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From the CEO: New broom sweeps cleanly

Every Issue

Cite as: May 2011 85(5) LIJ, p.6


The passing of key civil litigation legislation by the new state government holds promise for the future.

It is often the case that when a new government moves into Spring Street, pending legislation is at odds with the new regime and is quickly booted off the agenda.

This did not happen with the Civil Procedure Act 2010 (Vic) (CPA). The previous Attorney-General, Rob Hulls, started it and current Attorney-General Robert Clark refined it by introducing a Bill which sought to repeal pre-litigation requirements that had been introduced by the CPA.

How encouraging it is to see the new state government embrace the legislation, making amendments where appropriate, rather than adopting a wholesale rejection of its predecessor’s good work. The LIV looks forward to working with the Attorney-General’s office on reform and new initiatives.

The CPA was introduced by Mr Hulls to initiate sweeping changes to the way civil litigation is conducted in Victoria. Its overarching purpose is to facilitate the “just, efficient, timely and cost-effective resolution of the real issues in dispute”. The LIV supports these goals.

The CPA represents the first tranche of legislative reform to come out of the Victorian Law Reform Commission’s 2008 review of civil justice, led by Professor Peter Cashman, and is directed solely at reforming civil procedure in Victoria.Its intent has been hailed as progressive and central to the efficient administration of justice.

However, there were concerns about the pre-litigation requirements in Chapter 3 of the CPA, which were due to come into effect in the Supreme, County and Magistrates’ Courts mid-year. These required disputants to use alternative dispute resolution (ADR) processes, were burdensome and unworkable and had the potential to undermine the overall intention of the civil procedure reforms.

Rather than make the legal process more efficient, the pre- litigation requirements would have made it more complicated and costly, resulting in access to justice for consumers of legal services becoming more remote.

There was concern that recalcitrant defendants with deep pockets might be tempted to stall proceedings, compounding the cost of disputes and delaying their resolution. There was also concern that the cost of carrying out the extra steps would not be necessary in many cases – simple debt recovery matters, for example.

And there was concern that such increased procedural burdens might prompt people and organisations to take their business to a jurisdiction that did not impose these requirements.

Concerns about mandatory pre-litigation requirements were raised by the legal profession, including the LIV and the Victorian Bar.

The March 2011 LIJ (http://bit.ly/e6cbuW) contained five definitive articles on the CPA, including one by Supreme Court Chief Justice Marilyn Warren, who wrote that the CPA paved the way for best practice as the standard for all practice.

County Court Judge Graham Anderson, in his piece “Act aims to keep cases on track”, wrote approvingly of the CPA. He described it as “aspirational” legislation in that it sought to change an entrenched culture of adversarial litigation, which had resulted in an expensive and increasingly inaccessible justice system.

When the Civil Procedure and Legal Profession Amendment Bill 2011 was before Parliament earlier this year, there was a brief media flurry when The Age published an opinion piece by journalist Bruce Guthrie critical of the proposed amendments.

He wrote of his recent personal experience of the justice system – which he likened to stepping into quicksand – and said Mr Clark was taking a backward step in justice reform by repealing pre-litigation requirements.

The LIV rebutted the piece in a published letter to the editor, giving its reasons – which mirrored the Victorian Bar’s position on pre-litigation requirements – for supporting the amendments.

The LIV is all in favour of constant fine-tuning of the law; that needs to happen as society itself changes. The LIV encourages the use of ADR processes to avoid the expense, delay and complexity of litigation where appropriate, but legislatively requiring disputants to engage in them is not desirable.

The Civil Procedure and Legal Profession Amendment Bill 2011 was passed by Parliament in March 2011 and received royal assent on 29 March.

Disputants now have the option of engaging in ADR processes if they consider it appropriate for their particular dispute and circumstances. The LIV has a mediators directory (www.liv.asn.au/Mediators) that lists qualified mediators and their contact details. It also has a list of accredited specialist mediators (www.liv.asn.au/Specialists).

The Baillieu government has a very full law and order agenda. Mr Clark has said he is on a mission to reform the justice system. His priorities include reinforcing the independence of the courts, cutting court delays and improving access to justice.

But, as he has also said, the test is the results you can achieve and the benefits you can bring.

The LIV will closely monitor these changes and make submissions to government where appropriate.

The measured, transparent and inclusive way the CPA has been approached and dealt with by our new government bodes well for the future management of law and order in Victoria.

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