Civil Dispute Resolution Act 2011 (Cth) have you taken genuine steps?

The substantive provisions of the Civil Dispute Resolution Act 2011 (Cth) (CDR Act) commenced by proclamation on 1 August 2011.

The objective of the CDR Act is to attempt to ensure that disputants take genuine steps to resolve a dispute before commencing civil proceedings in the Federal Court.

Section 4 of the Act provides that:

“…a person takes genuine steps to resolve a dispute if the steps taken by the person in relation to the dispute constitute a sincere and genuine attempt to resolve the dispute, having regard to the person’s circumstances and the nature and circumstances of the dispute”.

The section goes onto to describe steps that could be taken by a party to show that they had taken genuine steps:

1. 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;
2. responding appropriately to any such notification;
3. providing relevant information and documents to the other person to enable the other person to understand the issues involved and how the dispute might be resolved;
4. considering whether the dispute could be resolved by a process facilitated by another person, including an alternative dispute resolution process; and
5. if such a process is agreed to:

(a) agreeing on a particular person to facilitate the process;
(b) attending the process;
(c) if such a process is conducted but does not result in resolution of the dispute -considering a different process; and
(d) 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.

What is a Genuine Steps Statement?

On commencement of proceedings section 6 of the CDR Act provides that an applicant must file a Genuine Steps Statement.

The Genuine Steps Statement must specify:

1. the steps that have been taken to resolve the dispute between the applicant and the respondent in the proceedings; or
2. the reasons why no such steps were taken such as:

(a) the urgency of the proceedings;
(b) whether, and the extent to which, the safety or security of any person or property would have been compromised by taking such steps.

Section 7 of the CDR Act creates an obligation on the respondents to respond to the Genuine Steps Statement by:

1. stating that the respondent agrees with the genuine steps statement filed by the applicant; or
2. 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.

Lawyers duty to assist their clients

A lawyer acting for either the applicant or the respondent must:

1. advise the person of the need to file a genuine steps statement; and
2. must assist them to comply with the requirements of the CDR Act.

Court Forms

In addition to the usual Federal Court Forms to commence proceedings a Genuine Steps Statement needs to be filed on Form 16.

Cease and desist letters in a post CDR Act world

The commencement of the CDR Act has changed the face of cease and desist letters as a pre-litigation dispute resolution technique as both the applicant and the respondent must show genuine steps towards resolving the dispute unless there is a genuine reason why steps were not taken.

Format of cease and desist letters

In order to establish that an applicant had taken genuine steps the format of cease and desist letters needs to change.

It would seem that cease and desist letters should now include the following statements:

• that the matter is without prejudice save as to costs and the CDR Act;
• the complainant’s position as holder of registered trademarks/patent/copyright or other matter that that the Federal Court has jurisdiction over;
• a request to meet to discuss the matter;
• a suggested meeting time;
• a request for further information which may be helpful in discussions or to resolve the dispute; and
• a guillotine clause by which time non-response or non-willingness to meet to discuss the matter will be deemed to mean that that the respondent is not cooperative and would prefer to deal with the matter in the Federal Court.

In this way, what would have been in the form of a traditional cease and desist letter may be turned into a request that can be used to satisfy section 7 of the CDR Act.

Further information

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Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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