The Civil Procedure Act 2010 (Vic) may have been seen by the public as just another piece of court legislation.
However, this legislation has been revolutionary in that it has placed what are called "overarching obligations" upon parties and their solicitors who either initiate or defend proceedings to ensure that proceedings are brought on a meritorious basis, that every reasonable attempt is made to ensure that proceedings are dealt with efficiently, and that any prospects of settlement of litigation are actively pursued by all parties.
This is necessary in a world where increasing pressures and costs of conducting litigation and strain on the court system are leading to delays in completing litigation.
A high watermark was reached in the case of Yarra Australia Pty LTD v Oswal (2013) in the Victorian Supreme Court appeal.
The case involved an appeal against a failure by applicants to obtain a security for costs order.
Such an order is generally sought where a party has strong grounds to believe that if his action was successful the other party would not be in a financial position to meet the costs of any litigation, which in this case was for approximately $141,000.
All of the applicants were represented by major Melbourne law firms and at a hearing represented not only by the solicitors, but by three senior counsel and three junior counsel barristers.
The court not only found that the appeal was unsuccessful, butn sought reasons from the parties as to whether anyone had breached their overarching obligations in the conduct of the leave to appeal application.
The court, in essence, sought submissions as to whether there was "overkill' by the appplicants in the representation of so many senior barristers and, secondly, whether the material that was tabled for the hearing was unnecessary or excessive. While the court determined that there was not overkill in regards to the number and seniority of the barristers, it held that the notices of appeal and appeal books. which exceeded some 2700 pages and were contained in six large folders. were excessive, repetitious and contained a significant level of duplicated material.
Accordingly, the court held not only did the applicants have to pay the respondent's costs, but that the applicants solicitors had to indemnify each of their clients for half of the cost incurred and furthermore that each solicitor could not recover from their own clients 50 per cent of the cost relating to the preparation of the appeal books and related costs.
This should be a salutary reminder to all readers that simply issuing and pursuing litigation for reasons other than pursuing justice may potentially result in significant adverse financial consequences if the courts do not consider that the litigation is based on reasonable grounds and conducted in circumstances where other alternative remedies are thoroughly pursued.
Disclaimer: Readers should seek independent legal advice as this article is for information purposes only. Matt Barkla is an associate at Beck Legal, Bendigo.