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


CIVIL PROCEEDINGS BILL 2011

           Queensland



Civil Proceedings Bill 2011

 


 

 

Queensland Civil Proceedings Bill 2011 Contents Part 1 Preliminary 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 3 Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 4 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 5 Meaning of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 6 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Part 2 Law and equity 7 Concurrent administration of law and equity . . . . . . . . . . . . . . . . 17 8 Equitable damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 9 Injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 10 Declaratory order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 11 Order to fulfil duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 12 Order to appoint receiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Part 3 Orders Division 1 Orders generally 13 Power to make orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 14 Power to impose appropriate conditions . . . . . . . . . . . . . . . . . . . 20 15 Power to award costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Division 2 Particular orders 16 Amendment for new cause of action or party . . . . . . . . . . . . . . . . 20 17 Interested person may become a party and may be bound by outcome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 18 Order binds persons who are represented. . . . . . . . . . . . . . . . . . 21 19 Interpleader orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 20 Set-off. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 21 Abatement of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 22 Dismissal of proceedings for want of prosecution . . . . . . . . . . . . 24

 


 

Civil Proceedings Bill 2011 Contents 23 Effect of default judgment given by registrar . . . . . . . . . . . . . . . . 24 24 Discharge of lien or security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Part 4 Transfer of proceedings 25 Transfer by Supreme Court--general. . . . . . . . . . . . . . . . . . . . . . 25 26 Transfer by District Court--general . . . . . . . . . . . . . . . . . . . . . . . 25 27 Transfer because of amendment . . . . . . . . . . . . . . . . . . . . . . . . . 25 28 Transfer because claim beyond jurisdiction . . . . . . . . . . . . . . . . . 26 29 Transfer because counterclaim beyond jurisdiction . . . . . . . . . . . 26 30 Copy of order and filed documents. . . . . . . . . . . . . . . . . . . . . . . . 27 31 Power of court to which proceeding transferred . . . . . . . . . . . . . . 28 32 Limitation periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 33 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Part 5 Conferences 34 Definition for pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 35 Resolution agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 36 Evidence from relevant conference . . . . . . . . . . . . . . . . . . . . . . . 29 Part 6 ADR processes Division 1 Preliminary 37 Objects of pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 38 Application of pt 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Division 2 Interpretation 39 ADR process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 40 Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 41 Case appraisal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Division 3 ADR process 42 Parties may agree to ADR process . . . . . . . . . . . . . . . . . . . . . . . 31 43 Court may refer dispute to ADR process . . . . . . . . . . . . . . . . . . . 31 44 Parties must attend at ADR process if court orders . . . . . . . . . . . 32 45 Procedure at case appraisal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 46 Subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 47 Party unable to pay share of costs . . . . . . . . . . . . . . . . . . . . . . . . 33 Division 4 At end of ADR process 48 Mediated resolution agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 34 49 Documents to be filed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 50 Orders giving effect to mediation agreement . . . . . . . . . . . . . . . . 34 51 Orders giving effect to case appraiser's decision . . . . . . . . . . . . . 35 Page 2

 


 

Civil Proceedings Bill 2011 Contents Division 5 Protection, immunity and confidentiality 52 Ordinary protection and immunity allowed . . . . . . . . . . . . . . . . . . 35 53 Evidence from ADR process . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 54 Preservation of confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Part 7 Compliance with subpoena etc. 55 Nonattendance of individual witness . . . . . . . . . . . . . . . . . . . . . . 36 56 Nonattendance of corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 57 Noncompliance is contempt of court . . . . . . . . . . . . . . . . . . . . . . 38 Part 8 Interest 58 Interest up to judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 59 Interest after money order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Part 9 Assessment of damages 60 Income tax reduction for loss of earnings award . . . . . . . . . . . . . 39 61 Discount rate for lump sum award . . . . . . . . . . . . . . . . . . . . . . . . 40 Part 10 Wrongful death proceedings 62 Definitions for pt 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 63 Meaning of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 64 Liability for a death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 65 One proceeding for benefit of members of deceased person's family .......................................... 42 66 Surviving proceeding other than by personal representative . . . . 43 67 Damages for spouse's benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 68 Damages for child's benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 69 Transitional application of assessment provisions . . . . . . . . . . . . 45 70 Amounts not to be taken into account in assessing damages . . . 45 Part 11 Provisions about ships 71 Definitions for pt 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 72 Damages for personal injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 73 Right of contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 74 Other damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 75 No statutory presumption of fault . . . . . . . . . . . . . . . . . . . . . . . . . 49 Part 12 Assessors 76 Definitions for pt 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 77 Protection and immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 78 Preservation of confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 79 Preservation of privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Page 3

 


 

Civil Proceedings Bill 2011 Contents Part 13 Enforcement Division 1 Judgments 80 Judgment for detention of goods . . . . . . . . . . . . . . . . . . . . . . . . . 51 81 Judgment for return of goods . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 82 Judgment for return of goods or payment of their value . . . . . . . . 52 83 Effect of money order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Division 2 Enforcement generally 84 Demand for compliance unnecessary . . . . . . . . . . . . . . . . . . . . . 53 85 Interest recoverable on enforcement . . . . . . . . . . . . . . . . . . . . . . 53 86 Enforcement against partnership . . . . . . . . . . . . . . . . . . . . . . . . . 54 87 Variation of order in partnership name . . . . . . . . . . . . . . . . . . . . . 54 88 Enforcement against property of a business . . . . . . . . . . . . . . . . 54 89 Variation of order in relation to a business name . . . . . . . . . . . . . 55 Division 3 Enforcement warrants 90 Enforcement warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 91 Period of enforcement warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 92 Payment under enforcement warrant . . . . . . . . . . . . . . . . . . . . . . 56 93 Securities held by enforcement officer . . . . . . . . . . . . . . . . . . . . . 57 94 Redirection of joint funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 95 State debts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 96 Redirection of partnership debts . . . . . . . . . . . . . . . . . . . . . . . . . 58 97 Account with financial institution. . . . . . . . . . . . . . . . . . . . . . . . . . 58 98 Enforcement against a third person . . . . . . . . . . . . . . . . . . . . . . . 59 99 Redirection of earnings--protection of employee. . . . . . . . . . . . . 59 Division 4 Warrant for defendant's arrest 100 Issue of warrant for defendant's arrest . . . . . . . . . . . . . . . . . . . . . 60 Division 5 Enforcement officers 101 Powers not impaired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 102 No licence necessary for auction . . . . . . . . . . . . . . . . . . . . . . . . . 61 103 Transfer to be executed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Part 14 Miscellaneous provisions 104 Grant of representation before proceeding ............... 61 105 No grant of representation before proceeding . . . . . . . . . . . . . . . 62 106 No new trial because of ruling about duty . . . . . . . . . . . . . . . . . . 63 107 Regulation-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Page 4

 


 

Civil Proceedings Bill 2011 Contents Part 15 Transitional provision for Civil Proceedings Act 2011 108 Reference to s 48, Supreme Court Act 1995 . . . . . . . . . . . . . . . . 63 Part 16 Amendment of Civil Liability Act 2003 109 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 110 Replacement of s 57 (Discount rate to be applied in calculating the present value of future loss or gratuitous services) . . . . . . . . 64 57 Discount rate for calculating present value of future loss or gratuitous services . . . . . . . . . . . . . . . . . . . . . 64 Part 17 Amendment of Criminal Code 111 Code amended. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 112 Amendment of s 559 (Change of place of trial) . . . . . . . . . . . . . . 64 113 Insertion of new ch 63A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Chapter 63A Nonattendance of witness 644B Nonattendance of individual . . . . . . . . . . . . . . . . . . . . 65 644C Nonattendance of corporation . . . . . . . . . . . . . . . . . . 65 644D Noncompliance is contempt of court . . . . . . . . . . . . . 66 114 Amendment of s 662 (Taxation) . . . . . . . . . . . . . . . . . . . . . . . . . . 66 115 Omission of s 663 (Enforcement of judgment of Circuit Court) . . 66 116 Insertion of new s 696 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 696 Warrant for release of person detained in custody . . . 67 Part 18 Amendment of District Court of Queensland Act 1967 117 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 118 Amendment of s 3 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 67 119 Amendment of pt 2 hdg (Court, judges, registries and officers) . . 68 120 Replacement of s 8B (Seals of the court) . . . . . . . . . . . . . . . . . . 68 8B Court seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 121 Replacement of s 25 (Hearing de novo when trial judge unable to continue). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 25 Application if original judge unable to continue . . . . . 69 122 Replacement of pt 2, div 4 (Registries) . . . . . . . . . . . . . . . . . . . . 70 Division 4 Registry 35 Registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 35A Process returnable in office where issued but effective throughout State. . . . . . . . . . . . . . . . . . . . . . 70 35B Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 123 Omission of pt 2, div 5, sdiv 1 (Judicial registrars) . . . . . . . . . . . . 70 124 Omission of pt 2, div 5, sdiv 2 hdg (Other officers) . . . . . . . . . . . 71 Page 5

 


 

Civil Proceedings Bill 2011 Contents 125 Replacement of ss 36 and 36A . . . . . . . . . . . . . . . . . . . . . . . . . . 71 36 Principal registrar, other registrars and officers . . . . . 71 36A Delegation by registrar . . . . . . . . . . . . . . . . . . . . . . . . 71 36B Directions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 36C Supreme Court and Magistrates Court officers . . . . . 72 36D Associates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 126 Amendment of s 40 (When a clerk of the court is registrar, the clerk's successor or deputy shall be registrar) . . . . . . . . . . . . . . . 73 127 Replacement of s 41 (Appointment of bailiffs and bailiffs' assistants) .................................... 73 41 Appointment of bailiffs . . . . . . . . . . . . . . . . . . . . . . . . 73 128 Replacement of ss 42 and 43. . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 42 Power of bailiffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 43 Functions of bailiffs. . . . . . . . . . . . . . . . . . . . . . . . . . . 74 129 Amendment of s 44 (Bailiff not required to take out auctioneer's licence) .......................................... 74 130 Amendment of s 45 (Remuneration of bailiffs) . . . . . . . . . . . . . . . 74 131 Insertion of new s 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 47 Bailiff's protection from liability . . . . . . . . . . . . . . . . . . 75 132 Omission of s 48 (Disabilities of registrar and bailiff) . . . . . . . . . . 75 133 Replacement of pt 2, div 7 (Lawyers and agents) . . . . . . . . . . . . 75 Division 7 Court appearance 52 Court appearance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 134 Omission of ss 66 and 67. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 135 Replacement of pt 5, div 4 (Removal of actions) . . . . . . . . . . . . . 76 Division 4 Commercial and other lists 77 Court may maintain lists . . . . . . . . . . . . . . . . . . . . . . . 76 78 No appeal from entry on a list . . . . . . . . . . . . . . . . . . 76 79 Commercial list proceeding . . . . . . . . . . . . . . . . . . . . 76 136 Omission of pt 7 (ADR processes) . . . . . . . . . . . . . . . . . . . . . . . . 77 137 Omission of s 116 (Venue of appeals) . . . . . . . . . . . . . . . . . . . . . 77 138 Amendment of s 118 (Appeal to the Court of Appeal in certain cases) ...................................... 77 139 Insertion of new ss 118A and 118B . . . . . . . . . . . . . . . . . . . . . . . 77 118A Leave of District Court required to appeal from consent order ....................... 77 118B Leave of District Court required to appeal in relation to costs .............................. 78 Page 6

 


 

Civil Proceedings Bill 2011 Contents 140 Insertion of new pt 11, div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 Division 1 Court 125 Practice directions . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 126 Business of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 141 Insertion of new s 130B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 130B Finance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 142 Amendment of s 131 (Regulation-making power) . . . . . . . . . . . . 79 143 Insertion of new ss 148 and 149 . . . . . . . . . . . . . . . . . . . . . . . . . 79 148 Transitional provision for Civil Proceedings Act 2011--bailiff's assistants . . . . . . . . . . . . . . . . . . . . . . 79 149 Outdated references. . . . . . . . . . . . . . . . . . . . . . . . . . 79 Part 19 Amendment of Evidence Act 1977 144 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 145 Insertion of new ss 129A and 129B . . . . . . . . . . . . . . . . . . . . . . . 80 129A Order that evidence may be given in a different way . 80 129B Person may be examined without subpoena or other process ............................. 81 Part 20 Amendment of Judges (Pensions and Long Leave) Act 1957 146 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 147 Replacement of s 2A (Length of service if previously an acting judge in Queensland) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 2A Length of service if previously an acting judge or master in Queensland . . . . . . . . . . . . . . . . . . . . . . . . 82 Part 21 Amendment of Jury Act 1995 148 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 149 Amendment of s 8 (Assignment of responsibility for jury districts to other sheriffs and persons). . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 150 Insertion of new pt 6, div 1A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Division 1A Duty of judge and jury in civil cases 51A Duty of judge and jury . . . . . . . . . . . . . . . . . . . . . . . . 83 151 Insertion of new s 65A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 65A Civil trial without a jury . . . . . . . . . . . . . . . . . . . . . . . . 83 Part 22 Amendment of Justices Act 1886 152 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 153 Amendment of s 22 (Continuance of Magistrates Courts) . . . . . . 84 154 Amendment of s 126 (Transmission of depositions). . . . . . . . . . . 84 155 Amendment of s 222 (Appeal to a single judge) . . . . . . . . . . . . . 85 Page 7

 


 

Civil Proceedings Bill 2011 Contents Part 23 Amendment of Land Court Act 2000 156 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 157 Replacement of s 37 (ADR process applies to proceedings started under this part) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 37 ADR process applies to proceedings started under this part ................................. 85 158 Amendment of s 62 (Nomination of Supreme Court judge to be member of Land Appeal Court) . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Part 24 Amendment of Law Reform Act 1995 159 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 160 Amendment of s 5 (Definitions for pt 3) . . . . . . . . . . . . . . . . . . . . 87 161 Amendment of s 6 (Proceedings against, and contribution between, joint and several tortfeasors). . . . . . . . . . . . . . . . . . . . . 87 162 Amendment of s 8 (Additional definitions for div 2) . . . . . . . . . . . 87 163 Amendment of s 10 (Apportionment of liability in case of contributory negligence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Part 25 Amendment of Magistrates Act 1991 164 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 165 Insertion of new s 49A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 49A Application if original magistrate unable to continue . 88 Part 26 Amendment of Magistrates Courts Act 1921 166 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 167 Amendment of s 2 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 89 168 Insertion of new s 3B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 3B Delegation by registrar . . . . . . . . . . . . . . . . . . . . . . . . 90 169 Omission of s 5A (Proceeding started in wrong court). . . . . . . . . 90 170 Insertion of new ss 14A and 14B . . . . . . . . . . . . . . . . . . . . . . . . . 90 14A Business of Magistrates Court . . . . . . . . . . . . . . . . . . 90 14B Process returnable in registry where issued but effective throughout State. . . . . . . . . . . . . . . . . . . . . . 91 171 Amendment and relocation of s 17 (Officers of Magistrates Court) ..................................... 91 172 Replacement of s 18 (Appearance to be in person or by lawyer, or other person allowed by the court) . . . . . . . . . . . . . . . . . . . . . . 91 18 Court appearance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 173 Omission of pt 5 (ADR processes) . . . . . . . . . . . . . . . . . . . . . . . . 92 174 Insertion of new s 57B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 57B Finance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Page 8

 


 

Civil Proceedings Bill 2011 Contents 175 Insertion of new s 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 61 Outdated references. . . . . . . . . . . . . . . . . . . . . . . . . . 92 Part 27 Amendment of Succession Act 1981 176 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 177 Amendment of s 66 (Survival of actions) . . . . . . . . . . . . . . . . . . . 93 Part 28 Amendment of Supreme Court of Queensland Act 1991 178 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 179 Replacement of ss 2A-6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 3 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . 94 180 Replacement of pt 2 (The court) . . . . . . . . . . . . . . . . . . . . . . . . . 94 Part 2 The court Division 1 Composition and jurisdiction 4 Composition of the court . . . . . . . . . . . . . . . . . . . . . . 94 5 Divisions of the court . . . . . . . . . . . . . . . . . . . . . . . . . 94 6 Acting judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 7 Jurisdiction not affected by vacancies . . . . . . . . . . . . 96 8 Business of the court . . . . . . . . . . . . . . . . . . . . . . . . . 96 9 Court seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 10 Jurisdiction of the court not impaired etc.. . . . . . . . . . 96 11 Effect of repeal of Supreme Court Act 1995. . . . . . . . 97 Division 2 Office of Chief Justice 12 Appointment of Chief Justice . . . . . . . . . . . . . . . . . . . 97 13 Chief Justice continues in office while judge 98 14 Title of Chief Justice . . . . . . . . . . . . . . . . . . . . . . . . . . 98 15 Administrative responsibility of Chief Justice . . . . . . . 98 16 Sittings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 17 Practice directions . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 18 Supreme Court precincts . . . . . . . . . . . . . . . . . . . . . . 99 19 Annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 Division 3 Provisions relating to judges generally 20 Power to act throughout State . . . . . . . . . . . . . . . . . . 99 21 Retirement of judges . . . . . . . . . . . . . . . . . . . . . . . . . 99 22 Accepting and holding other public offices . . . . . . . . . 100 23 Judicial office subject to Constitution of Queensland 2001 ................................... 100 24 Seniority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Page 9

 


 

Civil Proceedings Bill 2011 Contents 25 Temporary judicial office holders . . . . . . . . . . . . . . . . 101 26 Entitlements of temporary judicial office holders . . . . 102 27 Protection for administrative acts . . . . . . . . . . . . . . . . 103 181 Amendment of s 28 (Composition). . . . . . . . . . . . . . . . . . . . . . . . 103 182 Amendment of s 31 (Constitution of court if 1 judge of appeal unable to continue) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 183 Amendment of s 32 (Arrangement of business of Court of Appeal) ..................................... 103 184 Amendment of s 36 (Appointment of President) . . . . . . . . . . . . . 103 185 Amendment of s 42 (Reserved judgements) . . . . . . . . . . . . . . . . 104 186 Omission of ss 44 and 45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 187 Amendment of s 56 (Single judge to constitute the court) . . . . . . 104 188 Insertion of new s 56A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 56A Application if original judge unable to continue . . . . . 104 189 Amendment of s 60 (Arrangement of business of Trial Division) . 106 190 Insertion of new pt 4, divs 3 and 4 . . . . . . . . . . . . . . . . . . . . . . . . 106 Division 3 Regions and districts 61A Regions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 61B Central Region . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 61C Northern Region. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 61D Far Northern Region. . . . . . . . . . . . . . . . . . . . . . . . . . 108 61E Districts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Division 4 Commercial and other lists 62 Court may maintain lists . . . . . . . . . . . . . . . . . . . . . . . 109 62A No appeal from entry on a list . . . . . . . . . . . . . . . . . . 109 62B Commercial list proceeding . . . . . . . . . . . . . . . . . . . . 109 191 Amendment of s 69 (Appeal in proceedings in the court) . . . . . . 109 192 Insertion of new ss 69A and 69B . . . . . . . . . . . . . . . . . . . . . . . . . 109 69A Leave required to appeal from consent order. . . . . . . 110 69B Leave required to appeal in relation to costs . . . . . . . 110 193 Relocation of s 70 (Disqualification of judge of appeal) . . . . . . . . 110 194 Replacement of pts 7 and 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Part 7 Registry 70 Registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 71 Process returnable in office where issued but effective throughout State. . . . . . . . . . . . . . . . . . . . . . 111 72 Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Page 10

 


 

Civil Proceedings Bill 2011 Contents 73 Registration of Acts . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Part 8 Court officers 74 Principal registrar, other registrars and officers . . . . . 111 75 Delegation by registrar . . . . . . . . . . . . . . . . . . . . . . . . 112 76 Directions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 77 Registrar of Magistrates Court . . . . . . . . . . . . . . . . . . 112 78 Sheriff of Queensland, deputy sheriffs and bailiffs . . . 113 79 Powers of sheriff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 80 Power of bailiffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 81 Enforcement officer's protection from liability . . . . . . . 113 82 Associates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 195 Omission of pt 8B (Provision from Legal Practitioners Act 1995). 114 196 Amendment of pt 9 hdg (Rules of court and practice directions for the Supreme Court, the District Court and the Magistrates Courts) ...................................... 114 197 Omission of s 117 (Definition for pt 9) . . . . . . . . . . . . . . . . . . . . . 114 198 Amendment of s 118 (Rule-making power) . . . . . . . . . . . . . . . . . 115 199 Insertion of new s 118AA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 118AA Admission guidelines . . . . . . . . . . . . . . . . . . . . . . . . . 115 200 Amendment of s 118A (Rules committee may approve forms) . . 116 201 Amendment of s 118B (Court rules are exempt from RIS requirements and automatic expiry) . . . . . . . . . . . . . . . . . . . . . . . 116 202 Amendment of s 118C (Rules Committee). . . . . . . . . . . . . . . . . . 116 203 Omission of ss 118D and 118E . . . . . . . . . . . . . . . . . . . . . . . . . . 116 204 Replacement of ss 119-119D . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 119 Court appearance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 119A Finance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 205 Amendment of s 120 (Regulation-making power) . . . . . . . . . . . . 117 206 Replacement of pt 11 (Transitional provisions). . . . . . . . . . . . . . . 117 Part 11 Transitional provisions 121 Outdated references. . . . . . . . . . . . . . . . . . . . . . . . . . 117 121A Transitional--abolition of Circuit Courts . . . . . . . . . . . 118 121B Transitional provision for Forensic Disability Act 2011 119 122 Renumbering of Act . . . . . . . . . . . . . . . . . . . . . . . . . . 119 207 Amendment of sch 1 (Subject matter for rules) . . . . . . . . . . . . . . 119 208 Insertion of new schs 1A-1C . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 209 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 125 Page 11

 


 

Civil Proceedings Bill 2011 Contents Part 29 Repeal of Supreme Court Act 1995 210 Repeal of Supreme Court Act 1995 . . . . . . . . . . . . . . . . . . . . . . . 126 Part 30 Amendment of this Act 211 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 212 Amendment of long title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 213 Amendment of s 88 (Enforcement against property of a business) .................................... 126 214 Amendment of s 89 (Variation of order in relation to a business name) .......................................... 127 215 Amendment of sch 1 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 127 Part 31 Consequential amendments of other legislation 216 Legislation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 Part 32 Other amendments Division 1 Amendment of Associations Incorporation Act 1981 217 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 218 Amendment of s 64 (Tenure of members of management committee) ..................................... 128 219 Amendment of s 91 (Declaration of applied Corporations legislation) ..................................... 128 220 Insertion of new pt 11A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 Part 11A Voluntary transfer of incorporation Division 1 Incorporated associations 106A Application for authority to transfer incorporation . . . . 129 106B Requirements for application . . . . . . . . . . . . . . . . . . . 129 106C Further information or documents for application. . . . 131 106D Refusal to grant application . . . . . . . . . . . . . . . . . . . . 131 106E Chief executive to give notice of authority to transfer incorporation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 106F Effect of a transfer of incorporation authorised under this division. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 106G New body to give chief executive copy of new certificate of registration . . . . . . . . . . . . . . . . . . . . . . . 132 Division 2 RECI Act corporations 106H Application for authority to transfer incorporation . . . . 132 106I Requirements for application . . . . . . . . . . . . . . . . . . . 132 106J Further information or documents for application. . . . 134 106K Refusal to grant application . . . . . . . . . . . . . . . . . . . . 134 Page 12

 


 

Civil Proceedings Bill 2011 Contents 106L Minister to give notice of authority to transfer incorporation ............................. 135 106M Effect of a transfer of incorporation authorised under this division. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 106N New body to give Minister copy of new certificate of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 221 Amendment of s 109 (Affected person may apply for review) . . . 136 222 Amendment of schedule (Dictionary) . . . . . . . . . . . . . . . . . . . . . . 136 Division 2 Amendment of Births, Deaths and Marriages Registration Act 2003 223 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 224 Amendment of s 32 (Notifying about disposal of a deceased person's body) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Division 3 Amendment of Cremations Act 2003 225 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 226 Amendment of s 11 (Dealing with ashes). . . . . . . . . . . . . . . . . . . 138 Division 4 Amendment of Electoral Act 1992 227 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 228 Amendment of s 61 (Information on electoral rolls to be provided to particular people and organisations) . . . . . . . . . . . . . . . . . . . . 138 229 Amendment of s 106 (Who may vote) . . . . . . . . . . . . . . . . . . . . . 139 Division 5 Amendment of Information Privacy Act 2009 230 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 231 Amendment of s 29 (Special provision for law enforcement agencies) ....................................... 139 232 Replacement of s 148 (Leave of absence). . . . . . . . . . . . . . . . . . 139 148 Leave of absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 233 Amendment of sch 5 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 140 Division 6 Amendment of Justices of the Peace and Commissioners for Declarations Act 1991 234 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 235 Insertion of new s 35A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 35A Proof of identity documents . . . . . . . . . . . . . . . . . . . . 141 Division 7 Amendment of Queensland Civil and Administrative Tribunal Act 2009 236 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 237 Insertion of new ch 4, pt 3, div 5. . . . . . . . . . . . . . . . . . . . . . . . . . 142 Division 5 Miscellaneous 194A Period of office ends--finishing proceedings . . . . . . . 142 Page 13

 


 

Civil Proceedings Bill 2011 Contents 194B Member resigns--finishing proceedings . . . . . . . . . . 142 Division 8 Amendment of Retirement Villages Act 1999 238 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 239 Amendment of s 15 (What is an exit fee) . . . . . . . . . . . . . . . . . . . 143 240 Insertion of new s 53A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 53A How to work out particular exit fee for a residence contract ................................. 143 Division 9 Amendment of Right to Information Act 2009 241 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 242 Replacement of s 138 (Leave of absence). . . . . . . . . . . . . . . . . . 144 138 Leave of absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 243 Replacement of s 154 (Leave of absence). . . . . . . . . . . . . . . . . . 145 154 Leave of absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 244 Amendment of sch 2 (Entities to which this Act does not apply) . 145 Schedule 1A Minor and consequential amendments . . . . . . . . . . . . . . . . 146 Building and Construction Industry Payments Act 2004. . . . . . . . 146 Building Units and Group Titles Act 1980. . . . . . . . . . . . . . . . . . . 146 Charitable Funds Act 1958. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 Dispute Resolution Centres Act 1990 . . . . . . . . . . . . . . . . . . . . . 148 Forestry Act 1959 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Land Act 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Legal Aid Queensland Act 1997. . . . . . . . . . . . . . . . . . . . . . . . . . 149 Maintenance Act 1965 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Marine Parks Act 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Oaths Act 1867. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Powers of Attorney Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Property Agents and Motor Dealers Act 2000 . . . . . . . . . . . . . . . 151 Public Health Act 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Public Officers Superannuation Benefits Recovery Act 1988 . . . 151 Residential Tenancies and Rooming Accommodation Act 2008 . 152 South Bank Corporation Act 1989 . . . . . . . . . . . . . . . . . . . . . . . . 152 State Penalties Enforcement Act 1999 . . . . . . . . . . . . . . . . . . . . . 152 Sustainable Planning Act 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Transport Operations (Road Use Management) Act 1995 . . . . . . 153 Schedule 1 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Page 14

 


 

2011 A Bill for An Act to provide for various matters concerning civil proceedings and proceedings in relation to contempt of court in the Supreme Court, the District Court and the Magistrates Courts, to repeal the Supreme Court Act 1995, to amend the Associations Incorporation Act 1981, the Births, Deaths and Marriages Registration Act 2003, the Civil Liability Act 2003, the Cremations Act 2003, the Criminal Code, the District Court of Queensland Act 1967, the Electoral Act 1992, the Evidence Act 1977, the Information Privacy Act 2009, the Judges (Pensions and Long Leave) Act 1957, the Jury Act 1995, the Justices Act 1886, the Justices of the Peace and Commissioners for Declarations Act 1991, the Land Court Act 2000, the Law Reform Act 1995, the Magistrates Act 1991, the Magistrates Courts Act 1921, the Queensland Civil and Administrative Tribunal Act 2009, the Retirement Villages Act 1999, the Right to Information Act 2009, the Succession Act 1981 and the Supreme Court of Queensland Act 1991, and to make minor and consequential amendments of the Acts mentioned in a schedule

 


 

Civil Proceedings Bill 2011 Part 1 Preliminary [s 1] The Parliament of Queensland enacts-- 1 Part 1 Preliminary 2 1 Short title 3 This Act may be cited as the Civil Proceedings Act 2011. 4 2 Commencement 5 The following provisions commence on a day to be fixed by 6 proclamation-- 7 parts 1 to 31 8 part 32, divisions 2, 3, 6, and 8 9 section 228 10 schedules 1A and 1. 11 3 Application 12 Unless this Act otherwise expressly provides, this Act applies 13 to civil proceedings and proceedings in relation to contempt 14 of court in the following courts-- 15 the Supreme Court 16 the District Court 17 a Magistrates Court. 18 4 Dictionary 19 The dictionary in schedule 1 defines particular words used in 20 this Act. 21 Page 16

 


 

Civil Proceedings Bill 2011 Part 2 Law and equity [s 5] 5 Meaning of court 1 In this Act-- 2 court means, if otherwise appropriate-- 3 (a) in the context of the Supreme Court--the Supreme 4 Court; or 5 (b) in the context of the District Court--the District Court; 6 or 7 (c) in the context of Magistrates Courts--a Magistrates 8 Court. 9 6 Act binds all persons 10 This Act binds all persons, including the State. 11 Part 2 Law and equity 12 7 Concurrent administration of law and equity 13 (1) A court must exercise its jurisdiction in a proceeding to 14 ensure, as far as possible, that-- 15 (a) all matters in dispute between the parties are completely 16 and finally decided; and 17 (b) multiplicity of legal proceedings is avoided. 18 (2) A court must give the same effect as it did immediately before 19 the commencement of this section-- 20 (a) to all equitable estates, titles, rights, remedies, defences 21 and counterclaims, and to all equitable duties and 22 liabilities; and 23 (b) subject to the matters mentioned in paragraph (a), to all 24 legal claims and demands and all estates, titles, rights, 25 duties, obligations and liabilities existing under the 26 Page 17

 


 

Civil Proceedings Bill 2011 Part 2 Law and equity [s 8] common law or under any custom or created under any 1 statute. 2 (3) If there is a conflict or difference between the rules of equity 3 and the rules of the common law, the rules of equity prevail. 4 (4) Nothing in this Act affects a court's power to stay a 5 proceeding if appropriate, either on its own initiative or on the 6 application of any person, whether or not a party. 7 (5) Nothing in this section limits any inherent or other power of a 8 court to make an order for the decision by the court of a 9 question or issue separately from another question or issue or 10 to state a case for the opinion of the Court of Appeal. 11 (6) Also, nothing in this section increases the jurisdiction given to 12 the District Court under the District Court of Queensland Act 13 1967 or to a Magistrates Court under the Magistrates Courts 14 Act 1921. 15 8 Equitable damages 16 If a court has jurisdiction to hear an application for an 17 injunction or specific performance, the court may award 18 damages as well as, or instead of, an injunction or specific 19 performance. 20 9 Injunction 21 (1) If a court has jurisdiction to hear an application for an 22 injunction, the court may, at any stage of a proceeding, by 23 injunction, restrain a threatened or apprehended breach of 24 contract or other wrongful conduct. 25 (2) If waste or trespass is threatened or apprehended, for 26 subsection (1), it does not matter whether-- 27 (a) the person against whom the injunction is sought (the 28 relevant person) is in possession under any claim of title 29 or otherwise; or 30 Page 18

 


 

Civil Proceedings Bill 2011 Part 2 Law and equity [s 10] (b) if the relevant person is not in possession, the relevant 1 person claims a right to do the act sought to be 2 restrained under any claim of title; or 3 (c) the estate claimed by any party is legal or equitable. 4 (3) The court may also, at any stage of a proceeding, grant an 5 interlocutory injunction if it considers it just or convenient. 6 10 Declaratory order 7 (1) This section applies to the Supreme Court only. 8 (2) The court may hear an application for a declaratory order only 9 and may make a declaratory order without granting any relief 10 as a result of making the order. 11 11 Order to fulfil duty 12 (1) This section applies to the Supreme Court only. 13 (2) The court may order any person to fulfil any duty in the 14 fulfilment of which the person seeking the order is personally 15 interested. 16 (3) The court may make an interlocutory order under subsection 17 (2) if it considers it just or convenient. 18 12 Order to appoint receiver 19 (1) This section applies to the Supreme Court only. 20 (2) The court may, at any stage of a proceeding, make an 21 interlocutory order appointing a receiver if it considers it just 22 or convenient. 23 Page 19

 


 

Civil Proceedings Bill 2011 Part 3 Orders [s 13] Part 3 Orders 1 Division 1 Orders generally 2 13 Power to make orders 3 (1) This section applies to a court making an order under this Act. 4 (2) Unless otherwise stated in this Act, the court may make the 5 order on its own initiative or on an application made to it 6 under this Act. 7 14 Power to impose appropriate conditions 8 A court may impose on an order conditions it considers 9 appropriate. 10 15 Power to award costs 11 A court may award costs in all proceedings unless otherwise 12 provided. 13 Division 2 Particular orders 14 16 Amendment for new cause of action or party 15 (1) This section applies to an amendment of a claim, anything 16 written on a claim, pleadings, an application or another 17 document in a proceeding. 18 (2) The court may order an amendment to be made, or grant leave 19 to a party to make an amendment, even though-- 20 (a) the amendment will include or substitute a cause of 21 action or add a new party; or 22 (b) the cause of action included or substituted arose after 23 the proceeding was started; or 24 Page 20

 


 

Civil Proceedings Bill 2011 Part 3 Orders [s 17] (c) a relevant period of limitation, current when the 1 proceeding was started, has ended. 2 (3) Despite subsection (2), the rules of court may limit the 3 circumstances in which amendments may be made. 4 (4) This section applies despite the Limitation of Actions Act 5 1974. 6 17 Interested person may become a party and may be bound 7 by outcome 8 (1) This section applies if the court considers-- 9 (a) not all persons interested in the subject matter of a 10 proceeding or the relief sought in a proceeding are 11 before the court; and 12 (b) the proceeding ought not to proceed, or relief ought not 13 to be given, without particular persons being given 14 notice of the proceeding. 15 (2) The court may-- 16 (a) order that the particular persons be included as parties to 17 the proceeding; or 18 (b) stay the proceeding until notice of the proceeding has 19 been given, as the court may direct, to the particular 20 persons. 21 (3) If a person given notice does not elect to be included as a 22 party to the proceeding, the person is bound by the outcome of 23 the proceeding in relation to any subject matter or relief in 24 which the person was interested. 25 18 Order binds persons who are represented 26 (1) This section applies to an order made in a proceeding started 27 and continued by or against 1 or more persons (the 28 representative party) who have the same interest in the 29 proceeding as representing all of the persons who have the 30 same interest and could have been parties to the proceeding. 31 Page 21

 


 

Civil Proceedings Bill 2011 Part 3 Orders [s 19] (2) Unless the court orders otherwise, as well as binding the 1 parties to the proceeding, the order binds the persons who 2 have the same interest as the representative party and could 3 have been parties to the proceeding. 4 (3) The order may be enforced against a person not named as a 5 party only with the court's leave. 6 19 Interpleader orders 7 (1) On an application for relief by way of interpleader, the court 8 may do 1 or more of the following-- 9 (a) if a proceeding is pending against the applicant--order a 10 claimant be included as a defendant in the proceeding in 11 addition to or in substitution for the applicant; 12 (b) order a question between the claimants be stated and 13 tried and direct which of the claimants is to be the 14 plaintiff and which the defendant and give any necessary 15 directions for the trial; 16 (c) order the applicant to pay or transfer all or part of the 17 property in dispute or the proceeds of sale into court or 18 otherwise dispose of the property or proceeds of sale; 19 (d) if a claimant claims to be entitled to any of the property 20 by way of security for a debt--make orders for the sale 21 of all or part of the property and for the application of 22 the proceeds of sale; 23 (e) decide in a summary way a question of law or fact 24 arising on the application; 25 (f) make an order it considers appropriate, including an 26 order finally disposing of all issues arising in the 27 proceeding. 28 (2) If-- 29 (a) an application for relief by way of interpleader is made; 30 and 31 (b) several proceedings are pending in the court for or about 32 any or all of the property in dispute; and 33 Page 22

 


 

Civil Proceedings Bill 2011 Part 3 Orders [s 20] (c) the court makes an order in any 2 or more of the 1 proceedings; 2 the order is binding on all the parties to all the proceedings to 3 which it applies. 4 20 Set-off 5 (1) If there are mutual debts between a plaintiff and a defendant 6 in a proceeding, the defendant may, by way of defence, set off 7 against the plaintiff's claim any debt owed by the plaintiff to 8 the defendant that was due and payable at the time the defence 9 of set-off was filed. 10 (2) For subsection (1), it does not matter whether the mutual 11 debts are different in nature. 12 (3) This section extends to a proceeding in which 1 or more of the 13 mutual debts is owed by or to a deceased person who is 14 represented by a personal representative. 15 (4) However, this section does not apply to the extent to which a 16 plaintiff and a defendant have agreed that debts, whether 17 generally, or in relation to specific debts, may not be set off 18 against each other. 19 (5) This section-- 20 (a) does not affect other rights of set-off or obligation of a 21 debtor or creditor whether arising in equity or 22 otherwise; and 23 (b) applies subject to any express provision in another Act. 24 (6) In this section-- 25 debt means any liquidated claim. 26 21 Abatement of proceedings 27 (1) If a party to a proceeding dies or becomes bankrupt, the 28 proceeding does not abate because of the death or bankruptcy 29 unless the cause of action does not survive the death or 30 bankruptcy. 31 Page 23

 


 

Civil Proceedings Bill 2011 Part 3 Orders [s 22] (2) If a proceeding abates for any reason before an order for costs 1 made in the proceeding is satisfied-- 2 (a) the order for costs remains enforceable; and 3 (b) the proceeding continues for the purpose only of 4 enforcement of the order for costs. 5 22 Dismissal of proceedings for want of prosecution 6 (1) This section applies to the District Court and Magistrates 7 Courts. 8 Note-- 9 The Supreme Court has inherent power to dismiss proceedings for want 10 of prosecution. 11 (2) If 2 years have passed since the last step was taken in a 12 proceeding, the court may dismiss the proceeding. 13 (3) For this section, an application on which no order was made is 14 taken not to be a step. 15 23 Effect of default judgment given by registrar 16 A default judgment given by a registrar has effect as a 17 judgment given by the court. 18 24 Discharge of lien or security 19 (1) This section applies to a proceeding if-- 20 (a) a party (the claimant) claims the recovery of particular 21 property other than land (the relevant property); and 22 (b) the party from whom recovery is sought-- 23 (i) claims to be entitled to retain the relevant property 24 because of a lien or as security for money; and 25 (ii) does not otherwise dispute the title of the claimant. 26 (2) The court may make an order-- 27 Page 24

 


 

Civil Proceedings Bill 2011 Part 4 Transfer of proceedings [s 25] (a) allowing the claimant to pay into court, to be held until 1 the end of the proceeding-- 2 (i) the amount of money in relation to which the lien 3 or other security is claimed; and 4 (ii) any other sum for interest and costs as the court 5 may direct; and 6 (b) that, on payment into court, such judgment be given for 7 recovery of the relevant property as the nature of the 8 case requires. 9 Part 4 Transfer of proceedings 10 25 Transfer by Supreme Court--general 11 (1) The Supreme Court may order that a proceeding pending in 12 the District Court or a Magistrates Court be transferred to the 13 Supreme Court. 14 (2) The Supreme Court may order that a proceeding pending in 15 the Supreme Court for which the District Court, or a 16 Magistrates Court, has jurisdiction be transferred to a court 17 having jurisdiction. 18 26 Transfer by District Court--general 19 (1) The District Court may order that a proceeding pending in a 20 Magistrates Court be transferred to the District Court. 21 (2) The District Court may order that a proceeding pending in the 22 District Court for which a Magistrates Court has jurisdiction 23 be transferred to a Magistrates Court. 24 27 Transfer because of amendment 25 (1) This section applies if a plaintiff or applicant in a proceeding 26 wants to amend the relief claimed to, or to include, relief not 27 Page 25

 


 

Civil Proceedings Bill 2011 Part 4 Transfer of proceedings [s 28] within the jurisdiction of the court in which the proceeding is 1 pending. 2 (2) The party may apply to a court that would have jurisdiction if 3 the amendment were made (the other court) for-- 4 (a) leave to amend; and 5 (b) an order that the proceeding be transferred to the other 6 court. 7 (3) If, apart from any jurisdictional consideration, the other court 8 considers the amendment appropriate, the other court may 9 give leave to amend and, if it gives leave, must order that the 10 proceeding be transferred to it. 11 28 Transfer because claim beyond jurisdiction 12 (1) This section applies if the court in which a proceeding is 13 pending (the relevant court) considers it does not have 14 jurisdiction for the proceeding (other than because of a 15 counterclaim). 16 (2) If the relevant court considers another court has jurisdiction 17 for the proceeding, the relevant court may, by order, transfer 18 the proceeding to the other court. 19 (3) Unless an order is made under subsection (2), the relevant 20 court-- 21 (a) must strike out the proceeding; and 22 (b) may order the party who started the proceeding to pay 23 the costs of any other party to the proceeding. 24 29 Transfer because counterclaim beyond jurisdiction 25 (1) This section applies if a party to a proceeding in a court (the 26 relevant court) files a counterclaim for relief not within the 27 relevant court's jurisdiction. 28 (2) A court having jurisdiction for the counterclaim may order 29 that-- 30 (a) all of the proceeding be transferred to that court; or 31 Page 26

 


 

Civil Proceedings Bill 2011 Part 4 Transfer of proceedings [s 30] (b) the counterclaim be transferred to that court; or 1 (c) all of the proceeding be heard and decided by the 2 relevant court. 3 (3) If an order is made under subsection (2), the registrar of the 4 court that made the order must give a copy of it to the registrar 5 of the relevant court. 6 (4) If an order is made under subsection (2)(b)-- 7 (a) the relevant court must hear and decide the balance of 8 the proceeding; and 9 (b) unless the court hearing the counterclaim orders 10 otherwise, enforcement of any judgment in relation to 11 the balance of the proceeding is stayed until judgment is 12 given in relation to the counterclaim. 13 (5) Despite any other Act or law, the relevant court is taken to 14 have jurisdiction to hear and decide all of the proceeding if-- 15 (a) no application is made for an order under subsection 16 (2)(a) or (b) within 14 days after the counterclaim is 17 served on the other party or parties to the proceeding; or 18 (b) an order is made under subsection (2)(c). 19 30 Copy of order and filed documents 20 (1) If a court orders that all or part of a proceeding be transferred 21 to or from another court, the registrar of the court must give 22 the registrar of the other court a copy of the order. 23 (2) If a proceeding in a court is transferred to another court, the 24 registrar of the court must give to the registrar of the other 25 court all filed documents. 26 (3) If part of a proceeding in a court is transferred to another 27 court, the registrar of the court must give to the registrar of the 28 other court a copy of all filed documents. 29 Page 27

 


 

Civil Proceedings Bill 2011 Part 5 Conferences [s 31] 31 Power of court to which proceeding transferred 1 The court to which a proceeding is transferred may hear and 2 decide the proceeding as if it had been started in that court. 3 32 Limitation periods 4 To remove any doubt, it is declared that for any relevant 5 period of limitation-- 6 (a) a proceeding transferred to another court is taken to 7 have been started when the proceeding was originally 8 started; and 9 (b) a counterclaim transferred to another court is taken to 10 have been started when the counterclaim was originally 11 started. 12 33 Costs 13 (1) This section applies if a proceeding is transferred under this 14 part. 15 (2) Unless the court orders otherwise, costs are in accordance 16 with the scale of costs for the court in which the proceeding 17 was pending when the costs were incurred. 18 (3) A court to which all or part of a proceeding is transferred may 19 make an order about costs before the transfer if those costs are 20 not dealt with by an order made before the transfer. 21 Part 5 Conferences 22 34 Definition for pt 5 23 In this part-- 24 relevant conference means-- 25 (a) a conference held at the court's direction; or 26 Page 28

 


 

Civil Proceedings Bill 2011 Part 6 ADR processes [s 35] (b) a conference required under the rules because there is a 1 claim for damages for personal injury or death. 2 35 Resolution agreement 3 (1) If, at a relevant conference, the parties agree on a resolution of 4 their dispute or part of it, the agreement must be written down 5 and signed by or for each party. 6 (2) The agreement has effect as a compromise. 7 36 Evidence from relevant conference 8 (1) Evidence of anything done or said, an admission made, or a 9 document tendered, at a relevant conference about a dispute is 10 admissible at the trial of the dispute or in another civil 11 proceeding in the court or elsewhere only if-- 12 (a) all the parties to the dispute agree; or 13 (b) the evidence is an agreement under section 35. 14 (2) In this section-- 15 civil proceeding does not include a civil proceeding founded 16 on fraud alleged to be connected with, or to have happened 17 during, a relevant conference. 18 Part 6 ADR processes 19 Division 1 Preliminary 20 37 Objects of pt 6 21 The objects of this part are-- 22 Page 29

 


 

Civil Proceedings Bill 2011 Part 6 ADR processes [s 38] (a) to provide an opportunity for litigants to participate in 1 ADR processes in order to achieve negotiated 2 settlements and satisfactory resolution of disputes; and 3 (b) to improve access to justice for litigants and to reduce 4 cost and delay; and 5 (c) to provide a legislative framework allowing ADR 6 processes to be conducted as quickly, and with as little 7 formality and technicality, as possible; and 8 (d) to safeguard ADR processes-- 9 (i) by extending the same protection to participants in 10 an ADR process as they would have if the dispute 11 were before a court; and 12 (ii) by ensuring they remain confidential. 13 38 Application of pt 6 14 This part does not apply to a dispute that is the subject of an 15 employment claim under the Magistrates Courts Act 1921. 16 Division 2 Interpretation 17 39 ADR process 18 (1) An ADR process is a process of mediation or case appraisal 19 under which the parties are helped to achieve an early, 20 inexpensive settlement or resolution of their dispute. 21 (2) In this part, an ADR process includes all the steps involved in 22 an ADR process, including-- 23 (a) pre-mediation and post-mediation sessions; and 24 (b) a case appraisal session; and 25 (c) joint sessions; and 26 (d) private sessions; and 27 (e) another step prescribed under the rules. 28 Page 30

 


 

Civil Proceedings Bill 2011 Part 6 ADR processes [s 40] 40 Mediation 1 Mediation is a process under the rules in which the parties use 2 a mediator to help them resolve their dispute by negotiated 3 agreement without adjudication. 4 41 Case appraisal 5 (1) Case appraisal is a process under the rules in which a case 6 appraiser provisionally decides a dispute. 7 (2) A case appraiser's decision is not binding on the parties 8 until-- 9 (a) the time prescribed under the rules for filing an election 10 to go to trial has passed; and 11 (b) a court, by order, gives effect to the decision. 12 Division 3 ADR process 13 42 Parties may agree to ADR process 14 (1) The parties to a dispute may agree to refer their dispute to an 15 ADR process. 16 (2) If the parties agree to the referral, they must file a consent 17 order in the approved form. 18 (3) A consent order filed under this section is taken to be a 19 referring order. 20 43 Court may refer dispute to ADR process 21 (1) A court may require the parties or their representatives to 22 attend before it to enable it to decide whether the parties' 23 dispute should be referred to an ADR process. 24 (2) This section also applies if-- 25 (a) a party applies to the court for an order referring a 26 dispute to an ADR process; or 27 Page 31

 


 

Civil Proceedings Bill 2011 Part 6 ADR processes [s 44] (b) the parties are otherwise before the court. 1 (3) The court may, by order (referring order), refer the dispute to 2 mediation or case appraisal. 3 (4) Without limiting the court's discretion, the court may take the 4 following matters into account when deciding whether to refer 5 a dispute to case appraisal-- 6 (a) whether the costs of litigating the dispute to the end are 7 likely to be disproportionate to the benefit gained; 8 (b) the likelihood of an appraisal producing a compromise 9 or an abandonment of a claim or defence. 10 (5) If the court decides to refer the dispute to a mediator under the 11 Dispute Resolution Centres Act 1990, it is sufficient if it 12 appoints the director of a stated dispute resolution centre as 13 mediator. 14 44 Parties must attend at ADR process if court orders 15 (1) If a referring order is made, the parties-- 16 (a) must attend before the ADR convenor appointed to 17 conduct the ADR process; and 18 (b) must not impede the ADR convenor in conducting and 19 finishing the ADR process within the time allowed 20 under the referring order. 21 (2) If a party impedes the ADR process, the court may impose 22 sanctions against the party, including-- 23 (a) by ordering that any claim for relief by the defaulting 24 party is stayed until further order; and 25 (b) by taking the party's action into account when awarding 26 costs in the proceeding or in another related proceeding 27 between the parties. 28 45 Procedure at case appraisal 29 (1) At a case appraisal, the case appraiser-- 30 Page 32

 


 

Civil Proceedings Bill 2011 Part 6 ADR processes [s 46] (a) must decide the procedure to be used at the case 1 appraisal; and 2 (b) may adopt any procedure that will, in the case 3 appraiser's opinion, enable a sound opinion of the likely 4 outcome of the dispute to be reached; and 5 (c) must finish the case appraisal as quickly as possible. 6 (2) However, the case appraiser may, in special circumstances-- 7 (a) receive evidence; and 8 (b) examine witnesses, and administer oaths to witnesses, 9 who have been lawfully called before the case appraiser. 10 (3) The court may, at any time, give directions about procedure to 11 be used at the case appraisal. 12 (4) This section is subject to section 46. 13 46 Subpoenas 14 (1) A person may not be subpoenaed to attend a mediation. 15 (2) A person may be subpoenaed to attend a case appraisal only 16 by order of the court. 17 (3) A person subpoenaed to attend a case appraisal must not be 18 compelled to answer a question, or produce a document, the 19 person could not be compelled to answer or produce before 20 the court. 21 (4) Sections 55 and 56 apply in relation to a failure to comply 22 with the court's order as if the case appraiser were a person 23 having authority to take evidence for the court. 24 47 Party unable to pay share of costs 25 (1) If, at any time, the court is of the opinion a party to the ADR 26 process is unable, because of the party's financial 27 circumstances, to pay the party's percentage of the ADR 28 costs, the court may make an order appropriate in the 29 circumstances. 30 Page 33

 


 

Civil Proceedings Bill 2011 Part 6 ADR processes [s 48] (2) Without limiting subsection (1), the order may provide-- 1 (a) the reference to the ADR process be cancelled; or 2 (b) the referring order be revoked and another referring 3 order made. 4 Division 4 At end of ADR process 5 48 Mediated resolution agreement 6 (1) If, at a mediation, the parties agree on a resolution of their 7 dispute or part of it, the agreement must be written down and 8 signed by or for each party and by the mediator. 9 (2) The agreement has effect as a compromise. 10 49 Documents to be filed 11 (1) As soon as practicable after a mediation has finished, the 12 mediator must file a certificate about the mediation in the 13 approved form. 14 (2) As soon as practicable after a case appraisal has finished, the 15 case appraiser must file-- 16 (a) a certificate about the case appraisal in the approved 17 form; and 18 (b) the case appraiser's decision, if any. 19 50 Orders giving effect to mediation agreement 20 (1) A party may apply to the court for an order giving effect to an 21 agreement reached at or after a mediation. 22 (2) However, a party may apply for the order only after the 23 mediator's certificate has been filed. 24 (3) The court may make any order it considers appropriate in the 25 circumstances. 26 Page 34

 


 

Civil Proceedings Bill 2011 Part 6 ADR processes [s 51] 51 Orders giving effect to case appraiser's decision 1 (1) A party may apply to the court for an order giving effect to a 2 case appraiser's decision after the time prescribed under the 3 rules for electing to go to trial has passed. 4 (2) However, a party may apply for the order before the time 5 mentioned in subsection (1) has passed if all parties agree. 6 (3) The court may make any order it considers appropriate in the 7 circumstances. 8 Division 5 Protection, immunity and 9 confidentiality 10 52 Ordinary protection and immunity allowed 11 (1) In performing the functions of an ADR convenor under a 12 referring order, the ADR convenor has the same protection 13 and immunity as a Supreme Court judge performing a judicial 14 function. 15 (2) A party attending an ADR process has the same protection 16 and immunity the party would have if the ADR process were a 17 proceeding being heard before the court. 18 (3) A witness attending an ADR process has the same protection 19 and immunity as a witness attending before the court. 20 (4) A document produced at, or used for, an ADR process has the 21 same protection during the ADR process it would have if 22 produced before the court. 23 (5) In subsection (2)-- 24 party includes a party's lawyer or agent. 25 53 Evidence from ADR process 26 (1) Evidence of anything done or said, or an admission made, at 27 an ADR process about the dispute is admissible at the trial of 28 the dispute or in another civil proceeding before the court or 29 elsewhere only if all parties to the dispute agree. 30 Page 35

 


 

Civil Proceedings Bill 2011 Part 7 Compliance with subpoena etc. [s 54] (2) In subsection (1)-- 1 civil proceeding does not include a civil proceeding founded 2 on fraud alleged to be connected with, or to have happened 3 during, the ADR process. 4 54 Preservation of confidentiality 5 (1) An ADR convenor must not, without reasonable excuse, 6 disclose information coming to the ADR convenor's 7 knowledge during an ADR process. 8 Maximum penalty--50 penalty units. 9 (2) It is a reasonable excuse to disclose information if the 10 disclosure is made-- 11 (a) with the agreement of all the parties to the ADR 12 process; or 13 (b) for the purpose of giving effect to this part; or 14 (c) for statistical purposes not likely to reveal the identity of 15 a person to whom the information relates; or 16 (d) for an inquiry or proceeding about an offence happening 17 during the ADR process; or 18 (e) for a proceeding founded on fraud alleged to be 19 connected with, or to have happened during, the ADR 20 process; or 21 (f) under a requirement imposed under an Act. 22 Part 7 Compliance with subpoena etc. 23 55 Nonattendance of individual witness 24 (1) This section applies if an individual fails to comply with a 25 subpoena or order of a court requiring attendance to give 26 Page 36

 


 

Civil Proceedings Bill 2011 Part 7 Compliance with subpoena etc. [s 56] evidence or produce a document or thing to the court or a 1 person having authority to take evidence for the court. 2 (2) The court may make an order for the issue of a warrant for-- 3 (a) the arrest of the individual; and 4 (b) the production of the individual as required by the 5 subpoena or order for the purpose of the proceeding; 6 and 7 (c) the detention in custody of the individual until released 8 by the court. 9 (3) The court may order an individual who did not attend as 10 required by the subpoena or order to pay the costs and 11 expenses wasted by, or resulting from, noncompliance with 12 the subpoena or order. 13 56 Nonattendance of corporation 14 (1) This section applies if a corporation or an officer of the 15 corporation fails to comply with a subpoena or order of a 16 court requiring attendance to give evidence or produce a 17 document or thing to the court or a person having authority to 18 take evidence for the court. 19 (2) The court may make an order for the issue of a warrant for-- 20 (a) the arrest of the officer of the corporation to whom the 21 subpoena or order was directed; and 22 (b) the production of the officer as required by the subpoena 23 or order for the purpose of the proceeding; and 24 (c) the detention in custody of the officer until released by 25 the court. 26 (3) However, if the subpoena or order was directed to the `proper 27 officer' of the corporation, the court may make an order for 28 the issue of a warrant for the arrest of a particular officer only 29 if it is proved the officer had received the subpoena or order, 30 or otherwise had actual knowledge of it. 31 (4) The court may order a corporation that did not attend as 32 required by the subpoena or order to pay the costs and 33 Page 37

 


 

Civil Proceedings Bill 2011 Part 8 Interest [s 57] expenses wasted by, or resulting from, noncompliance with 1 the subpoena or order. 2 57 Noncompliance is contempt of court 3 (1) Failure to comply with a subpoena without lawful excuse is 4 contempt of court and a person who fails to comply may be 5 dealt with for contempt of court. 6 (2) Nothing in section 55 or 56 affects a court's power to punish 7 for contempt. 8 Part 8 Interest 9 58 Interest up to judgment 10 (1) This section applies in relation to a proceeding in a court for 11 the payment of money, including a proceeding for debt, 12 damages or the value of goods. 13 (2) This section does not apply in relation to-- 14 (a) a proceeding for a cause of action arising before 21 15 December 1972; or 16 (b) a proceeding for the payment of money on which 17 interest is payable as of right whether because of an 18 agreement or otherwise. 19 Editor's note-- 20 The Common Law Practice Act Amendment Act 1972 commenced on 21 21 December 1972. 22 (3) The court may order that there be included in the amount for 23 which judgment is given interest at the rate the court considers 24 appropriate for all or part of the amount and for all or part of 25 the period between the date when the cause of action arose 26 and the date of judgment. 27 (4) This section does not-- 28 Page 38

 


 

Civil Proceedings Bill 2011 Part 9 Assessment of damages [s 59] (a) authorise the giving of interest on interest; or 1 (b) affect damages recoverable for the dishonour of a bill of 2 exchange. 3 59 Interest after money order 4 (1) This section does not apply in relation to a proceeding for a 5 cause of action arising before 21 December 1972. 6 (2) Interest is payable from the date of a money order on the 7 money order debt unless the court otherwise orders. 8 (3) The interest is payable at the rate prescribed under a practice 9 direction made under the Supreme Court of Queensland Act 10 1991 unless the court otherwise orders. 11 (4) However-- 12 (a) if the money order includes an amount for damages and 13 the damages are paid within 21 days of the date of the 14 order, interest on the damages is not payable unless the 15 court otherwise orders; and 16 (b) if the money order includes an amount for costs and the 17 costs are paid within 21 days after assessment, interest 18 on the costs is not payable unless the court otherwise 19 orders. 20 Part 9 Assessment of damages 21 60 Income tax reduction for loss of earnings award 22 (1) This section applies to claims for damages for any of the 23 following-- 24 (a) personal injury; 25 (b) loss of dependency; 26 (c) wrongful dismissal. 27 Page 39

 


 

Civil Proceedings Bill 2011 Part 10 Wrongful death proceedings [s 61] (2) Damages based on any of the following-- 1 (a) deprivation or impairment of earning capacity; 2 (b) loss of earnings; 3 (c) loss of future probable earnings; 4 must be reduced by the amount the court considers would 5 have been paid on the relevant earnings as income tax had 6 they been received. 7 61 Discount rate for lump sum award 8 (1) This section applies to an award of damages for deprivation or 9 impairment of earning capacity, or for a liability to incur 10 expenditure in the future. 11 (2) However, this section does not apply to an award of damages 12 to which the Civil Liability Act 2003, chapter 3 applies. 13 (3) When assessing an amount of damages as a lump sum for a 14 future loss or expense, the amount must be the present value, 15 calculated using the prescribed discount rate, of the future loss 16 or expense. 17 (4) In this section-- 18 prescribed discount rate, for an award, means-- 19 (a) the discount rate prescribed under a regulation as in 20 force when the award is made; or 21 (b) if a discount rate is not prescribed under a regulation 22 when the award is made--5%. 23 Part 10 Wrongful death proceedings 24 62 Definitions for pt 10 25 In this part-- 26 Page 40

 


 

Civil Proceedings Bill 2011 Part 10 Wrongful death proceedings [s 63] child includes a grandchild and a stepchild. 1 member of the deceased's family means-- 2 (a) a child of the deceased, including a child born alive after 3 the death of the deceased; or 4 (b) a person to whom the deceased acted, immediately 5 before his or her death, in place of a parent; or 6 (c) a parent of the deceased; or 7 (d) a person who acted, immediately before the death of the 8 deceased, in place of a parent to the deceased; or 9 (e) a spouse of the deceased. 10 parent includes a step-parent and a grandparent. 11 personal representative, for a deceased person, means an 12 executor or administrator of the deceased's estate. 13 spouse see section 63. 14 63 Meaning of spouse 15 (1) For this part, the spouse of a deceased person includes a de 16 facto partner of the deceased only if the deceased and the de 17 facto partner lived together as a couple on a genuine domestic 18 basis within the meaning of the Acts Interpretation Act 1954, 19 section 32DA-- 20 (a) generally-- 21 (i) for a continuous period of at least 2 years ending 22 on the deceased's death; or 23 (ii) for a shorter period ending on the deceased's death, 24 if the circumstances of the de facto relationship of 25 the deceased and the de facto partner evidenced a 26 clear intention that the relationship be a long term, 27 committed relationship; or 28 (b) if the deceased left a dependant who is a child of the 29 relationship--immediately before the deceased's death. 30 (2) In this section-- 31 Page 41

 


 

Civil Proceedings Bill 2011 Part 10 Wrongful death proceedings [s 64] child of the relationship means a child of the deceased person 1 and the de facto partner, and includes a child born after the 2 deceased's death. 3 dependant, of a deceased person, includes a child born after 4 the deceased's death who would have been wholly or partially 5 dependent on the deceased's earnings after the child's birth if 6 the deceased had not died. 7 64 Liability for a death 8 (1) This section applies if-- 9 (a) a death is caused by a wrongful act or omission, whether 10 or not an offence; and 11 (b) the act or omission would, if death had not resulted, 12 have entitled the deceased person to recover damages in 13 a proceeding for personal injury. 14 (2) The person who would have been liable if the death had not 15 resulted is liable for damages despite the death and whether or 16 not the death was caused by circumstances that were an 17 offence. 18 (3) In a proceeding under this part, a court may award to the 19 members of the deceased person's family the damages it 20 considers to be proportional to the damage to them resulting 21 from the death. 22 65 One proceeding for benefit of members of deceased 23 person's family 24 (1) Not more than 1 proceeding under this part may be brought 25 against a person in relation to a death. 26 (2) The proceeding may be brought by the personal representative 27 of the deceased person, or by any 1 or more of the members of 28 the deceased's family who suffered damage because of the 29 death, for the benefit of the members of the deceased's family 30 who suffered damage because of the death. 31 Page 42

 


 

Civil Proceedings Bill 2011 Part 10 Wrongful death proceedings [s 66] (3) A notice given under an Act by a person able to bring a 1 proceeding is taken to have been given on behalf of all 2 members of the deceased's family who suffered damage 3 because of the death. 4 (4) A person able to bring a proceeding may apply to the Supreme 5 Court for directions relating to the steps required to be taken 6 to comply with a requirement under an Act or relating to a 7 proceeding under this part before starting the proceeding. 8 (5) The amount of damages awarded must, after deducting any 9 costs not recovered from the defendant, be divided in the 10 shares the court decides among the members of the deceased's 11 family who suffered damage because of the death. 12 66 Surviving proceeding other than by personal 13 representative 14 If a person, other than the personal representative of the 15 deceased person, brings a proceeding under this part, the 16 person-- 17 (a) may also, on behalf of the estate of the deceased person, 18 pursue any cause of action that survives under the 19 Succession Act 1981, section 66; and 20 (b) must account to the personal representative for any 21 amount the person recovers under paragraph (a). 22 67 Damages for spouse's benefit 23 (1) This section applies if, in a proceeding under this part, a court 24 is assessing damages in relation to financial benefits lost by a 25 spouse of the deceased person as a result of the deceased's 26 death. 27 (2) The court must not take into account any financial benefits 28 that the spouse may receive as a result of a new relationship 29 that the spouse may enter into after the assessment. 30 (3) Subsection (2) applies even if the spouse intends to enter into 31 a new relationship. 32 Page 43

 


 

Civil Proceedings Bill 2011 Part 10 Wrongful death proceedings [s 68] (4) However, if the spouse has entered into a new relationship 1 since the deceased person's death, the court may take into 2 account any financial benefits that the spouse has received, 3 and any financial benefits that the spouse is likely to receive, 4 as a result of the new relationship. 5 (5) Subsection (4) applies even if the new relationship ends 6 before the assessment. 7 (6) In considering what financial benefits the spouse is likely to 8 receive as a result of the new relationship, the court must not 9 assume-- 10 (a) that the new relationship will necessarily continue; or 11 (b) that the spouse will necessarily continue to receive the 12 same financial benefits as a result of the new 13 relationship as the spouse has already received as a 14 result of the new relationship. 15 (7) In this section-- 16 financial benefits means either or both of the following-- 17 (a) monetary benefits; 18 (b) other material benefits having a monetary value, 19 including, for example, domestic services. 20 relationship means-- 21 (a) a marriage; or 22 (b) a de facto relationship within the meaning of the Acts 23 Interpretation Act 1954, section 36. 24 68 Damages for child's benefit 25 (1) This section applies if-- 26 (a) in a proceeding under this part, a court is assessing 27 damages in relation to financial benefits lost by a child 28 of the deceased person as a result of the deceased's 29 death; and 30 (b) the deceased predeceases another parent of the child 31 (the surviving parent). 32 Page 44

 


 

Civil Proceedings Bill 2011 Part 10 Wrongful death proceedings [s 69] (2) If there was a relationship between the deceased person and 1 the surviving parent immediately before the deceased's death, 2 it is irrelevant to the assessment whether or not the 3 relationship would have continued apart from the death. 4 (3) If there was a relationship between the deceased person and 5 the surviving parent that ended before the deceased's death, 6 any damages assessed must not be reduced because the 7 relationship ended before the death. 8 (4) In assessing damages, the court must not take into account any 9 financial benefits that the child has received, or may receive, 10 from any person other than the deceased person, including any 11 financial benefits that the child has received, or may receive, 12 as a result of-- 13 (a) a new relationship that the surviving parent may enter 14 into after the assessment; or 15 (b) a new relationship entered into by the surviving parent 16 since the death of the deceased. 17 (5) In this section-- 18 financial benefits see section 67. 19 relationship see section 67. 20 69 Transitional application of assessment provisions 21 Sections 67 and 68 apply in relation to any assessment made 22 in a proceeding under this part regardless of when the death 23 occurred. 24 70 Amounts not to be taken into account in assessing 25 damages 26 (1) In assessing damages in relation to liability under this part, the 27 following must not be taken into account to reduce the 28 damages-- 29 (a) an amount paid or payable on the death of the deceased 30 person under a contract of insurance; 31 Page 45

 


 

Civil Proceedings Bill 2011 Part 11 Provisions about ships [s 71] (b) an amount paid or payable on the deceased's death 1 under a contract, other than a contract of insurance, 2 made with a friendly society or other benefit society, or 3 association or trade union; 4 (c) an amount paid or payable on the deceased's death out 5 of a superannuation, provident or similar fund; 6 (d) an amount paid or payable on the deceased's death by 7 way of pension, benefit or allowance under a law of-- 8 (i) the Commonwealth; or 9 (ii) any State; or 10 (iii) another country; 11 (e) a gratuity in whatever form received or receivable on the 12 deceased's death. 13 (2) Subsection (1) applies regardless of whether the amount is 14 paid or payable to or the gratuity is received or receivable by 15 the deceased person's estate or any person for whose benefit a 16 proceeding may be brought under this part. 17 Part 11 Provisions about ships 18 71 Definitions for pt 11 19 In this part-- 20 owner, for a ship-- 21 (a) includes a person responsible for the fault of the ship; 22 and 23 (b) means the charterer or other person responsible for the 24 navigation and management of the ship if the owner is 25 not responsible for the navigation and management of 26 the ship because of a charter or for any other reason. 27 Page 46

 


 

Civil Proceedings Bill 2011 Part 11 Provisions about ships [s 72] Note-- 1 For circumstances within the scope of the Navigation Act 1912 (Cwlth), 2 see section 265A of that Act. 3 ship see the Transport Operations (Marine Safety) Act 1994, 4 section 10. 5 72 Damages for personal injury 6 (1) This section applies if loss of life or personal injury is suffered 7 by a person on board a ship because of the fault of the ship 8 and 1 or more other ships. 9 (2) The liability of the owners of the ships is joint and several. 10 (3) Nothing in this section-- 11 (a) deprives a person of any right of defence that the person 12 has apart from this section; or 13 (b) affects a person's right to limit the person's liability; or 14 (c) affects the operation of the Law Reform Act 1995, 15 section 10. 16 Notes-- 17 1 For circumstances within the scope of the Navigation Act 1912 18 (Cwlth), see section 260 of that Act. 19 2 The Law Reform Act 1995, section 10 deals with the apportionment 20 of liability if there was contributory negligence by the injured or 21 deceased person. 22 73 Right of contribution 23 (1) This section applies if-- 24 (a) loss of life or personal injury is suffered by a person on 25 board a ship because of the fault of the ship and 1 or 26 more other ships; and 27 (b) a proportion of the damages is recovered from 1 ship 28 owner that is more than the proportion in which the ship 29 was at fault. 30 Page 47

 


 

Civil Proceedings Bill 2011 Part 11 Provisions about ships [s 74] (2) The ship owner may recover by way of contribution the 1 amount of the excess from the owners of the other ships in 2 proportion to the degree to which each ship was at fault. 3 (3) However, an amount may not be recovered by way of 4 contribution if, for any reason, it could not have been 5 recovered in the first instance as damages by the person 6 entitled to sue for them. 7 (4) In addition to any other remedy provided by law and subject 8 to this Act, a ship owner entitled to recover an amount under 9 subsection (2) has, for the purposes of recovering the amount, 10 the same rights and powers as the person entitled to sue for 11 damages in the first instance. 12 Note-- 13 For circumstances within the scope of the Navigation Act 1912 (Cwlth), 14 see section 261 of that Act. 15 74 Other damages 16 (1) This section applies if, because of the fault of 2 or more ships, 17 damage or loss is caused to 1 or more ships. 18 (2) The Civil Liability Act 2003, chapter 2, part 2 does not apply 19 to a claim for the damage or loss. 20 Note-- 21 The Civil Liability Act 2003, chapter 2, part 2 deals with proportionate 22 liability. 23 (3) Each ship is liable for the damage or loss in proportion to the 24 degree to which it was at fault. 25 (4) If it is not possible to establish different degrees of fault, each 26 ship at fault is equally liable for the damage or loss. 27 (5) Nothing in this section makes a ship liable for damage or loss 28 to which the ship's fault has not contributed. 29 (6) Also, nothing in this section-- 30 (a) affects a person's liability under any contract; or 31 (b) imposes a liability on a person from which the person is 32 exempted by any contract or law; or 33 Page 48

 


 

Civil Proceedings Bill 2011 Part 11 Provisions about ships [s 75] (c) affects a person's right to limit the person's liability. 1 (7) For this section-- 2 (a) damage or loss is caused to a ship if damage or loss is 3 caused to-- 4 (i) the ship; or 5 (ii) the ship's cargo or freight, including passage 6 money and hire; or 7 (iii) any property on board the ship; and 8 (b) damage or loss caused by the fault of a ship includes any 9 salvage or other expenses resulting from that fault that 10 are recoverable at law by way of damages. 11 Note-- 12 For circumstances within the scope of the Navigation Act 1912 (Cwlth), 13 see section 259 of that Act. 14 75 No statutory presumption of fault 15 If there is a collision, a ship is not taken to be at fault solely 16 because it infringed any regulation for the prevention of 17 collisions at sea made under the Transport Operations 18 (Marine Safety) Act 1994. 19 Note-- 20 For circumstances within the scope of the Navigation Act 1912 (Cwlth), 21 see section 263 of that Act. 22 Editor's note-- 23 The International Regulations for Preventing Collisions at Sea have 24 effect as if they were part of the Transport Operations (Marine Safety) 25 Regulation 2004 under section 125 of that regulation. 26 Page 49

 


 

Civil Proceedings Bill 2011 Part 12 Assessors [s 76] Part 12 Assessors 1 76 Definitions for pt 12 2 In this part-- 3 assessment means-- 4 (a) a costs assessment; or 5 (b) an account assessment. 6 assessor means a costs assessor, or an account assessor, 7 appointed under the rules. 8 costs assessment means assessment of a costs statement or 9 itemised bill under the rules, chapter 17A. 10 77 Protection and immunity 11 (1) In performing the functions of assessor, an assessor has the 12 same protection and immunity as a Supreme Court judge 13 performing a judicial function. 14 (2) A party appearing in an assessment has the same protection 15 and immunity as the party would have if the assessment were 16 a proceeding being heard before the Supreme Court. 17 (3) A witness attending in an assessment has the same protection 18 and immunity as a witness attending before the Supreme 19 Court. 20 (4) A document produced at, or used for, an assessment has the 21 same protection during the assessment as it would have if 22 produced before the Supreme Court. 23 (5) In this section-- 24 party includes a party's lawyer or agent. 25 78 Preservation of confidentiality 26 (1) A person who gains confidential information through being an 27 assessor must not-- 28 Page 50

 


 

Civil Proceedings Bill 2011 Part 13 Enforcement [s 79] (a) make a record of the information other than-- 1 (i) for the purpose of carrying out the assessment; or 2 (ii) to discharge another function under a law; or 3 (b) disclose the information other than-- 4 (i) under an order of a court or tribunal; or 5 (ii) as authorised by the person to whom the 6 confidential information relates. 7 (2) In this section-- 8 confidential information includes information about a 9 person's affairs, but does not include-- 10 (a) information already publicly disclosed unless further 11 disclosure of the information is prohibited by law; or 12 (b) statistical information not likely to result in the 13 identification of the person to whom the information 14 relates. 15 79 Preservation of privilege 16 Privilege continues despite disclosure to an assessor. 17 Part 13 Enforcement 18 Division 1 Judgments 19 80 Judgment for detention of goods 20 (1) This section applies to a proceeding for detention of goods. 21 (2) Judgment for detention of goods must be that-- 22 (a) the defendant return specific goods to the plaintiff; or 23 Page 51

 


 

Civil Proceedings Bill 2011 Part 13 Enforcement [s 81] (b) the defendant return specific goods, or pay their value, 1 to the plaintiff; or 2 (c) the defendant pay the value of the goods, whether with 3 or without a condition that the value is not payable if 4 specific goods are returned within a stated time. 5 (3) A judgment for detention of goods may also provide for 6 damages for detention of the goods. 7 81 Judgment for return of goods 8 (1) A judgment under section 80(2)(a) that the defendant return 9 specific goods to the plaintiff may be enforced by an 10 enforcement warrant to seize and deliver the goods. 11 (2) If the judgment states a time within which the goods are to be 12 returned and the goods are not returned within the stated time, 13 the judgment may also be enforced by-- 14 (a) punishment of the defendant for contempt; and 15 (b) an enforcement warrant to seize and deliver property. 16 (3) If an enforcement warrant mentioned in subsection (1) can not 17 be enforced, the plaintiff may apply to the court and the court 18 may make any order it considers appropriate. 19 82 Judgment for return of goods or payment of their value 20 (1) This section applies if judgment is given under section 21 80(2)(b) that the defendant return specific goods, or pay their 22 value, to the plaintiff. 23 (2) If the value of the goods has been assessed-- 24 (a) the judgment must provide for payment of the amount 25 assessed; and 26 (b) the plaintiff may enforce the judgment as a money order 27 for the amount assessed if the defendant does not return 28 the goods. 29 (3) If the value of the goods has not been assessed-- 30 Page 52

 


 

Civil Proceedings Bill 2011 Part 13 Enforcement [s 83] (a) the judgment must provide for the value to be assessed; 1 and 2 (b) the plaintiff may have the value assessed and may 3 enforce the judgment as a money order for the amount 4 assessed if the defendant does not return the goods. 5 83 Effect of money order 6 (1) A money order has the effect of a judgment at law. 7 (2) A money order may be enforced only under this part 8 regardless of whether the order was made in a court's 9 common law jurisdiction or its equitable jurisdiction. 10 (3) If a court has jurisdiction to order a party to do an act, the 11 court may make a special order for the payment of money 12 enforceable as an order to do an act. 13 Division 2 Enforcement generally 14 84 Demand for compliance unnecessary 15 (1) It is not necessary to demand compliance with an order before 16 starting enforcement proceedings for the order. 17 (2) If, under an Act, the rules or an order of a court, an order must 18 be served on a person before the order may be enforced 19 against the person, the order may be served without a demand 20 for compliance. 21 85 Interest recoverable on enforcement 22 An enforcement warrant for the enforcement of a money order 23 authorises, without the need for any further order, the levying 24 of interest on the amount payable at the rate applying under 25 section 59. 26 Page 53

 


 

Civil Proceedings Bill 2011 Part 13 Enforcement [s 86] 86 Enforcement against partnership 1 (1) An order against partners suing or sued in the name of the 2 partnership may be enforced against any 1 or more of the 3 following-- 4 (a) partnership property; 5 (b) a partner who filed a notice of intention to defend; 6 (c) a person who has admitted being a partner; 7 (d) a person who the court has decided is a partner; 8 (e) a person who has been individually served as a partner 9 with the originating process and who has not filed a 10 notice of intention to defend. 11 (2) This section has effect subject to the Partnership Act 1891, 12 section 65. 13 Editor's note-- 14 Partnership Act 1891, section 65 (Legal proceedings) 15 87 Variation of order in partnership name 16 Despite section 86, the court may vary an order against a 17 partnership in the partnership name to make it an order against 18 the persons who were partners when the cause of action arose. 19 88 Enforcement against property of a business 20 (1) This section applies if-- 21 (a) a proceeding is brought against a person in relation to a 22 business carried on by the person under a name or style 23 other than the person's own name (whether or not the 24 name or style is registered under the Business Names 25 Act 1962); and 26 (b) the proceeding is started in the name or style under 27 which the person carries on business; and 28 (c) the proceeding is continued by leave of the court. 29 Page 54

 


 

Civil Proceedings Bill 2011 Part 13 Enforcement [s 89] (2) An order in the proceeding may be enforced against any 1 property of the person carrying on the business. 2 89 Variation of order in relation to a business name 3 Despite section 88, a court may vary its order, in relation to a 4 business, made in the name or style under which 1 or more 5 persons carry on the business (whether or not the name or 6 style is registered under the Business Names Act 1962), to 7 make it an order against a person carrying on the business. 8 Division 3 Enforcement warrants 9 90 Enforcement warrant 10 (1) To enforce an order (the original order) other than an order 11 for the payment of money into court, a person entitled to 12 enforce the original order may obtain an enforcement warrant 13 from the court. 14 (2) An enforcement warrant may contain any order directed to 15 enforcing the original order, including an order authorising-- 16 (a) an enforcement officer to seize and sell, in satisfaction 17 of a money order debt, all real and personal property 18 (other than exempt property) in which an enforcement 19 debtor has a legal or beneficial interest; or 20 (b) redirection to an enforcement creditor of particular 21 debts, belonging to an enforcement debtor, from a third 22 person; or 23 (c) redirection to an enforcement creditor of particular 24 earnings, of an enforcement debtor, from a third person; 25 or 26 (d) an enforcement officer to enter and deliver possession of 27 land; or 28 (e) an enforcement officer to seize and deliver specific 29 goods; or 30 Page 55

 


 

Civil Proceedings Bill 2011 Part 13 Enforcement [s 91] (f) an enforcement officer to seize and detain property. 1 (3) An enforcement warrant may contain more than 1 order 2 directed to enforcing the original order and may be issued to 3 enforce an original order that is a money order and a 4 non-money order. 5 (4) However, only the Supreme Court may issue an enforcement 6 warrant containing a charging order. 7 (5) In this section-- 8 charging order includes an order charging all or part of an 9 enforcement debtor's legal or equitable interest in 1 or more 10 of the following-- 11 (a) annuities; 12 (b) debentures; 13 (c) stocks; 14 (d) bonds; 15 (e) shares; 16 (f) marketable securities; 17 (g) prescribed interests; 18 (h) units of shares, marketable securities or prescribed 19 interests. 20 91 Period of enforcement warrant 21 An enforcement warrant ends 1 year after it issues unless the 22 warrant states that it ends at an earlier time. 23 92 Payment under enforcement warrant 24 A payment under an enforcement warrant discharges the 25 person making the payment to the extent of the payment. 26 Page 56

 


 

Civil Proceedings Bill 2011 Part 13 Enforcement [s 93] 93 Securities held by enforcement officer 1 (1) This section applies if an enforcement officer seizes cheques, 2 bills of exchange, promissory notes, specialties or other 3 securities for money (the seized documents) under an 4 enforcement warrant to enforce a money order. 5 (2) The enforcement officer holds the seized documents as 6 security for the amount to be recovered under the enforcement 7 warrant for the benefit of the enforcement creditor. 8 (3) The enforcement officer may receive an amount payable 9 under a seized document from the person liable under it. 10 (4) The rules may make provision about proceedings to recover 11 amounts under a seized document, including who may start a 12 proceeding. 13 94 Redirection of joint funds 14 (1) This section applies if the debt belonging to the enforcement 15 debtor is a fund of money owned by the enforcement debtor 16 and others (a joint fund). 17 (2) An enforcement warrant may authorise redirection to an 18 enforcement creditor of a joint fund to the extent of the 19 enforcement debtor's entitlement. 20 (3) It is presumed a joint fund is owned by the fund owners in 21 equal shares unless, on application of a fund owner or 22 enforcement creditor, the court decides the actual beneficial 23 entitlement of each fund owner. 24 95 State debts 25 (1) If the debt belonging to an enforcement debtor is from a 26 public sector unit and payable out of the consolidated fund or 27 money controlled by a public sector unit (a State debt), an 28 application for an enforcement warrant and the enforcement 29 warrant must name the chief executive, by title, of the public 30 sector unit as the third person in whose hands the State debt is 31 redirected. 32 Page 57

 


 

Civil Proceedings Bill 2011 Part 13 Enforcement [s 96] (2) Subsection (1) applies despite the Crown Proceedings Act 1 1980, section 8. 2 Editor's note-- 3 Crown Proceedings Act 1980, section 8(1)-- 4 `8 Mode of proceeding 5 (1) Subject to this Act and any other Act or law, a claim by or against 6 the Crown may be made and enforced by a proceeding by or 7 against the Crown under the title the `State of Queensland'.' 8 (3) In this section-- 9 public sector unit means any of the following-- 10 (a) a department; 11 (b) a public service office; 12 (c) an agency, authority, commission, corporation, 13 instrumentality, office, or other entity, established under 14 an Act or under State authorisation for a public or State 15 purpose; 16 (d) a part of an entity mentioned in paragraph (a), (b) or (c). 17 96 Redirection of partnership debts 18 A court may issue an enforcement warrant authorising 19 redirection to an enforcement creditor of particular debts, 20 belonging to an enforcement debtor, from a partnership 21 carrying on business in Queensland even if a partner resides 22 outside Queensland. 23 97 Account with financial institution 24 (1) An amount standing to the credit of an enforcement debtor in 25 an account in a financial institution is, for enforcing a money 26 order, a debt payable to the enforcement debtor, even if any of 27 the following conditions applicable to the account have not 28 been satisfied-- 29 (a) a condition requiring a demand or notice to be made 30 before an amount is withdrawn; 31 Page 58

 


 

Civil Proceedings Bill 2011 Part 13 Enforcement [s 98] (b) a condition requiring a personal application to be made 1 before an amount is withdrawn; 2 (c) a condition requiring the production of a deposit book or 3 a receipt for an amount deposited in the account before 4 an amount is withdrawn; 5 (d) a similar condition. 6 (2) Subsection (1) applies, with any changes necessary, to an 7 amount placed to the credit of an enforcement debtor in an 8 account in a financial institution between the date of the 9 enforcement warrant ordering the redirection and any hearing 10 deciding the validity of the warrant. 11 98 Enforcement against a third person 12 (1) If a third person-- 13 (a) does not comply with an enforcement warrant 14 authorising redirection of a debt from the third person; 15 and 16 (b) does not file a notice of objection; and 17 (c) fails to dispute the third person's liability to pay the 18 debt; 19 the enforcement creditor has the same entitlement to enforce 20 the debt as the enforcement debtor had. 21 (2) To remove any doubt, it is declared that if the debt is a State 22 debt under section 95, the Crown Proceedings Act 1980, 23 section 11 applies. 24 Editor's note-- 25 Crown Proceedings Act 1980, section 11 (Satisfaction of judgment) 26 99 Redirection of earnings--protection of employee 27 An employer must not dismiss an employee, or otherwise 28 prejudice an employee, because an enforcement warrant 29 Page 59

 


 

Civil Proceedings Bill 2011 Part 13 Enforcement [s 100] authorising redirection of the employee's earnings has been 1 made. 2 Maximum penalty--100 penalty units. 3 Division 4 Warrant for defendant's arrest 4 100 Issue of warrant for defendant's arrest 5 (1) Despite the District Court of Queensland Act 1967, section 6 69, only the Supreme Court may issue a warrant under this 7 section. 8 (2) The court may issue a warrant for the arrest of a defendant to a 9 claim in any court if the court is satisfied-- 10 (a) the defendant has absconded or is about to abscond; and 11 (b) the absence of the defendant would materially prejudice 12 the plaintiff in prosecuting the proceeding or enforcing 13 any judgment that may be given. 14 (3) The warrant must be in the approved form for the arrest of a 15 defendant. 16 (4) The court may issue the warrant at any time, for example, 17 before the defendant has been served with a claim or before 18 judgment. 19 (5) The warrant must state-- 20 (a) the name of the defendant; and 21 (b) the date, within 2 months after the warrant's issue, the 22 warrant ends. 23 (6) The court may fix an amount as security to be stated in the 24 warrant. 25 (7) On payment of the security, the defendant is entitled not to be 26 arrested or, if arrested, to be released. 27 (8) In fixing the amount, the court may have regard to any matter 28 it considers relevant, including the following matters-- 29 (a) the amount, if any, of the plaintiff's claim; 30 Page 60

 


 

Civil Proceedings Bill 2011 Part 14 Miscellaneous provisions [s 101] (b) the costs of issuing the warrant; 1 (c) an estimate of the costs of executing the warrant. 2 Division 5 Enforcement officers 3 101 Powers not impaired 4 Except as provided in this Act, this Act does not take away, 5 lessen or impair any power that was, immediately before the 6 commencement of this section, capable of being exercised by 7 an enforcement officer for a court. 8 102 No licence necessary for auction 9 An enforcement officer for a court may, in the course of 10 enforcement, sell property by auction without a licence. 11 103 Transfer to be executed 12 (1) This section applies if an enforcement officer for a court sells 13 the right, title and interest of another person in relation to 14 land. 15 (2) The sheriff, registrar or clerk of the court must execute the 16 appropriate transfer of the right, title and interest to the 17 purchaser. 18 (3) A transfer executed under subsection (2) is evidence that the 19 enforcement officer had power to sell the right, title and 20 interest mentioned in the transfer. 21 Part 14 Miscellaneous provisions 22 104 Grant of representation before proceeding 23 (1) This section applies if-- 24 Page 61

 


 

Civil Proceedings Bill 2011 Part 14 Miscellaneous provisions [s 105] (a) an originating process names as a defendant or 1 respondent a person who is dead when the originating 2 process issues; and 3 (b) the cause of action survives the person's death; and 4 (c) a grant of representation has been made when the 5 originating process issues. 6 (2) Unless the court orders otherwise, the proceeding is taken to 7 be against the person's personal representative in the personal 8 representative's capacity as personal representative of the 9 person's estate. 10 105 No grant of representation before proceeding 11 (1) If-- 12 (a) an originating process names as a defendant or 13 respondent a person who is dead when the originating 14 process issues; and 15 (b) the cause of action survives the person's death; and 16 (c) a grant of representation has not been made when the 17 originating process issues; 18 the proceeding is taken to have been brought against the 19 person's estate. 20 (2) However, if a grant of representation is made after the 21 originating process issues, then, unless the court orders 22 otherwise, the proceeding is afterwards taken to be against the 23 person's personal representative in the personal 24 representative's capacity as personal representative of the 25 person's estate. 26 (3) Even if a grant of representation has not been made when an 27 order is made in the proceeding, the order binds the estate to 28 the same extent as if a grant had been made and a personal 29 representative of the deceased had been a party to the 30 proceeding. 31 Page 62

 


 

Civil Proceedings Bill 2011 Part 15 Transitional provision for Civil Proceedings Act 2011 [s 106] 106 No new trial because of ruling about duty 1 A new trial must not be granted only because a court has ruled 2 that-- 3 (a) a document or transaction is properly stamped or is not 4 required to be stamped; or 5 (b) duty has been paid or is not required to be paid on a 6 document or transaction. 7 107 Regulation-making power 8 (1) The Governor in Council may make regulations under this 9 Act. 10 (2) In making a regulation prescribing a discount rate for section 11 61, the Governor in Council may prescribe a positive, zero or 12 negative rate. 13 (3) In recommending the making of a regulation prescribing a 14 discount rate for section 61, the Minister must have regard to 15 the following factors-- 16 (a) the prevailing rates of inflation; 17 (b) the prevailing yields on fixed term investments; 18 (c) the prevailing yields on investments in equities; 19 (d) the other economic factors the Minister considers are 20 relevant to prescribing an appropriate discount rate. 21 Part 15 Transitional provision for Civil 22 Proceedings Act 2011 23 108 Reference to s 48, Supreme Court Act 1995 24 A reference in any Act or document to section 48 of the 25 Supreme Court Act 1995 is, if the context permits, taken to be 26 a reference to section 59 of this Act. 27 Page 63

 


 

Civil Proceedings Bill 2011 Part 16 Amendment of Civil Liability Act 2003 [s 109] Part 16 Amendment of Civil Liability 1 Act 2003 2 109 Act amended 3 This part amends the Civil Liability Act 2003. 4 110 Replacement of s 57 (Discount rate to be applied in 5 calculating the present value of future loss or gratuitous 6 services) 7 Section 57-- 8 omit, insert-- 9 `57 Discount rate for calculating present value of future 10 loss or gratuitous services 11 `(1) When assessing an amount of damages as a lump sum for a 12 future loss or gratuitous services, the amount must be the 13 present value, calculated using the prescribed discount rate, of 14 the future loss or gratuitous services. 15 `(2) In this section-- 16 prescribed discount rate, for an award, see the Civil 17 Proceedings Act 2011, section 61.'. 18 Part 17 Amendment of Criminal Code 19 111 Code amended 20 This part amends the Criminal Code. 21 112 Amendment of s 559 (Change of place of trial) 22 Section 559(2), `or a Circuit Court'-- 23 omit. 24 Page 64

 


 

Civil Proceedings Bill 2011 Part 17 Amendment of Criminal Code [s 113] 113 Insertion of new ch 63A 1 Part 8, after chapter 63-- 2 insert-- 3 `Chapter 63A Nonattendance of witness 4 `644B Nonattendance of individual 5 `(1) This section applies if an individual fails to comply with a 6 subpoena or order of a court requiring attendance to give 7 evidence or produce a document or thing to the court or a 8 person having authority to take evidence for the court. 9 `(2) The court may make an order for the issue of a warrant for-- 10 (a) the arrest of the individual; and 11 (b) the production of the individual as required by the 12 subpoena or order for the purpose of the proceeding; 13 and 14 (c) the detention in custody of the individual until released 15 by the court. 16 `(3) The court may order an individual who did not attend as 17 required by the subpoena or order to pay the costs and 18 expenses wasted by, or resulting from, noncompliance with 19 the subpoena or order. 20 `644C Nonattendance of corporation 21 `(1) This section applies if a corporation or an officer of the 22 corporation fails to comply with a subpoena or order of a 23 court requiring attendance to give evidence or produce a 24 document or thing to the court or a person having authority to 25 take evidence for the court. 26 `(2) The court may make an order for the issue of a warrant for-- 27 (a) the arrest of the officer of the corporation to whom the 28 subpoena or order was directed; and 29 (b) the production of the officer as required by the subpoena 30 or order for the purpose of the proceeding; and 31 Page 65

 


 

Civil Proceedings Bill 2011 Part 17 Amendment of Criminal Code [s 114] (c) the detention in custody of the officer until released by 1 the court. 2 `(3) However, if the subpoena or order was directed to the `proper 3 officer' of the corporation, the court may make an order for 4 the issue of a warrant for the arrest of a particular officer only 5 if it is proved the officer had received the subpoena or order, 6 or otherwise had actual knowledge of it. 7 `(4) The court may order a corporation that did not attend as 8 required by the subpoena or order to pay the costs and 9 expenses wasted by, or resulting from, noncompliance with 10 the subpoena or order. 11 `644D Noncompliance is contempt of court 12 `(1) Failure to comply with a subpoena without lawful excuse is 13 contempt of court and a person who fails to comply may be 14 dealt with for contempt of court. 15 `(2) Nothing in section 644B or 644C affects a court's power to 16 punish for contempt.'. 17 114 Amendment of s 662 (Taxation) 18 (1) Section 662(2)-- 19 omit. 20 (2) Section 662(3)-- 21 renumber as section 662(2). 22 115 Omission of s 663 (Enforcement of judgment of Circuit 23 Court) 24 Section 663-- 25 omit. 26 116 Insertion of new s 696 27 After section 695A-- 28 Page 66

 


 

Civil Proceedings Bill 2011 Part 18 Amendment of District Court of Queensland Act 1967 [s 117] insert-- 1 `696 Warrant for release of person detained in custody 2 `(1) This section applies if-- 3 (a) a person (the accused) is detained in custody on a 4 charge of an indictable offence; and 5 (b) a decision has been made not to proceed with the 6 charge. 7 `(2) The Attorney-General may issue a warrant for the accused's 8 release from custody in relation to the charge. 9 `(3) The warrant must be-- 10 (a) signed by the Attorney-General; and 11 (b) addressed to the person having custody of the accused. 12 `(4) The warrant authorises the person having custody of the 13 accused to release the accused from custody immediately in 14 relation to the charge stated in the warrant. 15 `(5) However, the accused must not be released from custody if the 16 accused is otherwise lawfully detained.'. 17 Part 18 Amendment of District Court of 18 Queensland Act 1967 19 117 Act amended 20 This part amends the District Court of Queensland Act 1967. 21 118 Amendment of s 3 (Definitions) 22 (1) Section 3, definitions ADR convenor, ADR costs, ADR 23 dispute, ADR process, case appraisal, case appraiser, dispute, 24 judicial registrar, mediation, mediator, party, referring court, 25 referring order and registrar-- 26 Page 67

 


 

Civil Proceedings Bill 2011 Part 18 Amendment of District Court of Queensland Act 1967 [s 119] omit. 1 (2) Section 3-- 2 insert-- 3 `deputy sheriff means a deputy sheriff appointed under the 4 Supreme Court of Queensland Act 1991. 5 enforcement warrant means an enforcement warrant under 6 the Civil Proceedings Act 2011, section 90. 7 registrar includes the principal registrar appointed under 8 section 36. 9 sheriff means the Sheriff of Queensland appointed under the 10 Supreme Court of Queensland Act 1991.'. 11 119 Amendment of pt 2 hdg (Court, judges, registries and 12 officers) 13 Part 2, heading, `registries'-- 14 omit, insert-- 15 `registry'. 16 120 Replacement of s 8B (Seals of the court) 17 Section 8B-- 18 omit, insert-- 19 `8B Court seal 20 `(1) The court is to have and use a seal with the words `District 21 Court of Queensland'. 22 `(2) The court may have other seals required for the business and 23 administration of the court.'. 24 121 Replacement of s 25 (Hearing de novo when trial judge 25 unable to continue) 26 Section 25-- 27 omit, insert-- 28 Page 68

 


 

Civil Proceedings Bill 2011 Part 18 Amendment of District Court of Queensland Act 1967 [s 121] `25 Application if original judge unable to continue 1 `(1) This section applies if-- 2 (a) a judge (the original judge) starts the hearing of a civil 3 or criminal proceeding (including an appeal); and 4 (b) before the proceeding has been determined, the original 5 judge dies or resigns as a judge, or is certified as 6 incapable of sitting. 7 `(2) For subsection (1), a judge is certified as incapable of sitting if 8 the Chief Judge or the Judge Administrator has issued a 9 certificate (an incapacity certificate) stating the judge is 10 incapable of sitting, whether temporarily or otherwise. 11 `(3) A party to the proceeding may apply to the court for directions 12 as to the determination of the proceeding. 13 `(4) On its own initiative or on an application under this section, 14 the court may-- 15 (a) if there is an incapacity certificate stating the original 16 judge is temporarily incapable of sitting-- 17 (i) adjourn the proceeding to enable the original judge 18 to complete the hearing and determination of the 19 proceeding; or 20 (ii) order that the proceeding be heard and determined 21 afresh; or 22 (b) in any other case-- 23 (i) order that the proceeding be heard and determined 24 afresh; or 25 (ii) make any other order it considers appropriate. 26 `(5) If the court orders that a proceeding be heard and determined 27 afresh, the court may make an order it considers appropriate 28 to facilitate the hearing and determination. 29 `(6) Without limiting the orders that may be made under 30 subsection (5), the court may make an order that any order, 31 ruling or finding made by the original judge be set aside. 32 Page 69

 


 

Civil Proceedings Bill 2011 Part 18 Amendment of District Court of Queensland Act 1967 [s 122] `(7) The court hearing and determining a proceeding afresh 1 because of an order under this section may make the order it 2 considers appropriate about the costs of the first hearing.'. 3 122 Replacement of pt 2, div 4 (Registries) 4 Part 2, division 4-- 5 omit, insert-- 6 `Division 4 Registry 7 `35 Registry 8 `(1) There is to be a District Court Registry. 9 `(2) The District Court Registry is to have an office at each place 10 at which the District Court is to be held. 11 `35A Process returnable in office where issued but 12 effective throughout State 13 `(1) A process issued out of any office of the District Court 14 Registry is returnable in that office. 15 `(2) However, each process has effect, and may be enforced, at any 16 place within the State. 17 `35B Control 18 `The District Court Registry is under the control of the 19 principal registrar.'. 20 123 Omission of pt 2, div 5, sdiv 1 (Judicial registrars) 21 Part 2, division 5, subdivision 1-- 22 omit. 23 Page 70

 


 

Civil Proceedings Bill 2011 Part 18 Amendment of District Court of Queensland Act 1967 [s 124] 124 Omission of pt 2, div 5, sdiv 2 hdg (Other officers) 1 Part 2, division 5, subdivision 2, heading-- 2 omit. 3 125 Replacement of ss 36 and 36A 4 Sections 36 and 36A-- 5 omit, insert-- 6 `36 Principal registrar, other registrars and officers 7 `(1) The Governor in Council may appoint a principal registrar. 8 `(2) The chief executive may appoint registrars (other than the 9 principal registrar), deputy registrars and other officers the 10 chief executive considers appropriate. 11 `(3) A person appointed under this section is employed under the 12 Public Service Act 2008. 13 `36A Delegation by registrar 14 `(1) A registrar may delegate the registrar's functions to an 15 appropriately qualified person who is a public service 16 employee in the District Court Registry. 17 `(2) In this section-- 18 appropriately qualified, for a public service employee to 19 whom a function may be delegated, includes having the 20 qualifications, experience or standing appropriate for the 21 function. 22 Example of standing-- 23 a person's classification level in the public service 24 functions includes powers. 25 Page 71

 


 

Civil Proceedings Bill 2011 Part 18 Amendment of District Court of Queensland Act 1967 [s 125] `36B Directions 1 `The principal registrar may give directions to the registrars 2 and other officers employed in any office of the District Court 3 Registry. 4 `36C Supreme Court and Magistrates Court officers 5 `(1) This section applies if the District Court is to sit at a place 6 where an office of the District Court Registry does not exist. 7 `(2) If a regional office or a district office of the Supreme Court 8 Registry exists at the place, that office is taken to be an office 9 of the District Court Registry at the place and the registrar, 10 bailiff and other officers of the Supreme Court at the place are 11 taken to be the corresponding officers of the District Court at 12 the place. 13 Example-- 14 The registrar of the Supreme Court at the place is taken to be the 15 registrar of the District Court at the place. 16 `(3) If subsection (2) does not apply and a Magistrates Court 17 Registry exists at the place, that registry is taken to be an 18 office of the District Court Registry at the place and the 19 registrar, bailiff and other officers of the Magistrates Court at 20 the place are taken to be the corresponding officers of the 21 District Court at the place. 22 Example-- 23 A bailiff of the Magistrates Court at the place is taken to be a bailiff of 24 the District Court at the place. 25 `(4) Without limiting subsections (2) and (3), an officer taken to be 26 a corresponding officer of the District Court at a place has the 27 functions, powers and jurisdiction of the officer of the District 28 Court. 29 `36D Associates 30 `(1) The Chief Judge may appoint a person nominated by a judge 31 as an associate to the judge. 32 Page 72

 


 

Civil Proceedings Bill 2011 Part 18 Amendment of District Court of Queensland Act 1967 [s 126] `(2) An associate is appointed under this Act and not under the 1 Public Service Act 2008. 2 `(3) The Governor in Council is to decide the salary and 3 conditions of appointment for an associate appointed under 4 subsection (1).'. 5 126 Amendment of s 40 (When a clerk of the court is registrar, 6 the clerk's successor or deputy shall be registrar) 7 Section 40(2), `section 36A'-- 8 omit, insert-- 9 `section 36(2)'. 10 127 Replacement of s 41 (Appointment of bailiffs and bailiffs' 11 assistants) 12 Section 41-- 13 omit, insert-- 14 `41 Appointment of bailiffs 15 `(1) The chief executive may appoint bailiffs. 16 `(2) A person appointed under this section is employed under the 17 Public Service Act 2008.'. 18 128 Replacement of ss 42 and 43 19 Sections 42 and 43-- 20 omit, insert-- 21 `42 Power of bailiffs 22 `(1) A bailiff is an officer of the sheriff. 23 `(2) A bailiff is appointed for the State. 24 `(3) The sheriff, or a deputy sheriff, may delegate any of the 25 sheriff's functions, or deputy sheriff's functions, to a bailiff. 26 `(4) Subject to the terms of the delegation, a bailiff may perform a 27 function throughout the State. 28 Page 73

 


 

Civil Proceedings Bill 2011 Part 18 Amendment of District Court of Queensland Act 1967 [s 129] `(5) In this section-- 1 functions includes powers. 2 perform, a function, includes exercise a power. 3 `43 Functions of bailiffs 4 `The functions of a bailiff include the following-- 5 (a) acting as an orderly during sittings of the court; 6 (b) serving documents for a proceeding in the court; 7 (c) enforcing enforcement warrants of the court.'. 8 129 Amendment of s 44 (Bailiff not required to take out 9 auctioneer's licence) 10 Section 44, `execute a warrant of execution issued under the 11 authority of this Act'-- 12 omit, insert-- 13 `enforce an enforcement warrant'. 14 130 Amendment of s 45 (Remuneration of bailiffs) 15 (1) Section 45(2), `, and for the payment of the officers appointed 16 to assist the bailiff'-- 17 omit. 18 (2) Section 45(3)-- 19 omit, insert-- 20 `(3) The fees received for enforcing an enforcement warrant must 21 be paid by the registrar to the bailiff on the issue of the 22 enforcement warrant.'. 23 131 Insertion of new s 47 24 Part 2, division 5-- 25 insert-- 26 Page 74

 


 

Civil Proceedings Bill 2011 Part 18 Amendment of District Court of Queensland Act 1967 [s 132] `47 Bailiff's protection from liability 1 `(1) A proceeding in relation to a bailiff acting in that capacity 2 must be started against `The Sheriff of Queensland' and not 3 against the bailiff. 4 `(2) If a money order is made against The Sheriff of Queensland in 5 a proceeding mentioned in subsection (1)-- 6 (a) the money order debt must be paid by the Treasurer out 7 of the consolidated fund; and 8 (b) the State may recover the money order debt from the 9 relevant bailiff unless the liability resulting in the money 10 order was for an act done, or omission made, honestly 11 and without negligence when acting as a bailiff. 12 `(3) In this section-- 13 money order means an order, or part of an order, for the 14 payment of money, including an amount for damages, 15 whether or not the amount is or includes an amount for 16 interest or costs. 17 money order debt means the amount of money payable under 18 a money order.'. 19 132 Omission of s 48 (Disabilities of registrar and bailiff) 20 Section 48-- 21 omit. 22 133 Replacement of pt 2, div 7 (Lawyers and agents) 23 Part 2, division 7-- 24 omit, insert-- 25 `Division 7 Court appearance 26 `52 Court appearance 27 `(1) In a proceeding, a party may appear in person or by-- 28 (a) a lawyer; or 29 Page 75

 


 

Civil Proceedings Bill 2011 Part 18 Amendment of District Court of Queensland Act 1967 [s 134] (b) with the leave of the court, another person. 1 `(2) In this section-- 2 party includes a person served with notice of or attending a 3 proceeding although not named in the record.'. 4 134 Omission of ss 66 and 67 5 Sections 66 and 67-- 6 omit. 7 135 Replacement of pt 5, div 4 (Removal of actions) 8 Part 5, division 4-- 9 omit, insert-- 10 `Division 4 Commercial and other lists 11 `77 Court may maintain lists 12 `In exercising its power to control its own process, the court 13 may maintain lists of particular proceedings by reference to 14 subject matter, including a commercial list. 15 `78 No appeal from entry on a list 16 `There is no appeal from an order entering a proceeding on a 17 list of particular proceedings. 18 `79 Commercial list proceeding 19 `(1) This section applies to a proceeding on the commercial list. 20 `(2) If the parties to the proceeding agree, the judgment of the 21 court is final and not subject to appeal. 22 `(3) The court may order that the proceeding be tried without a 23 jury.'. 24 Page 76

 


 

Civil Proceedings Bill 2011 Part 18 Amendment of District Court of Queensland Act 1967 [s 136] 136 Omission of pt 7 (ADR processes) 1 Part 7-- 2 omit. 3 137 Omission of s 116 (Venue of appeals) 4 Section 116-- 5 omit. 6 138 Amendment of s 118 (Appeal to the Court of Appeal in 7 certain cases) 8 (1) Section 118(3), `A party'-- 9 omit, insert-- 10 `Subject to sections 118A and 118B, a party'. 11 (2) Section 118(8)-- 12 omit. 13 (3) Section 118(9) and (10)-- 14 renumber as section 118(8) and (9). 15 139 Insertion of new ss 118A and 118B 16 After section 118-- 17 insert-- 18 `118A Leave of District Court required to appeal from 19 consent order 20 `An appeal lies to the Court of Appeal from a judgment or 21 order of the District Court given or made by consent only by 22 leave of the judge who gave the judgment or made the order, 23 or, if that judge is not available, another District Court judge. 24 Page 77

 


 

Civil Proceedings Bill 2011 Part 18 Amendment of District Court of Queensland Act 1967 [s 140] `118B Leave of District Court required to appeal in relation 1 to costs 2 `(1) An appeal only in relation to costs lies to the Court of Appeal 3 from a judgment or order of the District Court only by leave 4 of the judge who gave the judgment or made the order, or, if 5 that judge is not available, another District Court judge. 6 `(2) However, if, after an appeal to the Court of Appeal is properly 7 started, the appeal becomes an appeal only in relation to the 8 costs of the original proceeding-- 9 (a) subsection (1) does not apply; and 10 (b) the appeal may be heard and determined only by leave 11 of the Court of Appeal.'. 12 140 Insertion of new pt 11, div 1 13 Part 11-- 14 insert-- 15 `Division 1 Court 16 `125 Practice directions 17 `(1) The Chief Judge may make practice directions for the District 18 Court. 19 `(2) Subsection (1) does not affect any inherent or other power to 20 make practice directions. 21 `(3) To remove any doubt, it is declared that a practice direction is 22 not subordinate legislation. 23 `126 Business of court 24 `(1) The business of the court-- 25 (a) is taken to be conducted in court wherever it is 26 conducted; and 27 (b) is to be conducted in open court. 28 Page 78

 


 

Civil Proceedings Bill 2011 Part 18 Amendment of District Court of Queensland Act 1967 [s 141] `(2) However, subject to any Act, the court may, if the public 1 interest or the interests of justice require, by order limit the 2 extent to which the business of the court is open to the 3 public.'. 4 141 Insertion of new s 130B 5 After section 130A-- 6 insert-- 7 `130B Finance 8 `The court is part of the department for the purposes of the 9 Financial Accountability Act 2009.'. 10 142 Amendment of s 131 (Regulation-making power) 11 Section 131(2), after `Court'-- 12 insert-- 13 `other than precincts that are Supreme Court precincts under 14 the Supreme Court of Queensland Act 1991'. 15 143 Insertion of new ss 148 and 149 16 After section 147-- 17 insert-- 18 `148 Transitional provision for Civil Proceedings Act 19 2011--bailiff's assistants 20 `For the purposes of section 47, a reference to a bailiff 21 includes a reference to a bailiff's assistant appointed under 22 section 41 as in force immediately before the commencement 23 of the Civil Proceedings Act 2011, section 127. 24 `149 Outdated references 25 `In an Act or document, in the context of the District Court 26 and if otherwise appropriate, a reference to a thing mentioned 27 in column 1 of the following table is taken to be a reference to 28 the corresponding thing in column 2 of the table-- 29 Page 79

 


 

Civil Proceedings Bill 2011 Part 19 Amendment of Evidence Act 1977 [s 144] Table 1 column 1 column 2 plaint or plaint and summons claim chambers court action proceeding District Court Rules 1968 Uniform Civil Procedure Rules 1999 taxation assessment of costs party and party costs costs on the standard basis solicitor and client costs costs on the indemnity basis'. Part 19 Amendment of Evidence Act 2 1977 3 144 Act amended 4 This part amends the Evidence Act 1977. 5 145 Insertion of new ss 129A and 129B 6 Part 8, before section 130-- 7 insert-- 8 `129A Order that evidence may be given in a different way 9 `(1) This section applies in a proceeding that is not a criminal 10 proceeding if either-- 11 (a) the fact in issue is any of the following-- 12 (i) the proof of handwriting; 13 (ii) the proof of documents; 14 (iii) the proof of the identity of parties; 15 Page 80

 


 

Civil Proceedings Bill 2011 Part 19 Amendment of Evidence Act 1977 [s 145] (iv) the proof of authority; or 1 (b) a court considers-- 2 (i) a fact in issue is not seriously in dispute; or 3 (ii) strict proof of a fact in issue might cause 4 unnecessary or unreasonable expense, delay or 5 inconvenience in a proceeding. 6 `(2) The court may order that evidence of the fact may be given at 7 the trial, or any other stage of the proceeding, in any way the 8 court directs. 9 `(3) Without limiting subsection (2), the court may order that 10 evidence of a fact be given by-- 11 (a) a statement on oath of information and belief; or 12 (b) the production of documents or entries in records; or 13 (c) the production of copies of documents or copies of 14 entries in records. 15 `(4) The court may at any time vary or revoke an order made under 16 this section. 17 `129B Person may be examined without subpoena or other 18 process 19 `(1) A court may order a person who is present at the hearing of a 20 proceeding and compellable to give evidence in the 21 proceeding to give evidence or to produce a document or thing 22 even if a subpoena or other process requiring the person to 23 attend for that purpose has not been duly served on the person. 24 `(2) If ordered to give evidence or to produce a document or thing, 25 the person is subject to the same penalties and liabilities as if 26 the person had been duly served with a subpoena or other 27 process.'. 28 Page 81

 


 

Civil Proceedings Bill 2011 Part 20 Amendment of Judges (Pensions and Long Leave) Act 1957 [s 146] Part 20 Amendment of Judges 1 (Pensions and Long Leave) Act 2 1957 3 146 Act amended 4 This part amends the Judges (Pensions and Long Leave) Act 5 1957. 6 147 Replacement of s 2A (Length of service if previously an 7 acting judge in Queensland) 8 Section 2A-- 9 omit, insert-- 10 `2A Length of service if previously an acting judge or 11 master in Queensland 12 `For this Act, in deciding the length of service as a judge, 13 service as any of the following is to be counted as service as a 14 judge-- 15 (a) an acting Supreme Court judge; 16 (b) an acting District Court judge; 17 (c) a master.'. 18 Part 21 Amendment of Jury Act 1995 19 148 Act amended 20 This part amends the Jury Act 1995. 21 149 Amendment of s 8 (Assignment of responsibility for jury 22 districts to other sheriffs and persons) 23 (1) Section 8(1)(a) and (b)-- 24 Page 82

 


 

Civil Proceedings Bill 2011 Part 21 Amendment of Jury Act 1995 [s 150] omit. 1 (2) Section 8(1)(c) and (d)-- 2 renumber as section 8(1)(a) and (b). 3 (3) Section 8(2)(b), `sheriff'-- 4 omit, insert-- 5 `person'. 6 150 Insertion of new pt 6, div 1A 7 Part 6, after division 1-- 8 insert-- 9 `Division 1A Duty of judge and jury in civil cases 10 `51A Duty of judge and jury 11 `In a civil trial-- 12 (a) it is the jury's duty to answer any question of fact that is 13 left to the jury by the presiding judge; and 14 (b) it is the presiding judge's duty to instruct the jury about 15 the law applicable to the proceeding, with the 16 observations on the evidence the judge considers 17 appropriate to make.'. 18 151 Insertion of new s 65A 19 Part 8, before section 66-- 20 insert-- 21 `65A Civil trial without a jury 22 `A court may order a civil trial without a jury if the trial-- 23 (a) requires a prolonged examination of records; or 24 (b) involves any technical, scientific or other issue that can 25 not be conveniently considered and resolved by a jury.'. 26 Page 83

 


 

Civil Proceedings Bill 2011 Part 22 Amendment of Justices Act 1886 [s 152] Part 22 Amendment of Justices Act 1 1886 2 152 Act amended 3 This part amends the Justices Act 1886. 4 153 Amendment of s 22 (Continuance of Magistrates Courts) 5 Section 22(2)-- 6 omit, insert-- 7 `(2) Each Magistrates Court is to have and use a seal with the 8 words `Magistrates Court of Queensland'. 9 `(3) Each Magistrates Court may have other seals required for the 10 business and administration of the court.'. 11 154 Amendment of s 126 (Transmission of depositions) 12 (1) Section 126(1)(a)-- 13 omit, insert-- 14 `(a) if the committal is to a court to be held within the 15 Northern Region or Far Northern Region--to a crown 16 prosecutor stationed in that region; or'. 17 (2) Section 126(2)-- 18 omit, insert-- 19 `(2) In this section-- 20 Far Northern Region means the Far Northern Region of the 21 Supreme Court. 22 Northern Region means the Northern Region of the Supreme 23 Court. 24 Editor's note-- 25 The Far Northern Region and the Northern Region are declared under 26 the Supreme Court of Queensland Act 1991.'. 27 Page 84

 


 

Civil Proceedings Bill 2011 Part 23 Amendment of Land Court Act 2000 [s 155] 155 Amendment of s 222 (Appeal to a single judge) 1 (1) Section 222(3), after `notice of appeal'-- 2 omit, insert-- 3 `in the District Court registry.'. 4 (2) Section 222(9)-- 5 omit, insert-- 6 `(9) If the appellant is in custody, the notice of appeal must be filed 7 in the District Court district where the appellant is in 8 custody.'. 9 Part 23 Amendment of Land Court Act 10 2000 11 156 Act amended 12 This part amends the Land Court Act 2000. 13 157 Replacement of s 37 (ADR process applies to 14 proceedings started under this part) 15 Section 37-- 16 omit, insert-- 17 `37 ADR process applies to proceedings started under 18 this part 19 `(1) The Civil Proceedings Act 2011, part 6 (the ADR provisions) 20 applies to proceedings started under this Act. 21 `(2) However, to the extent the cost provisions of the ADR 22 provisions do not provide for a matter, section 34 applies. 23 `(3) In applying the ADR provisions to a proceeding under this 24 Act-- 25 Page 85

 


 

Civil Proceedings Bill 2011 Part 24 Amendment of Law Reform Act 1995 [s 158] (a) a reference to a court is taken to be a reference to the 1 Land Court; and 2 (b) definitions and other interpretative provisions of the 3 Civil Proceedings Act 2011 relevant to the ADR 4 provisions apply.'. 5 158 Amendment of s 62 (Nomination of Supreme Court judge 6 to be member of Land Appeal Court) 7 (1) Section 62(2)(a) to (c)-- 8 omit, insert-- 9 `(a) for the Central Region of the Supreme Court--the 10 Central Judge, within the meaning of the Supreme Court 11 of Queensland Act 1991; and 12 (b) for the Northern Region of the Supreme Court--the 13 Northern Judge, within the meaning of the Supreme 14 Court of Queensland Act 1991; and 15 (c) for the Far Northern Region of the Supreme Court--the 16 Far Northern Judge, within the meaning of the Supreme 17 Court of Queensland Act 1991. 18 Note-- 19 See the Supreme Court of Queensland Act 1991, part 4, division 3.'. 20 (2) Section 62(3), `district'-- 21 omit, insert-- 22 `region'. 23 Part 24 Amendment of Law Reform Act 24 1995 25 159 Act amended 26 This part amends the Law Reform Act 1995. 27 Page 86

 


 

Civil Proceedings Bill 2011 Part 24 Amendment of Law Reform Act 1995 [s 160] 160 Amendment of s 5 (Definitions for pt 3) 1 Section 5, definition dependant, `Supreme Court Act 1995, 2 section 17'-- 3 omit, insert-- 4 `Civil Proceedings Act 2011, part 10'. 5 161 Amendment of s 6 (Proceedings against, and 6 contribution between, joint and several tortfeasors) 7 Section 6(b), `spouse, parent, or child'-- 8 omit, insert-- 9 `dependants'. 10 162 Amendment of s 8 (Additional definitions for div 2) 11 Section 8, definitions child, parent and spouse-- 12 omit. 13 163 Amendment of s 10 (Apportionment of liability in case of 14 contributory negligence) 15 (1) Section 10(5), `Supreme Court Act 1995, section 17 shall'-- 16 omit, insert-- 17 `Civil Proceedings Act 2011, part 10 must'. 18 (2) Section 10(5)-- 19 insert-- 20 `Editor's note-- 21 Civil Proceedings Act 2011, part 10 (Wrongful death proceedings)'. 22 Page 87

 


 

Civil Proceedings Bill 2011 Part 25 Amendment of Magistrates Act 1991 [s 164] Part 25 Amendment of Magistrates Act 1 1991 2 164 Act amended 3 This part amends the Magistrates Act 1991. 4 165 Insertion of new s 49A 5 After section 49-- 6 insert-- 7 `49A Application if original magistrate unable to continue 8 `(1) This section applies if-- 9 (a) a magistrate (the original magistrate) starts the hearing 10 of a civil or criminal proceeding (including an appeal); 11 and 12 (b) before the proceeding has been determined, the original 13 magistrate dies or resigns as a magistrate, or is certified 14 as incapable of sitting. 15 `(2) For subsection (1), a magistrate is certified as incapable of 16 sitting if the Chief Magistrate or the Deputy Chief Magistrate 17 has issued a certificate (an incapacity certificate) stating the 18 magistrate is incapable of sitting, whether temporarily or 19 otherwise. 20 `(3) A party to the proceeding may apply to the court for directions 21 as to the determination of the proceeding. 22 `(4) On its own initiative or on an application under this section, 23 the court may-- 24 (a) if there is an incapacity certificate stating the original 25 magistrate is temporarily incapable of sitting-- 26 (i) adjourn the proceeding to enable the original 27 magistrate to complete the hearing and 28 determination of the proceeding; or 29 Page 88

 


 

Civil Proceedings Bill 2011 Part 26 Amendment of Magistrates Courts Act 1921 [s 166] (ii) order that the proceeding be heard and determined 1 afresh; or 2 (b) in any other case-- 3 (i) order that the proceeding be heard and determined 4 afresh; or 5 (ii) make any other order it considers appropriate. 6 `(5) If the court orders that a proceeding be heard and determined 7 afresh, the court may make an order it considers appropriate 8 to facilitate the hearing and determination. 9 `(6) Without limiting the orders that may be made under 10 subsection (5), the court may make an order that any order, or 11 ruling or finding made by the original magistrate, be set aside. 12 `(7) The court hearing and determining a proceeding afresh 13 because of an order under this section may make the order it 14 considers appropriate about the costs of the first hearing.'. 15 Part 26 Amendment of Magistrates 16 Courts Act 1921 17 166 Act amended 18 This part amends the Magistrates Courts Act 1921. 19 167 Amendment of s 2 (Definitions) 20 (1) Section 2, definitions ADR convenor, ADR costs, ADR 21 dispute, ADR process, case appraisal, case appraiser, dispute, 22 mediation, mediator, referring court of a mediation or case 23 appraisal, and referring order-- 24 omit. 25 (2) Section 2-- 26 insert-- 27 Page 89

 


 

Civil Proceedings Bill 2011 Part 26 Amendment of Magistrates Courts Act 1921 [s 168] `dispute, for part 5A, means a dispute that is the subject of an 1 employment claim.'. 2 168 Insertion of new s 3B 3 Part 1, after section 3A-- 4 insert-- 5 `3B Delegation by registrar 6 `(1) A registrar of a Magistrates Court may delegate the registrar's 7 functions to an appropriately qualified person who is a public 8 service employee in a Magistrates Court registry. 9 `(2) In this section-- 10 appropriately qualified, for a public service employee to 11 whom a function may be delegated, includes having the 12 qualifications, experience or standing appropriate for the 13 function. 14 Example of standing-- 15 a person's classification level in the public service 16 functions includes powers.'. 17 169 Omission of s 5A (Proceeding started in wrong court) 18 Section 5A-- 19 omit. 20 170 Insertion of new ss 14A and 14B 21 After section 14-- 22 insert-- 23 `14A Business of Magistrates Court 24 `(1) The business of a Magistrates Court-- 25 (a) is taken to be conducted in court wherever it is 26 conducted; and 27 Page 90

 


 

Civil Proceedings Bill 2011 Part 26 Amendment of Magistrates Courts Act 1921 [s 171] (b) is to be conducted in open court. 1 `(2) However, subject to any Act, a Magistrates Court may, if the 2 public interest or the interests of justice require, by order limit 3 the extent to which the business of the court is open to the 4 public. 5 `14B Process returnable in registry where issued but 6 effective throughout State 7 `(1) A process issued out of the registry of any Magistrates Court 8 is returnable in that registry. 9 `(2) However, each process has effect, and may be enforced, at any 10 place within the State.'. 11 171 Amendment and relocation of s 17 (Officers of 12 Magistrates Court) 13 (1) Section 17, heading-- 14 omit, insert-- 15 `17 Appointment of bailiffs and bailiff's assistants'. 16 (2) Section 17-- 17 insert-- 18 `(5) A registrar of a Magistrates Court may give directions to a 19 bailiff or bailiff's assistant appointed under this section about 20 the discharge of the functions of the bailiff.'. 21 (3) Section 17-- 22 relocate to part 1 as section 3C. 23 172 Replacement of s 18 (Appearance to be in person or by 24 lawyer, or other person allowed by the court) 25 Section 18-- 26 omit, insert-- 27 Page 91

 


 

Civil Proceedings Bill 2011 Part 26 Amendment of Magistrates Courts Act 1921 [s 173] `18 Court appearance 1 `(1) In a proceeding, a party may appear in person or by-- 2 (a) a lawyer; or 3 (b) with the leave of the court, another person. 4 `(2) In this section-- 5 party includes a person served with notice of or attending a 6 proceeding although not named in the record.'. 7 173 Omission of pt 5 (ADR processes) 8 Part 5-- 9 omit. 10 174 Insertion of new s 57B 11 After section 57A-- 12 insert-- 13 `57B Finance 14 `The Magistrates Courts are part of the department for the 15 purposes of the Financial Accountability Act 2009.'. 16 175 Insertion of new s 61 17 After section 60-- 18 insert-- 19 `61 Outdated references 20 `In an Act or document, in the context of a Magistrates Court 21 and if otherwise appropriate, a reference to a thing mentioned 22 in column 1 of the following table is taken to be a reference to 23 the corresponding thing in column 2 of the table-- 24 Page 92

 


 

Civil Proceedings Bill 2011 Part 27 Amendment of Succession Act 1981 [s 176] Table 1 column 1 column 2 plaint or plaint and summons claim chambers court action proceeding Magistrates Courts Rules 1960 Uniform Civil Procedure Rules 1999 taxation assessment of costs party and party costs costs on the standard basis solicitor and client costs costs on the indemnity basis'. Part 27 Amendment of Succession Act 2 1981 3 176 Act amended 4 This part amends the Succession Act 1981. 5 177 Amendment of s 66 (Survival of actions) 6 Section 66(4), `provisions of the Supreme Court Act 1995, 7 part 4'-- 8 omit, insert-- 9 `Civil Proceedings Act 2011, part 10'. 10 Page 93

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 178] Part 28 Amendment of Supreme Court 1 of Queensland Act 1991 2 178 Act amended 3 This part amends the Supreme Court of Queensland Act 1991. 4 179 Replacement of ss 2A-6 5 Sections 2A to 6-- 6 omit, insert-- 7 `3 Act binds all persons 8 `This Act binds all persons, including the State.'. 9 180 Replacement of pt 2 (The court) 10 Part 2-- 11 omit, insert-- 12 `Part 2 The court 13 `Division 1 Composition and jurisdiction 14 `4 Composition of the court 15 `The court consists of a Chief Justice, a President of the Court 16 of Appeal, other judges of appeal, a Senior Judge 17 Administrator, and the other judges appointed by the 18 Governor in Council. 19 `5 Divisions of the court 20 `(1) The court is divided into-- 21 (a) the office of the Chief Justice; and 22 Page 94

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 180] (b) 2 divisions, namely, the Court of Appeal and the Trial 1 Division. 2 `(2) The Chief Justice may sit as, and exercise the powers and 3 perform the functions of, a judge in either division of the 4 court. 5 `6 Acting judges 6 `(1) If a judge is or will be on leave, or otherwise absent, or is or 7 will be, for any reason, unable to perform the functions of the 8 office, the Governor in Council, after consultation between 9 the Minister and the Chief Justice, may, by commission, 10 appoint a person who is qualified to be appointed as a judge to 11 act as a judge for the period (not longer than 6 months) stated 12 in the commission. 13 `(2) If the Chief Justice certifies that it is desirable that 1 or more 14 persons be appointed to act as a judge to assist in ensuring the 15 orderly and expeditious exercise of the jurisdiction and 16 powers of the court in the Trial Division, the Governor in 17 Council may, by commission, appoint 1 or more persons, who 18 is or are qualified to be appointed as a judge to act as a judge 19 for the period (not longer than 6 months) stated in the 20 commission or commissions. 21 `(3) The Governor in Council may, by commission, appoint either 22 of the following persons to act as a judge for up to 1 year-- 23 (a) a person who is, or has been, a judge of the Supreme 24 Court of another State or Territory; 25 (b) a person who is, or has been, a judge of the Federal 26 Court of Australia. 27 `(4) The Governor in Council may decide the remuneration to be 28 paid and provided in relation to a person who acts as a judge 29 (not being less than the remuneration paid and provided to a 30 judge). 31 `(5) The fact that a person who holds a commission to act as a 32 judge sits and otherwise acts as a judge is sufficient evidence 33 of the person's authority to do so. 34 Page 95

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 180] `(6) A person who has acted as a judge may attend sittings of the 1 court for the purpose of giving judgment in, or otherwise 2 completing, a proceeding that was heard by the person while 3 the person was acting as a judge, despite the fact that the 4 person is no longer acting as a judge. 5 `7 Jurisdiction not affected by vacancies 6 `The jurisdiction of the court, or of a division of the court, is 7 not affected by a vacancy in any office in the court. 8 `8 Business of the court 9 `(1) The business of the court-- 10 (a) is taken to be conducted in court wherever it is 11 conducted; and 12 (b) is to be conducted in open court. 13 `(2) However, subject to any Act, the court may, if the public 14 interest or the interests of justice require, by order limit the 15 extent to which the business of the court is open to the public. 16 `9 Court seal 17 `(1) The court is to have and use a seal with the words `Supreme 18 Court of Queensland'. 19 `(2) The court may have other seals required for the business and 20 administration of the court. 21 `10 Jurisdiction of the court not impaired etc. 22 `Except as provided in this Act, this Act does not take away, 23 lessen or impair any jurisdiction or power that was, 24 immediately before the commencement of this section, vested 25 in or capable of being exercised by the court or 1 or more 26 judges. 27 Page 96

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 180] `11 Effect of repeal of Supreme Court Act 1995 1 `(1) The repeal of the Supreme Court Act 1995 (the 1995 Act) does 2 not affect the jurisdiction of the Supreme Court that may have 3 been derived from the 1995 Act or any of the Acts referred to 4 in the 1995 Act and the Supreme Court retains all the 5 jurisdiction and power that may have been derived from the 6 1995 Act or any of the Acts referred to in the 1995 Act. 7 `(2) The repeal of the 1995 Act does not affect anything done or 8 suffered under the provisions of the 1995 Act before the 9 repeal. 10 `(3) The repeal of the 1995 Act does not affect the validity or 11 consequences of anything done or suffered, or any right, title, 12 obligation or liability already acquired, accrued or any remedy 13 or proceeding in relation to the thing, right, title, obligation or 14 liability. 15 `(4) The repeal of the 1995 Act does not affect any principle or 16 rule of law or equity or revive jurisdiction. 17 `(5) This section does not limit the operation of the Acts 18 Interpretation Act 1954, section 20. 19 `Division 2 Office of Chief Justice 20 `12 Appointment of Chief Justice 21 `(1) The Governor in Council may, by commission, appoint a 22 judge to be Chief Justice. 23 Note-- 24 See the Constitution of Queensland 2001, section 59 (Appointment of 25 judges) for the oath or affirmation requirement. 26 `(2) A judge may be appointed as Chief Justice either at the time 27 of the person's appointment as a judge or at any time 28 afterwards. 29 Page 97

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 180] `13 Chief Justice continues in office while judge 1 `(1) The Chief Justice holds office as Chief Justice while the 2 person holds office as a judge. 3 `(2) The Chief Justice may resign office as Chief Justice without 4 resigning office as a judge. 5 `14 Title of Chief Justice 6 `The Chief Justice is called the Chief Justice of Queensland. 7 `15 Administrative responsibility of Chief Justice 8 `(1) Without limiting the responsibilities, functions or powers of 9 the Chief Justice, the Chief Justice, subject to this Act, is 10 responsible for the administration of the Supreme Court and 11 its divisions and the orderly and expeditious exercise of the 12 court's jurisdiction and power. 13 `(2) Subject to this Act, the Chief Justice has power to do all 14 things necessary or convenient to be done to perform 15 responsibilities under subsection (1). 16 `16 Sittings 17 `The Chief Justice is to decide-- 18 (a) when and where the Supreme Court is to sit; and 19 (b) the way notice of when and where the Supreme Court is 20 to sit may be given. 21 `17 Practice directions 22 `(1) The Chief Justice may make practice directions for the 23 Supreme Court. 24 `(2) Subsection (1) does not affect any inherent or other power to 25 make practice directions. 26 `(3) To remove any doubt, it is declared that a practice direction is 27 not subordinate legislation. 28 Page 98

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 180] `18 Supreme Court precincts 1 `(1) Subject to this Act, the Chief Justice has power to do all things 2 necessary or convenient to be done for the control and 3 management of the Supreme Court precincts, including power 4 to obtain, grant, prohibit or limit access to and from the 5 precincts or part of the precincts. 6 `(2) For subsection (1), a reference to the Supreme Court precincts 7 includes a reference to court precincts part of which are 8 occupied by the Supreme Court. 9 `19 Annual report 10 `(1) As soon as practicable after the end of each financial year, but 11 within 4 months after the end of the financial year, the Chief 12 Justice must prepare and give to the Minister a written report 13 about the operation of the Supreme Court during the year. 14 `(2) The Minister must table a copy of the report in the Legislative 15 Assembly within 14 sitting days after receiving the report. 16 `Division 3 Provisions relating to judges 17 generally 18 `20 Power to act throughout State 19 `A judge has power to act in any part of the State. 20 `21 Retirement of judges 21 `(1) A judge must retire on reaching 70 years of age. 22 `(2) Despite subsection (1), a judge who, before retiring, whether 23 or not because of subsection (1), starts the hearing of a 24 proceeding remains a judge for the purposes of finishing the 25 proceeding. 26 Page 99

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 180] `22 Accepting and holding other public offices 1 `(1) Subject to this section, a judge may accept and hold another 2 public office. 3 `(2) A judge who accepts another public office-- 4 (a) must immediately notify the Attorney-General in 5 writing; and 6 (b) must immediately resign the other public office if the 7 Governor in Council decides, after consultation between 8 the Attorney-General and the Chief Justice, that the 9 holding of that office, or the conditions on which it is 10 held, would be inconsistent with the proper discharge of 11 the office of a judge. 12 `(3) A judge may receive remuneration in relation to the 13 acceptance or holding of another public office only with the 14 approval of the Governor in Council. 15 `(4) In this section-- 16 public office includes-- 17 (a) an office or appointment granted or made by the 18 Government of the Commonwealth, another State or a 19 Territory; and 20 (b) an office or appointment in or in relation to a university 21 or other educational institution, a hospital or a charitable 22 institution. 23 `23 Judicial office subject to Constitution of Queensland 24 2001 25 `A provision of this Act that provides for a judge or judge of 26 appeal to hold another judicial office while the person holds 27 office as a judge or judge of appeal is subject to the 28 Constitution of Queensland 2001, section 61. 29 Editor's note-- 30 Constitution of Queensland 2001, section 61 (Removal from office for 31 misbehaviour or incapacity) 32 Page 100

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 180] `24 Seniority 1 `(1) The Chief Justice is senior to all other judges of the court. 2 `(2) The President of the Court of Appeal is senior to all other 3 judges of the court apart from the Chief Justice. 4 `(3) Judges of appeal have seniority after the President of the 5 Court of Appeal, and have seniority in relation to each other 6 according to the dates of their commissions as judges of 7 appeal. 8 `(4) If the commissions of 2 or more judges of appeal have the 9 same date, the judges of appeal have seniority in relation to 10 each other according to the seniority assigned by their 11 commissions or, in the absence of such an assignment, 12 according to the order of their being sworn in. 13 `(5) The Senior Judge Administrator has seniority after the judges 14 of appeal. 15 `(6) The remaining judges have seniority in relation to each other 16 according to the dates of their commissions. 17 `(7) If the commissions of 2 or more judges have the same date, 18 the judges have seniority in relation to each other according to 19 the seniority assigned by their commissions or, in the absence 20 of such an assignment, according to the order of their being 21 sworn in. 22 `(8) In subsections (6) and (7), a reference to a judge includes a 23 judge who has ceased to be the Senior Judge Administrator. 24 `25 Temporary judicial office holders 25 `(1) When-- 26 (a) the office of Chief Justice, President of the Court of 27 Appeal or Senior Judge Administrator is vacant; or 28 (b) the Chief Justice, the President of the Court of Appeal or 29 the Senior Judge Administrator is, for any reason, 30 unable to discharge the person's office; 31 the next most senior judge, who is willing, is to act in the 32 office. 33 Page 101

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 180] `(2) When the Chief Justice, the President of the Court of Appeal 1 or the Senior Judge Administrator is on leave or otherwise 2 absent or is, for any other reason, unable to perform all of the 3 ordinary functions of the person's office, the next most senior 4 judge, who is willing, is to perform the functions of the office 5 that the person is unable to perform. 6 `(3) While a judge is performing functions of a more senior 7 judicial office, then, to the extent necessary-- 8 (a) the judge has all the powers and functions of the office; 9 and 10 (b) this Act and other Acts apply to the judge as if the judge 11 were the holder of the office. 12 Note-- 13 The same applies if a judge is acting in a more senior judicial 14 office--Acts Interpretation Act 1954, section 24B(8). 15 `(4) The fact that a judge acts in, or performs functions of, a more 16 senior judicial office is sufficient evidence of the judge's 17 authority to do so. 18 `(5) Anything done by a judge in purporting to act in, or perform 19 functions of, a more senior judicial office is not invalid 20 merely because the occasion for the judge to act in, or perform 21 functions of, the office had not arisen or had ceased. 22 `26 Entitlements of temporary judicial office holders 23 `(1) Subject to subsection (2), a judge who acts in, or performs 24 functions of, a more senior judicial office under section 25 or 25 39 is not entitled to receive additional remuneration for doing 26 so. 27 `(2) The Governor in Council may decide that a judge who acts in, 28 or performs functions of, a more senior judicial office under 29 section 25 or 39 is to receive specific additional remuneration 30 (not being more than the remuneration of the office 31 concerned) for doing so. 32 Page 102

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 181] `27 Protection for administrative acts 1 `A judge has, in the performance or exercise of an 2 administrative function or power conferred on the judge under 3 an Act, the same protection and immunity as a judge has in a 4 judicial proceeding in the court.'. 5 181 Amendment of s 28 (Composition) 6 Section 28(b), `not less than 3, nor'-- 7 omit, insert-- 8 `at least 3, but no'. 9 182 Amendment of s 31 (Constitution of court if 1 judge of 10 appeal unable to continue) 11 Section 31(1A) `sitting.'-- 12 omit, insert-- 13 `sitting whether temporarily or otherwise.'. 14 183 Amendment of s 32 (Arrangement of business of Court of 15 Appeal) 16 Section 32(1), `section 13A'-- 17 omit, insert-- 18 `section 15'. 19 184 Amendment of s 36 (Appointment of President) 20 (1) Section 36(2), `to'-- 21 omit, insert-- 22 `as'. 23 (2) Section 36(3), `to be the'-- 24 omit, insert-- 25 `as the'. 26 Page 103

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 185] 185 Amendment of s 42 (Reserved judgements) 1 (1) Section 42(1), from `to state' to `obtained'-- 2 omit, insert-- 3 `when the judgment is pronounced'. 4 (2) Section 42(2), `delivered'-- 5 omit, insert-- 6 `pronounced'. 7 (3) Section 42(4), `delivering'-- 8 omit, insert-- 9 `pronouncing'. 10 186 Omission of ss 44 and 45 11 Sections 44 and 45-- 12 omit. 13 187 Amendment of s 56 (Single judge to constitute the court) 14 (1) Section 56(3), `, including the court as constituted by a 15 master,'-- 16 omit. 17 (2) Section 56(4), `master,'-- 18 omit. 19 188 Insertion of new s 56A 20 Part 4, division 1-- 21 insert-- 22 `56A Application if original judge unable to continue 23 `(1) This section applies if-- 24 (a) a judge (the original judge) starts the hearing of a civil 25 or criminal proceeding; and 26 Page 104

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 188] (b) before the proceeding has been determined, the original 1 judge dies or resigns as a judge, or is certified as 2 incapable of sitting. 3 Note-- 4 For the Court of Appeal, see section 31 (Constitution of court if 1 judge 5 of appeal unable to continue). 6 `(2) For subsection (1), a judge is certified as incapable of sitting if 7 the Chief Justice or Senior Judge Administrator has issued a 8 certificate (an incapacity certificate) stating the judge is 9 incapable of sitting, whether temporarily or otherwise. 10 `(3) A party to the proceeding may apply to the court for directions 11 as to the determination of the proceeding. 12 `(4) On its own initiative or on an application under this section, 13 the court may-- 14 (a) if there is an incapacity certificate stating the original 15 judge is temporarily incapable of sitting-- 16 (i) adjourn the proceeding to enable the original judge 17 to complete the hearing and determination of the 18 proceeding; or 19 (ii) order that the proceeding be heard and determined 20 afresh; or 21 (b) in any other case-- 22 (i) order that the proceeding be heard and determined 23 afresh; or 24 (ii) make any other order it considers appropriate. 25 `(5) If the court orders that a proceeding be heard and determined 26 afresh, the court may make an order it considers appropriate 27 to facilitate the hearing and determination. 28 `(6) Without limiting the orders that may be made under 29 subsection (5), the court may make an order that any order, or 30 ruling or finding made by the original judge, be set aside. 31 `(7) The court hearing and determining a proceeding afresh 32 because of an order under this section may make the order it 33 considers appropriate about the costs of the first hearing.'. 34 Page 105

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 189] 189 Amendment of s 60 (Arrangement of business of Trial 1 Division) 2 Section 60(1), `section 13A'-- 3 omit, insert-- 4 `section 15'. 5 190 Insertion of new pt 4, divs 3 and 4 6 After section 61-- 7 insert-- 8 `Division 3 Regions and districts 9 `61A Regions 10 `(1) There are to be 4 regions of the court. 11 `(2) The regions are to be called the Southern Region, the Central 12 Region, the Northern Region and the Far Northern Region. 13 `(3) The Southern Region is the area of the State other than the 14 Central Region, Northern Region or Far Northern Region. 15 `(4) The Central Region is the area described in schedule 1A. 16 `(5) The Northern Region is the area described in schedule 1B 17 other than the Far Northern Region. 18 `(6) The Far Northern Region is the area of the State that is the 19 Supreme Court district containing Cairns. 20 `61B Central Region 21 `(1) One of the judges of the court must be called the Central 22 Judge. 23 `(2) The Governor in Council may, by commission, appoint a 24 judge of the Trial Division to be the Central Judge. 25 Page 106

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 190] `(3) A judge may be appointed as the Central Judge when 1 appointed as a judge or at any time afterwards. 2 `(4) The Central Judge must reside in the Central Region. 3 `(5) Sittings of the Trial Division must be held within the Central 4 Region. 5 `(6) Subject to sections 15 and 60, the Central Judge is responsible 6 for the orderly and expeditious exercise within the Central 7 Region of the jurisdiction of the court in the Trial Division. 8 Editor's note-- 9 sections 15 (Administrative responsibility of Chief Justice) and 60 10 (Arrangement of business of Trial Division) 11 `(7) To the extent necessary or convenient for the exercise of the 12 court's jurisdiction in the Central Region, a reference to 13 Brisbane in any Act relating to the court, including a reference 14 to a thing being done at Brisbane, is taken, if otherwise 15 appropriate, to be a reference to Rockhampton. 16 `61C Northern Region 17 `(1) One of the judges of the court must be called the Northern 18 Judge. 19 `(2) The Governor in Council may, by commission, appoint a 20 judge of the Trial Division to be the Northern Judge. 21 `(3) A judge may be appointed as the Northern Judge when 22 appointed as a judge or at any time afterwards. 23 `(4) The Northern Judge must reside in the Northern Region. 24 `(5) Sittings of the Trial Division must be held within the Northern 25 Region. 26 `(6) Subject to sections 15 and 60, the Northern Judge is 27 responsible for the orderly and expeditious exercise within the 28 Northern Region of the jurisdiction of the court in the Trial 29 Division. 30 `(7) To the extent necessary or convenient for the exercise of the 31 court's jurisdiction in the Northern Region, a reference to 32 Page 107

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 190] Brisbane in any Act relating to the court, including a reference 1 to a thing being done at Brisbane, is taken, if otherwise 2 appropriate, to be a reference to Townsville. 3 `61D Far Northern Region 4 `(1) One of the judges of the court must be called the Far Northern 5 Judge. 6 `(2) The Governor in Council may, by commission, appoint a 7 judge of the Trial Division to be the Far Northern Judge. 8 `(3) A judge of the Trial Division may be appointed as the Far 9 Northern Judge when appointed as a judge or at any time 10 afterwards. 11 `(4) The Far Northern Judge must reside in the Far Northern 12 Region. 13 `(5) Sittings of the Trial Division must be held within the Far 14 Northern Region. 15 `(6) Subject to sections 15 and 60, the Far Northern Judge is 16 responsible for the orderly and expeditious exercise within the 17 Far Northern Region of the jurisdiction of the court in the 18 Trial Division. 19 `(7) To the extent necessary or convenient for the exercise of the 20 court's jurisdiction in the Far Northern Region, a reference to 21 Brisbane in any Act relating to the court, including a reference 22 to a thing being done at Brisbane, is taken, if otherwise 23 appropriate, to be a reference to Cairns. 24 `61E Districts 25 `(1) There are to be districts of the court. 26 `(2) Each district is to consist of the Magistrates Court districts 27 prescribed under a regulation. 28 `(3) Each district is to take its name from the place where the court 29 ordinarily sits in that district. 30 Page 108

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 191] `Division 4 Commercial and other lists 1 `62 Court may maintain lists 2 `In exercising its power to control its own process, the court 3 may maintain lists of particular proceedings by reference to 4 subject matter, including a commercial list. 5 `62A No appeal from entry on a list 6 `There is no appeal from an order entering a proceeding on a 7 list of particular proceedings. 8 `62B Commercial list proceeding 9 `(1) This section applies to a proceeding on the commercial list. 10 `(2) If the parties to the proceeding agree, the judgment of the 11 court is final and not subject to appeal. 12 `(3) The court may order that the proceeding be tried without a 13 jury.'. 14 191 Amendment of s 69 (Appeal in proceedings in the court) 15 (1) Section 69(1)(b)(iii), `a District Court'-- 16 omit, insert-- 17 `the District Court'. 18 (2) Section 69(2), `any other Act'-- 19 omit, insert-- 20 `an Act'. 21 192 Insertion of new ss 69A and 69B 22 After section 69-- 23 insert-- 24 Page 109

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 193] `69A Leave required to appeal from consent order 1 `An appeal lies to the Court of Appeal from a judgment or 2 order of the court in the Trial Division given or made by 3 consent only by leave of the judge who gave the judgment or 4 made the order, or, if that judge is not available, another judge 5 of the court in the Trial Division. 6 `69B Leave required to appeal in relation to costs 7 `(1) An appeal only in relation to costs lies to the Court of Appeal 8 from a judgment or order of the court in the Trial Division 9 only by leave of the judge who gave the judgment or made the 10 order, or, if that judge is not available, another judge of the 11 court in the Trial Division. 12 `(2) However, if, after an appeal to the Court of Appeal is properly 13 started, the appeal becomes an appeal only in relation to the 14 costs of the original proceeding-- 15 (a) subsection (1) does not apply; and 16 (b) the appeal may be heard and determined only by leave 17 of the Court of Appeal.'. 18 193 Relocation of s 70 (Disqualification of judge of appeal) 19 Section 70-- 20 relocate as section 39A. 21 194 Replacement of pts 7 and 8 22 Parts 7 and 8-- 23 omit, insert-- 24 `Part 7 Registry 25 `70 Registry 26 `(1) There is to be a Supreme Court Registry. 27 Page 110

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 194] `(2) The Supreme Court Registry is to have regional offices (each 1 a regional registry) at Brisbane, Rockhampton, Townsville 2 and Cairns. 3 `(3) The Supreme Court Registry is to have a district office 4 (district registry) at each place from which a Supreme Court 5 district takes its name. 6 `71 Process returnable in office where issued but 7 effective throughout State 8 `(1) A process issued out of any office of the Supreme Court 9 Registry is returnable in that office. 10 `(2) However, each process has effect, and may be enforced, at any 11 place within the State. 12 `72 Control 13 `The Supreme Court Registry is under the control of the 14 principal registrar. 15 `73 Registration of Acts 16 `Acts of the Queensland Parliament may be registered in the 17 Brisbane Supreme Court Registry. 18 `Part 8 Court officers 19 `74 Principal registrar, other registrars and officers 20 `(1) The Governor in Council may appoint a principal registrar. 21 `(2) The chief executive may appoint registrars (other than the 22 principal registrar) and other officers the chief executive 23 considers appropriate. 24 Page 111

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 194] `(3) A person appointed under this section is employed under the 1 Public Service Act 2008. 2 `75 Delegation by registrar 3 `(1) A registrar may delegate the registrar's functions to an 4 appropriately qualified person who is a public service 5 employee in the Supreme Court Registry. 6 `(2) In this section-- 7 appropriately qualified, for a public service employee to 8 whom a function may be delegated, includes having the 9 qualifications, experience or standing appropriate for the 10 function. 11 Example of standing-- 12 a person's classification level in the public service 13 functions includes powers. 14 `76 Directions 15 `The principal registrar may give directions to the registrars 16 and other officers employed in any office of the Supreme 17 Court Registry. 18 `77 Registrar of Magistrates Court 19 `(1) The registrar of the Magistrates Court for the Magistrates 20 Court district in which the Supreme Court sits may perform 21 the functions and exercise the powers of a registrar, and a 22 deputy sheriff, of the Supreme Court for the Supreme Court 23 district constituted under section 61E that is or includes the 24 Magistrates Court district. 25 `(2) Subsection (1) applies whether or not a registrar or deputy 26 sheriff of the Supreme Court for the Supreme Court district 27 constituted under section 61E has been appointed. 28 Page 112

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 194] `78 Sheriff of Queensland, deputy sheriffs and bailiffs 1 `(1) The chief executive may appoint a Sheriff of Queensland. 2 `(2) The chief executive may also appoint deputy sheriffs and 3 bailiffs. 4 `(3) A person appointed under this section is employed under the 5 Public Service Act 2008. 6 `79 Powers of sheriff 7 `(1) The sheriff or a deputy sheriff has the powers given under an 8 Act and may exercise the powers throughout the State. 9 `(2) Any power given to the sheriff under an Act may be exercised 10 by a deputy sheriff. 11 `80 Power of bailiffs 12 `(1) A bailiff is an officer of the sheriff. 13 `(2) A bailiff is appointed for the State. 14 `(3) The sheriff, or a deputy sheriff, may delegate any of the 15 sheriff's functions, or deputy sheriff's functions, to a bailiff. 16 `(4) Subject to the terms of the delegation, a bailiff may perform a 17 function throughout the State. 18 `(5) In this section-- 19 functions includes powers. 20 perform, a function, includes exercise a power. 21 `81 Enforcement officer's protection from liability 22 `(1) A proceeding in relation to an enforcement officer acting in 23 that capacity must be started against `The Sheriff of 24 Queensland' and not against the enforcement officer. 25 `(2) If a money order is made against The Sheriff of Queensland in 26 a proceeding mentioned in subsection (1)-- 27 Page 113

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 195] (a) the money order debt must be paid by the Treasurer out 1 of the consolidated fund; and 2 (b) the State may recover the money order debt from the 3 relevant enforcement officer unless the liability resulting 4 in the money order was for an act done, or omission 5 made, honestly and without negligence when acting as 6 an enforcement officer. 7 `82 Associates 8 `(1) The Chief Justice may appoint a person nominated by a judge 9 as an associate to the judge. 10 `(2) An associate is appointed under this Act and not under the 11 Public Service Act 2008. 12 `(3) The Governor in Council is to decide the salary and 13 conditions of appointment for an associate appointed under 14 subsection (1).'. 15 195 Omission of pt 8B (Provision from Legal Practitioners Act 16 1995) 17 Part 8B-- 18 omit. 19 196 Amendment of pt 9 hdg (Rules of court and practice 20 directions for the Supreme Court, the District Court and 21 the Magistrates Courts) 22 Part 9, heading, `and practice directions'-- 23 omit. 24 197 Omission of s 117 (Definition for pt 9) 25 Section 117-- 26 omit. 27 Page 114

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 198] 198 Amendment of s 118 (Rule-making power) 1 (1) Section 118(1)(c)-- 2 omit. 3 (2) Section 118(1)(ba)-- 4 renumber as section 118(1)(c). 5 (3) Section 118(3), `or (1)(c)'-- 6 omit. 7 199 Insertion of new s 118AA 8 After section 118-- 9 insert-- 10 `118AA Admission guidelines 11 `(1) The admission rules may provide that the Chief Justice may 12 issue guidelines about a matter prescribed under the 13 admission rules. 14 `(2) A guideline-- 15 (a) is a statutory instrument but not subordinate legislation; 16 and 17 (b) has no effect unless the Minister notifies in the gazette 18 the issuing of the guideline. 19 `(3) The notice is subordinate legislation. 20 `(4) The registrar must ensure that a copy of any current guideline 21 is available, without charge, for public inspection-- 22 (a) at the regional registries at Brisbane, Rockhampton, 23 Townsville and Cairns; and 24 (b) on the court's internet website. 25 `(5) In this section-- 26 admission rules means rules of court made under this Act for 27 the admission of persons to the legal profession under the 28 Legal Profession Act 2007. 29 Page 115

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 200] court's internet website means the internet website 1 administered by the Supreme Court Library for the court and 2 other courts. 3 Editor's note-- 4 The website may be viewed at .'. 5 200 Amendment of s 118A (Rules committee may approve 6 forms) 7 Section 118A, after `this Act'-- 8 insert-- 9 `or the Civil Proceedings Act 2011'. 10 201 Amendment of s 118B (Court rules are exempt from RIS 11 requirements and automatic expiry) 12 (1) Section 118B(2) and (3)-- 13 omit. 14 (2) Section 118B(4)-- 15 renumber as section 118B(2). 16 202 Amendment of s 118C (Rules Committee) 17 (1) Section 118C(1)(f) and (g), `Stipendiary'-- 18 omit. 19 (2) Section 118C(2)(a)-- 20 omit. 21 (3) Section 118C(2)(b) and (c)-- 22 renumber as section 118C(2)(a) and (b). 23 203 Omission of ss 118D and 118E 24 Sections 118D and 118E-- 25 omit. 26 Page 116

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 204] 204 Replacement of ss 119-119D 1 Sections 119 to 119D-- 2 omit, insert-- 3 `119 Court appearance 4 `(1) In a proceeding, a party may appear in person or by-- 5 (a) a lawyer; or 6 (b) with the leave of the court, another person. 7 `(2) In this section-- 8 party includes a person served with notice of or attending a 9 proceeding although not named in the record. 10 `119A Finance 11 `The court is part of the department for the purposes of the 12 Financial Accountability Act 2009.'. 13 205 Amendment of s 120 (Regulation-making power) 14 Section 120(2)(d)-- 15 omit. 16 206 Replacement of pt 11 (Transitional provisions) 17 Part 11-- 18 omit, insert-- 19 `Part 11 Transitional provisions 20 `121 Outdated references 21 `In an Act or document, in the context of the Supreme Court 22 and if otherwise appropriate, a reference to a thing mentioned 23 in column 1 of the following table is taken to be a reference to 24 the corresponding thing in column 2 of the table-- 25 Page 117

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 206] Table 1 column 1 column 2 writ of summons claim notice of motion, motion, petition or originating application summons entry of appearance notice of intention to defend chambers court action, cause or matter proceeding rules of the Supreme Court or Rules of the Uniform Civil Procedure Supreme Court Rules 1999 Central District Central Region Northern District Northern Region Far Northern District Far Northern Region taxation assessment of costs party and party costs costs on the standard basis solicitor and client costs costs on the indemnity basis `121A Transitional--abolition of Circuit Courts 2 `(1) On the commencement of this section-- 3 (a) an order made by a Circuit Court continues to have 4 effect as an order of the Supreme Court; and 5 (b) anything done or existing in relation to a previous 6 Circuit Court continues, and is taken to be done or 7 existing in relation to the Supreme Court; and 8 (c) a process pending in a previous Circuit Court is to be 9 continued in the Supreme Court. 10 `(2) In an Act, or another document, if the context permits, a 11 reference to Circuit Courts or a Circuit Court is taken to be a 12 reference to the Supreme Court. 13 Page 118

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 207] `121B Transitional provision for Forensic Disability Act 2011 1 The amendment of the Criminal Practice Rules 1999 by the 2 Forensic Disability Act 2011 does not affect the power of the 3 Governor in Council to further amend the rules or to repeal 4 them. 5 `122 Renumbering of Act 6 `(1) On the commencement, the provisions of this Act are 7 amended by numbering and renumbering them in the same 8 way as a reprint may be numbered and renumbered under the 9 Reprints Act 1992, section 43. 10 `(2) Without limiting the Reprints Act 1992, section 43(4), each 11 reference in this Act, and each reference in legislation 12 mentioned in schedule 1C to a provision of this Act 13 renumbered under subsection (1), is amended, when the 14 renumbering happens, by omitting the reference to the 15 previous number and inserting the new number. 16 `(3) This section and schedule 1C expire on the day after the 17 commencement. 18 `(4) In this section-- 19 commencement means the commencement of the Civil 20 Proceedings Act 2011, section 206.'. 21 207 Amendment of sch 1 (Subject matter for rules) 22 (1) Schedule 1, item 3-- 23 insert-- 24 `(f) removal and transfer of proceedings.'. 25 (2) Schedule 1, item 8(b)(i)-- 26 omit, insert-- 27 `(i) freezing orders, search orders or injunctions; or'. 28 (3) Schedule 1, after item 8-- 29 insert-- 30 Page 119

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 207] `8A Set off 1 `How set offs are to be treated in proceedings and by the 2 court.'. 3 (4) Schedule 1, item 11(1)-- 4 insert-- 5 `(i) interpreters and translators.'. 6 (5) Schedule 1, item 12-- 7 omit, insert-- 8 `12 Registrars 9 `Jurisdiction of registrars.'. 10 (6) Schedule 1, after item 14-- 11 insert-- 12 `14A Assessment of accounts 13 `Assessment of accounts, including-- 14 (a) the appointment and removal of persons to assess 15 accounts; or 16 (b) powers of account assessors; or 17 (c) procedures; or 18 (d) review of assessments.'. 19 (7) Schedule 1, item 16-- 20 omit, insert-- 21 `16 Contempt of court 22 `Contempt of court and proceedings for failure to comply with 23 an order, other than an order for the payment of money.'. 24 (8) Schedule 1, item 20(b)(vi)-- 25 omit. 26 (9) Schedule 1, item 20(c)-- 27 omit, insert-- 28 Page 120

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 208] `(c) payment of a money order debt by instalments; 1 (d) powers of enforcement officers.'. 2 208 Insertion of new schs 1A-1C 3 After schedule 1-- 4 insert-- 5 `Schedule 1A Central Region 6 section 61A 7 Commencing on the east coast at the mouth of the Kolan 8 River, and bounded from there on the south by the northern 9 watershed of that river westerly to Dawes Range; by that 10 range and the range forming the northern and western 11 watersheds of the Rawbelle River and its tributaries westerly 12 and southerly to their junction with the southern watershed of 13 Ross and Cracow Creeks; by that watershed westerly to the 14 Dawson River; by that river downwards to Bigge's Range; by 15 that range westerly to Carnarvon Range; by that range 16 westerly to the Great Dividing Range; by that range westerly 17 to the Warrego Range; by that range westerly to the Cheviot 18 Range; by that range north-westerly and westerly to the 19 confluence of the Thomson and Barcoo Rivers; by a line due 20 west to the western boundary of the State; on the west by that 21 boundary north to the 24th parallel of south latitude; on the 22 north by that parallel easterly to its intersection with the east 23 boundary of Ingledoun no. 3 block; by part of the east 24 boundary of that block; by the northern boundaries of 25 Ingledoun no. 1 and Walla Munda; by parts of the west and 26 the north boundaries of Diamantina Lakes no. 3; by part of the 27 west and the south boundaries of Diamantina Lakes no. 2; by 28 the south boundary of Diamantina Plains; by the south and 29 part of the east boundaries of Mayne Downs no. 4 to the 30 24th parallel of latitude; again by that parallel easterly to the 31 range forming the eastern watershed of the Diamantina River 32 Page 121

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 208] and its tributaries; by that range northerly to the ranges 1 forming the southern watershed of the Flinders River and its 2 tributaries; by that range north-easterly to the 21st parallel of 3 latitude; by that parallel easterly to the Great Dividing Range; 4 by that range southerly to its junction with the southern 5 watershed of the Cape River; by that watershed easterly to the 6 confluence of the Belyando and Suttor Rivers; from there by 7 the Suttor River upwards to its head in the Leichhardt Range; 8 from there by that range and the northern watershed of Funnel 9 Creek and its tributaries easterly and southerly to a spur 10 forming the watershed separating the waters of Marion and 11 Rocky Dam Creeks; from there by that watershed 12 north-easterly to Cape Palmerston on the east coast of the 13 State; from there by a line eastward to the eastern boundary of 14 the State; from there on the east by that boundary southerly to 15 Sandy Cape; and again on the south by a line westerly to the 16 point of commencement; and including all adjacent islands 17 south of the latitude of Cape Palmerston and north of the 18 latitude of Sandy Cape. 19 `Schedule 1B Northern Region 20 section 61A 21 Commencing on the east coast at Cape Palmerston, and 22 bounded from there on the south by a line east to the eastern 23 boundary of the State; from there on the east, north-east, 24 north, and west by that boundary to the 24th parallel of south 25 latitude; on the south by that parallel easterly to its 26 intersection with the east boundary of Ingledoun no. 3 block; 27 by part of the east boundary of that block; by the northern 28 boundary of Ingledoun no. 1 and Walla Munda; by parts of the 29 west and north boundaries of Diamantina Lakes no. 3; by part 30 of the west and the south boundaries of Diamantina Lakes 31 no. 2; by the south boundary of Diamantina Plains; by the 32 Page 122

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 208] south and part of the east boundaries of Mayne Downs no. 4 to 1 the 24th parallel of latitude; again by that parallel easterly to 2 the range forming the eastern watershed of the Diamantina 3 River and its tributaries; by that range northerly to the range 4 forming the southern watershed of the Flinders River and its 5 tributaries; by that range north-easterly to the 21st parallel of 6 latitude; by that parallel easterly to the Great Dividing Range; 7 by that range southerly to its junction with the southern 8 watershed of the Cape River; by that watershed easterly to the 9 confluence of the Belyando and Suttor Rivers; by the Suttor 10 River upwards to its head in the Leichhardt Range; from there 11 by that range and the northern watershed of Funnel Creek and 12 its tributaries easterly and southerly to its junction with a spur 13 forming the watershed separating the waters of Marion and 14 Rocky Dam Creeks; and from there by that watershed 15 north-easterly to the point of commencement; and including 16 all adjacent islands north of the latitude of Cape Palmerston. 17 However, the Northern Region does not include any part of 18 the State comprised within the boundaries of the Far Northern 19 Region. 20 `Schedule 1C Renumbered cross-references 21 section 122 22 Bail Act 1980 23 1 Section 20(10), definition practical legal training 24 Page 123

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 208] Corporations (Ancillary Provisions) Act 2001 1 1 Section 11(2), definition corporation rules of court 2 2 Section 24(1) 3 Criminal Law (Rehabilitation of Offenders) Act 4 1986 5 1 Section 9A(1), table, column 1, item 20 6 Criminal Proceeds Confiscation Act 2002 7 1 Schedule 6, definition money order 8 Judicial Remuneration Act 2007 9 1 Schedule 2, definitions Chief Justice, judge of appeal and 10 President of the Court of Appeal 11 Legal Profession Act 2007 12 1 Section 29, definition admission rules 13 2 Section 714(2)(a) 14 Page 124

 


 

Civil Proceedings Bill 2011 Part 28 Amendment of Supreme Court of Queensland Act 1991 [s 209] 3 Schedule 2, definitions registrar and Uniform Civil Procedure 1 Rules 2 Terrorism (Preventative Detention) Act 2005 3 1 Section 73(7) and note 4 2 Section 74(1)(b) 5 3 Section 77(3)'. 6 209 Amendment of sch 2 (Dictionary) 7 (1) Schedule 2, definitions ADR convenor, ADR costs, ADR 8 dispute, ADR process, authorised auditor, case appraisal, 9 case appraiser, costs assessment, court, dispute, exempt 10 property, judicial registrar, mediation, mediator, non-money 11 order, partnership, referring order, registrar, this Act and trial 12 judge-- 13 omit. 14 (2) Schedule 2-- 15 insert-- 16 `registrar includes the principal registrar.'. 17 (3) Schedule 2, definition enforcement officer, `a sheriff, deputy 18 sheriff or bailiff of the court'-- 19 omit, insert-- 20 `the sheriff, a deputy sheriff or a bailiff of the court'. 21 (4) Schedule 2, definition money order, `an amount', first 22 mention-- 23 omit, insert-- 24 `money'. 25 Page 125

 


 

Civil Proceedings Bill 2011 Part 29 Repeal of Supreme Court Act 1995 [s 210] Part 29 Repeal of Supreme Court Act 1 1995 2 210 Repeal of Supreme Court Act 1995 3 The Supreme Court Act 1995 is repealed. 4 Part 30 Amendment of this Act 5 211 Act amended 6 This part amends this Act. 7 212 Amendment of long title 8 Long title, from `, to repeal'-- 9 omit. 10 213 Amendment of s 88 (Enforcement against property of a 11 business) 12 (1) Section 88(1)(a), `(whether or not the name or style is 13 registered under the Business Names Act 1962)'-- 14 omit, insert-- 15 `(whether or not the name is registered on the Business Names 16 Register or held under business names legislation)'. 17 (2) Section 88-- 18 insert-- 19 `(3) For subsection (1)(a), a name is held under business names 20 legislation only if it is held under-- 21 (a) the Business Names Registration Act 2011 (Cwlth), 22 section 54; or 23 Page 126

 


 

Civil Proceedings Bill 2011 Part 30 Amendment of this Act [s 214] (b) the Business Names Registration (Transitional and 1 Consequential Provisions) Act 2011 (Cwlth), schedule 2 1, item 5.'. 3 214 Amendment of s 89 (Variation of order in relation to a 4 business name) 5 (1) Section 89, `(whether or not the name or style is registered 6 under the Business Names Act 1962)'-- 7 omit, insert-- 8 `(whether or not the name is registered on the Business Names 9 Register or held under business names legislation).'. 10 (2) Section 89-- 11 insert-- 12 `(2) For subsection (1), a name is held under business names 13 legislation only if it is held under-- 14 (a) the Business Names Registration Act 2011 (Cwlth), 15 section 54; or 16 (b) the Business Names Registration (Transitional and 17 Consequential Provisions) Act 2011 (Cwlth), schedule 18 1, item 5.'. 19 215 Amendment of sch 1 (Dictionary) 20 Schedule 1-- 21 insert-- 22 `Business Names Register means the register established and 23 maintained under the Business Names Registration Act 2011 24 (Cwlth), section 22.'. 25 Page 127

 


 

Civil Proceedings Bill 2011 Part 31 Consequential amendments of other legislation [s 216] Part 31 Consequential amendments of 1 other legislation 2 216 Legislation amended 3 Schedule 1A amends the legislation it mentions. 4 Part 32 Other amendments 5 Division 1 Amendment of Associations 6 Incorporation Act 1981 7 217 Act amended 8 This division amends the Associations Incorporation Act 9 1981. 10 218 Amendment of s 64 (Tenure of members of management 11 committee) 12 Section 64(2)(d) and (e)-- 13 renumber as section 64(2)(c) and (d). 14 219 Amendment of s 91 (Declaration of applied Corporations 15 legislation) 16 Section 91(3)(f) and (i), `registrar'-- 17 omit, insert-- 18 `chief executive'. 19 220 Insertion of new pt 11A 20 After section 106-- 21 Page 128

 


 

Civil Proceedings Bill 2011 Part 32 Other amendments [s 220] insert-- 1 `Part 11A Voluntary transfer of 2 incorporation 3 `Division 1 Incorporated associations 4 `106A Application for authority to transfer incorporation 5 `An incorporated association may apply to the chief executive 6 for authority to transfer the association's incorporation to-- 7 (a) a company limited by guarantee under the Corporations 8 Act, part 5B.1 (CLG corporation); or 9 (b) an Aboriginal and Torres Strait Islander corporation 10 under the Corporations (Aboriginal and Torres Strait 11 Islander) Act 2006 (Cwlth), part 2-3 (CATSI Act 12 corporation). 13 Note-- 14 See the Corporations Act, section 601BC(8)(d) and the Corporations 15 (Aboriginal and Torres Strait Islander) Act 2006 (Cwlth), section 16 22-5(1)(h)(i). 17 `106B Requirements for application 18 `(1) The application must-- 19 (a) be in the approved form; and 20 (b) be signed by 3 members of the association's 21 management committee, 1 of whom must be the 22 president, authorised to make the application (the 23 authorised members); and 24 (c) be accompanied by the following-- 25 (i) either-- 26 (A) the association's certificate of incorporation 27 under this Act; or 28 Page 129

 


 

Civil Proceedings Bill 2011 Part 32 Other amendments [s 220] (B) if the certificate has been lost, stolen or 1 destroyed--a statutory declaration by a 2 person authorised by the association to make 3 the declaration for the association, stating it 4 has been lost, stolen or destroyed; 5 (ii) a copy of a special resolution of the association 6 stating-- 7 (A) that the application under this division is 8 approved; and 9 (B) that the authorised members have authority 10 to sign the application form; and 11 (C) the proposed name under which the 12 association is to be registered under the 13 Corporations Act or the Corporations 14 (Aboriginal and Torres Strait Islander) Act 15 2006 (Cwlth); 16 (iii) a statutory declaration by the association's 17 president that-- 18 (A) the matters stated in the application form are 19 true; and 20 (B) this Act and the association's rules have been 21 complied with in relation to the calling and 22 holding of the general meeting for the 23 special resolution and the passing of the 24 special resolution at the meeting; and 25 (C) any consent required under the association's 26 rules to be obtained before passing the 27 special resolution has been obtained. 28 `(2) If the application is withdrawn or the chief executive refuses 29 to grant the application, the chief executive must return the 30 association's certificate of incorporation to the association. 31 Page 130

 


 

Civil Proceedings Bill 2011 Part 32 Other amendments [s 220] `106C Further information or documents for application 1 `The chief executive may require the applicant to give the 2 chief executive, within a stated reasonable period of at least 28 3 days, any further information or documents the chief 4 executive reasonably requires to decide the application. 5 `106D Refusal to grant application 6 `The chief executive may refuse to grant the application if the 7 chief executive is not satisfied the applicant has complied 8 with-- 9 (a) section 106B; or 10 (b) a requirement under section 106C. 11 `106E Chief executive to give notice of authority to transfer 12 incorporation 13 `If the chief executive decides to authorise the transfer of 14 incorporation, the chief executive must give the applicant 15 written notice that the proposed transfer of the association's 16 incorporation is authorised. 17 `106F Effect of a transfer of incorporation authorised under 18 this division 19 `On the transfer of the incorporation of an incorporated 20 association, as authorised under this division-- 21 (a) the association stops being an incorporated association; 22 and 23 (b) the association's name is taken to be removed from the 24 register from the day of the transfer. 25 Note-- 26 For other effects of the transfer, including whether a new entity is 27 created and the effect on existing property, rights and obligations see the 28 Corporations Act, section 601BM and the Corporations (Aboriginal and 29 Torres Strait Islander) Act 2006 (Cwlth), section 42-3. 30 Page 131

 


 

Civil Proceedings Bill 2011 Part 32 Other amendments [s 220] `106G New body to give chief executive copy of new 1 certificate of registration 2 `(1) This section applies if an incorporated association becomes 3 registered as a CLG corporation, or CATSI Act corporation, 4 as authorised under this division. 5 `(2) The CLG corporation or CATSI Act corporation must within 6 28 days of the registration give a copy of its new certificate of 7 registration as a CLG corporation, or CATSI Act corporation, 8 to the chief executive. 9 Maximum penalty--10 penalty units. 10 `Division 2 RECI Act corporations 11 `106H Application for authority to transfer incorporation 12 `A RECI Act corporation may apply to the Minister for 13 authority to transfer the RECI Act corporation's incorporation 14 to-- 15 (a) a CLG corporation; or 16 (b) a CATSI Act corporation. 17 Note-- 18 See the Corporations Act, section 601BC(8)(d) and the Corporations 19 (Aboriginal and Torres Strait Islander) Act 2006 (Cwlth), section 20 22-5(1)(h)(i). 21 `106I Requirements for application 22 `(1) The application must-- 23 (a) be in the approved form; and 24 (b) be signed by a member of the governing body of the 25 RECI Act corporation authorised to make the 26 application (the authorised member); and 27 (c) be accompanied by the following-- 28 (i) either-- 29 Page 132

 


 

Civil Proceedings Bill 2011 Part 32 Other amendments [s 220] (A) the letters patent issued to the RECI Act 1 corporation under the repealed Religious 2 Educational and Charitable Institutions Act 3 1861; or 4 (B) if the letters patent have been lost, stolen or 5 destroyed--a statutory declaration by a 6 person authorised by the RECI Act 7 corporation to make the declaration for the 8 RECI Act corporation, stating they have 9 been lost, stolen or destroyed; 10 (ii) a copy of a special resolution of the RECI Act 11 corporation, in relation to which the required 12 notice has been given, stating-- 13 (A) that the application under this division is 14 approved; and 15 (B) that the authorised member has authority to 16 sign the application form; and 17 (C) the proposed name under which the RECI 18 Act corporation is to be registered under the 19 Corporations Act or the Corporations 20 (Aboriginal and Torres Strait Islander) Act 21 2006 (Cwlth); 22 (iii) a statutory declaration by the authorised member 23 that-- 24 (A) the matters stated in the application form are 25 true; and 26 (B) this Act and the RECI Act corporation's 27 constitution have been complied with in 28 relation to the calling and holding of the 29 general meeting for the special resolution 30 and the passing of the special resolution at 31 the meeting; and 32 (C) any consent required under the RECI Act 33 corporation's constitution to be obtained 34 before passing the special resolution has 35 been obtained. 36 Page 133

 


 

Civil Proceedings Bill 2011 Part 32 Other amendments [s 220] `(2) If the application is withdrawn or the Minister refuses to grant 1 the application, the Minister must return the letters patent to 2 the RECI Act corporation. 3 `(3) In this section-- 4 required notice means written notice of the proposed special 5 resolution, and of the time and place of the general meeting at 6 which it is proposed to move the resolution, given before the 7 general meeting to each member of the RECI Act corporation 8 who has a right to vote on the resolution. 9 special resolution, of the RECI Act corporation, means a 10 resolution passed at a general meeting of the RECI Act 11 corporation by the votes of 3/4 of its members who are present 12 and entitled to vote on the resolution. 13 `106J Further information or documents for application 14 `The Minister may require the applicant to give the Minister, 15 within a stated reasonable period of at least 28 days, any 16 further information or documents the Minister reasonably 17 requires to decide the application. 18 `106K Refusal to grant application 19 `(1) The Minister may refuse to grant the application if the 20 Minister is not satisfied the applicant has complied with-- 21 (a) section 106I; or 22 (b) a requirement under section 106J. 23 `(2) If the Minister decides to refuse to grant the application-- 24 (a) the Minister must give the RECI Act corporation a 25 QCAT information notice for the decision; and 26 (b) the RECI Act corporation may apply, as provided under 27 the QCAT Act, to QCAT for a review of the decision. 28 `(3) In this section-- 29 QCAT information notice means a written notice complying 30 with the QCAT Act, section 157(2). 31 Page 134

 


 

Civil Proceedings Bill 2011 Part 32 Other amendments [s 220] `106L Minister to give notice of authority to transfer 1 incorporation 2 `If the Minister decides to authorise the transfer of 3 incorporation, the Minister must give the applicant written 4 notice that the proposed transfer of the RECI Act 5 corporation's incorporation is authorised. 6 `106M Effect of a transfer of incorporation authorised under 7 this division 8 `On the transfer of the incorporation of a RECI Act 9 corporation, as authorised under this division-- 10 (a) the RECI Act corporation stops being incorporated as a 11 RECI Act corporation; and 12 (b) the letters patent issued to the RECI Act corporation 13 under the repealed Religious Educational and 14 Charitable Institutions Act 1861 are taken to be 15 cancelled from the day of the transfer. 16 Note-- 17 For other effects of the transfer, including whether a new entity is 18 created and the effect on existing property, rights and obligations see the 19 Corporations Act, section 601BM and the Corporations (Aboriginal and 20 Torres Strait Islander) Act 2006 (Cwlth), section 42-3. 21 `106N New body to give Minister copy of new certificate of 22 registration 23 `(1) This section applies if a RECI Act corporation becomes 24 registered as a CLG corporation, or CATSI Act corporation, 25 as authorised under this division. 26 `(2) The CLG corporation or CATSI Act corporation must within 27 28 days of the registration give a copy of its new certificate of 28 registration as a CLG corporation, or CATSI Act corporation, 29 to the Minister. 30 Maximum penalty--10 penalty units. 31 `(3) On receipt of the copy of the new certificate of registration, 32 the Minister must give notice by gazette notice-- 33 Page 135

 


 

Civil Proceedings Bill 2011 Part 32 Other amendments [s 221] (a) that the letters patent issued to the RECI Act corporation 1 under the repealed Religious Educational and 2 Charitable Institutions Act 1861 are taken to be 3 cancelled, under section 106M(b), from the day of the 4 transfer; and 5 (b) of the day of the transfer.'. 6 221 Amendment of s 109 (Affected person may apply for 7 review) 8 Section 109(1), after `Act'-- 9 insert-- 10 `, other than under section 106K'. 11 222 Amendment of schedule (Dictionary) 12 Schedule-- 13 insert-- 14 `CATSI Act corporation see section 106A. 15 CLG corporation see section 106A. 16 RECI Act corporation means a corporation incorporated 17 under the repealed Religious Educational and Charitable 18 Institutions Act 1861.'. 19 Division 2 Amendment of Births, Deaths and 20 Marriages Registration Act 2003 21 223 Act amended 22 This division amends the Births, Deaths and Marriages 23 Registration Act 2003. 24 Page 136

 


 

Civil Proceedings Bill 2011 Part 32 Other amendments [s 224] 224 Amendment of s 32 (Notifying about disposal of a 1 deceased person's body) 2 (1) Section 32(2)-- 3 omit, insert-- 4 `(2) Each of the following persons must give the registrar notice, 5 in the approved form, within 7 days after the disposal of a 6 human body-- 7 (a) the person who arranges the disposal of the body; 8 Example for paragraph (a)-- 9 a funeral director 10 (b) the person in charge of a cemetery or crematorium in 11 which the disposal of the body occurs. 12 Maximum penalty--20 penalty units.'. 13 (2) Section 32-- 14 insert-- 15 `(5A) For subsection (2)(b), if the cemetery or crematorium is in 16 Queensland, the person must give the registrar notice by way 17 of electronic communication unless the registrar reasonably 18 considers it would be impractical to do so for any of the 19 following reasons-- 20 (a) the crematorium or cemetery is located in an area that 21 does not allow for giving notice by way of electronic 22 communication; 23 (b) other exceptional circumstances do not allow for giving 24 notice by way of electronic communication.'. 25 (3) Section 32(5A) to (7)-- 26 renumber as section 32(6) to (8). 27 Page 137

 


 

Civil Proceedings Bill 2011 Part 32 Other amendments [s 225] Division 3 Amendment of Cremations Act 2003 1 225 Act amended 2 This division amends the Cremations Act 2003. 3 226 Amendment of s 11 (Dealing with ashes) 4 Section 11(1)-- 5 omit, insert-- 6 `(1) After a cremation, the person in charge of a crematorium-- 7 (a) must label the ashes in accordance with the 8 requirements prescribed under a regulation; and 9 (b) must not dispose of the ashes except in accordance with 10 any reasonable written instructions of the applicant. 11 Maximum penalty--80 penalty units.'. 12 Division 4 Amendment of Electoral Act 1992 13 227 Act amended 14 This division amends the Electoral Act 1992. 15 228 Amendment of s 61 (Information on electoral rolls to be 16 provided to particular people and organisations) 17 (1) Section 61(2), item 1, column 2-- 18 omit, insert-- 19 `an entity prescribed under a regulation that is a department or 20 State public authority'. 21 (2) Section 61(2), item 1, column 4-- 22 insert-- 23 `(c) for a purpose prescribed under a regulation'. 24 Page 138

 


 

Civil Proceedings Bill 2011 Part 32 Other amendments [s 229] 229 Amendment of s 106 (Who may vote) 1 (1) Section 106(1)(d)(i)-- 2 omit, insert-- 3 `(i) are not enrolled on the electoral roll for any district 4 but are entitled to be enrolled on the electoral roll 5 for the district; and'. 6 (2) Section 106(1)(d)(ii), `5p.m.'-- 7 omit, insert-- 8 `6p.m.'. 9 Division 5 Amendment of Information Privacy 10 Act 2009 11 230 Act amended 12 This division amends the Information Privacy Act 2009. 13 231 Amendment of s 29 (Special provision for law 14 enforcement agencies) 15 Section 29(1)(d), `paragraph (d)'-- 16 omit, insert-- 17 `paragraph (b)(iv)'. 18 232 Replacement of s 148 (Leave of absence) 19 Section 148-- 20 omit, insert-- 21 `148 Leave of absence 22 `The information commissioner may approve a leave of 23 absence for the privacy commissioner in accordance with 24 entitlements available to the privacy commissioner under the 25 privacy commissioner's conditions of office.'. 26 Page 139

 


 

Civil Proceedings Bill 2011 Part 32 Other amendments [s 233] 233 Amendment of sch 5 (Dictionary) 1 Schedule 5, definition law enforcement agency-- 2 omit, insert-- 3 `law enforcement agency means-- 4 (a) for the purposes of IPP 11(1)(e)--an enforcement body 5 within the meaning of the Privacy Act 1988 (Cwlth) or 6 any entity mentioned in paragraph (b); or 7 (b) otherwise-- 8 (i) the Queensland Police Service under the Police 9 Service Administration Act 1990; or 10 (ii) the Crime and Misconduct Commission under the 11 Crime and Misconduct Act 2001; or 12 (iii) the community safety department; or 13 (iv) any other agency, to the extent it has responsibility 14 for-- 15 (A) the performance of functions or activities 16 directed to the prevention, detection, 17 investigation, prosecution or punishment of 18 offences and other breaches of laws for 19 which penalties or sanctions may be 20 imposed; or 21 (B) the management of property seized or 22 restrained under a law relating to the 23 confiscation of the proceeds of crime; or 24 (C) the enforcement of a law, or of an order 25 made under a law, relating to the confiscation 26 of the proceeds of crime; or 27 (D) the execution or implementation of an order 28 or decision made by a court or tribunal.'. 29 Page 140

 


 

Civil Proceedings Bill 2011 Part 32 Other amendments [s 234] Division 6 Amendment of Justices of the 1 Peace and Commissioners for 2 Declarations Act 1991 3 234 Act amended 4 This division amends the Justices of the Peace and 5 Commissioners for Declarations Act 1991. 6 235 Insertion of new s 35A 7 After section 35-- 8 insert-- 9 `35A Proof of identity documents 10 `(1) A justice of the peace or commissioner for declarations may 11 sight a proof of identity document and record information in 12 the document, including by taking a copy of the document, for 13 the purpose of taking an affidavit or attesting an instrument or 14 document. 15 `(2) However, a justice of the peace or commissioner for 16 declarations must not disclose information recorded under this 17 section other than in the performance of the office of justice of 18 the peace or commissioner for declarations or as otherwise 19 required by law. 20 `(3) A justice of the peace or commissioner for declarations who 21 records information under this section must take reasonable 22 steps to ensure the information is kept in a secure way.'. 23 Page 141

 


 

Civil Proceedings Bill 2011 Part 32 Other amendments [s 236] Division 7 Amendment of Queensland Civil 1 and Administrative Tribunal Act 2 2009 3 236 Act amended 4 This division amends the Queensland Civil and 5 Administrative Tribunal Act 2009. 6 237 Insertion of new ch 4, pt 3, div 5 7 Chapter 4, part 3-- 8 insert-- 9 `Division 5 Miscellaneous 10 `194A Period of office ends--finishing proceedings 11 `(1) This section applies if the period of office for a member ends 12 and the member is not appointed for a further period. 13 `(2) If the member starts the hearing of a proceeding before the 14 period of office ends, the member is taken to be a member 15 after the period of office for the purposes of finishing the 16 proceeding. 17 `194B Member resigns--finishing proceedings 18 `(1) This section applies if a member resigns under this part. 19 `(2) If the member starts the hearing of a proceeding before the 20 member resigns, the member is taken to be a member after the 21 resignation for the purposes of finishing the proceeding.'. 22 Page 142

 


 

Civil Proceedings Bill 2011 Part 32 Other amendments [s 238] Division 8 Amendment of Retirement Villages 1 Act 1999 2 238 Act amended 3 This division amends the Retirement Villages Act 1999. 4 239 Amendment of s 15 (What is an exit fee) 5 Section 15(2)-- 6 insert-- 7 `Notes-- 8 1 Subsection (2) states the day at which the exit fee for a residence 9 contract is to be worked out, and not the method of working out the 10 exit fee. 11 2 Section 53A states how to work out the exit fee for a residence 12 contract that is worked out under the contract having regard to the 13 length of time the resident has resided in the unit.'. 14 240 Insertion of new s 53A 15 After section 53-- 16 insert-- 17 `53A How to work out particular exit fee for a residence 18 contract 19 `(1) This section applies to an exit fee for a residence contract that 20 is worked out under the contract having regard to the length of 21 time the resident has resided in the accommodation unit to 22 which the contract relates. 23 Example-- 24 This section applies if the exit fee is 5% of the ingoing contribution 25 payable under the contract after 1 year's residence in the unit and 6% of 26 the ingoing contribution payable under the contract after 2 years 27 residence in the unit. 28 `(2) If the contract was entered into before the commencement of 29 this section, the exit fee must be worked out on a daily basis 30 Page 143

 


 

Civil Proceedings Bill 2011 Part 32 Other amendments [s 241] unless the contract provides a way of working out the exit fee 1 that is not on a daily basis. 2 Example of how to work out the exit fee for a residence contract on a daily 3 basis-- 4 If-- 5 (a) the exit fee is 5% of the ingoing contribution payable under the 6 contract after 1 year's residence in the unit and 6% of the ingoing 7 contribution payable under the contract after 2 years residence in 8 the unit; and 9 (b) the resident resides in the unit for 1 year and 14 days, but not 10 during a leap year; 11 the exit fee is 5% of the ingoing contribution payable under the contract 12 for the first year of residence plus 14/365 of 1% of the ingoing 13 contribution payable under the contract for the 14 days of the second 14 year of residence. 15 `(3) If the contract is entered into after the commencement of this 16 section, the exit fee must be worked out on a daily basis.'. 17 Division 9 Amendment of Right to Information 18 Act 2009 19 241 Act amended 20 This division amends the Right to Information Act 2009. 21 242 Replacement of s 138 (Leave of absence) 22 Section 138-- 23 omit, insert-- 24 `138 Leave of absence 25 `The information commissioner is entitled to the leave of 26 absence decided by the Governor in Council.'. 27 Page 144

 


 

Civil Proceedings Bill 2011 Part 32 Other amendments [s 243] 243 Replacement of s 154 (Leave of absence) 1 Section 154-- 2 omit, insert-- 3 `154 Leave of absence 4 `The information commissioner may approve a leave of 5 absence for the RTI commissioner in accordance with 6 entitlements available to the RTI commissioner under the RTI 7 commissioner's conditions of office.'. 8 244 Amendment of sch 2 (Entities to which this Act does not 9 apply) 10 Schedule 2, part 2, item 20-- 11 omit. 12 Page 145

 


 

Civil Proceedings Bill 2011 Schedule 1A Schedule 1A Minor and consequential 1 amendments 2 section 216 3 Building and Construction Industry Payments Act 4 2004 5 1 Section 15(2)(a), from `Supreme'-- 6 omit, insert-- 7 `Civil Proceedings Act 2011, section 59(3) for a money order 8 debt;'. 9 Building Units and Group Titles Act 1980 10 1 Section 126(2), `Subject to the Supreme Court Act 1995, 11 the'-- 12 omit, insert-- 13 `The'. 14 Charitable Funds Act 1958 15 1 Section 2, definition central district-- 16 omit, insert-- 17 `Central Region means the Central Region of the Supreme 18 Court. 19 Page 146

 


 

Civil Proceedings Bill 2011 Schedule 1A Note-- 1 The Central Region is declared under the Supreme Court of Queensland 2 Act 1991.'. 3 2 Section 2, definition `far northern district'-- 4 omit, insert-- 5 `Far Northern Region means the Far Northern Region of the 6 Supreme Court. 7 Note-- 8 The Far Northern Region is declared under the Supreme Court of 9 Queensland Act 1991.'. 10 3 Section 2, definition `northern district'-- 11 omit, insert-- 12 `Northern Region means the Northern Region of the Supreme 13 Court. 14 Note-- 15 The Northern Region is declared under the Supreme Court of 16 Queensland Act 1991.'. 17 4 Section 8(3), `central, northern or far northern district'-- 18 omit, insert-- 19 `Central Region, Northern Region or Far Northern Region'. 20 5 Section 27-- 21 omit. 22 Page 147

 


 

Civil Proceedings Bill 2011 Schedule 1A Dispute Resolution Centres Act 1990 1 1 Section 2(1), definition referring order-- 2 omit, insert-- 3 `referring order means an order referring a dispute for 4 mediation made by-- 5 (a) the Supreme Court, the District Court or a Magistrates 6 Court under the Civil Proceedings Act 2011, section 7 43(3); or 8 (b) QCAT, or the QCAT principal registrar, under the QCAT 9 Act, section 75.'. 10 Forestry Act 1959 11 1 Section 61SU, definition enforcement warrant, `Supreme 12 Court Act of Queensland 1991, section 93A'-- 13 omit, insert-- 14 `Civil Proceedings Act 2011, section 90'. 15 2 Section 61SW(b)(ii), `Supreme Court of Queensland Act 16 1991, section 93A'-- 17 omit, insert-- 18 `Civil Proceedings Act 2011, section 90'. 19 Page 148

 


 

Civil Proceedings Bill 2011 Schedule 1A Land Act 1994 1 1 Schedule 6, definition enforcement warrant, `Supreme 2 Court of Queensland Act 1991, section 93A'-- 3 omit, insert-- 4 `Civil Proceedings Act 2011, section 90'. 5 2 Schedule 6, definition writ of execution, footnote-- 6 omit. 7 Legal Aid Queensland Act 1997 8 1 Section 38(2)(b), from `Supreme' to `record'-- 9 omit, insert-- 10 `Civil Proceedings Act 2011, section 59(3) for a money order 11 debt'. 12 Maintenance Act 1965 13 1 Section 45(7)-- 14 omit. 15 Page 149

 


 

Civil Proceedings Bill 2011 Schedule 1A Marine Parks Act 2004 1 1 Section 117(2)-- 2 omit, insert-- 3 `(2) Without limiting subsection (1)(b), a regulation may provide 4 for the use of mediators.'. 5 Oaths Act 1867 6 1 Section 2, `circuit court or'-- 7 omit. 8 Powers of Attorney Act 1998 9 1 Schedule 3, definition paid carer, paragraph (b)(ii), 10 editor's note-- 11 omit, insert-- 12 `Note-- 13 This principle was established in Griffiths v Kerkemeyer (1977) 14 139 CLR 161--see Queensland Law Reform Commission 15 Report No. 45, `The assessment of damages in personal injury 16 and wrongful death litigation, Griffiths v Kerkemeyer, Section 17 15C Common Law Practice Act 1867', October 1993.'. 18 Page 150

 


 

Civil Proceedings Bill 2011 Schedule 1A Property Agents and Motor Dealers Act 2000 1 1 Section 5(3), definition bailiff, `Supreme Court Act 1995, 2 part 12'-- 3 omit, insert-- 4 `Supreme Court of Queensland Act 1991'. 5 Public Health Act 2005 6 1 Section 144(3), `section 128'-- 7 omit, insert-- 8 `section 8, the District Court of Queensland Act 1967, section 9 126 or the Magistrates Courts Act 1921, section 14A'. 10 Public Officers Superannuation Benefits Recovery Act 11 1988 12 1 Section 4(1), definition interest, `Supreme Court Act 1995, 13 section 48(1)'-- 14 omit, insert-- 15 `Civil Proceedings Act 2011, section 59(3)'. 16 2 Section 9(4), `Supreme Court Act 1995, sections 47 and 17 48'-- 18 omit, insert-- 19 `Civil Proceedings Act 2011, sections 58 and 59'. 20 Page 151

 


 

Civil Proceedings Bill 2011 Schedule 1A Residential Tenancies and Rooming Accommodation 1 Act 2008 2 1 Schedule 2, definition enforcement warrant, `Supreme 3 Court of Queensland Act 1991'-- 4 omit, insert-- 5 `Civil Proceedings Act 2011'. 6 South Bank Corporation Act 1989 7 1 Schedule 4, section 126(2), `Subject to the Supreme 8 Court Act 1921, the'-- 9 omit, insert-- 10 `The'. 11 State Penalties Enforcement Act 1999 12 1 Section 63(8)-- 13 omit, insert-- 14 `(8) In this section-- 15 exempt property see the Civil Proceedings Act 2011, schedule 16 1.'. 17 2 Section 110(3), `Supreme Court Act 1995, part 4, division 18 20'-- 19 omit, insert-- 20 `Civil Proceedings Act 2011, section 59(3)'. 21 Page 152

 


 

Civil Proceedings Bill 2011 Schedule 1A Sustainable Planning Act 2009 1 1 Section 491-- 2 omit, insert-- 3 `491 ADR process applies to proceedings started under 4 this part 5 `(1) The Civil Proceedings Act 2011, part 6 (the ADR provisions) 6 applies to proceedings started under this part. 7 `(2) To the extent there is any inconsistency between the cost 8 provisions of the ADR provisions and the cost provisions of 9 this Act, the cost provisions of the ADR provisions prevail. 10 `(3) If a dispute in a proceeding under this part is referred to a 11 dispute resolution process under the ADR provisions-- 12 (a) the proceeding is not stayed unless the court orders 13 otherwise; and 14 (b) the court must not decide the proceeding until the 15 dispute resolution process under the ADR provisions 16 has been finalised. 17 `(4) In applying the ADR provisions to a proceeding under this 18 part-- 19 (a) a reference to a court is taken to be a reference to the 20 Planning and Environment Court; and 21 (b) definitions and other interpretative provisions of the 22 Civil Proceedings Act 2011 relevant to the ADR 23 provisions apply.'. 24 Transport Operations (Road Use Management) Act 25 1995 26 1 Section 91, `, Circuit,'-- 27 omit. 28 Page 153

 


 

Civil Proceedings Bill 2011 Schedule 1A 2 Section 130(1)(b)(i), `, Circuit Court,'-- 1 omit. 2 Page 154

 


 

Civil Proceedings Bill 2011 Schedule 1 Schedule 1 Dictionary 1 section 4 2 ADR convenor means a mediator or case appraiser. 3 ADR costs means-- 4 (a) for a mediation-- 5 (i) the mediator's fee; and 6 (ii) the venue provider's fee for providing the venue; 7 and 8 (iii) other costs prescribed under the rules; and 9 (b) for a case appraisal-- 10 (i) the case appraiser's fee; and 11 (ii) the venue provider's fee for providing the venue; 12 and 13 (iii) other costs prescribed under the rules. 14 ADR process see section 39. 15 approved form means a form approved under the Supreme 16 Court of Queensland Act 1991. 17 case appraisal see section 41. 18 case appraiser means a person appointed as a case appraiser 19 under a referring order. 20 child, for part 10, see section 62. 21 court see section 5. 22 dispute, for part 6, means-- 23 (a) a dispute in a proceeding; or 24 (b) something else about which the parties are in dispute 25 that may be dealt with in a mediation at the same time. 26 Page 155

 


 

Civil Proceedings Bill 2011 Schedule 1 enforcement creditor means-- 1 (a) a person entitled to enforce an order for the payment of 2 money; or 3 (b) a person to whom the benefit of part of the order has 4 passed by way of assignment or in another way. 5 enforcement debtor means a person required to pay money 6 under an order. 7 enforcement officer, for a court, means the sheriff, a deputy 8 sheriff or a bailiff of the court. 9 enforcement warrant means a warrant to enforce an order 10 other than an order for the payment of an amount into court. 11 exempt property means property that is not divisible among 12 the creditors of a bankrupt under the bankruptcy law. 13 mediation see section 40. 14 mediator means a person appointed as a mediator under a 15 referring order. 16 member of the deceased's family, for part 10, see section 62. 17 money order means an order of the court, or part of an order 18 of the court, for the payment of money, including an amount 19 for damages, whether or not the amount is or includes an 20 amount for interest or costs. 21 money order debt means the amount of money payable under 22 a money order. 23 non-money order means an order of the court, or part of an 24 order of the court, for a form of relief other than the payment 25 of money. 26 order includes a judgment, direction, decree, decision or 27 determination of a court whether final or otherwise. 28 owner, for part 11, see section 71. 29 parent, for part 10, see section 62. 30 personal representative, for part 10, see section 62. 31 proceeding means a proceeding in a court (whether or not 32 between parties), and includes-- 33 Page 156

 


 

Civil Proceedings Bill 2011 Schedule 1 (a) an incidental proceeding in the course of, or in 1 connection with, a proceeding; and 2 (b) an appeal or stated case. 3 referring order, for part 6, see section 43(3). 4 relevant conference, for part 5, see section 34. 5 rules means the Uniform Civil Procedure Rules 1999. 6 sheriff means the Sheriff of Queensland appointed under the 7 Supreme Court of Queensland Act 1991. 8 ship, for part 11, see section 71. 9 spouse, for part 10, see section 63. 10 State of Queensland 2011 Page 157

 


 

AMENDMENTS TO BILL

Civil Proceedings Bill 2011 Civil Proceedings Bill 2011 Amendments agreed to during Consideration 1 Part 15, hdg (Transitional provision for Civil Proceedings Act 2011) Page 63, line 22, `provision'-- omit, insert-- `provisions'. 2 After clause 108 Page 63, after line 27-- insert-- `108A Transitional regulation-making power `(1) A regulation (a transitional regulation) may make provision of a saving or transitional nature for which-- (a) it is necessary to make provision to allow or facilitate the doing of anything to achieve the transition of provisions of a prescribed Act after it is repealed or amended by this Act; and (b) this Act or a prescribed Act does not make provision or sufficient provision. `(2) A transitional regulation may have retrospective operation to a day that is not earlier than the day this section commences (the commencement day). `(3) A transitional regulation must declare it is a transitional regulation. `(4) This section and any transitional regulation expire 1 year after the commencement day. `(5) In this section-- prescribed Act means-- Page 1

 


 

Civil Proceedings Bill 2011 (a) Supreme Court Act 1995; or (b) Supreme Court of Queensland Act 1991; or (c) District Court of Queensland Act 1967; or (d) Magistrates Act 1991; or (e) Magistrates Courts Act 1921.'. 3 Clause 125 (Replacement of ss 36 and 36A) Page 71, line 10, `, deputy registrars'-- omit. 4 Clause 210 (Repeal of Supreme Court Act 1995) Page 126, line 4-- omit, insert-- `(1) The Supreme Court Act 1995 is repealed. `(2) The Supreme Court Act 1995, sections 300 and 303 are declared to be laws to which the Acts Interpretation Act 1954, section 20A applies.'. 5 After clause 228 Page 138, after line 24-- insert-- `228A Amendment of s 65 (Enrolment and transfer of enrolment) Section 65-- insert-- `(7) Subsection (8) applies if-- (a) a person is required to give notice under subsection (2) or (3); and (b) the person gives notice-- Page 2

 


 

Civil Proceedings Bill 2011 (i) after the cut-off day for electoral rolls for an election or referendum and no later than 6p.m. on the day before the polling day for the election or referendum; and (ii) to the commission but otherwise in compliance with subsection (2) or (3). `(8) The person is taken to have given notice to the electoral registrar in compliance with subsection (2) or (3).'.'. 6 Clause 229 (Amendment of s 106 (Who may vote)) Page 139, lines 7 to 9-- omit, insert-- `(2) Section 106(1)(d)(ii), from `5p.m.' to `to'-- omit, insert-- `6p.m. on the day before the polling day, have given a notice to the commission or'.'. 7 After clause 237 Page 142, after line 22-- insert-- `237A Insertion of new ch 11 After chapter 10-- insert-- `Chapter 11 Transitional provision for Civil Proceedings Act 2011 `284 Application of Civil Proceedings Act 2011 `The Civil Proceedings Act 2011, section 237 applies, and is taken on and from 30 November 2011 to have applied, to the Page 3

 


 

Civil Proceedings Bill 2011 hearing of a proceeding that was started but not finished before 30 November 2011.'.'. State of Queensland 2011

 


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