The Civil Procedure Act 2010 (Vic) was introduced to reform the Victoria’s civil procedure laws by making amendments to Victorian litigation procedures. It is anticipated to have a significant effect on the approach and conduct to civil litigation in Victoria. Essentially, all of the measures which have been devised are oriented towards the timely and cost efficient resolution of court disputes.
The Act is accompanied by the Civil Procedure Act 2010 – Legislative Guide which contains an comprehensive analysis and discussion of the operation and application of the Act. The main purpose of the Act is to modernise the conduct of all civil proceedings, whether conducted in the Supreme, County and Magistrates’ Courts. The Act has no application to proceedings conducted in VCAT or criminal or quasi-criminal proceedings.
The Civil Procedure and Legal Profession Amendment Bill 2011, amends the Civil Procedure Act 2010 to repeal the pre-litigation requirements in the Act in relation to debt recovery and other proceedings.
The Act introduces overarching obligations to facilitate the just, efficient, timely and cost-effective resolution of the issues in dispute in the conduct of a civil case. It is intended to advance the interest of the public in the timely settlement of disputes by agreements between parties, ensuring the conduct of business brought before the court by participants is conducted as efficiently as possible.
The overarching obligations are of broad application, extending to lawyers, litigants, in some cases expert witnesses and others involved in litigation who provide financial assistance, such as insurers. The overarching obligations are intended to impact upon anyone who is in a position to control or exert influence over proceedings.
These obligations override any contractual arrangements entered into between a litigation funder and client, or client and their lawyer. However the obligations cannot override legal professional privilege.
Subject to some exceptions, Solicitors involved in the conduct of civil litigation post July 1 2001, will be required to certify they have read the overarching obligations and that the case has a proper basis in fact and law. Examples of pre-litigation requirements include exchanging documentation, information and conducting negotiations or ADR with a view to resolving disputes. From January 1, 2011 when a party files a ‘first substantive document’ in a civil proceeding such as a writ or defence, both parties must certify they have read and understood the obligations and their paramount duty to the court to comply with them.
There are sanctions such as costs orders which may attach to the contravention of the overarching obligations.
Examples of the obligations are set out in the Act and impose obligations upon parties from making frivolous and vexatious claims or claims, or which involve an abuse of process. Lawyers are under an obligation to co-operate in the conduct of civil proceedings and are required to make reasonable endeavours to minimise delay, narrow the issues in dispute, make disclosure of critical documents, and ensure that costs are reasonable and proportionate to the complexity and costs associated with an action.
The overarching obligations apply broadly to interlocutory processes, appropriate dispute resolution and appeals.
Courts will be expected to play a more active role in managing proceedings efficiently. Whilst Courts already enjoy and invoke broad inherent powers to control their own processes, the Act confers upon them wide latitude in making directions to further the Act’s objective in the conduct of proceedings. Litigants can expect Courts to assume a more pro-active role in invoking mechanisms aimed at minimising delay, expense and inconvenience.
There are a number of ways courts may achieve this, for example in devising strict timetables for the completion of certain steps for either commencing proceedings or filing documents, in conjunction with the use of alternative dispute resolution procedures where appropriate.
Additionally, there are reforms relating to case management processes, and summary judgement provisions which can be used to terminate actions with no real prospects of success. Discovery sanctions are also at the disposal of Courts to apply.
An attempt to streamline discovery processes which can protract disputes and add to expenses has led to new rules being introduced in relation to disclosure and discovery of documents as part of pre-litigation procedures.
It is incumbent upon parties to disclose documents which are critical to the resolution of a dispute at the earliest possible opportunity, even prior to the initiation of legal proceedings. There has been an attempt to delineate and narrow the contours of discovery by limiting it, subject to court order, to documents upon which a party relies, or which support or adversely affect either parties’ cases.
The pre-litigation requirements contained in the Act coupled with the case management powers which can be invoked by the courts warrant care and judgement being applied by litigants at the outset of proceedings. This is more likely to avoid the imposition of adverse costs orders and other measures which could jeopardise or compromise the continuity of proceedings.
The impact is that there will be a greater onus on all parties involved in litigation to undertake more exhaustive investigations and negotiations prior to launching aggressively into litigation.