In recent years and following various law reforms as a result of the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, the rapidly evolving legal and social landscape of institutional abuse claims in Victoria has prompted a significant increase of litigation. This has led to the creation of Institutional Liability Lists in both the Victorian Supreme Court and, more recently, the Victorian County Court.
Supreme Court of Victoria – Institutional Liability List
The Supreme Court of Victoria's Institutional Liability List (the Supreme Court List) commenced on 10 February 2020 as a specialist list within the Supreme Court's Common Law Division. It was established to provide a specific case management list for civil claims relating to institutional abuse and is now one of the largest lists within the Supreme Court of Victoria.
The Supreme Court List manages claims against an organisation, founded on personal injury or death due to the alleged physical or sexual abuse of a minor.
At present, in excess of 95% of cases initiated in the Supreme Court List resolve prior to trial. Whilst proceedings are on foot, they result in a significant number of interlocutory applications and administrative output to be managed by Court staff. This staff, which includes a team of lawyers assisting judicial officers with the management of proceedings within the Supreme Court List, perform a range of tasks such as preparing matters ahead of hearings, reviewing pleadings and other material and assessing proposed consent orders.
County Court of Victoria – Institutional Liability List
The caseload of the Supreme Court List prompted establishment of a parallel Institutional Liability List within the County Court of Victoria (the County Court List), which was established under Order 34A.04(1)(c) of the County Court Civil Procedure Rules 2018 (Vic) and officially commenced in December 2023. The County Court List manages institutional abuse claims of the same nature as the Supreme Court List. Crucially for parties, the County Court does not have a monetary cap on awards of damages, meaning that it has the same ability to award damages as the Supreme Court. Juries are also available in both the Supreme Court and the County Court.
The County Court List is governed by the Institutional Liability List Practice Note (PNCLD-19-2023) (County Court Practice Note) which was published on 4 December 2023. Section 4 of the County Court Practice Note allows for the transfer of proceedings from the Supreme Court List to the County Court List, with the Supreme Court identifying appropriate matters for transfer and inviting parties to make submissions regarding the transfer prior to making any formal order.
If the Supreme Court is satisfied that it is desirable to transfer the proceeding to the County Court in all the circumstances, an order reflecting this will be made and all the documents relating to the proceeding will be sent to the County Court. The transfer of proceedings from the Supreme Court List to the County Court began several months prior to the formal establishment of the County Court List, when the Supreme Court began identifying suitable matters for transfer from the Supreme Court List to the general Common Law Division of the County Court (with a view to eventual movement into the County Court List once established).
A difference between the Supreme Court and County Court Lists is the method by which timetabling orders are made, and the proximity of trial dates allocated by the Court. Notably, the County Court List does not require that parties agree upon each order within a proposed interlocutory timetable – rather, at present, it asks the parties to specify the length of trial date they would prefer (usually 12 months), and once consented to by all parties, the Court gives effect to those orders by allocating a trial date and interlocutory timetabling dates accordingly.
Supreme Court List Case Management Updates
As of May 2024, the Supreme Court List has adopted some of the procedural workings of the County Court List in order to expedite proceedings and has identified its target of having matters within the list reach trial within 14 to 16 months of an appearance first being filed (with parties to existing proceedings with trial dates outside this target range to be contacted by the Court to allocate earlier trial dates).
The Supreme Court List aims to facilitate this goal by also removing the need for parties to agree on each order within an interlocutory timetable at the outset of a proceeding. Instead, upon filing of an appearance in the proceeding, the Court will issue a timetable (including a trial date and a post-mediation direction hearing date) to the parties using a standardised timetable that will apply to all cases initiated in the Supreme Court List. It is noted that parties remain free to extend or abridge interlocutory dates by agreement and should expect a mediation date no later than 12 months after service of a writ, and a trial date approximately 3 months thereafter.
The Supreme Court List's Case Management Update published in May 2024 – available here, also notes that the Supreme Court will begin to consider potential transfers of proceedings to the County Court List as required over the course of litigation, rather than only at the commencement of the case (as is current practice). The Court's practices regarding notification of potential transfer to the County Court List and allowing parties with the opportunity to make submissions regarding the transfer will remain the same.
The operation of the parallel Institutional Liability Lists in the Supreme and County Courts, and their interaction with each other (including the Supreme Court List's adoption of some of the practices of the County Court List), demonstrates that the case management tools employed by both Courts will be subject to ongoing review and flexibility to suit current demands. It is also a sound reminder for practitioners working within the area of institutional abuse litigation to carefully consider the most appropriate Court in which to issue proceedings at the outset, in order to maximise the efficiency of proceedings for clients, and keep in mind the parties' ability to transfer proceedings by consent under the Courts (Case Transfer Act) 1991 (Vic) at any time. The institutional liability space in Victoria – and nationally – will continue to be a busy and ever-evolving one, with jurisprudence around deed set aside applications, permanent stay applications, and liability/damages verdicts continuing to develop.
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