The new Civil Dispute Resolution Bill 2010 aims to
ensure that, as far as possible, people take "genuine
steps" to resolve disputes before commencing certain
proceedings in the Federal Court of Australia or the Federal
What does the Bill try to achieve?
The Bill draws on the recommendations of the National
Alternative Dispute Resolution Advisory Council in its 2009
The Resolve to Resolve.
In general terms, the Bill aims to:
change the adversarial culture often associated with
have parties consider ADR mechanisms before becoming entrenched
in a litigious position; and
clarify the real issues in a dispute with a view to minimising
the time required for the court to determine the matter (likely to
lead also to minimisation of costs).
What's covered - and what's not covered - by the
While the Bill is generally applicable, it prescribes numerous
"excluded proceedings" that are exempt from its
ex parte proceedings, appeals, and matters involving pecuniary
penalties for contraventions of civil penalty provisions;
proceedings which relate to decisions made by certain statutory
bodies (including the Administrative Appeals Tribunal, the
Australian Competition Tribunal and the Copyright Tribunal of
proceedings commenced under certain Acts and regulations, such
as the Native Title Act 1993 (Cth) and the Fair Work
Act 2009 (Cth).
What does the Bill require parties to do?
The Bill seeks to promote the resolution of disputes before
proceedings in court are commenced.
Accordingly, if you are an applicant commencing proceedings, you
will be required to file a "genuine steps statement"
which outlines the steps that have been taken to try to resolve the
dispute (or alternatively, the reasons no such steps were
A respondent party will be obliged to submit a "genuine
steps statement" of its own, either agreeing or disagreeing
with your statement.
The Bill refers expressly (but not exhaustively) to factors
which an applicant may reply upon as the reasons why no genuine
steps to resolve the issues in dispute were taken, such as:
the urgency of the proceedings; and
whether, and the extent to which, the safety or security of any
person or property would have been compromised by taking such
The concept of "genuine steps" in the Bill is intended
to be flexible and to include any action taken by a party which
seeks to resolve the matter and/or to narrow the issues in dispute.
Its focus is on actions, not intentions, which is an objective
According to the Second Reading Speech, these may include:
writing to the other side outlining the issues in dispute and
how you think they should be resolved;
exchanging relevant documents and information between the
parties in a timely and cost-effective manner;
the parties participating in a discussion; or
the parties undertaking conciliation, mediation or
Notably, the filing of a "genuine steps statement"
will not require or authorise parties to disclose confidential or
without prejudice information which may already have been exchanged
in pre-litigation settlement attempts.
It is clear that the intended effect of a genuine steps
statement is to narrow the real issues in dispute, with a view to
achieving non-adversarial resolution or, at least, court
proceedings which are more confined.
How will the Bill affect litigation?
If the Bill becomes law:
by encouraging genuine attempts to resolve a dispute, the Bill
will enable the court to more expeditiously grant orders and
provide direction if litigation is ultimately commenced;
the court will have the discretion to take non-compliance with
its requirements into account when awarding costs (including
awarding costs personally against lawyers who fail to advise their
clients of the genuine steps requirement and/or to assist their
clients in this respect);
the court will not be able to require settlement of a dispute
or compel a party to abandon a legal right to pursue court
determination. As is typically the case with participants in ADR
mechanisms, parties will have the right to terminate ADR if that
process proves unsuccessful and instigating proceedings is the only
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.
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