Wednesday, April 6, 2011

Repeal of the pre-litigation requirements from the Civil Procedure Act 2010 (Vic)

The Civil Procedure and Legal Profession Amendment Act 2011 (Vic) was recently passed by the Victorian Parliament and is effective from 30 March 2011. The purpose of this amendment as set out in s1 of that act includes: 'to amend the Civil Procedure Act 2010 to repeal Chapter 3 and other provisions relating to pre-litigation requirements.' This article discusses the amendment in detail.

By way of background, Chapter 3 of the CPA was scheduled to commence on 1 July 2011 and required parties to engage in 'reasonable steps' to resolve the dispute by agreement or to clarify and narrow the issues in dispute in the event that civil proceedings are commenced. This included but was not limited to the exchange of correspondence and documents and considering appropriate dispute resolution. The parties were also required to certify that the pre-litigation requirements were complied with when commencing proceedings.

The opposition to Chapter 3 was that it would increase legal costs by forcing parties to engage in unnecessary steps even when it was inappropriate (e.g. simple debt recovery). It was also considered unnecessary as most parties were already engaging in these processes, where appropriate.

However, the amending act amends s70(1)(c) of the CPA to enable a Court to impose its own mandatory or voluntary pre-litigation requirements, as follows:

'Without limiting any other power to make rules of court, rules of court made by the authority having for the time being power to make rules regulating the practice and procedure of a court may include rules for or with respect to-
(c) pre-litigation requirements other than those under Chapter 3, including specific protocols for civil proceedings or classes of civil proceeding;

(c) specific protocols of civil proceeding including, but not limited to, mandatory or voluntary pre-litigation processes for specified civil proceedings or specified classes of civil proceeding;'
Interestingly, the Commonwealth recently passed the Civil Dispute Resolution Bill which imposes pre-litigation requirements similar to those that were repealed from the CPA as part of the amendment.

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