Reflections on recent cases and s 29 of the Civil Procedure Act, 2010 (Vic) (slideshow)

Transcription

1 Australian Centre for Justice Innovation Civil Justice Research Online Timeliness in the Justice System: Ideas and Innovations Reflections on recent cases and s 29 of the Civil Procedure Act, 2010 (Vic) (slideshow) The Honourable Justice John Dixon The Supreme Court of Victoria Follow this and additional works at: Part of the Civil Procedure Commons, and the Courts Commons Recommended Citation The Honourable Justice John Dixon, "Reflections on recent cases and s 29 of the Civil Procedure Act, 2010 (Vic) (slideshow)" (2014). Timeliness in the Justice System: Ideas and Innovations. Paper This Article is brought to you for free and open access by Civil Justice Research Online. It has been accepted for inclusion in Timeliness in the Justice System: Ideas and Innovations by an authorized administrator of Civil Justice Research Online. For more information, please contact alan.shanks@monash.edu.

2 Timeliness in the Justice System Forum Reflections on recent cases and s 29 of the Civil Procedure Act, 2010 (Vic) The Hon. Justice John Dixon

3 Overarching Obligations to act honestly at all times in relation to a civil proceeding; to only make claims or responses to claims that have a proper basis; to only take steps to resolve or determine the dispute; to cooperate in the conduct of a civil proceedings; not to engage in conduct that is, or is likely to be, misleading or deceptive; to use reasonable endeavours to resolve the dispute; to narrow the issues in dispute; to ensure costs are reasonable and appropriate; to minimise delay; and to disclose the existence of documents critical to the dispute.

4 29. Court may make certain orders (1) If a court is satisfied that, on the balance of probabilities, a person has contravened any overarching obligation, the court may make any order it considers appropriate in the interests of justice including, but not limited to (a) an order that the person pay some or all of the legal costs or other costs or expenses of any person arising from the contravention of the overarching obligation; (b) an order that the legal costs or other costs or expenses of any person be payable immediately and be enforceable immediately

5 (c) an order that the person compensate any person for any financial loss or other loss which was materially contributed to by the contravention of the overarching obligation, including (i) an order for penalty interest in accordance with the penalty interest rate in respect of any delay in the payment of an amount claimed in the civil proceeding; or (ii) an order for no interest or reduced interest; (d) an order that the person take any steps specified in the order which are reasonably necessary to remedy any contravention of the overarching obligations by the person; (e) an order that the person not be permitted to take specified steps in the civil proceeding; (f) any other order that the court considers to be in the interests of any person who has been prejudicially affected by the contravention of the overarching obligations.

6 Questions asked by the Timeliness Project 1. Do obligations assist in the timely resolution of disputes? Is more or less specificity required? 2. What else can be done to support timely behaviour within the justice system?

7 AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 The role of a judge is to utilise case management to do justice to all litigants, not just the parties to the dispute. It may be necessary, in certain circumstances, to make a decision that may be seen as unjust in relation to one party, in order to do justice to the other parties to the proceeding, as well as to other litigants. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties

8 Expense Reduction Analysts Group Pty Ltd & Ors v Armstrong Strategic Management and Marketing Pty Ltd & Ors [2013] HCA 46. Facts Accidental discovery of documents in relation to which legal privilege was claimed. Upon realising the mistake, the solicitors for the appellants sought return of the documents. The solicitors for the respondents refused. An injunction was sought to restrain the solicitors from utilising the documents and require their return. Complex equitable arguments and arguments relating to waiver and equitable principles were raised on the injunction application

9 The Court, at [58] The direction which the Supreme Court should promptly have made in this case was to permit [the solicitors for the appellants] to amend the Lists of Documents, together with consequential orders for the return of the disks to enable the privileged documents to be deleted. Such a discretion and orders would have obviated the need to resort to the more complex questions concerning the grant of relief in the equitable jurisdiction. It would have served to defuse the dispute and dissuaded the [respondents] from alleging waiver. It accords with the overriding purpose and the dictates of justice.

10 The Court, at [64] The question for a party to civil proceedings and its legal representatives is not just whether there is any real benefit to be gained from creating a dispute about whether a mistake in the course of discovery should be corrected. The CPA imposes a positive duty upon a party and its legal representatives to facilitate the CPA's purposes. Requiring a court to rule upon waiver and the grant of injunctive relief in circumstances such as the present could not be regarded as consistent with that duty.

11 Costs Order The respondents pay the appellants' costs of the Amended Notice of Motion. The respondents pay the appellants' costs of the appeal to the Court of Appeal, the applications for special leave to appeal and to crossappeal and of this appeal.

12 Yara Australia Pty Ltd & Ors v Oswal [2013] VSCA 337 Facts When leave to appeal from security for costs orders was refused, the CoA sought submissions on the question of whether the conduct of the appeal had involved any breach of the overarching obligations. an over-representation by Counsel, and the material produced had been unnecessary and excessive.

13 Orders Breach of s 24 CPA (to ensure costs are reasonable and appropriate) The applicants solicitors were required to indemnify their clients for 50% of the respondents costs incurred as a result of the excessive and unnecessary content of the application books. Recovery of 50% of the costs of the application books from the applicants was disallowed.

14 Comment whether there had been a breach of the overarching obligations is to be determined by an objective evaluation of their conduct having regard to the issues and the amount in dispute in the proceeding. the Court stated that s 29 CPA confers powers to sanction both parties and legal practitioners that are broader than in any other jurisdiction in Australia, [17] which is distinguished from the existing power in r of the Civil Procedure Rules 2005 (Vic). That rule was described as compensatory, rather than punitive. [18] the CPA was intended to influence the culture of litigation by making both parties and practitioners accountable for the just, efficient, timely and cost effective resolution of disputes and, through s 29, to impose sanctions on those who breached this obligation.[20]

15 the provisions of the CPA generally have been under-utilised since its enactment. When no party invites the court to determine whether there has been a breach of the Act, there may be a judicial disinclination to embark upon such an own-motion inquiry for fear that inquiry as to a potential breach may be time consuming and may require the introduction of material that was not before the court as part of the proceeding. Such fears cannot relieve judges of their responsibilities. Such inquiry need not be substantial and may be dealt with in a relatively brief way with succinct reasons.

16 Eaton v ISS Catering Services Pty Ltd [2013] VSCA 361. Facts Refusal on three occasions of trial judge to adjourn trial before jury of a workplace accident upheld on appeal after jury rejects claim Plaintiff failed to comply with procdedural orders for expert reports in a timely way Plaintiff s solicitors, acting on a no win no fee basis, were awaiting the outcome of mediation before obtaining expert evidence for trial to save costs

17 Comment the obvious intent of the directions relating to expert evidence was to further the overarching purpose by facilitating the mediation and a timely trial.[54] Any practice of not obeying court directions to save costs was contrary to the overarching obligations. [55]

18 Hudspeth v Scholastic Cleaning & Consultancy Services Pty Ltd [2014] VSCA 78 An application of the costs rule - R Issues in the case concerned duties of counsel, solicitors and expert witnesses in respect of expert evidence at trial The trial judge instituted an inquiry under s 29 CPA into whether there were breaches of overarching obligations following the trial. That inquiry is ongoing

19 Orders The appeal succeeded because the plaintiff was denied a fair trial by comments to the jury by the second respondent s counsel in final address about the performance by counsel and solicitors of their obligations in respect of expert evidence The proceeding was remitted to the trial judge, implementing the overarching objective of the CPA Appellant s costs of the appeal ordered against second respondent. Plaintiff s trial senior counsel and solicitors ordered to indemnify the second respondent for 40% each of those costs. Further, their own costs and disbursements were disallowed and they were ordered to pay equally any of the appellant s costs and disbursements not otherwise recovered from the second respondent.

20 Lessons The answer to the first part of the first question is Yes, but for obligations to assist in the timely resolution of disputes, enforcement is needed to change litigation culture. That entails consequences that are both compensatory and punitive The process of enforcement by courts has started but there is much more to be developed out of s 29 CPA and it appears likely that s 29 orders can significantly change litigation culture towards ready acceptance of overarching obligations. It remains necessary for the judiciary to more actively engage with both litigants and the profession, to ensure that these objectives are met and to impose sanctions on those who act to undermine the new order

21 The answer to the second part of the first question is I think not. To the second question, I make this comment. There is a relationship between timely performance of obligations and economic interests. Obligations may become selfdischarging when they correspond with relevant interests. Much is being done to modernise dispute resolution procedural law, to make obligations relevant.

22 A parting thought Courts, legislators and policy makers need to be better informed about how economic interests in relationships between litigants and the courts, litigants and their lawyers and between lawyers affect the timely performance of procedural obligations in dispute resolution. How can the players best be motivated to achieve the overarching purpose.