Overarching Obligations under the Civil Procedure Act 2010 (Vic)

When you become embroiled in a civil dispute that results in litigation it can be easy to get consumed by a desire to ‘win’, rather than to resolve the dispute as quickly and efficiently as possible. A recent case decided in the Victorian Court of Appeal, Yara Australia Pty Ltd v Oswal [2013] VSCA 337 (“Yara”), serves as a timely reminder to lawyers and clients alike of their paramount duty and overarching obligations under the Civil Procedure Act 2010 (Vic) (“CPA”).

Each party to civil litigation and the parties’ lawyers have “a paramount duty to the court to further the administration of justice in relation to any civil proceeding in which that person is involved” (section 16 CPA). Each party to civil litigation and the parties’ lawyers must all certify to the court, at the time of filing their first document, that they will uphold the following obligations (sections 17 to 27 CPA):

  • to only take steps to resolve or determine the dispute
  • to cooperate in the conduct of the civil proceeding
  • not to mislead or deceive
  • to use reasonable endeavours to resolve the dispute
  • to narrow the issues in the dispute
  • to ensure costs are reasonable and proportionate
  • to minimse delay
  • to disclose the existence of documents
  • not to use, or permit to be used, information or documents disclosed to them during a civil proceeding, for a purpose other than in connection with the civil proceeding

The case of Yara is significant because lawyers in that case were ordered to pay some of the other parties’ legal costs and were not allowed to claim some of their own fees charged to their client. That order was made because the lawyers filed unnecessarily voluminous material which was in breach of the duty to ensure costs are reasonable and proportionate.

This case highlights the fact that everyone needs to do their best to bring to the court only those issues which they cannot resolve and not to act in a way that causes disproportionate cost.

SMR Legal Pty Ltd