Facilitating the Early Resolution of Disputes without Litigation

Chapter 2Facilitating the Early Resolution ofDisputes without Litigationa client may refuse to accept advice. However, lawyers are required not to mislead the court and havean obligation to cease to act if a client wishes not to disclose a fact or document that is relevant to thecase. 225The pre-action procedures also include detailed provisions relating to expert witnesses. Expertwitnesses must be instructed in writing and be ‘fully informed’ of their obligations. 226 Experts shouldonly be retained on an issue where the expert evidence is ’necessary to resolve the dispute’. 227 Ifpracticable, the ‘parties should agree to obtain a report from a single expert witness instructed by bothparties’. 228 If separate experts’ reports are obtained, the pre-action procedural provisions state that thecourt requires the reports to be disclosed. 2293.6.3 South AustraliaSince 1992 South Australia has continued to expand pre-action procedures in all courts. Provisionsrequiring the exchange of a formulated claim and expert reports prior to commencing proceedingswere initially limited to personal injury cases, but have been extended to all claims for liquidated andunliquidated damages since September 2000. This has been effected through rules of court.The Supreme Court Rules 2006 (SA) and the District Court Rules 2006 (SA) provide that a plaintiffmust, at least 90 days before commencing an action to which the rule applies, give the defendant awritten notice containing or accompanied by:(a) an offer to settle the … claim on the basis set out in the notice; and(b) sufficient details of the claim, and sufficient supporting material, to enable the defendantto assess the reasonableness of the plaintiff’s offer of settlement and to make an informedresponse …; and(c) if the plaintiff is in possession of expert reports relevant to the claim—copies of the expertreports. 230If the plaintiff believes that the defendant is insured and knows the identity of the insurer, the plaintiffmust send a copy of the notice and accompanying material to the insurer. 231The defendant must, within 60 days after receiving the notice, respond in writing by ‘(a) accepting theplaintiff’s offer of settlement; or (b) making a counter-offer; or (c) stating that liability is denied and thegrounds on which it is denied’. 232 The defendant must provide the plaintiff with a copy of any expertreports relevant to the claim in the defendant’s possession. 233Where a court proceeding is subsequently commenced, the originating process must include astatement as to whether the plaintiff has complied with the requirements of the rule and if not,why not. 234 The plaintiff’s notice to the defendant and the defendant’s response must be filed inthe court as a ‘suppressed file’. 235 In awarding costs of the action the court may take into accountwhether the parties have complied with their obligations under the rule and the terms of any offer,counteroffer and any responses and the extent to which they are ‘reasonable or unreasonable in thecircumstances’. 236In both the Supreme and District Courts the rule relating to pre-action obligations applies to monetaryclaims, with some exceptions. 237At the Magistrates Court level the rules make provision for a prospective plaintiff to serve on theprospective defendant notice of an intended claim. 238 Subject to any order of the court, a plaintiff isnot entitled to the costs for filing a claim unless notice of an intended claim was given not less than21 days before the filing of the claim. 239 In an action for damages for personal injury ‘notice of theclaim must be given at least 90 days before the filing of the claim’. 240 Notice must be given to thedefendant’s insurer if the identity of the insurer is known to the prospective plaintiff. 241 The noticemust include notice of any intended claim for past and future economic loss and be supported by‘medical reports setting out the nature and extent of the plaintiff’s injuries and residual disabilities asknown to the plaintiff at the time of giving the notice’. 242 Generally, the notice should briefly outlinethe nature and amount of the plaintiff’s claim and inform the prospective defendant of the options forsettling the claim, including free mediation prior to the commencement of proceedings.In the Magistrates’ Court, a person intending to bring an action may also, ‘by notice in writingto another person, request the … person to make discovery of documents and disclose the …whereabouts of any document or property that is relevant to the proposed action’. 243 Where thereis noncompliance within seven days of service of the notice, ‘the court may order … discovery anddisclosure by letter or affidavit’. 244128Victorian Law Reform Commission - Civil Justice Review: Report