How do the Overarching Obligations Apply to Lawyers in Victorian Courts?

Lawyers and the Overarching Obligations

The Overarching Obligations regime has a particular application to legal practitioners in Victorian Courts.

3 points should be noted:

1️⃣ The Overarching Obligations do not override any duty or obligation of a legal practitioner to a client to the extent that the overarching obligations can operate consistently (s13(1));

2️⃣ A legal practitioner or law practice MUST not cause a client to contravene the overarching obligations (s14);

3️⃣ Nothing in the Civil Procedure Act 2010 overrides any duty or obligation of a legal practitioner to the court whether arising under the common law, by statute, or otherwise (s15).

Further reading: FAQ ➲ How do the Overarching Obligations Apply to Lawyers in Victorian Courts?

One of the purposes of the Overarching Obligations is to ensure that a party’s rights are not lost due to the inattention or lack of diligence of the opposing party.

As such, a legal practitioner’s failure to meet the Overarching Obligations may justify the imposition of a costs order against that practitioner on a higher scale than the standard basis (Redline Towing & Salvage Pty Ltd v The Convenor of Medical Panels (No 2) [2012] VSC 483 at [6]).

In Stagliano (as administrator of the Estate of Manlio, dec'd) v Scerri [2016] VSC 130, McDonald J at [18] said:

Any practitioner representing a client in proceedings in the Supreme Court of Victoria where the legal costs are disproportionate to the quantum of the claim should expect their conduct to come under very close scrutiny.

The parties and their legal representatives will be held to account.

In Stagliano (as administrator of the Estate of Manlio, dec'd) v Scerri, McDonald J was ultimately not satisfied that the defendant’s counsel had breached the Overarching Obligations.

However, the same material relevant to the suspected breach provided the basis for McDonald J to refer the defendant’s counsel to the Legal Services Commission for suspected unsatisfactory profession conduct (at [78]).

A party is not automatically responsible for his or her lawyer breaching an Overarching Obligation. It is only if the party is somehow involved in the breach, such as by giving instructions which are contrary to the Overarching Obligations, that the party also becomes responsible for the breach.

This means that, where a lawyer commits a breach of the Overarching Obligations without instructions, a remedy under s.29 should only be directed at the lawyer (Giles v Jeffrey [2016] VSCA 314 at [110]-[113]).

Source:

This FAQ is extracted from the Civil Procedure Bench Book published by the Judicial College of Victoria.

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.