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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Courts Legislation Amendment Bill
2006
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Acts 2
4 Repeal of Act 2
Schedule 1 Amendment of Civil Procedure Act 2005 No 28 3
Schedule 2 Amendment of Criminal Procedure Act 1986 No 209 4
Schedule 3 Amendment of Crown Prosecutors Act 1986 No 208 9
Schedule 4 Amendment of District Court Act 1973 No 9 10
Schedule 5 Amendment of Judges' Pensions Act 1953 No 41 12
Schedule 6 Amendment of Land and Environment Court Act 1979
No 204 13
Schedule 7 Amendment of Legal Profession Act 2004 No 112 14
Schedule 8 Amendment of Local Courts Act 1982 No 164 15
Schedule 9 Amendment of Public Defenders Act 1995 No 28 17
Schedule 10 Amendment of Public Trustee Act 1913 No 19 18
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2006
New South Wales
Courts Legislation Amendment Bill
2006
Act No , 2006
An Act to amend certain Acts with respect to courts, court procedures, judges'
pensions and other matters.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Courts Legislation Amendment Bill 2006
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Courts Legislation Amendment Act 2006.
2 Commencement
(1) This Act commences on the date of assent except as provided by
subsection (2).
(2) Schedules 2 and 5 commence on a day or days to be appointed by
proclamation.
3 Amendment of Acts
The Acts specified in the Schedules are amended as set out in those
Schedules.
4 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
Page 2
Courts Legislation Amendment Bill 2006
Amendment of Civil Procedure Act 2005 No 28 Schedule 1
Schedule 1 Amendment of Civil Procedure Act 2005
No 28
(Section 3)
[1] Section 64 Amendment of documents generally
Insert "as" after "made a party" in section 64 (4).
[2] Schedule 6 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Courts Legislation Amendment Act 2006, to the extent that it
amends this Act
[3] Schedule 6, Part 3
Insert after Part 2:
Part 3 Provisions relating to dismissal of
proceedings
12 Dismissal of proceedings
(1) Any proceedings taken to have been dismissed under clause 18 of
the Civil Procedure Regulation 2005 before the repeal of that
clause by the Civil Procedure Amendment (Savings and
Transitional) Regulation 2005 are taken to have never been
dismissed under that clause and may be continued accordingly.
(2) Subclause (1) does not apply to any such proceedings to the
extent to which they relate to a cause of action for which relief
has been claimed in fresh proceedings, as referred to in
section 91.
(3) The District Court or Local Court, as the case may be, may make
such orders as are necessary to enable the proceedings to be
continued.
Page 3
Courts Legislation Amendment Bill 2006
Schedule 2 Amendment of Criminal Procedure Act 1986 No 209
Schedule 2 Amendment of Criminal Procedure
Act 1986 No 209
(Section 3)
[1] Section 182 Written pleas
Omit "5" from section 182 (3). Insert instead "7".
[2] Section 213 When professional costs may be awarded to accused
persons
Insert "professional" after "pay" in section 213 (1).
[3] Section 213 (3)
Omit section 213 (3) and (4). Insert instead:
(3) Without limiting the operation of subsection (1), a court may
order that the prosecutor in summary proceedings pay
professional costs if the matter is dismissed because:
(a) the prosecutor fails to appear or both the prosecutor and the
accused person fail to appear, or
(b) the matter is withdrawn or the proceedings are for any
reason invalid.
[4] Section 214 Limit on award of professional costs to accused person
against prosecutor acting in public capacity
Insert "professional" after "award" in section 214 (1) (d).
[5] Section 215 When costs may be awarded to prosecutor
Insert after section 215 (1):
(1A) The court may not order the accused person to pay professional
costs referred to in subsection (1) (a) if the conviction or order
concerned relates to an offence:
(a) for which a penalty notice, within the meaning of section
20 of the Fines Act 1996, has been issued, and
(b) in respect of which the person has elected to have the
matter dealt with by a court, and
(c) in respect of which the person has lodged a written plea of
guilty, in accordance with section 182, not later than 7 days
before the date on which the person is required to first
attend before the court.
(1B) Subsection (1A) does not apply in relation to proceedings for an
offence against the Occupational Health and Safety Act 2000, the
Page 4
Courts Legislation Amendment Bill 2006
Amendment of Criminal Procedure Act 1986 No 209 Schedule 2
regulations under that Act or the associated occupational health
and safety legislation within the meaning of that Act.
[6] Section 249 Procedure where prosecutor does not, but accused person
does, appear
Insert after section 249 (2):
(3) Division 4 applies to any award of costs arising from proceedings
being dealt with under subsection (1).
[7] Section 253 Court may order payment of costs
Omit the section.
[8] Section 254 Enforcement of fines and orders
Insert "under Division 4" after "for costs".
[9] Chapter 4, Part 5, Division 4
Insert after Division 3:
Division 4 Costs
257A Definition
In this Division:
professional costs means costs (other than court costs) relating to
professional expenses and disbursements (including witnesses'
expenses) in respect of proceedings before a court.
257B When costs may be awarded to prosecutor
A court may, in and by a conviction or order, order an accused
person to pay to the registrar of the court, for payment to the
prosecutor, such costs as the court specifies or, if the conviction
or order directs, as may be determined under section 257G, if:
(a) the court convicts the accused person of an offence, or
(b) the court makes an order under section 10 of the Crimes
(Sentencing Procedure) Act 1999 in respect of an offence.
257C When professional costs may be awarded to accused person
(1) A court may at the end of proceedings under this Part order that
the prosecutor pay professional costs to the registrar of the court,
for payment to the accused person, if the matter is dismissed or
withdrawn.
Page 5
Courts Legislation Amendment Bill 2006
Schedule 2 Amendment of Criminal Procedure Act 1986 No 209
(2) The amount of professional costs is to be such professional costs
as the court specifies or, if the order directs, as may be determined
under section 257G.
(3) Without limiting the operation of subsection (1), a court may
order that the prosecutor in proceedings under this Part pay
professional costs if:
(a) the accused person is discharged as to the offence the
subject of the proceedings, or
(b) the matter is dismissed because the prosecutor fails to
appear, or
(c) the matter is withdrawn or the proceedings are for any
reason invalid.
257D Limit on award of professional costs against a prosecutor acting
in a public capacity
(1) Professional costs are not to be awarded in favour of an accused
person in proceedings under this Part unless the court is satisfied
as to one or more of the following:
(a) that the investigation into the alleged offence was
conducted in an unreasonable or improper manner,
(b) that the proceedings were initiated without reasonable
cause or in bad faith or were conducted by the prosecutor
in an improper manner,
(c) that the prosecutor unreasonably failed to investigate (or to
investigate properly) any relevant matter of which it was
aware or ought reasonably to have been aware and which
suggested either that the accused person might not be
guilty or that, for any other reason, the proceedings should
not have been brought,
(d) that, because of other exceptional circumstances relating
to the conduct of the proceedings by the prosecutor, it is
just and reasonable to award professional costs.
(2) This section:
(a) does not apply to the awarding of costs against a
prosecutor acting in a private capacity, and
(b) does not apply in relation to proceedings for an offence
against the Occupational Health and Safety Act 2000, the
regulations under that Act or the associated occupational
health and safety legislation within the meaning of that
Act.
Page 6
Courts Legislation Amendment Bill 2006
Amendment of Criminal Procedure Act 1986 No 209 Schedule 2
(3) An officer of an approved charitable organisation under the
Prevention of Cruelty to Animals Act 1979 is taken not to be
acting in a private capacity if the officer acts as the prosecutor in
any proceedings under that Act or section 9 (1) of the Veterinary
Practice Act 2003.
257E Public officers and police officers not personally liable for costs
(1) A public officer or a police officer is entitled to be indemnified
by the State for any costs awarded against the officer personally
as the prosecutor in any criminal proceedings in a court in which
the officer is acting in his or her capacity as a public officer or a
police officer.
(2) In this section:
public officer does not include a councillor or an employee of a
council or any other person prescribed by the regulations for the
purposes of this section.
257F Costs on adjournment
(1) A court may in any proceedings under this Part, at its discretion
or on the application of a party, order that one party pay costs if
the matter is adjourned.
(2) An order may be made only if the court is satisfied that the other
party has incurred additional costs because of the unreasonable
conduct or delays of the party against whom the order is made.
(3) The order must specify the amount of costs payable or may
provide for the determination of the amount at the end of the
proceedings.
(4) An order may be made whatever the result of the proceedings.
257G Calculation of costs
The professional or other costs payable by a prosecutor or
accused person in accordance with an order directing that the
amount of costs is to be determined under this section are to be
determined:
(a) by agreement between the prosecutor and accused person,
or
(b) if no such agreement can be reached, in accordance with
Division 11 of Part 3.2 of the Legal Profession Act 2004
(with or without modifications prescribed by the
regulations).
Page 7
Courts Legislation Amendment Bill 2006
Schedule 2 Amendment of Criminal Procedure Act 1986 No 209
[10] Schedule 2 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Courts Legislation Amendment Act 2006, to the extent that it
amends this Act
[11] Schedule 2, Part 11
Insert after Part 10:
Part 11 Provisions consequent on enactment of
Courts Legislation Amendment Act 2006
49 Definition
In this Part:
amending Act means the Courts Legislation Amendment
Act 2006.
50 Amendments
(1) An amendment made to this Act by the amending Act does not
extend to proceedings instituted before the commencement of
that amendment.
(2) Such proceedings may be dealt with as if the amendment had not
commenced.
Page 8
Courts Legislation Amendment Bill 2006
Amendment of Crown Prosecutors Act 1986 No 208 Schedule 3
Schedule 3 Amendment of Crown Prosecutors
Act 1986 No 208
(Section 3)
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):
part-time Crown Prosecutor means a Crown Prosecutor
exercising his or her functions as a Crown Prosecutor on a
part-time basis, as provided by an agreement referred to in
section 4 (3A).
[2] Section 4 Crown Prosecutors
Insert after section 4 (3):
(3A) A Crown Prosecutor may, by agreement in writing entered into
with the Director of Public Prosecutions, exercise his or her
functions as a Crown Prosecutor on a part-time basis.
[3] Section 14 Savings and transitional provisions
Insert after section 14 (7):
(8) Section 4 (3A) applies to a Crown Prosecutor appointed before
the commencement of that subsection.
(9) Until a relevant determination is made and takes effect under the
Statutory and Other Offices Remuneration Act 1975, a part-time
Crown Prosecutor is entitled to be paid in accordance with the
determination in force for the time being for Crown Prosecutors,
but on a pro rata basis (according to time spent in service), as
calculated by the Attorney General.
Page 9
Courts Legislation Amendment Bill 2006
Schedule 4 Amendment of District Court Act 1973 No 9
Schedule 4 Amendment of District Court Act 1973
No 9
(Section 3)
[1] Section 18FB Powers of Judicial Registrar
Omit section 18FB (2).
[2] Section 18FB (3)
Omit "Subject to subsection (2), a". Insert instead "A".
[3] Section 127 Right of appeal to Supreme Court
Insert "or a Judicial Registrar's" after "Judge's" in section 127 (1).
[4] Schedule 3 Savings and transitional provisions consequent on
amendments to this Act
Insert at the end of clause 1 (1):
Courts Legislation Amendment Act 2006, to the extent that it
amends this Act
[5] Schedule 3, Part 8
Insert after Part 7:
Part 8 Provisions consequent on enactment of
Courts Legislation Amendment Act 2006
11 Application of amendments to existing interlocutory orders
Section 127 (1), as amended by the Courts Legislation
Amendment Act 2006, extends to an interlocutory order made in
proceedings that were instituted before the commencement of
that amendment but not finally determined before that
commencement.
12 Proceedings to set aside or vary judgment or order of Judicial
Registrar
(1) The amendments made to section 18FB by the Courts Legislation
Amendment Act 2006 do not extend to an application to set aside
or vary a judgment or order of the Judicial Registrar that has been
made before the commencement of those amendments but not
finally determined before the commencement of those
amendments.
Page 10
Courts Legislation Amendment Bill 2006
Amendment of District Court Act 1973 No 9 Schedule 4
(2) Such an application may be dealt with as if those amendments
had not commenced.
Page 11
Courts Legislation Amendment Bill 2006
Schedule 5 Amendment of Judges' Pensions Act 1953 No 41
Schedule 5 Amendment of Judges' Pensions
Act 1953 No 41
(Section 3)
[1] Section 10 Payment of pensions
Omit "monthly" from section 10 (1) (b). Insert instead "fortnightly".
[2] Schedule 1 Savings and transitional provisions
Insert at the end of clause 1 (1):
Courts Legislation Amendment Act 2006, to the extent that it
amends this Act
Page 12
Courts Legislation Amendment Bill 2006
Amendment of Land and Environment Court Act 1979 No 204 Schedule 6
Schedule 6 Amendment of Land and Environment
Court Act 1979 No 204
(Section 3)
[1] Section 69 Costs
Omit "the Chief" from section 69 (8). Insert instead "a".
[2] Schedule 3 Savings, transitional and other provisions
Insert after clause 6:
7 Provisions consequent on enactment of Courts Legislation
Amendment Act 2006
An amendment made to this Act by the Courts Legislation
Amendment Act 2006 extends to proceedings before the Court
that were instituted or that the Court started to hear before the
commencement of that amendment but had not finally
determined before that commencement.
Page 13
Courts Legislation Amendment Bill 2006
Schedule 7 Amendment of Legal Profession Act 2004 No 112
Schedule 7 Amendment of Legal Profession
Act 2004 No 112
(Section 3)
Section 353 Application for assessment of party/party costs
Insert "except as provided by section 257G of the Criminal Procedure Act
1986" after "court" in section 353 (3).
Page 14
Courts Legislation Amendment Bill 2006
Amendment of Local Courts Act 1982 No 164 Schedule 8
Schedule 8 Amendment of Local Courts Act 1982
No 164
(Section 3)
[1] Section 13 Appointments for limited tenure
Omit "(not being a term continuing past the date on which the Magistrate will
attain the age of 72 years)" from section 13 (1) (a).
[2] Section 13 (2)
Insert after section 13 (1):
(2) A person may be so appointed even though the person has
reached the age of 72 years (or will have reached that age before
the term of office expires), but may not be so appointed for any
term of office that extends beyond the day on which he or she
reaches the age of 75 years.
Note. Section 44 (3) of the Judicial Officers Act 1986 provides that a
Magistrate must retire on reaching the age of 72 years.
[3] Section 21 Additional terms of office
Omit "(not being a period continuing past the date on which the former
Magistrate will attain the age of 72 years)" from section 21 (1).
[4] Section 21 (1A)
Insert after section 21 (1):
(1A) A person may be so reinstated even though the person has
reached the age of 72 years (or will have reached that age before
the period of reinstatement expires), but may not be so reinstated
for any period that extends beyond the day on which he or she
reaches the age of 75 years.
[5] Section 21, note
Insert at the end of the section:
Note. Section 44 (3) of the Judicial Officers Act 1986 provides that a
Magistrate must retire on reaching the age of 72 years.
[6] Schedule 1 Savings and transitional provisions
Insert at the end of clause 8 (1):
Courts Legislation Amendment Act 2006, but only in relation to
the amendments made to this Act
Page 15
Courts Legislation Amendment Bill 2006
Schedule 8 Amendment of Local Courts Act 1982 No 164
[7] Schedule 1, clause 18
Insert after clause 17:
18 Additional terms of office
The amendments made to sections 13 and 21 by the Courts
Legislation Amendment Act 2006 apply to a person who reached
the age of 72 years before the commencement of those
amendments.
Page 16
Courts Legislation Amendment Bill 2006
Amendment of Public Defenders Act 1995 No 28 Schedule 9
Schedule 9 Amendment of Public Defenders
Act 1995 No 28
(Section 3)
[1] Section 3 Definitions
Insert in alphabetical order:
part-time Public Defender means a Public Defender exercising
his or her functions as a Public Defender on a part-time basis, as
provided by an agreement referred to in section 6 (2A).
[2] Section 6 Appointment of Public Defenders
Insert after section 6 (2):
(2A) A Public Defender may, by agreement in writing entered into
with the Senior Public Defender, exercise his or her functions as
a Public Defender on a part-time basis.
[3] Schedule 3 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Courts Legislation Amendment Act 2006, to the extent that it
amends this Act
[4] Schedule 3, Part 3
Insert after Part 2:
Part 3 Provision consequent on enactment of
Courts Legislation Amendment Act 2006
6 Part-time Public Defender
(1) Section 6 (2A) applies to a Public Defender appointed before the
commencement of that subsection.
(2) Until a relevant determination is made and takes effect under the
Statutory and Other Offices Remuneration Act 1975, a part-time
Public Defender is entitled to be paid in accordance with the
determination in force for the time being for Public Defenders,
but on a pro rata basis (according to time spent in service), as
calculated by the Attorney General.
Page 17
Courts Legislation Amendment Bill 2006
Schedule 10 Amendment of Public Trustee Act 1913 No 19
Schedule 10 Amendment of Public Trustee Act 1913
No 19
(Section 3)
[1] Section 11 Property vested and powers transferred
Omit "the court" wherever occurring in section 11 (1).
Insert instead "the Court".
[2] Section 36G
Omit the section. Insert instead:
36G Investment in common fund of money paid into court
(1) Money paid into court that has subsequently been paid to the
Public Trustee for payment into the common fund must be so
paid by the Public Trustee.
(2) The money must be paid into the common fund within one day
after the date of the receipt of the money by the Public Trustee.
(3) On demand by any registrar of the court in respect of which the
relevant money was paid under subsection (1), the Public Trustee
must repay the money together with interest on the money
calculated in accordance with section 36A (3) and (4).
(4) In this section, court means the following:
(a) the Supreme Court,
(b) the District Court,
(c) the Dust Diseases Tribunal,
(d) a Local Court.
[3] Section 55 Reciprocity where deceased domiciled in other States or New
Zealand
Omit "the court". Insert instead "the Court".
Page 18
Courts Legislation Amendment Bill 2006
Amendment of Public Trustee Act 1913 No 19 Schedule 10
[4] Section 56 Where deceased domiciled in New South Wales and
administration granted in other States or New Zealand
Omit "the court" from section 56 (1). Insert instead "the Court".
Page 19
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