The Civil Procedure Act 2010 An overview 28 July 2011

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The Civil Procedure Act 2010
An overview
28 July 2011
Rachel Ellyard, Victorian Bar
Key Messages in Act
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Disputes should be resolved in a fair, timely,
cost-effective manner
Litigation should be an option of last resort
Courts are a public resource to be used
responsibly
Early exchange of information and negotiation
Strongly encourage ADR or genuine negotiation
Proportionality
How aims of Act are achieved

Overarching purpose for the courts
◦ to facilitate the just, efficient, timely and cost effective
resolution of the real issues in dispute
Overarching obligations for all participants in civil
justice system
 Enhancing the courts’ case management powers
 Enhancing Appropriate Dispute Resolution (ADR)
processes
 Clarifying discovery sanctions and expanding court
powers
 Broadening the test for summary judgment

Overarching purpose of the Act and Rules
To facilitate the just, efficient, timely
and cost-effective resolution of the real
issues in dispute (s 7).
 Court must seek to give effect to the
overarching purpose in the exercise of
any of its powers, or in the
interpretation of those powers (s 8).

Factors relevant when giving
effect to the overarching purpose

Section 9(1)- mandatory factors
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Just determination
Public interest in early settlement
Efficient conduct of court’s business
Efficient use of court resources
Minimising delay
Timely determination
Proportionality
Factors relevant when giving
effect to the overarching purpose
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Section 9(2) – discretionary factors
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Compliance with prelitigation processes
Parties’ attempts to resolve or limit issues
Promptness (or lack thereof)
Compliance with overarching obligations
Prejudice
Public importance of issues
Access to legal advice and representation
The overarching obligations
Based on existing professional
conduct rules and model litigant
guidelines
 Paramount duty
 Ten specific overarching obligations
 Broad application
 Consequences for non compliance
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Application

Apply to (s 10):
◦ Parties (including self represented litigants)
◦ Legal practitioners or other representatives, law
practices
◦ Insurers and litigation funders
◦ Any person who provides financial assistance or
other assistance insofar as there is direct/indirect
control
◦ Expert witnesses (where relevant)

Do not apply to:
◦ Lay witnesses (s 10(2))
The paramount duty – s 16
Each person to whom the overarching
obligations apply has a paramount
duty to assist the court to further the
administration of justice in relation to
any civil proceeding in which that
person is involved
 Applies at all stages of a civil
proceeding

Act honestly – s 17

A person to whom the overarching
obligations apply must act honestly at
all times in relation to the civil
proceeding
Proper basis for claims – s 18
Must not make any claim or response to
a claim that:
Is frivolous
Is vexatious
Is an abuse of process
Does not have a proper basis on the
legal and factual material available
Note: “proper basis” NOT “merit”
Only take steps to resolve – s 19
For the purpose of avoiding undue
delay and expense
 A person must not take any step in
connection with a claim or response to
claim unless the person reasonably
believes the step is necessary to
facilitate resolution or determination

Cooperate – s 20
A person to whom the overarching
obligations apply must cooperate with
 the parties to a civil proceeding and
 the court
This includes with regard to facilitation
of process of settling pleadings:
Metalicus v Metretail [2011] VSC 157
Not to mislead or deceive – s 21
A person must not engage in conduct in
respect of a civil proceeding that:
 Is misleading or deceptive; or
 Is likely to mislead or deceive
Objective test, not subjective
Use reasonable endeavours to
resolve dispute – s 22
A person must use reasonable
endeavours to resolve a dispute by
agreement between the persons in
dispute
 Including where appropriate by ADR
 Except when it is not in the interests
of justice to do so or the nature of the
dispute requires judicial
determination
Use reasonable endeavours to
narrow issues in dispute – s 23
A person must use reasonable
endeavours to narrow the issues in
dispute by agreement between the
persons in dispute
 Including where appropriate by ADR
 Except when it is not in the interests
of justice to do so or the nature of the
dispute requires judicial
determination
Ensure costs are reasonable and
proportionate – s 24
A person must ensure legal costs and
other costs are reasonable and
proportionate to:
 Complexity and importance of issues
 The amount in dispute
Obligation is to ensure costs and reasonable
and proportionate, not to minimise costs
(though result may be the same)
Minimise delay – s 25
A person must use reasonable
endeavours to:
 Act promptly
 Minimise delay
Disclose existence of critical
documents – s 26
A person must disclose to each party the
existence of documents that:
Are or have been in person’s control
The person considers (or ought
reasonably consider) are critical to the
resolution of the dispute
Obligation is ongoing
Privileged documents are exempt
Documents so disclosed are
protected – s 27
Persons receiving documents under
section 26 are obliged to use them only
in connection with the proceeding.
This obligation is to the court and may
only be waived by agreement of person
who disclosed or by leave of court
Overarching obligations and their
relationship to other obligations
Subject to paramount duty, they
prevail over any other obligation (s 12)
 Duty to client is subordinate (s 13)
 Lawyer must not cause client to
contravene obligations (s 14)
 Duty to court not overridden (s15)

Sanctions for contravention
Court may take contravention into
account – s 28
 Court may make remedial orders in
response to a contravention – s 29

◦ Costs orders
◦ Order preventing person from taking
specified steps
◦ Other orders
◦ Against any person, not just party
Certification when proceeding
commences
Party must certify personally that they have
read and understood the overarching
obligations and the paramount duty (s
41(2))
 To be made in accordance with the Rules (s
41(2))
 If party represented by litigation guardian
or similar representative, they may certify (s
41(3))
 May not be done by legal practitioner

Pre-litigation requirements – Chapter 3
Were
Were
to come into effect on 1 July 2011
to require each person involved in a
civil dispute to take reasonable steps, having
regard to the person’s situation and the
nature of the dispute to –
◦ Resolve the dispute by agreement; or
◦ To clarify and narrow the issues in dispute
◦ Including not unreasonably refusing to
participate in ADR
Have
effect
been repealed and did not come into
Chapter 4.1 - certifications
2 types of certification must be made at the
time a party’s first substantive document in
a proceeding is filed
 see Supreme Court Rules Order 4 and new
forms 4A and 4B
 See also Practice Notes in County and
Magistrates’ Courts
 Certifications as to:

◦ Overarching obligations
◦ Proper basis for claims
Certification as to overarching
obligations
Party must certify personally that they have
read and understood the overarching
obligations and the paramount duty (s
41(2))
 To be made in accordance with the Rules (s
41(2))
 If party represented by litigation guardian
or similar representative, they may certify (s
41(3))
 May not be done by legal practitioner

Proper basis certification – s 42
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To be made at time the first substantive
document is filed (see definition)
Legal practitioner must certify that, on the
factual and legal material available, claims
have a proper basis
Applies to allegations, denials, nonadmissions
To be made in accordance with the Rules
If party self-represented, they must certify
(s 42(4))
Certification may need to be made more
than once if further documents alter a
party’s case
What does “proper basis” mean?

An allegation of fact or denial has a proper
basis where the practitioner has a
reasonable belief, on the legal and
evidentiary material available, as to the
truth or untruth of the allegation – s
42(3)(a)
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A non admission has a proper basis where
the legal practitioner does not know, and
therefore cannot say, whether the allegation
is true or untrue – s 42(3)(b)
Failure to certify/urgency
Proceedings may be commenced
despite failure to certify (s 45) but
court may take that failure into
account (s 46) in assessing costs/other
sanctions
 General exception – urgency (e.g.
limitation period expiry, injunctions),
but filing of certification required as
soon as practicable thereafter (s 44)
 See also relevant Practice Notes
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Judicial case management
Change of approach by High Court: JL
Holdings approach now superceded by Aon
v ANU approach
• Recognition that the claims of other
litigants and the public interest generally
are relevant matters when the court makes
case management decisions
• Judges are to be more active – litigation no
longer a pure affair of the parties
•
Case management - general
Statement of
existing judicial powers (s
47)
◦ ‘actively case manage civil proceedings’
◦ To ensure proceeding conducted in
accordance with the overarching purpose
◦ Statutory support for existing case
management actions
Case management – pre-trial
Section 48
 Builds on existing procedures as
contained in practice notes (eg Green
Book)
 May direct
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Timetables
Use of ADR
Case management conferences
Definition of issues
Case management - hearing
Section 49
 Active intervention in hearings to further
the overarching purpose, including
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Order and timing of addresses and evidence
Limiting issues
Limiting documents
Limiting witnesses
See Director of Consumer Affairs v Scully
[2011] VSC 239
Case management – costs
memoranda – s 50
Court may require exchange of
memoranda regarding costs and
length of trial
 May include requirement of estimate
of costs unsuccessful party would have
to pay to successful party

Case management contraventions
In the event of a contravention the
Court may:
 Dismiss the proceeding in whole or in
part
 Strike out or limit claims or defences
 Disallow evidence
 Make costs orders
 Make any other appropriate order
Discovery
Report of VLRC identified discovery
as a major barrier to effective civil
justice
 Use of discovery as a weapon or tactic
was widely acknowledged
 Act and Rules in combination seek to
remedy that evil
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Reform of Discovery test – Rules
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Order 29 of Supreme Court Rules and Magistrates’ Court
Rules
New Rule 29.01.1 changes the scope of discovery from that
based on the Peruvian Guano test to that stated in Order 15
of the Federal Court Rules.
Documents required to be discovered after making a
reasonable search of which party is aware at time of
discovery:
◦ Documents on which the party relies;
◦ Documents that adversely affect the party’s own case;
◦ Documents that adversely affect another party’s case;
◦ Documents that support another party’s case
The amendments apply to a proceeding begun after the
commencement of the Rules.
Note also new case management provisions and sanctions for
discovery default in the Act (Part 4.3).
Discovery – Part 4.3
Discovery to be in accordance with rules (s
54)
 A court may make any order or give any
direction in relation to discovery which it
considers is necessary or appropriate
including limiting and expanding discovery
(s 55)
 The court may sanction parties for failure to
comply with their discovery obligations (s
56)
 Intention is to prevent abuse of discovery

Court’s powers on discovery
The court may make orders:
• Limiting obligation of discovery
• Relieving party of obligation of
discovery
• Specifying stages of discovery
• Requiring discovery before close of
pleadings
• Expanding obligation of discovery
• As to the form of discovery and
inspection
Court’s powers on contravention
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Ordering contempt proceedings
Adjourning proceeding with costs
Preventing party from taking steps in
proceeding
Limiting or prohibiting use of documents
Orders as to facts proved or adverse
inferences
Compelling evidence as to contraventions
Dismissing claim or defence of party
responsible
Referring lawyer for disciplinary action
Summary Judgment – Part 4.4
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“No real prospect of success” test
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On application of party or court’s own motion
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Applies to claims, defences and counterclaims
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Guidance to be found in Federal and Qld decisions
on ‘no reasonable prospect” test
◦ Spencer v Cth (2010) 269 ALR 233
◦ Ottedin v Portbury [2011] VSC 222

Exception - interests of justice or the nature of the
dispute is such that only a full hearing on the
merits of the case is appropriate - s 64
Appropriate dispute resolution
Expanded definition
 Increased court powers to refer parties
to it
 Increased role for courts

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