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.


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.