In December last year the NSW Parliament passed legislation amending the Civil Procedure Act 2005, including pre-litigation requirements that parties take “reasonable steps” to resolve a dispute prior to commencing litigation. These protocols followed similar requirements implemented at a Federal level by the Civil Dispute Resolution Act 2011 which apply to all matters commenced after 1 August 2011.
The State pre-litigation protocols were due to apply to all matters after 1 October 2011 other than ‘excluded proceedings’, including matters commenced in the Supreme Court of NSW, ex parte proceedings and proceedings involving vexatious litigants. However yesterday, in a media release by NSW Attorney General Greg Smith SC, it was announced that the NSW Government will postpone the reforms for 18 months pending a review of the consequences of the Federal courts’ pre-trial obligations.
Similar pre-litigation requirements were previously imposed in Victorian Courts from 1 January 2011 by the Civil Procedure Act 2010 (Vic), but were quickly repealed by the Civil Procedure and Legal Profession Amendment Act 2011(Vic) in favour of broader powers for Victorian Courts to impose either a mandatory or voluntary pre-litigation process. This overturn was due to what Victoria’s Attorney-General, Robert Clark, referred to as concerns that the legislation required “parties to engage in pre-litigation procedures whether or not they were likely to be useful in a particular case” and potentially enabled “parties who are only interested in avoiding their responsibilities to postpone and frustrate proceedings”.
Although the NSW Attorney-General has not explicitly identified the reasons for reconsidering the changes, the media release states that “since the laws were passed last year, concerns have been raised by a number of key stakeholders that the provisions may have unintended consequences”.
Mr Smith said “compliance with pre-trial obligations should reduce, not add to, the cost of resolving disputes. The purpose of this postponement is to ensure this is the case”.
The Disputes and Litigation group at DibbsBarker is experienced in all manner of dispute resolution and actively seeks to explore commercial resolutions before resorting to litigation. Despite the lack of legislative requirements we always advise and assist in pre-litigation efforts and, only if a dispute can not be resolved by those means, take the matter to court.
To discuss further, please contact the leader of the DibbsBarker Disputes & Litigation team:
Emma Hodgman | Partner
T +61 2 8233 9650
F +61 2 8233 9555
E emma.hodgman@dibbsbarker.com
