Type of case

Reasons why pre-action protocol not appropriate

Administrative Law

Review of an administrative decision which applicant wants overturned.[2]

Admiralty

• Action in rem – more often than not neither the operator nor the charterer in Australia.

• Cargo claims – insurer and reinsurer unknown, usually offshore and in multiple jurisdictions.

Bankruptcy

Sequestration orders – nearly always based on failure to comply with a bankruptcy notice which is based on a dispute dealt with by another court resulting in a judgment debt in favour of the applicant.

Corporations

• Actions by liquidators, receivers etc under the Corporations Act 2001 (Cth) subject to statutory obligations concerning investigation and information gathering. When does protocol apply?

• Actions by ASIC under the Corporations Act 2001 (Cth) and the ASIC Act subject to statutory obligations concerning investigation and information gathering. When does protocol apply?

• Winding up applications – statutory demand served and not complied with. Statutory demand often based on the dispute having been dealt with another court which has resulted in a judgment debt in favour of the plaintiff.

HREOC

Complaint filed in HREOC. Complaint subject of conciliation and negotiation at HREOC.

Intellectual property

Urgent applications for injunctions to stop alleged infringing conduct from continuing. The effect of the pre-action protocols is that applicants will always move ex parte to avoid the Bill.

Part IV TPA (Competition)

• Proceedings often issued by regulators such as the ACCC and involve penalties, injunctions and whistle blowers.[3]

• Actions by regulators (including the ACCC) subject to statutory obligations concerning investigation and information gathering. When does protocol apply?

Patents

Intensive case management often required to prepare for mediation and trial because factual issues usually complex (involving science, medicine, engineering etc) requiring expert evidence.

Taxation

Prior to FCA proceedings, the taxpayer is usually extensively audited, an objection to an assessment is lodged with the ATO and subjected to review resulting in a decision on the objection.

Type of case

Reason why matter should not be excluded

Administrative Law

Most administrative law cases go through the Administrative Appeals Tribunal, which falls under an already excluded category in the Bill (s15(c)).

Other matters involving judicial review are suited to pre-action attempts at resolution. This is supported in Lord Justice Jackson's Review of Civil Litigation Costs. (p 352)

Admiralty

In his final report on the Review of Civil Litigation Costs, Lord Justice Jackson states that admiralty matters are suited to resolution guidance prior to commencing proceedings in court. (p 346)

Bankruptcy

NADRAC consulted broadly on mandatory ADR and pre-action protocols. Its genuine steps recommendations addressed concerns about those approaches. This flexible approach leaves considerable discretion to the parties/the judge as to what steps (if any) are appropriate. As noted by the IPA in its submission, the Bill would accommodate the varied circumstances involving insolvency practitioners. For similar reasons, it is sufficiently flexible to accommodate different bankruptcy matters.

Corporations

Based on consultation, it was concluded that the application of the Bill to certain corporations matters would be of value. If there was a particular case where genuine steps were not appropriate, those consulted advised that lodging a genuine steps statement outlining the reasons why would be a simple process.

Australian Human Rights Commission

Following consultation, it was concluded that the application of the Bill to human rights matters would be of value. Where there are reasons in a particular case for not taking genuine steps in relation to a particular issue, this can be reflected in the genuine steps statement.

Intellectual property

In circumstances where urgency is the only reason for genuine steps not being undertaken, this would remain within the scope of the Bill and parties could cite the urgent nature of the matter as a reason why steps were not undertaken (clause 6(2)(b)).

Part IVA TPA (Competition)

Proceedings for an order imposing a pecuniary penalty for a contravention of a civil penalty provision are already excluded.

In relation to other trade practices matters, if there was a particular case where genuine steps were not appropriate, those consulted advised that lodging a genuine steps statement outlining the reasons (such as urgency) would be a simple process.

Patents

These disputes may include complex factual and technical issues. Some issues may benefit from attempts at discussion and resolution (genuine steps). Where there are reasons in a particular case for not taking genuine steps in relation to a particular issue, this can be reflected in the genuine steps statement.

Taxation

Most taxation cases go through the Administrative Appeals Tribunal, which falls under an already excluded category in the Bill (s15(c)). However, other taxation matters may be amendable to pre-trial discussion of the facts and issues in dispute (genuine steps).