CPA - Preliminary

Question 1

7(1) The overarching purpose

Answer 1

The overarching purpose of civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.

Question 2

8(1) When do courts have to consider the overarching purpose?

Answer 2

Judicial officers must give effect to the overarching purpose in the exercise or interpretation of any of their powers.

Question 3

9 Objects of Court in furthering the overarching purpose

Answer 3

The court must consider a number of objects in furthering the overarching purpose:

(1) the just determination of the civil proceeding

(2) the public interest in early settlement of disputes by agreement

(3) the efficient conduct of the business of the court

(4) the efficient use of judicial and administrative resources

(5) minimising delay between commencement and listing for trial

(6) timely determination of the civil proceeding

(7) dealing with a civil proceeding proportionately to its complexity and cost

Question 4

10 Application of overarching obligations—participants

Answer 4

The overarching obligations apply to:

• any PERSON who is a party (s10(a))
• any LEGAL PRACTITIONER etc acting for or on behalf of a party (s10(b))
• any LAW PRACTICE acting for or on behalf of a party (s10(c))
• ANY PERSON who provides ASSISTANCE to a party and in doing so ExERCISES CONTROL OR INFLUENCE over the proceeding, such as an INSURER OR LITIGATION FUNDER (s10(d))
• expert witnesses (s10(3)).

HOWEVER, not all of the overarching obligations apply to expert witnesses. The following do not apply:

• 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)

Question 5

11 Application of overarching obligations—civil proceedings

Answer 5

The OOs apply in respect of the conduct of any aspect of a civil proceeding, including:

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

Question 6

12 Overarching obligations prevail over certain other obligations and duties

Answer 6

Subject to the paramount duty, the OOs prevail over any legal obligation, contractual obligation or other obligation which a person to whom the OOs apply may have, to the extent that the obligations are inconsistent.

Question 7

13 Overarching obligations and legal practitioners

Answer 7

The OOs do not override any duty or obligation of a legal practitioner to a client to the extent that the overarching obligations can operate consistently.

Question 8

14 Legal practitioner or law practice not to cause client to contravene OOs

Answer 8

A legal practitioner or law practice must not cause a client to contravene the OOs.

Question 9

15 Legal practitioner’s duty to court not overridden

Answer 9

Nothing in the CPA overrides any duty or obligation of a legal practitioner to the court whether arising under the common law, by statute, or otherwise.