In its Civil Justice Review Report officially unveiled last week, the Victorian Law Reform Commission put forward no less than 177 recommendations aimed at improving the efficiency of Victoria’s civil justice system.
The report is the final product of an 18-month review led by Dr Peter Cashman and its release follows the earlier publication of a consultation paper and two exposure drafts.
However not all the report’s recommendations have been warmly received. Among the reforms proposed is the introduction of pre-trial oral examinations which the report says will help parties “get to the truth earlier and easier”. But Michael Brett Young, CEO of the Law Institute of Victoria (LIV), believes that such a reform could actually increase the burden of costs, especially for plaintiffs, without actually providing any benefit.
“I think the issue with pre-trial examinations, particularly from the plaintiffs’ point of view, is that it puts them in a position where they have to disclose their whole proceedings before they can launch their proceedings further,” he said.
“I don’t think that’s actually going to stop people issueing proceedings as a fishing exercise, but what it does do is build up a large amount of costs at the commencement of proceedings and that’s where we have concern,” Brett Young said.
“Because, particularly, plaintiffs in personal injury matters may not have sufficient funds to fund such a high cost in such a short period of time.”
Brett Young also believes that the complexity of pre-trial oral examinations could further disadvantage self-represented litigants.
The LIV is also concerned about the proposal to introduce a requirement for lawyers and parties to certify that the allegations made in their proceedings have merit. Specifically, Brett Young is concerned that a lawyer who made a genuine certification at the beginning of the case could later be found to be in breach of that certification as new evidence comes to light.
“To a certain extent, the decision you make has [an element] of subjectiveness to it as it’s given on the basis of the evidence that you had before you at the time,” he said. “
“What we’re concerned [about] is that lawyers, whether they be [representing] plaintiffs or defendants, may find that they’re brought before the court when they’ve made a valid decision, but because of information that comes to light later that decision is proved to be incorrect,” Brett Young said.
In addition, the report recommends the establishment of a “Costs Council” as a mechanism for helping to reduce and rationalise the costs of litigation. Brett Young, however, questions whether a costs council is really necessary, in addition to the costs court which is already proposed.
“Victoria is already looking to introduce its own costs court and the process is already in place for that,” he said. “The question I put over [the costs council recommendation] is: ‘Is that going to provide us with anything better than we’re going to achieve out of a costs court?’ ”
Among the recommendations that the LIV supports are those aimed at increasing the use of alternative dispute resolution, as well as the proposal to extend collaborative law to civil disputes such as wills and property.
“Will disputes can be very expensive and can result in estates being very much reduced in size purely due to litigation,” Brett Young said.
Among other recommendations, the report proposes the tightening up of legislation relating to vexatious litigants. It proposes a broadening of the circumstances under which courts can make orders prohibiting or restricting a person from bringing proceedings. Reforms to enhance judicial control over expert evidence have also been recommended, as well as changes to better assist self-represented litigants.
In a statement released last week, Attorney General Rob Hulls said the government would carefully consider the report in preparation for the release of its “Justice Statement 2” later this year.
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