The Law Handbook 2024

Chapter 5.2: Are you in debt? 349 Civil Procedure Act On 1 January 2011, the Civil Procedure Act 2010 (Vic) (‘ CP Act ’) came into operation. The CP Act generally applies to all civil proceedings in a court including the Magistrates’ Court. It does not apply to any proceeding in VCAT (s 4(3)). The CP Act imposes obligations for all parties involved in civil proceedings and contains the following certification requirements when issuing or defending a proceeding: 1 Overarching obligations certification: personal cer­ tification by parties at or following the commence­ ment of a court proceeding that they have ‘read and understood the overarching obligations and the paramount duty’ set out in the CP Act (s 41); and 2 Proper basis certification: certification by a party’s lawyer or by an unrepresented party, that in relation to ‘the first substantive document’ in a court proceeding and ‘any documentation that contains significant amendments to the first substantive document’, each allegation of fact, denial or non- admission ‘has a proper basis’ (s 42). The overarching obligations certification and the proper basis certification must be in form 4A and form 4B, respectively, and must be lodged with the court along with your first substantive document of the proceedings (Magistrates’ Court General Civil Procedure Rules 2020 (Vic)) (‘ Magistrates’ Court General Rules ’). Note that: • a legally represented party does not have to make the overarching obligations certification if they have been involved in more than one civil pro- ceeding and have personally made the certifica- tion in other civil proceedings in the same court within two years (or another period specified by court rules) and the party’s lawyer certifies as to these matters. This certification by the party’s lawyer is the certification of prior overarching obligations certification; it must be on form 4AB and lodged with the court; and • the proper basis certification applies to ‘the first substantive document’ and ‘any subsequent substantive document’ that, for example, adds a party to the proceeding, a claim or a substantive defence, or makes any significant amendment to a first substantive document or a subsequent substantive document. For a creditor, the first substantive document is a complaint; for you, it is a notice of defence. The paramount duty to the court of each party involved in a civil proceeding is ‘to further the administration of justice’ (s 16). The overarching obligations of a party are set out in sections 16 to 26 of the CP Act and include obligations to: 1 act honestly at all times in relation to the proceeding (s 17); 2 not make frivolous or vexatious claims or other claims without a proper basis (s 18); 3 only take steps to resolve or determine the dispute (s 19); 4 cooperate with other parties (s 20); 5 not mislead and deceive (s 21); 6 use reasonable endeavours to resolve the dispute by agreement (s 22) or narrow dispute issues (s 23); 7 use reasonable endeavours to ensure costs are reasonable and proportionate to the complexity or importance of the issues in dispute and the amount in dispute (s 24); 8 minimise delay (s 25); and 9 disclose the existence of relevant documents (s 26). These obligations apply equally to parties responding toproceedings and topartieswho initiate proceedings. Complaint In the Magistrates’ Court, the first step a creditor takes to sue you for a debt is to file a document called a ‘complaint’, which sets out the creditor’s claim for the debt against you. The complaint document, formally known as ‘form 5A: complaint’, is issued by the registrar of the Magistrates’ Court where the claim is filed. When the creditor files the complaint with the court, they must also file form 4A (or 4AB) and 4B certifications. There may be consequences for the creditor if they do not file these certifications. Service The complaint is then served on the debtor. This is done by delivering an approved copy of the complaint together with two blank notices of defence (see ‘Notice of Defence’, below) to: 1 the debtor personally; or 2 the debtor’s usual residence: in this case the complaint must be delivered to someone