Edit: The new government is removing the requirement that parties attend mandatory pre-litigation proceedings for debt recovery and other matters. The amendments are contained in the Civil Procedure and Legal Profession Amendment Bill 2011 currently before the parliament.
The Explanatory Memorandum says,
The Bill will deliver on the Government’s commitment to end mandatory
pre-litigation procedures for debt recovery and other inappropriate proceedings by removing the pre-litigation requirements from the Civil Procedure Act 2010.
The pre-litigation requirements, which will apply to proceedings which commence on or after 1 July 2011, would add unnecessarily to the costs of resolving a dispute and make it more difficult for disputants to access the courts. In particular, the pre-litigation requirements would provide an opportunity for disputants who were not prepared to negotiate in good faith to delay a settlement or decision and thereby prevent or delay disputants with legitimate claims from gaining access to the courts.
The courts will retain their power to consider a party’s use of mandatory or
voluntary pre-litigation processes. Further, the Bill will allow rules of court
to be made for or with respect to any mandatory or voluntary pre-litigation
processes in relation to specified civil proceedings or specified classes of
I said last week that we were finished with Legislation Watch for the year.
While that’s true, I do want to briefly mention the existence of the Civil Procedure Act 2010. It received Assent in August and its provisions come into effect on the 1st January next year, when QCIC will be on summer hiatus.
The Act aims to standardise practice across courts of civil jurisdiction. But the operation of the Magistrates’, County and Supreme Courts is never going to be uniform, which makes the Rules for each court so important. The devil (as always) will be in the details.
Most of the Act’s provisions are aspirational in nature, reinforcing the obligation of parties and practitioners to make genuine efforts to resolve disputes. In the wake of Aon Risk Services v ANU, this isn’t a significant change. Few of the new sections place new obligations on the parties. There are a few common-sense relaxations of existing rules.
Most important for present purposes is identifying what the Act does not apply to.
Section 4 states,
4 Application of this Act
(1) Subject to subsections (2) and (3), this Act applies to all civil proceedings.
(2) This Act does not apply to proceedings under the following Acts—
(a) the Family Violence Protection Act 2008;
(b) the Stalking Intervention Orders Act 2008;
(c) the Confiscation Act 1997;
(d) the Proceeds of Crime Act 1987 of the Commonwealth and the Proceeds of Crime Act 2002 of the Commonwealth;
(e) the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;
(f) the Children, Youth and Families Act 2005;
(g) the Coroners Act 2008;
(h) the Victims of Crime Assistance Act 1996;
(i) the Sentencing Act 1991.
In short, even where criminal proceedings have a civil character to them, the Civil Procedure Act‘s overarching principles will not apply.
The most obvious omission is reference to the Road Safety Act 1986. This is particularly relevant given the changes to the hoon laws discussed here, which will see many more applications by the police for seizure and forfeiture of people’s vehicles. (Perhaps it will be a prescribed Act under the Regulations).