District Court (Amendment) Act 1975 (NSW)
DISTRICT COURT (AMENDMENT) ACT.
A N N O VICESIMO Q U A R T O
ELIZABETHE II REGINE
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Act No. 1, 1975.
An Act to increase the amount for which certain actions may be brought in the District Court; to make further provisions with respect to the practice and procedure of the District Court and the powers of the Supreme Court on appeals from the District Court; for these and other purposes to amend the District Court Act, 1973, the Supreme Court Act, 1970, and the Criminal Appeal Act, 1912; to validate certain matters; and for purposes connected therewith. [Assented to, 11th March, 1975.]
| P91375—l |
BE
Council and Legislative Assembly of New South Wales in BE it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Parliament assembled, and by the authority of the same, as follows:—
1. This Act may be cited as the "District Court (Amendment) Act, 1975".
(1) This section and section 1 shall commence on the date of assent to this Act.
2.
(2) Except as provided in subsection (1), the several provisions of this Act shall commence on such day or days as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.
3. The District Court Act, 1973, is amended—
(a) by omitting from section 30 the matter "$200" and by inserting instead the matter "$500"; (b) (i) by inserting after section 32 (2) the following
subsection: — (2A) The Chief Judge may, if in his opinion it is expedient to do so, by order in writing, direct that the Court shall, during a specified year, sit in its civil jurisdiction at a specified proclaimed place at specified times.
(ii) by inserting in section 32 (3) after the matter
" ( 2 ) " the matter "or (2A)";
(iii) by omitting section 32 (3) ( a ) ;
(iv)
(iv) by inserting in section 32 (4) after the matter
" ( 2 ) " the matter ", (2A)";
(v) by inserting in section 32 (5) after the matter
" ( 2 ) " the matter "or (2A)";
(vi) by omitting section 32 (5) (ay ;
(vii) by inserting after section 32 (5) the following
subsections :—
(6) Where a direction having effect, during a particular year, in respect of a particular proclaimed place is given under either of sub sections (2) and (2A) , a subsequent direction having effect, during that year, in respect of that proclaimed place may be given under the other of those subsections.
(7) The operation of a direction given under either of subsections (2) and (2A) isnot affected by, or by the giving of, a subse quent direction under the other of those subsections.
(c) by omitting section 37 and by inserting instead the following section :—
37. (1) A Judge in chambers may, in respect of any proceedings, give any judgment or decision, or make any order, which he could lawfully give or make in court and which he considers may be
properly given or made in chambers, whether those chambers are situated at the proper place in relation to those proceedings, at any other proclaimed place or elsewhere.
(2) Where a Judge reserves his judgment or
his decision on any question of fact or law, sub section (1) does not apply to or in respect of the judgment or decision, whether the judgment or decision is to be given after a hearing in court or in chambers.
(d)
(d) (i) by omitting section 38 (1) (a) and by insert
ing instead the following paragraph :—
(a) give his judgment or decision in court— (i) at the proper place in relation to those proceedings; or
(ii) at any other place at which he is authorised by this Act to hear or dispose of those proceedings,
at any time, whether or not that time is specified in respect of that place under section 32 (2) or (2A) ; or
(ii) by omitting from section 38 (2) the matter
"(3) ( a ) " and by inserting instead the matter " ( 2 A ) " ;
(e)
by omitting from section 44 (1) (a) the matter "$10,000" and by inserting instead the matter "$20,000";
(f)
by omitting from section 48 the matter "$10,000" wherever occurring and by inserting instead the matter "$20,000";
(g)
by omitting from section 49 (2) the matter "$10,000" and by inserting instead the matter
"$20,000"; (h) by omitting from section 50 the matter "$10,000" wherever occurring and by inserting instead the words "the amount for which an action may be brought on that cause of action under this Act"; (i) (i) by omitting from section 51 (2) the matter "$10,000" and by inserting instead the matter "$20,000";
(ii)
(ii) by inserting after section 51 (2) the following subsection :—
(3) This section does not apply in relation
to an action referred to in section 44 (1) (b) .
(j) by omitting section 55 (5) and by inserting instead the following subsections :— (5) Where the plaintiff files an affidavit in accordance with subsection (3), the Court shall either—
(a) direct that the proper place in relation to the action shall remain unchanged; or (b) order that such proclaimed place as the Court thinks fit and as is specified in the order (whether or not that place is a rele vant place) shall be deemed to be the proper place in relation to the action, and an order under paragraph (b) shall have the same effect as if it were an order for a change of venue under section 40 to the proclaimed place so specified.
(6) Nothing in this section affects—
(a)
the power of the Court under section 40 to change the venue of any action; or
(b)
the right of any party to the action to apply for such a change of venue.
(k) (i) by inserting in section 76 after the word "action" the words "commenced before the commencement of section 3 (k) of the District Court (Amendment) Act, 1975,";
(ii) by inserting at the end of section 76 the following subsection :—
(2) Where in an action commenced after
the commencement of section 3 (k) of the
District Court (Amendment) Act, 1975, averdict
verdict (whether of the Judge or a jury) is found for, or the total amount which would have been recoverable if the successful party had not been at fault is found at, an amount in excess of the amount for which the action was authorised by this Act to be brought, the Court shall record the amount of the verdict or total amount, as the case may be, and the successful party shall be entitled to recover—
(a)
the maximum amount for which the action was authorised by this Act to be brought; or
(b)
that amount reduced in accordance with section 10 of the Law Reform (Miscellaneous Provisions) Act, 1965,
as the case may be.
(1)
(i)
by omitting from section 91 (2) (b) the words "by the judgment creditor before the presiding registrar" and by inserting instead the words "as to the matters referred to in subsection ( 3 ) " ;
(ii)
by omitting section 91 (3) and by inserting instead the following subsection : —
(3) Where the person to whom the
examination summons is directed attends
before the presiding registrar as required by the examination summons—
(a)
the judgment creditor may orally examine that person before the presiding registrar; or
(b)
where the judgment creditor has so requested in accordance with the rules, the presiding registrar may, in accord ance with the rules, orally examine that person,
as
as to the judgment debtor's property and other means of satisfying the judgment debt and generally as to the judgment debtor's financial circumstances.
(iii) by inserting after section 91 (6) the following subsection :—
(7) Subsection (3) does not authorise both the judgment creditor and the presiding registrar at the one examination to examine a person as to the matters referred to in subsection (3).
(m) (i) by omitting section 92 (7) (a) and by
inserting instead the following paragraph :—
(a) the judgment creditor attends before the registrar— (i) the judgment creditor may orally examine that person before the registrar; or
(ii) where the judgment creditor has so requested in accordance with the rules, the registrar may, in accordance with the rules, orally examine that
person, as to the matters referred to in section
91 ( 3 ) ; o r
(ii) by inserting in section 92 (7) (b) (i) after the word "rules" the word "orally";
(iii) by omitting from section 92 (7) (b) (i) the words "and report to the judgment creditor the results of the examination";
(iv)
(iv) by inserting after section 92 (8) the following subsection :—
(9) Subsection (7) (a) does not authorise both the judgment creditor and the registrar at the one examination to examine a person as to the matters referred to in section 91 (3).
(n) by inserting after section 94 the following section:—
94A. Where a person is examined by a registrar under this Subdivision in relation to a judgment debt, the results of the examination shall be reported to the judgment creditor by the registrar as soon as practicable.
(o)
by inserting in section 96 after the word "may" the words ", if it thinks fit,";
(p)
by inserting after section 103 (3) the following subsections :—
(4) Where—
(a)
after service of a garnishee order on a bank with respect to a debt, being an amount standing to the credit of a judgment debtor
in a deposit account, the garnishee pays to the registrar the whole or any part of the
debt attached; and
(b) the condition, or one of the conditions, applicable to the account is that a deposit book must be produced before money is withdrawn,
the garnishee may, at the time of payment of that amount to the registrar, by instrument in writing signed by an officer of the bank, require the registrar
to
to retain the amount so paid for any specified period not exceeding two months commencing on the date of payment thereof.
(5) Where—
(a) a registrar is required under subsection (4) by a garnishee to retain an amount for a period specified under that subsection; and (b) the garnishee during that period makes application for an order under this sub section on the ground that the garnishee has acted with reasonable diligence in relation thereto but nevertheless, because of the production of a current deposit book relating to that amount or any part thereof, has (whether during or before that period) paid to the judgment debtor the whole or any part of the debt attached or otherwise dealt with the debt attached so as to satisfy, as between the garnishee and the judgment debtor, the whole or any part of the debt attached,
the Court may, if it thinks fit, order the registrar to repay that amount or any part thereof to the garnishee.
(6) Where a registrar is required under sub
section (4) by a garnishee to retain an amount for
trar shall not pay that amount or any part thereof a period specified under that subsection, the regis to the judgment creditor— (a) until after—
(i) the garnishee, by instrument in writing signed by an officer of the bank, informs the registrar that, or the registrar has other information satisfying him that, a current deposit book relating to that amount or any
part
part thereof has, during that period, come into the possession of the garnishee at the place of keeping of the account to the credit of which the amount was standing; or
(ii) the expiration of that period,
whichever first occurs; and
(b) unless he is satisfied, on such information as is available to him, that no application made during that period by the garnishee for an order under subsection (5) in relation to that amount or any part thereof is still pending, and where that amount or any part thereof is ordered to be repaid to the garnishee under sub section (5), the balance (if any) only is payable to the judgment creditor.
(q)
(i)
by inserting in section 105 (1) after the word "payment" where secondly occurring the words "(subject to section 103)";
(ii)
by omitting from section 105 (2) the word "Payment" and by inserting instead the words "Subject to subsection (3), payment";
(iii)
by inserting after section 105 (2) the following subsection :—
(3) Where any amount is ordered to be repaid to a garnishee under section 103 (5 )—
(a)
the payment of that amount by the garnishee does not, and shall be deemed never to have, satisfied the judgment debt; and
(b)
this Division applies to and in respect of the judgment debt as if the garnishee had never made that payment.
(r)
(r) (i) by omitting from section 122 (3) the words "The rules" and by inserting instead the words "Without affecting the generality of section 161 (3) , the rules";
(ii) by omitting from section 122 (3) the word "otherwise" and by inserting instead the words "by reference to such other factors relating to the action as are specified in the rules";
(s) (i) by omitting from section 124 the matter "$100" wherever occurring and by inserting instead the words "the prescribed amount";
(ii) by inserting after section 124 (3) the following subsection: —
(4) In this section, "prescribed amount" means—
(a)
in relation to an action commenced before the commencement of section 3 (s) of the District Court (Amend ment) Act, 1975—$100; or
(b)
in relation to an action commenced after the commencement of section 3 (s) of that Act—$250.
(t) by inserting after section 127 (5) the following subsection :—
(6) This section does not apply to or in respect of a judgment after a trial without a jury in an action commenced after the commencement of section 3 (t) of the District Court (Amendment) Act, 1975.
(u)
(i)
by inserting in section 128 (1) after the word "action" where secondly occurring the words "commenced before the commencement of sec tion 3 (u) of the District Court (Amendment) Act, 1975";
(ii)
(ii) by inserting in section 128 (2) after the word
"action" where firstly occurring the words "commenced before the commencement of section 3 (u) of the District Court (Amendment) Act, 1975,";
(iii) by inserting after section 128 (2) the following
subsection :—
(2A) An appeal shall, subject to sections 129 and 130, lie to the Supreme Court from any ruling, order, direction or decision of the Judge in an action commenced after the com mencement of section 3 (u) of the District Court (Amendment) Act, 1975.
(iv) by omitting from section 128 (3) the matter
"(1) or (2 )" and by inserting instead the
matter " (1) , (2) or (2A)";
(v) by inserting in section 128 (4) after the matter " ( 2 ) " the words "or (2A) in an action in
which the relief sought or granted includes an
injunction under section 46";(vi) by omitting from section 128 (6) the matter
"(1) or (2 )" and by inserting instead the
matter " (1) , (2) or ( 2 A ) " ;
(v) (i) by inserting in section 129 after the matter
" ( 1 ) " the matter "or (2A)";
(ii) by omitting from section 129 the words "of the Court";
(w) (i) by inserting in section 130 (1) after the matter
"128 (1 )" the matter "or ( 2 A ) " ;
(ii)
(ii) by omitting from section 130 (1) (a) the words "of $1,000 or upwards—as of right" and by inserting instead the following words :—
"of—
(i) in the case of an action commenced before the commencement of section 3 (w) of the District Court (Amendment) Act, 1975—$1,000 or upwards; or
(ii) in the case of an action commenced after the commencement of section 3 (w) of that Act—$3,000 or upwards,
as of right";
(x) by omitting section 143 and by inserting instead the following section :—
143. (1) Where the Supreme Court is of opinion that any proceedings that are pending in the Supreme Court could properly have been com menced as an action in the Court, the Supreme Court may, if it thinks fit, on the application of any party or of its own motion, order that those pro ceedings be transferred to the Court sitting at such proclaimed place as the Supreme Court thinks fit.
(2) Where the Supreme Court is of opinion that any proceedings that are pending in the Supreme Court could properly have been com menced as proceedings under Subdivision 2 of Division 8 in the Court, the Supreme Court may, if it thinks fit, on the application of any party or of its own motion, order that those proceedings be transferred to the Court sitting at such proclaimed place as the Supreme Court thinks fit.
(y)
(y) (i) by inserting in section 144 (1) (a) after the
word "pleadings" the words "(if any)";
(ii) by omitting from section 144 (1) (a) the words "those copies" and by inserting instead the words "that copy or those copies, as the case may be,";
(iii) by inserting in section 144 (1) (a) after the word "lodge" where thirdly occurring the words "it or";
(iv) by omitting from section 144 (1) (b) the word "copies" and by inserting instead the words "copy or copies, as the case may be, has or";
(v) by omitting from section 144 (1) (b) (ii) the words "to try the issues raised by the pleadings";
(vi) by inserting in section 144 (1) (c) (ii) after the word "pleadings" the words "(if any)";
(vii) by inserting after section 144 (2) the following subsection :—
(3) Where proceedings become, by virtue of subsection (1) (b) (ii), an action in the Court—
(a)
the action shall, for the purposes only of section 76, be deemed to have been commenced at the time the proceedings
so became an action and not at the time of the commencement of the proceedings in the Supreme Court; and
(b)
section 76 (2) applies to the action as if it had been brought for an amount for which it would have been author ised by this Act to be brought had the proceedings been commenced in the Court and not in the Supreme Court.
(z)
(z)
by omitting section 150 (2) and by inserting instead the following subsection :—
(2) Regulations may be made under this section so as to apply differently according to such factors as may be specified in the regulations.
(aa) (i) by inserting after section 161 (1) (a) the
following paragraph :—
(ai) prescribing the extent to which, and the manner in which, the provisions of this Act and the rules shall apply to and in respect of proceedings pending immediately before the commencement of this Act in a District Court established under the District Courts Act, 1912;
(ii) by inserting in section 161 (1) (1) after the words "evidence may be given" the words "(including the administration of oaths to and the taking of the evidence of witnesses in or out of New South Wales)";
(iii) by omitting section 161 (3) and by inserting instead the following subsection :—
(3) Rules may be made so as to apply differently according to such factors as may be specified in the rules.
(bb) by omitting from section 167 the words "Subject to section 194,";
(cc) by omitting section 171 (4) and by inserting instead the following subsection : —
(4) Regulations may be made under this section so as to apply differently according to such factors as may be specified in the regulations.
(dd)
(dd) by omitting section 175 and by inserting instead the following section :—
175. (1) Where another Act or an instrument under another Act provides, or has the effect of providing, that an appeal made to the Court in its criminal and special jurisdiction may or shall be heard and disposed of by the Court sitting at a place specified in the Act or instrument, or at a place of a class or description so specified, nothing in this Part prevents that appeal from being heard and disposed of at that or such a place, whether or not it is an appointed place.
(2) An appeal made to the Court in its criminal and special jurisdiction, other than an appeal to which subsection (1) applies, may be heard and disposed of by the Court sitting at any proclaimed place, whether or not it is an appointed place.
(ee) (i) by inserting in section 179 (1) (a) after the
matter "rules;" the word "and";
(ii) by omitting section 179 (1) ( b ) ;
(ff) by omitting section 194 and by inserting instead the following section :—
194. (1) Where any proceedings would, had
section 3 (ff) of the District Court (Amendment)Act, 1975, not taken effect, have been continued,
that provision in a former Court, those proceedings heard or disposed of after the commencement of shall be continued, heard or disposed of, respec tively, in the new Court in its criminal and special jurisdiction, sitting at the place at which the former Court was sitting.
(2) Nothing in subsection (1) affects the powers of the Supreme Court under section 577 of the Crimes Act 1900.
(3)
(3 ) Where a question of law was submitted by a Chairman of Quarter Sessions to—
(a) the Court of Criminal Appeal under section 5B of the Criminal Appeal Act, 1912, and
the matter was pending in that Court immediately before the commencement of this subsection, that section; or
(b) the Supreme Court under section 131A of the Justices Act, 1902, and the matter was pending in that Court immediately before the commencement of this subsection, that section,
shall apply to and in respect of the matter as if the question had been submitted by a Judge of the new Court.
(4) Any act, matter or thing that could, had section 3 (ff) of the District Court (Amend ment) Act, 1975, not taken effect, have been done or suffered by a person in his capacity as a Chair man of Quarter Sessions may be done or suffered by him in his capacity as a Judge of the new Court.
(5) A reference to, or required to be read and construed as a reference to, the new Court in its criminal and special jurisdiction in—
(a) sections 5c and 5D of the Criminal Appeal
Act, 1912, as amended by the District Court (Amendment) Act, 1975, includes; and (b)
sections 5c and 5D of the Criminal Appeal Act, 1912, as in force before the commence ment of section 3 (ff) of the District Court (Amendment) Act, 1975, shall, as from the commencement of this Act, be deemed to have included,
a
a reference to—
(c) a former Court in existence before the commencement of this Act; and (d) a former Court continued in existence under the section which this section replaces.
4. The Supreme Court Act, 1970, is amended—
(a) by omitting section 48 (1) (a) (iv) and by inserting instead the following subparagraph :— (iv) the District Court or a Judge of the District Court;
(b)
by omitting section 75A (2) (d) and by inserting instead the following paragraph :—
(d) a trial—
(i) with or without a jury in an action commenced before the commence ment of section 4 of the District Court (Amendment) Act, 1975; or
(ii) with a jury in an action commenced after the commencement of that section,
in the District Court. (c)
by omitting section 105 (b) and by inserting instead the following paragraph :—
(b) after a trial—
(i) with or without a jury in an action commenced before the commence ment of section 4 of the District Court (Amendment) Act, 1975; or
(ii)
(ii) with a jury in an action commenced after the commencement of that section,
in the District Court.
5. The Criminal Appeal Act, 1912, is amended—
(a)
(i)
by omitting from section 5A (2) (a) the words "or chairman of quarter sessions";
(ii)
by omitting from section 5A (2) (b) the words "or chairman";
(b)
(i)
by omitting from section 5B the words "chair man of quarter sessions" and by inserting instead the words "Judge of the District Court";
(ii)
by omitting from section 5B the words "a court of quarter sessions" and by inserting instead the words "the District Court in its criminal and special jurisdiction";
(iii)
by omitting from section 5B the words "the Court of Quarter Sessions" and by inserting instead the words "the District Court";
(c)
by omitting from section 5c the words "a court of quarter sessions" and by inserting instead the words "the District Court";
(d) by omitting from section 5D the words "any court of quarter sessions" and by inserting instead the
words "the District Court".
(1) A direction given under section 32 (3) (a) of the District Court Act, 1973, and in force immediately before the commencement of this subsection, and an order made under section 32 (3) of that Act in relation to the direction, shall be deemed to have been given and made, respectively, under section 32 (2A) of that Act, as amended by this Act.
6.
(2)
(2) Section 91 (3) of the District Court Act, 1973, as amended by this Act, applies to and in respect of a judgment debtor in respect of an action commenced or disposed of before or after the commencement of this subsection.
(3) An examination summons issued before the com mencement of this subsection shall, after that commencement, be as valid as if section 91 (3) of the District Court Act, 1973, as amended by this Act, had been in force at the time of its issue.
(4) Section 92 (7) (a) of the District Court Act, 1973, as amended by this Act, applies to and in respect of a judgment debtor in respect of an action commenced or disposed of before or after the commencement of this subsection.
(5) Sections 103 and 105 of the District Court Act, 1973, as amended by this Act, apply to and in respect of a judgment debt in respect of an action commenced or disposed of before or after the commencement of this subsection.
(6) A rule made before the commencement of this subsection shall be, and shall be deemed always to have been, as valid as if section 161 (1) (ai) of the District Court Act, 1973, as amended by this Act, had been in force as from the commencement of the District Court Act, 1973, but nothing in this subsection affects any judgment or decision given or made in any court before the commencement of this subsection.
(7) Section 143 of the District Court Act, 1973, as amended by this Act, applies to and in respect of proceedings
commenced before or after the commencement of this
subsection.
PARLIAMENTARY
0
0
0