New Commonwealth Pre-Litigation Requirements

published May 24, 2013
The Commonwealth Civil Dispute Resolution Act 2011 came into force on 1 August 2011. The Act requires parties to civil proceedings in the Federal Court of Australia and the Federal Magistrates Court to take genuine steps to resolve or reduce issues in dispute prior to the commencement of proceedings. Recently, the NSW Attorney-General has announced that New South Wales would follow Victoria and postpone the introduction of mandatory pre-litigation requirements.

In our last issue we reported on reforms to civil procedure in Victoria and New South Wales. Recently, the NSW Attorney- General announced that New South Wales would follow Victoria and postpone the introduction of mandatory pre-litigation requirements.

In contrast to New South Wales and Victoria, the Commonwealth Civil Dispute Resolution (CDR) Bill has now been enacted and commenced on 1 August 2011. The CDR Act 2011 requires parties to civil proceedings in the Federal Court of Australia and the Federal Magistrates Court to take genuine steps to resolve or reduce issues in dispute prior to the commencement of proceedings. Genuine steps include:

  • Notifying the other party of the issues in dispute and offering to discuss those issues.

  • Providing documents and other information relevant to the dispute to the other party.

  • Participation in alternative dispute resolution (for example, negotiation and mediation).

At the time of filing proceedings, the parties are required to file a "Genuine Steps Statement" to show compliance with the CDR procedures.

It is too early to assess whether the CDR procedures will significantly alter the conduct of civil proceedings and facilitate the earlier and more efficient resolution of disputes. It also remains to be seen how the judges of the Federal Court enforce compliance with the CDR procedures. However, the focus on the early identification of the issues in dispute, and providing a framework which encourages the parties to resolve or narrow those issues at an early stage, should assist parties to more efficiently and proactively manage civil proceedings in the Federal Courts.