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

The Miscellaneous Acts (Local Court) Amendment Bill 2007 is cognate with this Bill.

Overview of Bill

The object of this Bill is to replace the separate Local Courts within New South
Wales with a single Local Court (sittings of which will be held at various locations
within New South Wales). The Bill repeals the Local Courts Act 1982 and enacts new
provisions relating to the Local Court of New South Wales (the Court).

The Bill:

(a) contains provisions for the appointment of Magistrates and other officers of
the Court (existing Magistrates and other officers will continue to hold office),

(b) requires at least 5 years’ experience as an Australian lawyer for appointment
as a Magistrate,

(c) brings the provisions for appointment of acting Magistrates into line with
those applicable to acting Judges of the District Court,

(d) continues the existing Local Court jurisdiction (the Court, like the current
Local Courts, will have a civil and criminal jurisdiction and a special
jurisdiction relating to application proceedings).

Outline of provisions

Part 1 Preliminary
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 on a day or days to be
appointed by proclamation.

Clause 3 defines certain words and expressions used in the proposed Act.

Clause 4 enables the Governor to make regulations in relation to the proposed Act.

Clause 5 repeals the Local Courts Act 1982 and gives effect to proposed Schedule 4
(Savings, transitional and other provisions).

Clause 6 requires the proposed Act to be reviewed 5 years after it is assented to and
a report on the outcome of the review to be tabled in Parliament.

Part 2 The Local Court of New South Wales
Division 1 Constitution and jurisdiction
Clause 7 establishes the Local Court of New South Wales (the Court) and provides
that it is to be a court of record.

Clause 8 provides that the Court is to be constituted by a Magistrate sitting alone
unless otherwise provided by or under the proposed Act or any other Act or law.

Clause 9 provides that the Court has a civil jurisdiction, a special jurisdiction and a
criminal jurisdiction.

Clause 10 divides the Court into the General Division and the Small Claims Division
for the purposes of the exercise of its civil jurisdiction.

Clause 11 provides that the Court has State-wide jurisdiction.

Division 2 Magistrates
See also proposed Schedule 1 for provisions relating to Magistrates.

Clause 12 provides that the Court is to be composed of a Chief Magistrate and such
other Magistrates as may be appointed from time to time.

Clause 13 allows the Governor to appoint any person who is an Australian lawyer of
at least 5 years’ standing (or a current or former judicial officer) to be a Magistrate
and provides that a Magistrate is taken to be a justice of the peace.

Clause 14 provides that the Governor may appoint a Magistrate to be Chief
Magistrate.

Clause 15 provides that the Governor may appoint a Magistrate to be a Deputy Chief
Magistrate.

Clause 16 provides that the Governor may appoint a person eligible to be appointed
as a Magistrate to act as a Magistrate for a term not exceeding 12 months. A former
judicial officer may be appointed until the age of 75 years.

Division 3 Assessors
See also proposed Schedule 2 for provisions relating to Assessors.

Clause 17 allows the Minister to appoint any person who is an Australian lawyer to
be an Assessor.

Division 4 Registrars and other officers
Clause 18 provides for the employment of registrars and deputy registrars under
Chapter 1A of the Public Sector Employment and Management Act 2002 and allows
the appointment of a registrar as the registrar for a designated place.

Clause 19 provides that a registrar has the functions conferred by or under the
proposed Act, the rules or any other Act or law and that those functions may be
exercised in respect of any place in the State (regardless of whether a registrar is the
registrar for a designated place).

Clause 20 allows a registrar, assistant registrar or other officer of the District Court
to, subject to the rules, exercise the functions of a person holding a corresponding
position in the Local Court.

Clause 21 provides that a reference in any other Act or instrument to the relevant
registrar of the Local Court is a reference to the registrar for a particular place or the
registrar authorised to exercise a particular function or the registrar for the place at
which the proceedings are being, or have been, heard (depending on the context in
which the phrase is used).

Division 5 Exercise of jurisdiction
Clause 22 allows for sittings of the Court to be held at such places and times as are
directed by the Chief Magistrate.

Clause 23 makes provision for the Chief Magistrate to make arrangements for the
business of the Court by giving directions concerning the exercise of jurisdiction and
functions, sittings and the establishment of circuits. However, before making a
direction that would substantially alter the frequency of sittings at a particular place
relative to the previous calendar year the Chief Magistrate must consult with the
Attorney General.

Clause 24 gives the Court the same powers as the District Court in dealing with a
person who appears to be, or is accused of being, guilty of contempt of court and also
allows the Court to refer such a matter to the Supreme Court for determination.

Division 6 Rules of court and practice notes
Clause 25 establishes the Local Court Rule Committee and specifies the members
who are to comprise the Committee.

Clause 26 gives the Rule Committee the power to make rules in relation to the
practice and procedure of the Court.

Clause 27 allows the Chief Magistrate to issue practice notes in relation to any
matter with respect to which rules may be made (subject to the rules).

Clause 28 provides that the Court may give directions, in relation to particular
proceedings, with respect to any aspect of practice or procedure not otherwise
provided for by the proposed Act or any other Act.

Part 3 Civil jurisdiction
Division 1 Preliminary
Clause 29 defines certain expressions used in the proposed Part.

Division 2 Jurisdiction
Clause 30 confers jurisdiction on the Court sitting in its General Division to hear and
determine proceedings on any money claim or proceedings to recover detained goods
so long as the amount claimed does not exceed $60,000. The proposed section also
confers jurisdiction on the Court sitting in its Small Claims Division to hear and
determine such proceedings so long as the amount claimed does not exceed $10,000.

Clause 31 allows the Court, when sitting in its General Division, to exceed the
jurisdictional limit of $60,000 by up to 20 per cent in specified circumstances.

Clause 32 allows the Court, upon application in proceedings concerning a contract,
to exercise the same jurisdiction as the Supreme Court to refuse to enforce any or all
of the provisions of the contract under section 7 (1) (a) of the Contracts Review Act
1980.

Clause 33 specifies certain proceedings that are excluded from the jurisdiction of the
Court.

Clause 34 makes provision with respect to the jurisdiction of the Court to hear and
determine proceedings with respect to a cause of action that arose outside of the State
and with respect to a defendant that is not within the State.

Division 3 Proceedings in Small Claims Division
Clause 35 provides that the jurisdiction of the Court sitting in its Small Claims
Division may be exercised by a Magistrate or an Assessor. The proposed section also
provides that proceedings are not required to be recorded and are to be conducted
with as little formality and technicality as possible, without application of the rules
of evidence and generally without the cross-examination of witnesses.

Clause 36 requires a Magistrate or an Assessor to attempt to bring the parties to
proceedings in the Small Claims Division to a settlement before giving final
judgment or making a final order in those proceedings.

Clause 37 provides that the Court sitting in its Small Claims Division has no power
to award costs (except as provided by the rules).

Division 4 Appeals from the Local Court
Clause 38 provides that all judgments and orders of the Court in its exercise of civil
jurisdiction are final and conclusive.

Clause 39 deals with appeals as of right. A party to proceedings before the Court
sitting in its General Division who is dissatisfied with a judgment or order of the
Court in point of law may appeal to the Supreme Court. A party to proceedings
before the Court sitting in its Small Claims Division who is dissatisfied with a
judgment or order of the Court on the ground of lack of jurisdiction or denial of
natural justice may appeal to the Supreme Court.

Clause 40 deals with appeals requiring leave. A party to proceedings before the
Court sitting in its General Division who is dissatisfied with a judgment or order of
the Court on a ground that involves a question of mixed law and fact, or an
interlocutory judgment or order, or a judgment or order made by consent, or a costs
order, may appeal to the Supreme Court but only by leave of the Supreme Court.

Clause 41 sets out how the Supreme Court may deal with appeals under the proposed
Division.

Division 5 Rules
Clause 42 allows rules to be made for or with respect to specified matters relating to
the civil jurisdiction of the Court (provided they are not inconsistent with the uniform
rules under the Civil Procedure Act 2005 and do not relate to any costs matter that is
regulated by Division 11 of Part 3.2 of the Legal Profession Act 2004).

Part 4 Special jurisdiction
Division 1 Preliminary
Clause 43 defines certain expressions used in the proposed Part.

Clause 44 provides that the proposed Part applies to any proceedings with respect to
matters for which jurisdiction is conferred on the Court by or under any other Act or
law, other than criminal proceedings or proceedings with respect to any matter for
which jurisdiction is conferred on the Court by proposed Part 3 (Civil jurisdiction),
defined as application proceedings in proposed section 43 (and also known as
application proceedings in the Local Courts Act 1982).

Division 2 Commencement of proceedings
Clause 45 provides that application proceedings commence upon issuing and filing
an application notice.

Clause 46 allows a police officer or public officer to commence application
proceedings, if authorised to do so, by issuing an application notice and filing the
notice in accordance with the proposed Division.

Clause 47 allows a person to commence application proceedings by issuing an
application notice, signed by a registrar, and filing the notice in accordance with the
proposed Division.

Clause 48 provides that an application notice may not relate to more than one matter.

Clause 49 deals with service of an application notice.

Clause 50 provides that application proceedings are taken to have commenced on
the date on which an application notice is filed and allows for the filing of an
application notice in the absence of service in certain circumstances.

Clause 51 requires application proceedings to be brought within 6 years from the
date that the matter to which the application relates is alleged to have arisen.

Clause 52 allows application proceedings to be commenced, in the event that
another Act or statutory rule provides for application proceedings to be commenced
otherwise than by application notice, in accordance with that Act or statutory rule or
in accordance with proposed Part 4.

Division 3 Hearing of proceedings
Clause 53 requires the Court, on the first return date in application proceedings or at
a later time determined by the Court, to set a date, time and place for hearing and
determining the proceedings. If the respondent is not present at the first return date,
the Court may advise the respondent of the date, time and place for hearing or it may
proceed to hear and determine the matter.

Clause 54 provides for application proceedings to be heard in open court.

Clause 55 allows the Court to change the venue of application proceedings if
appropriate.

Clause 56 confirms the respondent’s right to defend application proceedings and any
ancillary proceedings.

Clause 57 provides that a party may appear personally or by an Australian legal
practitioner or other representative empowered by an Act or other law to appear for
the applicant or respondent. A police officer who is an applicant may also appear by
a police prosecutor.

Clause 58 specifies who may conduct the case.

Clause 59 confirms that evidence is to be on oath.

Clause 60 requires application proceedings to be recorded.

Clause 61 gives the Court the power to adjourn application proceedings to a
specified time and place.

Clause 62 allows the Court to make directions with respect to procedural
irregularities.

Clause 63 allows the Court to dispense with any requirement of the rules if it is in
the interests of justice to do so.

Clause 64 permits the Court to stay application proceedings (including the
enforcement of an order) permanently or to a specified day.

Clause 65 gives the Magistrate the power to issue a warrant for the arrest of a
respondent during proceedings if he or she fails to appear.

Clause 66 applies Part 3 of Chapter 4 of the Criminal Procedure Act 1986 to
application proceedings (that Part deals with the attendance of witnesses and
production of evidence).

Clause 67 applies Part 4 of Chapter 4 of the Criminal Procedure Act 1986 to
warrants of arrest and warrants of commitment issued in application proceedings.

Clause 68 provides that an order for the payment of money by a party to application
proceedings may be enforced in a court of competent jurisdiction.

Clause 69 enables the Court to award costs in application proceedings at its
discretion.

Clause 70 sets out the appeal procedures in relation to any order arising from an
application notice.

Division 4 Rules and forms
Clause 71 specifies matters relating to application proceedings with respect to which
rules may be made.

Clause 72 enables the Chief Magistrate to approve forms to be used in connection
with application proceedings.

Schedule 1 Provisions relating to Magistrates
Schedule 1 sets out matters relating to the appointment of Magistrates including
part-time arrangements, vacation of office, remuneration, superannuation, accrued
leave and conditions of service.

Schedule 2 Provisions relating to Assessors
Schedule 2 sets out matters relating to the employment of Assessors, including term
of office, remuneration, leave, vacation of office and removal from office.

Schedule 3 Provisions relating to Rule Committee
Schedule 3 sets out the matters relating to membership of the Rule Committee
(including term of office, vacancy of office and deputies) and meetings of the Rule
Committee (including procedures, chairperson and quorum).

Schedule 4 Savings, transitional and other
provisions
Schedule 4 contains savings, transitional and other provisions consequent on the
enactment of the proposed Act.

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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