12Facilitating Ongoing Civil Justice Review and Reform

Chapter 12
Facilitating Ongoing Civil Justice
Review and Reform
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:
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Victorian Law Reform Commission - Civil Justice Review: Report