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Part 3A - Alternative dispute resolution

“(1) The purpose of this Part is to enable the Commission to arrange for matters to be dealt with by alternative dispute resolution.

(2) This Part does not prevent the parties to proceedings or proposed proceedings from agreeing to and arranging for alternative dispute resolution of any matter otherwise than in accordance with this Part”.

“In this Part:

alternative dispute resolution includes conferencing.

conferencing means a structured negotiation process that takes place in course of a program approved by the Commission and in which the convenor assists the parties to a dispute to settle the dispute.

conferencing session means a meeting at which conferencing takes place and, in sections 60D and 60E, includes any steps taken in the course of making arrangements for the session or in the course of the follow-up of a session.

convenor of a conferencing session means the person to whom a matter has been referred for conferencing under this Part”.

“(1) The Commission may arrange for a matter, or any aspect of a matter, to be dealt with by alternative dispute resolution if the Commission considers it appropriate to do so. The Commission may do so before or after the determination of an application for legal aid in respect of the matter.

(2) Without limiting the powers of the Commission under section 33, the Commission may require an applicant for legal aid or a person to whom legal aid is granted to participate in such alternative dispute resolution procedures as may be specified by the Commission.

(3) The Commission may defray expenses incidental to alternative dispute resolution from money available to the Commission or require (whether before or after the application for legal aid is determined) the applicant or person to whom legal aid is granted to meet those expenses.

(4) An amount required to be paid under subsection (3) must be paid in such manner, and within such time, as the Commission directs.

(5) The Commission may recover an amount payable to it under subsection (3), and any interest payable in respect of the amount, as a debt in a court of competent jurisdiction”.

Commentary
Legal Aid NSW may arrange ADR

Legal Aid NSW may arrange for alternative dispute resolution (ADR) of a matter if it considers it appropriate or arrange the alternative dispute resolution before or after the determination of the relevant application for legal aid

Requirement to attend ADR

Legal Aid NSW may require an applicant, or a person to whom legal aid is granted to participate in alternative dispute resolution as specified by Legal Aid NSW.

Payment for ADR

Legal Aid NSW may pay the expenses for alternative dispute resolution, or require the applicant, or legally assisted person to pay the expenses.

The amount required to be paid under subsection (3) must be paid in the manner and within the time Legal Aid NSW directs

If it is not paid Legal Aid NSW may recover, with any interest payable, as a debt in a court of competent jurisdiction

Legal Aid NSW FDR Unit

Legal Aid NSW has its own Family Dispute Resolution Section where conferencing for family law matters under the Family Law Act 1975 (Cth) are conducted.

“(1) The same privilege with respect to defamation as exists with respect to judicial proceedings and a document produced in judicial proceedings exists with respect to:

(a) a conferencing session, or

(b) a document or other material sent to or produced to the convenor of a conferencing session, or sent to the Commission, for the purpose of enabling a session to be arranged, or

(c) a document or other material prepared by the convenor of a conferencing session in the course of, or as a result of, the session.

(2) The privilege conferred by subsection (1) extends only to a publication made:

(a) at a conferencing session, or

(b) as provided by subsection (1) (b) or (c), or

(c) as provided in section 60F”.

Commentary

Under s60D of the Act the same privilege concerning defamation as exists in judicial proceedings exists in relation to a conferencing session.

The privilege applies to:

  • a conferencing session, or
  • a document or other material
    • sent to or produced to the convenor of a conferencing session
    • sent to Legal Aid NSW to arrange a conferencing session, or
    • prepared by the convenor of a conferencing session in the course of, or as a result of, the session.

The privilege only extends to publication made:

  • at a conferencing session
  • as provided for under s60D(1)(b) and((c), or
  • as provided for under s60F of the Act. 

Defamation

Section 27(2)(b) of the Defamation Act 2005 (NSW) extends absolute privilege to court proceedings. Section 60D resolves any uncertainty as to whether the extension of absolute privilege to Legal Aid NSW, its officers and committees as under Schedule 1 of the Defamation Act extends to anything said or any document produced in a conferencing session. 

“The convenor of a conferencing session may disclose information obtained in connection with a conferencing session in any one or more of the following circumstances only:

(a) with the consent of the person from whom the information was obtained,

(b) to the Commission, a committee established under this Act, the Chief Executive Officer or a member of staff of the Commission in connection with the administration of legal aid,

(c) if there are reasonable grounds to believe that the disclosure is necessary to prevent or minimise the danger of injury to a person or damage to property,

(d) if the disclosure is reasonably required for the purpose of referring any party or parties to a conferencing session to any person, agency, organisation or other body and the disclosure is made with the consent of the parties to the conferencing session for the purpose of aiding in the resolution of a dispute between those parties or assisting the parties in any other manner,

(e) in accordance with a requirement imposed by or under a law of the State (other than a requirement imposed by a subpoena or other compulsory process) or the Commonwealth”.

Commentary

Section 60F is a confidentiality or secrecy provision applying only to the convener of a conferencing session and authorising, but not requiring disclosure by the convenor in the limited circumstances set out in 60F (a)-(e).

There is no penalty prescribed for a breach of section 60F of the Act.

Immunity

The Convenor of a conferencing session is given immunity from any action for any thing which was done or omitted in good faith for the purposes of a conferencing session under Part 3A.

“No matter or thing done or omitted to be done by the convenor of a conferencing session subjects the convenor to any action, liability, claim or demand if the matter or thing was done or omitted in good faith for the purposes of a conferencing session under this Part”.