Victoria has a new Civil Procedure Act
("the Act") which will come into
operation on either 1 June 2011 or an earlier date (possibly 1
January 2011) if the Government decides that it should start
earlier. The Act is aimed at promoting the just, efficient, timely
and cost-effective resolution of disputes and applies to all
Victorian courts, but not to VCAT or other Tribunals.
The Act has important practical ramifications for insurers,
lawyers and others for civil claims in Victoria both before
proceedings are issued and after, as listed in the table below. For
example, the Court may scrutinise and criticise parties if they
cause delay through the late disclosure of their case and/or
provision of documents.
This is the first time, in Victoria, that pre-litigation steps
in civil claims have been legislated. However similar provisions
exist in the NSW Civil Procedure Act and many of the steps to be
adopted in Victoria are already operating in NSW.
Important terms in the Act:
Civil Dispute – means a dispute which
may result in the commencement of a civil proceeding.
Civil Proceeding – means any
proceeding in a court other than a criminal proceeding or
Critical Documents – means documents
that are, or have been, in that person's possession, custody or
Of which the person is aware; and
Which the person considers, or ought reasonably consider, are
critical to the resolution of the dispute.
The Act defines an overarching purpose of the legislation. The
Courts must have regard to the overarching purpose when making
orders and giving directions in a civil proceeding (s.7). The Act
sets out a list of objectives that include:
The just determination of the civil proceeding;
The public interest in the early settlement of disputes by
agreement between parties;
The efficient conduct of the business of the court;
The efficient use of judicial and administrative
Minimising any delay between the commencement of a civil
proceeding and its listing for trial;
The timely determination of the civil proceeding;
Dealing with a civil proceeding in a manner proportionate to
the complexity or importance of the issues in dispute and the
amount in dispute.
The Act also sets out "overarching obligations".
Overarching obligations apply to insurers, insureds, lawyers and
certain others (s.10). A person to whom the overarching obligations
apply must act honestly at all times in relation to a civil
proceeding (s.17). Therefore, the overarching obligations do not
apply to civil disputes (pre-litigation).
The Act imposes a series of obligations including:
Overarching obligation to act honestly;
Overarching obligation to not make any claim or make a response
to any claim in a civil proceeding that is frivolous, vexatious or
an abuse of process, or which the person does not have a proper
basis to make;
Overarching obligation to avoid undue delay and expense, by not
taking any step in connection with any claim or response to any
claim in a civil proceeding unless the person reasonably believes
that the step is necessary to facilitate the resolution or
determination of the proceeding.
Overarching obligation to cooperate in the conduct of civil
Overarching obligation not to mislead or deceive
Overarching obligation to use reasonable endeavours to resolve
Overarching obligation to narrow the issues in dispute
Overarching obligation to ensure costs are reasonable and
Overarching obligation to minimise delay
Overarching obligation to disclose existence of critical
Importantly, lawyers must comply with the overarching
obligations despite any obligation the lawyer has to act in
accordance with the instructions or wishes of their client
Each person to whom the overarching obligations apply (including
insurers) has a paramount duty to the court to further the
administration of justice in relation to any civil proceeding in
which that person is involved, including, but not limited to:
Any interlocutory application or interlocutory proceeding;
Any appeal from an order or a judgment in a civil
Any appropriate dispute resolution undertaken in relation to a
Historically, only lawyers have owed such a duty to the
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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