Facilitating the Early Resolution of Disputes without Litigation

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Chapter 2Facilitating the Early Resolution ofDisputes without Litigationsettlement, pre-commencement mediation and ADR, and the use of experts. It considered that therewould need to be some kind of incentive for compliance with the protocols, and noted that under theSouth Australian scheme parties who are uncooperative in this regard can receive costs penalties. 348The Supreme Court also stressed ‘the need to ensure interaction between procedural reforms andchanges to the culture and structure of the legal profession, if the goals of the reforms are to bemet’. It considered that ‘[t]he introduction of pre-action processes should be accompanied by trainingprogrammes for lawyers and possibly a Judicial College of Victoria seminar for Judges’. 349Victoria Legal Aid expressed general support for the disclosure of relevant information beforeproceedings are commenced. However, it was concerned that the proposed protocols could ‘increasethe administrative burden and cost of litigation’ and the ‘costs consequences of noncompliance maydisproportionately affect financially disadvantaged parties and self-represented litigants’. It suggestedthat if such protocols were introduced the proposal to allow parties to dispense with complianceby consent or where the dispute was ‘intractable’ could allow parties with more bargaining powerto avoid compliance. It strongly supported the introduction of some form of privilege to ensureinformation and documents obtained could not be used for any other purpose, and referred to theprovisions of the Charter in relation to privacy. 350The Victorian Aboriginal Legal Service supported the introduction of a ‘pre-issuing procedure’ designed’to determine the merit of [an] application’. Under this model, a standard form originating processwould need to ‘have attached to it all the facts, law, legal claims, list all witnesses, specialists (medical/others), pleadings and discoverable documents to be relied upon’, which would need to be assessedand approved by a judge prior to service on a defendant. The defendant would be required to filesimilar documentation, and a mediation conference would need to take place before the matterproceeded to a directions hearing. 351Some submissions were supportive of particular pre-commencement initiatives. The joint submission ofAXA Australia and TurksLegal suggested that making mediation a prerequisite to the commencementof litigation might encourage settlement in some kinds of dispute (and in particular contractualdisputes). 352In response to the commission’s first draft proposals, AXA and TurksLegal suggested the ambit of thepre-action discovery obligations was uncertain and their scope might be unclear in the absence ofpleadings. They said the issue of costs required further consideration, particularly the draft proposalthat there should be access to the court in respect of costs even though the dispute had been settledwithout litigation. However, they supported the proposal that specific pre-action protocols should bedeveloped by the Civil Justice Council in conjunction with representatives of stakeholder groups. 353Peter Mair suggested that prospective litigants should be compelled to meet before an ‘independentreviewer’ to discuss their dispute at the outset, and that they should be required to come to someagreement as to the costs of the proceeding should it go to hearing. In his view, ‘natural justicedemands that those accused be given an opportunity to respond before formal proceedings arecommenced’. 354The Police Association suggested that pre-commencement screening of claims by an ‘appropriateperson’ would assist to eliminate ‘frivolous or vexatious’ legal actions prior to engagement inmediation. 355Edison Masillamani advocated a pre-action step involving the discussion of issues in dispute betweenprospective parties before a ‘Conciliation Officer’, without the involvement of legal practitioners. 356The Legal Practitioners’ Liability Committee supported a requirement that a plaintiff forward aletter to a prospective defendant ‘detailing the nature and quantum of the plaintiff’s claim’ prior tocommencing proceedings:LPLC’s experience is that if this were done more frequently, much litigation would beavoided. Many cases are settled by LPLC in house without incurring costs because ofthis. 357Other submissions expressed support for the introduction of pre-action requirements in particularareas. For example, the Construction & Infrastructure Law Committee (Victorian Group) of theLaw Council of Australia considered that pre-litigation protocols along the lines of those applicablein England would be beneficial in construction cases. 358 The SRC Legal Service favoured rules toencourage the non-litigious resolution of debt and motor vehicle claims. In particular, it suggested138Victorian Law Reform Commission - Civil Justice Review: Report
that providing a debtor with the chance to serve an affidavit of financial circumstances in responseto a creditor’s letter of demand could assist the creditor to make a more realistic assessment ofthe probable usefulness of litigation, and encourage compromise. 359 On the other hand, MauriceBlackburn contended that pre-commencement requirements would not be appropriate in the contextof medical negligence, in part because of the well-developed case management approach alreadyused on the relevant specialist list. 360Other submissions made favourable comment on existing pre-litigation procedures that have beenimplemented in particular contexts. Dr Dooley noted that most states in the United States have, sincethe 1960s, introduced mandatory panel reviews in medical liability cases. Such reviews occur beforeproceeding to trial, and result in as many as 40–50 per cent of plaintiffs withdrawing their cases. DrDooley suggested that such a panel be introduced in Victoria, similar to the current system of workerscompensation claims, to provide parties with an ‘immediate, unbiased consensus opinion on liabilityand extent of harm’. 361The TAC submission noted its own pre-litigation dispute resolution protocols (discussed underTransport Accident Claims in Victoria, above). The TAC stated that, although it is too soon to beconclusive, there are strong indications that the protocols are proving effective. Even where a mattercannot be resolved at a pre-litigation stage, adherence to the process set out in the protocol shouldallow it to be developed to such a point that it can be fast-tracked to trial. The TAC suggested thatpre-commencement requirements could be reinforced by, for example, precluding parties from laterrelying on documents that ought to have been disclosed prior to commencement. 362WorkCover drew attention to its own ‘statutory pre-litigated dispute resolution procedure’, which is‘supported by Ministerial Directions and Ministerial Costs Orders’:In essence the pre-litigated process provides for the formal exchange of all material inthe possession of a party on which the party seeks to rely and includes a draft statementof claim defining the cause of action. A party who fails to disclose documentation in theparty’s possession cannot later rely upon this document. A similar obligation, includingthe provision of a draft defence, rests with the prospective defendant/employer. Theprocess is supported by fixed costs payable by the defendant where damages arerecovered and also incorporates potential costs penalties where the matter is not resolvedin the pre-litigated process. 363The authority found this ‘cards upon the table’ approach effective in producing earlier settlementof claims. It also spoke favourably of the mandatory conciliation process it uses in non-common lawbenefits disputes, which must be certified as ‘genuine’ before proceedings can be commenced. 364A confidential submission advocated that the regime adopted in the Accident Compensation Act 1985with respect to ‘serious injury’ workplace accident matters ought, with some modification, to be ofgeneral application. The submission stated:My experience indicates that pleadings have become a device for clouding and obscuringthe issues in dispute rather than the reverse. Generally speaking, I think they should beabandoned. In their stead, I suggest the plaintiff should articulate what his cause of actionis in a summary way and then swear an affidavit deposing to the relevant evidence onwhich he relies to prove his case. This should be done, as with ‘serious injury’ applications,before any proceeding is filed in the court … Likewise the defendant insurer shouldbe required to indicate, also by filing an affidavit, why the application is opposed …Both parties should be on affidavit at, or soon after, any proceeding is commenced inthe Court. In my view, such a procedure would go a long way to ridding the system ofunmeritorious claims and defences. 365The submission also expressed concern at the conduct of defendants’ insurers and the prevalence oftrial by ambush. In particular, where surveillance film is available to contradict crucial elements of theplaintiff’s case it is said to be often withheld until late in the litigation process. If disclosed earlier it maylead to settlement or withdrawal of the application.Some submissions expressed general support for pre-action protocols but raised particular concerns,including about their impact on certain categories of persons. The Mental Health Legal Centresuggested that better access to information and expert advice to assist people to evaluate their legalposition would be preferable to the imposition of ‘additional “hurdles” or threshold requirements’. 366348 Submission CP 58 (Supreme Court ofVictoria). The court gives ‘commerciallitigation, serious injury cases, andneighbourhood disputes’ as ‘possibleexamples’ of types of litigation inwhich pre-action protocols might be ofparticular benefit.349 Submission CP 58 (Supreme Court ofVictoria).350 Submission ED1 25 (Victoria LegalAid). Section 13 of the Charter ofHuman Rights and Responsibilities Act2006 provides that ‘a person has theright not to have his or her privacy… or correspondence unlawfully orarbitrarily interfered with’.351 Submission CP 27 (Victorian AboriginalLegal Service).352 Submission CP 41 (AXA Australiaand TurksLegal). Submission CP53 (Michael Redfern) supported‘[compulsory] pre-litigation mediationexcept in those cases where urgentrelief is required’.353 Submission ED1 22 (AXA Australia andTurksLegal).354 Submission CP 10 (Peter Mair).355 Submission CP 6 (Police AssociationVictoria).356 Submission CP 15 (Edison JMasillamani).357 Submission CP 21 (Legal Practitioners’Liability Committee).358 Submission CP 12 (Construction& Infrastructure Law Committee(Victorian Group) of the Law Councilof Australia).359 Submission CP 3 (SRC Legal Service).360 Submission CP 7 (Maurice Blackburn).361 Brendan J Dooley, ‘Medical Indemnityin New Zealand and Australia:Suggestions for Reform’ (Paperpresented at the Annual ScientificMeeting of Royal Australasian Collegeof Surgeons, Christchurch, 8 May2007) referred to in Submission CP60 (Royal Australasian College ofSurgeons).362 Submission CP 37 (Transport AccidentCommission).363 Submission CP 48 (VictorianWorkcover Authority).364 Submission CP 48 (VictorianWorkcover Authority).365 Submission CP 5 (Confidentialsubmission, permission to quotegranted 4 February 2008).366 Submission CP 22 (Mental Health LegalCentre).139
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Page 3 and 4: Pre-action procedures ‘are useful
Page 5 and 6: to preclude access to the courts ma
Page 7 and 8: The existing protocols incorporate
Page 9 and 10: (f) state (if this is so) that the
Page 11 and 12: The task force did, on the other ha
Page 13 and 14: Protocols should therefore only be
Page 15 and 16: claimant, including the consumption
Page 17 and 18: The claimant has a duty to provide
Page 19 and 20: Workers Compensation ClaimsThe Work
Page 21 and 22: and exploring options for settlemen
Page 23 and 24: The new South Australian pre-action
Page 25 and 26: Depending on the nature of the disp
Page 27 and 28: The specification of fixed costs pa
Page 29 and 30: also felt to be ‘considerably mor
Page 31: 6.2 NSW workers compensation procee
Page 35 and 36: The Law Institute of Victoria made
Page 37 and 38: • to provide a time frame for the
Page 39 and 40: on damages. Unless the court orders

Facilitating the Early Resolution of Disputes without Litigation

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