Parties involved in civil disputes are being encouraged to
resolve their disputes outside the federal court system under a
Bill which had its Second Reading in the now dissolved 42nd
Parliament on 16 June 2010. The Civil Dispute Resolution Bill
2010 (Cth) (Bill), introduced by the
Attorney-General, the Hon Robert McClelland MP, seeks to ensure
that parties take "genuine steps" to resolve a civil
dispute before proceedings are commenced in the Federal Court of
Australia or the Federal Magistrates Court. It should be noted that
the Bill lapsed on 19 July 2010 following the dissolution of the
House of Representatives. However, as the Bill may still become
legislation with the return of the existing government it continues
to remain relevant as it could be reintroduced once the new
Parliament is convened. This article outlines some of its key
The Bill, which was introduced under a government initiative
towards providing greater access to justice, draws on
recommendations from the National Alternative Dispute Resolution
Advisory Council (NADRAC) in its November 2009
report, The Resolve to Resolve – Embracing ADR
to improve access to justice in the federal jurisdiction.
During a speech on 17 May 2010, the Attorney-General stated that
"courts, parties and lawyers all have a role to play" in
achieving the objective of appropriate dispute resolution processes
and that the Bill will complement "the active case management
powers introduced in the Federal Court last year which promote the
timely, inexpensive, and efficient resolution of
According to the Explanatory Memorandum, the Bill
"encourages the resolution of civil disputes outside of the
courts and seeks to improve access to justice by focusing parties
and their lawyers on the early resolution of disputes". Under
the proposed legislation, when a party commences proceedings in the
Federal Court or the Federal Magistrates Court it will be
"required to file a statement saying what steps they have
taken to resolve their dispute or, if they have not taken any
steps, the reason why". This will be known as a "genuine
steps statement". A respondent in proceedings who is given a
copy of a "genuine steps statement" filed by an applicant
must also file a "genuine steps statement" before the
hearing date specified in the application.
The Bill gives examples of reasons why steps might not be taken,
including urgency or where the safety of a person or security of
property is compromised. In addition, lawyers will also have an
obligation to "advise their clients of the requirement and
assist them to comply with the requirement" to file a
"genuine steps statement".
The Bill does not attempt to prescribe specific actions that
demonstrate "genuine steps" in terms of resolving a
dispute. Instead, the parties are given a wide discretion to
attempt to resolve their disputes and the courts may have regard to
the genuine steps outlined in the statement for the purposes of
exercising its powers and performing its functions. This broad
discretionary power is designed to "ensure that the focus is
on resolution and identifying the central issues without incurring
unnecessary upfront costs". The rules of the respective court
may also make provision in relation to the form of genuine steps
statements, the matters to be specified in genuine steps statements
and the applicable time limits.
The Bill applies to all civil proceedings other than excluded
matters under Part 4. Matters are excluded if the subject matter is
inappropriate, for example a civil penalty proceeding. Also,
matters that have already been considered by a statutory tribunal,
such as the Administrative Appeals Tribunal, Migration Review
Tribunal or Veteran's Review Board are excluded and
proceedings under other legislation, such as the Australian
Citizenship Act 2007 (Cth), Child Support (Registration
and Collection Act) 1988 (Cth) and the Migration Act
1958 (Cth) are also excluded.
The provisions of the Bill were referred to the Senate Standing
Committee on Legal and Constitutional Affairs for inquiry and
report. However, due to the dissolution of Parliament, the
Committee resolved not to continue its inquiry. If the Bill is
reintroduced in the new Parliament, the Senate can again refer it
to the Committee for further consideration.
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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