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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
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Clause Page
PART 4--MISCELLANEOUS 28
27. Regulations 28
28. Transitional 28
ENDNOTES 30
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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
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(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;
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(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.
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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;
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(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.
__________________
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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.
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(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--
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(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
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(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.
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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.
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(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
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(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.
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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.
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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
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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.
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(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.
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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.
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(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.
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(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.
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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;
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(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.
__________________
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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.
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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--
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(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
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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.
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(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--
CA
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
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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--
CA
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.
__________________
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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.
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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.
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Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
30
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