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TASMANIA
__________
MAGISTRATES COURT (MINOR CIVIL
CLAIMS) BILL 2003
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 4 amended (Establishment of civil division)
6. Section 5 repealed
7. Section 7 substituted
7. Monetary limit on jurisdiction
8. Section 7A repealed
9. Section 16 amended (Duties, &c., of bailiffs)
10. Section 17 repealed
11. Part 5, Division 4 inserted
Division 4 Minor civil claims
31AA. Proceedings to be in open court
31AB. Procedure for minor civil claims
31AC. Evidence and production of documents
31AD. Representation of parties
31AE. Contracting out prohibited
31AF. Costs, compensation and expenses
31AG. Estoppel
12. Section 34 amended (Practitioners' charges)
[Bill 51]-VI
13. Section 43 amended (Savings and transitional provisions)
14. Residential Tenancy Act 1997 amended
15. Residential Tenancy Amendment (Boarding Premises) Act
2003 amended
16. Magistrates Court (Small Claims Division) Act 1989
repealed
17. Consequential amendments
Schedule 1 Consequential Amendments
2
MAGISTRATES COURT (MINOR CIVIL
CLAIMS) BILL 2003
(Brought in by the Minister for Justice and Industrial
Relations, the Honourable Judith Louise Jackson)
A BILL FOR
An Act to regulate the procedure for minor civil
claims in the Magistrates Court, to make
consequential amendments to certain Acts and to
repeal the Magistrates Court (Small Claims
Division) Act 1989
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
Short title
1. This Act may be cited as the Magistrates Court (Minor
Civil Claims) Act 2003.
Commencement
2. (1) If the Residential Tenancy Amendment (Boarding
Premises) Act 2003 commences before the day on which
this Act receives the Royal Assent, section 14 of this Act
commences on that day.
(2) If this Act receives the Royal Assent before the
Residential Tenancy Amendment (Boarding Premises) Act
2003 commences, section 15 of this Act commences on the
day on which this Act receives the Royal Assent.
[Bill 51] 3
s. 3 No. Magistrates Court (Minor Civil Claims) 2003
(3) The remaining provisions of this Act commence
on the day on which this Act receives the Royal Assent.
Principal Act
3. In this Act, the Magistrates Court (Civil Division) Act
1992* is referred to as the Principal Act.
Section 3 amended (Interpretation)
4. Section 3 of the Principal Act is amended as follows:
(a) by omitting the definitions of "apprentice" and
"articled clerk";
(b) by inserting the following definition after the
definition of "Magistrates Rule Committee":
"minor civil claim" means
(a) a claim or counterclaim for
damages, or for the payment
of money, if the amount
claimed does not exceed
$5 000 or any other amount
as may be prescribed for the
purpose of this definition; or
(b) any other claim prescribed
in the regulations to be a
minor civil claim;
(c) by omitting "Committee;" from the definition
of "rules of court" and substituting
"Committee.";
*No. 27 of 1992
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2003 Magistrates Court (Minor Civil Claims) No. s. 5
(d) by omitting the definitions of "small claim"
and "small claims division".
Section 4 amended (Establishment of civil division)
5. Section 4(2) of the Principal Act is amended by omitting
"Subject to the Magistrates Court (Small Claims Division)
Act 1989, the" and substituting "The".
Section 5 repealed
6. Section 5 of the Principal Act is repealed.
Section 7 substituted
7. Section 7 of the Principal Act is repealed and the
following section is substituted:
Monetary limit on jurisdiction
7. (1) The Magistrates Court has a civil jurisdiction
which is to be limited to actions for an amount not
exceeding the prescribed amount.
(2) The Magistrates Court's civil jurisdiction
includes the jurisdiction to hear and determine
minor civil claims.
Section 7A repealed
8. Section 7A of the Principal Act is repealed.
5
s. 9 No. Magistrates Court (Minor Civil Claims) 2003
Section 16 amended (Duties, &c., of bailiffs)
9. Section 16 of the Principal Act is amended by omitting
subsection (6) and substituting the following subsection:
(6) Nothing in this section prohibits the
service of process in any proceedings by a party to
those proceedings if that process is authorized or
required to be served under the rules of court.
Section 17 repealed
10. Section 17 of the Principal Act is repealed.
Part 5, Division 4 inserted
11. After section 31 of the Principal Act, the following
Division is inserted in Part 5:
Division 4 Minor civil claims
Proceedings to be in open court
31AA. A proceeding in respect of a minor civil claim
is to be heard in open court unless the Court
considers that the administration of justice would be
rendered impracticable.
Procedure for minor civil claims
31AB. (1) The following provisions apply to a
proceeding in respect of a minor civil claim:
(a) the Court is not bound by the rules of
evidence but may inform itself on any
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2003 Magistrates Court (Minor Civil Claims) No. s. 11
matter in any manner that it considers
appropriate;
(b) the Court may itself elicit by inquiry
from the parties and the witnesses and
by examination of evidentiary material
produced to the Court the issues in
dispute and the facts necessary to decide
those issues;
(c) the proceeding is to take the form of an
inquiry by the Court into the matters in
dispute between the parties rather than
an adversarial contest between the
parties;
(d) the Court may itself call and examine
witnesses;
(e) the Court may, at the expense of the
Crown, appoint a person to inquire into,
and report upon, any question of fact
arising in the proceeding;
(f) the proceeding is to be conducted with as
little formality and technicality, and
with as much expedition, as the
requirements of this Act, the rules of
court and a proper consideration of the
issues in dispute permit.
(2) The Court is to give a report made to it
under subsection (1)(e) any weight that it considers
appropriate.
(3) The rules of court apply to, and in respect
of, a proceeding relating to a minor civil claim,
except in a case where the Court considers it
expedient and in the interests of justice that the
rules do not apply.
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s. 11 No. Magistrates Court (Minor Civil Claims) 2003
(4) A contravention of the provisions of this
section does not invalidate the hearing of the
proceeding in which the contravention occurs or of
an order made in that proceeding.
Evidence and production of documents
31AC. (1) In a proceeding in respect of a minor civil
claim
(a) evidence may be taken on oath or
affirmation; and
(b) subject to any lawful claim or right of
privilege, the Court may, by notice,
require a member or an officer of the
Consumer Affairs Council constituted
under the Consumer Affairs Act 1988 or
any other person to appear before it to
give evidence and to produce any
documents, books or things that are
specified in the notice; and
(c) evidence may, subject to this section, be
given orally or in writing.
(2) A person who gives evidence in writing in a
proceeding before the Court is to verify that evidence
by statutory declaration.
(3) The Court may, in its discretion, exempt a
person referred to in subsection (2) from complying
with that subsection.
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2003 Magistrates Court (Minor Civil Claims) No. s. 11
Representation of parties
31AD. (1) A legal practitioner is not to represent a
party to a proceeding in respect of a minor civil claim
unless
(a) another party to the proceeding is a legal
practitioner; or
(b) all parties to the proceeding agree; or
(c) the Court is of the opinion that the party
would be unfairly disadvantaged if not
represented by a legal practitioner.
(2) The Court may permit the representation
of a party by a legal practitioner at the hearing of
interlocutory proceedings if the Court considers it
appropriate to do so.
(3) A party to a proceeding in respect of a
minor civil claim who is a body corporate may be
represented by an officer or an employee of the body
corporate who is not a legal practitioner.
(4) If a person is subrogated to the rights of a
party to a proceeding in respect of a minor civil
claim, the Court may permit that person
(a) to appear in the proceeding on behalf of
that party; and
(b) to be represented in the same way as if
that person were a party to the
proceeding.
(5) The Court may permit a party, or a person
subrogated to the rights of a party, to be assisted by
a person who is not a legal practitioner if that person
is not receiving a fee or reward for that assistance.
9
s. 11 No. Magistrates Court (Minor Civil Claims) 2003
(6) The Court may permit a party to be
represented by an agent who is not a legal
practitioner at a hearing or at an interlocutory
proceeding.
(7) A contravention of the provisions of this
section does not invalidate the hearing of the
proceeding in which the contravention occurs or of
an order made in that proceeding.
Contracting out prohibited
31AE. (1) This Division has effect notwithstanding
any stipulation to the contrary in a contract and no
contract operates to annul, vary, limit or exclude any
of the provisions of this Division.
(2) This Division applies to a contract
notwithstanding a provision in it that the proper law
of the contract is the law of a place other than
Tasmania if, apart from that provision, that proper
law would be the law of Tasmania.
Costs, compensation and expenses
31AF. (1) In a minor civil claim, costs for getting
the action up to trial or by way of counsel fees are
not to be awarded unless
(a) all parties to the action were
represented by counsel; or
(b) the Court is of the opinion that there are
special circumstances justifying the
award of costs.
(2) The Court may award compensation to a
party in a proceeding before it if the Court considers
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2003 Magistrates Court (Minor Civil Claims) No. s. 12
that the minor civil claim to which the proceeding
relates is a frivolous or vexatious claim.
Estoppel
31AG. The determination of an issue in a minor
civil claim does not prevent the parties from again
litigating the same issue in different proceedings
based on a different claim.
Section 34 amended (Practitioners' charges)
12. Section 34 of the Principal Act is amended as follows:
(a) by omitting from paragraph (a) "; and";
(b) by omitting paragraph (b).
Section 43 amended (Savings and transitional
provisions)
13. Section 43 of the Principal Act is amended as follows:
(a) by inserting the following subsection after
subsection (3):
(4) If an action has been commenced and
not finally disposed of under the Magistrates
Court (Small Claims Division) Act 1989 before
the commencement of the Magistrates Court
(Minor Civil Claims) Act 2003
(a) the rules of court as in force
immediately before that
commencement apply to, and in
respect of, that action except in so
far as the rules permit judgment
11
s. 14 No. Magistrates Court (Minor Civil Claims) 2003
to be entered against a defendant
in default of entering a defence;
and
(b) a party to that action has the same
right to apply for a prerogative
writ as if the Judicial Review Act
2000 had not been enacted.
(b) by inserting the following subsections after
subsection (5):
(6) A judgment or order made before the
commencement of the Magistrates Court
(Minor Civil Claims) Act 2003 by the Court in
a small claim as defined in this Act as then in
force may, on and after that day, be enforced
under this Act as if the judgment or order had
been made in a minor civil claim.
(7) The rules of court may contain any
provisions of a transitional nature that the
Magistrates Rule Committee considers
necessary or expedient consequent on the
enactment of the Magistrates Court (Minor
Civil Claims) Act 2003.
(8) In any Act, a reference to a small
claim is to be read as a reference to a minor
civil claim.
Residential Tenancy Act 1997 amended
14. Section 48J of the Residential Tenancy Act 1997 is
amended as follows:
(a) by omitting from subsection (1) "a magistrate"
and substituting "the Court";
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2003 Magistrates Court (Minor Civil Claims) No. s. 15
(b) by omitting from subsection (2) "the
magistrate" and substituting "the Court";
(c) by omitting subsection (3) and substituting the
following subsection:
(3) The appeal is to be heard as a minor
civil claim under the Magistrates Court (Civil
Division) Act 1992 and, subject to this section,
is to be instituted, heard and determined as
prescribed.
Residential Tenancy Amendment (Boarding
Premises) Act 2003 amended
15. Section 48J of the Residential Tenancy Act 1997, as
proposed to be inserted by section 19 of the Residential
Tenancy Amendment (Boarding Premises) Act 2003, is
amended as follows:
(a) by omitting "a magistrate" from subsection (1)
and substituting "the Court";
(b) by omitting "the magistrate" from subsection
(2) and substituting "the Court";
(c) by omitting subsection (3) and substituting the
following subsection:
(3) The appeal is to be heard as a minor
civil claim under the Magistrates Court (Civil
Division) Act 1992 and, subject to this section,
is to be instituted, heard and determined as
prescribed.
13
s. 16 No. Magistrates Court (Minor Civil Claims) 2003
Magistrates Court (Small Claims Division) Act 1989
repealed
16. The Magistrates Court (Small Claims Division) Act
1989 is repealed.
Consequential amendments
17. The legislation specified in Schedule 1 is amended as
specified in that Schedule.
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2003 Magistrates Court (Minor Civil Claims) No. sch. 1
SCHEDULE 1 CONSEQUENTIAL AMENDMENTS
Section 17
Access to Neighbouring Land Act 1992
1. Section 3 is amended by omitting "small claims division
of the Magistrates Court" from paragraph (b) of the
definition of "the court" and substituting "Magistrates
Court".
2. Section 11(2) is amended by omitting "either a
magistrate or the small claims division of the Magistrates
Court, as the Supreme Court considers to be convenient to
the parties" and substituting "the court".
Irrigation Clauses Act 1973
1. Section 2(1) is amended as follows:
(a) by inserting the following definition after the
definition of "lake":
"minor civil claim" means a minor
civil claim within the meaning of
the Magistrates Court (Civil
Division) Act 1992;
(b) by omitting the definition of "small claim".
2. Section 20(4)(a) is amended by omitting "small claim,
by the small claims division of the Magistrates Court" and
substituting "minor civil claim, by the Magistrates Court".
15
sch. 1 No. Magistrates Court (Minor Civil Claims) 2003
Magistrates Court Act 1987
1. Section 3 is amended by inserting after the definition of
"Magistrates Court" the following definition:
"minor civil claim" means a minor civil claim
within the meaning of the Magistrates Court
(Civil Division) Act 1992;
2. Section 15AE is amended as follows:
(a) by inserting the following subsection after
subsection (2):
(2A) Without limiting the generality of
subsection (1)
(a) rules of court may be made for, or
with respect to
(i) the practice and procedure of
a magistrate in determining
a minor civil claim; and
(ii) the powers and functions
that a registrar, mediator or
conciliator may exercise, or
be required to perform, in
respect of a minor civil
claim; and
(b) the rules may provide for, or with
respect to, the holding of a
conference by a registrar, mediator
or conciliator in respect of a minor
civil claim; and
(c) rules made for the purpose of
paragraph (b) may
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2003 Magistrates Court (Minor Civil Claims) No. sch. 1
(i) prescribe the purpose for
which a conference referred
to in that paragraph is to be
held; and
(ii) authorise a registrar to
delegate to an officer of the
Magistrates Court of which
he or she is the district
registrar or deputy district
registrar the performance of
his or her functions, and the
exercise of his or her powers,
in respect of the holding of a
conference under those
rules; and
(iii) provide for, or with respect
to, the representation of the
parties to a conference and
the parties who are not
entitled to be present at the
conference; and
(iv) provide for, or with respect
to, the adjournment of a
conference; and
(v) provide for, or with respect
to, the bringing about of an
agreement between the
parties to a proceeding as a
result of a conference.
(b) by inserting in subsection (3)(e) "or the
Magistrates Court (Minor Civil Claims) Act
2003" after "Justice (Delegated Legislation) Act
2003";
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sch. 1 No. Magistrates Court (Minor Civil Claims) 2003
(c) by omitting from subsection (3)(e) "that Act"
and substituting "the Act".
Residential Tenancy Act 1997
1. Section 3(1) is amended by omitting the definition of
"magistrate".
2. Section 16 is amended as follows:
(a) by omitting from subsection (1) "a magistrate"
and substituting "the Court";
(b) by omitting from subsection (2) "magistrate"
and substituting "Court".
3. Section 20(3)(d) is amended by omitting "a magistrate"
and substituting "the Court".
4. Section 23 is amended as follows:
(a) by omitting from subsection (1) "a magistrate"
and substituting "the Court";
(b) by omitting from subsection (2) "magistrate"
and substituting "Court";
(c) by omitting from subsection (3) "magistrate"
and substituting "Court".
5. Section 30 is amended as follows:
(a) by omitting from subsection (1) "a magistrate"
and substituting "the Court";
(b) by omitting from subsection (3) "magistrate"
and substituting "Court";
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2003 Magistrates Court (Minor Civil Claims) No. sch. 1
(c) by omitting from subsection (4) "magistrate"
and substituting "Court".
6. Section 32(4) is amended by omitting "a magistrate"
and substituting "the Court".
7. Section 36 is amended as follows:
(a) by omitting from subsection (1) "a magistrate"
and substituting "the Court";
(b) by omitting subsection (4) and substituting the
following subsection:
(4) The Court may order that the
owner
(a) reimburse the tenant for the full
amount or part of the amount as
the Court considers appropriate;
or
(b) is not liable to reimburse the
tenant for any of the amount.
8. Section 37(1)(d) is amended by omitting "a magistrate
or".
9. Section 41 is amended as follows:
(a) by omitting from subsection (1) "a magistrate
or";
(b) by omitting from subsection (2) "magistrate or"
twice occurring.
10. Section 45 is amended as follows:
(a) by omitting from subsection (1) "a magistrate
or";
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sch. 1 No. Magistrates Court (Minor Civil Claims) 2003
(b) by omitting from subsection (2) "on the same
day as the application is made" and
substituting "a reasonable time before the
application is heard";
(c) by omitting from subsection (3) "magistrate
or".
11. Section 46 is amended as follows:
(a) by omitting from subsection (1) "a magistrate"
and substituting "the Court";
(b) by omitting from subsection (3) "magistrate"
and substituting "Court".
12. Section 47(1) is amended by omitting "a magistrate"
and substituting "the Court".
13. Section 48(1)(c) is amended by omitting "a magistrate"
and substituting "the Court".
14. Section 57 is amended as follows:
(a) by omitting from subsection (3) "a magistrate"
and substituting "the Court";
(b) by omitting from subsection (4) "magistrate"
and substituting "Court".
20 Government Printer, Tasmania