Having come into effect for Commonwealth jurisdictional matters with the Civil Dispute Resolution Act 2011, and been introduced in New South Wales Uniform Civil Procedure Rules, it is interesting with a review now pending to highlight two developments.
NSW takes a step back from pre-litigation protocols
The NSW parliament has passed the Courts and Other Legislation Further Amendment Bill 2013 (NSW), repealing Part 2A of the Civil Procedure Act 2005 (NSW).
Part 2A required parties to take reasonable steps, having regard to the person’s situation and the nature of the dispute, to resolve a dispute or to clarify and narrow disputed issues prior to commencing proceedings.
The Bill received royal assent on 28 February 2013 and prevents the automatic commencement of Part 2A, which was due to begin on the 13th of March this year.
The NSW Attorney-General that, “the Government remains open to the possibility of implementing reforms of this type in the future, but is committed to doing so in the knowledge that these sorts of reforms improve, rather than hinder, the process of resolving civil disputes in a way that is just, quick and cheap.”
Failing to take ‘genuine steps’ to resolve issues before initiating proceedings may be costly
A recent application involving the pre-litigation protocols that currently exist at the Commonwealth level is reported in the decision of the Federal Court of Appeal in Hookway v M I D Pty Ltd  FCA 1456.
The Court reinforced the notion that failing to take genuine steps to resolve disputes before instituting proceedings precludes being awarded the costs of making the application or proceeding.
The Court made note that genuine attempts to resolve disputes do not always involve formal mechanisms, but require at least the demonstration of an attitude treating litigation as a last resort.