12Facilitating Ongoing Civil Justice Review and Reform

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).
3 Submission CP 58 (Supreme Court of
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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