Friday, April 8, 2011

Civil Dispute Resolution Bill - federal pre-litigation procedures

The Civil Dispute Resolution Bill (the CDR Bill) was recently passed by both houses of the Commonwealth Parliament. As far as I am aware it has not received Royal Assent, but I will let you know when it does. Generally speaking, the CDR Bill requires the parties to undertake 'genuine steps' to resolve a proceeding before it is commenced, and requires the parties to make a statement about those steps when issuing proceedings. I have included a discussion and summary of the CDR Bill in this post.

The steps that the parties ought to take in the CDR Bill are less onerous than those that were recently repealed from the Civil Procedure Act 2010 (Vic). I discussed the repeal in my previous post 'Repeal of the pre-litigation requirements from the Civil Procedure Act 2010 (Vic)'. For instance, the CDR Bill doesn't prescribe what genuine steps are required, whereas Part 3 of the Civil Procedure Act 2010 (Vic) required (before it was repealed), at a minimum, 'the exchange of appropriate pre-litigation correspondence, information and documents critical to the resolution of the dispute' and consideration of negotiation or appropriate dispute resolution to resolve the dispute.

The explanatory memorandum is very helpful is summarising the purpose and effect of the CDR Bill :
This Bill encourages the resolution of civil disputes outside of the courts and seeks to improve access to justice by focusing parties and their lawyers on the early resolution of disputes. 
This Bill seeks to ensure that, as far as possible, parties take ‘genuine steps’ to resolve a civil dispute before proceedings are commenced in the Federal Court or the Federal Magistrates Court. When commencing proceedings in a court, parties are required to file a statement saying what steps they have taken to resolve their dispute or, if they have not taken any steps, the reasons why. The Bill gives examples of reasons why steps might not be taken, including urgency, or where the safety of a person or security of property is compromised. The court can take into account the failure to take steps when exercising its  existing case management directions andcosts powers.

The Bill does not require parties to take any particular specific step – the most appropriate steps to take depend on the circumstances of the particular dispute. The Bill is deliberately flexible in allowing parties to tailor the genuine steps they take to the circumstances of the dispute.

The genuine steps statements provide additional information for the court about attempts that have been made to resolve the dispute. Based on this information, the court can make orders and directions under its existing case management powers, and consider compliance with the requirement and the extent of any steps taken in awarding costs.

Lawyers are also under an obligation to advise their clients of the requirement and assist them to comply.

The Bill applies to all civil proceedings other than excluded matters under Part 4. Matters are excluded if the subject matter is inappropriate, for example a civil penalty proceeding and related matters, or if there are already specific mandatory pre-action steps that would make further steps inappropriate, such as under the Family Law Act 1975. Further, matters that have already been considered by a statutory tribunal are excluded, such as the Administrative Appeals Tribunal, Migration Review Tribunal or Veteran’s Review Board.
The Bill draws on recommendations of the National Alternative Dispute Resolution Advisory Council (NADRAC) in its report, The Resolve to Resolve - Embracing ADR to improve access to justice in the federal jurisdiction (November 2009).

The Bill complements the Access to Justice (Civil Litigation Reforms) Act 2009 which amended the Federal Court of Australia Act 1976 to impose an overarching purpose to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible. It also complements existing case management powers contained in Part 6 of the Federal Magistrates Act 1999.
The Bill is a further step to support a cultural change in civil dispute resolution away from adversarial litigation.
A summary of the Parts of the CDR Bill follows:

Part 1 - Preliminary
  • Part 1 specifies the purpose, being the taking of genuine steps before litigation, and gives examples of genuine steps.
  • Part 1 commences when the CDR Bill receives Royal Assent and Parts 2 to 5 commence on a date to be fixed or, failing that, 6 months and a day after Royal Assent.
  • It defines an 'eligible court' as the Federal Court of Australia or the Federal Magistrates' Court.
Part 2 - Obligation to take genuine steps to resolve disputes before proceedings are instituted
  • Part 2 requires both parties to a civil proceeding in an eligible court to file a statement setting out the genuine steps that have been taken, or the reasons for not taking those genuine steps. 
  • The applicant must file the statement at the time of filing the application and the respondent must file the statement when it receives the applicant's statement and before the hearing specified in the applicant's application. 
  • Part 2 includes a section obliging a lawyer for a party to advise the party of the requirement to file a genuine steps statement and assist the party to comply with the requirement.
Part 3 - Powers of court
  • Part 3 gives an eligible court the discretion, when performing functions, exercising powers and making orders as to costs, to take into account whether a party filed a genuine steps statement and whether a party took genuine steps. 
  • Part 3 prohibits a lawyer, against whom a costs order was made, recovering those costs from the client.
Part 4 - Exclusions
  • Part 4 sets out a list of excluded proceedings. Examples include proceedings for the imposition of a pecuniary penalty for a contravention of a civil penalty provision, proceedings that relate to a decision of, or decisions that have been subject to review by various administrative tribunals, and proceedings in an appellate jurisdiction. 
  • Part 4 also sets out a list of excluded proceedings made under certain Acts. Examples include the Fair Work Act 2009 (Cth), Migration Act 1958 (Cth) and the Proceeds of Crime Act 2002 (Cth).
Part 5 - Other matters
  • Part 5 provides that an eligible court may make their own rules concerning the form of genuine steps statements, the matter specified in the statements and any time limits. 
  • Part 5 provides that the Governor-General may make regulations concerning the CDR Bill .

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