Skip to content

Understanding pre-action obligations

Pre-action procedures, or pre-action protocols, or pre-action obligations (if we want to use all the popular terminology!) are rules and legislative instruments that set out the obligations of disputing parties to each other even before the originating process is filed. While not every state of Australia has a legislative instrument making these mandatory, they are still a good practice to adopt to resolve issues without judicial intervention and/ or to refine the issues in dispute (and therefore reduce the amount of time spent in court). The idea behind such obligations is to force parties to investigate the merits of their claim and/ or seek to resolve the matter as a precedent to commencing proceedings, which just makes sense if you think about it.

Understanding the law

Section 4 of the Civil Dispute Resolution Act (Cth) puts a positive onus on parties to take active steps to resolve disputes and/ or crystallise the issues in dispute without resorting to judicial intervention, which can include:

  • Providing certain documents;
  • Answering certain questions;
  • Participating in alternate dispute resolution procedures; and/ or
  • Any combination of the above.

Why pre-action procedures are important

Utilising these pre-action procedures to obtain information prior to rushing off to Court can be invaluable; it will help you determine the strength of your case and/ or negotiate a settlement. Your litigation lawyer will be able to assist by specifying what you can ask for, and how to ask for it if you wish to rely on these obligations.

Further, at least in the Federal jurisdiction, not abiding by them can have very real consequences for litigants.

In the courts, which exercise jurisdiction pursuant to the Family Law Act, by way of example, the rules regarding pre-action obligations, including in relation to provision of disclosure, materials are strictly enforced and a party may be denied the right to pursue a matter if not complied with, or suffer awards of costs being made in favour of the other party.

Continue reading this article below the form
Loading form

Conclusion

If you are party to a dispute and seek further information about your rights or obligations, you should talk to a litigation lawyer who will be able to guide you through the process. Get in touch with LegalVision on 1300 544 755 and you can get a fixed-fee quote for assistance.

Register for our free webinars

Demystifying M&A: What Every Business Owner Should Know

Online
Understand the essentials of mergers and acquisitions and protect your business value. Register for our free webinar.
Register Now

Social Media Compliance: Safeguard Your Brand and Avoid Common Pitfalls

Online
Avoid legal pitfalls in social media marketing and safeguard your brand. Register for our free webinar.
Register Now

Building a Strong Startup: Ask a Lawyer and Founder Your Tough Questions

Stone & Chalk Tech Central, Level 1 - 477 Pitt St Haymarket 2000
Join LegalVision and Bluebird at the Spark Festival to ask a lawyer and founder your startup questions. Register now.
Register Now

Construction Industry Update: What To Expect in 2026

Online
Stay ahead of major construction regulatory changes. Register for our free webinar.
Register Now
See more webinars >
Emma Jervis

Emma Jervis

Read all articles by Emma

About LegalVision

LegalVision is an innovative commercial law firm that provides businesses with affordable, unlimited and ongoing legal assistance through our membership. We operate in Australia, the United Kingdom and New Zealand.

Learn more

We’re an award-winning law firm

  • Award

    2025 Future of Legal Services Innovation Finalist - Legal Innovation Awards

  • Award

    2025 Employer of Choice - Australasian Lawyer

  • Award

    2024 Law Company of the Year Finalist - The Lawyer Awards

  • Award

    2024 Law Firm of the Year Finalist - Modern Law Private Client Awards

  • Award

    2022 Law Firm of the Year - Australasian Law Awards