County Court of Victoria [Form 4A] Certificate of Overarching Obligations

When is a County Court of Victoria [Form  4A] Certificate of Overarching Obligations used?

Part 4.1 of the Civil Procedure Act 2010 requires 2 Certificates to be filed on commencing a civil proceeding:

1️⃣ This [Form 4A] Overarching Obligations certificate (to be made by parties); and

2️⃣ A Proper Basis Certificate (to be made by lawyers).

Document Overview:

✅ Suitable for the County Court of Victoria under the Civil Procedure Procedure Act 2010 (Vic);

✅ Recommended only for use by legal professionals +/or at a minimum with review by a legal professional prior to filing with the Court;

Embedded Lawyer-Logic™ dynamically adapts to your answers to provide valuable guidance and help you avoid errors.

When is Certification of Overarching Obligations required to be filed?

Parties MUST certify that they have read and understood the Overarching Obligations and the Paramount Duty.
s.41(1) of the Civil Procedure Act 2010 (Vic).

A Certification MUST be filed with the first Substantive Document in the civil proceeding filed by each party.

s. 41(2) of the Civil Procedure Act 2010 (Vic).

Further reading: FAQ ➲ What are the Certification Requirements in Victorian Courts?

When do the Overarching Obligations Apply?

The Overarching Obligations apply in respect of the conduct of any part of a civil proceeding of a court (Civil Procedure Act 2010 s11).

⚖️ This includes interlocutory applications, appeals, and any appropriate dispute resolution undertaken in relation to a civil proceeding.

What are the Overarching Obligations?

There is one Paramount Duty and a further 10 Overarching Obligations.

The Paramount Duty is a duty to the court to further the administration of justice in relation to any civil proceeding (s16).

One manifestation of this Paramount Duty is the duty of lawyers to accurately inform the court of the parameters of the case and the factual and legal issues for determination.

Inaccurate or misleading opening submissions, or submissions which do not have a proper factual or legal basis can impede the administration of justice by leading to a waste of court time and resources (Stagliano (as administrator of the Estate of Manlio, dec'd) v Scerri [2016] VSC 130 at [25]).

The Overarching Obligations are to:

1️⃣ Act honestly (s17)

2️⃣ Only make claims that have a proper basis (s18)

3️⃣ Only take steps to resolve or determine the dispute (s19)

4️⃣ Cooperate in the conduct of the civil proceeding (s20)

5️⃣ Not mislead or deceive (s21)

6️⃣ Use reasonable endeavours to resolve the dispute (s22)

7️⃣ Narrow the issues in dispute (s23)

8️⃣ Ensure costs are reasonable and proportionate (s24)

9️⃣ Minimise delay (s25)

🔟 Disclose the existence of documents critical to the dispute (s26).

Further reading: FAQ ➲ What are the Overarching Obligations in Victorian Courts and Who Do They Apply To?

Witnesses

The Overarching Obligations do not apply to witnesses other than expert witnesses (s10(2)).

In Giles v Jeffrey [2016] VSCA 314, the Court of Appeal tentatively held that, as a consequence, the Overarching Obligations do not apply in relation to a party giving evidence as a witness. Rather, a party giving evidence as a witness has two capacities and the Overarching Obligations only apply to the party’s capacity as a party and not as a witness.

However, the Court noted that it was not necessary to form a concluded view on this issue because, even if the Overarching Obligations did apply to a party acting as a witness, a breach had not occurred (at [91]-[109]).

Expert Witnesses

However, it should be noted that not all of the Overarching Obligations apply to expert witnesses.

The following Overarching Obligations do NOT apply to expert witnesses:

❌ The obligation to only make claims that have a proper basis (s18);

❌ The obligation to only take steps to resolve or determine the dispute (s19);

❌ The obligation to use reasonable endeavours to resolve the dispute (s22);

❌ The obligation to disclose the existence of documents critical to the dispute (s26).

Company Directors

The reference to a ‘person who provides assistance to a party and in doing so exercises control or influence over the proceeding’ may include a company director.

In Commissioner for State Revenue Victoria v Carmrer [2014] VSC 571, the plaintiff alleged that the sole director of the defendant companies had provided financial assistance to those companies. In the absence of evidence as to how the companies’ cases were financed, Efthim AsJ noted that there was a strong inference that the sole director, as the companies’ ‘guiding mind’, was funding the defendant companies.

In those circumstances, the director bore the evidential burden of showing no financial assistance was provided.

In the case, the director failed to discharge that burden.

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?

Contravention of the Overarching Obligations: What Powers do Victorian Courts Have?

A Victorian Court may take into account a contravention of the Overarching Obligations in exercising any power in relation to a civil proceeding (Civil Procedure Act 2010 s28).

If the Court is satisfied on the balance of probabilities that there has been a breach the Court may make any order it considers appropriate in the interests of justice.

This includes:

1️⃣ An order that a person pay the costs and expenses arising out of a contravention;

2️⃣ An order that legal costs be payable immediately and enforceable immediately;

3️⃣ An order that a person pay compensation for financial loss that was materially contributed to by a contravention;

4️⃣ An order that a person take steps to remedy a contravention;

5️⃣ An order that a person not be permitted to take certain steps in the proceeding;

6️⃣ Any other order the court considers to be in the interests of a person prejudicially affected by the contravention (Civil Procedure Act 2010 s29(1)).

Further reading: FAQ ➲ Contravention of the Overarching Obligations: What Powers Do Victorian Courts Have?

Exceptions to Certification Requirements

In some instances, a statute or insurance contract means that a party has no meaningful control over the conduct of a civil proceeding.

In this event, the person in control of the proceeding as a result of the operation of the statute or insurance contract may make the Overarching Obligations certification (s41(4)).

A party who is legally represented is not required to comply with the Overarching Obligations certification requirements if they are currently, or have been, involved in more than one civil proceeding and have personally made the Overarching Obligations certification in other civil proceedings in the same jurisdiction within two years prior to the current proceeding.

This period may be altered by court rules (41(5)(a)).

The party’s legal practitioner MUST certify that this is the case (s41(5)(b)).

Certification Requirements - Court Rules and Practice Directions

The content and form of the Certification Requirements are set out in the rules of the higher courts and, for the Magistrates’ Court, in a Practice Direction.

These are:

• Supreme Court (General Civil Procedure) Rules 2005 rr4.09-4.11 and Forms 4A, 4B and 4C;
• County Court Civil Procedure Rules 2008 rr4.09-4.12 and Forms 4A, 4B and 4C;
• Magistrates’ Court of Victoria Practice Direction No. 5 of 2010 – Civil Procedure Act 2010.

Legal Advice Recommended

➲ We recommend you contact our legal team to obtain legal advice and guidance.

Source:

The above information was extracted from the Civil Procedure Bench Book published by the Judicial College of Victoria.