The Civil Procedure Act 2010The Civil Procedure Act 2010

An overview

28 July 2011

Rachel Ellyard, Victorian Bar

Key Messages in Act Key Messages in Act

Disputes should be resolved in a fair, timely, cost-effective manner

Litigation should be an option of last resortCourts are a public resource to be used

responsiblyEarly exchange of information and negotiation Strongly encourage ADR or genuine

negotiationProportionality

How aims of Act are How aims of Act are achievedachievedOverarching 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 Overarching purpose of the Act and RulesRules

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 Factors relevant when giving effect to the giving effect to the overarching purpose overarching purpose

Section 9(1)- mandatory factors◦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 Factors relevant when giving effect to the giving effect to the overarching purpose overarching purpose Section 9(2) – discretionary factors◦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 The overarching obligationsobligationsBased on existing professional

conduct rules and model litigant guidelines

Paramount dutyTen specific overarching

obligationsBroad applicationConsequences for non

compliance

Application 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 The paramount duty – s 1616Each 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 17Act honestly – s 17A person to whom the

overarching obligations apply must act honestly at all times in relation to the civil proceeding

Proper basis for claims – s Proper basis for claims – s 1818Must not make any claim or response to a claim that:Is frivolousIs vexatiousIs an abuse of processDoes not have a proper basis on the legal and factual material available

Note: “proper basis” NOT “merit”

Only take steps to resolve – Only take steps to resolve – s 19s 19For the purpose of avoiding

undue delay and expenseA 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 20Cooperate – 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 Not to mislead or deceive – s 2121A person must not engage in conduct in respect of a civil proceeding that:Is misleading or deceptive; orIs likely to mislead or deceive

Objective test, not subjective

Use reasonable endeavours Use reasonable endeavours to resolve dispute – s 22to resolve dispute – s 22A person must use reasonable endeavours to resolve a dispute by agreement between the persons in disputeIncluding where appropriate by ADRExcept when it is not in the interests of justice to do so or the nature of the dispute requires judicial determination

Use reasonable endeavours Use reasonable endeavours to narrow issues in dispute – to narrow issues in dispute – s 23s 23A person must use reasonable endeavours to narrow the issues in dispute by agreement between the persons in disputeIncluding where appropriate by ADRExcept 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 Ensure costs are reasonable and proportionate – s 24and proportionate – s 24A person must ensure legal costs and other costs are reasonable and proportionate to:Complexity and importance of issuesThe 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 25Minimise delay – s 25

A person must use reasonable endeavours to:Act promptlyMinimise delay

Disclose existence of critical Disclose existence of critical documents – s 26documents – s 26A person must disclose to each party the existence of documents that:Are or have been in person’s controlThe person considers (or ought reasonably consider) are critical to the resolution of the dispute

Obligation is ongoingPrivileged documents are exempt

Documents so disclosed are Documents so disclosed are protected – s 27protected – s 27Persons 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 Overarching obligations and their relationship to other obligationsrelationship 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 Sanctions for contraventioncontraventionCourt may take contravention

into account – s 28Court 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 Certification when proceeding commencescommencesParty 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 – Pre-litigation requirements – Chapter 3Chapter 3

Were to come into effect on 1 July 2011Were 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 ADRHave been repealed and did not come into effect

Chapter 4.1 - Chapter 4.1 - certificationscertifications2 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 Certification as to overarching obligationsobligationsParty 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 Proper basis certification – s 4242

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, non-admissions

To be made in accordance with the RulesIf 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” What does “proper basis” mean?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)

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/urgencyFailure 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

Judicial case managementJudicial 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 - Case management - generalgeneral

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-Case management – pre-trialtrialSection 48Builds on existing procedures as

contained in practice notes (eg Green Book)

May direct◦Timetables◦Use of ADR◦Case management conferences◦Definition of issues

Case management - Case management - hearinghearingSection 49Active intervention in hearings to

further the overarching purpose, including◦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 Case management – costs memoranda – s 50memoranda – 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 - Case management - contraventionscontraventionsIn the event of a contravention the Court may:Dismiss the proceeding in whole or in partStrike out or limit claims or defencesDisallow evidenceMake costs ordersMake any other appropriate order

DiscoveryDiscoveryReport 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

Reform of Discovery test – Reform of Discovery test – RulesRules 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 4.3Discovery – 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 Court’s powers on discoverydiscoveryThe 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 Court’s powers on contraventioncontravention

• 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 Summary Judgment – Part 4.44.4“No real prospect of success” test

On application of party or court’s own motion

Applies to claims, defences and counterclaims

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 Appropriate dispute resolutionresolutionExpanded definitionIncreased court powers to refer

parties to itIncreased role for courts