Evaluating the impacts of the Civil Procedure Act 2010 (Vic): critical disclosure and unanswered questions

Civil justice reform is hard work. If we go to the effort of taking steps to improve a civil justice system, we want those changes to have the desired effects. Despite this, reform efforts in civil justice often cease at the point a legislative change commences – stopping far short of robust evaluation of impacts and effectiveness. The 10th birthday of the Civil Procedure Act 2010 (Vic) (CPA) in 2021 is a fitting time to explore whether this significant intervention in Victoria’s litigation landscape has generated the intended results. This article focuses on the operation and evaluation of the overarching obligation in s 26 to disclose the existence of documents critical to the resolution of a dispute. It examines the objectives of the obligation and, using traditional legal analysis, reviews the deployment of s 26 in case law in the CPA’s first decade. The article then turns to alternative ways the operation of the provision might be evaluated. This discussion demonstrates the need for better data and evaluation practice in the assessment of procedural innovations in civil justice systems, a requirement only increased by the urgent and profound changes effected in response to the COVID-19 pandemic.