1 January 2011 reforms, including the Civil Procedure Act 2010 (Vic)

As of 1 January 2011 the civil procedure rules and commercial laws in Victoria were substantially overhauled.

The recent legislative changes include the following:

• The Magistrates' Court General Civil Procedure Rules 2010 which substantially mirrors the current Victorian Supreme Court rules.
• The Civil Procedure Act 2010 (Vic) which codifies case management powers, alters the test for discovery and raises the threshold for summary dismissals in civil procedure.
• The Fair Trading Act 1999 (Vic) which implements the Australian Consumer Law (which is the new version of the Trade Practices Act 1974 (Cth)).

I have had a lot of inquiries about the Civil Procedure Act 2010 (Vic). I have summarised its key points below for your reference:

Part 2.1

Defines the ‘overarching purpose’ which ‘is to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute’. This part provides that the Courts are to give effect to the overarching purpose in making orders.

Part 2.2

Applies ‘overarching obligations’ upon parties, legal practitioners, law practices and funders/insurers. Examples of the overarching obligations include duty to act honestly, duty to make a claim on a proper basis, duty to take steps to resolve dispute, duty to co-operate, duty to not mislead or deceive, duty to narrow issues and duty to minimise costs and delay.

Part 3.1

Pre-litigation requirements including taking steps to resolve the dispute or narrow issues by exchanging correspondence and documents and considering appropriate dispute resolution (subject to repealing legislation - see note below).

Part 4.1

Certifications to be filed with the Court include:

• A party has read and understood the overarching obligations.
• The legal practitioner certifies that each allegation in the pleading has a proper basis.
• Pre-litigation requirements have been complied with (subject to repealing legislation - see note below).

Part 4.2
Sets out judicial powers of case management to conduct proceeding in accordance with the overarching purpose. Examples of powers include giving directions, identifying issues at an early stage, deciding the order in which issues are resolved and which issues require full investigation, encouraging co-operation, settlement and appropriate dispute resolution, controlling the progress of the proceeding (timetables, etc), limiting the time for the hearing (limiting number of witnesses, etc). The part sets out judicial case management powers for pre-trial and trial procedures.


Part 4.3
Expands on possible orders a court may give in relation to discovery. Examples of orders include classes of documents, relieving a party from the obligation to provide discovery, limiting discovery, staged discovery, inspection. The part entitles a party to cross examine a deponent of an affidavit of documents.


Part 4.4
Summary judgment test loosened: a party may apply for summary judgment on the ground that a defendant’s defence/plaintiff’s claim or part of that defence/claim has no real prospect of success.


Chapter 5
Court may make an order referring a civil proceeding to appropriate dispute resolution, which may include: mediation, early neutral evaluation, judicial resolution conference, settlement conference, special referee, expert determination, conciliation and arbitration.  The referral may be made without the consent of the parties, except for referrals to arbitration, special referee, expert determination or any other form of appropriate dispute resolution which results in a binding outcome.

Importantly, a bill has been introduced to repeal the mandatory pre-litigation requirements which commence as of 1 July 2011. This is the Civil Procedure and Legal Profession Amendment Bill 2011 (Vic). The Commercial Court has a good summary of the bill and a link to the explanatory memorandum here.