Contravention of the Overarching Obligations: What Powers do Victorian Courts Have?

What Powers do the Victorian Courts have when Overarching Obligations are Contravened?

A Victorian Court may take into account a contravention of the Overarching Obligations in exercising any power in relation to a civil proceeding (Civil Procedure Act 2010 s28).

If the Court is satisfied on the balance of probabilities that there has been a breach the Court may make any order it considers appropriate in the interests of justice.

This includes:

1️⃣ An order that a person pay the costs and expenses arising out of a contravention;

2️⃣ An order that legal costs be payable immediately and enforceable immediately;

3️⃣ An order that a person pay compensation for financial loss that was materially contributed to by a contravention;

4️⃣ An order that a person take steps to remedy a contravention;

5️⃣ An order that a person not be permitted to take certain steps in the proceeding;

6️⃣ Any other order the court considers to be in the interests of a person prejudicially affected by the contravention (Civil Procedure Act 2010 s29(1)).

As the Court of Appeal observed in Yara Australia Pty Ltd v Oswal (2013) 41 VR 302, s29 is a unique provision, conferring powers broader than those in any other jurisdiction in Australia, to sanction legal practitioners and parties who fail to meet their overarching obligations (at [17]).

The effect of s29 is to transform the overarching obligations from aspirational to obligatory (Yara Australia Pty Ltd v Oswal (2013) 41 VR 302 at [17]).

As Vickery J explained in Kenny v Gispreal Ltd [2015] VSC 284:

The facility provided by s 29 of the CPA alters the balance in favour of litigants who would otherwise incur a costs burden or suffer loss which was materially contributed to by a contravention of an overarching obligation, and does so in a significant way.

The CPA in this way gives very valuable, and commercially important advantages to litigants.

Source:

This FAQ is extracted from the Civil Procedure Bench Book published by the Judicial College of Victoria.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.