Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts

Sourdin, Tania, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts, Australian Centre for Justice Innovation (ACJI), Monash University (November 1, 2012)

259 Pages Posted: 3 Apr 2013

See all articles by Tania Sourdin

Tania Sourdin

University of Newcastle (Australia) - Newcastle Law School

Date Written: November 1, 2012

Abstract

Pre-action protocols, obligations and schemes exist in various forms across Australia and are intended to encourage the early resolution of disputes without the need to commence proceedings in a court or tribunal. The objective of the Pre-Action Research Project (this Project), which has culminated in this Report, has been to consider and explore the use and effectiveness of these types of requirements in respect of civil disputes.

Pre-action or pre-filing requirements exist at different points in the justice system and are related to other parts of the system (institutions, courts and judges) in different ways. They can be loosely grouped into those that are part of a scheme (‘formal arrangement’ processes) or those where disputants are guided by a protocol, obligations or some other requirement (‘self-help’ arrangements).

The variations in terms of the nature of pre-action requirements can impact on how they are perceived within the justice system. Occasionally, schemes are viewed as potentially displacing or even replicating courts, whereas ‘self-help’ or similar types of requirements may generate less concern.

In order to explore the use and effectiveness of these types of requirements, the methodology used in this Project enabled a research focus on each of the three types of requirements. The following three civil focus areas were chosen as representative from a sampling perspective and were explored using quantitative and qualitative research methodologies: the Retail Lease Scheme in Victoria; the requirements that operate in respect of disputes that might otherwise commence in the Northern Territory Supreme Court (through Northern Territory Supreme Court Practice Direction 6 of 2009 (PD6)); and, general perceptions about these types of requirements and more particularly about ‘self-help’ or ‘lighter’ requirements.

The issues in respect of pre-action requirements were explored in the context of Australian and overseas literature as well as input gathered from practitioners, judges, mediators, disputants and experts. The approach taken involved exploring issue areas and then seeking to establish what made the pre-action requirements ‘effective’ (if they were in fact effective). Effectiveness was defined using criteria relating to whether or not the requirements supported timely and cost-effective dispute settlement and were ’fair’ (from a procedural and outcome perspective). In addition, broader issues relating to the impact of these types of requirements on the justice system, the courts and more vulnerable disputants were explored in the context of the research findings.

Keywords: pre-action, courts, self help, alternative dispute resolution, civil justice system, Australia

JEL Classification: K00, K10, K19, K39, K40, K41, K49

Suggested Citation

Sourdin, Tania, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts (November 1, 2012). Sourdin, Tania, Exploring Civil Pre-Action Requirements: Resolving Disputes Outside Courts, Australian Centre for Justice Innovation (ACJI), Monash University (November 1, 2012), Available at SSRN: https://ssrn.com/abstract=2243975

Tania Sourdin (Contact Author)

University of Newcastle (Australia) - Newcastle Law School ( email )

1 University Drive
Callaghan, 2308
Australia

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