Let's be reasonable

04 March 2012 By Lawyers Weekly

NSW Attorney-General Greg Smith has delayed the introduction of the "Reasonable Steps" provision in the Civil Procedures Act. Steve Lancken argues that this delay does not benefit of lawyers or…

NSW Attorney-General Greg Smith has delayed the introduction of the "Reasonable Steps" provision in the Civil Procedures Act. Steve Lancken argues that this delay does not benefit of lawyers or clients

In a media release of 23rd August, the NSW Attorney General, Greg Smith, announced a delay in the commencement of the pre litigation "Reasonable Steps" provisions of the Civil Procedure Act, which were due to commence on 1 October 2011.

The provisions require litigants to first take reasonable steps to resolve the dispute or narrow the issues before filing court proceedings.


When it was before parliament late last year, Smith did not oppose it. To be fair, the changes were included in an "omnibus" piece of legislation that included alterations to criminal and civil process, and as Smith has often conceded, his experience is in criminal and not civil law.

At first glance, it appears understandable that after the election the Attorney-General might review his support for legislation introduced in the previous Parliament. Yet what is surprising is that he relies on the views of a number of (unnamed) stakeholders to support his decision.

The legislation is similar to the Federal Civil Dispute Resolution Act that became effective on 1 August. His announcement begs many questions, namely; why he would consider placing "on ice" legislative changes that he and his political colleagues supported less than 12 months previously? What has changed?

"Those who do act reasonably pre litigation have no fear of the legislation and are likely to benefit from provisions that create risks of adverse costs orders or procedural orders against those who do not comply"

Steve Lancken, principal, Trillian Group

Lawyers Weekly Discover

In a speech on Saturday 13 August, the Attorney-General observed that the profession is sometimes driven to adversarial behaviour by the instructions of clients. However, he also identified the many benefits to litigants, the courts and the profession of early consensual resolution of disputes.

If the incidence of instructions encouraging adversarial behaviour has not lessened since the legislation was passed, and the benefits of behaving reasonably are still not being achieved, why should this legislation, which is aimed at changing the culture of those who instruct lawyers to be difficult, be delayed?

The Attorney-General said in his speech that for the vast majority of the profession, the requirements of this legislation constitute nothing more than 'business as usual'.

The legislation requires litigants (supported by their lawyers if involved) to take "Reasonable Steps" to resolve disputes, or narrow the issues in dispute, before they commence proceedings in a Court. Suggesting that people behave reasonably does not seem to be an overly burdensome obligation.

One wonders then about the justification for delaying the implementation of the legislation.

The first worrying aspect of Smith's announcement was that he does not name the people who are expressing concerns about the operation of the legislation.

Based on his other comments, however, it appears that these people can't be the vast majority of the legal profession. The only conclusion that can be drawn is that those people to whom the Attorney-General has been listening are either opposed to acting reasonably and are not part of the legal profession, or are a small minority of the legal profession who are not opposed in principle to being instructed to act in an adversarial manner by their clients in the time before a case is filed in court.

At the time the legislation was being considered over a period of about 18 months, John Hatzistergos, the former Attorney-General, set up a working group to test the views of a variety of stakeholders. Those stakeholders included all the s and tribunals in NSW as well as the organisations representing lawyers like the NSW Law Society, the Bar Association and organisations representing arbitrators and mediators.

Each of these stakeholders were represented in a working group. As you would expect, some concerns were expressed when the working group suggested legislation similar to that eventually passed. The working group and the Attorney General's Department considered those concerns at the time. Smith, knowing of these concerns, did not oppose the legislation, and the law was passed.

In light of the history of the legislation and the work that went into it, perhaps the Attorney-General in suggesting a delay is acting because of different concerns or the concerns of different stakeholders. If so, why were these stakeholders not participating and why were these concerns not raised during the examination of the proposed legislation?

If so, why are these stakeholders not having their concerns considered openly and fully, and why are their concerns not subject to the same examination and debate as other issues?

If there are other stakeholders and concerns, they seem to have private access to and some persuasive value with the Attorney-General, which is a troubling prospect and negates the process that was followed in good faith by all other stakeholders.

If there are no different stakeholders and no new concerns, then Smith's suggestion is even more troubling, in that he has rejected the whole legislative development process in favour of listening to a few people who, presumably not having achieved their goals in the light of full scrutiny, have now become anonymous in their influence.

The second aspect of concern is that the law has been "on the books" since late last year and will remain on the books for another unspecified period but not brought into effect. What is being lost by delay in light of changes that have occurred since the legislation was passed?

NSW lawyers have been "gearing up" for commencement of the legislation since the beginning of the year. They have spent money on attending seminars that examined the legislation, spent money educating their clients to take advantage of the legislation, and amended procedures to ensure that reasonable steps statements are easily prepared. Delay will prejudice the vast majority in the legal profession who have explicitly committed to helping their clients act reasonably.

The suggestion that NSW should wait and see how the (similar) Federal legislation performs identifies the third aspect of concern in the Attorney-General's suggestion. Those who do act reasonably pre litigation have no fear of the legislation and are likely to benefit from provisions that create risks of adverse costs orders or procedural orders against those who do not comply.

Indeed, one would think that those who do (habitually or otherwise) act reasonably would want the benefit of the provisions. If those people (the vast majority, according to the Smith) have a choice, they are most likely to choose the Federal Court for litigation, as that court provides protections and advantages for the party that acts reasonably.

NSW courts are very likely to lose considerable work to the Federal Court in such areas as Trade Practices, corporation law and intellectual property law.

The most worrying aspect of the announcement of the Attorney-General is the implicit suggestion that acting unreasonably before filing litigation is "OK" or acceptable to the government and the courts in NSW, or at least that the general standard of practice allows unreasonable behaviour.

So long as the law sits on the statute book without statutory effect, litigants can argue that acting unreasonably is acceptable behaviour.

The suggestion that legislation seeking reasonable behaviour is a problem highlights an inconsistency of reasoning that can only be explained by an interest in continuing to act unreasonably, perhaps for personal gain. These are not the arguments of the vast majority of reasonable NSW lawyers.

They may be the arguments of a minority who seek to entrench the very adversarial behaviour that the legislation attempts to change, through its minimally intrusive legislative provisions.

In NSW, we have many laws on the statute books that create a cost to law abiding people, with the consequent benefit of long-term changes of behaviour.

Workplace safety laws, seatbelt laws, as well as the procedural requirements of the Civil Procedure Act all impose some restraints that the vast majority of reasonable people find acceptable in return for the benefits to a society as a whole of reasonable behaviour.

Perhaps Smith can explain why unnamed people would argue he should delay legislation that only requires people to behave reasonably. He could also identify the people and cite the arguments that led him to delay the effective date of this legislation to the same public, principled, logical, and rigorous review that the legislation itself has already gone through.

Steve Lancken is a principal with the Trillian Group, a company specialising in resolving conflict management issues. He has assisted companies including Qantas, Pacific Brands and Australia Post with alternative dispute resolution programs.

Let's be reasonable
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