CIVIL DISPUTE RESOLUTION BILL 2011

i Civil Dispute Resolution Bill 2010 No. , 2010

Contents

Part 1--Preliminary

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

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

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

5 Definitions

.........................................................................................

Part 2--Obligation to take genuine steps to resolve disputes

before proceedings are instituted

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

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

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

Duty of lawyers to advise people of the requirements of this

Act ..................................................................................................... 6

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

Part 3--Powers of court

Court may have regard to genuine steps requirements in

exercising powers and performing functions ..................................... 7

12 Exercising

discretion

to award costs .................................................. 7

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

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

Part 4--Exclusions

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

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

Proceedings prescribed by the regulations are excluded

proceedings ...................................................................................... 10

Part 5--Other matters

18 Rules

Court

..................................................................................

19 Regulations

......................................................................................

Civil Dispute Resolution Bill 2010 No. , 2010 1

A Bill for an Act relating to the resolution of civil

disputes, and for related purposes

The Parliament of Australia enacts:

Part 1--Preliminary

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

Part 1 Preliminary

Section 3

2 Civil Dispute Resolution Bill 2010 No. , 2010

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

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

(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;

Preliminary Part 1

Section 5

Civil Dispute Resolution Bill 2010 No. , 2010 3

(b) responding appropriately to any such notification;

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.

Part 1 Preliminary

Section 5

4 Civil Dispute Resolution Bill 2010 No. , 2010

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.

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

Part 2

Section 6

Civil Dispute Resolution Bill 2010 No. , 2010 5

Part 2--Obligation 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

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

instituted

Section 8

6 Civil Dispute Resolution Bill 2010 No. , 2010

(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.

Powers of court Part 3

Section 11

Civil Dispute Resolution Bill 2010 No. , 2010 7

Part 3--Powers 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.

Exclusions Part 4

Section 15

Civil Dispute Resolution Bill 2010 No. , 2010 9

Part 4--Exclusions

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;

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.

Part 4 Exclusions

Section 16

10 Civil Dispute Resolution Bill 2010 No. , 2010

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;

under which the proceedings arise.

Other matters Part 5

Section 18

Civil Dispute Resolution Bill 2010 No. , 2010 11

Part 5--Other 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;

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.

Commonwealth of Australia Bills

CIVIL DISPUTE RESOLUTION BILL 2011