What are your pre-trial obligations under the Civil Disputes Resolution Act 2011 (Cth)?

Posted on in Dispute Resolution

A person who initiates legal proceedings in the Federal Court of Australia or the Federal Circuit Court of Australia must complete a genuine steps statement pursuant to the Civil Disputes Resolution Act 2011 (Cth) (CDRA).[1]

Civil Disputes Resolution Act 2011, Hervey Bay, Maryborough, Bundaberg,

The object of the CDRA is to ensure that, as far as possible, people take genuine steps to resolve disputes before certain civil proceedings are instituted.[2]  In this circumstance, a person taking genuine steps to resolve a dispute is facilitating the just, quick and efficient resolution of the dispute.[3] However, a ‘genuine steps’ statement is not required for either excluded proceedings [4] or where certain exceptions apply such as urgency or safety concerns.[5]

If a person does not file a genuine steps statement the Court may impose costs sanctions under sections 11 and 12 of the CDRA.[6]

A person takes genuine steps to resolve a dispute if the steps taken constitute:

  • A sincere and genuine attempt to resolve the dispute;
  • Have regard to the person’s circumstances; and
  • The nature and circumstances of the dispute. [7]

One of a number of examples of ‘genuine steps’ under sub-section 4(1) of the CDRA is to consider resolving the dispute by a process facilitated by another person such as alternate dispute resolution (ADR).[8] The Explanatory Memorandum to clause 4(1)(d)-(f) of the Civil Dispute Resolution Bill 2010 states,

“[t]he benefits of ADR include a less adversarial process, early resolution of disputes and identification of issues, ownership of the outcomes for parties, flexible remedies and proportional cost where early resolution is achieved.” [9]

ADR is a process in which an independent third party assists the parties to resolve their dispute. There are a number of different methods of ADR such as:

• Arbitration

Arbitration “[i]s a formal dispute resolution process governed by the Commercial Arbitration Act 2013 (Qld) (or the equivalent in other states) in which two or more participants refer their dispute to an independent third person (the arbitrator) for determination.” The result of the arbitration is termed the Award and is enforceable in the same manner as a Court judgement.[10] [11]

• Expert determination

Expert determination is appropriate for disputes that are of a technical or specialised nature. It is an inquisitorial process and can be determinative.

• Case appraisal

Case appraisal is where an independent expert is appointed to investigate and provide an opinion on the issues. The result can be advisory or determinative.

• Conciliation

Conciliation is “… a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner, identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement.” This is an advisory role and not determinative.[12]

• Mediation

Mediation is generally a facilitative process in which an independent person assists the parties to identify the issues in dispute and agree upon an outcome which addresses their needs and concerns. This is a facilitative role and not determinative.

If one method of ADR is not successful in resolving the dispute it is arguably possible to consider another method.[13]

In summary, ADR is one example of a ‘genuine step’ that parties can take before instituting certain civil proceedings. There are a number of different methods of ADR that can be advisory, determinative or facilitative. ADR can assist the parties to narrow the issues in dispute and expedite the just, timely and efficient resolution of the dispute.

This article is made available by David J Lee Mediation Services for educational purposes and only to provide general information about alternate dispute resolution such as mediation. This article must not be relied upon as a substitute for professional legal advice from an Australian Legal Practitioner.

In the next article we will explore the role of a mediator?

[1] Sections 6(1) and 7(1) of the Civil Disputes Resolution Act 2011 (Cth) (CDRA) See s5 for an ‘eligible court’.
[2] Section 3 of the CDRA.
[3] Section 37M(1) of the Federal Court of Australia Act 1976 (Cth).
[4] Sections 15-17 of the CDRA.
[5] Section 6(2)(b) of the CDRA.
[6] See also Superior IP Pty Ltd v Ahearn Fox Patent & Trade Mark Attorneys [2012] FCA 282.
[7] Section 4(1A) of the CDRA.
[8] Section 4(1)(d) and (e) of the CDRA.
[9] Explanatory Memorandum Civil Dispute Resolution Bill 2010 per Attorney-General Hon Robert McClelland MP
[10] Section 35 of the Commercial Arbitration Act 2013 (Qld).
[11] www.resolution.institute/dispute-resolution/resolving-a-dispute
[12] www.resolution.institite
[13] Section 4(1)(f) of the CDRA.