this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

LIV facilities open from 29 November 2021.

COVIDSafe measures apply in line with Victorian Public Health Orders.

Find out more

Act aims to keep cases on track

Feature Articles

Cite as: March 2011 85(3) LIJ, p.50

The Civil Procedure Act gives judges substantial case management powers.

By Judge Graham Anderson

The Civil Procedure Act 2010 (Vic) (CPA) is aspirational legislation. It seeks to change an entrenched culture of adversarial litigation which has resulted in an expensive and increasingly inaccessible justice system.

Recommendations of the Victorian Law Reform Commission’s (VLRC) 2008 Civil Justice Review: Report have been translated into a statute which imposes substantial obligations on litigants and lawyers by way of overarching obligations, pre-litigation requirements* and certification of court documents. Judicial officers have been given vastly increased case management powers.

In this article, I discuss how legal practitioners can work with the courts to achieve what the CPA defines as the “overarching purpose in relation to the conduct of civil proceedings”, namely, “to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute”. The article sets out the current case management practices in the County Court before turning to reforms implemented by the CPA, including the case management provisions, the “overarching purpose”, the “overarching obligations” and the certification requirements.

Case management practices in the County Court

The CPA applies to civil litigation in Victoria’s three state courts – the Supreme Court, the County Court and the Magistrates’ Court. Litigation in each court is conducted differently, depending on the matters in issue and the complexity of the factual or legal questions requiring resolution.

The County Court has effectively had concurrent jurisdiction with the Supreme Court in most civil disputes since the abolition of the monetary jurisdictional limit of the County Court from 1 January 2007. In those circumstances, the Court has needed to “reinvent” itself in order to offer a real alternative to litigants.

In its civil jurisdiction it operates on a “less is best” policy. It is considered that simpler processes and quicker resolution of cases will invariably meet the standards of justice, efficiency, timeliness and cost-effectiveness which are now recognised as the critical indicia of modern civil courts and enshrined as the overarching purpose of the CPA.

The Court already seeks to achieve these objectives by:

  • fixing trial dates soon after an action becomes defended, usually with a trial date within about six months;
  • minimising the need for any court appearances before the trial, largely by a system of “administrative mentions” which allow direct access to the Court by written communication on notice to all other parties, without the need for an appearance in court;
  • permitting parties and practitioners to communicate with the Court by letter, fax, email and telephone to initiate and resolve interlocutory matters;
  • putting the onus on the parties and their legal practitioners to cooperate and to agree on the interlocutory timetable for dealing with pre-trial matters and to communicate with each other and attempt to resolve procedural disputes before requesting a directions hearing;
  • discouraging parties from losing sight of the overall objective of a proceeding (the resolution of a dispute) and redirecting the focus of parties who become enmeshed in “satellite” litigation;
  • abolishing the Practice Court in favour of a duty judge system, with the duty judge’s responsibilities including responding to correspondence and determining interlocutory disputes which parties cannot resolve themselves. This has resulted in a more integrated approach to litigation, with greater concentration on resolving the real issues in dispute between the parties;
  • requiring every contested case to be subject to appropriate dispute resolution (ADR) processes, either by judicial intervention or, in the majority of cases, by private mediation arranged by the parties; and
  • not hesitating to target tardy cases for remedial management, while respecting the views of the parties and their practitioners about the pace and extent of pre-trial processes.

These processes have developed over many years and exemplify the cultural change which the CPA seeks to effect. Since 2007, particularly as a response to the Court’s increased jurisdiction, significant reforms have been introduced. These have principally resulted from procedural changes introduced by Judge Davis (the judge in charge of the Damages and Compensation List and the judge with primary responsibility for the general administration of the Court’s civil jurisdiction), and by judges sitting in the vastly expanded commercial jurisdiction. Many of these reforms were a direct response to the challenges of the VLRC’s Civil Justice Review investigations and report.

The reforms included the revamping of the Directions Court into the Directions Group to become the “engine room” of the Court’s civil jurisdiction, processing thousands of interlocutory applications and orders each year. Callovers were abolished and the very successful administrative mention system was introduced. This has significantly reduced the need for practitioners to attend court to obtain interlocutory orders. In addition, the Court has adopted a significant level of specialisation in its civil jurisdiction. For example, since 2009 the Chief Judge has nominated four specialist commercial judges each half-year to take primary responsibility for managing and determining contested commercial cases.

The overarching purpose and overarching obligations

The recent reforms in the County Court are consistent with the overarching purpose of the CPA “to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute” (s7(1)). The CPA provides that “a court must seek to give effect to the overarching purpose in the exercise of any of its powers or in the interpretation of those powers” (s8). This means that the overarching purpose is central to case management.

Parties to litigation, and the lawyers who act on their behalf, have “a paramount duty to the Court to further the administration of justice in relation to any civil proceeding in which that person is involved” (s16). In furtherance of this objective, litigants and their legal representatives are required to comply with a number of other “overarching obligations” which are set out in ss17–26 of the CPA.

These include obligations to “act honestly”; to only make a claim or respond to a claim where there is a “proper basis”; to only take steps necessary “to facilitate the resolution or determination of the proceeding”; to “cooperate” with other parties and the Court; to “use reasonable endeavours to resolve a dispute”; to “narrow the issues in dispute”; to “ensure costs are reasonable and proportionate”; to “minimise delay”; and to disclose the existence of “critical” documents.

Case management under the CPA

In addition to the overarching purpose and overarching obligations, the CPA includes far-reaching case management provisions. The powers given to judges are substantial. Take, for example, s47(3)(f) which gives the Court the power to “actively case manage civil proceedings by . . .

(f) limiting the time for the hearing or any other part of a civil proceeding, including, but not limited to –

(i) limiting the number of witnesses at the hearing;

(ii) limiting the time for the examination or cross-examination of any witness;

(iii) limiting the issues or matters that may be the subject of examination or cross-examination . . . ”.

Although a similar provision exists in the County Court Rules, its use has been limited. Now that the powers have statutory force and are part of larger reforms with clear objectives, it is likely that judges will use these powers more frequently. There are many other examples in the legislation of management powers which, in an appropriate case, should assist in achieving an early resolution of the proceeding. For example, a court may direct a legal practitioner to give written advice to the court or to a party of “the estimated costs and disbursements” of the trial, including the party’s own costs and those the party “would have to pay to any other party if unsuccessful at trial” (s50).

There are significant consequences for a party contravening directions made in the exercise of the case management powers. Orders may be made to “strike out or limit” a party’s claim or defence or to make costs or other orders and directions as appropriate (s51). Judges will, of course, exercise these additional powers with care, while keeping firmly in mind that they must “give effect” to the overarching purpose of the CPA. No doubt the Court of Appeal will also continue to ensure that trial judges’ actions remain consistent with the “need to do justice between the parties”.

The decision of the High Court in Aon Risk Services Australia Ltd v ANU1 has, to a degree, adjusted the balance of the range of matters that courts must consider in favour of the need for a more efficient disposal of cases. The specific and extensive provisions in the CPA are likely to ensure that civil litigation moves further in that direction. This should not, however, be seen as a threat to legal practitioners. It should be regarded more as an opportunity for them to achieve the “just, efficient, timely and cost-effective resolution” most of their clients hope to attain when involved in civil disputes.

Certification requirements

Legal practitioners should also be aware of the CPA’s new certification requirements. There is provision for three certification processes:

  • overarching obligation certification – personal certification by parties at or following the commencement of a proceeding that they have “read and understood the overarching obligations and the paramount duty” set out in the CPA (s41);
  • proper basis certification – certification by a party’s legal practitioner or by an unrepresented party that in relation to “the first substantive document” in a proceeding and “any document that contains significant amendments”, each allegation of fact, denial or non-admission “has a proper basis” (s42);
  • pre-litigation requirements compliance certification* – certification by a party or the party’s legal representative that the “pre-litigation requirements” of the CPA have been complied with, or stating “the reasons why those requirements have not been undertaken” (s43).

The County Court has put in place rules of court and a comprehensive practice note which deal with the certification requirements. The form of each certificate is set out in the rules. The rules provide that each certification “is to be bound into or attached to the relevant document to which the certification relates” (r4.12). It should be noted that each party must file the “overriding obligations certification” and the “proper basis certification” in every proceeding commenced after 1 January 2011 and the “pre-litigation requirements compliance certification” by each party or their solicitors in proceedings commenced after 1 July 2011.

The proper basis certification must be made by the legal representatives (or a self-represented litigant) early in the proceeding at the time of filing “the first substantive document” and again later in the proceeding if a significant amendment is made. Paragraph 16 of the practice note suggests that “all amending documents which add, delete or substitute a party, a cause of action, a substantive defence, a substantive matter by way of reply or a material allegation of fact should be accompanied by proper basis certification”.

The practice note provides for the consequences of a failure to file the appropriate certification. The Court will not prevent a proceeding from being commenced, notwithstanding a lack of compliance with the certification requirements. It will, however, forward a notice to the party drawing the party’s attention to the failure to appropriately certify and will seek compliance with the CPA.

The defaulting party will be advised that continued failure to appropriately certify may result in the Court:

  • referring any application for a default judgment to a judge for consideration in open court;
  • requiring the parties to the proceeding to attend court for a directions hearing before a judge.

At any such hearing, the judge would have a very wide discretion under the CPA. A defaulting party may be ordered to pay the costs of all other parties or other orders may be made as anticipated by s46. If the defaulting party is a plaintiff, the proceedings may be stayed or struck out if the default is not remedied. If the defaulting party is a defendant, the defence may be struck out if the default is not remedied.

It should be noted that the certification requirements only apply when certain documents are filed with the court. However, it must be understood that the overarching obligations apply to all pending civil proceedings unless “the court has begun to hear and determine that proceeding” (at trial) before 1 January 2011 (s73(3)).

Future directions

In the future, legal practitioners can expect that judges will be:

  • more interventionist;
  • more supportive of practitioners who want their clients’ cases to proceed efficiently;
  • less patient with perceived obstruction, time-wasting or lack of cooperation;
  • adopting simpler procedures which involve easier and speedier access to a decision maker, obviating unnecessary court appearances;
  • allocating early trial dates, while also encouraging (and at times applying some pressure) for parties to resolve cases by ADR methods; and
  • ensuring that pre-trial processes (particularly discovery) are “reasonable and proportionate to the complexity of the issues . . . and the amount in dispute”.

Already, trial judges in the Supreme Court have referred to the provisions of the CPA to support case management decisions: J Forrest J in Thomas v Powercor Australia Ltd2 in determining the extent of pre-trial steps, including discovery in a representative action arising out of the “Black Saturday” bushfires, and Beach J in Crowe v Trevor Roller Shutter Services Pty Ltd3 when he proceeded with a personal injuries trial without a jury. As Forrest J noted at paragraph 47 of Thomas, the provisions of the CPA, “require a court to be proactive and, if necessary, innovative in its approach”.

My experience as a judge has been that the legal profession is always willing to respond positively to change if it sees that promised efficiencies are being achieved. Initially, it is likely that legal practitioners will find many of the CPA’s provisions require them to adopt new practices, particularly with regard to the pre-litigation processes* and the certification requirements. However, if practitioners embrace the objectives of the legislation, particularly the need to make justice more widely accessible, the adjustments required by practitioners should be reasonably straightforward.

Conclusion

The legislation is a response to a community desire for a more accessible civil justice system.

The next and vital step – the implementation of the legislation – will involve a partnership primarily between judicial officers and the legal profession and will determine the extent to which the objectives of the reforms are achieved.



JUDGE GRAHAM ANDERSON is a County Court judge.

*Editor’s note: On 10 February, the Government introduced a Bill to repeal Chapter 3 of the CPA in respect of mandatory pre-litigation requirements consistent with its pre-election policy. If passed, the Bill will remove the general obligation on practitioners in respect of pre- litigation requirements which was to apply to proceedings commenced after 1 July 2011. Practitioners should monitor the LIJ, Friday Facts and Hansard for further developments.

1. (2009) 239 CLR 175.

2. [2010] VSC 489.

3. [2010] VSC 536 (Beach J); [2010] VSCA 328 (Court of Appeal leave application).

Comments




Leave message



 
 Security code
 
LIV Social
Footer