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Civil Procedure Bill 2010

Introduction Print

EXPLANATORY MEMORANDUM

General

Background

The Civil Procedure Bill 2010 is a Bill to provide for an Act that will reform and modernise the laws, practice, procedure and processes for the resolution of civil disputes which may lead to civil proceedings, and for the initiation and conduct of civil proceedings and appeals in the Supreme, County and Magistrates' Courts.

The Bill provides the foundation for a comprehensive overhaul of the civil justice system in Victoria. It aims to redress an imbalance in the civil justice system to achieve essential goals of accessibility, affordability, proportionality, timeliness, and getting to the truth quickly and easily. It does this in 2 main ways.

First, it seeks to build a culture in which litigants are encouraged to resolve their cases without going to court. The pre-litigation processes in the Bill provide a general framework for parties and their lawyers to achieve resolution of the dispute without the intervention of the court, or if that is not possible, to narrow the issues in dispute to the real issues in dispute. Litigation should be regarded as a measure of last resort, where the interests of justice require access to a judicial officer, or the dispute is of such a nature that only judicial determination is appropriate.

Secondly it seeks to build a culture within the court system that supports and encourages litigants and their lawyers to use reasonable endeavours to achieve early resolution of cases by agreement, using appropriate dispute resolution processes where appropriate or to narrow the issues in dispute, except where the interests of justice require access to the court, or where the dispute is of such a nature that only judicial determination is appropriate.

To facilitate this resolution of disputes, judges and magistrates are given clear legislative assistance to proactively manage cases in a manner that will promote the overarching purpose of the courts when exercising civil jurisdiction, which is the just, efficient, timely and cost-effective resolution of the real issues in dispute.

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At the core of these reforms is the concept of proportionality. Participants in litigation are expected to use reasonable endeavours to ensure that legal and other costs spent in the proceeding are reasonable and proportionate to the complexity or importance of the issues in dispute, and the amount in dispute. The courts will also deal with civil proceedings using the same approach.

The provisions of the Bill aim to ensure the appropriate use of the court system by litigants and to prevent the wastage of court resources through inefficient processes or tactical litigation that has the effect of reducing access to the courts for other litigants with meritorious claims. The obligation of proportionality is, however, worded so that resources are not unreasonably constrained for cases that might be for a small amount, but have significant precedent or public interest value.

Reform process

Reform of the civil justice system was identified as a priority in the Attorney-General's first Justice Statement. The Government gave the Victorian Law Reform Commission (the Commission) a reference in September 2006 to undertake a review of the civil justice system and the Commission presented its Civil Justice Review Report (the Report) in March 2008.

The Commission set strategic objectives for various reforms of the civil procedure rules, substantive law and case management. These objectives seek not only to change the formal rules for the conduct of proceedings, but to change litigation culture itself.

The Attorney-General's Justice Statement 2, released in October 2008, restated the Government's commitment to reforming civil justice using the Commission Report as a guide.

The Government recognised that long-term change was not possible without detailed consultation with the courts and the profession. The Government established a Civil Procedure Advisory Group (the Advisory Group) in November 2008 to consider the Commission's recommendations. The Advisory Group is chaired by the Chief Justice of the Supreme Court and has representatives from the Supreme, County and Magistrates' Courts, VCAT, the Victorian Bar, the Law Institute of Victoria, the Federation of Community Legal Centres and the Department of Justice.

Since November 2008, the Advisory Group has considered some of the Commission's key recommendations which are reflected in this Bill.

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Clause Notes

CHAPTER 1—PRELIMINARY

This Chapter sets out the purpose of the Bill, when the Bill commences, definitions for terms used and the application of the Bill.

Clause 1 provides that the main purposes of the Bill are to reform and modernise the laws, practice, procedure and processes relating to the resolution of civil disputes which may lead to civil proceedings and to civil proceedings in the Supreme Court, County Court and Magistrates' Court and to provide for uniformity, to simplify the language relating to civil procedure and to provide for an overarching purpose in relation to the conduct of civil proceedings.

Without limiting the purposes set out in subclause (1), the Bill implements the following specific reform initiatives—

• overarching obligations for participants in civil proceedings in order to improve the standards of conduct of all participants in litigation;

• measures to assist the facilitation of the resolution of disputes before civil proceedings are commenced;

• the enhancement of case management powers of the courts, including in relation to discovery;

• further enhancement of appropriate dispute resolution processes;

• reform of the law relating to summary judgment;

• clarifying sanctions available to courts in relation to contravention of discovery obligations.

Clause 2 provides that the Bill commences on a date to be proclaimed. The Bill, or provisions of the Bill, will commence on 1 June 2011 if not proclaimed before that date.

Clause 3 defines the key words and phrases used in the Bill.

The phrases civil dispute and civil proceeding are integral to the operation of this Bill.

civil dispute means a dispute which may result in the commencement of a civil proceeding.

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civil proceeding means any proceeding in a court other than a criminal proceeding or quasi-criminal proceeding. In this context, the term quasi-criminal proceeding contemplates a proceeding which often, but not always, relates to a criminal proceeding, such as proceedings for the recovery of proceeds of crime and proceedings for contempt. These types of proceedings usually have a lower standard of proof, usually the civil standard, being on the balance of probabilities, rather than the criminal standard, which is beyond reasonable doubt. Examples of Acts which provide for the bringing of quasi-criminal proceedings are listed in clause 4.

The definition of the phrase expert witness replicates the definition of "expert" in rule 44.01 of the Supreme Court (General Civil Procedure) Rules 2005.

Clause 4 provides that the Bill applies to all civil proceedings, except that it does not apply to proceedings under the following Acts—

• the Family Violence Protection Act 2008;

• the Stalking Intervention Orders Act 2008;

• the Confiscation Act 1997;

• the Proceeds of Crime Act 1987 of the Commonwealth and the Proceeds of Crime Act 2002 of the Commonwealth;

• the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;

• the Children, Youth and Families Act 2005;

• the Coroners Act 2008;

• the Victims of Crime Assistance Act 1996; and

• the Sentencing Act 1991.

Clause 4(4) allows for the making of regulations to prescribe that proceedings under specific Acts are exempt from the operation of the Bill.

The Bill applies to all civil disputes that may lead to civil proceedings and to civil proceedings in the Supreme, County and Magistrates' Courts, except those exempted by clause 4.

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Clause 5 provides that the Act binds the Crown in the right of Victoria and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

Clause 6 provides that nothing in the Bill is intended to override the Charter of Human Rights and Responsibilities or the doctrine of privilege, whether arising by or under the common law, statute or otherwise. The issue of privilege has relevance to the disclosure requirements in clause 26 (overarching obligation of disclosure) and clause 34(2) (pre-litigation requirement to exchange appropriate correspondence, information and documents critical to the resolution of the dispute).

CHAPTER 2—OVERARCHING PURPOSE AND OVERARCHING OBLIGATIONS

PART 2.1—OVERARCHING PURPOSE

Overarching purpose of the courts in their civil jurisdiction

There are existing provisions in the Supreme and Magistrates' Courts Acts as well as the Civil Procedure Rules applicable in each of the Supreme, County and Magistrates' Courts, which define the purpose and duties of Victorian courts in civil matters.

The Commission recommended the introduction of a uniform statutory statement to define the overriding purpose and duties of the courts in relation to civil matters.

Clause 7 provides a statement that defines the overarching purpose of the Bill and rules of court in relation to civil proceedings that will be a foundational guide to the courts when exercising their civil jurisdiction. That purpose is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. This might be achieved by determination of the proceeding by the court, agreement between the parties or any appropriate dispute resolution process agreed to by the parties or ordered by the court.

Clause 8 The courts will be required to give effect to the overarching purpose when exercising or interpreting powers. The court must give effect to the overarching purpose, despite any other Act or law to the contrary, except for the Charter of Human Rights and Responsibilities.

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Clause 9 provides that when giving effect to the overarching purpose, a court must have regard to a broad range of objects, including the public interest in the early settlement of disputes by agreement between the parties and the efficient conduct of the business of the court.

In furthering the overarching purpose, the court may also have regard to a broad range of discretionary matters including the extent to which the parties have complied with the pre-litigation requirements under the Bill or any other pre-litigation processes. This means that what the parties and legal practitioners do before a proceeding commences may come under the scrutiny of the court later on, if it turns out that there has been a failure to take reasonable steps to resolve the dispute.

The court may also have regard to the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute, the public importance of the issues in dispute, and the extent to which the parties have had the benefit of legal advice and representation.

PART 2.2—APPLICATION OF THE OVERARCHING OBLIGATIONS

Whilst the Commission found that there is no cause for serious concern about the conduct of lawyers and litigants in most cases, it also found that existing rules and practices do not always facilitate the most efficient and economical resolution of civil proceedings. The Commission said that the proposal to introduce overarching obligations is a response to persistent concerns about the conduct of various participants in the civil justice system.

In response to these findings, the Bill will implement new provisions prescribing standards of conduct in civil proceedings. The primary objective of these proposals is to change the culture of litigation, rather than to punish misconduct. These proposals promote a less adversarial approach to litigation, and discourage the abuse of legal processes for strategic purposes, in particular, where litigants with more resources have a greater capacity to adopt tactical procedural moves to delay or frustrate the resolution of a dispute.

The overarching obligations create a model standard for the conduct of parties in the legal system in the form of a positive set of obligations and duties. The proposals also restate and clarify existing standards of conduct within the civil justice system for lawyers, including their duty to the court and the administration of justice.

The pre-litigation requirements in Chapter 3 apply up until the commencement of proceedings. The overarching obligations operate as soon as a party files its first substantive document (defined in clause 3) in a

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proceeding and apply to all aspects of a civil proceeding, including appropriate dispute resolution processes, interlocutory proceedings and appeals.

Clause 10 provides that the overarching obligations apply to—

• any person who is a party;

• any legal practitioner or other representative who acts for, or on behalf of, a party;

• any law practice that acts for, or on behalf of, a party;

• any person who provides financial assistance or other assistance to any party in so far as that person exercises any direct or indirect control or influence over the conduct of the civil proceeding or of a party in respect of that civil proceeding. This includes, but is not limited to, insurers and providers of funding or financial support, including litigation funders.

Statutory indemnifiers, such as the Transport Accident Commission and the Victorian WorkCover Authority, are subject to the overarching obligations, as persons who, by providing assistance, directly or indirectly control or influence the conduct of the civil proceeding, or as insurers.

As the application provision is inclusive, there will be other examples of persons who will be subject to the overarching obligations and it will be a matter for the court to determine this on a case-by-case basis.

Corporations will be liable for the acts of any director, servant or agent acting within the scope of their actual or apparent authority. In general, it is not intended that employees of parties or other participants will be personally liable for breach of the overarching obligations. In the case of a law firm acting for a party, both the law firm and individual lawyer who breach any of the overarching obligations should be liable, but non-legally qualified employees should not be personally liable for any breach.

Subclauses (2) and (3) clarify that the overarching obligations (excluding those contained in clauses 18, 19, 22 and 26) apply to expert witnesses, but do not apply to lay witnesses in a civil proceeding.

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Clause 11 establishes that the overarching obligations apply in respect of the conduct of any aspect of a civil proceeding in a court including but not limited to any interlocutory application or interlocutory proceeding, any appeal and any appropriate dispute resolution.

Clause 12 provides that subject to the paramount duty, which is defined in clause 16, the overarching obligations prevail over any legal, contractual or other obligation which a person to whom the overarching obligations apply may have, to the extent that the obligations are inconsistent.

This clause together with clause 16 establishes the paramount nature of the duty to further the administration of justice. The paramount duty, which is part of the overarching obligations (see the definition in clause 3) is more general than the specific overarching obligations set out in clauses 17 to 26. It is the fundamental duty owed by persons to whom the overarching obligations apply. Accordingly, the other overarching obligations are subject to the paramount duty by the operation of clause 12. In the event of a conflict between the overarching obligations and any other legal, contractual or other obligation, the overarching obligations will prevail.

Clause 13 provides that the overarching obligations do not override any duty or obligation of a legal practitioner to a client, whether arising under the common law or by or under any statute or otherwise, to the extent that those duties and obligations and the overarching obligations can operate consistently.

Subclause (2) clarifies that a legal practitioner or law practice must comply with the overarching obligations despite any obligation the legal practitioner or law practice has to act in accordance with the instructions or wishes of the client.

In the case of any inconsistency between any overarching obligation and a duty or obligation to the client, or an instruction or wish of a client, subclause (3)(a) provides that the overarching obligation prevails to the extent of that inconsistency and in the case of the instruction or wish of a client, subclause (3)(b) provides that the legal practitioner is not required to comply with any instruction or wish of the client which is inconsistent with the overarching obligation.

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Clause 14 prohibits a legal practitioner or law practice, which is engaged by or on behalf of a client in connection with a civil proceeding from, by their conduct, causing the client to contravene any overarching obligation.

Clause 15 clarifies that nothing in this Part overrides any duty or obligation of a legal practitioner to the court. As an officer of the court, a legal practitioner owes a special and higher duty to the court than other persons to whom the overarching obligations apply.

PART 2.3—THE OVERARCHING OBLIGATIONS

Clause 16 provides that each person to whom the overarching obligations apply has a paramount duty to the court to further the administration of justice in relation to any civil proceeding that person is involved in including any interlocutory application or interlocutory proceeding, any appeal or any appropriate dispute resolution undertaken in relation to a civil proceeding.

Traditionally, as officers of the court, only lawyers have owed a duty to the court to further the administration of justice. This clause extends a similar duty to other participants in civil proceedings, to ensure that not only lawyers but litigants, insurers, litigation funders and other persons with control or influence over the conduct of civil proceedings are aware of and held to a higher standard of conduct. Note, however, recognition of a legal practitioner's special duty as set out in clause 15 above.

Clause 17 requires that a person to whom the overarching obligations apply must act honestly at all times in relation to a civil proceeding.

Clause 18 prohibits a person to whom the overarching obligations apply from making any claim or making a response to a claim in a civil proceeding that is frivolous, vexatious, is an abuse of process, or does not, on the factual and legal material available, have a proper basis.

The Commission's recommendation was that participants in litigation must not make claims or make responses to claims where a reasonable person would believe that the claim or response is frivolous, vexatious, for a collateral purpose or without merit. The Advisory Group's view was that imposing a requirement of merit may be unworkable on the basis that it is vague and may require practitioners to go to unreasonable lengths to verify their clients' instructions. The Advisory Group instead recommended that the obligation require that allegations and non-admissions be made on a proper legal and factual basis, as set out in the Federal Court Rules 1979.

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Clause 19 requires persons to whom the overarching obligations apply, for the purpose of avoiding undue delay and expense, not to take any step in connection with any claim or response to any claim in a civil proceeding unless the person reasonably believes that the step is necessary to facilitate the resolution or determination of the proceeding.

This overarching obligation seeks to concentrate the attention of participants in civil litigation on the steps reasonably required to facilitate resolution of the issues in dispute and to restrain the taking of steps that do not satisfy this requirement. Examples would include taking unnecessary interlocutory steps or bringing interlocutory proceedings for tactical reasons, or to oppress another party, rather than focusing on the real issues in dispute.

Clause 20 requires persons to whom the overarching obligations apply to cooperate with the parties to a civil proceeding and the court in connection with the conduct of that proceeding. This provision is aimed at preventing obstructive conduct in the course of proceedings.

Clause 21 prohibits a person to whom the overarching obligations apply from, in relation to a civil proceeding, engaging in conduct which is misleading or deceptive or likely to mislead or deceive.

Clause 22 requires persons to whom the overarching obligations apply to use reasonable endeavours to resolve a dispute by agreement between the parties to the dispute including, if appropriate, through the use of appropriate dispute resolution. An exception is created for cases where it is not in the interests of justice to do so, or the dispute is of such a nature that only judicial determination is appropriate.

For example, it is considered that a proceeding where a civil penalty under a civil penalty provision of an Act is sought or a proceeding concerning the Charter of Human Rights and Responsibilities may fall into this category.

Clause 23 provides that, where a person to whom the overarching obligations apply cannot resolve a dispute wholly by agreement, that person must use reasonable endeavours to resolve by agreement any issues in dispute which can be resolved in that manner and to narrow the scope of the remaining issues in dispute. An exception is created where it is not in the interests of justice to do so, or the nature of the dispute is such that only judicial determination is appropriate.

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Clause 24 imposes a requirement on persons to whom the overarching obligations apply to use reasonable endeavours to ensure that legal and other costs that are incurred in connection with the civil proceeding are reasonable and proportionate to—

• the complexity or importance of the issues in dispute; and

• the amount in dispute.

Clause 25 provides that, for the purposes of ensuring the prompt conduct of a civil proceeding, a person to whom the overarching obligations apply must use reasonable endeavours in connection with the civil proceeding to act promptly and minimise delay.

Clause 26 requires a person to whom the overarching obligations apply to disclose to each party to the civil proceeding the existence of all documents that are, or have been, in that person's possession, custody or control—

• of which the person is aware; and

• which that person considers or ought reasonably consider are critical to the resolution of the dispute.

This disclosure must occur at the earliest reasonable time after the person becomes aware of the existence of the document or at such other time as a court may direct.

Subclause (3) provides that this obligation does not apply to any document that is protected from disclosure on the grounds of privilege that has not been expressly or impliedly waived, or under any Act, including a Commonwealth Act, or other law. This means that there is no requirement for the exchange of privileged documents, but any exchange of privileged documents will amount to a waiver of privilege.

The obligation imposed by this clause is an ongoing one, which exists for the duration of the civil proceeding and does not limit or affect a party's obligations in relation to discovery.

The overarching obligation of disclosure is a broad, ongoing obligation that is designed to facilitate the early resolution of disputes by requiring parties to disclose critical documents early in a proceeding, prior to discovery. It is not intended to require the duplicate disclosure of documents which have already been disclosed under the pre-litigation requirements in Chapter 3 of the Bill or any discovery obligation.

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For the purposes of this clause and in the context of the other overarching obligations, "disclose" will normally mean providing a list of the critical documents and making the critical documents available for inspection.

The term "critical documents" is intended to capture a class of documents considerably narrower than those required to be discovered, but is broader than the concept of "decisive" documents. The test is meant to capture those documents that a party would reasonably be expected to have relied on as forming the basis of the party's claim when commencing the proceedings, as well as documents that the party knows will adversely affect the party's case. The purpose of the early disclosure is to allow persons in dispute and their lawyers to have sufficient information upon which to have meaningful settlement discussions with the other side.

In new proceedings instituted after the commencement of the Act, parties will be required to comply with the overarching obligation of disclosure at the earliest reasonable time after the commencement of the proceeding. In practice, it is envisaged that parties will usually seek orders from the court at the first directions hearing as to the date by which the overarching obligation of disclosure must be complied with.

Where a proceeding is on foot (and subject to the transitional arrangements in Part 6.2), where a party becomes aware of a critical document that has not been previously disclosed, the obligation will require the party to disclose the existence of the document at the earliest reasonable time after the party becomes aware of it.

Clause 27 provides that a person who receives any information or documents as a result of the overarching obligation of disclosure must not use the information or documents for a purpose other than in connection with the civil proceeding.

Subclause (2) provides that this is an obligation to the court, contravention of which constitutes contempt of court. Subclause (3) provides that a person may agree in writing to the use of its information and documents, or may be released from the obligation by leave of court. Subclause (4) clarifies that any information or documents disclosed in compliance with the overarching obligation of disclosure is required to be discovered to be admissible in the proceeding.

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This clause is intended to replicate the implied undertaking in relation to discovery that a party will not use any documents or information received for an ulterior purpose. For example, the clause will protect a party from misuse by another party of information of documents obtained pursuant to the disclosure obligation, for the purposes of obtaining a commercial advantage.

PART 2.4—SANCTIONS FOR CONTRAVENING THE OVERARCHING OBLIGATIONS

Clause 28 enables the court to take into account any contravention of the overarching obligations when exercising any power in relation to a civil proceeding. This may include when a court is exercising its discretion as to costs.

Clause 29 sets out some of the orders that a court may make where a person has contravened any overarching obligation.

Clause 30 sets out the procedural requirements for bringing the applications provided for in clause 29.

Clause 31 enables the time limit set out in clause 30 to be extended if the court is satisfied that the party applying was unaware of the contravention of the overarching obligation until after the finalisation of the proceeding.

CHAPTER 3—BEFORE A CIVIL PROCEEDING COMMENCES

PART 3.1—PRE-LITIGATION REQUIREMENTS

Pre-litigation requirements

The Commission found that there is a need for greater disclosure of information and cooperation between the parties prior to the commencement of legal proceedings.

The pre-litigation requirements in the Bill are less prescriptive than the general pre-action protocol recommended by the Commission. The provisions aim to achieve the right balance between providing enough guidance to the parties in the pre-litigation stage, and avoiding creating a system that builds in further layers of cost and delay.

Insofar as current good practice in dispute resolution involves disputants taking reasonable steps to resolve their dispute without the need for litigation, the Bill only restates such practice.

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Clause 32 clarifies the types of proceedings to which this Part and Part 3.2 (sanctions enforcing the pre-litigation requirements) do not apply.

The exclusion in subclause (1)(d)(i) for civil disputes which have been conducted in accordance with a pre-litigation process for claims made under the Transport Accident Act 1986 operates in a different manner from the other exclusions. Only where there has been compliance with an existing pre-litigation process for claims made under that Act does this exclusion apply. So, for example, if the parties to a claim under Part 6 of the Transport Accident Act 1986 did not conduct an existing pre-litigation process, the pre-litigation requirements will apply to them.

Subclause (2) provides that this Part and Part 3.2 do not apply to any civil proceeding or class of civil proceeding if rules of court provide that the pre-litigation requirements do not apply to that proceeding or class of proceeding. Clause 70 of the Bill provides the courts with special rule-making powers in relation to the pre-litigation requirements including a power to exempt civil proceedings or classes of civil proceeding from compliance with pre-litigation requirements.

This recognises that certain types of proceeding will not benefit from the pre-litigation requirements or that the pre-litigation requirements may be unnecessary or inappropriate for some types of proceedings. However, it is expected that in most cases the test in clause 34 of whether it is reasonable for steps to be taken will be sufficient to protect disputants from being forced to take unnecessary steps prior to the commencement of proceedings.

Clause 33 imposes a requirement on each person involved in a civil dispute to comply with the pre-litigation requirements before commencing any civil proceeding in a court in relation to that dispute. Subclause (2) provides that this requirement only applies to the commencement of civil proceedings in a court 6 months after Part 3.1 begins operation.

Clause 34 sets out what the pre-litigation requirements are. Each person involved in a civil dispute must take reasonable steps, having regard to their situation and the nature of the dispute to resolve the dispute by agreement or to clarify and narrow the issues in dispute in the event that civil proceedings are commenced.

The essential requirement is the need to take reasonable steps to resolve the dispute by agreement. If the matter is not able to be resolved by agreement the parties must take reasonable steps to

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clarify and narrow the issues in dispute. It is recognised that there will be some disputes where the commencement of proceedings without adherence to the pre-litigation requirements is necessary and not unreasonable, for example, if a limitation period is about to expire.

For the purposes of compliance with subclause (1), reasonable steps include, but are not limited to—

• the exchange of appropriate pre-litigation correspondence, information, and documents critical to the resolution of the dispute; and

• consideration of options for resolving the dispute without the need for civil proceedings in a court, including, but not limited to resolution through genuine and reasonable negotiations or appropriate dispute resolution.

These steps would normally be regarded as the minimum requirements to meet compliance with the clause.

Under subclause (3), each person involved in a civil dispute must not unreasonably refuse to participate in genuine and reasonable negotiations or appropriate dispute resolution.

In the event that a person is of the view that, having regard to the person's situation and the nature of dispute, the person cannot take reasonable steps to resolve the dispute by agreement, or to clarify and narrow the issues in dispute, when completing the pre-litigation requirements compliance certification, the person must set out briefly the reasons why those steps have not been undertaken. This matter is discussed further under the clause notes for Part 4.1.

Clause 35 provides that a person who receives any information or documents provided by another person involved in a civil dispute in accordance with the pre-litigation requirements is subject to an obligation not to use the information or documents, or permit the information or documents to be used, for a purpose other than in connection with the resolution of the civil dispute or any civil proceeding arising out of the dispute.

As with clause 27, this clause is intended to replicate the implied undertaking in relation to discovery that a party will not use any documents or information received for an ulterior purpose.

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Clause 36 provides that a court cannot prevent the commencement of civil proceedings merely because of non-compliance with the pre-litigation requirements, unless it otherwise orders or rules of court otherwise provide. This ensures that persons involved in a civil dispute are not prevented from bringing civil proceedings in a court, regardless of whether they have complied with the pre-litigation requirements, although there may be sanctions imposed for not doing so, if the court regards the failure to comply as unreasonable.

Examples of a failure to comply might include an unreasonable refusal to participate in mediation or other ADR, or the refusal to consider a reasonable offer of settlement.

PART 3.2—SANCTIONS ENFORCING THE PRE-LITIGATION REQUIREMENTS

Clause 37 provides that, subject to this Part and unless the rules of court otherwise provide, there is a presumption that each person involved in a civil dispute or each party to a civil proceeding is to bear that party's own costs of compliance with the pre-litigation requirements. This is intended to prevent satellite litigation around the issue of costs and to encourage disputants to only do what is reasonable and proportionate to attempt to resolve a dispute prior to the issue of proceedings.

Clause 38 establishes that, despite the presumption set out in clause 37, a court may order that a party to a civil proceeding pay all or a particular part of another party's costs of compliance with the pre-litigation requirements if the court is satisfied that it is reasonable to do so, having regard to furthering the overarching purpose.

Subclause (2) enables the court to make such an order against a representative of a party to a civil proceeding, rather than the party, in that representative's capacity. The court may do this if it is satisfied that the representative's conduct in relation to compliance with the pre-litigation requirements has caused another party to unnecessarily incur costs in complying with the pre-litigation requirements.

Subclause (3) states that a court may, in making an order under this clause, order that the costs be taxed, assessed, settled or reviewed by the Costs Court and that the costs be payable immediately and enforceable immediately.

The court may make an order under this clause of its own motion or on the application of any party to the civil proceeding.

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Clause 39 sets out the powers of the court to sanction failure to comply with the pre-litigation requirements. If a court is satisfied that a party to a civil proceeding has failed to comply with the pre-litigation requirements, or a pre-litigation process for a claim made under Part 6 of the Transport Accident Act 1986, it may take that failure into account in determining costs in the proceeding generally or making any order about the procedural obligations of parties to the civil proceeding, or making any other order it considers appropriate.

This clause has the effect of allowing a party, in a claim conducted pursuant to a pre-litigation process under Part 6 of the Transport Accident Act 1986, to bring an application to the court for contravention of a pre-litigation requirement under that regime.

Clause 40 provides that, for the purposes of Part 3.1 and Part 3.2, scales of fees or costs in relation to compliance with the pre-litigation requirements may be fixed by regulations or by rules of court.

Because this power only relates to fees or costs in relation to the Bill's pre-litigation requirements (as defined in clause 3), it is not intended that this power would be used to displace any applicable costs regime developed for the pre-litigation processes under the Transport Accident Act 1986.

CHAPTER 4—COMMENCEMENT AND CONDUCT OF CIVIL PROCEEDINGS

PART 4.1—CERTIFICATION REQUIREMENTS ON COMMENCEMENT OF CIVIL PROCEEDINGS

Clause 41 provides that parties must personally certify that they have read and understood the overarching obligations and the paramount duty. This certification must be in writing and filed with the party's first substantive document (defined in clause 3), being the first document that a party would ordinarily file in a proceeding.

This requirement is intended to draw litigants' attention to the overarching obligations and paramount duty early in court proceedings.

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Litigation guardians and similar representatives may make this certification on behalf of a party under subclause (3). Further, if a person is standing in a party's shoes in circumstances where it would be inappropriate or impracticable for the party to complete the certification personally, it is intended that the person may certify. For example, a liquidator would certify on behalf of a company in liquidation.

The certification must be in accordance with the rules of court. See also clauses 44 (urgent filing of documents and certification), 45 (proceedings may be commenced despite failure to certify) and 46 (court may take failure to comply into account).

Clause 42 provides that a legal practitioner acting for a party, or any unrepresented party, must certify that the allegations of fact, denials and non-admissions made by the party have a proper basis. This certification must be made with the filing of the party's first substantive document and any document that contains significant amendments to the first substantive document. The certification must be in accordance with rules of court. Subclause (3) sets out how a legal practitioner or unrepresented party should determine whether allegations, denials or non-admissions have a proper basis.

Clause 43 provides that each party to whom the pre-litigation requirements apply, or the party's legal practitioner, must certify whether the pre-litigation requirements have been complied with. This certification must be in writing and filed with the first substantive document filed by the party.

If the pre-litigation requirements in clause 34(1) and (2) have not been undertaken by a party, it is required to set out briefly the reasons for not undertaking those requirements in its certification.

This certification is intended to focus the party's and the court's attention on whether the party has taken "reasonable steps" before litigation as described in clause 34(1) and (2).

It may be not practicable for a party to attempt to resolve a dispute prior to litigation or narrow the issues in dispute, for example, in circumstances where a limitation period is close to expiring or if a party is terminally ill. In that case, a party may not be required to undertake the steps described in clause 34(1) and (2). Such a party would not be in breach of the pre-litigation requirements.

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However, clause 43(2) requires such parties, in certifying, to set out the reasons for not taking pre-litigation steps. It would not be sufficient for a person or legal practitioner to certify that they have not undertaken the reasonable steps set out in clause 34(1) and (2) because they regard those steps as impracticable or unreasonable. The certification must go further and set out the reasons that the steps have not been undertaken.

It is intended that the courts, and not the parties, will ultimately assess whether a party has satisfactorily complied with the pre-litigation requirements and whether any failure to undertake the steps described in clauses 34(1) and (2) is in contravention of the pre-litigation requirements.

Any contravention of the pre-litigation requirements, including an unreasonable failure to comply with clause 34, is subject to sanction under Part 3.2. Any failure to comply with the certification requirements under this clause is subject to sanction under clause 46.

Clause 44 provides that, if as a matter of urgency a document is required to be filed in a civil proceeding, a party or a legal practitioner may file the document without certifying. The relevant certification must be filed as soon as practicable after filing the document.

This urgency may, for example, arise as a result of the need to comply with a limitation period which is about to expire. Other examples include freezing orders, search orders and urgent interlocutory applications.

Clause 45 provides that a court may not prevent the commencement of civil proceedings merely because of a failure to comply with any certification requirement, unless it otherwise orders.

This ensures that parties have access to the courts despite non-compliance with the technical requirements of certification. However, a party that does not comply with the certification requirements may be subject to sanction under clause 46 if in the view of the court the failure is unreasonable.

Clause 46 enables a court, in making orders, to take into account any failure by a person to comply with any certification requirement.

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PART—CASE MANAGEMENT The Commission found there was a need to introduce further reforms to enable the courts to more actively manage cases, where emphasis is given to planning the most effective way to resolve the dispute, rather than leaving it to the parties to determine the process.

The Commission stated that managerial judging and case management seek to shift the balance towards judicial control, rather than lawyer or party control, of litigation. Apart from controlling interlocutory steps necessary to prepare the matter for trial, judges can also act in a facilitative, rather than a purely adjudicative, manner, by encouraging the parties to settle their dispute or to narrow the issues required to be tried.

The primary objective of the case management provisions is to make it clear that the courts have the power to make appropriate orders and impose reasonable limits to enable them to better or actively manage the conduct of proceedings, thereby reducing costs and delay.

Although the existing general powers of the court, and existing procedural rules, may be sufficient to impose limits, restrictions or conditions on any party in respect of any aspect of the conduct of proceedings, the Commission found that comprehensive statutory provisions will have greater impact. They will also resolve any argument about the limits of existing rule-making powers and will overcome any constraints on the exercise of case management powers that exist at common law.

Without limiting any powers that the court already has, the Bill provides clear legislative guidance to judges and magistrates to proactively manage cases in a manner that will ensure that they are conducted in accordance with the overarching purpose. This may include imposing reasonable limits, restrictions or conditions in respect of the management and conduct of any aspect of a civil proceeding or the conduct of a party.

The Bill further provides that a court may make any order or give any direction it considers appropriate to further the overarching purpose in relation to pre-trial procedures and in relation to the conduct of a hearing.

Sanctions apply for contravention of the case management orders or directions made by the court. These include costs orders, dismissal of the civil proceeding, striking out of parts of a claim or any other order that the court considers appropriate.

Clause 47 provides that, for the purposes of ensuring that a civil proceeding is managed and conducted in accordance with the overarching purpose, the court may give any direction or make any order it considers appropriate, including orders and directions made in the interests of the administration of justice or in the public interest.

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A court may impose any reasonable limits, restrictions or conditions in respect of civil proceedings and conduct of parties.

Subclause (3) provides that a court may actively case manage proceedings and lists some of the directions and orders that may be made.

The powers set out in this clause are a codification of existing case management powers held by the courts. The Government encourages the courts to use these powers to actively manage cases and to further the overarching purpose—that is, to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute between parties.

Clause 48 provides that a court may make any order or give any direction it considers appropriate to further the overarching purpose in relation to pre-trial procedures. Subclause (2) lists some of the directions and orders that may be made.

Clause 49 provides that a court may make any order or give any direction it considers appropriate in order to further the overarching purpose in relation to the conduct of hearings. These directions or orders may be given or made at any time before a hearing commences or during that hearing. Subclause (3) lists some of the types of directions or orders that may be made.

In relation to a court's power to make orders with respect to the place, time and mode of trial in subclause (3)(i), "mode of trial" refers to trial by judge or jury. Rule 47.02 of the Supreme Court (General Civil Procedure) Rules 2005 and the County Court Civil Procedure Rules 2008 currently sets out substantive rules as to mode of trial. It grants some litigants a limited prima facie right to trial by jury. This prima facie right to trial by jury is subject to the court's discretion – rule 47.02(3) provides that a court may "direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury". The Bill merely restates this general discretion in subclause (3)(i). It is not intended that the Bill should change the status quo in regard to the court's discretion as to mode of trial. A party's prima facie right to trial by jury under rule 47.02 will remain.

Clause 50 provides that the court may make orders at any time in a proceeding directing a legal practitioner to prepare a memorandum setting out the estimated length and costs of the trial, and to provide that memorandum to the court and to a party.

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Clause 51 sets out some of the sanctions a court may impose for failure to comply with orders made or directions given under this Part, including to dismiss the civil proceeding.

Clause 52 provides that the court may revoke or vary any direction or order made by it under this Part.

Clause 53 addresses the relationship of this Part with other powers of the court, and provides that nothing in the Part limits any other power a court may have, regardless of the source of that power.

For example, nothing in this Part limits the Court's powers to make orders pursuant to the specific costs provisions of the Accident Compensation Act 1985 such as section 134AB(28) and (29).

PART 4.3—DISCLOSURE AND DISCOVERY The Commission stated that discovery (or disclosure) of documents is a critical element of fact-finding, truth seeking and decision-making. However, feedback to the Commission during the consultation process demonstrated that despite these safeguards and the integral role that discovery plays in the administration of justice, it has become a hugely contested process, particularly in complex civil litigation. Discovery has also been strongly criticised by the judiciary throughout Australia and in the press, particularly in relation to a number of high profile cases (for example, see Seven Network Ltd v News Ltd [2007] FCA 1062).

The Commission stated that the main concerns with discovery related to its expense, scale and delay, as well as the abuse of discovery obligations. During the consultation process, the Commission heard concerns about the overly adversarial approach taken to discovery by some parties and solicitors, as well as significant inequalities between the parties. The Report notes that, whilst the purpose of discovery is to provide each side with all of the relevant documentary information in each party's possession, so as to avoid trial by ambush, the process is also frequently used as a tactical tool to leverage settlement or deter an opposing party by exhausting that party's resources.

The Bill implements the Commission's recommendations with respect to case management reforms and sanctions for discovery abuse.

Clause 54 states that, unless a court otherwise orders, discovery of documents is to be in accordance with the rules of court.

It is understood that the courts are considering narrowing the current test for discoverable documents to reduce the volume of documents that may need to be discovered.

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Clause 55 provides that a court may make any order or give any direction in relation to discovery which it considers is necessary or appropriate. Subclause (2) sets out a list of the types of directions or orders that may be made.

Clause 56 provides that the court may sanction parties for failure to comply with their discovery obligations, a failure to comply with any order or direction in relation to discovery, or conduct that is intended to delay, frustrate or avoid discovery of discoverable documents. Subclause (2) lists some of the directions or orders that may be made, including that proceedings for contempt of court be initiated.

This clause does not authorise the production of privileged documents, because it does not expressly abrogate privilege—Daniels Corporation International Ltd v ACCC (2002) 213 CLR 543.

Subclause (2)(a), which provides the court with the power to initiate contempt proceedings, does not alter the substantive law upon which such proceedings are subsequently decided. It merely states that such proceedings may be initiated. In determining such proceedings, the court will need to be guided by relevant statutory and common law principles that apply in relation to contempt.

Clause 57 provides that a party may cross-examine, or seek leave to conduct an oral examination of, the deponent of an affidavit of documents if there is a reasonable basis for the belief that the other party may be misinterpreting a party's discovery obligations or failing to disclose discoverable documents. This is subject to any order of the court.

Clause 58 provides that nothing in this Part derogates from the operation of Division 9 of Part III of the Evidence (Miscellaneous Provisions) Act 1958, which deals with the situation where a document is unavailable for use as evidence.

Clause 59 provides that the powers of a court under this Part are in addition to, and do not derogate from, any powers a court also has under rules of court in relation to discovery or disclosure of documents.

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PART 4.4—SUMMARY JUDGMENT The Commission stated that claims or defences that are without merit create problems for the parties and the administration of justice, subjecting plaintiffs and defendants to the inconvenience and expense of litigation. The pursuit of unmeritorious claims or defences also has adverse consequences for the administration of justice. Judicial and other publicly funded resources are expended and diverted from dealing with other cases.

The Commission stated that the summary judgment procedure is too restrictive, that the applicable test should be liberalised and that the procedure should be used more frequently and flexibly to dispose of claims or defences that are unmeritorious. It recommended that summary disposition should be available where a claim or defence has "no real prospect of success".

The Bill reforms the procedure for the earlier determination of disputes, including liberalising the test for the summary disposal of unmeritorious claims and defences. This will help the courts to remove at an early stage cases where a party has no real prospect of success.

Clause 60 provides that the summary judgment provisions in this Part apply to counterclaims.

Clause 61 provides that a plaintiff may apply to the court for summary judgment on the ground that a defendant's defence, or part of that defence, has no real prospect of success.

Clause 62 provides that a defendant may apply to the court for summary judgment on the ground that a plaintiff's claim, or part of that claim, has no real prospect of success.

Clause 63 provides that a court may give summary judgment if it is satisfied that a claim, a defence or a counterclaim (or part of the claim, defence or counterclaim) has no real prospect of success. This may occur on application of a party or on the court's own motion.

Clause 64 provides that a court may order that a civil proceeding proceed to trial if it is satisfied that, despite there being no real prospect of success, the civil proceeding should not be disposed of summarily because it is not in the interests of justice to do so or the nature of the dispute is such that only a full hearing on the merits of the case is appropriate.

This clause is intended to provide the courts with a residual discretion to hear a case in appropriate circumstances. A test case or case involving matters of public importance may fit into this category.

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Clause 65 provides that the powers of a court under this Part are in addition to, and do not derogate from, any powers a court has under rules of court in relation to summary disposal of any civil proceeding.

It is envisaged that the rules of court will continue to set out the detailed procedure in summary judgment applications.

CHAPTER 5—APPROPRIATE DISPUTE RESOLUTION

Despite the courts' commitment to ADR, as evidenced in the many measures adopted by the respective Victorian courts to date, the Commission stated that there are opportunities for its more frequent use and additionally, that a wider range of ADR options should be available to the courts. The Commission's view is that the extension and enhancement of ADR will go some way towards solving, or at least alleviating, the present difficulties associated with the civil justice system, such as delay and expense.

The Commission noted that mediation is the most frequently used ADR method, but stated that the availability of additional ADR options would assist the courts to more efficiently and effectively manage the diverse range of disputes they are called on to resolve.

The Bill provides that a court may make an order referring a civil proceeding, or part of a civil proceeding, to appropriate dispute resolution to resolve or settle the proceeding.

The Bill enhances the capacity of the courts to order that parties participate in non-binding ADR, with or without their consent.

Clause 66 provides that a court may order that the whole or any part of a civil proceeding be referred to appropriate dispute resolution.

Subclause (2) enables such an order to be made without the consent of the parties if the type of appropriate dispute resolution that the civil proceeding (or part thereof) is referred to is not arbitration, reference to a special referee, expert determination or any other type of appropriate dispute resolution which results, directly or indirectly, in a binding outcome.

This is consistent with section 24 of the Charter of Human Rights and Responsibilities, which provides for the right to a fair hearing.

It is intended that the meaning of "any other type of appropriate dispute resolution which results, directly or indirectly, in a binding outcome" will be interpreted to preclude a court from referring a proceeding to any appropriate dispute resolution which may determine the rights of a party without agreement.

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Reference to a special referee is an example of appropriate dispute resolution which may be indirectly binding. Negotiation-focused appropriate dispute resolution such as mediation, which does not determine any rights of a party without agreement, does not fall within subclause (2). Accordingly, the court will normally have the power to refer a proceeding to appropriate dispute resolution such as mediation, early neutral evaluation, judicial resolution conference, settlement conference and conciliation.

Clause 67 provides for the confidentiality of anything said or done in judicial resolution conferences, subject to an order of the court having regard to the interests of justice and fairness.

This provision is a re-enactment of provisions currently existing in the courts legislation. See also clauses 68, 81, 84 and 92.

The Evidence Act 2008 provides for the confidentiality of other forms of appropriate dispute resolution (see section 131 of that Act).

Clause 68 provides for the immunity of judicial officers in relation to judicial resolution conferences.

This provision is a re-enactment of existing provisions in the courts legislation. See also clauses 67, 81, 84 and 92.

Clause 69 provides that the powers of a court under this Chapter are in addition to, and do not derogate from, any powers a court has under any other Act or the rules of court in relation to appropriate dispute resolution.

Sections 24A and 27A of the Supreme Court Act 1986, sections 47B and 48C of the County Court Act 1958 and sections 108 and 108A of the Magistrates' Court Act 1989 all provide further guidance in relation to the courts' reference powers.

CHAPTER 6—GENERAL

PART 6.1—RULES OF COURT AND REGULATIONS

Clause 70 provides the courts with a general rule-making power in respect of the matters in the Bill, including pre-litigation requirements.

The power in relation to pre-litigation requirements will allow the courts to make rules in relation to the pre-litigation requirements for specific types of proceedings. The experience in the United Kingdom has been that specific pre-action protocols developed in

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consultation with stakeholders have been effective and enjoy wide support.

Rules of court made under the Bill may regulate generally the practice and procedure under the Bill.

Clause 71 provides the Governor in Council with the power to make regulations with respect to any matter or thing that is required or permitted by the Bill to be so prescribed or that is necessary to be prescribed in order to give effect to the Bill. Subclause (2) provides further power in relation to the regulations.

PART 6.2—TRANSITIONAL PROVISIONS

Clause 72 provides that the overarching purpose applies to civil proceedings on and from the date on which Part 2.1 of Chapter 2 of the Bill commences, regardless of whether the civil proceeding has commenced prior to that date.

Clause 73 provides that the overarching obligations apply on and from the date of commencement of Part 2.2 to Part 2.4 of Chapter 2 to all civil proceedings that—

• commence on or after the commencement of Part 2.2 to Part 2.4 of Chapter 2; and

• have commenced before the commencement of Part 2.2 to Part 2.4 of Chapter 2 but the court has not begun to hear and determine that proceeding.

However, if a court has begun to hear and determine a civil proceeding before the commencement of this Part, the overarching obligations do not apply in relation to that proceeding. This will ensure that there is no change in the obligations owed by parties in trials that are ongoing at the date of the Bill's commencement.

Note that clause 33(2) provides for the application of Part 3.1 (pre-litigation requirements).

Clause 74 provides that the case management powers apply to civil proceedings on and from the date on which Part 4.2 of Chapter 4 of the Bill commences, regardless of whether the civil proceeding has commenced prior to that date.

It is considered appropriate that the case management powers apply to all proceedings given that they are consistent with the courts' existing powers.

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Clause 75 provides that the disclosure and discovery provisions of the Bill apply to civil proceedings, on and from the date on which Part 4.3 of Chapter 4 of the Bill commences, regardless of whether the civil proceeding has commenced prior to that date.

It is considered appropriate that the disclosure and discovery powers apply to all proceedings given that they are consistent with the courts' existing powers.

Clause 76 provides that the summary judgment provisions of the Bill apply to civil proceedings, on and from the date on which Part 4.4 of Chapter 4 of the Bill commences, regardless of whether the civil proceeding has commenced prior to that date.

Clause 77 provides that the appropriate dispute resolution provisions of the Bill apply to civil proceedings, on and from the date on which Chapter 5 of the Bill commences, regardless of whether the civil proceeding has commenced prior to that date.

It is considered appropriate that the appropriate dispute resolution referral powers apply to all proceedings given that they are consistent with the courts existing powers.

Clause 78 provides that a court may make any order it considers appropriate in a particular proceeding in order to resolve a difficulty which arises as a result of the operation of this Part. Such an order may be made on the application of a party to the proceeding or on the court's own motion, as the case requires, and has effect despite any provision to the contrary that is made by or under any other Act (excluding the Charter of Human Rights and Responsibilities).

Clause 79 provides that the Governor in Council may make regulations containing provisions of a transitional nature. These include matters of an application or savings nature, that arise as a result of the enactment of this Bill, including the repeals and amendments which are made by this Bill.

Regulations made pursuant to this clause have effect despite anything to the contrary in any Act (other than this Bill or the Charter of Human Rights and Responsibilities) or in any subordinate instrument.

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PART 6.3—CONSEQUENTIAL AMENDMENTS TO OTHER ACTS

Division 1—Amendments to Supreme Court Act 1986

Clause 80 substitutes the definition of judicial resolution conference in section 3(1) of the Supreme Court Act 1986 with one which refers to the definition in clause 3 of this Bill and inserts a definition of appropriate dispute resolution which refers to the definition in this Bill.

Clause 81 repeals Division 3A of Part 2 of the Supreme Court Act 1986, which relates to judicial resolution conferences. These matters are dealt with by clauses 67 and 68 of this Bill.

It also consequentially amends section 27A of the Supreme Court Act 1986, which relates to the immunity of special referees, mediators and arbitrators, to refer to this Bill as well as referrals under rules of court.

Clause 82 expands the rule-making power of the Supreme Court (in section 25(1) of the Supreme Court Act 1986 to make rules with respect to the matters in this Bill, including the referral of parties to appropriate dispute resolution.

Division 2—Amendments to County Court Act 1958

Clause 83 substitutes the definition of judicial resolution conference in section 3(1) of the County Court Act 1958 with one that refers to the definition in clause 3 of this Bill and inserts a definition of appropriate dispute resolution which refers to the definition in this Bill.

Clause 84 repeals Division 4 of Part II of the County Court Act 1958, which relates to judicial resolution conferences. These matters are dealt with by clauses 67 and 68 of this Bill as well as referrals under rules of court.

It also amends section 47A of the County Court Act 1958, which relates to the Court's power to refer civil proceedings to mediation or arbitration, to refer to this Bill as well as referrals under the rules of court.

Clause 85 amends section 48C of the County Court Act 1958, which relates to the immunity of special referees, mediators and arbitrators, to refer to this Bill as well as rules of court.

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Clause 86 inserts a new section 48D into the County Court Act 1958 to provide that the powers of the County Court under Division 6 of Part II of that Act are in addition to, and do not derogate from, the powers of a court under Chapter 5 of this Bill (which relates to appropriate dispute resolution).

Clause 87 expands the rule-making power of the County Court in section 78(1) of the County Court Act 1958 to make rules with respect to the matters in this Bill, including the referral of parties to appropriate dispute resolution (subclause (b)).

Division 3—Amendments to Magistrates' Court Act 1989

Clause 88 substitutes the definition of judicial resolution conference in section 3(1) of the Magistrates' Court Act 1989 with one that refers to the definition in clause 3 of this Bill and inserts a definition of appropriate dispute resolution which refers to the definition in this Bill.

Clause 89 expands the rule-making power of the Magistrates' Court (in section 16(1) of the Magistrates' Court Act 1989) to make rules with respect to the matters in this Bill, including the referral of parties to appropriate dispute resolution.

Clause 90 inserts a new section 106A into the Magistrates' Court Act 1989 to provide that the powers of the Magistrates' Court under Division 2 of Part 5 of that Act (which relates to the arbitration powers of the Magistrates' Court) are in addition to, and do not derogate from, the powers of a court under Chapter 5 of this Bill (which relates to appropriate dispute resolution).

Clause 91 inserts a new section 107A into the Magistrates' Court Act 1989 to provide that the powers of the Magistrates' Court under Division 3 of Part 5 of that Act (which relates to the pre-hearing conference powers of the Magistrates' Court) are in addition to, and do not derogate from, the powers of a court under Chapter 5 of this Bill.

Clause 92 amends section 108(1) of the Magistrates' Court Act 1989 which relates to the Court's power to refer proceedings to mediation, and 108A, which relates to the immunity of mediators, to refer to the Bill in addition to referrals under that Act or the rules of court.

Clause 92(3) repeals Division 3B of Part 5 of the Magistrates' Court Act 1989, which relates to judicial resolution conferences. These matters are now dealt with by clauses 67 and 68 of this Bill.