ALTERNATIVE DISPUTE RESOLUTION AND
DISCRETIONARY COMPENSATION AND WAIVER OF
DEBT MECHANISMS
COMCOVER LEGAL SERVICES INFORMATION FORUM SERIES
Tuesday, 26 November 2013
Alternative Dispute Resolution
Presented by John Solomon, Partner
Alternative Dispute Resolution, or ADR, is the term used to describe a variety of processes, other than judicial
determination, in which the parties in dispute use a defined process, often involving an impartial person, to
resolve the issues between them or narrow the issues in dispute.
John will discuss a range of different ADR processes including the characteristics of each process and
the circumstances in which different ADR processes may be beneficial.
John will touch on the following ADR processes:
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Self-guided resolution
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Interactive problem solving
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Conflict coaching
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Facilitated conversation
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Conciliation
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Neutral evaluation
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Expert appraisal
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Mediation
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Collaborative law
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Arbitration.
John will also discuss some of the advantages and disadvantages of ADR that he has observed arising from over
20 years’ experience working in the area of litigation and dispute resolution.
John will also discuss the Civil Dispute Resolution Act 2011 (Cth), including a summary of when the Act applies
and an overview of the obligation imposed by the Act on parties to take ‘genuine steps’ to attempt to resolve a
civil dispute prior to commencing proceedings in the Federal Court or the Federal Circuit Court of Australia.
John will examine the meaning of the phrase ‘genuine steps’ and look at the possible sanctions that can apply to
a party that fails to comply with the obligations imposed by the Act.
Sydney
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Melbourne
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Brisbane
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Canberra
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Newcastle
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Perth
ALTERNATIVE DISPUTE RESOLUTION AND
DISCRETIONARY COMPENSATION AND WAIVER OF
DEBT MECHANISMS
COMCOVER LEGAL SERVICES INFORMATION FORUM SERIES
Discretionary Compensation and Waiver of Debt Mechanisms
Presented by Scott Moloney, Special Counsel
Occasionally citizens, or organisations such as companies, will suffer loss or damage as a result of a
Commonwealth law, policy, or administrative decision. Sometimes that loss will not be recoverable via a legal
claim.
In recognition of this, and in furtherance of a moral obligation to compensate the citizen or organisation for their
loss, the Commonwealth government has set up a series of discretionary administrative mechanisms to provide
decision makers with the ability to provide compensation in certain circumstances.
The discretionary mechanisms are:
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Payments made under the Scheme for Compensation for Detriment caused by Defective Administration (the CDDA
scheme)
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Act of Grace payments
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Ex gratia payments
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Waiver of amounts owing to the Commonwealth.
Scott will discuss a number of key characteristics about the discretionary mechanisms including:
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They are not available if a claim has at least a meaningful prospect of legal liability being established against the
Commonwealth
They are different from statutory schemes (such as the Safety, Rehabilitation and Compensation Act 1988)
They are permissive and based on general principles which provide decision makers with enough flexibility to
determine individual claims based on their merits yet retain a degree of consistency and impartiality in relation to the
operation of the mechanisms
There are no time limits, or limitation periods, that apply to the making of a claim under each mechanism
Claims involving the discretionary mechanisms are not handled by Comcover or Gallagher Bassett but by the relevant
Commonwealth agency.
Scott will provide an overview of the characteristics of each discretionary mechanism including the guidelines
used by decision makers to determine the amount of money that can be paid pursuant to each scheme.
Scott will also outline examples of claims that are typically dealt with by each discretionary mechanism, and will
share some practical tips for dealing with complex claims and difficult claimants that he has developed in the
course of providing advice to Financial Management and Accountability Act agencies on the operation of the
discretionary mechanisms.
Sydney
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Melbourne
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Brisbane
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Canberra
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In NSW, VIC, QLD: Liability limited by a scheme approved under Professional Standards legislation.
Newcastle
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Perth