Civil Procedure and Legal Profession
Amendment Bill 2011
Introduction Print
EXPLANATORY MEMORANDUM
General
The Civil Procedure and Legal Profession Amendment Bill 2011 amends the
Civil Procedure Act 2010 to repeal the pre-litigation requirements and make
related amendments, to make a minor amendment to the Legal Profession
Act 2004 and for other purposes.
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
civil proceeding.
The Bill will also make a simple technical amendment to the Legal
Profession Act 2004 to reduce the administrative burden on the legal
profession and the Legal Services Board by facilitating a streamlined process
for the online renewal of lawyers' practising certificates.
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BILL LA INTRODUCTION 8/2/2011
Clause Notes
PART 1—PRELIMINARY
Clause 1
provides that the purposes of the Bill are to amend the Civil
Procedure Act 2010 to repeal Chapter 3 and other provisions
relating to the pre-litigation requirements, and to amend section
2.4.9(1) of the Legal Profession Act 2004 to remove the
requirement for a declaration made under that section to be a
statutory declaration.
Clause 2
provides that the Bill commences on the day after the day on
which it receives Royal Assent.
PART 2—AMENDMENT OF CIVIL PROCEDURE ACT 2010
Clause 3
amends section 1(1)(a) of the Civil Procedure Act 2010 to omit
the reference to the resolution of civil disputes which may lead to
civil proceedings. This is no longer a purpose of the Act given
the repeal of the pre-litigation requirements.
The clause also repeals section 1(2)(b) of the Civil Procedure
Act 2010 as the Act no longer provides for the facilitation of the
resolution of disputes before civil proceedings are commenced.
Clause 4
amends the definition of the term "appropriate dispute resolution"
in section 3 of the Civil Procedure Act 2010 in order that it not
refer to civil disputes or apply to pre-litigation appropriate
dispute resolution.
The clause also repeals the definitions of the terms "civil
dispute", "pre-litigation requirements" and "pre-litigation
requirements compliance certification" in section 3 of the Civil
Procedure Act 2010. These definitions relate to the Act's
pre-litigation requirements.
Clause 5
amends section 4(1) of the Civil Procedure Act 2010 to correct
an error to clarify that the Act applies to all civil proceedings
subject to the remainder of section 4.
Clause 6
amends section 9(2)(a) of the Civil Procedure Act 2010 to
omit the reference to the pre-litigation requirements. The power
of the courts to have regard to other mandatory or voluntary
pre-litigation processes is, however, retained.
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Clause 7
repeals Chapter 3 of the Civil Procedure Act 2010 which
contains the pre-litigation requirements.
Clause 8
repeals section 43 of the Civil Procedure Act 2010 which
requires parties to certify compliance with the pre-litigation
requirements.
Clause 9
amends section 47(3)(b) of the Civil Procedure Act 2010 by
omitting the reference to the pre-litigation requirements and
providing the courts with power to identify issues that have not
been resolved in accordance with any mandatory or voluntary
pre-litigation processes. This amendment will allow the courts to
consider issues that arise during pre-litigation processes in
exercising active case management under the Act.
Clause 10 repeals section 70(1)(b) of the Civil Procedure Act 2010
which allows rules of court to be made for or with respect to the
pre-litigation requirements.
The clause also amends section 70(1)(c) of the Civil Procedure
Act 2010 to omit the reference to the pre-litigation requirements
and 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 civil
proceeding. This amendment will allow the courts to make rules
with respect to pre-litigation processes for certain proceedings.
PART 3—AMENDMENT OF LEGAL PROFESSION ACT 2004
Clause 11 amends section 2.4.9(1)(b)(iii) of the Legal Profession Act 2004
to omit the word "statutory" to remove the requirement for a
declaration made under that section to be a statutory declaration.
PART 4—REPEAL OF AMENDING ACT
Clause 12 repeals the Bill on the first anniversary of its commencement.
The repeal of the Bill does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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