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The overriding purpose in civil matters

More often than not, parties in litigation often overlook a key consideration of the manner in which they are to conduct themselves in disputes before a Court.

Section 56 of the Civil Procedure Act 2005 provides “the overriding purpose of this Act and the rules of the Court, in their application to civil proceedings, is to facilitate the just, quick, and cheap resolution of the real issues in the proceedings…”

Parties ought always act in a manner that facilitates the efficient use of judicial resources and to ensure that all proceedings that come before the Court are disposed in a timely and efficient manner by the respective parties.

In recent times, the Courts have been extremely reluctant to extend leniency to parties that disregard the rules of effective case management, and are quick to sanction the parties in default. For instance:

  • Aon Risk Services Australia Limited v Australian National University
    [2009] HCA 27, Australian National University (ANU) sought leave to amend its Statement of Claim during trial. The High Court held that it would have been an injustice to allow ANU to proceed with the proposed amendments, as it would leave Aon with little time to raise an arguable defence against it.

          In particular, the Court formed the view that, amongst other things:

“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 to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs… The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment…”

  • In Yara Australia Pty Ltd v Oswal [2013] VSCA 337, the Court criticised parties in an application before the Court for filing excessive material (in excess of 6 binders) which was ultimately deemed to be irrelevant. The Court issued a costs Order against the applicant’s solicitors.
  • In Macquarie International Health Clinic Pty Ltd v Sydney Local Health District [2013] NSWSC 970, the Court made a direction as to when expert reports must be filed and served. The Court noted that experts could be subject to costs orders where a party suffers additional costs because of the expert’s non-compliance, so long as it can be attributed to the fault of the expert, rather than that of their instructors.

What does this mean?

While it may seem harsh, the penalties imposed by the Courts are a reminder of the obligations to the Court to conduct themselves efficiently and facilitate “the just, quick and cheap resolution of the real issues in the proceedings…”

When commencing personal injury proceedings, there are a few things clients should try to keep in mind:

  • A solicitor is obliged to act in the most efficient possible way to resolve the real issues in your claim. The court will be often be proactive in ensuring that this is the case.
  • You should always ask your solicitor if you can’t understand why they are advocating a certain course of action. It is better to know why your solicitor is taking a particular course so you aren’t left in the dark.
  • Litigation can often be a stressful and emotional journey. Always remember to be candid with your lawyer, stay focused on reaching a solution, and most importantly, try to relax.

If you or someone you care about has been injured in an accident, you may be entitled to compensation. To arrange your free, no-obligation assessment of your claim, please call Stacks Goudkamp on 1800 25 1800, or alternatively make an online enquiry.

Written by Vladana Vracar.

Vladana Vracar is a Solicitor in Julie Mahony’s Practice Group. Vladana works with Julie on a variety of compensation claims including trips slips and falls, accidents on the road and medical negligence claims.

2017-06-26T14:55:42+00:00 February 16th, 2017|