Part 2.3 - The overarching obligations Flashcards
16 Paramount duty (admin of justice - interlocs, appeals, ADR)
To the Court to further the administration of justice re: any proceeding in which that person is involved including (a) interlocutory applications and proceedings, (b) appeals and (c) ADR
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 (no F/V/AOP/no proper basis claims)
Must not make any claim or response to a claim that is: (a) frivolous, (b) vexatious, (c) an abuse of process, (d) doesn’t (on factual and legal material available to the person at the time) have a proper basis.
19 Overarching obligation to only take steps to resolve
or determine dispute
For purpose of avoiding undue delay/expense, person must not take any step in connection with a claim or response unless the person reasonably believes the step is necessary to facilitate the resolution or determination of the proceeding.
20 Overarching obligation to cooperate in the conduct of civil proceeding (with parties and the court)
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
Must not engage in conduct which is (a) misleading or deceptive or (b) is likely to mislead or deceive
22 Overarching obligation to use reasonable
endeavours to resolve dispute (unless not in IOJ, or only trial appropriate)
Including, if appropriate, by ADR unless (a) it is not in the interests of justice to do so or (b) dispute is of such a nature that only judicial determination is appropriate (e.g. where civil penalty is sought)
23 Overarching obligation to narrow the issues in
dispute (resolve ADR/narrow for trial, unless IOJ, only JD appropriate)
If cannot resolve wholly by agreement, must use reasonable endeavours to: (a) resolve any issues in dispute which can be resolved in that way and (b) narrow scope of any remaining issues unless (c) not in the interests of justice to do so or (d) dispute is of such a nature that only judicial determination is appropriate.
24 Overarching obligation to ensure costs reasonable and proportionate (to complexity/importance of issues, amount in dispute)
Use reasonable endeavours to ensure that legal costs and other costs incurred in connection with proceeding are proportionate to (a) complexity and importance of the issues in dispute and (b) the amount in dispute.
25 Overarching obligation to minimise delay (act promptly, minimise delay)
Must use reasonable endeavours in relation to civil proceeding to (a) act promptly and (b) minimise delay.
26 Overarching obligation to disclose existence of
documents (in CPC, critical to dispute, at earliest reasonably time, not if privileged/protected, ongoing obligation, doesnt limit discovery)
(1) Must disclose to each party the existence of any documents in person’s custody, possession 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) (a) disclosure must occur at earliest reasonable time after person becomes aware of document’s existence or (b) such other time as court directs.
(3) (a) Does not apply to documents that are privileged or are (b) protected from disclosure under statute.
(4) (a) This is an ongoing obligation. (b) It does not limit or affect a party’s obligations re: discovery.
27 — Protection and use of information and documents
disclosed under overarching obligation in section 26 (for CP only, breach is contempt)
(1) Subject to an obligation not to use the information/document or permit the “” to be used for a purpose other than in connection with civil proceeding.
(2) This is an obligation to the Court and contravention constitutes contempt of Court.
(3) Can (a) agree in writing to use of docs/ information otherwise protected by this obligation and (b) can be relieved of the obligation with the leave of the Court.
(4) Any info or documents exchanged in compliance with s 26 is required to be discovered and admissible.
(5) Nothing in this section limits any other undertaking to a Court re: info disclosed or discovered in a civil proceeding.
