There have been significant legislative
developments at both state and federal level regarding
pre-litigation requirements for civil
disputes.
Victoria
On 24 March 2011, the Civil
Procedure and Legal Profession Amendment Bill 2011 (Vic)
(Bill) was passed through parliament. The Bill
repeals the pre-litigation requirements of the Civil Procedure
Act 2010 (Vic), which were due to come into effect on 1 July
2011.
The Bill will, however, allow a court
to make orders for specified civil proceedings or classes of civil
proceeding, including mandatory or voluntary pre-litigation orders.
The Bill is yet to receive Royal Assent.
Note: The
'overarching obligations' still apply as follows:
1.
Overarching Obligations
Overall the
legislation seeks to ensure that parties conduct themselves
appropriately by negotiating settlements where possible, avoiding
delays and keeping costs to a minimum. By way of example, parties
are under an obligation to disclose documents to the other side
that are critical to the resolution of a proceeding at the
'earliest reasonable time' after they become aware of the document
and that it is in their control.
There are
consequences if you do not act in accordance with the overarching
obligations. For example, costs may be ordered against you, or your
claim or defence may be struck out.
Parties to
litigation are required to comply with a number of new 'overarching
obligations' once proceedings have been issued in a
Victorian court (ie the Magistrates Court, the County Court and the
Supreme Court). Parties are required to certify that they have read
and understood the overarching obligations.
2. Certifications
i Overarching Obligations
Certification
Certification
must also be filed with any significant amendment to your
pleadings, such as adding a new cause of action or adding new
parties.
As stated,
parties must certify that they have read and understood the
overarching obligations. The 'Overarching Obligations
Certification' must be completed and filed with the court with
the first substantive document (ie writ, statement of claim or
defence).
ii
Proper Basis Certification
Pleadings filed
with the court must be accompanied by a 'Proper Basis
Certification', which certifies that each of the allegations,
denials or non-admissions in your pleading has a proper basis. Your
lawyer can complete and file this for you.
Commonwealth
Also on 24 March 2011, the Civil Dispute Resolution Bill
2010 (Cth) (Federal Act) was passed through
parliament. For our article on the Civil Dispute
Resolution Bill 2010 (Cth), please click here.
The Federal Act aims to 'ensure
that, as far as possible, people take genuine steps to resolve the
dispute before certain civil proceedings are instituted'. If
dispute resolution is unsuccessful and proceedings are issued, each
party must file a 'genuine steps statement' to the effect that
genuine steps have been taken to resolve the dispute.
Unlike its Victorian counterpart
(which, as stated, is now repealed), the Federal Act does not
prescribe what genuine steps must be taken but rather allows
parties to prescribe what steps are appropriate in the
circumstances.
The Federal Act is yet to be
proclaimed.
Authored by Wayne Kelcey and
Natalie Ayoub, Cornwall Stodart