Alternative dispute resolution - Comcover legal services information

Report
Alternative Dispute Resolution
Comcover Legal Services Information Forum Series
John Solomon, Partner
Tuesday, 26 November 2013
Sydney
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Melbourne
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Brisbane
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Canberra
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Newcastle
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Perth
Alternative dispute resolution
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Objectives
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Resolving dispute
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Mutually acceptable outcomes
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Maintain / repair relationships
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Cost effective
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Finality and certainty
Types of ADR
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Self guided resolution
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Interactive problem solving
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Conflict coaching
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Facilitated conversation
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Conciliation
Types of ADR (cont)
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Neutral evaluation
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Expert appraisal
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Mediation
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Arbitration
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Collaborative law
Is ADR appropriate?
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When should it be considered?
Capacity of parties
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Legally represented
Attitude of parties
Emotional / financial cost
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Ready?
Complexity
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Urgency
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Case appraisal
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There is a dispute in relation to an evidentiary or factual
issue
The hearing is likely to be lengthy
Additional independent investigation may assist in
resolving the dispute
Availability of an expert opinion may further negotiations
The convenience of conducting an appraisal on the
papers without the need for the parties to be present
Neutral evaluation
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Identification of a legal and / or factual issue that is decisive
(such as the correct interpretation of a legislative provision)
Agreement about the nature and impact of the issue
Willingness to have the application or identified issue
evaluated
Most investigations have been completed and evidence
obtained
The convenience of conducting an appraisal on the papers
without the need for the parties to be present
Conciliation
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Commercial considerations are important for the
parties
Desire of the parties to keep the dispute and
settlement negotiations confidential
The parties would benefit from advice in relation to
possible settlement options
There is a conflict in expert evidence or opinion
Mediation
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The matter is complex or likely to be lengthy
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The matter involves more than two parties
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Confidentiality and / or commercial considerations
important
There will be an ongoing relationship
An apology, concession or explanation from one party
could assist in resolving the dispute
A range of different settlement options could be explored
Advantages of ADR
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Increased settlement
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Improved satisfaction with the outcome – ‘win / win’
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Reduced time in dispute, therefore reduced costs
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Increased compliance with agreed solutions
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Assist in maintaining / recovering relationship
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Finality / certainty
Disadvantages of ADR
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Difficulties enforcing an outcome agreed during an
ADR process
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The use of and ADR process as a delaying tactic
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No right of appeal
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Increased delay and costs if the matter does not settle
Civil Dispute Resolution Act 2011
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Must take genuine steps to resolve dispute
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What is a ‘genuine step’?
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Must state what steps taken
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Applies to all matters of federal law except where
specifically excluded
Sanctions
Civil Dispute Resolution Act 2011
(cont)
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Aims
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To change the adversarial culture often associated
with disputes
Consider resolution before becoming entrenched in
a litigious position
Crystallising true areas of dispute if matter does not
resolve
ADR
QUESTIONS?
Discretionary compensation
and waiver of debt
mechanisms
Comcover Legal Services Information Forum Series
Scott Moloney, Special Counsel
Tuesday, 26 November 2013
Sydney
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Melbourne
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Brisbane
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Canberra
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Newcastle
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Perth
Introduction
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What are discretionary compensation and waiver of
debt mechanisms?
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Administrative mechanisms providing decision makers
with the ability to provide compensation or waive debts
in certain circumstances. They are known as:
The Scheme for Compensation for Detriment caused by
Defective Administration (the CDDA scheme)
Act of Grace payments
Ex gratia payments
Waiver of debt
Introduction (cont)
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How were the mechanisms created?
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The CDDA and Ex gratia schemes have been
established under the executive power of section 61 of
the Constitution
Act of Grace payments are authorised by section 33 of
the Financial Management and Accountability Act 1997
(the FMA Act)
The ability to waive debts is authorised by section
34(1)(a) of the FMA Act
Introduction (cont)
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Characteristics of the mechanisms:
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The mechanisms are available to all FMA Act agencies
They are mechanisms of last resort and are not
available if the claim has at least a ‘meaningful prospect
of liability’ being established against the Commonwealth
Based on a moral obligation to provide compensation in
appropriate circumstances
Whether a particular mechanism is available will depend
on the circumstances of the claim
Introduction (cont)
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There are no time limits, or limitation periods, that apply to
the making of a claim under each mechanism
The mechanisms are permissive and based on general
principles allowing both flexibility and consistency of
decisions
They are different from statutory compensation schemes
Claims involving the discretionary mechanisms are not
handled by Comcover or Gallagher Bassett
Guidelines for each mechanism can be found in Finance
Circular 2009/09 – Discretionary Compensation and Waiver
of Debt Mechanisms
Introduction (cont)
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Who makes a decision?
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CDDA – the Minister of the relevant agency (or his or
her delegate)
Act of Grace – the Minister for Finance (or his delegate)
Ex gratia – the Prime Minister of Australia and/or
Cabinet
Waiver of Debt – the Minister for Finance (or his
delegate)
Introduction (cont)
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Are decisions reviewable?
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Decisions made under CDDA or via the Ex gratia power
are not reviewable. However, claimants that are not
satisfied with decisions made under these mechanisms
may approach the Commonwealth Ombudsman to
investigate their claim
Decisions made under the Act of Grace mechanism and
Waiver of Debt power may be the subject of judicial
review pursuant to the Administrative Decisions (Judicial
Review) Act 1977
CDDA Scheme
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Key points:
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Claims for compensation determined by relevant agency
Allows decision makers to provide compensation to
individuals and organisations that have suffered
detriment as a result of ‘defective administration’
The ‘detriment’ complained of must be directly caused
by the defective administration to be compensable
There is no limit on the amount of money that can be
paid by way of compensation under the CDDA Scheme
CDDA Scheme (cont)
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‘Defective administration’ is defined as:
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A specific or unreasonable lapse in complying with existing
administrative procedures
An unreasonable failure to institute appropriate
administrative procedures
An unreasonable failure to give to (or for) an applicant, the
proper advice that was within the officer’s power and
knowledge to give (or reasonably capable of being obtained
by the officer to give)
Giving advice to (or for) an applicant that was, in all the
circumstances, incorrect or ambiguous
CDDA Scheme (cont)
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‘Detriment’ is also defined for the purposes of the
scheme to be either:
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Detriment relating to a personal injury including a mental
injury (personal injury loss)
Economic loss
Detriment relating to damage to property
CDDA Scheme (cont)
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Compensation:
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Paid on the basis of what is fair and reasonable
Aim to restore the claimant to the same position she/he was
in prior to defective administration occurring
Claimant’s own actions are relevant to take into account in
determining amount to be paid
Appropriate documents/information should be made
available to support claim
Some categories of compensation are generally not payable
CDDA Scheme (cont)
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Examples of claims for compensation made under
the CDDA Scheme
Act of Grace payments
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Key points:
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Claims for compensation determined by the Minister for
Finance or his delegate
Payments can be either one-off or periodic
There is no limit on the amount of compensation payable
The Minister or his delegate must be satisfied there are
‘special circumstances’ justifying the payment of
compensation and it is appropriate to do so
A claimant will generally need to have exhausted all other
avenues of redress prior to making a claim
Act of Grace payments (cont)
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The term ‘special circumstances’ is not defined, but
examples of situations that are taken to satisfy the
phrase are given in the Guidelines
Act of Grace payments (cont)
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Examples of what will not be considered under Act of
Grace include:
Where it is reasonable to conclude a legislative
mechanisms will provide a remedy
Applications relating to a privacy complaint
To compensate a person for a debt owed to the
Commonwealth
Where the proposed payment would have the effect of
supplementing payments set by other specific legislation
which cap the amount a beneficiary will receive
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Act of Grace payments (cont)
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Examples of claims considered under the Act of
Grace payments mechanism
Ex gratia payments
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Key points:
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Ex gratia payments made by the Government without
recognition of any legal liability or obligation to pay
The Ex gratia power provides flexibility to the Government to
allow it to provide financial relief in appropriate cases at
short notice
Payments under the Ex gratia power are only considered
after all other avenues for redress have been explored
Policy and guidelines surrounding Ex gratia payments is
currently being reviewed
Waiver of debt
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Key points:
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A ‘waiver’ is a special concession granted to an individual or
organisation that extinguishes a debt owed to the
Commonwealth
The debt must be an ascertainable amount that is payable
now or will become payable in the future as a result of a
present obligation, and could be recovered in an action for
debt
It is appropriate to waive the debt, rather than writing it off, if
recovery would be inequitable or cause ongoing financial
hardship
Waiver of debt (cont)
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Examples of when it may be appropriate to waive a
debt
Practical tips for complex claims
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Acknowledge all correspondence in a timely fashion
Keep the claimant informed in relation to the progress
of his or her claim
Maintain good records or notes, particularly of
conversations with the claimant
If necessary, obtain legal advice as to whether any
legal liability of the Commonwealth arises
Practical tips for complex claims
(cont)
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Be wary of additional or further claims and consider
them carefully
List the documents and information that you have
considered in dealing with the claim
Write correspondence in a factual way without
excessive emotive language or criticism
Refer to the relevant parts of the Finance Circular
when outlining the reasons for your decision
Practical tips for complex claims
(cont)
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Deal with each issue raised by the claimant and
provide substantive reasons for your decision in
relation to each issue
When working on complex claims consider developing
a spreadsheet to keep track of each issue and
associated information
Provide the claimant with procedural fairness as
outlined in the Finance Circular
Practical tips for complex claims
(cont)
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Indicate in your decision letter whether you will
reconsider any aspect of the claim upon receipt of
further information or not, noting that the Finance
Circular indicates there is no automatic right of review
Include a reference to any appeal rights that apply or
further avenues of complaint that may be relevant
Reference material
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Commonwealth Ombudsman’s Better Practice Guide
to Managing Unreasonable Complainant Conduct
Commonwealth Ombudsman’s Better Practice Guide
to Complaint Handling
Commonwealth Ombudsman’s report – Putting things
right: compensating for defective administration
(August 2009)
Administrative Review Council – Better Practice
Guidance to Decision Making
QUESTIONS?

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