Courts Legislation Amendment Act 2000 (NSW)
An Act to amend various Acts with respect to courts, court procedures, judicial officers and related matters; and for other purposes.
This Act is the Courts Legislation Amendment Act 2000.
This Act commences on a day or days to be appointed by proclamation, except as provided by this section.
Schedule 1 commences on the commencement of Schedule 1 [7] to the Criminal Procedure Legislation Amendment (Bail Agreements) Act 1998.
Schedule 12 [2] commences, or is taken to have commenced, on the commencement of Schedule 6 to the Courts Legislation Amendment Act 1999.
The Acts specified in Schedules 1–15 are amended as set out in those Schedules.
The matter appearing under the heading “Explanatory note” in any of the Schedules does not form part of this Act.
(Section 3)
Omit “representing the Crown” from the definition of
Insert “and the appropriate State authority” after “Crown”.
Part 7A of the Bail Act 1978 provides a mechanism for the enforcement of bail agreements entered into under section 36 of that Act. A bail agreement is an agreement under which an accused person, or some other person, agrees to forfeit money (by the operation of a forfeiture order) if an accused person’s bail undertaking is not complied with.
Under Part 7A, notice of an objection to the confirmation of a forfeiture order must be given to the appropriate State authority. The term
(Section 3)
Omit “that a prima facie case for an indictable offence has been established against a known person” from section 20 (1) (a).
Insert instead “referred to in section 19 (1) (b)”.
Omit “that a prima facie case for an indictable offence has been established against a known person”.
Insert instead “referred to in section 19 (1) (b)”.
Insert “, except in accordance with section 33AA,” after “but no witness shall”.
Section 33 of the Coroners Act 1980 currently provides that a witness at an inquest or inquiry held by a coroner cannot be compelled to answer any question which incriminates (or tends to incriminate) the witness of any offence.
Insert after section 33:
This section applies if a witness at an inquest or inquiry held by a coroner who is a Magistrate objects to giving particular evidence on the ground that the evidence may tend to prove that the witness has committed an offence or is liable to a civil penalty.
The coroner is to cause the witness to be given a certificate under this section in respect of the evidence if the objection is overruled but, after the evidence has been given, the coroner finds that there were reasonable grounds for the objection.
If the coroner is satisfied that the evidence concerned may tend to prove that the witness has committed an offence or is liable to a civil penalty but that the interests of justice require the witness to give the evidence, the coroner may require the witness to give the evidence. If the coroner so requires, the coroner is to cause the witness to be given a certificate under this section in respect of the evidence.
In any proceedings in a NSW court (within the meaning of the Evidence Act 1995):
(a) evidence given by a person in respect of which a certificate under this section has been given, and
(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given that answer,
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
A certificate under this section can only be given in respect of evidence that is required to be given by a natural person.
Proposed section 33AA, which is based on section 128 of the Evidence Act 1995, provides that a witness at an inquest or inquiry may be required by the coroner to give incriminating evidence so long as the coroner gives a certificate to the effect that the evidence cannot be used later against the witness in court proceedings.
Omit section 45 (3) (b). Insert instead:
a witness in an inquest or inquiry objects to giving evidence on the ground that the evidence may tend to prove that the witness has committed an offence,
Omit “refusal or claim of privilege”. Insert instead “objection or evidence”.
Omit the definition of
Omit the paragraph. Insert instead:
If the inquest relates to an explosion or accident that is the subject to an investigation under the Coal Mines Regulation Act 1982 or the Mines Inspection Act 1901, the coroner is to adjourn the inquest unless an investigator is present to watch the proceedings.
Omit “inspector for the district”. Insert instead “Manager”.
Omit “inspector of the district”. Insert instead “Manager”.
Omit “reach the inspector”. Insert instead “reach an investigator”.
Omit “inspector”. Insert instead “investigator”.
Omit “an inspector” where firstly occurring. Insert instead “an investigator”.
Omit “an inspector” where secondly occurring.
Insert instead “the Manager”.
Schedule 1 to the Coroners Act 1980 contains special provisions for inquests into deaths or suspected deaths in mines that are caused by an explosion or accident. Items
Insert after clause 9:
The amendment of section 33 by Schedule 2 [3] to the Courts Legislation Amendment Act 2000 extends to an inquest or inquiry that has been commenced, but not completed, before the commencement of that amendment.
Section 33AA, as inserted by Schedule 2 [4] to the Courts Legislation Amendment Act 2000, extends to an inquest or inquiry that has been commenced, but not completed, before the commencement of that section.
(Section 3)
Omit section 5AA (3) and (3A).
Section 5AA of the Criminal Appeal Act 1912 provides for appeals to the Court of Criminal Appeal against convictions made by the Supreme Court in its summary jurisdiction. The section also applies in respect of convictions made by other courts such as the Land and Environment Court.
Insert at the end of section 5F (1) (b):
, and
proceedings in Class 5 of the Land and Environment Court’s jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979).
Insert after clause 5:
The amendment made to section 5AA by the Courts Legislation Amendment Act 2000 does not apply in respect of an appeal against a conviction or costs order that was made before the commencement of the amendment.
(Section 3)
Omit section 16 (3). Insert instead:
The Court may not make an order under subsection (2) allowing an application in relation to a deceased person to be made after the end of the prescribed period unless:
(a) the parties to the proceedings concerned have consented to the application being made after the end of that period, or
(b) sufficient cause is shown for the application not having been made within that period.
At present, section 16 (3) of the Family Provision Act 1982 provides that a court cannot make an order allowing a person to make an application for provision out of the estate of a deceased person after the expiration of the prescribed limitation period unless sufficient cause is shown for the application not having been made within that period.
The amendment will enable the court to make an order allowing an application to be made outside of the prescribed limitation period on the basis that the parties to the proceedings have consented to the application being made.
(Section 3)
Insert after section 122 (2):
For the purposes of this section,
Section 122 of the Fines Act 1996 provides that if another Act does not make provision for the application of a fine, the court may direct that up to half of the amount of the fine is to be paid to the prosecutor (if the prosecutor is not a police officer).
Insert after section 122:
This section applies in respect of proceedings for an offence that are brought by a law enforcement officer.
The court before which such proceedings are brought may, when making an order of the kind referred to in section 4 (1) (e) or (f), direct the amount to which the order relates be paid to the law enforcement officer (or to the law enforcement agency on whose behalf the proceedings were brought) in full or in such portion as may be determined by the court.
This section has effect despite section 121.
Section 121 of the Fines Act 1996 provides that any fine imposed by or under any Act is, when recovered, payable into the Consolidated Fund. The term
(Section 3)
Insert after section 162:
This section applies to the following proceedings:
(a) proceedings for a civil penalty under Part 1 of Chapter 7,
(b) proceedings for the recovery of money under Part 2 of Chapter 7.
If any proceedings to which this section applies have been instituted in or before the Commission in Court Session, but the hearing of the matter has not been commenced, the President of the Commission, or a judicial member of the Commission authorised by the President for the purposes of this section, may order the transfer of the proceedings to a Local Court to be dealt with by that court.
The President or judicial member is not to make an order under this section unless:
(a) the President or judicial member is satisfied that the proceedings concerned should have been instituted in a Local Court because of the nature of the proceedings, and
(b) the Local Court has jurisdiction to deal with the proceedings.
Any proceedings to which this section applies that are transferred to a Local Court under this section are to continue before the Local Court as if they had been instituted there.
In this section:
The amendment provides for the transfer of certain proceedings that have been instituted in or before the Industrial Relations Commission in Court Session so that they can be dealt with by Industrial Magistrates.
(Section 3)
Insert “
Insert in alphabetical order in section 2 (1):
(a) an Acting Judge of the Supreme Court of New South Wales, or
(b) an acting member of the Industrial Relations Commission of New South Wales, or
(c) an Acting Judge of the Industrial Court, or
(d) an acting judicial member of the Industrial Relations Commission of New South Wales, or
(e) an acting Judge of the Land and Environment Court (under the Land and Environment Court Act 1979), or
(f) an Acting Judge of a District Court (under the District Court Act 1973), or
(g) an acting Judge of the Compensation Court (under the Compensation Court Act 1984).
Insert “
Insert after section 10:
Despite any other provision of this Act, if a pension is payable under this Act to or in respect of a judge or former judge who has previously been paid a lump sum benefit:
(a) under this Act, or
(b) under an Act of another State, a Territory or the Commonwealth in respect of any prior judicial service,
the amount of any pension payable from time to time under this Act is to be reduced having regard to the value of the lump sum benefit paid.
If a pension is reduced under this section, any subsequent reversionary pension payable from time to time under this Act is to be reduced.
The amount of the reduced pension or reversionary pension is to be determined by the Attorney-General in accordance with actuarial advice.
In this section:
Insert at the end of the Act:
The lump sum benefit payable under this Act to or in respect of a judge or acting judge qualified under section 15 is an amount calculated as follows:
where:
In this section:
(a) if the judge or acting judge is employed on a full-time basis—the salary of the judge or acting judge at that time, or
(b) if the judge or acting judge is employed on a part-time basis—the salary that would be payable to the judge or acting judge at that time if employed on a full-time basis.
A lump sum benefit calculated in accordance with section 13 is payable to or in respect of a judge or acting judge qualified under section 15:
(a) if the judge or acting judge dies, or
(b) if the judge or acting judge ceases to be employed as a judge or acting judge in the circumstances in which a benefit is payable for the purposes of complying with a relevant Commonwealth superannuation standard, or
(c) in any other circumstances in which a benefit is payable to comply with any such standard or may be paid in respect of a member of a regulated superannuation fund under any such standard,
and is so payable in accordance with subsections (4) and (5).
If the whole or part of a lump sum benefit payable to a former judge or former acting judge would be required to be preserved if a relevant Commonwealth superannuation standard applied to the benefit, that amount must, on the election of the former judge or former acting judge, be paid to:
(a) a regulated superannuation fund, or
(b) an approved deposit fund, or
(c) an RSA institution.
If the former judge or former acting judge does not make an election referred to in subsection (2), the amount is to be paid on behalf of the former judge or former acting judge to a regulated superannuation fund or approved deposit fund approved by the Attorney General.
The lump sum benefit in respect of a former judge or former acting judge is payable:
(a) unless the former judge or former acting judge has died—to the former judge or former acting judge, or
(b) if the former judge or former acting judge has died and is survived by a widow or widower—to the widow or widower, or
(c) if the former judge or former acting judge has died and is not survived by a widow or widower—to the legal personal representatives of the former judge or former acting judge for payment in respect of any eligible children of the former judge or former acting judge, or
(d) if the former judge or former acting judge has died and is not survived by a widow or widower or any eligible children—to the legal personal representatives of the former judge or former acting judge.
A lump sum payable under this section is charged on and payable out of the Consolidated Fund.
For the purposes of this section, an acting judge whose term of appointment as an acting judge ends, and who is appointed for a further consecutive term as an acting judge, is taken not to have ceased to be employed as an acting judge.
In this section:
A judge or acting judge is qualified for payment of a lump sum benefit payable under this Act if the judge or acting judge is not a person referred to in subsection (2).
A lump sum benefit is not payable to or in respect of the following persons:
(a) a judge who is entitled to payment of a pension under this Act on ceasing to be a judge or in respect of whom such a pension is payable if the judge dies,
(b) an acting judge who ceases to be an acting judge because of appointment as a judge.
Insert “
Renumber existing sections 11 and 11A as sections 16 and 17, respectively.
Renumber section 12B (as inserted by Schedule 1 [3] to the Judges’ Pensions Amendment Act 1998) as section 18.
Insert after section 18 (as renumbered by item [8] of this Schedule):
Schedule 1 has effect.
Insert after new section 19 (as inserted by item [9] of this Schedule):
(Section 19)
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:
• Courts Legislation Amendment Act 2000
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
For the purposes of calculating a lump sum benefit payable under this Act to a judge or acting judge, any period of service as a judge or acting judge on or after 1 July 1992 is to be taken into account, whether or not the period of service was continuous.
The amendments to the Judges’ Pensions Act 1953 provide for a lump sum superannuation benefit for judges and acting judges who are not eligible for a pension under that Act. The Act does not currently provide any benefits to acting judges for work as acting judges and only provides a pension to judges who complete a period of 5 years judicial service, if they retire at the statutory retirement age, or 10 years judicial service, if they retire after the age of 60 and before the statutory retirement age.
Proposed section 13 sets out the amount of the lump sum benefit. It is to be 9% of the final salary of the judge or acting judge multiplied by the years of service of the judge or acting judge calculated on a daily basis.
Proposed section 14 sets out the circumstances in which the lump sum benefit is payable to or in respect of a judge or acting judge, including on death and in circumstances in which a benefit would be payable under Commonwealth legislation applicable to superannuation funds. In circumstances in which a benefit would be required to be preserved under Commonwealth legislation applicable to superannuation funds, the amount of the benefit must be paid to a regulated superannuation fund or an approved deposit fund or to a retirement savings account elected by the judge or acting judge. Provision is made for payment to a regulated superannuation fund or approved deposit fund approved by the Attorney General if no election is made. The proposed section also sets out the persons to whom the lump sum benefit is payable. The benefit is to be charged on and is payable from the Consolidated Fund.
Proposed section 15 provides that a judge or acting judge is qualified for payment of a lump sum benefit unless he or she is entitled to a pension under the Act or, if an acting judge, is appointed as a judge.
(Section 3)
Insert at the end of the section:
A reference in this section to a verdict includes a reference to an answer to any specific question put to the jury by the court.
At present, section 57 of the Jury Act 1977 provides for a majority verdict in civil proceedings if the jury in unable to agree on its verdict after more than 4 hours of deliberation. The amendment will enable a majority answer to be given on any question put to the jury by the court in civil proceedings in cases where the jury is unable to agree on the answer.
(Section 3)
Omit section 81 (1). Insert instead:
When convicting or making an order against a defendant, the Justice or Justices may order:
(a) that the defendant pay to the prosecutor or complainant such professional costs as the Justice or Justices consider to be just and reasonable, and
(b) that the defendant:
(i) if the prosecutor or complainant has paid court costs—pay those costs to the Clerk of the Local Court for payment to the prosecutor or complainant, or
(ii) in any other case—pay court costs to the Clerk of the Local Court.
When making an order dismissing the information, complaint or charge against a defendant, the Justice or Justices may order that the prosecutor or complainant pay to the defendant such professional costs as the Justice or Justices consider to be just and reasonable.
The amount that may be awarded under subsection (1) (b) for court costs is:
(a) the amount specified in item 1 of Schedule 1 to the Justices (General) Regulation 1993, or
(b) such other amount as the Justice or Justices consider to be just and reasonable in the circumstances of the case.
Omit “Costs”. Insert instead “Professional costs”.
Insert “professional” before “costs” wherever occurring.
Insert after section 81 (6):
In this section:
The amendments to section 81 of the Justices Act 1901 clarify the manner and extent to which a Magistrate may order a defendant to pay costs when convicting or making an order against the defendant. Such costs may comprise the prosecution’s “professional costs”, and also “court costs”. The amount that may be awarded as professional costs is such amount as the Magistrate considers to be just and reasonable, and the amount that may be awarded as court costs is the appropriate fee prescribed by the regulations (or such other amount as the Magistrate considers to be just and reasonable).
The amendments also make it clear that, if a Magistrate makes an order dismissing the information or complaint against a defendant, the Magistrate may order the prosecution or complainant to pay the defendant’s “professional costs”.
(Section 3)
Insert “or decision” after “question of law” in section 57 (3) (a).
Omit the paragraph. Insert instead:
except by leave of the Supreme Court, in respect of a question of law that has been determined by a Judge under section 36, or in respect of any subsequent decision of a Commissioner made after such a determination where that determination is the subject of an appeal to the Supreme Court.
Section 57 of the Land and Environment Court Act 1979 presently allows a party to certain proceedings in the Land and Environment Court (“the Court”) to appeal to the Supreme Court against an order or decision of the Court on a question of law. Such an appeal does not, however, lie to the Supreme Court against an order or decision of a Commissioner of the Court (unless it is an appeal in respect of a question of law that has been referred to and determined by a Judge of the Court under section 36 of the Act).
The amendments provide for an appeal to the Supreme Court on a question of law arising from a decision of a Commissioner in circumstances where the Commissioner’s decision is based on a determination that is subject to an appeal to the Supreme Court.
(Section 3)
Insert after section 208E (3):
This section does not apply to or in respect of the assessment of costs referred to in Subdivision 3 (party/party costs).
Insert “, and the rate of any interest payable in respect of that amount of costs is the rate of interest in the court in which the certificate is filed” after “unpaid costs” in section 208J (3).
Insert after section 208J (4):
To avoid any doubt, this section applies to or in respect of both the assessment of costs referred to in Subdivision 2 of this Division (practitioner/client costs) and the assessment of costs referred to in Subdivision 3 of this Division (party/party costs).
(Section 3)
Omit section 34 (2). Insert instead:
If, in accordance with subsection (1A), the rules provide for a court sitting in its Small Claims Division to award costs, the amount of any such costs is to be determined in accordance with the rules. This subsection prevails to the extent of any inconsistency with section 84 (4), or with the provisions of the Legal Profession Act 1987 (in particular section 196 of that Act) and the regulations under that Act.
Insert after Part 5:
The amendments made to section 12 of this Act by the Courts Legislation Amendment Act 1999 do not apply in respect of proceedings commenced before those amendments.
Insert in Schedule 2 with the appropriate Part number:
Any rule made (or purporting to be made) under section 34 (2) before the commencement of Schedule 12 [1] to the Courts Legislation Amendment Act 2000 that could have been made under section 34 (2) (as amended by that Schedule) is taken to be made under that subsection as so amended.
(Section 3)
Insert “(other than an order for the payment of costs)” after “tribunal” in section 46A (1) (d) (ii).
Omit “Proceedings” from section 101A (7).
Insert instead “Unless the Court orders otherwise (whether on the application of a party to the proceedings or of its own accord), proceedings”.
Insert “unless the contemnor has, during the proceedings, consented to his or her name or identity being disclosed” after “contemnor”.
Insert after section 108:
If:
(a) a Judge of Appeal or the Court of Appeal dismisses an appeal against a judgment, order or injunction, and
(b) at that time, the Judge or Court makes a judgment or order that involves the variation of the judgment, order or injunction the subject of the appeal, and
(c) the Judge or Court declares the variation to be a minor variation,
the varied judgment, order or injunction is, for all purposes, taken to be a judgment, order or injunction of the court, tribunal or Division that made the original judgment, order or injunction the subject of the appeal.
Insert at the end of clause 1 (2):
Courts Legislation Amendment Act 2000, but only in relation to the amendments made to this Act
Insert after clause 14:
In this Part,
Section 46A, as amended by the amending Act, extends to an appeal against an order made before the commencement of the amendment to that section.
Section 101A, as amended by the amending Act, extends to proceedings that were commenced before the commencement of the amendment.
(Section 3)
Omit “constituted by a commissioner” from section 96 (2).
Omit “constituted by a commissioner” from section 97 (2).
The amendments provide that the Compensation Court may revoke a direction given by a conciliation officer in relation to weekly payments of compensation. At present, such a direction may only be revoked by the Compensation Court constituted by a commissioner.
(Section 3)
Insert after section 85:
Despite section 85, the Compensation Court may authorise the payment of compensation referred to in section 85 (1):
(a) to the person who is entitled to the compensation, or
(b) to such other person, for the benefit of the person entitled to the compensation, as the Court thinks fit.
Any such payment is to be made in the manner authorised by the Compensation Court.
The amendment enables the Compensation Court to authorise payments of compensation to a beneficiary (or to another person on behalf of the beneficiary) rather than to the Public Trustee for the benefit of the beneficiary.
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