Civil Procedure Amendment Act 2012 assented to and to come into effect on 1 May 2013

January 7, 2013 |

The Civil Procedure Amendment Act 2012 will come into effect on 1 May 2013.

The key amendments relate to orders the court may make on costs, the conduct of experts and expert reports and amendments to the certification process. Those provisions as well as the explanatory memoranda are extracted below. The transitional provisions are not extracted below.

The material amendments are:

Part 4.5 of Chapter 4 (Costs)

65A Order to legal practitioner as to length and costs of trial

(1) A court may make an order directing a legal practitioner acting for a party—

(a) to prepare a memorandum setting out—

(i) the estimated length of the trial; and

(ii) the estimated costs and disbursements in relation to the trial; and

(iii) in the case of a memorandum to be given to a party, the estimated costs that that party would have to pay to any other party if the party is unsuccessful at trial; and

(b) to give the memorandum, as specified in the order to—

(i) the court; or

(ii) a party; or

(iii) both the court and any party.

(2) An order under subsection (1) may be made at any time in a civil proceeding.

65B Order to legal practitioner as to length and costs of the proceeding

(1) A court may make an order directing a legal practitioner acting for a party to prepare and give to that party a memorandum setting out—

(a) the actual costs and disbursements incurred in relation to the proceeding or any part of the proceeding; and

(b) the estimated costs and disbursements in relation to the proceeding or any part of the proceeding; and

(d) the estimated length of the proceeding or any part of the proceeding.

(2) An order under subsection (1) may be made at any time in a proceeding.

65C Other costs orders

(1) In addition to any other power a court may have in relation to costs, a court may make any order as to costs it considers appropriate to further the overarching purpose.

(2) Without limiting subsection (1), the order may—

(a) make different awards of costs in relation to different parts of a proceeding or up to or from a specified stage of the proceeding;

(b) order that parties bear costs as specified proportions of costs;

(d) fix or cap recoverable costs in advance.

(3) An order under subsection (1) may be made—

(a) at any time in a proceeding;

(b) in relation to any aspect of a proceeding, including, but not limited to, any interlocutory proceeding.

65D Court may revoke or vary order or direction

A court may revoke or vary any order made or direction given by it under this Part.

65E Interaction with other powers of court

(1) Nothing in this Part limits any power a court may have—

(a) to award costs in a proceeding—

(i) in the case of the Supreme Court, under section 24 of the Supreme Court Act 1986 or any rules of court; or

(ii) in the case of the County Court, under section 78A of the County Court Act 1958 or any rules of court; or

(iii) in the case of the Magistrates’ Court, under section 131 of the Magistrates’ Court Act 1989 or any rules of court; or

(b) to make any other order or give any other direction in relation to orders for costs or for the disclosure of costs; or

(c) to take any action that the court is empowered to take in relation to a contravention of an order made or a direction given by the court.

(2) Nothing in this Part limits—

(a) in the case of the Supreme Court, the Court’s inherent jurisdiction, implied jurisdiction or statutory jurisdiction; or

(b) in the case of a court other than the Supreme Court, the court’s implied jurisdiction or statutory jurisdiction; or

(c) any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction.

The Explanatory Memorandum provides:

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.

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.

Part 3 (Expert witness).

It provides

Part 3—Amendments Relating to Expert Witnesses

7 Purposes—Principal Act

In section 1(2) of the Principal Act—

(a) in paragraph (f) for “obligations.” substitute “obligations;”;

(b) after paragraph (f) insert—

“(g) the management and control of expert evidence in civil proceedings.”.

8 Definitions

In section 3 of the Principal Act, insert the following definitions—

“conference of experts means a conference of expert witnesses conducted in accordance with a direction under section 65I or under rules of court;

court appointed expert means an expert witness appointed by a court in accordance with an order under section 65M or under rules of court;

joint experts report means a joint report by expert witnesses prepared in accordance with a direction under section 65I or under rules of court;

single joint expert means a person engaged jointly by 2 or more parties as an expert witness in a proceeding in accordance with an order under section 65L or under rules of court;”.

9 Court’s power to order and direct trial procedures and conduct of hearing

In section 49(3)(d)(iii) of the Principal Act omit “, including expert witnesses,”.

10 New Part 4.6 of Chapter 4 inserted

At the end of Chapter 4 of the Principal Act insert—

“Part 4.6—Expert Witnesses and expert Evidence

65F Objects of this Part

The main object of this Part is to further the overarching purpose by—

(a) enhancing the case management powers of a court in relation to expert evidence in civil proceedings;

(b) restricting expert evidence to that evidence which is reasonably required to resolve a civil proceeding;

65G Party to seek direction of court to adduce expert evidence

(1) Unless rules of court otherwise provide or the court otherwise orders, a party must seek direction from the court as soon as practicable if the party—

(a) intends to adduce expert evidence at trial; or

(b) becomes aware that the party may adduce expert evidence at trial.

(2) Subsection (1) does not apply to the Magistrates’ Court unless Magistrates’ Court rules of court specify that the requirement to seek directions set out in subsection (1) applies to civil proceedings, or specified classes of civil proceeding, in that Court.

65H Court may give directions in relation to expert evidence

(1) A court may give any directions it considers appropriate in relation to expert evidence in a proceeding.

(2) A direction under subsection (1) may include, but is not limited to—

(a) the preparation of an expert’s report;

(b) the time for service of an expert’s report;

(d) providing that expert evidence may not be adduced on specified issues;

(e) limiting the number of expert witnesses who may be called to give evidence on a specified issue;

(f) providing for the appointment of—

(i) single joint experts; or

(ii) court appointed experts;

(g) any other direction that may assist an expert witness in the exercise of his or her functions as an expert witness in the proceeding.

(3) A direction under subsection (1) may be given at any time in a proceeding.

65I Court may give directions to expert witnesses—conferences and joint experts reports

(1) A court may direct expert witnesses in a proceeding—

(a) to hold a conference of experts; or

(b) to prepare a joint experts report; or

(2) The court may direct that a conference of experts be held with or without the attendance of all or any of the following—

(a) the parties to the proceeding; or

(b) the legal practitioners of the parties; or

(3) A direction to prepare a joint experts report may include but is not limited to the following—

(a) that the joint experts report specifies—

(i) the matters agreed and not agreed by the experts; and

(ii) the reasons for any agreement or disagreement;

(b) the issues to be dealt with in the joint experts report by the expert witnesses;

(4) A direction may be—

(a) general or in relation to specified issues;

(b) given at any time in a proceeding, including before or after the expert witnesses have prepared or given reports.

65J Use of conference of experts and joint experts reports in proceeding

(1) Unless the parties to the proceeding agree, or the court otherwise orders, the content of a conference of experts, except as referred to in a joint experts report, must not be referred to at any hearing of the proceeding to which it relates.

(2) A joint experts report may be tendered at the trial as evidence of any matters agreed.

(3) In relation to any matters not agreed, a joint experts report may be used or tendered at the trial only in accordance with—

(a) the rules of evidence; and

(b) the rules of court and practices of the court in which the trial is heard.

(4) Except by leave of the court, a party affected may not adduce evidence from any other expert witness on the issues dealt with in the joint experts report.

65K Court may give direction about giving of evidence, including concurrent evidence, by expert witnesses

(1) A court may give any direction it considers appropriate in relation to the giving of evidence by any expert witness at trial.

(2) Without limiting subsection (1), the court may direct that any expert witness—

(a) give evidence at any stage of the trial, including after all factual evidence has been adduced on behalf of all parties;

(b) give evidence concurrently with one or more expert witnesses;

(d) give his or her opinion of any opinion given by other expert witnesses;

(e) be examined, cross-examined or re?examined in a particular manner or sequence, including by putting to each expert witness, in turn, each issue relevant to one matter or issue at a time;

(f) be permitted to ask questions of any other expert witness who is concurrently giving evidence.

(3) A court may question any expert witness to identify the real issues in dispute between 2 or more expert witnesses, including questioning more than one expert witness at the same time.

65L Single joint experts

(1) A court may order that an expert be engaged jointly by 2 or more parties to a civil proceeding.

(2) A court may make an order for the engagement of a single joint expert at any stage of the proceeding.

(3) In making an order to engage a single joint expert, the court must consider—

(a) whether the engagement of 2 or more expert witnesses would be disproportionate to—

(i) the complexity or importance of the issues in dispute; and

(ii) the amount in dispute in the proceeding;

(b) whether the issue falls within a substantially established area of knowledge;

(d) the likelihood of the engagement expediting or delaying the trial;

(e) any other relevant consideration.

(4) A single joint expert is to be selected—

(a) by agreement between the parties; or

(b) if the parties fail to agree, by direction of the court.

(5) A person must not be engaged as a single joint expert unless he or she consents to the engagement.

(6) Any party who knows that a person is under consideration for engagement as a single joint expert—

(a) must not, prior to the engagement, communicate with the person to obtain an opinion on the issues concerned; and

(b) must notify the other parties to the proceeding of the substance of any previous communications on the issues concerned.

(7) Unless the court orders otherwise, a single joint expert’s report may be tendered in evidence by any of the parties to the proceeding.

65M Court appointed experts

(1) A court may make an order appointing an expert—

(a) to assist the court; and

(b) to inquire into and report on any issue in a proceeding.

(2) The court may make an order appointing a court appointed expert at any stage of the proceeding.

(3) In making an order to appoint a court appointed expert, the court must consider—

(a) whether the appointment of a court appointed expert would be disproportionate to—

(i) the complexity or importance of the issues in dispute; and

(ii) the amount in dispute in the proceeding;

(b) whether the issue falls within a substantially established area of knowledge;

(d) the likelihood of the appointment expediting or delaying the trial;

(e) any other relevant consideration.

(4) A person must not be appointed as a court appointed expert unless he or she consents to the appointment.

65N Instructions to single joint expert or court appointed expert

(1) If a single joint expert is engaged or a court appointed expert is appointed in a proceeding, the parties to the proceeding must endeavour to agree on—

(a) written instructions to be provided to the single joint expert or the court appointed expert concerning the issues arising for the expert’s opinion; and

(b) the facts and assumptions of fact on which the expert’s report is to be based.

(2) If the parties cannot agree on any of the matters referred to in subsection (1), the parties must seek directions from the court.

65O Prohibition on other expert evidence without leave

(1) Except by leave of the court, a party to a proceeding may not adduce evidence of any other expert witness on any issue arising in proceedings if, in relation to that issue—

(a) a single joint expert has been engaged; or

(b) a court appointed expert has been appointed.

(2) Without limiting any powers of the court, in determining whether to grant leave, the court must consider—

(a) whether one party does not agree with the evidence, or an aspect of the evidence, in the report of a single joint expert or the report of a court appointed expert, as the case requires;

(b) whether allowing additional evidence to be adduced would be disproportionate to—

(i) the complexity or importance of the issues in dispute; and

(ii) the amount in dispute in the proceeding;

(c) whether there is expert opinion which is different to the opinion of the single joint expert or the court appointed expert, as the case requires, which is, or may be, material to deciding the issue;

(d) whether any other expert witness knows of matters which are not known by the single joint expert or the court appointed expert that are, or may be, material to deciding the issue;

(e) any other relevant consideration.

65P Disclosure of retainer arrangements

(1) Unless rules of court otherwise provide, a party to a civil proceeding may apply to the court for an order that an expert witness retained by any party to that proceeding disclose all or specified aspects of the arrangements under which the expert witness has been retained to—

(a) the court; and

(b) all the parties to the proceeding.

(2) On an application under subsection (1), the court may make any order for disclosure it considers appropriate in the circumstances of the proceeding.

(3) Without limiting subsection (2), the court may make an order that an expert witness disclose whether the charging or payment of the fees or costs of the expert witness, or the amount of those fees or costs, is contingent in any respect on the outcome of the proceeding, and if so, the details of that arrangement.

(4) A party must not adduce evidence of a disclosure made pursuant to an order made under this section at the trial without leave of the court.

65Q Interaction with other powers of court

(1) Nothing in this Part limits any other power a court may have—

(a) in relation to case management, evidence or witnesses, including expert witnesses; or

(b) to take any action that the court is empowered to take in relation to a contravention of a direction given or an order made by the court.

(2) Nothing in this Part limits—

(a) in the case of the Supreme Court, the Court’s inherent jurisdiction, implied jurisdiction or statutory jurisdiction; or

(b) in the case of a court other than the Supreme Court, the court’s implied jurisdiction or statutory jurisdiction; or

(c) any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction.

11 Rules of court

Before section 70(1)(f) of the Principal Act insert—

“(ee) for or with respect to expert evidence, including, but not limited to, expert witnesses, remuneration of expert witnesses and disclosure of retainer arrangements;”.

The Explanatory Memorandum for Part 3 provides:

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. 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.

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.

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.

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.

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

Part 4—Amendments Relating to Certification Requirements

It provides:

12 Definitions

In section 3 of the Principal Act, for the definition of substantive document substitute—

“substantive document means—

(a) an originating motion;

(b) a writ that includes—

(i) a statement of claim; or

(ii) a statement sufficient to give, with reasonable particularity, notice of the nature of the claim, its cause and the relief or remedy sought;

(d) a defence or a notice of defence;

(e) a reply;

(f) a counterclaim;

(g) an answer to a counterclaim or a response to an answer to a counterclaim;

(h) a claim by third party notice or a response to a claim by third party notice;

(i) a claim by fourth or subsequent party notice or a response to a claim by fourth or subsequent party notice;

(j) an application brought in accordance with section 93(4)(d) of the Transport Accident Act 1986 or a response to an application brought in accordance with that section;

(k) an affidavit which commences a civil proceeding or an affidavit which is the first response of a party in a civil proceeding;

(l) a summons which commences a civil proceeding or a summons which is the first response of a party in a civil proceeding;

(m) an application which commences a civil proceeding or an application which is the first response of a party in a civil proceeding;

(n) a notice of referral under section 80 of the Land Acquisition and Compensation Act 1986 or a response to a notice of referral under that Act;

(o) a claim for contribution against another party under Part IV of the Wrongs Act 1958 or a response to a claim for contribution against another party under that Part;

(p) an application for leave to appear and defend under the Instruments Act 1958;

(q) a claim for preliminary discovery;

but does not include—

(r) a summons for taxation of costs;

(s) an application to a court for punishment of a person for contempt of court;

(t) an application for a rehearing under section 110 of the Magistrates’ Court Act 1989;

(u) an application under section 60(2) of the Accident Compensation Act 1985;

(v) an application under section 24 of the Second-Hand Dealers and Pawnbrokers Act 1989;

(w) an application under section 83 of the Occupational Health and Safety Act 2004;

(x) any process which commences an appeal or any process which is the first response of a party to an appeal;

(y) any process which commences proceedings under the Corporations Act or the ASIC Act or any process which is the first response of a party to proceedings under either of those Acts;

(z) any originating motion filed under Chapter III of the Rules of the Supreme Court.”.

13 Overarching obligations certification by parties on commencement of civil proceeding

After section 41(3) of the Principal Act insert—

“(4) Despite subsection (1), if a party has no meaningful control over the conduct of a civil proceeding by virtue of a statute or a contract of insurance, the person in control by virtue of the statute or contract of insurance may make the overarching obligations certification.

Example

An insurer may make the certification instead of a party.

(5) Despite subsection (1), a party who is represented by a legal practitioner is not required to make the overarching obligations certification if—

(a) the party is currently involved, or has been involved, in more than one civil proceeding and has personally made the overarching obligations certification in other civil proceedings in the same jurisdiction within—

(i) a period specified by rules of court; or

(ii) if no period is specified by rules of court, 2 years prior to the current proceeding; and

(b) the legal practitioner of that party certifies, in accordance with the rules of court, as to the matters specified in paragraph (a).”.

14 Proper basis certification

(1) For section 42(1) of the Principal Act substitute—

“(1)A legal practitioner acting for or on behalf of a party to the proceeding must file a proper basis certification which complies with this section in the following circumstances—

(a) on the filing of a party’s first substantive document in a civil proceeding;

(b) on the filing of any subsequent substantive document in a civil proceeding which—

(i) adds or substitutes a party; or

(ii) makes, adds or substitutes a claim or cause of action; or

(iii) makes, adds or substitutes a substantive defence or substantive matter by way of response or reply; or

(iv) makes, adds or substitutes a material allegation denial or non-admission of fact or law; or

(v) makes any significant amendment to a first substantive document or a subsequent substantive document;

(d) as directed by the court in any civil proceeding.

(1A) In the case of a civil proceeding which involves allegations of fact, a legal practitioner making a proper basis certification must certify that on the factual and legal material available—

(a) each allegation of fact in the document has a proper basis;

(b) each denial in the document has a proper basis;

(1B) In the case of a civil proceeding commenced by originating motion seeking a particular legal relief or remedy, a legal practitioner making a proper basis certification must certify, as the case requires, that on the factual and legal material available—

(a) the claim in the document, or a response to a claim in the document, has a proper basis; or

(b) the question posed by the party to the court in the document, or a response to a question posed, has a proper basis.

(1C) Despite subsections (1) to (1B), a legal practitioner is not required to make a proper basis certification if rules of court provide that a process or document is exempt from the proper basis certification requirement because it is administrative in nature.

Example

Registration of judgments.”.

(2) In section 42(3) of the Principal Act—

(a) in paragraph (b) for “untrue.” substitute “untrue; or”;

(b) after paragraph (b) insert—

“(c) as to whether any claim, response to a claim, question posed or response to a question posed has a proper basis, on the factual and legal material available, must be based on a reasonable belief that the claim, response to a claim, question or response to a question has a proper basis.”.

15 Urgent filing of documents and certification

In the example at the foot of section 44(1) of the Principal Act for “freezing orders,” substitute “applications for freezing orders or for”.

16 Proceedings may be commenced despite failure to certify

(1) In the heading to section 45 of the Principal Act after “commenced” insert “or substantive documents filed“.

(2) In section 45 of the Principal Act after “in the court” insert “or the filing of any substantive document by a party to a civil proceeding”.

17 Rules of court

After section 70(1)(e) of the Principal Act insert—

“(ea) specifying time periods for exemptions from compliance with the overarching obligations certification requirements under Part 4.1 of Chapter 4;

(eb) for the purposes of section 41(5), providing for the form of certification by a legal practitioner;

(ec) exempting from compliance with the proper basis certification requirements under Part 4.1 of Chapter 4 any specified process or document which is administrative in nature;

(ed) providing for when proper basis certification is required for the purposes of section 42(1)(c);”.

The Explanatory Memorandum provides:

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. 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 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 non-compliance 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.

The Second Reading Speech by the Attorney General is extracted below:

The Civil Procedure Amendment Bill 2012 (the bill) will amend the Civil Procedure Act 2010 (the act) to improve the efficiency of the civil justice system, and reduce the administrative burden on litigants and legal practitioners.

The act commenced on 1 January 2011. It provides a broad framework for the conduct of civil proceedings in the Supreme, County and Magistrates courts. The overarching purpose of the act is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute in a proceeding. The act seeks to achieve this by providing a range of discretionary case management powers to strengthen the courts’ ability to appropriately manage and control civil litigation, and thereby reduce costs and delays.

Building on this objective, the bill introduces further case management powers for the courts in two key areas: costs and expert evidence.

The desirability of reform in these areas was identified by the Victorian Law Reform Commission (the commission) in its 2008 review of the civil justice system.

The civil procedure advisory group has considered the commission’s recommendations at length.

The advisory group is chaired by the chief justice of the Supreme Court and includes senior representatives of the Supreme, County and Magistrates courts, VCAT, the Victorian Bar, the Law Institute of Victoria, the Federation of Community Legal Centres, Victoria Legal Aid and the Australian Corporate Lawyers Association. I thank the chief justice for her continued leadership of the group, and the group members for their input and significant contribution to the development of these reforms.

The bill furthers the government’s commitment to reducing the administrative burden for litigants and legal practitioners. A key reform of the bill is to amend the overarching obligations and proper basis certification requirements in the act. Since the act commenced last year, the government sought feedback from the courts and profession about these requirements. Suggestions to improve their practical operation have been incorporated in the bill.

I turn now to the key aspects of the bill.

Costs reforms

The bill provides discretionary powers for the courts to make orders for the disclosure of costs associated with litigation by a lawyer to his or her client, and discretionary powers in relation to costs orders. The main objectives of these reforms are to increase parties’ access to information about litigation costs to encourage the settlement of suitable cases, and to promote flexibility in making costs orders that will reduce the cost and time associated with costs disputes.

Information about litigation costs can play a significant role in a party’s decision to settle appropriate cases.

The bill gives the courts a discretionary power to order that a legal practitioner disclose to their own client actual or estimated pretrial costs or the estimated costs they would have to pay if unsuccessful at trial. The power may be used by the courts in appropriate cases to ensure that parties are fully informed about litigation costs, for example, prior to significant events such as mediations.

While courts currently have a broad discretion to make costs awards in proceedings under the rules of court, the usual order (that costs follow the event) can require the parties to undergo a detailed and expensive assessment of costs in order to determine the amount payable. The bill makes clear that the court may make various types of costs orders aside from the usual order. This might include ordering that parties pay costs in specified proportions or fixing or capping the amount of recoverable costs in advance. Such orders can avoid the need to proceed to a full assessment of costs.

Other jurisdictions, including New South Wales and the Federal Court, have used a legislative power similar to the provision in this bill to avoid the need for lengthy assessments.

Expert evidence reforms

Expert evidence plays a critical role in civil litigation and is often essential to the just determination of an issue. However, expert evidence can also be a source of expense, complexity and delay in civil proceedings. There are significant concerns about adversarial bias and wastage of court resources caused by the misuse and overuse of experts.

The courts currently have a general power to manage certain aspects of expert evidence in civil proceedings.

The bill gives clearly defined powers to the courts in relation to expert witnesses and their evidence, which aim to improve the quality and integrity of expert evidence and enhance its usefulness to judges and magistrates.

To ensure that the parties and the courts are discussing the management of expert evidence issues from an early stage of a proceeding, parties in the higher courts will generally be required to seek directions from the court where they intend to adduce expert evidence at trial. It is recognised that such a requirement may not be appropriate for all types of litigation, and the bill therefore allows the courts to exempt specific types of litigation from this requirement. The requirement will not apply in the Magistrates Court unless its rules specify otherwise, reflecting the less complex nature of proceedings in that court.

The bill clarifies that the court can give any direction it considers appropriate in relation to expert evidence,including limiting expert evidence to specific issues or limiting the number of experts who can give evidence on an issue. A court may also direct that two or more experts confer with one another and prepare a joint report which sets out the key areas of agreement and disagreement between them. The court may also direct that two or more experts give evidence concurrently and be allowed to ask each other questions, which is a process that has been used to good effect in other Australian jurisdictions, including New South Wales and the Federal Court.

These are important powers that can produce significant time and cost savings by enabling the real issues in dispute between experts to be identified and narrowed from an early stage, thereby avoiding lengthy cross-examination, and allowing experts to more effectively respond to the views of other experts.

The bill gives discretionary powers to a court to order that two or more parties jointly retain an expert, or that a court appoint its own expert to assist the court in the proceeding. Using a single joint expert or court-appointed expert to give evidence on a particular issue can reduce the time and costs associated with expert evidence on that issue, and may assist in the efficient conduct of the proceeding more generally. These types of experts are used in other Australian jurisdictions, including Queensland and the Family Court, although the concept is relatively new to litigation in Victoria. The bill therefore provides guidance to the courts as to when it may be appropriate and useful to appoint such an expert.

In addition, the bill requires parties to seek leave of the court to adduce further evidence where a single joint or court-appointed expert has given evidence on a particular issue.

This ensures that the benefits associated with the appointment of a single joint or court-appointed expert are not undermined by the unnecessary presentation of further evidence, while also ensuring that additional evidence can be presented if required in the interests of justice, or to ensure that a party is not prejudiced in the proceeding.

There are some arrangements which exist between parties and experts which have the potential to create a conflict of interest and which may compromise the independence, or the perceived independence, of an expert witness. To promote transparency and accountability and reinforce an expert’s primary duty to the court, the bill gives parties the power to apply to the court for an order that an expert witness disclose to the court and to all other parties the arrangements under which they have been retained.

A purpose of these powers is to enable disclosure of any aspects of the arrangements under which an expert witness has been retained that could influence the impartiality of the expert’s evidence or be perceived to do so. Any information disclosed under the provision can only be used at the trial where the court gives leave, ensuring that the rules of evidence are not interfered with and parties are not prejudiced by the disclosure. The power to apply for an order for disclosure is subject to any rules of court that may be made to prescribe the circumstances in which such an application may be made.

Reforms to certification requirements

There are currently two certification requirements in the act.

The first of these requires a party to personally certify that they have read and understood the overarching obligations set out in the act (the overarching obligations certification), while the second requires a legal practitioner to certify that the claims made in the proceeding have a proper basis in fact and law (the proper basis certification).

The bill amends these certification requirements to achieve three main goals: to provide greater flexibility in the operation of the requirements; to reduce the administrative burden on litigants and legal practitioners; and to clarify the circumstances in which certification must be given to promote certainty and consistency and ensure that certification is required in appropriate circumstances.

Under the act as it stands, the overarching obligations certification must be made personally by a party.

Although the act allows a litigation guardian or similar representative to make the certification in place of the named party, similar allowances are not made for others who may be in control of the litigation but who are not named as parties. For example, an insurer who brings litigation in the name of the insured party usually has actual control over the conduct of the proceeding, makes the key decisions and provides instructions to the lawyers, and yet they are currently unable to formally acknowledge their obligations to the court by signing the certificate. The bill remedies this by giving the person in control of civil proceedings by virtue of a statute or contract of insurance the option to make the certification instead of the named party. This will be particularly useful where the insured cannot be found or does not feel comfortable signing the certificate, as they are the party in name only.

The act, as introduced by the previous government, requires the overarching obligations certification to be made in each proceeding commenced in the courts.

Such certification was intended to ensure that litigants fully understand and engage with their obligations. However, sometimes the same litigant will be involved in multiple civil proceedings each year. Repeat users such as insurers or debt collection companies will be well aware of their obligations, having made certifications in previous proceedings. In these circumstances, complying with the requirement each time a proceeding is filed simply increases costs while producing little benefit. The bill therefore amends this poorly considered provision to relieve parties from the pointless administrative burden of repeatedly having to file the certification where the party is or has been involved in more than one civil proceeding and has already personally made the certification in other civil proceedings in the same jurisdiction within the previous two years or such other period as may be specified by the rules of court.

The bill also relieves legal practitioners from the administrative burden of complying with the proper basis certification requirement where the document or process concerned is considered by the courts to be strictly administrative or procedural in nature. Some court documents do not raise disputed issues and no useful purpose is served by requiring a practitioner to certify that there is a proper basis for the claim. For example, the process of registering a judgement is administrative as no significant contentions are involved. To provide maximum flexibility, the courts are tasked with determining what processes are administrative in nature and therefore exempt.

Other amendments

In addition to these reforms, the bill makes a number of consequential and technical amendments to ensure the efficient operation of the act.

I commend the bill to the house.

ISSUES

The underlying philosophy of the amendments to the Civil Procedure Act are clearly set out in the Minister’s Second Reading Speech. The costs provisions provides a court a broad discretion regarding costs notification. There will need to be considerable care taken in preparing the memorandum in compliance with a court order. That will especially be the case in advising a party of the costs exposure in the event that he/she/it is unsuccessful. No doubt that will involve a party party assessment however what occurs if there is a Calderbank offer or an offer of compromise made. Those factors will need to be considered in any memorandum. However whether a court makes an indemnity costs order on a Calderbank offer is a matter of discretion and determined in light of the principles set out in the authorities. As such the costs exposure may not be probable or even likely in some cases. In the event of multiple offers or Calderbank offers the question will arise as to which is the appropriate point to measure solicitor/client or indemnity costs exposure. Given a court should not be notified of an offer of compromise/Calderbank offer the memorandum will need to be carefully drafted. Providing estimates of a hearing’s duration are common questions asked of practitioners before matters are set down in most courts. That however is an entirely different issue to an order for a genuine estimate. Again, preparing an estimate providing a basis for the estimate of the length of a hearing, as with the cost, should be based on some logical path of reasoning.

The amendments relating to the use of expert witnesses and the reports will not present a challenge to practitioners used to appearing in the Federal Court.

The certification amendments will impact upon active litigants who have multiple actions on foot at any one time.

Peter A Clarke

Civil Procedure Amendment Act 2012 assented to and to come into effect on 1 May 2013

Part 4.5 of Chapter 4 (Costs)

Part 3 (Expert witness).

Part 4—Amendments Relating to Certification Requirements

ISSUES

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