What this Act does, who it affects, and how it works (plain English)
What the law mechanically changes
Creates a single, stated "overarching purpose" for civil courts: to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute (s.7). Courts must seek to give effect to that purpose when exercising powers (s.8) and are given a list of specific objects and matters to have regard to (s.9).
Imposes a set of mandatory "overarching obligations" on participants in civil litigation (ss.16–26). Those obligations include duties to act honestly (s.17), only pursue claims that have a proper basis (s.18), cooperate and minimise delay (ss.20,25), disclose documents critical to resolution (s.26) and to use reasonable endeavours to resolve or narrow disputes (ss.22–23).
Specifies who the obligations apply to: parties, legal practitioners, law practices and persons who provide financial or other assistance and exercise control or influence (including insurers and litigation funders) (s.10(1)). Some obligations also extend to expert witnesses (s.10(3)).
Requires certifications at the start of proceedings: parties must certify they have read the overarching obligations and the paramount duty (s.41); legal practitioners must file a "proper basis" certification for substantive documents in many circumstances (s.42).
Strengthens case management and gives courts broad powers to control pre‑trial and trial procedures to further the overarching purpose (Part 4.2, esp. s.47–49). Those powers include fixing timetables, limiting evidence or witnesses, and requiring statements of issues (s.50).
The Civil Procedure Act 2010 (Vic) establishes a comprehensive framework for the conduct of civil proceedings in the Supreme Court, County Court and Magistrates’ Court. Its primary statutory object, set out in s 1(1), is to reform and modernise the laws, practice, procedure and processes relating to civil proceedings and to provide uniformity across those courts while simplifying the language of civil procedure.
At its heart is the “overarching purpose” defined in s 7(1): to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Section 8 requires every court, when exercising any power (whether inherent, implied, statutory or derived from rules), to seek to give effect to that purpose, and this obligation prevails over any contrary law other than the Charter of Human Rights and Responsibilities Act 2006 (s 8(2)). Section 9 then lists specific objects the court must have regard to when making orders or giving directions, including the just determination of proceedings, the public interest in early settlement, efficient use of judicial resources, minimising delay, and dealing with matters proportionately to their complexity and the amount in dispute.
The Act imposes “overarching obligations” on a wide range of participants (see below). These are set out in ss 16–26 and are expressly stated to be paramount (s 16) and to prevail over contractual or other legal obligations to the extent of any inconsistency (s 12), subject only to the paramount duty to the court. The obligations include the duty to act honestly (s 17), to have a proper basis for claims and defences (s 18), to take only steps reasonably believed necessary to resolve or determine the dispute (s 19), to cooperate (s 20), not to mislead or deceive (s 21), to use reasonable endeavours to resolve the dispute or narrow issues (ss 22–23), to ensure costs are reasonable and proportionate (s 24), to minimise delay (s 25), and to disclose the existence of critical documents at the earliest reasonable time (s 26). The disclosure obligation is ongoing (s 26(4)) but does not override privilege or other legal protections (s 26(3)), and information disclosed under it attracts a court-imposed obligation of confidentiality breach of which is contempt (s 27).
Current sections
Direct links to the current provisions in Civil Procedure Act 2010.
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Revises discovery and disclosure powers: discovery follows rules of court but the court may order tailored discovery, phased discovery, require affidavit(s) of document management, oral examination about document management, and make cost orders for discovery (ss.54–55, 55B–55C).
Provides for summary disposal where a claim, defence or counterclaim has "no real prospect of success" (ss.61–64).
Expands courts' powers on costs (Part 4.5): courts may order practitioners to prepare memos of estimated/actual costs (ss.65A–65B), make varied and bespoke costs orders including fixing or capping recoverable costs (s.65C) and otherwise tailor cost consequences to further the overarching purpose.
Controls the use of expert evidence (Part 4.6): requires directions to adduce expert evidence, enables single joint experts, court‑appointed experts, expert conferences and joint expert reports, limits on adducing additional expert evidence, and disclosure of retainer/payment arrangements (ss.65F–65Q).
Allows courts to refer proceedings (or parts) to appropriate dispute resolution processes, including referral without consent in certain non‑binding ADR forms (Ch.5, s.66).
Gives courts power to take contraventions of the overarching obligations into account and to impose sanctions and remedial orders (ss.28–31, 29, 56).
Does not override the Charter or legal privilege (s.6) and binds the Crown (s.5).
Stated purpose and the Act's own claim about its effects
The Act says its main aims are to reform and modernise civil procedure, simplify language, provide an overarching purpose to facilitate just, efficient, timely and cost‑effective resolution, and to amend related Acts to reflect new procedures (s.1). Those are the purpose‑claims set out in the statute.
How the statutory mechanisms map to incentives, costs and choice
Who pays: parties and their lawyers carry most direct compliance costs — preparing certifications (s.41), proper‑basis certifications (s.42), discovery and affidavit(s) of document management (s.55, 55B), and preparing costs memos if ordered (ss.65A–65B). A court may order one party to pay another party's estimated discovery costs in advance (s.55(4)). Legal practitioners may be exposed to orders directing their conduct and costs consequences (s.65A, s.65B, s.65C).
Who decides: courts are given wide discretionary powers to manage and shape proceedings (ss.8,47–49,55,65H,65I). Rules of court may supplement and specify procedural details (s.70).
Behaviour changes required: participants must act honestly (s.17), avoid frivolous or vexatious claims (s.18), only take necessary steps (s.19), cooperate (s.20) and disclose documents critical to resolution promptly (s.26). Lawyers must reconcile client instructions with overarching obligations where inconsistent (s.13).
Effects on litigation funding and insurers: persons who provide funding or financial assistance and who exercise control or influence are expressly captured by the overarching obligations (s.10(1)(d)). That makes funders and insurers subject to duties like cooperation and proper‑basis considerations and may impose compliance and disclosure expectations on them.
Effects on expert evidence markets: the Act encourages limiting expert evidence (ss.65F–65G, 65H) and facilitates single joint experts or court‑appointed experts (ss.65L–65M). This can reduce duplication and costs of experts but also restricts parties from calling competing experts without leave (s.65O). Courts may order disclosure of retainer arrangements and contingency payments (s.65P).
Effects on private choice and contracts: the overarching obligations prevail over inconsistent private or contractual obligations to the extent of inconsistency (s.12). Legal practitioners must comply with overarching obligations despite client instructions to the contrary (s.13(2)–(3)). Those provisions constrain some aspects of how parties contractually agree to run litigation.
Trade‑offs and opportunity costs: the Act increases judicial control and front‑loaded compliance (certifications, disclosure requirements, cost memos) to promote early narrowing and resolution (ss.22–23). That may save litigation time and expense in many cases but imposes administrative and professional time costs up front (ss.41–42,55B). Courts may also cap recoverable costs (s.65C), which can change the financial calculus of whether to bring or defend claims.
Sanctions and enforcement risks: courts may impose a broad range of sanctions for contraventions — cost orders, compensation, orders preventing steps in a proceeding, and other remedial directions (s.29). Discovery failures can attract specific sanctions including contempt, indemnity costs, dismissal of parts of a claim and referral to disciplinary authorities (s.56). These are significant enforcement tools that increase the legal and commercial risk of non‑compliance.
Implementation and discretion risk: the Act delegates many specifics to rules of court (s.70) and gives judges broad discretionary powers (s.47, s.55, s.65H). The practical effect will depend on judicial practice and rules developed by courts. That generates variability in how particular provisions operate in different cases or courts.
Practical points for litigants and advisers
Read ss.16–26 early: those obligations apply throughout a proceeding and affect strategy and document handling (s.26(4)).
Expect active case management: courts are empowered to impose timetables, limit witnesses and evidence, and to require statements of issues (s.47–50).
Prepare to disclose and explain document systems: courts can order affidavit(s) of document management and oral examination about them (ss.55B–55C).
Costs planning matters: courts can require cost memos (ss.65A–65B) and may cap recoverable costs (s.65C(2A)).
(References in parentheses are to particular sections of the Civil Procedure Act 2010 as reproduced in the supplied text.)
Part 4.1 requires personal certification by each party that it has read and understood the overarching obligations and paramount duty (s 41), and requires legal practitioners to certify that claims, defences and allegations have a proper basis (s 42). These certifications must accompany the first substantive document filed (defined expansively in s 3 to include writs, defences, counterclaims, certain affidavits and applications but to exclude appeals and Corporations Act proceedings). Urgent filings are permitted without immediate certification provided it is filed as soon as practicable (s 44), and proceedings cannot be invalidated solely for non-compliance (s 45), although the court may take failure into account in costs and procedural orders (s 46).
The Act confers extensive case management powers. Section 47 permits the court to give any direction or make any order it considers appropriate to ensure proceedings are managed in accordance with the overarching purpose, including imposing limits on parties, fixing timetables, limiting witnesses and evidence, and using technology. Sections 48 and 49 expand pre-trial and trial management powers, including ordering parties to attend case management conferences, clarifying issues by pleadings or otherwise, and controlling the conduct of hearings. Newer provisions (inserted 2014) allow the court to order parties to prepare a statement of issues (s 50) which may be used for discovery and other purposes without displacing pleadings (s 50A).
Part 4.3 regulates disclosure and discovery. Discovery must generally follow the rules of court (s 54), but the court has broad power to make any order it considers necessary (s 55), including limiting discovery to issues in a statement of issues, ordering staged discovery, requiring affidavits of document management (s 55B), and ordering oral examination of deponents (s 55C). Consent orders for provision of all documents in a party’s possession on a non-waiver of privilege basis are permitted (s 55A). Sanctions for discovery defaults are extensive (s 56) and include contempt proceedings, indemnity costs, adverse inferences, and dismissal of claims or defences. Cross-examination of deponents is available where there is reasonable belief of non-compliance (s 57).
Summary judgment may be granted where a claim or defence has no real prospect of success (s 63), but the court retains discretion to allow a matter to proceed to trial if it is not in the interests of justice or the dispute requires a full hearing (s 64). Part 4.5 (inserted 2012) gives the court power to order legal practitioners to provide memoranda estimating length and costs of trials or proceedings (ss 65A–65B) and to make any costs order it considers appropriate to further the overarching purpose, including capping recoverable costs in advance after considering a non-exhaustive list of factors (s 65C(2A)).
Part 4.6 (also 2012) tightly controls expert evidence. Parties must seek directions before adducing expert evidence (s 65G). The court may limit the number of experts, order single joint experts (s 65L) or court-appointed experts (s 65M), direct experts to confer and produce joint reports (s 65I), and control the manner in which expert evidence is given, including concurrent evidence (s 65K). A party may not call another expert on an issue covered by a single joint or court-appointed expert without leave (s 65O), and retainer arrangements may be ordered to be disclosed (s 65P).
Chapter 5 empowers courts to order proceedings or parts of them to appropriate dispute resolution (s 66), defined broadly in s 3 to include mediation, early neutral evaluation, judicial resolution conferences and arbitration. Evidence of what is said in a judicial resolution conference is inadmissible except in the interests of justice (s 67), and judicial officers conducting them enjoy the same immunity as Supreme Court judges (s 68).
Chapter 6 contains rule-making powers (s 70) and extensive transitional provisions that apply the Act differentially according to the date proceedings were commenced and whether a hearing had begun (ss 72–86). The Act binds the Crown (s 5), does not override the Charter or privilege (s 6), and applies to all civil proceedings except those listed in s 4(2) (family violence, confiscation, coronial, VCAT, etc.).
In short, the legislation effects a cultural shift from purely adversarial litigation to a cooperative, court-controlled model in which efficiency and proportionality are statutory imperatives.
Who it affects
The Act casts a wide net. Section 10(1) provides that the overarching obligations apply to any party, any legal practitioner or other representative acting for a party, any law practice, and any person who provides financial assistance or exercises direct or indirect control or influence over the conduct of the proceeding or a party—including insurers and litigation funders. Expert witnesses are subject to all obligations except those in ss 18, 19, 22 and 26 (s 10(3)), in addition to their existing duties.
The obligations bind participants in respect of every aspect of a civil proceeding, including interlocutory applications, appeals and appropriate dispute resolution processes (s 11). Legal practitioners and law practices must comply with the obligations despite instructions from clients (s 13(2)), must not cause a client to contravene them (s 14), and are not relieved of their duty to the court (s 15).
Certification obligations fall on parties personally (s 41(1)), although litigation guardians, insurers or statutory controllers may certify where the party lacks meaningful control (s 41(4)–(5)). Legal practitioners must provide proper basis certifications for substantive documents that introduce or amend claims, defences or allegations (s 42(1)), with the certification standard being reasonable belief based on available factual and legal material (s 42(3)).
Case management directions and orders can be made against parties and their representatives (s 47(2)). Discovery obligations and sanctions apply to parties and, where relevant, their legal practitioners (s 56(2)(c) and (k)). Costs orders under Part 4.5 can be directed at legal practitioners (ss 65A–65B). Expert evidence controls affect parties wishing to adduce expert opinion and the experts themselves (Part 4.6).
The Act therefore affects not only litigants but also their lawyers, funders, insurers, experts and, indirectly, the courts themselves, which are under a positive duty to give effect to the overarching purpose in every exercise of power.
Key duties and rights
The paramount duty is to the court to further the administration of justice (s 16). This sits above all other obligations. The remaining duties are expressed as positive obligations to act honestly (s 17), maintain a proper basis (s 18), take only necessary steps (s 19), cooperate (s 20), refrain from misleading or deceptive conduct (s 21), use reasonable endeavours to resolve disputes or narrow issues unless contrary to the interests of justice or requiring judicial determination (ss 22–23), keep costs reasonable and proportionate (s 24), minimise delay (s 25), and disclose critical documents at the earliest reasonable time (s 26).
These duties are not merely aspirational. They are enforceable through the sanctions regime in Part 2.4 and through the court’s case management powers. Rights are correspondingly created: a party may apply for orders under s 29 if another has contravened an obligation, and may seek extension of time to do so if the contravention was not known before finalisation (s 31). Parties have the right to have the court consider the factors in s 9(2) when orders are made, including compliance with the obligations and any prejudice that would be suffered.
Certification creates both a duty and a right: a party who has certified within the preceding two years in the same jurisdiction may rely on the lawyer’s certification instead of personal certification (s 41(5)). Expert witnesses gain the right to have the court give directions about conferences, joint reports and the manner of giving evidence (ss 65I–65K), while parties gain the right to seek disclosure of retainer arrangements that may affect independence (s 65P).
The Act also confers rights on non-parties who have sufficient interest to apply for s 29 orders (s 29(2)(a)(ii)) or to seek costs orders under the broader powers in s 65C.
Penalties and enforcement
Contravention of the overarching obligations does not automatically attract a statutory penalty but triggers a discretionary regime. Under s 28 the court may take any contravention into account in exercising any power, including its costs discretion. Section 29 empowers the court, if satisfied on the balance of probabilities that a contravention has occurred, to make any order it considers appropriate in the interests of justice. The menu includes costs orders (on an indemnity basis if appropriate), immediate enforceability of costs, compensation for loss (including penalty interest or reduction of interest), orders to remedy the contravention, orders preventing a party from taking specified steps, and any other order the court considers appropriate for persons prejudicially affected. Such orders may be made on application or on the court’s own motion (s 29(2)) and do not limit other powers (s 29(3)).
Applications must ordinarily be made before finalisation of the proceeding (s 30(2)), but extension is available if the applicant was unaware of the contravention (s 31). Failure to provide required certifications can also sound in costs and procedural orders (s 46).
Discovery defaults attract the broader sanctions in s 56, which expressly include contempt proceedings, adjournment with costs, indemnity costs against parties or practitioners, prevention of further steps, prohibition on use of documents, facts taken as established, compensation, adverse inferences, compulsory evidence orders, dismissal of claims or defences, and referral to disciplinary bodies.
In costs matters, the court may order a legal practitioner to prepare costs estimates (ss 65A–65B) and may fix or cap recoverable costs in advance after weighing the factors in s 65C(2A). These powers are in addition to the courts’ existing costs powers under their constitutive Acts (s 65E).
Judicial resolution conference immunity and non-compellability protections (s 68) operate as safeguards rather than penalties.
How it interacts with other laws
The Act is expressly stated not to override the Charter of Human Rights and Responsibilities Act 2006 or the doctrine of privilege (s 6). It binds the Crown (s 5) but does not apply to VCAT, to the proceedings listed in s 4(2) (family violence, serious sex offenders, confiscation, coronial, children’s court, workplace injury, etc.), or to prescribed Acts.
The overarching purpose and obligations are to be taken into account in the exercise of all court powers, including those arising under the Supreme Court Act 1986, County Court Act 1958, Magistrates’ Court Act 1989, rules of court, and the common law (s 8(1)). The case management, discovery, costs and expert evidence powers are expressed to be additional to, and not in derogation of, existing powers (ss 53, 59, 65E, 65Q, 69).
Section 58 preserves the operation of Division 9 of Part III of the Evidence (Miscellaneous Provisions) Act 1958. Transitional provisions (ss 72–86) interact with the commencement dates of the principal Act and its amending Acts to determine when the overarching purpose, obligations, case management, discovery, summary judgment, costs and expert provisions first apply.
The definition of “legal practitioner” and “law practice” cross-reference the Legal Profession Uniform Law (Victoria) (s 3). “Appropriate dispute resolution” includes processes under rules of court and other Acts. The rule-making power in s 70 allows rules to be made on a wide range of matters including protocols, discovery, expert evidence and ADR, thereby linking the Act to the various court rules.
Recent changes and why
The version reproduced is No. 021 as at 29 November 2021. Major changes have been effected by three amending Acts.
The Civil Procedure and Legal Profession Amendment Act 2011 (No. 1/2011) removed the pre-litigation requirements that had been in the original Bill, repealed Chapter 3, and made consequential changes to the definition of appropriate dispute resolution and to ss 4, 9 and 70. The change reflected a policy decision that compulsory pre-litigation steps were not required.
The Civil Procedure Amendment Act 2012 (No. 62/2012) was the most substantial. It inserted the new Part 4.5 on court powers as to costs (ss 65A–65E), the whole of Part 4.6 on expert witnesses and expert evidence (ss 65F–65Q), expanded the definition of substantive document, amended the proper basis certification regime, inserted new transitional provisions, and made changes to the application of obligations to insurers and to the summary judgment test. The explanatory memorandum and second reading speech (not reproduced but referenced in the endnotes) made clear that these changes were designed to address burgeoning expert evidence costs, to give courts stronger tools to control trial length and costs, and to reinforce the overarching purpose.
The Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Act 2014 (No. 25/2014) inserted the affidavit of document management (s 55B), oral examination provisions (s 55C), the consent-based full-document disclosure regime (s 55A), the statement of issues mechanism (ss 50–50A), and updated transitional provisions. These amendments responded to ongoing concerns about the expense and inefficiency of discovery in complex litigation and sought to give courts more granular tools to tailor disclosure to the real issues.
Later minor amendments (e.g. 2016, 2018, 2021) updated excluded proceedings lists to reflect new legislation such as the Serious Offenders Act 2018 and National Domestic Violence Order Scheme Act 2016.
The cumulative effect has been a progressive strengthening of judicial control over the pre-trial and trial process in pursuit of the overarching purpose.
Court challenges and controversies
The source text itself does not record specific judicial decisions; however, the structure of the Act reveals several points of tension that have generated litigation and commentary.
The interaction between the overarching obligations and a lawyer’s duty to the client has been a fertile source of difficulty. Section 13(2) expressly provides that a legal practitioner must comply with the obligations despite any obligation to act in accordance with the client’s instructions, and s 13(3) states that the obligation prevails. This has raised questions about when a lawyer must refuse instructions or cease to act. The paramount duty in s 16 and the proper basis obligation in s 18 have been invoked in applications to strike out pleadings or to seek personal costs orders against practitioners.
The breadth of the disclosure obligation in s 26—requiring disclosure of critical documents of which the person is aware and which the person considers or ought reasonably consider critical—has created controversy about its width compared with traditional discovery obligations. Because it is ongoing and applies to funders and insurers, it has the potential to require early disclosure that might otherwise be protected by litigation privilege. Section 27’s contempt sanction for misuse of such material has led to disputes about the scope of the implied undertaking and when court leave to use the material is required.
The costs provisions in Part 4.5, particularly the power to cap recoverable costs in advance (s 65C(2A)), have generated debate about access to justice. The non-exhaustive list of factors the court may consider includes the public interest element, the complexity of issues, and whether the claim has a proper basis. Courts must balance these against the risk that a party will abandon a meritorious claim if a costs cap is refused.
The expert evidence regime has produced controversy around the circumstances in which leave will be granted to call a further expert after a single joint expert has been appointed (s 65O). The mandatory consideration of proportionality (s 65L(3)) has been criticised by some as potentially depriving a party of the ability to meet an opposing expert with its own evidence where the single joint expert’s view is said to be fundamentally flawed.
Transitional provisions have themselves been the subject of procedural argument, particularly the distinction drawn in ss 73 and 76 between proceedings where the court has or has not “begun to hear and determine” the matter before the relevant commencement date.
The exclusion of certain proceedings from the Act (s 4(2)) has also raised questions of characterisation, for example whether a particular application under the Workplace Injury Rehabilitation and Compensation Act 2013 falls within the excluded category.
Gotchas
Most practitioners still underestimate the personal reach of the overarching obligations. Section 10(1)(d) expressly captures any person who provides financial assistance or exercises direct or indirect control or influence, with explicit examples of insurers and litigation funders. A litigation funder that directs settlement strategy can therefore be personally exposed to s 29 compensation orders even though it is not a named party.
The s 26 critical document disclosure obligation is wider than many realise. It is not limited to documents that are directly relevant; it is triggered by a reasonable belief that the document is critical to the resolution of the dispute. Because it is an ongoing obligation (s 26(4)) that arises as soon as the person becomes aware of the document, late-emerging internal emails or board minutes can require immediate disclosure even after discovery has been given. The confidentiality obligation in s 27 is owed to the court and breach is contempt; the statutory protection is not displaced by the common law implied undertaking.
Section 41(5) contains a little-used but valuable safe harbour: if a party has personally certified in the same jurisdiction within the rules-of-court period (or two years if none specified) and the practitioner certifies to that effect, the party need not re-certify. Many firms still require fresh client certifications on every new proceeding, incurring unnecessary cost and creating unnecessary risk of error.
The power to order a legal practitioner to prepare a memorandum estimating the length and costs of the trial or the entire proceeding (ss 65A–65B) can be exercised at any time. A practitioner who gives an unrealistically low estimate risks personal costs orders or disciplinary referral if the proceeding then runs significantly longer. Conversely, over-estimation can be used against the client on proportionality arguments.
The statement of issues under s 50 is not pleadings and does not displace them (s 50A(3)), yet it can be used for discovery (s 50A(2)). Parties who treat the statement of issues as a mere formality have found that courts later use it to limit the scope of discovery or evidence, sometimes to their forensic disadvantage.
Finally, the “interests of justice” and “nature of the dispute” exceptions in ss 22 and 23 are narrowly construed by courts; a civil penalty proceeding is given as an example of a matter that may require judicial determination. Parties who refuse reasonable settlement overtures without a strong basis risk costs sanctions under both the overarching obligations and the specific costs powers.
How to comply
Compliance begins at the first client meeting. Practitioners should provide a plain-English explanation of the overarching obligations and obtain instructions that demonstrate the client understands them. The s 41 certification must be made personally by the client (or insurer/litigation guardian) and filed with the first substantive document; retain a signed copy on file.
When drafting pleadings or substantive documents, conduct a proper basis audit. For every allegation of fact, denial or non-admission, the practitioner must hold a reasonable belief based on the factual and legal material then available (s 42(3)). Record the basis of that belief contemporaneously; it may need to be produced if a s 29 application is brought.
Institute a critical document review process the moment the matter is received. Create a standing instruction that any document the client or practitioner considers (or ought to consider) critical to resolution must be disclosed to all other parties at the earliest reasonable time. Maintain a disclosure log separate from the discovery list. Remember that s 26 applies to funders and insurers with influence.
At the first case management conference, proactively seek directions under ss 47–49 and, where appropriate, under Part 4.6. Ask the court to order a statement of issues early; it will focus discovery and expert evidence. If expert evidence is likely, seek directions under s 65H before any expert is retained. Consider whether a single joint expert or court-appointed expert would be proportionate (ss 65L(3), 65M(3)).
For discovery, prepare an affidavit of document management (s 55B) that candidly describes the client’s document management systems, volume, storage methods and search protocols. This assists the court to make tailored orders under s 55 and reduces the risk of later sanctions under s 56. If the matter is suitable, propose a s 55A consent order for provision of all documents on a non-waiver basis; it can dramatically reduce disputation.
Budget realistically and update estimates regularly. If the court orders a costs memorandum under s 65A or 65B, ensure the figures are supportable; unrealistic estimates can found personal costs orders. When considering settlement, document the reasonable endeavours made to resolve or narrow issues; courts will look for evidence of compliance with ss 22 and 23.
Maintain a compliance file note system that records, for each major step, which overarching obligation is engaged and how it has been satisfied. In the event of a s 29 application, this contemporaneous material will be the best evidence that the obligations were taken seriously.
Finally, train junior lawyers and clients on the cultural shift the Act requires. The legislation is not merely another set of procedural hurdles; it is a statutory command to change the way litigation is conducted in Victoria. Compliance is not achieved by bolting obligations onto an adversarial mindset but by redesigning processes so that cooperation, proportionality and efficiency are the default.