The Civil Procedure Act 2010 An overview 28 July 2011 Rachel Ellyard, Victorian Bar

Key Messages in Act 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 ◦ 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 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 obligations Based on existing professional conduct rules and model litigant guidelines Paramount duty Ten specific overarching obligations Broad application Consequences for non compliance

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 been repealed and did not come into effect

Chapter 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 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 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) 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

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 ◦ 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 ◦ 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

Reform of Discovery test – Rules Order 29 of Supreme Court Rules and Magistrates’ Court Rules New Rule 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 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 “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 resolution Expanded definition Increased court powers to refer parties to it Increased role for courts