Substantial reforms recommended for the civil justice system in Victoria

On 28 May 2008 Stage 1 of the Victorian Law Reform Commission’s (VLRC) inquiry into civil justice in Victoria concluded with the tabling in the Victorian Parliament of the VLRC’s Civil Justice Review Report.

Designed to make civil justice more ‘just, efficient and affordable’, the report canvases a broad range of reform measures and applies to civil litigation of all sizes.

Recommendations include pre-action protocols, early disclosure of information and more proactive judicial management

One of the more significant recommendations is a series of pre-action protocols which require parties to actively engage with one another prior to the commencement of formal legal proceedings. Suggested protocols include:

• the exchange of information detailing each parties’ position with respect to the dispute, including detailed reasons for the position taken, and
• each party being required to make a genuine and reasonable attempt to resolve the dispute without resorting to the commencement of legal proceedings.

The VLRC also recommends the introduction of:

1. pre-trial oral examinations – which would involve the examination of witnesses in advance of the trial of a legal proceeding. These examinations would be informal and the standard rules of evidence would not apply. In certain circumstances, with leave from the court, these examinations could be conducted prior to the commencement of legal proceedings;
2. giving judges power to call witnesses – this power would enable judges to call additional witnesses. Recognising the controversial nature of this proposal, the VLRC suggests that ‘such a power would only be likely to be used where there is no other reasonably practical alternative means of achieving justice between the parties’, and
3. a discretionary power to order ‘cy-pres’ type damages in class actions – the effect of these awards would be to require the payment of compensation by a party who has caused loss to others, or gained some pecuniary advantage even in circumstances where it is not possible to identify all of the people who have suffered a loss. The court would then have discretion as to how the compensation amount should be distributed. This might involve distributing part of a compensation award among nominated organisations, rather than allowing an unclaimed amount to revert to the defendant.

The recommendations outlined above form only a small part of the comprehensive reforms proposed by the VLRC. One of the key themes of the proposed reforms to encourage a more open and early disclosure of information and positions, with the hope that this will lead to the early resolution of disputes. One possible consequence of these measures will be to ‘front-load’ the incurring of some of the costs in the litigation process.

For further information concerning the proposed reforms please contact Peter Holloway, Partner, or Ruth Overington, Senior Associate, of the Melbourne Litigation team.

Name : Peter Holloway
Title : Partner
Office : Melbourne
Phone : +61 3 9288 1693
Fax : +61 3 9288 1567
Email : peter.holloway@freehills.com