4 Instituting proceedings

Theory is going to court should be last resort not

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Theory is, going to court should be LAST resort, not first.
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Victoria heading down this path? Victoria heading down this path? Civil Procedure Act 2010 (Vic) introduced pre- litigation requirements: disputing parties required to take reasonable steps to resolve their disputes, or to clarify & narrow the issues in dispute, before litigation commences . Court could take into account a party's failure to comply with these requirements when considering questions of costs generally and in making any procedural orders in the proceeding.
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Problems with Pre- Problems with Pre- Litigation Requirements? Litigation Requirements? Without access to privileged and 'without prejudice' information, how is a court to decide whether a prospective litigant's refusal to participate in pre-litigation dispute resolution is unreasonable? Without access to such information, how can a court, when considering costs, identify whether a party has simply been 'going through the motions' to formally satisfy the pre-litigation requirements? Would it be better to require mediation as condition precedent to commencing litigation?
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What happened? What happened? Civil Procedure and Legal Profession Amendments Act 2011 repealed the compulsory pre-litigation requirements effectively provides Victorian Courts with power to determine whether any voluntary or mandatory pre-litigation processes should be adopted by the parties.
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cf Federal position cf Federal position Civil Dispute Resolution Act (Cth) 2011 encourages parties to take ‘genuine steps’ to resolve their disputes before commencing most proceedings in Federal Court or Federal Magistrates Court. Applicants required to file a ‘genuine steps statement’ saying what steps they have taken to resolve dispute prior to commencement or if they have not taken any steps, why not Respondents to file statement indicating whether or not they agree
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Civil Dispute Resolution Act (Cth) 2011 Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys No genuine steps statement filed No attempt to resolve dispute Lawyers did not advise clients of genuine steps requirement or assist them in complying with it Relevant to costs order made by court Reeves J added the lawyers as parties to the proceeding for the purpose of determining the question of costs
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Standing Standing Plaintiff needs sufficient interest, or standing, in subject matter of litigation. Also known as locus standi. Plaintiff must demonstrate sufficient connection to, & harm from, the law or action challenged Special interest: Legal or pecuniary Interest that is different to that of an ordinary member of the public
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Standing Standing cont. cont.
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