Civil Dispute Resolution Act 2011

The Civil Dispute Resolution Act 2011 commenced on 1 August 2011. The Act encourages parties to take genuine steps to resolve a dispute before commencing certain legal proceedings in the Federal Court and Federal Circuit Court.

The objectives of the Act are to:

• ensure that, as far as possible, people take genuine steps to resolve disputes before certain civil proceedings are instituted
• promote a move away from an adversarial approach to litigation
• improve access to justice by encouraging early dispute resolution.

Genuine steps

The Act is deliberately flexible. What constitutes a 'genuine step' is up to the parties to determine, within the context of their particular dispute.

Examples of what might constitute a genuine step include:

• notifying the other person of the issues that are in dispute and offering to discuss them with a view to resolving the dispute
• providing relevant information and documents to the other person so that they can understand the issues involved and how the dispute might be resolved
• considering whether the dispute could be resolved by a process facilitated by another person, including an alternative dispute resolution process
  or
• attempting to negotiate with the other person, with a view to resolving some or all the issues in dispute.

Parties' obligations under the Act differ according to whether they are the applicant or respondent.

Both applicant and respondent parties must file a genuine steps statement.

Applicant parties must state what steps they have taken to attempt to resolve the dispute, or the reasons why they haven't taken any.

Respondent parties must state whether they agree with the applicant's genuine steps statement, or give details on which parts of the statement they disagree with and why.

Exclusions

The Act applies to all general federal law matters in the Federal Court of Australia and the Federal Circuit Court, unless the proceeding is excluded.

The Act excludes certain kinds of proceedings, including proceedings relating to a civil penalty or criminal offence, appeals, ex parte proceedings and proceedings involving a vexatious litigant.

Certain Commonwealth Acts have also been excluded, particularly where the Act establishes a very specific dispute resolution regime of its own, such as the Family Law Act 1975, the Migration Act 1958, the Native Title Act 1993 and the Fair Work Act 2009.

The complete list of exclusions can be found in the Act and in the Civil Dispute Resolution Regulations 2011, which also exclude:

• 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
• proceedings for review of a decision of a Registrar of the Federal Court of Australia or the Federal Circuit Court.

Application of the Act

There may be consequences for parties who do not comply with their obligations, such as costs implications. The Act allows the court to consider whether a genuine steps statement was filed, and whether genuine steps were taken.

The Federal Court decision of Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys [2012] indicates that courts are prepared to impose consequences for parties who do not comply with their obligations under the Act.

Evaluation of the Act

An evaluation survey of the Civil Dispute Resolution Act ran from August 2012 until August 2013. In conjunction with Australian Survey Research (ASR), the department conducted surveys of interested lawyers, alternative disputes resolution practitioners, and anyone who had been involved in a federal court proceeding.

A final evaluation report is under consideration by government.