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A new Practice Note (PNCL-2016) "Operation and Management of the Lists within the Common Law Division", which was authorised by Judge O'Neill, Head of the Common Law Division, came into effect on 3 December 2015.

The purpose of the changes is to create an efficient, effective and streamlined Common Law Court process that will involve fewer documents, and will reduce the "life expectancy" of litigated matters and legal costs.

Serious injury claims will be significantly affected by the changes, with a further list established within the Common Law Division to expedite particular serious injury claims.

Below is a summary of the key changes set out in the Practice Note.

Issue of proceedings

All practitioners are now encouraged to file documents with the County Court's eFiling system. It is expected that all documents filed with the Court will be electronically filed by August 2016. Self-represented litigants will be excused from this requirement.

Discovery and interrogatories

In the Common Law Division, the number of interrogatories served in a proceeding is now limited to 30, including sub-parts. The limitation is new to Victoria and brings the State into line with most other states.

In motor vehicle and industrial accident cases, interrogatories are to be confined to questions of liability only.

Serious injury applications

Changes have been made to the requirements for filing and serving affidavits. The number of medical and expert reports that are annexed to affidavits has also been addressed.

In summary, these changes are:

  • Parties will no longer be required to file an affidavit in support of, or in opposition to, any serious injury application, instead they are to be included in the Court Book.
  • Parties are no longer required to produce a Statement of Calculation of Economic Loss or a Statement of Issues document at hearings. If a party considers the application is particularly complex, has a long history and/or that a Chronology would assist the matter, a Chronology may be provided to the Trial Judge.
  • During Counsels' opening and/or final submissions, they must outline the facts and issues relevant to the application in line with the Facts and Issues Document (FID). If submissions will align with the FID, they are not required to be in writing unless ordered by the Trial Judge.
  • If a party wishes to add another report, leave can be sought from the Court.
  • For medical and other expert reports, the only reports that will be allowed in the Court Book, and can be admitted into evidence, are:
    • reports of the Plaintiff's treating practitioners
    • reports of practitioners who have treated the Plaintiff for relevant past injuries or conditions
    • reports from two consultant practitioners in each of the specialties that relate to the claimed injury or condition, and
    • the reports of two psychiatrists or a psychiatrist and a psychologist in mental or behavioural disturbance or disorder applications.
  • Counsels' opening submission are limited to 20 minutes and closing is limited to 30 minutes.
  • Only the Plaintiff is permitted to be cross-examined. If parties wish to cross-examine any other witness, they are required to seek leave of the Court, however, a more compelling reason is required than "to challenge an opinion" or "to explore matters".
  • Cross-examination shall be restricted to two hours per witness, save with the leave of the Trial Judge.

The Serious Injury Expedited List

The Serious Injury Expedited List is a new list that came into operation on 18 January 2016.

This allows serious injury applications that have been through the preliminary application process with another Authority (such as the Transport Accident Commission or Workcover/Worksafe) to be fast tracked and resolved as quickly as possible to reduce costs.

Applications will enter this List once the Originating Motion has been filed, along with a request to enter the List. A hearing date will be listed between 21 days and 49 days from the date of filing the Notice of Appearance and Certificate of Readiness by the Defendant. Other serious injury applications may request to enter this List, where both parties have certified to the Court that all disclosure obligations have been met and the proceeding is ready to go to trial.

Entry to the List is conditional upon the Plaintiff being the only witness to be cross-examined. Leave to cross-examine other witnesses will only be granted in exceptional circumstances.

What do these changes mean for litigation?

The new streamlined process for serious injury applications is aimed at making the litigation process in Victoria more cost and time effective.

The changes to the process of issuing interrogatories in common law damages claims clearly reflects the Courts' concerns about unnecessary costs and delays that lengthy interrogatories  can cause.

In the short term, we anticipate far more active case-management by judges to ensure more rigid compliance with the Court orders and timetables. It remains to be seen whether the changes to the serious injury application process is a precursor to changes to common law damages cases. It is likely that Victoria will follow the NSW example of very active case management.

A more detailed review of this Practice Note can be provided on request. Please contact Jehan Mata to find out more.

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