Edit: The new government is removing the requirement that parties attend mandatory pre-litigation proceedings for debt recovery and other matters. The amendments are contained in the Civil Procedure and Legal Profession Amendment Bill 2011 currently before the parliament.
The Explanatory Memorandum says,
The Bill will deliver on the Government’s commitment to end mandatory
pre-litigation procedures for debt recovery and other inappropriate proceedings by removing the pre-litigation requirements from the Civil Procedure Act 2010.The pre-litigation requirements, which will apply to proceedings which commence on or after 1 July 2011, would add unnecessarily to the costs of resolving a dispute and make it more difficult for disputants to access the courts. In particular, the pre-litigation requirements would provide an opportunity for disputants who were not prepared to negotiate in good faith to delay a settlement or decision and thereby prevent or delay disputants with legitimate claims from gaining access to the courts.
The courts will retain their power to consider a party’s use of mandatory or
voluntary pre-litigation processes. Further, the Bill will allow rules of court
to be made for or with respect to any mandatory or voluntary pre-litigation
processes in relation to specified civil proceedings or specified classes of
civil proceeding.
I said last week that we were finished with Legislation Watch for the year.
While that’s true, I do want to briefly mention the existence of the Civil Procedure Act 2010. It received Assent in August and its provisions come into effect on the 1st January next year, when QCIC will be on summer hiatus.
Here is the Explanatory Memorandum, the Second Reading and the Statement of Compatibility.
The Act aims to standardise practice across courts of civil jurisdiction. But the operation of the Magistrates’, County and Supreme Courts is never going to be uniform, which makes the Rules for each court so important. The devil (as always) will be in the details.
Most of the Act’s provisions are aspirational in nature, reinforcing the obligation of parties and practitioners to make genuine efforts to resolve disputes. In the wake of Aon Risk Services v ANU, this isn’t a significant change. Few of the new sections place new obligations on the parties. There are a few common-sense relaxations of existing rules.
Most important for present purposes is identifying what the Act does not apply to.
Section 4 states,
4 Application of this Act
(1) Subject to subsections (2) and (3), this Act applies to all civil proceedings.
(2) This Act does not apply to proceedings under the following Acts—
(a) the Family Violence Protection Act 2008;
(b) the Stalking Intervention Orders Act 2008;
(c) the Confiscation Act 1997;
(d) the Proceeds of Crime Act 1987 of the Commonwealth and the Proceeds of Crime Act 2002 of the Commonwealth;
(e) the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;
(f) the Children, Youth and Families Act 2005;
(g) the Coroners Act 2008;
(h) the Victims of Crime Assistance Act 1996;
(i) the Sentencing Act 1991.
In short, even where criminal proceedings have a civil character to them, the Civil Procedure Act‘s overarching principles will not apply.
The most obvious omission is reference to the Road Safety Act 1986. This is particularly relevant given the changes to the hoon laws discussed here, which will see many more applications by the police for seizure and forfeiture of people’s vehicles. (Perhaps it will be a prescribed Act under the Regulations).
CCP v Rigg [2004] VSC 448 ruled an interlock hearing and the appeal that followed was a criminal proceeding. Probably the same here.
Are you going to do a Civil Procedure Act? (like the CPA and EA)?
Another gap in the CivPA is that the pre-litigation requirements don't apply to any 'civil proceeding under section 33 or 39 of the Charter'. So, if you don't want to comply with the pre-lit regime, just raise a Charter issue; and if you want the benefits of the pre-lit regime, then don't raise any Charter issues.
Is the Magi's Crt Act going?
They'll all go eventually, BD. According to this page of the Department of Justice website, if the present government is returned in the coming election they intend to enact a Courts Act to replace the Magistrates' Court Act, the County Court Act and the Supreme Court Act.Interesting point you raise, Jeremy. I'm sure the powers-that-be didn't intend to give parties an opt-out clause. I should have said something in this post about the Model Litigant Guidelines. They got some press when they were released back in 2004, but seem to have been pushed into the background since. In theory, the State of Victoria are already obliged to meet the aspirational objectives of the CPA.No, TDsP, I don't think we'll be doing a Civil Procedure Blog. Partly because I don't expect they'll be much litigation flowing from this Act. Mostly because we're too busy!
CCP v Rigg [2004] VSC 448 ruled an interlock hearing and the appeal that followed was a criminal proceeding. Probably the same here.
Are you going to do a Civil Procedure Act? (like the CPA and EA)?
Another gap in the CivPA is that the pre-litigation requirements don't apply to any 'civil proceeding under section 33 or 39 of the Charter'. So, if you don't want to comply with the pre-lit regime, just raise a Charter issue; and if you want the benefits of the pre-lit regime, then don't raise any Charter issues.
Is the Magi's Crt Act going?
They'll all go eventually, BD. According to this page of the Department of Justice website, if the present government is returned in the coming election they intend to enact a Courts Act to replace the Magistrates' Court Act, the County Court Act and the Supreme Court Act.Interesting point you raise, Jeremy. I'm sure the powers-that-be didn't intend to give parties an opt-out clause. I should have said something in this post about the Model Litigant Guidelines. They got some press when they were released back in 2004, but seem to have been pushed into the background since. In theory, the State of Victoria are already obliged to meet the aspirational objectives of the CPA.No, TDsP, I don't think we'll be doing a Civil Procedure Blog. Partly because I don't expect they'll be much litigation flowing from this Act. Mostly because we're too busy!
Changes to Civil Litigation ProcessThere will be changes to the County Court civil litigation process when the Civil Procedure Act 2010 comes into operation on 1 January 2011. From that date, each party to a civil proceeding within the County Court must complete and file two types of certification forms – the Overarching Obligation Certification (Form 4A) and the Proper Basis Certification (Form 4B) – with their first substantive document. For cases filed with the Court on or after 1 July 2011, a Pre-litigation Requirements Compliance Certification (Form 4C) must be filed with the other two certification forms. For full details visit the County Court website.
Changes to Civil Litigation ProcessThere will be changes to the County Court civil litigation process when the Civil Procedure Act 2010 comes into operation on 1 January 2011. From that date, each party to a civil proceeding within the County Court must complete and file two types of certification forms – the Overarching Obligation Certification (Form 4A) and the Proper Basis Certification (Form 4B) – with their first substantive document. For cases filed with the Court on or after 1 July 2011, a Pre-litigation Requirements Compliance Certification (Form 4C) must be filed with the other two certification forms. For full details visit the County Court website.