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ALTERNATIVE DISPUTE
RESOLUTION
Alternative Dispute Resolution

deal with conflict. An effective ADR system also draws upon the best that technology
has to offer and ensures that the design of complaint and dispute processes are
human focused.
Our world continues to present us with many opportunities to consider options
for peaceful and effective conflict resolution. These opportunities arise at the
individual, international and organisational levels. The responses that we make to
conflict are increasingly informed by what has been described as a paradigm shift in
dispute and conflict resolution (often referred to as alternative dispute resolution or
ADR). The new paradigm suggests that processes that promote self-​determination
and a willingness to acknowledge and respond to human qualities can have a
profound impact upon conflict outcomes and also upon the management of future
human relations and our communication at all levels of society.
These approaches are often not "new"; however, the organisational approaches,
skills focus and widespread use of these approaches in Australia over the past
30 years have changed the way in which much social interaction takes place. Some
authors who have explored recent inspirational approaches to conflict resolution
suggest that even in areas where historic grievances are profound and where notions
of “payback” predominate, practical shifts in thinking can create new visions of
reality that can support peace and healing.2
These recent developments do not assume that all conflict can be dealt with in
peaceful or non-​destructive ways or that destructive conflict can be eradicated.
However, the recent evolution of conflict management approaches supports the
creation of an analytical framework for dispute and conflict resolution that is more
concerned with effective and durable outcomes and common operating principles
than short-​term approaches that can, over time, inflame or create conflict. These
realities are particularly important to emphasise as shifts in global political
approaches have challenged a focus on healing with a visible litany of power based
“one upmanship” negotiation and conflict approaches that continue to impact
adversely on the environment (social and environmental).
Within Australasia, the new paradigm has also had an impact upon the legal
system and is transforming the role of lawyers within our society. The tension that
exists as lawyers act as advocates, peacemakers and negotiators has been present for
many years. For example, one well-​known lawyer, Abraham Lincoln, once stated:
Discourage litigation. Persuade your neighbours to compromise whenever you can.
Point out to them how the nominal winner is often a real loser –​in fees, expenses, and
waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good
man. There will be business enough.3
When I first read this quote a number of years ago, I was struck by the approaches
taken by many lawyers to litigation and the opportunities provided by the emerging
ADR system to transform legal practice and the outcomes of conflict. This book and
much of my research since that time has been written as a result of my experiences in
the litigation system and within the parallel and often related universe of alternative

2 M Henderson, Forgiveness (Book Partners, Oregon, USA, 1999).

3 A Lincoln, Notes for a Law Lecture (1 July 1850) p 81.

viii 
 Preface

dispute resolution (ADR). The interplay between the processes and personalities of
these systems has produced a constantly evolving approach to dispute and conflict
resolution that now impacts upon all areas of society in Australia.
The enormous changes in the way that disputes are resolved include an increased
awareness of facilitative processes (rather than evaluative and determinative
processes), as well as a blending of processes in newer ADR models such as those
now operating in the Collaborative Practice and Conflict Coaching areas and
operating as a result of technological changes and challenges.
In addition, dispute resolution processes that were once novel are now
incorporated into our broad dispute resolution system. Processes such as
"meditation" are no longer confused with "meditation". They are commonplace and
well known in the inter-​national, national and local arena.
This shift has impacted upon education and training and our expectations about
negotiation and what can occur if disputes and conflict arise. For lawyers, this shift
has had profound implications. For example, for young lawyers, a focus on ADR
skills represents a change in the content and delivery of legal education. In the past,
it had been said:
Only after graduation do your attorneys come to the depressing realisation that 90% of
what they were taught in academia will never be used in practice; and, conversely, 90%
of what they need to know in practice was never taught to them at school.4
Hopefully a greater focus on ADR skills –​essentially advanced communication and
thinking skills –​will result in a more relevant law school (and University) education
and, perhaps, an increase in different and more rewarding career opportunities for
lawyers. This shift continues at a greater rate as lawyers rethink what it is that their
clients need and adjust their practices so that many can focus on collaborative skills
while retaining an important advisory role.
For non-​lawyers who are students and practitioners of ADR, the opportunities
that are presented by improving communication, conflict avoidance and dispute
resolution skills are enormous. ADR processes and concepts can assist at a personal
and organisational level and provide people with a "user friendly" set of skills for
daily life.
Since 2002, when the first edition of this book was published, there have been great
advances in ADR. These advances have occurred in a range of areas and include: the
greater integration of mandatory forms of ADR; development and extension
of standards and accreditation criteria; extensions in relation to technologically
supported and conducted ADR as well as substantive and significant developments
in respect of complaints handling. ADR use has grown and continues to grow
around the world –​increasingly, ADR systems are being built along side judicial
systems and are seen as an essential part of civil society.
The sixth edition of this book aims to introduce concepts and skills and to
map issues that are arising within the ADR area. In doing so, this book does not
seek to suggest that ADR processes are a substitute for judicial processes that are

4 MH McCormack, What They Didn’t Teach Me at Yale Law School (William Collins Sons, Great Britain,
1987) p 10.

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Alternative Dispute Resolution

also evolving and adapting in response to a range of factors which include the
emergence and increasing prevalence of ADR processes. Rather, the links and
possible evolution of both systems is discussed in the context of a single dispute
resolution system and the possible benefits of a strategic architectural approach.
In this regard, the book also seeks to provide links between theory and reality and
seeks to draw upon the fresh ideas and perspectives that are emerging throughout
the broader dispute resolution system.
It is hoped that the book will be useful for both practitioners and students.
While much of the discussion is intended to provide information that is of
general application, there has been an attempt to introduce principles, examples
and perspectives that will assist those who are seeking to explore the different
approaches to ADR that currently exist. In this regard the book is intended to be an
everyday reference as well as a more in-​depth reference book for practitioners and
students who have a particular interest in ADR processes, skills and systems.
Understandably, there remains some reluctance to use ADR processes in a variety
of areas where conflict arises. Undoubtedly, a strong and effective “rule of law” and
a robust legal system are essential to enable ADR to operate effectively. However,
the increasing insights into the advantages of various negotiation strategies (rather
than only two strategies –​to avoid/​submit, or win/​lose (see Chapter 2)) has meant
that areas where the full range of dispute resolution processes are not considered
diminish each year.
There are many who have assisted to develop ideas and concepts and who have
commented upon chapters or concepts used in this book. These include:
• Senior Researcher Madeline Muddle who has been my part time researcher at the
University of Newcastle Law School for the past two years. Madeline has worked
with me while completing her law degree and has an exceptional future ahead
of her. Assisting Madeline and myself a team of part time senior law students
have carefully considered footnotes and the impact of new legislation and
developments. The team includes Tom Hinds, Alex Madafiglio and Scott Murray
Walker. Importantly, Alysoun Boyle who is an outstanding PhD candidate has
also contributed her comments and suggestions as have PhD researchers Blake
Pepper and also Briony Johnston. The large team has been necessary as throughout
the revisions to this edition, work has continued unabated on a series of research
projects that have been relevant to work in this book. These include projects on
pre action protocols, the Return on Investment of Effective Complaints handling,
a book on responsive judging, a project directed at establishing Newcastle as a
Restorative city and continuing, as well as ongoing work on technology, justice
and judging.
• The Hon Prof Andrew Rogers QC with whom I have had the pleasure of working
for more than 30 years and who is my co director at Endispute Pty Ltd. His wit
and intelligence continue to both delight and astound me.
• The late Professors Jennifer David, Alexis Goh and Dr Jane Elix, as well as the
late Sir Laurence Street, Natasha Serventy and Micheline Dewdney. The world
is a less vibrant place without these significant and extraordinary ADR giants.

x 
 Preface

The engaging Allan Parker, Geri Ettinger, Peter Adler, Professor John Zeleznikow,
Associate Professor Lola Ojelabi and Dr Peter Condliffe continue to inspire and
provide leadership in relation to ADR. I am also grateful to my international
colleagues (many of whom are part of a Collaborative Research Network that
is supported by the Law and Society Association) and who include Professors
Archie Zariski, Toby Goldbach, Brian Barry, Nancy Welsh, David Wexler, Bobbi
McAdoo and many others.
• My former and current colleagues on the numerous committees and boards that
I have been involved with and particularly those involved in the 2014 National
Mediation Conference as well as those involved in SOCAP, the early iterations of
the Mediator Standards Board, the Law Council of Australia Collaborative Law
Committee, the Building and Evidence Base for the Civil Justice Committee and
the American Bar Association Taskforce on Mediator Effectiveness.
• My publisher Thomson Reuters and in particular Stephen Rennie and Padmapriya
from New Gen (Trau Books).
• My former colleagues at the Australian Law Reform Commission (and the
Commission itself) –​my work there from 1996-​1998 in relation to ADR concepts was
invaluable in shaping my current thoughts and research. Many of the concepts in
this book have evolved from those that were developed while writing issues papers
and other documents and consulting with ADR practitioners around Australia.
• My former colleagues at La Trobe University who include a number of ADR
experts such as Dr Tom Fisher and Associate Professor Lawrie Moloney, with
whom I have had the great pleasure to work with on issues relating to standards
development, as well as Deborah Macfarlane, who is the Chair of VADR and also
assisted with complex research tasks in respect of the second edition.
• My former colleagues at Monash University and at the Australian Centre for
Justice Innovation (ACJI) where I was the Director from 2011 to 2016. Particular
mention must be made of Professor Arie Freiberg who is an inspiration to
academics, students and all those within the justice sector, Professor Paula Gerber
and remarkable academics who include Becky Batagol, Genevieve Grant and
many others. Former colleagues at the Australian Centre for Peace and Conflict
Resolution at the University of Queensland and in particular Professor Nadja
Alexander and Professor Di Bretherton, as well as Senior Researcher Nikola
Balvin and Naomi Burstyner.
• My former co-​trainers at the Resolution Institute, Nina Harding, Anne Sutherland
Kelly, Bradley Chenoweth, Carol Powell and Anna Quin whose perspectives
in the areas of negotiation and conflict management are always insightful and
useful.
• Catherine Gale, a past President of the Law Council of Australia and the Law
Institute of Victoria, who has introduced me to Collaborative Practice and with
whom I have also co -​trained on a number of occasions since 2005.
• My past colleagues at the National Alternative Dispute Resolution Advisory
Council and, in particular, Jeremy Gormly SC, Justice Murray Kellam, and the

  xi
Alternative Dispute Resolution

past Chair, Professor Laurence Boulle, as well as David Syme (Secretariat) and
Council members such as Tom Howe, Margaret Halsmith, Norah Hartnett, Allan
Campbell, Helen Bishop, Lyn Stephens, Warwick Soden, John Spender and John
Hannaford.
• My particular thanks to the Honourable Ruth McColl AO who generously wrote
the foreword for this edition and following a very distinguished career has
continued to lead developments in the ADR world as the Chair of ADRAC.
The dispute resolution practitioner community within Australia and New Zealand
deserves special thanks as they have tirelessly contributed to developments in the
field of dispute resolution, endlessly and patiently (mostly) dealt with conflict and
who have also willingly subjected themselves to continuing research because of
their commitment and passion to effective conflict resolution processes. I am also
grateful to the dispute resolution practitioners that I have now had opportunities to
work with in Hong Kong, China, Canada, the United States, Europe and the Middle
East (and particularly those within the United Arab Emirates).
I also wish to thank my students and those who are in dispute who have granted
me the privilege and honour of dealing with their disputes. They have not only
assisted in providing me with a challenging and enjoyable working life but have
also introduced a range of insights and perspectives that have been invaluable.
My family deserves a final special mention and thanks. They include my mediator
husband, Garth Brown, a great thinker, mediator and supporter, and my other very
dear supporters –​our children, Alexei and Ella, who continue to encourage me to
develop refined negotiation, brainstorming and option generating skills –​they all
make the process possible and worthwhile.

TANIA SOURDIN
February 2020

xii 
 CONTENTS
Foreword.................................................................................................................................................v
Preface.................................................................................................................................................. vii
Acknowledgments.................................................................................................................................xv
Table of Cases..................................................................................................................................... xvii

1 Conflict and dispute resolution................................................................................ 1

2 Negotiation............................................................................................................... 43

3 Mediation.................................................................................................................. 77

4 Collaborative practice............................................................................................. 121

5 Complaints............................................................................................................... 157

6 Advisory and determinative processes................................................................ 193

7 Skills......................................................................................................................... 245

8 Court-​based ADR..................................................................................................... 301

9 ADR outside the courts......................................................................................... 363

10 ADR and technology.............................................................................................. 399

11 Obligations in ADR and enforcing ADR outcomes............................................ 439

12 Confidentiality, admissibility and ADR practitioner liability in ADR.............. 501

13 Dispute system design............................................................................................ 553

14 Accreditation.......................................................................................................... 599

15 Future trends.......................................................................................................... 633

Appendix A Further reading and exercises.............................................................. 681

Appendix B Dispute Resolution Kit and Private Arbitration Kit*......................... 705

Appendix C Framework for screening, assessment and referrals........................ 769

Appendix D Dispute resolution clauses................................................................... 809

Appendix E NMAS standards and collaborative practice standards.....................813

Appendix F NADRAC framework for ADR standards...............................................841

Appendix G ADR research work................................................................................ 855

Index................................................................................................................................................... 895

  xiii
 ACKNOWLEDGMENTS
Extracts from the texts listed below have been reproduced in this book:

Attorney-​General's Department, Australian Government: http://​www.ag.gov.au

Access to Justice Advisory Committee, Access to Justice –​An Action Plan (1994).
JE McIntosh and C Ralfs, The Family Law DOORS Handbook (2012).

Cybersettle, Inc: http://​www.cybersettle.com

Settlement Example (Graphic).

Florida State University Law Review (by the Florida State University, College of
Law): http://​www.law.fsu.edu
C Menkel-​Meadow, "Pursuing Settlement in an Adversary Culture: A Tale of
Innovation Co-​opted or 'The Law of ADR'" (1991) 19 Florida State University Law
Review 1.

Lawbook Co, part of Thomson Reuters (Professional) Australia Ltd: http://​www.

thomsonreuters.com
R Charlton, Dispute Resolution Guidebook (2000).

Law and Justice Foundation of New South Wales: http://​www.lawfoundation.

net.au
Civil Justice Research Centre, Researching Alternative Dispute Resolution (1992).

The Law Society of New South Wales: http://​www.lawsociety.com.au

The Law Society of New South Wales, Dispute Resolution Kit (December 2012).
The Law Society of New South Wales, Private Arbitration Kit (May 2015).

MSB (Mediator Standards Board): http://​www.msb.org.au/​

National Mediator Accreditation System (NMAS) (effective 1 July 2015).

NADRAC (National Alternative Dispute Resolution Advisory Council): http://​

www.nadrac.gov.au
ADR in the Civil Justice System (Issues Paper, March 2009).
Glossary of ADR Terms (2007).
Australian Standard, Dispute Management Systems: AS 4608-​2004, quoting NADRAC
Dispute Resolution Terms (September 2003).
The Development of Standards for ADR (Discussion Paper, Attorney-​
General's
Department, 2000)

  xv
Alternative Dispute Resolution

Comment on the Federal Civil Justice Strategy Paper.

A Framework for ADR Standards (Attorney-​General's Department, 2001).

Productivity Commission, Australian Government: http://​www.pc.gov.au/​

Access to Justice Arrangements –​Inquiry Report (Report No 72, 2014) pp 1, 5.

Resolution Institute: https://www.resolution.institute/

Assessing mediator competency – Resolution Institute Checklist.

Routledge, UK: http://​www.routledgefalmer.com

G Appleby in K Mackie (ed), A Handbook of Dispute Resolution: ADR in Action (1991).

Standards Australia, Sydney: http://​www.standards.com.au

Australian Standard –​Guide to the Prevention, Handling and Resolution of Disputes: AS
4608-​1999 (1999).
Australian Standard: Dispute Management Systems: AS 4608-​2004, quoting NADRAC
Dispute Resolution Terms (2003).
Australian Standard AS/​
NZS 10002:2014: Customer Satisfaction –​Guidelines for
Complaint Management in Organizations (2014).

xvi 
 TABLE OF CASES
789TEN Pty Ltd v Westpac Banking Corporation [2004] NSWSC 594.............................. [12.25]

ACCC v Lux Pty Ltd [2001] FCA 600........................................................................ [8.135], [11.45]

ACCC v Pratt (No 3) [2009] FCA 407..................................................................................... [12.25]
AMCI (IO) Pty Ltd v Aquila Steel Pty Ltd [2009] QSC 139;
[2010] 2 Qd R 101................................................................................................................. [11.30]
AWA Ltd v Daniels (t/​a Deloitte Haskins and Sells) (1992) 7 ACSR 463........... [12.10], [12.25]
Abriel v Australian Guarantee Corporation Ltd [1999] FCA 50;
[2000] FCA 1198.................................................................................................................... [12.25]
Aircraft Support Industries Pty Ltd v William Hare UAE LLC
[2015] NSWCA 229.............................................................................................................. [11.50]
Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236...................................... [11.30]
Al-​Hakim v Monash University [1999] VSC 511.................................................................. [12.20]
Alcatel Australia Ltd v Scarcella [1998] NSWSC 483; (1998) 44 NSWLR 349................... [11.30]
Altain Khuder LLC v IMC Mining Inc [2011] VSC 1........................................................... [11.50]
Anglicare WA v Department of Family and Children Services (2000)
26 Fam LR 218; [2000] WASC 47........................................................................................ [12.20]
Antony Leslie John Woodings as liquidator of The Bell Group Ltd and
The Bell Group Finance Pty Ltd v WA Glendinning & Associates
Pty Ltd [2019] WASC 54...................................................................................................... [12.25]
Antova v Bokan [2017] NSWSC 115....................................................................................... [11.45]
Aon Risk Services Australia Ltd v ANU [2009] HCA 27..................................................... [6.165]
Apotex Pty Ltd v Laboratoires Servier (No 5) [2011] FCA 128........................................... [12.20]
Asciak v Australian Secured and Managed Mortgages Pty Ltd
[2008] FCA 753........................................................................................................ [12.20], [12.25]
Associated Provincial Picture Houses Ltd v Wednesbury Corporation
[1947] EWCA Civ 1; [1948] 1 KB 223................................................................................. [11.50]
Astley v Austrust Ltd Astley v Austrust Ltd (1999) 197 CLR 1.......................................... [12.65]
Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1.............................................. [12.55]
Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Ltd & Ors
[2019] QSC 163..................................................................................................................... [11.30]
Austotel Management Pty Ltd v Jamieson (Unreported, FCA, 7 June 1995)................... [12.25]
Australian Communications and Media Authority v Bytecard Pty Ltd
[2013] FCA 38........................................................................................................................ [11.50]
Australian Competition and Consumer Commission v Australian Safeway
Stores Pty Ltd (No 3) (2002) ATPR 41-​901........................................................................ [12.25]
Australian Competition and Consumer Commission v Black On White
[2002] FCA 1605.................................................................................................................... [12.25]
Australian Competition and Consumer Commission v Geowash Pty Ltd
(No 3) [2019] FCA 72........................................................................................................... [11.30]
Australian Investment and Securities Commission v Rich [2005] NSWSC 489................ [8.20]
Australian Mutual Provident Society v 400 St Kilda Road Pty Ltd [1991] 2 VR 417...... [11.30]
Australian Securities and Investments Commission (ASIC) v Ingleby
[2013] VSCA 49....................................................................................................................... [1.70]
Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300................................... [11.45]
Azzi v Volvo Car Australia Pty Ltd [2007] NSWSC 375........................................ [12.20], [12.25]

BHP v Steuler; Protec v Steuler [2014] VSCA 338................................................................. [11.45]

BT Australasia Pty Ltd v New South Wales and Telstra Corp Ltd [1997]
FCA 1553............................................................................................................................... [12.75]

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Alternative Dispute Resolution

Backreef Oil Pty Ltd and Oil Basins Ltd/​John Watson on behalf of
Nyikina and Mangala/​Western Australia [2012] NNTTA 98........................................ [11.30]
Baker v Campbell (1983) 49 ALR 385..................................................................................... [12.30]
Baldwin & Anor v Icon Energy Ltd & Anor [2015] QSC 12................................... [11.30], [11.45]
Barrett v Queensland Newspapers Pty Ltd [1999] QDC 150................................................ [8.30]
Barry v City West Water Ltd [2002] FCA 1214...................................................................... [12.25]
Barry Hopcroft and Barameda Fishing Company v A M Olsen [1998]
SASC 7009............................................................................................................................... [8.55]
Berjaya Group (Aust) Pty Ltd v Ariff (2007) NSWSC 174..................................................... [8.20]
Bernhard Schulte GmbH & Co KG v Nile Holdings Ltd [2004]
2 Lloyd’s Rep 352................................................................................................................... [6.65]
Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130, 132-​133.......................... [11.45]
Broadhead v The State of Queensland [2006] QDC 273........................................... [9.40], [11.10]
Brown v Commissioner of Taxation (2001) 187 ALR 714.................................................... [12.20]
Browning v Crowley [2001] NSWSC 427............................................................................... [8.135]
Brownley v Western Australia (No 1) [1999] FCA 1139....................................................... [11.30]
Bruinsma v Menczer (Unreported, NSWSC, 14 December 1995)...................................... [12.25]
Burchell v Bullard [2005] All ER (D) 62.................................................................................. [11.15]
Burger King Corporation v Hungry Jack’s Pty Ltd [2001] NSWCA 187;
(2001) 69 NSWLR 558........................................................................................................... [11.30]

C v M [2011] WASC 175........................................................................................................... [12.20]

Cains and Anor v Wadiwel and Ors [2007] NSWSC 207..................................................... [8.135]
Capolingua v Phylum Pty Ltd (1991) 5 WAR 137................................................................ [12.25]
Caves Beachside Cuisine Pty Ltd v Boydah Pty Ltd [2015] NSWSC 1273....................... [11.30]
Cawthorne v Olsen [2005] SASC 34......................................................................................... [8.55]
Central Exchange Ltd v Anaconda Nickel Ltd (2002) 26 WAR 33..................................... [11.30]
Chaina v Presbyterian Church (NSW) Property Trust (No 10) [2013] NSWSC 499.......... [8.20]
Chammas v Risk [2015] NSWSC 1213.................................................................................... [11.45]
Charles v Sheffield Resources [2017] FCAFC 218................................................................ [11.30]
Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1............................... [11.30]
Comandate Marine Corporation v Pan Australia Shipping Pty Ltd (1996)
39 NSWLR 160........................................................................................................................ [6.65]
Comandate Marine Corporation v Pan Australia Shipping Pty Ltd [2006]
FCAFC 192.............................................................................................................................. [6.65]
Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169........... [11.30]
Commonwealth Bank of Australia v McConnell (Unreported, NSWSC,
10 July 1997).......................................................................................................................... [12.10]
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd
(2006) 229 CLR 577............................................................................................................... [6.165]
Construction NSW Pty Limited v Taylor Thompson Whitting (NSW)
Pty Ltd [2015] NSWSC 780................................................................................................. [11.45]
Cook v Taing [2014] VSC 428................................................................................................... [12.20]
Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184............... [11.30]
Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987)
14 FCR 434............................................................................................................................ [12.15]
Cromwell Property Securities Ltd v Financial Ombudsman Service Ltd [2014]
VSCA 179; (2014) 288 FLR 374........................................................................................... [11.50]
Cutts v Head [1984] Ch 290....................................................................................... [12.15], [12.20]

D’Orta-​Ekenaike v Victoria Legal Aid (2005) 223 CLR 1..................................................... [11.35]

DP World Sydney Ltd v Kelly [2011] NSWWCCPD 43......................................................... [6.85]
Daniels Corporation International Pty Ltd v Australian Competition and
Consumer Commission (2002) 213 CLR 543; [2002] HCA 49........................................ [12.25]

xviii 
 Table of Cases

Downie v Spiral Foods Pty Ltd [2015] VSC 190................................................................... [12.10]

Duke Group Ltd (in liq) v Alamain Investments Ltd [2003] SASC 272............................ [8.125]
Dunnett v Railtrack plc [2002] EWCA Civ 302; [2002] 1 WLR 2434l;
[2002] 2 All ER 850.................................................................................... [11.15], [11.25], [11.50]

Eaton v ISS Catering Pty Ltd [2013] VSCA 361........................................................ [11.25], [11.30]
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337............................................... [8.125]
Edwards v Olsen; Murphy v Stevens [2000] SASC 438......................................................... [8.55]
Eli Lilly and Company v The Government of Canada, UNCITRAL,
ICSID Case No UNCT/​14/​2 (2012–​2017)........................................................................ [15.10]
Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd
(1995) 36 NSWLR 709.......................................................................................................... [11.30]
Ella v The Queen (1991) 103 FLR 8......................................................................................... [11.45]
Endeavour Coal Pty Limited v Association of Professional Engineers,
Scientists and Managers, Australia [2012] FCA 764........................................................ [11.30]
Esso Australia Resources Ltd v Plowman (Minister for Energy and
Minerals) (1995) 183 CLR 10...................................................................... [6.85], [12.15], [12.28]
Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL
(recs and mgrs apptd) (admins apptd) [2005] VSCA 228.............................................. [11.30]

FMG Pilbara Pty Ltd v Cox (2009) 176 FCR 141................................................................... [11.30]
Farm Assist Ltd (in liquidation) v The Secretary of State for the Environment,
Food and Rural Affairs (No 2) [2009] EWHC 1102 (TCC).............................................. [12.15]
Fazil-​Alizadeh v Nikbin (1993) Times, 19 March................................................................. [12.20]
Field v Commissioner for Railways (NSW) (1957) 99 CLR 285........................... [12.20], [12.25]
Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40;
[2007] EWCA Civ 1329; [2007] 4 All ER 951.......................................................... [6.65], [11.30]
Fordham Laboratories Pty Limited v Sor & Anor [2011] NSWSC 706.............................. [11.20]
Forster v Friedland [1992] CA Transcript 1052..................................................................... [12.20]
Forsyth v Sinclair (No 2) [2010] VSCA 195............................................................................ [12.20]
Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd
(1996) 39 NSWLR 160............................................................................................................ [6.65]

Gain v Commonwealth Bank of Australia (1997) 42 NSWLR 252..................................... [12.10]

Galea v Galea (1990) 19 NSWLR 263........................................................................ [6.165], [8.125]
Gary John Mackin v Roger Belmonte as Executor of the Estate of the
late Doris Hilda Mackin [2015] NSWSC 1226.................................................................. [11.45]
Gladstone Area Water Board & Anor v AJ Lucas Operations Pty Ltd
[2014] QSC 311......................................................................................................... [11.45], [12.25]
Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018]
NSWSC 276........................................................................................................................... [11.30]
Grant v Downs (1976) 135 CLR 674........................................................................................ [12.30]
Gujarat NRE India Pty Ltd v Wollongong Coal Limited [2018]
NSWSC 1459......................................................................................................................... [11.30]
Gutnick v Indian Farmers Fertiliser Cooperative Ltd [2016] VSCA 5............................... [11.50]

Hadid v Lenfest Communications Inc Hadid v Lenfest Communications

Inc [1999] FCA 1798............................................................................................... [12.65], [12.75]
Halsey v Milton Keynes General NHS Trust [2004] 4 All ER 920...................................... [11.15]

  xix
Alternative Dispute Resolution

Harcourt WA Pty Ltd v Roy Weston Nominees Pty Ltd (No 6)

[2016] FCA 1492.................................................................................................................... [12.20]
Harvey Industries Group Pty Ltd v Jones [2017] WADC 74............................................... [11.30]
Heart Research Institute Ltd v Psiron Ltd, The [2002] NSWSC 646.................................. [11.30]
Higgins v Higgins [2002] NSWSC 455; Singh v Singh [2002] NSWSC 852...................... [8.135]
Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2; [1932] All ER Rep 494................................. [11.30]
Hodgkinson & Corby Ltd v Wards Mobility Services Ltd [1997] FSR 178....................... [12.20]
Hogan v Hinch [2011] HCA 4.................................................................................................. [11.40]
Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992)
28 NSWLR 194...................................................................................................................... [11.30]
Hopkins v Achieve Australia Ltd [2015] NSWWCCPD 54................................................. [11.50]
Humphreys v Humphreys [2016] VSC 637........................................................................... [12.20]

IMC Aviatino Solutions Pty Ltd v Altain Khuder LLC (2011) 38 VR 303......................... [11.50]
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 427..................... [8.135], [11.30]

JT International SA v Commonwealth of Australia [2012] HCA 43.................................. [15.10]

Jingalong Pty Limited v Todd [2015] NSWCA 7.................................................................. [11.45]
Jireh International Pty Ltd t/​as Gloria Jean’s Coffee v Western Export
Services Inc (No 2) [2011] NSWCA 294............................................................................. [12.20]
John Sheahan v Martin Thompson [2015] NSWSC 871....................................................... [12.20]
Johnson v Johnson (2000) 201 CLR 488.................................................................... [8.125], [6.165]
Johnson Property Group Pty Ltd v Dabson [2017] NSWSC 481........................................ [12.10]
Jones v National Coal Board [1957] 2 QB 55........................................................... [6.165], [8.125]

Kendirjian v Lepore (2017) 259 CLR 275............................................................................... [12.55]

Kevin Cosmos & Ors (Yaburara Mardudhunera People)/​Mr Jack Alexander &
Ors (Kuruma Marthudunera People)/​Western Australia/​Mineralogy Pty
Ltd, [2009] NNTTA 35 (Cosmos v Mineralogy)............................................................... [11.30]
Klement v Randles [2012] VSCA 73........................................................................................ [11.25]

Lainson Holdings Pty Ltd v Duffy Kennedy Pty Ltd [2019] NSWSC 576.......................... [6.65]
Legal Practitioners Complaints Committee v Fleming [2006]
WASAT 352........................................................................................................................... [11.35]
Legal Services Commission v Garrett [2009] LPT 12........................................................... [11.35]
Legal Services Commissioner v Mullins [2006] LPT 012; [2006]
QLPT 012.................................................................................................................... [2.85], [11.35]
Lewis v Nortex Pty Ltd (in liq); Lamru Pty Ltd v Kation Pty Ltd [2002]
NSWSC 1245......................................................................................................................... [12.10]
Lidoframe Pty Ltd v New South Wales [2004] NSWSC 128; [2006]
NSWSC 1262......................................................................................................................... [8.135]
Linwood v Ranchhod [2018] NZHC 2532............................................................................. [11.45]
Lipman Pty Ltd v Emergency Services Superannuation Board [2010]
NSWSC 710; [2011] NSWCA 163............................................................................ [6.65], [11.45]
Lipman Pty Ltd v Empire Façades Pty Ltd [2017] NSWCA 217.......................................... [6.65]
Liu v Fairfax Media Publications Pty Ltd (2012) 84 NSWLR 547...................................... [12.20]
Livesey v New South Wales Bar Association (1983) 151 CLR 288..................................... [6.165]
Lukies v Ripley (No 2) (1994) 35 NSWLR 283...................................................................... [12.25]

xx 
 Table of Cases

Macquarie International Health Clinic Pty Ltd v Sydney South West Area
Health Service (2010) 15 BPR 28,563................................................................................. [11.30]
Mango Boulevard Pty Ltd v Mio Art Pty & Anor [2018] QCA 39...................................... [11.50]
Markarian v R [2005] HCA 25................................................................................................. [6.120]
Market Street Associates Limited Partnership v Frey [1991] USCA7 746;
941 F 2d 588 (1991)............................................................................................................... [11.30]
Markovina v The Queen (No 2) (1997) 19 WAR 119............................................................ [11.45]
Marks v GIO Australia Holdings Ltd (No 2) (1996) 66 FCR 128........................................ [12.25]
Martin Patrick Dowling v Utraceuticals Pty Ltd (2016) NSWLR 155;
[2016] NSWSC 386............................................................................................................... [12.25]
Masters v Cameron [1954] HCA 72; 91 CLR 353.................................................................. [11.45]
Matthews v The Tap Inn Pty Ltd [2015] SADC 20................................................................. [8.55]
McKenzie v Edmondson (1996) 15 WAR 391........................................................................ [11.45]
McMahon v Permanent Custodians Ltd [2013] NSWCA 27............................................... [11.45]
Mickovski v Financial Ombudsman Service Ltd [2012] VSCA 185................................... [11.50]
Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 82.......................................... [11.30]
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507................ [6.165]
Mio Art Pty Ltd v Mango Boulevard Pty Ltd and Ors (No 2) [2012] QSC 348................ [11.30]
Mitchell v News Group [2013] EWCA Civ 1537................................................................... [11.15]
Mitchell Water Australia Pty Ltd v McConnell Dowell Constructors
(Aust) Pty Ltd [2018] VSC 753............................................................................................. [6.85]
Mora v Worley [2019] FCCA 2467........................................................................................... [8.120]
Morrow v Chinadotcom Corporation [2001] ANZ ConvR 341.......................................... [11.30]
Mullins Legal Services Commissioner v Mullins [2006] LPT 012...................................... [11.35]
Mundine v Brown (No 7) [2011] NSWSC 170....................................................................... [12.20]

Nadar v Sutherland Shire Council [2008] NSWCA 265....................................................... [12.20]

National Australia Bank Ltd v Freeman [2000] QSC 295.................................................... [11.45]
Neely v Ezel [2019] FCCA 939................................................................................................. [8.120]
New Price Retail Services Pty Ltd and Anor v David Hanna [2014] NSWSC 553............ [6.65]
New South Wales v Banabelle Electrical Pty Ltd (2002) 54 NSWLR 503.......................... [11.30]
New South Wales v UXC Ltd [2011] NSWSC 530................................................................ [11.45]
Nichols Constructions Pty Limited v Elphick [2015] NSWSC 940.................................... [11.45]
North East Solution Pty Ltd v Masters Home Improvement Australia
Pty Ltd [2016] VSC 1............................................................................................................ [11.30]

Oliver v Lake Side Resort Development Pty Ltd [2005] NSWSC 501............................... [12.25]

Paciocco v Australia and New Zealand Banking Group Limited [2015]

FCAFC 50.............................................................................................................................. [11.30]
Park Rail Developments Pty Ltd v RJ Pearce Associates Pty Ltd (1987)
8 NSWLR 123.......................................................................................................................... [6.65]
Parsons Brinckerhoff Australia Pty Ltd and Anor v Thiess Pty Ltd and
Anor [2013] QSC 75................................................................................................ [11.30], [11.50]
Patersons Securities Ltd v Financial Ombudsman Service Ltd [2015]
WASC 321.................................................................................................... [6.65], [11.50], [12.65]
Payne v Rowe [2012] NSWSC 685.......................................................................................... [12.20]
Perry v Powercor Australia Ltd [2011] VSC 308................................................................... [12.30]
Petrolink Pty Ltd; Smith v Bone [2014] FCA 1024................................................................ [12.20]

  xxi
Alternative Dispute Resolution

Petronaitis v Petronaitis [2016] NSWSC 765......................................................................... [11.45]

Phe & Leng [2019] FamCAFC 17............................................................................................ [12.20]
Pihiga Pty Ltd v Roche (2011) 278 ALR 209; [2011] FCA 240................................ [12.15], [12.20]
Pinot Nominees Pty Ltd v Commissioner of Taxation [2009] FCA 1508........................... [12.20]
Pittorino v Meynert (as Executrix of the Wills of Pittorino (dec’d))
[2002] WASC 76........................................................................................... [3.50], [11.45], [12.25]
Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122.......................... [12.30]

Quad Consulting Pty Ltd v David R Bleakley and Associates

Pty Ltd (1990–​1991) 98 ALR 659........................................................................................ [12.25]
Queensland Independent Wholesalers Ltd (QIW), Re [1995] ATPR 41-​438....................... [6.65]

R v Baden-​Clay [2013] QSC 351.............................................................................................. [12.20]

R v Birks (1990) 19 NSWLR 677.............................................................................................. [11.45]
R v Liddy (No 2) (2001) 79 SASR 401..................................................................................... [12.20]
R v Re Bell; Ex parte Lees (1980) 146 CLR 141...................................................................... [12.50]
R v Watson; Ex parte Armstrong (1976) 136 CLR 248............................................ [6.165], [8.125]
RW Health Partnerships Pty Ltd v Lendlease Building Contractors
Pty Ltd [2019] VSC 353............................................................................................. [11.45], [6.65]
Rajski and Anor v Tectran Corporation Pty Limited and Ors
[2003] NSWSC 476.................................................................................... [11.45], [12.10], [12.20]
Rastall v Ball [2010] FMCAfam 1290...................................................................................... [12.20]
Raymond Dann & Ors (Amangu People)/​Western Australia/​Empire
Oil Company (WA) Ltd [2006] NNTTA 153..................................................................... [11.30]
Remuneration Planning Corporation Pty Limited v Fitton;
Fitton v Costello [2001] NSWSC 1208............................................................................... [8.135]
Renard Constructions (ME) Pty Ltd v Minister for Public Works..................................................
(1992) 26 NSWLR 234............................................................................................................... [11.30]
Renard Constructions, Hughes Bros Pty Ltd v Trustees of the Roman Catholic
Church for the Archdiocese of Sydney (1993) 31 NSWLR 91........................................ [11.30]
Rinehart v Welker [2012] NSWCA 95..................................................................................... [11.30]
Rolf v De Guerin [2011] EWCA Civ 78................................................................................... [11.25]
Rooks & Genner [2018] FCCA 2054........................................................................................ [12.20]
Rowe v AusNet Electricity Services Pty Ltd [2015] VSC 232................................................ [1.70]
Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002)
240 CLR 45............................................................................................................................ [11.30]
Ruffles v Chilman (Unreported, Western Australian Supreme Court,
19 May 1997)......................................................................................................................... [8.130]
Rusan (by his tutor Rusan) v Congregation of Religious Sisters of Charity of
Australia [2018] NSWSC 1843.............................................................................................. [8.20]
Rush & Tompkins Ltd v Greater London Council [1989] 1 AC 1280................................. [12.25]

Sanum Investments Limited v ST Group Co. Ltd [2017] FCA 75...................................... [11.50]
Sharpe v Heywood [2013] NSWCA 192................................................................................ [11.45]
Silver Fox Co Pty Ltd (as Trustee for the Baker Family Trust) v Lenard’s
Pty Ltd (No 3) (2004) 214 ALR 621; [2004] FCA 1570....................................... [12.20], [12.25]
Smith v New South Wales Bar Association [1992] HCA 36; (1992)
176 CLR 256.......................................................................................................................... [11.45]
Smith v Smith [2016] NSWSC 1077........................................................................................ [11.25]
Specsavers Pty Ltd v Optical Superstore Pty Ltd (2012) 208 FCR 78.................................. [8.60]
Spina v Shimeld [2017] QDC 303.............................................................................................. [8.30]

xxii 
 Table of Cases

State Bank of NSW v Freeman (unreported, NSW SC, 31 January 1996)......................... [12.55]
State of New Jersey v Williams (2005) 184 NJ 432................................................................ [12.15]
State of New South Wales v Shaw [2015] NSWCA 97......................................................... [11.30]
Stillman v Rushbourne [2014] NSWSC 730........................................................................... [12.55]
Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd [2010] WASCA 222.......................... [11.30]
Swain Mason v Mills & Reeve [2012] STC 1760.................................................................... [11.15]

TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty

Ltd [2014] FCAFC 83............................................................................................................ [11.50]
Tapoohi v Lewenberg (No 2) [2003] VSC 410........................................... [11.40], [12.10], [12.60],
[12.65], [12.70], [12.75]
Tarasoff v Regents of University of California 17 Cal 3d 425 (Cal 1976).......................... [12.45]
Taylor Western Australia v Taylor (1996) 134 FLR 211........................................................ [11.30]
Thomas v SMO [2010] NSWSC 822........................................................................................ [11.25]
Thomas v Yates [2008] NSWSC 282.......................................................................................... [8.20]
Thorby v Goldberg [1964] HCA 41; (1964) 112 CLR 597..................................................... [11.45]
Thoroughvision Pty Ltd v Sky Channel Pty Ltd [2010] VSC 139....................................... [6.155]
Tousek v Bernat (1959) 61 SR (NSW) 203................................................................. [6.165], [8.125]
Trkulja v Yahoo! Inc LLC (No 2) [2012] VSC 217.................................................................. [12.20]
Trujillo v Apple Computer Inc 578 F Supp 2d 979 (ND Ill 2008)....................................... [10.60]

Uganda Telecom Ltd v Hi-​Tech Telecom Pty Ltd [2011] FCA 131..................................... [11.50]
Unconventional Conventions Pty Ltd v Accent Oz Pty Ltd (in liq)
[2004] NSWSC 1050................................................................................................. [8.20], [8.135]
Underwood v Cox (1912) 4 DLR 66........................................................................................ [12.20]
Unilever Plc v Procter & Gamble Co [2000] 1 WLR 2436...................................... [12.15], [12.20]
United Group Rail Services Ltd v Rail Corporation New South Wales (2009)
NSWLR 618........................................................................................................................... [11.30]
Universe Tankships Inc of Monrovia v International Transport Workers
Federation & Ors [1983] 1 AC 366..................................................................................... [11.45]

Vakauta v Kelly (1989) 167 CLR 568......................................................................... [6.165], [8.125]

Valerie Case v Woolworths Limited [2011] VSC 635.............................................. [12.20], [12.25]
Van Der Lee v State of New South Wales & Ors [2002] NSWCA 286................................ [12.20]
Virk Pty Ltd (In Liquidation) v Yum! Restaurants Australia Pty Ltd
[2018] HCATans 88.............................................................................................................. [11.30]
Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15.................................. [11.30]
Von Schulz & Anor v Morriello [1998] QCA 236.................................................................. [11.45]

Wagh v Australian Postal Corp [2007] AATA 1948.............................................................. [12.10]

Waihopai Valley Vineyard Ltd v Savvy Vineyards 3550 Ltd [2015] NZHC 2089............ [11.30]
Walker v Wilsher (1889) 23 QBD 335...................................................................................... [12.20]
Walley v Western Australia [1999] FCA 3.............................................................................. [11.30]
Wardman v Macquarie Bank Limited [2019] FCCA 939......................................... [8.120], [8.110]
Wei Fan v South Eastern Sydney Local Health District (No 2) [2015]
NSWSC 1235........................................................................................................................... [6.65]
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534................................................................ [11.45]
Western Areas Exploration Pty Ltd v Streeter (No 2) [2009] WASCA 15.......................... [12.10]

  xxiii
Alternative Dispute Resolution

Western Australia v Taylor (1996) 134 FLR 211..................................................................... [11.30]

Williams v Commonwealth Bank [1999] NSWCA 345........................................................ [12.25]
Williams State of New Jersey v Williams (2005) 184 NJ 432............................................... [12.15]
Williamson v Schmidt [1998] 2 Qd R 317.............................................................................. [12.25]
Winters v Fogarty [2017] FCA 51............................................................................................ [12.55]
Witcombe v Jordin [1998] QSC 117........................................................................................... [8.30]
Woodford v Bluescope Steel [2007] NSWDDT 16................................................................ [11.30]

Yara Australia Pty Ltd v Oswal [2013] VSCA 337................................................................ [11.30]

Young v Judge Nixon [2008] VSCA 5..................................................................................... [6.165]
Young v King (No 6) [2015] NSWLEC 111............................................................................. [12.10]

xxiv 
 Chapter 1
Conflict and dispute resolution
[1.05] Introduction ........................................................................................................................ 1
[1.10] What is meant by “ADR”? ................................................................................ 2
[1.20] Process descriptions ........................................................................................................... 5
[1.25] Social and historical growth ............................................................................................. 7
[1.30] Human reactions to conflict ............................................................................. 9
[1.35] Evolution of processes ..................................................................................... 10
[1.55] Emergence of the new paradigm ................................................................... 16
[1.60] Recent background .......................................................................................... 18
[1.65] Court-​based programs .................................................................................... 24
[1.75] Broad objectives ............................................................................................... 29
[1.115] Research about ADR ........................................................................................ 37
[1.120] Conclusions ....................................................................................................................... 39

INTRODUCTION
[1.05] This book is about how we, individually, within organisations and as a society
negotiate, reach agreement and deal with disputes and conflict. The primary focus
is on the development and use of alternative dispute resolution (ADR) processes to
deal with conflict and disputes that exist apart from traditional litigation processes
and the theories and practice that support effective and appropriate dispute
resolution. The book also focuses on the relationship between negotiation, litigation
and ADR processes that involve practitioners who assist to resolve, manage and
settle disputes.
This introductory chapter describes the historical emergence of ADR and
includes a discussion about the relationship between ADR processes and court-​
based processes.1 Later chapters explore ADR practice, skills and processes and the
relationship between those processes, litigation, complaints handling and broader
societal changes.
The first edition of this book was published in 2002. Since that time, ADR
systems and processes have grown significantly within Australia: legislation has
seen ADR processes become embedded in a wider range of contexts; standards
have redefined accreditation and practice standards; and international, business,
family and community-​based ADR use has been dramatically extended. Many of
these developments support the greater use of ADR outside the litigation system
however there has also been significant growth of ADR within the litigation system.
In recent years, there has been an accompanying significant evolution in online
ADR (ODR) and complaints handling systems and processes. New ADR processes

1 See also Chapter 15 and discussion in T Sourdin, “A Broader View of Justice” in M Legg (ed), Resolving
Civil Disputes (LexisNexis Australia, 2016) pp 19–​36.

[1.05] 1
Another random document with
no related content on Scribd:
chair. But if there be objection, or another proposed, a question is
put by the Clerk. 2 Hats., 158. As are also questions of adjournment.
6 Grey, 406. Where the House debated and exchanged messages and
answers with the King for a week without a Speaker, till they were
prorogued. They have done it de die in diem for fourteen days. 1
Chand., 331, 335.
[In the Senate, a President pro tempore, in the absence of the
Vice-President, is proposed and chosen by ballot. His office is
understood to be determined on the Vice-President’s appearing and
taking the chair, or at the meeting of the Senate after the first recess.]
Where the Speaker has been ill, other Speakers pro tempore have
been appointed. Instances of this are 1 H., 4. Sir John Cheyney, and
Sir William Sturton, and in 15 H., 6. Sir John Tyrrel, in 1656,
January 27; 1658, March 9; 1659, January 13.
Sir Job Charlton ill, Seymour chosen, 1673,
February 18.
Not merely pro tempore. 1 Chand.,
Seymour being ill, Sir Robert Sawyer
169, 276, 277.
chosen, 1678, April 15.
Sawyer being ill, Seymour chosen.
Thorpe in execution, a new Speaker chosen, 31 H. VI, 3 Grey, 11;
and March 14, 1694, Sir John Trevor chosen. There have been no
later instances. 2 Hats., 161; 4 Inst. 8; L. Parl., 263.
A Speaker may be removed at the will of the House, and a Speaker
pro tempore appointed. 2 Grey, 186; 5 Grey, 134.

SEC. X.—ADDRESS.

[The President shall, from time to time, give to the Congress

information of the state of the Union, and recommend to their
consideration such measures as he shall judge necessary and
expedient. Const., II, 3.]
A joint address of both Houses of Parliament is read by the
Speaker of the House of Lords. It may be attended by both Houses in
a body, or by a committee from each House, or by the two Speakers
only. An address of the House of Commons only may be presented by
the whole House, or by the Speaker, 9 Grey, 473; 1 Chandler, 298,
301; or by such particular members as are of the privy council. 2
Hats., 278.

SEC. XI.—COMMITTEES.

Standing committees, as of Privileges and Elections, &c., are

usually appointed at the first meeting, to continue through the
session. The person first named is generally permitted to act as
chairman. But this is a matter of courtesy; every committee having a
right to elect their own chairman, who presides over them, puts
questions, and reports their proceedings to the House. 4 Inst., 11, 12;
Scob., 9; 1 Grey, 122.
At these committees the members are to speak standing, and not
sitting; though there is reason to conjecture it was formerly
otherwise. D’Ewes, 630, col. 1; 4 Parl., Hist., 440; 2 Hats., 77.
Their proceedings are not to be published, as they are of no force
till confirmed by the House, Rushw., part 3, vol. 2, 74; 3 Grey, 401;
Scob., 39. Nor can they receive a petition but through the House. 9
Grey, 412.
When a committee is charged with an inquiry, if a member prove
to be involved, they cannot proceed against him, but must make a
special report to the House; whereupon the member is heard in his
place, or at the bar, or a special authority is given to the committee to
inquire concerning him. 9 Grey, 523.
So soon as the House sits, and a committee is notified of it, the
chairman is in duty bound to rise instantly, and the members to
attend the service of the House. 2 Nals., 319.
It appears that on joint committees of the Lords and Commons,
each committee acted integrally in the following instances: 7 Grey,
261, 278, 285, 338; 1 Chandler, 357, 462. In the following instances
it does not appear whether they did or not; 6 Grey, 129; 7 Grey, 213,
229, 321.

SEC. XII.—COMMITTEE OF THE WHOLE.

 The speech, messages, and other matters of great concernment,
are usually referred to a committee of the Whole House, (6 Grey,
311,) where general principles are digested in the form of resolutions,
which are debated and amended till they get into a shape which
meets the approbation of a majority. These being reported and
confirmed by the House, are then referred to one or more select
committees, according as the subject divides itself into one or more
bills. Scob., 36, 44. Propositions for any charge on the people are
especially to be first made in a Committee of the Whole. 3 Hats., 127.
The sense of the whole is better taken in committee, because in all
committees every one speaks as often as he pleases. Scob., 49. They
generally acquiesce in the chairman named by the Speaker; but, as
well as all other committees, have a right to elect one, some member,
by consent, putting the question. Scob., 36; 3 Grey, 301. The form of
going from the House into committee, is for the Speaker, on motion,
to put the question that the House do now resolve itself into a
Committee of the Whole to take into consideration such a matter,
naming it. If determined in the affirmative, he leaves the chair and
takes a seat elsewhere, as any other member; and the person
appointed chairman seats himself at the Clerk’s table. Scob., 36.
Their quorum is the same as that of the House; and if a defect
happens, the chairman, on a motion and question, rises, the Speaker
resumes the chair, and the chairman can make no other report than
to inform the House of the cause of their dissolution. If a message is
announced during a committee, the Speaker takes the chair and
receives it, because the committee cannot. 2 Hats., 125, 126.
In a Committee of the Whole, the tellers on a division differing as
to numbers, great heats and confusion arose, and danger of a
decision by the sword. The Speaker took the chair, the mace was
forcibly laid on the table; whereupon, the members retiring to their
places, the Speaker told the House “he had taken the chair without
an order, to bring the House into order.” Some excepted against it;
but it was generally approved, as the only expedient to suppress the
disorder. And every member was required, standing up in his place,
to engage that he would proceed no further in consequence of what
had happened in the grand committee, which was done. 3 Grey, 128.
A Committee of the Whole being broken up in disorder, and the
chair resumed by the Speaker without an order, the House was
adjourned. The next day the committee was considered as thereby
dissolved, and the subject again before the House; and it was decided
in the House, without returning into committee. 3 Grey, 130.
No previous question can be put in a committee; nor can this
committee adjourn as others may; but if their business is unfinished,
they rise, on a question, the House is resumed, and the chairman
reports that the Committee of the Whole have, according to order,
had under their consideration such a matter, and have made
progress therein; but not having had time to go through the same,
have directed him to ask leave to sit again. Whereupon a question is
put on their having leave, and on the time the House will again
resolve itself into a committee. Scob., 38. But if they have gone
through the matter referred to them, a member moves that the
committee may rise, and the chairman report their proceedings to
the House; which being resolved, the chairman rises, the Speaker
resumes the chair, the chairman informs him that the committee
have gone through the business referred to them, and that he is
ready to make report when the House shall think proper to receive it.
If the House have time to receive it, there is usually a cry of “now,
now,” whereupon he makes the report; but if it be late, the cry is “to-
morrow, to-morrow,” or “Monday,” &c., or a motion is made to that
effect, and a question put that it be received to-morrow, &c. Scob.,
38.
In other things the rules of proceeding are to be the same as in the
House. Scob., 39.

SEC. XIII.—EXAMINATION OF WITNESSES.

Common fame is a good ground for the House to proceed by

inquiry, and even to accusation. Resolution House of Commons, 1
Car. 1, 1625; Rush, L. Parl, 115; 1 Grey, 16–22, 92; 8 Grey, 21, 23, 27,
45.
Witnesses are not to be produced but where the House has
previously instituted an inquiry, 2 Hats., 102, nor then are orders for
their attendance given blank. 3 Grey, 51.
When any person is examined before a committee, or at the bar of
the House, any member wishing to ask the person a question, must
address it to the Speaker or chairman, who repeats the question to
the person, or says to him, “You hear the question—answer it.” But if
the propriety of the question be objected to, the Speaker directs the
witness, counsel, and parties to withdraw; for no question can be
moved or put or debated while they are there. 2 Hats., 108.
Sometimes the questions are previously settled in writing before the
witness enters. Ib., 106, 107; 8 Grey, 64. The questions asked must
be entered in the journals. 3 Grey, 81. But the testimony given in
answer before the House is never written down; but before a
committee, it must be, for the information of the House, who are not
present to hear it. 7 Grey, 52, 334.
If either House have occasion for the presence of a person in
custody of the other, they ask the other their leave that he may be
brought up to them in custody. 3 Hats., 52.
A member, in his place, gives information to the House of what he
knows of any matter under hearing at the bar. Jour. H. of C., Jan. 22,
1744–5.
Either House may request, but not command, the attendance of a
member of the other. They are to make the request by message of the
other House, and to express clearly the purpose of attendance, that
no improper subject of examination may be tendered to him. The
House then gives leave to the member to attend, if he choose it;
waiting first to know from the member himself whether he chooses
to attend, till which they do not take the message into consideration.
But when the peers are sitting as a court of criminal judicature, they
may order attendance, unless where it be a case of impeachment by
the Commons. There, it is to be a request. 3 Hats., 17; 9 Grey, 306,
406; 10 Grey, 133.
Counsel are to be heard only on private, not on public bills, and on
such points of law only as the House shall direct. 10 Grey, 61.

SEC. XIV.—ARRANGEMENT OF BUSINESS.

The Speaker is not precisely bound to any rules as to what bills or

other matter shall be first taken up; but it is left to his own
discretion, unless the House on a question decide to take up a
particular subject. Hakew., 136.
 A settled order of business is, however, necessary for the
government of the presiding person, and to restrain individual
members from calling up favorite measures, or matters under their
special patronage, out of their just turn. It is useful also for directing
the discretion of the House, when they are moved to take up a
particular matter, to the prejudice of others, having priority of right
to their attention in the general order of business.
[In the Senate, the bills and other papers which are in possession
of the House, and in a state to be acted on, are arranged every
morning and brought on in the following order:]
[1. Bills ready for a second reading are read, that they may be
referred to committees, and so be put under way. But if, on their
being read, no motion is made for commitment, they are then laid on
the table in the general file, to be taken up in their just turn.]
[2. After 12 o’clock, bills ready for it are put on their passage.]
[3. Reports in possession of the House, which offer grounds for a
bill, are to be taken up, that the bill may be ordered in.]
[4. Bills or other matters before the House, and unfinished on the
preceding day, whether taken up in turn or on special order, are
entitled to be resumed and passed on through their present stage.]
[5. These matters being dispatched, for preparing and expediting
business, the general file of bills and other papers is then taken up,
and each article of it is brought on according to its seniority,
reckoned by the date of its first introduction to the House. Reports
on bills belong to the dates of their bills.]
[The arrangement of the business of the Senate is now as follows:]
[98]

[1. Motions previously submitted.]

[2. Reports of committees previously made.]
[3. Bills from the House of Representatives, and those introduced
on leave, which have been read the first time, are read the second
time; and if not referred to a committee, are considered in
Committee of the Whole, and proceeded with as in other cases.]
[4. After twelve o’clock, engrossed bills of the Senate, and bills of
the House of Representatives, on third reading, are put on their
passage.]
 [5. If the above are finished before one o’clock, the general file of
bills, consisting of those reported from committees on the second
reading, and those reported from committees after having been
referred, are taken up in the order in which they were reported to the
Senate by the respective committees.]
[6. At one o’clock, if no business be pending, or if no motion be
made to proceed to other business, the special orders are called, at
the head of which stands the unfinished business of the preceding
day.]
[In this way we do not waste our time in debating what shall be
taken up. We do one thing at a time; follow up a subject while it is
fresh, and till it is done with; clear the House of business gradatim as
it is brought on, and prevent, to a certain degree, its immense
accumulation toward the close of the session.]
[Arrangement, however, can only take hold of matters in
possession of the House. New matter may be moved at any time
when no question is before the House. Such are original motions and
reports on bills. Such are bills from the other House, which are
received at all times, and receive their first reading as soon as the
question then before the House is disposed of; and bills brought in
on leave, which are read first whenever presented. So messages from
the other House respecting amendments to bills are taken up as soon
as the House is clear of a question, unless they require to be printed,
for better consideration. Orders of the day may be called for even
when another question is before the House.]

SEC. XV.—ORDER.

[Each House may determine the rules of its proceedings; punish

its members for disorderly behavior; and, with the concurrence of
two-thirds, expel a member. Const., I, 5.]
In Parliament, “instances make order,” per Speaker Onslow. 2
Hats., 141. But what is done only by one Parliament, cannot be called
custom of Parliament, by Prynne. 1 Grey, 52.

SEC. XVI.—ORDER RESPECTING PAPERS.

 The Clerk is to let no journals, records, accounts, or papers be
taken from the table or out of his custody. 2 Hats., 193, 194.
Mr. Prynne, having at a Committee of the Whole amended a
mistake in a bill without order or knowledge of the committee, was
reprimanded. 1 Chand., 77.
A bill being missing, the House resolved that a protestation should
be made and subscribed by the members “before Almighty God, and
this honorable House, that neither myself, nor any other to my
knowledge, have taken away, or do at this present conceal a bill
entitled,” &c. 5 Grey, 202.
After a bill is engrossed, it is put into the Speaker’s hands, and he
is not to let any one have it to look into. Town. col., 209.

SEC. XVII.—ORDER IN DEBATE.

When the Speaker is seated in his chair, every member is to sit in

his place. Scob., 6; Grey, 403.
When any member means to speak, he is to stand up in his place,
uncovered, and to address himself, not to the House, or any
particular member, but to the Speaker, who calls him by his name,
that the House may take notice who it is that speaks. Scob., 6;
D’Ewes, 487, col. 1; 2 Hats., 77; 4 Grey, 66; 8 Grey, 108. But
members who are indisposed may be indulged to speak sitting. 2
Hats., 75, 77; 1 Grey, 143.
[In Senate, every member, when he speaks, shall address the Chair
standing in his place, and, when he has finished, shall sit down. Rule
3.]
When a member stands up to speak, no question is to be put, but
he is to be heard, unless the House overrule him. 4 Grey, 390; 5
Grey, 6, 143.
If two or more rise to speak nearly together, the Speaker
determines who was first up, and calls him by name, whereupon he
proceeds, unless he voluntarily sits down and gives way to the other.
But sometimes the House does not acquiesce in the Speaker’s
decision, in which case the question is put, “which member was first
up?” 2 Hats., 76; Scob., 7; D’Ewes, 434, col. 1, 2.
 [In the Senate of the United States, the President’s decision is
without appeal. Their rule is: When two members rise at the same
time, the President shall name the person to speak; but in all cases
the member who shall first rise and address the Chair shall speak
first. Rule 38.]
No man may speak more than once on the same bill on the same
day; or even on another day, if the debate be adjourned. But if it be
read more than once in the same day, he may speak once at every
reading. Co., 12, 115; Hakew., 148; Scob., 58; 2 Hats., 75. Even a
change of opinion does not give a right to be heard a second time.
Smyth’s Comw., L. 2, c. 3; Arcan. Parl., 17.
[The corresponding rule of the Senate is in these words: No
member shall speak more than twice, in any one debate, on the same
day, without leave of the Senate. Rule 39.]
But he may be permitted to speak again to clear a matter of fact, 3
Grey, 357, 416; or merely to explain himself 2 Hats., 73, in some
material part of his speech, Ib., 75; or to the manner or words of the
question, keeping himself to that only, and not traveling into the
merits of it, Memorials in Hakew., 29; or to the orders of the House
if they be transgressed, keeping within that line, and not falling into
the matter itself. Mem. Hakew., 30, 31.
But if the Speaker rise to speak, the member standing up ought to
sit down, that he may be first heard. Town., col. 205; Hale Parl., 133;
Mem. in Hakew., 30, 31. Nevertheless, though the Speaker may of
right speak to matters of order, and be first heard, he is restrained
from speaking on any other subject, except where the House have
occasion for facts within his knowledge; then he may, with their
leave, state the matter of fact. 3 Grey, 38.
No one is to speak impertinently or beside the question,
superfluous, or tediously. Scob., 31, 33; 2 Hats., 166, 168; Hale Parl.,
133.
No person is to use indecent language against the proceedings of
the House; no prior determination of which is to be reflected on by
any member, unless he means to conclude with a motion to rescind
it. 2 Hats., 169, 170; Rushw., p. 3, v. 1, fol. 42. But while a
proposition under consideration is still in fieri, though it has even
been reported by a committee, reflections on it are no reflections on
the House. 9 Grey, 508.
No person, in speaking, is to mention a member then present by
his name, but to describe him by his seat in the House, or who spoke
last, or on the other side of the question, &c., Mem. in Hakew., 3;
Smyth’s Comw., L. 2, c. 3; nor to digress from the matter to fall upon
the person Scob., 31; Hale Parl., 133; 2 Hats., 166 by speaking,
reviling, nipping, or unmannerly words against a particular member.
Smyth’s Comw., L. 2, c. 3. The consequences of a measure may be
reprobated in strong terms; but to arraign the motives of those who
propose to advocate it is a personality, and against order. Qui
digreditur a materia ad personam, Mr. Speaker ought to suppress.
Ord. Com., 1604, Apr. 19.
[When a member shall be called to order by the President or a
Senator, he shall sit down; and every question of order shall be
decided by the President, without debate, subject to an appeal to the
Senate; and the President may call for the sense of the Senate on any
question of order. Rule 40.]
[No member shall speak to another or otherwise interrupt the
business of the Senate, or read any newspapers while the journals or
public papers are being read, or when any member is speaking in any
debate. Rule 38.]
No one is to disturb another in his speech by hissing, coughing,
spitting, 6 Grey, 332; Scob., 8; D’Ewes, 332, col. 1, 640, col. 2,
speaking or whispering to another, Scob., 6; D’Ewes, 487, col. 1; nor
stand up to interrupt him, Town., col. 205; Mem. in Hakew., 31; nor
to pass between the Speaker and the speaking member, nor to go
across the House, Scob., 6, to walk up and down it, or to take books
or papers from the table or write there, 2 Hats., 171.
Nevertheless, if a member finds that it is not the inclination of the
House to hear him, and that by conversation or any other noise they
endeavor to drown his voice, it is his most prudent way to submit to
the pleasure of the House, and sit down; for it scarcely ever happens
that they are guilty of this piece of ill-manners without sufficient
reason, or inattentive to a member who says anything worth their
hearing. 2 Hats., 77, 78.
 If repeated calls do not produce order, the Speaker may call by his
name any member obstinately persisting in irregularity; whereupon
the House may require the member to withdraw. He is then to be
heard in exculpation, and to withdraw. Then the Speaker states the
offense committed; and the House considers the degree of
punishment they will inflict. 2 Hats., 167, 7, 8, 172.
For instances of assaults and affrays in the House of Commons,
and the proceedings thereon, see 1 Pet. Misc., 82; 3 Grey, 128; 4
Grey, 328; 5 Grey, 382; 6 Grey, 254; 10 Grey, 8. Whenever warm
words or an assault have passed between members, the House, for
the protection of their members, requires them to declare in their
places not to prosecute any quarrel, 3 Grey, 128, 293; 5 Grey, 280; or
orders them to attend the Speaker, who is to accommodate their
differences, and report to the House, 3 Grey, 419; and they are put
under restraint if they refuse, or until they do. 9 Grey, 234, 312.
Disorderly works are not to be noticed till the member has finished
his speech. 5 Grey, 356; 6 Grey, 60. Then the person objecting to
them, and desiring them to be taken down by the Clerk at the table,
must repeat them. The Speaker then may direct the Clerk to take
them down in his minutes; but if he thinks them not disorderly, he
delays the direction. If the call becomes pretty general, he orders the
Clerk to take them down, as stated by the objecting member. They
are then a part of his minutes, and when read to the offending
member, he may deny they were his words, and the House must then
decide by a question whether they are his words or not. Then the
member may justify them, or explain the sense in which he used
them, or apologize. If the House is satisfied, no further proceeding is
necessary. But if two members still insist to take the sense of the
House, the member must withdraw before that question is stated,
and then the sense of the House is to be taken. 2 Hats., 199; 4 Grey,
170; 6 Grey, 59. When any member has spoken, or other business
intervened, after offensive words spoken, they cannot be taken notice
of for censure. And this is for the common security of all, and to
prevent mistakes which must happen if words are not taken down
immediately. Formerly they might be taken down at any time the
same day. 2 Hats, 196; Mem. in Hakew., 71; 3 Grey, 48; 9 Grey, 514.
Disorderly words spoken in a committee must be written down as
in the House; but the committee can only report them to the House
for animadversion. 6 Grey, 46.
[The rule of the Senate says: If the member be called to order by a
Senator for words spoken, the exceptionable words shall
immediately be taken down in writing, that the President may be
better able to judge of the matter. Rule 37.]
In Parliament, to speak irreverently or seditiously against the
King, is against order. Smyth’s Comw., L. 2, c. 3; 2 Hats., 170.
It is a breach of order in debate to notice what has been said on the
same subject in the other House, or the particular votes or majorities
on it there; because the opinion of each House should be left to its
own independency, not to be influenced by the proceedings of the
other; and the quoting them might beget reflections leading to a
misunderstanding between the two Houses. 2 Grey, 22.
Neither House can exercise any authority over a member or officer
of the other, but should complain to the House of which he is, and
leave the punishment to them. Where the complaint is of words
disrespectfully spoken by a member of another House, it is difficult
to obtain punishment, because of the rules supposed necessary to be
observed (as to the immediate noting down of words) for the security
of members. Therefore it is the duty of the House, and more
particularly of the Speaker, to interfere immediately, and not to
permit expressions to go unnoticed which may give a ground of
complaint to the other House, and introduce proceedings and mutual
accusations between the two Houses, which can hardly be
terminated without difficulty and disorder. 3 Hats., 51.
No member may be present when a bill or any business concerning
himself is debating; nor is any member to speak to the merits of it till
he withdraws. 2 Hats., 219. The rule is, that if a charge against a
member arise out of a report of a committee, or examination of
witnesses in the House, as the member knows from that to what
points he is to direct his exculpation, he may be heard to those points
before any question is moved or stated against him. He is then to be
heard, and withdraw before any question is moved. But if the
question itself is the charge, as for breach of order or matter arising
in the debate, then the charge must be stated, (that is, the question
must be moved,) himself heard, and then to withdraw. 2 Hats., 121,
122.
 Where the private interests of a member are concerned in a bill or
question he is to withdraw. And where such an interest has
appeared, his voice has been disallowed, even after a division. In a
case so contrary, not only to the laws of decency, but to the
fundamental principle of the social compact, which denies to any
man to be a judge in his own cause, it is for the honor of the House
that this rule of immemorial observance should be strictly adhered
to. 2 Hats., 119, 121; 6 Grey, 368.
No member is to come into the House with his head covered, nor
to remove from one place to another with his hat on, nor is he to put
on his hat in coming in or removing, until he be set down in his
place. Scob., 6.
A question of order may be adjourned to give time to look into
precedents. 2 Hats., 118.
In Parliament, all decisions of the Speaker may be controlled by
the House. 3 Grey, 319.

SEC. XVIII.—ORDERS OF THE HOUSE.

Of right, the door of the House ought not to be shut, but to be kept
by porters, or Sergeants-at-Arms, assigned for that purpose. Mod.
ten. Parl., 23.
[By the rules of the Senate, on motion made and seconded to shut
the doors of the Senate on the discussion of any business which may,
in the opinion of a member, require secrecy, the President shall
direct the gallery to be cleared; and during the discussion of such
motion the doors shall remain shut. Rule 64.]
[No motion shall be deemed in order to admit any person or
persons whatsoever within the doors of the Senate chamber to
present any petition, memorial, or address, or to hear any such read.
Rule 19.]
The only case where a member has a right to insist on anything, is
where he calls for the execution of a subsisting order of the House.
Here, there having been already a resolution, any person has a right
to insist that the Speaker, or any other whose duty it is, shall carry it
into execution; and no debate or delay can be had on it. Thus any
member has a right to have the House or gallery cleared of strangers,
an order existing for that purpose; or to have the House told when
there is not a quorum present. 2 Hats., 87, 129. How far an order of
the House is binding, see Hakew., 392.
But where an order is made that any particular matter be taken up
on a particular day, there a question is to be put, when it is called for,
whether the House will now proceed to that matter? Where orders of
the day are on important or interesting matter, they ought not to be
proceeded on till an hour at which the House is usually full, [which
in Senate is at noon.]
Orders of the day may be discharged at any time, and a new one
made for a different day. 3 Grey, 48, 313.
When a session is drawing to a close, and the important bills are
all brought in, the House, in order to prevent interruption by further
unimportant bills, sometimes comes to a resolution that no new bill
be brought in, except it be sent from the other House. 3 Grey, 156.
All orders of the House determine with the session; and one taken
under such an order may, after the session is ended, be discharged
on a habeas corpus. Raym., 120; Jacob’s L. D. by Ruffhead;
Parliament, 1 Lev., 165, Pritchard’s case.
[Where the Constitution authorizes each House to determine the
rules of its proceedings, it must mean in those cases (legislative,
executive, or judiciary) submitted to them by the Constitution, or in
something relating to these, and necessary toward their execution.
But orders and resolutions are sometimes entered in the journals
having no relation to these, such as acceptances of invitations to
attend orations, take part in processions, &c. These must be
understood to be merely conventional among those who are willing
to participate in the ceremony, and are therefore, perhaps,
improperly placed among the records of the House.]

SEC. XIX.—PETITION.

A petition prays something. A remonstrance has no prayer. 1 Grey,

58.
 Petitions must be subscribed by the petitioners, Scob., 87; L. Parl,
c. 22; 9 Grey, 362, unless they are attending, 1 Grey, 401, or unable
to sign, and averred by a member, 3 Grey, 418. But a petition not
subscribed, but which the member presenting it affirmed to be all in
the handwriting of the petitioner, and his name written in the
beginning, was on the question (March 14, 1800) received by the
Senate. The averment of a member, or of somebody without doors,
that they know the handwriting of the petitioners, is necessary, if it
be questioned. 6 Grey, 36. It must be presented by a member—not
by the petitioners, and must be opened by him holding it in his hand.
10 Grey, 57.
[Before any petition or memorial addressed to the Senate shall be
received and read at the table, whether the same shall be introduced
by the President or a member, a brief statement of the contents of
the petition or memorial shall verbally be made by the introducer.
Rule 14.]
Regularly a motion for receiving it must be made and seconded,
and a question put, whether it shall be received? but a cry from the
House of “received,” or even its silence, dispenses with the formality
of this question. It is then to be read at the table and disposed of.

SEC. XX.—MOTIONS.

When a motion has been made, it is not to be put to the question

or debated until it is seconded. Scob., 21.
[The Senate says: No motion shall be debated until the same shall
be seconded. Rule 42.]
It is then, and not till then, in possession of the House, and cannot
be withdrawn but by leave of the House. It is to be put into writing, if
the House or Speaker require it, and must be read to the House by
the Speaker as often as any member desires it for his information. 2
Hats., 82.
[The rule of the Senate is, when a motion shall be made and
seconded, it shall be reduced to writing, if desired by the President or
any member, delivered in at the table, and read by the President,
before the same shall be debated. Rule 42.]
 It might be asked whether a motion for adjournment or for the
orders of the day can be made by one member while another is
speaking? It cannot. When two members offer to speak, he who rose
first is to be heard, and it is a breach of order in another to interrupt
him, unless by calling him to order if he departs from it. And the
question of order being decided, he is still to be heard through. A call
for adjournment, or for the order of the day, or for the question, by
gentlemen from their seats, is not a motion. No motion can be made
without rising and addressing the Chair. Such calls are themselves
breaches of order, which, though the member who has risen may
respect, as an expression of impatience of the House against further
debate, yet, if he chooses, he has a right to go on.

SEC. XXI.—RESOLUTIONS.

When the House commands, it is by an “order.” But fact,

principles, and their own opinions and purposes, are expressed in
the form of resolutions.
[A resolution for an allowance of money to the clerks being moved,
it was objected to as not in order, and so ruled by the Chair; but on
appeal to the Senate, (i. e., a call for their sense by the President, on
account of doubt in his mind, according to Rule 6,) the decision was
overruled. Jour. Senate, June 1, 1796. I presume the doubt was,
whether an allowance of money could be made otherwise than by
bill.]

SEC. XXII.—BILLS.

[Every bill shall receive three readings previous to its being

passed; and the President shall give notice at each whether it be first,
second, or third; which readings shall be on three different days,
unless the Senate unanimously direct otherwise. Rule 23.]

SEC. XXIII.—BILLS, LEAVE TO BRING IN.

 [One day’s notice, at least, shall be given of an intended motion for
leave to bring in a bill. Rule 22.]
When a member desires to bring in a bill on any subject, he states
to the House in general terms the causes for doing it, and concludes
by moving for leave to bring in a bill, entitled, &c. Leave being given,
on the question, a committee is appointed to prepare and bring in
the bill. The mover and seconder are always appointed of this
committee, and one or more in addition. Hakew., 132; Scob., 40.
It is to be presented fairly written, without any erasure or
interlineation, or the Speaker may refuse it. Scob., 41; 1 Grey, 82, 84.

SEC. XXIV.—BILLS, FIRST READING.

When a bill is first presented, the Clerk reads it at the table, and
hands it to the Speaker, who, rising, states to the House the title of
the bill; that this is the first time of reading it; and the question will
be, whether it shall be read a second time? then sitting down to give
an opening for objections. If none be made, he rises again, and puts
the question, whether it shall be read a second time? Hakew, 137,
141. A bill cannot be amended on the first reading, 6 Grey, 286; nor
is it usual for it to be opposed then, but it may be done, and rejected.
D’Ewes, 335, col. 1; 3 Hats., 198.

SEC. XXV.—BILLS, SECOND READING.

The second reading must regularly be on another day. Hakew.,

143. It is done by the Clerk at the table, who then hands it to the
Speaker. The Speaker, rising, states to the House the title of the bill;
that this is the second time of reading it; and that the question will
be, whether it shall be committed, or engrossed and read a third
time? But if the bill came from the other House, as it always comes
engrossed, he states that the question will be read a third time? and
before he has so reported the state of the bill, no one is to speak to it.
Hakew., 143–146.
[In the Senate of the United States, the President reports the title
of the bill; that this is the second time of reading it; that it is now to
be considered as in a Committee of the Whole; and the question will
be, whether it shall be read a third time? or that it may be referred to
a special committee?]

SEC. XXVI.—BILLS, COMMITMENT.

If on motion and question it be decided that the bill shall be

committed, it may then be moved to be referred to Committee of the
Whole House, or to a special committee. If the latter, the Speaker
proceeds to name the committee. Any member also may name a
single person, and the Clerk is to write him down as of the
committee. But the House have a controlling power over the names
and number, if a question be moved against any one; and may in any
case put in and put out whom they please.
Those who take exceptions to some particulars in the bill are to be
of the committee, but none who speak directly against the body of
the bill; for he that would totally destroy will not amend it, Hakew.,
146; Town., col. 208; D’Ewes, 634, col. 2; Scob., 47, or, as is said, 5
Grey, 145, the child is not to be put to a nurse that cares not for it, 6
Grey, 373. It is therefore a constant rule “that no man is to be
employed in any matter who has declared himself against it.” And
when any member who is against the bill hears himself named of its
committee, he ought to ask to be excused. Thus, March 7, 1606, Mr.
Hadley was, on the question being put, excused from being of a
committee, declaring himself to be against the matter itself. Scob.,
46.
[No bill shall be committed or amended until it shall have been
twice read; after which it may be referred to a committee. Rule 24.]
In the appointment of the standing committees, the Senate will
proceed, by ballot, severally to appoint the chairman of each
committee, and then, by one ballot, the other members necessary to
complete the same; and a majority of the whole number of votes
given shall be necessary to the choice of a chairman of a standing
committee. All other committees shall be appointed by ballot, and a
plurality of votes shall make a choice. When any subject or matter
shall have been referred to a committee, any other subject or matter
of a similar nature, may, on motion, be referred to such committee.
 The Clerk may deliver the bill to any member of the committee,
Town., col. 138; but it is usual to deliver it to him who is first named.
In some cases the House has ordered a committee to withdraw
immediately into the committee chamber, and act on and bring back
the bill, sitting the House, Scob., 48. A committee meet when and
where they please, if the House has not ordered time and place for
them, 6 Grey, 370; but they can only act when together, and not by
separate consultation and consent—nothing being the report of the
committee but what has been agreed to in committee actually
assembled.
A majority of the committee constitutes a quorum for business.
Elsynge’s Method of Passing Bills, 11.
Any member of the House may be present at any select committee,
but cannot vote, and must give place to all of the committee, and sit
below them. Elsynge, 12; Scob., 49.
The committee have full power over the bill or other paper
committed to them, except that they cannot change the title or
subject. 8 Grey, 228.
The paper before a committee, whether select or of the whole, may
be a bill, resolutions, draught of an address, &c., and it may either
originate with them or be referred to them. In every case the whole
paper is read first by the Clerk, and then by the chairman, by
paragraphs, Scob., 49, pausing at the end of each paragraph, and
putting questions for amending, if proposed. In case of resolutions
on distinct subjects, originating with themselves, a question is put on
each separately, as amended or unamended, and no final question on
the whole, 3 Hats., 276; but if they relate to the same subject, a
question is put on the whole. If it be a bill, draught of an address, or
other paper originating with them, they proceed by paragraphs,
putting questions for amending, either by insertion or striking out, if
proposed; but no question on agreeing to the paragraphs separately;
this is reserved to the close, when a question is put on the whole, for
agreeing to it as amended or unamended. But if it be a paper referred
to them, they proceed to put questions of amendment, if proposed,
but no final question on the whole; because all parts of the paper,
having been adopted by the House, stand, of course, unless altered or
struck out by a vote. Even if they are opposed to the whole paper, and
think it cannot be made good by amendments, they cannot reject it,
but must report it back to the House without amendments, and there
make their opposition.
The natural order in considering and amending any paper is, to
begin at the beginning, and proceed through it by paragraphs; and
this order is so strictly adhered to in Parliament, that when a latter
part has been amended, you cannot recur back and make any
alteration in a former part. 2 Hats., 90. In numerous assemblies this
restraint is doubtless important. [But in the Senate of the United
States, though in the main we consider and amend the paragraphs in
their natural order, yet recurrences are indulged; and they seem, on
the whole, in that small body, to produce advantages overweighing
their inconveniences.]
To this natural order of beginning at the beginning, there is a
single exception found in parliamentary usage. When a bill is taken
up in committee, or on its second reading, they postpone the
preamble till the other parts of the bill are gone through. The reason
is, that on consideration of the body of the bill such alterations may
therein be made as may also occasion the alteration of the preamble.
Scob., 50; 7 Grey, 431.
On this head the following case occurred in the Senate, March 6,
1800: A resolution which had no preamble having been already
amended by the House so that a few words only of the original
remained in it, a motion was made to prefix a preamble, which
having an aspect very different from the resolution, the mover
intimated that he should afterwards propose a correspondent
amendment in the body of the resolution. It was objected that a
preamble could not be taken up till the body of the resolution is done
with; but the preamble was received, because we are in fact through
the body of the resolution; we have amended that as far as
amendments have been offered, and, indeed, till little of the original
is left. It is the proper time, therefore, to consider a preamble; and
whether the one offered be consistent with the resolution is for the
House to determine. The mover, indeed, has intimated that he shall
offer a subsequent proposition for the body of the resolution; but the
House is not in possession of it; it remains in his breast, and may be
withheld. The rules of the House can only operate on what is before
them. [The practice of the Senate, too, allows recurrences backward
and forward for the purposes of amendment, not permitting