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New South Wales
Local Court Bill 2007
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
4 Regulations 3
5 Repeal and savings provisions 3
6 Review of Act 4
Part 2 The Local Court of New South Wales
Division 1 Constitution and jurisdiction
7 Constitution of the Court 5
8 Single Magistrate to constitute the Court 5
9 Jurisdiction 5
10 Divisions of the Court 5
11 State-wide jurisdiction 5
Local Court Bill 2007
Contents
Page
Division 2 Magistrates
12 Composition of the Court 6
13 Appointment and qualifications of Magistrates 6
14 The Chief Magistrate 6
15 Deputy Chief Magistrates 6
16 Acting Magistrates 6
Division 3 Assessors
17 Assessors 7
Division 4 Registrars and other officers
18 Registrars and deputy registrars 7
19 Registrar's functions generally 7
20 Exercise of functions by registrars, assistant registrars and
other officers of the District Court 7
21 References to registrars 8
Division 5 Exercise of jurisdiction
22 Sittings of the Court 8
23 Arrangement of business of the Court 8
24 Contempt of court 9
Division 6 Rules of court and practice notes
25 Local Court Rule Committee 10
26 Rules generally 10
27 Practice notes 11
28 Court may give directions in circumstances not covered by
rules 11
Part 3 Civil jurisdiction
Division 1 Preliminary
29 Definitions 12
Division 2 Jurisdiction
30 Conferral of jurisdiction 12
31 Jurisdictional limits may be exceeded for certain money
claims 13
32 Jurisdiction in proceedings for review of contracts 14
33 Certain jurisdiction excluded 14
34 Jurisdiction when cause of action or defendant outside the
State 14
Contents page 2
Local Court Bill 2007
Contents
Page
Division 3 Proceedings in Small Claims Division
35 Procedure generally in Small Claims Division 15
36 Conciliation of parties 16
37 Costs in Small Claims Division 16
Division 4 Appeals from the Local Court
38 Judgments and orders final 16
39 Appeals as of right 16
40 Appeals requiring leave 16
41 Determination of appeals 17
Division 5 Rules
42 Rules in civil jurisdiction 17
Part 4 Special jurisdiction
Division 1 Preliminary
43 Definitions 19
44 Application of Part 19
Division 2 Commencement of proceedings
45 Commencement of proceedings by application notice 20
46 Commencement of proceedings by police officer or public
officer 20
47 Commencement of private actions 20
48 Application notice to be for one matter only 20
49 Service of application notice 20
50 When proceedings commence 21
51 Time limit for commencement of proceedings 21
52 Relationship to other law or practice 21
Division 3 Hearing of proceedings
53 Time for hearing 21
54 Proceedings to be open to public 22
55 Change of venue 22
56 Right to defend action 22
57 Right of representation 22
58 Conduct of case 22
59 Evidence to be on oath 22
60 Recording of evidence 22
61 Adjournments 23
62 Irregularity 23
63 Power to dispense with rules 23
64 Power to stay proceedings 24
Contents page 3
Local Court Bill 2007
Contents
Page
65 Arrest of respondent during proceedings 24
66 Witnesses and production of evidence 24
67 Warrants of arrest and warrants of commitment 24
68 Enforcement of orders for payment of money 24
69 Costs 25
70 Appeals 25
Division 4 Rules and forms
71 Rules in application proceedings 26
72 Forms 27
Schedule 1 Provisions relating to Magistrates 28
Schedule 2 Provisions relating to Assessors 33
Schedule 3 Provisions relating to Rule Committee 35
Schedule 4 Savings, transitional and other provisions 37
Contents page 4
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, , 2007
New South Wales
Local Court Bill 2007
Act No , 2007
An Act to establish the Local Court of New South Wales; to provide for the
appointment of Magistrates and other officers of the Court; to confer certain
jurisdiction on the Court; to abolish the Local Courts within New South Wales; to
repeal the Local Courts Act 1982; and for other purposes.
See also the Miscellaneous Acts (Local Court) Amendment Act 2007.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Clause 1 Local Court Bill 2007
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Local Court Act 2007.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
(1) In this Act:
acting Magistrate means a person appointed under section 16 to be an
acting Magistrate of the Local Court.
Assessor means a person appointed under section 17 (1) to be an
Assessor of the Local Court.
Chief Magistrate means the person appointed under section 14 (1) to be
the Chief Magistrate of the Local Court.
civil jurisdiction, in relation to the Local Court, means the jurisdiction
referred to in section 9 (a).
Court means the Local Court constituted by section 7 (1).
criminal jurisdiction, in relation to the Local Court, means the
jurisdiction referred to in section 9 (c).
criminal proceedings means proceedings against a person for an
offence (whether summary or indictable), and includes the following:
(a) committal proceedings,
(b) proceedings relating to bail,
(c) proceedings relating to sentence,
(d) proceedings for the review of a conviction or sentence under the
Crimes (Appeal and Review) Act 2001,
but does not include the following:
(e) proceedings on an application for an order under the Crimes
(Forensic Procedures) Act 2000,
(f) proceedings on an application for an order, or an application to
vary or revoke any such order, under the Child Protection
(Offenders Prohibition Orders) Act 2004,
(g) proceedings on an application for an order under Part 16A of the
Law Enforcement (Powers and Responsibilities) Act 2002.
Page 2
Local Court Bill 2007 Clause 4
Preliminary Part 1
Deputy Chief Magistrate means a person appointed under section
15 (1) to be a Deputy Chief Magistrate of the Local Court.
designated place means a place at which sittings of the Local Court are
to be held in accordance with section 22 (1).
exercise a function includes perform a duty.
function includes power, authority and duty.
Magistrate means a person appointed or taken to be appointed under
this Act to be a Magistrate of the Local Court.
part-time Magistrate means a person:
(a) who is appointed to hold the office of Magistrate on a part-time
basis, or
(b) who exercises the functions of the office of Magistrate on a
part-time basis, as provided by an agreement referred to in clause
1 (2) of Schedule 1, or
(c) who, in accordance with section 8 of the Liquor Act 1982,
becomes a Magistrate on becoming a licensing magistrate and
who holds office as a licensing magistrate, or exercises the
functions of a licensing magistrate, on a part-time basis.
practice note means a practice note issued under section 27.
Rule Committee means the Local Court Rule Committee established
under section 25.
rules means the rules made under section 26.
special jurisdiction, in relation to the Local Court, means the
jurisdiction referred to in section 9 (b).
(2) Notes included in this Act do not form part of this Act.
Note. In the notes to this Act, LCA 1982 means the Local Courts Act 1982, CPA
means the Civil Procedure Act 2005 and DCA means the District Court Act
1973.
4 Regulations (cf LCA 1982, section 28)
The Governor may make regulations, not inconsistent with this Act, for
or with respect to any matter that by this Act is required or permitted to
be prescribed or that is necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
5 Repeal and savings and transitional provisions
(1) The Local Courts Act 1982 is repealed.
(2) Schedule 4 has effect.
Page 3
Clause 6 Local Court Bill 2007
Part 1 Preliminary
6 Review of Act
(1) The Minister is to review this Act to determine whether the policy
objectives of the Act remain valid and whether the terms of the Act
remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of
5 years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House of
Parliament within 12 months after the end of the period of 5 years.
Page 4
Local Court Bill 2007 Clause 7
The Local Court of New South Wales Part 2
Part 2 The Local Court of New South Wales
Division 1 Constitution and jurisdiction
7 Constitution of the Court (cf LCA, sections 6, 8A and 8B)
(1) There is constituted by this Act a court of record to be known as the
Local Court of New South Wales.
(2) There is to be a seal of the Court and any document that is required by
or under this Act or any other Act or law to be sealed or stamped with
the seal of the Court is to be so sealed or stamped.
8 Single Magistrate to constitute the Court (cf LCA 1982, section 8)
Except as may be otherwise provided by or under this Act or any other
Act or law, all proceedings in the Court, including all business arising
out of any such proceedings, are to be heard and determined by a
Magistrate, who is to constitute the Court.
9 Jurisdiction (cf LCA 1982, section 7)
The Court has:
(a) a civil jurisdiction consisting of the jurisdiction conferred on it by
Part 3, and
(b) a special jurisdiction consisting of the jurisdiction conferred on it
by or under any other Act or law with respect to proceedings to
which Part 4 applies, and
(c) a criminal jurisdiction consisting of the jurisdiction conferred on
it by or under any other Act or law with respect to criminal
proceedings.
10 Divisions of the Court (cf LCA 1982, section 7A)
For the purpose of exercising its civil jurisdiction, the Court is divided
into:
(a) the General Division, and
(b) the Small Claims Division.
11 State-wide jurisdiction (cf LCA 1982, section 17)
The Court, wherever sitting, has jurisdiction throughout the whole of
New South Wales.
Page 5
Clause 12 Local Court Bill 2007
Part 2 The Local Court of New South Wales
Division 2 Magistrates
12 Composition of the Court
The Court is to be composed of a Chief Magistrate appointed by the
Governor and such other Magistrates as the Governor may from time to
time appoint.
13 Appointment and qualifications of Magistrates (cf LCA 1982, section 12)
(1) The Governor may, by commission under the public seal of the State,
appoint any qualified person to be a Magistrate.
(2) For the purposes of this section, a person is qualified for appointment as
a Magistrate if the person is:
(a) an Australian lawyer of at least 5 years' standing, or
(b) a person who holds, or has held, a judicial office of this State or
of the Commonwealth, another State or Territory.
(3) A Magistrate, while holding office as such, is taken to have been
appointed as a justice of the peace.
(4) Part 1 of Schedule 1 has effect with respect to Magistrates.
14 The Chief Magistrate (cf LCA 1982, section 14)
(1) The Governor may, by the commission of a person's appointment as a
Magistrate or by a subsequent commission under the public seal of the
State, appoint a Magistrate to be Chief Magistrate of the Local Court.
(2) Part 2 of Schedule 1 has effect with respect to the Chief Magistrate.
15 Deputy Chief Magistrates (cf LCA 1982, section 15)
(1) The Governor may, by the commission of a person's appointment as a
Magistrate or by a subsequent commission under the public seal of the
State, appoint a Magistrate to be a Deputy Chief Magistrate of the Local
Court.
(2) More than one person may hold the office of Deputy Chief Magistrate
at any one time.
(3) Part 3 of Schedule 1 has effect with respect to Deputy Chief
Magistrates.
16 Acting Magistrates
(1) The Governor may, by commission under the public seal of the State,
appoint any person who is qualified for appointment as a Magistrate
under section 13 to act as a Magistrate for a term not exceeding 12
months to be specified in the commission.
Page 6
Local Court Bill 2007 Clause 17
The Local Court of New South Wales Part 2
(2) A person who holds, or has held, a judicial office of this State, or of the
Commonwealth, another State or Territory, may be appointed under this
section even if he or she has reached the age of 72 years (or will have
reached that age before the appointment expires) but may not be so
appointed for any period extending beyond the day on which he or she
reaches the age of 75 years.
(3) Part 4 of Schedule 1 has effect with respect to acting Magistrates.
Division 3 Assessors
17 Assessors (cf LCA 1982, section 76)
(1) The Minister may appoint any person who is an Australian lawyer to be
an Assessor.
(2) Schedule 2 has effect with respect to Assessors.
Division 4 Registrars and other officers
18 Registrars and deputy registrars (cf LCA 1982, sections 10 and 10A)
(1) Such registrars and deputy registrars as may be necessary to assist in the
administration of this Act are to be employed under Chapter 1A of the
Public Sector Employment and Management Act 2002.
(2) A registrar may (but need not) be appointed as the registrar for a
designated place.
19 Registrar's functions generally (cf LCA 1982, section 10B)
(1) A registrar has and may exercise the functions conferred on a registrar
by or under this Act, the rules or any other Act or law.
(2) A registrar, including a registrar for a designated place, may exercise
such functions in respect of any place in the State.
20 Exercise of functions by registrars, assistant registrars and other
officers of the District Court
(1) A registrar of the District Court may, subject to the rules, exercise the
functions of a registrar of the Local Court and, when exercising those
functions, is taken to be a registrar of the Local Court.
(2) An assistant registrar of the District Court may, subject to the rules,
exercise the functions of a deputy registrar of the Local Court and, when
exercising those functions, is taken to be a deputy registrar of the Local
Court.
Page 7
Clause 21 Local Court Bill 2007
Part 2 The Local Court of New South Wales
(3) An officer of the District Court may, subject to the rules, exercise the
functions of an officer of the Local Court and, when exercising those
functions, is taken to be an officer of the Local Court.
21 References to registrars
In any other Act or instrument, a reference to the relevant registrar of
the Local Court is a reference to:
(a) when used in connection with a particular place, the registrar for
that place, or
(b) when used in connection with a particular function, the registrar
authorised to exercise that function, or
(c) when used in connection with a particular place and a particular
function, the registrar authorised to exercise that function at or in
relation to that place, or
(d) when used in relation to particular proceedings, the registrar for
the place at which the proceedings are being, or are to be, heard
or (if they have been determined) the place at which the
proceedings were determined.
Division 5 Exercise of jurisdiction
22 Sittings of the Court (cf LCA 1982, section 11)
(1) Sittings of the Court are to be held at such places and times as the Chief
Magistrate may from time to time direct by notice published in the
Gazette.
(2) More than one sitting of the Court may be held at the same time.
23 Arrangement of business of the Court (cf LCA 1982, sections 11 and 14)
(1) The Chief Magistrate is responsible for ensuring the orderly and
expeditious discharge of the business of the Court and for that purpose
may, subject to this Act, give directions as to:
(a) the Magistrates or Assessors who are to exercise the Court's
jurisdiction in specified matters or matters of a specified class,
and
(b) the Magistrates or Assessors who are to sit at designated places
or exercise certain functions at designated places, and
(c) the matters or classes of matters that may be dealt with at
designated places, and
(d) the specified functions that are to be exercised by specified
Magistrates or Magistrates of a specified class.
Page 8
Local Court Bill 2007 Clause 24
The Local Court of New South Wales Part 2
(2) The Chief Magistrate must consult with the Attorney General before
making a direction under subsection (1) that substantially alters the
frequency of sittings at a particular place relative to the previous
calendar year.
(3) The Chief Magistrate may have such consultation with other
Magistrates as is appropriate and practicable before making any
direction under subsection (1).
(4) A direction given under subsection (1) may provide for:
(a) the establishment of circuits comprised of places at which sittings
of the Court are required to be held, or
(b) the exercise by Magistrates of their functions, at specified times
or during specified periods, at different places.
24 Contempt of court (cf LCA 1982, sections 27A and 27B)
(1) The Court has, if it is alleged, or appears to the Court on its own view,
that a person is guilty of contempt of court committed in the face of the
Court or in the hearing of the Court, the same powers as the District
Court has in those circumstances.
(2) Without limiting subsection (1), the Court may vacate or revoke an
order with respect to contempt of court.
(3) For the purposes of this section:
(a) sections 199, 200 and 202 of the District Court Act 1973 apply to
the Local Court and a Magistrate in the same way as they apply
to the District Court and a Judge of the District Court, and
(b) a reference in section 200 of that Act to a proclaimed place is
taken to be a reference to a designated place, and
(c) section 201 of that Act applies to a ruling, order, direction or
decision of the Local Court under those provisions as so applied.
(4) Without prejudice to the powers of the Court under this section, if it is
alleged, or appears to the Court on its own view, that a person is guilty
of contempt of the Court, whether committed in the face or hearing of
the Court or not, the Court may refer the matter to the Supreme Court
for determination.
(5) The Supreme Court is to dispose of any matter referred to it under this
section in the manner it considers appropriate.
Page 9
Clause 25 Local Court Bill 2007
Part 2 The Local Court of New South Wales
Division 6 Rules of court and practice notes
25 Local Court Rule Committee (cf LCA 1982, sections 30 and 31)
(1) There is to be a Local Court Rule Committee.
(2) The Rule Committee is to consist of the following members:
(a) the Chief Magistrate,
(b) at least one and not more than 6 Magistrates (in addition to the
Chief Magistrate) appointed by the Chief Magistrate,
(c) a barrister appointed by the Bar Council,
(d) a solicitor appointed by the Law Society Council,
(e) a registrar of the Court appointed by the Chief Magistrate,
(f) a person appointed by the Director-General of the Attorney
General's Department,
(g) a person appointed by the Minister,
(h) the additional member or members appointed in accordance with
subsection (3) or (4), as the case requires.
(3) The Rule Committee, when exercising its functions in respect of matters
relating to the jurisdiction referred to in section 9 (a) and (b), is to have
an additional member, being a person appointed by the Chief Magistrate
to represent consumer groups.
(4) The Rule Committee, when exercising its functions in respect of matters
relating to the jurisdiction referred to in section 9 (c), is to have two
additional members, being a person appointed by the Chief Magistrate
on the nomination of the Director of Public Prosecutions and a person
appointed by the Chief Magistrate on the nomination of the Legal Aid
Commission.
(5) Schedule 3 has effect in respect of the Rule Committee.
26 Rules generally (cf LCA 1982, section 28A)
(1) The Rule Committee may make rules, not inconsistent with this Act, for
or with respect to any matter that is required or permitted to be
prescribed by rules, or that is necessary or convenient to be prescribed
by rules, in relation to the practice or procedure of the Local Court.
(2) In particular, the rules may make provision for or with respect to the
following matters:
(a) the practice or procedure to be followed in criminal proceedings,
(b) the functions of registrars and other officers of the Court,
(c) the review of orders or decisions of registrars,
Page 10
Local Court Bill 2007 Clause 27
The Local Court of New South Wales Part 2
(d) any matter incidental to, or relating to, any such practice or
procedure.
(3) A rule may be made under this Act in relation to any matter for which a
rule-making power is conferred on the Court by or under any other Act
or law.
Note. See also sections 42 (Rules in civil jurisdiction) and 71 (Rules in
application proceedings).
27 Practice notes (cf CPA, section 15; LCA 1982, section 28B)
(1) Subject to the rules, the Chief Magistrate may issue practice notes in
relation to any matter with respect to which rules may be made.
(2) Part 6 of the Interpretation Act 1987 applies to a practice note issued
under this section in the same way as it applies to a rule of court.
28 Court may give directions in circumstances not covered by rules (cf
CPA, section 16; LCA 1982, section 26)
(1) In relation to particular proceedings, the Court may give directions with
respect to any aspect of practice or procedure not provided for by or
under this Act, the Criminal Procedure Act 1986, the Civil Procedure
Act 2005 or any other Act.
(2) Anything done in accordance with such a direction (including the
commencing of proceedings and the taking of any step in proceedings)
is taken to have been validly done.
Page 11
Clause 29 Local Court Bill 2007
Part 3 Civil jurisdiction
Part 3 Civil jurisdiction
Division 1 Preliminary
29 Definitions (cf LCA 1982, section 4)
In this Part:
jurisdictional limit of the Court means:
(a) $60,000, in relation to the Court sitting in its General Division,
and
(b) $10,000, in relation to the Court sitting in its Small Claims
Division.
money claim means a claim for recovery of any debt, demand or
damage (whether liquidated or unliquidated).
Division 2 Jurisdiction
30 Conferral of jurisdiction (cf LCA 1982, section 65)
(1) Subject to this Part, the Court sitting in its General Division has
jurisdiction to hear and determine:
(a) proceedings on any money claim, so long as the amount claimed,
whether on a balance of account or after an admitted set-off or
otherwise, does not exceed the jurisdictional limit of the Court
when sitting in that Division, and
(b) proceedings to recover detained goods, or to recover the assessed
value of detained goods, so long as the value of the goods,
together with the amount of any consequential damages claimed
for their detention, does not exceed the jurisdictional limit of the
Court when sitting in that Division, and
(c) proceedings that, pursuant to any other Act, are required to be
dealt with by the Court sitting in that Division.
(2) Subject to this Part, the Court sitting in its Small Claims Division has
jurisdiction to hear and determine:
(a) proceedings on any money claim, so long as the amount claimed,
whether on a balance of account or after an admitted set-off or
otherwise, does not exceed the jurisdictional limit of the Court
when sitting in that Division, and
(b) proceedings to recover detained goods, or to recover the assessed
value of detained goods, so long as the value of the goods,
together with the amount of any consequential damages claimed
for their detention, does not exceed the jurisdictional limit of the
Court when sitting in that Division.
Page 12
Local Court Bill 2007 Clause 31
Civil jurisdiction Part 3
(3) Nothing in subsection (2) prevents proceedings under that subsection
from being heard and determined by the Court sitting in its General
Division.
(4) In determining an amount for the purposes of subsection (1) or (2), any
interest up to judgment under section 100 of the Civil Procedure Act
2005 is to be disregarded.
(5) If:
(a) the jurisdictional limit of a Division is increased, and
(b) proceedings in which an amount of money is claimed are pending
in the Court when that increase takes effect,
the Court may, on the application of a plaintiff, make an order altering
the amount specified in the claim to an amount not exceeding the new
jurisdictional limit.
(6) In this section, admitted set-off, in relation to proceedings, means
set-off admitted by the plaintiff in the originating process in the
proceedings.
31 Jurisdictional limits may be exceeded for certain money claims (cf LCA
1982, section 66)
(1) When sitting in its General Division, the Court has jurisdiction to hear
and determine proceedings on a money claim for an amount not
exceeding 20 per cent more than the jurisdictional limit of the Court
when sitting in its General Division:
(a) if a memorandum of consent has been filed in relation to the
proceedings, or
(b) if no objection to the Court's jurisdiction has been raised by any
of the parties prior to one month before the trial of the
proceedings commences.
(2) A memorandum of consent referred to in subsection (1) (a) does not
have effect unless:
(a) it is signed by each party to the proceedings, or by the party's
Australian legal practitioner, and
(b) it states that each of those parties consents to the proceedings
being heard and determined by the Court and is aware that, unless
the memorandum is filed, the Court will not have jurisdiction to
hear or determine the proceedings.
(3) This section applies despite section 30 (1) (a).
(4) Nothing in this section limits the operation of section 140 of the Civil
Procedure Act 2005.
Page 13
Clause 32 Local Court Bill 2007
Part 3 Civil jurisdiction
32 Jurisdiction in proceedings for review of contracts (cf LCA 1982, section
68)
(1) The Court has the same jurisdiction as the Supreme Court, and may
exercise all the powers and authority of the Supreme Court, to refuse to
enforce any or all of the provisions of a contract under section 7 (1) (a)
of the Contracts Review Act 1980.
(2) This section applies only if application for the exercise of the
jurisdiction is made in proceedings concerning the contract that have
previously been commenced in the Court but have not been determined.
33 Certain jurisdiction excluded (cf LCA 1982, section 67)
(1) The Court does not have jurisdiction under this Part to hear or determine
any of the following kinds of proceedings:
(a) proceedings in which the validity or effect of any devise, bequest
or limitation under any will or settlement, or under any document
in the nature of a settlement, is disputed,
(b) proceedings for passing-off, wrongful arrest, false imprisonment,
malicious prosecution or defamation,
(c) proceedings for infringement of letters patent or copyright,
(d) proceedings for detention of goods:
(i) where the goods are the subject of a hire-purchase
agreement, or
(ii) where the goods are detained by their owner or by some
other person acting on the owner's behalf,
(e) proceedings in which the title to land is in question (other than
proceedings on a claim in respect of which the question of the
title to land is merely incidental).
(2) The judgment of the Court in proceedings on a claim in respect of which
the question of the title to land is merely incidental, as referred to in
subsection (1) (e), is not admissible as evidence of the title to the land
in any other legal proceedings.
34 Jurisdiction when cause of action or defendant outside the State (cf LCA
1982, section 69)
(1) The Court has jurisdiction to hear and determine proceedings with
respect to a cause of action:
(a) even if part of the cause of action arose outside New South
Wales, so long as a material part of the cause of action arose
within New South Wales, and
Page 14
Local Court Bill 2007 Clause 35
Civil jurisdiction Part 3
(b) even if the whole cause of action arose outside New South Wales,
so long as the defendant was resident in New South Wales at the
time of service of the document that commenced the proceedings,
and
(c) even if the defendant is not within New South Wales, so long as:
(i) the whole or a material part of the cause of action arose
within New South Wales, and
(ii) the defendant was within a State or a part of the
Commonwealth (within the meaning of the Service and
Execution of Process Act 1992 of the Commonwealth) at
the time of service of the document that commenced the
proceedings.
(2) Subsection (1) (c) applies whether or not the defendant has ever been
resident or carried on business in New South Wales.
(3) In this section, defendant includes, if there are 2 or more defendants,
any one of those defendants.
Division 3 Proceedings in Small Claims Division
35 Procedure generally in Small Claims Division (cf LCA 1982, section 70)
(1) The jurisdiction of the Court sitting in its Small Claims Division may be
exercised by a Magistrate or an Assessor.
(2) Proceedings in the Small Claims Division are to be conducted with as
little formality and technicality as the proper consideration of the matter
permits.
(3) The rules of evidence do not apply to proceedings being heard or other
proceedings in the Small Claims Division.
(4) Witnesses may not be cross-examined except in circumstances in
which, and to the extent to which, the cross-examination of witnesses is
authorised by the rules or a practice note.
(5) A Magistrate or an Assessor exercising the jurisdiction of the Court
sitting in its Small Claims Division may inform himself or herself on
any matter relating to proceedings being heard or other proceedings in
the Small Claims Division in such manner as he or she thinks fit.
(6) Proceedings in the Small Claims Division (other than any judgment
given or order made in respect of the proceedings) are not required to be
recorded.
Page 15
Clause 36 Local Court Bill 2007
Part 3 Civil jurisdiction
36 Conciliation of parties (cf LCA 1982, section 71)
(1) A Magistrate or an Assessor is not to give judgment or make a final
order in respect of proceedings being heard in the Court's Small Claims
Division unless the Magistrate or an Assessor has brought, or has used
his or her best endeavours to bring, the parties to the proceedings to a
settlement acceptable to the parties.
(2) If such a settlement is reached, the Magistrate or an Assessor is to give
judgment or make a final order that gives effect to the terms of the
settlement.
37 Costs in Small Claims Division (cf LCA 1982, section 67)
Except as provided by the rules, the Court sitting in its Small Claims
Division has no power to award costs.
Division 4 Appeals from the Local Court
38 Judgments and orders final (cf LCA 1982, section 72)
Subject to this Division, all judgments and orders of the Court
exercising jurisdiction under this Part are final and conclusive.
39 Appeals as of right (cf LCA 1982, section 73)
(1) A party to proceedings before the Court sitting in its General Division
who is dissatisfied with a judgment or order of the Court may appeal to
the Supreme Court, but only on a question of law.
(2) A party to proceedings before the Court sitting in its Small Claims
Division who is dissatisfied with a judgment or order of the Court may
appeal to the Supreme Court, but only on the ground of lack of
jurisdiction or denial of procedural fairness.
40 Appeals requiring leave (cf LCA 1982, section 74)
(1) A party to proceedings before the Court sitting in its General Division
who is dissatisfied with a judgment or order of the Court on a ground
that involves a question of mixed law and fact may appeal to the
Supreme Court but only by leave of the Supreme Court.
(2) A party to proceedings before the Court sitting in its General Division
who is dissatisfied with any of the following judgments or orders of the
Court may appeal to the Supreme Court, but only by leave of the
Supreme Court:
(a) an interlocutory judgment or order,
(b) a judgment or order made with the consent of the parties,
(c) an order as to costs.
Page 16
Local Court Bill 2007 Clause 41
Civil jurisdiction Part 3
41 Determination of appeals (cf LCA 1982, section 75)
The Supreme Court may determine an appeal made under this Division:
(a) by varying the terms of the judgment or order, or
(b) by setting aside the judgment or order, or
(c) by setting aside the judgment or order and remitting the matter to
the Local Court for determination in accordance with the
Supreme Court's directions, or
(d) by dismissing the appeal.
Division 5 Rules
42 Rules in civil jurisdiction (cf LCA 1982, section 79)
(1) The rules may make provision for or with respect to the following
matters relating to the civil jurisdiction of the Court:
(a) the practice and procedure in the Court and in proceedings before
a registrar,
(b) the transfer of proceedings between the Small Claims Division
and the General Division,
(c) the referral of matters to Community Justice Centres for
mediation under the Community Justice Centres Act 1983,
(d) the functions of registrars,
(e) the filing and serving of notices under this Act,
(f) the times for doing any matter or thing for the purposes of this
Part,
(g) the excusal of non-compliance with the rules,
(h) costs in relation to proceedings in the Court's Small Claims
Division,
(i) the manner of doing any matter or thing for the purposes of this
Part.
(2) This section does not give power to make rules with respect to any
matter relating to costs that is regulated by Division 11 of Part 3.2 of the
Legal Profession Act 2004.
(3) This section does not give power to make rules in terms inconsistent
with those of the uniform rules under the Civil Procedure Act 2005
unless the uniform rules expressly permit rules under this section to be
made in those terms.
Page 17
Clause 42 Local Court Bill 2007
Part 3 Civil jurisdiction
(4) The rules made under this section may authorise or require the use of an
ECM system established under section 14B of the Electronic
Transactions Act 2000 in relation to any proceedings in the Court in
respect of which the use of such a system is authorised by an order in
force under section 14C of that Act.
Page 18
Local Court Bill 2007 Clause 43
Special jurisdiction Part 4
Part 4 Special jurisdiction
Division 1 Preliminary
43 Definitions (cf LCA 1982, section 4)
In this Part:
applicant means a person by whom application proceedings are
commenced.
application proceedings means proceedings to which this Part applies
as referred to in section 44.
authorised officer has the same meaning as in the Criminal Procedure
Act 1986.
public officer means any of the following persons, but only when acting
in an official capacity:
(a) an employee in the Public Service or the NSW Police Force,
(b) an officer or employee of a statutory body representing the
Crown,
(c) an employee of a council within the meaning of the Local
Government Act 1993,
(d) an officer or employee of a rural lands protection board within the
meaning of the Rural Lands Protection Act 1998,
(e) the Director of Public Prosecutions, Deputy Director of Public
Prosecutions or Solicitor for Public Prosecutions,
(f) an officer or employee of a body declared by the regulations to be
a public body for the purposes of this definition.
respondent means a person against whom application proceedings are
commenced.
44 Application of Part
This Part applies to any proceedings with respect to matters for which
jurisdiction is conferred on the Court by or under any other Act or law,
other than:
(a) criminal proceedings, or
(b) proceedings with respect to any matter for which jurisdiction is
conferred on the Court by Part 3.
Page 19
Clause 45 Local Court Bill 2007
Part 4 Special jurisdiction
Division 2 Commencement of proceedings
45 Commencement of proceedings by application notice (cf LCA 1982,
section 37)
Application proceedings are to be commenced in the Court by the
issuing and filing of an application notice in accordance with this
Division.
46 Commencement of proceedings by police officer or public officer (cf
LCA 1982, section 38)
If a police officer or public officer is authorised to commence
application proceedings against a person, the officer may commence the
proceedings by issuing an application notice and filing the notice in
accordance with this Division.
47 Commencement of private actions (cf LCA 1982, section 39)
(1) If a person other than a police officer or public officer is authorised to
commence application proceedings against a person, the person may
commence the proceedings by issuing an application notice, signed by
a registrar, and filing the notice in accordance with this Division.
(2) A registrar must not sign an application notice if:
(a) the registrar is of the opinion that the notice does not disclose
grounds for the proceedings, or
(b) the registrar is of the opinion that the notice is not in the
appropriate form, or
(c) the registrar is of the opinion that a ground for refusal set out in
the rules applies to the notice.
(3) If a registrar refuses to sign an application notice proposed to be issued
by any such person, the question of whether the application notice is to
be signed and issued is to be determined by the Court on application by
the person.
(4) An application under subsection (3) is not required to be signed by a
registrar.
48 Application notice to be for one matter only (cf LCA 1982, section 41)
An application notice may not relate to more than one matter.
49 Service of application notice (cf LCA 1982, section 42)
(1) An application notice issued by a police officer must be served by a
police officer in accordance with the rules.
Page 20
Local Court Bill 2007 Clause 50
Special jurisdiction Part 4
(2) An application notice issued by a public officer must be served by a
police officer or public officer or other person authorised by the rules in
accordance with the rules.
(3) An application notice issued by a person other than a police officer or a
public officer must be served by a person authorised by the rules in
accordance with the rules.
(4) A copy of an application notice must be filed in the Court in accordance
with the rules.
50 When proceedings commence (cf LCA 1982, section 43)
(1) All proceedings are taken to have commenced on the date on which an
application notice is filed.
(2) An application notice may be filed even though it has not been served if:
(a) the notice is not able to be served, despite reasonable attempts to
do so, or
(b) the registrar gives leave to do so after forming the opinion that it
is not reasonable in the circumstances of the case to require prior
service of the notice.
(3) Nothing in this section affects any other Act or law under which
proceedings are taken to have commenced on another date.
51 Time limit for commencement of proceedings (cf LCA 1982, section 44)
(1) Application proceedings may not be commenced later than 6 years from
the date when the matter is alleged to have arisen.
(2) This section is subject to any other Act or law.
52 Relationship to other law or practice (cf LCA 1982, section 45)
If an Act or a statutory rule provides for application proceedings to be
commenced otherwise than by issuing an application notice, the
proceedings may nevertheless be commenced in accordance with this
Act.
Division 3 Hearing of proceedings
53 Time for hearing (cf LCA 1982, section 46)
(1) On the first return date for an application notice in any proceedings, or
at such later time as the Court determines, the Court must set the date,
time and place for hearing and determining the matter.
(2) The Court must notify the respondent of the date, time and place, if the
respondent is not present.
Page 21
Clause 54 Local Court Bill 2007
Part 4 Special jurisdiction
(3) However, if the respondent is not present at the first return date, the
Court may proceed to hear and determine the matter on that day at its
discretion.
Note. The powers of the Court to adjourn proceedings are set out in section 61.
54 Proceedings to be open to public (cf LCA 1982, section 47)
(1) Application proceedings before the Court are to be heard in open court.
(2) This section is subject to the provisions of any other Act or law.
55 Change of venue (cf LCA 1982, section 48)
The Court may make an order changing the venue of the proceedings if
it thinks it appropriate in the circumstances.
56 Right to defend action (cf LCA 1982, section 49)
A respondent in application proceedings may defend the action and any
proceedings ancillary to the action.
57 Right of representation (cf LCA 1982, section 50)
(1) An applicant or respondent may appear personally or by an Australian
legal practitioner or other representative empowered by an Act or other
law to appear for the applicant or respondent.
(2) An applicant who is a police officer may appear personally or by a
person permitted by subsection (1) or by a police prosecutor.
58 Conduct of case (cf LCA 1982, section 51)
(1) The applicant's case may be conducted by the applicant or by the
applicant's Australian legal practitioner or any other representative
permitted to appear for the applicant (whether under this or any other
Act).
(2) The respondent's case may be conducted by the respondent or by the
respondent's Australian legal practitioner or any other representative
permitted to appear for the respondent (whether under this or any other
Act).
59 Evidence to be on oath (cf LCA 1982, section 52)
The usual oath must be administered to a witness before the witness is
examined.
Note. For the form of oaths and declarations see the Oaths Act 1900.
60 Recording of evidence (cf LCA 1982, section 53)
(1) The evidence of each witness in application proceedings must be
recorded.
Page 22
Local Court Bill 2007 Clause 61
Special jurisdiction Part 4
(2) Rules may be made for or with respect to the manner in which the
evidence may be recorded and the authentication of evidence or of
transcripts of evidence given in proceedings.
61 Adjournments (cf LCA 1982, section 54)
(1) The Court may at any stage of proceedings adjourn the proceedings to
a specified time and place.
(2) An adjournment of proceedings may be in such terms as the Court
thinks fit.
62 Irregularity (cf LCA 1982, section 55)
(1) If, in or in connection with application proceedings or the
commencement of application proceedings, there is a failure to comply
with any requirement of this Act or the rules, the failure is to be treated
as an irregularity and does not nullify the proceedings or any step taken
in the proceedings, or any judgment, document or order in the
proceedings.
(2) Subsection (1) applies to a failure to comply with a requirement relating
to time, place, manner, form or content or any other failure.
(3) In the case of an irregularity, the Court may, on terms, set aside wholly
or in part the proceedings or any step taken in the proceedings or any
document, judgment or order in the proceedings or exercise its powers
under the rules to allow judgments and to make orders dealing with the
proceedings generally.
(4) The Court must not take action under subsection (3) on the application
of a party unless that application is made within a reasonable time and
before the party has taken any fresh step after becoming aware of the
irregularity.
63 Power to dispense with rules (cf LCA 1982, section 56)
(1) In relation to particular application proceedings, the Court may, if of the
opinion that it is in the interests of justice to do so, dispense with or vary
a requirement of the rules.
(2) For the purposes of subsection (1), the Court may make directions as to
the conduct of application proceedings.
(3) The power conferred by this section does not extend to any rule declared
by the rules to be mandatory.
Note. The Court may also give directions with respect to any aspect of practice
or procedure not provided for by or under this Act or any other Act (see section
28).
Page 23
Clause 64 Local Court Bill 2007
Part 4 Special jurisdiction
64 Power to stay proceedings (cf LCA 1982, section 57)
(1) Subject to the rules, the Court may at any time and from time to time,
by order, stay any application proceedings before it, either permanently
or until a specified day.
(2) The power to stay proceedings includes power to order a stay of an
enforcement of an order.
65 Arrest of respondent during proceedings (cf LCA 1982, section 58)
(1) A Magistrate may, at any time when or after a matter is first before the
Court and before it is finally disposed of by the Court, issue a warrant
to arrest a respondent if the respondent fails to appear personally or to
appear by an Australian legal practitioner or other representative and the
Magistrate is satisfied that the respondent had notice of the date, time
and place of the proceedings.
(2) A Magistrate, registrar or authorised officer before whom a respondent
is brought on arrest on a warrant issued under this section may, if bail is
not dispensed with or granted, issue a warrant:
(a) committing the respondent to a correctional centre or other place
of security, and
(b) ordering the respondent to be brought before the Court at the
date, time and place specified in the order.
(3) The Magistrate, registrar or authorised officer must give notice of the
date, time and place set to the applicant.
66 Witnesses and production of evidence (cf LCA 1982, section 59)
The provisions of Part 3 of Chapter 4 of the Criminal Procedure Act
1986 apply, with any necessary modifications, to application
proceedings in the same way as they apply to proceedings for summary
offences under that Act.
67 Warrants of arrest and warrants of commitment (cf LCA 1982, section 60)
The provisions of Part 4 of Chapter 4 of the Criminal Procedure Act
1986 apply, with any necessary modifications, to warrants of arrest, or
warrants of commitment, issued under this Act in the same way as they
apply to warrants of arrest or warrants of commitment issued under that
Act.
68 Enforcement of orders for payment of money (cf LCA 1982, section 61)
An order for the payment of money by a party to application
proceedings (including an order as to payment of costs) may be
enforced in a court of competent jurisdiction as if it were a debt due to
the person to whom the money is ordered to be paid.
Page 24
Local Court Bill 2007 Clause 69
Special jurisdiction Part 4
69 Costs (cf LCA 1982, section 62)
(1) The Court may award costs in application proceedings at its discretion
and may determine by whom, to whom and to what extent costs are to
be paid in or in relation to application proceedings.
(2) The Court may order costs to be assessed on the basis set out in Division
11 of Part 3.2 of the Legal Profession Act 2004 or on an indemnity basis.
(3) This section is subject to this Act, the rules and any other Act.
70 Appeals (cf LCA 1982, section 64)
(1) In relation to any order arising from an application notice:
(a) an application for annulment may be made in accordance with
Part 2 of the Crimes (Appeal and Review) Act 2001, and
(b) an appeal to the District Court may be made in accordance with
Part 3 of the Crimes (Appeal and Review) Act 2001, and
(c) an appeal to the Supreme Court may be made in accordance with
Part 5 of the Crimes (Appeal and Review) Act 2001,
in the same way as such an application or appeal may be made in
relation to a sentence arising from a court attendance notice dealt with
under Part 2 of Chapter 4 of the Criminal Procedure Act 1986.
(2) An application or appeal may not be made under subsection (1) in
relation to an order referred to in that subsection if the making of such
an application or appeal is prohibited by the Act or law pursuant to
which the order was made.
(3) If any other Act:
(a) provides for an appeal to the District Court against an order of the
Court under that Act, or
(b) provides for an appeal against such an order without identifying
to which court such an appeal is to be made,
such an appeal is to be made to the District Court in accordance with
Part 3 of the Crimes (Appeal and Review) Act 2001 in the same way as
an appeal under that Part may be made in relation to a sentence arising
from a court attendance notice dealt with under Part 2 of Chapter 4 of
the Criminal Procedure Act 1986.
(4) If any other Act provides for an appeal to the Supreme Court against an
order of the Court under that Act, such an appeal is to be made to the
Supreme Court in accordance with Part 5 of the Crimes (Appeal and
Review) Act 2001 in the same way as an appeal under that Part may be
made in relation to a sentence arising from a court attendance notice
dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act
1986.
Page 25
Clause 71 Local Court Bill 2007
Part 4 Special jurisdiction
(5) The Crimes (Appeal and Review) Act 2001 applies to an application or
appeal arising under this section with such modifications as are made by
or in accordance with the regulations under that Act.
(6) In this section, a reference to an order includes a reference to any
determination that the Court has jurisdiction to make, and any penalty
that the Court has jurisdiction to impose.
Division 4 Rules and forms
71 Rules in application proceedings (cf LCA 1982, section 63)
(1) The rules may make provision for or with respect to the following
matters relating to application proceedings:
(a) the practice and procedure in the Court and in proceedings before
a registrar,
(b) the filing and service (including substituted service) of notices
under this Act,
(c) additional requirements for the form of warrants,
(d) the functions of registrars,
(e) the hearing of proceedings, including the procedure to be
followed and the orders to be made, when a party fails to attend,
(f) empowering the Court to dispense with rules of evidence for
proving any matter that is not genuinely in dispute in any
proceedings and to dispense with rules of evidence that might
cause expense or delay in proceedings if those rules were applied
in specified circumstances,
(g) prescribing matters relating to expert evidence, including the
disclosure, by providing copies of reports or otherwise, of the
nature of expert evidence to be given, and including the exclusion
of expert evidence in the case of non-compliance with the rules
relating to expert evidence or with any order for disclosure of the
nature of expert evidence,
(h) providing for any matter relating to the costs of proceedings.
(2) Without limiting subsection (1), the rules may adopt, with or without
modification, the provisions of any rules made under the Civil
Procedure Act 2005.
(3) This section does not give power to make rules with respect to any
matter relating to costs that is regulated by Part 3.2 of the Legal
Profession Act 2004.
Page 26
Local Court Bill 2007 Clause 72
Special jurisdiction Part 4
72 Forms (cf CPA, section 17; LCA 1982, section 40)
(1) The Chief Magistrate:
(a) may approve forms for documents to be used in connection with
application proceedings, and
(b) in the case of documents filed with the Court, or issued by the
Court, by means of an ECM system within the meaning of the
Electronic Transactions Act 2000, may approve the format in
which such documents are to be filed or issued.
(2) Copies of the approved forms are to be made available for public
inspection at each registry of the Court and on the Court's internet
website.
(3) If a form is approved in relation to a document to be used in connection
with proceedings in the Court, a document that is filed with or issued by
the Court is to be in that form.
(4) An application notice must do the following:
(a) describe the grounds for the proceedings and the remedy sought,
(b) contain the name of the applicant,
(c) require the respondent to appear before the Court or a Magistrate
at a specified date, time and place.
(5) The rules may prescribe additional matters to be included in application
notices.
Page 27
Local Court Bill 2007
Schedule 1 Provisions relating to Magistrates
Schedule 1 Provisions relating to Magistrates
(Sections 13 (4), 14 (2), 15 (3) and 16 (3))
Part 1 Magistrates
1 Part-time arrangements (cf LCA 1982, section 12A)
(1) A person's appointment as a Magistrate is taken to be an appointment
on a full-time basis unless the appointment is expressed, in the
commission by which the person was appointed, to be on a part-time
basis.
(2) A Magistrate, although not appointed on a part-time basis, may, by
agreement in writing entered into with the Chief Magistrate, exercise
the functions of the office of Magistrate on a part-time basis.
2 Application of Public Sector Employment and Management Act 2002 (cf
LCA 1982, section 12)
The Public Sector Employment and Management Act 2002 (including
Chapter 5 of that Act) does not apply to or in respect of the appointment
or employment of Magistrates.
3 Vacation of office (cf LCA 1982, section 20)
Subject to this and any other Act, a Magistrate is taken to have vacated
the office of Magistrate if:
(a) the Magistrate dies, or
(b) the Magistrate resigns that office by instrument in writing
addressed to the Governor, or
(c) the Magistrate retires from office pursuant to the requirements of
the Judicial Officers Act 1986, or
(d) the Magistrate retires from that office under a provision of any
other Act under which the Magistrate may so retire, or
(e) the Magistrate is removed from office pursuant to section 53 of
the Constitution Act 1902.
4 Continuation of proceedings after vacation of office (cf DCA, section 13 (8)
and (9))
(1) A person who vacates office as a Magistrate otherwise than by having
been removed from office may, despite vacating his or her office,
continue to hear and determine and otherwise deal with any proceedings
that have been heard, or partly heard, by the person before vacating his
or her office.
Page 28
Local Court Bill 2007
Provisions relating to Magistrates Schedule 1
(2) While a person continues to deal with, under subclause (1), any
proceedings that have been heard or partly heard by the person before
vacating office, the person has all the entitlements and functions of a
Magistrate and, for the purpose of those proceedings, is taken to
continue to be a Magistrate.
5 Effect of employment as Magistrate (cf LCA 1982, section 23)
(1) Except as provided by this clause, a Magistrate must not engage in any
business or employment outside the duties of his or her office except
with the approval of the Governor.
(2) Subclause (1) does not allow the Governor to give approval for a
Magistrate to practise as an Australian legal practitioner for fee, gain or
reward.
(3) Subclause (1) does not apply to a part-time Magistrate, but such a
person must not:
(a) accept or continue to hold or discharge the duties of or be
employed in any paid office in connection with any commercial
business, or
(b) engage in or undertake any such business, whether as principal or
agent, or
(c) practise as an Australian legal practitioner for fee, gain or reward
or engage in or continue in the private practice of any other
profession, occupation or trade, or enter into any employment,
whether remunerated or not, with any person so engaged.
6 Remuneration (cf LCA 1982, section 24)
A Magistrate is entitled to be paid remuneration in accordance with the
Statutory and Other Offices Remuneration Act 1975.
7 Superannuation and leave--preservation of rights
(1) In this clause:
eligible member means a Magistrate who, immediately before his or her
appointment as a Magistrate, was a member of the Government Service
or an officer or employee of a public authority declared by an Act or
proclamation to be an authority to which this clause applies.
superannuation scheme means a scheme, fund or arrangement under
which any superannuation or retirement benefits are provided and
which is established by or under an Act.
Page 29
Local Court Bill 2007
Schedule 1 Provisions relating to Magistrates
(2) An eligible member:
(a) may continue to contribute to any superannuation scheme to
which he or she was a contributor immediately before becoming
an eligible member, and
(b) is entitled to receive any payment, pension or gratuity accrued or
accruing under the scheme,
as if he or she had continued to be such a contributor during service as
a Magistrate.
(3) Service by an eligible member as a Magistrate is taken to be service as
an officer or employee in his or her previous employment for the
purposes of any law under which the member continues to contribute to
the scheme or by which an entitlement under the scheme is conferred.
(4) An eligible member is to be regarded as an officer or employee, and the
State is to be regarded as the employer, for the purposes of the scheme.
(5) This clause ceases to apply to an eligible member if he or she becomes
a contributor to another superannuation scheme, but the eligible
member is not prevented from receiving a resignation benefit from the
first superannuation scheme.
(6) This clause is subject to clause 8.
8 Extended, annual and sick leave accrued or accruing at time of
appointment (cf LCA 1982, section 25A)
(1) A person who was employed in a public sector service (within the
meaning of section 3 of the Public Sector Employment and
Management Act 2002) before the person's appointment as a Magistrate
does not retain, on his or her appointment, any entitlement to extended,
annual or sick leave accrued or accruing to the person as such an
employee.
(2) Nothing in subclause (1) prevents the payment to a person to whom that
subclause applies of the money value of any extended, annual or sick
leave accrued or accruing to the person as an employee in a public sector
service before the person's appointment as a Magistrate.
(3) This clause applies only in relation to a person appointed as a Magistrate
on or after 20 September 2002 (being the date of commencement of
section 25A of the Local Courts Act 1982).
9 Conditions of service generally (cf LCA 1982, section 22)
(1) The terms and conditions of service (including leave of absence) of
Magistrates are to be as determined by the Minister after consultation
with the Chief Magistrate.
Page 30
Local Court Bill 2007
Provisions relating to Magistrates Schedule 1
(2) This clause extends to the terms and conditions to be included in any
agreement referred to in clause 1 (Part-time arrangements).
Part 2 The Chief Magistrate
10 The Chief Magistrate (cf LCA 1982, section 14)
(1) Subject to subclause (2), the Chief Magistrate holds the office of Chief
Magistrate while he or she holds office as a Magistrate.
(2) With the approval of the Governor, the Chief Magistrate may resign the
office of Chief Magistrate without resigning the office of Magistrate.
(3) The Chief Magistrate may delegate to a Deputy Chief Magistrate any of
the Chief Magistrate's functions other than this power of delegation.
Part 3 Deputy Chief Magistrates
11 Deputy Chief Magistrates (cf LCA 1982, section 15)
(1) Subject to subclause (2), a Deputy Chief Magistrate holds the office of
Deputy Chief Magistrate while he or she holds office as a Magistrate.
(2) With the approval of the Governor, a Deputy Chief Magistrate may
resign the office of Deputy Chief Magistrate without resigning the
office of Magistrate.
(3) A Deputy Chief Magistrate nominated for the purposes of this subclause
by an order in writing of the Minister may, in accordance with the terms
of that order, act in the office of the Chief Magistrate during:
(a) an absence from duty of the Chief Magistrate, or
(b) a vacancy in the office of Chief Magistrate.
(4) A Deputy Chief Magistrate has and may exercise all of the functions of
the Chief Magistrate while acting in that office.
Part 4 Acting Magistrates
12 Acting Magistrates
(1) An acting Magistrate has the powers and authorities of a Magistrate, is
to fulfil the duties of a Magistrate and for the purposes of this or any
other Act (other than the Statutory and Other Offices Remuneration Act
1975) is taken to be a Magistrate.
(2) A person appointed as an acting Magistrate may, despite the expiration
of the person's term of office, complete or otherwise continue to hear
Page 31
Local Court Bill 2007
Schedule 1 Provisions relating to Magistrates
and determine and otherwise deal with any proceedings that have been
heard, or partly heard, by the person before the expiration of that term.
(3) While a person continues to deal with or determine, under subclause (2),
any proceedings that have been heard or partly heard by the person
before the expiration of the person's term of office, the person has all
the entitlements and functions of a Magistrate and, for the purposes of
those proceedings, is taken to continue to be a Magistrate.
(4) A person appointed as an acting Magistrate is entitled to be paid such
remuneration as the Governor considers appropriate and such travelling
and subsistence allowances as the Minister may from time to time
determine in respect of the Magistrate.
Page 32
Local Court Bill 2007
Provisions relating to Assessors Schedule 2
Schedule 2 Provisions relating to Assessors
(Section 17 (2))
1 Term of office (cf LCA 1982, clause 1 of Schedule 2)
Subject to this Schedule, an Assessor holds office, for such period (not
exceeding 7 years) as may be specified in the Assessor's instrument of
appointment, but is eligible (if otherwise qualified) for re-appointment.
2 Remuneration (cf LCA 1982, clause 2 of Schedule 2)
An Assessor is entitled to be paid:
(a) remuneration in accordance with the Statutory and Other Offices
Remuneration Act 1975, and
(b) such travelling and subsistence allowances as the Minister may
from time to time determine in respect of the Assessor.
3 Appointment on full-time or part-time basis
The appointment of an Assessor may be on a full-time or part-time
basis.
4 Effect of employment as Assessor
(1) Except as provided by this clause, an Assessor must not engage in any
business or employment outside the duties of his or her office except
with the approval of the Governor.
(2) Subclause (1) does not allow the Governor to give approval for an
Assessor to practise as an Australian legal practitioner for fee, gain or
reward.
(3) Subclause (1) does not apply to an Assessor appointed on a part-time
basis, but such a person must not:
(a) accept or continue to hold or discharge the duties of or be
employed in any paid office in connection with any commercial
business, or
(b) engage in or undertake any such business, whether as principal or
agent, or
(c) practise as an Australian legal practitioner for fee, gain or reward
or engage in or continue in the private practice of any other
profession, occupation or trade, or enter into any employment,
whether remunerated or not, with any person so engaged.
Page 33
Local Court Bill 2007
Schedule 2 Provisions relating to Assessors
5 Leave (cf LCA 1982, clause 4 of Schedule 2)
(1) An Assessor, if appointed on a full-time basis, is entitled to such leave:
(a) as is determined by the Minister, or
(b) as may be specified in respect of the Assessor in the Assessor's
instrument of appointment.
(2) Leave may be determined or specified as referred to in subclause (1) by
reference to the leave entitlement of the holder of any other office or
class of office.
6 Effect of certain other Acts (cf LCA 1982, clause 3 of Schedule 2)
(1) The Public Sector Employment and Management Act 2002 does not
apply to or in respect of the appointment or employment of Assessors.
(2) If by or under any Act provision is made:
(a) requiring a person who is the holder of a specified office to
devote the whole of his or her time to the duties of that office, or
(b) prohibiting a person from engaging in employment outside the
duties of that office,
that provision does not operate to disqualify the person from holding
that office and also the office of an Assessor appointed on a part-time
basis or, subject to subclause (3), from accepting and retaining any
remuneration payable to the person under this Act as an Assessor
appointed on a part-time basis.
(3) Subclause (2) does not operate to authorise an officer of the Court to
accept or retain any remuneration payable to the officer as an Assessor.
7 Vacation of office (cf LCA 1982, clause 6 of Schedule 2)
An Assessor vacates office if the Assessor:
(a) completes a term of office and is not re-appointed, or
(b) dies, or
(c) resigns the office by instrument in writing addressed to the
Minister, or
(d) becomes a mentally incapacitated person, or
(e) is removed from office by the Minister under clause 8.
8 Removal from office (cf LCA 1982, clause 5 of Schedule 2)
The Minister may remove an Assessor from office for incapacity,
incompetence or misbehaviour.
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Local Court Bill 2007
Provisions relating to Rule Committee Schedule 3
Schedule 3 Provisions relating to Rule Committee
(Section 25 (5))
1 Term of office (cf LCA 1982, sections 30 and 31)
A member other than the Chief Magistrate is to hold office for the
period specified in the member's instrument of appointment and is
eligible (if otherwise qualified) for re-appointment.
2 Vacancy of office (cf LCA 1982, sections 30 and 31)
(1) A member ceases to hold office in any of the following circumstances:
(a) in the case of a member referred to in section 25 (2) (a)(e), if the
member ceases to hold the qualification by virtue of which the
member was appointed or holds office,
(b) in the case of a member appointed by the Chief Magistrate, if the
member resigns as a member by instrument in writing addressed
to the Chief Magistrate,
(c) in the case of the member appointed by the Director-General of
the Attorney General's Department, if the member resigns as a
member by instrument in writing addressed to the
Director-General,
(d) in the case of the member appointed by the Minister, if the
member resigns as a member by instrument in writing addressed
to the Minister.
(2) If the office of a member other than the Chief Magistrate becomes
vacant, a person must, subject to this Act, be appointed to fill the
vacancy.
3 Deputies for members
(1) A reference to a power to appoint a member of the Rule Committee
includes a power to appoint a deputy for that member.
(2) In the absence of a member appointed under section 25 (2), (3) or (4),
the member's deputy:
(a) may, if available, act in the place of the member, and
(b) subject to clause 4 (3)--while so acting, has the functions of the
member and is taken to be the member.
4 Chairperson (cf LCA 1982, section 33)
(1) The Chief Magistrate is to be the chairperson of the Rule Committee.
(2) The Chief Magistrate is to appoint in writing one of the other members
of the Rule Committee who is a Magistrate as deputy chairperson.
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Local Court Bill 2007
Schedule 3 Provisions relating to Rule Committee
(3) A person nominated as a deputy for the Chief Magistrate is not entitled
to exercise any of the functions of the Chief Magistrate as chairperson
of the Rule Committee.
5 Meetings (cf LCA 1982, section 34)
(1) The Rule Committee is (subject to this clause) to regulate its own
procedure with respect to conducting meetings.
(2) The chairperson of the Rule Committee or, in the absence of the
chairperson, the deputy chairperson of the Committee is to preside at a
meeting of the Committee.
(3) In the absence from a meeting of the Rule Committee of both the
chairperson and the deputy chairperson, another member of the
Committee who is a Magistrate is to be chosen by the members present
to preside at the meeting.
(4) A decision supported by a majority of the votes cast at a meeting of the
Rule Committee at which a quorum is present is the decision of the Rule
Committee.
(5) The person presiding at a meeting of the Rule Committee has a
deliberative vote and, in the event of an equality of votes, also has a
casting vote.
(6) The Chief Magistrate is to call meetings of the Rule Committee as the
Chief Magistrate thinks necessary (subject to any decision of the
Committee under subclause (1)).
(7) The Rule Committee may, if it thinks fit, transact any of its business by
the circulation of papers among all the members of the Committee for
the time being, and a resolution in writing approved in writing by a
majority of those members is taken to be a decision of the Committee.
6 Quorum
The quorum for a meeting of the Rule Committee is a majority of the
number of the members for the time being.
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Local Court Bill 2007
Savings, transitional and other provisions Schedule 4
Schedule 4 Savings, transitional and other
provisions
(Section 5 (2))
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of the following Acts:
this Act
(2) Any such provision may, if the regulations so provide, take effect from
the date of assent to the Act concerned or a later date.
(3) 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 this
Act
2 Definitions
In this Part:
former Act means the Local Courts Act 1982.
former Court means a court established under the Local Courts Act
1982.
relevant repeal date means that date on which the former Act is
repealed by the Local Court Act 2007.
3 Abolition of Local Courts
All former Courts are abolished on the relevant repeal date.
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Local Court Bill 2007
Schedule 4 Savings, transitional and other provisions
4 Continuation of judicial office
(1) A commission of appointment made under the former Act is, to the
extent that the commission has effect immediately before the relevant
repeal date, taken to have been issued under this Act.
(2) A person who, immediately before the relevant repeal date, held office
as a Magistrate under Part 3 of the former Act is, on that date, taken to
have been appointed as a Magistrate under this Act:
(a) subject to any conditions of the Magistrate's appointment under
the former Act, and
(b) if the person was appointed for a specified term--for the
remainder of that term.
(3) A person who, immediately before the relevant repeal date, held office
as the Chief Magistrate under Part 3 of the former Act is, on that date,
taken to have been appointed as Chief Magistrate under this Act.
(4) A person who, immediately before the relevant repeal date, held office
as a Deputy Chief Magistrate under Part 3 of the former Act is, on that
date, taken to have been appointed as a Deputy Chief Magistrate under
this Act.
5 Continuation of other offices
(1) A person who, immediately before the relevant repeal date, held office
as an Assessor under Part 7 of the former Act is taken to hold office
under this Act as an Assessor, subject to any terms and conditions
specified in the Assessor's instrument of appointment, for the remainder
of the term for which the person was appointed as an Assessor.
(2) A person who, immediately before the relevant repeal date, held office
as a registrar of a former Court under Part 2 of the former Act is taken
to hold office under this Act as a registrar.
(3) A person who, immediately before the relevant repeal date, held office
as a deputy registrar of a former Court under Part 2 of the former Act is
taken to hold office under this Act as a deputy registrar.
(4) Unless the Chief Magistrate otherwise directs, a direction is taken to
have been duly made under section 23 by the Chief Magistrate that a
registrar, deputy registrar or Assessor is to exercise his or her functions
at the designated place or places where he or she was entitled to exercise
his or her functions under the former Act immediately before the
relevant repeal date.
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Local Court Bill 2007
Savings, transitional and other provisions Schedule 4
6 Pending applications and proceedings under former Act
(1) Subject to subclause (2), this Act and the rules apply to proceedings
commenced before the relevant repeal date in the same way as they
apply to proceedings commenced on or after that date.
(2) The Court may make such orders dispensing with the requirements of
the rules in relation to the proceedings commenced before the relevant
repeal date, and such consequential orders (including orders as to costs),
as are appropriate in the circumstances.
7 Special jurisdiction
Any matter being dealt with by a former Court under Part 6 of the
former Act before the relevant repeal date is taken to form part of the
Court's special jurisdiction under Part 4.
8 Continuation of proceedings after Magistrate's vacation of office
Clause 4 of Schedule 1 applies in respect of proceedings commenced
before or after the commencement of that clause.
9 Designated places
A place at which a former Court could be held, pursuant to an
appointment made under section 6 (1) of the former Act, immediately
before the relevant repeal date is taken, on that date, to have been the
subject of a direction and notification by the Chief Magistrate, pursuant
to section 22, that each such place is a designated place for the purposes
of this Act.
10 General savings provision
(1) Subject to this Act and the regulations, anything done under or for the
purposes of a provision of the former Act is, to the extent that the thing
has effect immediately before the repeal of the provision, taken to have
been done under or for the purposes of the corresponding provision of
this Act.
(2) Without limiting subclause (1), any approval, authority or appointment
in force under a provision of the former Act immediately before the
repeal of the provision is taken to be an approval, authority or
appointment in force under the corresponding provision of this Act.
11 References to a Local Court
Subject to this Act and the regulations, a reference in another Act or in
an instrument made under an Act or in any document enacted or made
before the relevant repeal date to:
(a) a Local Court is to be read as a reference to the Local Court, and
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Local Court Bill 2007
Schedule 4 Savings, transitional and other provisions
(b) a registrar of a Local Court is to be read as a reference to a
registrar of the Local Court, and
(c) a deputy registrar of a Local Court is to be read as a reference to
a deputy registrar of the Local Court, and
(d) a Local Court at a particular place is to be read as a reference to
the Local Court sitting at that place.
Page 40
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