Is the behaviour of civil litigants regulated in Victorian Courts?

The Civil Procedure Act 2010 (Vic) (the CP Act) imposes behavioural obligations on all litigants in civil proceedings. The Model Litigant Guidelines concurrently impose additional expectations on all State entities and officer holders on how the State should behave before, during and after all civil litigation to which it is a party. Breaches of the CP Act and Model Litigant Guidelines may lead to sanctions being imposed by the Courts.

Is the behaviour of litigants involved in civil litigation in Victorian courts regulated?

Yes. The CP Act underpins the conduct of civil litigation and imposes requirements on the behaviour of those involved in all civil proceedings in the State of Victoria.

To whom do these requirements apply?

The obligations can apply to:

• any person who is a party to the proceeding
• any legal practitioner or representative acting for on behalf of a party
• any law practice acting for on behalf of a party
• any person who provides financial or other assistance in so far as that person exercises any direct or indirect control or influence over the conduct of the civil proceeding, or of a party in respect of that civil proceeding, including but not limited to, an insurer or a provider of funding or financial support, including any litigation funder
• any expert witness (with the exception of some obligations)

They do not apply however to any non-expert witness participating in a proceeding.

Why is the behaviour of litigants involved in civil litigation in Victorian courts regulated?

To assist with the facilitation of just, efficient, timely and cost-effective resolution of the real issues in dispute in a civil proceeding. This is the "overarching purpose" of the CP Act.

How is the behaviour of litigants involved in civil litigation in Victorian courts regulated?

By imposing a paramount duty to the court on each person to whom the overarching obligations apply. This involves furthering the administration of justice in relation to any civil proceeding in which that person is involved.

By imposing overarching obligations (the following obligations, called the "Overarching Obligations", are imposed on all parties):

• To act honestly at all times in relation to a proceeding.
• To have a proper basis for either a claim or response to a claim, which is not frivolous, vexatious, an abuse of process, or does not have proper basis based on the factual and legal material available at the time the claim is made.
• To only take steps to resolve or determine the dispute, which necessarily means avoiding any undue delay and expense and not taking any steps in connection with a proceeding unless it is reasonably believed that doing so will be necessary to facilitate the resolution of the proceeding.
• To cooperate in the conduct of a civil proceeding specifically in relation to other parties to a proceeding and the court.
• To not mislead or deceive the court or other parties, or to even engage in such conduct that is likely to mislead or deceive them.
• To use reasonable endeavours to resolve a dispute, except if it is not in the interests of justice to do so, or if nature of the dispute is such that only the court's determination of the matter is appropriate.
• To narrow the issues in dispute by resolving by agreement any issues in dispute which can be resolved by agreement and to otherwise narrow the scope of the remaining issues unless it would be unjust to do so or the issues require the court's determination of the issues.
• To ensure costs are reasonable and proportionately incurred with regards to the complexity or importance of the issues in dispute and the amount in dispute in the proceeding.
• To minimise delay by acting promptly in any conduct relating to a proceeding.
• To disclose existence of all documents that are or have been in a party's possession, custody or control, while they were aware of them and the person ought to have reasonably considered to be critical to the resolution of the dispute. This must happen at the earliest possible time. This does not extend to documents that are protected from disclosure (e.g. based on the grounds of solicitor/client privilege or Public Interest Immunity).

Are there any certification requirements relating to the way parties conduct a matter?

Yes, there are the following 2 certification requirements (and the certificates must accompany the first substantive document filed by the party in the proceeding):

Firstly: each party must personally certify that it has read and understood the overarching obligations and the paramount duty.

Secondly: each party's legal practitioner must certify that each allegation of fact, denial and non-admission in the party's first substantive document has a proper basis.

Failure to comply with the certification requirements may result in adverse orders by the court.

How do government parties 'personally' certify that they understand their obligations?

A certificate must be "personally" signed by a party. This can lead to some ambiguity where the party is the State of Victoria, complexity where the party is a public entity and administrative difficulty where the party is a Minister or a Secretary.

Where the State is a party, VGSO's practice is that the certificate should be signed either by the Secretary or Deputy Secretary (or equivalent) of the relevant Department or other 'bodies' (like Victoria Police) whose conduct is the subject of the litigation. This ensures both that someone with appropriate authority signs on behalf of the State and that the relevant obligations are acknowledged at a sufficient level within the body.

However, where the party has given the overarching obligation certification in another civil proceeding in the same court within, generally, the last 2 years, their legal practitioner may provide the certificate on their behalf. However:

• It must have been in the same court.
• A government party might have a number of different lawyers acting for it in different proceedings: it is therefore critical to keep central records of when a certificate has been personally signed.
• New certificates may need to be signed where the identity of a Minister or Secretary changes, even if 2 years have not passed.

When do the Overarching Obligations apply?

They apply to the conduct of the parties throughout the litigation and can include, and are not limited to, any interlocutory application or interlocutory proceeding; any appeal from an order or a judgment in a civil proceeding; and any dispute resolution undertaken in relation to a civil proceeding.

They do not apply to claims made prior to the commencement of litigation.

What are the possible consequences for contravening the Overarching Obligations?

A contravention of the overarching obligations may be taken into account by a court in exercising any of its powers in relation to civil litigation consistent with the rules of the court, including its discretion in making orders to award costs. This can include an order:

• for a party to pay some or all of the legal costs or other costs and expenses of a person that arise because of their contravention of the obligations.
• for a party to compensate a person for any financial loss or other loss which was contributed to by the contravention of the obligations, and can include penalty interest;
• to take steps which are reasonably necessary to remedy any contravention of the overarching obligations;
• to not permit a party to take steps in a civil proceeding;
• to set any measure that the court considers to be in the interests of any person who was prejudicially affected by the contravention of the obligations.

The making of such order can only be made prior to the finalisation of the civil proceeding, and not after.

Are any additional requirements imposed on government departments/ bodies/ agencies when conducting litigation?

Yes. It has long been held at common law, that all Australian governments have a common law responsibility to act as model litigants. Originally issued in 2001 and then revised in 2011, Victoria's Model Litigant Guidelines apply to government departments and bodies, their agencies and office holders of the State. They set standards for how the State should behave as a party to legal proceedings.

The Guidelines can be found on the website of the Department of Justice and Community Safety at Victoria's Model Litigant Guidelines.

When do the Model Litigant Guidelines apply?

Before, during and after proceedings. They apply not just to civil litigation but also to all other forms of legal proceedings including Royal Commissions, tribunals, inquiries, and arbitrations.

What is required by the Guidelines?

The focus of the Guidelines is for State litigants to:

• act honestly, consistently and fairly in the handling of claims and litigation
• deal with claims promptly and do not cause unnecessary delay
• make early assessments of the government’s prospects of success and potential liability
• pay legitimate claims without litigation
• where not possible to avoid litigation, minimise the costs of litigation
• not take advantage of a claimant who lacks resources
• not rely on a merely technical defence against a claim (unless the State/agency's interests would be prejudiced by the failure to comply with a particular requirement)
• do not pursue appeals unless the State or agency believes that it has reasonable prospects for success or the appeal is otherwise justified in the public interest
• consider apologising if the State/agency (or its representatives) have acted wrongfully or improperly
• consider alternative dispute resolution options - and, when participating in ADR or settlement negotiations, ensure (as far as practicable) that the State or agency has authority to settle the matter and to participate fully and effectively

However, while the Guidelines are intended to motivate State litigants to conduct themselves fairly and to the highest standards of practice, they are not designed to prevent a government body from “acting firmly and properly to protect their interests" or from taking "all legitimate steps" to pursue or defend claims.

How do the Guidelines interact with the Paramount Duty and Overarching Obligations?

The Guidelines are consistent with, and compliment, the Paramount Duty and the Overarching Obligations prescribed by the CP Act. However, they impose further requirements that are not reflected in the CP Act's overarching obligations, including those matters listed above.

What are the consequences if the Guidelines are breached?

There is no direct mechanism to enforce compliance with the Guidelines. However, something that breaches the Guidelines may also be considered to constitute a breach of the overarching obligations in the CP Act and this may result in cost orders being made against the State. There may also be other consequences such as judicial criticism and significant reputational harm to a government department body or agency (or individual) involved in a breach.

Under the Legal Services Panel contract, service providers must ensure that they comply with the Model Litigant Guidelines in relation to the provision of Services under a Legal Services Contract. Further, any failure to comply with the Guidelines by public sector employees may be considered to be a breach of the Code of Conduct for Victorian Public Sector Employees public sector which may, in serious cases, constitute misconduct.

Contact our team

Sara Dennis
Assistant Victorian Government Solicitor, Litigation and Dispute Resolution
Phone: 8684 0419
Email: sara.dennis@vgso.vic.gov.au

Alison O'Brien
Assistant Victorian Government Solicitor, Public Law and Planning
Phone: 8684 0416
Email: alison.o'brien@vgso.vic.gov.au

Carol Orfanos
Assistant Victorian Government Solicitor, Police Advisory
Phone: 9247 6797
Email: carol.orfanos@vgso.vic.gov.au

Frances Anderson
Assistant Victorian Government Solicitor, Workplace Relations and Occupational Safety
Phone: 8684 0933
Email: frances.anderson@vgso.vic.gov.au

The information is of a general nature only and does not convey or contain legal advice. If you would like to obtain legal advice in relation to any matter discussed on this page, please contact us.