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VLRC: Civil Justice changes recommended

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Cite as: (2008) 82(6) LIJ, p. 90

The VLRC has released stage one of the Civil Justice Review Report

After 18 months of extensive consultation and research, the first stage of the Victorian Law Reform Commission’s (VLRC) Civil Justice Review Report was tabled in Parliament late last month.

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 VLRC receiving an extension of six months to complete the final report.

Under the terms of reference set by state Attorney-General Rob Hulls, the VLRC 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 VLRC 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 VLRC selected 12 priority areas of the civil justice system 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 VLRC, including fairness, openness, transparency, proper application of the substantive law, independence, impartiality and accountability.

Many recommendations for a first tranche of reforms and the background to, and the reasons for, these are dealt with at length in the VLRC report.

There are also recommendations for reforms that could be considered during a second stage of the review, or by the proposed Civil Justice Council.

A snapshot of VLRC’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 before 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;
  • the 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; and
  • the 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
LIV 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 VLRC’s final recommendations were based on or modified to take account of the views expressed by various stakeholder groups, including the LIV.

The full report can be viewed online at http://www.lawreform.vic.gov.au.

Contributed by the VICTORIAN LAW REFORM COMMISSION. For further information, ph 8619 8619 or visit the website http://www.lawreform.vic.gov.au.

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