South Australia Research Project

Background

Pre-action obligations require the parties to a dispute to undertake certain actions to promote the resolution or management of the dispute before commencing court or tribunal proceedings. They may require the parties to disclose information or documents, correspond with each other, and undertake some form of alternative dispute resolution.

In Australia, pre-action obligations have existed for many years in a variety of sectors, including the social, community, health, family, business, personal injury, and online consumer sectors. Research suggests that in many of the areas where pre-action obligations apply, a large number of matters resolve before recourse to court proceedings. It is widely recognised that court proceedings can be slow, costly, have a negative impact on business and personal relationships, exacerbate the polarisation of disputant positions, and limit the options available to resolve a dispute.


Project Description

This project examines the effectiveness of reforms to the Supreme Court Civil Supplementary Rules 2014 (SA) introduced to implement new pre-action obligations for construction and medical negligence disputes. These reforms are part of a broader reform agenda in South Australia, aimed at improving the speed and affordability of civil litigation.

Jointly funded by the Supreme Court of South Australia and the Law Foundation of South Australia, the project is managed by Professor Tania Sourdin, Dean of Newcastle Law School, and Ms Margaret Castles, Senior Lecturer at the University of Adelaide. An ethics application pertaining to this research project has been approved by the University of Adelaide’s Human Research Ethics Committee.


Project Methodology

This first stage of the Project involved the establishment of an expert Advisory Group to develop the Project’s objectives and methodology. The second stage of the Project involves a qualitative case study method. Targeted semi-structured group interviews will be held in Adelaide in late 2017. Interviews will be conducted with stakeholders involved in construction and/or medical negligence disputes, including:

  • Plaintiffs (and potential plaintiffs);
  • Defendants (and potential defendants);
  • Plaintiff Lawyers;
  • Defendant lawyers;
  • Judicial staff in the State of South Australia; and
  • Medical and construction experts

Research Aims

The project aims to analyse and provide feedback to the South Australian Judiciary on whether the key objects of the rules that apply to pre-action requirements have been achieved in order to:

  • Establish orderly procedures for the just resolution of civil disputes; and
  • Facilitate and encourage the resolution of civil disputes by agreement between the parties; and
  • Avoid all unnecessary delay in the resolution of civil disputes; and
  • Promote efficiency in dispute resolution so far as that object is consistent with the paramount claims of justice; and
  • Minimise the cost of civil litigation to the litigants and the State.

The outcomes of the project may assist in future planning, law reform and education, and enable assessments to be made about pre-action schemes which could potentially be rolled out nationally.

For more information about the South Australia Pre-Action Project please contact Jacqueline Meredith at jacqueline.meredith@newcastle.edu.au


Research Results

The 2014 pre-action protocols may have had some positive impact on the timeliness of dispute resolution by increasing settlement activity, assisting parties to narrow issues in dispute, and by guiding inexperienced practitioners. However, due to low levels of compliance with the pre-action protocols, the extent of these impacts is unclear. Overall, the protocols were viewed as cost neutral. However, any time savings that were achieved would have reduced some costs.

On the whole, the pre-action protocols were considered fair and just and there was some evidence that, when used, the protocols can create fairer negotiation environments with more structured processes. Further, while there was some evidence that the protocols had increased collaboration and cooperation between some lawyers, there appeared to be a disclination amongst others to resolve disputes at early stages or to engage in pre-action processes, particularly before expert evidence is gathered.

What was clear was that the effectiveness of the pre-action protocols has been limited by low levels of compliance. Greater court supervision and support, education and information, and conduct requirements could help support compliance and attitudinal change. The researchers also consider that a mandatory requirement to mediate could be incorporated into the pre-action protocols.

The final research report is available here.