2005

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Dr Deb Foskey)

2005

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Dr Deb Foskey)

An Act to amend the Court Procedures Act 2004

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Court Procedures (Protection of Public Participation) Amendment Act 2005.

This Act commences on the day after its notification day.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

This Act amends the Court Procedures Act 2004.

The objects of this part are—

(a) encouraging public participation, and dissuading people from bringing or maintaining proceedings for improper purposes, by providing—

(i) an opportunity, at or before the trial of a proceeding, for a defendant to claim that, and for the court to consider whether, the proceeding is brought or maintained for an improper purpose; and

(ii) a way in which a proceeding that is brought or maintained for an improper purpose can be summarily dismissed; and

(iii) a way in which people who are subject to a proceeding that is brought or maintained for an improper purpose can obtain reimbursement for all reasonable costs and expenses incurred as a result; and

(iv) a way in which punitive or exemplary damages can be imposed in relation to a proceeding that is brought or maintained for an improper purpose; and

(b) preserving the right of access to the courts for all proceedings that are not brought or maintained for an improper purpose; and

(c) consistently with the Human Rights Act 2004, section 15, section 16 and section 17 (a), better protecting the following rights:

(i) the right of peaceful assembly and to freedom of association;

(ii) the right to freedom of expression;

(iii) the right to take part directly in the conduct of public affairs.

claim means any claim for relief in a proceeding.

costs, of a defendant in relation to a proceeding, includes all of the reasonable costs and expenses incurred by the defendant in relation to the proceeding (including in taking action under this part).

defendant means a person against whom a proceeding is brought or maintained.

government means the Territory, the Commonwealth, a State, another Territory or a local government of a State.

government entity includes—

(a) an instrumentality, officer or employee of the government; and

(b) a contractor or anyone else who exercises a function on behalf of the government; and

(c) any entity funded by government; and

(d) an entity appointed or established by government or from which advice is requested by government.

improper purpose—see section 37C.

plaintiff means a person who brings or maintains a proceeding against a defendant.

proceeding means any proceeding brought in a court other than a prosecution for an offence, and includes a claim in a proceeding.

public participation—see section 37D.

A proceeding is brought or maintained for an improper purpose if—

(a) the publication or conduct in relation to which the proceeding is brought is public participation; and

(b) the plaintiff could have no reasonable expectation that the proceeding would succeed; and

(c) a purpose for bringing the proceeding is—

(i) to discourage the defendant or anyone else from engaging in public participation; or

(ii) to divert the defendant’s resources from public participation to the proceeding; or

(iii) to penalise the defendant for engaging in public participation.

Public participation is a publication or conduct aimed at influencing public opinion or promoting or furthering lawful action by the public or by any government entity in relation to an issue of public interest, but does not include a publication or conduct—

(a) in relation to which a prosecution has been started; or

(b) that is a breach of a territory law; or

(c) that contravenes an order of a court; or

(d) that intentionally or recklessly causes physical injury; or

(e) that intentionally or recklessly causes damage to or destruction of property; or

(f) that is trespass to land; or

(g) by way of advertising for commercial goods or services; or

(h) that a court otherwise considers to be unlawful or unwarranted interference by the defendant with someone’s rights or property.

(1) If a defendant in a proceeding in a court considers that the proceeding was brought or is being maintained for an improper purpose, the defendant may apply to the court for an order dismissing the proceeding.

(2) The application must be made within 60 days after the day the originating process (however described) for the proceeding is served on the defendant.

(3) The court must deal with the application as soon as practicable.

(4) Unless the court orders otherwise, no further steps may be taken in the proceeding until the application has been heard and decided.

(5) This section does not prevent a court from granting an injunction before the rights of the parties under this part are decided.

(1) On an application under section 37E by a defendant in a proceeding, the court may make an order dismissing the proceeding if the defendant satisfies the court, on the balance of probabilities, that, when viewed objectively, the proceeding was brought or is being maintained for an improper purpose.

(2) If the court makes an order dismissing the proceeding, the court may also make either or both of the following orders:

(a) an order that the plaintiff pay the defendant’s costs in relation to the proceeding;

(b) an order that the plaintiff pay the defendant punitive or exemplary damages.

(3) If the court does not make an order dismissing the proceeding but the defendant satisfies the court there is a realistic possibility that, when viewed objectively, the proceeding was brought or is being maintained for an improper purpose, the court may make either or both of the following orders:

(a) an order, on the conditions the court considers appropriate, that the plaintiff provide as security an amount to cover the costs and damages to which the defendant may become entitled under this part;

(b) an order that the proceeding must not be settled or discontinued without the approval of the court and on the conditions the court considers appropriate.

(1) This section applies if an order is made under section 37F (3) in a proceeding.

(2) On an application for approval of the settlement or discontinuance of the proceeding, the court may, despite any agreement to the contrary between the plaintiff and defendant, order the plaintiff to pay the defendant’s costs in relation to the proceeding.

(3) If—

(a) the defendant applies for the proceeding to be dismissed for want of prosecution; and

(b) the plaintiff does not satisfy the court, on the balance of probabilities, that, when viewed objectively, the proceeding was not brought or maintained for an improper purpose; and

(c) the court dismisses the proceeding for want of prosecution;

the court may order the plaintiff to pay the defendant’s costs in relation to the proceeding.

(1) A defendant who has obtained an order under section 37F (3) in a proceeding may, at the trial of the proceeding, obtain either or both of the orders mentioned in section 37F (2) if—

(a) the defendant alleges at the trial that the proceeding was brought or is being maintained for an improper purpose; and

(b) the proceeding is discontinued by the plaintiff or is dismissed; and

(c) the plaintiff does not satisfy the court on the balance of probabilities that, when viewed objectively, the proceeding was not brought or maintained for an improper purpose.

(2) A defendant who has not obtained an order under section 37F (3) in a proceeding may, at the trial of the proceeding, obtain either or both of the orders mentioned in section 37F (2) if—

(a) at least 60 days before the date set for the start of the hearing of the proceeding (or, with the court’s leave, any shorter period before that date), the defendant gives the plaintiff written notice that the defendant intends to seek an order under this subsection; and

(b) the defendant satisfies the court there is a realistic possibility that, when viewed objectively, the proceeding was brought or maintained for an improper purpose; and

(c) the proceeding is discontinued by the plaintiff or is dismissed; and

(d) the plaintiff does not satisfy the court on the balance of probabilities that, when viewed objectively, the proceeding was not brought or maintained for an improper purpose.

(1) If a defendant in a proceeding seeks an order under this part in the proceeding, the parties may present evidence and make arguments about whether the proceeding was brought or maintained for an improper purpose, whether or not the evidence or arguments relate to a claim made by the plaintiff in the proceeding.

(2) This section does not limit any other rights the parties may have to present evidence and make arguments.

If a court makes an order under this part that the plaintiff in a proceeding pay the defendant’s costs in relation to the proceeding, the order may provide for the costs to be paid out of any security provided by the plaintiff under an order made under section 37F (3) (a) in the proceeding.

Presentation speech made in the Legislative Assembly on 2005.

Notified under the Legislation Act on 2005.

For the latest republication of amended laws, see www.legislation.act.gov.au.