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Civil Dispute Resolution Act 2011

Authoritative Version
Act No. 17 of 2011 as amended, taking into account amendments up to Tribunals Amalgamation Act 2015
An Act relating to the resolution of civil disputes, and for related purposes
Administered by: Attorney-General's
Registered 17 Aug 2015
Start Date 01 Jul 2015

Civil Dispute Resolution Act 2011

No. 17, 2011

Compilation No. 2

Compilation date:                              1 July 2015

Includes amendments up to:            Act No. 60, 2015

Registered:                                         17 August 2015

 

About this compilation

This compilation

This is a compilation of the Civil Dispute Resolution Act 2011 that shows the text of the law as amended and in force on 1 July 2015 (the compilation date).

This compilation was prepared on 14 August 2015.

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on ComLaw (www.comlaw.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on ComLaw for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on ComLaw for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


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               4

6............ Genuine steps statement to be filed by applicant................................. 4

7............ Genuine steps statement to be filed by respondent.............................. 4

8............ Genuine steps statements must comply with Rules of Court............... 5

9............ Duty of lawyers to advise people of the requirements of this Act....... 5

10.......... Effect of requirements of this Part....................................................... 5

Part 3—Powers of court                                                                                                    6

11.......... Court may have regard to genuine steps requirements in exercising powers and performing functions   6

12.......... Exercising discretion to award costs................................................... 6

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

Part 4—Exclusions                                                                                                                8

15.......... Proceedings of certain kinds are excluded proceedings....................... 8

16.......... Proceedings under certain Acts are excluded proceedings.................. 9

17.......... Proceedings prescribed by the regulations are excluded proceedings.. 9

Part 5—Other matters                                                                                                       10

17A....... Act does not exclude or limit law relating to disclosure of information, etc.             10

18.......... Rules of Court................................................................................... 10

19.......... Regulations....................................................................................... 10

Endnotes                                                                                                                                    11

Endnote 1—About the endnotes                                                                            11

Endnote 2—Abbreviation key                                                                                12

Endnote 3—Legislation history                                                                             13

Endnote 4—Amendment history                                                                           14


An Act relating to the resolution of civil disputes, and for related purposes

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Civil Dispute Resolution Act 2011.

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.

12 April 2011

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.

1 August 2011

(see F2011L01408)

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be 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

          (1A)  For the purposes of this Act, a person takes genuine steps to resolve a dispute if the steps taken by the person in relation to the dispute constitute a sincere and genuine attempt to resolve the dispute, having regard to the person’s circumstances and the nature and circumstances of the 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 Circuit Court of Australia.

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 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 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.

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;

                           (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

  

17A  Act does not exclude or limit law relating to disclosure of information, etc.

                   To avoid doubt, this Act does not exclude or limit the operation of a law of the Commonwealth, a law of a State or Territory, or the common law (including the rules of equity), relating to the use or disclosure of information, the production of documents or the admissibility of evidence.

18  Rules of Court

                   Rules of Court made under the Federal Court of Australia Act 1976 or the Federal Circuit Court of Australia 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.


Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Endnotes about misdescribed amendments and other matters are included in a compilation only as necessary.

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key

 

A = Act

o = order(s)

ad = added or inserted

Ord = Ordinance

am = amended

orig = original

amdt = amendment

par = paragraph(s)/subparagraph(s)

c = clause(s)

    /sub‑subparagraph(s)

C[x] = Compilation No. x

pres = present

Ch = Chapter(s)

prev = previous

def = definition(s)

(prev…) = previously

Dict = Dictionary

Pt = Part(s)

disallowed = disallowed by Parliament

r = regulation(s)/rule(s)

Div = Division(s)

Reg = Regulation/Regulations

exp = expires/expired or ceases/ceased to have

reloc = relocated

    effect

renum = renumbered

F = Federal Register of Legislative Instruments

rep = repealed

gaz = gazette

rs = repealed and substituted

LI = Legislative Instrument

s = section(s)/subsection(s)

LIA = Legislative Instruments Act 2003

Sch = Schedule(s)

(md) = misdescribed amendment can be given

Sdiv = Subdivision(s)

    effect

SLI = Select Legislative Instrument

(md not incorp) = misdescribed amendment

SR = Statutory Rules

    cannot be given effect

Sub‑Ch = Sub‑Chapter(s)

mod = modified/modification

SubPt = Subpart(s)

No. = Number(s)

underlining = whole or part not

 

    commenced or to be commenced

 

Endnote 3—Legislation history

 

Act

Number and year

Assent

Commencement

Application, saving and transitional provisions

Civil Dispute Resolution Act 2011

17, 2011

12 Apr 2011

s 6–19: 1 Aug 2011 (s 2(1) item 2)
Remainder: 12 Apr 2011 (s 2(1) item 1)

 

Federal Circuit Court of Australia (Consequential Amendments) Act 2013

13, 2013

14 Mar 2013

Sch 1 (items 79–81): 12 Apr 2013 (s 2(1) item 2)

Tribunals Amalgamation Act 2015

60, 2015

26 May 2015

Sch 8 (item 14) and Sch 9: 1 July 2015 (s 2(1) items 19, 22)

Sch 9

 

Endnote 4—Amendment history

 

Provision affected

How affected

Part 1

 

s 5........................................

am No 13, 2013

Part 3

 

s 12......................................

am No 13, 2013

Part 4

 

s 15......................................

am No 60, 2015

Part 5

 

s 18......................................

am No 13, 2013