CIVIL PROCEDURE AMENDMENT BILL 2012

 It is with pleasure that I rise to speak on the Civil Procedure Amendment Bill 2012. As has been made clear by the opposition, Labor will be opposing this bill.

We will be opposing it on the very strong grounds that the provisions in this bill will increase costs and burden lawyers and clients, force judges to get involved in unnecessary levels of case management detail, threaten the sanctity of lawyer-client privilege and have serious impacts on the freedom of lawyers to run their cases on the instructions of their clients in order to ensure that the best possible case for the client is presented to the court, the evidence is able to be considered and weighed by an independent judge and a decision is reached.

As has been pointed out by my colleagues on this side of the house, the previous government introduced a comprehensive suite of provisions based on the report of the Victorian Law Reform Commission’s civil justice review. The heart of those changes was diverting parties away from court processes and straight litigation and into mediation.

The changes were designed to ensure that the parties exchanged as much information as possible in an appropriate manner so meaningful discussions could take place outside of litigation. These discussions are important for the people involved to understand the various merits of the opposing cases, the opposing party’s position on issues and the evidence on which they may or may not be relying. This allows clients to have full and frank discussions with legal counsel and reach a decision as to whether a possible settlement could be forthcoming.

The changes were designed to reduce costs and delays and to divert parties away from the very technical processes of the court. The various events that happen in court processes — the adjournments, the procedural matters and the delays inherent in that, which are often compounded when one party is vastly more resourced than the other — are issues that litigants face on a daily basis.

The provisions of the principal act were designed to address those issues and promote the efficient and timely resolution of litigious matters. Unfortunately this government has chosen to sweep away those changes. It will repeal those provisions, striking at the heart and capacity of those involved in litigation.

For individuals who have never butted up against court processes, the litigation process can be particularly alien, frightening and very expensive. This government is to be condemned for sweeping away provisions that were designed to ameliorate some of those issues, particularly for the small girl and guy. Instead we have been served up a series of provisions that will in fact contribute to costs and burdens, contribute to procedures being handled by lawyers and the courts, and, ultimately, create greater burdens for those in the litigation process who are least able to afford it — that is, individuals and smaller clients. That is why we oppose these provisions.

Of great significance is the fact that the Law Institute of Victoria has opposed these provisions and said that the provisions at their heart will impact on the administration of justice in this state. I will go to some of the matters that the law institute has raised because I believe they are worth specifically referring to as part of this debate.

As we have heard, the bill deals with a range of matters, one of which is costs. It allows the court to require the lawyers involved in particular matters to disclose their actual costs. Those of us who have been involved in legal processes in this state know there are already significant measures around cost disclosure and client agreements for lawyers, as there should be. Clients should be aware and sign up in full knowledge of the weighed merits of their case and an estimate of how long their case will take and the costs involved. This is exactly how it should be.

There are also remedies for clients who feel aggrieved by the cost process and capacity for those costs to be independently assessed by the courts in the taxation process.

By adding another layer, which is the requirement of disclosure of actual costs during a legal proceeding, the bill may assist well-resourced clients by giving them advantage over those who are more vulnerable or who have less deep pockets. The provisions of the bill may also result in further costs because if an external provider is engaged to deliver an assessment of actual costs, those costs will again be borne by those litigants who are least able to afford them. At this point it is worthwhile to go to the memorandum from the Law Institute of Victoria, which says:

If a lawyer were to be ordered to provide a memorandum setting out the ‘actual’ costs as identified in proposed paragraph 65B(1)(a) that would, in many cases, probably require the lawyer to forward their file to an external costs consultant who would then need to prepare an itemised bill. The cost of carrying out that task would, in many cases, be significant and may involve the lawyer being without their file for a lengthy period of time. This could have a serious impact on the lawyer’s ability to carry out necessary work on the file including, perhaps, impeding preparation for trial.

Similar concerns in terms of the administration of justice can be raised about the provisions relating to the evidence of expert witnesses. Allowing courts to determine the evidence of experts in the manner suggested by the bill could impact on the capacity of a client to prosecute their case. Experts often have different views.

Well-respected experts often have very different thoughts on and assessments of the causes of injuries and the impact of those injuries on the long-term quality of life of an individual in the case of personal injury, to name just one example. Again, the task of weighing up that evidence should be one for the judge, as has been pointed out.

Particularly, say, in a personal injury matter, evidence from experts is often obtained in the lead-up to the commencement of a claim to ensure that the claim should be commenced. It is important for the lawyers representing clients to have those assessments done in order to make professional judgements themselves as to whether claims should be commenced and to provide that advice to their clients. If they are unsure of whether the evidence would be able to be presented to the court, that creates a level of uncertainty in the litigation process and it disadvantages the client.

Again I go to the Law Institute of Victoria memorandum on this, which says on the issue of a single joint expert that:

… it would not be appropriate for a single joint expert to provide evidence on issues of liability, particularly in complex professional negligence claims. For example, in medical negligence claims, complex issues of medicine are involved, with medical experts required to deal with the separate issues of negligence and causation.
Such opinions would ordinarily have been obtained by the parties prior to commencing the proceedings as they would usually have been necessary to form a basis for the claim.

Labor opposes this bill.

We are deeply concerned that the provisions we introduced to divert cases away from the court system and into mediation have been repealed, and that we have before us provisions which will increase costs and delay, and impede the capacity, particularly of vulnerable litigants, to pursue their matters.

Hansard, 2013