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LIV President's Blog
March 9, 2011

Discussing the Civil Procedure Act 2010

For those that missed it, here is a copy of my Letter to the Editor that was published in The Sunday Age, 6 March, 2011. This letter is a response to the article written previously by Bruce Guthrie titled Government takes backward step on justice reforms.

Dear Sir,
The Law Institute of Victoria is concerned by journalist Bruce Guthrie’s suggestion that civil procedure legislation is being repealed because it is “bad for business”.

Lawyers are committed to early resolution of disputes. That is a given. Indeed, in about 95 per cent of all cases, the dispute is settled before it gets to trial. Professional Conduct and Practice Rules [12.3] require practitioners to “inform a client about the reasonably available alternatives to fully contested adjudication of the case …”

This standard was reinforced in 2010 when, for the first time, the LIV, on behalf of its more than 15,000 members, committed to an appropriate dispute resolution pledge. We support on-going streamlining of litigation.

The Civil Procedure Act 2010 is being amended to repeal pre-litigation requirements because the Government, along with the LIV and the Victorian Bar, considers pre-litigation requirements are not in the interests of consumers of legal services.

The mandatory pre-litigation requirements introduced by the previous government are burdensome. To oblige parties in a dispute to comply with these onerous requirements without the likelihood of reimbursement if the dispute is resolved, would only serve to further entangle our legal system – the very thing Bruce Guthrie argues against – and effectively impede access to justice.

The interests of the public are best served by being able to choose which resolution path suits them. In some cases this means starting legal proceedings in a timely fashion and not allowing an abuse of the system by those with deep pockets.

Lawyers in Australia have embraced collaborative law, whereby the lawyers sign a contract with their clients and devote all efforts towards resolution. Representation in court by that lawyer is disallowed.

Some cases cannot be resolved early and without litigation, however, and it is in nobody’s interest for legal proceedings to be delayed by heavy-handed pre-litigation requirements. It is unlikely that pre-litigation requirements would have settled the case of Jim Hodgson vs Amcor Limited given its complexity.

The simplistic suggestion by Bruce Guthrie that Attorney-General Robert Clark is repealing legislation to line the wallets of lawyers with “fat fees” is to misunderstand the need for Victorians to have access to justice. It also lacks an understanding of the administration of justice and the ethics by which every lawyer is bound.

The article also received responses from the Victorian Bar Council and the Coalition for Justice. Leave a comment below to let us know your specific thoughts on this issue. 

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Hal Curwen-Walker
Thank you madam President. Well said !
10/03/2011 2:23:00 PM

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