Support from Australia in keeping costs in check
So it seems that legal developments in Australia are taking inspiration from the UK’s Jackson Reforms in the shape of a Civil Procedure Act, the essence of which is the need to act with proportionality and an overriding objective.
The key point that appears to underpin the new Act is “the filing of a motion should be regarded as a last resort. It will inevitably add to costs, and delay the progress of the matter to hearing.”
Of course, many cases will necessitate a motion however “once a motion is filed, the parties are obliged to ensure that only the real or essential issues are litigated” refers to the sometimes practice of needlessly exhibiting “everything” or “the file” when what transpires is a need for only a few nuggets ever being referred to in argument. Again, drawing out proceedings and costs not only in cash but also time.
In brief, lawyers are obligated to:
- act honestly
- not make a claim or response that has no proper basis
- only take steps to resolve or determine the dispute
- cooperate in the conduct of civil proceeding
- not mislead or deceive
- use reasonable endeavours to resolve the dispute
- narrow the issues in dispute
- ensure costs are reasonable and proportionate
- minimise delay
- disclose the existence of documents.
If there is evidence that any of the above being breached, the Act gives the Court fairly broad powers (under section 29 of the Act) to make any order it considers appropriate, including specifically in relation to costs (under section 28).
Courts’ wishes to facilitate the “just, quick and cheap resolution” of the real issues in the proceedings highlights that there are with similar costs problems throughout the world. Just like in the UK, the Act coming out of Victoria is being used as a case management tool to change the culture of civil litigation in Australia.