CPA - Overarching Purpose and Obligations

Question 1

16 The paramount duty

Answer 1

The paramount duty is a duty to the court to further the administration of justice.

Question 2

17 Overarching obligation to act honestly

Answer 2

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

Question 3

18 Overarching obligation—requirement of proper basis

Answer 3

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:

• is frivolous; or
• is vexatious; or
• is an abuse of process; or
• 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.

Question 4

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

Answer 4

For the purpose of avoiding undue delay and expense, a person to whom the OOs 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.

Question 5

20 Overarching obligation to cooperate in the conduct of civil proceeding

Answer 5

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.

Question 6

21 Overarching obligation not to mislead or deceive

Answer 6

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

• misleading or deceptive; or
• LIKELY to mislead or deceive.

Question 7

22 Overarching obligation to use reasonable endeavours to resolve dispute

Answer 7

A person to whom the OOs apply must use reasonable endeavours to resolve a dispute by agreement - including, if appropriate, by ADR - UNLESS:

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

Question 8

23 Overarching obligation to narrow the issues in dispute

Answer 8

IF a person to whom the OOs apply cannot resolve a dispute wholly by agreement, the person must use reasonable endeavours to:

• resolve by agreement any issues in dispute which CAN be resolved in that way; AND
• NARROW the scope of the remaining issues in dispute—

UNLESS:

o it is not in the interests of justice to do so; or

o the dispute is of such a nature that only judicial determination is appropriate.

Question 9

24 Overarching obligation to ensure costs are reasonable and proportionate

Answer 9

A person to whom the OOS 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—

• the complexity or importance of the issues in dispute; and
• the amount in dispute.

Question 10

25 Overarching obligation to act promptly and minimise delay

Answer 10

For the purpose of ensuring the prompt conduct of a civil proceeding, a person to whom the OOs apply must use reasonable endeavours in connection with the civil proceeding to act promptly; and minimise delay.

Question 11

26 Overarching obligation to disclose existence of documents

Answer 11

Subject to ss (3), a person to whom the OOs apply must disclose to each party the existence of all documents that are, or have been, in that person’s possession, custody or control:

• of which the person is aware; and
• which the person considers, or ought reasonably consider, are CRITICAL TO THE RESOLUTION OF THE DISPUTE.

This OO does not apply to any document which is protected from disclosure—

• on the grounds of privilege (which has not been waived); or
• under any Act or other law.

The OO to disclose the existence of documents is an ONGOING OBLIGATION for the duration of the civil proceeding. It does not limit or affect a party’s obligations in relation to discovery.

Question 12

27 Protection and use of information and documents disclosed under OO in s 26

Answer 12

A person who receives any information or documents provided by another person involved in the civil proceeding as a result of disclosure in compliance with OO 26 is subject to an obligation not to use the information or documents, or permit the information or documents to be used, for a purpose other than in connection with the civil proceeding.
Contravention of this obligation to the Court constitutes contempt of court.

Question 13

28 Court may take contravention of overarching obligations into account

Answer 13

In exercising ANY power in relation to a civil proceeding, a court may take into account any contravention of the OOs, INCLUDING exercising discretion as to COSTS.

Question 14

29 Court may make certain orders

Answer 14

If a court is satisfied on the BoP that there has been a BREACH OF AN OO a court may make ANY ORDER it considers appropriate in the interests of justice. This includes:

• an order that a person PAY THE COSTS and expenses arising out of a contravention
• an order that legal costs be payable and enforceable IMMEDIATELY
• an order that a person pay compensation for financial loss that was materially contributed to by a contravention
• an order that a person take steps to REMEDY A CONTRAVENTION
• an order that a person NOT be permitted to take certain steps in the proceeding
• any other order the court considers in the interests of a person prejudicially affected by the contravention.