Parties involved in civil disputes are being encouraged to resolve their disputes outside the federal court system under a Bill which had its Second Reading in the now dissolved 42nd Parliament on 16 June 2010. The Civil Dispute Resolution Bill 2010 (Cth) (Bill), introduced by the Attorney-General, the Hon Robert McClelland MP, seeks to ensure that parties take “genuine steps” to resolve a civil dispute before proceedings are commenced in the Federal Court of Australia or the Federal Magistrates Court. It should be noted that the Bill lapsed on 19 July 2010 following the dissolution of the House of Representatives. However, as the Bill may still become legislation with the return of the existing government it continues to remain relevant as it could be reintroduced once the new Parliament is convened. This article outlines some of its key features.
The Bill, which was introduced under a government initiative towards providing greater access to justice, draws on recommendations from the National Alternative Dispute Resolution Advisory Council (NADRAC) in its November 2009 report, The Resolve to Resolve – Embracing ADR to improve access to justice in the federal jurisdiction.
During a speech on 17 May 2010, the Attorney-General stated that “courts, parties and lawyers all have a role to play” in achieving the objective of appropriate dispute resolution processes and that the Bill will complement “the active case management powers introduced in the Federal Court last year which promote the timely, inexpensive, and efficient resolution of disputes”.
According to the Explanatory Memorandum, the 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”. Under the proposed legislation, when a party commences proceedings in the Federal Court or the Federal Magistrates Court it will be “required to file a statement saying what steps they have taken to resolve their dispute or, if they have not taken any steps, the reason why”. This will be known as a “genuine steps statement”. A respondent in proceedings who is given a copy of a “genuine steps statement” filed by an applicant must also file a “genuine steps statement” before the hearing date specified in the application.
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. In addition, lawyers will also have an obligation to “advise their clients of the requirement and assist them to comply with the requirement” to file a “genuine steps statement”.
The Bill does not attempt to prescribe specific actions that demonstrate “genuine steps” in terms of resolving a dispute. Instead, the parties are given a wide discretion to attempt to resolve their disputes and the courts may have regard to the genuine steps outlined in the statement for the purposes of exercising its powers and performing its functions. This broad discretionary power is designed to “ensure that the focus is on resolution and identifying the central issues without incurring unnecessary upfront costs”. The rules of the respective court may also make provision in relation to the form of genuine steps statements, the matters to be specified in genuine steps statements and the applicable time limits.
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. Also, matters that have already been considered by a statutory tribunal, such as the Administrative Appeals Tribunal, Migration Review Tribunal or Veteran’s Review Board are excluded and proceedings under other legislation, such as the Australian Citizenship Act 2007 (Cth), Child Support (Registration and Collection Act) 1988 (Cth) and the Migration Act 1958 (Cth) are also excluded.
The provisions of the Bill were referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report. However, due to the dissolution of Parliament, the Committee resolved not to continue its inquiry. If the Bill is reintroduced in the new Parliament, the Senate can again refer it to the Committee for further consideration.