Australia: Civil Procedure update - Civil Dispute Resolution Act 2011

Public law report
Last Updated: 10 October 2011
Article by Ashley Tsacalos

In our March 2011 edition of the Public law report, we discussed the Civil Dispute Resolution Bill 2010 (Cth) and similar legislation in NSW and Victoria. This article provides an update on the status of the legislation, and briefly discusses the new Federal Court rules and forms.

Overview of the Act

The operative provisions of the Civil Dispute Resolution Act 2011 (Cth) commenced on 1 August 2011. The Act encourages parties in dispute to take genuine steps to resolve their dispute before commencing proceedings in the Federal Court or Federal Magistrates Court (certain types of proceedings are excluded).

A person takes genuine steps to resolve a dispute if the steps constitute a sincere and genuine attempt to resolve the dispute, having regard to the person?s circumstances and the nature and circumstances of the dispute. The Act does not prescribe what genuine steps are, but it sets out examples of what might amount to genuine steps, including:

  • notifying the other person of the issues in dispute, and offering to discuss them, with a view to resolving the dispute, and responding appropriately to any such notification
  • providing relevant information and documents to enable the other person to understand the issues involved and how the dispute might be resolved
  • considering whether the dispute could be resolved by a process such as alternative dispute resolution
  • attempting to negotiate with the other person, with a view to resolving some or all the issues in dispute.

The Act does not exclude or limit the operation of laws (including the common law) relating to the use or disclosure of information, the production of documents or admissibility of evidence.

Compliance

From 1 August 2011, if a person starts a proceeding that is covered by the Act, they are required to file a genuine steps statement with their application, specifying the steps taken to try to resolve the dispute, or if no steps were taken, the reasons why. The respondent is required to file a genuine steps statement in response before the hearing date specified in the application.

Sanctions

Failing to file a genuine steps statement does not invalidate the application, a response to an application, or the proceeding.

However, the court may take into account whether a person who is required to file a genuine steps statement actually filed the statement and whether the person took genuine steps to resolve the dispute, in awarding costs, performing its functions or exercising its powers in relation to a civil proceeding.

Duties on lawyers

The Act imposes a duty on lawyers to advise their clients of the requirement to file the genuine steps statement and assist them to comply with the requirement. A failure to comply with this duty may result in personal costs orders against the lawyer, which cannot be recovered from the client.

Excluded proceedings

Various types of proceedings are excluded from the operation of the Act (refer to sections 15, 16 and 17 of the Act for the complete listing), including:

  • appeals
  • ex parte proceedings
  • proceedings relating to decisions of, or a decision subject to review by, the Administrative Appeals Tribunal, the Australian Competition Tribunal, the Australian Copyright Tribunal and certain other named tribunals (see section 15(3) for the complete listing of Tribunals)
  • proceedings for orders connected with contravention of civil penalty provisions
  • proceedings to enforce an enforceable undertaking
  • proceedings under certain Acts that have their own dispute resolution regimes, such as the Australian Citizenship Act 2007, the Child Support (Registration and Collection) Act 1988, Fair Work Act 2009, the Native Title Act 1993 and the Migration Act 1958 (see section 16 for the complete listing of Acts)
  • proceedings excluded by the Regulations (section 17) which currently include:

- proceedings for sequestration orders under section 43 of the Bankruptcy Act 1966, if the act of bankruptcy relies on paragraph 40(1)(g) of that Act

- proceedings for winding up orders under section 459A of the Corporations Act 2001, if the application relies on a failure by a company to comply with a statutory demand

- proceedings for review of a decision of a Registrar of the Federal Court or Federal Magistrates Court.

New Federal Court rules and forms

New Federal Court Rules and forms also commenced on 1 August 2011 (see article later in this edition). The new forms include a genuine steps statement for an applicant and for a respondent.

The Court has attempted to modernise and simplify the Rules. The new Rules apply to all proceedings commenced after 1 August 2011, as well as to a step in a proceeding commenced before 1 August 2011, if the step is taken on or after 1 August 2011, unless the Court orders otherwise.

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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Authors
Ashley Tsacalos
 
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