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PERSONAL INJURIES PROCEDURES BILL 2002

                 PARLIAMENT OF VICTORIA

           Personal Injuries Procedures Act 2002
                                  Act No.


                       TABLE OF PROVISIONS
Clause                                                                   Page

PART 1--PRELIMINARY                                                         1
  1.     Purposes                                                           1
  2.     Commencement                                                       2
  3.     Definitions                                                        2
  4.     Application of Act                                                 4

PART 2--PRE-LITIGATION PROCEDURES                                           6
  5.     General obligations of parties                                     6
  6.     Notice of claim                                                    6
  7.     Response to notice of claim                                        7
  8.     Compliance of notice of claim                                      9
  9.     Respondent's failure to respond to notice of claim                 9
  10.    Limitation period suspended                                       10
  11.    Claimant may add other respondents                                10
  12.    Multiple respondents                                              10
  13.    Respondent may join contributors                                  11
  14.    Contributor's response                                            12
  15.    Respondent and claimant may jointly arrange for expert report     13
  16.    Examination of claimant by expert in absence of agreement
         between the parties                                               14
  17.    Exchange of information and documents                             14
  18.    Compulsory conference                                             17
  19.    Mandatory offers of settlement                                    18
  20.    Final offers to be filed in court                                 20
  21.    Privilege                                                         21

PART 3--PROCEEDINGS IN COURT                                               22
  22.    Certificate of compliance                                         22
  23.    Non-compliance with pre-litigation procedures                     23
  24.     Court may direct parties to comply with pre-litigation
         procedures                                                        23
  25.    Costs where award of damages is $50 000 or less                   23
  26.    Proceeding commenced in wrong court                               26




                                       i
541348B.I1-1/11/2002                           BILL LA CIRCULATION 25-10-2004

 


 

Clause Page PART 4--MISCELLANEOUS 28 27. Regulations 28 28. Transitional 28 ENDNOTES 30 ii 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

PARLIAMENT OF VICTORIA Initiated in Assembly 30 October 2002 A BILL to provide for pre-litigation procedures for certain claims for damages for death or injury, to provide for costs in subsequent court proceedings and for other purposes. Personal Injuries Procedures Act 2002 The Parliament of Victoria enacts as follows: PART 1--PRELIMINARY 1. Purposes The purposes of this Act are-- (a) to provide pre-litigation procedures to 5 facilitate the early settlement of claims for damages for death or injury; and 1 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 1--Preliminary s. 2 (b) to discourage the commencement of proceedings without full preparation for resolution of the claim; and (c) to minimise the costs of claims. 5 2. Commencement (1) Subject to sub-section (2), this Act comes into operation on a day to be proclaimed. (2) If this Act does not come into operation before 1 January 2004, it comes into operation on that 10 day. 3. Definitions In this Act-- "certificate of compliance" means a certificate under section 22; 15 "claimant" means a person who makes or is entitled to make a claim for personal injury damages; "compulsory conference" means a conference referred to in section 18; 20 "contribution notice" means notice given under section 13(1); "contributor" means a person added as a contributor under section 13; "costs" includes fees, charges and disbursements; 25 "economic loss" means any one or more of the following-- (a) past economic loss due to loss of earnings or the deprivation or impairment of earning capacity; 30 (b) future economic loss due to the deprivation or impairment of earning capacity; 2 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 1--Preliminary s. 3 (c) the loss of expectation of financial support; "handicapped person" means a person who is incapable by reason of injury, disease, 5 senility, illness or physical or mental infirmity of managing his or her affairs in relation to the claim; "injury" means personal or bodily injury and includes-- 10 (a) pre-natal injury; and (b) psychological or psychiatric injury; and (c) disease; and (d) aggravation, acceleration or recurrence of an injury or disease; 15 "non-economic loss" means any one or more of the following-- (a) pain and suffering; (b) loss of amenities of life; (c) loss of enjoyment of life. 20 "notice of claim" means notice under section 6(1); "person under disability" means minor or handicapped person; "personal injury damages" means damages that 25 relate to the death of or injury to a person caused by the fault of another person; "registered medical practitioner" means a registered medical practitioner within the meaning of the Medical Practice Act 1994; 30 "respondent", in relation to a claim, means the person against whom the claim is made. 3 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 1--Preliminary s. 4 4. Application of Act (1) This Act applies to all claims for personal injury damages except the following-- (a) a claim where the fault concerned is an 5 intentional act; (b) a claim made by or on behalf of or against a person under disability at the time the claim is commenced; (c) a claim to which Part 3, 6 or 10 of the 10 Transport Accident Act 1986 applies; (d) a claim to which Part IV of the Accident Compensation Act 1985 applies; (e) a claim in respect of an injury or death which entitles, or may entitle, a worker, or a 15 dependant of a worker, within the meaning of the Workers Compensation Act 1958 to compensation under that Act; (f) a claim for compensation under Part V of the Country Fire Authority Act 1958 or a 20 claim for compensation under a compensation scheme established under the regulations made under that Act; (g) an application for compensation under Part 3 of the Victoria State Emergency Service 25 Act 1987; (h) a claim for compensation under Part 6 of the Emergency Management Act 1986; (i) an application for assistance under the Victims of Crime Assistance Act 1996; 30 (j) a claim for compensation under Part 8 of the Juries Act 2000; (k) a claim for compensation under Division 6 of Part II of the Education Act 1958; 4 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 1--Preliminary s. 4 (l) a claim belonging to a class of claim exempted under the regulations from the application of this Act. (2) This Act extends to a claim for personal injury 5 damages even if the claim is based on breach of contract or any other form of action. __________________ 5 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 2--Pre-litigation Procedures s. 5 PART 2--PRE-LITIGATION PROCEDURES 5. General obligations of parties The parties to a claim for personal injury damages-- 5 (a) must make a genuine attempt to settle the claim before a statement of claim or complaint is issued; and (b) must take all reasonable steps to inform themselves of the circumstances giving rise 10 to the claim, any possible defence and the quantum of the claim. 6. Notice of claim (1) Before commencing a proceeding in a court based on a claim, a claimant must give written notice of 15 the claim to the respondent. (2) The time for giving notice under sub-section (1) is when the claimant's medical practitioner provides a written report to the claimant that the claimant's injury has stabilised. 20 (3) If-- (a) the claimant's injury has not stabilised and the relevant period of limitation under the Limitation of Actions Act 1958 will expire within the next 12 months; or 25 (b) the claim relates to the death of a person-- notice under sub-section (1) may be given immediately. 6 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 2--Pre-litigation Procedures s. 7 (4) A notice under sub-section (1) must-- (a) be in the prescribed form; and (b) contain the following information-- (i) details of the incident that the claimant 5 alleges gave rise to the claim; (ii) how the alleged incident caused the death or injury; (iii) the medical treatment and rehabilitation services that the claimant has sought or 10 obtained; (iv) details of the claimant's medical history relevant to the death or injury; (v) details of any other claims for personal injury damages made by the claimant; 15 (vi) details of the claimant's claim for economic loss, non-economic loss and medical and like expenses; and (c) be accompanied by-- (i) reports and any other documents 20 concerning the alleged incident; (ii) medical reports on the claimant's medical condition, the injury sustained by the claimant, the medical treatment and rehabilitation services provided to 25 the claimant and the prospects for rehabilitation. 7. Response to notice of claim (1) A respondent to whom a notice of claim is given must respond in writing to the claim within 30 30 days after receiving the notice. (2) A response must be in the prescribed form and contain the prescribed particulars, if any, and must-- 7 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 2--Pre-litigation Procedures s. 7 (a) state that the respondent is a proper respondent to the claim and must contain a statement under section 8; or (b) if the respondent is unable to decide on the 5 information contained in the notice of claim whether the respondent is a proper respondent to the claim, advise the claimant of the further information the respondent reasonably needs to decide whether the 10 respondent is a proper respondent to the claim; or (c) state that the respondent believes that the respondent is not a proper respondent to the claim, give the reasons for the belief and 15 give any information that may help the claimant to identify the proper respondent. (3) A statement that a respondent is a proper respondent to a claim is not an admission of liability for the claim. 20 (4) If under sub-section (2)(b) a respondent advises a claimant that specified further information is needed-- (a) the claimant must give the respondent the information the respondent reasonably needs 25 to decide whether the respondent is a proper respondent to the claim; and (b) within 30 days after receiving the information, the respondent must respond in accordance with sub-section (2)(a) or (c). 30 (5) If a respondent responds in accordance with sub- section (2)(c), the claimant must give written notice to the respondent that either-- (a) on the information available to the claimant, the claimant accepts that the respondent is 35 not a proper respondent to the claim; or 8 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 2--Pre-litigation Procedures s. 8 (b) the claimant considers that the respondent is a proper respondent to the claim and requires the respondent to make a statement under section 8. 5 (6) Notice under sub-section (5)(a) does not prevent the claimant from giving the respondent another notice of claim at a later time. 8. Compliance of notice of claim (1) A respondent who-- 10 (a) responds to a notice of claim under section 7(2)(a); or (b) is given notice by the claimant under section 7(5)(b)-- must state in writing to the claimant whether the 15 respondent is satisfied that the notice of claim complies with section 6(4) and, if the respondent is not so satisfied, identify the non-compliance and state whether the respondent waives compliance. 20 (2) If a notice of claim does not comply with section 6(4) and the respondent does not waive compliance, the claimant must remedy the non- compliance within 21 days from receipt of the statement under sub-section (1). 25 9. Respondent's failure to respond to notice of claim If a respondent fails to respond to a notice of claim-- (a) the notice of claim is deemed to comply with section 6(4); and 30 (b) the procedure in section 19(7) applies immediately. 9 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 2--Pre-litigation Procedures s. 10 10. Limitation period suspended Service of-- (a) a response under section 7(2)(a); or (b) a notice under section 7(5)(b)-- 5 suspends the relevant period of limitation under the Limitation of Actions Act 1958 or the Wrongs Act 1958 until the expiry of 3 months after-- (c) the claimant's acceptance or rejection under 10 section 19(14) of the respondent's written final offer; or (d) if the claim is settled earlier, the date of settlement of the claim. 11. Claimant may add other respondents 15 (1) A claimant may add one or more respondents to the claim by giving to the proposed respondent-- (a) a notice of claim; and (b) copies of other documents given to or received from any other respondent. 20 (2) If a claimant adds a respondent under this section-- (a) the respondent must respond to the notice in accordance with this Part; and (b) the claimant must given written notice of the 25 addition to each other party within 7 days. 12. Multiple respondents (1) If there are 2 or more respondents to a claim, one of the respondents (the respondents' claim manager) may act for one or more of the other 30 respondents, with the agreement of those other respondents, for the purposes of the claim. 10 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 2--Pre-litigation Procedures s. 13 (2) The respondents' claim manager-- (a) may exercise the powers and perform the duties conferred by this Act in relation to the claim and the claimant for all respondents for 5 whom the respondents' claim manager acts; and (b) must act as far as practicable with the agreement of the other respondents for whom the respondents' claim manager acts. 10 (3) Action taken or an agreement made by the respondents' claim manager in relation to the claim is binding on each respondent for whom the respondents' claim manager acts so far as it affects the claimant. 15 (4) If the respondents' claim manager acts beyond the scope of the respondents' claim manager's authority under the agreement referred to in sub- section (1), the respondents' claim manager is liable to each other respondent who is a party to 20 the agreement for any loss suffered by the other respondent. 13. Respondent may join contributors (1) A respondent who-- (a) gives a response under section 7(2)(a); or 25 (b) receives a notice under section 7(5)(b)-- may, within one month after giving the response or receiving the notice, join another person as a contributor by giving the person a written notice (a contribution notice)-- 30 (c) claiming an indemnity from, or contribution towards, the respondent's liability; and (d) stating the grounds on which the respondent holds the person liable; and 11 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 2--Pre-litigation Procedures s. 14 (e) containing the prescribed particulars, if any; and (f) accompanied by copies of documents about the claim given to or received from any other 5 party to the claim. (2) A respondent who gives a contribution notice must give a copy of the notice to all other parties to the claim. 14. Contributor's response 10 (1) A contributor must, within 1 month after receiving a contribution notice, give to the respondent who gave the contribution notice a written response (a contributor's response) stating-- (a) the contributor's name, address, registered 15 business address or registered office and its ABN or ACN; and (b) the name and address of the contributor's legal representative; and (c) whether the claim for the indemnity or 20 contribution claimed in the contribution notice is admitted, denied or admitted in part; and (d) if the claim for the indemnity or contribution is admitted in part, the extent to which it is 25 admitted. (2) An admission of liability in the contributor's response-- (a) is not binding on the contributor in relation to any other claim; and 30 (b) is not binding on the contributor if it later appears that the admission was induced by fraud. 12 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 2--Pre-litigation Procedures s. 15 15. Respondent and claimant may jointly arrange for expert report (1) A respondent and a claimant may jointly arrange for an expert report about all or any of the 5 following-- (a) the cause or probable cause of the incident alleged to have given rise to the death or injury to which the claim relates and whether, in the expert's opinion, one or more 10 persons (who may be named) are responsible for, or contributed to, the incident; (b) the cause or probable cause of the death or injury to which the claim relates and whether, in the expert's opinion, one or more 15 persons (who may be named) are responsible for, or contributed to, the death or injury; (c) the claimant's medical condition and prospects of rehabilitation; (d) the claimant's cognitive, functional or 20 vocational capacity. (2) The person from whom an expert report is obtained must be a person, agreed by both parties, with appropriate qualifications and experience in the relevant field. 25 (3) The person preparing the expert report must give a copy of the report to each party. (4) If an expert report is obtained by agreement between a respondent and a claimant, and the claimant is liable for the cost of obtaining the 30 report, the respondent must reimburse the claimant for the reasonable cost of obtaining the report, subject to any agreement between the claimant and the respondent. 13 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 2--Pre-litigation Procedures s. 16 16. Examination of claimant by expert in absence of agreement between the parties (1) If a respondent wants to obtain an expert report under section 15 but the claimant does not agree, 5 the respondent may request the claimant to undergo, at the respondent's expense, either or both of the following-- (a) a medical examination by a registered medical practitioner to be selected by the 10 claimant from a panel of at least 3 registered medical practitioners with appropriate qualifications and experience in the relevant field nominated by the respondent in the request; 15 (b) an assessment of cognitive, functional or vocational capacity by an expert to be selected by the claimant from a panel of at least 3 experts with appropriate qualifications and experience in the relevant 20 field nominated by the respondent in the request. (2) The claimant must comply with a request under sub-section (1) unless the examination or assessment is unreasonable or unnecessarily 25 repetitious. 17. Exchange of information and documents (1) Each party to a claim must provide to all other parties-- (a) all information and documents which are in 30 their possession, custody or power that are relevant to assessing liability in relation to the claim and the quantum of the claim; and (b) a statement as to whether there are documents that have been but are no longer 35 in their possession, custody or power and 14 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 2--Pre-litigation Procedures s. 17 stating where they believe those documents to be. (2) Sub-section (1) does not apply to-- (a) legal advice obtained in anticipation of legal 5 proceedings in relation to the claim or obtained for the purpose of pre-litigation procedures required by this Act in relation to the claim; or (b) any information or document that, by or 10 under any other Act, is not admissible in any action or proceeding before any court, tribunal, board, agency or person. (3) Information and documents to be provided under sub-section (1) include-- 15 (a) reports about the incident alleged to have given rise to the death or injury to which the claim relates; (b) reports about the claimant's medical condition or prospects of rehabilitation and 20 any consequent disability; (c) reports about the claimant's cognitive, functional or vocational capacity; (d) information about the medical treatment and rehabilitation services the claimant has 25 sought or obtained; (e) the claimant's medical history as far as it is relevant to the claim, including previous injuries, and any other claims for personal injury damages made by the claimant; 30 (f) information about the claimant's claim for economic loss; (g) information about the claimant's claim for non-economic loss. 15 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 2--Pre-litigation Procedures s. 17 (4) If a party has already provided information or a document, the party is not required to provide it again to a party to whom it has been provided. (5) Each party must-- 5 (a) comply with this section not later than 42 days after receipt of the last response, whether from a respondent or a contributor; and (b) certify in writing in the prescribed form that 10 the information and documents referred to in the certificate have been provided in accordance with this section. (6) A party to a claim is under a continuing obligation to provide to all other parties information and 15 documents of which the party obtains possession after making the certificate under sub-section (5)(b). (7) If a party fails, without reasonable excuse, to comply with this section, the party is deemed not 20 to have made a written final offer and is liable for costs resulting from the failure. (8) If a party fails to provide a document in accordance with this section, the party may not adduce the document in any subsequent 25 proceeding based on the claim unless the court otherwise orders or all other parties agree. (9) A party who is provided with information or a document in accordance with this section must not, without the consent of the party who provided 30 it, use or copy, or permit the use or copying of, the information or document for any purpose except in relation to the claim or a proceeding in a court based on the claim. Penalty: 60 penalty units. 16 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 2--Pre-litigation Procedures s. 18 18. Compulsory conference (1) All parties to a claim must attend and participate in a conference in order to attempt to resolve the claim. 5 (2) The conference must-- (a) be at a time and place agreed between the parties; and (b) be commenced not later than 90 days after receipt of the last response, whether from a 10 respondent or a contributor, and be completed within 60 days after its commencement. (3) If a conference is not commenced and completed within the period referred to in sub-section (2)(b), 15 the procedure in section 19(7) applies immediately. (4) A party must attend the conference in person or, if this is unreasonable, the party may be represented at the conference by a representative who is 20 authorised to negotiate a settlement of the claim. (5) A party must attend the conference with all information relevant to settlement of the claim and, if the party is legally represented, a costs statement for the use of the party showing-- 25 (a) details of the party's legal costs (identifying costs that are legal fees and costs that are disbursements) up to the commencement of the conference; and (b) an estimate of the party's likely legal costs 30 (identifying costs that are estimated legal fees and costs that are estimated disbursements), including the costs of the conference, if the claim proceeds to trial and is decided by the court. 17 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 2--Pre-litigation Procedures s. 19 (6) The parties may agree to appoint a mediator for the purposes of the conference. (7) An agreement that the conference is to be held with a mediator must specify how the costs of the 5 mediation are to be apportioned. (8) Subject to sub-section (2)(b), the parties may, by agreement, change the time or place for holding the conference or adjourn the conference from time to time and from place to place. 10 19. Mandatory offers of settlement (1) This section applies if a claim is not settled at a compulsory conference. (2) All offers made under this section (except further or counter offers made under sub-section (11)) 15 remain open for 14 days. (3) A written offer made under this section (except sub-section (6)) must specify separately the amount offered in damages and the amount offered for costs, if any. 20 (4) If a respondent denies liability altogether, the written offer is to be expressed as an offer of $nil. (5) A proceeding in a court based on a claim must not be commenced while a written offer remains open. 25 (6) Within 7 days after the conclusion of the compulsory conference-- (a) the respondent must give to a contributor, if any; and (b) the contributor must give to the 30 respondent-- an offer (exclusive of costs) to contribute towards the settlement of the claim on the conditions specified in the offer. 18 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 2--Pre-litigation Procedures s. 19 (7) Within 7 days after the expiry of the last offer-- (a) the claimant must give to the respondent; and (b) the respondent must give to the claimant-- a written offer to settle the claim. 5 (8) If there are 2 or more respondents-- (a) the claimant may make a written offer to settle with any respondent; and (b) any respondent may make a written offer to settle with the claimant. 10 (9) Alternatively, if there are 2 or more respondents-- (a) the claimant may make a written offer to all of the respondents to settle the claim as against all of the respondents; and (b) all of the respondents may make a written 15 joint offer to the claimant to settle the claim as against all of the respondents. (10) Respondents who make an offer under sub-section (9)(b) are jointly and severally liable to the claimant for the whole of the amount of the offer. 20 (11) Within the period of 14 days after the expiry of the last written offer, the parties may exchange further or counter offers but, on the expiry of that period, the claimant must give to the respondent a written final offer to settle the claim. 25 (12) The respondent must, by notice in writing, accept or reject the claimant's written final offer within 14 days after receiving it. (13) If the respondent rejects the claimant's written final offer, the respondent must give to the 30 claimant a written final offer to settle the claim. (14) The claimant must, by notice in writing, accept or reject the respondent's written final offer within 14 days after receiving it. 19 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 2--Pre-litigation Procedures s. 20 20. Final offers to be filed in court (1) If a claimant commences a proceeding in a court based on a claim, the claimant must file in the court at the commencement of the proceeding a 5 sealed envelope containing a copy of the claimant's written final offer. (2) A respondent must, before or at the time of filing a defence, file in the court a sealed envelope containing a copy of the respondent's written final 10 offer or, if a joint final offer is made by all of the respondents, a copy of the respondents' written joint final offer. (3) If a respondent and a contributor have exchanged offers to contribute towards the settlement of the 15 claim-- (a) the respondent must, before or at the time of filing the third party notice joining the contributor as third party, file in the court a sealed envelope containing a copy of the 20 respondent's offer; and (b) the contributor must, before or at the time of filing a defence to the statement of claim indorsed on the third party notice, file in the court a sealed envelope containing a copy of 25 the contributor's offer. (4) If a claimant fails to make a written final offer and-- (a) commences a proceeding based on the claim in the Magistrates' Court, the claimant is 30 deemed to have made a final offer for damages of an amount equal to the jurisdictional limit of the Court; (b) commences a proceeding based on the claim in the County Court, the claimant is deemed 35 to have made a final offer for damages of $150 000; 20 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 2--Pre-litigation Procedures s. 21 (c) commences a proceeding based on the claim in the Supreme Court, the claimant is deemed to have engaged in conduct referred to in section 25(4). 5 (5) If a respondent fails to make a written final offer, the respondent is deemed to have made a final offer for damages of $nil. (6) The court must not read the written final offers or offers to contribute until it has determined the 10 claim but must have regard to the written final offers, or deemed final offers, for damages and the offers to contribute when making any order as to costs at the end of the hearing. 21. Privilege 15 The information, reports and documents given or disclosed under this Part are protected by the same privileges as if disclosed in a proceeding before the Supreme Court. __________________ 21 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 3--Proceedings in Court s. 22 PART 3--PROCEEDINGS IN COURT 22. Certificate of compliance (1) A claimant who commences a proceeding in a court based on a claim must file in the court at the 5 commencement of the proceeding-- (a) a certificate of compliance; or (b) an affidavit stating that-- (i) the pre-litigation procedures required by this Act have not been complied 10 with and stating the reasons for non- compliance; or (ii) a respondent has refused to sign, or has delayed signing, a certificate of compliance. 15 (2) A certificate of compliance must-- (a) be in the prescribed form; and (b) be signed by each party or the party's legal practitioner; and (c) state that-- 20 (i) all pre-litigation procedures required by this Act have been complied with; and (ii) each party understands the consequences to the party, in terms of costs, if the claim proceeds to trial. 25 (3) The conduct of a legal practitioner who, without reasonable excuse, signs a certificate of compliance knowing that it is false or misleading in a material particular may constitute misconduct or unsatisfactory conduct for the purposes of the 30 Legal Practice Act 1996. 22 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 3--Proceedings in Court s. 23 23. Non-compliance with pre-litigation procedures A claimant may commence a proceeding without complying with the pre-litigation procedures required by this Act if-- 5 (a) the urgency of the case so requires; or (b) the court determines that the parties require the court's supervision and management of the case in order to determine the issues, whether of law or of fact, between the 10 parties. 24. Court may direct parties to comply with pre-litigation procedures (1) If-- (a) a claimant commences a proceeding, 15 whether under section 23 or otherwise; and (b) the court considers that the parties ought reasonably to have complied with the pre- litigation procedures required by this Act-- the court may direct the parties to comply with 20 those procedures and adjourn the proceeding to enable them to do so. (2) If the court adjourns a proceeding under sub- section (1), it may make any order as to costs as the court thinks fit. 25 25. Costs where award of damages is $50 000 or less (1) This section applies if a court awards to a claimant $50 000 or less in damages (after deduction of any amount awarded on a counterclaim) in a proceeding based on a claim, but it does not apply 30 to the costs of an appellate proceeding. (2) If the court awards to the claimant $30 000 or less in damages (after deduction of any amount awarded on a counterclaim), the court must apply the following principles-- 23 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 3--Proceedings in Court s. 25 (a) if the amount awarded is equal to, or more than, the claimant's written final offer, the claimant is entitled to an order against the respondent for the claimant's costs in respect 5 of the claim taxed on a solicitor and client basis from the day on which the proceeding was commenced but no order is to be made for costs up to the day on which the proceeding was commenced; 10 (b) if the amount awarded is equal to, or less than, the respondent's written final offer, or the respondents' written joint final offer, each respondent is entitled to an order against the claimant for the respondent's 15 costs in respect of the claim taxed on a party and party basis from the day on which the proceeding was commenced but no order is to be made for costs up to the day on which the proceeding was commenced; 20 (c) if the amount awarded is less than the claimant's written final offer but more than the respondent's written final offer, or the respondents' written joint final offer, each party must bear its own costs and no order is 25 to be made for costs. (3) If the court awards to the claimant $50 000 or less but more than $30 000 in damages (after deduction of any amount awarded on a counterclaim), the court must apply the following 30 principles-- (a) if the amount awarded is equal to, or more than, the claimant's written final offer, the claimant is entitled to an order against the respondent for the claimant's costs in respect 35 of the claim taxed on a solicitor and client basis from the day on which the proceeding was commenced and for the claimant's costs 24 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 3--Proceedings in Court s. 25 up to the day on which the proceeding was commenced to a maximum of $2500; (b) if the amount awarded is equal to, or less than, the respondent's written final offer, or 5 the respondents' written joint final offer, each respondent is entitled to an order against the claimant for the respondent's costs in respect of the claim taxed on a party and party basis from the day on which the 10 proceeding was commenced and for the respondent's costs up to the day on which the proceeding was commenced to a maximum of $2500; (c) if the amount awarded is less than the 15 claimant's written final offer but more than the respondent's written final offer, or the respondents' written joint final offer, the claimant is entitled to an order against the respondent for the claimant's costs in respect 20 of the claim up to the day on which the proceeding was commenced to a maximum of $2500 but otherwise each party must bear its own costs. (4) A court may disregard sub-sections (2) and (3) if a 25 party-- (a) has not complied with pre-litigation procedures within the time limits required by this Act; or (b) has vexatiously conducted the pre-litigation 30 procedures; or (c) has delayed the proceeding or complicated the issues in the proceeding; or (d) has unfairly prejudiced any other party in the course of the proceeding. 25 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 3--Proceedings in Court s. 26 (5) If an award of damages is affected by factors that were not reasonably foreseeable by a party at the time of making the party's written final offer, the court may, if satisfied that it is just to do so, make 5 an order for costs under sub-section (2) or (3) as if a reference to a written final offer were a reference to a later offer made in the light of the factors that became apparent after the parties completed the exchange of written final offers. 10 26. Proceeding commenced in wrong court (1) If, in a proceeding in the Supreme Court based on a claim-- (a) the court awards damages on the claim (exclusive of costs) of an amount not 15 exceeding $150 000; and (b) the claimant is entitled to costs under section 25 or otherwise-- the claimant is, unless the Court otherwise orders, entitled only to costs calculated in accordance 20 with the following formula-- C-A where-- C is the costs to which the claimant would have been entitled if the claimant had brought the 25 proceeding in the County Court; A is the additional costs properly incurred by the respondent by reason of the proceeding having been brought in the Supreme Court instead of the County Court. 30 (2) If, in a proceeding in the County Court based on a claim-- (a) the court awards damages on the claim (exclusive of costs) of an amount not exceeding one-half of the amount of the 26 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 3--Proceedings in Court s. 26 jurisdictional limit of the Magistrates' Court in a civil proceeding (at the time the proceeding commenced); and (b) the claimant is entitled to costs under 5 section 25 or otherwise-- the claimant is, unless the Court otherwise orders, entitled only to the costs calculated in accordance with the following formula-- C-A 10 where-- C is the costs to which the claimant would have been entitled if the claimant had brought the proceeding in the Magistrates' Court; A is the additional costs properly incurred by 15 the respondent by reason of the proceeding having been brought in the County Court instead of the Magistrates' Court. (3) A claimant is not required to pay to the respondent any amount by which the additional costs referred 20 to in sub-section (1) or (2) exceed the costs payable to the claimant. (4) Sub-section (1) does not apply to a proceeding commenced in another court and transferred to the Supreme Court under the Courts (Case Transfer) 25 Act 1991. __________________ 27 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 4--Miscellaneous s. 27 PART 4--MISCELLANEOUS 27. Regulations (1) The Governor in Council may make regulations for or with respect to-- 5 (a) prescribing forms; (b) prescribing particulars for inclusion in contribution notices; (c) prescribing particulars for inclusion in responses to notices of claim; 10 (d) exempting classes of claim from the application of this Act; (e) generally prescribing any other matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to 15 give effect to this Act. (2) The regulations-- (a) may be of general or limited application; (b) may differ according to differences in time, place or circumstances; 20 (c) may apply, adopt or incorporate any matter contained in any document whether-- (i) wholly or partially or as amended by the regulations; or (ii) as in force at a particular time or as 25 amended from time to time. 28. Transitional (1) This Act applies to a claim in respect of a death or injury that occurs on or after the commencement of this Act. 28 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Part 4--Miscellaneous s. 28 (2) If the date of an injury is not known, this Act applies to causes of action that are taken to have accrued on or after the commencement of this Act. 29 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

Personal Injuries Procedures Act 2002 Act No. Endnotes ENDNOTES By Authority. Government Printer for the State of Victoria. 30 541348B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004

 


 

 


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