From 1 October 2011, parties involved in disputes that have the
potential to end up in Court will be required to show that they
have attempted to resolve their dispute (or at least attempted to
'narrow' it down) before entering into civil
The new requirements are set out under amendments to the
Civil Procedure Act 2005 (under the new part 2A, sections
18A to 18O), and matching requirements will operate in the Federal
court and Federal Magistrates court as a result of provisions in
the Civil Dispute Resolution Bill 2010 (Cth) when it comes
What disputes are covered under the new
The new requirements apply to civil disputes (disputes between
individuals and/or organisations in which compensation may be
awarded to the victim), that might eventually lead to the
commencement of civil proceedings. Civil disputes are as wide
ranging as shareholders/partners' disputes, disputes over
commercial contracts and intellectual property disputes, to name a
What constitutes an 'attempt to resolve' a civil
The parties involved in a civil dispute are required to take
reasonable steps to resolve the dispute by agreement, or
to clarify and narrow the issues in dispute. These reasonable steps
notifying the other party of the issues in dispute;
responding constructively to such notification;
corresponding with the other party;
considering and proposing alternative options to court.
If a civil dispute is not resolved and the plaintiff commences
proceedings, it must file a Dispute Resolution Statement with the
Statement of Claim. The Statement must specify the steps that were
taken by the Plaintiff to resolve the dispute or narrow the issues;
or if no steps were taken, the reason why.
What happens if you don't attempt to resolve the
A party is still able to bring proceedings, even if it has not
taken all reasonable steps to resolve the matter, however the court
will be able to take that failure into consideration when making
orders in the proceedings, including costs orders.
Are all civil disputes affected?
The new requirements do not apply to all civil proceedings. Some
classes of civil proceedings have been excluded from the
requirements, including obvious proceedings such as ex parte
proceedings and appeals. Also excluded from these requirements are
matters in the Dust Diseases Tribunal, the Industrial Relations
Commission and proceedings relating to payment of workers
When do the requirements apply?
The new requirements will apply to proceedings commenced after 1
October 2011, and Dispute Resolution Statements will have to be
filed from that date.
The Dispute Resolution Statements will, however, relate to the
steps taken prior to 1 October 2011, so parties involved in a civil
dispute should therefore be aware of the requirements, and take
reasonable steps to resolve the dispute from August or September
Protection of information used in a civil dispute
Documents exchanged between the parties to a civil dispute may
not be used by either party for any reason except to resolve that
particular dispute, or in the proceedings that follow the dispute
should it not settle.
What does it mean for you?
The new requirements are an attempt to reduce the number of
civil disputes that end up in Court. In a legal system that is
struggling to cope with an increasing volume of litigation, it
certainly makes sense to try and resolve a matter before taking up
the time and resources of the Courts.
At Coleman Greig, our experienced lawyers use litigation as a
last resort and will always attempt to resolve a matter before
heading to Court – saving you time, money and stress.
From 1 October, all solicitors acting for parties involved in a
civil dispute must adopt this position and inform their clients of
the pre-litigation requirements to attempt to settle the matter or
narrow the issues, as well as advising their clients of the
alternatives that are available to resolve disputes.
If you, or someone you know, is involved in dispute that looks
as though it might end up in Court speak to one of our experienced
litigation lawyers. We can advise you on the best course of action
to ensure your matter is resolved as quickly and effectively as
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 Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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”
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).