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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Civil Liability Amendment (Offender
Damages Trust Fund) Bill 2005
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Civil Liability Act 2002 No 22 2
Schedule 1 Amendments 3
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, , 2005
New South Wales
Civil Liability Amendment (Offender
Damages Trust Fund) Bill 2005
Act No , 2005
An Act to amend the Civil Liability Act 2002 to provide for the satisfaction of
personal injury damages claims by victims of crime from certain damages awarded
to offenders; and for other purposes.
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 Civil Liability Amendment (Offender Damages Trust Fund) Bill 2005
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Civil Liability Amendment (Offender Damages Trust
Fund) Act 2005.
2 Commencement
This Act commences on the date of assent.
3 Amendment of Civil Liability Act 2002 No 22
The Civil Liability Act 2002 is amended as set out in Schedule 1.
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Civil Liability Amendment (Offender Damages Trust Fund) Bill 2005
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Part 2A, Division 6
Insert after Division 5 of Part 2A:
Division 6 Offender damages trust funds
26K Interpretation
(1) In this Division:
award of damages means an award of damages by a court
(including such an award pursuant to judgment entered in
accordance with an agreement between the parties to a claim for
damages).
offender means a person to whom an award of offender damages
is made.
offender damages means personal injury damages awarded
pursuant to an award to which this Part applies.
Note. For the purposes of this Division, this Part has an extended
application. See Part 7 of Schedule 1.
victim claim means a claim for personal injury damages in
respect of:
(a) an injury to a person caused by conduct of an offender that,
on the balance of probabilities, constitutes an offence, or
(b) the death of a person caused by or resulting from an injury
to the person caused by conduct of an offender that, on the
balance of probabilities, constitutes an offence.
victim trust fund means offender damages awarded to an
offender that are held on trust under this Division.
(2) The definition of victim claim in this section:
(a) operates whether or not a person whose conduct is alleged
to constitute an offence has been, will be or is capable of
being proceeded against or convicted of any offence
concerned, and
(b) extends to conduct of a person that would have constituted
an offence if the person had not been suffering from a
mental illness at the time of the conduct (whether or not the
person was acquitted of an offence concerning that
conduct by reason of mental illness or was found by a court
not to be fit to be tried for an offence concerning that
conduct by reason of such an illness).
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Civil Liability Amendment (Offender Damages Trust Fund) Bill 2005
Schedule 1 Amendments
26L Offender damages to be held in trust as victim trust fund
(1) The amount of any offender damages awarded to an offender is
to be held in trust for the offender by the protected defendant
liable to pay those damages and may be paid out only as
authorised by this Division.
(2) Offender damages held by a protected defendant in trust for an
offender under this Division comprise a victim trust fund for
victims of the offender. The protected defendant is responsible
for the fund.
(3) This section does not affect (and is subject to) any obligation
imposed on the protected defendant by or under an enactment of
the State or the Commonwealth to pay to some other person
money owed or due to or held on account of the offender.
Note. Section 26T also provides an exception to this section for legal
costs.
(4) An amount deducted or withheld from offender damages under
Division 5 (Victims support payments owed by offender) is not
required to be held in trust under this section.
(5) An amount held in a victim trust fund for victims of an offender
is:
(a) not available for the payment of a creditor of the offender,
and
(b) not liable to be attached or taken in execution at the
instance of a creditor of the offender.
26M Victim trust fund available to satisfy eligible victim claims
(1) A victim trust fund is available to satisfy victim claims against
the offender concerned as provided by this Division but only if
the claim is eligible to be satisfied from the victim trust fund as
provided by this section.
(2) A victim claim is eligible to be satisfied from a victim trust fund
only if within the eligibility period for the victim trust fund:
(a) the person commences proceedings on the claim in a court
(or proceedings by the person on the claim are pending in
a court at the beginning of the eligibility period), and
(b) the person gives the protected defendant responsible for
the victim trust fund notice in writing of those proceedings
together with such details of those proceedings as the
protected defendant may request, and
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Civil Liability Amendment (Offender Damages Trust Fund) Bill 2005
Amendments Schedule 1
(c) the person certifies to the court before which those
proceedings are taken that the person is making the claim
as a claim that is eligible to be satisfied from the victim
trust fund.
(3) The eligibility period for a victim trust fund comprising offender
damages awarded to an offender is the period of 6 months
following the date (the award date for those damages) on which
the claim for those damages is finally determined by a court
award of those damages.
(4) A claim is not finally determined by a court until the time for
appealing against the award of damages expires with no appeal
having been made or when all appeals against the award have
been withdrawn or finally determined.
(5) The protected defendant responsible for a victim trust fund must
give the registrar of each court in which a victim claim may be
brought notice of each victim claim of which the protected
defendant is given notice under this section.
26N Notice to persons entitled to make victim claim
(1) The protected defendant responsible for a victim trust fund must,
within 28 days after the award date for the damages concerned,
send to each person who appears (from any official records
reasonably available to the protected defendant) to have a victim
claim against the offender a notice in writing:
(a) naming the offender and stating that there is a victim trust
fund for victims of the offender, and
(b) specifying the eligibility period for that victim trust fund,
and
(c) stating that a victim claim made within the eligibility
period for the victim trust fund may be eligible to be
satisfied from the victim trust fund.
(2) The notice is to be sent to a person at the address of the person
last known to the protected defendant or as shown in official
records reasonably available to the protected defendant.
(3) The protected defendant may also publish such a notice in the
Gazette.
(4) To remove doubt, victim claim in this section includes a victim
claim that can be made as a result of section 26P
(Commencement of victim claims proceedings despite expiry of
limitation period).
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Civil Liability Amendment (Offender Damages Trust Fund) Bill 2005
Schedule 1 Amendments
26O Provision of information to persons entitled to claim
(1) A protected defendant must, in response to a request made during
or within 1 month after the eligibility period for a victim trust
fund by or on behalf of a person who appears to the protected
defendant to be entitled to make a victim claim against the
offender, provide such information as the protected defendant is
reasonably able to provide concerning:
(a) the award of damages to the offender and the amount of the
victim trust fund, and
(b) any other victim claim against the offender that may be
eligible to be satisfied from the victim trust fund and of
which the protected defendant has been given notice under
this Division.
(2) The provision of information by a protected defendant under this
section:
(a) is authorised despite any agreement to which the protected
defendant is a party that would otherwise prohibit or
restrict the disclosure of information concerning an award
of offender damages, and
(b) does not constitute a contravention of any such agreement.
(3) A person to whom information is provided under this section
must not disclose that information to any other person except for
the purposes of or in connection with the taking and
determination of proceedings on a victim claim against the
offender concerned.
Maximum penalty: 50 penalty units.
(4) Proceedings for an offence under this section may be dealt with
summarily before a Local Court.
26P Commencement of victim claims proceedings despite expiry of
limitation period
(1) If there is a victim trust fund for victims of an offender, an action
on a cause of action to recover damages pursuant to a victim
claim against the offender is (despite any provision of the
Limitation Act 1969) maintainable by proceedings on the cause of
action commenced during the eligibility period for the victim
trust fund.
(2) The right and title to damages of a person formerly having such
a cause of action that has been extinguished by the expiration of
a limitation period fixed by or under the Limitation Act 1969 is
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Civil Liability Amendment (Offender Damages Trust Fund) Bill 2005
Amendments Schedule 1
reinstated for the purposes of proceedings on the cause of action
that are commenced during the eligibility period for the victim
trust fund.
(3) However, an award of damages in proceedings commenced
under this section (that could not otherwise be commenced):
(a) has effect only for the purpose of enabling an order to be
made under this Division for the payment of the whole or
a specified part of those damages out of money held in the
victim trust fund concerned, and
(b) cannot otherwise be enforced against the offender
concerned or any property of the offender.
26Q Orders for payment of damages out of money held in trust for
victims of offender
(1) A court that awards damages to a person on a victim claim against
an offender may, if satisfied that the claim is eligible to be
satisfied from a victim trust fund for victims of the offender,
order that the whole or a specified part of those damages is to be
paid out of money held in the victim trust fund.
(2) Before the court orders the payment of damages out of money
held in the victim trust fund, the court must consider:
(a) whether there are or are likely to be other victim claims
eligible to be satisfied from the victim trust fund that may
be ordered to be wholly or partly satisfied by payment
from the victim trust fund, and
(b) the amount of the damages likely to be awarded in respect
of those claims.
(3) In determining the amount of any damages to be ordered to be
paid out of a victim trust fund, a court must ensure that the
amount ordered to be paid:
(a) is fair and reasonable having regard to the existence of
other claims that are eligible to be satisfied from the fund
and that may be ordered to be wholly or partly satisfied by
payment from the fund, and the amounts likely to be
awarded in respect of those claims, and
(b) does not, as a proportion of the amount of the victim trust
fund, exceed the proportion that the damages awarded
represents as a proportion of the total damages likely to be
awarded in respect of all claims eligible to be satisfied
from the fund.
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Civil Liability Amendment (Offender Damages Trust Fund) Bill 2005
Schedule 1 Amendments
(4) A court may defer making an order for the payment of damages
out of a victim trust fund until the court is satisfied that it is able
to make a reasonable assessment of the extent of claims eligible
to be satisfied from the fund.
(5) The payment by a protected defendant of an amount out of a
victim trust fund in accordance with an order of a court under this
section is taken to be a payment made at the direction of the
offender and operates as a discharge, to the extent of the payment,
of any liability of the protected defendant to pay the amount to
the offender concerned as offender damages.
(6) An order of a court under this section is not subject to appeal
except on a question of law.
26R Payment to offender of trust fund surplus
(1) When the protected defendant responsible for a victim trust fund
is satisfied that all claims eligible to be satisfied from the fund
have been finally determined, the protected defendant is to make
a determination of the surplus (if any) in the fund.
(2) A court that awards damages to a person on a victim claim against
an offender may give directions to the protected defendant
concerned in respect of the determination by the protected
defendant of the surplus (if any) in the victim trust fund
concerned.
(3) If a protected defendant responsible for a victim trust fund
determines that there is a surplus in the fund, the protected
defendant must pay that surplus to or at the direction of the
offender concerned.
(4) The surplus in a victim trust fund is the amount that will remain
in the fund after payment out of the fund of the following
amounts:
(a) the amount of all claims eligible to be satisfied from the
fund that are ordered by a court under this Division to be
paid out of the fund,
(b) all amounts payable to the Public Trustee out of the fund.
26S Trust funds to be held by Public Trustee
(1) Money held by a protected defendant in trust under this Division
is to be held by the Public Trustee on behalf of the protected
defendant.
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Civil Liability Amendment (Offender Damages Trust Fund) Bill 2005
Amendments Schedule 1
(2) Interest received by the Public Trustee in respect of the
investment of an amount held by the Public Trustee under this
section is payable to and forms part of the victim trust fund of
which the amount forms part.
(3) A protected defendant may enter into arrangements with the
Public Trustee for the exercise by the Public Trustee on behalf of
the protected defendant of any functions of the protected
defendant under this Division.
(4) The Public Trustee is authorised to enter into any such
arrangements and is authorised to exercise any functions on
behalf of a protected defendant in accordance with those
arrangements.
(5) There is payable to the Public Trustee out of a victim trust fund
the reasonable costs of the Public Trustee incurred in the exercise
in respect of the fund of any functions under this section or any
functions on behalf of a protected defendant pursuant to an
arrangement with the protected defendant under this section.
(6) The Public Trustee is to certify as to the reasonable costs payable
to the Public Trustee under this section and such a certificate is
sufficient authority for the payment of the relevant amounts out
of the victim trust fund concerned.
26T Exception for legal costs
(1) This Division does not require any amount to be held in trust that
is payable by the protected defendant as legal costs under an
order for costs made against the protected defendant or (in the
case of an award of damages that is inclusive of costs) that is
reasonably attributable to the offender's legal costs.
(2) The amount reasonably attributable to the offender's legal costs
in the case of an award of damages that is inclusive of costs is the
amount determined by the protected defendant on the basis of a
bill for those costs provided to the protected defendant by the
legal practitioner concerned.
(3) If the amount determined by the protected defendant as the
amount reasonably attributable to the offender's legal costs is
disputed, the protected defendant is to apply for the assessment
of those costs under the Legal Profession Act 1987 or the Legal
Profession Act 2004 (as if the protected defendant were liable to
pay those costs as a result of an order for the payment of an
unspecified amount of costs made by a court).
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Civil Liability Amendment (Offender Damages Trust Fund) Bill 2005
Schedule 1 Amendments
(4) The costs of a costs assessment for the purposes of this section are
payable:
(a) by the offender (by deduction from the offender damages
concerned), unless paragraph (b) applies, or
(b) by the protected defendant if the amount of the costs as
determined by the costs assessor is at least 10% more than
the amount determined by the protected defendant.
26U Maximum legal costs of eligible claims
(1) The maximum costs for legal services provided to the plaintiff in
connection with a victim claim that is eligible to be satisfied from
a victim trust fund are fixed as follows:
(a) if the amount recovered on the claim does not exceed
$100,000--maximum costs are fixed at 20% of the amount
recovered or $10,000, whichever is greater,
(b) if the amount recovered on the claim exceeds $100,000 but
does not exceed $250,000--maximum costs are fixed at
18% of the amount recovered or $20,000, whichever is
greater,
(c) if the amount recovered on the claim exceeds $250,000 but
does not exceed $500,000--maximum costs are fixed at
16% of the amount recovered or $45,000, whichever is
greater,
(d) if the amount recovered on the claim exceeds $500,000--
maximum costs are fixed at 15% of the amount recovered
or $80,000, whichever is greater.
(2) The regulations may prescribe an amount or percentage to
replace any amount or percentage in subsection (1). When such a
replacement amount or percentage is prescribed, it applies for the
purposes of subsection (1) in place of the amount or percentage
that it replaces.
(3) Before the commencement of the Legal Profession Act 2004,
Division 5B (Maximum costs in personal injury damages
matters) of Part 11 of the Legal Profession Act 1987 applies in
respect of the maximum costs for legal services provided to a
plaintiff in connection with a victim claim that is eligible to be
satisfied from a victim trust fund as if subsections (1) and (2) of
this section were substituted for subsections (1) and (2) of
section 198D of that Act.
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Civil Liability Amendment (Offender Damages Trust Fund) Bill 2005
Amendments Schedule 1
(4) After the commencement of the Legal Profession Act 2004,
Division 9 (Maximum costs in personal injury damages matters)
of Part 3.2 of the Legal Profession Act 2004 applies in respect of
the maximum costs for legal services provided to a plaintiff in
connection with a victim claim that is eligible to be satisfied from
a victim trust fund as if subsections (1) and (2) of this section
were substituted for subsections (1) and (2) of section 338 of that
Act.
(5) The amount recovered on a claim is the full amount of the
damages awarded (not just the amount ordered to be paid from a
victim trust fund).
26V Protection from liability
(1) An act or omission by a person as a public official does not
subject the person personally to any action, liability, claim or
demand if the act or omission was done or omitted to be done in
good faith in the administration or execution of this Division.
(2) In this section:
public official means:
(a) a member of staff of or agent of a protected defendant, or
(b) the Public Trustee, or a member of staff or agent of the
Public Trustee, when the Public Trustee is acting on behalf
of a protected defendant under this Division.
26W Division overrides Part 7 Division 2
Division 2 (Supervision of damages arising out of criminal
conduct by persons suffering from mental illness) of Part 7 does
not apply to damages required to be held in trust under this
Division.
[2] Schedule 1 Savings and transitional provisions
Insert at the end of clause 1 (1):
Civil Liability Amendment (Offender Damages Trust Fund) Act
2005
Page 11
Civil Liability Amendment (Offender Damages Trust Fund) Bill 2005
Schedule 1 Amendments
[3] Schedule 1
Insert after Part 6:
Part 7 Provisions consequent on enactment of
Civil Liability Amendment (Offender
Damages Trust Fund) Act 2005
20 Extended operation of Part 2A Division 6
For the purposes of the operation of Division 6 (Offender
damages trust funds) of Part 2A:
(a) that Part extends to an award of personal injury damages in
proceedings commenced before the commencement of
that Part, and
(b) Parts 5 and 6 of this Schedule do not limit the operation of
that Part.
Note. This clause has the effect of extending the operation of Division 6
of Part 2A beyond the operation of the other provisions of that Part.
21 Amendments extend to existing claims and damages awards
A provision of Division 6 (Offender damages trust funds) of Part
2A extends to:
(a) an award of offender damages made before the
commencement of the provision that has not been satisfied
by the protected defendant concerned as at that
commencement, and
(b) an award of offender damages made after the
commencement of the provision in respect of a claim for
damages that arose before that commencement, and
(c) a victim claim made in respect of a cause of action that
arose before the commencement of the provision.
Page 12
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