When navigating civil litigation, parties must adhere to procedural rules and obligations outlined in the Civil Procedure Act 2010 (Vic) (“the CPA”). These obligations, known as overarching obligations, are outlined in sections 16 – 27 of the CPA. Failure to comply with these obligations can have significant consequences, ranging from adverse evidentiary rulings to cost penalties, even if the breach was inadvertent. Therefore, it’s critical that parties know what these obligations are and how to avoid breaching them.
The key obligations of a party are as follows:
- to act honestly;
- to pursue claims and defences which have a proper basis;
- to not mislead or deceive;
- to disclose critical documents as early as possible;
- to ensure costs are reasonable and proportionate to the claim; and,
- to minimise delay.
Duty to act honestly and not mislead or deceive
Integrity lies at the heart of the legal system. Parties involved in court proceedings have a duty to act honestly and truthfully in their dealings with the Court and other parties. This obligation encompasses providing accurate and complete information, refraining from misleading or deceptive conduct, and disclosing any relevant changes in circumstances.
Breaching the duty of honesty can have serious repercussions, including being found in contempt of Court, facing cost penalties, or even criminal prosecution in extreme cases.
Duty to pursue claims and defences which have a proper basis
Only claims and defences that have a proper basis should be pursued. This means that parties should not pursue any claim in civil proceedings that is frivolous, vexatious, an abuse of process or has no factual or legal proper basis.
This generally requires a proper basis form filed prior to the start of the civil litigation. If civil litigation does not have a proper basis, it may result in your claim being dismissed and, in some circumstances, costs being awarded against you.
Duty to disclose critical documents
A cornerstone of civil litigation is the duty to disclose relevant documents. Under the CPA, parties must disclose all documents that are or have been in their possession, custody, or control and are relevant to the issues in dispute. This obligation encompasses a duty to make a reasonable search for documents and provide disclosure specifying the categories of documents being disclosed.
Breaching disclosure obligations can lead to severe consequences, including adverse evidentiary rulings or even the striking out of pleadings, which can significantly undermine a party’s case.
Duty to ensure costs are reasonable and proportionate to the claim
The issue of costs is a significant consideration in civil litigation. Parties are encouraged to consider the potential cost implications of their actions and explore avenues for resolving disputes without resorting to protracted Court proceedings. Unreasonable conduct that unnecessarily escalates costs or prolongs proceedings may result in adverse cost orders against the offending party.
The CPA establishes a framework for the fair, efficient, and cost-effective resolution of civil disputes. By adhering to the overarching obligations under the CPA, parties and lawyers not only protect their interests but also uphold the integrity of the legal process and work towards achieving a just resolution of their dispute.
Duty to minimise delay
Efficiency and timeliness are essential for the expeditious resolution of disputes. Parties to court proceedings are expected to conduct themselves in a manner consistent with the overarching goal of achieving a just, quick, and inexpensive resolution. This entails adhering to procedural timelines, attending court hearings punctually, and cooperating with other parties and the Court.
Failure to conduct proceedings in a timely and efficient manner may result in adverse cost orders or other sanctions imposed by the Court, such as dismissing a claim or defence.
It is critical to keep your overarching obligations at the forefront of your mind when involved in litigation. If you are a party to a litigation, our litigation team has the skill and experience to conduct your matter and to ensure compliance with the CPA.
The information provided in this article is general advice only. Given that each situation is unique, we recommend that you contact our litigation team if you would like to discuss your matter. Our team can be contacted on (03) 9311 8911.
