The Civil Dispute Resolution Act: old dog - new tricks?
The Civil Dispute Resolution Act 2011 (Cth) (the Act) came into
force on 1 August 2011. Now that the regime has celebrated its
first birthday we can ask: is it working?
The Act promised to “ensure that, as far as possible, people take
genuine steps to resolve disputes before certain civil proceedings
are instituted” in the Australian Federal Court or the Federal
Magistrates Court (section 3).
Under the Act:
A party commencing proceedings has to file a “genuine steps” statement that states:
what steps have been taken to resolve the issues in dispute; or
why no such steps were taken e.g. the urgency of the proceedings.
Before the first court date the party being sued has to file a genuine steps statement stating whether the respondent agrees with the applicant’s statement;
Lawyers acting for each party must advise their client of the requirements and assist them to comply.
Despite its intention to save both the parties and the Court time and
costs, there is little evidence that in practice, the legislation actually
achieves this. Some problems with the regime include:
the pre-litigation procedures are too rigid and result in delay and excessive costs before the dispute goes to court;
the pre-litigation processes don’t recognise the potential power and resource imbalance that may exist between parties to a dispute;
the Act achieves costs savings for Courts at the expense of the parties.
The Federal Court is taking compliance with the Act seriously and
recently imposed cost sanctions on lawyers acting for both parties
in a recent case where the litigation was conducted contrary to the
Act. To add insult to injury the case was also referred to regulatory
authorities. The Act contemplates that in-house lawyers also owe
obligations under the Act.
Our advice, unless the proceedings are urgent, is to make sure you
comply with the Act or if you really want to get around it simply file in
one of the State courts which currently don’t impose such
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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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