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


MAGISTRATES COURT (CIVIL PROCEEDINGS) BILL 2003

                        Western Australia


Magistrates Court (Civil Proceedings) Bill 2003

                           CONTENTS


       Part 1 -- Preliminary
 1.    Short title                                              2
 2.    Commencement                                             2
 3.    Interpretation                                           2
       Part 2 -- Jurisdiction
 4.    Interpretation                                           5
 5.    Court's civil jurisdiction                               5
 6.    General civil jurisdiction                               5
 7.    Consumer/trader claims                                   7
 8.    Statutory jurisdiction                                   9
 9.    Counterclaims outside jurisdiction                       9
 10.   Decisions for jurisdictional purposes                   10
 11.   Remedies that may be given                              11
 12.   Pre-judgment interest may be awarded                    11
       Part 3 -- General procedure
 13.   Court's duties in dealing with cases and making rules   13
 14.   Rules of court to set out procedure etc.                13
 15.   Court may act on its own initiative                     14
 16.   Court's powers to control and manage cases              14
 17.   Striking out, Court's powers as to                      16
 18.   Summary judgment, Court may give                        17
 19.   Default by party, Court's powers to deal with           18
 20.   Procedural orders may be made conditional               18
 21.   Persons under legal disability, claims by or against    18
 22.   Venue, changing                                         19
 23.   Mediation, use of                                       19
 24.   Experts, use of                                         20
 25.   Costs                                                   20

                             261--3                             page i
Magistrates Court (Civil Proceedings) Bill 2003



Contents



            Part 4 -- Minor cases procedure
   26.      Interpretation                                         23
   27.      Object of minor cases procedure                        23
   28.      Minor cases procedure, general provisions              24
   29.      Proceedings to be private and informal                 25
   30.      Representation of parties                              25
   31.      Costs                                                  27
   32.      Appeals                                                27
   33.      Rules of court for minor cases procedure               28
            Part 5 -- Mediation
   34.      Interpretation                                         29
   35.      Mediator, appointment of                               29
   36.      Mediator, protection of                                29
   37.      Compulsory mediation, privilege of proceedings etc.    29
   38.      Mediator, duty of confidentiality                      31
            Part 6 -- Transferring cases to superior
                 courts
   39.      Transfer of Magistrates Court case to superior court   32
            Part 7 -- Appeals
   40.      Appeal from Magistrates Court to District Court        33
   41.      Transfer of District Court appeal to Full Court        33
   42.      Appeal from District Court to Full Court               34
   43.      Appeal court's powers                                  35
            Part 8 -- Miscellaneous
   44.      Representation of parties                              37
   45.      Court to be open to public, publicity                  38
   46.      Enforcement of judgments                               38
   47.      Rules of court, making                                 39
   48.      Rules of court, content                                39
   49.      Regulations                                            40
            Defined Terms




page ii
                           Western Australia


                     LEGISLATIVE ASSEMBLY

                      (As amended in Committee)


Magistrates Court (Civil Proceedings) Bill 2003


                               A Bill for


An Act relating to the civil jurisdiction of, and civil proceedings in,
the Magistrates Court.



The Parliament of Western Australia enacts as follows:




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     Magistrates Court (Civil Proceedings) Bill 2003
     Part 1         Preliminary

     s. 1



                              Part 1 -- Preliminary
     1.         Short title
                This Act may be cited as the Magistrates Court (Civil
                Proceedings) Act 2004.

5    2.         Commencement
                This Act comes into operation on a day fixed by proclamation.

     3.         Interpretation
          (1)   In this Act, unless the contrary intention appears --
                "applicable costs determination", for any proceedings in the
10                   Court, means the legal costs determination in force under
                     the Legal Practice Act 2003 section 210 that applies to the
                     proceedings;
                "case" means any proceedings in the Court involving or in
                     connection with the Court's civil jurisdiction;
15              "case management power" means any of the powers conferred
                     on the Court by sections 15 to 20;
                "case statement" means a statement of a party's claim, or of a
                     party's defence, whether as originally lodged with the
                     Court or as amended or as supplemented by additional
20                   information given voluntarily or as ordered by the Court;
                "claim" means a claim made to the Court by a party (whether a
                     claimant, a defendant or another party);
                "claimant" means a person who commences a case;
                "consumer/trader claim" has the meaning given by
25                   section 7(3);
                "corporation" has the meaning given by section 57A of the
                     Corporations Act 2001 of the Commonwealth;
                "Court" means the Magistrates Court;
                "defence" means a defence by a party (whether a claimant, a
30                   defendant or another party) to a claim or counterclaim;

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                        Magistrates Court (Civil Proceedings) Bill 2003
                                            Preliminary          Part 1

                                                                    s. 3



     "lawyer" means a certificated practitioner within the meaning
          of the Legal Practice Act 2003;
     "magistrate" means a magistrate of the Court;
     "minor case" has the meaning given by section 26(1);
5    "minor cases jurisdictional limit" means $7 500 and, on and
          after 1 January 2009, means $10 000;
     "minor cases procedure" means the procedure prescribed by
          Part 4 and the rules of court made for the purposes of
          Part 4;
10   "officer", of a corporation, has the meaning given by section 9
          of the Corporations Act 2001 of the Commonwealth;
     "party" means a party to a case;
     "person under a legal disability" means --
          (a) a person under 18 years of age; or
15        (b) a represented person as defined by the Guardianship
                 and Administration Act 1990 section 3(1);
     "public authority" means --
          (a) a Minister of the Crown;
          (b) a department of the Public Service;
20        (c) a local government or regional local government; or
          (d) a body, whether incorporated or not, that is
                 established for a public purpose under a written law
                 and that, under the authority of a written law,
                 performs a statutory function on behalf of the State;
25   "rules of court" means rules of court made by the Magistrates
          Court under the Magistrates Court Act 2004 for the
          purposes of this Act;
     "settle", in relation to a case, includes to accept money paid
          into court, to accept an offer to consent to judgment, and to
30        compromise.




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Magistrates Court (Civil Proceedings) Bill 2003
Part 1         Preliminary

s. 3



   (2)   Unless the contrary intention appears, a term used in this Act
         has the same meaning as it has in the Magistrates Court
         Act 2004.




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                                   Magistrates Court (Civil Proceedings) Bill 2003
                                                       Jurisdiction         Part 2

                                                                                s. 4



                             Part 2 -- Jurisdiction
     4.         Interpretation
                In this Part --
                "jurisdictional limit" means $50 000 and, on and after
5                   1 January 2009, means $75 000.

     5.         Court's civil jurisdiction
                The Magistrates Court's civil jurisdiction is set out in this Act.

     6.         General civil jurisdiction
          (1)   The Court has jurisdiction to deal with --
10               (a) a claim for an amount of money that is --
                         (i) a debt or damages, whether liquidated or
                              unliquidated;
                        (ii) the whole or a part of the unliquidated balance of
                              a partnership account; or
15                     (iii) the whole or a part of the amount of the
                              distributive share under an intestacy or of a
                              legacy under a will,
                      where the amount claimed, even if it is a balance after
                      allowing for a payment on account or for any admitted
20                    set-off or for any other amount, is not more than the
                      jurisdictional limit;
                 (b) a claim that involves an equitable claim or demand
                      where the only relief claimed is the recovery of an
                      amount of money or of damages, whether liquidated or
25                    unliquidated, and the amount claimed is not more than
                      the jurisdictional limit;
                 (c) a consumer/trader claim;
                 (d) a claim to recover possession of personal property that is
                      unlawfully detained where the value of the property is
30                    not more than the jurisdictional limit;


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     Magistrates Court (Civil Proceedings) Bill 2003
     Part 2         Jurisdiction

     s. 6



                (e)   subject to the Residential Tenancies Act 1987, a claim to
                      recover possession of real property where the gross
                      annual rental value of the property is not more than the
                      jurisdictional limit;
5               (f)   any of the claims set out in paragraphs (a) to (e),
                      irrespective of the amount claimed or the value of the
                      property, if the party against which the claim is made
                      consents; and
                (g)   a claim for an indemnity where the indemnity arises
10                    from or relates to another claim that is before the Court
                      or that has been heard and determined by the Court.
        (2)   In a claim referred to in subsection (1)(a)(ii) the Court also has
              jurisdiction and powers relating to the declaration of partnership
              or the dissolution of partnership.
15      (3)   For the purposes of subsection (1)(e) the gross annual rental
              value of any real property is --
                (a) if a rental agreement is in force in respect of the
                      property, the gross annual rental payable under the
                      agreement, not counting any amount payable by the
20                    tenant in respect of rates, taxes or other charges in
                      respect of the property or in respect of the insurance or
                      other outgoings necessary to maintain the value of the
                      property;
                (b) if a gross rental value is in force under the Valuation of
25                    Land Act 1970 in respect of the property, that value;
                (c) if both paragraphs (a) and (b) apply, the lower of the
                      gross annual rent payable and the gross rental value; or
                (d) if neither paragraph (a) nor (b) applies, the gross annual
                      rental that the land might reasonably be expected to
30                    realise if let on a tenancy from year to year upon
                      condition that the landlord were liable for all rates, taxes
                      and other charges in respect of the property and the
                      insurance and other outgoings necessary to maintain the
                      value of the land.


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                                                       Jurisdiction         Part 2

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          (4)   For the purposes of subsection (3)(a) and (d), the calculation of
                the gross annual rental value of any land is to include any
                payment usually made for or in relation to a tenancy of the kind
                in question but is not to include any allowance that may apply,
5               by discounting or otherwise, for advance payment or late
                payment of rent.
          (5)   Despite subsection (1), the Court does not have jurisdiction to
                deal with --
                  (a) a claim in which the title to land is in question;
10                (b) a claim in which a devise, bequest or limitation under a
                        will or settlement is in question;
                  (c) a claim for damages for libel or slander;
                  (d) a claim for damages for personal injury caused by or
                        arising out of the use of a motor vehicle;
15                (e) a claim that the Building Disputes Tribunal, established
                        by the Builders' Registration Act 1939, has jurisdiction
                        to deal with under that Act or under the Home Building
                        Contracts Act 1991.
          (6)   The Court's jurisdiction to deal with a claim is not affected by
20              the fact that the title to land comes incidentally into question in
                the proceedings but the Court's judgment in such a claim is not
                evidence of title to the land for any purpose.

     7.         Consumer/trader claims
          (1)   In this section --
25              "consumer" means a natural person --
                     (a) who buys or hires goods otherwise than --
                               (i) for re-sale or letting on hire;
                              (ii) in the course of or for the purposes of a trade
                                   or business carried on, or to be carried on, by
30                                 the person; or




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     Magistrates Court (Civil Proceedings) Bill 2003
     Part 2         Jurisdiction

     s. 7



                         (iii) as a member of a business partnership;
                        or
                  (b) for whom services are supplied for fee or reward
                        otherwise than --
5                          (i) in the course of, or for the purposes of, a trade
                                or business carried on, or to be carried on, by
                                the person; or
                          (ii) as a member of a business partnership,
                  but does not include a tenant within the meaning of the
10                Residential Tenancies Act 1987 section 3;
              "contract" includes any agreement, whether written or oral;
              "goods" includes everything that is the subject of trade or
                  manufacture or merchandise;
              "services" includes the rights and benefits that are, or are to be,
15                supplied under a pawnbroking contract or a contract of
                  insurance, other than a contract of insurance --
                  (a) required by the Workers' Compensation and
                        Rehabilitation Act 1981; or
                  (b) within the meaning of the Motor Vehicle (Third Party
20                      Insurance) Act 1943;
              "trader" means a person who in the field of trade or commerce
                  carries on a business of supplying goods or providing
                  services or who regularly holds himself out as ready to
                  supply goods or to provide services of a similar nature, but
25                does not include an owner within the meaning of the
                  Residential Tenancies Act 1987 section 3.
        (2)   A person is not a trader for the purposes of this section if the
              person, in supplying goods or providing services --
                (a) acts in the exercise of a discipline that is not ordinarily
30                    regarded as being within the field of trade or commerce;
                      or
                (b) gives effect to the instructions of another who, in
                      providing those instructions, acts in the exercise of a

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                                    Magistrates Court (Civil Proceedings) Bill 2003
                                                        Jurisdiction         Part 2

                                                                                 s. 8



                        discipline that is not ordinarily regarded as being within
                        the field of trade or commerce, and the goods supplied
                        or the services provided are in all respects in accordance
                        with those instructions.
5         (3)   For the purposes of this Act, a consumer/trader claim is a claim
                by a consumer or a trader (the "claimant") --
                  (a) that arises out of a contract for the supply of goods or
                        the provision of services between the claimant and the
                        person against whom the claim is taken; and
10               (b) that claims one or more of the following --
                           (i) the performance of work, or the provision of
                               services, of a value that is not more than the
                               jurisdictional limit;
                          (ii) the payment, or the relief from payment, of an
15                             amount of money that is not more than the
                               jurisdictional limit;
                         (iii) the return or replacement of goods of a value that
                               is not more than the jurisdictional limit.

     8.         Statutory jurisdiction
20              The Court's civil jurisdiction includes any jurisdiction conferred
                on the Court by a written law other than this Act, other than
                jurisdiction conferred on the Court as a court of summary
                jurisdiction.

     9.         Counterclaims outside jurisdiction
25        (1)   In this section --
                "counterclaim" means any claim, including a claim for a
                    set-off, made in a defence.
          (2)   This section applies if a party's counterclaim involves a claim
                or an issue that is outside the Court's civil jurisdiction.
30        (3)   For the purposes of subsection (2) a counterclaim is not outside
                the Court's civil jurisdiction by reason only that it is or includes

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     Magistrates Court (Civil Proceedings) Bill 2003
     Part 2         Jurisdiction

     s. 10



                 2 or more claims for an amount of money, each of which could
                 be the subject of a separate claim within that jurisdiction, but
                 the total of which is more than the jurisdictional limit.
           (4)   If the counterclaim is for an amount of money, the Court has
5                jurisdiction to deal with the counterclaim unless the party
                 against which the counterclaim is made objects before a date is
                 set for the trial of the counterclaim.
           (5)   If the counterclaim is not for an amount of money, the Court has
                 jurisdiction to deal with the counterclaim but cannot give any
10               remedy or judgment on the counterclaim that is outside the
                 Court's jurisdiction unless the party against which the
                 counterclaim is made consents.
           (6)   Whether or not it deals with the counterclaim under
                 subsection (4) or (5), the Court may adjourn the case, or the
15               enforcement of any judgment given in it, for sufficient time and
                 on any necessary terms to allow --
                   (a) a party to apply to a superior court under section 39; or
                   (b) the party concerned to take action in a court of
                        competent jurisdiction to establish its counterclaim.

20   10.         Decisions for jurisdictional purposes
           (1)   The Court has jurisdiction to decide whether a claim is or is not
                 within the jurisdiction conferred on it by section 6 or the
                 jurisdiction referred to in section 8.
           (2)   For the purposes of deciding whether or not a claim is within
25               the jurisdiction of the Court, the following amounts are to be
                 disregarded --
                   (a) the interest that may be included by the Court under
                          section 12; and
                   (b) the interest that would be payable under the Civil
30                        Judgments Enforcement Act 2004 section 8 on any
                          judgment sum.



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                                    Magistrates Court (Civil Proceedings) Bill 2003
                                                        Jurisdiction         Part 2

                                                                                s. 11



     11.         Remedies that may be given
           (1)   The Court has such powers as are incidental to and necessary
                 for the exercise of the jurisdiction conferred on it by section 6
                 and of the jurisdiction referred to in section 8.
5          (2)   The Court may grant any remedy or relief in respect of a claim
                 within the jurisdiction conferred by section 6 --
                  (a) that may be claimed under that section or, in the case of
                         a consumer/trader claim, under section 7(3)(b); or
                  (b) that the Supreme Court could grant if the claim had been
10                       made to that court.
           (3)   In the exercise of the jurisdiction referred to in section 8, the
                 Court may grant any remedy or relief that is provided for by the
                 written law that confers the jurisdiction on the Court.
           (4)   If the Court orders a person to do an act other than paying
15               money, it may also order the person to pay money in default of
                 doing the act as ordered.

     12.         Pre-judgment interest may be awarded
           (1)   If the Court gives judgment in favour of a claim for money,
                 including a debt, damages or the value of goods, it may include
20               in the judgment sum either --
                   (a) interest, at a rate decided by the Court, on the whole or a
                          part of the money for the whole or a part of the period
                          that --
                             (i) begins on the date when the cause of action
25                                arose; and
                            (ii) ends on the date when the judgment is given;
                          or
                   (b) a lump sum of money in lieu of such interest.
           (2)   Subsection (1) does not --
30                (a) authorise the giving of interest on interest;


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     Part 2         Jurisdiction

     s. 12



                (b)   apply in relation to any general damages in respect of
                      pain and suffering or the loss of enjoyment or of the
                      amenities of life awarded in relation to personal injury
                      (including any disease or impairment of a person's
5                     physical or mental condition) or the death of a person;
                (c)   apply in relation to any debt upon which interest is
                      payable as of right whether by virtue of any agreement
                      or otherwise; or
                (d)   affect the damages recoverable for the dishonour of a
10                    bill of exchange.




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                                    Magistrates Court (Civil Proceedings) Bill 2003
                                                General procedure            Part 3

                                                                                s. 13



                          Part 3 -- General procedure
     13.         Court's duties in dealing with cases and making rules
           (1)   In dealing with cases and making rules of court the Court is to
                 ensure that cases are dealt with justly.
5          (2)   Ensuring that cases are dealt with justly includes ensuring --
                   (a)   that cases are dealt with efficiently, economically and
                         expeditiously;
                  (b)    so far as is practicable, that the parties are on an equal
                         footing; and
10                 (c)   that the Court's judicial and administrative resources are
                         used as efficiently as possible.

     14.         Rules of court to set out procedure etc.
           (1)   The procedure to be followed in a case is that set out in rules of
                 court unless another written law provides otherwise.
15         (2)   Without limiting section 48(1), the rules of court may --
                  (a) provide when and in what circumstances the Court will
                       or may exercise a case management power;
                  (b) require a person to do anything that the Court could
                       require the person to do under such a power.
20         (3)   A case management power must be exercised in accordance
                 with any applicable rules of court.
           (4)   The Court must not exercise a case management power if to do
                 so would be contrary to this Act or another written law.
           (5)   If the procedure to be followed in a case is not set out in rules of
25               court, this Act or another written law, the procedure is to be that
                 decided by the Court for the purposes of the case.




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     15.         Court may act on its own initiative
           (1)   The Court may exercise its powers on the application of a party
                 or on its own initiative unless this Act or the rules of court or
                 another written law provides otherwise.
5          (2)   The Court may make an order on its own initiative with or
                 without --
                  (a) allowing the parties to make submissions; or
                  (b) hearing the parties.
           (3)   If the Court decides to allow the parties to make submissions
10               before making an order on its own initiative, it must notify each
                 party likely to be affected by the order of how and when the
                 submissions are to be made.
           (4)   If the Court decides to hear the parties before making an order
                 on its own initiative, it must notify each party likely to be
15               affected by the order of the time and place of the hearing.

     16.         Court's powers to control and manage cases
           (1)   The Court may do all or any of the following for the purposes of
                 controlling and managing cases and trials --
                   (a) extend the time for complying with any rule of court or
20                       practice direction, or any order made by the Court (even
                         if the time for complying has expired), or shorten it;
                   (b) adjourn or bring forward a hearing to a specified date;
                   (c) stay any case, either generally or until a specified date;
                   (d) consolidate cases;
25                 (e) try 2 or more cases on the same occasion;
                    (f) order any aspect of a case or a counterclaim in a case to
                         be dealt with as a separate case;
                   (g) order that particular issues be tried in a particular order;
                   (h) order that an issue not be tried;
30                  (i) order that an issue be tried separately;


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                       Magistrates Court (Civil Proceedings) Bill 2003
                                   General procedure            Part 3

                                                                 s. 16



      (j)   order that a case in which the value of the claim, or of
            the relief claimed, by the claimant is not more than the
            minor cases jurisdictional limit and that the claimant has
            not elected to have dealt with under the minor cases
5           procedure be dealt with under the minor cases
            procedure;
     (k)    give judgment against a claim after a decision is made
            on a separate trial of a preliminary issue;
      (l)   hold a hearing by audio link or video link (as those
10          terms are defined in the Evidence Act 1906 section 120);
     (m)    allow a party to amend its case statement;
      (n)   order a party to provide additional information to that in
            or attached to its case statement, whether by disclosing
            or providing documents or by answering interrogatories;
15   (o)    order parties --
               (i) to exchange the written statements of the
                    evidence that is anticipated will be given by
                    witnesses;
              (ii) to confer, to attend before a mediator or other
20                  person or to take other measures, before trial, to
                    try to settle the case or identify the issues that
                    need to be tried;
             (iii) to attend before the Court before trial to deal
                    with case management, interlocutory and
25                  pre-trial issues;
             (iv) to do anything that in the Court's opinion will or
                    may facilitate the case being conducted and
                    concluded efficiently, economically and
                    expeditiously;
30   (p)    by order, limit --
               (i) the time a party has at trial to examine,
                    cross-examine or re-examine a witness, or to
                    make oral submissions, or to present its case;


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     Part 3         General procedure

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                          (ii)   the number of witnesses (including expert
                                 witnesses) that may be called in relation to an
                                 issue;
                          (iii) the length of a trial;
5                 (q)    refuse to admit into evidence a document that a party
                         has deliberately not disclosed or provided in accordance
                         with rules of court;
                   (r)   as to expert witnesses --
                            (i) order a party to disclose the nature and substance
10                               of the expert evidence to be given by any expert
                                 witness the party intends to call;
                           (ii) order an expert witness to disclose the advice
                                 given to, and the work done in relation to the
                                 case of, the party that intends to call him or her;
15                        (iii) refuse to allow an expert witness to be called
                                 without the leave of the Court;
                          (iv) refuse to admit the evidence of an expert witness
                                 that has not been disclosed in accordance with
                                 rules of court or a court order;
20                 (s)   order a party to pay the whole or a part of the costs of a
                         case if the party has deliberately not disclosed or
                         provided a document in accordance with rules of court;
                   (t)   take any other action or make any other order for the
                         purpose of complying with section 13.
25         (2)   A power in this section to make an order includes a power to
                 vary or cancel the order.

     17.         Striking out, Court's powers as to
           (1)   The Court may strike out all or a part of a case statement if --
                  (a)    any claim in it is outside the Court's jurisdiction;
30                (b)    it does not disclose any reasonable grounds for any
                         claim, or for any defence, in it;


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                                    Magistrates Court (Civil Proceedings) Bill 2003
                                                General procedure            Part 3

                                                                               s. 18



                   (c)   its purpose is to harass or annoy, or to cause delay or
                         detriment, or is otherwise wrongful;
                  (d)    it is an abuse of the Court's process; or
                  (e)    it is frivolous, vexatious, scandalous or improper.
5          (2)   If the Court strikes out all of a case statement the Court may
                 give judgment accordingly without a trial.
           (3)   The Court may set aside a judgment given under subsection (2)
                 and may do so on conditions as to the payment of costs or as to
                 other matters.

10   18.         Summary judgment, Court may give
           (1)   The Court may give judgment against a claim without a trial if
                 the party making the claim does not satisfy the Court that the
                 claim has a reasonable prospect of succeeding.
           (2)   The Court may give judgment in favour of a claim without a
15               trial if the party defending the claim does not satisfy the Court
                 that the defence has a reasonable prospect of succeeding.
           (3)   In order to determine whether a claim or a defence has a
                 reasonable prospect of succeeding, the Court may determine any
                 necessary question of fact or law.
20         (4)   If under subsection (3) the Court determines one or more
                 questions of law and there is no question of fact or mixed fact
                 and law in issue between the parties, the determination of the
                 question of law is final for the purposes of proceedings in the
                 Court in relation to the case concerned.
25         (5)   The powers in subsections (1), (2) and (3) may be exercised --
                  (a)    in relation to all or a part of a claim or a defence; and
                  (b)    regardless of which party, or of whether any party, has
                         made an application to the Court for their exercise.
           (6)   The Court may set aside a judgment given under this section
30               and may do so on conditions as to the payment of costs or as to
                 other matters.

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           (7)   No appeal lies against the Court's decision to refuse to give
                 judgment under subsection (1) or (2).

     19.         Default by party, Court's powers to deal with
           (1)   This section does not apply to a failure to comply with the
5                judgment of the Court in a case or any order made in or as a
                 consequence of the judgment.
           (2)   If a party does not comply with this Act, rules of court, or an
                 order or direction made by the Court, the Court may --
                   (a) order the party to pay the costs occasioned by the
10                        non-compliance irrespective of whether the party
                          ultimately succeeds in the case; or
                   (b) give judgment against the party without a trial.
           (3)   The Court may set aside a judgment given under subsection (2)
                 and may do so on conditions as to the payment of costs or as to
15               other matters.

     20.         Procedural orders may be made conditional
           (1)   When making an order under section 16, 17, 18 or 19 the Court
                 may order that the order is to take effect unless the party
                 complies with a particular rule of court, order, or direction,
20               within a particular time, as specified by the Court.
           (2)   The Court may vary or cancel an order made under
                 subsection (1).

     21.         Persons under legal disability, claims by or against
           (1)   A person under 18 years of age who is or intends to be a party to
25               a case must have a litigation guardian to conduct the case on his
                 or her behalf unless the Court orders otherwise.
           (2)   The Court may appoint a person who is not under a legal
                 disability to be the litigation guardian of a person under 18 years
                 of age who is or intends to be a party to a case.



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                                     Magistrates Court (Civil Proceedings) Bill 2003
                                                 General procedure            Part 3

                                                                                s. 22



           (3)   If a party to a case is not a represented person under the
                 Guardianship and Administration Act 1990 but the Court
                 suspects on reasonable grounds that the party may be in need of
                 a guardian or administrator under that Act, the Court may --
5                  (a) request the Public Advocate to investigate whether the
                          party is in such need; and
                   (b) adjourn the case until the Court is advised by the Public
                          Advocate of the result of the investigation.
           (4)   The settlement of a case in which there is a claim by or against a
10               person under a legal disability is not valid unless the Court
                 approves it.
           (5)   The Court may approve such a settlement and may do so on any
                 reasonable and necessary terms.

     22.         Venue, changing
15         (1)   If the Court is satisfied that it would be more convenient, or fair,
                 to the parties if the whole or a part of the proceedings in a case
                 were conducted at another place in the State (whether or not a
                 registry of the Court is there), the Court may order accordingly.
           (2)   An order may be made under subsection (1) only on the
20               application of a party of which any other party has had notice.
           (3)   If the Court makes an order under subsection (1) it may make
                 any necessary ancillary or consequential order.
           (4)   A decision made under subsection (1) by the Court constituted
                 by a magistrate cannot be appealed.

25   23.         Mediation, use of
           (1)   The Court, with or without the consent of the parties, may order
                 that a case, or any issue arising in it, be mediated.
           (2)   The cost of a mediator who is not a registrar is to be paid by the
                 parties in equal shares unless the Court orders, or the parties
30               agree, otherwise.


                                                                             page 19
     Magistrates Court (Civil Proceedings) Bill 2003
     Part 3         General procedure

     s. 24



     24.         Experts, use of
           (1)   The Court, with or without the consent of the parties, may refer
                 a question arising in a case to a person who is an expert in the
                 relevant field for investigation and a report.
5          (2)   The expert has and may exercise any powers of the Court that
                 are delegated to experts by rules of court for the purposes of this
                 section.
           (3)   The Court may adopt all or some of the expert's report.
           (4)   The cost of the expert's investigation and report is to be paid by
10               the parties in equal shares unless the Court orders, or the parties
                 agree, otherwise.
           (5)   The Magistrates Court Act 2004 section 37 applies to an expert
                 in respect of his or her performance or purported performance
                 of the functions of an expert under this section.

15   25.         Costs
           (1)   The Court may order a party to a case to pay the whole or a part
                 of another party's costs in the case.
           (2)   A successful party is entitled to an order under subsection (1)
                 that the whole of its costs in the case be paid by the
20               unsuccessful party, unless the Court considers there is good
                 reason not to make such an order or subsection (5) applies.
           (3)   An order may be made under subsection (1) in a case even if the
                 case is outside the Court's jurisdiction.
           (4)   An order may be made under subsection (1) at any stage of the
25               proceedings in a case.
           (5)   In a case where --
                   (a) the value of the claim, or of the relief claimed, by the
                         claimant is not more than the minor cases jurisdictional
                         limit; and



     page 20
                               Magistrates Court (Civil Proceedings) Bill 2003
                                           General procedure            Part 3

                                                                          s. 25



             (b)   the claimant did not elect to have the claim dealt with
                   under the minor cases procedure or, under section 28(3),
                   the court ordered that the case be dealt with under the
                   general procedure,
5           the Court may only make an order under subsection (1) in
            favour of a successful party if the order would be permitted by
            section 31 were the case being dealt with under the minor cases
            procedure.
      (6)   If in a case referred to in subsection (5) judgment is given under
10          section 18 as a result of an application by the successful party,
            any order made under this section in favour of the party may, in
            addition to relating to any allowable costs referred to in
            section 31, include the party's costs of the application under
            section 18.
15    (7)   The amount of any costs to be paid is to be determined by the
            Court unless the parties concerned agree on the amount.
      (8)   The amount of any costs to be paid in respect of work done by a
            lawyer in conducting any proceedings in the case is to be
            determined under the applicable costs determination.
20    (9)   If the Court orders the costs of a self-represented party to be
            paid by another party, the Court may order that the whole or a
            part of the expenses or losses incurred by the self-represented
            party in or in connection with conducting the case be included
            in the costs.
25   (10)   If the Court is satisfied that due to the acts or omissions of a
            lawyer, whether personally or through an employee or agent --
              (a) costs have been incurred improperly or without
                    reasonable cause; or
              (b) costs have been wasted by undue delay or by any
30                  misconduct or default,




                                                                      page 21
     Magistrates Court (Civil Proceedings) Bill 2003
     Part 3         General procedure

     s. 25



               the Court may order all or any of the following --
                 (c) the lawyer to be wholly or partially disentitled to costs
                      from the lawyer's client;
                 (d) the lawyer to repay to the lawyer's client the whole or a
5                     part of any costs that the lawyer has been paid by the
                      client for items other than disbursements;
                 (e) the lawyer to pay to the lawyer's client the whole or a
                      part of any costs that the client is ordered to pay to
                      another party;
10                (f) the lawyer personally to indemnify any party other than
                      the lawyer's client against the whole or a part of the
                      costs payable by the indemnified party.
       (11)    The Court must not make an order under subsection (10) unless
               it has informed the lawyer of the proposed order and allowed
15             the lawyer to call evidence and make submissions in relation to
               the proposed order.
       (12)    If an order is made under subsection (10)(c), the lawyer must
               not charge and cannot recover the costs concerned.




     page 22
                                    Magistrates Court (Civil Proceedings) Bill 2003
                                             Minor cases procedure           Part 4

                                                                                s. 26



                       Part 4 -- Minor cases procedure
     26.         Interpretation
           (1)   In this Part --
                 "general procedure" means the procedure prescribed by Part 3
5                    and the rules of court other than rules of court made for the
                     purposes of this Part;
                 "minor case" means --
                     (a) a claim within the jurisdiction of the Court where --
                              (i) the value of the claim or of the relief claimed
10                                 is not more than the minor cases jurisdictional
                                   limit; and
                             (ii) the claimant has elected to have the claim
                                   dealt with under the minor cases procedure;
                     (b) a matter within the jurisdiction of the Court referred
15                         to in section 8 that is declared to be a minor case for
                           the purposes of this Act by the written law that
                           confers jurisdiction on the Court to deal with the
                           matter; or
                     (c) any other claim within the jurisdiction of the Court
20                         (including a claim within the jurisdiction of the Court
                           by virtue of a consent given under section 6(1)(f))
                           that the parties agree is to be treated as a minor case.

     27.         Object of minor cases procedure
           (1)   The primary object of the Court when dealing with a minor case
25               is to attempt to bring the parties to a settlement acceptable to all
                 the parties.
           (2)   The Court may, at any stage of the proceedings, do all things
                 and take all such steps as it considers to be appropriate to
                 achieve that primary object.




                                                                             page 23
     Magistrates Court (Civil Proceedings) Bill 2003
     Part 4         Minor cases procedure

     s. 28



           (3)   Anything said or done by a party for the purpose of attempting
                 to settle a minor case is to be taken to be said or done without
                 prejudice to any evidence or submission that the party --
                   (a) has adduced or made; or
5                  (b) may subsequently adduce or make,
                 in or in respect of the proceedings, and the saying or doing of
                 that thing does not disqualify the person or persons constituting
                 the Court from sitting or continuing to deal with the case.
           (4)   If the Court is unable to bring the parties to a settlement
10               acceptable to all the parties, the Court must deal with the minor
                 case.

     28.         Minor cases procedure, general provisions
           (1)   The Court must deal with a minor case in accordance with the
                 minor cases procedure unless an order has been made under
15               subsection (2) or (3).
           (2)   The Court must order that a minor case be dealt with under the
                 general procedure if the case involves any jurisdiction conferred
                 on the Court by a law of the Commonwealth.
           (3)   The Court may order that a minor case be dealt with under the
20               general procedure if --
                   (a) all the parties so request; or
                   (b) the case involves an important principle of law or
                         complex facts or issues.
           (4)   If a minor case involves a counterclaim that is not a minor case
25               the Court may --
                   (a) with the consent of the parties, deal with the whole of
                         the minor case under the minor cases procedure; or
                   (b) otherwise --
                           (i) order the counterclaim to be dealt with as a
30                              separate case under the general procedure; or


     page 24
                                    Magistrates Court (Civil Proceedings) Bill 2003
                                             Minor cases procedure           Part 4

                                                                                   s. 29



                          (ii)   if the claimant so requests, order the whole of the
                                 minor case to be dealt with under the general
                                 procedure.
           (5)   Subsection (4) does not affect the operation of section 9.

5    29.         Proceedings to be private and informal
           (1)   All proceedings of the Court when dealing with a minor case are
                 to be held in private unless the Court otherwise orders.
           (2)   Relatives and friends of a party may be present at the
                 proceeding unless the Court otherwise orders.
10         (3)   In dealing with a minor case the Court is to act with as little
                 formality as the Court thinks is reasonable.
           (4)   When dealing with a minor case the Court is not bound by rules
                 or practice as to evidence but may inform itself on any matter in
                 such manner as it thinks fit.

15   30.         Representation of parties
           (1)   In this section --
                 "agent" means a lawyer or any other person.
           (2)   Despite section 44(2), a party to a minor case is not entitled to
                 be represented before the Court but --
20                 (a) a party referred to in section 44(2)(b) or (c) may be
                         represented by a person who may represent the party
                         under paragraph (b) or (c) of section 44(2); and
                   (b) any party may be represented by an agent with the leave
                         of the Court given under this section.
25         (3)   The Court may give a party leave to be represented by an agent
                 who is not a lawyer --
                  (a) in proceedings, not being the trial of the case, if the
                        proceedings are prescribed by the regulations; or



                                                                              page 25
     Magistrates Court (Civil Proceedings) Bill 2003
     Part 4         Minor cases procedure

     s. 30



                 (b)   in the trial of the case, if the Court considers that the
                       party should be given leave so that the party is not
                       unfairly disadvantaged.
        (4)    Except in the case of a consumer/trader claim, the Court may
5              give a party leave to be represented by a lawyer --
                 (a) in proceedings prescribed under subsection (3)(a);
                 (b) if all parties agree; or
                 (c) if the Court is satisfied that it is in the interests of justice
                       for the party to be represented by a lawyer.
10      (5)    The Court may give a party to a consumer/trader claim leave to
               be represented by a lawyer --
                 (a) if all parties agree; or
                 (b) if the Court is satisfied that none of the other parties will
                       be unfairly disadvantaged as a result.
15      (6)    If it appears to the Court that it should give leave for a party to
               be represented by an agent, the Court --
                 (a) if a particular agent is proposed for its approval, must
                        satisfy itself that the proposed agent has sufficient
                        knowledge of the issue in dispute and is vested with
20                      sufficient authority to bind the party; and
                 (b) may give leave subject to any reasonable conditions
                        needed to ensure that none of the other parties will be
                        unfairly disadvantaged as a result.
        (7)    If the Court gives leave subject to conditions, the entitlement of
25             a party to be represented by an agent is subject to compliance
               with those conditions.
        (8)    The Court may revoke leave for a party to be represented by an
               agent if the agent does not conduct himself or herself in a proper
               manner when representing the party.
30      (9)    A contravention of this section in a case does not invalidate any
               order made, or the judgment, in the case.


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                                    Magistrates Court (Civil Proceedings) Bill 2003
                                             Minor cases procedure           Part 4

                                                                                s. 31



      (10)       Leave given under this section does not authorise an agent who
                 is not a lawyer to claim, receive or recover, directly or
                 indirectly, money or other remuneration for representing a
                 party.

5    31.         Costs
           (1)   In this section --
                 "allowable costs" means --
                      (a) the court fees and service fees paid by a successful
                             party; and
10                    (b) the costs of enforcing a judgment.
           (2)   A successful party to a minor case is entitled to an order under
                 section 25(1) in relation to the party's allowable costs but not in
                 relation to the party's other costs in the case.
           (3)   Despite subsection (2), the Court may make an order under
15               section 25(1) as to the payment of the party's other costs by
                 another party if it is satisfied that --
                   (a) because of the existence of exceptional circumstances an
                         injustice would be done to the successful party if that
                         party's other costs were not ordered to be paid; or
20                 (b) the unsuccessful party's claim or defence was wholly
                         without merit.

     32.         Appeals
           (1)   Except as provided by this section, no appeal lies against --
                  (a) an order made by the Court in the course of proceedings
25                      in a minor case; or
                  (b) the judgment of the Court in a minor case.
           (2)   If a party to a minor case is dissatisfied with the judgment of the
                 Court in the case then --
                   (a) if the Court was constituted by a magistrate -- an appeal
30                        lies against the judgment under Part 7 and, subject to
                          subsection (3), Part 7 applies to the appeal; or

                                                                            page 27
     Magistrates Court (Civil Proceedings) Bill 2003
     Part 4         Minor cases procedure

     s. 33



                  (b)   if the Court was not constituted by a magistrate -- the
                        party may appeal to a magistrate under and subject to
                        the rules of court and this section.
           (3)   Despite Part 7 an appeal against a judgment in a minor case may
5                only be made on the grounds --
                   (a) that the minor case --
                           (i) was not within the jurisdiction of the Court; or
                          (ii) was not a minor case;
                  (b) that in dealing with the minor case there was a denial of
10                      natural justice; or
                   (c) that the judgment was beyond the Court's jurisdiction.
           (4)   A magistrate who deals with an appeal under this section
                 against a judgment may --
                   (a) confirm, vary or set aside all or a part of the judgment;
15                 (b) give any judgment and make any order that it could have
                         given or made in, or order a new trial of, the minor case;
                   (c) make an order as to the costs of the appeal;
                   (d) make any orders that are necessary as a result of other
                         orders it has made.

20   33.         Rules of court for minor cases procedure
                 Rules of court made for the purposes of this Part may --
                  (a) provide for the procedures to be followed when
                        conducting a minor case;
                  (b) specify the circumstances in which any of the Court's
25                      powers in Part 3 may be exercised;
                  (c) provide that all or some of the general procedure, with
                        or without modifications, applies to minor cases.




     page 28
                                     Magistrates Court (Civil Proceedings) Bill 2003
                                                          Mediation           Part 5

                                                                               s. 34



                               Part 5 -- Mediation
     34.         Interpretation
                 In this Part, unless the contrary intention appears --
                 "compulsory mediation" means mediation carried out by a
5                     mediator in accordance with an order of the Court and the
                      rules of court;
                 "mediator" means a mediator appointed or agreed under
                      section 35.

     35.         Mediator, appointment of
10               If the Court orders that a case, or any issue arising in it, be
                 mediated --
                   (a) the Court may appoint a registrar or another person as
                         the mediator; or
                   (b) the parties may agree on who is to be the mediator.

15   36.         Mediator, protection of
                 The Magistrates Court Act 2004 section 37 applies to a
                 mediator in respect of his or her performance or purported
                 performance of the functions of a mediator when carrying out
                 compulsory mediation as if the mediator were a Court officer.

20   37.         Compulsory mediation, privilege of proceedings etc.
           (1)   In this section --
                 "costs application" means an application for the costs of a
                     compulsory mediation or of the case to which the
                     compulsory mediation relates.
25         (2)   Evidence of --
                  (a) anything said or done;
                  (b) any communication, whether oral or written; or



                                                                            page 29
     Magistrates Court (Civil Proceedings) Bill 2003
     Part 5         Mediation

     s. 37



                 (c)   any admission made,
               in the course of, or for the purpose of, attempting to settle a case
               by compulsory mediation is to be taken to be in confidence and
               is not admissible in any proceedings before any court, tribunal
5              or body unless subsection (4) applies.
        (3)    Each of the following --
                (a) a document prepared in the course of, or for the purpose
                      of, attempting to settle a case by compulsory mediation;
                (b) a copy of such a document; or
10              (c) evidence of such a document,
               is to be taken to be subject to a duty of confidence and is not
               admissible in any proceedings before any court, tribunal or body
               unless subsection (4) applies.
        (4)    Evidence or a document referred to in subsection (2) or (3) is
15             admissible in proceedings if --
                 (a) the parties to the compulsory mediation consent to the
                      admission of the evidence or document;
                 (b) there is a dispute in the proceedings as to whether the
                      parties to the compulsory mediation entered into a
20                    binding agreement settling all or any of their differences
                      and the evidence or document is relevant to that dispute;
                 (c) the proceedings relate to a costs application and, under
                      the rules of court, the evidence or document is
                      admissible for the purposes of determining any question
25                    of costs; or
                 (d) the proceedings relate to any act or omission in
                      connection with which a disclosure has been made under
                      section 38(2)(c).
        (5)    A mediator cannot be compelled to give evidence of anything
30             referred to in subsection (2) or (3) or to produce a document or a
               copy of a document referred to in subsection (3) except --
                 (a) in proceedings referred to in subsection (4)(d); or

     page 30
                                   Magistrates Court (Civil Proceedings) Bill 2003
                                                        Mediation           Part 5

                                                                              s. 38



                  (b)   in proceedings relating to a costs application where there
                        is a dispute as to a fact stated or a conclusion reached in
                        a mediator's report prepared under the rules of court on
                        the failure of a party to cooperate in the mediation and
5                       the evidence or document is relevant to that dispute.

     38.         Mediator, duty of confidentiality
           (1)   A mediator must not disclose any information obtained in the
                 course of, or for the purpose of, carrying out compulsory
                 mediation.
10         (2)   Subsection (1) does not apply if --
                  (a)   the disclosure is made for the purpose of reporting under
                        the rules of court on any failure by a party to cooperate
                        in compulsory mediation;
                  (b)   the disclosure is made with the consent of the parties
15                      involved in the compulsory mediation;
                  (c)   there are reasonable grounds to believe that the
                        disclosure is necessary to prevent or minimise the
                        danger of injury to any person or damage to any
                        property; or
20                (d)   the disclosure is authorised by law or is required by or
                        under a law of the State (other than a requirement
                        imposed by a summons or other compulsory process) or
                        of the Commonwealth.




                                                                           page 31
     Magistrates Court (Civil Proceedings) Bill 2003
     Part 6         Transferring cases to superior courts

     s. 39



             Part 6 -- Transferring cases to superior courts
     39.         Transfer of Magistrates Court case to superior court
           (1)   In this section --
                 "superior court" means the District Court or the Supreme
5                    Court.
           (2)   A party to a case in the Court may apply to a superior court for
                 an order that all or a part of the case be transferred to the
                 superior court.
           (3)   The application must be made in accordance with rules of court
10               that apply in the superior court.
           (4)   The superior court may make such an order if it is satisfied that
                 all or a part of the case is within its jurisdiction and --
                   (a) involves a claim by the claimant or another party, or an
                          issue, that is outside the Magistrates Court's jurisdiction;
15                        or
                  (b)    should be dealt with by the superior court because of its
                         complexity or because of a question of law involved.
           (5)   A superior court that makes an order under subsection (4) may
                 also make any other necessary orders including orders as to --
20                 (a) the registry of the superior court in which the case is to
                        be conducted;
                   (b) the payment of fees in the superior court; and
                   (c) the costs in the case in relation to proceedings in the
                        Magistrates Court.
25         (6)   On receiving an order made under subsection (4) a registrar of
                 the Magistrates Court is to send the Court's file to the superior
                 court.
           (7)   If an order is made under subsection (4) the superior court is to
                 deal with the case as if it had been commenced in that court.



     page 32
                                   Magistrates Court (Civil Proceedings) Bill 2003
                                                          Appeals           Part 7

                                                                             s. 40



                                 Part 7 -- Appeals
     40.         Appeal from Magistrates Court to District Court
           (1)   A party to a case that is not a minor case may appeal to the
                 District Court against --
5                 (a) any order made by the Magistrates Court in the course
                         of proceedings in the case; or
                  (b) the judgment of the Magistrates Court in the case.
           (2)   An appeal against the judgment of the Magistrates Court in a
                 case that is a minor case is subject to section 32.
10         (3)   The appeal must --
                  (a)   be commenced within 21 days after the date of
                        judgment; and
                  (b)   be conducted in accordance with rules of court made by
                        the District Court.
15         (4)   The District Court must decide the appeal on --
                  (a) the material and evidence that were before the
                        Magistrates Court; and
                  (b) any other evidence that it gives leave to be admitted.
           (5)   Leave may only be given under subsection (4)(b) in exceptional
20               circumstances.
           (6)   Subsection (4) does not prevent the District Court from dealing
                 with an appeal against a decision of the Magistrates Court to
                 admit or refuse to admit any evidence.

     41.         Transfer of District Court appeal to Full Court
25         (1)   If an appeal under section 40 is pending in the District Court, a
                 party to the appeal may apply to the Supreme Court for an order
                 that the appeal be transferred to the Full Court.
           (2)   The application must be made in accordance with rules of court
                 made by the Supreme Court.

                                                                          page 33
     Magistrates Court (Civil Proceedings) Bill 2003
     Part 7         Appeals

     s. 42



           (3)   The Supreme Court may order that the appeal be transferred to
                 the Full Court if it is satisfied that the appeal should be dealt
                 with by the Full Court because of its complexity or because of a
                 question of law involved.
5          (4)   If the Supreme Court orders that the appeal be transferred to the
                 Full Court, section 40(4) to (6), with any necessary changes,
                 apply and the appeal must be conducted in accordance with
                 rules of court made by the Supreme Court.

     42.         Appeal from District Court to Full Court
10         (1)   A party to an appeal made to the District Court under section 40
                 may appeal to the Full Court of the Supreme Court against the
                 District Court's judgment on the appeal.
           (2)   The appeal must --
                  (a) be commenced within 21 days after the date of the
15                      District Court's judgment; and
                  (b) be conducted in accordance with rules of court made by
                        the Supreme Court.
           (3)   The Full Court must decide the appeal on --
                  (a)   the material and evidence that were before the
20                      Magistrates Court;
                  (b)   the material that was before the District Court and any
                        other evidence that the District Court admitted; and
                  (c)   any other evidence that the Full Court gives leave to be
                        admitted.
25         (4)   Leave may only be given under subsection (3)(c) in exceptional
                 circumstances.
           (5)   Subsection (3) does not prevent the Full Court from dealing
                 with an appeal against a decision of the District Court to admit
                 or refuse to admit any evidence.




     page 34
                                    Magistrates Court (Civil Proceedings) Bill 2003
                                                           Appeals           Part 7

                                                                                s. 43



     43.         Appeal court's powers
           (1)   This section applies to a court (the "appeal court") that is
                 dealing with an appeal under section 40, 41 or 42 against an
                 order or judgment of another court (the "lower court").
5          (2)   The appeal court may ascertain what material or evidence was
                 before the lower court in any manner that it considers sufficient.
           (3)   The appeal court may strike out the appeal if the likely costs of
                 the appeal to the parties would be disproportionate to the
                 amount of the claim in, or the nature of, the case which is the
10               subject of the appeal.
           (4)   The appeal court may strike out any ground of the appeal if --
                  (a) there is no reasonable basis for it;
                  (b) it does not have a reasonable prospect of succeeding;
                  (c) although it has a reasonable prospect of succeeding, no
15                      miscarriage of justice would occur by striking it out; or
                  (d) it is frivolous, vexatious, scandalous or improper.
           (5)   The appeal court may make an order under subsection (3) or (4)
                 on its own initiative.
           (6)   If the appeal court strikes out all of the grounds of the appeal the
20               court may give judgment accordingly without a full hearing of
                 it.
           (7)   The appeal court may --
                  (a) confirm, vary or set aside all or a part of the lower
                        court's judgment;
25                (b) give any judgment and make any order that the
                        Magistrates Court could have given or made;
                  (c) order a new hearing in, or trial of, the case to be held in
                        the Magistrates Court;
                  (d) order the Magistrates Court to enter judgment in favour
30                      of a party;


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    Magistrates Court (Civil Proceedings) Bill 2003
    Part 7         Appeals

    s. 43



               (e)   make an order as to the costs of the appeal and as to the
                     costs in the Magistrates Court and, in an appeal to the
                     Full Court, as to the costs in the District Court;
               (f)   make any orders that are necessary as a result of other
5                    orders it has made.




    page 36
                                   Magistrates Court (Civil Proceedings) Bill 2003
                                                   Miscellaneous            Part 8

                                                                              s. 44



                            Part 8 -- Miscellaneous
     44.         Representation of parties
           (1)   A party to a case is personally entitled to appear before the
                 Court in order to present and conduct the party's case and to
5                call, examine, cross-examine, and re-examine witnesses.
           (2)   Subject to section 30(2), the entitlement under subsection (1)
                 may be performed on the party's behalf --
                  (a) by a lawyer, regardless of whether the party is referred
                        to in paragraph (b) or (c);
10                (b) if the party is a corporation, by one of its officers whom
                        it has authorised to do so;
                  (c) if the party is --
                           (i) a police officer or other public officer acting in
                                 the course of duty; or
15                        (ii) a public authority,
                        and the case involves jurisdiction of the Court that is
                        referred to in section 8 and prescribed by the
                        regulations -- by a person who is prescribed by the
                        regulations as a person who may do so; or
20                (d) with the Court's leave, by a person who is not a lawyer,
                 unless another written law expressly provides otherwise.
           (3)   The Court may only give leave under subsection (2)(d) in
                 exceptional circumstances.
           (4)   A person who is not a lawyer and who, having been given leave
25               under subsection (2)(d), performs any act referred to in
                 subsection (1) on behalf of a party is not entitled to claim,
                 receive or recover, directly or indirectly, money or other
                 remuneration for doing so.




                                                                            page 37
     Magistrates Court (Civil Proceedings) Bill 2003
     Part 8         Miscellaneous

     s. 45



     45.         Court to be open to public, publicity
           (1)   All proceedings in the Court's civil jurisdiction are to be
                 conducted in open court unless this Act, the rules of court or
                 another written law provides otherwise.
5          (2)   On an application by a party to a case or on its own initiative,
                 the Court may order a person who may be called as a witness in
                 the proceedings --
                   (a) to leave the courtroom and to remain out of hearing of
                         the courtroom until called to give evidence;
10                 (b) not to discuss his or her evidence with a person or
                         persons specified by the Court.
           (3)   On an application by a party to a case, or on its own initiative,
                 the Court may, if satisfied it is in the interests of justice to do
                 so --
15                 (a) order any or all persons, or any class of persons, to be
                        excluded from the courtroom during the whole of the
                        proceedings, or a part of them specified by the Court;
                   (b) make an order that prohibits or restricts the publication
                        outside the courtroom of the whole of the proceedings,
20                      or a part or particular of them specified by the Court.
           (4)   An order made under subsection (3) may be made subject to
                 conditions specified by the Court.
           (5)   A person who, under section 44(2), is entitled to act on behalf of
                 a party to the proceedings is not to be excluded from the
25               courtroom under this section.
           (6)   A person who contravenes an order made under this section is
                 guilty of a contempt of the Court.

     46.         Enforcement of judgments
                 The Civil Judgments Enforcement Act 2004 applies to a
30               judgment of the Magistrates Court in its civil jurisdiction.



     page 38
                                    Magistrates Court (Civil Proceedings) Bill 2003
                                                    Miscellaneous            Part 8

                                                                               s. 47



     47.         Rules of court, making
                 Rules of court for the purposes of this Act are to be made by the
                 Court in accordance with the Magistrates Court Act 2004
                 section 39.

5    48.         Rules of court, content
           (1)   The rules of court may regulate the practice and procedure to be
                 followed in the Court and its registries, either generally or in
                 relation to particular cases or to the exercise by the Court of any
                 particular aspect of its civil jurisdiction.
10         (2)   Without limiting subsection (1), the rules of court may --
                  (a) subject to any regulations made for the purposes of the
                       Magistrates Court Act 2004 section 7(2) prescribe the
                       cases that may be dealt with by the Court when
                       constituted by other than a magistrate;
15                (b) regulate where and how cases are to be commenced,
                       defended and conducted;
                  (c) provide for a claim for the recovery of possession of real
                       property to be made where the person seeking
                       possession does not know the name of the person in
20                     possession;
                  (d) provide for the procedure in cases involving members of
                       partnerships or persons under a legal disability or claims
                       by or against multiple persons;
                  (e) require parties or their lawyers to verify or certify the
25                     truth and correctness of documents lodged with the
                       Court by means of a statement on oath or a statutory
                       declaration or otherwise;
                   (f) regulate the lodging of documents with the Court and
                       the service of documents on parties and others;
30                (g) provide for bringing documents to the notice of a person
                       without serving the document on the person;



                                                                            page 39
     Magistrates Court (Civil Proceedings) Bill 2003
     Part 8         Miscellaneous

     s. 49



                (h)    regulate the conduct and management of cases before
                       they are tried;
                 (i)   regulate the trial of cases;
                 (j)   regulate how and when applications in the course of the
5                      proceedings in a case are to be made;
                (k)    provide for payments into court and the consequences of
                       doing so;
                 (l)   regulate the form in which evidence may be taken or
                       received by the Court;
10              (m)    provide for when a document disclosed by a party may
                       be admitted into evidence without formal proof of the
                       document;
                (n)    regulate the referral by the Court of claims to, and
                       payment of, mediators and experts;
15              (o)    provide for the rehearing or review by a magistrate of a
                       decision made by the Court when constituted by other
                       than a magistrate;
                (p)    require a party to provide security for costs that may be
                       payable by the party;
20              (q)    regulate the making of orders as to costs and the
                       determination of the amount of costs;
                 (r)   provide for the forms to be used in the Court or for
                       forms to be approved by the Chief Magistrate.

     49.       Regulations
25             The Governor may make regulations prescribing all matters and
               things that, by this Act, are required or permitted to be
               prescribed, or that are necessary or convenient to be prescribed
               for giving effect to this Act other than in respect of the fees to
               be paid in respect of or in connection with any case.




     page 40
                                      Magistrates Court (Civil Proceedings) Bill 2003



                                                                                              Defined Terms



                                      Defined Terms
      [This is a list of terms defined and the provisions where they are defined.
                             The list is not part of the law.]
Defined Term                                                                                          Provision(s)
agent ..........................................................................................................30(1)
allowable costs ...........................................................................................31(1)
appeal court................................................................................................43(1)
applicable costs determination ..................................................................... 3(1)
case............................................................................................................. 3(1)
case management power .............................................................................. 3(1)
case statement ............................................................................................. 3(1)
claim........................................................................................................... 3(1)
claimant .............................................................................................. 3(1), 7(3)
compulsory mediation .................................................................................... 34
consumer .................................................................................................... 7(1)
consumer/trader claim ................................................................................. 3(1)
contract ....................................................................................................... 7(1)
corporation.................................................................................................. 3(1)
costs application.........................................................................................37(1)
counterclaim ............................................................................................... 9(1)
Court........................................................................................................... 3(1)
defence........................................................................................................ 3(1)
general procedure .......................................................................................26(1)
goods .......................................................................................................... 7(1)
jurisdictional limit ............................................................................................ 4
lawyer ......................................................................................................... 3(1)
lower court.................................................................................................43(1)
magistrate ................................................................................................... 3(1)
mediator......................................................................................................... 34
minor case......................................................................................... 3(1), 26(1)
minor cases jurisdictional limit ...................................................................26(1)
minor cases procedure ................................................................................26(1)
officer ......................................................................................................... 3(1)
order ........................................................................................................... 3(1)
party............................................................................................................ 3(1)
person under a legal disability...................................................................... 3(1)
public authority ........................................................................................... 3(1)
rules of court ............................................................................................... 3(1)
services ....................................................................................................... 7(1)
settle ........................................................................................................... 3(1)
superior court .............................................................................................39(1)
trader .......................................................................................................... 7(1)



 


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