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Courts Legislation Amendment
(Judicial Resolution Conference) Bill
2009
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the Bill, which is to amend the Supreme
Court Act 1986, the County Court Act 1958, the Magistrates'
Court Act 1989 and the Children, Youth and Families Act
2005--
· to clarify that judicial immunity applies to judges,
associate judges and magistrates when carrying out
judicial resolution conferences; and
· to provide for the conduct of those conferences by
judges, associate judges and magistrates--
with the objective of supporting the Supreme Court, County
Court, Magistrates' Court and Children's Court in the practice
of non-determinative appropriate dispute resolution processes
in civil proceedings.
Clause 2 provides the commencement dates for the Act.
Subclause (1) provides that the Act comes into operation on a day
or days to be proclaimed.
Subclause (2) provides that if the Act does not come into
operation before 1 August 2010, it comes into operation on that
day.
561322 1 BILL LA INTRODUCTION 27/7/2009
PART 2--SUPREME COURT ACT 1986
Clause 3 amends section 3(1) of the Supreme Court Act 1986 by
inserting a new definition.
Judicial resolution conference is defined to mean a resolution
process presided over by a Judge of the Court or an Associate
Judge for the purposes of negotiating a settlement of a dispute
including, but not limited to--
· mediation, whether or not referred to that person in
accordance with the Rules;
· early neutral evaluation;
· settlement conference;
· conciliation.
The definition clarifies that the term judicial resolution
conference will apply to non-determinative appropriate dispute
resolution processes presided over by certain judicial officers of
the Supreme Court.
Clause 4 amends section 24A of the Supreme Court Act 1986 to clarify
that section 24A does not apply to a mediation presided over by
a Judge of the Court or an Associate Judge where a judicial
resolution conference is ordered or directed. The new
section 24B will apply to a mediation presided over by a Judge
of the Court or an Associate Judge.
Clause 5 inserts a new Division 3A of Part 2 into the Supreme Court Act
1986, including new sections 24B and 24C.
New section 24B(1) provides confidentiality where a judicial
resolution conference is ordered or directed in any proceeding in
the Court other than a criminal proceeding. The new section
24B(1) does this by providing that no evidence is to be admitted,
in any proceeding, of anything said or done by any person in the
course of the conduct of a judicial resolution conference unless
the Court otherwise orders, having regard to the interests of
justice and fairness. This section is intended to provide greater
confidentiality to judicial resolution conferences than is provided
to mediations, not presided over by a Judge or an Associate
Judge, by section 24A.
The new section 24B(1) is not intended to prevent a written
agreement arising out of a judicial resolution conference, and
signed by parties at the conclusion of a judicial resolution
conference, being admitted into evidence in a proceeding.
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The Court's ability to order an exception to the new section 24B
is intended to allow the Court to order that evidence of things
said or done in the course of the conduct of a judicial resolution
conference may be admitted as evidence in the hearing of a
proceeding on the extremely rare occasion where exceptional
circumstances require it.
New section 24B(2) confirms that a Judge of the Court or an
Associate Judge is not compellable to give evidence in any
proceeding, whether civil or criminal, of anything said or done or
arising from the conduct of the judicial resolution conference.
Section 24B(2) is intended to prevent a Judge of the Court or an
Associate Judge being compellable to give evidence intended to
assist in the interpretation of the terms of a written agreement
arising out of a judicial resolution conference, and signed by
parties at the conclusion of a judicial resolution conference.
New section 24C confirms that judicial immunity applies to a
Judge or an Associate Judge presiding over a judicial resolution
conference. Section 24C does not imply that presiding over a
judicial resolution conference is not a judicial function, and
therefore does not imply that presiding over a judicial resolution
conference is not covered by common law judicial immunity.
It is for this reason that the new section 24C does not limit any
other law, written or unwritten.
Clause 6 inserts a new subsection (1)(eab) into section 25 of the Supreme
Court Act 1986, which contains a power to make Rules of Court
with respect to judicial resolution conferences, including with
respect to the practice and procedure of judicial resolution
conferences. The new subsection is intended to ensure that the
Court may determine its practice as to which resolution processes
will be presided over by Judges of the Court or Associate Judges,
and in what manner the practice of those resolution processes
will be conducted.
This clause also inserts the words ", a Judge of the Court, an
Associate Judge" after the word "Chief Justice" and inserts the
words "judge or" after the words "specified class of" to confirm
that the Rules of the Court may confer a discretionary authority
or impose a duty on a Judge of the Court or an Associate Judge,
or a specified class of judges.
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PART 3--COUNTY COURT ACT 1958
Clause 7 amends section 3(1) of the County Court Act 1958 by inserting
a new definition.
Judicial resolution conference is defined to mean a resolution
process presided over by a judge or an associate judge for the
purposes of negotiating a settlement of a dispute including, but
not limited to--
· mediation, whether or not referred to that person in
accordance with the Rules;
· early neutral evaluation;
· settlement conference;
· conciliation.
The definition clarifies that the term judicial resolution
conference will apply to non-determinative appropriate dispute
resolution processes presided over by certain judicial officers of
the County Court.
Clause 8 amends section 47B of the County Court Act 1958 to clarify
that section 47B does not apply to a mediation presided over by a
judge or an associate judge where a judicial resolution conference
is ordered or directed. The new section 41 will apply to a
mediation presided over by a judge or an associate judge.
Clause 9 inserts a new Division 4 of Part II into the County Court Act
1958, including new sections 41 and 42.
New section 41(1) provides confidentiality where a judicial
resolution conference is ordered or directed in any civil
proceeding. The new section 41(1) does this by providing that no
evidence is to be admitted, in any civil proceeding, of anything
said or done by any person in the course of the conduct of a
judicial resolution conference unless the Court otherwise orders,
having regard to the interests of justice and fairness. This section
is intended to provide greater confidentiality to judicial resolution
conferences than is provided to mediations, not presided over by
a judge or an associate judge, by section 47B.
The new section 41(1) is not intended to prevent a written
agreement arising out of a judicial resolution conference, and
signed by parties at the conclusion of a judicial resolution
conference, being admitted into evidence in a proceeding.
The Court's ability to order an exception to the new section 41(1)
is intended to allow the Court to order that evidence of things
said or done in the course of the conduct of a judicial resolution
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conference may be admitted as evidence in the hearing of a civil
proceeding on the extremely rare occasion where exceptional
circumstances require it.
New section 41(2) confirms that a judge or an associate judge is
not compellable to give evidence in any proceeding, whether
civil or criminal, of anything said or done or arising from the
conduct of the judicial resolution conference. Section 41(2) is
intended to prevent a judge or an associate judge being
compellable to give evidence intended to assist in the
interpretation of the terms of a written agreement arising out of
a judicial resolution conference, and signed by parties at the
conclusion of a judicial resolution conference.
New section 42 confirms that judicial immunity applies to a
judge or an associate judge presiding over a judicial resolution
conference. Section 42 does not imply that presiding over a
judicial resolution conference is not a judicial function, and
therefore does not imply that presiding over a judicial resolution
conference is not covered by common law judicial immunity.
It is for this reason that the new section 42 does not limit any
other law, written or unwritten.
Clause 10 inserts a new heading to Division 6 of Part II of the County
Court Act 1958.
Clause 11 inserts a new subsection (1)(hcb) into section 78 of the County
Court Act 1958, which contains a power to make rules with
respect to judicial resolution conferences, including with respect
to the practice and procedure of judicial resolution conferences.
The new subsection is intended to ensure the Court may
determine its practice as to which resolution processes will be
presided over by judges or associate judges, and in what manner
the practice of those resolution processes will be conducted.
The clause also clarifies that this power to make rules may be
exercised in relation to all cases, in relation to all cases subject to
specific exceptions, or to a specified case or class of case.
PART 4--MAGISTRATES' COURT ACT 1989
Clause 12 amends section 3(1) of the Magistrates' Court Act 1989 by
inserting a new definition.
Judicial resolution conference is defined to mean a resolution
process presided over by a magistrate for the purposes of
negotiating a settlement of a dispute including, but not limited
to--
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· mediation, whether or not referred to that person in
accordance with the Rules;
· early neutral evaluation;
· settlement conference;
· conciliation.
The definition clarifies that the term judicial resolution
conference will apply to non-determinative appropriate dispute
resolution processes presided over by magistrates.
Clause 13 inserts new section 108(3) of the Magistrates' Court Act 1989
to clarify that section 108(2) does not apply to a mediation
presided over by a magistrate where a judicial resolution
conference is ordered or directed. The new section 108B will
apply to a mediation presided over by a magistrate.
Clause 14 inserts a new subsection (1)(fc) into section 16 of the
Magistrates' Court Act 1989, which contains a power to make
rules of court with respect to judicial resolution conferences,
including with respect to the practice and procedure of judicial
resolution conferences. The new subsection is intended to ensure
the Court may determine its practice as to which resolution
processes will be presided over by magistrates, and in what
manner the practice of those resolution processes will be
conducted.
Clause 15 inserts a new Division 3B of Part 5 into the Magistrates' Court
Act 1989, including new sections 108B and 108C.
New section 108B(1) provides confidentiality where a judicial
resolution conference is ordered or directed in any civil
proceeding. The new section 108B(1) does this by providing
that no evidence is to be admitted, in any civil proceeding, of
anything said or done by any person in the course of the conduct
of a judicial resolution conference unless the Court otherwise
orders, having regard to the interests of justice and fairness.
This section is intended to provide greater confidentiality to
judicial resolution conferences than is provided to mediations,
not presided over by a magistrate, by section 108(2).
The new section 108B(1) is not intended to prevent a written
agreement arising out of a judicial resolution conference, and
signed by parties at the conclusion of a judicial resolution
conference, being admitted into evidence in a proceeding.
The Court's ability to order an exception to the new section
108B(1) is intended to allow the Court to order that evidence of
things said or done in the course of the conduct of a judicial
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resolution conference may be admitted as evidence in the hearing
of a civil proceeding on the extremely rare occasion where
exceptional circumstances require it.
New section 108(2) confirms that a magistrate is not compellable
to give evidence in any proceeding, whether civil or criminal, of
anything said or done or arising from the conduct of the judicial
resolution conference. Section 108(2) is intended to prevent a
magistrate being compellable to give evidence intended to assist
in the interpretation of the terms of a written agreement arising
out of a judicial resolution conference, and signed by parties at
the conclusion of a judicial resolution conference.
New section 108C confirms that judicial immunity applies to a
magistrate presiding over a judicial resolution conference.
Section 108C does not imply that presiding over a judicial
resolution conference is not a judicial function, and therefore
does not imply that presiding over a judicial resolution
conference is not covered by common law judicial immunity.
It is for this reason that the new section 108C does not limit any
other law, written or unwritten.
PART 5--CHILDREN, YOUTH AND FAMILIES ACT 2005
Clause 16 amends section 3(1) of the Children, Youth and Families Act
2005 by inserting a new definition.
Judicial resolution conference is defined to mean a resolution
process in the Family Division of the Court presided over by the
President or a magistrate for the purposes of negotiating a
settlement of a dispute--
· including, but not limited to--
· mediation; or
· early neutral evaluation;
· settlement conference;
· conciliation;
· other than a dispute resolution conference under
section 217.
The definition clarifies that the term judicial resolution
conference will apply to non-determinative appropriate dispute
resolution processes presided over by the President or by a
magistrate. The definition also confirms that the term judicial
dispute resolution conference will not apply to dispute resolution
conferences under section 217 of the Children, Youth and
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Families Act 2005, which must be presided over by a Governor-
in-Council appointed convenor.
Clause 17 amends section 523(1) of the Children, Youth and Families Act
2005 to make the requirement that proceedings in the Children's
Court be heard in open court subject to the new section 527A.
Clause 18 inserts new sections 527A and 527B into the Children, Youth
and Families Act 2005.
New section 527A(1) provides confidentiality where a judicial
resolution conference is ordered or directed in the Family
Division of the Court. The new section 527A(1) does this by
providing that no evidence is to be admitted, in any proceeding
in that Division, of anything said or done by any person in the
course of the conduct of a judicial resolution conference unless
the Court otherwise orders, having regard to the interests of
justice and fairness.
The new section 527A(1) is not intended to prevent a written
agreement arising out of a judicial resolution conference, and
signed by parties at the conclusion of a judicial resolution
conference, being admitted into evidence in a proceeding.
The Court's ability to order an exception to the new section
527A(1) is intended to allow the Court to order that evidence
of things said or done in the course of the conduct of a judicial
resolution conference may be admitted as evidence in the hearing
of a proceeding in the Family Division on the extremely rare
occasion where exceptional circumstances require it.
New section 527A(2) confirms that the President or a magistrate
are not compellable to give evidence in any proceeding, whether
civil or criminal, of anything said or done or arising from the
conduct of the judicial resolution conference. Section 527A(2)
is intended to prevent the President or a magistrate being
compellable to give evidence intended to assist in the
interpretation of the terms of a written agreement arising out of
a judicial resolution conference, and signed by parties at the
conclusion of a judicial resolution conference.
New section 527B confirms that judicial immunity applies to
a magistrate presiding over a judicial resolution conference.
Section 527B does not imply that presiding over a judicial
resolution conference is not a judicial function, and therefore
does not imply that presiding over a judicial resolution
conference is not covered by common law judicial immunity.
It is for this reason that the new section 527B does not limit any
other law, written or unwritten.
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Clause 19 substitutes a new section 588(1) into the Children, Youth and
Families Act 2005, which contains a power to make rules with
respect to judicial resolution conferences, including with respect
to the practice and procedure of judicial resolution conferences,
in addition to the power to make Rules for the prescription of
forms previously contained in section 588(1). The substituted
section is intended to ensure the Court may determine its practice
as to which resolution processes will be presided over by the
President or a magistrate, and in what manner the practice of
those resolution processes will be conducted.
PART 6--GENERAL
Clause 20 repeals the Courts Legislation Amendment (Judicial
Resolution Conference) Act 2009 on 1 August 2011.
The repeal of the amending Act does not affect the continuing
operation of the amendments made by it (see section 15(1)) of the
Interpretation of Legislation Act 1984).
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