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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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