Going to Court is an expensive, time consuming and stressful process. Not even the best and most confident lawyer in the world will ever guarantee your success, and so going to Court also always carries with it an element of risk. In order to keep people out of the Court system, governments have encouraged parties to reach a resolution without having to tell their sorry tale to a Judge or go anywhere near a Courtroom, by way of introduction of what are generally referred to as ‘pre-action obligations’.

What are pre-action obligations?

In Australia, the Civil Dispute Resolution Act 2011 sets out parties’ obligations with respect to resolving a dispute prior to the commencement of Court proceedings. In particular, section 4 sets out specific obligations of parties, with a view to achieving a resolution or, at least, refining and defining the issues in dispute (thereby simplifying matters if the Court is ultimately approached).

Those obligations include:

  1. Providing documents relevant to the dispute;
  2. Responding to notices of dispute received from the other party;
  3. Participating in negotiations or alternate dispute resolution procedures with a view to resolving the dispute; and
  4. Responding to specific questions.

What if I don’t comply?

In the absence of a Court Order, no one can force anyone to do anything, but simply ignoring your pre-action obligations can have consequences, including:

  1. Costs consequences – the Court can, and does, consider non-compliance with such obligations in assessing costs;
  2. Pre-action discovery – refusing to provide documents may mean you are met with an application for pre-action or pre-suite discovery, whereby the Court will order the production of documents before the commencement of proceedings; and
  3. Delay in progression of court hearings – usually, where parties have not attempted to resolve matters themselves, the Court will order they do so, by way of attendance at a mediation or similar. This can have the impact of delaying the progression of proceedings until the mediation is concluded.

Exceptions

It is important to note that while such obligations are encompassed in Federal legislation, not every State has followed suite.  It’s important to ascertain where your cause of action has arisen, and the appropriate Court to deal with your matter to determine the application of these provisions. A lawyer will be able to assist here.

Further, there are, of course, exceptions to the rules, particularly in cases of urgency. You will not be stopped from seeking an urgent injunction simply because you have not provided every relevant document to the party against whom the injunction is sought first. Similarly, in the family law sphere, parties will not be prevented seeking urgent orders for non-compliance with the pre-action obligations operative pursuant to the Family Law Act in urgent circumstances, such as where funds are being transferred overseas or a child is at risk.

Emma Jervis

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