JUSTICE LEGISLATION AMENDMENT BILL (NO. 2) 2007 Explanatory Statement

Northern Territory Explanatory Statements

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JUSTICE LEGISLATION AMENDMENT BILL (NO. 2) 2007

2007

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

Justice Legislation Amendment Bill (No 2) 2007
SERIAL NO. 122

EXPLANATORY STATEMENT

GENERAL OUTLINE

This Bill amends various Acts within the Justice portfolio.

The Construction Contracts (Security of Payments) Act is amended to clarify how parties may withdraw an application for adjudication prior to any determination being made. It also clarifies payments for adjudicators in matters which are withdrawn prior to determination.

The Criminal Property Forfeiture Act is amended so as to clarify that an interim restraining order can be issued for a total of three working days. The three month time limit on a restraining order has been removed. Courts may now impose restraining orders for longer periods if they see fit to do so.

The Legal Profession Act is amended to provide clarification on costs assessments.

The Victims of Crime Assistance Act is amended to ensure that corporations convicted of criminal offences are liable to pay a victims’ levy.

NOTES ON CLAUSES

PART 1 – PRELIMINARY MATTERS

Clause 1. Short Title

This is a formal clause which provides for the citation of the Bill.
The Bill when passed may be cited as the Justice Legislation Amendment Act (No 2) 2007.

Clause 2. Commencement

The act commences on a date to be fixed by the Administrator and notified in the Gazette.

PART 2 – AMENDMENT OF THE CONSTRUCTION CONTRACTS (SECURITY OF PAYMENTS) ACT

Clause 3. Act amended

The Act being amended in this Part is the Construction Contracts (Security of Payments) Act

Clause 4. Amendment of section 28

The 28 day time limit for bringing an application for adjudication is extended to 90 days. This new section will apply to disputes which arise prior to the commencement of the Act.

Clause 5. New Section 28A

This new section permits a party seeking adjudication to withdraw prior to adjudication. This may be done by a written notice served on the prescribed appointer, an adjudicator if one has been appointed and the other party. If an adjudicator has already been appointed the application with withdrawn may be refused if the other party objects and the adjudicator forms the opinion there is a legitimate interest in obtaining a determination.

Clause 6. Amendment of section 36 (Costs of parties to payment disputes)

Parties to a dispute are liable for their own costs unless an appointed adjudicator determines the costs incurred were as a result of frivolous or vexatious conduct, or baseless submissions.

Clause 7. Amendment of section 39 (Dismissed Applications)

Reasons for the dismissal of an application should be provided to the parties and to the Registrar.

Clause 8. Amendment of section 46 (Costs of adjudications)

Adjudicators are entitled to be paid for their work at the prescribed rate, irrespective of whether the application is withdrawn under section 28A, dismissed under section 33(1)(a), or whether the adjudicator makes a determination under section 33(1)(b).

Adjudicators must continue to agree to a rate of pay between themselves and the parties, which must not be more than the maximum rate prescribed by the Regulations. Alternatively, adjudicators must publish their rate pursuant to section 55 of the Act.

Clause 9. Amendment of Schedule

Clause 6(2) (a) is amended so that claimants now have 14 days to issue a notice of dispute. Clause 6(2) (b) is amended so that a party has 28 days to pay a disputed claim.

PART 3 – AMENDMENT OF THE CRIMINAL PROPERTY FORFEITURE ACT

Clause 10. Act amended

This Part amends the Criminal Property Forfeiture Act.

Clause 11. Amendment of section 40(4) (interim restraining order)

This section clarifies that an interim restraining order is valid for
3 working days. It does not expire if the third day falls on a weekend or statutory holiday.

Clause 12. Amendment of section 51 (Duration of restraining order)

Restraining orders will no longer be valid for a 3 month period.
Rather, the court may determine the appropriate length of time a restraining order may operate when an application is initially made under section 51(1), and any subsequent applications for an extension under section 51(2).

PART 4 – AMENDMENT OF THE LEGAL PROFESSION ACT

Clause 13. Act amended.

The Act being amended in this part is the Legal Profession Act.

Clause 14. Amendment of section 4 (Definitions)

A definition of “determination” is given.

Clause 15. Amendment of section 323 (setting aside costs agreements)

Section 323(10) is amended to delete the word “Registrar” and replace it with the word “reviewer”. The note to section 323 is also amended.

Clause 16. Amendment of section 326 (notice of client’s rights)
Section 326(1) (a) is amended to include a cross reference to mediation as one of the options that must be contained in a notice of client’s rights.

Clause 17. Amendment of section 344 (determination of costs assessment)

Section 344 is amended so that a determination for an application for a costs assessment can be made even though a bill has not yet issued. This can be done either by confirming the amount of costs paid, or substituting an amount deemed by the assessor to be a fair and reasonable amount.

Clause 18. Amendment of section 345(7) (certificate of determination)

The reference to section 346 is repealed and substituted with
section 350.

Clause 19. Repeal and Substitution of section 346 (determination of costs of costs assessment)

The new section 346 clarifies what must occur after a costs assessor determines an application for a costs assessment under section 344.

Once the section 344 application has been determined, the costs assessor must determine the costs of the costs assessment. If a determination regarding the costs of the costs assessment is made, a certificate specifying the costs may be issued. The certificate may include costs determined by one or more costs assessor. If the certificate is filed with a court of competent jurisdiction, it is taken to be a judgment of the court for the amount of unpaid costs.

The costs assessor may refer a question of law to the Supreme Court, which may then make orders it considers appropriate concerning the costs of the costs assessment.

Clause 20. Repeal and Substitution of section 350 (recovery of costs of costs assessment)

Once a section 347 determination has been made on the costs of a costs assessment, section 350 has application.

A costs assessor may require one party to pay the costs of the costs assessment, or for all parties to share in the costs in a manner considered appropriate by the costs assessor.

Costs must be paid by the legal firm to which the costs subject of the costs assessment are payable or were paid, if the assessor is satisfied the firm failed to comply with Division 3 of the Act, or if the assessment reduces the legal costs by 15% or more.

The costs assessor may refer a question of law to the Supreme Court, which may then make orders it considers appropriate concerning the recovery of the costs of the costs assessment.

Clause 21. Amendment of section 351 (definition)

The definition of “determination” is inserted into the section. This is of a costs assessor, and includes an order or determination made by the costs assessor under section 323.

Clause 22. Amendment of section 352 (application by party for review of determination)

Section 351(1) is expanded to permit applications to a reviewer for a review of a costs assessor’s determination for determinations made under sections 323, 344 or 346.

Section 352(2)(a) is expanded to clarify the time in which to apply for a review is 28 days for a determination made under sections 323, 344 or 346, unless the reviewer permits further time.

Clause 23. Amendment of section 353(1) (reviewer may review determination of costs of costs assessment)

The reference to section 346(6) is repealed and substituted with 346 only.

Clause 24. Amendment of section 358(4) (a) (recovery of costs of review)

Reference to section 351 is omitted and replaced with 352.

Clause 25. Amendment of section 361 (appeal against determination or decision)

Section 361(1) is amended to permit appeals against a determination or decision.

Section 361(2) clarifies that any reference to a costs assessor is to be taken as a reference to the reviewer and that Subdivision 6 (Appeals) applies to the determination or decision of the reviewer.

Clause 26. Amendment of section 366(4) (Costs Assessors)

This amendment removes the reference to “legal practitioner” and replaces it with “lawyer”. This clarifies that both judicial registrars and Supreme Court masters can conduct costs assessments, notwithstanding they may not be the holder of a current practicing certificate.

PART 5 – AMENDMENT OF VICTIMS OF CRIME ASSISTANCE
ACT

Clause 27. Act amended.

The Act being amended in this Part is the Victims of Crime Assistance Act.

Clause 28. Amendment of section 61 (imposition of levy)

This clause inserts a levy payable upon corporations convicted of certain criminal offences. The amount payable is $200, which is 5 times the amount payable by an adult individual ($40).

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