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Costs Court a step closer

News

Cite as: (2007) 81(6) LIJ, p. 27


A separate Costs Court is expected to benefit all parties in a costs dispute.

A Law Institute of Victoria (LIV) proposal to create a separate court to deal with costs disputes has been taken up in a major Victorian government review.

The report, by Crown Counsel Dr John Lynch, also called for Supreme Court masters to be renamed “associate judges” and to potentially play a larger role in mediating cases.

LIV CEO Mike Brett Young said the proposed Victorian Costs Court (VCC), as a division of the Supreme Court, would increase the efficiency of the overall running of the costs jurisdiction.

“We think that it is better to have a court which has more flexibility and efficiency in its administration, and that’s what we think we would have under this style of operation,” he said.

The Review of Office of Master and Costs Office Report recommended the VCC be presided over by an associate judge and determine party-party and practitioner-client costs disputes and undertake the taxation and costs review functions currently performed by the Taxing Master and the registrars of the County Court and the Victorian Civil and Administrative Tribunal (VCAT).

“This review considers that the ‘costs office’ proposed by the LIV would create greater efficiencies and facilitate the development of more uniform approaches to the resolution of costs disputes across the jurisdictions,” it said.

The LIV had argued that a single taxing office to service all courts would:

  • create greater efficiencies within the courts;
  • give magistrates more time to resolve substantive disputes;
  • facilitate the appointment of personnel with specialisation and expertise;
  • develop uniform principles for the taxation of costs; and
  • achieve time savings and uniformity of procedure.

Mr Brett Young said it was gratifying that the LIV’s submission on the VCC had been heeded, and it was a credit to the people involved in preparing the submission.

In relation to the role of masters, Victorian Attorney-General Rob Hulls said the report supported a major overhaul of the 19th century office of master.

“This would include masters presiding over more cases in mediation so that more cases can be settled before they reach the courts,” he said.

LIV president Geoff Provis said it remained to be seen what was envisaged by the masters having a greater role in mediations.

“We think that private mediators have done an excellent job thus far,” he said.

“We are not quite sure what the Attorney-General has in mind in respect of a greater role for mediations. That one is a work in progress and we will see how it pans out.”

The review noted the LIV’s submission that questioned the cost-effectiveness of masters as mediators, the inability of parties to choose their own mediators, and the fact that using judicial officers as mediators could be seen as a repudiation of basic principles of fairness on which the court system is founded.

Dr Lynch said the cost-effectiveness of the move needed to be reviewed, but he said the potential benefits of expanding the mediation services available to litigants outweighed the risks to the court system as outlined by the LIV.

He recommended that the effectiveness of masters as mediators be assessed by the Supreme Court in consultation with the legal profession and Department of Justice.

Masters are judicial officers appointed to the Supreme Court to assist with the general business of the Court. They hear and determine civil cases which are not within the exclusive jurisdiction of the judges of the Trial Division and perform a range of interlocutory and other pre and post-trial functions.

Under the Supreme Court Rules, masters can conduct mediations either on their own motion or on a referral from a judge, and may give appropriate directions.

The review of the masters’ role said the “courts expressed the strongest support for masters undertaking mediation”.

“The Supreme Court noted its ability to offer restricted mediation services to litigants, the experience and expertise of some of its masters in this regard, and the international trend towards court annexed mediation,” the review said.

Supreme Court Chief Justice Marilyn Warren said the work of the masters directly affected almost all aspects of the Court’s jurisdiction.

“They determine matters relating to default judgments, a vast range of essential pre-trial matters, as well as hear applications for the winding up of companies and other important matters under the Corporations Act,” she said in a letter to the Australian Financial Review on 20 April.

She said that for two years masters had performed a special role in mediations at both trial and appellate level.

The Supreme Court embraced the proposals which, to a large extent, reflected what was already in place, she said.

Mr Hulls has asked for feedback on the review’s recommendations from the courts and VCAT. No timeframe has been announced for his consideration of the feedback.

The report can be found at http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/resources/file/ebabdf0e2f439d4/Crown_ConselMarch_2007.pdf

Tips from the masters

Just what role the masters play in the courts, and their powers, is often a mystery to practitioners.

In a bid to help lawyers understand what they do, three masters of the Supreme Court were guest speakers at the Law Institute of Victoria in a session called “Demystifying the Role of the Master” on 24 April.

Masters Melissa Daly, John Efthim and Ewan Evans outlined the types of cases they worked on and took the opportunity to give tips and advice to lawyers about the matters they handled. About 90 people attended the session.

Master Daly, who hears general applications, administers the Civil Management List and coordinates mediations by masters, said it was important for lawyers to take care to ensure their applications were made properly before either a judge or a master.

If a master did not have the power to hear a matter, then it would be dismissed, she said.

She said masters had the power to make orders under the Guardianship Act, Transport Accident Act, Service and Execution of Process Act, Trustee Act, Supreme Court Act and the Associations and Incorporations Act.

Master Efthim, who mediates matters, hears general applications, handles the Corporations List and applications for strike-out pleadings, said he could hear any matter in the Corporations List.

“If you think a matter can be done quicker or if the issues are ready and the judge has got a big trial, you can ask for the matter to be referred [to a master],” he said.

Master Efthim said a lot of work was put into the checklist of cases coming up before him and he encouraged lawyers to make use of it.

Master Evans, a master at the Supreme Court for more than 23 years, urged practitioners to serve notice of interlocutory applications either through the post or by leaving it at the proper address for service, rather than using the document exchange method or facsimile.

In other advice, he said lawyers should take note of the court orders.

“You have got to be able to satisfy yourself the order has been made and that it accurately reflects what you think the intention of the Court was.

“And don’t ever be embarrassed to check it after the case has finished, and raise the matter again with a master if you think the master has made a mistake or if you think there is some ambiguity which nobody has noticed up until then,” Master Evans said.

“Don’t leave the Court until you are sure you have completed your job.”

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