12Facilitating Ongoing Civil Justice Review and Reform

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).
113 Submission CP 37 (Transport Accident
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
WorkCover Authority).
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).
118 Submission CP 50 (Christopher
Enright).
119 Submission CP 37 (Transport Accident
Commission).
120 Submissions CP 33 (Victorian Bar),
CP 47 (Group Submission), CP 37
(Transport Accident Commission).
121 Submission CP 50 (Christopher
Enright).
122 Submissions CP 37 (Transport
Accident Commission), CP 47 (Group
Submission).
123 Submission CP 33 (Victorian Bar).
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