Victoria’s Civil Procedure Act 2010

This research paper provides an overview of Victoria’s Civil Procedure Act 2010, its purpose, application, overarching obligations, alternative dispute resolution, document management, and case management. It discusses the impact of the Act on litigation in the State of Victoria.

Victoria’s Civil Procedure Act 2010 RESEARCH PAPER
Victoria’s Civil Procedure Act 2010
Research paper

Victoria’s Civil Procedure Act 2010 RESEARCH PAPER
Introduction
The Civil Procedure Act (Vic) 20101 have its commencement on 1st of January 2011 and the very
aim of this legislation is to reform the conduct of the litigation in a substantial way within the
State of Victoria. Thus, this piece of legislation acts as both the weapon as well as the defence
for the litigant parties, thereby creating the obligation to stay in compliance with it. The very aim
of this paper is to provide the overview of the overall purpose of Victoria’s Civil Procedure Act
20101, for facilitating the just, efficient and timely way along with the cost- effectiveness of it
towards reaching a resolution.
Discussion
The section 4 of the Act1 highlights the application of it for all the civil proceedings and thus the
criminal proceeding or quasi criminal proceeding are not maintained by this legislation. The
jurisdictions covered by this legislation ranges from Magistrates’ Courts to County Courts and
also the Supreme Courts.
The Overarching Purpose of this legislation as mentioned in section 7 of the Act1 is for providing
and also for facilitating the litigation in a just, efficient and timely way along with the cost-
effectiveness as opined in case of Jefferson v National Freight Carriers Plc [2001]2, of it
towards reaching a resolution for the significant disputes in question, and to achieve the very
purpose of the legislation1 as mentioned under section 8 and 9, the Courts in exercise of it will
create determination based on the proceeding by the it, on the agreement between the parties,
deciding on the appropriate dispute resolution process, which must be in consensus with the
1 The Civil Procedure Act (Vic) 2010
2 Jefferson v National Freight Carriers Plc [2001] 2 Costs L.R 313, C.A

Victoria’s Civil Procedure Act 2010 RESEARCH PAPER
parties and thus ordered by the Courts. Again, the rule 1.14 of the Supreme Court (General Civil
Procedure) Rules 20153 is in perfect alignment with the Act1 for the overarching purpose
mentioned under section 7 of it. Supreme Court while deciding the setting aside of a notice of an
application for the review, considered the overarching purpose along with the obligation of the
CPA in case of Kuek v Devlflan Pty Ltd [2012]4.
The very term of overarching purpose, as mentioned in the imposes the significant and the
paramount duty which are owed to the courts combined with the overarching obligations which
are imposed and bestowed on all parties. Section 16 of the Act1 provides the paramount duty
which is owed to the Courts and are in consonance with the civil proceedings in question. Apart
from the Civil proceedings, the applicability of this duty is stretched to the interlocutory
proceedings, along with the appeal matters and further incudes the appropriate dispute resolution
which needs to be undertaken, comprising of the mediation. The legislation furthermore,
highlights the ten overarching obligations from section 17- 261 which is applicable not only to
the concerned parties along with the legal practitioners and further stretches to the financial
assistance providers like the insurance companies and also the litigation funders as was held in
case of Ipex ITG Pty Ltd v State of Victoria (No 2) [2011]5. In order to comply with the
obligations, the legal practitioners despite the obligation of acting in accordance with the client’s
instructions but cannot reply on those instructions as provided by their client, if they are in in
detriment and not in compliance with the overarching obligations stated under the Act1. To create
the check, section 28 of the Act1 aims at the Courts’ exercise of any power, under the civil
proceeding when it is found that there are certain actions which are in sharp contrast and thereby
3 Supreme Court (General Civil Procedure) Rules 2015
4 Kuek v Devlflan Pty Ltd [2012] VSC 327; [2012] VSC 571
5 Ipex ITG Pty Ltd v State of Victoria (No 2) [2011] VSC 39

Victoria’s Civil Procedure Act 2010 RESEARCH PAPER
contravening the overarching obligations, and to concentrate the power on the Courts, section 29
of the Act1, further highlights the orders which can be made available, if on balance of
probabilities the Court or the judge becomes satisfied about the breach of the overarching
obligations as was held in case of Jones v National Coal Board [1957]6 and in Whitehorn v R
[1983]7 for deciding the role of judge within the adversarial system.
The case of Rees v Bailey Aluminium Products Pty Ltd & Anor [2008]8 highlights the failure on
the part of the counsel towards discharging the duty the counsel had upon the court. The case
involved an appeal, where the appellant’s claim was the denial of fair trial, arose from the
respondent counsel’s conduct. There was allegations as to the fraudulent implication on the
respondent, which was overheard by the counsel was conveyed during cross- examination, but
no evidence was produced in support of the above allegation. The Court concluded the action as
the imminent breach from the ruling made under Browne v. Dunn (1893)9. about the cross-
examination, which was upheld in case of Allied Pastoral Holdings Pty Ltd v Commissioner of
Taxation [1983]10, since the things which were overheard by the counsel was nothing more than
the personal observation and furthermore, the procedure for cross- examination was not entirely
followed and as a result of that the Court of Appeal held breach of duty towards the court by the
counsel, and held that as the as the serious dereliction of duty supported with the misconduct by
counsel, thereby denying the overarching obligation of not to mislead the court was satisfied, as
was held in cases of R v Maguire [1992]11 and also in case of R v Ward [1993]12.
6 Jones v National Coal Board [1957] 2 QB 55
7 Whitehorn v R [1983] 49 ALR 448
8 Rees v Bailey Aluminium Products Pty Ltd & Anor [2008] VSCA 244
9 Browne v. Dunn (1893) 6 R. 67, H.L
10 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1NSWLR 1
11 R v Maguire (1992) 94 Cr App R 133
12 R v Ward [1993] 1 WLR 619

Victoria’s Civil Procedure Act 2010 RESEARCH PAPER
The legal practitioners must be cautious as depicting the role as officers of the court and in so
doing must maintain the standards of professional conduct, since the responsibility towards the
court is higher that the duty they owe to their clients. Since maintaining the ethical dimensions
also falls under the overarching obligations as highlighted under the Act. Furthermore, as
highlighted in case of Boston Clothing Co Pty Limited v Margaronis [1992]13, Regina v Birks
[1990]14 and also in case of PayLess Superbarn (NSW) Pty Limited v O'Gara [1990]15, the Court
always opined about the maintenance of the procedural fairness during the conduct of adversary
proceedings, within the Court of Law.
In case of A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd
[2009]16, the Court of Appeal, Victoria, observed the importance of the obligation on the legal
practitioners and mentioned that their assistance towards reaching a fair trial is inevitable.
Again, the drafting of a lengthy affidavit in case of Thomas v SMP (International) Pty Ltd
[2010]17, which was further upheld in case of Linfield Developments Pty Limited v Shuangxing
Development Pty Limited [2016]18 and also in case of Mealey v Power [2015]19 was concluded as
a not legal necessity so, the failure to evidence the legal necessities within the clients’
submission was considered as not acting in best interest of justice by the practitioner towards the
Court.
As it is evident that the Alternative dispute resolution (ADR) is a process, where the
determination is distinct and also considered alternative from any judicial authorities, so this
13 Boston Clothing Co Pty Limited v Margaronis [1992] 27 NSWLR 58
14 Regina v Birks [1990] 19 NSWLR 677
15 PayLess Superbarn (NSW) Pty Limited v O'Gara [1990] 19 NSWLR 551
16 A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd [2009] VSCA 208
17 Thomas v SMP (International) Pty Ltd [2010] NSWSC 822
18 Linfield Developments Pty Limited v Shuangxing Development Pty Limited [2016] NSWSC 68
19 Mealey v Power [2015] NSWSC 1678

Victoria’s Civil Procedure Act 2010 RESEARCH PAPER
process involves a third party who will be neutral to both the parties and will help in resolving
the disputes of the parties20. But, the Civil Procedure Act, (Vic) 20101, defines Alternative
dispute resolution as the appropriate dispute resolution under section 3 of it, where all forms of
Alternative dispute resolution, like negotiation, mediation or conciliation for reaching the expert
determination is inclusive within the process of resolution, as opined from time to time in
numerous cases of Heart Research Institute Ltd v Psiron Ltd [2002]21, Biosciences Research
Centre Pty Ltd v Plenary Research Pty Ltd [2012]22, Nepean Highway Pty Ltd v Abnote
Australasia Pty Ltd [2009]23, and also in case of Cessnock City Council v Aviation & Leisure
Corp Pty Ltd [2012]24.
Furthermore, The Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Act
2014 (Vic)25, provides and are consistent with The Civil Procedure Act (Vic) 20101 for the
document management involved within the process of discovery. The presence of the documents
which can prove to be critical as defined under section 26(1)(b) of the Act1, must be disclosed to
the other litigating party, either by the party who found it or the concerned practitioner, as soon
as the document is found or came into existence, irrespective of the fact that the Court have not
ordered directions pertaining to the discovery of that particular document. But, this kind of
situations can also bring several disputes, as was held in case of Expense Reduction Analysts
Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013]26, where
the opposing party on receiving the documents refused to return them.
20 National Alternative Dispute Resolution Advisory Council (NADRAC), Victorian Law Reform Commission
(VLRC) Civil Justice Review Report (May 2008 p 212 n 1), www.lawreform.vic.gov.au
21 Heart Research Institute Ltd v Psiron Ltd [2002] NSWSC 646
22 Biosciences Research Centre Pty Ltd v Plenary Research Pty Ltd [2012] VSC 249
23 Nepean Highway Pty Ltd v Abnote Australasia Pty Ltd [2009] 26 VR 551; [2009] VSCA 308
24 Cessnock City Council v Aviation & Leisure Corp Pty Ltd [2012] NSWSC 221
25 The Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Act 2014 (Vic)
26 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013]
303 ALR 199

Victoria’s Civil Procedure Act 2010 RESEARCH PAPER
Again, the case management aspect, have the objective to resolve the dispute in a faster way, so
as to reduce the whole time involved within the trial, thereby allowing the Court to utilise the
time at the full brim. Thus, to access the Court and to cause the reduction of Courts’ inefficiency
the reporting procedure at fixed milestones must be observed when the case management control
is on the litigating parties, so that if required the Court may provide directions for exercising
controls on the case management. So, this is where the Act comes with the overarching purpose
to act in conformity thereby making the procedural decision for the public at large, i.e. In Rem,
rather than In Personam, as was held in case of Aon Risk Services v Australian National
University [2009]27 while overruling the precedent of Queensland v JL Holdings Pty Ltd
[1997]28, thus encouraging the Courts so that they will actively manage the proceedings
On contravention of the overarching obligations, the Court often award sanctions through the
legal costs or any other relevant expenses as was opined in case of Lines MacFarlane and
Marshal v Fletcher Constructions Australia Ltd. [1999]29. But, the High Court in case of Cachia
v Hanes [1994]30 held that no personal expenses can be recovered if there is no appearance as the
witness within the proceeding. Again, the sanction provided under section 29 (c) for allowing
compensation to the party for the financial loss sustained along with other losses which happened
only due to breaching the overarching obligation. But, an interest on cost to be awarded is solely
the discretion of the Court as was held in case of Osborne v Kelly & Klimenko [1999]31. Again
for the management of cost during the civil proceedings, the obligations imposed by the Act is
towards ensuring the reasonable costs, as was held in case of Leigh v Michelin Tyres [2004]32 and
27 Aon Risk Services v Australian National University [2009] 239 CLR 175
28 Queensland v JL Holdings Pty Ltd [1997] 189 CLR 146
29 Lines MacFarlane and Marshal v Fletcher Constructions Australia Ltd. [1999] VSC 7828
30 Cachia v Hanes [1994] HCA 14
31 Osborne v Kelly & Klimenko [1999] SASC 486
32 Leigh v Michelin Tyres [2004] 1 WLR 847

Victoria’s Civil Procedure Act 2010 RESEARCH PAPER
also in case of Sheppard v Essex Strategic Health Authority [2005]33, where the capping of cost
and the quantum of capping was considered, which is similar to section 24 of the Act1 and also in
parlance with the rule 44.5 of the CPR3. However, the practitioners must be aware of the decision
in case of Aktas v Westpac Banking Corporation Ltd [2010]34, where the Court expressed
reluctance in rectifying costs, so it is essential to consider the matter fully before producing the
application for costs before the Court.
Conclusion
Thus, to stay in compliance with the Act1, the courts will be significantly proactive for managing
the litigation as well as the practitioners for demonstrating the reasonableness and the
compliance with the section of the legislation under each proceeding for towards pronouncing
decisions and also for of the managing the cases as mentioned under section 47 of the Act1.
Furthermore, the practitioners must plan proactively prior to conducting the litigation so as to
ensure that they have complied with the overarching obligations, and most importantly the
practitioners must consider the matter fully before producing the application for costs before the
Court.
33 Sheppard v Essex Strategic Health Authority [2005] EWHC 1518
34 Aktas v Westpac Banking Corporation Ltd [2010] HCA 47

Victoria’s Civil Procedure Act 2010 RESEARCH PAPER
BIBLIOGRAPHY
A Articles/ Books/ Reports
B Cases
A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd [2009] VSCA 208
Aktas v Westpac Banking Corporation Ltd [2010] HCA 47
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1NSWLR 1
Aon Risk Services v Australian National University [2009] 239 CLR 175
Biosciences Research Centre Pty Ltd v Plenary Research Pty Ltd [2012] VSC 249
Boston Clothing Co Pty Limited v Margaronis [1992] 27 NSWLR 58
Browne v. Dunn (1893) 6 R. 67, H.L
Cachia v Hanes [1994] HCA 14
Cessnock City Council v Aviation & Leisure Corp Pty Ltd [2012] NSWSC 221
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013]
303 ALR 199
Heart Research Institute Ltd v Psiron Ltd [2002] NSWSC 646
Ipex ITG Pty Ltd v State of Victoria (No 2) [2011] VSC 39
Jefferson v National Freight Carriers Plc [2001] 2 Costs L.R 313, C.A
Jones v National Coal Board [1957] 2 QB 55
Kuek v Devlflan Pty Ltd [2012] VSC 327; [2012] VSC 571
Leigh v Michelin Tyres [2004] 1 WLR 847
Lines MacFarlane and Marshal v Fletcher Constructions Australia Ltd. [1999] VSC 7828
Linfield Developments Pty Limited v Shuangxing Development Pty Limited [2016] NSWSC 68
Mealey v Power [2015] NSWSC 1678
Nepean Highway Pty Ltd v Abnote Australasia Pty Ltd [2009] 26 VR 551; [2009] VSCA 308
Osborne v Kelly & Klimenko [1999] SASC 486
PayLess Superbarn (NSW) Pty Limited v O'Gara [1990] 19 NSWLR 551
Queensland v JL Holdings Pty Ltd [1997] 189 CLR 146
R v Maguire (1992) 94 Cr App R 133
R v Ward [1993] 1 WLR 619
Rees v Bailey Aluminium Products Pty Ltd & Anor [2008] VSCA 244
Regina v Birks [1990] 19 NSWLR 677
Sheppard v Essex Strategic Health Authority [2005] EWHC 1518
Thomas v SMP (International) Pty Ltd [2010] NSWSC 822
Whitehorn v R [1983] 49 ALR 448
C Legislation
Supreme Court (General Civil Procedure) Rules 2015

Victoria’s Civil Procedure Act 2010 RESEARCH PAPER
The Civil Procedure Act (Vic) 2010
The Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Act 2014 (Vic)
D Treaties
E Other
National Alternative Dispute Resolution Advisory Council (NADRAC), Victorian Law Reform Commission (VLRC)
Civil Justice Review Report (May 2008 p 212 n 1), www.lawreform.vic.gov.au