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This is a Bill, not an Act. For current law, see the Acts databases.


COURTS LEGISLATION AMENDMENT BILL 1999

                           Western Australia



                      LEGISLATIVE COUNCIL



     Courts Legislation Amendment Bill 1999


                               A Bill for


An Act to amend --
    •       the District Court of Western Australia Act 1969;
    •       the Liquor Licensing Act 1988;
    •       the Local Courts Act 1904; and
    •       the Supreme Court Act 1935.



The Parliament of Western Australia enacts as follows:




                                                               page 1




                               30--1B
     Courts Legislation Amendment Bill 1999
     Part 1       Preliminary

     s. 1



                              Part 1 -- Preliminary
     1.         Short title
                This Act may be cited as the Courts Legislation Amendment
                Act 1999.

 5   2.         Commencement
          (1)   This Act, other than the provisions set out in subsection (2),
                comes into operation on the day on which it receives the Royal
                Assent.
          (2)   Sections 6, 7, and 21 to 25 come into operation on a day fixed
10              by proclamation.
          (3)   Different days may be fixed under subsection (2) for different
                provisions.




     page 2
                                        Courts Legislation Amendment Bill 1999
      Amendments to the District Court of Western Australia Act 1969    Part 2

                                                                             s. 3



     Part 2 -- Amendments to the District Court of Western
                    Australia Act 1969
     3.       The Act amended
              The amendments in this Part are to the District Court of Western
 5            Australia Act 1969*.
             [* Reprinted as at 1 January 1999.]

     4.       Section 24 amended
              Section 24(1) is amended by deleting "any practitioner as
              defined by the Legal Practitioners Act 1893, of not less than
10            8 years' standing and practice," and inserting instead --
              "
                    a person qualified to be appointed a District Court
                    Judge under section 10,
                                                                                ".

15   5.       Section 27A inserted
              After section 27 the following section is inserted --
     "
          27A.      Employment of personal staff for Judges
              (1)   On the recommendation of the Chief Judge, the
20                  Attorney General may employ, under contracts of
                    service, people to be associates, orderlies and other
                    assistants to the District Court Judges.
              (2)   The Public Sector Management Act 1994 does not
                    apply to or in respect of the employment of a person
25                  under subsection (1).
              (3)   An arrangement under section 66 of the Public Sector
                    Management Act 1994 may be entered into between an

                                                                            page 3
     Courts Legislation Amendment Bill 1999
     Part 2       Amendments to the District Court of Western Australia Act 1969

     s. 6



                      employing authority and the Attorney General under
                      which a public service officer performs the functions,
                      services or duties of an associate, orderly, or other
                      assistant to a District Court Judge.
 5                                                                               ".

     6.         Section 88 amended
          (1)   Section 88(2)(f) is deleted.
          (2)   Section 88(3) is repealed.

     7.         Section 89A inserted
10              After section 89 the following section is inserted --
     "
            89A.      Fees and poundage
                (1)   The Governor may make regulations prescribing or
                      providing for --
15                      (a) the fees payable in respect of any cause or
                             matter in the Court;
                        (b) the fees payable in respect of the conduct of the
                             business of any office of or connected with the
                             Court; and
20                      (c) the fees and poundage payable in respect of
                             anything done by the bailiff or officers of the
                             bailiff in or in relation to the execution of any
                             writ, warrant or other process.
                (2)   Regulations made under subsection (1) may provide for
25                    the waiver, reduction, refund or deferral of payment,
                      with or without conditions, of fees or poundage.




     page 4
                                      Courts Legislation Amendment Bill 1999
    Amendments to the District Court of Western Australia Act 1969    Part 2

                                                                          s. 7



            (3)   If a question arises as to the fee payable or applicable
                  in a particular case, that question is to be determined by
                  the Principal Registrar.
            (4)   Any person affected by the determination of the
5                 Principal Registrar under subsection (3) may have it
                  reviewed by a District Court Judge in a summary
                  manner.
                                                                               ".




                                                                         page 5
     Courts Legislation Amendment Bill 1999
     Part 3       Amendments to the Liquor Licensing Act 1988

     s. 8



             Part 3 -- Amendments to the Liquor Licensing
                            Act 1988
     8.          The Act amended
                 The amendments in this Part are to the Liquor Licensing
 5               Act 1988*.
                 [* Reprinted as at 12 June 1998.]
     9.          Section 3 amended
                 Section 3(1) is amended as follows:
                   (a) by deleting the definition of "Acting Judge";
10                 (b) by deleting the definition of "the Judge" and inserting
                         the following definition instead --
                 "
                       "the Judge" means a Liquor Licensing Court Judge
                            nominated or deemed to have been nominated
15                          under this Act;
                                                                                 ".
     10.         Section 8 amended
           (1)   Section 8(3) is amended by deleting "an Acting Judge"
                 and inserting instead --
20               "
                       a Liquor Licensing Court Judge nominated under
                       section 9(4)
                                                                                 ".
           (2)   Section 8(4) is amended by deleting "an Acting Judge"
25               and inserting instead --
                 "
                       a Liquor Licensing Court Judge nominated under
                       section 9(4)
                                                                                 ".

     page 6
                                       Courts Legislation Amendment Bill 1999
                        Amendments to the Liquor Licensing Act 1988    Part 3

                                                                              s. 11



     11.        Section 9 replaced
                Section 9 is repealed and the following section is inserted
                instead --
     "
 5         9.         Appointment of the Judge of the Liquor Licensing
                      Court
                (1)   Subject to subsection (2), the Liquor Licensing Court
                      Judge shall be such District Court Judge, or
                      Commissioner of the District Court appointed under
10                    section 24 of the District Court of Western Australia
                      Act 1969, as the Chief Judge of the District Court of
                      Western Australia shall from time to time nominate,
                      either generally or for a specified time, to be the Liquor
                      Licensing Court Judge.
15              (2)   On the day on which Part 3 of the Courts Legislation
                      Amendment Act 1999 comes into operation, the person
                      who, immediately before that day, held office as the
                      Liquor Licensing Court Judge, is deemed to have been
                      nominated as the Liquor Licensing Court Judge under
20                    subsection (1) and shall continue to hold that office as
                      if section 9 had not been repealed until he or she dies,
                      retires, or otherwise ceases to hold the office.
                (3)   In the exercise of that office, the Liquor Licensing
                      Court Judge has the same protection and immunity as a
25                    Judge has in respect of proceedings in the Supreme
                      Court.
                (4)   Where the person who is deemed under subsection (2)
                      to have been nominated as the Liquor Licensing Court
                      Judge --
30                      (a) is or is expected to be absent from duty for any
                              reason; or

                                                                              page 7
     Courts Legislation Amendment Bill 1999
     Part 3       Amendments to the Liquor Licensing Act 1988

     s. 12



                     (b)     declines to deal with any matter,
                   the Chief Judge is to nominate a District Court Judge
                   or a Commissioner of the District Court to be a Liquor
                   Licensing Court Judge for such period, or in respect of
 5                 such applications or matters, as may be specified in the
                   instrument of appointment.
                                                                              ".

     12.      Sections 10 and 11 repealed
              Sections 10 and 11 are repealed.

10   13.      Section 16 amended
              Section 16(7) is amended by deleting "or an Acting Judge".

     14.      Transitional
              If on the day on which sections 9, 10, 12, and 13 come into
              operation an Acting Judge of the Liquor Licensing Court is
15            dealing with an application or matter the Acting Judge may
              continue to deal with the application or matter as if those
              sections had not come into operation.




     page 8
                                 Courts Legislation Amendment Bill 1999
                        Amendment to the Local Courts Act 1904   Part 4

                                                                     s. 15



       Part 4 -- Amendment to the Local Courts Act 1904
     15.   The Act amended
           The amendment in this Part is to the Local Courts Act 1904*.
           [* Reprinted as at 4 March 1994.
 5            For subsequent amendments see 1998 Index to Legislation of
              Western Australia, Table 1, p. 148.]

     16.   Section 91 amended
           Section 91 is amended by deleting "into court" in both places
           where it occurs and inserting instead --
10         " to the plaintiff or the plaintiff's solicitor   ".




                                                                    page 9
     Courts Legislation Amendment Bill 1999
     Part 5       Amendments to the Supreme Court Act 1935

     s. 17



      Part 5 -- Amendments to the Supreme Court Act 1935
     17.           The Act amended
                   The amendments in this Part are to the Supreme Court
                   Act 1935*.
 5             [* Reprinted as at 23 July 1999.]

     18.           Part VI inserted
                   After section 68 the following Part is inserted --
     "
                                 Part VI -- Mediation
10           69.        Interpretation
                        In this Part, unless the contrary intention appears --
                        "mediation under direction" means mediation carried
                           out by a mediator under a direction of the Court
                           under and subject to the Rules of Court;
15                      "mediator" means --
                           (a) a Registrar appointed by the Chief Justice to
                                 be a Mediation Registrar under the Rules of
                                 Court;
                           (b) a person approved by the Chief Justice to be
20                               a mediator under the Rules of Court; or
                           (c) a person agreed by the parties.

             70.        Protection of mediator
                        A mediator carrying out mediation under direction has
                        the same privileges and immunities as a Judge of the
25                      Court has in the performance of judicial duties as a
                        Judge.

     page 10
                                  Courts Legislation Amendment Bill 1999
                    Amendments to the Supreme Court Act 1935      Part 5

                                                                          s. 18



     71.         Privilege
           (1)   Subject to subsection (3), evidence of --
                  (a)    anything said or done;
                  (b)    any communication, whether oral or in writing;
 5                       or
                   (c)   any admission made,
                 in the course of or for the purposes of an attempt to
                 settle a proceeding by mediation under direction is to
                 be taken to be in confidence and is not admissible in
10               any proceedings before any court, tribunal or body.
           (2)   Subject to subsection (3) --
                   (a)   any document prepared in the course of or for
                         the purposes of an attempt to settle a
                         proceeding by mediation under direction;
15                (b)    any copy of such a document; or
                  (c)    evidence of any such document,
                 is to be taken to be subject to a duty of confidence and
                 is not admissible in any proceedings before any court,
                 tribunal or body.
20         (3)   Subsections (1) and (2) do not affect the admissibility
                 of any evidence or document in proceedings if --
                   (a) the parties to the mediation consent to the
                         admission of the evidence or document in the
                         proceedings;
25                 (b) there is a dispute in the proceedings as to
                         whether or not the parties to the mediation
                         entered into a binding agreement settling all or
                         any of their differences and the evidence or
                         document is relevant to that issue;


                                                                     page 11
     Courts Legislation Amendment Bill 1999
     Part 5       Amendments to the Supreme Court Act 1935

     s. 18



                          (c)   the proceedings relate to a costs application
                                and, under the Rules of Court, the evidence or
                                document is admissible for the purposes of
                                determining any question of costs; or
 5                        (d)   the proceedings relate to any act or omission in
                                connection with which a disclosure has been
                                made under section 72(2)(c).
                   (4)   A mediator cannot be compelled to give evidence of
                         anything referred to in subsection (1) or (2) or to
10                       produce a document or a copy of a document referred
                         to in subsection (2) except --
                           (a) in proceedings referred to in subsection (3)(d);
                                 or
                           (b) in proceedings relating to a costs application
15                               where there is a dispute as to a fact stated or a
                                 conclusion reached in a mediator's report
                                 prepared under the Rules of Court on the failure
                                 of a party to cooperate in the mediation and the
                                 evidence or document is relevant to that issue.
20                 (5)   In subsections (3) and (4) --
                         "costs application" means an application for the costs
                              of the mediation or of the proceedings to which
                              mediation relates.

             72.         Confidentiality
25                 (1)   Subject to subsection (2), a mediator must not disclose
                         any information obtained in the course of or for the
                         purpose of carrying out mediation under direction.




     page 12
                                    Courts Legislation Amendment Bill 1999
                      Amendments to the Supreme Court Act 1935      Part 5

                                                                            s. 19



             (2)   Subsection (1) does not apply if --
                    (a) the disclosure is made for the purpose of
                          reporting under the Rules of Court on any
                          failure of a party to cooperate in a mediation;
 5                  (b) the disclosure is made with the consent of the
                          parties;
                    (c) there are reasonable grounds to believe that the
                          disclosure is necessary to prevent or minimize
                          the danger of injury to any person or damage to
10                        any property; or
                    (d) the disclosure is authorized by law or the
                          disclosure is required by or under a law of the
                          State (other than a requirement imposed by a
                          subpoena or other compulsory process) or the
15                        Commonwealth.
                                                                                ".

     19.     Section 155 amended
             Section 155(4) is repealed.

     20.     Section 155A inserted
20           After section 155 the following section is inserted --
     "
           155A.   Employment of personal staff for Judges and
                   Masters
             (1)   On the recommendation of the Chief Justice, the
25                 Attorney General may employ, under contracts of
                   service, people to be associates, orderlies and other
                   assistants to the Judges and Masters.




                                                                           page 13
     Courts Legislation Amendment Bill 1999
     Part 5       Amendments to the Supreme Court Act 1935

     s. 21



                 (2)        The Public Sector Management Act 1994 does not
                            apply to or in respect of the employment of a person
                            under subsection (1).
                 (3)        An arrangement under section 66 of the Public Sector
 5                          Management Act 1994 may be entered into between an
                            employing authority and the Attorney General under
                            which a public service officer performs the functions,
                            services or duties of an associate, orderly, or other
                            assistant to a Judge or Master.
10                                                                                   ".
     21.         Section 163 amended
           (1)   Section 163(1) is amended by deleting "may be fixed by rules
                 made by the Judges of the Supreme Court" and inserting
                 instead --
15               "     are payable under the regulations     ".
           (2)   Section 163(2) is amended by deleting "prescribed fees" and
                 inserting instead --
                 "     fees payable under the regulations     ".

     22.         Section 167 amended
20               Section 167(1)(q) is deleted and the following paragraph is
                 inserted instead --
                        "
                             (q)   For enabling and regulating the mediation of
                                   any of the differences between any parties to a
25                                 proceeding generally and, in particular,
                                   providing for --
                                     (i) the reference of a proceeding or any part
                                           of a proceeding to a mediator with or
                                           without the consent of any party to the
30                                         proceeding;

     page 14
                                        Courts Legislation Amendment Bill 1999
                          Amendments to the Supreme Court Act 1935      Part 5

                                                                             s. 23



                                (ii)   the conduct of the mediator and of the
                                       parties;
                               (iii)   the terms and conditions upon which the
                                       mediation conference is to be held; and
 5                             (iv)    the admissibility of evidence in relation
                                       to a mediation for the purpose of
                                       determining the costs of the mediation
                                       or the costs of the proceedings between
                                       the parties to the mediation.
10                                                                                 ".

     23.         Section 169 repealed
                 Section 169 is repealed.

     24.         Section 170 amended
           (1)   Section 170(1) is amended by deleting "and all orders fixing the
15               fees and percentages to be taken in the Court or in any office
                 connected with the Court, or by any officer,".
           (2)   Section 170(2) is amended by deleting "or order" wherever
                 occurring.

     25.         Section 171 inserted
20               After section 170 the following section is inserted --
     "
             171.      Fees and poundage
                 (1)   The Governor may make regulations prescribing or
                       providing for --
25                       (a) the fees payable in respect of any cause or
                              matter in the Court;



                                                                           page 15
     Courts Legislation Amendment Bill 1999
     Part 5       Amendments to the Supreme Court Act 1935

     s. 25



                      (b)    the fees payable in respect of the conduct of the
                             business of any office of or connected with the
                             Court;
                       (c)   the fees and poundage payable in respect of
 5                           anything done by the sheriff, officers of the
                             sheriff or a bailiff in or in relation to the
                             execution of any writ, warrant or other process;
                             and
                      (d)    the fees and poundage payable in respect of
10                           anything done by the Marshall in Admiralty
                             and officers of the Marshall in or in relation to
                             the execution of any writ, warrant or other
                             process.
               (2)   Regulations made under subsection (1) may provide for
15                   the waiver, reduction, refund or deferral of payment,
                     with or without conditions, of fees or poundage.
               (3)   If a question arises as to the fee payable or applicable
                     in a particular case, that question is to be determined by
                     the Principal Registrar.
20             (4)   Any person affected by the determination of the
                     Principal Registrar under subsection (3) may have it
                     reviewed by the Court in a summary manner.
                                                                                  ".




     page 16
                                   Courts Legislation Amendment Bill 1999
                                                    Validation     Part 6

                                                                      s. 26



                         Part 6 -- Validation
     26.   Validation
           To the extent that, before the coming into operation of
           section 22, provisions of the Rules of the Supreme Court 1971
 5         related or purported to relate to mediation --
             (a) those provisions are to be regarded as having been
                   validly and lawfully made and published under and
                   within the authority of the Supreme Court Act 1935 and
                   to have always had effect according to their terms; and
10           (b) anything done under or purportedly done under those
                   provisions is to be regarded as having been validly done
                   and, to have always been, effectual in all respects.




 


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