The new Australian Civil Dispute Resolution Act 2011, which applies to all federal civil law matters and came into force on 1 August 2011, encourages parties to take ‘genuine steps’ to resolve their disputes before commencing certain proceedings in the Federal Court of Australia or in the Federal Magistrates Court. A person will be taken to have made genuine steps to resolve a dispute if the steps taken are a sincere and genuine attempt to resolve the dispute, having regard to the person’s circumstances and the nature and the circumstances of the dispute. The Act does not mandate the taking of any particular steps before proceedings are commenced.

Key points to note are:

  • Applicants will be required to file a ‘genuine steps statement’ saying what steps they have taken to resolve the dispute prior to commencing proceedings, or if they have not taken any steps to resolve the dispute, the reasons why not;
  • Respondents will be required to file a genuine steps statement indicating if they agree with the applicant’s statement and, if not, the reasons why not;
  • Failure to lodge a statement by either party will not prevent the commencement of a proceeding in the courts. However, the court can take into account any such failure when using its existing case management directions and costs powers;
  • Information disclosed during the genuine steps process is subject to the same protections from disclosure that currently exist; and
  • A lawyer acting for a person who is required to file a genuine steps statement must advise the person of the requirement and assist the person to comply with the requirement.