Federal Register of Legislation - Australian Government

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A Bill for an Act relating to the resolution of civil disputes, and for related purposes
Administered by: Attorney-General's
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Registered 18 Jun 2010
Introduced HR 16 Jun 2010

 

2008‑2009‑2010

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Civil Dispute Resolution Bill 2010

 

No.      , 2010

 

(Attorney‑General)

 

 

 

A Bill for an Act relating to the resolution of civil disputes, and for related purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                               1

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 1

3............ Object of Act...................................................................................... 2

4............ Genuine steps to resolve a dispute..................................................... 2

5............ Definitions.......................................................................................... 3

Part 2—Obligation to take genuine steps to resolve disputes before proceedings are instituted                5

6............ Genuine steps statement to be filed by applicant.............................. 5

7............ Genuine steps statement to be filed by respondent........................... 5

8............ Genuine steps statements must comply with Rules of Court........... 6

9............ Duty of lawyers to advise people of the requirements of this Act.... 6

10.......... Effect of requirements of this Part..................................................... 6

Part 3—Powers of court                                                                                                       7

11.......... Court may have regard to genuine steps requirements in exercising powers and performing functions  7

12.......... Exercising discretion to award costs................................................... 7

13.......... Powers are in addition to powers under other Acts........................... 7

14.......... Relationship with section 131 of the Evidence Act........................... 8

Part 4—Exclusions                                                                                                                 9

15.......... Proceedings of certain kinds are excluded proceedings....................... 9

16.......... Proceedings under certain Acts are excluded proceedings................ 10

17.......... Proceedings prescribed by the regulations are excluded proceedings 10

Part 5—Other matters                                                                                                        11

18.......... Rules of Court.................................................................................. 11

19.......... Regulations....................................................................................... 11

 


A Bill for an Act relating to the resolution of civil disputes, and for related purposes

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Civil Dispute Resolution Act 2010.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Part 1 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Parts 2 to 5

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

Note:          This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Object of Act

                   The object of this Act is to ensure that, as far as possible, people take genuine steps to resolve disputes before certain civil proceedings are instituted.

4  Genuine steps to resolve a dispute

             (1)  Examples of steps that could be taken by a person as part of taking genuine steps to resolve a dispute with another person, include the following:

                     (a)  notifying the other person of the issues that are, or may be, in dispute, and offering to discuss them, with a view to resolving the dispute;

                     (b)  responding appropriately to any such notification;

                     (c)  providing relevant information and documents to the other person to enable the other person to understand the issues involved and how the dispute might be resolved;

                     (d)  considering whether the dispute could be resolved by a process facilitated by another person, including an alternative dispute resolution process;

                     (e)  if such a process is agreed to:

                              (i) agreeing on a particular person to facilitate the process; and

                             (ii)  attending the process;

                      (f)  if such a process is conducted but does not result in resolution of the dispute—considering a different process;

                     (g)  attempting to negotiate with the other person, with a view to resolving some or all the issues in dispute, or authorising a representative to do so.

             (2)  Subsection (1) does not limit the steps that may constitute taking genuine steps to resolve a dispute.

5  Definitions

                   In this Act:

applicant in proceedings means a person who institutes the proceedings.

application means an application (however described) by which civil proceedings are instituted.

civil penalty provision means a civil penalty provision however described.

Commonwealth authority means a body corporate established for a public purpose by or under a law of the Commonwealth.

eligible court means the following:

                     (a)  the Federal Court of Australia;

                     (b)  the Federal Magistrates Court.

excluded proceedings means proceedings that are excluded proceedings under Part 4.

genuine steps statement:

                     (a)  for an applicant—see section 6;

                     (b)  for a respondent—see section 7.

lawyer has the same meaning as in the Federal Court of Australia Act 1976.

respondent in proceedings means a person against whom the proceedings are instituted.


 

Part 2Obligation to take genuine steps to resolve disputes before proceedings are instituted

  

6  Genuine steps statement to be filed by applicant

             (1)  An applicant who institutes civil proceedings in an eligible court must file a genuine steps statement at the time of filing the application.

             (2)  A genuine steps statement filed under subsection (1) must specify:

                     (a)  the steps that have been taken to try to resolve the issues in dispute between the applicant and the respondent in the proceedings; or

                     (b)  the reasons why no such steps were taken, which may relate to, but are not limited to the following:

                              (i)  the urgency of the proceedings;

                             (ii)  whether, and the extent to which, the safety or security of any person or property would have been compromised by taking such steps.

             (3)  A genuine steps statement need not be filed under subsection (1) in relation to proceedings that are wholly excluded proceedings.

             (4)  A genuine steps statement must be filed under subsection (1) in relation to proceedings that are in part excluded proceedings, but the statement need not relate to the parts of the proceedings that are excluded proceedings.

7  Genuine steps statement to be filed by respondent

             (1)  A respondent in proceedings who is given a copy of a genuine steps statement filed by an applicant in the proceedings must file a genuine steps statement before the hearing date specified in the application.

             (2)  A genuine steps statement filed under subsection (1) must:

                     (a)  state that the respondent agrees with the genuine steps statement filed by the applicant; or

                     (b)  if the respondent disagrees in whole or part with the genuine steps statement filed by the applicant—specify the respect in which, and reasons why, the respondent disagrees.

8  Genuine steps statements must comply with Rules of Court

                   A genuine steps statement must comply with any additional requirements specified in the Rules of Court of the eligible court (see section 18) in which the statement is filed.

9  Duty of lawyers to advise people of the requirements of this Act

                   A lawyer acting for a person who is required to file a genuine steps statement must:

                     (a)  advise the person of the requirement; and

                     (b)  assist the person to comply with the requirement.

10  Effect of requirements of this Part

             (1)  The requirements of this Part are in addition to, and not instead of, requirements imposed by any other Act.

             (2)  A failure to file a genuine steps statement in proceedings does not invalidate the application instituting the proceedings, a response to such an application or the proceedings.


 

Part 3Powers of court

  

11  Court may have regard to genuine steps requirements in exercising powers and performing functions

                   An eligible court may, in performing functions or exercising powers in relation to civil proceedings before it, take account of the following:

                     (a)  whether a person who was required to file a genuine steps statement under Part 2 in the proceedings filed such a statement;

                     (b)  whether such a person took genuine steps to resolve the dispute.

12  Exercising discretion to award costs

             (1)  In exercising a discretion to award costs in a civil proceeding in an eligible court, the court, Judge, Federal Magistrate or other person exercising the discretion may take account of:

                     (a)  whether a person who was required to file a genuine steps statement under Part 2 in the proceedings filed such a statement; and

                     (b)  whether such a person took genuine steps to resolve the dispute.

             (2)  In exercising a discretion to award costs in a civil proceeding in an eligible court, the court, Judge, Federal Magistrate or other person exercising the discretion may take account of any failure by a lawyer to comply with the duty imposed by section 9.

             (3)  If a lawyer is ordered to bear costs personally because of a failure to comply with section 9, the lawyer must not recover the costs from the lawyer’s client.

13  Powers are in addition to powers under other Acts

                   The powers conferred on an eligible court under this Part are in addition to any other powers of the court, whether conferred by this Act or otherwise.

14  Relationship with section 131 of the Evidence Act

                   To avoid doubt, this Part does not affect the operation of section 131 of the Evidence Act 1995.


 

Part 4Exclusions

  

15  Proceedings of certain kinds are excluded proceedings

                   Proceedings are excluded proceedings to the extent that they are any of the following:

                     (a)  proceedings for an order imposing a pecuniary penalty for a contravention of a civil penalty provision;

                     (b)  proceedings brought by or on behalf of the Commonwealth or a Commonwealth authority for an order connected with:

                              (i)  a criminal offence or the possible commission of a criminal offence; or

                             (ii)  a contravention or possible contravention of a civil penalty provision;

                     (c)  proceedings that relate to a decision of, or a decision that has been subject to review by:

                              (i)  the Administrative Appeals Tribunal;

                             (ii)  the Australian Competition Tribunal;

                            (iii)  the Copyright Tribunal of Australia;

                            (iv)  the Migration Review Tribunal;

                             (v)  the Refugee Review Tribunal;

                            (vi)  the Social Security Appeals Tribunal;

                           (vii)  the Veterans’ Review Board;

                           (viii)  a body prescribed by the regulations;

                     (d)  proceedings in the appellate jurisdiction of an eligible court;

                     (e)  proceedings arising from the exercise of a power to compel a person to answer questions, produce documents or appear before a person or body under a law of the Commonwealth;

                      (f)  proceedings in relation to the exercise of a power to issue a warrant, or the exercise of a power under a warrant;

                     (g)  proceedings that are, or relate to, proceedings in which the applicant or the respondent has been declared a vexatious litigant under a law relating to vexatious litigants (however described);

                     (h)  ex parte proceedings;

                      (i)  proceedings to enforce an enforceable undertaking.

16  Proceedings under certain Acts are excluded proceedings

                   Proceedings are also excluded proceedings to the extent that they are proceedings under, or under regulations made under, any of the following Acts:

                     (a)  the Australian Citizenship Act 2007;

                     (b)  the Child Support (Registration and Collection) Act 1988;

                     (c)  the Fair Work Act 2009;

                     (d)  the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009;

                     (e)  the Family Law Act 1975;

                      (f)  the Migration Act 1958;

                     (g)  the National Security Information (Criminal and Civil Proceedings) Act 2004;

                     (h)  the Native Title Act 1993;

                      (i)  the Proceeds of Crime Act 1987;

                      (j)  the Proceeds of Crime Act 2002.

17  Proceedings prescribed by the regulations are excluded proceedings

             (1)  Proceedings are excluded proceedings to the extent that they are proceedings prescribed by the regulations for the purposes of this subsection.

             (2)  Regulations made for the purposes of subsection (1) may specify proceedings in any way including, but not limited to, by reference to the following:

                     (a)  the nature of the proceedings;

                     (b)  the subject matter of the proceedings;

                     (c)  the Act or regulations, or provision of an Act or regulations, under which the proceedings arise.


 

Part 5Other matters

  

18  Rules of Court

                   Rules of Court made under the Federal Court of Australia Act 1976 or the Federal Magistrates Act 1999 may make provision for or in relation to the following:

                     (a)  the form of genuine steps statements;

                     (b)  the matters that are to be specified in genuine steps statements;

                     (c)  time limits relating to the provision of copies of genuine steps statements.

19  Regulations

                   The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.