Civil Procedure Amendment Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
General
The Civil Procedure Amendment Bill 2012 amends the Civil Procedure Act
2010 to introduce specific powers and discretions for the courts in relation to
costs and expert evidence, to amend and create greater flexibility in the
overarching obligations and proper basis certification requirements and to
make other technical amendments.
The Bill aims to reduce costs and delays for persons involved in civil
litigation in Victoria, and improve the effectiveness of the civil justice
system. The Bill builds on the foundation established by the Civil
Procedure Act 2010 in seeking to give judges and magistrates a clear
legislative mandate to proactively manage cases in a manner that will
promote the just, efficient, timely and cost-effective resolution of the real
issues in dispute in a civil proceeding.
Clause Notes
PART 1—PRELIMINARY
Clause 1
sets out the main purposes of the Bill, which are to amend the
Civil Procedure Act 2010 to provide further powers for the
courts in relation to costs and expert evidence, to amend the
overarching obligations and proper basis certification
requirements, to make other technical amendments and to
consequentially amend the Accident Compensation Act 1985 in
relation to legal costs orders under that Act.
Clause 2
provides that the Bill commences on a day or days to be
proclaimed. The Bill, or provisions of the Bill, will commence
on 1 May 2013 if not proclaimed before that date.
571130
1
BILL LA INTRODUCTION 19/6/2012
Clause 3
provides that in the Bill the Civil Procedure Act 2010 is called
the Principal Act.
PART 2—AMENDMENTS RELATING TO COSTS
This Part sets out the amendments to the Principal Act in relation to costs.
The Part provides for additional court powers in relation to two aspects of
costs: disclosure of litigation costs and other costs orders.
Disclosure of litigation costs by a lawyer to his or her client is critical for
informed decision-making. The Bill gives the courts a discretionary power to
order that a lawyer make costs disclosure to the lawyer's own client.
The order may be made at any stage of the proceeding. This will allow the
courts, in appropriate cases, to increase the parties' access to information in
relation to actual and estimated costs and disbursements incurred prior to
trial, thereby encouraging more informed decision-making and the settlement
of appropriate cases.
The Bill also clarifies and strengthens the courts' discretionary power to make
other costs orders aside from the usual order that the losing party pay the
winning party's costs. The Bill provides that the court may make any costs
order that it considers appropriate to further the overarching purpose.
Specific powers include ordering costs as a lump sum figure instead of taxed
costs, ordering a party to pay a proportion of costs or fixing or capping
recoverable costs in advance. Such orders avoid or narrow the scope of a
taxation of costs. The objective is to increase the use of other costs orders in
appropriate cases, thereby reducing the complexity, time and cost associated
with taxation. Orders may be made in relation to any aspect of a proceeding,
including, but not limited to, any interlocutory proceeding.
Clause 4
amends section 1(2) of the Principal Act, which sets out a
number of purposes of the Act. The clause inserts a new
paragraph (b), which provides that an additional purpose is
expanding the power of the courts in relation to costs in civil
proceedings.
Clause 5
repeals section 50 of the Principal Act. Section 50 is re-enacted
as new section 65A in clause 6 of the Bill, in order that it is
located in the new Part 4.5 of Chapter 4 of the Principal Act for
court powers as to costs.
Clause 6
inserts a new Part 4.5 into Chapter 4 of the Principal Act to
introduce specific powers and discretions for the courts in
relation to costs.
2
New section 65A re-enacts section 50 of the Principal Act, which
is repealed by clause 5 of the Bill. This amendment is made to
ensure that all powers and discretions in relation to costs are set
out in the same Part of the Principal Act. New section 65A
provides that a court may at any stage order a party's legal
practitioner to prepare a memorandum setting out the estimated
length and costs and disbursements associated with the trial and
the estimated costs a party would have to pay if that party is
unsuccessful at trial, and give that memorandum to the court or
any party.
New section 65B provides that a court may at any stage order a
party's legal practitioner to prepare and give to that party a
memorandum setting out the actual costs and disbursements
incurred in relation to the proceeding or any part of the
proceeding, the estimated costs a party would have to pay to any
other party if that party is unsuccessful at trial, and estimates as
to the length and costs of the proceeding or any part of the
proceeding.
This section differs from new section 65A in that the estimates
can relate to any part of the proceeding rather than just the trial,
the court can order disclosure of actual costs and disbursements
incurred, and the court can only order disclosure by the legal
practitioner to the practitioner's own client and not to the court or
any other party.
New section 65C provides that a court may at any time make any
order as to costs that it considers appropriate to further the
overarching purpose. Subsection (2) sets out some of the
different costs orders that a court may make, including lump sum
costs orders and orders fixing or capping recoverable costs in
advance. An order may be made in relation to any aspect of a
proceeding, including, but not limited to, any interlocutory
proceeding.
New section 65D provides that the court may revoke or vary any
direction or order made by it under this Part.
New section 65E addresses the relationship of this Part with other
powers of the court, and provides that nothing in this Part limits
any other power a court may have, regardless of the source of
that power.
3
PART 3—AMENDMENTS RELATING TO EXPERT
WITNESSES
This Part of the Bill sets out the amendments to the Principal Act in relation
to expert evidence and expert witnesses.
Expert evidence plays a critical role in civil litigation and is often essential to
the just determination of an issue in dispute between the parties.
However, expert evidence can also be a significant source of expense,
complexity and delay in civil litigation. For example, the disproportionate
use of expert witnesses has the potential to increase costs and delays for
parties and reduce the effectiveness of the civil justice system as a whole.
The inherent complexity and volume of expert evidence can also limit its
usefulness to decision-makers.
The main objective of the expert evidence provisions is to reduce the costs
and delays associated with expert evidence by providing clear legislative
guidance and encouragement for the courts to actively manage and control
expert evidence. The provisions also aim to improve the quality and integrity
of expert evidence and enhance its usefulness to judges and magistrates.
Some of the expert evidence provisions consolidate existing powers of the
courts, for example in the rules of court and practice directions. Although the
existing powers of the court may be sufficient for the court to give directions
and impose reasonable limits on any party in respect of expert evidence, clear
statutory provisions will have greater impact in encouraging the courts to
actively manage and control expert evidence. This will also resolve any
argument about the limits of existing rule-making powers and will overcome
any constraints on the exercise of powers that exist at common law.
Clause 7
amends section 1(2) of the Principal Act, which sets out a
number of purposes of the Act. The clause inserts new
paragraph (g), which provides that an additional purpose is the
management and control of expert evidence in civil proceedings.
Clause 8
inserts new definitions into section 3 of the Principal Act in
relation to expert evidence. The definitions apply to directions
given or orders made pursuant to the relevant provisions of the
Bill and pursuant to the rules of court.
Clause 9
amends section 49(3)(d)(iii) of the Principal Act by omitting the
reference to expert witnesses in that section. Section 49(3)(d)(iii)
allows the court to give any direction or make any order it
considers appropriate with respect to witnesses, including
limiting the number of expert witnesses that a party may call.
4
A provision of this nature is re-enacted in clause 10 of the Bill,
which inserts a new Part 4.6 into Chapter 4 of the Principal Act
for expert witnesses and expert evidence. This amendment is
made to ensure that all powers and discretions for the courts
relating to expert evidence and witnesses are set out in the same
Part of the Principal Act.
Clause 10 inserts a new Part 4.6 into Chapter 4 of the Principal Act to
introduce specific powers and discretions for the courts in
relation to expert evidence and expert witnesses.
New section 65F sets out the main objects of this Part, which are
to enhance the case management powers of a court in relation to
expert evidence, to restrict expert evidence to that which is
reasonably required to resolve a proceeding and to emphasise the
primary duty of an expert witness to the court.
New section 65G requires a party to seek directions from the
court if the party intends to adduce expert evidence at trial or if
the party becomes aware that the party may adduce expert
evidence at trial. Directions must be sought as soon as
practicable in all the circumstances.
This section emphasises the important role of the courts in
determining the most effective and proportionate use of expert
evidence from an early stage of a proceeding, rather than leaving
it solely to the parties to determine.
This section does not limit a party's right to obtain expert opinion
prior to commencement, for example for the purpose of
determining whether to commence a proceeding.
This section is subject to the rules of court and an order of the
court. This allows a court to make rules exempting specified
types of proceedings from the requirement.
Subsection (2) exempts parties involved in Magistrates' Court
proceedings from the requirement to seek directions unless the
rules of court specify that the requirement applies. This reflects
the less complex nature of proceedings in the Magistrates' Court
and ensures that costs are proportionate to the complexity,
importance and amount in dispute in the proceeding.
5
New section 65H provides that a court may at any time give any
direction that it considers appropriate in relation to expert
evidence. This makes it clear that the courts have the power to
give appropriate directions and impose reasonable limits in
actively managing and controlling expert evidence.
Subsection (2) sets out some of the different directions that a
court may give, including limiting expert evidence to specified
issues, limiting the number of expert witnesses who may be
called to give evidence on a specified issue, and providing for the
appointment of a single joint expert or court appointed expert.
New section 65I sets out a specific discretionary power for a
court to direct two or more expert witnesses in a proceeding to
hold a conference, to prepare a joint experts report, or to do both.
This enables the real issues in dispute between experts to be
identified and narrowed from an early stage of a proceeding.
Subsection (2) provides that the court may direct who can and
cannot attend an expert conference, including the parties, legal
practitioners and independent facilitators.
Subsection (3) sets out some of the matters that a court may
include in a direction for two or more expert witnesses to prepare
a joint experts report, including matters agreed and not agreed,
with reasons for the agreement or disagreement.
Subsection (4) states that a direction may be either general or in
relation to specified issues, and can be given at any time in a
proceeding.
New section 65J provides for the use of expert conferences and
joint experts reports in a civil proceeding. Subsection (1)
preserves the confidentiality of an expert conference by
prohibiting persons from referring to the content of the
conference at any relevant hearing, except insofar as it is referred
to in a joint experts report. The parties may agree or the court
may order that the content can be referred to.
Subsections (2) and (3) set out the use that can be made at trial of
a joint experts report.
Subsection (4) prohibits the adducing of evidence from another
expert witness on the issues which are dealt with in a joint
experts report. The court may give leave for a party to adduce
evidence from another expert witness.
6
New section 65K provides that a court may at any time give any
direction that it considers appropriate in relation to the giving of
expert evidence at a trial. Subsection (2) sets out some of the
directions that a court may give, including that two or more
expert witnesses give evidence concurrently. Subsection (3) sets
out a specific discretionary power for the court to question an
expert witness to identify the real issues in dispute between two
or more expert witnesses. These innovative approaches to the
management of expert evidence aim to improve the quality and
integrity of expert evidence and increase the usefulness of expert
evidence to the courts.
New section 65L sets out a specific discretionary power for a
court to order at any time in a proceeding that a single expert be
engaged jointly by two or more parties.
Subsection (3) requires a court to consider a number of factors in
determining whether to make an order for the engagement of a
single joint expert, including whether the engagement of two or
more experts would be disproportionate to the complexity or
importance of the issues in dispute and the amount in dispute in
the proceeding.
Subsections (4) and (5) provide for the manner of selection of a
single joint expert. A person cannot be selected without his or
her consent.
Subsection (6) prohibits a party who knows that a person is being
considered for engagement as a single joint expert from
communicating with the person prior to engagement in order to
obtain an opinion on the relevant issues.
Subsection (7) sets out the use that can be made of a report
prepared by a single joint expert in the proceeding.
New section 65M provides for a specific discretionary power for
a court to order at any time in a proceeding that an expert be
appointed to assist the court and inquire into and report on an
issue.
Subsection (3) requires a court to consider a number of factors in
determining whether to appoint a court expert.
Subsection (4) provides that a person cannot be selected to act as
a court appointed expert without his or her consent.
7
New section 65N provides for the manner in which instructions
are to be given to a single joint expert or court appointed expert.
New section 65O prohibits parties from adducing evidence of
another expert witness on an issue where a single joint expert has
been engaged or a court appointed expert has been appointed in
relation to that issue, unless leave of the court is given.
Subsection (2) requires the court to consider a number of factors
in determining whether or not to give leave to allow a party to
adduce further evidence.
New section 65P allows a party to a civil proceeding to apply to
the court for an order that an expert witness retained by any party
to that proceeding disclose to the court and all the parties all or
specified aspects of the arrangements under which the expert
witness has been retained. The power to apply for an order is
subject to any rules of court that may be made to prescribe
circumstances in which an application may be made.
Subsection (2) provides that the court may make any order for
disclosure it considers appropriate in the circumstances of the
proceeding.
Subsection (3) provides that, without limiting subsection (2), the
court may make an order that an expert witness disclose the
details of any arrangement under which the charging or payment
of fees or costs, or the amount of those fees or costs, is contingent
on the outcome of the proceeding.
Subsection (4) prohibits a party from adducing evidence of any
information disclosed under this section at the trial of the
proceeding without leave of the court.
A purpose of section 65P is to enable disclosure of any aspects
of the arrangements under which an expert witness has been
retained which could compromise the expert's fulfilment of the
duty to impartially assist the court or which could be perceived
as having that effect.
New section 65Q addresses the relationship of this Part with
other powers of the court, and provides that nothing in this Part
limits any other power a court may have, regardless of the source
of that power.
8
Clause 11 amends section 70(1) of the Principal Act, which provides that
the court may make rules of court for or with respect to specified
matters provided for in the Act. The clause inserts a new
paragraph (ee) to introduce a specific power for the courts to
make rules of court in relation to expert evidence, including
remuneration of expert witnesses.
PART 4—AMENDMENTS RELATING TO CERTIFICATION
REQUIREMENTS
This Part of the Bill sets out the amendments to the Principal Act in relation
to the overarching obligations and proper basis certification requirements.
The Bill amends the existing provisions by correcting operational
irregularities and aims to ensure the effective and efficient operation of the
certification requirements in practice. The Bill also provides greater
flexibility for litigants and legal practitioners and aims to reduce the
administrative burden on frequent users of the civil justice system.
Clause 12 substitutes a new definition for substantive document in
section 3 of the Principal Act. This definition in part determines
the circumstances in which a party is required to file an
overarching obligations certification or a proper basis
certification pursuant to sections 41 and 42 of the Act
respectively. The definition is intended to capture the first
document that a party would ordinarily file in a civil proceeding
as well as other significant documents filed at a later stage, for
example those that add a party to the proceeding or a claim or
cause of action. The definition excludes a number of court
processes for which certification would be inappropriate.
This amendment is made to ensure that the overarching
obligations and proper basis certification requirements are
required in all appropriate circumstances.
Clause 13 amends section 41 of the Principal Act by inserting new
subsections (4) and (5). Section 41 requires each party to a civil
proceeding to personally certify that the party has read and
understood the overarching obligations and paramount duty.
New subsection (4) allows a person other than the named party to
make the overarching obligations certification where that person
has meaningful control over the conduct of the proceeding by
virtue of a statute or a contract. Either the named party or the
person in control may make the certification. For example, an
insurer may make the certification instead of the named party.
9
The clause provides flexibility in circumstances where a party,
for example, cannot be found or does not consider it appropriate
to sign the certification as the person is the party in name only.
New subsection (5) relieves parties who are legally represented
from the requirement to file an overarching obligations
certification in circumstances where the party has been involved
in more than one civil proceeding and the party's legal
practitioner certifies that the party has previously made the
certification within two years or another period stipulated by the
rules of court.
Clause 14 subclause (1) amends section 42(1) of the Principal Act by
substituting new subsections (1), (1A), (1B) and (1C).
The purpose of the amendment is to clarify the circumstances in
which legal practitioners and unrepresented parties must make
the proper basis certification.
New subsection (1) sets out the circumstances in which a legal
practitioner is required to make the proper basis certification.
The new section 42(1) requires certification on filing the party's
first substantive document in the proceeding and on filing any
subsequent substantive document which adds or substitutes a
party, makes, adds or substitutes a claim or cause of action,
makes, adds or substitutes a substantive defence or substantive
matter by way of response or reply, makes, adds or substitutes a
material allegation denial or non-admission of fact or law, or
makes any significant amendment to a first substantive document
or subsequent substantive document.
New subsection (1A) sets out the nature of the proper basis
certification to be given in proceedings which involve allegations
of fact. It is anticipated that this certification will be appropriate
for the majority of civil proceedings involving pleadings.
New subsection (1B) sets out the nature of the proper basis
certification to be given in proceedings which are commenced by
way of originating motion seeking a particular legal relief or
remedy. This amendment is made to provide flexibility for legal
practitioners and ensure that practitioners can properly state why
there is a proper basis for the proceeding.
New subsection (1C) relieves legal practitioners from the
requirement to make a proper basis certification in circumstances
where the rules of court provide that the relevant document or
10
process is administrative in nature, that is, there is no contest of
fact or law, and therefore exempt.
Subclause (2) amends section 42(3) of the Principal Act by
inserting a new paragraph (c). Section 42(3) sets out how a legal
practitioner or unrepresented party should determine whether
allegations, denials or non-admissions have a proper basis.
New paragraph (c) sets out how a legal practitioner or
unrepresented party should determine whether a claim or
response to that claim, or a question posed or response to that
question has a proper basis. This provision is to assist legal
practitioners who are certifying the claims and responses made
in proceedings commenced by originating motions.
Clause 15 amends the example at the foot of section 44(1) of the Principal
Act by substituting a reference to "applications for freezing
orders or for search orders" for the reference to "freezing orders,
search orders." Section 44(1) allows a party, or a legal
practitioner acting for a party, to file documents without
complying with the certification requirements where the
document is required to be filed as a matter of urgency.
The example currently refers to freezing orders and search
orders, which are orders that can be made by the courts on
application of a party. The amendment updates the example to
refer to applications made by a party rather than orders made by
the court.
Clause 16 amends section 45 of the Principal Act by inserting references to
other substantive documents filed in the proceeding. Section 45
currently provides that a court may not prevent the
commencement of a civil proceeding merely because the party
has failed to provide a required certification. This amendment is
made to clarify that parties who are filing other substantive
documents in a proceeding, as opposed to commencing a
proceeding, also have access to the courts despite noncompliance with the technical requirements of certification.
Clause 17 amends section 70(1) of the Principal Act, which provides that
the court may make rules of court for or with respect to specified
matters provided for in the Act. The clause inserts new
paragraphs (ea) to (ed) to introduce specific powers for the courts
to make rules of court in relation to various matters with respect
to the certification requirements.
11
PART 5—OTHER AMENDMENTS, TRANSITIONAL
PROVISIONS AND REPEAL OF AMENDING ACT
Clause 18 amends section 4(2)(b) of the Principal Act by substituting a
reference to the Personal Safety Intervention Orders Act 2010
for the current reference to the Stalking Intervention Orders
Act 2008. The Stalking Intervention Orders Act 2008 was
repealed on 5 September 2011 by section 186 of the Personal
Safety Intervention Orders Act 2010 and this amendment
ensures that the correct Act is referred to.
Clause 19 amends section 31(2) of the Principal Act, which enables the time
limit set out in section 30 of that Act to be extended in certain
circumstances. Section 30 sets out the procedural requirements
and time limits for bringing an application to the court for an
order where a person has contravened an overarching obligation.
This clause substitutes person for party in section 31(2) and adds
a new subsection (3) to enable all persons with a sufficient
interest in the civil proceeding to apply for an extension of time.
Clause 20 inserts a new Division heading into Part 6.2 of Chapter 6 of the
Principal Act as a consequence of the new Division 2 inserted by
clause 21.
Clause 21 inserts a new Division 2 into Part 6.2 of Chapter 6 of the
Principal Act for the transitional provisions relating to the Bill.
New section 80 provides that new Part 4.5 of Chapter 4, which
contains the costs reforms, applies to all civil proceedings on and
from the date on which Part 2 of the Bill commences, regardless
of whether the civil proceeding has commenced prior to that date.
New section 81 provides that new Part 4.6 of Chapter 4, which
contains the expert evidence reforms, applies to all civil
proceedings on and from the date on which Part 3 of the Bill
commences, regardless of whether the civil proceeding has
commenced prior to that date.
New section 82 provides that the amendments to the
overarching Part 4.1 of Chapter 4 of the Principal Act by Part 4
of the Bill apply to all civil proceedings which are commenced
on or from the date on which Part 4 of the Bill commences.
The amendments do not apply to civil proceedings which are
commenced prior to the commencement of Part 4 of the Bill.
12
New section 83 provides that a court may make any order it
considers appropriate in a particular proceeding in order to
resolve a difficulty which arises as a result of the operation of
this Part, such as an unforeseen transitional issue which needs to
be resolved for an individual case. Such an order may be made
on the application of a party to the proceeding or on the court's
own motion, and has effect despite any provision to the contrary
that is made by or under any other Act (excluding the Charter of
Human Rights and Responsibilities Act 2006).
New section 84 provides that the Governor in Council may
make regulations containing provisions of a transitional nature.
These include matters of an application or savings nature that
arise as a result of the enactment of this Bill. Regulations made
pursuant to this clause have effect despite anything to the
contrary in any Act (other than this Bill or the Charter of
Human Rights and Responsibilities Act 2006) or in any
subordinate instrument. Subsection (4) repeals this section on
1 May 2014, reflecting the transitional nature of this power.
Clause 22 repeals Part 6.3 of Chapter 6 of the Principal Act. Part 6.3
provides for consequential amendments to other Acts arising
from the enactment of the Principal Act. This Part is now
spent and can be repealed. The repeal of this Part does not
affect the continuing operation of the amendments made by it
(see section 15(1) of the Interpretation of Legislation Act
1984).
Clause 23 amends section 134AG(5) of the Accident Compensation Act
1985 by preserving the full force and effect of legal costs orders
made under that Act, notwithstanding anything to the contrary in
the Principal Act or in any regulation, rules, order or other
document made under the Principal Act.
Clause 24 repeals the Bill on 1 May 2014. The repeal of the Bill does not
affect the continuing operation of the amendments made by it
(see section 15(1) of the Interpretation of Legislation Act
1984).
13