The partners and lawyers at Lewenberg & Lewenberg have vast knowledge and experience in every step of the litigation process.

Civil litigation is an expansive area of the law covering all litigious legal disputes ranging from contractual disputes, building disputes, breach of statute (including the Trade Practices Act), common law and statutory negligence to personal injury claims.

Our firm specialises in all areas of civil litigation and our partners and lawyers regularly instruct and appear in the following jurisdictions:

• The Victorian Civil and Administrative Tribunal (“VCAT”);
• The Magistrates Court of Victoria;
• The County Court of Victoria;
• The Supreme Court of Victoria;
• The Supreme Court of Appeal;
• The Federal Court of Australia;
• The Federal Magistrates Court of Australia; and
• The High Court of Australia.

The Civil Procedure Act 2010 (“the Act”)

On 1 January 2011, the Civil Procedure Act 2010 came into effect. The Act governs the conduct of proceedings issued post 1 January 2011 in the Magistrates Court, County Court and Supreme Court.

The purposes of the Act are set out in Section 1. One of the most pertinent purposes is: “to provide for an overarching purpose in relation to the conduct of civil proceedings to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.”

Sections 16 to 26 of the Act contain the “overarching obligations” which must be read, understood and certified by all parties to litigation prior to the issue of any proceeding and at certain stages of the litigation including when amended pleadings are filed and when a defence is filed.

16 – Paramount duty

Each person to whom the overarching obligations apply has a paramount duty to the court to further the administration of justice in relation to any civil proceeding in which that person is involved, including, but not limited to —

• (a) any interlocutory application or interlocutory proceeding;
• (b) any appeal from an order or a judgment in a civil proceeding;
• (c) any appropriate dispute resolution undertaken in relation to a civil proceeding.
  
  

17 – Overarching obligation to act honestly

A person to whom the overarching obligations apply must act honestly at all times in relation to a civil proceeding.

18 – Overarching obligation–requirement of proper basis

A person to whom the overarching obligations apply must not make any claim or make a response to any claim in a civil proceeding that —

• (a) is frivolous; or
• (b) is vexatious; or
• (c) is an abuse of process; or
• (d) does not, on the factual and legal material available to the person at the time of making the claim or responding to the claim, as the case requires, have a proper basis.

19 – Overarching obligation to only take steps to resolve or determine dispute

For the purpose of avoiding undue delay and expense, a person to whom the overarching obligations apply must not take any step in connection with any claim or response to any claim in a civil proceeding unless the person reasonably believes that the step is necessary to facilitate the resolution or determination of the proceeding.

20 – Overarching obligation to cooperate in the conduct of civil proceeding

A person to whom the overarching obligations apply must cooperate with the parties to a civil proceeding and the court in connection with the conduct of that proceeding.

21 – Overarching obligation not to mislead or deceive

A person to whom the overarching obligations apply must not, in respect of a civil proceeding, engage in conduct which is —

• (a) misleading or deceptive; or
• (b) likely to mislead or deceive.

22 – Overarching obligation to use reasonable endeavours to resolve dispute

A person to whom the overarching obligations apply must use reasonable endeavours to resolve a dispute by agreement between the persons in dispute, including, if appropriate, by appropriate dispute resolution,
unless —

• (a) it is not in the interests of justice to do so; or
• (b) the dispute is of such a nature that only judicial determination is appropriate.
  
  

Example
A proceeding where a civil penalty is sought may be of such a nature that only judicial determination is appropriate.

23 – Overarching obligation to narrow the issues in dispute

If a person to whom the overarching obligations apply cannot resolve a dispute wholly by agreement, the person must use reasonable endeavours to —

• (a) resolve by agreement any issues in dispute which can be resolved in that way; and
• (b) narrow the scope of the remaining issues in dispute —
  
  

unless —

• (c) it is not in the interests of justice to do so; or
• (d) the dispute is of such a nature that only judicial determination is appropriate.

24 – Overarching obligation to ensure costs are reasonable and proportionate

A person to whom the overarching obligations apply must use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate to —

• (a) the complexity or importance of the issues in dispute; and
• (b) the amount in dispute.

25 – Overarching obligation to minimise delay

For the purpose of ensuring the prompt conduct of a civil proceeding, a person to whom the overarching obligations apply must use reasonable endeavours in connection with the civil proceeding to —

• (a) act promptly; and
• (b) minimise delay.
  
  

26 – Overarching obligation to disclose existence of documents

• (1) Subject to subsection (3), a person to whom the overarching obligations apply must disclose to each party the existence of all documents that are, or have been, in that person’s possession, custody or control —
  
  • (a) of which the person is aware; and
  • (b) which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.
• (2) Disclosure under subsection (1) must occur at —
  
  • (a) the earliest reasonable time after the person becomes aware of the existence of the document; or
  • (b) such other time as a court may direct.
• (3) Subsection (1) does not apply to any document which is protected from disclosure —
  
  • (a) on the grounds of privilege which has not been expressly or impliedly waived; or
  • (b) under any Act (including any Commonwealth Act) or other law.
• (4) The overarching obligation imposed by this section —
  
  • (a) is an ongoing obligation for the duration of the civil proceeding; and
  • (b) does not limit or affect a party’s obligations in relation to discovery.

The Act contains a number of other Rules regarding the conduct of civil litigation in Victoria. All practitioners and parties to the litigation are expected to be familiar with the provisions of the Act.

Pre-litigation steps and alternative dispute resolution

Prior to proceedings being launched, it is important to engage in pre-litigation steps in an attempt to resolve the dispute with the other party to avoid the excessive costs, stress, delay and uncertainty of the litigation process.

At Lewenberg & Lewenberg, we strongly encourage parties to attempt to resolve their dispute at a “round table conference” prior to a party launching proceedings. We also communicate with the other side prior to proceedings being issued by sending a formal “letter of demand” setting out the matters in dispute and the intention to issue proceedings if the other side does not remedy their default by a specified deadline.

Issuing proceedings and jurisdiction

If the parties are unable to resolve their dispute then as a last resort, proceedings may have to be issued.

The monetary value of your claim (or in some instances a statutory requirement to issue in a certain jurisdiction) will dictate which Court to issue proceedings in. For example:

• A debt claim / liquidated damages claim under the sum of $100,000 – Magistrates Court of Victoria
• A claim arising out of a domestic building dispute – VCAT
• A claim arising out of the Fair Trading Act 1999 – VCAT
• A debt claim / liquidated damages claim over $100,000 – County Court of Victoria or the Supreme Court of Victoria
  
  

Pleadings, discovery, mediation and trial

As a general rule, once proceedings are issued (by the filing of a statement of claim / complaint / particulars of claim), then the following steps will occur in the litigation process:

• Exchange of pleadings (i.e. statement of claim, defence, reply, counterclaim)
• Discovery (disclosure of documents by both sides to litigation)
• Mediation (a compulsory step in the litigation process. The majority of matters do settle at mediation and we strongly encourage parties to do so in view of the escalating costs of the litigation process)
• Trial (in the event that the matter fails to settle at mediation, the matter will be listed for trial before a Member / Magistrate / Judge at which time each side will call their respective witnesses and attempt to prove their case / disprove the case made against them)

As well as the above steps, a number of interlocutory or “interim” hearings will occur in a proceeding. Some of the hearings will take place administratively and without the need for the parties to appear before the Court.

The partners and lawyers at Lewenberg & Lewenberg have vast knowledge and experience in every step of the litigation process. We routinely brief counsel to assist in the preparation of a case and to appear at certain contested hearings and at the ultimate trial of the matter. We work in conjunction with counsel to ensure that you case is run as efficiently and cost effective as possible.