What are the Overarching Obligations in Victorian Courts and Who Do They Apply To?

Part 4.1 of the Civil Procedure Act 2010 requires 2 Certificates to be filed on commencing a civil proceeding:

1️⃣ An Overarching Obligations certificate (to be made by parties); and

2️⃣ A Proper Basis Certificate (to be made by lawyers).

What are the Overarching Obligations?

There is one Paramount Duty and a further 10 Overarching Obligations.

The Paramount Duty is a duty to the court to further the administration of justice in relation to any civil proceeding (s16).

One manifestation of this Paramount Duty is the duty of lawyers to accurately inform the court of the parameters of the case and the factual and legal issues for determination.

Inaccurate or misleading opening submissions, or submissions which do not have a proper factual or legal basis can impede the administration of justice by leading to a waste of court time and resources (Stagliano (as administrator of the Estate of Manlio, dec'd) v Scerri [2016] VSC 130 at [25]).

The Overarching Obligations are to:

1️⃣ Act honestly (s17)

2️⃣ Only make claims that have a proper basis (s18)

3️⃣ Only take steps to resolve or determine the dispute (s19)

4️⃣ Cooperate in the conduct of the civil proceeding (s20)

5️⃣ Not mislead or deceive (s21)

6️⃣ Use reasonable endeavours to resolve the dispute (s22)

7️⃣ Narrow the issues in dispute (s23)

8️⃣ Ensure costs are reasonable and proportionate (s24)

9️⃣ Minimise delay (s25)

🔟 Disclose the existence of documents critical to the dispute (s26).

Due to the Overarching Obligations, a party should not use generic or standard form grounds of appeal which are not adapted to the actual issues in dispute. This puts the court and the other party to the appeal to the trouble and expense of considering grounds of appeal that are not relevant (Toyota v Bendrups & Ors [2016] VSC 718 at [24]).

The Overarching Obligations do not expressly apply to proceedings commenced before the Act commenced on 1 January 2011.

But as the Supreme Court has observed, the ‘underlying principles embodied in the Act, and particularly the ‘overarching purpose’, nevertheless reflect the approach this Court has taken over many years to facilitate the utilisation of scarce court resources’ (Talacko v Talacko [2013] VSC 712 at [79]).

It has been suggested that obligations of the kind embodied in the Act have ‘always existed’ (Yara Australia Pty Ltd v Oswal [2012] VSCA 337 at [10], citing with approval Director of Consumer Affairs v Scully (No 2) [2011] VSC 239 at [21]-[22]).

For a detailed exposition of the common law principles regarding the duties that lawyers and expert witnesses owed before the commencement of the Civil Procedure Act 2010, see Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (Ruling No 8) [2014] VSC 567 [136]-[175]).

Who do the Overarching Obligations Apply To?

The Overarching Obligations apply to:

✅ Any person who is a party (s10(a));

✅ Any legal practitioner or other representative acting for or on behalf of a party (s10(b));

✅ Any law practice acting for or on behalf of a party (s10(c));

✅ Any person who provides assistance to a party and in doing so exercises control or influence over the proceeding, such as an insurer or litigation funder (s10(d));

✅ Expert witnesses (s10(3)).

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.