Courts Legislation Further Amendment Act 1998 (NSW)
New South Wales Courts Legislation Further
Amendment Act 1998 No 172
Contents
Page
1 Name of Act 2 2 Commencement 2 3 Amendment of Acts 2
4 Explanatory notes 2 Schedules
Amendment of District Court Act 1973 No 9 3 Amendment of Fines Act 1996 No 99 5 Amendment of Industrial Relations Act 1996 No 17 8 Amendment of Judicial Officers Act 1986 No 100 10 Amendment of Justices Act 1902 No 27 11
Amendment of Land and Environment Court Act 1979
No 204 22 7
Amendment of Local Courts Act 1982 No 164 25 8 Amendment of Local Courts (Civil Claims) Act 1970
No 11 27 9
Amendment of Suitors’ Fund Act 1951 No 3 28 10
Amendment of Supreme Court Act 1970 No 52 29
New South Wales
Courts Legislation Further
Amendment Act 1998 No 172
Act No 172, 1998
An Act to make miscellaneous amendments to the District Court Act 1973, the Fines Act 1996, the Industrial Relations Act 1996, the Judicial Officers Act 1986, the Justices Act 1902, the Land and Environment Court Act 1979, the Local Courts Act 1982, the Local Courts (Civil Claims) Act 1970, the Suitors ’ Fund Act 1951 and the Supreme Court Act 1970. [Assented to 14 December 1998]
Section 1 Courts Legislation Further Amendment Act 1998 NO 172 The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Courts Legislation Further Amendment Act 1998.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Acts
The Acts specified in Schedules 1–10 are amended as set out in those Schedules.
4 Explanatory notes
The matter appearing under the heading “Explanatory note” in any of the Schedules does not form part of this Act.
Courts Legislation Further Amendment Act 1998 No 172
Amendment of District Court Act 1973 No 9 Schedule 1 Schedule 1 Amendment of District Court Act 1973
No 9
(Section 3)
[1] Section 47
Omit the section. Insert instead:
47 Cause of action or defendant outside the State
(1) The Court has jurisdiction in accordance with this Act to hear and dispose of an action, and a registrar may exercise the powers conferred on the registrar by any of the rules prescribed for the purposes of this subsection, regardless of whether the cause of action to which the action relates arose wholly or partly outside New South Wales if the defendant has been duly served with the document commencing the action. (2) For the purposes of subsection (1), it is immaterial whether the defendant was within or outside New South Wales:
(a) at the time the cause of action arose, or (b) at the time of service of the document commencing the action. (3) For the purposes of this section, a defendant is duly served with a document commencing an action if the defendant is served with the document by or under this Act or in accordance with the Service and Execution of Process Act 1992 of the Commonwealth. (4) In this section, defendant includes, if there are two or
more defendants, any one of those defendants.
[2] Schedule 3 Savings and transitional provisions consequent on amendments to this Act
Insert in clause l ( 1 ) in alphabetical order:
Courts Legislation Further Amendment Act 1998, but only in relation to the amendments made to this Act
Courts Legislation Further Amendment Act 1998 No 172
Schedule 1 Amendment of District Court Act 1973 No 9 [3] Schedule 3, Part 4
Insert after Part 3:
Part 4 Provision consequent on enactment of
Courts Legislation Further Amendment Act
1998
7 Application of jurisdictional amendment to causes of
action
(1)
Section 47 of this Act (as inserted by Schedule 1 [ l ] to the amending Act) does not apply to any cause of action that arose before the commencement of that item.
(2)
Any rules prescribed for the purposes of section 47 ( 1 ) (as in force immediately before the commencement of Schedule 1 [ l ] to the amending Act) conferring powers
on the registrar are taken to have been made for the purposes of section 47 ( 1 ) (as inserted by Schedule 1 [ l ]
to the amending Act).(3) In this clause. amending Act means the Courts
Legislation Further Amendment Act 1998.Explanatory note
Item [ l ] replaces section 47 of the District Court Act 1973 with a new section that ensures that the District Court has jurisdiction to determine proceedings in respect of a cause of action that arises wholly or partly outside the State if the defendant is duly served with the originating process (whether within the State or outside the State). The amendment takes up the suggestion of the New South Wales Court of Appeal in Falls Creek Ski Lifts Pty Ltd v Yee (1 995) 37 NSWLR 344 for the reform of the section.
Item [2] amends clause 1 (1) of Schedule 3 to the Act to ensure that regulations may be made of a savings or transitional nature consequent on the enactment of the amendments made to the Act by the proposed Act. Item [3] amends that Schedule to ensure that the new section 47 applies only to causes of action that arise after its commencement and to preserve certain rules made under section 47 before its substitution.
Courts Legislation Further Amendment Act 1998 No 172
Amendment of Fines Act 1996 No 99 Schedule 2 Schedule 2 Amendment of Fines Act 1996 No 99
(Section 3)
[1] Section 25 What is a penalty reminder notice?
Insert “(and any matter annexed to, or enclosed with, a notice)” after
”notice” where secondly occurring.
[2] Section 65 When enforcement action taken under this Division
Omit section 65 ( l ) . Insert instead:
( 1 ) Enforcement action is to be taken against a fine defaulter
under this Division if:
(a) the fine defaulter has not paid a fine as required by the notice of the fine enforcement order served on the fine defaulter, or (b) the State Debt Recovery Office has extended the time for payment of a fine, and the fine defaulter has not paid the fine by the extended due date. or (c) the State Debt Recovery Office has allowed the payment of a fine by instalments, and the fine defaulter has not paid every such instalment at the time specified by the Office. [3] Section 65 (4) and (5)
Omit section 65 (4). Insert instead:
(4)
The Roads and Traffic Authority is to cease enforcement action when directed to do so by the State Debt Recovery Office.
(5)
The State Debt Recovery Office may direct the Roads and Traffic Authority to cease enforcement action under this Division even if a fine defaulter has not paid all outstanding fines under any fine enforcement order.
Courts Legislation Further Amendment Act 1998 No 172
Schedule 2 Amendment of Fines Act 1996 NO 99 [4] Section 66 Suspension or cancellation of driver’s licence
Insert after section 66 (1):
(1A) The Roads and Traffic Authority must suspend the driver’s licence of a fine defaulter even if the State Debt Recovery Office has:
(a)
granted an extension of time for the payment of the fine, or
(b)
allowed the fine defaulter to pay the fine by instalments,
after requiring the Roads and Traffic Authority to take
enforcement action.
[5] Section 66 (2)
Omit the subsection. Insert instead:
(2) If the driver‘s licence is suspended and:
(a)
where the State Debt Recovery Office has granted the fine defaulter an extension of time for payment of the fine. the fine remains unpaid for at least 6 months after the extended due date, or
(b)
where the State Debt Recovery Office has allowed the payment of a fine by instalments, an instalment remains unpaid for at least 6 months, or
(c) in any other case, the fine concerned remains
unpaid for at least 6 months,
the Roads and Traffic Authority must, if the State Debt
Recovery Office so directs, cancel the licence.[6] Section 100 Time to pay
Insert after section 100 (5):
Note. A person, who has been granted an extension of time for payment of a fine or has been allowed to pay a fine by instalments after the State Debt Recovery Office has, in accordance with section 65, directed that the Roads and Traffic Authority take enforcement action, is not entitled to have a driver’s licence suspension lifted until the fine is paid in full.
Explanatory note
Division 3 of Part 3 of the Fines Act 1996 provides procedures for the issue and service of penalty reminder notices. Section 27 of that Act prescribes the Courts Legislation Further Amendment Act 1998 No 172
Amendment of Fines Act 1996 No 99 Schedule 2 information that must be included in such a notice. For certain offences, the prescribed information will not fit onto a single document. Item [l] amends section 25 of the Fines Act 1996 to expand the definition of penalty reminder notice to include any other matter annexed to, or enclosed with, a notice served under Division 3 of Part 3 of that Act.
Sections 65 and 66 of the Fines Act 1996 provide for enforcement action to be taken against a fine defaulter to suspend or cancel the defaulter’s driver’s licence where the defaulter has failed to pay an amount owing under a fine enforcement order. Item [3] substitutes section 6 5 (4) to make it clear that if the State Debt Recovery Office (SDRO) has directed the Roads and Traffic Authority (RTA) to take enforcement action (eg to suspend a driver’s licence), the SDRO may direct the RTA to cease that enforcement action even if a fine defaulter has not paid all outstanding fines under any enforcement order.
Section 100 of the Fines Act 1996 allows the SDRO to grant a fine defaulter an extension of time for payment of a fine or to allow fine defaulters to pay a fine by instalments. Item [2] amends section 6 5 (1) to allow the SDRO to immediately direct the RTA to take enforcement action if the defaulter has failed to pay a fine by an extended due date (where the SDRO has granted an extension of time) or has failed to pay a fine instalment when due (where the SDRO has allowed payment by instalment). The SDRO is not required to issue a new fine enforcement order before taking such action. Item [5] makes a consequential amendment.
Item [4] amends section 66 and item [6] inserts a note to section 100 of the Fines Act 1996 to make it clear that where, after a direction to the RTA to take enforcement action has been made, the SDRO has granted an extension of time for payment of a fine or has allowed a fine defaulter to pay a fine by instalments, the fine defaulter is not entitled to have his or her driver’s licence suspension lifted until the fine is satisfied in full.
Courts Legislation Further Amendment Act 1998 No 172
Schedule 3 Amendment of Industrial Relations Act 1996 No 17 Schedule 3 Amendment of Industrial Relations
Act 1996 No 17(Section 3)
Section 190A
Insert after section 190:
190A Interlocutory and other matters in proceedings on
appeal
If an appeal is made under this Part to a Full Bench of the Commission, the Commission constituted by the President (or by another member of the Commission nominated by the President) may do any one or more of the following for the purposes of, or in relation to, the appeal :
(a) make any consent order in relation to the appeal, (b) grant leave to withdraw or discontinue the appeal, (c) give any directions in relation to the hearing of the appeal, (d) deal with any interlocutory application in the appeal. If the appeal is made to a Full Bench of the Commission in Court Session:
(a)
a non-judicial member may not constitute the Commission for the purposes of this section, and
(b) this section applies despite section 153 (2). subject of an appeal may not constitute the Commission A member of the Commission who made a decision the for the purposes of this section. This section does not authorise:
(a) the Commission constituted in accordance with this section to grant leave to appeal, or (b) the granting of a stay against the decision appealed against otherwise than under section 190.
Courts Legislation Further Amendment Act 1998 No 172
Amendment of lndustrial Relations Act 1996 No 17 Schedule 3 Explanatory note
The amendment to the lndustrial Relations Act 1996 inserts a new section 190A in the Act to enable a single member of the Commission (either the President or a member nominated by the President) to deal with interlocutory matters in relation to appeals to the Full Bench of the Commission. It also enables the President or such a member to grant consent orders and to grant leave to withdraw or discontinue an appeal.
Courts Legislation Further Amendment Act 1998 No 172
Schedule 4 Amendment of Judicial Officers Act 1986 No 100 Schedule 4 Amendment of Judicial Officers Act
1986 No 100(Section 3)
[1] Schedule 1 Provisions relating to the appointed members of the Commission
Omit clause 2.
[2] Schedule 1, clause 5 (1) (f)
Insert "or" after "Minister;".
[3] Schedule 1, clause 5 (1) (g)
Omit the paragraph.
Explanatory note
Item [1] omits clause 2 of Schedule 1 to the Judicial Officers Act 1986 to enable a
person to be appointed as an appointed member of the Judicial Commission
regardless of his or her age. At present, a person cannot be an appointed
member if he or she is of or above 72 years of age. Items [2] and [3] make
consequential amendments to clause 5 of Schedule 1 to ensure that an appointed
member does not vacate office on attaining 72 years of age.
Courts Legislation Further Amendment Act 1998 No 172
Amendment of Justices Act 1902 No 27 Schedule 5
Schedule 5 Amendment of Justices Act 1902
No 27
(Section 3 )
[1] Section 26 Summons to give evidence or to produce document etc
Omit the section.
[2] Section 27 Form of summons
Omit “, or to testify what he knows concerning the matter of the information. or to produce the document or writing, as the case may be'' from section 27 (d).
[3] Section 29 Form of warrant
Omit “ , or to testify what he knows concerning the matter of the information, or to produce the document or writing, as the case may be" from section 29 (1 ) (e).
[4] Section 31 On non-appearance to summons, warrants may be issued
Omit "and where such person is required to be examined as a witness or to produce a document or writing. if no just excuse is offered for his non-appearance." from section 31 (1).
[5] Section 31 (2) (as amended by Schedule 2 [3] to the Criminal Procedure Legislation Amendment (Bail Agreements) Act 1998)
Omit "or section 26".
[6] Section 31 (4) (as inserted by Schedule 2 [3] to the Criminal Procedure Legislation Amendment (Bail Agreements) Act 1998)
Omit the subsection.
[7] Sections 37 and 61
Omit the sections.
Courts Legislation Further Amendment Act 1998 No 172
Schedule 5 Amendment of Justices Act 1902 No 27 Section 62 Form of summons
Omit “or to testify what he knows concerning the matter of the information or complaint, or to produce the document or writing, as the case may be” from section 62 (d).
Section 63 Manner of service of summons
Omit “or” where secondly occurring in section 63 (2A) (d).
Section 63 (2A) (9 and (g)
Insert at the end of section 63 (2A) (e):
(f)
as an officer or employee of an area health service constituted under the Health Services Act 1997, or
(g) as an officer of the Commonwealth.
Section 64 Form of warrant
Omit “, or to testify what he knows concerning the matter of the information or complaint. or to produce the document or writing as the case may be“ from section 64 (1) (e).
Section 66 On non-appearance to summons, warrants may be issued
Omit section 66 (1) (b) (ii).
Section 66 (2) (as amended by Schedule 2 [5] to the Criminal Procedure Legislation Amendment (Bail Agreements) Act 1998) Omit “ , section 61”. Section 66 (4) (as inserted by Schedule 2 [5] to the Criminal Procedure Legislation Amendment (Bail Agreements) Act 1998)
Omit the subsection. Courts Legislation Further Amendment Act 1998 No 172
Amendment of Justices Act 1902 No 27 Schedule 5 Section 71 How witness refusing to give evidence to be dealt with
Omit the section.
Section 98 One Justice may receive information etc and issue summonses and warrants
Omit “summons” where secondly occurring in section 98 (l) .
Insert instead “subpoena”.
Insert after section 100AG: Part 4, Division 4 (sections 100AH–100AQ)
Division 4 Attendance of witnesses and production of
evidence100AH Definitions
In this Division:
person named in relation to a subpoena means the
person to whom the subpoena is addressed.
subpoena means any of the following issued under
section 100AJ:
(a) a subpoena to give evidence. (b) a subpoena for production. (c) a subpoena both to give evidence and for production. subpoena both to give evidence and for production means a written order requiring the person named to attend as directed by the order as a witness to give evidence and to produce a document or thing.
subpoena for production means a written order requiring the person named to attend as directed by the order and produce a document or thing.
subpoena to give evidence means a written order requiring the person named to attend as directed by the order as a witness to give evidence.
Courts Legislation Further Amendment Act 1998 No 172
Schedule 5 Amendment of Justices Act 1902 No 27 100Al Application of Division
This Division applies to proceedings before a Local Court except proceedings before a Local Court that are commenced under the Local Courts (Civil Claims) Act 1970 or any other Act that provides for a procedure to compel the attendance of persons to give evidence, or produce documents or things, or both. at those proceedings.
This Division does not permit a subpoena to be issued to a person who:
(a) has made a written statement for the purposes of Subdivision 7A (Written statements in committal proceedings) of Division 1 , and (b) is not the subject of a direction under section 48E (Direction to witness to attend).
100AJ Issue of subpoenas
On request by a party to any proceedings to which this Division applies. and subject to and in accordance with the rules. a Justice. other than a Justice sitting as a Local Court. is to issue to the person named:
(a) a subpoena to give evidence, or (b) a subpoena for production, or (c) a subpoena both to give evidence and for production. Subsection (1) does not prevent the issue of a subpoena to give evidence and a subpoena for production to the same person in the same proceedings.
returnable: A party may require a subpoena for production to be
(a) on any day on which the proceedings are listed before a Local Court. or any day not more than 21 days before any such day, or (b) with the leave of the Local Court or a Justice. other than a Justice sitting as a Local Court, on any other day. Courts Legislation Further Amendment Act 1998 No 172
Amendment of Justices Act 1902 No 27 Schedule 5 Unless a Local Court otherwise orders, a subpoena issued at the request of a party who is not the prosecuting authority in the proceedings is not to require the person named to attend or produce any document or thing on any day on which his or her attendance is required unless an amount prescribed by the rules for the expenses of complying with the subpoena in relation to that day is paid or tendered to the person at the time of service of the subpoena or not later than a reasonable time before that day.
document or thing if: The person named is not required to produce any
(a) it is not specified or sufficiently described in the subpoena. or (b) the person named would not be required to produce the document or thing on a subpoena for production in the Supreme Court.
1 00AK Production by non-party
(1)
If the person named in a subpoena for production is not a party in the proceedings. the subpoena is, unless a Local Court otherwise orders, to permit the person to produce the document or thing to the Local Court specified in the subpoena not later than the day before the first day on which the person's attendance is required. instead of attending and producing the document or thing as required by the subpoena.
(2)
If a document or thing is produced under subsection (1), a Justice, other than a Justice sitting as a Local Court, is:
(a)
to give a receipt to the person producing the document or thing, and
(b)
to produce the document or thing as the nature of the case requires or as the Local Court may direct.
Courts Legislation Further Amendment Act 1998 No 172
Schedule 5 Amendment of Justices Act 1902 No 27
(3)
If a document or thing is produced under subsection ( l ) , a Justice, other than a Justice sitting as a Local Court, may, if the Justice thinks fit. order that the subpoena is no longer to be of any force: or effect and return the document or thing to the person who produced it in the following circumstances:
(a)
the hearing of the proceedings is adjourned before the document or thing is tendered to the Local court,
(b)
the document or thing is produced in compliance with a subpoena that is returnable under subsection 100AJ (3) on a day other than a day on which the proceedings are heard.
(4)
Subsection (3) does not operate to prevent the issue of a further subpoena requiring the production of a document or thing returned under that subsection.
(5)
This section and section 100AJ do not affect the operation of Division 1 of Part 4.6 of the Evidence Act 1995 (Requests to produce documents or call witnesses).
100AL Subpoena may be set aside
(1)
A Local Court may. on application by the person named in a subpoena. set aside the subpoena wholly or in part.
(2)
Notice of an application under subsection (1) is to be filed and served as prescribed by the rules on the party on whose request the subpoena was issued.
100AM Inspection of subpoenaed documents or things
(1) A party or a party's solicitor or barrister may, if a Local
Court so orders:
(a)
inspect documents or things produced in compliance with a subpoena, and
(b) take copies of any documents so inspected. (2) Any such order may be made on such terms and
conditions as the Local Court thinks fit.
Courts Legislation Further Amendment Act 1998 No 172
Amendment of Justices Act 1902 No 27 Schedule 5
(3)
The function of a Local Court to make an order under subsection (1) may by exercised by a Justice, other than a Justice sitting as a Local Court, unless:
(a) the Local Court otherwise orders, or (b)
a party, the person named in the subpoena or a person claiming privilege in respect of the document has notified the Local Court in the manner prescribed by the rules that the party or person objects to the making of an order under subsection (1).
100AN Warrant may issue for failure to comply with subpoena
(1)
A Local Court may. on the application of a party who requested the issue of a subpoena. or on the Local Court's own motion, order that a warrant be issued directing that the person named in the subpoena be apprehended and brought before a Local Court as soon as practicable if:
(a)
the person named has not complied with the subpoena, and
(b)
the Local Court is satisfied that the requirements of this Division for subpoenas were complied with and that no just cause or reasonable excuse has been offered for the failure to comply.
(2)
The Local Court before whom a person is brought after having been apprehended under a warrant referred to in subsection (1):
(a)
subject to the Bail Act 1978, must order that a warrant be issued for the committal of the person to a correctional centre or other place of security, and
(b)
must order the person to be brought before a Local Court at such time and place as is specified in the order, and
(c)
must give due notice of the time and place so specified to the person who commenced the proceedings to which the subpoena relates.
Courts Legislation Further Amendment Act 1998 No 172
Schedule 5 Amendment of Justices Act 1902 No 27 The Bail Act 1978 applies to a person who is brought before a Local Court after having been apprehended under a warrant referred to in subsection (1) in the same way as it applies to an accused person, and for that purpose, bail may be granted to the person with respect to the period between:
(a)
the person's being brought before a Local Court under a warrant for the purpose of being examined as a witness or producing a document or thing, and
(b)
the person's being examined as a witness OF producing the document or thing.
A warrant under this section may be issued by any
Justice.
referred to in subsection (1). with any necessary Sections 64 (Form of warrant) and 45 (No objection for defect or variance) apply to and in respect of a warrant modifications, in the same way as they apply to and in
respect of a warrant issued under Division 2.
100AO How witness refusing to give evidence to be dealt with
(1 ) This section applies to a person who:
(a) appears before a Local Court on a subpoena, or (b)
appears before a Local Court on bail after being apprehended under a warrant referred to in section 100AN (1), or
(c)
is brought before a Local Court under a warrant referred to in section 100AN (2) (a).
to give evidence, or produce any document or thing, or
both.(2)
The Local Court may order that a warrant be issued for the committal of a person to whom this section applies to a correctional centre for a period not exceeding 7 days if the person refuses, without offering any just cause or reasonable excuse:
(a) to be examined on oath, or (b) to take an oath, or Courts Legislation Further Amendment Act 1998 No 172
Amendment of Justices Act 1902 No 27 Schedule 5
(c)
to answer, after having taken an oath. any questions that are put to the person concerning the subject-matter of the proceedings, or
(d) to produce the document or thing.
(3) However, the person is to be released before the
expiration of those 7 days if the person:
(a)
consents to be examined on oath and to answer questions concerning the subject-matter of the proceedings, or
(b) produces the document or thing. (4) A warrant under this section may be issued by any
Justice.(5)
This section and section 100AN apply in relation to a subpoena to the exclusion of section 194 (Witnesses failing to attend proceedings) of the Evidence Act 1995.
(6)
In this section, a reference to a person who appears before a Local Court on bail after being apprehended under a warrant referred to in section 100AN (1) includes a reference to a person in respect of whom the requirement for bail has been dispensed with after being so apprehended.
100AP Service of subpoenas
( 1) A subpoena is to be served within a reasonable time. (2)
Without affecting subsection (1), a subpoena may not be served on the person named later than 5 days before the first day on which the person is required to attend or produce any document or thing unless a Local Court or a Justice, other than a Justice sitting as a Local Court, otherwise orders.
(3)
Service of a subpoena may be effected by delivering a copy of the subpoena to the person named or in such other manner as may be prescribed by the rules.
(4)
Without limiting subsection (3), the rules may provide for substituted service to be effected in such manner and in such circumstances as may be prescribed by the rules.
Courts Legislation Further Amendment Act 1998 No 172
Schedule 5 Amendment of Justices Act 1902 No 27 100AQ Defects in subpoenas
( l ) No objection is to be taken or allowed to a subpoena for any alleged defect in substance or in form. (2) Nothing in this section affects the operation of section
100AL (Subpoena may be set aside).
[18] Section 147A Sufficiency of seal printed on summons, warrant or subpoena
Omit ''summons or warrant" wherever occurring.
Insert instead "summons, warrant or subpoena".[19] Section 147A
Omit "warrant or summons".
Insert instead "summons. warrant or subpoena".[20] Section 154A Rules
Insert after section 154A (1):
(1A) In particular, rules may be made for or with respect to the form of subpoenas issued under Division 4 of Part 4.
[21] Second Schedule Savings, transitional and other provisions
Insert at the end of the Schedule, with appropriate Part and clause numbers:
Part Provisions consequent on enactment of
Courts Legislation Further Amendment Act
1998Definition
In this Part, amending Act means the Courts Legislation
Further Amendment Act 1998.
Existing proceedings
( 1)
Division 4 of Part 4, as inserted by the amending Act. extends to proceedings commenced before the commencement of that Division.
Courts Legislation Further Amendment Act 1998 No 172
Amendment of Justices Act 1902 No 27 Schedule 5
(2)
However, the provisions of Divisions 1 and 2 as in force immediately before the commencement of the amendments made to those Divisions by the amending Act continue to apply to and in respect of a summons issued under section 26 or 61 and in force immediately before the commencement of those amendments as if those amendments had not been made.
Validation
The issue of a subpoena before the commencement of Division 4 of Part 4, as inserted by the amending Act, is validated to the extent of any invalidity if the issue of the subpoena would have been valid had the Division been in force at the time the subpoena was issued. (2) Any act. matter or thing done after the issue of such a subpoena is validated to the extent of any invalidity if the act. matter or thing would have been validly done had the Division been in force at the time it was done.
Explanatory note Item [17] inserts new Division 4 (Attendance of witnesses and production of and employees of area health services constituted under the Health Services Act 1997 and officers of the Commonwealth as persons who may serve summons by post in respect of proceedings for summary offences. Item [9] makes a consequential amendment.
evidence) of Part 4 in the Act containing proposed sections 100AH–100AQ.
The proposed Division provides for the issue of subpoenas to persons to attend to
give evidence, or to produce documents or things, or both, in relation to
proceedings before a Local Court. (Currently, sections 26 and 61 of the Act
provide for a summons to issue, in certain circumstances, to persons to give
evidence or to attend to produce documents or other things but only in
proceedings for indictable offences, summary offences and complaints.)
However, the proposed Division does not apply in relation to proceedings before a
Local Court commenced under the Local Courts (Civil Claims) Act 1970 or any
other Act that provides for a procedure to compel the attendance of persons to
give evidence, or produce documents or things, or both, at the proceedings.
The proposed Division also provides for the apprehension of a person who fails to
comply with a subpoena. Items [1]–[8], [11]–[16] and [18]–[20] make
consequential amendments.
Item [21] adds to the schedule of savings, transitional and other provisions in the
Act. It includes a provision validating, to the extent of any invalidity, subpoenas
issued before the commencement of the proposed Division if the subpoenas
could have been issued were the proposed Division in force.
Courts Legislation Further Amendment Act 1998 No 172
Schedule 6 Amendment of Land and Environment Court Act 1979 No 204 Schedule 6 Amendment of Land and Environment
Court Act 1979 No 204(Section 3 )
[1] The whole Act (except section 52 and in provisions as amended or omitted elsewhere in this Schedule)
Omit “assessor”, “assessors” and “assessor's” wherever occurring. Insert instead “Commissioner”, “'Commissioners” and
“Commissioner's” respectively.
[2] Section 4 Definitions
Omit the definition of assessor from section 4 (1).
[3] Section 4 (1)
Insert in alphabetical order:
Commissioner means a person appointed as a Commissioner of the Court under Division 3 of Part 2.
[4] Part 2, Division 3, heading
Omit “Assessors”. Insert instead “Commissioners”.
[5] Section 12 Commissioners
Omit “conciliation and technical assessor” from section 12 ( I ) .
Insert instead "Commissioner".[6] Sections 12 (3) and 36 (4) (a) and (b)
Omit “senior assessor” wherever occurring.
Insert instead “Senior Commissioner”.
Courts Legislation Further Amendment Act 1998 No 172
Amendment of Land and Environment Court Act 1979 No 204 Schedule 6 Sections 12 (2), 13 (2) and (3), 14, 30 (3), 34 (9), 36 (1) (b), 37 (4) (a), 56A (1), 57 (3) (a) and 66 and Schedule 1, clauses 3, 6, 8 (2), (3) and (4) and 9 (2)
Omit “an assessor” wherever occurring.
Insert instead “a Commissioner”.
Section 13 Acting Commissioners
Omit “conciliation and technical assessor” from section 13 (1).
Insert instead “Commissioner”.
Section 14 (1) and Schedule 1, clauses 2 (b), 7 and 8 (2), (3) and
(4)
Omit “the assessor” wherever occurring.
Insert instead “the Commissioner”.
Sections 30 (2A) and (2B), 34 (8), 35 (5) and (6), 37 (3), 69 (8) and
Schedule 1, clauses 1 (1) and (2), 2, 7 and 8 (5)
Omit “An assessor” wherever occurring.
Insert instead “A Commissioner”.Section 30 (2A) and Schedule 1, clauses 1 (2), 3 and 8 (2), (3) and (4)
Omit “the assessor's” wherever occurring.
Insert instead “the Commissioner's”. Sections 30 (3), 36 (4) (a) and (b), 56A (l), 57 (3) (a) and 69 (8)
Omit “assessors” wherever occurring.
Insert instead “Commissioners”.
Section 30 (3) (a)
Omit “remaining assessor”.
Insert instead “remaining Commissioner”.Courts Legislation Further Amendment Act 1998 No 172
Schedule 6 Amendment of Land and Environment Court Act 1979 No 204 Schedule 1, Reading
Omit “The assessors”. Insert instead “The Commissioners”.
Schedule 1, clauses 8 (2) and (3) and 9
Omit “as assessor” wherever occurring.
Insert instead “as Commissioner”.
Insert at the end of Schedule 3: Schedule 3 Savings, transitional and other provisions
2 Provisions consequent on enactment of Courts
Legislation Further Amendment Act 1998
In this clause. amending Act means the Courts
Legislation Further Amendment Act 1998.A person appointed as an assessor immediately before the commencement of Schedule 6 [3] to the amending Act is taken to be duly appointed as a Commissioner under section 12 for the balance of the term of his or her appointment.
The person appointed as senior assessor immediately before the commencement of Schedule 6 [3] to the amending Act is taken to be duly appointed as Senior Commissioner under section 12 (3).
On and from the commencement of Schedule 6 [3] to the amending Act, a reference in any other Act or any instrument to an assessor of the Land and Environment Court is taken to be a reference to a Commissioner. Explanatory note
Items [1]–[15] amend the Land and Environment Court Act 1979 to change the name of the position of “conciliation and technical assessor” of the Court (also referred to as “assessor” in that Act) to “Commissioner”. Item [6] specifically changes the reference to “senior assessor” to ‘Senior Commissioner”. Item [16] inserts into Schedule 3 to that Act certain savings and transitional provisions consequent on those amendments.
Courts Legislation Further Amendment Act 1998 No 172
Amendment of Local Courts Act 1982 No 164 Schedule 7 Schedule 7 Amendment of Local Courts Act 1982
No 164
(Section 3)
[1] Section 13 Appointments for limited tenure
Insert “(not being a term continuing past the date on which the section 13 ( l ) (a). [2] Schedule 1 Savings and transitional provisions
Insert “or any of the following Acts:” after “Miscellaneous Acts
(Local Courts) Amendment Act 1982” in clause 8 (1).[3] Schedule 1, clause 8 (1)
Insert at the end of the clause:
Courts Legislation Further Amendment Act 1998, but only in relation to the amendments made to this Act
[4] Schedule 1, clause 9
Insert after clause 8:
9 Application of age limits to appointments of existing
acting Magistrates
The amendment made to section 13 of this Act by Schedule 7 [ l ] to the Courts Legislation Further Amendment Act 1998 does not affect the validity of any appointment made before the commencement of the amendment that is still in force on that commencement.
Courts Legislation Further Amendment Act 1998 No 172
Schedule 7 Amendment of Local Courts Act 1982 No 164 Explanatory note
Item [1 ] amends section 13 of the Local Courts Act 1982 to ensure that acting Magistrates may not be appointed for a term that takes them beyond the age of 70 years.
Item [3] amends clause 8 (1) of Schedule 1 to the Act to ensure that regulations may be made of a savings or transitional nature consequent on the enactment of the amendments made to the Act by the proposed Act. Item [2] makes an amendment to the same subclause that is consequential on the amendment made by item [3].
Item [4] ensures that section 13 (as amended) does not affect appointments made before the commencement of the amendment.
Courts Legislation Further Amendment Act 1998 No 172
Amendment of Local Courts (Civil Claims) Act 1970 No 11 Schedule 8 Schedule 8 Amendment of Local Courts (Civil
Claims) Act 1970 No 11
(Section 3)
[1] Section 72 Witnesses
Omit “summons or” from section 72 (2).
[2] Section 72 (3) (a)
Omit the paragraph.
[3] Section 72 (5) (as inserted by Schedule 3.8 to the Criminal Procedure Legislation Amendment (Bail Agreements) Act 1998)
Omit “66 (2). (3) and (4)”.
Insert instead “66 (2) and (3).”Explanatory note Items [1]–[3] make amendments to the Local Courts (Civil Claims) Act 1970 that are consequential on the amendments made to the Justices Act 1902 by Schedule 5.
Courts Legislation Further Amendment Act 1998 No 172
Schedule 9 Amendment of Suitors’ Fund Act 1951 No 3 Schedule 9 Amendment of Suitors’ Fund Act 1951
No 3(Section 3)
Section 3 Suitors’ Fund
Omit “shall be established in the Special Deposits Account in the
Treasury” from section 3 (1) .
Insert instead “is to be established in the Attorney General’sDepartment Account”.
Section 3 (2B)
Omit “paid into the Attorney General’s Department Account”.
Insert instead “used”.
Schedule 1 Savings and transitional provisions Insert at the end of the Schedule: 3 Transfer of money consequent on enactment of Courts
Legislation Further Amendment Act 1998
(1) As soon as practicable after the commencement of Schedule 9 [ l ] to the amending Act, the balance standing to the credit of the account which, immediately before that commencement. was required by section 3 to be established in the Special Deposits Account in the Treasury. is to be transferred to the Attorney General’s Department Account and the account from which the balance is transferred is to be closed. (2) The account established under subclause (1) is a continuation of, and is taken to be the same fund as, the Suitors’ Fund established and operating under section 3 of this Act immediately before the commencement of Schedule 9 [ l ] to the amending Act.
(3) In this clause, amending Act means the Courts Legislation Further Amendment Act 1998.
Explanatory note
Items [ 1 ] and [3] amend the Suitors’ Fund Act 1951 to provide that the Suitors’ Fund, established under section 3 of that Act, is no longer to be a separate account in the Special Deposits Account in the Treasury but is instead to form part of the Attorney General’s Department Account.
Item [2] makes a consequential amendment.
Courts Legislation Further Amendment Act 1998 No 172
Amendment of Supreme Court Act 1970 No 52 Schedule 10 Schedule 10 Amendment of Supreme Court Act
1970 No 52
(Section 3)
[1] Sections 27 and 28
Omit section 28. Insert instead:
27 Chief Judges
( 1 ) The Governor may, by commission under the public seal
of the State, appoint any Judge to be:
(a)
Chief Judge of the Common Law Division (whose title is Chief Judge at Common Law), or
(b)
Chief Judge of the Equity Division (whose title is Chief Judge in Equity).
(2)
A Judge may be appointed a Chief Judge either at the time of his or her appointment as a Judge or at any time afterwards.
(3) A Chief Judge holds that office so long as he or she
holds office as a Judge.(4)
A Chief Judge may. with the approval of the Governor. resign that office without resigning his or her office as a Judge.
28 List Judges
(1)
The Chief Justice may. by instrument in writing, designate a Judge to be a List Judge within a Division.
(2)
A List Judge within a Division has (subject to any direction from the Chief Justice or the Chief Judge of the Division) the function of managing such class or classes of proceedings in the Division as may be specified in the instrument designating the Judge to be a List Judge or by the rules.
Courts Legislation Further Amendment Act 1998 No 172
Schedule 10 Amendment of Supreme Court Act 1970 No 52 A Judge may be designated to be a List Judge within a Division under this section even though the Judge is not appointed or nominated to the Division. Any such Judge is taken to be appointed to the Division for the purposes of exercising his or her functions as a List Judge.
An instrument designating a Judge to be a List Judge may specify a title for the Judge to use while exercising the functions of a List Judge.
The Chief Justice may at any time. by instrument in writing. revoke a Judge’s designation as a List Judge.
precedence as a Judge that he or she had immediately The designation of a Judge to be a List Judge under this section does not affect the rank, title. status and before any such designation.
[2] Section 38 Divisions of Court
Omit section 38 (b) (iii)–(ix).
[3] Section 41 Judges in the Divisions
Omit section 41 (1) (c)-(h).
[4] Section 53
Omit the section. Insert instead:
53 Assignment of business
(1) Subject to the rules, there are assigned to the Common
Law Division all proceedings:
(a)
that. immediately before the commencement of this section, were assigned to the Division by or under any Act, or
(b)
that are required by or under any Act from time to time in force to be commenced. heard or determined in that Division, or
(c)
that are assigned to the Division by operation of Part 8 of the Fourth Schedule, or
Courts Legislation Further Amendment Act 1998 No 172
Amendment of Supreme Court Act 1970 No 52 Schedule 10
(d)
that are not assigned to the Equity Division by or under this Act.
(2) Subject to the rules, there are assigned to the Equity
Division all proceedings:
(a)
that, immediately before the commencement of this section, were assigned to the Division by or under any Act, or
(b)
that are required by or under any Act from time to time in force to be commenced, heard or determined in that Division, or
(c)
that are assigned to the Division by operation of Part 8 of the Fourth Schedule.
(3)
Subject to the rules, there are assigned to each Division proceedings for the punishment of contempt of the Court. but only if the contempt consists of:
(a)
contempt in the face of, or in the hearing of, the Court in that Division, or
(b) disobedience of a judgment or order of the Court
in that Division, or
(c)
breach of an undertaking given to the Court in that Division.
including proceedings in which the Court is constituted
by a master.
(4) Without limiting subsection (1 ) (d). the proceedings assigned to the Common Law Division include proceedings for contempt of the Court or of any other court (other than proceedings referred to in subsection (3) or section 48 (2) (i)). [5] Section 124 Rule-making power
Insert after section 124 (2):
(3)
The rules may make provision for or with respect to the assignment of proceedings to the Court of Appeal or a Division. The assignment by the rules of any proceedings to the Court of Appeal or any Division has effect despite any contrary provision of this or any other Act or law.
Courts Legislation Further Amendment Act 1998 No 172
Schedule 10 Amendment of Supreme Court Act 1970 No 52 [6] Fourth Schedule Savings and transitional provisions
Insert before clause 1 (and then renumber clause 1 as clause 1A):
Part 1 General 1 Regulations
(1) The Governor may make regulations for the purposes of
this Part.(2)
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:
Courts Legislation Further Amendment Act 1998, but only in relation to the amendments made to this Act (3)
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(4)
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.
Part 2 Provisions consequent on enactment of
Supreme Court (Amendment) Act 1994[7] Fourth Schedule, Part 3, heading
Insert before clause 2:
Part 3 Provisions consequent on enactment of
Courts Legislation Further Amendment Act
1995Courts Legislation Further Amendment Act 1998 No 172
Amendment of Supreme Court Act 1970 No 52 Schedule 10 Fourth Schedule, Part 4, heading
Insert after clause 2:
Part 4
Provisions consequent on enactment of Courts Legislation Amendment Act 1996
Fourth Schedule, Part 5, heading
Insert after clause 3:
Part 5
Provisions consequent on enactment of Courts Legislation Amendment Act 1997
Fourth Schedule, Part 6 , heading
Insert after clause 4:
Part 6
Provisions consequent on enactment of Traffic Legislation Amendment Act 1997
Fourth Schedule, Part 7 , heading
Insert after clause 5:
Part 7 Provisions consequent on enactment of
Courts Legislation Further Amendment Act
1997
Fourth Schedule, Part 8 Insert after clause 6 (as renumbered by the Statute Law
(Miscellaneous Provisions) Act (No 2) 1998):
Part 8 Provisions consequent on enactment of
Courts Legislation Further Amendment Act
19987 Definitions
(1) In this Part:
abolished Division means a Division of the Court
abolished by clause 8.
Courts Legislation Further Amendment Act 1998 No 172
Schedule 10 Amendment of Supreme Court Act 1970 No 52 amending Act means the Courts Legislation Further
Amendment Act 1998.
(2)
A reference in this Part to proceedings being assigned to a Division is a reference to the proceedings being assigned to that Division by or under this or any other Act.
8 Abolition of certain Divisions
On the commencement of Schedule 10 [2] to the amending Act. the following Divisions of the Court (within the meaning of this Act as in force immediately before that commencement) are abolished:
(a) the Administrative Law Division, (b) the Admiralty Division, (c) the Commercial Division, (d) the Criminal Division, (e) the Family Law Division, (f) the Probate Division, (g) the Protective Division.
9 Assignment of proceedings and Judges in abolished
Divisions to Common Law Division
The following proceedings are assigned to the Common Law Division on the commencement of Schedule 10 [2] to the amending Act:
(a)
any proceedings that were assigned to the Administrative Law Division by or under this or any other Act immediately before that commencement.
(b)
any proceedings that were assigned to the Criminal Division by or under this or any other Act immediately before that commencement.
referred to in subclause ( 1 ) immediately before its If proceedings are pending in an abolished Division abolition, the proceedings are taken for all purposes to have been commenced in the Common Law Division.
Courts Legislation Further Amendment Act 1998 No 172
Amendment of Supreme Court Act 1970 No 52 Schedule 10 Subject to subclause (4). a Judge who. immediately before the abolition of an abolished Division referred to in subclause ( l ) , was appointed or nominated to the Division under this or :any other Act is taken for the purposes of this Act to have been appointed or nominated to the Common Law Division.
A Judge who. immediately before the commencement of
Schedule 10 [ l ] to the amending Act, held office under section 28 of this Act (as in force immediately before that commencement) as the Chief Judge at Common Law is taken to hold office as Chief Judge at Common Law under section 27 (as inserted by the amending Act). 10 Assignment of proceedings and Judges in abolished
Divisions to Equity Division
(1)
The following proceedings are assigned to the Equity Division on the commencement of Schedule 10 [2] to the amending Act:
(a)
any proceedings that were assigned to the Admiralty Division by or under this or any other Act immediately before that commencement.
(b)
any proceedings that were assigned to the Commercial Division by or under this or any other Act immediately before that commencement.
(c)
any proceedings that were assigned to the Family Law Division by or under this or any other Act immediately before that commencement,
(d)
any proceedings that were assigned to the Probate Division by or under this or any other Act immediately before that commencement.
(e)
any proceedings that were assigned to the Protective Division by or under this or any other Act immediately before that commencement.
(2)
If proceedings are pending in an abolished Division referred to in subclause (1) immediately before its abolition, the proceedings are taken for all purposes to have been commenced in the Equity Division.
Courts Legislation Further Amendment Act 1998 No 172
Schedule 10 Amendment of Supreme Court Act 1970 No 52 Subject to subclause (4), a Judge who, immediately before the abolition of an abolished Division referred to in subclause ( l ) , was appointed or nominated under this or any other Act to the Division is taken for the purposes of this Act to have been appointed or nominated to the Equity Division.
A Judge who, immediately before the commencement of Schedule 10 [ l ] to the amending Act, held office under section 28 of this Act (as in force immediately before that commencement) as the Chief Judge in Equity is taken to hold office as Chief Judge in Equity under section 27 (as inserted by the amending Act). 11 Existing Probate Judge
A Judge who, immediately before the abolition of the
Probate Division, held office as Probate Judge under section 28 of this Act (as in force immediately before that abolition) retains the rank, title, status and precedence he or she had immediately before that abolition.
12 References to abolished Divisions
(1)
A reference in another Act (other than the amending Act), in an instrument made under an Act or in any other document to an abolished Division is to be read as a reference to the corresponding Division for the abolished Division.
(2) In this clause, corresponding Division for an abolished
Division means:
(a) in relation to the Administrative Law Division or the Criminal Division—the Common Law
Division, or
(b) in relation to the Admiralty Division, the Commercial Division, the Family Law Division, the Probate Division or the Protective Division— the Equity Division.
Courts Legislation Further Amendment Act 1998 No 172
Amendment of Supreme Court Act 1970 No 52 Schedule 1 0 13 Nothing in Part affects certain powers and other matters
Nothing in this Part affects:
(a) the operation of section 124 (3) of this Act, or (b)
the rank, title, status and precedence of any Judge of the Court who, immediately before the commencement of this clause, had that rank, title, status and precedence.
Explanatory note
Item [2] amends section 3 8 of the Supreme Court Act 1970 to ensure that the Court has only two Divisions (namely, the Common Law Division and the Equity Division). Item [4] replaces section 53 of the Act with a new section that specifies the kinds of proceedings that .will be assigned to each of these two remaining Divisions. Item [3] makes a consequential amendment to section 41 of the Act. Item [5] inserts section 124 (3 ) in the Act to make it clear that rules may provide for the assignment of proceedings in a different manner.
Item [1] replaces section 28 of the Act with a new section 2 7 to ensure that only two Divisional Chief Judges may be appointed, namely, the Chief Judge at Common Law and the Chief Judge in Equity. It also inserts a new section 2 8 in the Act to enable the Chief Justice to designate Judges to manage Lists relating to discrete kinds of proceedings within each Division.
Item [6] inserts a provision in the Fourth Schedule to the Act to ensure that the regulations may make provision for matters of a savings or transitional nature consequent on the enactment of the provisions of the proposed Act that amend the Supreme Court Act 1970 Item [12] inserts a new Part in the Schedule dealing with matters of a savings or transitional nature concerning the assignment of proceedings and Judges to the two remaining Divisions of the Court and preserving in office as Chief Judge at Common Law and Chief Judge in Equity the current office holders. Items [7]–[11] insert appropriate Part headings in the Schedule.
[Minister's second reading speech made in— Legislative Council on 1 December 1998 Legislative Assembly on 4 December 1998 p.m.]
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