Chapter 2—Overarching Purpose and Overarching obligations

Part 2.1—Overarching Purpose

The general commentary in the explanatory memorandum to Part 2.1 provides:

There are existing provisions in the Supreme and Magistrates’ Courts Acts as well as the Civil Procedure Rules applicable in each of the Supreme, County and Magistrates’ Courts, which define the purpose and duties of Victorian courts in civil matters.  The Commission recommended the introduction of a uniform statutory statement to define the overriding purpose and duties of the courts in relation to civil matters.

Section 7          Overarching purpose

The section provides:

(1) The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.

(2) Without limiting how the overarching purpose is achieved, it may be achieved by—

(a)     the determination of the proceeding by the court;

(b)     agreement between the parties;

(c)     any appropriate dispute resolution process—

(i)        agreed to by the parties; or

(ii)        ordered by the court.

The explanatory memorandum for section 7 states:

Clause 7    provides a statement that defines the overarching purpose of the  Bill and rules of court in relation to civil proceedings that will be a foundational guide to the courts when exercising their civil  jurisdiction. That purpose is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.  This might be achieved by determination of the proceeding by the court, agreement between the parties or any appropriate  dispute resolution process agreed to by the parties or ordered by the court.

Section 8   Court to give effect to overarching purpose

(1) A court must seek to give effect to the overarching purpose in the exercise of any of its powers, or in the interpretation of those powers, whether those powers—

(a)     in the case of the Supreme Court, are part of the Court’s inherent jurisdiction, implied jurisdiction or statutory jurisdiction; or

(b)     in the case of a court other than the Supreme Court are part of the court’s implied jurisdiction or statutory jurisdiction; or

(c)     arise from or are derived from the common law or any procedural rules or practices of the court.

(2) Subsection (1) applies despite any other Act (other than the Charter of Human Rights and Responsibilities Act 2006) or law to the contrary.

The explanatory memorandum provides

Clause 8    The courts will be required to give effect to the overarching purpose when exercising or interpreting powers. The court must give effect to the overarching purpose, despite any other Act or law to the contrary, except for the Charter of Human Rights and Responsibilities.

Section 9          Court’s powers to further the overarching purpose

(1) In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects—

(a)     the just determination of the civil proceeding;

(b)     the public interest in the early settlement of disputes by agreement between parties;

(c)     the efficient conduct of the business of the court;

(d)     the efficient use of judicial and administrative resources;

(e)     minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—

(i)        the fair and just determination of the real issues in dispute; and

(ii)        the preparation of the case for trial;

(f)     the timely determination of the civil proceeding;

(g)     dealing with a civil proceeding in a manner proportionate to—

(i)        the complexity or importance of the issues in dispute; and

(ii)        the amount in dispute.

(2) For the purposes of subsection (1), the court may have regard to the following matters—

(a)     the extent to which the parties have complied with the pre-litigation requirements or any other mandatory or voluntary pre-litigation processes;

(b)     the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;

(c)     the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;

(d)     the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;

(e)     the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;

(f)     any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;

(g)     the public importance of the issues in dispute and the desirability of a judicial determination of those issues;

(h)     the extent to which the parties have had the benefit of legal advice and representation.

(3) This section does not—

(a)     limit any other power of a court to make orders or give directions; or

(b)     preclude the court from considering any other matters when making any order or giving any direction.

The explanatory memorandum provides:

Clause 9    provides that when giving effect to the overarching purpose, a court must have regard to a broad range of objects, including the public interest in the early settlement of disputes by agreement between the parties and the efficient conduct of the business of the court.  In furthering the overarching purpose, the court may also have regard to a broad range of discretionary matters including the extent to which the parties have complied with the pre-litigation requirements under the Bill or any other pre-litigation processes.  This means that what the parties and legal practitioners do before a proceeding commences may come under the scrutiny of the court later on, if it turns out that there has been a failure to take reasonable steps to resolve the dispute.

The court may also have regard to the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute, the public importance of the issues in dispute, and the extent to which the parties have had the benefit of legal advice and representation.

Part 2.2—Application of the Overarching Obligations

10          Application of overarching obligations—participants

s. 10

(1) The overarching obligations apply to—

(a)     any person who is a party;

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

(c)     any law practice acting for or on behalf of a party;

(d)     any person who provides financial assistance or other assistance to any party in so far as that person exercises any direct control, indirect control or any influence over the conduct of the civil proceeding or of a party in respect of that civil proceeding, including, but not limited to—

(i)        an insurer;

(ii)        a provider of funding or financial support, including any litigation funder.

(2) Subject to subsection (3), the overarching obligations do not apply to any witness in a civil proceeding.