Litig8: Solicitors’ obligations under the Civil Procedure Act

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Each month as a part of Mills Oakley’s Litig8, we bring to you snapshots of eight key cases, legislative changes or other legal events. The summaries are not comprehensive and do not constitute legal advice. You should seek professional advice before taking any action based on the content of this article.

Part 2 of the March edition of Litig8

Victoria’s Civil Procedure Act 2010 has become a very powerful tool which the Courts are using, on their own motion, against parties and their lawyers.

The purpose of the Civil Procedure Act 2010 is to ensure the prompt conduct of a proceeding.  Lawyers and their clients have overarching obligations under the Act which include obligations to only pursue claims and defences which have a proper basis, to disclose documents which are critical to the dispute as early as possible and to minimise delay.

Examples of the Court taking action in ensuring compliance with the Act include:

  • The Victorian Court of Appeal criticised parties in an application before the Court for filing six lever arch folders of material, which the Court considered unnecessary or irrelevant, and made appropriate costs orders; Yara Australia Pty Ltd v Oswal [2013] VSCA 337.
  • After a Supreme Court trial in which an expert’s report was amended, not by the expert but by a member of his staff, the Judge initiated his own enquiry and found that the party, solicitors and barristers in question had breached their overarching obligations under the Act by not disclosing the amendment to the other side. Substantial costs orders were made; Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd [2014] VSCA 3.
  • The Court of Appeal chastised solicitors of both parties when they agreed to consent orders to extend time periods for procedural deadlines without consulting the Court; Eaton v ISS Catering Pty Ltd [2013] VSCA 361.

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