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Civil Justice Reform
CIVIL JUSTICE REFORM BILL 1998
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The objectives of this legislation are--
(a) to provide adequate powers and procedures for the making of
uniform court rules for civil proceedings in the Supreme, District
and Magistrates Courts in Queensland and to generally reform the
rule making powers applicable to those courts
(b) to make necessary consequential amendments to other legislation
that will be redundant or inconsistent with uniform court rules
and to provide a sufficient basis in principal legislation for the
uniform rules generally, especially in relation to the enforcement
of court decisions
(c) to reform the law regulating the relationship between solicitors
and their clients in relation to fees and costs
(d) to provide for the establishment of a single Small Claims
Tribunal and for certain other reforms to enhance the efficiency of
that jurisdiction, including the establishment of the position of
Tenancy Claims Administrator.
Reasons for the objectives and how they will be achieved
This Bill provides the necessary basis for the making of uniform court
rules for the conduct of civil litigation in the Supreme, District and
Magistrates Courts in Queensland. The making of such rules will allow
court procedures across the State, and at all levels of the court system, to be
more consistent and less complicated. Such rules will also allow for the
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more efficient use of court resources and for better use to be made of
modern technology. The new rules will give judges and magistrates better
tools to reduce delay in the court system. The new uniform rules will be
called the Uniform Civil Procedure Rules and will constitute the most
comprehensive update of civil court procedures in almost a century.
The making of uniform court rules was a Coalition Government
commitment before the last general election.
This Bill will ensure that there is sufficient power in principal legislation
for the making of uniform rules and for all of the matters it is presently
proposed that the rules will contain. The Bill will also ensure that there will
be an appropriate level of consultation with, and concurrence by, the
judiciary in relation to the Uniform Civil Procedure Rules.
The provisions in the Bill relating to redundant or inconsistent legislation
are important to ensure that the law with respect to court procedures is as
clear and consistent as possible.
The Bill also contains changes to the law regulating the relationship
between solicitors and their clients about fees and costs. The present
system, providing only limited protection for clients, dates from last
century. It is centred on a costs assessment or auditing process, called
taxation, conducted by an officer of the Supreme Court. It fails to
adequately address the increased use of agreements between solicitors and
their clients or the importance to consumers of fostering competition in the
provision of legal services. The new scheme to be inserted by this Bill, will
result in a more modern system, better suited to the needs of consumers of
legal services at the end of the twentieth century.
The proposed changes to the Small Claims Tribunals Act 1973 arose out
of an examination of the operation and jurisdiction of small claims tribunals
and small debts courts conducted by a working party of the Department of
Justice, established by the Attorney-General and Minister for Justice in
1997. The changes recommended by that working party, which included
administrative as well as legislative measures, will help improve the
efficiency of the small claims jurisdiction. This will be especially so in
respect of residential tenancies cases.
The recommendation of the working party in relation to small debts
courts, that they be abolished and that the jurisdiction be taken up by the
Magistrates Courts exercising a special "minor debt claims" jurisdiction, is
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also reflected in this Bill.
Administrative cost to Government of implementation
The administrative cost of implementing the new uniform rules will be
minimal, constituting a modest expenditure on internal registry staff training
which, it is intended, will be met out of present departmental allocations
with respect to the administration of the courts. Such training will be
assisted by the fact that the new procedures will be substantially the same
for the Supreme, District and Magistrates Courts.
Indeed, the new rules will require around 90 per cent fewer court forms,
contain simpler and more flexible procedures and allow court registries to
make better use of technology to improve efficiency. Moreover, the
uniformity of the procedures contained in the new rules will permit greater
staff mobility in the future.
The Bill inserts provisions into the Supreme Court of Queensland Act
1991 and District Court Act 1967, creating the position of judicial registrar
in each of those courts. Modelled on the Commonwealth equivalents of
these positions, judicial registrars will deal with such matters as applications
made to the court in the course of proceedings and case management. The
introduction of such judicial officers will free the time available for judges
in the Supreme and District Courts to hear trials and to prepare written
reasons for their decisions, thereby allowing for a more efficient
deployment of judicial resources.
The salary and allowances of the judicial registrars, and the number
required, has yet to be determined. The provisions inserted by the Bill do
not require these positions to be filled immediately upon commencement,
allowing for further consultation with the judiciary and for a proper
assessment to be made of the number of such appointments to be made,
salary levels and where the judicial registrars are to be based.
Fundamental legislative principles
The Bill is consistent with the fundamental legislative principles
contained in section 4 of the Legislative Standards Act 1992.
In this context, however, it may be noted that proposed new section 134
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of the Supreme Court of Queensland Act 1991, inserted by this Bill, states
that the uniform court rules will prevail, to the extent of any inconsistency,
over the Supreme Court Act 1995. Although the uniform court rules will be
subordinate legislation and the 1995 Act is principal legislation, this
delegation of power is appropriate for these reasons--
· It allows the rules to prevail over the Supreme Court Act 1995,
but not to amend or repeal that Act.
· The rules will not prevail over any other Act.
· The subject matter of the rules themselves will be limited to
essentially procedural provisions and some other related matters,
like evidence. Therefore, the rules will not be capable of affecting
the more fundamental provisions in the 1995 Act.
· The rules and any amendments to the rules will be subject to
disallowance by the Legislative Assembly.
· The rules will have been produced as a result of an extensive
consultation process and the consent of the judiciary will be
required in relation to the making of, and any amendments to, the
rules.
· The 1995 Act was never passed as an Act by the Parliament but
was created by the Statute Law Revision Act (No. 2) 1995, when
the Supreme Court Act 1921 was renamed and a number of other
older enactments were relocated into it. This was done without a
detailed examination of the provisions of the various Acts that
were relocated. It is intended that the arrangement whereby the
rules may prevail over the 1995 Act is only to be a temporary one
until a thorough assessment of that Act can be undertaken.
· Towards that end, the Bill provides that one of the functions of
the new Rules Committee, to be chaired by the Chief Justice and
to be made up of members of judiciary from the Supreme,
District and Magistrates Courts, will be to examine the 1995 Act
and advise the Minster about the repeal, reform or relocation of
the provisions of that Act.
The amendment to section 118 of the District Court Act 1967, contained
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in schedule 2 of this Bill, operates retrospectively. This amendment is
essential to clarify that section 118 of the District Courts Act 1967, as
amended by the Courts Reform Amendment Act 1997, does not prevent
persons from appealing to the Court of Appeal from decisions on an appeal
under section 222 of the Justices Act 1886. Chapter 67 of the Criminal
Code contains rights of appeal from judgements of the District Court on
indictable offences.
Section 4(3)(g) of the Legislative Standards Act 1992 provides that one
of the fundamental legislative principles is whether legislation adversely
affects rights and liberties, or imposes obligations, retrospectively. This
amendment to the District Court Act 1967does not breach this provision.
The amendment is necessary to clarify that rights of appeal were not
removed by the Courts Reform Amendment Act 1997.
Consultation
This Bill is a product of the development process for uniform court rules
for the Supreme, District and Magistrates Courts in Queensland. The Bill
must be seen in this context.
A draft set of uniform rules, the Uniform Civil Procedure
Rules--Consultation Draft, was launched in October 1997 and comment
from the judiciary, the legal profession and members of the public was
sought, including by advertisements in major Queensland newspapers. A
supplement to the consultation draft, about lawyers' costs and probate, was
released in January 1998. This included draft provisions of this Bill about
the relationship between solicitors and their clients about fees and costs.
As a result of this process, over 70 submissions were received, including
from all levels of the judiciary, departments, agencies, professional
associations, interest groups and individuals. In addition, the Department of
Justice was involved in a two day seminar on the rules, conducted by the
Queensland University of Technology. Leading lawyers and judicial
officers were panellists. In relation to the finalisation of the rules,
consultation is ongoing. This represents the most extensive consultation
process ever undertaken in Queensland about the civil justice system in this
State.
The consultation draft and supplement identified key legislative areas
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requiring amendment and also made clear the heads of rule making power
and other provisions requiring principal legislation.
In addition, the proposed uniform rules are themselves based on a draft
prepared by a Supreme Court Working Committee set up in 1983 by the
then Chief Justice, Sir Walter Campbell. It was chaired by the Honourable
Justice Williams. The draft of this committee was finally produced in 1991.
The draft uniform rules also contain provisions drawn from the work of the
Litigation Reform Commission's projects that were unfinished at the time
that it ceased to function.
Mr Bernard Cairns, of the University of Queensland's TC Beirne School
of Law and leading Australian author in the field of civil procedure, is the
principal consultant to the project.
In relation to the changes to the Small Claims Tribunals Act 1973, the
departmental working party (called the Small Claims and Small Debts
Working Party), whose recommendations led to these inclusions in this
Bill, also undertook extensive public consultation. This also included calling
for submissions through advertisements in major Queensland newspapers.
Ultimately, over 50 submissions were received from a wide cross-section
of stakeholders.
Versions of the draft of the Bill were also sent to the Chief Justice of
Queensland, Chief Judge of District Courts, Chief Stipendiary Magistrate,
Queensland Law Society and Bar Association of Queensland.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Short Title
Clause 1 sets out the short title of the Bill.
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Commencement
Clause 2 sets out when certain parts of the Bill will commence. Sections
11 and 21 will commence on assent. These provisions concern the expiry of
rules of court (and related matters) and the establishment of the Rules
Committee, respectively. One provision, contained in schedule 2 of the Bill,
commences, retrospectively, on 1 August 1997. The remaining provisions
of the Bill will commence on a date to be fixed by proclamation.
PART 2--AMENDMENT OF QUEENSLAND LAW
SOCIETY ACT 1952
Act amended in pt 2
Clause 3 states that this part amends the Queensland Law Society Act
1952.
Amendment of s 3 (Definitions)
Clause 4 inserts four new definitions. A "client agreement" is defined as
an agreement under new section 48. Paragraph (b) provides that it is also an
agreement for work entered into in situations where the work is urgent or
where the amount charged as fees is $750 or less. Such agreements do not
need to comply with section 48. The new definition of "costs" is stated to
include disbursements. There is a new definition of "court" that is
consistent with the way that term is used in the new provisions inserted by
this Bill. The new definition of "fees" states that the term means charges for
work, other than costs, of a practitioner or firm. "Firm" is defined to mean
a firm of practitioners.
Amendment of s 6F (Tribunal rules)
Clause 5 amends section 6F by adding to the list of matters about which,
without limiting section 6F(2), the Solicitors Complaints Tribunal may
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make rules. The matters listed in new section 6F(2)(a), (b) and (c) will also
help facilitate assessments to be carried out under new division 6A.
Insertion of new s 6FA
Clause 6 inserts a new section 6FA, which operates with new section
6F(3)(a) to permit the chairperson of the tribunal to approve costs assessors
who have qualifications as set down by the tribunal's rules. It also requires
the clerk of the tribunal to keep a list of those approved.
Amendment of s 6K (Hearings of allegations involving overcharging)
Clause 7 amends section 6K to permit the tribunal, where a costs
assessor has been engaged by it, to set a fee to cover the cost of the
assessor's report and to decide who must pay it.
Insertion of new div 6A
Clause 8 inserts a new division 6A in part 2A of the Act to contain the
following --
section 6ZA states that the division applies if a client is given an account
that complies with new section 6ZA(a)(i) or (ii) and the client applies to the
tribunal for the clerk to appoint a costs assessor to assess the account. The
division does not apply if the agreement is for a lump sum amount only or
the client falls into one of the categories in section 6ZA(2)(b).
section 6ZB provides that if a client asks for a costs assessor to be
appointed under this division, the client is taken to dispute only the amount
payable and may not subsequently challenge the validity or enforceability of
the agreement the client has with the solicitor or firm.
section 6ZC provides that the clerk of the tribunal may appoint a costs
assessor from the list kept for that purpose by the clerk.
section 6ZD provides that the parties may agree about who must pay the
costs assessor's fee. Where there is no agreement, and the account is
reduced by 20% or more by the assessor, the solicitor of firm must pay all
of the assessor's fee. Otherwise, in the absence of agreement, the client is to
pay the fee. It is to be noted that the tribunal may make rules about the fees
allowable to costs assessors under new section 6F(3)(c).
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section 6ZE provides when costs assessments carried out under this
division will be binding on the parties. This will occur if the client or
practitioner or firm agree or if no application to a court to decide the
reasonableness of the agreement under new section 6ZF has been made at
the end of 30 days. If the costs assessment is binding, section 6ZE(2)
provides that it may be enforced as a debt for the assessed amount and that
the parties may not subsequently challenge the amount payable.
section 6ZF works in conjunction with section 6ZE and permits a
client or practitioner or firm to apply to a court having jurisdiction for the
amount stated in the account for that court to decide the reasonableness of
the fees and costs charged by that account. The application must be made
within 30 days of the costs assessment. Reference should also be had here
to new section 48Q. The 30 day limitation may be extended by the court
under section 6ZF(2), but not if parties have agreed that the assessment is
binding under section 6ZE(1).
In deciding the reasonableness of the fees and costs, the court may
appoint someone to assess them, including a tribunal costs assessor. A
provision specifically states that the court may also receive in evidence
written costs assessment and have regard to matters contained in them
It is provided that the court may make any order it considers appropriate,
including that a party pay an amount to another party.
Insertion of new pts 4A and 4B
Clause 9 inserts a new part 4A and a new part 4B. These provisions
concern client agreements and the payment of solicitors for their work.
When reading these new sections, regard should be had to the new
definition of "client agreement" inserted by this Bill. The following
provisions are included--
section 48, the first provision in new part 4A, states the circumstances
when a written client agreement under this section is required and what the
agreement must contain. The section does not apply to urgent work or
where the maximum amount a practitioner or firm charges as fees is $750
or less. The agreement must be in clear plain language. Section 48(2) and
(3) provide what the agreement must specify. Section 48(4) provides that
the notice in the new schedule, inserted by this Bill, must be given to the
client before the client signs it. The client agreement must not be
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inconsistent with the notice. This information, for consumers of legal
services, is not required if the client is of a category mentioned in section
48(6).
Reference should be had to new section 48F for the consequences of a
failure to comply with section 48.
section 48A states that a client agreement may be enforced in a court in
the same way as any other contract. This provision is based on section
101(1) of the Legal Practice Act 1996 (Victoria).
section 48B provides expressly about the amendment of client
agreements and that, if it is an agreement to which section 48 applies, the
parties to it must agree to such amendment in writing.
section 48C provides that a client agreement may not include a provision
preventing a civil liability (including liability for negligence) attaching to the
practitioner or firm, or relieving the practitioner or firm from a
responsibility the practitioner or firm would otherwise have had. This
provision is based on section 27 of the Legal Practitioners Act 1995,
formerly section 6 from the Solicitors Act 1891.
The provision permits the giving of advice qualified by, or conditional
on, information not available, where that advice is clearly specified as
qualified and conditional and the client is properly warned about acting on
that advice.
section 48D prohibits provisions about contingency fees and costs as
described by the section. The section does not apply to the extent that a
client agreement adopts the relevant scale for the work as provided by rules
or regulation and does not prevent a practitioner or firm charging a lesser
amount if the outcome, such as the amount recovered in litigation, is less
than that which was sought. The provision is based on section 99 of the
Legal Practice Act 1996 (Victoria).
section 48E provides that a client agreement must not include a
provision by which a client's interest in a proceeding is transferred to a
practitioner or firm instead of the client being required to pay fees and costs.
The provision is based on section 31 of the Legal Practitioners Act 1995,
formerly section 10 of the Solicitors Act 1891.
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section 48F provides for the consequence of a failure to comply with
section 48 and also provides that the effect of a prohibited provision under
this part is that that provision is void.
section 48G provides that a practitioner must disclose client agreements,
or the fees and costs payable for work done for a client, in a proceeding
before a court or tribunal about the work done or payment for that work.
section 48H, the first provision in new part 4B, defines "tribunal costs
assessor" for this part.
section 48I states the maximum amount of fees and costs that a
practitioner or firm may charge and recover from a client for work done.
Different provisions apply where there is, and where there is not, a client
agreement The provisions applying where there is no client agreement will
be relevant where, for example, an agreement is void under section 48F(1).
The section also provides that an "extraordinary item of work", a defined
term, must be expressly authorised by the client.
section 48J provides that a practitioner or firm may not start proceedings
to recover costs and fees unless the client has been given an account that
complies with section 48J(1). In addition, the practitioner or firm is required
to obtain the court's leave if it has been 1 month or less since the account
was given to the client or the client has applied for an assessment by a
tribunal costs assessor under new division 6A of part 2A (inserted by this
Bill).
section 48K states that in proceedings to recover costs and fees, a court
may appoint someone, including a tribunal costs assessor, to assess an
account and may make an order about the fee of the person appointed.
However, there is an exception if a tribunal costs assessor has already
assessed the account and the parties are bound by it as provided by section
6ZE.
section 48L expressly states that the court may receive in evidence a
written costs assessment of a tribunal costs assessor or an assessment of
someone appointed by the court, and have regard to the matters contained in
it.
section 48M states that the client may change practitioner or firm at any
time, despite any provision to the contrary in a client agreement. It also
provides that the original firm may still recover fees and costs from a client
for work done before the client gave notice of the change. The section does
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not affect any rights on the part of the solicitor or firm to maintain or
enforce a lien or charge for unpaid fees or costs.
section 48N, the first provision in division 4 of new part 4B, states that
the provision applies to costs assessors appointed by the clerk of the
Solicitors Complaints Tribunal or by a court.
section 48O is designed to facilitate assessments by costs assessors and
to ensure they obtain all relevant information needed to carry out those
assessments. This is achieved by requiring clients, practitioners or firms to
comply with all reasonable requests for information made by a costs
assessor in relation to assessments of that practitioner's or firm's account. It
will be possible to apply to an appropriate court for an order about
disclosure under this section. The section does not affect any rights on the
part of the solicitor or firm to maintain or enforce a lien or charge for unpaid
fees or costs.
section 48P requires a costs assessor to make a written assessment.
section 48Q provides that the costs assessment is not concluded until the
costs assessor has given a copy of the assessment to both the client and the
practitioner or firm. This is relevant, for example, for the running of the
time periods under sections 6ZE and 6ZF.
section 48R protects costs assessors from civil liability arising out of
functions performed by them under this Act that are performed honestly
and without negligence. If a costs assessor is not liable, by operation of
section 48R(1), the State is liable instead.
section 48S is based on section 208T of the Legal Profession Act 1987
(NSW) and ensures that information gained by costs assessors as a result
of their work is not disclosed other than as allowed by the section.
section 48T states that privilege, such as legal professional privilege,
attaching to a document or thing is not affected by disclosure to a costs
assessor.
Insertion of new s 56 and sch
Clause 10 inserts new section 56 which provides for transitional
arrangements with respect to costs agreements made under the Legal
Practitioners Act 1995. These are deemed to be client agreements.
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Section 56(2), (3) and (4) provide for transitional arrangements for
retainers that are not costs agreements, in force immediately before the
commencement of the section. The purpose of this section is to ensure that
solicitors and their clients whose relationship is governed by those retainers,
enter into client agreements instead. Rights under the Legal Practitioners
Act 1995, as it stood before amendment by this Bill, to the taxation of bills
of costs under these retainers, are maintained and once the Uniform Civil
Procedure Rules come into force, those rules will provide for the
assessment of those bills. As these retainers are progressively replaced by
client agreements, recourse to pre-existing taxation rights will become
increasingly less common.
Also inserted by a clause 10, is a new schedule to the Act containing a
notice to clients which must be given to clients under section 48. It is an
important information statement, in plain and clear language, of some of a
client's rights as a consumer of legal services. It will also help ensure that
the client is supplied with sufficient details, especially in relation to what the
services will cost, to make an informed decision before signing the client
agreement.
PART 3--AMENDMENT OF SUPREME COURT OF
QUEENSLAND ACT 1991
Act amended in pt 3
Clause 11 states that this part amends the Supreme Court of Queensland
Act 1991.
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Amendment of title
Clause 12 amends the title of the Act to more accurately reflect its
contents after amendment by this Bill.
Amendment of s 2 (Definitions)
Clause 13(1) renames the definition provisions as the dictionary. Clause
13(2) removes the definitions of "court", "Supreme Court Acts" and
"Supreme Court jurisdiction Act", which will no longer be required after
amendment of this Act by the Bill. Clause 13(3) inserts a number of
definitions relevant to amendments to the Supreme Court of Queensland
Act 1991. Clause 13(4) relocates the dictionary to the end of the Supreme
Court of Queensland Act 1991 as a schedule.
Insertion of new s 2
Clause 14 provides for the definition of words used in the Supreme
Court of Queensland Act 1991 to be defined in the dictionary in the
schedule for that purpose.
Insertion of new pt 2, div 4
Clause 15 inserts a number of provisions in part 2 dealing with the
powers, qualifications and limitations for judicial registrars. In particular, it
inserts the following--
section 27A(1) and (2) provide for the Governor in Council to appoint as
judicial registrars, lawyers with at least five years standing. A judicial
registrar may only be removed from office by the Governor in Council for
proven incapacity or misbehaviour. A judicial registrar is an officer of the
court. Reference should also be had to new section 73.
section 27B provides for the judicial independence of judicial registrars.
section 27C provides for the review of the decisions of a judicial
registrar if a party is dissatisfied with the judicial registrar's decision. The
court as constituted by a Supreme Court judge will rehear the application, if
it grants leave, if a party is dissatisfied with the judicial registrar's decision.
The court may impose conditions if it grants leave, which relate to the
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rehearing. Such conditions will ensure, for example, that the entitlement to
such a rehearing will not be abused.
section 27D provides for the terms of appointment of a judicial registrar
and for the publication of certain matters in the gazette.
section 27E provides that a judicial registrar is to retire at 70 years of
age.
section 27F provides for the continuity of entitlements and service if a
judicial registrar is appointed from the public service or if a judicial registrar
is appointed to an office of the public service.
Amendment of s 56 (Single judge to constitute court)
Clause 16 provides for renumbering of subsections 56(3) and (4) as
subsections (4) and (5) respectively and inserts a new subsection (3)
allowing the court to be constituted at any place. The new position of
judicial registrar is recognised in subsection (4).
Insertion of new pt 7
Clause 17 inserts part 7 into the Supreme Court of Queensland Act 1991.
Part 7 is an extensive part which applies to the Supreme Court, District
Court and Magistrates Courts and establishes necessary provisions which
will allow the introduction of uniform court rules.
The provisions in this part will work in conjunction with the new
uniform court rules. These provisions are those parts of that scheme that it
is most appropriate, in light of the fundamental legislative principles
(FLPs), to reflect in principal rather than subordinate legislation.
The following provisions are inserted--
section 71 applies the new part to the Supreme Court, District Court and
Magistrates Courts in respect of civil proceedings and contempt of court
proceedings.
section 72 defines "court" as either the Supreme Court, District Court or
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Magistrates Courts, as the context requires.
section 73 allows a judicial registrar to constitute the court to hear and
decide applications prescribed by the uniform rules. This effectively allows
the courts to control the jurisdiction of judicial registrars. The judicial
registrar has, for the purpose of the applications he or she can deal with, all
the jurisdiction and powers of the relevant court other than power to punish
for contempt.
section 74(1) allows the Supreme Court to order a civil proceeding
pending in the Magistrates Court to be transferred to the Supreme Court.
Section 74(2) allows the Supreme Court to impose conditions on any
transfer of a matter to the Supreme Court.
section 75 provides for the transfer by the Supreme Court of matters
within the Magistrates Courts jurisdiction to that court to be dealt with in the
same way as other matters dealt with in the Magistrates Court.
section 76 provides that, if a proceeding is transferred under this new
division, costs are to be determined according to the scale of costs
applicable in the court where the proceeding was pending when the costs
were incurred.
section 77 provides that agreements reached at either a directions
conference or conference required for claims for damages for personal
injury or death, are to be treated in the same way as other compromises and
the outcome is to be recorded in writing.
section 78 restricts the use of evidence or admissions obtained at
conferences mentioned in section 77, unless all the parties agree to the use
of the evidence or admissions or it is evidence of a resolution agreement
under that section.
section 79 makes it clear that wherever a court has power to make an
order or give a direction, this can be done on the application of a person or
on the court's own initiative, whether or not the parties have sought an
order.
section 80 makes it clear that a court, in making an order, giving a
direction, granting leave or doing any other thing, may impose appropriate
conditions.
section 81 empowers a court to allow an amendment whether or not it
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adds a cause of action that arose after the proceedings were started. It also
allows the substitution or addition of parties, even if a limitation period has
expired since the proceedings were commenced. It overcomes situations
such as where a company against which a proceeding has been commenced
does not disclose that the proper defendant in a proceeding was a related
company, until after the limitation period has expired.
section 82 provides for representative orders which can be enforced
against other parties with the same interest in the proceeding if the leave of
the court is obtained. Such orders bind persons outside the immediate
litigation, unless the court orders otherwise.
section 83 sets out what a court may do on an application for relief by
way of interpleader and the effect of such orders.
section 84 provides that a default judgment order recorded and issued by
a registrar has the same effect as if it were a judgment order made by the
relevant court.
section 85 supports the ability of the District Court and Magistrates
Court to dismiss proceedings after two years have elapsed for want of
prosecution. The Supreme Court has always had inherent jurisdiction to do
this.
section 86 provides that enforcement proceedings can be commenced
without the need for a demand on a party. Service of an order if required
under an Act, rule or by some order of the court, is sufficient without a
demand being made.
section 87 provides that the rate of interest under the Supreme Court Act
1995, section 48, or higher rate if agreed, is the rate of interest to be payable
on a money order debt.
section 88 is designed to ensure that in proceedings against partnerships,
orders of the court can be made against the those who, when they are
ascertained, were partners at the time the cause of action arose.
section 89 sets out the property an order against a partnership can be
enforced against.
section 90 provides for the cases where proceedings have been
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commenced against a person, partnership or company that carries on
business under a style or name other than his, her or its own name (whether
or not registered under the Business Names Act 1962) and an order has
been made in that other name. The court has power to vary the order from
one in that other name to one in the name of the person, partners or
company that carried on business under that name.
section 91 ensures that an order in proceedings against someone carrying
on business in a name or style other than the person's own name, whether
or not registered under the Business Names Act 1962, may be enforced
against the property of the person carrying on the business even if the order
is entitled in the business name.
section 92 brings to an end an enforcement warrant one year after its
issue or an earlier time stated in the warrant.
section 93 provides that payment under an enforcement warrant is a
discharge to the extent of the payment.
section 93A provides that to recover a money order, an enforcement
warrant has to be obtained from the court. It then lists the orders which
may be included in an enforcement warrant and that charging orders are
limited to the Supreme Court.
section 93B(1) and (2) provide that the enforcement officer holds
various choses in action as security for the amount to be recovered under
the enforcement warrant for the benefit of the enforcement creditor and
enables the enforcement officer to receive payment with respect to those
choses in action. The section also deals with the recovery of amounts owed
to an enforcement debtor under a seized document.
section 93C provides for an enforcement warrant to redirect an
enforcement debtor's share of a joint fund of money. Such a fund is
presumed to be owned in equal shares unless by decision of the court, on
the application of a fund owner or enforcement creditor, a different
entitlement is determined.
section 93D provides for the recovery of debts owing to an enforcement
debtor from the State and the need to name the chief executive of the
relevant public sector unit.
section 93E allows for redirection of debts owed to an enforcement
debtor by a partnership that carries on business in Queensland, even if a
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partner resides outside Queensland.
section 93F allows for the payment of money owed to an enforcement
debtor from a financial institution without meeting the conditions such as
completing withdrawal forms which may be required by the institution and
extends to monies paid into a financial institution after the date of the
enforcement warrant and before any hearing determining the validity of the
warrant.
section 93G puts it beyond doubt that the enforcement creditor has the
same entitlement to enforce a debt against a third party as the enforcement
debtor had.
section 93H provides protection to an employee from dismissal by an
employer because of an enforcement warrant authorising redirection of
earnings.
section 93I provides that if a cause of action survives the death of a
defendant or respondent, then, subject to an order of the court, the
proceedings are taken to continue against the personal representative in the
capacity of personal representative of the estate.
section 93J provides that if a cause of action survives the death of a
defendant or respondent and there is no grant of representation, the
proceeding is taken to be brought against the person's estate. If a grant of
representation is made afterwards, then, unless the court orders otherwise,
the proceeding is taken to be against the personal representative in the
capacity of personal representative of the estate. Any order of the court
made before the grant of representation will bind the estate.
Insertion of new pt 8B
Clause 18 inserts a new part 8B and facilitates the relocation of section
40 of the Legal Practitioners Act 1995 to the Supreme Court of Queensland
Act 1991.
Replacement of pt 9 heading (Rules of court)
Clause 19 amends the heading of part 9 to reflect the new rule making
power for the Supreme Court, District Court and Magistrates Courts.
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Civil Justice Reform
Replacement of section 117 (Rule making power)
Clause 20 replaces the current section 117 with new sections 117 and
118. Section 118 contains a new rule making power, enabling the
Governor in Council to make rules for the Supreme, District and
Magistrates Courts. This power enables the making of uniform court rules
for the three courts. It also replaces the existing rule making powers in the
District Court Act 1967 and the Magistrates Courts Act 1921, which are
repealed by schedule 2 of this Bill. The subject matter for these rules is set
out in section 118(1) and in a new schedule to the Act, which is also
inserted by this Bill. Rules can only be made with the consent of the new
rules committee. Rules made other than in relation to matters referred to in
section 118(3), are to be called the Uniform Civil Procedure Rules.
Under new section 118A, the Rules Committee may approve the forms
to be used under the Act, which includes the Uniform Civil Procedure
Rules.
Insertion of new ss 118B-118C
Clause 21 inserts a new sections 118B and 118C.
section 118B provides that certain parts of the Statutory Instruments Act
1992 do not apply to rules of court, as defined by section 12 of that Act. In
particular, part 5, which contains requirements about Regulatory Impact
Statements (RISs), will not apply to rules of court. Rules govern the
practices and procedures of courts and the matters and processes associated
with such impact statements would inappropriately involve the judiciary in
the matters and deliberations of executive government.
Similarly, rules of court are exempted generally from staged automatic
expiry of legislation. An arbitrary system of automatic expiry is
inappropriate for such rules. However, in relation to the items listed in
section 118B(2)(b), which are matters to be subsumed in new uniform
court rules, an area in need of reform for modern conditions and on which
work is well advanced, an extension to 31 December 1998 only is
appropriate.
section 118C provides for the establishment of a Rules Committee by
the Chief Justice and for the membership of that committee. The members
are from the judiciary and include the Chief Justice, President of the Court
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of Appeal, Chief Judge of the District Court and Chief Stipendiary
Magistrate, or their respective nominees. The consent of the committee is
required for the making of rules under new section 118 and for forms. The
committee is to advise the Minister about the repeal reform or relocation of
the Supreme Court Act 1995 and other laws by which these courts have
jurisdiction. There are also some procedural provisions about the meetings
of the committee.
Insertion of new ss 118D-118E
Clause 22 inserts the following--
section 118D expressly provides for the making of practice directions,
including about case management. The section does not affect the inherent
power of a court or judge to make practice directions and they are declared
not to be subordinate legislation, to remove any doubt.
section 118E provides for the making of directions by courts where the
conduct of a proceeding is not provided for by rules of court. In making
such directions, the court may have regard to practices and procedures,
including rules of court, that were in force before the Uniform Civil
Procedure Rules.
Amendment of s 120 (Regulation-making power)
Clause 23 amends section 120 by providing some specific matters about
which the Governor in Council may make regulations under the Act. These
matters include, the prescription of fees and costs (to replace current
schedules of fees and scales of costs contained in rules of court and
elsewhere, for the Supreme Court, District Court and Magistrates Courts),
certain matters relating to electronic court documents and matters that the
Supreme Court Act 1995 permits or requires to be prescribed under that
Act.
An important aim of the provision is to facilitate a consolidation and
simplification of such instruments.
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Civil Justice Reform
Insertion of new ss 128-136
Clause 24 inserts the following--
section 128 removes the distinction between court and chambers for the
Supreme Court, District Court and Magistrates Courts.
section 129 abolishes all types of writs in aid of enforcement in existence
immediately before commencement and provides that a reference in any
law to those writs is a reference to the equivalent enforcement warrant under
the Uniform Civil Procedures Rules. The section does not affect the validity
of a writ in aid of enforcement issued before commencement.
section 130 provides that a reference in any Act or document to various
court documents and other things mentioned in column 1, in section 130(1)
and (2), have the meanings given to them by the corresponding reference in
column 2 in both those subscetions.
section 131 amends the reference in any Act or document to a judgment
in several contexts, is a reference to a judgment order.
section 132 provides for the exercise by judicial registrars of powers
formerly given to registrars, where the uniform rules so provide.
section 133 provides that a reference in an Act or document to the
taxation of costs is a reference to an assessment of costs and that a reference
to a taxation on a particular basis is a reference to the equivalent basis of
taxation specified under the Uniform Civil Procedure Rules.
section 134 provides that if a provision of the Supreme Court of
Queensland Act 1991, including the Uniform Civil Procedure Rules, is
inconsistent with the Supreme Court Act of 1995, the earlier Act is to prevail
to the extent of the inconsistency, which inconsistency includes direct
inconsistency and covering the field inconsistency.
section 135 provides a transitional arrangement for when the Uniform
Civil Procedure Rules commence for applications or proceedings already
commenced.
section 136 provides for transitional arrangements in relation to the
abolition of Circuit Courts. This abolition is achieved by amendments in
schedule 2 of the Bill to the Supreme Court Act 1995. Under amendments
to section 56 of the Supreme Court of Queensland Act 1991, by clause 16
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of the Bill, the Supreme Court can sit anywhere and be constituted at any
place. Circuit Courts will therefore be unnecessary for the Supreme Court to
serve regional Queensland.
section 137 provides that a rule in force under the existing provisions of
the Supreme Court of Queensland Act 1991 is taken to be made under
section 118 as amended by the Civil Justice Reform Act 1998. However,
such rules are not part of the Uniform Civil Procedure Rules, nor carry that
name.
Replacement of schs 1-2
Clause 25 replaces schedules 1 and 2 with a new schedule. This new
schedule, lists matters about which rules of court may be made under new
section 118. The scope of the rule making power under that section is not
limited by the matters listed in the schedule.
PART 4--MISCELLANEOUS
Amendments dealing with small claims--sch 1
Clause 26 states that schedule 1 of the Bill amends the Small Claims
Tribunals Act 1973.
Acts amended in sch 2
Clause 27 states that schedule 2 of the Bill amends the Acts mentioned in
it.
SCHEDULE 1
AMENDMENTS TO SMALL CLAIMS TRIBUNALS
ACT 1973
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The majority of amendments contained in schedule 1 replace references
to small claims tribunals with references to the single Small Claims
Tribunal established by this Bill. Those amendments are not specifically
referred to herein. The schedule includes the following other sections--
Schedule 1, clause 3 omits a commencement provision which is
unnecessary.
Schedule 1, clause 4 flags in the interpretation provision of the Act, a
reference to the "central registry", which is defined in new section 13(2).
Schedule 1, clause 6 increases the "prescribed amount" from $5 000 to
$7 500.
Schedule 1, clause 11 omits the definition of "small claims tribunal".
Schedule 1, clause 13 inserts a new definition of "tribunal".
Schedule 1, clause 14 omits part 2, division 1, the division 2 heading and
sections 11 and 12. These are replaced by the following new provisions
establishing the Small Claims Tribunal--
section 5 establishes the small claims tribunal.
section 6 provides that members of the small claims tribunal are
magistrates or other persons appointed as referees under the Small Claims
Tribunal Act 1973. Section 6(2) provides that the tribunal can be
constituted by a referee sitting as the tribunal in its tenancy division or its
general division.
section 7 provides that the tribunal can be constituted at any place and
can sit in more than one place at the same time.
section 8 provides for the appointment of a Tenancy Claims
Administrator, who must be a magistrate appointed as the tenancy claims
administrator by the Governor in Council. The person may be appointed
both magistrate and administrator at the same time. The tenancy claims
administrator continues to hold office as a magistrate during the person's
appointment as administrator. Section 8(5) provides that the Governor in
Council may revoke the administrator's appointment as tenancy claims
administrator. However, section 8(6) provides that the revocation of
appointment as administrator does not affect the person's tenure as a
magistrate. Section 8(7) provides that the remuneration and conditions of
the administrator are identical to those of a magistrate.
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Civil Justice Reform
section 9 provides that the tribunal is divided into a tenancy division and
a general division.
section 10 provides that the tribunal's tenancy division is to be
administered by the tenancy claims administrator. Section 10(2) sets out
the responsibilities of the tenancy claims administrator in relation to the
tenancy division.
section 11 provides that the general division of the small claims tribunal
is to be administered as decided by the Chief Stipendiary Magistrate.
section 12 provides that each magistrate is a referee. Section 12(2)
provides that the chief executive may appoint other persons as referees if it
is necessary to appoint such persons to enable the tribunal to function
properly. Referees who are not magistrates are employed under the Public
Service Act 1996.
section 12A provides that the function of a referee constituting the small
claims tribunal is to decide the issue in dispute in a proceeding in a way that
is fair and equitable. Section 12A(2) provides that the referee may also
refer the issue for mediation under the Dispute Resolution Centres Act 1990
or mediate the dispute personally.
Schedule 1, clause 15 amends section 13(2) and provides that there is to
be a central registry for the small claims tribunal in the metropolitan district.
Schedule 1, clause 20 inserts section 14(2)(e) to include as records of the
small claims tribunal, other documents filed in the registry in relation to the
claim.
Schedule 1, clause 22 provides that the records of the small claims
tribunal shall also be open for inspection by the chief executive officer of the
Residential Tenancies Authority and the Minister.
Schedule 1, clause 23 amends section 15 by providing for the
appointment of a registrar and other officers necessary to administer the
tribunal and the central registry.
Schedule 1, clause 30 amends section 18 by providing that settlements
or orders made by the small claims tribunal are final and binding on the
parties subject to section 18(2) and section 19, which is amended by this
Act to provide for enlarged rights of review.
Schedule 1, clause 33 amends the reference to writs of certiorari in
section 19 with a reference to relief or remedy in the nature of writs of
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certiorari because this type of relief only is now available under the Judicial
Review Act 1991.
Schedule 1, clause 35 amends section 19 by providing for an application
to a District Court for an order in relation to the tribunal's order on the
grounds of error of law (if written reasons have been supplied), denial of
natural justice or lack of jurisdiction. This application has to be made within
28 days of the making of the tribunal's order.
Schedule 1, clause 43 amends section 22A to facilitate the giving of
reasons for orders in all matters decided by the tribunal that fall within the
terms of section 22A(1)(b).
Schedule 1, clause 49 amends section 23A(3)(c)(i) to permit
examinations to be taken at a tribunal registry at or near the place which the
person required by the order to pay money ordinarily resides, carries on
business or has a principal place of business.
Schedule 1, clause 52 amends section 23A(5) by omitting a reference to
the Magistrates Courts Rules 1960 and inserting a reference to rules of
court applicable to Magistrates Courts.
Schedule 1, clause 54 inserts section 24(1B) to provide that applications
in the metropolitan district must be filed in the central registry.
Schedule 1, clause 55 inserts new subsections (3), (4) and (5) in section
24 to facilitate the making of cross-claims by respondents arising out of the
same transaction or event or series of transactions or events as the
claimant's claim. Both claims will be dealt with together unless the tribunal
otherwise orders.
Schedule 1, clause 60 inserts a new section 26A requiring respondents to
advise the registrar if the respondent intends to appear at the hearing of the
claim.
Schedule 1, clause 68 omits section 33(1) which provides that every
proceeding before the tribunal other than a tenancy application must be held
in private.
Schedule 1, clause 69 amends section 33(1A) to provide that a
proceeding must be held in private if it is a tenancy application that requires
the tribunal to consider domestic violence issues under the Residential
Tenancies Act 1994, or the tribunal otherwise orders.
Schedule 1, clause 70 inserts a new section 33(1B) to facilitate the giving
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of directions about persons who may be present at a hearing held in private.
Schedule 1, clause 72 amends section 33(2)(b) to provide that evidence
may be given on oath. The Acts Interpretation Act 1954, section 36, defines
"oath" to include affirmation, declaration and promise.
Schedule 1, clause 74 and 76 amend section 34 to provide that subject to
this section, and without limiting section 34A, the tribunal may resolve the
proceeding on the evidence presented to it, in circumstances where the case
of any party is not presented to the tribunal.
Schedule 1, clause 77 inserts a new section 34A which enables the
registrar to make orders where a respondent has failed to notify the registrar
of an intention to appear at a hearing. The registrar is able to resolve the
issue in dispute in the proceedings on the evidence available and make any
order the tribunal can make.
Schedule 1, clause 79 amends section 35(2) to enable the tribunal to order
the respondent to pay amounts other than the prescribed fees that are
allowed under a regulation. This would in future allow, for example, for
certain costs associated with the issue and service of subpoenas, which may
now be provided for by regulation after this Bill (see Schedule 1, clause 97),
to be recovered.
Schedule 1, clause 80 inserts a new section 35A to provide for rehearing
of decisions of the registrars by the tribunal.
Schedule 1, clauses 95 to 98 amend the current regulation making power.
Schedule 1, clause 99 inserts transitional provisions that continue the
effect of orders made by small claims tribunals and provide that matters
pending in small claims tribunals are to be continued in the small claims
tribunal. The appointments of referees are also continued.
SCHEDULE 2
AMENDMENTS OF OTHER ACTS
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Civil Justice Reform
DISTRICT COURT ACT 1967
The District Court Act 1967 is amended by inserting provisions required
by the amendments to the Supreme Court of Queensland Act 1991 made by
this Bill. Provisions dealing with the appointment of judicial registrars that
are in identical terms to the provisions of the Supreme Court of Queensland
Act 1991, are also inserted in the District Court Act 1967.
An amendment is made to section 118 of the District Court Act 1967. A
new application provision for section 118 which clarifies that the section
does not apply to an appeal from a judgment of the District Court in the
exercise of its criminal jurisdiction under part 4 of the District Court Act
1967, is inserted.
The rule making provision under this Act is also repealed, as it will be
replaced by the new uniform rule making provision under the Supreme
Court of Queensland Act 1991.
JUSTICES LEGISLATION (MISCELLANEOUS
PROVISIONS) ACT 1996
Part 22 of this Act is omitted. This part provided for the taxation by the
Clerk of the Court of solicitor and client bills of costs for work in certain
cases. This scheme is being omitted because it is inconsistent with the
provisions for the assessment of solicitor and client costs contained in this
Bill.
LAND ACT 1994 AND LAND TITLE ACT 1994
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Civil Justice Reform
These Acts are amended by inserting definitions of "enforcement
warrant" and "writ of execution" that are consistent with the provisions of
the Supreme Court of Queensland Act 1991.
LEGAL PRACTITIONERS ACT 1995
Amendments are made to this Act that are complementary to the
amendments contained in part 2 of this Bill.
MAGISTRATES COURTS ACT 1921
These amendments remove the definitions of action for a "small debt",
"Magistrates Courts jurisdiction Act" and "Small Debts Court".
Definitions of "minor claim" and "minor debt claim" are also inserted.
Provision is made for limitations on appeals in proceedings for minor
debt claims. This is consistent with present section 48, with respect to small
debt actions. That section is omitted.
A provisions allows Magistrates Courts to hear cases which they would
otherwise have been unable to hear because the amount involved would
have placed the matter outside jurisdiction of those courts. The provision is
similar to section 72 of the District Court Act 1967.
New provisions dealing with the contempt of court are included to
replace those currently contained in the Magistrates Courts Rules 1960,
which will be replaced by the Uniform Civil Procedures Rules. The new
provisions are taken from the present District Court Act 1967.
Section 12 is omitted to overcome an inconsistency with section 81 of
the District Court Act 1967.
The rule making provision under this Act is also repealed, as it will be
replaced by the new uniform rule making provision under the Supreme
Court of Queensland Act 1991.
SUPREME COURT ACT 1995
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These amendments remove redundant provisions in section 210 and also
abolish Circuit Courts.
© The State of Queensland 1998