In May 2008, the Victorian Law Reform Commission released the Civil Justice Review Report (Report), which contained a large number of recommendations aimed at making civil litigation in Victoria a cheaper, simpler and fairer process. The Report culminated in the introduction of the Civil Procedure Act 2010 (the CP Act) which applies to most civil litigation conducted in the Victorian Courts.
The Civil Procedure Amendment Bill 2012 (the Bill) encompasses the second stage of the reforms proposed in the Report, by amending the CPA Act.
If passed, the amendments will provide Victorian Courts with additional powers in relation to the use of expert evidence and costs in civil proceedings.
Controlling the use of expert witnesses
The current County and Supreme Court Rules permit parties to adduce expert evidence without the leave of the Court.
If passed, the Bill will make fundamental changes to the conduct of civil litigation in Victoria by requiring parties to seek leave from the Court in order to adduce expert evidence. This same requirement already applies to civil litigants in NSW.
The new provisions will not apply to civil proceedings in the Magistrates' Court, unless the Magistrates' Court Rules impose such a requirement.
The amendments aim to restrict expert evidence to that which is reasonably required to resolve the proceeding. The amendments will enable the Court to give any direction it considers appropriate in relation to the use of expert evidence at any stage of the proceeding, including orders:
- limiting expert evidence to specified issues;
- providing that expert evidence may not be adduced on specified issues;
- limiting the number of expert witnesses who may be called to give evidence on a specified issue; and
- providing for the appointment of a single joint expert or court appointed expert.
The Court may also give any direction it considers appropriate in relation to the giving of evidence by an expert witness at trial.
The Bill provides guidance to the Court to ensure that single joint experts will be used only in appropriate cases. In making an order for a single joint expert, the Court will need to consider:
- whether the engagement of 2 or more expert witnesses would be disproportionate to the complexity or importance of the issues in dispute and the amount in dispute;
- whether the issue falls within a substantially established area of knowledge;
- whether it is necessary for the Court to have a range of expert opinions; and
- the likelihood of the engagement expediting or delaying the trial.
Accordingly, it is unlikely that a single joint expert would be ordered in a case involving complex or contentious issues where there may be a number expert opinions which are material to the determination of those issues.
The Bill provides that when a single joint expert or a court appointed expert has been appointed, parties may seek leave to adduce evidence of another expert witness on any issue arising in the proceeding and sets out factors that the Court will need to take into account in such a case.
In practice, the amendments will require parties to:
- carefully consider whether expert evidence is reasonably required to resolve the proceeding;
- consider the issue/s upon which expert evidence is required and whether the appointment of a single joint expert is appropriate; and
- seek orders in relation to expert evidence as soon as reasonably practicable.
We consider that the Courts are most likely to exercise their discretion to prevent or restrict expert evidence in cases where expert opinion is unlikely to assist the Court in deciding an issue or where the cost is disproportionate to the amount in dispute. This has been the general experience in the NSW courts.
Powers as to costs
The Bill seeks to strengthen the Courts' discretionarypower to make orders relating to costs. The Court may:
- make any order as to costs it considers appropriate to further the overarching purpose of the CP Act;
- make costs orders at any stage of the proceeding in relation to any aspect of the proceeding;
- order that parties bear costs as specified proportions of costs;
- award a party costs in a specified sum or amount; · fix or cap recoverable costs in advance;
- order a party's solicitor to prepare and provide to the Court or any other party a memorandum setting out the estimated costs and disbursements in relation to the trial and the estimated costs a party would have to pay if that party is unsuccessful at trial; and
- order a party's solicitor to provide to their client a memorandum setting the actual costs and disbursements incurred in relation to the proceeding and the estimated costs the client would have to pay to any other party if the client is unsuccessful.
The proposed new powers in relation to costs are aimed at increasing the use of alternative types of costs orders in appropriate cases to reduce the complexity, time and cost associated with the assessment of costs in civil litigation and increasing the disclosure of information concerning litigation costs to parties so that parties are able to make more informed decisions in the course of civil proceedings.
The Act will commence on 1 May 2013 if not proclaimed before that date.