Australia: Litigants in the Federal System Will Need to Take Genuine Steps to Resolve Disputes before Embarking on Litigation

Changing the Adversarial Culture of Disputes
Last Updated: 26 July 2010
Article by Graham Maher and Kathryn Edghill

If a bill recently introduced into federal parliament becomes law, any party wishing to pursue litigation in the federal civil justice system in Australia will need to file a statement with the court which sets out the 'genuine steps' that have been taken in an attempt to resolve the dispute prior to commencement of proceedings. The bill, which will apply to most proceedings in the Federal Court and Federal Magistrates Court, provides consequences for parties, and their lawyers, who fail to take the necessary 'genuine steps', particularly when it comes to the question of who should pay the costs of the proceedings.

This article discusses the proposed new requirements and asks whether they will change the adversarial culture of disputes, as claimed, or merely become another procedural step adding to the cost of litigation.

The rationale for introducing the 'genuine steps' requirement

The purpose of the bill is stated to be the improvement of access to justice by changing the adversarial culture of disputes. While that seems a contradiction in terms, the aim is sought to be achieved by requiring people to attempt resolution of the dispute before litigating, and, if resolution cannot be achieved, by ensuring that the issues in dispute have been properly identified to reduce the court's time to determine the matter.

What is a genuine steps statement and when will it be required?

Once the bill passes into law (expected later this year), a party which commences relevant proceedings in the Federal Court or Federal Magistrates Court (applicant) must, at the time it commences those proceedings, file a statement with the court in which it sets out the 'genuine steps' that have been taken in an attempt to resolve the dispute. Where no such steps have been taken the statement must include an explanation for the failure to do so.

Each respondent to the proceedings must also file a statement, in which it must state whether it agrees or disagrees with the applicant's genuine steps statement. If it does not agree, it must include the reasons for such disagreement.

Neither party is obliged, or authorised, by the filing of a genuine steps statement to reveal the substance of any confidential settlement negotiations or without prejudice or privileged communications.

The requirement will apply to all proceedings other than those where it would not be practicable or appropriate. These include proceedings:

  • which are taken in the absence of another party (ex parte proceedings);
  • by way of appeals;
  • for penalties for breach of civil penalty provisions;
  • for criminal offences;
  • in respect of decisions made by statutory bodies such as the Administrative Appeals Tribunal and the Australian Competition Tribunal); and
  • proceedings commenced under certain Acts and regulations, such as the Fair Work Act 2009 (Cth) and the Native Title Act 1993 (Cth).

What are 'genuine steps'?

There is no exhaustive or prescribed list of the steps which will be considered to be genuine steps. However, the bill does give the following examples of steps which a court can consider to be 'genuine steps':

  • writing to the other side outlining the issues in dispute and how they might be resolved;
  • exchanging information and documents to clarify the issues in dispute;
  • considering alternative dispute resolution processes such as mediation, conciliation or arbitration;
  • considering different processes where alternative dispute resolution processes have been used but have failed; and
  • participating/agreeing to participate in discussions where the parties present their views about what the dispute is about and what the important issues are for them.

Are there any acceptable reasons for failure to take genuine steps?

The bill acknowledges that there are circumstances in which a party may not have been able to take genuine steps to resolve a dispute before commencing litigation. They include where notification of a dispute to the other party might compromise property or assets or where the urgency of commencement of proceedings means that it is impractical for any steps to be taken.

The role of lawyers

The bill also obliges lawyers to advise their clients about the 'genuine steps' requirement and to assist clients to comply with those requirements. Any non-compliance by lawyers can be taken into account by a court when awarding costs, and can include the award of costs personally against lawyers who fail to advise clients of the requirements and/or fail to assist them to comply with the requirements.

How can courts use genuine steps statements?

The failure to file a genuine steps statement will not preclude a party from commencing or continuing proceedings. It can, and almost certainly will, be taken into account by the court when exercising its case management functions and when exercising its discretion to award costs. In terms of case management, knowledge of the steps taken (or not taken) by the parties will allow the court to make more informed decisions regarding, for example, referring the matter to mediation or other alternative dispute resolution mechanisms, requiring parties to take steps which it considers to be genuine steps to resolve the dispute, setting timetables for steps to be taken, striking out parts of the claim or defence, disallowing or rejecting evidence and requiring production of documents. Most importantly, a failure to take genuine steps may be reflected in the award of costs of the proceedings.

What can be expected to result from the genuine steps requirement?

It is to be hoped that the introduction of the genuine steps requirement achieves the lofty aim of changing the adversarial culture of disputes. However, like any compulsory step in dispute resolution procedure, it can only hope to be successful where there is mutual commitment to the taking of truly genuine steps to achieve a resolution. Lawyers can advise of the requirement and can assist with compliance but, at the end of the day, it is the parties who must both be committed to taking such steps. That being the case, there will no doubt be cases in which the requirement becomes one more box to be ticked and one more procedural step to be undertaken in the path to court determined resolution of disputes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.