Courts Legislation Further Amendment
Bill 2006

Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The objects of this Bill are:

(a) to amend the Civil Procedure Act 2005:

        (i) to remove the Crown’s exemption from the payment of Sheriff’s fees,
and
        (ii) to allow a court to order money recovered on behalf of a person under a
legal incapacity to be paid to another person, and
        (iii) to insert an explanatory note and to make other minor amendments of a
statute law nature, and

(b) to amend the Drug Court Act 1998 with respect to eligible convicted
offenders, and

(c) to amend the Land and Environment Court Act 1979 to permit third parties to
be joined in certain appeals.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act.

Clause 3 is a formal provision that gives effect to the amendments to the Acts set out
in Schedules 1–3.

Clause 4 provides for the repeal of the proposed Act after all the amendments made
by the proposed Act have commenced. Once the amendments have commenced the
proposed Act will be spent and section 30 of the Interpretation Act 1987 provides
that the repeal of an amending Act does not affect the amendments made by that Act.

Schedule 1 Amendment of Civil Procedure Act 2005
No 28
Schedule 1 [1] amends section 18 (2) of the Civil Procedure Act 2005 (the Act) to
remove the exemption in favour of the Crown on the payment of Sheriff’s fees.

Schedule 1 [2] amends section 77 of the Act to permit a court to order that the whole
or any part of money recovered on behalf of a person under a legal incapacity (or a
person whom the court has found incapable of managing his or her affairs) be paid
to such person as the court may direct, including, in the case of a minor, the Public
Trustee or, in the case of a protected person, the manager of the person’s estate.

Currently in the case of a minor any such money must be paid to the minor or the
Public Trustee only and in the case of a protected person to the protected person or
the manager of the protected person’s estate only.

Schedule 1 [3] inserts a note to clarify that Division 5 of Part 6 of the Act, which
allows a court to make an interim payment in certain cases, does not apply to an
award of damages to which Part 6 of the Motor Accidents Act 1988 applies.

Schedule 1 [4] amends section 97 of the Act to clarify that a court may issue an arrest
warrant for a failure to attend court or a failure to produce any document or thing to
the court if the requirement to attend or produce the document or thing was under an
order made under the Act or under any other law.

Schedule 1 [5] and [6] amend section 113 of the Act, which provides for the sale or
mortgage by a judgment debtor of land that is subject to a registered writ for the levy
of property. The proposed amendments clarify that on payment to the Sheriff, from
money advanced under a mortgage, of the minimum amount required by the
judgment debtor, the Sheriff is to endorse the mortgage instrument rather than the
agreement for mortgage.

Schedule 1 [7] enables savings and transitional regulations to be made as a
consequence of the proposed Act.

Schedule 2 Amendment of Drug Court Act 1998 No
150
Section 5A and Part 2A of the Drug Court Act 1998 (the Act) are to be inserted into
the Act by Schedule 1 [5] and [6] to the Compulsory Drug Treatment Correctional
Centre Act 2004. Section 5A sets out who is an eligible convicted offender for the
purposes of the Act. Part 2A provides that an eligible convicted offender must be
referred to the Drug Court by certain courts when sentencing the offender. The Drug
Court may order that the offender serve his or her sentence by way of compulsory
drug treatment detention. However, before making any such order the Drug Court is
to refer the offender to a multi-disciplinary team for assessment.

Schedule 2 [1] amends section 5A (1) (b) to clarify that when looking at a person’s
sentence to determine whether the person is an eligible convicted offender, the
person must have a sentence with an unexpired non-parole period of at least 18
months at the time the sentence is imposed and an unexpired non-parole period of no
more than 3 years at the time that the Drug Court determines whether to make an
order in respect of the person.

Schedule 2 [2] amends section 5A (1) (c) to reduce the number of offences that a
person must have been convicted of to be an eligible convicted offender, from at least
3 others in the 5 year period before he or she is sentenced to at least 2 others in that
period.

Schedule 2 [3] omits certain redundant subjective requirements from the definition
of eligible convicted offender. These require the Drug Court to be of the opinion that
the person has a long term dependency on the use of prohibited drugs and that the
offence for which the person has been sentenced was related to that drug dependency.

The Drug Court is already required to assess these matters subjectively as section
18D (1) (b) (ii) requires the Drug Court to be satisfied that the person is an eligible
convicted offender.

Schedule 2 [4] removes section 5A (2) (d) which states that a person cannot be an
eligible convicted offender if the person has been convicted of any offence that, in
the opinion of the Drug Court, involves serious violence. Schedule 2 [5] instead
inserts proposed section 18E (2) (c1) which requires the multi-disciplinary team to
take into account the offender’s history of committing offences involving violence
when determining whether the offender is a suitable person to serve a sentence by
way of compulsory drug treatment detention.

Schedule 3 Amendment of Land and Environment
Court Act 1979 No 204
Schedule 3 amends section 39A of the Land and Environment Court Act 1979 which
permits the Land and Environment Court to join parties to an appeal in certain
circumstances. The proposed amendment extends the application of the provision to
appeals under sections 96 (6), 96AA (3) and 96A (5) of the Environmental Planning
and Assessment Act 1979, which are appeals in relation to the modification of a
development consent.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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