CIVIL JUSTICE REVIEW Report 14

CIVIL JUSTICE REVIEW Report 14 Victorian Law Reform Commission GPO Box 4637 Melbourne Victoria 3001 Australia DX 144 Melbourne, Vic Level 10, 10–16 Queen Street Melbourne Victoria 3000 Australia Telephone +61 3 8619 8619 Facsimile +61 3 8619 8600 TTY 1300 666 557 1300 666 555 (within Victoria) [email protected] www.lawreform.vic.gov.au Contents 7 Preface 110 ‘New’ Pre-action Requirements 8 Terms of Reference 111 England and Wales 9 Executive Summary 116 Canada 118 The United States 15 Recommendations 118 Hong Kong 119 Other Jurisdictions 47 Chapter 1: Overview of the Civil Justice System 120 Australian Pre-action Procedures 50 Introduction: About this reference and report 133 Consequences of Noncompliance 50 Justice Statement 133 Impact of Pre-action Procedures 50 Terms of reference 136 Disclosure and Service of Documents when 52 Review processes commencing proceedings 54 Report overview 136 NSW professional negligence claims 55 Victorian Courts’ and Tribunals’ jurisdiction 137 NSW workers compensation proceedings 55 Supreme Court of Victoria’s jurisdiction 137 NSW dust disease proceedings 59 County Court civil jurisdiction 137 Submissions 60 Magistrates’ Court jurisdiction 137 Support for Pre-action Protocols 63 Victorian Civil and Administrative Tribunal jurisdiction 140 Opposition to Pre-action Protocols Jurisdiction of Victoria’s civil courts and tribunals 142 Other Issues Raised in Submissions 66 Volume of civil litigation in Victoria’s courts 142 Recommendations 67 Factors influencing the civil justice system 69 Legal and factual complexity of litigation 147 Improving the Standards of Conduct of Participants 70 Procedural rules in Civil Litigation 149 Introduction and summary 71 Resource allocation and distribution of civil and criminal business of courts 149 Overriding obligations imposed on participants 72 Proactive judicial case management or party control 152 Overriding purpose and duties of the court of litigation 152 Rationale for the recommendations 77 Economic factors, including cost of conducting 156 Existing obligations on participants in civil litigation litigation 156 Overriding objectives 80 Objectives and conduct of parties 162 Lawyers’ duty to the court 80 Adversarial ‘culture’, practices and procedures 165 Duties of the parties 81 Alternative dispute resolution 168 Model Litigant Guidelines 83 Human rights considerations 172 Duties of witnesses, including expert witnesses 85 Constitutional considerations 181 Duties of corporations 87 Attractiveness of courts in other jurisdictions 181 Duties of insurers and litigation funders 89 Public opinion, social expectations and confidence in the courts 182 Specific obligations 89 Civil justice goals and objectives 182 The obligation to act honestly 90 Desirable goals of the civil justice system 182 The requirement of merit 94 Fundamental requirements of the justice system 183 The obligation to only take steps to resolve or determine the dispute 98 Assessing performance of the civil justice system 183 The obligation to cooperate 101 Views of individuals and organisations consulted 184 The obligation not to mislead or deceive 104 Overview of the Civil Justice System (flowchart) 188 The obligation to use reasonable endeavours to resolve the dispute 108 Chapter 2: Facilitating the Early Resolution of 188 The obligation to narrow the issues in dispute Disputes without Litigation 188 The obligation to minimise costs 109 Introduction and Summary 189 The obligation to minimise delay 109 Legal Challenge to Pre-action Protocols 189 The obligation of disclosure 110 Traditional Pre-action Procedures 190 Application to ancillary negotiations and dispute resolution processes 110 Preservation and other orders 191 Confidential and ‘without prejudice’ ADR processes 110 Disclosure to identify a defendant or to determine merit 197 Responses to the commission’s proposals 2 Victorian Law Reform Commission - Civil Justice Review: Report 197 Support for the proposals 255 Suggestions and safeguards 198 Opposition to the proposals 256 Conclusions and recommendations 200 Specific aspects of the overriding obligations 257 The need for compulsory referral to ADR 203 Certification requirements 258 Support for compulsory referral to mediation 203 Overriding purpose and duties of the court 264 The need for compulsory referral to arbitration 204 Behavioural and cultural change 266 Submissions 204 Recommendations 266 Conclusions and recommendations 271 Binding mandatory arbitration as a term of contract 209 Chapter 4: Improving Alternative Dispute 272 Provision of adequate court resources Resolution 272 The need for a designated court officer referring 212 Introduction parties to ADR 212 What is ADR? 273 Position in Victoria 213 Position in Victoria 273 Other models 213 The outcome of ADR 275 A multi-door system? 214 Benefits and disadvantages of ADR 275 What type of ADR process? 215 Government commitment to ADR 275 Timing of the referral 216 ADR and the commission’s recommendations 276 The desirability of additional court resources 218 Discussion 278 Submissions 219 The need for additional ADR options 278 Conclusions and recommendations 220 Early non-binding neutral evaluation 278 Data and research, including mediator’s report 221 Case Appraisal 278 The lack of empirical research and accurate date 222 Mini-trial 279 Research to date 222 Special Masters 280 The effectiveness of ADR 223 Conciliation 280 The cost effectiveness of ADR 224 Conferencing 281 Data, including mediator’s reports 224 Online ADR 282 Submissions 225 Court-annexed arbitration 283 Conclusions and recommendations 229 Greater use of special referees 283 Education: facilitating an understanding of ADR processes 235 Hybrid dispute resolution processes 284 Recommendations 240 Submissions 240 Conclusions and recommendations 287 Chapter 5: Case Management 241 More effective use of industry dispute resolution schemes 290 Introduction 241 How schemes operate 291 General powers 242 Arguments for and against referring disputes to 291 Judicial power schemes 291 Rule-making power 243 Initial proposal 291 Possible constraints 244 Amended proposal 292 Expansion of Individual docket systems 245 Conclusions and recommendations 292 What is an Individual docket system? 245 Extension of collaborative law 293 Position in Victoria 246 Arguments for and against the extension of 294 Other models collaborative law 294 Arguments for and against a docket system 247 Conclusions and recommendations 295 Submissions 248 The desirability of court-conducted mediation 296 Conclusions and recommendations 248 Introduction 297 Active judicial case management 248 Position in Victoria 297 Active case management 250 Other models 303 Power to call witnesses 252 Arguments for and against court-conducted mediations 307 Imposition of limits on the conduct of pre-trial procedures and trial 3 Contents 308 Clearer powers to limit the conduct of pre-trial 357 Conclusions and recommendations procedures 358 Controlling interlocutory disputes 311 Clearer powers to limit trial procedures 358 The problem 316 Other recent reforms 358 Reducing interlocutory steps in proceedings 319 Enhancing compliance with procedural requirements 359 Reducing unnecessary interlocutory applications and directions 361 Submissions 319 The problem 362 Conclusions and recommendations 319 Directions 362 Power to make decisions without giving reasons 320 Sanctions for failure to comply with rules and court orders 362 The problem 320 Costs orders 362 Position in Victoria 322 Arguments for and against clearer powers to impose 363 The initial proposal sanctions for failure to comply with court directions 364 Discussion and orders 368 Recommendations 323 Submissions 369 Making decisions on the papers 323 Conclusions and recommendation 369 Rationale for the proposal 324 Greater use of telephone directions hearings and technology 369 Position in Victoria 324 The issue 369 Other models 324 Telephone directions hearings 370 Discussion 326 E-litigation 372 Submissions 327 Electronic filing of documents (‘e-filing’) 373 Conclusions and recommendation 327 Videolink/video conferencing 373 Deterring or curtailing unnecessary litigation 328 The Internet and email 373 Prothonotary refusing to seal a document 328 Integrated Courts Management System (ICMS) 374 Submissions 330 Other reforms 374 Conclusions 332 Submissions 375 Other comments in submissions 333 Rationale for the recommendations 376 Recommendations 335 Conclusions and recommendations 336 Case conferences and listing conferences as an 383 Chapter 6: Getting to the truth Earlier and Easier alternative to directions hearings 386 Introduction 336 The problem 386 Disclosure prior to and at commencement of litigation 336 Position in Victoria 386 Pre-trial oral examinations 337 Other models 386 Introduction 338 Rationale for the recommendation 387 Pre-trial examinations in Victoria 341 Conclusions and recommendations 389 Other forms of examination in Australia 341 Earlier and more determinate trial dates 394 Depositions in the United States 341 The problem 400 Examinations in Canada 324 Position in Victoria 409 Depositions in the United Kingdom 342 Other models 410 Submissions 344 Rationale for the recommendation 414 Conclusions 344 Recommendations and conclusions 416 Recommendations 345 Earlier determination of disputes 419 Overcoming confidentiality constraints 345 The problem 419 Confidentiality constraints and the administration of 346 Summary disposal justice 346 Position in Victoria 422 Submissions 348 Other models 424 Recommendations 352

Load more