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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Civil Liability (Offender Damages) Amendment
Bill 2008
A BILL FOR
An Act to amend the Civil Liability Act 1936.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Civil Liability
Act 1936
4 Insertion of Part 8A
Part 8A—Special provisions relating to offender
damages
58A Interpretation
58B Application
of Part
58C Authority to withhold or deduct certain
amounts from offender damages
58D Offender damages to
be held in trust as eligible victim claims trust
fund
58E Exception for legal
costs
58F Eligible victim claims trust funds to be held
by Public Trustee
58G Eligible victim claims trust fund
available to satisfy eligible victim claims
58H Notice
to persons entitled to make eligible victim
claim
58I Provision of information to persons entitled
to make eligible victim claim
58J Commencement of
eligible victim claim proceedings despite expiry of limitation
period
58K Orders for payment of damages out of
eligible victim claims trust fund
58L Payment to
offender of eligible victim claims trust fund
surplus
58M Costs
58N Immunity
58O Regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Civil Liability (Offender Damages)
Amendment Act 2008.
This Act will come into operation 3 months after assent.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Civil Liability
Act 1936
After Part 8 insert:
Part 8A—Special provisions relating to offender
damages
58A—Interpretation
(1) In this Part—
Crown includes—
(a) a Minister, instrumentality or agency of the Crown; and
(b) a body or person declared by the regulations to be an instrumentality
or agency of the Crown for the purposes of this Part;
damages includes money paid or payable in relation to the
death or injury of a person under insurance cover provided under
section 17D of the Correctional Services Act 1982;
eligibility period, in relation to a particular eligible
victim claims trust fund, means the period ending 6 months after the
offender damages award date;
eligible victim claim—see
subsection (2)(b);
eligible victim claims trust fund means a fund established
under section 58D;
offence includes conduct on the part of a person that would
constitute an offence if it were not for that person's age or mental
impairment;
offender means a person who is in custody for an offence, and
includes a former offender;
offender damages—see section 58B;
offender damages award date, in relation to offender damages
held in an eligible victim claims trust fund, means—
(a) if an appeal in relation to offender damages has not been lodged
within the period provided for lodging such an appeal—the end date of the
period; or
(b) if an appeal in relation to offender damages has been lodged—the
date on which the appeal lapses or is finally determined,
whichever is the later;
VOC Act means the Victims of Crime
Act 2001.
(2) For the purposes of this Part—
(a) a person is in custody if the person—
(i) is detained in a correctional institution under the Correctional
Services Act 1982; or
(ii) is detained in a training centre under the Young Offenders
Act 1993; or
(iii) is subject to a supervision order under section 269O of the
Criminal Law Consolidation Act 1935; or
(iv) is serving a period of home detention; or
(v) is the subject of an order under which the offender is required to
perform community service (whether under the Criminal Law (Sentencing)
Act 1988 or Young Offenders Act 1993); or
(vi) is on probation or parole;
(b) an eligible victim claim is a claim for damages for
injury to, or the death of, a person caused by an offence of which the person
was a victim (regardless of whether any limitation period in which proceedings
for such a claim may be commenced has expired).
58B—Application of Part
(1) This Part applies where damages are awarded against the
Crown—
(a) to an offender for personal injury arising from an accident caused
wholly or in part by the negligence of the Crown while the offender was in
custody (offender damages); or
(b) for personal injury arising in the manner described in
paragraph (a) that results in the death of an offender and damages are
claimed under Part 5 for harm resulting from the death (offender
damages).
(2) This Part does not apply to a cause of action for damages against the
Crown maintained or maintainable under the Survival of Causes of Action
Act 1940.
58C—Authority to withhold or deduct certain amounts
from offender damages
(1) If the Crown is liable to pay offender damages to an offender, the
Crown may—
(a) withhold from the damages an amount equal to any interim payment for
statutory compensation made to a claimant under section 27 of the VOC Act
in respect of an offence committed by the offender; or
(b) deduct from those damages an amount required to be paid by the
offender to satisfy any judgment made against the offender under section 28
of the VOC Act.
(2) The Crown may (and must if the offender so requests in writing)
require the Public Trustee to hold an amount referred to in subsection (1)
on behalf of the Crown.
(3) Subject to this section, interest is payable on an amount withheld
under subsection (1)(a) as follows:
(a) if the Crown holds the withheld amount—the amount of interest
determined by the Minister in accordance with the requirements set out in the
regulations for the purposes of this paragraph;
(b) if the Public Trustee holds the withheld amount on behalf of the
Crown—an amount of interest equal to the amount of income received by the
Public Trustee in respect of the investment of the amount under the Public
Trustee Act 1995;
(c) if, in relation to interim payment for compensation made to a claimant
under section 27 of the VOC Act, an order for statutory compensation is
subsequently made in favour of the claimant under that Act—an amount of
interest equal to the amount determined in accordance with paragraph (a)
or (b) (as the case requires) must be paid to the claimant;
(d) if, in relation to an interim payment for compensation made to a
claimant under section 27 of the VOC Act, an order for statutory
compensation for a lesser amount is subsequently made in favour of the claimant
under that Act—the amount of interest equal to the amount determined in
accordance with paragraph (a) or (b) (as the case requires) must be divided
between the claimant and the offender in the appropriate proportion;
(e) if, in relation to an interim payment for compensation made under
section 27 of the VOC Act, the Attorney-General subsequently recovers
an amount equal to the interim payment from the claimant under section 29
of the VOC Act—an amount of interest equal to the amount determined in
accordance with paragraph (a) or (b) (as the case requires) must be paid to
the offender.
(4) The Crown or the Public Trustee (as the case requires) is to pay an
amount deducted under subsection (1)(b) to the person to whom the judgment
made against the offender under section 28 of the VOC Act requires payment
be made.
(5) Payment made by the Crown or the Public Trustee under this section
will, to the extent of the amount paid, be taken to be a payment to the offender
in satisfaction of the obligation to pay the damages concerned.
58D—Offender damages to be held in trust as
eligible victim claims trust fund
(1) Subject to this Part, the amount of any offender damages awarded to an
offender must be held in trust (an eligible victim claims trust
fund) for the offender by the Crown.
(2) This section does not apply to an amount deducted or withheld under
section 58C from damages payable to an offender by the Crown.
(3) A payment from an eligible victim claims trust fund may only be made
in accordance with this Part.
(4) Nothing in this section affects an obligation imposed on the Crown by
or under any other Act or law to pay to some other person money owed to, or held
on account of, the offender.
(5) Despite any other Act or law, an amount held in trust for an offender
under this section—
(a) is not available for the payment of a creditor of the offender;
and
(b) is not liable to be attached or taken in execution at the instance of
a creditor of the offender.
58E—Exception for legal costs
(1) Nothing in section 58D requires an amount payable by the Crown as
legal costs under an order for costs made against the Crown or, in the case of
an award of offender damages that is inclusive of costs, that is reasonably
attributable to the offender’s legal costs, to be held in trust.
(2) For the purposes of subsection (1), the amount of an award of
offender damages inclusive of costs that is reasonably attributable to the
offender’s legal costs is the amount determined by the Crown as being
reasonably attributable to the offender’s legal costs, having regard to
any bill for those costs provided to the Crown by the offender or the legal
practitioner concerned.
58F—Eligible victim claims trust funds to be held
by Public Trustee
(1) Offender damages to be held by the Crown in trust under this Part are
to be held by the Public Trustee on behalf of the Crown.
(2) An amount of interest equal to the amount of income received by the
Public Trustee in respect of the investment under the Public Trustee
Act 1995 of the amount held by the Public Trustee in relation to a
particular eligible victim claims trust fund is payable to, and forms part of,
the trust fund.
58G—Eligible victim claims trust fund available to
satisfy eligible victim claims
An eligible victim claims trust fund is available to satisfy eligible
victim claims against the relevant offender under this Part if—
(a) proceedings in relation to the eligible victim claim—
(i) have been commenced prior to the commencement of the eligibility
period; or
(ii) are commenced within the eligibility period; and
(b) the complainant in the proceedings gives the Crown notice in writing
of those proceedings in the prescribed form; and
(c) the court awarding damages in relation to the proceedings is satisfied
that the claim is an eligible victim claim.
58H—Notice to persons entitled to make eligible
victim claim
(1) The Crown must, within 28 days after the offender damages award
date in relation to offender damages held in an eligible victim claims trust
fund, send to each person who may, after reasonable enquiries by the Crown, have
an eligible victim claim against the relevant offender a written
notice—
(a) naming the offender and stating that there is an eligible victim
claims trust fund available to satisfy eligible victim claims in relation to the
offender; and
(b) specifying the eligibility period for that trust fund; and
(c) explaining that a successful eligible victim claim made within the
eligibility period for the trust fund may be satisfied wholly or in part from
the trust fund.
(2) The notice is to be sent to a person at the address of the person last
known to the Crown or as shown in official records reasonably available to the
Crown.
(3) The Crown must also publish a notice in the Gazette containing the
information set out in subsection (1).
58I—Provision of information to persons entitled to
make eligible victim claim
(1) A person who may make an eligible victim claim or a person acting on
his or her behalf may, by written notice made not later than 28 days after
the expiry of the eligibility period in relation to the relevant eligible victim
claims trust fund, apply to the Crown for the release of information of the kind
specified in subsection (2).
(2) The Crown must, if an application is made in accordance with
subsection (1), provide such information as the Crown is reasonably able to
provide concerning—
(a) the award of damages to the offender and the amount in the eligible
victim claims trust fund; and
(b) any other eligible victim claim against the offender that may be
satisfied from the trust fund and of which the Crown has been given notice under
this section.
(3) The provision of information under this section—
(a) is authorised despite any agreement to which the Crown is a party that
would otherwise prohibit or restrict the disclosure of information concerning
the offender damages; and
(b) does not constitute a contravention of any such agreement.
(4) A person to whom information is provided under this section must not
disclose or communicate the information provided (whether to that person or
otherwise) except—
(a) as required or authorised by or under this Act or any other Act;
or
(b) to a court or in connection with any legal proceedings.
Maximum penalty: $10 000.
58J—Commencement of eligible victim claim
proceedings despite expiry of limitation period
(1) Despite any other Act or law, if there is an eligible victim claims
trust fund for victims of an offender, an action or a cause of action to recover
damages under an eligible victim claim against the offender is maintainable by
proceedings on the cause of action commenced during the eligibility period for
the trust fund.
(2) The right and title to damages of a person formerly having such a
cause of action that has been extinguished by the expiration of a limitation
period fixed under the Limitation of Actions Act 1936 is reinstated
for the purposes of proceedings on a cause of action commenced during the
eligibility period for the trust fund.
(3) However, an award of damages in proceedings commenced under this
section (being proceedings that could not otherwise be
commenced)—
(a) only has effect for the purpose of enabling an order to be made under
this Part for the payment of the whole or part of those damages out of money
held in the eligible victim claims trust fund concerned; and
(b) cannot otherwise be enforced against the offender concerned or any
property of the offender.
58K—Orders for payment of damages out of eligible
victim claims trust fund
(1) A court that awards damages to a person on a claim against an offender
may, if satisfied that—
(a) the claim is an eligible victim claim; and
(b) an eligible victim claims trust fund is available to satisfy eligible
victim claims against the relevant offender,
order that the whole or a specified part of those damages is to be paid out
of money held in the eligible victim claims trust fund.
(2) In determining the amount of any damages to be ordered to be paid out
of an eligible victim claims trust fund, a court must ensure the amount is fair
and reasonable having regard to—
(a) whether there are, or are likely to be, other eligible victim claims
in relation to the offender that may be ordered to be wholly or partly satisfied
by payment from the trust fund; and
(b) the amount of damages likely to be awarded in respect of those
claims.
(3) A court may defer making an order for the payment of damages out of an
eligible victim claims trust fund until the court is satisfied that it is able
to make a reasonable assessment of the extent of eligible victim claims that may
be ordered to be satisfied by payment from the trust fund.
(4) The payment by the Crown of an amount out of an eligible victim claims
trust fund in accordance with an order of a court under this section will be
taken to be a payment made at the direction of the offender and operates as a
discharge, to the extent of the payment, of any liability of the Crown to pay
the amount to the offender concerned as offender damages.
(5) An order of a court under this section is not subject to appeal except
on a question of law.
58L—Payment to offender of eligible victim claims
trust fund surplus
(1) The Crown must, if satisfied that all eligible victim claims that may
be ordered to be satisfied by payment from a particular trust fund have been
finally determined—
(a) make a determination of the surplus (if any) in the trust fund;
and
(b) subject to subsection (2), pay any surplus to, or at the
direction of, the relevant offender.
(2) Nothing in subsection (1) affects the operation of a provision of
the Correctional Services Act 1982 or the Young Offenders
Act 1993 relating to the payment of money to a person detained under
those Acts.
(3) For the purposes of subsection (1), an eligible victim claim is
not finally determined until—
(a) if an appeal in relation to the claim has not been lodged within the
period provided for lodging such an appeal—the end date of the period;
or
(b) if an appeal in relation to the claim has been lodged—the date
on which the appeal lapses or is finally determined,
whichever is the later.
(4) A court that awards damages to a person on an eligible victim claim
may give directions to the Crown in relation to a determination required under
subsection (1).
(5) In this section—
surplus, in relation to an eligible victim claims trust fund,
means the amount remaining in the trust fund after payment out of the trust fund
of—
(a) the amount of all eligible victim claims ordered under this Part to be
wholly or partly satisfied by payment from the trust fund; and
(b) all amounts payable out of the fund to the Public Trustee or the Crown
under this Part.
58M—Costs
(1) The reasonable costs incurred by, or on behalf of, the Public Trustee
in holding or otherwise administering an amount held by the Public Trustee under
this Part are payable to the Public Trustee out of the amount, or any interest
or income received by the Public Trustee in respect of the amount.
(2) The reasonable costs incurred by, or on behalf of, the Public Trustee
or the Crown in the performance of any function under this Part in relation to a
particular eligible victim claims trust fund are payable to the Public Trustee
or the Crown (as the case requires) out of the trust fund.
(3) The Public Trustee or the Crown (as the case requires) must certify as
to the reasonable costs payable under this section (and such certificate is
sufficient authority for the payment of the certified amounts out of the
relevant amount or eligible victim claims trust fund).
(4) A party who is dissatisfied with an amount of costs certified by the
Public Trustee or the Crown may request a Master of the District Court to tax
the costs and, after taxing the costs, the Master may confirm or vary the amount
of the costs payable under this section.
58N—Immunity
(1) Subject to this section, no civil liability attaches to a person for
an act or omission in the exercise or purported exercise of official powers or
functions under this Part.
(2) An action that would, but for subsection (1), lie against a
person lies instead against the Crown.
(3) This section does not prejudice rights of action of the Crown in
respect of an act or omission of a person not in good faith.
(4) This section does not apply to a person if section 74 of the
Public Sector Management Act 1995, or section 22 of the
Public Corporations Act 1993 or clause 11 of the Schedule of that
Act, applies to the person.
58O—Regulations
(1) The Governor may make such regulations as are contemplated by, or
necessary or expedient for the purposes of, this Part.
(2) The regulations may—
(a) be of general application or vary in their application according to
prescribed factors;
(b) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of the Minister.
(3) A regulation under this Part may make provisions of a saving or
transitional nature consequent on the enactment of this Part or on the
commencement of specified provisions of this Part.