By Kate Davey (Lawyer) and Paul Welling (Principal Solicitor)
If you or your organisation become involved in a dispute, you should be aware of the obligations which the Civil Procedure Act 2010 (Vic) (Act) imposes on parties, legal practitioners and law practices in relation to the conduct of litigation in Victoria.
The undeniably lofty “overarching purpose” of the Act is to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute. Sitting alongside the “overarching purpose” is a “paramount duty” owed to the courts and “overarching obligations” imposed on all parties.
Parties to litigation must certify that they have “…read and understood the overarching obligations and the paramount duty….”.
Pursuant to section 16 of the Act, each person has a paramount duty to the court to further the administration of justice in relation to any civil proceeding they are involved in. This duty applies (but is not limited) to proceedings such as interlocutory proceedings, appeals and any appropriate dispute resolution undertaken, including mediation.
The overarching obligations
Sections 17 to 26 of the Act outline ten “overarching obligations” which apply not only to parties, legal practitioners and law practices, but also to anyone who provides financial assistance such as insurers and litigation funders.
Legal practitioners must comply with the obligations despite any obligation which they may have to act in accordance with the instructions or wishes of their client. Legal practitioners cannot simply “hide behind” their client’s instructions in circumstances where acting on those instructions would breach the overarching obligations.
Section 28 of the Act provides that, in exercising any power in relation to a civil proceeding, a court may take into account any contravention of the obligations.
Further, Section 29 sets out a raft of orders which a court may make if it is satisfied on the balance of probabilities that any of the obligations have been breached. Available orders include: preventing the offending party from taking specified steps in the proceeding, ordering the offending party to take steps to remedy the contravention or making a costs order against the offending party.
The obligations are as follows:
- to act honestly (section 17);
- not to make any claim, or any response to a claim, that is frivolous, vexatious, an abuse of process or does not have a factual or legal basis (section 18);
- to only take steps necessary to facilitate the resolution or determination of the proceeding (section 19);
- to co-operate with the parties and the court (section 20);
- not to mislead or deceive (section 21);
- to use reasonable endeavours to resolve the dispute (section 22);
- if a dispute cannot be resolved wholly, to use reasonable endeavours to resolve any issues that can be resolved. Further, to use reasonable endeavours to narrow any remaining issues (section 23);
- to ensure costs are reasonable and proportionate (section 24);
- to act properly and minimise delay (section 25); and
- to disclose to each party the existence of documents that are critical to the resolution of the dispute, including documents no longer in the possession, custody or control of the party making the disclosure (section 26).
The obligations to use reasonable endeavours to resolve the dispute and/or to narrow the issues in dispute are not required where it is not in the interest of justice to do so, or the dispute is of such a nature that only judicial determination is appropriate.
The effect of the Act so far
The courts have shown a willingness to seek submissions from parties or their legal practitioners and/or make costs orders in situations where there are concerns that the overarching obligations have been breached in the conduct of the proceeding.
Concerns raised by the Courts have included:
- manifestly hopeless points being raised and argued;
- the quality of affidavit evidence filed was poor and of little forensic value;
- that the number of counsel who appeared and the volume of material filed in an application was disproportionate to the complexity and importance of the application made;
- legal representatives not vigorously assessing the strength of their client’s case to ensure that the risks of an adverse outcome were proportionate to the prospects of success; and
- that counsel, an instructing solicitor and an expert witness did not disclose at trial the existence of an additional expert report which had been prepared by the expert but never served.
When involved in litigation, it is crucial that you keep the overarching obligations at the front of your mind and engage lawyers who will ensure that the proceeding is run smoothly and cost effectively. Our litigation team has the expertise and experience to provide you with sound advice as to your prospects of success, alternative options to litigation and, if litigation eventuates, to ensure compliance with the Act. Contact us for an obligation free discussion.