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This is a Bill, not an Act. For current law, see the Acts databases.
Courts Legislation Amendment
Bill 2010
No , 2010
A Bill for
An Act to amend certain Acts and a Regulation with respect to courts and tribunals
and civil and criminal procedure.
Clause 1 Courts Legislation Amendment Bill 2010
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Courts Legislation Amendment Act 2010. 3
2 Commencement 4
(1) This Act commences on the date of assent to this Act, except as 5
provided by subsection (2). 6
(2) The amendments made by Schedule 1 commence on the day or days 7
specified in that Schedule in relation to the amendments concerned. If a 8
commencement day is not specified, the amendments commence on the 9
date of assent to this Act. 10
3 Explanatory notes 11
The matter appearing under the heading "Explanatory note" in 12
Schedule 1 does not form part of this Act. 13
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Courts Legislation Amendment Bill 2010
Amendment of Acts and Regulation Schedule 1
Schedule 1 Amendment of Acts and Regulation 1
1.1 Administrative Decisions Tribunal Act 1997 No 76 2
[1] Section 24A Constitution of Tribunal for exercise of interlocutory and 3
ancillary functions 4
Insert in alphabetical order in section 24A (1): 5
ancillary function means any of the following: 6
(a) the making of an order or other decision by the Tribunal 7
(including an Appeal Panel of the Tribunal) in relation to 8
the awarding of costs in proceedings in the Tribunal, 9
(b) the function of determining whether the Tribunal 10
(including an Appeal Panel of the Tribunal) has 11
jurisdiction to deal with a matter. 12
[2] Section 24A (2) and (2A) 13
Omit "interlocutory functions" wherever occurring. 14
Insert instead "interlocutory or ancillary functions". 15
[3] Section 24A (3) 16
Omit "interlocutory function". 17
Insert instead "interlocutory or ancillary function". 18
[4] Section 73 Procedure of the Tribunal generally 19
Insert after section 73 (5): 20
(5A) An application made to the Tribunal to reinstate proceedings 21
under subsection (5) (h) must be made: 22
(a) within 28 days after the Tribunal dismissed the 23
proceedings that are sought to be reinstated, or 24
(b) within such further time as the Tribunal may allow. 25
[5] Section 113 Right to appeal against appealable decisions of the Tribunal 26
Insert after section 113 (2D): 27
(2E) If an appeal is made under subsections (1) and (2) against the 28
exercise of an ancillary function (within the meaning of 29
section 24A) by the Tribunal, the Appeal Panel may be 30
constituted in the same way as an Appeal Panel may be 31
constituted under subsection (2B) in relation to appeals against 32
the exercise of an interlocutory function by the Tribunal. 33
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Courts Legislation Amendment Bill 2010
Schedule 1 Amendment of Acts and Regulation
(2F) The provisions of subsection (2E): 1
(a) have effect despite any other requirement of this Act or any 2
other enactment relating to the constitution of an Appeal 3
Panel for the exercise of its functions (including 4
section 24A), and 5
(b) do not prevent a differently constituted Appeal Panel from 6
determining an appeal under subsections (1) and (2) if the 7
Panel is duly constituted to exercise that function apart 8
from subsection (2E). 9
[6] Schedule 2 Composition and functions of Divisions 10
Omit "practising legal practitioner" from clause 3 (1) of Part 1. 11
Insert instead "judicial member". 12
[7] Schedule 5 Savings and transitional provisions 13
Insert at the end of clause 1 (1): 14
Courts Legislation Amendment Act 2010, to the extent that it 15
amends this Act 16
[8] Schedule 5 17
Insert at the end of the Schedule (with appropriate Part and clause numbers): 18
Part Provision consequent on enactment of 19
Courts Legislation Amendment Act 2010 20
Constitution of Tribunal in Community Services Division 21
The amendment made to clause 3 of Part 1 of Schedule 2 by the 22
Courts Legislation Amendment Act 2010 extends to proceedings 23
that were pending (but not yet heard) before the commencement 24
of the amendment. 25
Explanatory note 26
Items [1]-[3] of the proposed amendments to the Administrative Decisions Tribunal Act 27
1997 (the Act) enable the Administrative Decisions Tribunal to be constituted by a 28
single judicial member (in proceedings at first instance) or by a presidential judicial 29
member (in proceedings on appeal) for the purpose of determining costs or whether a 30
matter is within the Tribunal's jurisdiction. 31
Item [4] of the proposed amendments to the Act requires an application for the 32
reinstatement of proceedings that have been dismissed because of an applicant's 33
failure to appear to be made within 28 days after the dismissal of the proceedings or 34
such further period as the Tribunal may allow. 35
Item [5] of the proposed amendments to the Act enables an appeal to an Appeal Panel 36
from a decision of the Tribunal in relation to jurisdiction or costs to be heard by an 37
Appeal Panel constituted in the same way as an Appeal Panel may be constituted in 38
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Courts Legislation Amendment Bill 2010
Amendment of Acts and Regulation Schedule 1
relation to an appeal against an interlocutory decision. The amendment is 1
consequential on the amendments to the Act proposed to be made by items [1]-[3]. 2
Item [6] of the proposed amendments to the Act provides for the Tribunal in its 3
Community Services Division to be constituted in certain circumstances by 3 Division 4
members, one of whom must be a judicial member. Currently, the Act provides for the 5
Tribunal in that Division to be constituted by 3 Division members, one of whom must be 6
a practising legal practitioner. Item [8] of the proposed amendments inserts a 7
transitional provision relating to the amendment proposed to be made by item [6]. 8
Item [7] of the proposed amendments to the Act enables the Governor to make 9
regulations of a savings or transitional nature consequent on the enactment of the 10
proposed amendments to the Act. 11
1.2 Children and Young Persons (Care and Protection) Act 1998 12
No 157 13
[1] Section 3 Definitions 14
Omit "preliminary conference" from paragraph (b) of the definition of 15
non-court proceedings. 16
Insert instead "dispute resolution conference". 17
[2] Section 65 Dispute resolution conferences 18
Omit "preliminary conference" from section 65 (1), (1A) and (3) wherever 19
occurring. 20
Insert instead "dispute resolution conference". 21
[3] Section 65 (2) and (2A) 22
Omit section 65 (2). Insert instead: 23
(2) The purpose of a dispute resolution conference is to provide the 24
parties with an opportunity to agree on action that should be taken 25
in the best interests of the child or young person concerned. 26
(2A) In conducting a dispute resolution conference, a Children's 27
Registrar is to act as a conciliator between the parties. In so 28
doing: 29
(a) the Children's Registrar should seek to encourage the 30
parties to agree on action that should be taken in relation to 31
the child or young person concerned (including the 32
formulation of final or interim orders that may be made by 33
consent), or 34
(b) if the parties cannot agree on the action to be taken in 35
relation to the child or young person, the Children's 36
Registrar should encourage the parties: 37
(i) to identify areas of agreement between the parties, 38
and 39
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Courts Legislation Amendment Bill 2010
Schedule 1 Amendment of Acts and Regulation
(ii) to identify issues in dispute between the parties, and 1
(iii) to determine the best way of resolving any issues in 2
dispute, including by referring the application to 3
independent alternative dispute resolution, and 4
(iv) if it is not appropriate to refer the application to 5
independent alternative dispute resolution, to set a 6
timetable for the hearing of the application by the 7
Children's Court. 8
[4] Section 264 Regulations 9
Omit "preliminary conferences" from section 264 (1A) (c). 10
Insert instead "dispute resolution conferences". 11
[5] Schedule 3 Savings, transitional and other provisions 12
Insert at the end of clause 1 (1): 13
Courts Legislation Amendment Act 2010, to the extent that it 14
amends this Act 15
Explanatory note 16
Items [2] and [3] of the proposed amendments to the Children and Young Persons 17
(Care and Protection) Act 1998 (the Act) confirm that preliminary conferences held 18
under section 65 of the Act are intended to be used for the purpose of dispute 19
resolution. To emphasise this purpose, such conferences will be renamed as "dispute 20
resolution conferences" and the role of a Children's Registrar as a conciliator in such 21
conferences is reaffirmed. Items [1] and [4] of the proposed amendments make 22
consequential amendments. 23
Item [5] of the proposed amendments enables the Governor to make regulations of a 24
savings or transitional nature consequent on the enactment of the proposed 25
amendments to the Act. 26
1.3 Children and Young Persons (Care and Protection) 27
Regulation 2000 28
Clause 11 Protection of information disclosed in alternative dispute 29
resolution 30
Omit "preliminary conference" wherever occurring in paragraph (b) of the 31
definition of alternative dispute resolution in clause 11 (1). 32
Insert instead "dispute resolution conference". 33
Explanatory note 34
The proposed amendment to the Children and Young Persons (Care and Protection) 35
Regulation 2000 makes an amendment that is consequential on the renaming of a 36
preliminary conference under section 65 of the Children and Young Persons (Care and 37
Protection) Act 1998 as a dispute resolution conference by the amendments proposed 38
to be made to that section by Schedule 1.2. 39
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Courts Legislation Amendment Bill 2010
Amendment of Acts and Regulation Schedule 1
1.4 Children (Criminal Proceedings) Act 1987 No 55 1
[1] Section 41 Enforcement of conditions of good behaviour bond or 2
probation or compliance with outcome plan 3
Insert after section 41 (1): 4
(1A) Without limiting subsection (1), the Children's Court (in the case 5
of a person who is under the age of 21 years) or the Local Court 6
(in the case of a person who is of or above the age of 21 years) 7
may call on a person to appear before it if the Court suspects that 8
the person: 9
(a) has entered into a good behaviour bond, or been released 10
on probation, under section 33 (1), or been released under 11
section 33 (1) (c1) on condition that the person complies 12
with an outcome plan, and 13
(b) has failed to comply with a condition of the person's good 14
behaviour bond or probation, or has failed to comply with 15
the outcome plan. 16
(1B) If the person fails to appear after being called to do so under 17
subsection (1A), the Court may: 18
(a) issue a warrant for the person's arrest, or 19
(b) authorise an authorised officer to issue a warrant for the 20
person's arrest. 21
[2] Section 41 (2) 22
Insert "or (1B)" after "subsection (1) (d)". 23
[3] Schedule 2 Savings and transitional provisions 24
Insert at the end of the Schedule (with appropriate Part and clause numbers): 25
Part Courts Legislation Amendment Act 2010 26
Application of amendments to section 41 27
The amendments made to section 41 by the Courts Legislation 28
Amendment Act 2010 extend to a failure of a person of the kind 29
referred to in section 41 (1A) (as inserted by that Act) occurring 30
before the commencement of the amendments. 31
Explanatory note 32
Item [1] of the proposed amendments to the Children (Criminal Proceedings) Act 1987 33
(the Act) enables the Children's Court and the Local Court to call, of the Court's own 34
motion, on a person to appear before the Court if it suspects that the person has failed 35
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Courts Legislation Amendment Bill 2010
Schedule 1 Amendment of Acts and Regulation
to comply with a good behaviour bond or a condition of probation or outcome plan 1
determined under the Young Offenders Act 1997. Item [2] of the proposed 2
amendments to the Act makes a consequential amendment. 3
Item [3] of the proposed amendments to the Act inserts a transitional provision to 4
enable the Children's Court and the Local Court to use the new power to call on a 5
person to appear before the Court in relation to failures occurring before the 6
commencement of the amendments proposed to be made by items [1] and [2] of the 7
proposed amendments. 8
1.5 Children's Court Act 1987 No 53 9
Section 6A President of Children's Court 10
Omit section 6A (8). Insert instead: 11
(8) The President may, while holding office as the President, 12
exercise the jurisdiction of the District Court if: 13
(a) the President is requested to do so by the Chief Judge of the 14
District Court in relation to particular proceedings before 15
that Court, and 16
(b) the President agrees to the request. 17
Explanatory note 18
Section 6A of the Children's Court Act 1987 (the Act) provides that the President of the 19
Children's Court must be a District Court Judge. However, the section currently 20
prevents the President from exercising the jurisdiction of the District Court while he or 21
she holds office as President. 22
The proposed amendment to the Act will enable the President of the Children's Court 23
to agree to sit as a District Court Judge (if the workload of the Children's Court permits) 24
in particular proceedings before the District Court if requested to do so by the Chief 25
Judge of the District Court. 26
1.6 Civil Liability Act 2002 No 22 27
[1] Section 17 Indexation of maximum amount relating to non-economic 28
loss 29
Omit "in the Gazette" from section 17 (1) and (6) wherever occurring. 30
Insert instead "on the NSW legislation website". 31
[2] Section 26QA 32
Insert after section 26Q: 33
26QA Court may deal with victim claim on the papers 34
A court is to determine a victim claim made to it without 35
conducting a hearing unless it is satisfied that the interests of 36
justice require that a hearing be held in the presence of the parties. 37
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Courts Legislation Amendment Bill 2010
Amendment of Acts and Regulation Schedule 1
[3] Part 2A, Division 7 1
Insert after Division 6: 2
Division 7 Miscellaneous 3
26X Limitation on exemplary, punitive and aggravated damages 4
against protected defendant in cases of vicarious liability 5
(1) In an action against a protected defendant for the award of 6
personal injury damages where the act or omission that caused 7
the injury or death was a tort (whether or not negligence) of a 8
person for whose tort the protected defendant is vicariously 9
liable, a court cannot award exemplary or punitive damages or 10
damages in the nature of aggravated damages. 11
(2) Subsection (1) does not limit the application of section 21 to 12
actions for the award of personal injury damages to which this 13
Part applies. 14
Note. Section 21 provides that a court cannot award exemplary or 15
punitive damages or damages in the nature of aggravated damages in 16
an action for the award of personal injury damages where the act or 17
omission that caused the injury or death was negligence. 18
[4] Schedule 1 Savings and transitional provisions 19
Insert at the end of the Schedule (with appropriate Part and clause numbers): 20
Part Provision consequent on enactment of 21
Courts Legislation Amendment Act 2010 22
Application of section 26X 23
Section 26X (as inserted by the Courts Legislation Amendment 24
Act 2010) extends to civil liability arising, and any award of 25
damages in respect of such civil liability made, before the 26
commencement of the section, but not so as to affect any final 27
determination of legal proceedings made by a court or tribunal 28
before the commencement of the section. 29
Explanatory note 30
Publication of order under section 17 31
Item [1] of the proposed amendments to the Civil Liability Act 2002 (the Act) provides 32
for an order under section 17 of the Act to be published on the NSW legislation website 33
instead of in the Gazette. Orders made by the Minister under section 17 of the Act 34
enable the maximum amount of damages payable for non-economic loss for personal 35
injury imposed by the Act to be increased by reference to changes in the consumer 36
price index. 37
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Courts Legislation Amendment Bill 2010
Schedule 1 Amendment of Acts and Regulation
Determining victim claims on the papers 1
Item [2] of the proposed amendments to the Act provides for a victim claim made to a 2
court under Part 2A of the Act to be determined by the court without a hearing unless 3
the court is satisfied that the interests of justice require that a hearing be held in the 4
presence of the parties. 5
Recovery of exemplary, punitive or aggravated damages by offender in custody 6
Item [3] of the proposed amendments to the Act provides that a court cannot award 7
exemplary or punitive damages or damages in the nature of aggravated damages in an 8
action against a protected defendant for the award of personal injury damages in 9
respect of the death or injury of an offender in custody where the act or omission that 10
caused the injury or death was the tort of a person for which the protected defendant 11
was vicariously liable. Section 21 of the Act already makes similar provision in relation 12
to all actions in negligence for personal injury damages. 13
Savings and transitional provision 14
Item [4] of the proposed amendments to the Act provides for the amendment proposed 15
to be made by item [3] to extend to certain proceedings commenced before the 16
commencement of the amendment. 17
1.7 Civil Procedure Act 2005 No 28 18
[1] Part 9 Transfer of proceedings between courts 19
Insert after Division 2A: 20
Division 3 Transfer of proceedings between Supreme 21
Court and Industrial Court 22
150 Definitions 23
(1) In this Division: 24
transfer order means an order referred to in section 151 (1) or 25
(2). 26
transferee court means the court to which proceedings are to be 27
transferred pursuant to a transfer order. 28
transferor court means the court from which proceedings are 29
transferred pursuant to a transfer order. 30
(2) For the purposes of this Division, proceedings are related if the 31
matters with which they deal are so closely associated as to form 32
part of the same controversy. 33
151 Transfer of proceedings between Supreme Court and Industrial 34
Court 35
(1) If either the Supreme Court or the Industrial Court is satisfied, in 36
relation to proceedings before it, that it is more appropriate for 37
the proceedings to be heard in the other court, it may, on 38
application by a party to the proceedings or of its own motion, 39
order that the proceedings be transferred to the other court. 40
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Courts Legislation Amendment Bill 2010
Amendment of Acts and Regulation Schedule 1
(2) If either the Supreme Court or the Industrial Court is satisfied, in 1
relation to proceedings before it, that: 2
(a) there are related proceedings pending in the other court, 3
and 4
(b) it is more appropriate for the proceedings to be heard, 5
together with the related proceedings, in the other court, 6
it may, on application by a party to the proceedings or of its own 7
motion, order that the proceedings be transferred to the other 8
court and heard together with the related proceedings. 9
(3) No appeal lies against a decision of the transferor court to make, 10
or not to make, an order under this section. 11
152 Transfer orders 12
(1) A transfer order takes effect when it is made. 13
(2) A transfer order does not invalidate any order made or other thing 14
done in the proceedings before the order was made. 15
(3) Any order made by the transferor court (other than the transfer 16
order) may be varied or revoked by an order of the transferee 17
court. 18
153 Proceedings after transfer 19
(1) Subject to the rules of court applicable in the transferee court: 20
(a) any proceedings with respect to which a transfer order 21
takes effect continue in the transferee court: 22
(i) as if the proceedings had been duly commenced in 23
the transferee court on the date on which they were 24
commenced in the transferor court, and 25
(ii) as if any cross-claim in the proceedings had been 26
duly made in the transferee court on the date on 27
which it was made in the transferor court, and 28
(b) any proceedings with respect to which a transfer order 29
under section 151 (2) takes effect are to be heard together 30
with, and are taken to form part of, the related proceedings 31
in the transferee court. 32
(2) For the purposes of any proceedings continued in the transferee 33
court: 34
(a) any admission duly made in the transferor court is to be 35
treated as if it had been made in the transferee court, and 36
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Courts Legislation Amendment Bill 2010
Schedule 1 Amendment of Acts and Regulation
(b) in the case of proceedings affected by a transfer order 1
under section 151 (2), any process or other documentation 2
before the transferee court may be amended so as to reflect 3
the merger of the proceedings concerned. 4
(3) Subject to the rules of court applicable in the transferee court, the 5
power of the transferee court to make orders as to costs includes 6
a power to make orders with respect to the costs of: 7
(a) the application for, and the making of, the transfer order, 8
and 9
(b) any step taken in the proceedings before the transfer order 10
was made. 11
154 Jurisdiction of transferee court 12
The transferee court has, and may exercise, all of the jurisdiction 13
of the transferor court in relation to any proceedings to which a 14
transfer order relates, including jurisdiction to determine any 15
question arising in any such proceedings. 16
[2] Schedule 6 Savings, transitional and other provisions 17
Insert at the end of clause 1 (1): 18
Courts Legislation Amendment Act 2010 (but only to the extent 19
that it amends this Act) 20
Explanatory note 21
Item [1] of the proposed amendments to the Civil Procedure Act 2005 (the Act) enables 22
civil proceedings to be transferred between the Supreme Court and the Industrial 23
Court. 24
Item [2] of the proposed amendments to the Act enables the Governor to make 25
regulations of a savings or transitional nature consequent on the enactment of the 26
proposed amendments to the Act. 27
1.8 Criminal Procedure Act 1986 No 209 28
Schedule 1 Indictable offences triable summarily 29
Omit "$15,000" from item 8 (b) in Part 2 of Table 1. Insert instead "$60,000". 30
Explanatory note 31
The proposed amendment to the Criminal Procedure Act 1986 enables offences under 32
section 112 (1) of the Crimes Act 1900 to be dealt with summarily unless the prosecutor 33
or accused elects otherwise provided that the value of the property stolen or destroyed, 34
or the value of the damage to the property, does not exceed $60,000. Currently, the 35
value must not exceed $15,000 in order for the offence to be dealt with summarily. 36
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Courts Legislation Amendment Bill 2010
Amendment of Acts and Regulation Schedule 1
1.9 District Court Act 1973 No 9 1
[1] Section 13 Appointment and qualifications of Judges 2
Insert after paragraph (b) in the definition of qualified person in section 13 (2): 3
(c) without limiting paragraph (a) or (b), the Chief Magistrate 4
of the Local Court. 5
[2] Section 13 (3) 6
Insert after section 13 (2): 7
(3) The following provisions apply to and in respect of the Chief 8
Magistrate of the Local Court if he or she also holds office as a 9
Judge: 10
(a) service by the Chief Magistrate in the office of the Chief 11
Magistrate is, for the purposes of this Act (including 12
section 15) and the Judges' Pensions Act 1953, taken to be 13
service in the office of a Judge, 14
(b) the Chief Magistrate may not hear or determine an appeal 15
in his or her capacity as a Judge from any decision made 16
by the Chief Magistrate in his or her capacity as a 17
Magistrate of the Local Court, 18
(c) nothing in this Act or any other law requires the Chief 19
Magistrate to devote the whole of his or her time to the 20
duties of a Judge. 21
Note. Section 14 (5) of the Local Court Act 2007 enables a Chief 22
Magistrate who has been appointed as a Judge to exercise the 23
jurisdiction of the District Court while holding office as the Chief 24
Magistrate by arrangement with the Chief Judge. 25
Explanatory note 26
Item [1] of the proposed amendments to the District Court Act 1973 (the Act) enables 27
the Governor to appoint the Chief Magistrate of the Local Court as a Judge of the 28
District Court. 29
Item [2] of the proposed amendments to the Act sets out special provisions that will 30
apply to a Chief Magistrate who is also appointed as a Judge of the District Court in 31
connection with the exercise of his or her functions as a Judge. 32
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Courts Legislation Amendment Bill 2010
Schedule 1 Amendment of Acts and Regulation
1.10 Industrial Relations Act 1996 No 17 1
Section 162B 2
Insert after section 162A: 3
162B Exercise of Commission's functions by Industrial Registrar and 4
Registry officers 5
(1) The President may, by instrument in writing: 6
(a) direct that any function of the Commission under this Act 7
or the rules of the Commission may be exercised by the 8
Industrial Registrar, or by a Registry officer, in such 9
circumstances, and subject to such conditions, as are 10
specified in the instrument, and 11
(b) vary or revoke any such instrument. 12
(2) This section does not limit any provision of this Act by which the 13
Commission is constituted with respect to the exercise of the 14
Commission's functions. 15
Note. Similar instruments may be made under section 13 of the Civil 16
Procedure Act 2005 in relation to the functions of the Commission under 17
that Act and the uniform rules made under that Act. 18
Explanatory note 19
The proposed amendment to the Industrial Relations Act 1996 enables the President 20
of the Industrial Relations Commission to direct that specified functions of the 21
Commission under that Act or the rules of the Commission be exercised by the 22
Industrial Registrar or by a Registry officer. The proposed amendment mirrors the 23
power conferred on the President by section 13 of the Civil Procedure Act 2005 in 24
relation to functions conferred on the Commission by that Act and the uniform rules 25
made under that Act. 26
1.11 Land and Environment Court Act 1979 No 204 27
Section 11A 28
Insert after section 11: 29
11A Supreme Court Judges may act as Land and Environment Court 30
Judges 31
(1) This section applies to each of the Judges of the Supreme Court 32
(an eligible judicial officer) other than the following: 33
(a) the Chief Justice, 34
(b) the President of the Court of Appeal, 35
(c) the other Judges of Appeal, 36
(d) the Chief Judge at Common Law, 37
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Courts Legislation Amendment Bill 2010
Amendment of Acts and Regulation Schedule 1
(e) the Chief Judge in Equity, 1
(f) an acting Judge. 2
(2) An eligible judicial officer may act as a Judge for a particular 3
period or in relation to particular proceedings in the Court if: 4
(a) the Chief Judge certifies that it is expedient that the eligible 5
judicial officer should act as a Judge of the Court for the 6
period or in relation to the proceedings, and 7
(b) the eligible judicial officer consents to acting as a Judge for 8
the period or in relation to the proceedings, and 9
(c) the Chief Justice consents to the eligible judicial officer 10
acting as a Judge for the period or in relation to the 11
proceedings. 12
(3) The following provisions apply to and in respect of an eligible 13
judicial officer who acts as a Judge of the Court pursuant to the 14
provisions of this section: 15
(a) the eligible judicial officer has, while acting as a Judge, all 16
the powers, authorities, privileges and immunities of a 17
Judge of the Land and Environment Court, 18
(b) the eligible judicial officer may attend the sittings of the 19
Court for the purpose of giving judgment in, or otherwise 20
completing, any proceedings which have been heard by the 21
Court while the eligible judicial officer was acting as a 22
Judge in the proceedings even if the eligible judicial 23
officer is no longer acting as a Judge, 24
(c) the eligible judicial officer is not, while receiving 25
remuneration as a Judge of the Supreme Court, entitled to 26
remuneration for acting as a Judge of the Land and 27
Environment Court, 28
(d) any service of the eligible judicial officer while acting as a 29
Judge is taken for all purposes (including for the purposes 30
of the Supreme Court Act 1970 and the Judges' Pensions 31
Act 1953) to be service as a Judge of the Supreme Court, 32
(e) nothing in this Act or any other law requires the eligible 33
judicial officer to devote the whole of his or her time to the 34
duties of acting as a Judge of the Land and Environment 35
Court. 36
Explanatory note 37
The proposed amendment to the Land and Environment Court Act 1979 enables the 38
puisne Judges of the Supreme Court to act as Judges of the Land and Environment 39
Court. 40
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Courts Legislation Amendment Bill 2010
Schedule 1 Amendment of Acts and Regulation
1.12 Legal Profession Act 2004 No 112 1
[1] Section 302B 2
Insert after section 302A: 3
302B Costs assessment is to take into account GST 4
A costs assessor (or, in the case of a review of or an appeal 5
against a costs assessment, a panel under Subdivision 5 of 6
Division 11 or a court) is to take into account the GST (within the 7
meaning of the A New Tax System (Goods and Services Tax) 8
Act 1999 of the Commonwealth) referable to the provision of 9
legal services when making or reviewing a determination of legal 10
costs payable. 11
[2] Section 329 Regulations to provide for fixed costs 12
Insert after section 329 (1) (b): 13
(b1) fixing the costs payable for legal services provided in 14
connection with small claims applications (within the 15
meaning of section 379 of the Industrial Relations 16
Act 1996), 17
[3] Section 362 Costs fixed by regulations or other legislation 18
Insert "(b1)," after "(b)," in section 362 (1). 19
[4] Schedule 9 Savings, transitional and other provisions 20
Insert at the end of the Schedule (with appropriate Part and clause numbers): 21
Part Provision consequent on enactment of 22
Courts Legislation Amendment Act 2010 23
Application of section 302B 24
(1) Section 302B (as inserted by the Courts Legislation Amendment 25
Act 2010) extends to any applications for the assessment of costs 26
made (but not determined) before the commencement of that 27
section. 28
(2) However, section 302B does not extend to any application for a 29
review of, or any appeal against, an assessment of costs by a costs 30
assessor (whether the application for review or the appeal is made 31
before or after the commencement of that section) if the 32
assessment of costs was determined by the costs assessor before 33
that commencement. 34
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Courts Legislation Amendment Bill 2010
Amendment of Acts and Regulation Schedule 1
(3) For the purposes of this clause, an assessment of costs has been 1
determined by a costs assessor if a certificate setting out the cost 2
assessor's determination has been issued under section 368. 3
Explanatory note 4
Item [1] of the proposed amendments to the Legal Profession Act 2004 (the Act) 5
provides that the incidence of GST payable for legal services is to be taken into account 6
in determining legal costs that are payable in relation to the provision of those services. 7
The proposed amendment seeks to overcome uncertainty resulting from the decision 8
of the Court of Appeal in Boyce v McIntyre [2009] NSWCA 185 concerning whether the 9
GST referable to the provision of legal services can be taken into account by a costs 10
assessor. Item [4] enacts a transitional provision to confirm that the new provision 11
proposed to be inserted by item [1] extends to certain pending costs assessments. 12
Item [2] of the proposed amendments to the Act enables the regulations to provide for 13
the fixing of the costs payable for legal services provided in connection with small 14
claims applications (within the meaning of section 379 of the Industrial Relations Act 15
1996). Item [3] of the proposed amendments makes a consequential amendment. 16
1.13 Local Court Act 2007 No 93 17
[1] Section 14 18
Omit the section. Insert instead: 19
14 The Chief Magistrate 20
(1) The Governor may appoint a qualified person to be the Chief 21
Magistrate of the Local Court. 22
(2) A person is a qualified person if the person is: 23
(a) a Magistrate, or 24
(b) a Judge of the District Court. 25
(3) The appointment may be made: 26
(a) by the commission of a person's appointment as a 27
Magistrate or a Judge of the District Court, or 28
(b) by a subsequent commission under the public seal of the 29
State. 30
(4) The appointment of a person who is a Judge of the District Court 31
as the Chief Magistrate also operates to appoint the person as a 32
Magistrate. 33
(5) If the Chief Magistrate also holds office as a Judge of the District 34
Court, the Chief Magistrate may (while holding office as the 35
Chief Magistrate) exercise the jurisdiction of the District Court if: 36
(a) the Chief Magistrate is requested to do so by the Chief 37
Judge of the District Court in relation to particular 38
proceedings before that Court, and 39
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Courts Legislation Amendment Bill 2010
Schedule 1 Amendment of Acts and Regulation
(b) the Chief Magistrate agrees to the request. 1
Note. Section 13 of the District Court Act 1973 enables the Governor to 2
appoint the Chief Magistrate as a Judge of the District Court. 3
(6) Subsection (5) has effect despite clause 5 (Effect of employment 4
as Magistrate) of Schedule 1. 5
(7) Part 2 of Schedule 1 has effect with respect to the Chief 6
Magistrate. 7
[2] Schedule 1 Provisions relating to Magistrates 8
Omit "A" from clause 6. Insert instead "Subject to clause 10A, a". 9
[3] Schedule 1, clause 7 10
Omit "clause 8" from clause 7 (6). Insert instead "clauses 8 and 10B". 11
[4] Schedule 1, clause 10 12
Insert after clause 10 (2): 13
(2A) The Governor may not grant an approval under subclause (2) if 14
the Chief Magistrate holds office as a Judge of the District Court 15
unless the Chief Magistrate also seeks to resign from office as a 16
Judge. 17
[5] Schedule 1, clauses 10A and 10B 18
Insert after clause 10: 19
10A Remuneration of Chief Magistrate who is District Court Judge 20
If the Chief Magistrate also holds office as a Judge of the District 21
Court, the Chief Magistrate is not entitled to receive 22
remuneration as a Magistrate or the Chief Magistrate while he or 23
she receives remuneration as a Judge. 24
Note. Section 13 (3) (a) of the District Court Act 1973 provides that 25
where the Chief Magistrate also holds office as a Judge of the District 26
Court, his or her service as the Chief Magistrate counts as service as a 27
Judge of that Court for the purposes of receiving the remuneration and 28
superannuation entitlements to which a Judge of that Court is entitled. 29
10B Superannuation entitlements of Chief Magistrate who is District 30
Court Judge 31
(1) This clause applies to the Chief Magistrate if the Chief 32
Magistrate: 33
(a) is appointed as a Judge of the District Court at the same 34
time as being appointed as the Chief Magistrate or while he 35
or she holds office as the Chief Magistrate, and 36
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Courts Legislation Amendment Bill 2010
Amendment of Acts and Regulation Schedule 1
(b) is a contributor to a State public sector superannuation 1
scheme immediately before being appointed as a Judge. 2
(2) When this clause applies to the Chief Magistrate, the Chief 3
Magistrate: 4
(a) ceases on his or her appointment as a Judge to be an 5
employee who is entitled to be a contributor under the 6
State public sector superannuation scheme concerned, and 7
(b) is taken on that appointment to have preserved his or her 8
superannuation benefits under the scheme in accordance 9
with the relevant statutory provisions governing the 10
scheme. 11
(3) This clause does not: 12
(a) prevent the Chief Magistrate from contributing to the FSS 13
Fund in a capacity other than as an employee within the 14
meaning of the First State Superannuation Act 1992 if he 15
or she is permitted to do so by the trust deed under which 16
the Fund is maintained and administered, or 17
(b) otherwise affect the provisions of any other Act or 18
regulation relating to the rights of contributors under 19
superannuation schemes. 20
(4) In this clause: 21
FSS Fund means the Fund within the meaning of the First State 22
Superannuation Act 1992. 23
State public sector superannuation scheme means each of the 24
following: 25
(a) a STC scheme within the meaning of the Superannuation 26
Administration Act 1996, 27
(b) the FSS Fund, 28
(c) any other scheme or fund prescribed by the regulations for 29
the purposes of this clause. 30
[6] Schedule 4 Savings, transitional and other provisions 31
Insert at the end of the Schedule (with appropriate Part and clause numbers): 32
Part Provision consequent on enactment of 33
Courts Legislation Amendment Act 2010 34
Effect of amendments on current Chief Magistrate 35
A person who holds office as the Chief Magistrate immediately 36
before the substitution of section 14 by the Courts Legislation 37
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Courts Legislation Amendment Bill 2010
Schedule 1 Amendment of Acts and Regulation
Amendment Act 2010 continues to hold office as such for the 1
purposes of section 14 (as substituted). 2
Explanatory note 3
Item [1] of the proposed amendments to the Local Court Act 2007 (the Act) is 4
consequential on the amendments made by Schedule 1.9 to the District Court Act 1973 5
that enable the Governor to appoint the Chief Magistrate of the Local Court as a Judge 6
of the District Court. The proposed amendment enables a Chief Magistrate who also 7
holds office as a Judge of the District Court to exercise jurisdiction as a Judge while in 8
office as the Chief Magistrate. 9
Item [4] of the proposed amendments to the Act ensures that if the Chief Magistrate is 10
a Judge of the District Court, the Chief Magistrate cannot resign the office of Chief 11
Magistrate without also resigning office as a Magistrate if the Chief Magistrate intends 12
to continue in office as a Judge. 13
Item [5] of the proposed amendments to the Act ensures that a Chief Magistrate who 14
also holds office as a Judge of the District Court is only entitled to receive remuneration 15
as a Judge while he or she holds office as a Judge. The proposed amendment also 16
deals with the superannuation entitlements of a Chief Magistrate who is appointed as 17
a Judge at the same time or after being appointed as the Chief Magistrate. Items [2] 18
and [3] of the proposed amendments make consequential amendments. 19
Item [6] of the proposed amendments to the Act confirms that the amendment 20
proposed to be made by item [1] does not affect the continued efficacy of the current 21
Chief Magistrate's appointment. 22
1.14 Supreme Court Act 1970 No 52 23
Section 37B 24
Insert after section 37A: 25
37B Land and Environment Court Judges may act as Supreme Court 26
Judges 27
(1) This section applies to the Chief Judge and each of the other 28
Judges of the Land and Environment Court (an eligible judicial 29
officer), but not to an acting Judge of that Court. 30
(2) An eligible judicial officer may act as a Judge for a particular 31
period or in relation to particular proceedings in the Court if: 32
(a) the Chief Justice certifies that it is expedient that the 33
eligible judicial officer should act as a Judge of the Court 34
for the period or in relation to the proceedings, and 35
(b) the eligible judicial officer consents to acting as a Judge for 36
the period or in relation to the proceedings, and 37
(c) in the case where the eligible judicial officer is not the 38
Chief Judge of the Land and Environment Court--the 39
Chief Judge consents to the eligible judicial officer acting 40
as a Judge for the period or in relation to the proceedings. 41
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Courts Legislation Amendment Bill 2010
Amendment of Acts and Regulation Schedule 1
(3) The following provisions apply to and in respect of an eligible 1
judicial officer who acts as a Judge of the Court pursuant to the 2
provisions of this section: 3
(a) the eligible judicial officer has, while acting as a Judge, all 4
the powers, authorities, privileges and immunities of a 5
Judge of the Supreme Court, 6
(b) the eligible judicial officer may attend the sittings of the 7
Court for the purpose of giving judgment in, or otherwise 8
completing, any proceedings which have been heard by the 9
Court while the eligible judicial officer was acting as a 10
Judge in the proceedings even if the eligible judicial 11
officer is no longer acting as a Judge, 12
(c) the eligible judicial officer is not, while receiving 13
remuneration as a Judge of the Land and Environment 14
Court, entitled to remuneration for acting as a Judge of the 15
Supreme Court, 16
(d) any service of the eligible judicial officer while acting as a 17
Judge is taken for all purposes (including for the purposes 18
of the Land and Environment Court Act 1979 and the 19
Judges' Pensions Act 1953) to be service as a Judge of the 20
Land and Environment Court, 21
(e) nothing in this Act or any other law requires the eligible 22
judicial officer to devote the whole of his or her time to the 23
duties of acting as a Judge of the Supreme Court. 24
(4) If the eligible judicial officer holds office as the Chief Judge of 25
the Land and Environment Court, a reference in subsection (3) to 26
remuneration or service as a Judge of the Land and Environment 27
Court is to be read as a reference to remuneration or service in 28
that office. 29
(5) Nothing in this section limits the operation of section 37A, or of 30
section 3 of the Criminal Appeal Act 1912, in their application to 31
the Chief Judge of the Land and Environment Court. 32
Explanatory note 33
The proposed amendment to the Supreme Court Act 1970 enables the Chief Judge 34
and the other Judges of the Land and Environment Court to act as Judges of the 35
Supreme Court. 36
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Courts Legislation Amendment Bill 2010
Schedule 1 Amendment of Acts and Regulation
1.15 Victims Support and Rehabilitation Act 1996 No 115 1
[1] Section 79 Imposition of compensation levy 2
Omit "$140" from section 79 (1) (a). Insert instead "$148". 3
[2] Section 79 (1) (b) 4
Omit "$60". Insert instead "$64". 5
[3] Section 80 6
Omit the section. Insert instead: 7
80 CPI adjustments of compensation levy 8
(1) Starting at the end of the 2010-2011 financial year, each of the 9
amounts of the levy payable under section 79 (1) is to be adjusted 10
as provided by this section at the end of each financial year (the 11
current financial year) to provide a new amount for the next 12
financial year. The new amount applies for the next financial year 13
and replaces the amount that applied for the current financial 14
year. 15
(2) The new amount for a financial year is to be calculated in 16
accordance with the following formula: 17
L×B
A = -------------
C
where: 18
A is the new amount being calculated. 19
L is the amount of the levy for the current financial year. 20
B is the Sydney CPI number for March in the current financial 21
year. 22
C is the Sydney CPI number for March in the financial year 23
before the current financial year. 24
(3) Before the end of each financial year (starting with the 25
2010-2011 financial year), the Minister is to publish a notice on 26
the NSW legislation website of the amounts that are to apply for 27
the purposes of section 79 for the next financial year. Failure to 28
publish the notice or late publication of the notice does not affect 29
the validity of an adjustment under this section. 30
(4) If the amount calculated pursuant to an adjustment under this 31
section as the new amount for a financial year is not a whole 32
number of dollars, the amount is to be rounded up to the nearest 33
whole dollar. 34
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Courts Legislation Amendment Bill 2010
Amendment of Acts and Regulation Schedule 1
(5) If an adjustment under this section would result in the new 1
amount for the next financial year being less than the amount for 2
the current financial year, the new amount for the next financial 3
year is to be the same as the amount for the current financial year. 4
(6) The new amount for a financial year is to be adjusted in 5
accordance with the regulations if the Australian Statistician: 6
(a) stops issuing Sydney CPI numbers, or 7
(b) fails to issue a relevant Sydney CPI number before the start 8
of the financial year for which the new amount is required 9
to be calculated. 10
(7) It is to be presumed, in the absence of evidence to the contrary, 11
that any amounts specified in a notice published under this 12
section for a particular financial year are correct. 13
(8) In this section: 14
financial year means a year starting on 1 July. 15
Sydney CPI number means the Consumer Price Index (All 16
Groups Index) for Sydney issued by the Australian Statistician. 17
[4] Schedule 3 Savings, transitional and other provisions 18
Insert at the end of the Schedule (with appropriate Part and clause numbers): 19
Part Provision consequent on enactment of 20
Courts Legislation Amendment Act 2010 21
Payment of levies payable under section 79 22
Any amount that a person was liable to pay under section 79 (1) 23
immediately before the commencement of the amendments made 24
to this Act by the Courts Legislation Amendment Act 2010 25
continues to be payable after the commencement of those 26
amendments. 27
Commencement 28
The amendments to the Victims Support and Rehabilitation Act 1996 (the Act) 29
commence, or are taken to have commenced, on 1 July 2010. 30
Explanatory note 31
Items [1] and [2] of the proposed amendments to the Act update the amounts of 32
compensation levy payable by offenders by reference to changes in the consumer 33
price index since the amounts were first inserted in the Act. 34
Item [3] of the proposed amendments to the Act re-enacts in plainer English the 35
provisions concerning the adjustment of the amounts of compensation levy payable by 36
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Courts Legislation Amendment Bill 2010
Schedule 1 Amendment of Acts and Regulation
offenders by reference to changes in the consumer price index (the CPI). The proposed 1
amendment also corrects a typographical error in the current CPI formula. 2
Item [4] of the proposed amendments to the Act inserts a transitional provision relating 3
to the amendments proposed to be made by items [1]-[3]. 4
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