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.

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.

Emma Jervis

Ask Emma a Question

If you would like further information on any of the topics mentioned in this article, please get in touch using the form on this page.