Peter A Clarke

The Civil Dispute Resolution Act is now in effect.  The press release provides:

Attorney-General Robert McClelland said changes to Australia’s legal system which commence today will result in more people resolving disputes before going to court, saving money, time and stress.

Mr McClelland said the reforms commencing today as part of the Civil Dispute Resolution Act 2011 will fundamentally change the way people resolve issues in the federal courts.

“Australia’s legal system is changing – we are moving away from an adversarial culture of litigation to a resolution-based approach to disputes,” Mr McClelland said.

“This means greater opportunities for resolution, rather than a system that prioritises ‘winners and losers’.

“Under the new requirements from today, litigants to matters in the Federal Court of Australia and the Federal Magistrates Court must file a statement setting out the genuine steps they took to resolve their dispute and, if they took none, to explain why.

“The reality is that the cost of court proceedings puts litigation out of the reach of many people.

“These changes will increase access to justice for the community by encouraging realistic – and less costly – alternatives to litigation.

“These reforms are intended to have a significant impact on the way the law is administered in Australia.

“The changes will assist in more efficient administration of justice and reinforce the idea that litigation in the courts should be a last resort.

“The courts will always play a central role in our justice system, but it’s clear that launching into litigation is not always the best approach to resolving disputes.

“Parties can benefit from exchanging information, narrowing the issues in dispute and exploring options for resolution leading to more matters being settled by agreement earlier on, before significant costs have been incurred and legal positions become entrenched.

“Even if matters progress to court, experience shows costs will be saved as the issues in dispute will be better understood and narrowed.

“The Civil Dispute Resolution Act 2011 is a significant reform that will modernise Australia’s legal system. It will benefit both those who use the system, and those who work within it.

The attached information sheet is reproduced below:

The substantive provisions of the Civil Dispute Resolution Act 20111 will commence by Proclamation2 on
1 August 2011. The Civil Dispute Resolution Regulations 20113 will also commence on this date.
Purpose of the Civil Dispute Resolution Act 2011
The Act 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.
The Act is consistent with the Federal Government’s Strategic Framework for Access to Justice in the
Federal Civil Justice System,4 which promotes more effective and earlier dispute resolution in order to
overcome barriers to access to justice.
It implements key recommendations from the National Alternative Dispute Resolution Advisory
Council report, The Resolve to Resolve – Embracing ADR to Improve Access to Justice in the Federal
Jurisdiction (2009).5
What does the Act do?
The Act does not mandate the taking of any particular steps before proceedings are commenced. For
the purposes of the Act, a person takes 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.6 The Act provides a non?exhaustive list of examples
of the kinds of steps that could be taken.7
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.8
• 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.9
• Failure to lodge a statement by either party will not prevent the commencement of a proceeding
in the courts.10 However, the court can take into account any such failure when using its existing
case management directions and costs powers,11 including costs orders against lawyers who have
failed to comply with their duties under the Act.12

• Information disclosed during the genuine steps process is subject to all the same protections
from disclosure that currently exist under law.13 For example, section 131 of the Evidence Act 1995
will still protect communications made and documents prepared in connection with an attempt to
negotiate a settlement of the dispute. It is not intended that ‘genuine steps statements’ should go
into any detail of what happened during negotiations or ADR processes undertaken, but instead
indicate what steps have taken place, or if none were taken, why not.
• 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.14
Matters excluded from operation of the Act
The Act will apply to all federal civil law matters, unless an exemption is provided for in the Act or
under the Regulations. Certain Acts have been excluded, particularly those Acts that establish very
specific dispute resolution regimes of their own, such as the Family Law Act 1975, the Migration Act
1958, the Native Title Act 1993 and the Fair Work Act 2009.15
In addition, undertaking genuine steps is either not practicable or appropriate in certain cases. For
that reason, the Act excludes certain proceedings including proceedings relating to a civil penalty or
criminal offence, appeals, ex parte proceedings and proceedings involving a vexatious litigant.16
Regulations have also been made which exclude certain other proceedings from the requirements of
the Act, namely:17
• Proceedings for a sequestration order under section 43 of the Bankruptcy Act 1966, if the act of
bankruptcy relied on arises under paragraph 40(1)(g) of that Act
• Proceedings for an order under section 459A of the Corporations Act 2001 to wind up a company
in insolvency, if the application for the order relies on a failure by the company to comply with a
statutory demand, and
• Proceedings for review of a decision of a Registrar of an eligible court (meaning the Federal Court
or the Federal Magistrates Court).
Court Rules
A genuine steps statement must comply with any additional requirements specified in the Rules of
Court of the eligible court in which the statement is filed.18
It is understood that the Federal Court and the Federal Magistrates Court will both make new Rules and
prescribe forms for ‘genuine steps statements’, which are also expected to commence on 1 August 2011.
Further information