Civil Dispute Resolution Regulations 2011

Administered by Attorney-General's Department

Legislation au F2011L01409 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Select Legislative Instrument 2011 No. 113

 

Issued by the Authority of the Attorney-General

 

Civil Dispute Resolution Act 2011

 

Civil Dispute Resolution Regulations 2011

 

Section 19 of the Civil Dispute Resolution Act 2011 (the Act) provides that the Governor‑General may make regulations prescribing matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The Act, which received Royal Assent on 12 April 2011, encourages parties to take genuine steps to resolve their dispute, where possible, before commencing proceedings in the Federal Court of Australia or the Federal Magistrates Court.

 

Subsection 17(1) of the Act provides that proceedings are excluded proceedings if they are prescribed by the regulations for the purpose of that subsection.  Excluded proceedings are not subject to the requirements of the Act.  In particular, litigants in such proceedings are not obliged to file a genuine steps statement under section 6 or section 7 of the Act with respect to what (if any) genuine steps have been taken to resolve the dispute before court proceedings are commenced. 

 

Subsection 17(2) provides that regulations made for the purposes of subsection 17(1) may specify the proceedings in any way including, but not limited to, the nature of the proceedings, their subject matter or the Act or regulations, or provision of an Act or regulations, under which the proceedings arise.

 

The purpose of the Regulations is to exclude a number of proceedings in the Federal Court of Australia and the Federal Magistrates Court from the operation of the Act.

 

Details on the Regulations are set out in the Attachment.

 

The Regulations commence on 1 August 2011, which coincides with the date of commencement by Proclamation of Parts 2 to 5 of the Act. 

 

The Federal Court of Australia’s revised Rules are also proposed to commence on 1 August 2011, which will prevent confusion for litigants and make it easier for the Court to deal with the changed environment.  

 

The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

 

 Authority: Section 19 of the Civil Dispute

Resolution Act 2011


ATTACHMENT

 

Details of the Civil Dispute Resolution Regulations 2011

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Civil Dispute Resolution Regulations 2011.

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on 1 August 2011. 

 

Regulation 3 – Definition

 

This regulation provides that in the Regulations, ‘Act’ means the Civil Dispute Resolution Act 2011.

 

Regulation 4 – Excluded proceedings

 

This regulation provides for the Regulations to exclude a number of proceedings from the operation of the Act.

 

Paragraph (a) – Proceedings for a sequestration order under section 43 of the Bankruptcy Act 1966, if the act of bankruptcy relied on arises under paragraph 40(1)(g) of that Act

 

This paragraph provides for the exclusion of bankruptcy creditors’ petitions under section 43 of the Bankruptcy Act 1966, which are based on an act of bankruptcy arising under paragraph 40(1)(g) of the Bankruptcy Act 1966.  Under section 43 of the Bankruptcy Act 1966, a creditor can petition the court to declare a debtor bankrupt on a number of grounds.  The most common ground is a presumption of bankruptcy arising from the failure to comply with a bankruptcy notice (under paragraph 40(1)(g) of the Bankruptcy Act 1966).

 

It is appropriate to exclude these types of proceedings because:

 

  • where a statutory presumption of bankruptcy arises, the proceedings are not inter‑partes proceedings

 

  • there is an element of public interest in insolvent persons being declared bankrupt, and

 

  • these are usually high volume cases (usually dealt with by registrars exercising delegated judicial power).

 

Paragraph (b) – Proceedings for an order under section 459A of the Corporations Act 2001 to wind up a company in insolvency, if the application for the order relies on a failure by the company to comply with a statutory demand

 

This paragraph provides for the exclusion of winding up applications under section 459A of the Corporations Act 2001, which are based on the failure to comply with a statutory demand.  Under section 459A of the Corporations Act 2001, a creditor can apply for a company to be wound up in insolvency on a number of grounds.  The most common ground is a failure to comply with a statutory demand.

 

It is appropriate to exclude these types of proceedings because:

 

  • where a statutory presumption of insolvency arises, the proceedings are not inter‑partes proceedings

 

  • there is an element of public interest in insolvent companies being wound up, and

 

  • these are usually high volume cases (usually dealt with by registrars exercising delegated judicial power).

 

Paragraph (c) – Proceedings for review of a decision of a Registrar of an eligible court

 

This paragraph provides for the exclusion of all proceedings for reviews of Registrars’ decisions (administrative and judicial).  Reviews of Registrars’ decisions exercising delegated judicial power occur under subsection 35A(6) of the Federal Court of Australia Act 1976 and subsection 104(3) of the Federal Magistrates Act 1999.  Reviews of Registrars’ decisions exercising administrative power occur under the Administrative Decisions (Judicial Review) Act 1977 and section 39B of the Judiciary Act 1903.

 

Overview

The Civil Dispute Resolution Act 2011 was enacted to foster a more efficient and effective resolution of civil disputes by encouraging parties to attempt to resolve their disputes before initiating court proceedings. This Act, which received Royal Assent on 12 April 2011, aims to streamline the process by which disputes are settled outside the courtroom, thereby reducing the burden on the Federal Court of Australia and the Federal Magistrates Court. The Civil Dispute Resolution Regulations 2011 were made under the authority of Section 19 of the Act, which empowers the Governor-General to create regulations necessary for the implementation and enforcement of the Act. The primary objective of these regulations is to exclude certain types of proceedings from the requirements of the Act, such as those related to bankruptcy and insolvency, to facilitate a more straightforward judicial process for high-volume cases that often involve statutory presumptions and public interest considerations.

Scope and Application

The Civil Dispute Resolution Act 2011 aims to encourage parties to take genuine steps to resolve their disputes before initiating legal proceedings in the Federal Court of Australia or the Federal Magistrates Court. The Act applies to any individual or entity involved in civil disputes that may be brought before these federal courts. Its primary focus is on ensuring that parties consider alternative dispute resolution methods, and it requires litigants to file a genuine steps statement detailing any efforts made to resolve the dispute before court proceedings commence. The Act’s jurisdiction is national, applying across Australia as it pertains to federal courts. However, the Act’s requirements do not apply to certain specified types of proceedings, as delineated in the Civil Dispute Resolution Regulations 2011. These regulations exclude specific proceedings from the Act's purview, including bankruptcy creditors’ petitions based on certain acts of bankruptcy, winding-up applications for companies in insolvency based on failure to comply with a statutory demand, and reviews of decisions made by Registrars of eligible courts. These exclusions are justified on the grounds that such proceedings often involve statutory presumptions and high-volume cases that are typically handled by registrars exercising delegated judicial power. The Regulations, which commenced on 1 August 2011, detail the specific types of proceedings that are exempt from the Act's requirements, thereby clarifying the scope of the Act’s application.

Key Provisions

The Civil Dispute Resolution Act 2011 (the Act) is designed to encourage parties to attempt to resolve their disputes before initiating legal proceedings in the Federal Court of Australia or the Federal Magistrates Court. Under section 19, the Governor-General has the authority to create regulations that are necessary or convenient to implement the Act. The Act includes provisions that mandate parties to take genuine steps to resolve disputes, unless the proceedings are classified as "excluded proceedings" under subsection 17(1). Excluded proceedings are exempt from the requirements of the Act, meaning that parties involved in such proceedings are not required to file a genuine steps statement as stipulated in sections 6 or 7 of the Act. The Civil Dispute Resolution Regulations 2011, made under the authority of section 19 of the Act, detail the specific proceedings that are excluded from the operation of the Act. The regulations aim to streamline the judicial process by excluding certain high-volume, administrative proceedings from the Act's requirements. For example, Regulation 4(a) excludes proceedings for a sequestration order under section 43 of the Bankruptcy Act 1966, specifically those based on an act of bankruptcy arising under paragraph 40(1)(g) of that Act. Similarly, Regulation 4(b) excludes winding up applications under section 459A of the Corporations Act 2001, which are based on the failure to comply with a statutory demand. Furthermore, Regulation 4(c) excludes proceedings for the review of a decision made by a Registrar of an eligible court. The Act imposes specific obligations on the parties involved in proceedings that are not excluded. These obligations include taking genuine steps to resolve disputes before initiating legal proceedings, filing the requisite genuine steps statement, and complying with any other procedural requirements outlined in the Act. The exclusion of certain types of proceedings from the Act's scope aims to balance the need for efficient judicial processes with the imperative to encourage dispute resolution outside of the courtroom. By excluding high-volume, administrative proceedings, the Act seeks to ensure that judicial resources are allocated efficiently and effectively. Failure to comply with the Act’s requirements can lead to civil or criminal consequences, depending on the nature and severity of the breach. While the Act itself does not explicitly detail specific penalties for breaches, the regulations and rules governing the Federal Court of Australia and the Federal Magistrates Court may impose sanctions. Typically, breaches of procedural requirements in federal courts can result in penalties such as fines, orders for costs, or even more severe consequences in cases of serious misconduct. The exact penalties would be determined by the specific court rules and the nature of the breach.

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