Australia: Victoria's Civil Procedure Act is much more than "generalities and rhetoric"

Last Updated: 9 December 2012
Article by Kym Fraser and Ben Petrie

Most Read Contributor in Australia, November 2017

Key Points:

Victoria's Civil Procedure Act must be taken seriously by litigants and their lawyers - and failure to do so may substantively affect the legal rights of a delinquent party.

Section 7 of the Civil Procedure Act 2010 (Vic) (CPA) states that the Act's overarching purpose, and the rules of court, in relation to civil proceedings, is to facilitate the "just, efficient, timely and cost-effective resolution of the real issues in dispute". To this end, the CPA imposes a number of over-arching obligations on litigants to achieve this purpose.

Perhaps as a result of its idealistic and aspirational aims, reflected in general language of broad compass, some observers questioned what practical role the CPA would play in the conduct of litigation when it was introduced in 2010.

Some clarity and effect have been given to the CPA by the Supreme Court's judgments in Kuek v Devlflan Pty Ltd [2012] VSC 327; [2012] VSC 571, where the CPA's overarching purpose and obligations played a central role in setting aside a Notice of Application to Review an Order of the Victorian Costs Court.


The Supreme Court's judgments were the culmination of a complex and drawn-out costs dispute. As Associate Justice Mukhtar at first instance put it, it was one in which "a lot of ink had been spilt", despite its modest origins (a dismissal by the Magistrates' Court of a civil claim commenced in 2003 for $3,856). Following that initial dismissal there had been a series of appeals to the Supreme Court (including two visits to the Court of Appeal) and two hearings before the Costs Court.

The present fight arose in the context of an order made on 29 September 2011, by Associate Justice Wood in the Costs Court, fixing the costs which Kuek was required to pay to the defendants as a consequence of a previous application.

Pursuant to rule 63.57 of the Supreme Court Rules, if Kuek wished to have that order reviewed, he was required to file a notice of review "within 14 days after the making of the order... or the giving of reasons, whichever is the later". The Plaintiff did not however successfully file a Notice of Application to Review an Order of a Costs Judge until 22 March 2012, being over five months late.

The defendants filed a summons seeking to have the Review Notice struck out for want of time.

Plaintiff's explanation for delay and rejection of the obligations contained in the Civil Procedure Act

The Court noted that in providing his reasons for the delay, Kuek essentially sought to lay blame at the feet of the Court's filing staff.

In a sworn affidavit, Kuek deposed that he received the Supreme Court's orders dated 29 September 2011 in the mail on 3 October 2011. Being not satisfied with the Supreme Court's orders, Kuek stated that, on 14 October 2011, "my office" posted to the Prothonotary a "Notice of Application to Review Order of Cost Judge" for filing.

Rule 63.57 prescribes a strict time limit for the filing of the Notice. Even if Kuek's office posted the Notice on 14 October 2011 (which the Court found, on the balance of probabilities had not occurred), he did not make any further inquiry of the Prothonotary's office soon afterwards to see if his application had been accepted for filing. Rather, it was not until 14 February 2012 that the Plaintiff made inquiries regarding his application for review. This is despite the fact that, during the intervening period, the defendants had served a bill of costs in respect of the remitted review to the Supreme Court, and a summons for taxation on those costs. Further, at no stage did Kuek raise in correspondence with the defendants that he had sought to review the costs order by issuing the Notice.

The defendants' summons for the Review Notice to be struck out was heard at first instance in the Supreme Court by Associate Justice Mukhtar. In a judgment given on 7 August 2012, he noted the following submissions made by Kuek:

  • the review notice which Kuek had attempted to file by post on 14 October 2011 was "filed" when it would have been received by the Prothonotary's office;
  • the Court's Registry was squarely to blame, and entirely to blame, for the Review Notice not being filed until 22 March 2012; and
  • as Kuek had "put the papers in the Prothonotary's hands", he was entitled to await the Court's own processes. In this regard, Kuek argued that he should not now be prejudiced by the Court's own failures.

The hearing at first instance

At first instance, Associate Justice Mukhtar rejected Kuek's explanations for the delay (such as they were), and set aside the Review Notice. He noted that a court may have regard to a number of considerations when determining whether or not to grant an extension of time. Relevantly, he observed that Kuek "cannot say there was no fault on his part. His fault was operative, and the consequential delay has to be seen in the context of the long and sorry history of the case. This brings into play the Civil Procedure Act."

Being critical of Kuek's conduct in the steps taken, or lack thereof, after the Supreme Court made its orders on 29 September 2011, Associate Justice Mukhtar commented "I think if the Civil Procedure Act is to have any meaning, reformist efficacy, and practical influence on lawyers and litigants and the conduct of litigation, then judges ought apply it when circumstances call for it." Then he noted "Where the delay is serious enough and accompanied by other disquieting circumstances to show that civil procedure is being disrespected, there comes a point where delay of itself is prejudicial."

Accordingly, Associate Justice Mukhtar did not accept Kuek's argument that the delay was the fault of the Court, and concluded that the great delay would have been prevented had Kuek, himself a legal practitioner, been faithful to his obligations under the CPA and taken steps to ensure that the notice of review allegedly sent for filing on 14 October 2011 had been received by the Court.

Appeal from Associate Justice Mukhtar's judgment

Yet further ink was to be spilt – Kuek appealed from Associate Justice Mukhtar's judgment.

However, Justice Kyrou upheld Associate Justice Mukhtar's judgment, concluding that Kuek did not provide an acceptable reason for the late filing and service of the Review Notice, that the defendants had suffered prejudice, that the Review Notice had no prospects of success and that Kuek breached the CPA.

Although Justice Kyrou took into account considerations beyond the CPA in dismissing the appeal, his comments with respect to the overarching obligations are informative.

He rejected Kuek's "broad-brush" submission that the CPA contains "generalities and 'rhetoric' and that its 'fundamental intent... is that justice be done'". He observed "The Act imposes specific statutory obligations on the Court, the parties to civil litigation, the lawyers acting in civil litigation and other persons involved in litigation such as expert witnesses. It seeks to ensure that civil litigation is conducted in a just, efficient, timely and cost effective manner and it gives the Court wide powers to make orders limiting the rights and remedies that are otherwise available to a party if that party breaches its obligations under the Act... The Act must be taken seriously by litigants and their lawyers".

He went on to find that Kuek's conduct in this case constituted a breach of section 25 of the CPA, which obliges litigants to use reasonable endeavours in connection with a civil proceeding to "act promptly" and "minimise delay". This was a factor which aided the Court's decision to set aside the Review Notice.

Concluding remarks

The judgments of both Associate Justice Mukhtar and Justice Kyrou make clear the preparedness of the Supreme Court to give weight and effect to the obligations imposed on litigants by the CPA, where the delinquent conduct of a party during the litigation itself is called into question.

The judgments do not, in our view, stand for the proposition that any breach of time specified for the taking of a necessary step in the proceedings by the Rules, necessarily leads to a finding that a party has breached the obligations contained in the CPA. Whether that is so will need to be determined according to the facts of each case.

However, neither practitioners nor litigants should assume that the obligations contained in the CPA are merely for guidance and are without practical consequence in litigation. Where circumstances call for it, its provisions may be called in aid by the courts, as in this case, to deprive a party of a legal right to which they might otherwise be entitled.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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