Since 1 January 2011 it has been a requirement in Victoria that any party to a civil proceeding – such as a WorkCover or TAC lump common law sum claim – sign and file with the Court an Overarching Obligations Certificate (“Certificate”). This covers Magistrates’ Court, County Court and Supreme Court proceedings. The requirement to file a Certificate comes from the Civil Procedure Act 2010.
Despite it being law for a number of years, the Certificate is still resulting in questions from injured people when a case is commenced. Below we summarise and explain what it means for you as an injured person in the Court system.
What is the Certificate for?
The aim of this law is to “facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute.” What does this mean in non-lawyer speak? It means the parties need to get to the heart of what they are fighting about, not waste time and money on issues that won’t help resolve the fight, and to pursue the case in a fair way.
Sections 16 to 26 set out the obligations of a party to litigation, which in summary are to:
- further the administration of justice – this is referred to as the “paramount duty” and is a catchall phrase to cover being a cooperative and sensible party to the proceeding.
- act honestly at all times during the case.
- not make a frivolous or vexatious claim – in simple terms, not start a case over petty things (e.g. you are owed $10 by someone) and not start an unwinnable case just to annoy or frustrate the other party.
- everything done in the proceeding must be aimed at resolving or determining the questions in issue.
- cooperate with other parties and the Court – refusing to meet for mediation or failing to attend a medical assessment arranged by the other party for example.
- mislead or deceive or do anything that is likely to mislead or deceive. Parties under oath are required to tell the truth and are subject to criminal penalties if they do not. Now there is a requirement to not be misleading or deceptive during the case before you give sworn evidence.
- use reasonable endeavours to resolve a dispute by agreement – the prime example of breaching this would be refusing to meet with the other party to mediate the claim. Potentially failing to resolve the claim due to a very minor issue when the major issues have been resolved could fall into this category too.
- narrow the issues in dispute – if the whole case can’t be settled, can the issues that are being fought over be reduced? For example, in a TAC claim where the parties can agree that one driver was negligent and caused the accident, they could limit the case to how much the claim is worth in dollar terms.
- ensure costs are reasonable and proportionate – for example, you might not need a world expert in emergency trauma flown in from the US to assess a simple fractured arm when a suitably qualified local orthopaedic surgeon would do.
- minimise delay and act promptly.
- disclose the existence of documents – hiding documents relevant to a case has always been a big no-no and the Certificate clarifies this even further.
The Court is given broad power to enforce the aims of the Certificate. For example, in a personal injury claim, the Court may determine that one party isn’t playing fair. For example, they might not be handing over documents that the other party needs to prove their case. If it can be shown that a party is withholding documents they should provide, clearly, they aren’t complying with their obligations and the Court can order that they provide them.
What are the effects of not complying with the obligations?
Firstly, if the judge is satisfied that you haven’t complied, it is hardly going to get you off to the best start in your case. Secondly, it could increase the costs that you have to pay if you lose the case, or decrease the costs you might recover from the other party if you win. In extreme circumstances, a Judge could dismiss a claim or a defence to a claim.
In general, the requirements under the Certificate are fairly clear and common sense. However, if you do have concerns after reading your obligations in the certificate, you should consult your lawyer further about it.