Is civil litigation changing for the better?

by David Levesque - March 2011

On 1 January 2011 certain provisions of the Civil Procedure Act 2010 (Vic) (Act) came into effect. These provisions affect a variety of persons involved in civil litigation in Victo-ria.

The intended purpose of the Act is to regulate the conduct of civil proceedings in the Supreme Court, County Court and Magistrates' Court to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
 
One of the ways in which the Act seeks to achieve this object is by imposing duties and 'overarching obligations' on persons involved in litigation, including parties to litigation and their legal representatives, among others.
 
Significantly, all parties must personally certify that they have read and understood the 'overarching obligations' set out in sections 16-26 of the Act. Broadly, these obligations include that a party to litigation:
 
  • owes a 'paramount duty' to the Court to further the administration of justice (which trumps your own interests);
  • must act honestly at all times and must not engage in conduct in a civil proceeding which misleads or deceives;
  • must not make a claim (or respond to a claim) in a civil proceeding in a way which is frivolous, vexatious, an abuse of process, or does not have a proper basis;
  • must co-operate with other parties and the Court in relation to the conduct of a civil proceeding, and take reasonable steps to act promptly and minimise delay;
  • must make reasonable attempts to resolve the dispute by agreement;
  • must make reasonable endeavours to ensure that the costs incurred in the course of the litigation are reasonable and proportionate to the complexity of the dispute and the amount in dispute; and
  • must disclose the existence of important documents which are critical to the resolution of the dispute as early as reasonably possible.
 
If a party is found to have breached any of the above obligations, they may be liable for costs orders or other penalties.
 
However, as this Act is still in its infancy, we are yet to see whether these new obligations will
succeed in improving the way civil disputes are resolved.
 
David Levesque
Trainee Lawyer

Hicks Oakley Chessell Williams Lawyers & NotaryLaw Institute of Victoria Accredited Specialists in 

Business Law 
Commercial Litigation 
Family Law
Wills and Estates 

 



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