Civil Procedure Amendment Act 2012

Authorised by the Chief Parliamentary Counsel Authorised Version i Civil Procedure Amendment Act 2012 No. 62 of 2012 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 2 3 Principal Act 2 PART 2—AMENDMENTS RELATING TO COSTS 3 4 Purposes—Principal Act 3 5 Section 50 repealed 3 6 New Part 4.5 of Chapter 4 inserted 3 PART 4.5—COURT POWERS AS TO COSTS 3 65A Order to legal practitioner as to length and costs of trial 3 65B Order to legal practitioner as to length and costs of the proceeding 4 65C Other costs orders 4 65D Court may revoke or vary order or direction 5 65E Interaction with other powers of court 5 PART 3—AMENDMENTS RELATING TO EXPERT WITNESSES 7 7 Purposes—Principal Act 7 8 Definitions 7 9 Court's power to order and direct trial procedures and conduct of hearing 7 10 New Part 4.6 of Chapter 4 inserted 8 PART 4.6—EXPERT WITNESSES AND EXPERT EVIDENCE 8 65F Objects of this Part 8 65G Party to seek direction of court to adduce expert evidence 8 65H Court may give directions in relation to expert evidence 9 -- 1 of 33 -- Section Page ii Authorised by the Chief Parliamentary Counsel 65I Court may give directions to expert witnesses— conferences and joint experts reports 10 65J Use of conference of experts and joint experts reports in proceeding 11 65K Court may give direction about giving of evidence, including concurrent evidence, by expert witnesses 11 65L Single joint experts 12 65M Court appointed experts 14 65N Instructions to single joint expert or court appointed expert 15 65O Prohibition on other expert evidence without leave 15 65P Disclosure of retainer arrangements 16 65Q Interaction with other powers of court 17 11 Rules of court 18 PART 4—AMENDMENTS RELATING TO CERTIFICATION REQUIREMENTS 19 12 Definitions 19 13 Overarching obligations certification by parties on commencement of civil proceeding 21 14 Proper basis certification 22 15 Urgent filing of documents and certification 24 16 Proceedings may be commenced despite failure to certify 24 17 Rules of court 25 PART 5—OTHER AMENDMENTS, TRANSITIONAL PROVISIONS AND REPEAL OF AMENDING ACT 26 18 Application of Principal Act 26 19 Extension of time for application 26 20 Part 6.2 divided into Divisions 26 21 New Division 2 of Part 6.2 inserted 26 Division 2—Transitional Provisions—Civil Procedure Amendment Act 2012 26 80 Costs 26 81 Expert witnesses and expert evidence 27 82 Overarching obligations certification and proper basis certification requirements 27 83 Power to resolve transitional difficulties in civil proceedings 27 84 Regulations dealing with transitional matters 28 22 Part 6.3 of Chapter 6 repealed 29 -- 2 of 33 -- Section Page iii Authorised by the Chief Parliamentary Counsel 23 Amendment of Accident Compensation Act 1985—Legal costs order 29 24 Repeal of amending Act 29 ═══════════════ ENDNOTES 30 -- 3 of 33 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Civil Procedure Amendment Act 2012 † No. 62 of 2012 [Assented to 30 October 2012] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purposes The purposes of this Act are— (a) to amend the Civil Procedure Act 2010— (i) to provide further powers for the courts in relation to costs; (ii) to provide further powers for the courts in relation to expert evidence; Victoria -- 4 of 33 -- Part 1—Preliminary Civil Procedure Amendment Act 2012 No. 62 of 2012 2 Authorised by the Chief Parliamentary Counsel (iii) to amend the overarching obligations and the proper basis certification requirements; (iv) to make other technical amendments; and (b) to consequentially amend the Accident Compensation Act 1985 in relation to legal costs orders made under that Act. 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 May 2013, it comes into operation on that day. 3 Principal Act In this Act, the Civil Procedure Act 2010 is called the Principal Act. __________________ s. 2 See: Act No. 47/2010 and amending Act Nos 1/2011 and 83/2011. LawToday: www. legislation. vic.gov.au -- 5 of 33 -- Part 2—Amendments Relating to Costs Civil Procedure Amendment Act 2012 No. 62 of 2012 3 Authorised by the Chief Parliamentary Counsel PART 2—AMENDMENTS RELATING TO COSTS 4 Purposes—Principal Act After section 1(2)(a) of the Principal Act insert— "(b) expanding the powers of the courts in relation to costs in relation to civil proceedings;". 5 Section 50 repealed Section 50 of the Principal Act is repealed. 6 New Part 4.5 of Chapter 4 inserted After Part 4.4 of Chapter 4 of the Principal Act insert— "PART 4.5—COURT POWERS AS TO COSTS 65A Order to legal practitioner as to length and costs of trial (1) A court may make an order directing a legal practitioner acting for a party— (a) to prepare a memorandum setting out— (i) the estimated length of the trial; and (ii) the estimated costs and disbursements in relation to the trial; and (iii) in the case of a memorandum to be given to a party, the estimated costs that that party would have to pay to any other party if the party is unsuccessful at trial; and s. 4 -- 6 of 33 -- Part 2—Amendments Relating to Costs Civil Procedure Amendment Act 2012 No. 62 of 2012 4 Authorised by the Chief Parliamentary Counsel (b) to give the memorandum, as specified in the order to— (i) the court; or (ii) a party; or (iii) both the court and any party. (2) An order under subsection (1) may be made at any time in a civil proceeding. 65B Order to legal practitioner as to length and costs of the proceeding (1) A court may make an order directing a legal practitioner acting for a party to prepare and give to that party a memorandum setting out— (a) the actual costs and disbursements incurred in relation to the proceeding or any part of the proceeding; and (b) the estimated costs and disbursements in relation to the proceeding or any part of the proceeding; and (c) the estimated costs that the party would have to pay to any other party if that party is unsuccessful at trial; and (d) the estimated length of the proceeding or any part of the proceeding. (2) An order under subsection (1) may be made at any time in a proceeding. 65C Other costs orders (1) In addition to any other power a court may have in relation to costs, a court may make any order as to costs it considers appropriate to further the overarching purpose. s. 6 -- 7 of 33 -- Part 2—Amendments Relating to Costs Civil Procedure Amendment Act 2012 No. 62 of 2012 5 Authorised by the Chief Parliamentary Counsel (2) Without limiting subsection (1), the order may— (a) make different awards of costs in relation to different parts of a proceeding or up to or from a specified stage of the proceeding; (b) order that parties bear costs as specified proportions of costs; (c) award a party costs in a specified sum or amount; (d) fix or cap recoverable costs in advance. (3) An order under subsection (1) may be made— (a) at any time in a proceeding; (b) in relation to any aspect of a proceeding, including, but not limited to, any interlocutory proceeding. 65D Court may revoke or vary order or direction A court may revoke or vary any order made or direction given by it under this Part. 65E Interaction with other powers of court (1) Nothing in this Part limits any power a court may have— (a) to award costs in a proceeding— (i) in the case of the Supreme Court, under section 24 of the Supreme Court Act 1986 or any rules of court; or (ii) in the case of the County Court, under section 78A of the County Court Act 1958 or any rules of court; or s. 6 -- 8 of 33 -- Part 2—Amendments Relating to Costs Civil Procedure Amendment Act 2012 No. 62 of 2012 6 Authorised by the Chief Parliamentary Counsel (iii) in the case of the Magistrates' Court, under section 131 of the Magistrates' Court Act 1989 or any rules of court; or (b) to make any other order or give any other direction in relation to orders for costs or for the disclosure of costs; or (c) to take any action that the court is empowered to take in relation to a contravention of an order made or a direction given by the court. (2) Nothing in this Part limits— (a) in the case of the Supreme Court, the Court's inherent jurisdiction, implied jurisdiction or statutory jurisdiction; or (b) in the case of a court other than the Supreme Court, the court's implied jurisdiction or statutory jurisdiction; or (c) any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction. __________________". __________________ s. 6 -- 9 of 33 -- Part 3—Amendments Relating to Expert Witnesses Civil Procedure Amendment Act 2012 No. 62 of 2012 7 Authorised by the Chief Parliamentary Counsel PART 3—AMENDMENTS RELATING TO EXPERT WITNESSES 7 Purposes—Principal Act In section 1(2) of the Principal Act— (a) in paragraph (f) for "obligations." substitute "obligations;"; (b) after paragraph (f) insert— "(g) the management and control of expert evidence in civil proceedings.". 8 Definitions In section 3 of the Principal Act, insert the following definitions— "conference of experts means a conference of expert witnesses conducted in accordance with a direction under section 65I or under rules of court; court appointed expert means an expert witness appointed by a court in accordance with an order under section 65M or under rules of court; joint experts report means a joint report by expert witnesses prepared in accordance with a direction under section 65I or under rules of court; single joint expert means a person engaged jointly by 2 or more parties as an expert witness in a proceeding in accordance with an order under section 65L or under rules of court;". 9 Court's power to order and direct trial procedures and conduct of hearing In section 49(3)(d)(iii) of the Principal Act omit ", including expert witnesses,". s. 7 -- 10 of 33 -- Part 3—Amendments Relating to Expert Witnesses Civil Procedure Amendment Act 2012 No. 62 of 2012 8 Authorised by the Chief Parliamentary Counsel 10 New Part 4.6 of Chapter 4 inserted At the end of Chapter 4 of the Principal Act insert— "PART 4.6—EXPERT WITNESSES AND EXPERT EVIDENCE 65F Objects of this Part The main object of this Part is to further the overarching purpose by— (a) enhancing the case management powers of a court in relation to expert evidence in civil proceedings; (b) restricting expert evidence to that evidence which is reasonably required to resolve a civil proceeding; (c) emphasising the primary duty of an expert witness to the court. 65G Party to seek direction of court to adduce expert evidence (1) Unless rules of court otherwise provide or the court otherwise orders, a party must seek direction from the court as soon as practicable if the party— (a) intends to adduce expert evidence at trial; or (b) becomes aware that the party may adduce expert evidence at trial. (2) Subsection (1) does not apply to the Magistrates' Court unless Magistrates' Court rules of court specify that the requirement to seek directions set out in subsection (1) applies to civil proceedings, or specified classes of civil proceeding, in that Court. s. 10 -- 11 of 33 -- Part 3—Amendments Relating to Expert Witnesses Civil Procedure Amendment Act 2012 No. 62 of 2012 9 Authorised by the Chief Parliamentary Counsel 65H Court may give directions in relation to expert evidence (1) A court may give any directions it considers appropriate in relation to expert evidence in a proceeding. (2) A direction under subsection (1) may include, but is not limited to— (a) the preparation of an expert's report; (b) the time for service of an expert's report; (c) limiting expert evidence to specified issues; (d) providing that expert evidence may not be adduced on specified issues; (e) limiting the number of expert witnesses who may be called to give evidence on a specified issue; (f) providing for the appointment of— (i) single joint experts; or (ii) court appointed experts; (g) any other direction that may assist an expert witness in the exercise of his or her functions as an expert witness in the proceeding. (3) A direction under subsection (1) may be given at any time in a proceeding. s. 10 -- 12 of 33 -- Part 3—Amendments Relating to Expert Witnesses Civil Procedure Amendment Act 2012 No. 62 of 2012 10 Authorised by the Chief Parliamentary Counsel 65I Court may give directions to expert witnesses—conferences and joint experts reports (1) A court may direct expert witnesses in a proceeding— (a) to hold a conference of experts; or (b) to prepare a joint experts report; or (c) to hold a conference and prepare a joint experts report. (2) The court may direct that a conference of experts be held with or without the attendance of all or any of the following— (a) the parties to the proceeding; or (b) the legal practitioners of the parties; or (c) an independent facilitator. (3) A direction to prepare a joint experts report may include but is not limited to the following— (a) that the joint experts report specifies— (i) the matters agreed and not agreed by the experts; and (ii) the reasons for any agreement or disagreement; (b) the issues to be dealt with in the joint experts report by the expert witnesses; (c) the facts, and assumptions of fact, on which the joint experts report is to be based. s. 10 -- 13 of 33 -- Part 3—Amendments Relating to Expert Witnesses Civil Procedure Amendment Act 2012 No. 62 of 2012 11 Authorised by the Chief Parliamentary Counsel (4) A direction may be— (a) general or in relation to specified issues; (b) given at any time in a proceeding, including before or after the expert witnesses have prepared or given reports. 65J Use of conference of experts and joint experts reports in proceeding (1) Unless the parties to the proceeding agree, or the court otherwise orders, the content of a conference of experts, except as referred to in a joint experts report, must not be referred to at any hearing of the proceeding to which it relates. (2) A joint experts report may be tendered at the trial as evidence of any matters agreed. (3) In relation to any matters not agreed, a joint experts report may be used or tendered at the trial only in accordance with— (a) the rules of evidence; and (b) the rules of court and practices of the court in which the trial is heard. (4) Except by leave of the court, a party affected may not adduce evidence from any other expert witness on the issues dealt with in the joint experts report. 65K Court may give direction about giving of evidence, including concurrent evidence, by expert witnesses (1) A court may give any direction it considers appropriate in relation to the giving of evidence by any expert witness at trial. s. 10 -- 14 of 33 -- Part 3—Amendments Relating to Expert Witnesses Civil Procedure Amendment Act 2012 No. 62 of 2012 12 Authorised by the Chief Parliamentary Counsel (2) Without limiting subsection (1), the court may direct that any expert witness— (a) give evidence at any stage of the trial, including after all factual evidence has been adduced on behalf of all parties; (b) give evidence concurrently with one or more expert witnesses; (c) give an oral exposition of his or her opinion on any issue; (d) give his or her opinion of any opinion given by other expert witnesses; (e) be examined, cross-examined or re-examined in a particular manner or sequence, including by putting to each expert witness, in turn, each issue relevant to one matter or issue at a time; (f) be permitted to ask questions of any other expert witness who is concurrently giving evidence. (3) A court may question any expert witness to identify the real issues in dispute between 2 or more expert witnesses, including questioning more than one expert witness at the same time. 65L Single joint experts (1) A court may order that an expert be engaged jointly by 2 or more parties to a civil proceeding. (2) A court may make an order for the engagement of a single joint expert at any stage of the proceeding. s. 10 -- 15 of 33 -- Part 3—Amendments Relating to Expert Witnesses Civil Procedure Amendment Act 2012 No. 62 of 2012 13 Authorised by the Chief Parliamentary Counsel (3) In making an order to engage a single joint expert, the court must consider— (a) whether the engagement of 2 or more expert witnesses would be disproportionate to— (i) the complexity or importance of the issues in dispute; and (ii) the amount in dispute in the proceeding; (b) whether the issue falls within a substantially established area of knowledge; (c) whether it is necessary for the court to have a range of expert opinion; (d) the likelihood of the engagement expediting or delaying the trial; (e) any other relevant consideration. (4) A single joint expert is to be selected— (a) by agreement between the parties; or (b) if the parties fail to agree, by direction of the court. (5) A person must not be engaged as a single joint expert unless he or she consents to the engagement. (6) Any party who knows that a person is under consideration for engagement as a single joint expert— (a) must not, prior to the engagement, communicate with the person to obtain an opinion on the issues concerned; and s. 10 -- 16 of 33 -- Part 3—Amendments Relating to Expert Witnesses Civil Procedure Amendment Act 2012 No. 62 of 2012 14 Authorised by the Chief Parliamentary Counsel (b) must notify the other parties to the proceeding of the substance of any previous communications on the issues concerned. (7) Unless the court orders otherwise, a single joint expert's report may be tendered in evidence by any of the parties to the proceeding. 65M Court appointed experts (1) A court may make an order appointing an expert— (a) to assist the court; and (b) to inquire into and report on any issue in a proceeding. (2) The court may make an order appointing a court appointed expert at any stage of the proceeding. (3) In making an order to appoint a court appointed expert, the court must consider— (a) whether the appointment of a court appointed expert would be disproportionate to— (i) the complexity or importance of the issues in dispute; and (ii) the amount in dispute in the proceeding; (b) whether the issue falls within a substantially established area of knowledge; (c) whether it is necessary for the court to have a range of expert opinion; s. 10 -- 17 of 33 -- Part 3—Amendments Relating to Expert Witnesses Civil Procedure Amendment Act 2012 No. 62 of 2012 15 Authorised by the Chief Parliamentary Counsel (d) the likelihood of the appointment expediting or delaying the trial; (e) any other relevant consideration. (4) A person must not be appointed as a court appointed expert unless he or she consents to the appointment. 65N Instructions to single joint expert or court appointed expert (1) If a single joint expert is engaged or a court appointed expert is appointed in a proceeding, the parties to the proceeding must endeavour to agree on— (a) written instructions to be provided to the single joint expert or the court appointed expert concerning the issues arising for the expert's opinion; and (b) the facts and assumptions of fact on which the expert's report is to be based. (2) If the parties cannot agree on any of the matters referred to in subsection (1), the parties must seek directions from the court. 65O Prohibition on other expert evidence without leave (1) Except by leave of the court, a party to a proceeding may not adduce evidence of any other expert witness on any issue arising in proceedings if, in relation to that issue— (a) a single joint expert has been engaged; or (b) a court appointed expert has been appointed. s. 10 -- 18 of 33 -- Part 3—Amendments Relating to Expert Witnesses Civil Procedure Amendment Act 2012 No. 62 of 2012 16 Authorised by the Chief Parliamentary Counsel (2) Without limiting any powers of the court, in determining whether to grant leave, the court must consider— (a) whether one party does not agree with the evidence, or an aspect of the evidence, in the report of a single joint expert or the report of a court appointed expert, as the case requires; (b) whether allowing additional evidence to be adduced would be disproportionate to— (i) the complexity or importance of the issues in dispute; and (ii) the amount in dispute in the proceeding; (c) whether there is expert opinion which is different to the opinion of the single joint expert or the court appointed expert, as the case requires, which is, or may be, material to deciding the issue; (d) whether any other expert witness knows of matters which are not known by the single joint expert or the court appointed expert that are, or may be, material to deciding the issue; (e) any other relevant consideration. 65P Disclosure of retainer arrangements (1) Unless rules of court otherwise provide, a party to a civil proceeding may apply to the court for an order that an expert witness retained by any party to that proceeding disclose all or specified aspects of the arrangements under which the expert witness has been retained to— s. 10 -- 19 of 33 -- Part 3—Amendments Relating to Expert Witnesses Civil Procedure Amendment Act 2012 No. 62 of 2012 17 Authorised by the Chief Parliamentary Counsel (a) the court; and (b) all the parties to the proceeding. (2) On an application under subsection (1), the court may make any order for disclosure it considers appropriate in the circumstances of the proceeding. (3) Without limiting subsection (2), the court may make an order that an expert witness disclose whether the charging or payment of the fees or costs of the expert witness, or the amount of those fees or costs, is contingent in any respect on the outcome of the proceeding, and if so, the details of that arrangement. (4) A party must not adduce evidence of a disclosure made pursuant to an order made under this section at the trial without leave of the court. 65Q Interaction with other powers of court (1) Nothing in this Part limits any other power a court may have— (a) in relation to case management, evidence or witnesses, including expert witnesses; or (b) to take any action that the court is empowered to take in relation to a contravention of a direction given or an order made by the court. (2) Nothing in this Part limits— (a) in the case of the Supreme Court, the Court's inherent jurisdiction, implied jurisdiction or statutory jurisdiction; or s. 10 -- 20 of 33 -- Part 3—Amendments Relating to Expert Witnesses Civil Procedure Amendment Act 2012 No. 62 of 2012 18 Authorised by the Chief Parliamentary Counsel (b) in the case of a court other than the Supreme Court, the court's implied jurisdiction or statutory jurisdiction; or (c) any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction. __________________". 11 Rules of court Before section 70(1)(f) of the Principal Act insert— "(ee) for or with respect to expert evidence, including, but not limited to, expert witnesses, remuneration of expert witnesses and disclosure of retainer arrangements;". __________________ s. 11 -- 21 of 33 -- Part 4—Amendments Relating to Certification Requirements Civil Procedure Amendment Act 2012 No. 62 of 2012 19 Authorised by the Chief Parliamentary Counsel PART 4—AMENDMENTS RELATING TO CERTIFICATION REQUIREMENTS 12 Definitions In section 3 of the Principal Act, for the definition of substantive document substitute— "substantive document means— (a) an originating motion; (b) a writ that includes— (i) a statement of claim; or (ii) a statement sufficient to give, with reasonable particularity, notice of the nature of the claim, its cause and the relief or remedy sought; (c) a complaint; (d) a defence or a notice of defence; (e) a reply; (f) a counterclaim; (g) an answer to a counterclaim or a response to an answer to a counterclaim; (h) a claim by third party notice or a response to a claim by third party notice; (i) a claim by fourth or subsequent party notice or a response to a claim by fourth or subsequent party notice; (j) an application brought in accordance with section 93(4)(d) of the Transport Accident Act 1986 or a response to an application brought in accordance with that section; s. 12 -- 22 of 33 -- Part 4—Amendments Relating to Certification Requirements Civil Procedure Amendment Act 2012 No. 62 of 2012 20 Authorised by the Chief Parliamentary Counsel (k) an affidavit which commences a civil proceeding or an affidavit which is the first response of a party in a civil proceeding; (l) a summons which commences a civil proceeding or a summons which is the first response of a party in a civil proceeding; (m) an application which commences a civil proceeding or an application which is the first response of a party in a civil proceeding; (n) a notice of referral under section 80 of the Land Acquisition and Compensation Act 1986 or a response to a notice of referral under that Act; (o) a claim for contribution against another party under Part IV of the Wrongs Act 1958 or a response to a claim for contribution against another party under that Part; (p) an application for leave to appear and defend under the Instruments Act 1958; (q) a claim for preliminary discovery; but does not include— (r) a summons for taxation of costs; (s) an application to a court for punishment of a person for contempt of court; (t) an application for a rehearing under section 110 of the Magistrates' Court Act 1989; (u) an application under section 60(2) of the Accident Compensation Act 1985; s. 12 -- 23 of 33 -- Part 4—Amendments Relating to Certification Requirements Civil Procedure Amendment Act 2012 No. 62 of 2012 21 Authorised by the Chief Parliamentary Counsel (v) an application under section 24 of the Second-Hand Dealers and Pawnbrokers Act 1989; (w) an application under section 83 of the Occupational Health and Safety Act 2004; (x) any process which commences an appeal or any process which is the first response of a party to an appeal; (y) any process which commences proceedings under the Corporations Act or the ASIC Act or any process which is the first response of a party to proceedings under either of those Acts; (z) any originating motion filed under Chapter III of the Rules of the Supreme Court.". 13 Overarching obligations certification by parties on commencement of civil proceeding After section 41(3) of the Principal Act insert— "(4) Despite subsection (1), if a party has no meaningful control over the conduct of a civil proceeding by virtue of a statute or a contract of insurance, the person in control by virtue of the statute or contract of insurance may make the overarching obligations certification. Example An insurer may make the certification instead of a party. (5) Despite subsection (1), a party who is represented by a legal practitioner is not required to make the overarching obligations certification if— s. 13 -- 24 of 33 -- Part 4—Amendments Relating to Certification Requirements Civil Procedure Amendment Act 2012 No. 62 of 2012 22 Authorised by the Chief Parliamentary Counsel (a) the party is currently involved, or has been involved, in more than one civil proceeding and has personally made the overarching obligations certification in other civil proceedings in the same jurisdiction within— (i) a period specified by rules of court; or (ii) if no period is specified by rules of court, 2 years prior to the current proceeding; and (b) the legal practitioner of that party certifies, in accordance with the rules of court, as to the matters specified in paragraph (a).". 14 Proper basis certification (1) For section 42(1) of the Principal Act substitute— "(1) A legal practitioner acting for or on behalf of a party to the proceeding must file a proper basis certification which complies with this section in the following circumstances— (a) on the filing of a party's first substantive document in a civil proceeding; (b) on the filing of any subsequent substantive document in a civil proceeding which— (i) adds or substitutes a party; or (ii) makes, adds or substitutes a claim or cause of action; or s. 14 -- 25 of 33 -- Part 4—Amendments Relating to Certification Requirements Civil Procedure Amendment Act 2012 No. 62 of 2012 23 Authorised by the Chief Parliamentary Counsel (iii) makes, adds or substitutes a substantive defence or substantive matter by way of response or reply; or (iv) makes, adds or substitutes a material allegation denial or non- admission of fact or law; or (v) makes any significant amendment to a first substantive document or a subsequent substantive document; (c) as provided for by rules of court; (d) as directed by the court in any civil proceeding. (1A) In the case of a civil proceeding which involves allegations of fact, a legal practitioner making a proper basis certification must certify that on the factual and legal material available— (a) each allegation of fact in the document has a proper basis; (b) each denial in the document has a proper basis; (c) there is a proper basis for each non- admission in the document. (1B) In the case of a civil proceeding commenced by originating motion seeking a particular legal relief or remedy, a legal practitioner making a proper basis certification must certify, as the case requires, that on the factual and legal material available— (a) the claim in the document, or a response to a claim in the document, has a proper basis; or s. 14 -- 26 of 33 -- Part 4—Amendments Relating to Certification Requirements Civil Procedure Amendment Act 2012 No. 62 of 2012 24 Authorised by the Chief Parliamentary Counsel (b) the question posed by the party to the court in the document, or a response to a question posed, has a proper basis. (1C) Despite subsections (1) to (1B), a legal practitioner is not required to make a proper basis certification if rules of court provide that a process or document is exempt from the proper basis certification requirement because it is administrative in nature. Example Registration of judgments.". (2) In section 42(3) of the Principal Act— (a) in paragraph (b) for "untrue." substitute "untrue; or"; (b) after paragraph (b) insert— "(c) as to whether any claim, response to a claim, question posed or response to a question posed has a proper basis, on the factual and legal material available, must be based on a reasonable belief that the claim, response to a claim, question or response to a question has a proper basis.". 15 Urgent filing of documents and certification In the example at the foot of section 44(1) of the Principal Act for "freezing orders," substitute "applications for freezing orders or for". 16 Proceedings may be commenced despite failure to certify (1) In the heading to section 45 of the Principal Act after "commenced" insert "or substantive documents filed". s. 15 -- 27 of 33 -- Part 4—Amendments Relating to Certification Requirements Civil Procedure Amendment Act 2012 No. 62 of 2012 25 Authorised by the Chief Parliamentary Counsel (2) In section 45 of the Principal Act after "in the court" insert "or the filing of any substantive document by a party to a civil proceeding". 17 Rules of court After section 70(1)(e) of the Principal Act insert— "(ea) specifying time periods for exemptions from compliance with the overarching obligations certification requirements under Part 4.1 of Chapter 4; (eb) for the purposes of section 41(5), providing for the form of certification by a legal practitioner; (ec) exempting from compliance with the proper basis certification requirements under Part 4.1 of Chapter 4 any specified process or document which is administrative in nature; (ed) providing for when proper basis certification is required for the purposes of section 42(1)(c);". __________________ s. 17 -- 28 of 33 -- Part 5—Other Amendments, Transitional Provisions and Repeal of Amending Act Civil Procedure Amendment Act 2012 No. 62 of 2012 26 Authorised by the Chief Parliamentary Counsel PART 5—OTHER AMENDMENTS, TRANSITIONAL PROVISIONS AND REPEAL OF AMENDING ACT 18 Application of Principal Act For section 4(2)(b) of the Principal Act substitute— "(b) the Personal Safety Intervention Orders Act 2010;". 19 Extension of time for application (1) In section 31(2) of the Principal Act for "the party" substitute "the person". (2) After section 31(2) of the Principal Act insert— "(3) An application under this section may be made by— (a) any party to the civil proceeding; or (b) any other person who has a sufficient interest in the civil proceeding.". 20 Part 6.2 divided into Divisions In Part 6.2 of Chapter 6 of the Principal Act, before section 72 insert the following Division heading— "Division 1—Transitional Provisions—Civil Procedure Act 2010". 21 New Division 2 of Part 6.2 inserted After section 79 of the Principal Act insert— "Division 2—Transitional Provisions—Civil Procedure Amendment Act 2012 80 Costs (1) Part 4.5 of Chapter 4 applies in relation to all civil proceedings commenced on or after the commencement of Part 2 of the Civil Procedure Amendment Act 2012. s. 18 -- 29 of 33 -- Part 5—Other Amendments, Transitional Provisions and Repeal of Amending Act Civil Procedure Amendment Act 2012 No. 62 of 2012 27 Authorised by the Chief Parliamentary Counsel (2) If a civil proceeding has commenced before the commencement of Part 2 of the Civil Procedure Amendment Act 2012, on and from the commencement of that Part of that Act, Part 4.5 of Chapter 4 applies in relation to that proceeding. 81 Expert witnesses and expert evidence (1) Part 4.6 of Chapter 4 applies in relation to all civil proceedings commenced on or after the commencement of Part 3 of the Civil Procedure Amendment Act 2012. (2) If a civil proceeding has commenced before the commencement of Part 3 of the Civil Procedure Amendment Act 2012, on and from the commencement of that Part of that Act, Part 4.6 of Chapter 4 applies in relation to that proceeding. 82 Overarching obligations certification and proper basis certification requirements The amendments made to Part 4.1 of Chapter 4 by Part 4 of the Civil Procedure Amendment Act 2012 apply in relation to any civil proceeding commenced on or after the commencement of Part 4 of that Act. 83 Power to resolve transitional difficulties in civil proceedings (1) If any difficulty arises because of the operation of this Division or any amendments made to this Act by the Civil Procedure Amendment Act 2012 in relation to a civil proceeding to which this Division applies, a court may make any order it considers appropriate to resolve the difficulty. s. 21 -- 30 of 33 -- Part 5—Other Amendments, Transitional Provisions and Repeal of Amending Act Civil Procedure Amendment Act 2012 No. 62 of 2012 28 Authorised by the Chief Parliamentary Counsel (2) An order made under subsection (1)— (a) may be made on application of a party to the proceeding or on the court's own motion, as the case requires; and (b) has effect despite any provision to the contrary made by or under any Act (other than the Charter of Human Rights and Responsibilities Act 2006). 84 Regulations dealing with transitional matters (1) The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of the Civil Procedure Amendment Act 2012. (2) Regulations made under this section may— (a) have a retrospective effect to a day on or from the date that the Civil Procedure Amendment Act 2012 receives the Royal Assent; and (b) be of limited or general application; and (c) leave any matter or thing to be decided by a specified person or specified class of persons; and (d) provide for the exemption of persons or proceedings or a class of persons or proceedings from any of the regulations made under this section. s. 21 -- 31 of 33 -- Part 5—Other Amendments, Transitional Provisions and Repeal of Amending Act Civil Procedure Amendment Act 2012 No. 62 of 2012 29 Authorised by the Chief Parliamentary Counsel (3) Regulations made under this section have effect despite anything to the contrary— (a) in any Act (other than this Act or the Charter of Human Rights and Responsibilities Act 2006); or (b) in any subordinate instrument. (4) This section is repealed on 1 May 2014.". 22 Part 6.3 of Chapter 6 repealed Part 6.3 of Chapter 6 of the Principal Act is repealed. 23 Amendment of Accident Compensation Act 1985— Legal costs order In section 134AG(5) of the Accident Compensation Act 1985 after "1958" insert "or the Civil Procedure Act 2010". 24 Repeal of amending Act This Act is repealed on 1 May 2014. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ s. 22 See: Act No. 10191. Reprint No. 18 as at 1 July 2011 and amending Act Nos 107/1997, 80/2010, 29/2011, 76/2011, 18/2012 and 22/2012. LawToday: www. legislation. vic.gov.au -- 32 of 33 -- Civil Procedure Amendment Act 2012 No. 62 of 2012 30 Authorised by the Chief Parliamentary Counsel ENDNOTES † Minister's second reading speech— Legislative Assembly: 21 June 2012 Legislative Council: 13 September 2012 The long title for the Bill for this Act was "A Bill for an Act to amend the Civil Procedure Act 2010 in relation to costs and expert witnesses, to make other technical amendments to that Act, to consequentially amend the Accident Compensation Act 1985 in relation to costs and for other purposes." Endnotes -- 33 of 33 --