Civil Dispute Resolution Bill Introduced into Parliament to Force Early Settlement

On 16 June 2010, the Attorney-General Robert McClelland, introduced the Civil Dispute Resolution Bill (the Bill) into Parliament. The Bill's purpose is to promote a move away from the often stressful, expensive adversarial culture of litigation by requiring litigants to take genuine steps to resolve their legal disputes before commencing court proceedings.

Background

The Bill follows on from the Access to Justice (Civil Litigation Reforms) Act 2009 and implements key recommendations made by the National Alternative Dispute Resolution Advisory Council (NADRAC) in their 2009 report, The Resolve to Resolve. NADRAC is an independent body that provides policy advice on the use and development of alternative dispute resolution.

The ultimate objective of the Bill is to reduce the matters requiring judicial determination, save time, costs and distress for the parties and the courts. Furthermore, the Bill allows the court to better assess the real issues in dispute from the outset of a matter, better equipping it to use its discretionary powers to make further Alternative Dispute Resolution (ADR) orders at an early stage.

What does the Bill say?

The Bill provides a regime whereby a litigant, when filing a matter in court, will also need to file a 'genuine steps statement' outlining the steps already taken to reach a resolution and an explanation as to why a resolution has been unachievable. The respondent is then obliged to either agree with the applicant's Genuine Steps Statement or provide a statement outlining why they disagree.

When deciding what is meant by 'genuine steps', the Bill requires consideration of the circumstances surrounding the particular case and could include anything that will narrow the issues in dispute including:

• an exchange of correspondence between the parties which outlines the issues in dispute and suggestions for resolution;
• an informal exchange of documents between the parties similar to the discovery process in litigation; or
• more formal methods such as mediation or conciliation.

Failure to file a Genuine Steps Statement in proceedings won't necessarily invalidate the application instituting the proceedings, a response to such an application or the proceedings. The court will however, be able to exercise its discretion to award costs for non-compliance or if it determines that 'genuine' steps were not taken to resolve the dispute.

Who does the Bill apply to?

The Bill applies to matters commenced in the Federal Court or the Federal Magistrates Court. There are however, the following exceptions:

• matters concerning the Native Title Act 1993 and the Family Law Act 1975 are excluded as a result of existing requirements for ADR;
• matters involving civil penalty provisions are excluded on the basis that it is inappropriate; and
• matters on appeal to the Federal Court are excluded on the grounds that attempts to resolve disputes have already been made.

Something to remember

It is important to note that the Bill does not force parties to settle, or abandon their legal rights. As with usual ADR methods, parties are able to terminate the process if attempts to resolve disputes are unsuccessful or if they are not progressing in a timely manner.

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