12Facilitating Ongoing Civil Justice Review and Reform

2 

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Facilitating Ongoing Civil 

Justice Review and Reform 

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Facilitating Ongoing Civil Justice 

Review and Reform 

1. Introduction 

2. Rules and rule-making powers 

2.1 Victoria 

2.2 Other Australian jurisdictions 

2.3 Overseas jurisdictions 

3. Submissions and consultations 

3.1 Consultation Paper 

3.2 Responses to draft proposals 

4. Conclusions and recommendations 

4.1 Rule-making process 

4.2 Harmonisation and uniformity of rules 

4.3 Rule-making power 

4.4 Ongoing review and reform 

Recommendations 

5. Issues for further consideration 

5.1 Introduction 

5.2 Pleadings 

5.3 Non-party participation in proceedings 

5.4 Enforcement of judgments and orders 

5.5 Victorian Civil and Administrative Tribunal 

5.6 Appeals 

5.7 Tax deductibility of legal costs 

5.8 Interest up to judgment 

5.9 Presumption that no costs are recoverable for very small claims 

5.10 The need to consider economic aspects of the civil justice system 

5.11 Court governance 

5.12 Other issues raised in submissions 

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Victorian Law Reform Commission - Civil Justice Review: Report

1. INTRODUCTION 

‘Managing justice is an ongoing process. There is no simple, once and for all solution to 

the problems of civil justice systems, no single best practice for managing or resolving 

disputes.’ 1 

Our terms of reference ask us to have regard to the aims of the Attorney-General’s Justice Statement: 

New directions for the Victorian Justice System 2004–2014, and in particular the modernisation, 

simplification and harmonisation of the rules of civil procedure within and across jurisdictions. 

The Attorney-General’s Justice Statement identified the following potential areas for procedural reform 

(among others): 

• Reform of the processes for commencing litigation. This may include common 

commencement forms between jurisdictions and the inclusion of the plaintiff’s statement 

of claim with the originating process. 

• The present variety of procedures in different jurisdictions, all of which fundamentally 

are directed at getting the parties to state their cases, identify issues in dispute and 

disclose relevant supporting information, adds to the costs of litigation and clouds the 

transparency of the processes. Greater harmony between the rules of all three Victorian 

court jurisdictions should be the goal, provided that this does not encumber the lower 

jurisdictions with processes more appropriate to more complex litigation. 

Our terms of reference also ask us to identify the process by which the courts, the legal profession and 

other stakeholders can be fully involved in any further detailed review of the rules of procedure. 

In this chapter we examine the processes by which procedural rules are made and amended in Victoria 

and other jurisdictions, outline recent moves towards uniform rules of civil procedure, and consider 

mechanisms for ongoing review and reform of the rules of civil procedure. 

In the course of the present inquiry we received numerous submissions proposing reforms in areas 

outside the matters which have been taken up in stage 1. In this chapter we summarise these reform 

proposals. Some of these may be taken up in stage 2 of the present inquiry. Some may be matters for 

consideration by the proposed Civil Justice Council. Others may be implemented, either by legislation 

or rule change, without the need for further investigation. 

2. RULES AND RULE-MAKING POWERS 

2.1 Victoria 

The rules that govern civil procedure in Victorian courts are made by the courts themselves as 

subordinate legislation. The principal rules are as follows: 

• Supreme Court (General Civil Procedure) Rules 2005 (Chapter I) 

• County Court Rules of Procedure in Civil Proceedings 1999 

• Magistrates’ Court Civil Procedure Rules 1999. 

The rules of the Supreme and County Courts share a large number of common provisions, which 

the Supreme Court has noted ‘allows for a common jurisprudence in relation to the application of 

the rules’. 2 There are some distinctions between the rules, reflecting different case management 

approaches, and variations in jurisdiction. The Magistrates’ Court rules are simpler and shorter than 

those that apply in the other courts. The courts also issue practice notes and guidelines to ‘provide 

more detailed and specialised information on the practices adopted in specialist lists, procedures for 

certain types of applications or new Court initiatives’. 3 

1 ALRC, Managing Justice: A Review of 

The judges of the Supreme Court may make rules ‘on any matter relating to the practice and 

procedure of the Court or the powers, authorities, duties and functions of the officers of the Court’. 4 

The judges of the County Court ‘may make rules for regulating and prescribing the pleading, practice 

and procedure of the court’. 5 In any case not provided for in the County Court Act or Rules, the 

general principles of practice and the rules observed in the Supreme Court may be adopted and 

applied. 6 In the Magistrates’ Court, the Chief Magistrate, together with two or more Deputy Chief 

Magistrates, may jointly make rules of court ‘for or with respect to any matter relating to the practice 

and procedure of the Court in civil proceedings’. 7 

the Federal Civil Justice System, Report 

No 89, (2000) [1.14]. 

2 Submission CP 58 (Supreme Court of 

Victoria). 


Victoria). 

4 Supreme Court Act 1986 s 25. 

5 County Court Act 1958 s 78. 

6 County Court Act 1958 s 78(5). 

7 Magistrates Court Act 1989 s 16. 

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A council of the judges or magistrates of each Victorian court must meet at least once in each year 

to consider the operation of the legislation and rules, and to enquire into and examine any defects 

that appear to exist in the system of procedure or administration of the law in the court. 8 Each court 

delegates its rule-making power to a rules committee, which then makes recommendations to the 

judges or magistrates for any rule change. 9 The legislation does not prescribe who the members of the 

rules committees should be, or how their deliberations should be conducted. 

The courts’ rules committees generally comprise judicial members, masters and registrars, 

representatives nominated by the Victorian Bar Council and the Law Institute of Victoria and an officer 

from the Office of the Chief Parliamentary Counsel. 10 During 2005–6 the Magistrates’ Court Rules 

Committee’s primary focus was the alignment, where possible, of the court’s civil rules with those of 

the County and Supreme Courts. 11 

The Supreme Court reported in relation to its Rules Committee: 

In addition to acting in response to new legislation, the Committee receives suggestions 

for new rules or amendments from within the Court, from the profession and others. 

The Court also participates, through the Council of Chief Justices, in the National 

Harmonisation of Rules Committee which provides a forum for the development of 

uniform or harmonised rules on common issues across superior courts. 

The Rule making power of the Court is an important aspect of the Court’s power to 

control its own procedure. The composition of the Rules Committee allows matters to be 

raised by those dealing with the Rules on a day to day basis. It allows expert consideration 

of any proposed change and an efficient procedure for amendment without recourse to 

parliamentary or departmental processes. 12 

The Subordinate Legislation Act 1994 governs the status of rules made by the courts. Rules made by 

the courts are subject to disallowance by the Parliament. 13 

A proposed rule that is to be made by, or with the consent or approval of, the Governor in Council 

must be submitted to the Chief Parliamentary Counsel for the issue of a certificate that the rule is 

within power and appears otherwise appropriate. 14 The rule must be published in the Government 

Gazette as soon as practicable after it is made, and within six days must be laid before each House of 

Parliament. 15 

The Scrutiny Committee may report to Parliament if it appears that any statutory rule laid before 

Parliament does not appear to be within the powers conferred by the authorising Act, contains 

principles which should properly be dealt with by an Act and not subordinate legislation, unduly 

trespasses on rights and liberties of the person previously established by law, etc. The Scrutiny 

Committee may recommend that a rule should be disallowed or amended. 16 

The Minister may make guidelines for the preparation, content, publication and availability of statutory 

rules, and the procedures to be implemented and the steps to be undertaken for the purpose of 

ensuring consultation, coordination and uniformity in the preparation of statutory rules. 17 

The courts are also empowered to make rules under section 50 of the Interpretation of Legislation Act 

1984, which provides: 

Where an Act or subordinate instrument confers any jurisdiction on a court or other 

tribunal or extends or varies the jurisdiction of a court or other tribunal, the authority 

having for the time being power to make rules or orders regulating the practice and 

procedure of that court or tribunal may, unless the contrary intention appears, make such 

rules or orders (including rules or orders with respect to costs) as appear to the authority 

to be necessary for regulating the practice and procedure of that court or tribunal in the 

exercise of the jurisdiction so conferred, extended or varied. 

In addition to express statutory powers, courts have an inherent or implied power to regulate their 

own procedure. The judges of superior courts and most other courts of record have the power to 

make rules of court regulating the procedure of the court to ensure the parties use the process of the 

court fairly and conveniently. 18 The inherent power of the court is rarely used because courts are given 

wide statutory rule-making power. 

As members of the High Court have noted, ‘power’ and ‘jurisdiction’ are not discrete concepts and the 

distinction between them is often blurred. 19 

698 


In Harris v Caladine Justice Toohey noted that: 

Jurisdiction is the authority which a court has to decide the range of matters that can 

be litigated before it; in the exercise of that jurisdiction a court has powers expressly 

or impliedly conferred by the legislation governing the court and ‘such powers as are 

incidental and necessary to the exercise of the jurisdiction or the powers so conferred’ 20 

Challenges to the rule-making power 

In Ousley v R the High Court had occasion to consider the general principles of the rule-making power 

in the context of a challenge to a Victorian rule prescribing the form of warrants. 21 Justice McHugh 

summarised the principles as follows: 22 

A rule made under rule-making powers is invalid if it is ’altogether outside the province’ 23 

of the court as a rule-making authority or is ’patently or absurdly irrelevant’ 24 to the rulemaking 

power. In less extreme cases, a rule will be invalid where it is not ‘capable of being 

considered to be reasonably proportionate to the pursuit of the enabling purpose’. 25 In 

Williams v Melbourne Corp, 26 Dixon J expressed the test for invalidity as being whether 

the rule goes ’beyond any restraint which could be reasonably adopted‘ for the prescribed 

purpose. 

Section 25(1)(f)(i) of the Supreme Court Act and s 50 of the Interpretation Act enable 

bodies such as the Supreme Court of Victoria to ensure their efficient operation by 

providing means for the regulation of ’practice and procedure‘, a term which has been 

expressed to denote: 27 

the mode of proceeding by which a legal right is enforced, as distinguished from 

the law which gives or defines the right, and which by means of the proceeding 

the court is to administer the machinery as distinguished from its product. 

In Cleland v Boynes, 28 the Full Court of the Supreme Court of South Australia approved 

the following description of ’practice and procedure‘ given by Falconbridge in his work, 

Conflict of Laws: 29 

Broadly speaking, it is customary in the conflict of laws to characterise as 

procedural such matters as forms of action, parties to an action, venue, rules 

of practice and pleading, proof of facts, admissibility of evidence, rebuttable 

presumptions and burdens of proof; and it has been suggested that the line 

between substance and procedure should be drawn on the basis of the general 

distinction between procedural rules which concern methods of presenting to 

a court the operative facts upon which legal relations depend, and substantive 

rules which concern the legal effect of those facts after they have been 

established. 

The members of the High Court who considered the scope of the rule-making power found that 

section 25(1)(f) only authorises the court to make rules for judicial acts. As the issue of a warrant is 

an administrative act, section 25(1)(f) could not support the rule prescribing the form of the warrant. 

However, section 50 of the Interpretation of Legislation of Act ‘encompasses administrative as well as 

judicial functions’ and is ‘sufficient authority’ for the court to prescribe the form of the warrant. 30 

The scope of the Supreme Court’s rule-making power was further considered following the adoption 

of new class action procedures by that court in 1999. 31 The Supreme Court introduced rules mirroring 

the Federal Court’s class action procedures contained in the Federal Court of Australia Act 1976 (Cth). 

These class action procedures allowed the court to assess damages in the aggregate. The relevant 

provision 32 was challenged in Schutt Flying Academy (Australia) Pty Ltd v Mobil Oil Australia (Ltd). A 

majority of the Court of Appeal held that the rules were valid and could have been made pursuant to 

section 25(1)(a) (which empowers the court to make rules with respect to any matter dealt with in any 

rules of court in force on 1 January 1987), or the more general provision, section 25(1)(f)(i). 

Justice Ormiston (with whom Justices Phillips and Charles agreed) characterised the rules in dispute as 

‘rules of practice and procedure’, that is, ‘they prescribe the mode of proceeding by which a legal right 

is enforced, as distinguished from the law which gives or defines the right’. Justice Ormiston found 

that the new rules did not alter recognised existing legal principles, and further, any calculation of 

damages would not amount to a substantive alteration of the law. 

8 Supreme Court Act 1986 s 28, County 

Court Act 1958 s 87, Magistrates 

Court Act 1989 s 15. 

9 Supreme Court of Victoria, Annual 

Report 2004–05 (2006) 29; County 

Court of Victoria, Annual Report 

2005–06 (2007) 20, Magistrates’ 

Court of Victoria, Annual Report 

2005–2006 (2007)16–17. 

10 See Supreme Court (2006) above n 9; 

Magistrates’ Court (2007) above n 9. 

11 Magistrates’ Court (2007) above n 9; 

and submission CP 55 (Magistrates’ 

Court of Victoria). 


Victoria). 

13 Supreme Court Act 1986 s 27, 

Magistrates’ Court Act 1989 s 16(2). 

14 Subordinate Legislation Act 1994 s 13. 

15 Subordinate Legislation Act 1994 ss 

17, 15. 



18 Gittins v WHC Stacy and Son (1964) 82 

WN Pt 1 (NSW) 157. 

19 Australian Securities and Investments 

Commission v Edensor Nominees Pty 

Ltd (2001) 204 CLR 559, 590 [64] 

(Gleeson CJ, Gaudron and Gummow 

JJ); Harris v Caladine (1991) 172 CLR 

84, 136 (Toohey J). See also Batistatos 

v Roads and Traffic Authority of New 

South Wales (2006) 227 ALR 425 

[5} (Gleeson CJ, Gummow, Hayne 

and Crennan JJ). In that case the 

court noted that the phrase ‘inherent 

jurisdiction’ is a slippery one [5]. The 

case concerned abuse of process and 

the ‘inherent jurisdiction’ of superior 

courts to stay proceedings. 

20 Australian Securities and Investments 

Commission v Edensor Nominees Pty 

Ltd (2001) 204 CLR 559, 590 [64] 

(Gleeson CJ, Gaudron and Gummow 

JJ) quoting Parsons v Martin (1984) 5 

FCR 235, 241. 

21 Ousley v R (1997) 148 ALR 510. 

22 Ousley v R (1997) 148 ALR 510, 

542–3. 

23 Lynch v Brisbane City Council (1961) 

104 CLR 353, 365. 

24 Foster v Aloni [1951] VLR 481, 484. 

See also State Bank (SA) v Hellaby 

(1992) 59 SASR 304, 309. 

25 South Australia v Tanner (1989) 166 

CLR 161, 165. 

26 (1933) 49 CLR 142, 156. 

27 Poyser v Minors (1881) 7 QBD 329, 

333 (Lush LJ). See also Adam P 

Brown Male Fashions Pty Ltd v Philip 

Morris Inc (1981) 148 CLR 170, 

176–7; Commonwealth v Hospital 

Contribution Fund (1982) 150 CLR 49, 

75. 

28 (1978) 19 SASR 464. 

29 (1978) 19 SASR 464, 470. 

30 Ousley v R (1997) 192 CLR 69, 518 

(Toohey J), and 549 (Gummow J). 

31 Schutt Flying Academy (Australia) Pty 

Ltd v Mobil Oil Australia (Ltd) (2000) 1 

VR 545. 

32 O 18A. The provision allowing the court 

to award damages in an aggregate 

amount was based on s 33Z of the 

Federal Court Act 1976. This is now 

dealt with by s 33Z Supreme Court 

Act 1986. See Peter Cashman, Class 

Action Law and Practice (2007) 30–3. 

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Justices Winneke and Brooking dissented, finding that the new rules permitted the court to assess 

damages otherwise than in accordance with the law. This amounted to a change in the substantive 

rights of group members. Justice Winneke commented that the scheme needed to be enshrined in 

legislation (which it subsequently was). 

Reform proposals 

In Going to Court Sallmann and Wright concluded it was time to devise uniform rules for the three 

courts as a matter of high priority. 33 They also expressed the view that there was ‘a need for a coordinating 

mechanism to collect management information, to present a public face to the system, 

and to identify and act on apparent or actual deficiencies in service delivery systems, as well as other 

matters affecting court performance’. 34 

They further concluded that: 

A type of civil justice council or courts advisory council is worth pursuing. It should not be 

armed with powers that could bind the courts but … would need to have a sufficiently 

important role, and to be supported in such a way, that it could bring about real 

improvements in the co-ordination and operation of civil justice in Victoria. 35 

In 2004 the Courts Strategic Directions Project advocated review of the rules of procedure to simplify 

and harmonise them: 

A feature of all major recent reviews of civil procedure is the general dissatisfaction with 

some of the current procedures in civil litigation. The various reviews point to the fact 

that, where appropriate, simpler initiation processes and simpler unified court rules and 

procedures can improve accessibility. 

The rules and procedures of each of the Courts and VCAT should be reviewed to achieve 

greater simplicity and, where appropriate, congruity. A Task Force should be established 

to undertake the initial task of scoping a project and to identify the best form of pre-trial 

procedure for them. 36 

2.2 Other Australian jurisdictions 

Rule-making procedures similar to Victoria’s operate in Western Australia, Tasmania, and the Northern 

Territory and in the Commonwealth courts. 37 That is, each court in those jurisdictions is empowered to 

make its own rules of court, within the parameters of their enabling legislation. Tasmania 38 is the only 

one of the above jurisdictions in which the composition of the courts’ rules committees is prescribed in 

the legislation. 39 

In South Australia a Joint Rules Advisory Committee has been established, although this is not 

provided for in the legislation: 

The Joint Rules Advisory Committee (JRAC) comprises two Judges, a Master, the Registrar 

and the Senior Deputy Registrar of the Supreme Court; three Judges, a Master and the 

Registrar of the District Court; one Magistrate; the President of the Law Society; and three 

legal practitioners. 

The role of JRAC is to prepare, review and revise the Rules of Court, made pursuant to the 

Supreme Court Act and the District Court Act. The Rules regulate the procedures of and 

practice in the Supreme and District Courts. JRAC also has a role in preparation, review 

and revision of the Practice Directions of both the Supreme and District Courts. 

It is JRAC’s responsibility to ensure that the Rules of Court and Practice Directions are 

adequate to deal with the requirements of contemporary litigation, and to assist in the 

efficient running of the courts. 

In order to ensure that the legal profession is informed of amendments made to Rules 

and Practice Directions, and to ensure that any such amendments reflect practical needs, 

JRAC liaises directly with the profession by consulting with professional organisations such 

as the Law Society and the Bar Association. 

On 4 September 2006 the Supreme Court Civil Rules 2006 and the District Court Civil 

Rules 2006, together with new Practice Directions, came into effect. The new Rules 

represent a major change from the previous Supreme Court Rules 1987 and District 

700 


Court Rules 1992. They are the culmination of a substantial amount of work by JRAC, the 

Judges of both Courts and of the former Parliamentary Counsel, Mr G Hackett-Jones QC, 

and other staff in his office. 40 

By contrast, NSW, Queensland and the ACT each have a single rules committee to develop and 

monitor rules for all courts within their jurisdiction. These committees have been established in the 

context of developing uniform or harmonised rules between the courts within those jurisdictions. 

New South Wales 

Civil procedure in all courts in NSW is now governed by the Civil Procedure Act 2005 (NSW) and the 

Uniform Civil Procedure Rules 2005 (NSW), which introduced common rules and procedures in civil 

proceedings in the Supreme, District and Local Courts. The uniform rules apply in all civil proceedings 

in the Supreme and District Courts; the Dust Diseases Tribunal; and the General Division and Small 

Claims Division of the Local Court. 

To the extent that each court retains the power to make local rules, they are not authorised to make 

local rules to amend or repeal a uniform rule in its application to that court. 41 The uniform rules prevail 

over any provision of any local rules unless the uniform rules expressly provide that the provision of the 

local rules is to prevail. 42 

The Civil Procedure Act 2005 empowers a senior judicial officer of the court to issue practice notes. 43 

The practice notes are statutory rules for the purposes of the Interpretation Act 1987 (NSW) and can 

be disallowed. 44 

The Civil Procedure Act 2005 provides for a Uniform Rules Committee comprising 10 members, 

including: 

(a) the Chief Justice of the Supreme Court or a judge of the Supreme Court nominated by the 

Chief Justice 

(b) the President of the Court of Appeal or a judge of appeal nominated by the President 

(c) two judges of the Supreme Court appointed by the Chief Justice 

(d) the Chief Judge of the District Court or a judge of the District Court nominated by the 

Chief Judge 

(e) a judge of the District Court appointed by the Chief Judge 

(f) the Chief Magistrate or a magistrate nominated by the Chief Magistrate 

(g) a magistrate appointed by the Chief Magistrate 

(h) a barrister appointed by the Bar Council 

(i) a solicitor appointed by the Law Society Council. 45 

In addition to the Uniform Rules Committee, a Civil Procedure Working Party exists to develop 

amendments to the rules and review civil forms. It has a cross-jurisdictional composition and in 

addition to judicial officers it includes representatives from the NSW Bar, Law Society and Attorney- 

General’s Department. The working party developed the uniform rules and the Civil Procedure Act in 

consultation with the judiciary, profession and special interest groups. 46 In producing the uniform rules, 

the working party simplified and consolidated the rules, but retained existing concepts and phrases in 

order to preserve the substance of the rules. 

Queensland 

The Supreme Court of Queensland Act 1991 provides that the Governor in Council, with the consent 

of the rules committee, may make rules of court, to be known as the Uniform Civil Procedure Rules, 

in respect of the practice and procedure of the Supreme Court, District Court, and Magistrates’ 

Courts, their registries or other specified matters. 47 The Chief Justice is empowered to establish a Rules 

Committee consisting of the following members: 

(a) the Chief Justice, or a Supreme Court judge nominated by the Chief Justice 

(b) the President or a judge of appeal nominated by the President 

(c) two Supreme Court judges nominated by the Chief Justice 

(d) the Chief Judge or a District Court judge nominated by the Chief Judge 

33 Peter Sallmann and Richard Wright, 

Going to Court: A Discussion Paper on 

Civil Justice in Victoria (2000), 205–12. 

34 Ibid 232. 

35 Ibid. 

36 Courts Consultative Council [Victoria], 

Courts Strategic Directions Project 

(2004) 19. 

37 See Supreme Court Act 1935 (WA) Pt 

X, Supreme Court Civil Procedure Act 

1932 (Tas) Pt XIV, Supreme Court Act 

1979 (NT) s 71, Judiciary Act 1903 

(Cth) ss 86, 89, High Court Act 1979 

(Cth) s 48, Federal Court of Australia 

Act 1976 (Cth) s 59. 

38 There is a Rule Committee consisting 

of the judges, the master and four 

practitioners appointed by the 

Governor: s 202(1). The appointed 

members of the committee shall hold 

office for a period of 5 years: s 202(2). 

The Rule Committee shall meet once 

at least in each year, and as often 

as the Chief Justice may direct: s 

202(3): Supreme Court Civil Procedure 

Act 1932 (Tas). See also s 15AE 

Magistrates’ Court Act 1987 (Tas). 

39 The Family Law Act 1975 (Cth) s 

124 establishes a Rules Advisory 

Committee, consisting of such judges 

of the Family Court, such judges 

of family courts of states and such 

other persons as are appointed on 

nomination by the Attorney-General in 

consultation with the Chief Judge. 

40 Supreme Court of South Australia, 

Report of the Judges of the Supreme 

Court of South Australia to the 

Attorney-General Pursuant to Section 

16 of the Supreme Court Act 1935 for 

the Year Ended 31 December 2006 

(2006). 

41 Civil Procedure Act 2005 (NSW) s 10. 


43 Civil Procedure Act2005 (NSW) s 15. 

44 Civil Procedure Act2005 (NSW) s 

15(2). 


46 See Jenny Atkinson and Stephen 

Olischlager, An Introduction to Civil 

Procedure Act 2005, Uniform Civil 

Procedure Rules 2005 (2005); Laurie 

Glanfield, ‘Consistency in Court 

Rules—The NSW Partnership’ (Paper 

presented at the Australian Institute 

for Judicial Administration Annual 

Conference, Sydney, 17–19 September 

2004); Justice John Hamilton, ‘The 

NSW Civil Procedure Bill 2004 and 

the Uniform Civil Procedure Rules: 

An Introduction’ (Paper presented 

at the Australian Institute for Judicial 

Administration Annual Conference, 

Sydney, 17–19 September 2004). 

47 Supreme Court of Queensland Act 

1991 s 118. 

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(e) 

(f) 

a District Court judge nominated by the Chief Judge 

the Chief Stipendiary Magistrate or a magistrate nominated by the Chief 

Stipendiary Magistrate 

(g) a magistrate nominated by the Chief Stipendiary Magistrate. 48 

The rules committee may conduct its business and proceedings at meetings in the way it decides. 49 

Uniform Civil Procedure Rules came into force in Queensland in 1999. 50 The rules introduced an 

overriding philosophy and promote court control of proceedings. 

Australian Capital Territory 

In the ACT the Court Procedures Act 2004 (ACT) provides that the rule-making committee may 

make rules in relation to the practice and procedure of courts or tribunals in the territory. 51 The rules 

committee comprises representatives of different courts including the Chief Justice, the President 

of the Court of Appeal (or a judge if this is the same person as the Chief Justice), a judge, the Chief 

Magistrate and a magistrate. The rule-making committee may conduct its proceedings in the way it 

decides, whether by holding meetings or in any other way. 52 

The Act establishes a Joint Rules Advisory Committee (JRAC), comprised of representatives from both 

courts, the court registrars, the ACT Law Society, the ACT Bar Association, the Director of Public 

Prosecutions, Parliamentary Counsel, and a public servant nominated by the Chief Executive of the 

Department of Justice and Community Safety. 53 

In some jurisdictions the legislation expressly directs the court to exercise its rule making power in 

a way that facilitates the objectives of the civil justice system. For example in Western Australia in 

making rules of court (as well as dealing with cases) the court is to ensure that cases are dealt with 

justly: 

Ensuring that cases are dealt with justly’ includes ensuring— 

(a) that cases are dealt with efficiently, economically and expeditiously; 

(b) so far as is practicable, that the parties are on an equal footing; and 

(c) that the Court’s judicial and administrative resources are used as efficiently as possible. 54 

Steps have also been taken to increase the level of harmonisation of rules across jurisdictions. The 

Council of Chief Justices of Australian jurisdictions has convened the National Harmonisation of Rules 

Committee to develop uniform or harmonised rules on common issues across superior courts. 55 The 

composition of the committee in 2007 was as follows: 

• Chair—Justice Kevin Lindgren 

• Victoria—Justice David Harper 

• NSW—Justice John Hamilton 

• Queensland—Justice Margaret Wilson 

• Western Australia—Justice of Appeal Neville Owen 

• South Australia—Justice Richard White 

• Tasmania—Justice Peter Evans 

• Australian Capital Territory—Justice Terence Connolly 

• Northern Territory—Master Terry Coulehan 

56 

• New Zealand—Justice David Baragwanath. 

To date this committee has produced harmonised rules for proceedings under the Corporations Law, 

subpoenas and freezing and search orders. The committee has subsequently considered rules about 

service out of the jurisdiction, and is to look at whether further harmonisation can be achieved in 

relation to discovery. 57 The changes recommended by the committee are implemented through each 

court’s own rulemaking process. The council has appointed a ‘monitoring committee’ to review the 

operation of the new rules and to generate amendments to them where necessary. 58 

Justice Lindgren has in this context noted the advantages and disadvantages of harmonising rules 

across jurisdictions: 59 

702 


Advantages 

3.1 Production of a ‘model’ set of rules based on the pooled experience of all Australian 

jurisdictions. 

3.2 Common language ensures that the same text will fall to be construed in all participating 

courts, with the consequence of a larger corpus of interpretative decisions. 

3.3 Greater certainty and predictability as a result of 3.2. 

3.4 It does little to enhance the administration of justice that the same issue is addressed 

differently in the rules of the various courts, where the difference cannot be supported by 

reference to local considerations. 

3.5 Harmonisation of rules militates against forum shopping based on rule differences. 

3.6 Interjurisdictional practice and a ‘national profession’. 

3.7 Training programs within ‘national’ firms. 

Disadvantages 

3.8 Slowing of pace of change because of the strong desirability of an individual court’s taking 

up proposed amendments through the relevant harmonised rules monitoring committee. 

3.9 Perceived interference with local autonomy. 

3.10 Discouragement of ‘trials’ of diverse solutions resulting in the emergence of ‘the best’ 

one; instead, a tendency to compromise and to adopt the ‘lowest common denominator’ 

factor. 

2.3 Overseas jurisdictions 

New Zealand 

In New Zealand neither the Rules Committee nor the Government has the power to make rules 

unilaterally. The Judicature Act 1908 (NZ) empowers the Governor-General, with the concurrence 

of the Chief Justice and two or more members of the Rules Committee (of whom at least one is a 

High Court judge) to make rules regulating the practice and procedure of the High Court, the Court 

of Appeal and the Supreme Court. 60 Similar provisions apply in the District Court, although the Rules 

Committee’s rule-making powers do not extend to proceedings where district courts derive jurisdiction 

from any statute other than the District Courts Act 1947 (NZ). 61 For rules governing these other 

forms of proceedings the Ministry of Justice remains the effective governing body, assisted by other 

committees on a consultative basis. 

The Judicature Act provides that the Rules Committee shall consist of: 

• the Chief Justice 

• the Chief High Court Judge 

• two other judges of the High Court appointed by the Chief Justice 

• the Chief District Court Judge 

• one other District Court judge appointed by the Chief Justice 

• the Attorney-General 

• the Solicitor-General 

• the chief executive of the Department for Courts 

• two persons who are barristers and solicitors of the High Court, nominated by the Council 

of the New Zealand Law Society and approved by the Chief Justice. 

United Kingdom 

The Civil Procedure Act 1997 (UK) provides that there are to be rules of court governing the practice 

and procedure to be followed in the civil division of the Court of Appeal, the High Court, and county 

courts. The power to make Civil Procedure Rules is to be ‘exercised with a view to securing that the 

civil justice system is accessible, fair and efficient and the rules are both simple and simply expressed’. 62 


1991 s 118C(1). 


1991 s 118C(3). 

50 See Bernard Cairns, ‘A Review of 

Some Innovations in Queensland Civil 

Procedure’ (2005) 26 Australian Bar 

Review 158; Justice Glen Williams, 

‘The Changing Face of Procedural 

Law in Queensland’ (Paper presented 

at Australian Institute for Judicial 

Administration Fifth Biennial Masters’ 

Conference, Auckland, New Zealand, 

26–28 April 2000). 

51 Court Procedures Act 2004 (ACT) s 

7(1). 

52 Court Procedures Act 2004 (ACT) s 9. 

53 Court Procedures Act 2004 (ACT) s 11. 

54 Supreme Court Act 1935 (WA) s 13. 

See also: s 13 Magistrates Court (Civil 

Proceedings) Act 2004 (WA). 

55 Submission from Supreme Court 

of Victoria. See also Justice Kevin 

Lindgren, ‘Harmonisation of Rules of 

Court in Australia’ (Paper presented 

at AIJA Annual Conference, Sydney, 

17–19 September 2004). 

56 Letter from Greg Reinhardt, Australian 

Institute for Judicial Administration to 

the commission 10 May 2007. 

57 Ibid. 

58 Lindgren (2004) above n 55. 

59 Ibid. 

60 Judicature Act 1908 (NZ) s 51C(1). 

61 District Courts Act 1947 (NZ) s 122. 

62 Civil Procedure Act 1997 (UK) s 1. 

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Civil Procedure Rules are to be made by a committee known as the Civil Procedure Rule Committee, 

which consists of: 

(a) the Master of the Rolls 

(b) the Vice-Chancellor 

(c) one judge of the Supreme Court 

(d) one circuit judge 

(e) one district judge 

(f) one Supreme Court master 

(g) three persons who have a Supreme Court qualification (within the meaning of section 

71 of the Courts and Legal Services Act 1990), including at least one with particular 

experience of practice in county courts 

(h) three persons who have been granted by an authorised body, under Part II of that Act, the 

right to conduct litigation in relation to all proceedings in the Supreme Court, including at 

least one with particular experience of practice in county courts, 

(i) one person with experience in and knowledge of consumer affairs, and 

(j) one person with experience in and knowledge of the lay advice sector. 63 

The prescribed membership of the rule committee reflects the recommendation by Lord Woolf that: 

The new rule-making authority which will be needed to enact the new combined rules 

should contain in its membership people who can advance consumer, advisory and other 

lay viewpoints, as a counterbalance to the professional legal interests. 64 

The Civil Procedure Rule Committee publishes annual reports. The 2005–6 Annual Report notes that: 

The meeting of 19th May was the committee’s first open public meeting. 30 guests 

attended to watch the committee at work, and questions were taken at the end of the 

meeting. The event was considered very successful. 65 

Civil Justice Council 

Lord Woolf also recommended that a civil justice council be set up to contribute to the development 

of his proposed reforms. 66 The Civil Justice Council was established under the Civil Procedure Act 1997 

(UK): 

(1) The Lord Chancellor is to establish and maintain an advisory body, to be known as the Civil 

Justice Council. 

(2) The Council must include— 

(a) members of the judiciary, 

(b) 

(c) 

(d) 

(e) 

(f) 

members of the legal professions, 

civil servants concerned with the administration of the courts, 

persons with experience in and knowledge of consumer affairs, 

persons with experience in and knowledge of the lay advice sector, and 

persons able to represent the interests of particular kinds of litigants (for example, 

businesses or employees). 

(3) The functions of the Council are to include— 

(a) keeping the civil justice system under review, 

(b) 

(c) 

(d) 

(e) 

considering how to make the civil justice system more accessible, fair and 

efficient, 

advising the Lord Chancellor and the judiciary on the development of the civil 

justice system, 

referring proposals for changes in the civil justice system to the Lord Chancellor 

and the Civil Procedure Rule Committee, and 

making proposals for research. 

704 


(4) The Lord Chancellor may reimburse the members of the Council their travelling and out-ofpocket 

expenses. 67 

The Civil Justice Council comprises a full council of 26 members. In addition, it has eight committees 

comprising around 100 members. The committees undertake the council’s day-to-day activities in 

the following areas: ADR, access to justice, housing and land, clinical negligence and serious injury, 

experts, costs, rehabilitation policy, and rehabilitation rules. 

The council is supported by a small secretariat, including a chief executive officer. 

The Civil Justice Council describes its modus operandi as follows: 

The CJC policy model provides for genuine stakeholder consultation, before the 

Government consultation paper is written. Work must initially be undertaken to identify 

who the key stakeholders are, in terms of organisation, and influence within that 

organisation. 

A broad range of stakeholders are invited to a series of CJC events aimed at: 

a) Identifying the precise nature of the policy issue 

b) Agreeing the key components of the problem 

c) Agreeing how those problems will be addressed, and by who 

d) Distilling the generic problems into individual or clustered issues 

e) Acquiring and agreeing data to inform on the individual problems (if appropriate) 

f) Establishing smaller representative groups to develop proposed models to solve 

the problems 

g) Where necessary, mediating solutions with properly mandated representatives of 

all main interested parties. 

h) Reporting back to ’constituencies‘ for broader ’buy-in’ 

g) Making recommendations to Government ministers, supported by the senior 

judiciary, and major stakeholders 

h) Overseeing rules of court. 

The process is essentially overseen by Government officials, who can report to ministers 

on the inclusiveness of the consultation, and confirm that the methods used were 

appropriate. 

Research or economic analysis is conducted by agreed or recognised independent 

academics. 68 

The council adopts a number of different strategies in the development of negotiated policy 

outcomes: stakeholder forums (to discuss generic issues, mediated by CJC members and chaired by 

a senior judge or law commissioner, and conducted under the Chatham House protocol), Big Tents 

(a more focused stakeholder group convened to develop a detailed description of the nature of the 

specific problem in issue, to draft a model or plan to resolve the problem and to identify any data 

that may be required), CEO group (a senior management group established to manage a policy 

program), data (commissioned from independent academics), forensic group (a small group of six to 

eight people to examine proposed data collection models), mediation (a complex mediation involving 

multiple parties, overseen by government officials, staged over a number of meetings), agreement 

(the mediated agreement is sent to the Lord Chancellor by the Master of the Rolls with formal advice 

to make it law, and the Lord Chancellor instructs the Civil Procedure Rule Committee to make rules 

of court), Civil Procedure Rule Committee (the rule committee drafts the rules and refers back to the 

CJC on any matter requiring clarification). Mini consultations may also be conducted in circumstances 

where a mediated solution is not required (the CJC conducts consultations, works up proposals with 

government officials and submits them to the Lord Chancellor for implementation). 69 

United States 70 

The federal judiciary in the United States is authorised by Congress to prescribe the rules of practice, 

procedure, and evidence for the federal courts, subject to the ultimate legislative right of the Congress 

to reject, modify, or defer any of the rules. 71 


64 Lord Woolf, Access to Justice: Final 

Report to the Lord Chancellor on the 

Civil Justice System in England and 

Wales (1996) 304 (recommendation 

72). 

65 Department for Constitutional Affairs 

(UK), Civil Procedure Rule Committee 

Annual Report October 2005 – 

September 2006 (2007) 2. 

66 Woolf (1996) above n 64, 304 

(recommendation 71). 


68 The Modus Operandi of the Civil 

Justice Council: Designing Policy, 

Process and Law Reform from the 

Bottom up, document provided to the 

commission by Bob Musgrove, CEO 

Civil Justice Council, 7 February 2007. 

69 Ibid. 

70 See: The Rulemaking Process: A 

Summary for the Bench and Bar 

(2006) at 15 February 

2007. 

71 Rules Enabling Act, 28 USC §§ 

2071–2077 (2006). 

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The Judicial Conference, a statutory body, assists the Supreme Court by researching and 

recommending rules changes. The Judicial Conference has authority to ‘carry on a continuous study 

of the operation and effect of the general rules of practice and procedure’, 72 and may recommend 

amendment to the rules to promote: 

• simplicity in procedure 

• fairness in administration 

• the just determination of litigation and 

• the elimination of unjustifiable expense and delay. 

The Judicial Conference’s Committee on Rules of Practice and Procedure (the Standing Committee) 

reviews and coordinates the recommendations of five advisory committees, and in turn makes 

recommendations for changes to the rules to the Judicial Conference. 

Meetings of the standing committee and its advisory committees are open to the public and are widely 

publicised. All minutes of meetings, reports, public submissions and other documents are publicly 

available, and proposed amendments are published on the Judicial Conference website. 73 

Canada 

In 1996 the Canadian Bar Association’s Taskforce on Systems of Civil Justice recommended that: 

An independent national organization on civil justice reform be created for the purposes of: 

(a) collecting in a systematic way information relating to the system for administering civil 

justice; 

(b) carrying out in-depth research on matters affecting the operation of the civil justice system; 

(c) promoting the sharing of information about the use of best practices; 

(d) functioning as a clearinghouse and library of information for the benefit of all persons in 

Canada concerned with civil justice reform; 

(e) developing liaison with similar organizations in other countries to foster exchanges of 

information across national borders; and 

(f) taking a leadership role on information provision concerning civil justice reform initiatives 

and developing effective means of exchanging this information. 74 

The Canadian Forum on Civil Justice was created under the Canada Corporations Act 1998 as a result 

of the above recommendation. The formal objects of the forum are to seek to improve the civil justice 

system in ways and means including but not restricted to the following: 

• collecting in a systematic way information relating to the system for administering civil 

justice 

• carrying out in-depth research on matters affecting the operation of the civil justice system 

• promoting the sharing of information about the use of best practices 

• functioning as a clearinghouse and library of information for the benefit of all persons in 

Canada concerned with civil justice 

• developing liaisons with similar organisations in other countries to foster exchanges of 

information across national borders and 

• taking a leadership role in providing information concerning civil justice reform initiatives 

and developing effective means of exchanging this information. 

The forum consists of a board and advisory board, members of which include leading members of the 

Bar, government, court administration, the judiciary, legal academia and the lay public. 75 

706 


3. SUBMISSIONS AND CONSULTATIONS 

3.1 Consultation Paper 

Rule-making power 

Submissions generally supported maintaining the courts’ rule-making powers, and observed that the 

current system works reasonably well in ensuring the rules are amended as required. 76 The Supreme 

Court said of its rule-making power: 

It is an important part of maintaining the Court’s independence from other arms of 

government. The rule-making process operates in a responsive, practical and expeditious 

manner. The ability to draw on the collective experience of members of the Court in a 

range of practice areas is a great asset. When combined with the valuable input from the 

profession through the Rules Committee and specific consultations, the process allows 

informed, responsive and considered reform. The judges of the Court regard retention of 

the rule-making power as an inherent characteristic of their judicial function. 77 

The Transport Accident Commission (TAC) queried whether ‘institutional users of the court system, 

with large volumes of litigation, should also have a role in this process’. 78 The Law Institute of Victoria 

stated that it ‘believes that greater collaboration between the rules committees of the various courts 

will promote and facilitate harmonisation of the court rules’. 79 

The Victorian Bar’s submission stated: 

There is no good reason to disturb the existing mechanisms in which the Courts are given 

the autonomy to make their own rules, and revise them. The Victorian Bar is strongly 

of the view that rule making should remain the province of the Court itself and not the 

legislature. Each Court has a Rules Committee which consults and deals responsively with 

any problems that may arise from time to time with any deficiency in the Rules or any 

ways to improve the operation of the Rules. 80 

Harmonisation and simplification 

Submissions generally supported the principle that the rules of civil procedure in each jurisdiction 

should be uniform: 

The rules of Civil Procedure in the Supreme Court, the County Court and the Magistrates’ 

Court require reform. The change that should be implemented is that the current 

cumbersome rules should be in plain English and standardized so that they are uniform 

72 28 USC § 331 (2006). 

regardless of the jurisdiction. 81 

The LIV supports greater consistency or uniformity in the rules of civil procedure in all 

courts to enable the just, timely and cost efficient resolution of issues in civil proceedings. 

The LIV considers that this fundamental principle should underlie any reforms proposed 

and developed out of the VLRC’s Civil Justice Review. Feedback from practitioners 

indicates support for a consistent set of rules across all court jurisdictions, including 

enforcement rules and a single set of common forms across all Victorian courts. 82 

The Forensic Accounting Special Interest Group (FASIG) within the Institute of Chartered Accountants 

of Australia 

would strongly encourage greater consistency between the rules of civil procedure for the 

Supreme Court, the County Court and the Magistrates’ Court in Victoria, particularly in 

respect the use of expert witnesses. The FASIG would also like to see greater consistency 

in such procedures between Victorian courts and tribunals and those of other State and 

Federal jurisdictions. 83 

WorkCover raised the need for consistency between the courts in relation to the initial steps for 

commencing and defending proceedings. 84 

73 US Courts, The Federal Judiciary 

. 

74 Canadian Bar Association Task Force, 

Report of the Canadian Bar Association 

Task Force on Systems of Civil Justice 

(1996) 78 (recommendation 52). 

75 Canadian Forum on Civil Justice 

at 3 March 2008. 

76 Submissions CP 37 (Transport Accident 

Commission), CP 48 (Victorian 

WorkCover Authority), CP 33 

(Victorian Bar), CP 55 (Magistrates’ 



Victoria). 

78 Submission CP 37 (Transport Accident 

Commission). 

79 Submission CP 18 (Law Institute of 

Victoria). 


Victoria). 

81 Submission CP 27 (Victorian Aboriginal 

Legal Service). 


Victoria). 

83 Submission CP 25 (Institute of 

Chartered Accountants in Australia). 

84 Submission CP 48 (Victorian 

WorkCover Authority). 

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TurksLegal and AXA Australia listed the advantages of having a uniform set of rules as has been 

implemented in NSW and Queensland: 

• standardisation of court forms, lessening costs 

• standardisation of timetables for procedural steps 

• uniform interpretation of the application of rules across the inferior and superior courts 

• simplification of the process of reviewing and amending rules. 

The Mental Health Legal Centre observed that ‘different forms, processes and language in different 

jurisdictions no doubt only increase people’s confusion and incomprehension’ and submitted that 

originating processes and defences should be simplified. 85 

However, even when advocating uniformity in court processes, most people acknowledged the 

importance of maintaining simplified procedures in the Magistrates’ Court, and procedures adopted to 

achieve specific objectives in particular areas. 86 

For example, The Supreme Court stated that it 

supports efforts to harmonise Rules between courts, both within Victoria and across 

Australia. Harmonisation brings benefits of greater consistency of application across 

jurisdictions, shared jurisprudence and efficiencies for practitioners and their clients. 

However, the Court recognises that the differences in the types, volumes and complexity 

of cases brought in Victorian courts mean that strict uniformity of Rules and procedure is 

not appropriate. 87 

Similarly, WorkCover submitted: 

Any harmonisation of the rules should … have regard to any efficiencies, including costs 

benefits, which may be peculiar to a jurisdiction and supported by its rules and that 

harmonisation does not add complexity in a jurisdiction at the expense of efficiency and 

cost. 88 

The Victorian Bar made similar observations: 

The Magistrates’ Court has a simplified set of rules along the same general lines as those 

of the Supreme and County Court, which are adapted to deal with the smaller or less 

complex civil disputes which are normally determined in the Magistrates’ Court. Its field 

of work and its limited jurisdiction 89 makes it necessary that it has its own rules very much 

designed to minimise procedural requirements in order to dispose of the volume of work 

passing through that Court system. It would be inappropriate to burden litigants in the 

Magistrates’ Court with the additional costs of compliance that would flow from the rules 

required from Supreme and County Court proceedings. 90 

The Bar, however, did not believe there is a need for a greater degree of uniformity in the rules 

of the Victorian courts, ‘nor any pressing need to simply them, or to introduce a simpler initiation 

process. Further, any harmonisation or simplification of the various rules of courts can be achieved 

through existing mechanisms’. It argued it should not be assumed ‘a uniformity of rules would 

result in reduction of costs for litigants or reductions in delays’. The Bar did support uniformity 

or harmonisation of rules of court across jurisdictions in Australia ‘given that the market for legal 

services is now undeniably a national legal market (and to some extent an international legal market), 

particularly in complex commercial litigation’. 

The Magistrates’ Court reported that it has been reviewing its rules to align them with those of 

the other courts except in arbitrations for a small claim. 91 It has developed a set of new draft rules, 

substantially similar to the rules in the other courts, and with the same rule and form numbers. The 

court submitted that this will have the following benefits for litigants, whether represented or not: 

(a) They will no longer need to ascertain whether a procedural rule in this court is different 

from the corresponding rule in the other courts. In practice, the existence of differences is 

often overlooked to the disappointment of litigants. It is unwise, at least in our court, to 

assume that legal practitioners know of the differences between the rules of the courts. 

708 


(b) The learning in relation to the meaning of a rule will be common. There will be no 

need for a separate jurisprudence to develop in our court in relation to a particular rule, 

especially through litigation in the Supreme Court. 

(c) The use of common forms. This will save costs as the same document can be used in each 

of the courts. The only change is that of the name of the court. 92 

The court considered whether to abandon its notice of defence in favour of the dual process of 

appearance and defence. It decided not to adopt the procedure that applies in the higher courts 

‘because it was felt that the need to take two steps in order to defend a complaint would confuse 

some litigants in person’. The court identified one area specific to that court that should be retained 

(its judgment debt recovery process), and several areas where the court either lacks jurisdiction or 

where such procedures would not be used in the court (such as Orders 18 and 18A, which provide for 

representative and group proceedings). 

The Magistrates’ Court noted that the potential alignment of its rules with those of the other courts 

‘provides an opportunity to modernise the language used to describe processes in the courts … This is 

an opportunity to use more accessible language’. 93 

The Consumer Action Law Centre recommended that Magistrates’ Court procedures should be 

reviewed and redesigned, and the terms used to describe forms should be reconsidered. 94 Similarly, 

Edison Masillamani submitted that the ‘system should be simplified to prevent a litigant in person from 

being intimidated by complicated rules, forms and paperwork’. 95 

3.2 Responses to draft proposals 

Civil Justice Council 

In the Second Exposure Draft published on 6 September 2007 the commission set out various 

proposals for reform, including in respect of ongoing review and reform of the civil justice system. This 

included a draft proposal for the establishment of a new body, the Civil Justice Council. 

The following individuals, organisations and agencies expressed support for the establishment 

of a Civil Justice Council in submissions: the Supreme Court, the Magistrates’ Court and Dispute 

Settlement Centre of Victoria, AXA and TurksLegal, the Environment Defenders Office, the Federation 

of Community Legal Centres, IMF, the Legal Services Commissioner, PILCH, Springvale Monash Legal 

Service, State Trustees, the Law Institute of Victoria, Judge Wodak, Victoria Legal Aid, the Consumer 

Action Law Centre and QBE Insurance. 

The Federation of Community Legal Centres thought ‘the Council would play an important role in 

monitoring civil law issues and ensuring that access to justice remains a priority area for Victoria’s legal 

community’. 96 

The following agencies expressed a desire to be represented on the council: Legal Services 

Commissioner, PILCH, the Federation of Community Legal Centres, the Australian Corporate Lawyers 

Association, Victoria Legal Aid, the Magistrates’ Court and the Dispute Settlement Centre of Victoria. 

A number of organisations emphasised the need for the council to reflect the range of participants 

in the civil justice system. 97 The Australian Bankers’ Association said that ‘it is critical that not only 

business and financial services groups are represented on any such Council but also the processes and 

means by which decisions are reached by that body are truly representative of the majority of views of 

those participating on the Council’. The Federation of Community Legal Centres called for ‘a strong 

community presence’, and the Australian Corporate Lawyers Association said the interests of in-house 

lawyers and the organisations they are employed by should be represented on the council. Clayton Utz 

said that ‘it would … be important to ensure that the composition of both Councils adequately reflects 

the interests of all classes of litigant, across the full range of civil dispute resolution’. 

A number of submissions made suggestions for research and analysis that should be carried out by the 

council, and also proposed some additional functions: 

98 

• The council should have responsibility for reviewing VCAT as well as the courts. 

• The council should undertake an analysis of statistics relating to the number of default 

judgments made by courts and the circumstances in which they are made. 99 

85 Submission CP 22 (Mental Health Legal 

Centre). 

86 Submission CP 22 (Mental Health Legal 

Centre). 


Victoria). 



89 Where the amount in dispute is less 

than $100 000 (original note). 

90 Submission CP 33 (Victorian Bar). 

91 Submission CP 55 (Magistrates’ Court 

of Victoria). 


of Victoria). 


of Victoria). 

94 Submission CP 43 (Consumer Action 

Law Centre). 

95 Submission CP 15 (Edison Masillamani). 

96 Submission ED1 9 (Federation of 

Community Legal Centres). 

97 For example, Submissions ED1 18 

(Clayton Utz), ED1 29 (Australian 

Bankers’ Association). 

98 Submissions ED1 31 (Law Institute of 

Victoria), ED2 12 (Consumer Action 

Law Centre). 

99 Submissions ED1 9 (Federation of 

Community Legal Centres), ED1 26 

(Springvale Monash Legal Service). 

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• The council should undertake research on the financial, legal, psychological and 

social impact on parties both represented and self-represented, their families and the 

community. 100 The Springvale Monash Legal Service reported that its ‘experience is that 

the impact of pursuing civil litigation on individuals and families can be dire. Individuals 

can be left in financial hardship, unable to provide for their families, maintain or seek 

employment. In the interests of justice, this should be thoroughly analysed’. 101 

• The council should have responsibility for considering how the civil justice system operates 

with respect to the Charter of Human Rights and Responsibilities. 102 

• The council should assist in the education of the legal profession and judiciary about 

developments in all aspects of the civil justice system. 103 

Judge Wodak noted that ‘In order to effectively monitor the performance of the civil justice system, 

proper information gathering is needed on all aspects of civil court and tribunal activity … Without 

such information, it is very difficult, if not impossible to accurately report on what does, and what does 

not assist in the timely, effective and cost efficient delivery of civil justice’. 104 

Similarly, Judge Anderson said in relation to the proposal that the Civil Justice Council would have 

responsibility for monitoring: ‘It is important to clearly articulate the objectives for each proposal and 

the standards against which the success or otherwise of the changes are to be measured.’ 105 

Some stakeholders queried whether the council would oversee the provision of ADR services and 

schemes. 106 

In a supplementary submission the Victorian Bar said there was a need for the acceleration of civil 

justice reform as well as the creation of system wide reform that ensures that reforms support each 

other and there is education, professional collaboration as well as a clear articulation of overall 

aims and objectives. 107 In addition, it emphasised the need for funding and resourcing as well as 

government leadership and public support. The Bar also called for a significant increase in the Supreme 

Court’s capacity to track and analyse the throughput of cases under a reformed process. In particular, 

the Bar recommended that the previously proposed Court’s Statistics and Information Resources 

Centre be pursued with urgency. 

Harmonisation of rules 

The Institute of Chartered Accountants in Australia and the Consumer Action Law Centre both 

supported the commission’s proposal for greater harmonisation and simplification of court rules and 

forms. 

In particular, the Consumer Action Law Centre called for review of the Magistrates’ Court Form 4A 

Complaint, which it believes is confusing and provides insufficient information to defendants about 

their options. The centre proposed that information about obtaining interpreting and legal assistance 

be annexed to and served with all complaints, in an effort to reduce the number of ‘default judgments 

for unmeritorious claims against vulnerable Victorian consumers’. 108 

Rules committees 

During consultations it was suggested that a delegate of each rules committee, rather than the chair, 

be made an ex-officio member of each other rules committee. 

4. CONCLUSIONS AND RECOMMENDATIONS 

4.1 Rule-making process 

The rules that govern civil procedure in Victorian courts are made by the courts themselves as 

subordinate legislation. Each court delegates its rule-making power to a rules committee which then 

makes recommendations to the judges or magistrates for any rule change. The legislation does not 

prescribe who the members of the rules committees should be, or how their deliberations should be 

conducted. During the course of our consultations concerns were expressed about the inefficiencies 

inherent in having three separate committees considering amendments and reforms to identical, or 

substantially similar, rules. 

710 


Although it would be desirable in principle to have a single rules committee to review and amend rules 

in all three courts, as is the case in NSW, Queensland and the ACT, because each court deals with 

discrete practice areas the commission believes it makes sense to retain separate rules committees, 

although arrangements should be put in place to ensure there is appropriate communication between 

the committees. 

In some jurisdictions provision is made for the appointment of consumer or non-legal representatives. 

For example, the Civil Procedure Rules Committee established in England comprises representatives of 

not only the courts and the profession, but also a consumer affairs member and a lay advice member. 

Given the proposal for broad representation on the Civil Justice Council (see below), we do not 

consider any need to recommend such a provision in relation to the rules committees. 

The commission notes that the UK Civil Procedure Rules Committee (referred to above) has 

recently resolved to conduct open public meetings and to allow people to ask questions and make 

contributions at their meetings. In the United States meetings of the federal rules committees are open 

to the public and their documents are published on the internet. Insofar as this does not happen at 

present, the rules committees may wish to consider whether it would be useful to them, and more 

transparent, if meetings were open to be attended by non-members with a relevant interest. 

4.2 Harmonisation and uniformity of rules 

Other jurisdictions in Australia have recently undertaken major reviews of their court rules in order to 

achieve greater simplification, modernisation and harmonisation. New South Wales, Queensland and 

the ACT now have a single set of rules that apply in all courts. 109 In 2006 a new set of rules came into 

effect in South Australia. 110 

The commission is not persuaded that a ‘uniform’ set of rules is required in Victoria, having regard to 

the variety of areas of law and types of litigation conducted in each court. In any event, during the 

course of the present inquiry the Magistrates’ Court was in the process of drafting amendments to the 

Magistrates’ Court Rules with a view to achieving greater uniformity with the rules applicable in the 

County and Supreme Courts. 

However, we do believe that additional steps should be taken to achieve a greater level of 

harmonisation between the rules of the various courts, in particular in relation to terminology and 

forms. Greater harmonisation should not compromise the procedures adopted in particular courts or 

subject areas to achieve specific objectives, for example the procedures for dealing with small claims in 

the Magistrates’ Court. We also believe the rules of the Victorian courts would benefit from a further 

detailed review aimed at simplifying their structure and language, and bringing them in line with 

procedural rules in other jurisdictions. 

A number of the areas where specific proposals for reform are recommended in this report, for 

example in relation to expert evidence and discovery, would result in new rules which are more closely 

aligned with those presently in force in a number of other Australian jurisdictions. 

4.3 Rule-making power 

In various parts of this report it is proposed that the courts should have additional express powers to 

manage and control civil litigation, including interlocutory processes and hearings, in a variety of ways. 

For example, there are recommendations in respect of discovery, expert evidence, case management 

and time limits on parties at hearings, etc. A number of the recommendations include draft statutory 

provisions to facilitate this. 

It may be that many of the commission’s proposals could be implemented by the courts themselves, 

through new rules, rather than through legislation. This would permit any future changes to be made 

more expeditiously and with greater flexibility. However, there may be scope for argument as to 

whether some matters are within the existing rule making powers of the courts. 

A number of the commission’s recommendations seek to facilitate greater and more proactive judicial 

control of proceedings and to explicitly permit courts to impose limits on procedural steps or the 

conduct of parties, including at hearings. Legal controversy may arise as to whether some matters 

may be properly characterized as ‘procedural’ or concerned solely with the regulation of ‘practice and 

procedure’ in the courts in question. Also, as noted in chapters 1 and 5, case management decisions 

100 Submission ED1 26 (Springvale 

Monash Legal Service). 

101 Submission ED1 26 (Springvale 

Monash Legal Service). 

102 Submission ED2 10 (Victoria Legal Aid). 

103 Submission ED1 7 (Judge Wodak). 

104 Submission ED1 7 (Judge Wodak). 

105 Submission ED2 4 (Judge Anderson). 

106 Consultation with Department of 

Justice ADR Strategy Team, 17 October 

2007. 


108 Submission ED2 12 (Consumer Action 

Law Centre). 

109 Uniform Civil Procedure Rules 2005 

(NSW), Uniform Civil Procedure Rules 

1999 (Qld), Courts Procedures Rules 

2006 (ACT). 

110 Supreme Court Civil Rules 2006 (SA). 

711

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may be subject to appellate scrutiny if considered to be inconsistent with the dictates of justice, and 

case management powers may give rise to contentions of incompatibility with the right to a fair 

hearing provided for in section 24(1) of the Charter of Human Rights and Responsibilities Act 2006. 

Insofar as a number of the proposals are able to be implemented through rules of court the existing 

rule making power may be adequate to facilitate this. However, the commission is of the view that 

there would be utility in broadening the existing legislative rule making power. 

Accordingly, it is proposed that the rule making power itself should be amended to explicitly authorize 

judges of the court to make rules of court in respect of any matter relating to: (a) the powers, 

authorities, duties and functions of the court in imposing limits, restrictions or conditions on any party 

in respect of any aspect of the conduct of proceedings, 111 or (b) the management of cases, or (c) the 

referral (with or without the consent of the parties) to any form of alternative dispute resolution, or (d) 

the means by which the [proposed] overriding purpose may be furthered. 

In the case of the Supreme Court, such amendments would be to section 25 of the Supreme Court 

Act 1986. 

4.4 Ongoing review and reform 

Review and reform of the civil justice system is a complex undertaking. It is necessary to take into 

account the rights and interests of a diverse range of participants, including litigants large, small 

and self-represented, the legal profession, government and the courts. Reform initiatives may have 

unforeseen consequences, or may require modification in light of practical experience. They should 

therefore be subject to ongoing review and evaluation to ensure their objectives are being met. The 

collection of relevant data is also required to inform the reform and policy process. 

The commission proposes the establishment of a new body to carry out these responsibilities. Similar 

bodies exist in different forms in England (the Civil Justice Council), Canada (Canadian Forum on Civil 

Justice), the United States (the Judicial Conference and its standing and advisory committees) and, in 

a more limited capacity, New South Wales (Civil Procedure Working Party). The Civil Justice Council in 

England and Wales was established in accordance with the recommendations of Lord Woolf. It plays 

a pivotal role in the development of civil justice policy. It brings all stakeholders together to debate 

possible reforms and attempts to reach agreement, often through mediation, on particular initiatives 

that are then presented to the courts and government for implementation. 

It is worth noting that there are several bodies, at state and federal level, that have ongoing 

responsibility for reviewing or investigating aspects of the criminal justice system, including the 

Sentencing Advisory Committee, the Department of Justice’s Criminal Justice Steering Committee, 

Ombudsman Victoria, and the Australian Institute of Criminology. Although the courts’ rules 

committees and the Australasian Institute of Judicial Administration play an important role in 

contributing to the development of the civil justice system, we believe there is a need for a broadbased 

consultative and research body dedicated to ensuring the system is able to meet the needs of 

Victorian litigants on a long-term basis. 

Recommendations 

Rule-making process and powers 

164. The courts’ governing legislation should make provision for the constitution and operation of 

each court’s rules committee. The chair of each rules committee (or the chair’s nominee) could 

be made an ex-officio member of each other committee entitled to attend the other committees’ 

meetings. This would provide for increased communication between the three jurisdictions. 

165. The rules committees should meet jointly when considering rules and procedures which apply in 

more than one jurisdiction. This may involve a joint meeting of two or three rules committees. 

166. The power to make rules should be broadened and exercised so as to further the courts’ 

overriding purpose. A draft amendment to section 25 of the Supreme Court Act 1986 is as 

follows: 

712 


(1) The Judges of the Court […] may make Rules of Court for or with respect to the 

following: 

… 

(f) 

Any matter relating to— 

(i) the practice and procedure of the Court; or 

(ii) the powers, authorities, duties and functions of the officers of the Court; 

(iii) the powers, authorities, duties and functions of the Court in imposing 

limits, restrictions or conditions on any party in respect of any aspect of the 

conduct of proceedings; or 

(iv) 

(v) 

(vi) 

the management of cases; or 

the referral (with or without the consent of the parties) to any form of 

alternative dispute resolution; or 

the means by which the Overriding Purpose may be furthered. 

Equivalent amendments to the County Court Act and the Magistrates’ Court Act would also be 

required. 

Court rules 

167. The legislation and rules of civil procedure in all three courts should be reviewed to: 

• achieve greater harmonisation between courts, including standardisation of the terminology 

used to describe procedural steps, and standardisation of court forms. In particular there 

should be one form for commencing proceedings and one for making interlocutory 

applications 

• simplify the structure and ordering of the rules 

• make greater use of plain English. 

168. Each court should clarify the circumstances in which practice notes and directions are made, and 

consolidate and organise the content and publication of existing practice notes and directions. 

Ongoing reform 

169. A new body, called the Civil Justice Council, with ongoing statutory responsibility for review and 

reform of the civil justice system, should be established. Its purpose would be to investigate ways 

to make the civil justice system more just, efficient, and cost effective. 

170. The Civil Justice Council would have the following functions: 

• to monitor the operation of the civil justice system generally 

• to identify areas in need of reform 

• to conduct or commission research 

• to bring together various stakeholder groups with a view to reaching agreement on reform 

proposals, including through the use of mediation and other methods 

• to recommend reforms, including amendments to statutory provisions and rules governing 

the civil justice system 

• to facilitate education programs about developments in the civil justice system. 

171. The Civil Justice Council should also assist in the implementation of the reforms proposed by the 

Victorian Law Reform Commission and monitor the impact of such reforms, which may include: 

• developing specific pre-action protocols for each relevant area (for example, commercial 

disputes, building disputes, medical negligence, general personal injury, etc) 

111 An alternative formulation is: ‘To 

allow obligations, prohibitions and 

restrictions to be imposed on any 

party for the purpose of furthering the 

[proposed] overriding purpose’. 

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• monitoring the operation of the protocols and general standard of pre-action conduct 

so that any modifications considered necessary in the light of practical experience can be 

implemented 

• overseeing and developing further the operation of pre-trial examinations, including: 

– developing a general code of conduct in respect of examination conduct 

– developing codes of practice to govern the use of pre-trial examinations in 

particular litigation contexts 

– overseeing the establishment of education and training programs to assist 

practitioners and other interested parties to develop good examination practices 

– reviewing the provisions relating to pre-trial examinations with a view to assessing 

their effectiveness and costs consequences, and considering possible changes to 

the existing scheme. The Council should also consider and make recommendation 

on the question of whether pre-trial examinations should be permissible in 

matters within the jurisdiction of the Magistrates’ Court, and if so, whether any 

modifications to the general scheme are required in relation to such matters; 

– constituting a specialist Costs Council to oversee and monitor issues to do with 

legal costs 

• reviewing ADR processes in all three courts 

• scrutinising the operation of the Justice Fund 

• assisting in a review of the rules of civil procedure. 

172. The Civil Justice Council should comprise members from a broad range of participants in the civil 

justice system and stakeholder groups, including: 

• members of the judiciary 

• members of the legal profession 

• public servants concerned with the administration of the courts 

• persons with experience in and knowledge of consumer affairs 

• persons with experience and expertise relevant to particular types of litigation (for example 

representatives from the business community, insurance industry, consumer organisations, 

and the community legal sector). 

173. The chair and members of the Civil Justice Council should be appointed by the Attorney-General 

after calling for nominations from the courts and relevant stakeholder groups. 

174. Members of the Civil Justice Council would be appointed for their expertise and experience, and 

not necessarily as representatives of the entities or organisations for which they work. 

175. Members of the Civil Justice Council would serve in an honorary capacity but would be 

reimbursed for expenses etc. There would be a secretariat comprising a chief executive officer 

and support staff. 

176. The Civil Justice Council should be able to co-opt people to form committees to focus on specific 

areas under review. 

177. The Civil Justice Council should be entitled to an allocation of funds from the Justice Fund to 

assist it to carry out its functions. 

714 


5. ISSUES FOR FURTHER CONSIDERATION 

5.1 Introduction 

In the Consultation Paper we sought views on whether reform was needed in a range of areas, 

including the following: 

• the rules about pleadings in civil proceedings 

• the rules and procedures which allow non-parties to participate in civil proceedings 

• rules about enforcement of judgments and orders 

• the rules and procedures for appeals from pre-trial decisions 

• the rules and procedures for civil appeals 

• the law relating to tax deductibility of legal costs. 

Views were sought on the problems with the current rules in the above areas and what changes 

should be implemented. A summary of the views expressed to the commission is set out below 

together with additional concerns and reform suggestions that have been raised in the submissions. 

These matters are not dealt with in the commission’s final recommendations. They may be considered 

in the second phase of the commission’s civil justice review or by the proposed Civil Justice Council. In 

some areas reforms could be implemented without the need for further inquiry. 

5.2 Pleadings 

A complaint common to a number of submissions was that serious problems with pleadings are 

frustrating the fundamental role that pleadings are intended to play in the litigation process. 

Problems 

The main complaints brought to the commission’s attention were: 

112 

• pleadings are frequently word processed precedent documents 

• pleadings are often vague, formulaic and too broad to be of any assistance in identifying 

the fundamental issues between the parties 113 

• pleadings are deliberately evasive and disguise the real issues to be determined between 

the parties or omit fundamental information due to inadequate instructions or tactics 114 

• pleadings are sometimes prolix and do not set out in summary form the material facts as 

prescribed by the rules in the various courts 115 

116 

• damages claims are often not properly quantified 

• pleadings do not adequately inform a party of the case they have to meet, do not assist 

in the supervision of a case and do not assist with the operation of the doctrines of issue 

estoppel and res judicata 117 

118 

• the pleadings process does not properly facilitate the information that a case generates 

119 

• pleadings are frequently ignored as the litigation progresses 

• significant resources are devoted to interlocutory fights about pleadings—for example, 

sufficiency of pleadings, whether a claim should be allowed to stand at all, amendment of 

pleadings and compliance with the rules 120 

• pleadings are often interpreted strictly by the court and this encourages interlocutory 

disputes 121 

• the cost of interlocutory proceedings to enforce compliance is significant, inefficient and 

not productive to bringing about an early resolution of the dispute 122 

• interlocutory fights take place at the formalistic level and do not deal with the substance of 

the issues 123 

112 Submissions CP 37 (Transport 

Accident Commission), CP 21 (Legal 

Practitioners’ Liability Committee), CP 

48 (Victorian WorkCover Authority). 


Commission). Similar criticism was 

made by the Victorian Bar (submission 

CP 33). The Victorian WorkCover 

Authority noted that pleadings are 

precedent driven and are expressed 

sufficiently broadly so as to apply to 

most common claims but provide 

little substantive information as to 

the key allegations made by the 

plaintiff: Submission CP 48 (Victorian 


114 See submissions CP 33 (Victorian 

Bar), CP 37 (Transport Accident 

Commission). The Australian Law 

Reform Commission has suggested 

that ‘lawyers frequently use pleadings 

tactically and, for example, fail to 

admit matters pleaded that they know 

to be true or make allegations that 

they cannot prove at hearing’: See 

Australian Law Reform Commission, 

Managing Justice: A Review of the 

Federal Civil Justice System (2000) 

[7.166]. 

115 See submission CP 33 (Victorian Bar). 

Christopher Enright also noted that 

pleadings often fail to give a good 

description of the case or to define 

the issues accurately and precisely: 

submission CP 50 (Christopher 

Enright). 

116 Submission CP 21 (Legal Practitioners’ 

Liability Committee). 

117 Submission CP 50 (Christopher 

Enright). 


Enright). 


Commission). 

120 Submissions CP 33 (Victorian Bar), 

CP 47 (Group Submission), CP 37 

(Transport Accident Commission). 


Enright). 

122 Submissions CP 37 (Transport 

Accident Commission), CP 47 (Group 

Submission). 


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• fights about pleadings are often brought by defendants seeking to delay the process and 

discourage plaintiffs by forcing them to incur costs at an early stage 124 

• a practice has developed of serving requests for further and better particulars that are 

oppressive and serve no real purpose because the parties are already aware of each other’s 

cases and are able to properly prepare 125 

126 

• amendments to pleadings occur frequently and sometimes as late as at trial 

• the courts are reluctant to require further and better particulars to be provided in relation 

to matters under the Accident Compensation Act 1985 on the basis or assumption that 

the parties by and large know what the matter is about, by reason of the pre-litigation 

process. 127 

Reform suggestions 

The submissions were divided about the best way to address these problems. The commission notes 

that significant reforms have been made to pleadings rules in other jurisdictions. These reforms have 

informed many of the suggestions made in submissions. 128 Some of the reform ideas proposed in the 

submissions are summarised here. 

Abolition of pleadings 

It was suggested that consideration should be given to abandoning the use of pleadings altogether. 

Instead, a plaintiff’s cause of action could be articulated in a summary with an affidavit deposing to 

the relevant evidence relied upon to prove the case. It was recommended that this occur before a 

proceeding is filed in court. 129 Generally, however, the abolition of pleadings was not supported in the 

submissions. 130 

Reform to the way pleadings are drawn 

A range of reform ideas was proposed in relation to the way pleadings are drawn including: 

• simplifying and focusing the scope of pleadings 

• the standardisation and simplification of rules about pleadings in all jurisdictions 131 

• consideration of whether the use of terms other than ‘complaint’ and ‘default’ might lead 

to better understanding 132 

• the inclusion of information about legal and other services (for example, financial 

counselling) with a complaint as well as other documents relating to enforcement 133 

• consideration of a more narrative form setting out the factual matters on which a claim 

or defence is based. Pleadings could include legal arguments or contentions of law that 

emerge from the facts alleged. In addition, relevant legal principles could be set out as well 

as a more comprehensive statement of the relief that is sought. 134 

A more narrative style of pleadings was opposed in some of the submissions. 135 

• the introduction of a requirement in the rules, or a practice note, that the parties prepare a 

list of agreed issues which are the core issues falling for determination in the proceeding. 

To the extent that the parties cannot agree they should file a separate list of additional 

core issues which they contend fall for determination. 136 

• the use of standard forms of referral of disputes to the courts in discrete circumstances 

such as those under the Accident Compensation Act 1985 137 

• the use of a more abbreviated pleadings process in some situations perhaps comprising 

points of claim and points of defence. However, it was noted that this may be a matter 

better considered in case management. 138 

• consideration as to whether the more abbreviated approach of the Family Court should be 

adopted in civil proceedings generally 139 

• the use of a short statement of claim or defence and a basic affidavit in support. It was 

suggested that this would enable the court to give summary judgment (on the papers) 

where appropriate. 140 

• whether issues in dispute could be narrowed by requiring the parties to expressly admit or 

deny allegations, and where a denial occurs to provide sufficient particulars. 141 

716 


One submission cautioned against pleadings reforms that 

would ‘front-load’ the work to be undertaken in a litigation 

process. 142 

Greater use of case management and overriding objectives to 

control pleadings 

It was suggested that: 

• the use of overriding obligations would be ‘useful 

in regard to disputes concerning pleadings and 

particulars’ 143 

• an early directions hearing to define issues would 

be useful for improving comprehensibility of 

pleadings 144 

• a docket judge conducting general supervision 

and case management would be in a better 

position to comment on or point out to parties any 

deficiencies or inadequacies of pleadings and to 

address any concerns 145 

• a rule should be adopted in complex cases that 

would enable the court to take action against 

seriously inadequate pleadings 146 

• the connection between the admissions of fact 

and law in pleadings and exchanged material in 

the pre-litigation process needed to be recognised 

in any subsequent docket or other management 

process. It was suggested that at present the two 

processes occur without reference to each other. 147 

The commission has recommended the introduction of 

overriding obligations as well as considerably broader case 

management powers generally. 

Verification or certification 

The submissions were divided about whether the certification 

or verification of pleadings is a good idea. On the one hand 

it was suggested that verification focuses the mind of the 

practitioner on the merits of the case at the outset and limits 

the possibility that spurious claims or defences will be filed. 148 

On the other hand verification was opposed for the following 

reasons: 

• significant care is exercised in preparing pleadings 

which are often settled by counsel 149 

• if disciplinary action is needed there are sufficient 

professional and ethical obligations on legal 

practitioners which could be utilised 150 

• when counsel ‘signs’ a pleading he or she is already 

subject to various ethical obligations concerning 

the veracity and accuracy of the pleading which 

in practical terms have a similar effect on the 

practitioner 151 

• if the claim is unmeritorious the usual expectation 

is for an order for costs and possibly indemnity 

costs 152 

• the certification requirements in NSW have made 

little difference to the types of claims which are 

commenced or defended 153 


Enright). 


126 Submissions CP 47 (Group 

Submission), CP 50 (Christopher 

Enright). 



128 The key reforms were canvassed by 

the Victorian Bar: see Submission CP 

33. Reforms have been implemented 

in the UK and recommended by the 

Law Reform Commission of Western 

Australia: Review of the Criminal 

and Civil Justice System in Western 

Australia, Final Report No 92 (1999), 

[10.3]). See also the Supreme Court 

of NSW, Practice Note No. SC Eq 

3: Supreme Court Equity Division— 

Commercial List and Technology 

and Construction List (2007) 

at 11 February 2008, and Magistrates’ 

Court Civil Procedure Rules 1999 r 

9.02 as well as the processes in the 

Australian federal courts. 

129 Submission CP 5 (Confidential, 

permission to quote granted 4 

February, 2008). 

130 See Submissions CP 33 (Victorian Bar), 

CP 47 (Group Submission), CP 4 (Travis 

Mitchell), CP 21 (Legal Practitioners’ 

Liability Committee). 




Law Centre). 


Law Centre). 

134 Submission CP 47 (Group Submission). 

This submission notes that this 

approach may require some relaxing 

of the traditional distinctions between 

pleading of fact and law and also 

between pleadings of fact and matters 

of evidence, although it noted that the 

distinction is less observed today than 

in the past. 

135 Submission CP 33 (Victorian Bar), 

CP 42 (Confidential submission, 


January 2008). 



WorkCover Authority). It was 

suggested that this may be possible 

where a jurisdiction is largely governed 

by a statutory authority (such as the 

Victorian WorkCover Authority) and 

where there is extensive consultation 

and liaison processes between the 

VWA, plaintiff lawyer groups, the Law 

Institute of Victoria and the courts. 

138 Submission CP 47 (Group submission). 

AXA and TurksLegal also suggested 

that particular cases may be suitable 

for a short form of pleadings: see 

submission ED1 22 (AXA and Turks 

Legal). 

139 Submission CP 10 (Peter Mair). 

140 Submission CP 31 (Victoria Legal Aid). 

141 Submission ED1 22 (AXA and 

TurksLegal). 

142 Submission CP 47(Group Submission ). 



145 Submission CP 42 (Confidential 

Submission, permission to quote 

granted 16 January 2008) 


The Bar provided the example of r 18 

of the UK Civil Procedure Rules that 

enables the court to order a party 

to: a) clarify any matter which is in 

dispute in the proceeding; and b) give 

additional information in relation to 

any such matter, whether or not the 

matter is contained or referred to in a 

statement of case. 


Commission). 

148 See submissions CP 47 (Australian 

Corporate Lawyers Association), CP 46 

(Telstra Corporation). It was suggested 

that Victoria should introduce 

certification provisions similar to s 

47 of the Legal Profession Act 2004 

(NSW). 





Victoria). 

153 Submission CP 21 (Legal Practitioners’ 

Liability Committee). This comment 

was based on the committee’s 

litigation experience in NSW and 

Victoria. 

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• because parties often have an imperfect understanding of what is contained in their 

pleadings (even when they have read them before filing), verification would need 

to involve a practitioner explaining the contents of pleadings and ensuring that the 

party understood the explanation and agreed with the contents of the document. The 

Magistrates’ Court argued that this would be a very time consuming and expensive 

exercise for little overall result. 154 

The commission’s recommendations in relation to the certification of the merits of allegations made in 

pleadings are set out in Chapter 3 of this report. 

Defences 

Some of the submissions supported the recent Magistrates’ Court defence reforms. 155 The Magistrates’ 

Court now requires defendants who deny an allegation to state their reasons for doing so; and if they 

intend to put forward a different version of events from that given by the plaintiff, they must state 

their own version. It was argued that consideration should be given to adopting these reforms in the 

superior courts. 156 An alternative view was that these reforms should be abolished in the Magistrates’ 

Court because they were complicated in practice and added little, if any, value. Instead it was argued 

that the length of the notice of defence had been extended without providing any substantive 

information to either the plaintiff or the court. 157 

Another submission cautioned against providing court registries with the power to reject defences 

summarily out of concern that the registry may fail to understand that certain denials are unable to be 

supported by particulars. 158 

Limitation on the amendment of pleadings 

The Law Institute called for greater limitation on the amendment of pleadings. 159 A contrasting 

view was that the existing rules were satisfactory and that there was a significant body of case law 

concerning when amendment may or may not be granted. It was further argued that costs orders 

adequately compensated any prejudice or disadvantage suffered by amendment. It was suggested, 

however, that consideration should be given to whether and in what circumstances a party seeking to 

amend a pleading should be called on to justify that request. 160 

Annexing documents 

Some submissions expressed support for annexing documents to pleadings, 161 while others argued 

it was too difficult to define the type of documents to annex or to contain the documents to a 

reasonable limit. 162 It was further suggested that annexing documents may lead to vague pleadings or 

require parties to go on a ‘search and find’ mission if large documents are annexed to pleadings. 163 

Enforcement and interlocutory disputes 

Generally the submissions called for a more robust approach to interlocutory disputes about pleadings. 

The Victorian Bar, the Legal Practitioners’ Liability Committee, the Law Institute and Slater & Gordon 

were all in favour of stricter compliance with procedural timetabling requirements. 164 A further 

suggestion was to amend the rules so that parties initiating a pleadings dispute would not be awarded 

costs unless they could show that the pleading caused substantial prejudice to the running of the 

trial. 165 

Other general suggestions 

Mr Enright called for consideration of a new pleadings process comprising statements of 

representation, law, evidence, facts, discretions, claim and disclosure as well as the preparation of 

amalgamated statements for court. 166 This process would require the plaintiff to plead arguments in 

support of propositions and provide evidence in support of material facts. The defendant would be 

required to offer an alternative version of the facts and indicate evidence that might prove it. Enright 

suggested that if there was information relevant to the case that was not otherwise disclosed, it 

should be contained in a statement of disclosure. He emphasised that pleadings reforms should focus 

on the management of information that was generated. 167 

The submission from e-law suggested that the electronic preparation and exchange of pleadings with 

the court and by the parties would save costs. 168 

5.3 Non-party participation in proceedings 

The commission has received numerous detailed submissions relating to the issue of non-party 

participation in litigation, with particular emphasis on the role of amicus curiae (friend of the court). 

718 


Background 

An amicus curiae offers the court advice in relation to questions 

of law or fact which may not otherwise have been brought 

to its attention. This person is not a party to the proceedings 

and typically cannot file pleadings, lead evidence, examine 

witnesses or be interrogated. 169 An amicus curiae is not bound 

by the outcome of the proceedings, has no right of appeal and 

is not liable for costs. 170 

No specific provision is made for the appointment of amici 

curiae in the Supreme, County or Magistrates’ Court rules 

in Victoria. Nor is there any guidance in the various court 

rules about what factors will be considered by the court in its 

assessment of an amicus curiae application. 171 The court has an 

implied or inherent power to grant an amicus curiae leave to 

make a submission on a question of fact or law. 

Two submissions suggested that the introduction of the 

Victorian Charter of Human Rights and Responsibilities Act 

2006 (The Charter) has increased the urgency of the need 

for reform. 172 Although the Charter makes provision for the 

involvement of interveners and amici curiae, and joinder by 

the Attorney-General and the Victorian Equal Opportunity and 

Human Rights Commission, it was suggested that the expertise 

of other non-parties is also likely to be useful in the context of 

the development of Charter jurisprudence. 173 The submissions 

referred to the increase in non-party participation in litigation 

in countries where human rights legislation has already been 

introduced. It was predicted that a similar increase will occur in 

Victoria and that it is therefore timely to consider reform. 174 

Concerns raised in the submissions 

Generally, the submissions supported a broader role for amici 

curiae in public interest litigation 175 and were critical of the 

status quo. 176 Criticism was directed at the vagueness of the 

law and costs rules, all of which were seen to discourage 

legitimate ‘public interest’ participation in court processes. 

Fitzroy Legal Service suggested that ‘[a]micus applications are 

rarely made because those who may consider making them are 

unable to ascertain with any degree of certainty the likelihood 

of their application succeeding’. 177 

The submission from the Human Rights Law Resource Centre 

and Blake Dawson Waldron identified some of the problems: 

• There is a lack of clear rules or procedures with 

respect to applications for leave to appear as 

amicus, and the factors the court will consider in 

determining such applications. It argued that this 

has led to inconsistent approaches being adopted 

by the courts. Amicus curiae applicants are often 

community organisations or non-government 

organisations with limited resources and are put 

to significant expense in preparing an application 

without the benefit of clear guidelines. 

• The court often fails to provide reasons to explain 

why an amicus application is granted or refused 

and this makes it difficult to determine the weight 

given by the court to the factors it did consider in 

reaching its decision. 


of Victoria). 


CP 47 (Group Submission). The 

Magistrates’ Court now requires a 

defendant who denies an allegation 

to: a) state their reasons for doing so; 

and b) if they intend to put forward a 

different version of events from that 

given by the plaintiff, they must state 

their own version. 



WorkCover Authority). WorkCover did, 

however, indicate that the particulars 

requirement should be maintained. 

158 Submission CP 4 (Travis Mitchell). 

159 CP 18 (Law Institute of Victoria). 


161 Submissions CP 18 (Law Institute of 

Victoria), CP 27 (Victorian Aboriginal 

Legal Service). Also see Submission 

CP 11 (Dibbs Abott Stillman), which 

proposed an alternative regime for 

the issuing of proceedings requiring 

an affidavit in support of proceedings 

setting out the facts that give rise to 

a cause of action and exhibiting all 

supporting documents. 

162 Submission CP 55 (Magistrates’ 

Court of Victoria).By way of example 

the Magistrates’ Court referred to 

a dispute involving a joint venture 

agreement which could run into 

hundreds of pages and would simply 

be too much to attach to a complaint. 



CP 21 (Legal Practitioners’ Liability 

Committee), CP 20 (Slater & Gordon). 



February 2008).It was suggested that 

amendment to pleadings before trial 

is commonplace and that allowing 

amendment two years before trial 

seems useless. 


Enright). 


Enright). 

168 Submission CP 19 ( Australia 

Pty Ltd). 

169 See Submission CP 26 (Human Rights 

Law Resource Centre and Blake 

Dawson Waldron). 

170 See Submission CP 26 (Human Rights 

Law Resource Centre and Blake 

Dawson Waldron). 

171 The rules do make provision for 

the addition or joinder of a party. 

However, these rules do not strictly 

apply to an amicus, who is not a 

party to a proceeding. Instead, the 

appointment of an amicus is entirely 

within the discretion of the court. The 

court has an implied or inherent power 

to grant an amicus leave to represent 

an interest or make a submission on a 

question of fact or law. See comments 

by Brennan CJ in Levy v The State of 

Victoria & Ors 1997] 189 CLR 579. 

172 See Submissions CP 30 (Tanya 

Penovic), CP 26 (Human Rights Law 

Resource Centre and Blake Dawson 

Waldron). 

173 Submission CP 30 (Tanya Penovic). 

She noted that the Charter is to 

be interpreted with reference to 

international law and the judgments 

of domestic, foreign and international 

courts and tribunals relevant to human 

rights. She suggested that the small 

amount of domestic human rights 

jurisprudence means that it is likely 

that experts in international law will be 

called on to participate in proceedings 

concerned with the Charter. 

174 Tanya Penovic referred to Canada 

(Charter of Human Rights and 

Freedoms 1982) and the UK (Human 

Rights Act 1998): Submission CP 30 

(Tanya Penovic). 

175 See Submissions CP 22 (Mental Health 

Legal Centre), CP 30 (Tanya Penovic), 

CP 26 (Human Rights Law Resource 

Centre and Blake Dawson Waldron), 

CP 44 (Fitzroy Legal Service), CP 31 

(Victoria Legal Aid), CP 50 (Christopher 

Enright). The submissions from 

WorkCover and the TAC indicated 

that the incumbent regime is adequate 

to deal with issues relating to the 

intervention of non-parties. 

176 Submissions CP 30 (Tanya Penovic), 

CP 43 (Consumer Action Law Centre), 

CP 26 (Human Rights Law Resource 

Centre and Blake Dawson Waldron), 

CP 44 (Fitzroy Legal Service), CP 50 

(Christopher Enright). 

177 Submission CP 44 (Fitzroy Legal 

Service). 

719

Chapter 12 



• Applicants must attend court on the day of the heading fully prepared to participate in the 

proceeding (with both written and oral submissions, if both are sought to be made) with 

no certainty about whether they will be granted leave. In addition, parties are also likely to 

have prepared a reply which will not be needed if leave is not granted. 

• The cost of participating as amicus curiae is significant (even if as a component of a pro 

bono budget). If the application is not granted there is a significant waste of resources that 

could have been otherwise allocated. 

• If leave is granted an adjournment may be sought resulting in further delay. 

• The court must hear an amicus curiae application in full rather than by outline prior to the 

substantive hearing. 

• There is a risk that an amicus applicant could be subject to a cost order. This may act as a 

deterrent to participation. 

Reform ideas proposed in the submissions 

The submissions suggested the following ideas for reform of the relevant rules: 

• Clear guidelines should be introduced (either through rules of court or practice note) 

about the pre-conditions that need to be met before amicus curiae participation is 

allowed, as well as parameters for participation, timelines and the appropriate form of the 

application. 178 

• The guidelines should provide that an amicus curiae application is made by way of 

summons and supporting affidavit which annexes a copy of the submissions. 179 

• Written submissions should be preferred unless particular circumstances indicate the need 

for oral submissions. 180 

• The guidelines should set out the factors that the court will take into account in 

considering whether or not to grant leave. 181 The submission from the Human Rights Law 

Resource Centre suggested that such factors should include: 

– whether the case raises issues of public importance, or formulates or elucidates 

principles of law 

– whether the applicant has some expertise, knowledge, information or insight 

that the parties are not able to (‘could’) or willing to (‘would’) provide 

– whether the court will be significantly assisted by the submission of the amicus 

curiae 

– whether it is in the interests of justice that the amicus curiae be permitted 

to make its submissions (taking into account issues of efficiency of the court 

process, delay to the parties, cost to other parties) 

– the particular circumstances of the case. 

• The court should be required to provide reasons for its decision on an amicus curiae 

application. 182 

• The appointment of amicus curiae should occur at least two weeks prior to the substantive 

hearing. 183 

• The court should have discretion to grant leave on a conditional basis or otherwise impose 

conditions on the scope of amicus curiae participation (for example limiting participation to 

written submissions or the time that will be allowed for oral submissions). 184 

• There should be clear guidance as to the effect of multiple amicus applications being made 

in respect of a single proceeding. 185 

• Costs relating to the application should not be awarded against an amicus curiae applicant 

whose application is in the ‘public interest’ unless the application comprises an abuse of 

the amicus process. 186 

The commission notes that Tanya Penovic supported protecting litigants from bearing the 

cost of non-party participation. She suggested this may involve the introduction of costs 

orders against amici curiae with respect to the matters raised in their submissions. 187 

720 


Penovic recommended that the commission have regard to 

previous Australian Law Reform Commission conclusions in 

relation to the intervention of non-parties, 188 as well as to the 

proposals put forward by Justice Kenny. 189 

Other submissions called for formal amendments to the rules 

of civil procedure in relation to the participation of non-parties 

generally. Victoria Legal Aid suggested that ‘the rules should be 

amended to allow non-parties to pro-actively intervene in test 

cases when it is in the public interest to do so. 190 Christopher 

Enright’s submission proposed that the role of amicus curiae 

be institutionalised through the Office of the Public Advocate 

(OPA). He argued that the OPA could make a public interest 

contribution to any questions of law and ensure that issues 

that the court may have missed are brought to its attention. 191 

5.4 Enforcement of judgments and orders 

We received numerous submissions raising concerns about the 

enforcement of judgments through the Victorian courts and 

the Sheriff’s Office. 192 It was suggested that the enforcement 

system should be reviewed to ensure that it functions fairly and 

more efficiently. It was further suggested that the current civil 

debt enforcement process is being abused and is unable to 

serve the interests of both creditors and debtors. 193 

Reform ideas proposed in the submissions 

The seizure of property issued by the Magistrates’ Court 

The Law Institute argued that consideration should be given 

to amending section 111 of the Magistrates’ Court Act 1989 

to ‘remove the restriction which currently limits the execution 

by a Sheriff of a warrant to personal property’. 194 This 

amendment was also supported by the Magistrates’ Court, 

which noted that ‘the existing restriction probably reflects 

the historical situation of a very limited civil jurisdiction. But a 

current jurisdictional limit of $100,000 renders the restriction 

pointless’. 195 

The Law Institute argued that the Sheriff should be required 

to sell personal property in order to satisfy a judgment debt 

before selling any real property. In addition, it suggested that 

it would not oppose a limitation on the right to sell real estate 

if the amount owed to the judgment creditor was a ‘trifling 

sum’. 196 

The seizure and sale of property in the Supreme and County 

Courts 

Pursuant to section 42 of the Supreme Court Act 1986 the 

Sheriff is prevented from seizing any property of a judgment 

debtor which would be exempt from seizure if the debtor 

were made bankrupt. The Law Institute expressed concern 

about the lack of a mechanism to challenge certain decisions 

of the Sheriff. 197 It recommended that rules similar to those 

for third parties claiming ownership of seized goods should be 

introduced in Victoria. The Law Institute also expressed some 

concern about the complex procedures that are required to 

achieve the Sheriff’s sale of a judgment debtor’s interest in real 

estate. 198 

178 Submissions CP 26 (Human Rights Law 


Waldron), CP 30 (Tanya Penovic). 

179 Submission CP 26 (Human Rights Law 


Waldron). 


181 Submissions CP 26 (Human Rights Law 


Waldron), Submission CP 30 (Tanya 

Penovic). 



Waldron). 



Waldron). 



Waldron). 



Waldron). 



Waldron). 


188 Such ALRC reports include: Standing 

in Public Interest Litigation, Report No 

27 (1985); Equality Before the Law: 

Women’s Equality, Report No 69, Part 

2 (1994); Beyond the Door-keeper: 

Standing to Sue for Public Remedies, 

Report No 78 (1996); The Judicial 

Power of the Commonwealth: A 

Review of the Judiciary Act 1903 and 

Related Legislation, Report No 92 

(2001) as cited in Submission CP 30 

(Tanya Penovic). 

189 Justice Susan Kenny, ‘Interveners and 

Amici Curiae in the High Court’ (1998) 

20 Adelaide Law Review 159, 169–71. 


191 See submission CP 50 (Christopher 

Enright). Sir Anthony Mason suggests 

the establishment of an office of 

Advocate General to widen advice 

to the court and indirectly provide a 

mechanism for receipt of advice from 

experts. He acknowledges that the 

idea might not receive much support. 

See Sir Anthony Mason, ‘Interveners 

and Amici Curiae in the High Court: 

A comment’ (1998) 20 Adelaide Law 

Review 173, 176. 

192 Submissions CP 18 (Law Institute of 

Victoria), CP 59 (Springvale Monash 

Legal Service), CP 43 (Consumer 

Action Law Centre). 

193 Submissions CP 59 (Springvale Monash 

Legal Service), CP 43 (Consumer 

Action Law Centre). 


Victoria). 

195 See Submission CP 55 (Magistrates’ 



Victoria). 

197 The Law Institute argued that an action 

in trespass is not the appropriate 

mechanism for testing whether or not 

goods should be exempt, and that 

a Sheriff should not be at risk of an 

action in damages: Submission CP 18 

(Law Institute of Victoria). 


Victoria). 

721

Chapter 12 



General concerns 

The Law Institute suggested the following issues be considered: 

• Civil warrants issued by judgment creditors should be regarded as less important than 

warrants executed by the Sheriff. 

• The priority with which civil warrants are executed: the Law Institute recommended that a 

creditor who incurs costs should gain priority. 

• The Sheriff’s limited right of entry: subject to some qualifications judgment debtors are 

entitled to refuse the Sheriff entry to their home. The Law Institute submitted that forced 

entry should be permitted to seize non-exempt property where it is known that there are 

valuable assets in the house of a debtor. It argued that such entry should be approved by 

the court, with the judgment debtor being given an opportunity to reply. 

• The Sheriff’s powers of entry, seizure and sale should be no less than those in other states 

and there should be uniformity of processes. 

• Adequate resourcing of the Sheriff’s office to enable it to execute civil warrants in Victoria: 

The Law Institute was concerned that without adequate resources, judgment creditors 

may increasingly turn to bankruptcy and winding up or recovery processes outside the 

legal system. 199 

5.5 Victorian Civil and Administrative Tribunal 

The Victorian Civil and Administrative Tribunal (VCAT) did not fall within our terms of reference, but as 

it plays an important role in the civil justice system, people with whom we consulted raised a number 

of issues about its operation and jurisdiction. Concerns were expressed about VCAT’s inability to 

enforce its judgments and about its jurisdiction overlapping with that of the courts. 

Enforcement of orders 

VCAT does not have any statutory power to enforce its orders. As such, enforcement of VCAT orders 

must occur through the Victorian courts. 

Pursuant to section 121(1) of the Victorian Civil and Administrative Tribunal Act 1998 the appropriate 

court for enforcement of a monetary order that does not exceed $100,000 is the Magistrates’ Court. 

In order to enforce orders through the Magistrates’ Court, creditors must file a copy of the VCAT order 

certified by a presidential member or the principal registrar and an affidavit as to the amount not paid 

under the order. On filing, the order is deemed to be an order of the Magistrates’ Court and may be 

enforced through the Magistrates’ Court processes. If the order is a non-monetary order it must be 

enforced through the Supreme Court pursuant to a similar process (section 122 of the Victorian Civil 

and Administrative Tribunal Act 1998). 

It has been suggested that the process of lodging VCAT orders with the Magistrates’ Court or the 

Supreme Court for enforcement purposes is time consuming, costly and unnecessary. 

Overlapping jurisdiction 

VCAT does not have an inherent jurisdiction. The Victorian Civil and Administrative Tribunal Act 1998 

provides VCAT with both original and review jurisdiction. In some matters VCAT has shared jurisdiction 

with courts. 200 Where VCAT has exclusive jurisdiction, its jurisdiction is unlimited. 

Legislative provisions enable VCAT to make an order striking out all or any part of a proceeding if it 

considers that the subject matter of the proceeding would be more appropriately dealt with by a body 

other than VCAT. 201 However, this provision cannot be used to refer a matter to another body if it is a 

matter over which VCAT has exclusive jurisdiction. 202 In addition, pursuant to section 29 of the Act a 

judge of the Supreme Court may be appointed as an acting member of VCAT on a temporary basis. 

VCAT’s president is a Supreme Court judge and its vice presidents are County Court judges. Each 

division is headed by a County Court judge. As full time members the president and vice presidents are 

able to exercise the powers of the Supreme and County Courts respectively. 203 

It has been submitted that problems arise where VCAT has exclusive jurisdiction over parts of a 

broader dispute pending in another court. Although it may be undesirable for claims to be brought in 

different forums, it is often difficult to ascertain the most appropriate forum for the case. 

722 


Other concerns raised in the submissions 

It has been suggested the following issues should be further 

considered: 

• whether any VCAT processes and procedures need 

reform 204 

• the issue of transfers of matters under the Fair 

Trading Act 1999 to VCAT. It was submitted 

that there is uncertainty surrounding the award 

of Magistrates’ Court costs where a matter is 

transferred to VCAT. 205 

• extending to the courts VCAT’s powers in relation 

to consumer credit, to address the problem of 

many defensible claims being uncontested. 206 

Specifically, the Consumer Action Law Centre 

recommended that the courts should have power 

to set aside all, or part, of a debtor’s obligations 

where the debt arises from inappropriate or 

reckless lending. 207 

Supreme Court Judge Kevin Bell has recently been appointed 

as the President of VCAT and will undertake a review of VCAT 

to ‘assess its current directions and future needs’. It may be 

that some of the matters referred to above may be appropriate 

for consideration in the course of that review. 

5.6 Appeals 

We received a number of submissions regarding the various 

appeal mechanisms in the Victorian courts, and in particular 

about delays encountered in the appeal processes. 

Appeals from the Magistrates’ Court 

Section 109(1) of the Magistrates’ Court Act 1989 provides 

that an appeal may be made to the Supreme Court on a 

question of law from a final order of the Magistrates’ Court. 

The Magistrates’ Court contended that further appeal from the 

Supreme Court to the Court of Appeal should be prevented. It 

also favoured limiting the number of appeals to one. 208 

Appeals from interlocutory orders of the Magistrates’ 

Court 

The Law Institute argued that the historical barring of appeals 

from interlocutory orders of the Magistrates’ Court was 

inappropriate, particularly given the recent increase in that 

court’s jurisdiction, and should be revisited. It submitted that 

a better approach might be to allow interlocutory appeals 

to a Supreme Court judge with leave. It suggested that an 

application for leave could be brought initially in the Practice 

Court with the fixture of the appeal set thereafter. The 

preparation of a simple appeal book was also recommended. 209 

Alternatively, the Law Institute raised the possibility of 

removing civil appeals from the Supreme Court to a single 

judge of the County Court. It noted that criminal appeals 

proceed to the County Court, and sees little justification for a 

distinction to remain for civil appeals. 210 This was not supported 

by the Magistrates’ Court. The court noted that if an appeal 

is by way of hearing de-novo, it would consume significant 

resources of the County Court. 211 The court argued that an 

analogy with criminal appeals was inappropriate because a 


Victoria). 

200 The non-exclusive jurisdictions of VCAT 

include land valuation, judicial review 

of decisions by responsible authorities 

(as opposed to planning authorities) 

under the Planning and Environment 

Act 1987, state taxation matters (in 

relation to stamp duty or land tax) 

and civil claims. The exclusive civil 

jurisdictions of VCAT are principally in 

residential tenancies, retail tenancies, 

domestic building, transport accident 

injuries, credit (mainly repossession) 

and drainage. It also appears that 

VCAT has exclusive jurisdiction in 

relation to judicial review of decisions 

of planning authorities under the 

Planning and Environment Act (see 

s 39). 

201 Section 77 of the VCAT Act. This does 

not apply to a proceeding for a review 

of a decision. 

202 See Bentley v Cash Resource Australia 

Pty Ltd [2002] VCAT 1399. 

203 Deputy presidents must have practised 

for at least five years. Non-judicial 

deputy presidents head the various 

Lists. 

204 Submission CP 39 (Building Dispute 

Practitioners’ Society Incorporated). 

See also Submissions CP 37 (Transport 

Accident Commission), CP 23 (State 

Trustees). 

205 See discussion in Submission CP 43 

(Consumer Action Law Centre). It 

argued that people should be notified 

of their right to transfer a matter to 

VCAT and that the Act should be 

amended to make it clear that there 

should not be an award of costs if the 

Magistrates’ Court claim is dismissed 

under the transfer provision of the Act 

(s 112). 


(Consumer Action Law Centre). 



208 In Submission CP 55 the Magistrates’ 

Court acknowledged that appeals to 

the High Court cannot be prevented, 

but noted that these are rare. 


Victoria). To facilitate interlocutory 

appeals from the Magistrates’ 

Court the Institute suggested that 

consequential amendments would 

need to be made to the Magistrates’ 

Court Act 1989 and Supreme Court 

(General Civil Procedure) Rules 2005: 

Submission CP 18 (Law Institute of 

Victoria). 


Victoria). 

211 The Magistrates’ Court noted that if 

a hearing ran for three days before a 

magistrate, then an appeal before a 

County Court judge would take just as 

long: Submission CP 55 (Magistrates’ 


723

Chapter 12 



criminal appeal usually related to a sentence which had often been imposed after a guilty plea. In this 

situation the proceeding before the magistrate would have only taken a matter of minutes and the 

appeal before the judge would not take significantly longer. 212 

Supreme Court 

The Bar recommended that section 17A of the Supreme Court Act 1986 be amended to enable the 

Court of Appeal to rescind a grant of leave to appeal granted by a primary judge. It argued that the 

existing process was cumbersome. 213 

The Supreme Court called for reform to the procedure governing appeals from interlocutory decisions 

in the Supreme and County Courts. 214 The court suggested that the general requirement for leave 

to appeal had obliged the courts to define when a decision is final or interlocutory. It argued that 

this distinction was difficult and that applications for leave ‘may be brought out of an abundance 

of caution, when it serves little practical purpose’. 215 It proposed a number of reform ideas. Justice 

Maxwell, President of the Court of Appeal, noted that this uncertainty ‘is undesirable, it creates 

additional costs for the parties and additional burdens for the Court’. He also observed that the term 

‘interlocutory’ is not well understood by many lawyers, and is meaningless to lay people. 216 

WorkCover cautioned against automatic appeal rights in all interlocutory disputes. It argued that 

such an extension may overburden the court. It did not have any concerns about the rules relating to 

appeals from damages verdicts and did not support any reform to those rules. 217 

Appeals from non-judicial members of VCAT to the Supreme Court 

The TAC suggested that consideration should be given to revising the rules relating to appeals from 

non-judicial members of VCAT to the Trial Division of the Supreme Court. 218 It argued that the process 

would be more efficient if an application for leave to appeal was returnable directly to a judge of the 

Trial Division. 

At present, applications for leave to appeal from VCAT are generally heard by a master in the first 

instance. A party can appeal to a judge in the Trial Division against a decision made by a master and 

this is usually heard in the Practice Court. The TAC and Law Institute suggested that in their experience 

the master’s decision is often appealed to the Practice Court. They argued that omitting this step in 

the appeal process may be more efficient and bring about a reduction in costs. The Law Institute also 

indicated that appeals from non-judicial members of VCAT should be streamlined. 219 

Costs and the appeal process 

The Group submission stated that an appeal from a first instance judgment in Victoria does not 

remove the unsuccessful party’s obligation to pay the amount of the judgment unless a stay is 

ordered by the trial judge or appeal court or an agreement is reached with the judgment creditor. The 

submission expressed concern that if a stay is not granted, a prohibitive judgment debt (for example a 

judgment debt that is large enough to bankrupt the defendant or severely curtail its business activities) 

may act to bar an appeal right, even where the prospects of the appeal are good. It further suggested 

that an inability to appeal might persuade a party to settle rather than litigate even if a case has merit. 

To address this concern the Group submission recommended the introduction of an appeal bonding 

scheme. It argued that such a system would result in greater fairness between parties by limiting the 

difficulties defendants face when they wish to appeal a first instance judgment. 220 It suggested that 

a cap on the amount to be paid pending appeal could be determined either as a fixed sum (because 

of the smaller size of judgments in Australia the submission suggested that a cap of $1 million was 

appropriate) or as a set percentage of the judgment debtor’s net assets, whichever was the lesser. 

It was also recommended that the bonding system include protections for plaintiffs where it was 

demonstrated that defendants were deliberately dissipating assets. 221 

The need to examine the appeal process with the aim of reducing costs, in particular the cost of 

appeal book documents, was also raised. It was suggested that court books should be constrained if 

they are to be required. 222 

Section 110 of the Magistrates’ Court Act 

Magistrate Jillian Crowe also raised a concern about the operation of section 110 of the Magistrates’ 

Court Act 1989. 223 This provision empowers the court to set aside a final order and to rehear the 

proceeding where a final order is made against a person who did not appear in the proceeding. 

724 


Ms Crowe indicated that the matter typically arises where 

the court has made final orders on an undefended claim and 

at some time later the court receives a request to set aside 

the order without conducting a hearing on the merits. This 

is often because the defendant realises that the judgement 

debt precludes him or her from acquiring a credit facility, 

or the order poses some other commercial problem for the 

defendant. The request is usually accompanied by a letter from 

the judgment creditor consenting to the process, as the debt 

under the order has been fully paid. 

Ms Crowe suggested there is some uncertainty and 

inconsistency with the interpretation of section 110. In order to 

address this, she proposed that a simple amendment be made 

to section 110 to clarify that parties to concluded litigation 

be able to consent to have the final order set aside and the 

proceedings struck out. 

Other reform suggestions 

In addition to the issues identified above, the commission was 

also asked to consider the following: 

• simplifying the rules and procedures for appeals: 

in particular, the submission from Legal Aid 

suggested that the distinctions between appeals 

on questions of law, appeals de novo and judicial 

review are confusing for self-represented litigants 224 

• the implementation of an appeal guarantee 

system. 225 

5.7 Tax deductibility of legal costs 

The commission has received a number of submissions 

regarding the tax deductibility of legal fees and expenses in 

civil litigation. This issue falls within the jurisdiction of the 

Commonwealth, and any reform in this area would require 

Commonwealth involvement. 226 

The Consumer Action Law Centre expressed concern at the 

power imbalance between its clients and opposing parties in 

litigation. It contended that the difference between the risks 

borne by parties to litigation can make the negotiation of a 

fair outcome difficult. It explained that cost orders can have a 

significant impact on its clients (for example they can lead to 

the loss of property including cars and homes). By contrast, it 

suggested that opposing parties are almost always companies 

(and often large companies). 

The Consumer Action Law Centre believes that tax deductibility 

that is available to companies further compounds the 

inequality between litigation participants and may be a 

disincentive for a company to settle major litigation at an early 

opportunity. 227 On the other hand the Bar indicated that it is 

not aware of any problems in relation to tax deductibility and 

does not believe that there is any need for reform. It believes 

that there is no good reason in principle why legal expenses 

incurred in deriving assessable income should not be tax 

deductible like any other business expense. 228 The Law Institute 

suggested that removing the tax deductibility of legal fees 

would effectively increase the cost to the parties of settling a 

claim, and consequently, reduce the likelihood of settlement. 229 

212 See Submission CP 55 (Magistrates’ 


213 The submission referred to the 

comments by Charles JA in Coles 

Myer v Bowman [1996] 1 VR 457, 

who suggested that reform to s 

17A of the Supreme Court Act is 

desirable because the existing system is 

‘cumbersome and inconvenient’ [460] 

as cited in Submission CP 33. The Bar 

suggested that at the moment a party 

dissatisfied with the grant of leave 

to appeal by a primary judge must 

obtain leave to appeal from the order 

granting leave and then successfully 

appeal against that order. It was 

argued that this is a cumbersome 

process (Submission CP 33 (Victorian 

Bar)). 


Victoria). 

215 Submission CP 58 (Supreme Court 

of Victoria). The court refers to the 

following case examples: AMP General 

Insurance Ltd v Victorian Workcover 

Authority & Ors [2006] VSCA 236 and 

the unreported judgments on leave 

applications in Major Engineering 

Pty Ltd v Timelink Pacific Pty Ltd No. 

4122 of 2005, 29 September 2006 (a 

decision on liability only) and Janina 

Puttick v Fletcher Challenge Forests Ltd 

No. 4564 of 2005, 17 November 2006 

(permanent stay of proceedings). 

216 E-mail from Justice Maxwell to Peter 

Cashman dated 9 October, 2006. 


WorkCover Authority) referring to ss 

134AD and 134AE of the Accident 

Compensation Act 1985, which govern 

appeals in serious injury applications 

‘as of right’. An appeal is allowed 

without leave on a question of law and 

no distinction is made between final 

and interlocutory decisions. 


Commission) referring to s 148 VCAT 

Act read together with Supreme Court 

(General Civil Procedure) Rules 2005 rr 

4.05–4.09, 77.05 and 65. 


Victoria). 


Several states in the US have 

introduced reforms that place a cap 

on the bond amount or provide that 

a bond will only apply to the punitive 

damage component of the award. (See 

Mark Behrens and Andrew Crouse, 

‘The Evolving Civil Justice Reform 

Movement: Procedural Reforms Have 

Gained Steam, but Critics Still Focus on 

Arguments of the Past’ (2006) 31(2) 

University of Dayton Law Review 173). 

The Group submission referred to 

the model for state legislative reform 

developed by the American Legislative 

Exchange Council (ALEC). It advocated 

the introduction of a similar appeal 

bonding system in Victoria. 


Enright). 

222 Submission CP 52 (Hollows Lawyers). 

See also Submissions CP 48 (Victorian 



223 Submission CP 56 (Jillian Crowe). 



Victoria). The Law Institute believes 

that the main problems with the 

civil appeals process stem from delay 

in hearing appeals and obtaining 

judgment. The Law Institute 

recognised that this would require the 

provision of additional resources to 

enable the courts to hear an appeal 

and provide judgment within a 

reasonably set timeframe, for example, 

six months. 

226 Such reform may involve amendment 

to the Income Tax Assessment Act 

1997 (Cth). Submissions CP 18 (Law 

Institute of Victoria), CP 33 (Victorian 

Bar) and CP 58 (Supreme Court of 

Victoria). 


Law Centre). 



Victoria). 

725

Chapter 12 



5.8 Interest up to judgment 

Background 

The position in Victoria in relation to the calculation of interest up to judgment is different to rules 

in all other Australian jurisdictions (except Tasmania). 230 Elsewhere a model is adopted under which 

the court has a general discretion (sometimes subject to a presumption in favour of interest, and in 

all jurisdictions subject to specified limitations) to award interest in respect of all or part of the period 

between the arising of the claimant’s cause of action, and judgment. The discretion generally operates 

in all proceedings in which a monetary amount is at issue. 231 

By contrast, the Victorian Supreme Court Act deals separately with ‘debts or sums certain’ and other 

‘debts or damages’, and allows interest to be recovered on the former from the time the relevant 

amount was payable under a written instrument or demanded (as applicable) and the latter from the 

time of the commencement of legal proceedings. The Act also makes separate provision for interest in 

proceedings for trover or trespass to goods and proceedings based on policies of insurance. 232 

Concerns raised by the Law Institute of Victoria 

The Law Institute made the following arguments for reform of the Victorian provisions: 

• Victoria is out of line with all other jurisdictions apart from Tasmania in allowing interest to 

be payable only from the date of issue rather than the date of accrual of action. 

• Clients may take years to locate a debtor and may automatically lose any interest that 

would have accrued in that time. 

• The award of interest is intended to compensate for the loss or detriment suffered 

by being kept away from money during the relevant period. Therefore, in order for 

compensation to be fairly distributed, it should be available from the date the cause of 

action accrued. 233 

• The penalty interest rate is supposed to underline the seriousness of failing to pay a debt 

when it falls due and the current Supreme Court position undermines this objective. 234 

• The current situation encourages forum shopping or, alternatively, the premature initiation 

of proceedings to ensure that interest starts to run. It further suggested that ‘one of the 

few alternatives open to plaintiffs—complicating the action by suing for damages for loss 

of use of the money—is clearly unsatisfactory.’ 235 

The Law Institute recognised that it will not always be appropriate to award interest from the date of 

accrual of a cause of action and recommended the introduction of a provision similar to section 51A 

of the Federal Court of Australia Act 1976 (Cth) to allow interest to be awarded as is considered 

appropriate in each case. It also suggested that the rate should be fixed, for instance, at the penalty 

interest rate, subject to an overriding discretion to depart from this in appropriate cases (for example, 

where there is delay by one of the parties). 

The Law Institute further argued that there was no valid reason for drawing a legislative distinction 

between debts, damages, trover, trespass and policies of insurance in Victoria. It observed that this 

does not occur anywhere else in Australia. 

5.9 Presumption that no costs are recoverable for very small claims 

The Consumer Action Law Centre noted that costs are not awarded in the Magistrates’ Court for 

claims of less than $500, unless there are special circumstances. This limit has remained unchanged 

despite several increases in the upper limit of the court’s jurisdiction. In the centre’s experience costs 

for claims of less than $500 are awarded as a matter of course where a claim is undefended. It 

argued that undefended claims give rise to the least actual cost on the part of the plaintiff and cannot 

constitute any reasonable interpretation of ‘special circumstances’. It suggested that this anomaly 

needs to be addressed as a matter of urgency. 

It argued that the legal costs of small claims are unjustified in comparison with the amounts of the 

claims. In many instances, costs exceed the amount of the claim and result in consumers having to pay 

substantial legal bills. 236 

726 


The Consumer Action Law Centre recommended: 

• For small claims of $1000 or less in the Magistrates’ Court, the rules should be changed 

so that there is a presumption that each party bears its own costs whether the claim is 

defended or not. 

237 

• The no-cost cap should be increased from $500 to $1000. 

5.10 the Need to consider economic aspects of the civil justice system 

The Victorian Bar highlighted that it is also important to consider the economic aspects of the civil 

justice system when looking at reform. 238 It proposed the following issues for consideration: 

• The civil justice system is an important service industry in Victoria, contributing nearly $1 

billion to the state’s economy each year. 

• It was suggested that inefficiency in the civil justice system is contributing to the loss of 

significant civil litigation, especially commercial work, to other jurisdictions, in particular 

the Federal Court and the Supreme Court in NSW, and is also limiting Victoria’s ability 

to attract work from the growing Asian litigation market. In the Bar’s view ‘the loss of 

commercial litigation risks impairing the quality of justice in Victoria and retarding the 

growth of an important part of the services sector’. 239 

• Providing the most predictable and rapid resolution of cases would assist Victoria to 

achieve national leadership as a centre for litigation excellence and to capture economic 

growth. 

• Becoming an Asia-Pacific centre for litigation excellence would enable Victoria to position 

itself as a credible choice of jurisdiction for non-domestic civil litigation. 

• Major reforms of the civil justice system are not achievable without significant government 

participation. The Bar envisaged two roles for government. Firstly, the creation of an 

‘industry policy’ for the civil litigation industry and second, support to the Supreme Court 

in packaging and presenting a reform agenda to the legal profession and the public. 

• There is a need for rules to increase transparency in decision making for clients, and the 

enforcement of appropriate corporate standards of behaviour in Victoria (including seeking 

common national standards). 240 

• The Bar pointed to less burdensome contracts legislation in NSW and called for national 

uniformity in areas such as fair trading and proportionate liability to prevent loss of 

work. 241 

• The program of 360 degree feedback by the Judicial College of Victoria should be 

expanded and the program supported by clear performance measures and a regular 

external peer review system allowing barristers and, where appropriate, solicitors to 

provide feedback. 242 

5.11 Court governance 

In a letter to the commission dated 15 November 2007, Chief Justice Marilyn Warren suggested that 

some of the important issues the commission might explore in the second phase of its civil justice 

review were 

the extent to which a more independent court governance structure would: 

• free up judge time currently spent in dealings with the Department [of Justice] and 

preparing specific funding submissions; 

• reduce duplication of effort between the Department and Courts in relation to 

administrative matters; and 

• provide courts with greater capacity to respond and adapt to changing 

circumstances in a timely fashion. 

The Chief Justice noted that court governance was put forward as an issue requiring attention in the 

Attorney-General’s Justice Statement and the Courts Strategic Directions Statement, which noted: 

A modern governance system needs to be introduced to enable the Courts and VCAT to 

respond adequately to the changing needs of the community. 243 

230 Supreme Court Civil Procedure Act 

1932 (Tas) ss 34–35. 

231 The various tests run up to the date 

of judgment, the date judgment 

takes effect, the day before judgment 

is entered, or the date judgment is 

entered. See Civil Procedure Act 2005 

(NSW) ss 100(1) and 100(2); Federal 

Court of Australia Act 1976 (Cth), 

s 51A(1)(a) and (b); Judiciary Act 1903 

(Cth), s 77MA; Supreme Court Act 

1995 (Qld) s 47(1), (2) an 

(3); Supreme Court Act 1935 (SA) s 

30C(1), (2) and (3); Supreme Court 

Act 1935 (WA) s 32(1) and (2); 

Court Procedures Rules 2006 (ACT) r 

1616(1)–(5); Supreme Court Act (NT) s 

84. 

232 Supreme Court Act 1986 ss 58 and 60. 


Victoria) quoting MBP (SA) Pty Ltd 

v Gogic (1991) 171 CLR 657, 663 

(Mason CJ, Brennan, Deane, Dawson, 

Toohey, Gaudron and McHugh JJ). 


Victoria). 


Victoria). 

236 For example, Consumer Action’s legal 

practice represented a client who did 

not fully understand English, who had 

a complaint against her issued claiming 

a $300 debt, and who was required to 

pay $293 costs in a default judgment. 

Failing to understand the nature of the 

judgment and the direction to pay, the 

client did not pay and the plaintiff took 

further action to enforce the claim, 

and legal costs skyrocketed. A warrant 

for seizure and sale of this client’s 

home was made to satisfy the amount 

of $2315.20. Thus, a $300 claim can 

lead to legal costs of $2000 under 

the present system. Submission CP 43 



Law Centre). 



240 Submission CP 62 (Victorian Bar). See 

Courts Consultative Council, Courts 

Strategic Directions Project, Part B 

Strategic Directions Statement (2004) 

recommendation 17. 



243 Courts Consultative Council (2004) 

above n 240, 11. 

727

Chapter 12 



The Chief Justice’s suggestion was supported by the Chief Magistrate, Ian Gray, and the Chief Judge 

of the County Court also supported further consideration of these issues. 244 

Models of court governance were also considered in some detail in Going to Court. 245 

5.12 Other issues raised in submissions 

A number of additional issues were raised and reform suggestions made in submissions and 

consultations during our review, including: 

• the early assessment of medical negligence claims by a medial panel of approved 

independent medical experts appointed by the Specialist Colleges 246 

247 

• the use of joint medical examinations to save costs and increase objectivity 

• the suggestion that the lack of pleadings in serious injury cases leaves the court and 

the parties in the dark in relation to the possible ‘defence’ until trial. In addition, it was 

suggested that in order to prevent trial by ambush any surveillance evidence should be 

required to be disclosed before trial. 248 It was recommended that a defendant file an 

affidavit setting out why a serious injury claim is rejected. 

• the need for the review of the recently enacted proportionate liability legislation. It was 

argued that the regime should operate in a manner that involves minimal cost and 

complexity and maximum expedition. The Supreme Court said consideration should 

be given to reforming the procedure dealing with non-party concurrent wrongdoers, 

pleadings, default or summary judgment, offers of compromise, settlement and costs. 249 In 

addition the Supreme Court flagged that the following issues should also be considered by 

a law reform body: the desirability of eliminating differences between the Commonwealth 

and Victorian regimes and between state regimes in relation to the role of a contractual 

allocation of responsibility; the differential impact of limitation periods; issue estoppel and 

res judicata issues. 

• the need to amend section 134AB(28) of the Accident Compensation Act 1985 to make it 

fairer for workers who remain on weekly payments pending trial. 250 It was suggested that 

consideration be given to the interpretation of section 134AB(28) in light of the Court of 

Appeal decision of Raeburn v Tenix Defence Systems Pty Ltd [2007] VSCA 90. 

251 

• increasing in the civil jurisdictional limit of the Magistrates’ Court to $250,000 

• review of the Magistrates’ Court’s limited jurisdiction to deal with WorkCover matters 

under section 43 of the Accident Compensation Act 1985. The Magistrates’ Court argued 

that the restricted jurisdiction under this Act should be removed and, in relation to other 

claims, be increased to the civil jurisdictional limit of $100 000. 

• the regulation of commercially funded litigation. Risks to plaintiffs and defendants 

were canvassed in submissions. 252 Several submissions called for greater regulation of 

commercially funded litigation. Some of the reform suggestions canvassed included 

legislation detailing: 

– the factors that must be addressed in a funding agreement 

– the filing of a funding agreement in court at the commencement of proceedings 

– a direct contractual relationship between the plaintiff and the solicitor running 

the case rather than a contract between the funder and solicitor 

– proper regulation and disclosure requirements for litigation funders 

– the capping of damages able to be retained by the funder 

– enforcement of costs orders against the plaintiff or the funder 

– requirement to notify the court and the other parties if a funder withdraws 

– entitlement to security for costs if the solvency of the litigation funder is in issue 

– all funding agreements to be subject to court supervision. 253 

728 


254 

• providing a right to a jury in a damages trial 

• exploring options for making the determination of motor vehicle disputes simpler and 

cheaper. It was suggested that compulsory third party property coverage and no-fault 

accident compensation schemes should be investigated. 255 Another suggestion was 

compulsory mediation or conciliation as a precondition to issuing proceedings in motor 

vehicle accident matters. Alternatively, it was proposed that the Insurance Ombudsman’s 

terms of reference could be widened to allow it to deal with individuals who believe they 

are being wrongly pursued by an insurance company. 256 

• increased and improved regulation of the taxi industry to address concerns arising in 

relation to insurance. 257 

• review of the processes applying to claims filed outside Victoria and served on Victorian 

defendants. It was suggested that often defendants do not act on or seek advice in respect 

of such proceedings. Subsequent action to stay a matter is complex, and default judgment 

is often obtained. Consideration should be given to amending the Service and Execution 

of Process Act 1992 (Cth) to prevent the issuing of matters outside the appropriate 

jurisdiction or alternatively to provide for an automatic transfer (unless both parties agree 

otherwise) to the appropriate jurisdiction when a defence is lodged. 258 

259 

• extinguishing a debt at the expiration of the limitations period 

• further analysis and review of the 1998 Victorian Parliamentary Law Reform Committee’s 

Review of the Fences Act 1968 260 

261 

• specialised legal assistance for people with disabilities 

• increased attention on the impact of court processes on homeless persons. The PILCH 

Homeless Persons Legal Clinic recommended: increased flexibility and facilities for 

homeless persons who are required to attend court; judicial training; specialist court 

lists; the expansion of the homelessness court liaison officer role beyond the Melbourne 

Magistrates’ Court; increased funding. 262 

• consideration of the impact of reform on disadvantaged groups. The Victorian Aboriginal 

Legal Service recommended the establishment of principles which would improve equity 

and accessibility. It called for a Koori impact statement to be considered in the early stages 

of policy development. 263 

• the enactment of legislation or changes to civil procedure rules to protect individuals 

and groups from defamation actions aimed at silencing debate about matters of public 

interest, political debate and dissent. Support was also expressed for reform to allow 

defendants in defamation cases to apply for the opportunity to prove on the balance of 

probabilities that the proceeding was brought for an improper purpose. 264 

• allowing parties to adjourn matters by consent in the County Court without having to 

apply to the Practice Court 

• the use of docket judges in large construction matters in the Building Case List in the 

Supreme Court. 265 The commission notes the case management principles embodied in 

the recent Supreme Court Practice Note for Building Cases. 266 

In addition to the miscellaneous law reform proposals referred to and summarised above there were 

other suggestions made with respect to matters which are dealt with in other chapters of this report. 

Some of the reform suggestions referred to above may be appropriate for consideration by the 

commission during the second stage of the present inquiry, or by the proposed Civil Justice Council. 

Alternatively, a number of reform proposals could be implemented without the need for further 

investigation (for example, the proposal that courts should have a discretion to award interest 

from the date of accrual of a cause of action rather than from the date of commencement of legal 

proceedings). 

244 Letter from Ian L Gray, Chief 

Magistrate, to Dr Peter Cashman 

dated 30 January 2008; Telephone 

conversation between Chief Judge 

Michael Rozenes and Dr Peter 

Cashman, 30 November 2007. 

245 Sallmann and Wright (2000) above n 

33, 44–53. See also Justice Tim Smith, 

‘Court Governance and the Executive 

Model’ (Paper presented at the Judicial 

Conference of Australia,Canberra, 6–8 

October 2006). 

246 Submissions CP 60 and ED1 1 (Royal 

Australasian College of Surgeons). 

247 Submission CP 52 (Hollows Lawyers). 



February 2008). 


Victoria). 

250 Law Institute of Victoria letter to 

Professor Neil Rees, 9 July 2007 

attaching submission from the 

Common Law Bar Association to the 

Hon. Rob Hulls, Attorney-General, 31 

May 2007. 


of Victoria). 


253 See Submissions CP 47 (Group 

Submission), CP 38 (Allens Arthur 

Robinson), CP 18 (Law Institute of 

Victoria), CP 11 (Dibbs Abott Stillman). 

A contrasting view was expressed by 

the Police Association (Submission CP 

6). 

254 Submissions CP 48 (Victorian 



255 Submissions CP 59 (Springvale Monash 

Legal Service), CP 44 (Fitzroy Legal 

Service), CP 3 (SRC Legal Service). 

256 Submission CP 32 (Federation of 





Law Centre). 


Law Centre). 



261 Submission CP 59 (Springvale Monash 


262 Submission CP 29 (PILCH Homeless 

Persons Legal Clinic). 





265 Submission CP 12 (Construction and 

Infrastructure Law Committee (Vic 

Group) Law Council of Australia). 

266 Supreme Court, Practice Note 1 

of 2008, Building Cases—A New 

Approach, Case Management 

Information Sheet, question 5 at 22 

February 2008. 

729

Chapter 12 



730 


Appendices 

731

Appendix 1 

Consultations 

CONSULTATION PARTICIPANTS DATE 

1 

David Poulton—Minter Ellison 

Annabel Evans—CGU Professional Risks Insurance 

13 September 2006 

2 Bernard Murphy, Greg Tucker—Maurice Blackburn 14 September 2006 

3 

Bob Musgrove, Michael Napier—Civil Justice Council; Colin Stutt, Head of Funding Policy—Legal 

Services Commission, UK 


4 Vicki Waye, Associate Dean of Teaching, Law School—University of Adelaide 16 September 2006 

5 Vince Morabito, Department of Business Law and Taxation— Monash University 18 September 2006 

6 

Prof Zuckermann, Prof Camille Cameron, 

Oxford University and University of Melbourne 


7 Michael W Shand QC, Christine Harvey—Victorian Bar 28 September 2006 

9 Judge Wodak, Judge Anderson—County Court 03 October 2006 

10 

Chief Justice Warren, President Justice Maxwell, Justice Neave AO, Justice Hargrave, Justice Bell, Master 

Lansdowne, Master Wood, Master Kings—Supreme Court of Victoria 

04 October 2006 

11 Lou Schetzer, Manager, Research, Civil Law Policy—Department of Justice 04 October 2006 

12 Deputy Chief Magistrate Peter Lauritsen—Magistrates’ Court of Victoria 11 October 2006 

13 

Camille Cameron, Gary Cazalet, Jacqui Horan, Ann Genovese, Michelle Taylor-Sands—Melbourne Law 

School 


14 Judge Wodak—County Court of Victoria 16 October 2006 

15 Andrew Tenni, Siobhan Haverkamp—Supreme Court of Victoria 27 October 2006 

16 Anna Rowland, Janet Tilley—Civil Justice Council, UK 27 October 2006 

17 David Gladwell, Head of Civil Appeals Office, Master in the Court of Appeal—Civil Division, UK 25 October 2006 

18 Lord Justice Dyson, Lord Justice of Appeal—High Court, Her Majesty’s Courts Service, UK 25 October 2006 

19 

Peter Hurst, Senior Costs Judge, Judiciary of England and Wales, Supreme Court Costs Office—Royal 

Courts Of Justice, UK 


20 Master John Ungley, Queen’s Bench—High Court, Her Majesty’s Courts Service, UK 23 October 2006 

21 Janet Tilley, Partner—Colemans-ctts Solicitors, UK 26 October 2006 

22 Robert Musgrove, Chief Executive—Civil Justice Council, UK 23 October 2006 

23 John Pickering—Irwin Mitchell Solicitors, UK 26 October 2006 

24 Colin Stutt, Head of Funding Policy—Legal Services Commission, UK 24 October 2006 

25 Laura Wilkin, Partner—Weightmans, UK 24 October 2006 

26 

Professor Martin Partington CBE, Special Consultant University of Bristol Law School—Law Commission 

of England and Wales 


27 Dr Rachael Mulheron, Reader in Law, School of Law—Queen Mary University of London 27 October 2006 

28 Sue Bence, Partner—Leigh Day & Co, UK 27 October 2006 

29 

Chief Justice Warren, Justice Hargrave, Justice Bell, Master Lansdowne, Master Wood, Master Kings, 

Claire Downey— Supreme Court of Victoria 


30 Bettina Miller, Business Analyst and Kate Spillane, Civil Listings Manager—County Court of Victoria 01 November 2006 

31 Chief Magistrate Ian Gray, Deputy Chief Magistrate Peter Lauritsen—Magistrates’ Court of Victoria 03 November 2006 

732 Victorian Law Reform Commission - Civil Justice Review: Report


32 Tony Parsons, Managing Director—Victoria Legal Aid 08 November 2006 

33 Claire Downey—Supreme Court of Victoria 09 November 2006 

34 Justice Morris—Victorian Civil and Administrative Tribunal 9 November 2006 

35 Andrew Cannon, Acting Chief Magistrate—Magistrates Court [South Australia] 10 November 2006 

36 Nerida Wallace, Director—Transformation Management Services 04 December 2006 

37 Bernard Murphy—Maurice Blackburn 04 December 2006 

38 Alternative Dispute Resolution Strategy team—Department of Justice 12 December 2006 

39 Professor Carl Baar—York University, Canada 19 January 2007 

40 Professor Peter Sallmann—Monash University 24 January 2007 

41 Michael W Shand QC, Albert Monichino—Victorian Bar Council 25 January 2007 

42 

Richard O’Keefe, Principal Registrar and Samantha Ludolf, CEO—Victorian Civil and Administrative 

Tribunal 

05 February 2007 

43 Heather Cook—Government Legal Services 06 February 2007 

44 Louis Baziotis—Appeal Costs Board 06 February 2007 

45 Damien Cremean—Victorian Civil and Administrative Tribunal 21 February 2007 

46 Bronwyn Hammond, Self-represented Litigants’ Co-ordinator—Supreme Court of Victoria 22 February 2007 

47 Dr John Lynch—Crown Counsel 01 March 2007 

48 Eve Stagoll, Tabitha Lovett—Public Interest Law Clearing House 08 March 2007 

49 Ian Kennedy, Cathy Gale—Kennedy Wisewoulds 11 April 2007 

50 Vicki Evans, Natasha Sugden, Anna Worrall, Magistrates’ Court 2015 Project—Department of Justice 19 April 2007 

51 Steve Walsh, John Voyage, Kate Booth, Lyn Honan—Maurice Blackburn 07 May 2007 

52 Paul O’Connor, Jane Bloomfield, John Bolitho—Transport Accident Commission 09 May 2007 

53 Gil Brooks—ICMS team 09 May 2007 

54 Brian Tee, MLC—Victorian Parliament Law Reform Committee 10 May 2007 

55 Andrew Grech, Cath Evans, Mark Walter—Slater & Gordon 16 May 2007 

56 Greg Reinhardt—Australasian Institute of Judicial Administration 22 May 2007 

57 Denis Nelthorpe, consumer consultant 30 May 2007 

58 Jane Dunn—District Court of New South Wales 31 May 2007 

59 Chief Justice Warren, Claire Downey—Supreme Court of Victoria 06 June 2007 

60 Deputy Chief Magistrate Peter Lauritsen—Magistrates’ Court of Victoria 13 June 2007 

61 LLM Litigation and Dispute Resolution class, Law School—University of Melbourne 20 June 2007 

62 LLM Litigation and Dispute Resolution class, Law School—University of Melbourne 26 June 2007 

63 Justice Maxwell President, Justice Neave AO, Court of Appeal—Supreme Court of Victoria 26 June 2007 

64 

Judge Bowman, Mark Dwyer, Helen Gibson, Richard O’Keefe, Samantha Ludolf—Victorian Civil and 

Administrative Tribunal 

03 July 2007 

733

Appendix 1 

Consultations 


65 

66 

67 

Brian Tee MLC, Robert Clark MP, Edward O’Donoghue MLC, Luke Donnellan MP—Victorian Parliament 

Law Reform Committee 

Stephen Lee, Alison O’Brien—Victorian Government Solicitor’s Office 

Ruth Andrew—Department of Justice 

Jonathan Kramersch—Corrs Chambers Westgarth 

Rebecca French—Mallesons Stephen Jaques 

Maureen Duffy, Peter Holloway—Freehills 

Sue Laver—Telstra 

16 July 2007 

17 July 2007 

25 July 2007 

68 Bronwyn Hammond, Self-represented Litigants’ Co-ordinator—Supreme Court of Victoria 26 July 2007 

69 

Chief Justice Warren, Justice Neave AO, Justice Hargrave , Justice Whelan, Justice Hansen, Master King, 

Master Woods, Master Daley, Claire Downey—Supreme Court of Victoria 

02 August 2007 

70 Peter Gordon—Slater & Gordon 03 August 2007 

71 Professor Garry Watson, Osgoode Hall Law School—York University, Canada 13 August 2007 

72 

Professor Deborah Hensler, Judge John W Ford Professor of Dispute Resolution Law School—Stanford 

University, US 

13 August 2007 & 


73 Adam Cockayne, Janet Cohen, Caroline Morgan—Legal Services Board & Legal Services Commissioner 15 August 2007 

74 

Sam Parrino – Insurance Ombudsman, 

John Price – Referee, 

Peter Hardham – Panel Chair 


75 Aldous Mitchell, Caroline Blanche—Boston Consulting Group 25 September 2007 

76 Aldous Mitchell, Caroline Blanche—Boston Consulting Group 28 September 2007 

77 

78 

Justice Neave AO, Justice Whelan, Justice Byrne, Justice Cavanough, Justice Ashley, Justice Osborn, 

Justice Harper, Master King, Master Daly—Supreme Court of Victoria 

Judge Ruth Anker Hoyer, Judge Jon Bonneview Hoyer—Oslo District Court, Norway 

Magistrate Barry Braun 



79 Alternative Dispute Resolution Strategy team—Department of Justice 17 October 2007 

80 Dr Brendan Dooley—Royal Australasian College of Surgeons 17 October 2007 

81 Justice Sackville—Federal Court of Australia 24 October 2007 

82 Elizabeth Eldridge, Chris Humphreys, Kylie Kilgour, Jo Metcalf—Department of Justice 14 November 2007 

83 Greg Tilse—Quantum Litigation Funding 27 November 2007 

84 Justice Finkelstein—Federal Court of Australia 29 November 2007 

85 Peter Riordan SC, Mark Moshinsky SC— Victorian Bar 20 February 2008 


Appendix 2: Submissions 

Consultation Paper 

NO SUBMITTER / ORGANISATION DATE RECEIVED 

1 CONFIDENTIAL 10 October 2006 

2 Louise Jenkins, Allens Arthur Robinson 10 October 2006 

3 Damian Walsh, SRC Legal Service 12 October 2006 

4 Travis Mitchell 15 October 2006 

5 CONFIDENTIAL 20 October 2006 

6 Paul Mullett , The Police Association 23 October 2006 

7 Bernard Murphy, Maurice Blackburn 12 October 2006 

8 Associate Professor Adrian Evans 30 October 2006 

9 ANONYMOUS 14 November 2006 

10 Peter Mair 17 November 2006 

11 Neil Hannan, Dibbs Abbott Stillman Lawyers 20 November 2006 

12 

Hugh Foxcroft SC, Construction & Infrastructure Law Committee (Victorian Group) of the Law Council 

of Australia 

22 November 2006 

13 Associate Dean Vicki Waye, The Law School, The University of Adelaide 27 November 2006 

14 CONFIDENTIAL 28 November 2006 

15 Edison James Masillamani 30 November 2006 

16 Jenny Lovric, Pro Bono Resource Centre 30 November 2006 

17 Brendan Sydes, Environmental Defender’s Office (VIC) Ltd 30 November 2006 

18 Catherine Gale, Law Institute of Victoria – Litigation Section 30 November 2006 

19 Allison Stanfield, Australia Pty Ltd 30 November 2006 

20 Andrew Grech, Slater & Gordon 28 November 2006 

21 Miranda Milne, Legal Practitioners Liability Committee 04 December 2006 

22 Sophie Delaney, Mental Health Legal Centre Inc 05 December 2006 

23 Tony Fitzgerald, State Trustees Ltd 05 December 2006 

24 Jane Stephens, Australian Medical Association (Victoria) 07 December 2006 

25 Lily Shin, The Institute of Chartered Accountants in Australia 30 November 2006 

26 Philip Lynch, Human Rights Law Resource Centre Ltd & Blake Dawson Waldron Lawyers 01 December 2006 

27 Robin Inglis, Victorian Aboriginal Legal Service Co-operative Ltd 

11 December 2006 

(ss) 22 February 

2007 

28 Associate Professor Vince Morabito, Business Law & Taxation, Monash University 08 December 2006 

29 Caroline Adler, PILCH Homeless Persons’ Legal Clinic 12 December 2006 

30 Tanya Penovic, Lecturer Faculty of Law, Monash University 13 December 2006 

31 Tony Parsons, Victoria Legal Aid 14 December 2006 

32 Sarah Nicholson, Federation of Community Legal Centres (Vic.) Inc 14 December 2006 

735


Consultation Paper 


33 Michael Shand QC, Bar Council of the Victorian Bar Inc. 15 December 2006 

34 Tabitha Lovett, Public Interest Law Clearing House (Vic) 15 December 2006 

35 

Laurie James, Institute of Arbitrators and Mediators Australia & Chartered Institute of Arbitrators 

(Australia) 


36 Philip Lynch & Ben Schokman, Human Rights Law Resource Centre Ltd 21 December 2006 

37 Paul O’Connor, Transport Accident Commission 22 December 2006 

38 Peter O’Donahoo & Susannah Downie, Allens Arthur Robinson 22 December 2006 

39 Suzanne Kirton, Building Dispute Practitioners’ Society Incorporated 22 December 2006 

40 Elizabeth Harris, Harris Cost Lawyers Pty Ltd 22 December 2006 

41 Peter Riddell, TurksLegal & Paul Vine, AXA Australia 22 December 2006 

42 CONFIDENTIAL 22 December 2006 

43 Caroline Bond & Catriona Lowe, Consumer Action Law Centre 22 December 2006 

44 Stan Winford, Fitzroy Legal Service Inc. 22 December 2006 

45 Luke Bartram, Insurance Australia Group Pty Limited 05 January 2007 

46 Sue Laver, Telstra 05 January 2007 

47 

David Patience, Australian Corporate Lawyers Association. This submission attached a joint submission 

from Deacons, Allens Arthur Robinson, Corrs Chambers Westgarth, Telstra and Australian Corporate 

Lawyers Association. However, the commission notes that there were points of difference between the 

contributors to the joint submission. 

08 January 2007 

48 Greg Tweedly, Victorian WorkCover Authority 12 January 2007 

49 Rebecca French, Mallesons Stephen Jaques 15 January 2007 

50 Christopher Enright 16 January 2007 

51 Peter E Cash, Deacons 16 January 2007 

52 David Forster, Hollows Lawyers 18 January 2007 

53 Michael Redfern 22 January 2007 

54 

Financial Industry and Complaints Service Ltd as National Panel Chairs of the Insurance Ombudsman 

Service and the Financial Industry Complaints Service 


55 Deputy Chief Magistrate Peter Lauritsen, Magistrates’ Court of Victoria 13 February 2007 

56 Jillian Crowe 19 February 2007 

57 Mr John Walker, IMF (Australia) Ltd 11 April 2007 

58 Chief Justice Marilyn Warren AC, Supreme Court of Victoria 20 March 2007 

59 Helen Yandell, Springvale Monash Legal Service Inc. 11 April 2007 

60 David Hillis, Royal Australasian College of Surgeons 21 May 2007 

61 Adrian Snodgrass, The Civil Law Reform Working Group of the Federation of Community Legal Centres 13 September 2007 

62 The Victorian Bar Council 14 February 2008 



Draft Exposure 1 Proposals 


1 Brendan Dooley, Royal Australasian College of Surgeons 05 July 2007 

2 Paul Mullett, The Police Association 09 July 2007 

3 Peter Mair 09 July 2007 

4 CONFIDENTIAL 17 July 2007 

5 CONFIDENTIAL 17 July 2007 

6 A.G Fitzgerald, State Trustees Limited 26 July 2007 

7 Judge T Wodak 26 July 2007 

8 John Walker, IMF (Australia) Ltd 27 July 2007 

9 Hugh de Kretser, The Federation of Community Legal Centres (Vic) Inc. 27 July 2007 

10 Victoria Marles, Legal Services Commissioner 27 July 2007 

11 Sophie Delaney, Mental Health Legal Centre Inc. 27 July 2007 

12 Peter O’Donahoo & Susannah Stone, Allens Arthur Robinson and Philip Morris Ltd. 27 July 2007 

13 Dale Battley, Battley & Co 30 July 2007 

14 Brendan Sydes, Environment Defenders Office (Victoria) Ltd 30 July 2007 

15 Peter Stewart (CONFIDENTIAL) 27 July 2007 

16 Sue Laver, Australian Corporate Lawyers’ Association 01 August 2007 

17 Sue Laver, Telstra Corporation 01 August 2007 

18 Fred Hawke, Clayton Utz 01 August 2007 

19 Human Rights Law Centre Ltd. 02 August 2007 

20 Tabitha Lovett & Tina Giannopoulos, Public Interest Law Clearing House (Vic) Inc 02 August 2007 

21 Roza Lozusic, Insurance Council of Australia 03 August 2007 

22 Peter Riddell, AXA Australia & TurksLegal 03 August 2007 

23 Colin Neave AM, Banking and Financial Services Ombudsman Ltd 08 August 2007 

24 Michael Shand QC,Bar Council of the Victorian Council Inc 08 August 2007 

25 Tony Parsons, Victoria Legal Aid 08 August 2007 

26 Helen Yandell, Springvale Monash Legal Service Inc 10 August 2007 

27 ANONYMOUS 16 August 2007 

28 

Bill Palmer, Forensic Accounting Special Interest Group of the Institute of Chartered Accountants in 

Australia 


29 Ian Gilbert, Australian Bankers’ Association Inc 22 August 2007 

30 

Deputy Chief Magistrate Peter Lauritsen, Magistrates Court of Victoria & the Disputes Settlement 

Centre of Victoria 


31 Geoff Provis, Law Institute of Victoria 31 August 2007 

32 CONFIDENTIAL 28 September 2007 

737


Draft Exposure 2 Proposals 


1 Philip Lynch, Human Rights Law Resource Centre Ltd 13 September 2007 

2 CONFIDENTIAL 13 September 2007 

3 Steve White, White SW Computer Law 14 September 2007 

4 Judge Anderson 14 September 2007 

5 Judge Wodak 19 September 2007 

6 Victoria Marles, Legal Services Commissioner 27 September 2007 

7 A.G Fitzgerald, State Trustees Ltd 28 September 2007 

8 Peter O’Donahoo & Susannah Stone, Allens Arthur Robinson and Philip Morris Ltd. 28 September 2007 

9 Adrian Snodgrass, Federation of Community Legal Centres 01 October 2007 

10 Tony Parsons, Victoria Legal Aid 01 October 2007 

11 Michael Redfern 02 October 2007 

12 Gerald Brody, Consumer Action Law Centre 02 October 2007 

13 Peta Spender 02 October 2007 

14 Bill Palmer, The Institute of Chartered Accountants in Australia 05 October 2007 

15 Paul Mullet, The Police Association 08 October 2007 

16 Geoff Provis, Law Institute of Victoria 22 October 2007 

17 Duncan Ramsey, QBE Insurance Group 24 October 2007 

18 Tabitha Lovett, PILCH 29 October 2007 

19 Bernard Murphy, Maurice Blackburn Lawyers Pty Limited 13 November 2007 


Appendix 3: Events Attended 

NO EVENT ORGANISER DATE 

1 Affordable Justice Conference, Adelaide 

Australian Institute of Judicial 

Administration 

16–17 September 2006 

2 Lecture by Professor Adrian Zuckerman, Supreme Court of Victoria Anglo-Australasian Lawyers Society 19 September 2006 

3 Supreme Court meeting with the Victorian Bar Supreme Court of Victoria 20 September 2006 

4 Lecture by Professor Adrian Zuckerman Melbourne University Law School 21 September 2006 

5 Civil Justice Research and Teaching Symposium Melbourne University Law School 22–23 September 2006 

6 Representative Proceedings Focus Group, Sydney IMF (Australia) Ltd 26 September 2006 

7 Seminar presentation by Dr Peter Cashman 

Commercial Bar Association, Victorian 

Bar 


8 

9 

National Conference 2006, Queensland presentation by Dr Peter 

Cashman 

Continuing legal education presentation by President Justice 

Maxwell 

Australian Lawyers Alliance 13–14 October 2006 

Victorian Bar 23 October 2006 

10 President’s Luncheon presentation by Dr Peter Cashman Law Institute of Victoria 02 November 2006 

11 

Presentation by Dr Peter Cashman at the International Conference 

on Class Actions, Paris 

Cohen Milstein Hausfeld and Toll, 

PLLC 


12 Presentation by President Justice Maxwell Law Institute of Victoria 13 November 2006 

13 County Court Medical List Users’ Meeting 

Judge Wodak, County Court of 

Victoria 


14 

Presentation by Dr Peter Cashman at the International Conference 

on Class Action at the University of Oxford 

Oxford University and Stanford 

University 


15 Law Institute of Victoria Council Meeting Law Institute of Victoria 14 December 2006 

16 

Confidence in the Courts Conference, Canberra presentation by Dr 

Peter Cashman 

National Judicial College and 

Australian National University 

9–11 February 2007 

17 

Beyond Environmental Law Conference presentation by Dr Peter 

Cashman 

University of Sydney Law School and 

Environmental Defender’s Office 


18 Human Rights Conference 

Victorian Equal Opportunity and 

Human Rights Commission 


19 Supreme Court seminar on e-litigation Supreme Court of Victoria 16 March 2007 

20 Annual Conference, Gold Coast presentation by Dr Peter Cashman Queensland Bar Association 18 March 2007 

21 Seminar on Judicial Mediation by Justice North and David Levin QC 

Institute of Arbitrators & Mediators 

Australia 

12 April 2007 

22 

Symposium on Expert Evidence, Sydney presentation by Dr Peter 

Cashman 

University of Sydney Law School and 

Expert Witness Institute 

16 April 2007 

23 

Justice Finkelstein and Justice Middleton: The New Federal Court 

‘Fast Track Docket’ system 

Victorian Bar 19 April 2007 

24 Demystifying the role of the Master (SC) 

Law Institute of Victoria Litigation 

Section 

24 April 2007 

25 

Trade Practices Committee Meeting presentation by Dr Peter 

Cashman 

Law Institute of Victoria Commercial 

Law Section 

26 April 2007 

26 Protocols Development Forum Transport Accident Commission 10 May 2007 

27 Legal Reform Summit, Sydney presentation by Dr Peter Cashman Australian Financial Review 15 May 2007 

739

Appendix 3: Events Attended 

NO EVENT ORGANISER DATE 

28 

29 

Victorian State Conference, Victoria presentation by Dr Peter 

Cashman 

The State of the Victorian Judicature Address delivered by Chief 

Justice Marilyn Warren 

Australian Lawyers Alliance 18 May 2007 

Supreme Court of Victoria 22 May 2007 

30 

Presentation by Michael Heaton QC and Mark Harrick: Contracts 

and Good Faith 

Law Institute of Victoria Litigation 

Section 

30 May 2007 

31 Alternative Dispute Resolution Strategic Planning Conference Department of Justice 22 June 2007 

32 Alternative Dispute Resolution Research Forum 

National Alternative Dispute 

Resolution Advisory Council 

13 July 2007 

33 

34 

35 

Professor Deborah Hensler (Judge John W Ford Professor of 

Dispute Resolution at Stanford Law School): Responding to Mass 

Harms: Private Litigation and Public Action 

Supreme Court Judges’ Conference presentation by Dr Peter 

Cashman 

Class Actions Reform Roundtable presentation by Dr Peter 

Cashman 

Melbourne University Law School 1 August 2007 

Supreme Court of Victoria 9 August 2007 

Melbourne University Law School 13 August 2007 

36 Discovery Seminar presentation by Dr Peter Cashman 

37 Innovative Hybrid Dispute Resolution Seminar 

38 International Arbitration & Mediation: Potential and Pitfalls Seminar 

Australian Institute of Judicial 

Administration 

Institute of Arbitrators & Mediators 

Australia 

Sydney University Law School and 

Chartered Institute of Arbitrators 




39 Australian Lawyers Alliance Conference, Hobart Australian Lawyers Alliance 11–12 October 2007 

40 Pro Bono Workshop Victoria Law Foundation 16 October 2007 

41 25 th Anniversary Conference presentation by Dr Peter Cashman Public Interest Advocacy Centre 18–19 October 2007 

42 

International Class Actions Conference, Sydney presentation by Dr 

Peter Cashman 

Maurice Blackburn 24–26 October 2007 

43 Launch of IAMA Arbitration Rules 

44 Annual Dinner presentation by Dr Peter Cashman 

Institute of Arbitrators and Mediators 

Australia 

Chartered Institute of Arbitrators 

(Australia) Limited 



Court Observations 

NO COURT DATE 

1 Supreme Court Commercial List directions 13 October 2006 

2 Supreme Court Masters Court 13 October 2006 

3 County Court Medical List 16 October 2006 



6 Supreme Court Court of Appeal 17 November 2006 

7 Supreme Court Court of Appeal 24 November 2006 

8 Supreme Court 3 April 2007 


Glossary 1 

Terminologyamicus curiae – friend of the court. A person granted permission by a court to make 

submissions on a point of law or matter of practice. An amicus curiae has no personal interest in the 

case and does not advocate for either party. 

certiorari – ‘to be informed. A type of prerogative remedy issued by a court to bring before it the 

decision or determination of a tribunal or inferior court to quash it on the grounds of non-jurisdictional 

error of law on the face of the record, or for jurisdictional error or denial of procedural fairness’.* 

common law – ‘The unwritten law derived from traditional law of England as developed by judicial 

[precedent], interpretation, expansion and modification.’ * 

contribution – ‘an equitable right existing between two co-sureties, under which each co-surety is 

only obliged to contribute proportionately to the satisfaction of the principal debt. A co-surety who 

has paid more than his or her fair portion of that debt may claim re-imbursement from his or her 

co-sureties’.* There may be other legal grounds upon which a defendant in a proceeding may claim a 

contribution (to any amount required to be paid to the plaintiff) from another defendant or person. 

conversion – the tort of intentionally and unlawfully interfering with another person’s property. 

Formerly known as trover, conversion is one form of trespass to goods. 

cy-près – as nearly. An equitable doctrine that allows a court to vary the original terms of a charitable 

gift, where the intention of the gift cannot be fulfilled. The variation must be as close as practical to 

the original intention. 

declarations – a civil law remedy. ‘Decision of a court or judge on a question of law or rights’. 

de novo- A matter that is heard de-novo is heard again from the beginning. The body conducting the 

hearing is not confined to the evidence or materials which were presented in the original hearing. It 

‘stands in the shoes’ of the original decision maker, and makes the decision again’.* 

discovery - ‘A pre-trial procedure where a party to proceedings makes available for inspection all 

relevant documents to the other parties’.* 

equitable remedy – ‘Equitable remedies are sought where common law remedies such as damages 

are inadequate to right the wrong done to the plaintiff’. * 

equity – ‘The separate body of law, developed by the English Court of Chancery, which supplements, 

corrects and controls the rules of common law’. * 

estoppel – ‘a bar or impediment preventing a party from asserting a fact or a claim inconsistent with 

a position he or she previously took, either by conduct or words, especially where a representation has 

been relied or acted upon by others.’ 

ex parte – ‘ In the absence of the other side. Ex-parte applications are heard in the absence of the 

party against whom the order is sought’. * 

ex tempore – ‘by lapse of time. An ex tempore judgement is given without preparation, for example 

where a matter is urgent … A transcript of ex tempore reasons for judgment produced by a court 

reporting service may be considered a document of the court.’* 

habeas corpus – ‘have the body. Originally a type of writ issued by a superior court allowing a 

prisoner to have himself or herself removed from prison and be brought before the court to have the 

matter for which he or she was being detained determined’.* 

hot tubbing - permitting experts to give evidence concurrently in a panel format (sometimes also 

referred to as ‘concurrent evidence’). 

in camera –‘A hearing where the court considers it desirable in the interests of justice or in order to 

prevent undue hardship to any person to order specified persons or all persons except those specified 

to remove themselves from the court room during the whole or any part of the proceeding. Courts 

have an inherent common law power to order that a hearing proceed in camera’.* 

indemnity - ‘security or protection against loss or injury’.* 

Indictable offence –‘An offence which can be prosecuted before a judge and jury’. * 

injunction – ‘A court order of an equitable nature requiring a person to do, or refrain from doing, 

a particular action’… ‘Injunctions may require a particular act (mandatory injunctions) or forbid a 

particular act (prohibitory injunctions), they may be interlocutory (interim) or final’... ‘They may be 

granted ex parte or inter partes and they may be granted to prevent wrongs currently existing or to 

prevent wrongs that may not have been committed’.* 

1 The definitions marked * in the 

above list are extracted from 

Dr Peter E Nygh and Peter Butt 

(eds), Butterworths Concise 

Australian Legal Dictionary, 

Second Edition, 1998 (some 

definitions are supplemented 

by the commission). The 

definitions marked in the 

above list are extracted from A 

Delbridge, JRL Bernard, D Blair, 

S Butler, P Peters and C Yallop 

(eds), Macquarie Dictionary 

Australia’s National Dictionary, 

Revised Third Edition, 2001. The 

definition marked # is taken 

from Encyclopaedic Australian 

Legal Dictionary, ‘Prerogative 

Powers’ www.lexisnexis.com/ 

au/legal/search/runRemoteLink. 

dobct=A&risb=21_T3299302 

778&homeCsi=267785&A=0.8 

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ekey1=REFPTID&refpt=PREROG 

ATIVE-POWERS&service=DOC- 

ID&origdpsi=0034>at 18 March, 

2008. 

741

Glossary 

interlocutory application – ‘An application to a court to make an order before the court makes a final order in the proceeding’.* 

inter partes – between parties. 

interrogatories – ‘A form of discovery that involves one party asking the other party specific questions relating to the matters in issue 

in the proceedings in a written form in accordance with the rules of the Court.’* 

jurisdictional error – ‘The purported exercise by a tribunal or court of jurisdiction in excess of that which has been conferred upon it, 

or the failure to exercise its proper jurisdiction. Jurisdictional error is a ground for judicial review.’* 

legal professional privilege – ‘A common law privilege which provides that confidential communications between legal 

practitioner and client for the sole purpose of the client obtaining, or the legal practitioner giving, legal advice or for use in existing or 

contemplated litigation need not be given in evidence nor disclosed by the client or by the legal practitioner without the consent of 

the client: (Grant v Downs (1976) 135 CLR 674’.*The precise scope of the common law legal professional privilege is unclear (Cadbury 

Schweppes Pty Ltd v Amcor Limited [2008] FCA 88 [6] (Gordon J). Privilege relating to legal ‘advice’ and privilege relating to ‘litigation’ 

is also governed by evidence legislation in many Australian jurisdictions. 

letter of demand – is usually sent by a solicitor on behalf of a client prior to the institution of proceedings. The letter usually sets out 

the general nature of a claim/complaint and what is required to be done and by when in order to resolve the claim before the author 

takes further action to enforce his or her rights. 

liability – ‘a person’s present or prospective legal responsibility, duty or obligation’.* 

mandamus – ‘we command. An order issued by a court to compel a public official to perform a public duty or to exercise a statutory 

discretionary power’.* 

nolle prosequi – ‘unwilling to proceed. An entry made in a court record when the prosecutor or plaintiff is unwilling to continue the 

proceedings against the defendant. In criminal proceedings, a decision by the Attorney-General or the Director of Public Prosecutions 

not to continue with a prosecution or indictment after a bill has been found. A nolle prosequi does not establish the innocence of an 

accused, against whom another indictment may later be presented for the same or similar offence.’* 

party–party costs – ‘Fair and reasonable costs, including fees, charges, disbursements, expenses and remuneration, incurred by a 

party in enforcing or defending their legal rights.’ * 

prerogative powers – ‘The common law powers of the Crown derived from the Queen… Such prerogatives are subject to the 

Commonwealth Constitution and may be circumscribed or extinguished by legislation… Some prerogative powers are vested in the 

Attorney-General as first law officer of the Crown’. # 

prerogative writ – a ‘writ traditionally within the power of a superior court to issue in its exercise of supervision of the administration 

of justice’. ‘There are six writs in all – mandamus, prohibition, procedendo, certiorari, quo warranto, and habeas corpus’. 

pro bono- ‘Legal work performed free or at a reduced rate’. * 

procedural fairness – ‘Common law principles applied to statutory and prerogative powers to ensure the fairness of a decisionmaking 

procedure of courts and administrators. The term is used interchangeably with natural justice’.* 

prohibition – ‘A type of prerogative remedy issued by a court to prevent a tribunal or inferior court which is acting in excess of its 

jurisdiction, from proceeding any further’.* 

proportionate liability – The sharing of liability between parties proportionate to their relative blameworthiness or degree of fault 

with regard to the same incident. 

quantum – amount claimed or due to a particular party. 

quo warranto – ‘by what authority. A writ requiring a person to show by what warrant he or she holds official office or exercises a 

function.’ * 

res judicata – a judicially determined matter. The rule that if a dispute is judged by a court, then the judgment of the court is finally 

between the parties to that dispute. 

restitution – ‘restoration of property or rights previously taken away, conveyed or surrendered’. 

tort – wrong. ‘A civil injury, actionable by a private individual, as opposed to a criminal wrong, actionable by the state.’ 

ultra vires – ‘beyond the power. An ultra vires act is beyond the legal power or authority of a person, institution, or legislation, and 

therefore invalid’.* 

unjust enrichment – ‘a benefit for which the recipient is required to make restitution to the person at whose expense it was 

obtained. An enrichment is unjust of for example, the enrichment was provided by mistake, under duress or influence…’* 

viva voce – an examination where questions are asked and answered orally rather than in writing. 


Bibliography 

Abel, Richard, English Lawyers Between Market and State: The Politics of 

Professionalism (Oxford University Press, 2003) 

Access to Justice Advisory Committee, Access to Justice: An Action Plan 

(1994) 

Administrative Appeal Tribunal, Alternative Dispute Resolution (ADR) 

Guidelines at 28 April, 

2008 

Administrative Appeal Tribunal, Case Appraisal Process Model at 28 April, 2008 

Administrative Appeal Tribunal, Conciliation Process Model at 28 April, 2008 

Administrative Appeal Tribunal, Neutral Evaluation Process Model 

at 28 

April, 2008 

Administrative Review Council, Better Decisions: Review of the 

Commonwealth Merits Review Tribunals, Report No 39 (Canberra, 1995) 

Alberta Law Reform Institute, Alberta Rules of Court: Test Draft 3 (2007) 

Alberta Law Reform Institute, Promoting Early Resolution of Disputes by 

Settlement, Alberta Rules of Court Project Consultation Memorandum 

No 12.6 (2003) 

Alberta Law Reform Institute, Management of Litigation, Alberta Rules 

of Court Project Consultation Memorandum No 12.5 (2003) 

Alberta Law Reform Institute, Alberta Rules of Court Project: Expert 

Evidence and “Independent” Medical Examinations, Consultation 

Memorandum No 12.3 

(2003) 

Alberta Law Reform Institute, Alberta Rules of Court Project Document 

Discovery and Examination for Discovery, Consultation Memorandum 

No. 12.2 (2002) 

Alberta Law Reform Institute, Class Actions, Final Report 85 (2000) 

Alberta Law Reform Institute, Civil Litigation: The Judicial Mini-Trial, 

Discussion Paper No 1 (1993) 

Alexander, Phillipa, ‘Reasonable Prospects of Success and Costs Orders 

Against Solicitors’ (2006) 75 Precedent 44 

Allen Consulting Group, Report to the Department of Premier and 

Cabinet, Victorian Office of Multicultural Affairs: A Needs Analysis of 

Language Services: Final Report: Summary Only (2002) 

Altobelli, Tom, ‘Family Law Rules 2004’ (2004) 18 Australian Journal of 

Family Law 1 

American Law Institute, Principles of the Law of Aggregate Litigation, 

Discussion Draft 2 (2007) 

Anderson, Jill, Willams, Neil and Hunter, Jill, The New Evidence Law: 

Annotations and Commentary on the Uniform Evidence Acts, (LexisNexis 

Butterworths, 2002) 

Anderson, William, Parsons, Barry and Rennie, Drummond, ‘Daubert’s 

Backwash: Litigation-Generated Science’ (2001) 34 University of 

Michigan Journal of Law Reform 619 

Andrews, Neil, English Civil Procedure: Fundamentals of the New Civil 

Justice System (Oxford University Press, 2003) 

Andrews, Neil, ‘The Pre-Action Phase: General Report’ (Paper presented 

at the World Congress of Procedural Law, International Association of 

Procedural Law, Brazil, 16–21 September 2007) 

Ardagh, Anne and Cumes, Guy, ‘Lawyers Post-ADR: Mediation and 

Collaborative Law’ (2007) 10 (2) ADR Bulletin 30 

Ardagh, Anne and Cumes, Guy, ‘The Legal Profession Post-ADR: 

From Mediation to Collaborative Law’ (2007) 18 Australasian Dispute 

Resolution Journal 205 

Association of British Insurers, Delivering a Fair and Efficient 

Compensation System (2005) 

Astor, Hilary and Chinkin, Christine, Dispute Resolution in Australia (2nd 

ed, LexisNexis Butterworths, 2002) 

Atkinson, Jenny and Olischlanger, Stephen, An Introduction to Civil 

Procedure Act 2005, Uniform Civil Procedure Rules 2005 (Attorney 

General’s Department of NSW, 2005) 

Attorney-General’s Department [Australia], Federal Civil Justice System 

Strategy Paper (2003) 

Australia, HIH Royal Commission, The Failure of HIH Insurance: Volume 1 

A Corporate Collapse and Its Lessons (2003) 

Australian Consumers’ Association, Submission on the Review of the 

Competition Provisions of the Trade Practices Act 1974: Summary of 

Recommendations (2002) 

Australasian Institute of Judicial Administration, Guide to Judicial 

Conduct (2 nd ed, 2007) 

Australian Institute of Judicial Administration, Guide to Judicial Conduct 

(2002) 

Australian Institute of Judicial Administration, Litigants in Person 

Management Plans: Issues for Courts and Tribunals (2001) 

Australian Institute of Judicial Administration and the Federal Court of 

Australia, Forum on Self-Represented Litigants: Report (2005) 

Australian Law Reform Commission, Access to the Courts - 11 Class 

Actions, Summary of Discussion Paper No. 11 (1979) 

Australian Law Reform Commission, Civil Litigation Practice and 

Procedure, Background Paper No 5 (1996) 

Australian Law Reform Commission, Client Legal Privilege and Federal 

Investigatory Bodies, Issues Paper 33 (2007) 

Australian Law Reform Commission, Compliance with the Trade Practices 

Act 1974, Report 68 (1994) 

Australian Law Reform Commission, Costs Shifting - Who Pays for 

Litigation, Report 75 (1995) 

Australian Law Reform Commission, Evidence, Volume 1, Interim Report 

26 (1985) 

Australian Law Reform Commission, General Insolvency Inquiry, Report 

45 (1988) 

Australian Law Reform Commission, Managing Justice, A Review of the 

Federal Civil Justice System, Report No 89 (2000) 

Australian Law Reform Commission, Privilege in Perspective: Client Legal 

Privilege in Federal Investigations, Report 107 (2008) 

Australian Law Reform Commission, Review of the Adversarial System of 

Litigation: Federal Tribunal Proceedings, Issues Paper 24 (1998) 

Australian Law Reform Commission, Review of the Adversarial System of 

Litigation: Rethinking the Federal Civil Litigation System, Issues Paper 20 

(1997) 

Australian Law Reform Commission, Review of the Federal Civil Justice 

System, Discussion Paper 62 (1999) 

743

Bibliography 

Australian Law Reform Commission, Grouped Proceedings in the Federal 

Court, Report 46 (1988) 

Australian Law Reform Commission, New South Wales Law Reform 

Commission, Victorian Law Reform Commission, Uniform Evidence Law 

Australian Law Reform Commission Report 102 (2005); New South 

Wales Law Reform Commission Report 112 (2005); Victorian Law 

Reform Commission Final Report (2005) 

Australian Medical Association (South Australia) and the Law Society of 

South Australia, The Medico-Legal Joint Statement (2005) 

Backer, Inge Lorange, ‘The Norwegian Reform of Civil Procedure’ (2007) 

51 Scandinavian Studies in Law 41 

Bamford, David, ‘Stretching Civil Procedure: The Growth of Pre-Action 

Requirements’ (Paper presented at the ‘Civil Litigation Conference’, 

University of Melbourne Law School, 22 September 2006) 

Banking and Financial Services Ombudsman, Annual Report 2005–06 

(2006) 

Banking and Financial Services Ombudsman, Banking and Financial 

Services Ombudsman Terms of Reference (as from 1 December 2004) 

Basten, John, ‘Limits on Procedural Fairness’ (Paper presented at the 

‘AIAL Administrative Law Forum’, Canberra, 30 June 2005) 

Beaumont, Bryan, ‘Contemporary Judgment Writing: The Problem 

Restated’ (1999) 73 Australian Law Journal 743 

Bedford, Narelle and Creyke, Robin, Inquisitorial Processes in Australian 

Tribunals (Australian Institute of Judicial Administration, 2006) 

Behrens, Mark and Crouse, Andrew, ‘The Evolving Civil Justice Reform 

Movement: Procedural Reforms have Gained Steam, but Critics Still 

Focus on Arguments of the Past’ (2006) 31(2) University of Dayton Law 

Review 173 

Berryman, Jeff, ‘Class Actions (Representative Proceedings) and the 

Exercise of the Cy-press Doctrine: Time for Improved Scrutiny’ (Paper 

presented at the ‘Second International Symposium on the Law of 

Remedies’, Auckland, 16 November 2007) 

Biscoe, Peter, ‘Expert Witnesses: Recent Developments in NSW’ (Paper 

presented at the ‘Australasian Conference of Planning and Environment 

Courts and Tribunals’, New South Wales, 16 September 2006) 

Blankenship, John, ‘Developing Your ADR Attitude—Med-Arb, a 

Template for Adaptive ADR’ (2006) 42(11) Tennessee Bar Journal 28 

Boxsell, Alex, ‘Arbitration Moves into the Fast Lane’ (30 November 2006) 

Lawyers Weekly Online reproduced by the Institute of Arbitrators and 

Mediators Australia at 


Bridge, Michael, ‘Does Ango-Canadian Contract Law Need a Doctrine of 

Good Faith’ (1984) 9(4) Canadian Business Law Journal 385 

British Columbia Justice Review Task Force, Effective and Affordable Civil 

Justice: Report of the Civil Justice Reform Working Group to the Justice 

Review Taskforce (2006) 

Bronaugh, Richard (ed), Philosophical Law—Authority, Equality, 

Adjudication, Privacy (Greenwood Press, 1978) 

Brouwer, G, ‘Inquisitorial and Adversary Procedures – A Comparative 

Analysis’ (1981) 55 The Australian Law Journal 207 

Bryant, Diana, ‘State of the Nation’ (Paper presented at the ‘12th 

National Family Law Conference’, Perth, 23 October 2006) 

Bryant, Diana, ‘Self Represented and Vexatious Litigants in the Family 

Court of Australia’ (Paper presented at the ‘Access to Justice: How Much 

is Too Much Conference’ Monash University, Prato, Italy, 20 June–1 

July 2006) 

Burbank, Stephen, ‘Judicial Accountability to the Past, Present and 

Future: Precedent, Politics and Power’ (2005) 28 University of Arkansas 

Little Rock Law Review 19 

Burbank, Stephen, ‘Is It Time For a National Commission on Judicial 

Independence and Accountability’ (1990) 73(4) Judicature 176 

Butterworths, Halsbury’s Laws of Australia (at 20 April 2008) 

Byrne, Seamus, Controlling the Flow (2007) Lawyers Weekly Online 

at 20 February 2008 

Cairns, Bernard, ‘A Review of Some Innovations in Queensland Civil 

Procedure’ (2005) 26(2) Australian Bar Review 1 

Cameron, Camille, Kelly, Elsa and Chui, Eric Wing Hong, ‘Judges’ 

Perspective on the Impact of Self-Representation in Hong Kong Civil 

Cases’ (2006) 8(3) Australian Journal of Asian Law 260 

Cameron, Camille and Liberman, Jonathan, ‘Destruction of Documents 

Before Proceedings Commence: What is a Court to Do’ (2003) 27 

Melbourne University Law Review 273 

Cameron, Camille and Taylor-Sands, Michelle, ‘”Playing Fair”: 

Governments as Litigants’ (2007) 26 Civil Justice Quarterly 497 

Campbell, Enid, ‘Reasons for Judgment: Some Consumer Perspectives’ 

(2003) 77(1) Australian Law Journal 62 

Campbell, Enid, ‘Public Interest Costs Orders’ (1998) 20 Adelaide Law 


Canadian Bar Association Task Force, Report of the Canadian Bar 

Association Task Force on Systems of Civil Justice (1996) 

Cannon, Andrew, An Evaluation of Some Ways of Limiting and Reducing 

the Costs to Parties of Conducting Litigation in the Magistrates Court 

(Civil Division) in South Australia (Unpublished LLM (Hons), University of 

Wollongong, 1996) 

Cannon, Andrew, ‘Courts Using Their Own Experts’ (2004) 13(3) Journal 

of Judicial Administration 182 

Cannon, Andrew, Some Desirable Features of Lower Court Systems 

to Verify and Enforce Civil Obligations (Unpublished PhD, University of 

Woollongong, 2000) 

Cannon, Andrew, ‘What is the Proper Role of Judicial Officers in ADR’ 

(2002) 13(4) Australasian Dispute Resolution Journal 253 

Cao, Lijun, ‘Combining Conciliation and Arbitration in China: Overview 

and Latest Developments’ (2006) (3) International Arbitration Law 


Cashman, Peter, Class Action Law and Practice (Federation Press, 2007) 

Cashman, Peter, ‘Class Actions on Behalf of Clients: Is This Permissible’ 

(2006) 80 Australian Law Journal 738 

Certoma, Giuseppe, ‘The Accusatory System v. The Inquisitorial System: 

Procedural Truth v. Fact’ (1982) 56 Australian Law Journal 288 

Civil Justice Council [UK], Court-Based Mediation: A Preliminary Analysis 

of the Small Claims Mediation Scheme at Exeter County Court (2004) 

at 


Civil Justice Council [UK], Protocol for the Instruction of Experts to give 

Evidence in Civil Claims (2005) 

Civil Procedure (The White Book) UK, Sweet & Maxwell 

Chief Justice’s Working Party on Civil Justice Reform [Hong Kong], Final 

Report (2004) 


Chief Justice’s Working Party on Civil Justice Reform [Hong Kong], 

Interim Report (2001) 

Chodosh, Hiram, ‘Judicial Mediation and Legal Culture’ (1999) 4(3) 

Issues of Democracy, US Department of State Electronic Journal at 19 March 2008 

Chris Field Consulting Pty Ltd, Alternative Dispute Resolution in Victoria: 

Supply-Side Research Project: Research Report (Department of Justice 

[Victoria], 2007) 

Church, Thomas and Sallmann, Peter, Governing Australia’s Courts 

(Australian Institute of Judicial Administration, 1991) 

Civil Justice Council, Improved Access to Justice – Funding Options & 

Proportionate Costs (2005) 

Civil Justice Reform Working Group [British Columbia], Effective and 

Affordable Civil Justice: Report of the Civil Justice Reform Working 

Group to the Justice Review Taskforce (2006) 

Clarke, Anthony, ‘The Importance of Civil Justice: Nationally and 

Internationally’ (Paper presented at the ‘American Bar Association 

Conference’, London, 3 October 2007) 

Cohen, Geoffrey and Duthie, Leigh, ‘The Role of the Special Referee’ 

(1993) 67(11) Law Institute Journal 1056 

Colbran, Stephen, et al, Civil Procedure: Commentary and Materials (3rd 

ed, LexisNexis Butterworths, 2005) 

‘Collaboratively Speaking’ (2007) 81 (4) Law Institute Journal 22 

Conlon, Donald, Moon, Henry and Ng, K Yee, ‘Putting the Cart Before 

the Horse: The Benefits of Arbitrating Before Mediating’ (2002) 87(5) 

Journal of Applied Psychology 978 

Consumer Law Centre Victoria and Conflict Resolution Research Centre, 

La Trobe University, Dispute Resolution Processes for Credit Consumers 

Background Paper (2005) 

Cooke, John, ‘Judicial Method and Technique in Anti-Trust Litigation: 

The European Courts’ (2005) 13 Competition and Consumer Law 

Journal 1 

Cooper, Penny, Expert Witness Lessons: A Study of Expert Witness 

Training and How It Might be Improved (City University, 2007) 

Corones, Stephen, ‘Solicitors’ Liability for Misleading Conduct’ (1998) 72 

Australian Law Journal 775 

Coulter Osborne, Civil Justice Reform Project Summary of Findings & 


Coulter Osborne, Civil Justice Reform Project: Consultation Paper (2006) 

Coumarelos, Christine, Wei, Zhigang and Zhou, Albert, Justice Made to 

Measure: NSW Legal Needs Survey in Disadvantaged Areas: Access to 

Justice and Legal Needs: Volume 3 (Law and Justice Foundation of New 

South Wales, 2006) 

County Court of Victoria, 2006–07 Annual Report (2007) 

County Court of Victoria, 2005-06 Annual Report (2006) 

County Court of Victoria, Self Represented Litigants Information Kits 

(2004) 

Court of Appeal [Quebec], The Conciliation Service Program of the Court 

of Appeal at 25 July 2007 

Courts Consultative Council [Victoria], Courts Strategic Directions Project 

(2004) 

Crown Counsel, Department of Justice [Victoria], Report on Document 

Destruction and Civil Litigation in Victoria (2004) 

Crown Counsel, Department of Justice [Victoria], Review of Master and 

Costs Office: Issues Paper (2006) 

Crown Counsel, Department of Justice [Victoria], Review of Office of 

Master and Costs Office Report: Report to the Attorney-General (2007) 

Curtis, Dennis and Resnick, Judith, ‘Teaching Billing Metrics of Value in 

Law Firms and Law Schools’ (2002) 54 Stanford Law Review 1409 

Dal Pont, Gino, Lawyers’ Professional Responsibility (3rd ed, Lawbook 

Co, 2006) 

Dal Pont, Gino, ‘Lawyers’ Charging and Access to Justice’ (Paper 

presented at the ‘24th Australian Institute for Judicial Administration 

Annual Conference, “Affordable Justice in 2006 – Exploring New 

Initiatives for Courts, Tribunals, Litigants and the Legal Profession”’, 

Adelaide, 15–17 September 2006) 

Davies, Geoffrey, ‘Court Appointed Experts’ (2005) 5(1) Queensland 

University of Technology Law and Justice Journal 89 

Davies, Geoffrey, ‘Civil Justice Reform: Why We Need to Question Some 

Basic Assumptions’ (2006) 25 Civil Justice Quarterly 32 

Davies, Geoffrey, ‘Managing the Work of the Courts’ (Paper presented 

at the ‘Australian Institute of Judicial Administration Asia-Pacific Courts 

Conference ‘Managing Change’’, Sydney, 22–24 August 1997) 

Dean, Robert, The Law of Trade Secrets and Personal Secrets (2nd ed, 

Lawbook Co, 2002) 

Debelle, Bruce, ‘Should Judges Act As Mediators ‘ (Paper presented 

at the ‘Institute of Arbitrators and Mediators Australia New Horizons in 

ADR’, Adelaide, 1–3 June 2007) 

Demaine, Linda and Hensler, Deborah, ‘Mandatory Arbitration 

“Volunteering” to Arbitrate Through Predispute Arbitration Clauses: 

The Average Consumer’s Experience’ (2004) 67 Law and Contemporary 

Problems 55 

Department for Constitutional Affairs [UK], Civil Procedure Rule 

Committee Annual Report October 2005 – September 2006 (2007) 

Department for Constitutional Affairs [UK], Human Rights: Human Lives: 

A Handbook for Public Authorities (2006) 

Department for Constitutional Affairs [UK], Further Findings: A 

Continuing Evaluation of the Civil Justice Reforms (2002) 

Department for Constitutional Affairs [UK], Emerging Findings: An Early 

Evaluation of the Civil Justice Reforms (2001) 

Department of Industry, Science and Tourism [Australia], Benchmarks for 

Industry-Based Customer Dispute Resolution Schemes (1997) 

Department of Justice [Victoria], Government Legal Services Annual 

Report 2005/2006 (2007) 

Department of Justice [Victoria], Strategic Priorities 2007: A Statement 

of Our Focus and Direction (2007) 

Department of Justice [Victoria], Department of Justice Strategic 

Priorities 2006: A Statement of Our Focus and Direction (2006) 

Department of Justice [Victoria], Dispute Settlement Centre of Victoria: 

Information Kit (2006) 

Department of Justice [Victoria], Government Legal Services 2004/2005 

Annual Report (2006) 

Department of Justice [Victoria], Language Services Policy and Guidelines 

for Working with Interpreters and Translators (2006) 

745

Bibliography 

Department of Justice [Victoria], Government Legal Services Report to 

Attorney-General 1 July 2003 – 30 June 2004 (2005) 

Department of Justice [Victoria], New Directions for the Victorian Justice 

System 2004–2014: Attorney-General’s Justice Statement (2004) 

Department of Justice [Victoria], Government Legal Services Report to 

Attorney-General 1 July 2002 – 30 June 2003 (2003) 

Department of Treasury [Australia], Regulation of Discretionary Mutual 

Funds and Direct Offshore Foreign Insurers, Discussion Paper (2005) 

Department of Treasury [Australia], Review of Discretionary Mutual 

Funds and Direct Offshore Foreign Insurers (2004) 

Dewar, John, Jerrad, Bronwyn and Bowd, Fiona, ‘Self-Representing 

Litigants: A Queensland Perspective’ (2002) 23 Queensland Lawyer 65 

Downes, Garry, ‘Expert Witnesses in Proceedings in the Administrative 

Appeals Tribunal’ (Paper presented at the ‘The NSW Bar Association, 

Administrative Law Section’, Sydney, 22 March 2006) 

Downes, Garry, ‘Problems with Expert Evidence: Are Single or 

Court-Appointed Experts the Answer’ (2006) 15 Journal of Judicial 

Administration 185 

Downes, Garry, ‘Concurrent Expert Evidence in the Administrative 

Appeals Tribunal: The New South Wales Experience’ (Paper presented at 

the ‘Australasian Conference of Planning and Environment Courts and 

Tribunals’, Hobart, 27 February 2004) 

Doyle, John, ‘Judgment Writing: Are There Needs for Change’ (1999) 

73 Australian Law Journal 738 

Doyle, C J, ‘Judicial Independence’ (1997–1998) 16 Australian Bar 


Dwyer, Deidre, ‘The Causes and Manifestations of Bias in Civil Expert 

Evidence’ (2007) 26 Criminal Justice Quarterly 425 

Dwyer, Deirdre, ‘The Effective Management of Bias in Civil Expert 

Evidence’ (2007) 26 Civil Justice Quarterly 57 

Early Dispute Resolution Working Group [Nova Scotia], Progress Report 

(2005) 

Edmond, Gary, ‘Secrets of the “Hot Tub”: Expert Witnesses, Concurrent 

Evidence and Judge-led Law Reform in Australia’ (2008) 27 (1) Civil 

Justice Quarterly 51 

Edmond, Gary, Expert Evidence: Submission to the NSW Law Reform 

Commission (2005) 

Edmond, Gary, ‘After Objectivity: Expert Evidence and Procedural 

Reform’ (2003) 25 Sydney Law Review 131 

Eggleston Richard, ‘What is Wrong with the Adversary System’ (1975) 

49 Australian Law Journal 428 

Ellison, Sarah, et al, Access to Justice and Legal Needs: The Legal Needs 

of Older People in NSW (Law and Justice Foundation of New South 

Wales, 2004) 

Ervo, Laura, ‘Scandinavian Trends in Civil Pre-Trial Proceedings’ (2007) 

26 Civil Justice Quarterly 466 

Evidence Working Group [Nova Scotia], Final Report of the Evidence 

Working Group, Civil Procedure Rules Revision Project (2005) 

Eyland, Ann, et al, Case Management Reform: An Evaluation of the 

District Court of NSW and County Court of Victoria 1996 Reforms (Law 

and Justice Foundation of New South Wales, 2003) 

Family Court of Australia, Annual Report 2006-2007 (2007) 

Family Law Council, The Answer from an Oracle: Arbitrating Family Law 

Property and Financial Matters, Discussion Paper (2007) 

Family Law Council, Collaborative Practice in Family Law: A Report to the 

Attorney-General (2006) 

Federal Court Liaison Committee, Law Council of Australia, Final Report 

in Relation to Possible Innovations to Case Management (2006) 

Federal Court of Australia, Annual Report 2006/2007 (2007) 

Federal Court of Australia, Annual Report 2003/2004 (2004) 

Federal Judicial Centre, Manual for Complex Litigation, Fourth (2004) 

Fenn, Paul and Rickman, Neil, Costs of Low Value Employers’ Liability 

Claims 1997–2002 (Department for Constitutional Affairs, 2003) 

Field, Chris, Current Issues in Consumer Law and Policy (Pearson 

Education Australia, 2006) 

Financial Industry Complaints Service, Financial Industry Complaints 

Service Rules (as at 1 June 2007) 

Financial Industry Complaints Service, FICS Annual Review 2005 Working 

Together (2006) 

Fix-Fierro, Héctor, Justice and Efficiency: A Socio-Legal Study of 

Economic Rationality in Adjudication (Hart Publishing, 2003) 

Ford, Cameron, ‘Advocates’ Liability for Wasted Costs’ (2005) 16 

Insurance Law Journal 1 

Forell, Suzie, McCarron, Emily and Schetzer, Louis, No Home, No 

Justice The Legal Needs of Homeless People in NSW (Law and Justice 

Foundation of New South Wales, 2005) 

Freckelton, Ian, ‘Immunity for Experts from Disciplinary Regulation’ 

(2006) 13 Journal of Law and Medicine 393 

Freckelton, Ian, ‘Querulent Paranoia and the Vexatious Complainant’ 

(1988) 11 International Journal of Law and Psychiatry 129 

Freckelton, Ian, Reddy, Prasuna and Selby, Hugh, Australian Judicial 

Perspectives on Expert Evidence: An Empirical Study (Australian Institute 

of Judicial Administration, Carlton, 1999) 

Galanter, Marc and Cahill, Mia, ‘“Most Cases Settle”: Judicial Promotion 

and Regulation of Settlements’ (1994) 46 Stanford Law Review 1339 

Gans, Jeremy and Palmer, Andrew, Australian Principles of Evidence (2nd 

ed) (Cavendish Publishing, 2004) 

Gardner, Julian, ‘Foreword’ in Jeff Giddings (ed) Legal Aid in Victoria: At 

the Crossroads Again (Fitzroy Legal Service, 1998) 

Genn, Hazel, et al, Twisting Arms: Court Referred and Court Linked 

Mediation Under Judicial Pressure (Ministry of Justice [UK], 2007) 

Gibbs, Harry, ‘Judgment Writing’ (1993) 67 Australian Law Journal 494 

Giddings, Jeff (ed), Legal Aid in Victoria: At the Crossroads Again (Fitzroy 

Legal Service, 1998) 

Gladwell, David, ‘Modern Litigation Culture: The First Six Months of 

the Civil Justice Reforms in England and Wales’ (2000) 19 Civil Justice 

Quarterly 9 

Glanfield, Laurie, ‘Consistency in Court rules—The NSW Partnership’ 

(Paper presented at the ‘22nd Australian Institute for Judicial 

Administration Annual Conference ‘Proportionality—Cost-Effective 

Justice’’, Sydney, 17–19 September 2004). 

Gleeson, Murray, ‘Conference Opening and Keynote Address’ (Paper 

presented at the ‘National Access to Justice and Pro Bono Conference’, 

Melbourne, 11 August 2006) 


Gleeson Murray, ‘State of the Judicature’ (Speech delivered at the 

Australian Legal Convention, Canberra, 10 October 1999) 

Gleeson, Murray, ‘The State of the Judicature’ (Paper presented at the 

‘13th Commonwealth Law Conference’, Melbourne, 17 April 2003) 

Gleeson, Murray, ‘Are the Professions Worth Keeping’ (Paper presented 

at the ‘Greek-Australian International Legal and Medical Conference’, 

Kos, Greece, 31 May 1999) 

Gleeson, Murray, ‘The Future of Civil Litigation – Adjudication or Dispute 

Resolution’ (Paper presented at the ‘ALTA Conference’, Dunedin, 7 July 

1998) 

Gleeson, Murray, ‘Individualised Justice - The Holy Grail’ (1995) 69 


Gleeson, Murray, ‘Judicial Accountability’ (Paper presented at the ‘Courts 

in a Representative Democracy’, Canberra, 13 November 1994) 

Goldschmid, Robert, Discussion Paper: Major Themes of Civil Justice 

Reform (Civil Justice Reform Working Group [British Columbia], 2006) 

Golvan, George, ‘Innovative Hybrid Dispute Resolution Processes’ (Paper 

presented at the ‘Victorian Bar Continuing Legal Education Program’, 

Melbourne, 25 September 2007) 

Goriely, Tamara, Moorhead, Richard and Abrams, Pamela, More Civil 

Justice The Impact of the Woolf Reforms on Pre-Action Behaviour, 

Research Study 43 (Law Society and Civil Justice Council, 2002) 

Gourlay, David, ‘Access or Excess: Interim Costs in Okanagan’ (2005) 63 

University of Toronto Faculty of Law Review 111 

Government Legal Services, Department of Justice [Victoria], Annual 

Report to Attorney General 2004-2005 (2006) 


Report to Attorney General 2003–2004 (2005) 


Report to Attorney General 2002-2003 (2003) 

Green, Guy, ‘The Rationale and Some Aspects of Judicial Independence’ 


Groves, Matthew and Smyth, Russell, ‘A Century of Judicial Style: 

Changing Patterns in Judgment Writing on the High Court 1903–2001’ 

(2004) 32 Federal Law Review 255 

Hamilton, John, ‘Containment of Costs: Litigation and Arbitration’ (Paper 

presented at the ‘IAMA Conference’, Adelaide, 1–3 June 2007) 

Hamilton, John, ‘The New Procedure: Nuts and Bolts for Judicial Officers’ 

(Paper presented at the ‘Judicial Commission of NSW’, Sydney, 16 

August 2005) 

Hamilton, John, ‘The NSW Civil Procedure Bill 2004 and the Uniform 

Civil Procedure Rules: An Introduction’ (Paper presented at the ‘22nd 

Australian Institute for Judicial Administration Annual Conference 

‘Proportionality—Cost-Effective Justice’’, Sydney, 17–19 September 

2004) 

Hann, Robert and Baar, Carl, Evaluation of the Ontario Mandatory 

Mediation Program (Rule 24.1): Final Report—The First 23 Months 

(Robert Hann and Associates Ltd, 2001) 

Hann, Robert and Baar, Carl, Evaluation of the Ontario Mandatory 

Mediation Program (Rule24.1): Executive Summary and 

Recommendations: Submitted to Civil Rules Committee: Evaluation 

Committee for the Mandatory Mediation Pilot Project (Queen’s Printer, 

2001) 

Hanycz, Colleen, ‘More Access to Less Justice: Efficiency, Proportionality 

and Costs in Canadian Civil Justice Reform ‘ (2008) 27(1) Civil Justice 

Quarterly 98 

Hayne, Kenneth, ‘The Vanishing Trial’ (Paper presented at the ‘Supreme 

and Federal Courts Judges Conference’, Sydney, 23 January 2008) 

Heerey, Peter, ‘Some Lessons From Santos’ (1994) Australian Lawyer 24 

Hensler, Deborah, ‘Private Litigation as (a Form of) Governance’ (Paper 

presented at the ‘Melbourne University School of Law’, August 2007) 

Hensler, Deborah, ‘What We Know and Don’t Know About Court- 

Administered Arbitration’ (1986) 69 Judicature 270 

Heydon, J D, Cross on Evidence (6th ed) (Butterworths, Sydney, 2000) 

Higgins, Ruth, ‘The Equitable Doctrine of Cy-Près and Consumer 

Protection’ (2002) The Trade Practices Review, at 10 

December 2007 

Hogan, Vincent, A Cost-Benefit Analysis of the Personal Injuries 

Assessment Board (Personal Injuries Assessment Board, 2006) 

Human Rights Committee, United Nations, General Comment 32, Article 

14: Right to Equality before Courts and Tribunals and to a Fair Trial, UN 

Doc CCPR/C/GC/32 (2007) 

Hurst, Peter, ‘Going Round in Circles’ (2006) 25 Civil Justice Quarterly 

546 

IMF (Australia) Ltd, Litigation Funding for Consumers of Civil Justice 

System Services (2006) 

Insurance Ombudsman Service, Insurance Ombudsman Service Terms of 

Reference (at 1 June 2007) 

Insurance Ombudsman Service, IOS Annual Review 2006 

Ipp, David, ‘Lawyers’ Duties to the Court’ (1998) 114 Law Quarterly 


Ipp, David, ‘Judicial Intervention in the Trial Process’ (1995) 69 Australian 

Law Journal 365 

Ipp, David, ‘Reforms to the Adversarial Process in Civil Litigation – Part I’ 


Ipp, David, ‘Reforms to the Adversarial Process in Civil Litigation - Part II’ 

(1995) 69 (10) Australian Law Journal 790 

Ipsos Australia Pty Ltd, Dispute Resolution in Victoria: Community Survey 

2007 (Department of Justice [Victoria], 2007) 

Jacob, Joseph, Civil Justice in the Age of Human Rights (Ashgate 

Publishing, 2007) 

Jacobs, Paul, ‘A Recent Comparative History of Mandatory Mediation 

vs Voluntary Mediation in Ontario, Canada’ (April 2005) Mediation 

Newsletter at 19 March 2008 

Johnson, Adam and McIntosh, Maura, New Technologies and the Civil 

Litigation Process: Report for England and Wales (Osgoode Hall Law 

School, York University, 2007) 

Joseph, Gregory, et al (eds), Moore’s Federal Practice (Matthew Bender, 

2006) 

Judicial Council of California, Administrative Office of the Courts, Model 

Self-Help Pilot Program: A Report to the Legislature (2005) 

Judiciary of England and Wales, Report and Recommendations of the 

Commercial Court Long Trials Working Party (2007) 

747

Bibliography 

Kakalik, James, et al, An Evaluation of Mediation and Early Neutral 

Evaluation Under the Civil Justice Reform Act (RAND Institute for Civil 

Justice, 1996) 

Karras, Maria, et al, On the Edge of Justice: The Legal Needs of People 

with a Mental Illness in NSW: Volume 4 (Law and Justice Foundation of 

New South Wales, 2006) 

Kenny, Susan, ‘Interveners and Amici Curiae in the High Court’ (1998) 

20 Adelaide Law Review 159 

Kirby, Michael, ‘Reasons for Judgment: ‘Always Permissible, Usually 

Desirable and Often Obligatory’’ (1994) 12 Australian Bar Review 1 

Kitto, Frank, ‘Why Write Judgments’ (1992) 66 Australian Law Journal 

787 

Land and Environment Court, Land and Environment eCourt—User’s 

Manual (2002) 

Landerkin, Hugh, ‘Judges as Mediators: What’s the Problem with Judicial 

Dispute Resolution in Canada’ (2003) 82(2) Canadian Bar Review 249 

Latimer, Paul, Hocken, Michael and Marsden, Stephen, ‘Legal 

Representation in Australia before Tribunals, Committees and other 

Bodies’ (2007) 14(2) Murdoch University eLaw Journal 122. 

Law Council of Australia, Erosion of Legal Representation in the 

Australian Justice System (2004) 

Law Council of Australia, Litigation Funding: Standing Committee of 

Attorneys-General (Canberra, 2006) 

Law Council of Australia Federal Court Liaison Committee, Final Report 

in Relation to Possible Innovations to Case Management (2006) 

Law Institute of Victoria, Guidelines for Co-operation Between Doctors 

and Lawyers (last modified 22 March, 2005). 

Law and Justice Foundation of New South Wales, Quantitative Legal 

Needs Survey Bega Valley (Pilot) (2003) 

Law Reform Commission of Hong Kong, Conditional Fees, Consultation 

Paper (2005) 

Law Reform Commission of Victoria, Access to the Law: Restrictions on 

Legal Practice, Report 47 (1992) 

Law Reform Commission of Victoria, Access to the Law: Restrictions on 

Legal Practice, Discussion Paper 23 (1991) 

Law Reform Commission of Western Australia, Review of the Criminal 

and Civil Justice System in Western Australia: Final Report, Project 92 

(1999) 

Law Reform Commission of Western Australia, Discovery—Should 

Whistle Blowers Stop the Train of Inquiry, Consultation Paper, Review 

of the Criminal and Civil Justice System in Western Australia, Project 92 

(1999) 

Law Reform Committee, Parliament of Victoria, Alternative Dispute 

Resolution Discussion Paper (2007) 

Law Reform Committee of South Australia, Thirty-Sixth Report of the 

Law Reform Committee of South Australia Relating to Class Actions 

(1977) 

Law Society of Alberta, Code of Professional Conduct (2007) 

Law Society of New South Wales, Guidelines for Solicitors Dealing with 

Self-Represented Parties (2006) 

Law Society of New South Wales, Self-Represented Litigants: Position 

Paper (2002) 

Lee, Stephen, ‘The State As Model Litigant’ (Paper presented at the 

‘Victorian Government Solicitor’s Office Lunchtime Seminar Series’, 

Melbourne, 28 September 2006) 

Lee, Stephen, ‘The State as Model Litigant - Fact, Fiction, Fallacy 

or Fantasy’ (Paper presented at the ‘VGSO Lunchtime Seminar’, 

Melbourne, 24 June 2004) 

Legal Costs Working Group [Ireland], Report of the Legal Costs Working 

Group (2005) 

Legal Fees Review Panel, Legal Costs in New South Wales (2005) 

Legg, Michael, ‘The United States Deposition—Time for Adoption in 

Australian Civil Procedure’ (2007) 31 Melbourne University Law Review 

146 

Lerman, Lisa, ‘Lying to Clients’ (1990) 138 University of Pennsylvania 

Law Review 659 

Lester, Grant, ‘The Vexatious Litigant’ (2005) 17(3) Judicial Officers 

Bulletin 17 

Lester, Grant and Smith, Simon, ‘Inventor, Entrepreneur, Rascal, Crank 

or Querulent: Australia’s Vexatious Litigant Sanction 75 Years On’ 

(2006) 13 Psychiatry, Psychology and Law 1 

Lewis, Paul, ‘Views from the Lighthouse’ (2005) 16 Australasian Dispute 

Resolution Journal 288 

LexisNexis Butterworths, Australian Corporations Law Principles and 

Practice, at January, 2008. 

LexisNexis Butterworths, [Williams] Civil Procedure—Victoria, at January 

2008 

LexisNexis Butterworths, Ford’s Principles on Corporation Law at 25 

February 2008 

Liberty (National Council for Civil Liberties) [UK], Litigating the Public 

Interest: Report of the Working Group on Facilitating Public Interest 

Litigation (2006) 

Limbury, Alan, ‘Making Med-Arb Work’ (July 2007) ADR Reporter 14 

Limbury, Alan, ‘Med-Arb, Arb-Med, Neg-Arb and ODR’ (Paper presented 

at the ‘NSW Chapter of the Institute of Arbitrators and Mediators 

Australia’, Sydney, 3 August 2005) 

Lindgren, Kevin E, ‘Class Actions and Access to Justice’ (Paper presented 

at the ‘International Class Actions Conference 2007’, Sydney, 25–26 

October 2007) 

Lindgren, Kevin, ‘Harmonisation of Rules of Court in Australia’ (Paper 

presented at the ‘22nd Australian Institute for Judicial Administration 

Annual Conference ‘Proportionality—Cost-Effective Justice’’, Sydney, 

17–19 September 2004) 

Lindsay, Geoff (ed), The Handbook: Thomson’s Guide to Civil Procedure 

in NSW (Lawbook Co, 2005) 

Lord Chancellor’s Department [UK], Court-Based ADR Initiatives for Non- 

Family Civil Disputes: The Commercial Court and the Court of Appeal 

1/02 (2002) 

Luntz, Harold, Assessment of Damages for Personal Injury and Death 

(4th ed) (Butterworths, 2002) 

MacEwen, Bruce, Milton, Regan and Ribstein, Larry, ‘Law Firms, Ethics 

and Equity Capital’ (2008) 21(1) Georgetown Journal of Legal Ethics 61 

Mack, Kathy, Court Referral to ADR: Criteria and Research (Australian 

Institute of Judicial Administration and the National Alternative Dispute 

Resolution Advisory Council, 2003) 


Mackie, Karl, Are Lawyers Falling short in Mediation (2006) Centre for 

Effective Dispute Resolution [UK] at 12 March 2008 

Magistrates’ Court of Victoria, Annual Report 2006–07 (2007) 

Magistrates’ Court of Victoria, Annual Report 2005–06 (2006) 

Maltby, Lewis, Private Justice: Employment Arbitration and Civil Rights, 

The National Workrights Institute [US] at 25 March 2008 

Manitoba Law Reform Commission, Costs Awards in Civil Litigation, 

Report No 111 (2005) 

Marcus, Richard, ‘Putting American Procedural Exceptionalism into a 

Globalized Context’ (2005) 55 American Journal of Comparative Law 

709 

Marcus, Richard, ‘Reassessing the Magnetic Pull of Megacases on 

Procedure’ (2001) 51 DePaul Law Review 457 

Mark, Steve, ‘The Corporatisation of Law Firms—Conflicts of Interests 

for Publicly Listed Law Firms’ (Paper presented at the ‘Australian Lawyers 

Alliance National Conference 2007’, Hobart, 13 October 2007) 

Mark, Steve, ‘Notes on the Listing of Law Firms in New South Wales and 

on the Incorporation of Law Firms’ (Paper presented at the ‘Joint NOBC, 

APRL and ABA Centre for Professional Responsibility Panel entitled 

“Brave New World: The Changing Face of Law Firms and the Practice of 

Law from a Professional Responsibility Perspective”’, San Francisco, 10 

August 2007) 

Mark, Steve, ‘Analysing Alternatives to Time-Based Billing and the 

Australian Legal Market’ (Paper presented at the ‘Finance Essentials for 

Practice Management Conference’, Sydney, 18 July 2007) 

Marks, Kenneth, ‘The Interventionist Court and Procedure ‘ (1992) 18 

Monash University Law Review 1 

Martin, Wayne, ‘Access to Justice: A Human Right in Principle, Policy 

and Practice in Western Australia’ (Paper presented at the ‘John Huelin 

Memorial Human Rights Day Lecture’, Perth, 10 December 2006) 

Martin, Wayne, ‘Access to Justice—The Media, The Courts and The 

Public Record’ (Paper presented at the ‘Australian Press Council Public 

Address’, 22 March 2007) 

Martin, Wayne, ‘Opening Address’ (Paper presented at the ‘National 

Legal Aid Best Practice Conference’, Fremantle, 31 May 2007) 

Martin, Wayne, ‘Judicial Appointments and Judicial Independence’ 

(Paper presented at a Law Council of Australia Conference on Rule of 

Law: The Challenges of a Changing World, Brisbane, 31 August 2007) 

Mason, Sir Anthony, ‘Interveners and Amici Curiae in the High Court: A 

Comment’ (1998) 20 Adelaide Law Review 173 

Matthews, Paul and Malek, Hodge, Disclosure (3rd ed) (Sweet & 

Maxwell, 2007) 

Maxwell, Chris, ‘A New Approch to Civil Appeals’ (Paper presented at 

the ‘Victorian Bar (Continuing Legal Education Program)’, 23 October 

2006) 

McAllister, Gillian and Altobelli, Tom, Pro Bono Legal Services in Western 

Sydney (University of Western Sydney, 2005) 

McClellan, Peter, ‘Concurrent Expert Evidence’ (Paper presented at the 

‘Medicine and Law Conference’, Melbourne, 29 November 2007) 

McClellan, Peter, ‘Contemporary Challenges for the Justice System - 

Expert Evidence’ (Paper presented at the ‘Australian Lawyers’ Alliance 

Medical Law Conference’, 20 July 2007) 

McClellan, Peter, ‘The New Rules’ (Paper presented at the ‘Expert 

Witness Institute of Australia and The University of Sydney Faculty of Law 

Conference’, Sydney, 16 April 2007) 

McCowan, Charles and Fayard, Calvin, ‘Class Actions in the Gulf South 

and Beyond: Louisiana Complex Litigation’ (2006) 80 Tulane Law Review 

1905 

McDougall, Robert, ‘Expert Evidence’ (Paper presented at the ‘Institute of 

Arbitrators and Mediators Australia’, Sydney, 13 February 2004) 

Macfarlane, Julie, The Emerging Phenomenon of Collaborative Family 

Law (CFL): A Qualitative Study of CFL Cases (Department of Justice 

[Canada], 2005) 

McGarvie, R E, ‘Judicial Responsibility for the Operation of the Court 

System ‘ (1989) 63 Australian Law Journal 79 

McLachlin, Beverly, ‘The Challenges We Face’ (Paper presented at the 

‘Empire Club of Canada’, Toronto, 8 March 2007) 

McSweeny, Michael, ‘Immunity from Suit of Expert Witnesses’ (2002) 22 

Australian Bar Review 131 

Menocal, Armando, ‘Proposed Guidelines for Cy Pres Distribution’ (1998) 

37 The Judges’ Journal 22 

Middleton, Sir Peter, Report to the Lord Chancellor [Review of Civil 

Justice] (Department for Constitutional Affairs [UK], 1997) 

Ministry of Justice [UK], Pre-Action Protocol for the Resolution of Clinical 

Disputes (1999) 

Minus, Derek, ‘Innovative Hybrid Processes—Mediation-Arbitration’ 

(Paper presented at the ‘Victorian Bar Continuing Legal Education 

Program’, Melbourne, 25 September 2007) 

Monichino, Albert, ‘Recent Developments in Expert Evidence - Lessons 

for Victoria’ (Paper presented at the ‘Litigation and Dispute Resolution 

Conference 2007’, Melbourne, 27–29 March 2007) 

Moore, Michael, ‘Judges as Mediators: A Chapter III Prohibition or 

Accommodation’ (2003) 14 Australasian Dispute Resolution Journal 188 

Morabito, Vince, ‘Class Actions Instituted only for the Benefit of the 

Clients of the Class Representative’s Solicitors’ (2007) 29 Sydney Law 


Morabito, Vince, ‘Group Litigation in Australia - “Desperately Seeking” 

Effective Class Action Regimes’ (Paper presented at the ‘National 

Report for Australia Prepared for The Globalisation of Class Actions 

Conference’, Oxford University, December 2007) 

Morabito, Vince, ‘The Federal Court of Australia’s Power to Terminate 

Properly Instituted Class Actions’ (2004) 42(3) Osgoode Hall Law Journal 

473 

Morabito, Vince, ‘Class Actions Against Multiple Respondents’ (2002) 

20(2) Federal Law Review 295 

Morris, Stuart, ‘Getting Real About Expert Evidence’ (Paper presented 

at the ‘National Environment Law Association Limited 2005 National 

Conference’, Canberra, 13-15 July 2005) 

Morris, Stuart, ‘VCAT Practices and Procedures: Recent Developments’ 

(Paper presented at the ‘Launching of the 2nd edition of Pizer’s 

Annotated VCAT Act’, Melbourne, 20 July 2004) 

Morris, Stuart, ‘Civil Litigation: VCAT and the Courts’ (Paper presented at 

the ‘Advanced Civil Litigation Seminar Series 2004’, Melbourne, 15 April 

2004) 

Mulheron, Rachael, The Modern Cy-près Doctrine: Applications & 

Implications (UCL Press, 2006) 

749

Bibliography 

Mulheron, Rachael, The Class Action in Common Law Legal Systems: A 

Comparative Perspective (Hart, 2004) 

Murdie, Alan, ‘Vexatious Litigants and de Clerembault Syndrome’ (2002) 

152 New Law Journal 61 

Murphy, Bernard and Cameron, Camille, ‘Access to Justice and the 

Evolution of Class Action Litigation in Australia’ (2006) 30(2) Melbourne 

University Law Review 399 

Napier, Michael, ‘Access to Justice: Keeping the Doors Open’ (Paper 

presented at ‘Gresham College’, 20 June 2007) 

National Alternative Dispute Resolution Advisory Council, Legislating for 

Alternative Dispute Resolution: A Guide for Government Policy—Makers 

and Legal Drafters (2006) 

National Alternative Dispute Resolution Advisory Council, ADR Research: 

A Resource Paper (2004) 

National Alternative Dispute Resolution Advisory Council, Submission on 

Federal Civil Justice System Strategy Paper (2004) 

National Alternative Dispute Resolution Advisory Council, Who Says 

You’re a Mediator: Towards a National System for Accrediting Mediators 

(2004) 

National Alternative Dispute Resolution Advisory Council, ADR Statistics: 

Published Statistics on Alternative Dispute Resolution in Australia (2003) 

National Alternative Dispute Resolution Advisory Council, Dispute 

Resolution Terms: The Use of Terms in (Alternative) Dispute Resolution 

(2003) 

National Alternative Dispute Resolution Advisory Council, Issues of 

Fairness and Justice in Alternative Dispute Resolution: Discussion Paper 

(1997) 

National Legal Aid, A New National Policy for Legal Aid in Australia 

(Hobart, 2007) 

National Pro Bono Resource Centre, Mapping Pro Bono in Australia 

(2007) 

New South Wales Bar Association, Guidelines for Barristers on Dealing 

with Self-Represented Litigants (2001) 

New South Wales Law Reform Commission, Studies in Comparative Civil 

and Criminal Procedure, Vol. 2, Part 5, Consultants Paper (1978) 

New Zealand Law Commission, Delivering Justice for All: A Vision for 

New Zealand Courts and Tribunals, Report 85 (2004) 

New Zealand Law Commission, General Discovery, Report 78 (2002) 

Niemeijer, Bert and Pel, Machteld, Court-Based Mediation in the 

Netherlands: Research, Evaluation and Future Expectations at 13 June 2007 

Noone, Mary Anne, ‘Access to Justice Research in Australia’ (2006) 31(1) 

Alternative Law Journal 30 

Norwich Union Insurance, A Modern Compensation System: Moving 

from Concept to Reality (2004) 

Nottage, Luke, ‘Japan’s New Arbitration Law: Domestication Reinforcing 

Internationalisation’ (2004) 54(2) International Arbitration Law Review 

19 

New South Wales Attorney General’s Working Party on Civil Procedure, 

Reference on Expert Witnesses: Report (2006) 

New South Wales Law Reform Commission, Expert Witnesses, Report 

109 (2005) 

Nygh, Nicola and Brown, Anna, Focus: Arbitration—December 2007: 

Inadequate Reasons as a Ground for Setting Aside and Arbitral Awards 

(Allens Arthur Robinson, 2007) 

Odgers, Stephen, Uniform Evidence Law (6th ed, Lawbook Co, 2004) 

O’Donahoo, Peter, Duncan, Travis and Austin, Emily, Focus: Commercial 

Litigation—February 2008 (Allens Arthur Robinson, 2008) 

O’Donahoo, Peter, Stone, Susie and Butt, Adam, Focus: Commercial 

Litigation - October 2007 Review of Victoria’s Civil Justice System - Part 2 

(Allens Arthur Robinson, 2007) 

Olsen, Lars-Jørgen Kihlberg, The Conciliation Boards in Norway—A Brief 

Overview and Assessment of Pros and Cons at 19 March 2008 

O’Ryan, Stephen, ‘The Less Adversarial Trial: “.the Lighter, More 

Contemporary and More Fuel Efficient Vehicle”’ (Paper presented at the 

‘24th Australian Institute Judicial Administration Annual Conference – 

Affordable Justice’, Adelaide, 15–17 September 2006) 

Osborne, Coulter, Civil Justice Reform Project: Consultation Paper (2006) 

Osborne, Coulter, Civil Justice Reform Project Summary of Findings & 


O’Shea, Paul, ‘The Lion’s Question Applied to Industry-Based Consumer 

Dispute Resolution Schemes’ (Paper presented at the ‘IAMA 30th 

Anniversary Conference, ‘Celebrating ADR’’, Canberra, May 2005) 

Pamplin, Chris, ‘Cross-Examining the Experts’ (2007) 157 New Law 

Journal 1480 

Peace and Conflict Studies Division, Royal Roads University [British 

Columbia], Whose Court is it Anyway Judicial Dispute Resolution in 

Canadian Courts: A Symposium for Judges: 24–26 April 2003, Summary 

Report (2003) 

Personal Injuries Assessment Board [Ireland], Annual Report 2005 (2006) 

Peysner, John and Seneviratne, Mary, The Management of Civil Cases: 

The Courts and Post-Woolf Landscape, DCA Research Series 9/05 

(Department for Constitutional Affairs [UK], 2005) 

Philadelphia Courts [US], Civil Administration at a Glance 2005–2006 

 

at 14 August 2007 

Pinos, Timothy, ‘New Technologies and the Civil Litigation Process: 

Report for Canada’ (Paper presented at the ‘Xlllth World Congress of the 

International Association of Procedural Law, “New Trends in Procedural 

Law”’, Salvador de Bahia, Brasil, 16-21 September 2007) 

Poelman, Glen, et al, ‘Civil Procedure and Practice: Recent 

Developments’ (2003) 41 Alberta Law Review 449 

Poelman, Glen and Bodnar, Eugene, ‘Civil Procedure and Practice: 

Recent Developments’ (1999) 37 Alberta Law Review 909 

Potter, Sandra, Practical Electronics (2008) Lawyers Weekly Online 

 

at 20 February 2008 

Prest, Wilfrid and Anleu, Sharyn Roach (eds), Litigation: Past and Present 

(University of New South Wales, 2004) 

Preston, Brian, ‘The Land and Environment Court of New South Wales: 

Moving Towards a Multi-Door Courthouse’ (Paper presented at the 

‘LEADR NSW Chapter Annual Dinner’, Sydney, 15 November 2007) 

Preston, Brian, ‘Conciliation in the Land and Environment Court of NSW: 

History, Nature and Benefits’ (Paper presented at the ‘ACDC Training 

Program for members of the Land and Environment Court of NSW on s 


34 Conference in the Land and Environment Court’, Sydney, 3 August 

2007) 

Productivity Commission [Australia], Report on Government Services 

2008 (2008) 

Productivity Commission [Australia], Report on Government Services 

2007 (2007) 

Productivity Commission [Australia], Review of Australia’s Consumer 

Policy Framework, Draft Report (2007) 

Public Citizen Publications, The Arbitration Trap: How Credit Card 

Companies Ensnare Consumers (2007) at 4 April 2008 

Public Interest Advocacy Centre and Options Consommateurs, 

Mandatory Arbitration and Consumer Contracts (2004) 

Public Interest Law Clearing House, Annual Report 2006–2007 (2007) 

Ray, Larry and Clare, Anne, ‘The Multi-Door Courthouse Idea: Building 

the Courthouse of the Future...Today’ (1985) 1 Ohio State Journal on 

Dispute Resolution 7 

Redish, Martin, ‘Electronic Discovery and the Litigation Matrix’ (2001) 

51(2) Duke Law Journal 561 

Rees, Neil, ‘Procedure and Evidence in ‘Court Substitute’ Tribunals’ 

(2006) 28 Australian Bar Review 40 

Reinhardt, Greg, ‘Can Courts Ignore the Reality of Insurance in 

Litigation’ (Paper presented at the ‘Australian Insurance Law 

Association 2007 Geoff Masel Lecture Series’, Melbourne, 12 September 

2007) 

Richardson, Elizabeth (ed), Self-Represented Parties: A Trial Management 

Guide for the Judiciary (County Court of Victoria, 2004) 

Rodrick, Sharon, ‘Open Justice and Suppressing Evidence of Police 

Methods: The Positions in Canada and Australia Part One’ (2007) 31 

Melbourne University Law Review 171 

Rose, Neil, ‘International Dimension ‘ (2006) 46 Litigation Funding 6 

Ross, William, Branmeier, Cheryl and Ciriacks, Tina, ‘The Impact 

of Hybrid Dispute-Resolution Procedures on Constituent Fairness 

Judgements’ (2002) 32 (6) Journal of Applied Psychology 1151 

Ross, Ysaiah, Ethics in Law: Lawyers’ Responsibility and Accountability in 

Australia (4th ed, LexisNexis, 2005) 

Rowe, John and Castle, Michelle, Case Studies on the Effect of Costs 

Restrictions Under the Legal Profession Act 2004 (NSW) (Lawyers 

Alliance, 2006) 

Rudge, Nick and Gallina, Nicholas, ‘When Is an Expert Determination 

Process Not an Arbitration’ (2007) 19(9) Australian Construction Law 

Bulletin 100 

Rules Committee Auckland High Court, Rules Committee Consultation 

Paper District Court Claims (2004) at 21 February 

2008 

Rumbaugh, Charles, Baseball Arbitration 1 (2000) Superior Court 

of California, County of Santa Barbara, Court Administered Dispute 

Resolution at 18 March 2008 

Sackville, Ronald, ‘From Access to Justice to Managing Justice: The 

Transformation of the Judicial Role’ (Paper presented at the ‘Australian 

Institute of Judicial Administration Annual Conference, “Access to 

Justice—The Way Forward”’, Brisbane, 12–14 July 2002) 

Sackville, Ronald, ‘Mega-Litigation: Towards a New Approach’ 

(Paper presented at the ‘Supreme Court of New South Wales Annual 

Conference’, Central Coast, New South Wales, 17-19 August 2007) 

Sage, Caroline, et al, Case Management Reform: A Study of the Federal 

Court’s Individual Docket System (Law and Justice Foundation of New 

South Wales, Sydney, 2002) 

Saks, Michael, ‘The Aftermath of Daubert: An Evolving Jurisprudence of 

Expert Evidence’ (2000) 40 Jurimetrics 229 

Sallmann, Peter and Wright, Richard, Going to Court: A Discussion Paper 

on Civil Justice in Victoria (Department of Justice [Victoria], 2000) 

Sato, Yasunobu, ‘The New Arbitration Law in Japan: Will It Cause 

Changes in Japanese Conciliatory Arbitration Practices’ (2005) 22(2) 

Journal of International Arbitration 141 

Schneider, Michael, ‘Combining Arbitration with Conciliation’ (2004) 

1(1) Transnational Dispute Management 

at 4 April 

2008 

Schwab, William, ‘Collaborative Lawyering: A Closer Look at an 

Emerging Practice’ (2004) 4 Pepperdine Dispute Resolution Law Journal 

351 

Scott, Ian, ‘Caseflow Management in the Trial Court’ in Adrian 

Zuckerman and Ross Cranston (eds) Reform of Civil Procedure – Essays 

on ‘Access to Justice’, (Clarendon Press, 1995) 

Scott, Ian, ‘Keynote Address: Adjusting the Interests of Parties and 

Courts: Uniformity, Diversion and Proportionality’ (Paper presented 

at the ‘22nd Australian Institute for Judicial Administration Annual 

Conference ‘Proportionality—Cost-Effective Justice’’, Sydney, 17–19 

September 2004) 

Scott, Ian, ‘The Future of Judicial Administration’ (Paper presented at the 

‘Seminar on Constitutional and Administrative Responsibilities for the 

Administration of Justice: The Partnership of Judiciary and Executive’, 

10–11 August 1985) 

Scott, R, ‘Court Appointed Experts’ (1995) 25 Queensland Law Society 

Journal 87 

Senate Legal and Constitutional Affairs Committee, Parliament of 

Australia, Legal Aid and Access to Justice (2004) 

Shand, Michael, ‘The Civil Justice Review’ (2007) 141 Victorian Bar News 

6 

Shappard, Ian, ‘Court Witnesses—A Desirable or Undesirable 

Encroachment on the Adversary System’ (1982) 56 Australian Law 

Journal 234 

Shone, Margaret, ‘Into the Future: Civil Justice Reform in Canada 1996 

to 2006 and Beyond’ (Paper presented at the ‘Agenda for Civil Justice 

Reform Conference’, Canada, April–May 2006) [subsequently modified 

as a report published by ‘Law for the Future Fund’, 2006] 

Silberman, Linda, ‘Judicial Adjuncts Revisited: The Proliferation of Ad Hoc 

Procedure’ (1989) 137(6) University of Pennsylvania Law Review 2131 

Sipes, Larry, et al, Managing to Reduce Delay (National Center for State 

Courts [US], 1980) 

Smith, Tim, ‘Court Governance and The Executive Model’ (Paper 

presented at the ‘The Judicial Conference of Australia’, Canberra, 6-8 

October 2006) 

Sourdin, Tania, and Elix, Jane, Community Solutions, La Trobe University 

and University of Western Sydney, Review of the Financial Industry 

Complaints Service 2002 - What Are the Issues Issues Paper (2002) 

751

Bibliography 

Sourdin, Tania, ‘An Alternative for Who Access to ADR Processes’ 

(2007) 10(2) ADR Bulletin 26 

Sourdin, Tania, Dispute Resolution Processes for Credit Consumers (La 

Trobe University, 2007) 

Sourdin, Tania, ‘Facilitating the Resolution of Disputes Before Tribunals’ 

(Paper presented at the ‘8th Annual Australian Institute for Judicial 

Administration Tribunals Conference’, Sydney, 9–10 June 2005) 

Sourdin, Tania, Alternative Dispute Resolution (2nd ed, Lawbook Co, 

2005) 

Sourdin, Tania, ‘Legislative Referral to Alternative Dispute Resolution 

Processes’ (2001) 12 Australasian Dispute Resolution Journal 180 

Sourdin, Tania and Matruglio, Tania, Evaluating Mediation—New South 

Wales Settlement Scheme 2002 (La Trobe University, University of 

Western Sydney, 2004) 

Spencer, David, ‘Judicial Mediators: Is The Time Right - Part I’ (2006) 17 

Australasian Dispute Resolution Journal 130 

Spencer, David, ‘Judicial Mediators: Is the Time Right - Part II’ (2006) 17 


Spencer, David, ‘Judicial Mediators: Are They Constitutionally Valid’ 

(2006) 9(4) ADR Bulletin 61 

Spigelman, James, ‘Commercial Litigation and Arbitration: New 

Challenges’ (Paper presented at ‘The First Indo Australian Legal Forum’, 

New Delhi, 9 October 2007) 

Spigelman, James, ‘Access to Justice and Access to Lawyers’ (Paper 

presented at the ‘35th Australian Legal Convention’, Sydney, 24 March 

2007) 

Spigelman, James, ‘Measuring Court Performance’ (Paper presented 

at the ‘24th Annual Conference of the Australian Institute of Judicial 

Administration’, Adelaide, 15–17 September 2006) 

Spigelman, James, ‘Case Management in New South Wales’ (Paper 

presented at the ‘Annual Judges Conference’, Kuala Lumpur, 22 August 

2006) 

Spigelman, James, ‘The Principle of Open Justice: A Comparative 

Perspective’ (Paper presented at the ‘Media Law Resource Centre 

Conference’, London, 20 September 2005) 

Spigelman, James, ‘The Truth Can Cost Too Much: The Principle of a Fair 

Trial’ (2004) 78 Alternative Law Journal 29 

Spigelman, James, ‘Our Common Law Heritage’ (Paper presented at the 

‘Joint Study Institute of Law Librarians’, Sydney, 21 February 2004) 

Spigelman, James, ‘Opening of Law Term ‘ (Paper presented at the 

‘Opening of Law Term Dinner’, Sydney, 2 February 2004) 

Spigelman, James, ‘Seen To Be Done: The Principle of Open Justice’ 

(Paper presented at the ‘31st Australian Legal Convention’, Canberra, 9 

October 1999) 

Spigelman, James, ‘Address’ (Paper presented at the ‘The Medico-Legal 

Society of New South Wales Annual General Meeting’, 6 August 1999) 

Standing Committee of Attorneys-General, Litigation Funding in 

Australia: Discussion Paper (2006) 

Stein, Paul, ‘Down Under Perspective of the Environmental Court Project’ 

(Paper presented at the ‘The United Kingdom Environmental Law 

Association Seminar on the Final Report on the Environmental Court 

Project ‘, London, 27 June 2000) 

Stein, Richard and Beagent, Jamie, ‘Case Law Analysis—R (Corner House 

Research) v The Secretary of State for Trade and Industry’ (2005) 17 

Journal of Environmental Law 413 

Sternlight, Jean, ‘Is the U.S. Out on a Limb Comparing the U.S. 

Approach to Mandatory Consumer and Employment Abitration to that 

of the Rest of the World’ (2002) 56 University of Miami Law Review 831 

Stienstra, Donna, ‘The Alternative Dispute Resolution Act of 1998: 

Seeds of Change in the Federal District Courts’ at 26 April 

2008. 

Stitt, Robert, ‘Cross-Examination of Expert Witnesses: A Practical 

Approach via a Personal Excursion’ (2005) 26 Australian Bar Review 219 

Street, Laurence, ‘Note on the Detachment of Judges to Mediation’ 

(2006) 17 Australasian Dispute Resolution Journal 188 

Street, Laurence, ‘Mediation and the Judicial Institution’ (1997) 71 


Street, Laurence, ‘The Courts and Mediation—A Warning ‘ (1991) 2 


Stuhmcke, Anita, ‘Resolving Consumer Disputes: Out of the Courts and 

Into Private Industry’ (2003) 31 Australian Business Law Review 48 

Subrin, Stephen, ‘Discovery in Global Perspective—Are We Nuts’ (2002) 

52 DePaul Law Review 299 

Superior Court of Justice and Ministry of the Attorney General, Report of 

the Task Force on the Discovery Process in Ontario (2003) 

Supreme Court of Nova Scotia, Memorandum Concerning “Civil 

Procedure Rules Revision Project”: Final Report of the Discovery and 

Disclosure Working Group (2005) 

Supreme Court of Victoria, Annual Report 2005–2006 (2006) 

Supreme Court of Victoria, Annual Report 2004–2005 (2005) 

Sylvan, Louise, Cy-Pres: The Next Best Thing (2005) at 19 

February 2008 

Taylor, Greg, The Constitution of Victoria (Federation Press, 2006) 

Telecommunications Industry Ombudsman, Annual Report 2004/05 

(2005) 

Telford, Megan, Med-Arb: A Viable Dispute Resolution Alternative, 

Current Issues Series (IRC Press, 2000) 

Thompson, Clare, ‘Vexatious Litigants—Old Phenomenon, Modern 

Methodology: A Consideration of the Vexatious Proceedings Restriction 

Act 2002 (WA)’ (2004) 14 Journal of Judicial Administration 64 

Thomson, Claude, Med-Arb: A Fresh Look at 18 March 2008 

Tollefson, Chris, Gililand, Darlene and DeMarco, Jerry, ‘Towards a Costs 

Jurisprudence in Public Interest Litigation’ (2004) 83 Canadian Bar 


Toohey, John and D’Arcy, Anthony, ‘Environmental Law—Its Place in the 

System’ in R Fowler (ed) Proceedings of the International Conference on 

Environmental Law (NELA, 1989) 

Trade Practice Act Review Committee [Australia], Review of the 

Competition Provisions of the Trade Practices Act 1974 (2002) 

Transport Accident Commission [Australia], Annual Report 2006 


Tucker, Philip, ‘Judges as Mediators: A Chapter III Prohibition or 

Accommodation’ (2000) 14 Australasian Dispute Resolution Journal 84 

Tulkinghorn, ‘Lawyers Safely in Charge of Civil Justice “Reform”’ (3 

October 2006) Justinian at 26 February 2008 

Tyler, Melissa Conley and Bornstein, Jackie, ‘Court Referral to ADR: 

Lessons from an Intervention Order Mediation Pilot’ (2006) 16(1) Journal 

of Judicial Administration 48 

Underwood, Kerry, Fixed Costs (2nd ed, LexisNexis Butterworths, 2006) 

Venning, Geoffrey, ‘Alternatives to Activity Based Costing: The New 

Zealand Approach’ (Paper presented at the ‘24th Australian Institute of 

Judicial Administration Annual Conference’, Adelaide, 16 September 

2006) 

Victoria Legal Aid, Annual Report 2006-07 (2007) 

Victoria Legal Aid, Grants Handbook (12th ed, 2006) 

Victorian Attorney-General’s Law Reform Advisory Council, Class Actions 

in Victoria: Time For a New Approach, Expert Report 2 (1997) 

Victorian Bar, Annual Report 2006–2007 (2007) 

Victorian Civil and Administrative Tribunal, Annual Report 2005–06 

Victorian Law Reform Committee, Parliament of Victoria, Alternative 

Dispute Resolution, Discussion Paper (2007) 

Victorian Office of Multicultural Affairs, Language Services Strategy 

Report Card (2004) 

Victorian Office of Multicultural Affairs, Improving the Use of Translating 

and Interpreting Services: A Guide to Victorian Government Policy and 

Procedures (2003) 

Wade, John, ‘Collaborative Lawyering - Some Preliminary Thoughts for 

Australia’ (2004) 16 Bond Dispute Resolution News 4 

Walker, Bret, ‘Lawyers & Money’ (Paper presented at the ‘2005 Lawyers 

Lecture’, Sydney, 18 October 2005) 

Walker, Janet and Watson, Garry, ‘New Technologies and the Civil 

Litigation Process: Common Law General Report’ (Paper presented at 

the ‘Xlllth World Congress of the International Association of Procedural 

Law, “New Trends in Procedural Law”’, Salvador de Bahia, Brasil, 16-21 

September 2007) 

Warren, Marilyn, ‘State of Victorian Judicature’ (Paper presented at the 

Inaugural State of Judicature Address, Melbourne, 22 May 2007) 

Watson, Brian, Litigation Liabilities (Palladian Law Publishing, 2002) 

Waye, Vicki (ed), A Guide to Arbitration Practice in Australia (2nd ed) 

(University of Adelaide and Institute of Arbitrators & Mediators Australia, 

2006) 

Wenying, Wang, ‘Distinct Features of Arbitration in China: An Historical 

Perspective’ (2006) 23(1) Journal of International Arbitration 74 

Willging, Thomas, et al, Discovery and Disclosure Practice, Problems, 

and Proposals for Change: A Case-Based National Survey of Counsel in 

Closed Federal Civil Cases (Federal Judicial Centre, 1997) 

Williams, Glen, ‘The Changing Face of Procedural Law in Queensland’ 

(Paper presented at the ‘Australian Institute for Judicial Administration 

Fifth Biennial Masters’ Conference’, Auckland, New Zealand, 26–28 April 

2000) 

Williams, Philip et al, Report of the Review of Scales of Legal Professional 

Fees in Federal Jurisdictions (Attorney General’s Department [Australia], 

1998) 

Williams, Ross, ‘Practical Aspects of Conducting an Arbitration’ (Paper 

presented at the ‘Institute of Arbitrators & Mediators Australia National 

Conference 2007 – New Horizons in ADR’, Adelaide, South Australia, 2 

June 2007) 

Wodak, Tom, ‘Optimising Process Workflow: The County Court Medical 

List 2005–2006’ (Paper presented at the ‘Law Institute of Victoria 

Medicine and Law Conference’, 23 November 2006) 

Wood, James, ‘Expert Witnesses—The New Era’ (Paper presented at the 

‘8th Greek Australian International Legal & Medical Conference’, Corfu, 

Greece, 4–9 June 2001) 

Wood, James, ‘Case Management in the Common Law Division of 

the Supreme Court of New South Wales’ (1991) 1 Journal of Judicial 

Administration 71 

Woodyatt, Tony, To Investigate and Study Overseas Developments 

Addressing the Needs of Self-Represented Litigants (The Winston 

Churchill Memorial Trust of Australia, 2007) 

Woolf, Lord, Access to Justice: Final Report to the Lord Chancellor on the 

Civil Justice System in England and Wales (Department for Constitutional 

Affairs [UK], 1996) 

Woolf, Lord, Access to Justice: Interim Report (Department for 

Constitutional Affairs [UK], 1995) 

Workers Compensation Commission, Guidelines, The Practice of 

the Conciliation/Arbitration Process in the Workers Compensation 

Commission (2007) 

Young, John, ‘The Roles of the Judiciary and the Executive in the 

Administration of the Courts’ (Paper presented at the ‘Higher Courts’ 

Administration in Australia Conference’, Melbourne, 25 May 1990) 

Zack, Arnold, ‘Quest for Finality in Airline Disputes: A Case for Arb-Med’ 

(Nov 2003–Jan 2004) 58 (4) Dispute Resolution Journal 34 

Ziedler, Wolfgang, ‘Evaluation of the Adversary System: A Comparison, 

Some Remarks on the Investigatory System of Procedure’ (1981) 55 


Zuckerman, Adrian, ‘Civil Litigation: A Public Service for the Enforcement 

of Civil Rights’ (2007) 26 Civil Justice Quarterly 1 

Zuckerman, Adrian, ‘A Colossal Wreck: The BCCI-Three Rivers Litigation’ 

(2006) 25 Civil Justice Quarterly 287 

Zuckerman, Adrian, Zuckerman on Civil Procedure: Principles of Practice 

(2nd ed, Sweet & Maxwell, 2006) 

Zuckerman, Adrian, ‘Court Adjudication of Civil Disputes: A Public 

Service That Needs to be Delivered With Proportionate Resources, Within 

a Reasonable Time and at a Resonable Cost’ (Paper presented at the 

‘24th Australian Institute of Judicial Administration Annual Conference’, 

Adelaide, 15–17 September 2006) 

Zuckerman, Adrian, ‘Justice in Crisis: Comparative Dimensions of Civil 

Procedure’ in Adrian Zuckerman (ed) Civil Justice in Crisis – Comparative 

Perspectives of Civil Procedure, (1999) 

Zuckerman, Adrian, ‘Lord Woolf’s Access to Justice: Plus Ca Change’ 

(1996) 59 (6) Modern Law Review 773 

Zuckerman, Adrian and Cranston, Ross (eds), Reform of Civil Procedure - 

Essays on ‘Access to Justice’ (Clarendon Press, 1995) 

753

Other VLRC Publications 

Disputes Between Co-owners: Discussion Paper (June 2001) 

Privacy Law: Options for Reform—Information Paper (July 2001) 

Sexual Offences: Law and Procedure—Discussion Paper (September 2001) 

(Outline also available) 

Failure to Appear in Court in Response to Bail: Draft Recommendation Paper (January 2002) 

Disputes Between Co-owners: Report (March 2002) 

Criminal Liability for Workplace Death and Serious Injury in the Public Sector: Report (May 2002) 

Failure to Appear in Court in Response to Bail: Report (June 2002) 

People with Intellectual Disabilities at Risk—A Legal Framework for Compulsory Care: Discussion Paper (June 2002) 

What Should the Law Say About People with Intellectual Disabilities Who are at Risk of Hurting Themselves or Other People Discussion Paper in 

Easy English (June 2002) 

Defences to Homicide: Issues Paper (June 2002) 

Who Kills Whom and Why: Looking Beyond Legal Categories by Associate Professor Jenny Morgan (June 2002) 

Workplace Privacy: Issues Paper (October 2002) 

Defining Privacy: Occasional Paper (October 2002) 

Sexual Offences: Interim Report (June 2003) 

Defences to Homicide: Options Paper (September 2003) 

People with Intellectual Disabilities at Risk: A Legal Framework for Compulsory Care (November 2003) 

Assisted Reproductive Technology & Adoption: Should the Current Eligibility Criteria in Victoria be Changed Consultation Paper (December 2003) 

People with Intellectual Disabilities at Risk: A Legal Framework for Compulsory Care: Report in Easy English (July 2004) 

Sexual Offences: Final Report (August 2004) 

The Convention on the Rights of the Child: The Rights and Best Interests of Children Conceived Through Assisted Reproduction: Occasional Paper 

by John Tobin (September 2004) 

A.R.T., Surrogacy and Legal Parentage: A Comparative Legislative Review: Occasional Paper by Adjunct Professor John Seymour and Ms Sonia 

Magri (September 2004) 

Outcomes of Children Born of A.R.T. in a Diverse Range of Families by Dr Ruth McNair (September 2004) 

Workplace Privacy: Options Paper (September 2004) 

Defences to Homicide: Final Report (October 2004) 

Review of Family Violence Laws: Consultation Paper (November 2004) 

Review of the Laws of Evidence: Information Paper (February 2005) 

Assisted Reproductive Technology Position Paper One: Access (May 2005) 

Assisted Reproductive Technology Position Paper Two: Parentage (July 2005) 

Family Violence Police Holding Powers: Interim Report (September 2005) 

Workplace Privacy: Final Report (October 2005) 

Review of the Bail Act: Consultation Paper (November 2005) 

Have Your Say About Bail Law (November 2005) 

Assisted Reproductive Technology Position Paper Three: Surrogacy (November 2005) 

Implementing the Uniform Evidence Act: Report (February 2006) 

Uniform Evidence Law: Final Report (February 2006) 

Review of Family Violence Laws: Report (March 2006) 

Review of Family Violence Laws: Final Report Summary (March 2006) 

Residential Tenancy Databases: Report (April 2006) 

Civil Justice Review Consultation Paper (September 2006) 

Assisted Reproductive Technology & Adoption: Final Report (June 2007) 

Review of the Bail Act: Final Report (October 2007) 

Law of Abortion: Final Report (2008)

12Facilitating Ongoing Civil Justice Review and Reform

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