Michael Keenan (Stirling, Liberal Party, Shadow Minister for Justice, Customs and Border Protection) Share this | Link to this | Hansard source

I rise to speak on the Civil Dispute Resolution Bill 2010, and I will keep my comments relatively brief. Civil disputes today have the unfortunate association with an adversarial culture; a culture that conflicts with the values our courts are designed to uphold. Too often people involved in civil disputes slide into the litigious entrenchment of a mud-slinging match between two adversaries. This leads to lengthy court battles and the greater burden on the court system.

The aims of this bill are to change that culture to encourage people to turn their minds to resolution. In the case where a resolution cannot be reached, the bill ensures that when such matters progress to court the issues are properly identified, ultimately reducing the time required for a court to determine the matter. The bill is intended to complement the Access to Justice (Civil Litigation Reforms) Amendment Act 2009, which imposed a requirement that federal civil procedure be directed towards the just resolution of disputes quickly, inexpensively and as efficiently as possible. It implements the recommendations of the National Alternative Dispute Resolution Advisory Council in its 2009 report The resolve to resolve.

The principle measure in this bill is to require an applicant in proceedings in the Federal Magistrates Court or the Federal Court to file a genuine step statement at the time of commencing proceedings, describing the steps that have been taken in an attempt to resolve the dispute. The requirement does not apply to family law or native title proceedings, which have their own alternative dispute resolution processes. It does not apply to criminal or quasi-criminal proceedings, appeals—including appeals from tribunal decisions—where a party has been declared a vexatious litigant, proceedings that relate to warrants, or compulsory disclosure notice or ex parte proceedings. When proceedings are urgent or if the safety or security of a person or property would be compromised by taking alternative steps, the statement may specify the reasons that such steps were not taken. The sanctions applicable to failing to take genuine steps are at the court’s discretion and are in the nature of other failures to comply with the rules of the court, such as appropriate interlocutory orders and orders as to costs. Examples of alternative steps include mediation, conciliation, expert appraisal, early mutual evaluation and arbitration. Less formal processes, including simple offers to negotiate and the timely exchange of information and documents, would also be captured by the requirement.

A potential problem arises in relation to the obligation imposed upon lawyers to advise claims as to compliance with the requirement. The bill provides that the lawyer must not only advise but also assist clients to comply. Costs may be ordered against lawyers personally if they fail to comply with this obligation. Lawyers already have a duty to assist their clients and, where the client accepts the advice, restating it adds nothing. The question, however, arises as to the scope of the obligation upon a legal representative to assist a party to comply with its duty in circumstances in which a party chooses to conduct the proceeding in a manner which may not be in compliance with a duty imposed upon the client.

In conclusion, it is important to note that this bill does not prescribe specific steps to be undertaken. It is about flexibility to enable parties to turn their minds to what they can do to attempt to resolve the dispute before it reaches the courts—I think something that everyone would agree is a sensible outcome. Whilst the coalition support the bill in principle, we reserve the right to move amendments pending the report of the Senate Legal and Constitutional Affairs Legislation Committee’s report, which is being undertaken at the moment.

Shayne Neumann (Blair, Australian Labor Party) Share this | Link to this | Hansard source

I speak in support of the Civil Dispute Resolution Bill 2010. About five per cent of cases, whether it is in the Federal Magistrates Court, the Family Court or the supreme or district courts, ever get to a final hearing. Ninety-five per cent of cases are resolved either at pre-institution stage or during the course of conciliation conferences, mediation, collaborative law methods and simply negotiating on a without-prejudice basis by correspondence or through face-to-face meetings at solicitor’s or litigant’s premises.

But there are cases that get to a final hearing. Sometimes litigants want their day in court and it is necessary because weighty matters, in terms of people’s liberty, property and rights, are at risk. When it is a matter concerning the Federal Magistrates Court, which often deals with family law matters, it relates to children, not just property. When it deals with issues relating to the care, welfare and development of children, it is quite common for people to be passionate and to want to pursue their rights and have their final say before a federal magistrate. That is okay, but they must make bona fide efforts and attempts to resolve litigation before it starts. It should not get to the stage where you say that we have litigation between people. In various pieces of legislation, particularly the Family Law Act, there are very well set out courses of alternative dispute resolution processes, whether they be conciliation conferences or pretrial conferences or whether it be mediation conducted at family relationship centres where there is a requirement to file a certificate or a notice in court prior to the institution of proceedings. Only in circumstances where there is child abduction, where it is an urgent ex parte matter or where there is egregious domestic violence are those requirements waived—and they are exceptions.

The legislation before this chamber deals with encouraging litigants not to have obstacles to the institution of proceedings but to make a bona fide, or genuine, attempt to resolve the matter and to bring to the notice of, say, the Federal Magistrates Court what attempts have been made to resolve the matter, so as to get out of the adversarial culture and resolve issues. It is better for our community and it is better for individuals, their companies and their families if they can take steps to settle matters.

In Ipswich there is a family relationship centre, and prior to speaking with Relationships Australia last week I attended their premises to discuss how they are going. I intend to go back and be involved in a reference group. In my first term I was involved with a reference group that dealt with issues concerning grandparents and with their rights and their concerns for their grandchildren in circumstances where they did not have any parental rights but wanted to have contact with their grandchildren. So I commend the previous government for what they did to establish family relationship centres. That was a good initiative and a good way to try to resolve matters. What we are talking about in this legislation before the chamber is not forcing people to go down that road—and there are plenty of roads for alternative dispute resolution—but to get them to say, upon getting advice from their lawyer, ‘What way we can take and what efforts can we make to resolve this matter?’ That brings it to the attention of the courts.

Turning people’s minds to resolution is often difficult. I practised as a lawyer for more than 20 years before coming here. In fact, Mr Deputy Speaker Slipper, you and I first met at a settlement of a conveyance in Ipswich when you were in private practice and I was a junior articled law clerk. You might recall you tried to convert me to the conservative cause at that settlement, but I was not prepared to go down that road to ruin, so I stayed on the progressive side of politics! This is an important way to try to resolve disputes. It is important that we do resolve disputes, because not every form of legal proceeding or activity involves a conveyance like the one that you and I first met over. Many times it involves a civil dispute.

The bill does not prescribe that you have to go off to a family relationship centre, but it does prescribe that you have to consider and take steps to facilitate this process. I think what will happen is that, as a result of this legislation, people will turn their minds to going to family relationship centres or engaging a mediator, an arbitrator or someone to try to resolve matters. I think we will have more without-prejudice conferences between lawyers and their clients to try to resolve matters, because this legislation does not have just a practical effect; there is an aspirational aspect to the legislation to say, ‘Let’s avoid litigation and let’s resolve it.’

So there are some really practical steps that have to be undertaken. The lawyers have a duty to advise their clients to make genuine attempts to resolve it. Then those clients have to sign off. A ‘genuine attempt’ statement has to be signed by them as an applicant before they institute proceedings, and then a respondent has to do likewise and tell the court that. The consequences of that are that they have to put in writing what steps they had to take and to turn their minds to how to resolve it. It is a key aspect of their obligation, and there are legal obligations on their lawyers and the litigants. There is potential for costs orders if people do not do it.

You might think that is pretty draconian and authoritarian, but you will find, for example, that in the Family Court rules or the rules of the Federal Magistrates Court there are similar onuses upon lawyers and litigants to think that way as well. If they do not take steps, judges and federal magistrates can already impose costs orders against litigants or against lawyers who fail in their obligations to their clients. I do not have a problem with that. I also do not have a problem with us keeping in place the case management systems and powers that exist in the Federal Magistrates Court as well.

I think there are exclusions here, and they are sensible exclusions, on certain legislation. I mentioned before the kinds of things that are excluded: you are talking about the Administrative Appeals Tribunal, the Copyright Tribunal and the Migration Review Tribunal. There are also other courts that are excluded and other legislation that is excluded. For instance, I mentioned before the Family Law Act. There are already really set pre-institution processes in place that force people to negotiate together at, say, family relationship centres.

There are exceptions to lodging the ‘genuine attempt’ statements—for example, if it is an urgent ex parte matter. I can think of an Anton Piller-type order or other circumstances where there are enforcement proceedings involved and where you do not have to file this type of statement. But generally people need to. This bill has a worthy aspect to it, because I think it will reduce the cost to litigants. Lawyers have enough areas of law to enrich themselves, to prosper and to continue to act in the best interests of their practices, the public, their community and their families without going to court.

In my experience, most lawyers try to resolve the case. There is a mythology out there that most lawyers simply want to make money by forcing people into expensive court proceedings. That is not the reality. That might play out well in the Daily Telegraph, the Australian Financial Review or the Courier Mail, but that is not the reality on the ground, because most litigation lawyers, whether in family law, civil proceedings, criminal matters or personal injuries actions, want to resolve the case, because they know it is in the best interests of their clients and their community. They want to get on with other aspects of their legal practice. This legislation has a worthy aspect that says to litigants, ‘We want you to resolve this matter if at all possible before you go down the expensive road of engaging in more litigation which could involve expert evidence, which is costly; barrister engagement, which is costly as well; and engaging the taxpayers’ dollars in litigation that has an impact upon all of us.’ So the objectives of this bill are worthy and are to be commended, and the Attorney-General is to be commended for this legislation being in this chamber. I commend the legislation to the House.

Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

in reply—By way of summing up and responding to the debate on the Civil Dispute Resolution Bill 2010, I thank members for their contributions to the debate today. In particular I thank the member for Blair, who always brings a sound contribution to matters of legal practice. He was himself a practitioner for many years—not that he is that old—and has considerable experience.

This Civil Dispute Resolution Bill is an important step towards improved access to justice. It will help ensure that the mechanisms available to people and businesses for resolving disputes are reasonable, lawful and fair, and proportionate to the costs at issue. Members’ comments today echo the broad consultation that the government has already initiated in relation to improving the justice system. These include national consultations taken by the government’s Access to Justice Taskforce in relation to its 2009 report, A strategic framework for access to justice in the federal civil justice system, and by the National Alternative Dispute Resolution Advisory Council in relation to its 2009 report, The resolve to resolve. That report recommended the enactment of genuine steps and this bill does that.

As members will know, the government are improving access to justice on a number of fronts, including through measures such as this bill, which complement the significant reforms to the Federal Court’s case management powers enacted last year. But we are also acting to improve other aspects of the justice system, including through the reference to the Australian Law Reform Commission to explore options to improve the discovery process. As any lawyer will know, discovery is often the single largest cost associated with litigation. But our reforms do not just focus on the courts or lawyers; we have also successfully negotiated with the states and territories for a national partnership agreement on legal aid with a focus on early intervention and better access to information and services for ordinary Australians. Significantly, the government have made support for legal assistance a priority with the injection of $154 million of legal aid funding in the last budget. This includes $92.3 million for legal aid, $34.9 million for Indigenous legal aid and $26.8 million for community legal services. These are all measures of which the government are particularly proud. I commend the bill to the House, and thank honourable members for their contribution.

Question agreed to.

Bill read a second time.

Ordered that this bill be reported to the House without amendment.