The New South Wales Attorney General, Greg Smith SC, announced
on 23 August 2011 that the New South Wales Government will postpone
the introduction of pre-litigation dispute resolution
The Courts and Crimes Legislation Further Amendment Act
2010 made important amendments to the Civil Procedure Act
2005 (CPA). This was the subject of our
Industry News Note on 1 March 2011.
In short, the amendments to the CPA introduced a regime of
compulsory pre-litigation dispute resolution. The objective of the
amendments was to encourage the resolution of disputes, or at the
very least narrow the issues in dispute, prior to the commencement
of civil proceedings.
The amendments to the CPA were passed in November 2010. They
were due to commence in respect of matters filed in court from 1
October 2011. We, as no doubt most of our clients, were commencing
to witness some solicitors making efforts to comply with the new
requirements of the CPA, presumably with a view to ultimately
commencing proceedings after 1 October 2011.
Yesterday, Attorney General Smith advised that the New South
Wales Government would postpone the commencement of the relevant
provisions by 18 months. The Attorney General stated that this was
to allow the New South Wales Government to monitor the success of
similar provisions introduced by the Commonwealth Government which
have commenced in respect of proceedings in the Federal courts.
In coming to this decision, the New South Wales Government has
noted the concerns of organisations such as the Law Society of New
South Wales, Bar Association of New South Wales and the Australian
Lawyers Alliance. One of the principal concerns appears to have
been that most lawyers and their clients make reasonable efforts to
resolve disputes before the commencement of proceedings in any
event and therefore the provisions served no purpose. Hand in hand
with this was another principal concern which was that by
formalising certain steps in the pre-litigation process the costs
to both parties could substantially increase. As Attorney General
Smith stated in the media release "Compliance with
pre-trial obligations should reduce, not add to, the cost of
resolving disputes. The purpose of this postponement is to ensure
this is the case."
In taking this step, the New South Wales Government is mirroring
steps taken in Victoria to wind back similar legislation.
It is our view that after the 18-month postponement, it is
likely that a watered down version of the pre-litigation
requirements will commence.
Prudent insurers and self-insureds, and those representing
them, should continue to carefully assess each claim, resolving
those which should be resolved and contesting those without merit
or where claimants have unrealistic expectations.
Prudent insurers and self-insureds should, nonetheless, train
their staff to ensure that every step in the pre-litigation dispute
resolution process, whether it be requests for information,
investigations or attempts at settlement, is documented in
anticipation of the ultimate commencement of some formalised
pre-litigation procedures in New South Wales.
1. Media Release from NSW Attorney General 23 August
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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