AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
ing its own assets, the claimant will not be enti - tled to any proportionate share in the increased value of the asset (In re Diplock; Diplock v Wintle [1948] Ch 465 cited in Commonwealth Bank of Australia v Saleh & Ors [2007] NSWSC 903). 1.6 Rules of Pre-Action Conduct There are no specific rules of pre-action con - duct that apply prior to the commencement of fraud claims. However, jurisdictions do impose formalities that are to be completed prior to or at the time civil proceedings are commenced more generally. Specifically, the Civil Dispute Resolution Act 2011 (Cth) (CDRA) requires applicants to file “genuine steps statement” , which sets out the steps taken by the parties to resolve the dis - pute or otherwise explain why no such steps have been taken (in the case of fraud claims, the urgency of the matter or anonymity of the fraudster may prevent the parties from taking “genuine steps” before commencing proceed - ings). Section 4(1) of the CDRA outlines exam - ples of genuine steps that a person can take to resolve a dispute, including: • notifying the other person of the issues that are, or may be, in dispute, and offering to discuss them, with a view to resolving the dispute; • responding appropriately to any such notifica - tion; • providing relevant information and documents to the other person to enable the other to understand the issues involved and how the dispute might be resolved; • considering whether the dispute could be resolved by a process facilitated by another person, including an alternative dispute reso - lution process; • if such a process is agreed to:
(a) agreeing on a particular person to facili - tate the process; and (b) attending the process; • if such a process is conducted but does not result in resolution of the dispute – consider - ing a different process; and • attempting to negotiate with the other person, with a view to resolving some or all of the issues in dispute, or authorising a representa - tive to do so. A party that does not file a genuine steps state - ment, or that has not taken genuine steps to resolve a dispute, will not be prevented from commencing a claim in the Federal Court of Australia. However, the court may take this into account when exercising its powers, including its discretion to award costs. Generally speaking, the courts of the states/ territories do not impose similar formalities on prospective claimants. 1.7 Prevention of Defendants Dissipating or Secreting Assets Freezing orders can be obtained in each Austral - ian jurisdiction to prevent the loss or dissipation of assets (Uniform Civil Procedure Rules 2005 (NSW) Part 25 Division 2; Uniform Civil Proce - dure Rules 1999 (Qld) Chapter 8 Part 2 Divi - sion 2; Uniform Civil Rules 2020 (SA) Chapter 10 Part 2 Division 5; Supreme Court Rules 1987 (NT) Regulation 37A.02; Rules of Supreme Court 1971 (WA) Order 52A; Supreme Court Rules 2000 (Tas) Part 36 Division 1A; Court Procedure Rules 2006 (ACT) Part 2.9 Division 2.9.4 Sub- division 2.9.4.2; Supreme Court (General Civil Procedure) Rules 2015 (Vic) Order 37A.02). Freezing orders may be obtained on an interim basis pending the outcome of a final hearing. The court has a discretion to grant a freezing
19 CHAMBERS.COM
Powered by FlippingBook