Monday, 1 December 2014

Show us the documents - a precursor to show us the money?

Settling claims prior to the issuing of court proceedings saves time and money, and complies with the State's model litigant obligation to pay legitimate claims without recourse to litigation.  But does the State have an obligation to provide a claimant with documents pertaining to the claim during pre-litigation settlement negotiations, or when a Generally Endorsed Writ (GE Writ) has been filed with the court?

Pre-litigation settlement negotiations

At its commencement, the Civil Procedure Act 2010 (the CPA) included 'Chapter 3 - Before a Civil Proceeding Commences'.  Chapter 3 contained pre-litigation requirements, including that each person involved in a civil dispute (defined as a dispute which may result in the commencement of a civil proceeding) must take reasonable steps:
  •  to resolve the dispute by agreement; or
  •  to clarify and narrow the issues in dispute in the event that civil proceedings were commenced. 

This included the exchange of documents critical to the resolution of the dispute.

However, Chapter 3 of the CPA was repealed in 2011 and there is now no obligation under the CPA for the State to provide documents to a claimant prior to a civil proceeding being commenced.

Filing of a GE Writ

Recently we have encountered matters where pre-litigation settlement negotiations have commenced, but claimants' solicitors have subsequently filed GE Writs with the court in order to protect their clients' rights in respect of time limit provisions under the Limitation of Actions Act 1958 (the LAA).  This effectively safeguards claimants from having to bring an application for an extension of time to commence a proceeding, if settlement negotiations ultimately prove unsuccessful. 

The claimants' solicitors have provided us with a copy of the GE Writs on an informal basis, rather than formally serving them on the State, on the basis that settlement negotiations would continue and that no action was required with respect to responding to the GE Writs. 

 What is a GE Writ?

Usually when a proceeding is commenced, a Writ and Statement of Claim (SOC), pleading the causes of action and particulars of the claim, is filed with the court and served on the State.  However, a plaintiff has the option of filing a GE Writ, which the Supreme Court (General Civil Procedure) Rules 2005 and the County Court Civil Procedure Rules 2008 (the Rules) define as a writ containing an indorsement of claim comprising 'a statement sufficient to give with reasonable particularity notice of the nature of the claim and the cause thereof and of the relief or remedy sought in the proceeding'. 

A GE Writ typically does not plead detailed particulars of the claim as in a SOC, and is generally followed by the filing and service of a SOC at a later stage.

Request for documents

Notwithstanding that in many circumstances the filing of a GE Writ was not intended to 'formally' commence proceedings, claimants' solicitors have requested that the State provide them with copies of documents pertaining to the claim in order to progress settlement negotiations.  Such requests have been made under the auspices of the CPA.

Section 26 of the CPA

Section 26 of the CPA provides that a person to whom the overarching obligations apply (being a party to a civil proceeding and their legal representatives) must disclose to each party the existence of all documents which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.  Such disclosure must occur at the earliest reasonable time after the person becomes aware of the existence of the document; or such other time as a court may direct.

Is the filing of a GE Writ the commencement of a civil proceeding for the purposes of s 26 of the CPA?

The CPA defines civil proceeding as 'any proceeding in a court other than a criminal proceeding or quasi criminal proceeding'.  'Court' is defined as the Supreme, County or Magistrates' Court.

The Rules define 'proceeding' as 'any matter in the Court commenced by writ or originating motion'.  The Rules further provide that 'a proceeding shall be commenced by filing the originating process' and that 'a writ shall be valid for service for one year after the day it is filed'. 

Accordingly, notwithstanding circumstances where a GE Writ has not been formally served on the State and that its filing was intended only to preserve a claimant's rights in respect of time limit provisions under the LAA, its filing constitutes the commencement of a proceeding and consequently s 26 of the CPA applies in respect of requests for documents. 

Are there any grounds to resist a request for documents?

As noted previously, a GE Writ must provide 'reasonable particularity' about the plaintiff's claim and causes of action.  If the Writ fails to provide satisfactory detail about the claim and does not accurately identify or particularise the causes of action with any precision, we consider that it is possible and reasonable to resist a request for documents under s 26 of the CPA on the grounds that the State:
  •  has insufficient knowledge about what the 'dispute' is alleged to be; and
  •  is unable to identify whether documents are 'critical to the resolution of the dispute'.

If you are in the Victorian Government and would like more information about this area of law, please contact:

Managing Principal Solicitor
t 8684 0417

Senior Solicitor
t 8684 0232

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