack of uniformity between different jurisdictions in terms of procedural rules does sit high on the list of possible problems. “The old approach to civil litigation, where the parties effectively retain control to an extent, still exists in Victoria. Whereas in some jurisdictions, judges have been given more active management powers and have been obligated to take greater control of proceedings,” he said.

As well, the question of financial incentives and disincentives looms large. Cashman noted that litigation is an expensive process and that the cost of litigation needs to be looked at.

“That includes both the incentive that needs to be given to people who have meritorious claims to pursue them if otherwise they are deterred. And also to work out ways of deterring people who have unmeritorious claims from pursuing them. The issue of costs and fees is inevitably part of the inquiry.”

The legal profession will have more interest in some issues than others in putting together submissions, Cashman predicts. “Particularly anything to do with fees and costs has a bearing on lawyers. But obviously lawyers have a primary commitment to the interests of their clients. But both commercial clients and individual plaintiffs are complaining about the high cost of litigation and difficulty in getting access to the courts. Most lawyers, I would like to think, will be quite supportive and co-operative about what the Commission is on about. And we are consulting closely with them to see what their concerns are.”

But the profession, including the judiciary and the bar, has a genuine desire to ensure that litigation gets to the issues early on, said Cashman. He said it’s important that time and resources are not wasted and that there are mechanisms for resolving cases short of trial. He suggested this may be possible through alternative dispute resolution or through the courts proactively trying to limit the issues as well as the time taken.

The Consultation Paper is available on the Commission’s website www.lawreform.vic.gov.au.