Magistrates Court (Administrative Appeals Division) Act 2001
An Act to establish an administrative appeals division of the Magistrates Court and to provide for incidental matters
[Royal Assent 30 October 2001]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART 1 - Preliminary
This Act may be cited as the Magistrates Court (Administrative Appeals Division) Act 2001 .
This Act commences on a day to be proclaimed.
(1) In this Act, unless the contrary intention appears –Administrator means the Administrator of the Magistrates Court;application – see section 50 ;approved means approved by the Chief Magistrate;Chief Magistrate means the Chief Magistrate of the Magistrates Court;Court means the Magistrates Court (Administrative Appeals Division);decision has the meaning given by section 4 ;decision-maker has the meaning given by section 5 ;enactment means an Act (other than this Act) or a statutory rule (other than a statutory rule made under this Act);exercise a function includes perform a duty;function includes a power, authority or duty;interested person means a person who is entitled under an enactment to make an application to the Court for a review of a reviewable decision;[Section 3 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008][Section 3 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] legal practitioner means an Australian legal practitioner;lodge a document includes file a document;Magistrates Court means the Magistrates Court of Tasmania established by the Magistrates Court Act 1987 ;[Section 3 Subsection (1) amended by No. 6 of 2003, s. 29, Applied:01 Jul 2003] Magistrates Rule Committee means the committee referred to in section 15AC of the Magistrates Court Act 1987 ;parties to proceedings – see section 30 ;registrar means the Administrator or a district registrar, or a deputy district registrar, of the Magistrates Court;regulations means regulations made and in force under this Act;reviewable decision means a decision of a decision-maker that the Court has jurisdiction under an enactment to review;[Section 3 Subsection (1) amended by No. 6 of 2003, s. 29, Applied:01 Jul 2003][Section 3 Subsection (1) amended by No. 6 of 2003, s. 29, Applied:01 Jul 2003] rules of court means rules of court made for this Act by the Magistrates Rule Committee.(2) A reference in this Act to the exercise by the Court of its functions in relation to an enactment includes a reference both to its functions under the enactment and its functions under this Act in relation to the enactment.(3) A reference (however described) in this Act to a decision made under an enactment is taken, in relation to a reviewable decision, to include a reference to any decision made in the exercise of functions identified by the enactment.
(1) A decision includes any of the following:(a) making, suspending, revoking or refusing to make an order or determination;(b) giving, suspending, revoking, terminating or refusing to give a certificate, direction, notice, approval, consent or permission;(c) issuing, varying, suspending, cancelling, revoking or refusing to issue a licence, authority or other instrument;(d) imposing a term, condition or restriction;(e) making an assessment, declaration, demand, determination, reassessment, resolution or requirement;(f) retaining, or refusing to deliver up, an article;(g) doing, or refusing or failing to do, any other act or thing.(2) For the purposes of this Act, a decision is made under an enactment if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enactment.(3) For the purposes of this Act (and without limiting subsection (2) ), a decision that purports to be made under an enactment is taken to be a decision made under the enactment even if the decision was beyond the power of the decision-maker to make it.(4) For the purposes of this Act (and without limiting subsection (2) ), a refusal of a decision-maker to make a decision under an enactment because the decision-maker considers that the decision concerned cannot lawfully be made under the enactment is taken to be a decision made under the enactment to refuse to make the decision requested.(5) For the purposes of this Act, a failure by a decision-maker to make a decision –(a) within the period specified by the enactment concerned for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision; or(b) in respect of which there is no law that fixes a period within which the decision is to be made, within a reasonable time is taken to be a decision by the decision-maker to refuse to make the decision; or(c) within the period extended by the Court under section 19 is taken to be a decision by the decision-maker at the end of that period to refuse to make the decision.
5. Meaning of "decision-maker"
(1) A decision-maker, in relation to a reviewable decision, is the person or body that makes (or is taken to have made) the decision under the enactment concerned.(2) The person or body specified by an enactment as a person or body whose decisions are reviewable decisions is taken to be the only decision-maker in relation to the making of a reviewable decision even if some other person or body also had a role in the making of the decision.
This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.
PART 2 - Establishment of administrative appeals division of the magistrates court
7. Establishment of Administrative Appeals Division of Magistrates Court
There is established a division of the Magistrates Court to be known as the Magistrates Court (Administrative Appeals Division).
The Magistrates Court (Administrative Appeals Division) is to be constituted by a magistrate.
The Magistrates Court (Administrative Appeals Division) has the jurisdiction conferred on it by this Act.
PART 3 - Jurisdiction of the Court
10. Conferral of jurisdiction to review reviewable decisions
(1) The Court has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by a decision-maker –(a) in the exercise of functions conferred or imposed by or under the enactment; or(b) in the exercise of any other functions of the decision-maker identified by the enactment.(2) If an enactment makes provision for applications to be made to the Court in respect of a reviewable decision subject to certain conditions, the Court has jurisdiction under the enactment only if those conditions are satisfied.(3) A provision of an enactment that provides that a decision-maker's decision is a reviewable decision extends to –(a) a decision made by a person to whom the function of making the reviewable decision has been delegated; or(b) if the provision specifies the decision-maker by reference to the holding of a particular office or appointment, a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment; or(c) a decision made by any other person authorised to exercise the function of making the reviewable decision.(4) If a decision-maker makes a reviewable decision by reason of holding or performing the duties of an office or appointment and then ceases to hold or perform the duties of the office or appointment, this Act has effect as if the decision had been made by –(a) the person for the time being holding or performing the duties of that office or appointment; or(b) if there is no person for the time being holding or performing the duties of that office or appointment, or the office no longer exists, such person as the Court specifies.
11. When enactment taken to make contrary provision to this Act
(1) The provisions of this Act have effect subject to any contrary provision being made in a relevant enactment.(2) This section applies to a provision of a relevant enactment whether enacted before or after the commencement of this section.(3) In this section –relevant enactment means an enactment under which the Court has jurisdiction to review a reviewable decision, or that otherwise deals with the jurisdiction of the Court.
PART 4 - Process for review of reviewable decisions
Division 1 - Role of decision-makers
Subdivision 1 - Information concerning decision and review rights
12. Notice of decision and review rights to be given by decision-maker
(1) A decision-maker who makes a reviewable decision must take such steps as are reasonable in the circumstances to give any interested person notice, in writing, of the following:(a) the decision;(b) the right of the person to have the decision reviewed;(c) the right of the person to make a written request to the decision-maker for a statement of the reasons for the decision.(2) However, a decision-maker does not have to give a notice under subsection (1) in relation to –(a) a decision that is taken by this or any other Act to be made because the decision-maker has failed to make a decision within the time limit for making the decision; or(b) any of the following decisions, but only if the decision concerned does not adversely affect the interests of any interested person:(i) a decision not to impose a liability, penalty or any kind of limitation on a person;(ii) a decision making an adjustment to the level of periodic payments to be made to a person as a member of a class of persons where a similar adjustment is being made to the level of such payments to the other members of the class;(iii) if an enactment establishes several categories of entitlement to a monetary or other benefit, a decision that determines a person to be in the most favourable of those categories; or(c) any other decision or class of decisions prescribed by the regulations for the purposes of this paragraph.(3) A contravention of this section does not affect the validity of any decision.
Subdivision 2 - Duty to give reasons on request
13. Duty of decision-maker to give reasons on request
(1) If a decision-maker makes a reviewable decision, an interested person may make a written request to the decision-maker for a statement of the reasons for the decision.(2) As soon as practicable (and in any event within 28 days) after receiving such a request, the decision-maker is to prepare a written statement of reasons for the decision and provide it to the person who requested the statement of reasons.(3) The statement of reasons is to include –(a) the findings on material questions of fact relating to the decision; and(b) a reference to the evidence or other material on which any such findings were based; and(c) the reasons for the decision.(4) The regulations may –(a) exclude any class of reviewable decisions from the application of this section; or(b) alter the period within which a statement of reasons under this section must be given.
14. Decision-maker may refuse reasons in certain cases
(1) A decision-maker may refuse to prepare and provide a statement of reasons requested by a person under this Division if –(a) the decision-maker is of the opinion that the person is not entitled to be given the statement; or(b) in the case of a decision the terms of which were recorded in writing and set out in a document that was provided to the person, the request was not made within 28 days after the person was provided with the document; or(c) in any other case, the request was not made within a reasonable time after the decision was made.(2) A decision-maker who refuses under subsection (1) to prepare and provide a statement of reasons must notify the person requesting the statement, in writing, of the decision-maker's refusal and the reasons for the refusal as soon as practicable (and in any event within 28 days) after the request.(3) A decision-maker is not to refuse to prepare and provide a statement of reasons if –(a) in the case of a refusal based on subsection (1)(a) , the Court declares, on an application made under section 15(1) , that the person who made the request was entitled to make the request; or(b) in the case of a refusal based on subsection (1)(c) , the Court declares, on an application made under section 15(2) , that the person who made the request did so within a reasonable time.(4) If a decision-maker cannot refuse to comply with a request for a statement of reasons because of a decision of the Court referred to in subsection (3) , the decision-maker must prepare the written statement of reasons that was originally requested and provide it to the person who requested it as soon as practicable (and in any event within 28 days) after the Court's decision.
15. Court may determine whether person entitled to reasons or made request within reasonable time
(1) The Court may, on the application of a person who has received notification under section 14(2) , make an order declaring that the person was, or was not, entitled to make the request to which the notification relates.(2) The Court may, on the application of a person who has been refused a statement of reasons under section 14(1)(c) on the basis that the person did not make the request within a reasonable time, make an order declaring that the person did make the request within a reasonable time.
16. Court may order decision-maker to provide statement of reasons or adequate statement of reasons
(1) If an interested person has requested a statement of reasons under section 13 but has not received it within the period specified by or under that section, the Court may (on the application of the person) order the decision-maker concerned to provide the statement of reasons within such time as may be specified in the order.(2) If an interested person who requested a statement of reasons under section 13 is given an inadequate statement of reasons, the Court may (on the application of the person) order the decision-maker concerned to provide an adequate statement of reasons within such time as may be specified in the order.(3) For the purposes of this section, a statement of reasons is an adequate statement of reasons only if it includes the matters referred to in section 13(3) .
Division 2 - Role of Court
Subdivision 1 - Applications for review
(1) A person may apply to the Court for a review of a reviewable decision only if –(a) the application is made by an interested person; and(b) the application is made in the manner prescribed by the rules of court; and(c) the application is made within the prescribed period.(2) For the purpose of subsection (1)(c) –prescribed period means –(a) if the person has requested a statement of reasons under section 13 and was provided with that statement or notified under section 14 of a refusal to provide reasons, 28 days from the date on which the statement of reasons was provided or notification of the refusal to provide reasons was given; or(b) if the person has not requested a statement of reasons under section 13 , 28 days from the date on which the person was notified of the making of the reviewable decision.
(1) An application to the Court cannot be made unless the fee prescribed by the regulations (if any) in respect of the application is paid.(2) An application in respect of which a fee is waived under the regulations (whether at the time of lodgment or otherwise) is taken to be made at the time the application is lodged with the Court.
Despite section 4(5)(a) or (b) , the Court may, on application in writing by a decision-maker, extend the period within which the decision-maker may make the decision if the Court is of the opinion that the decision-maker has provided a reasonable explanation for the delay in making the decision.
20. Late applications to Court
(1) Despite section 17(1)(c) , the Court may, on application in writing by an interested person seeking to make a late application to the Court, extend the period within which the person may make an application if the Court is of the opinion that the person has provided a reasonable explanation for the delay in making the application.(2) The period within which an application for a review of a reviewable decision may be made may be extended under subsection (1) although that period has expired.(3) In this section –late application means an application not made within the prescribed period as defined in section 17(2) .
20A. Court may make application under Vexatious Proceedings Act 2011
[Section 20A Inserted by No. 31 of 2011, Sched. 1, Applied:01 Mar 2013] On receipt of an application under section 17 , the Administrator may apply to the Supreme Court under the Vexatious Proceedings Act 2011 for a vexatious proceedings order in relation to the applicant.
21. Duty of decision-maker to lodge material documents with Court where decision reviewed
(1) A decision-maker whose reviewable decision is the subject of an application for review to the Court must, within 28 days after receiving notice of the application, lodge with the Court –(a) a copy of any statement of reasons given to the applicant under section 13 (or, if no such statement was given to the applicant, a statement of reasons including the matters referred to in section 13(3) ); and(b) a copy of every document or part of a document that is in the possession, or under the control, of the decision-maker that the decision-maker considers to be relevant to the determination of the application by the Court.(2) If the applicant has not been given a statement of reasons under section 13 , the Court may direct that a copy of the statement of reasons lodged with the Court under subsection (1)(a) be given to the applicant within such period or periods as the Court directs.(3) If the Court considers that a party to the proceedings would or might suffer hardship if the period of 28 days provided by subsection (1) is not shortened or extended, the Court may, at the request of the party, make an order directing that the documents referred to in that subsection be lodged with the Court within such shorter or extended period as is specified in the order.(4) If the Court considers that other particular documents (or that other documents included in a particular class of documents) may be relevant to the determination of the application, it may cause a notice in writing to be served on the decision-maker –(a) stating that the Court is of that opinion; and(b) directing the decision-maker concerned to lodge with the Court, before a date specified in the notice, a copy of each of those other documents that is in the possession, or under the control, of the decision-maker.(5) The registrar of the Court is to grant reasonable access to the applicant in the proceedings to any document lodged under this section by a decision-maker.(6) For the purpose of subsection (5) –reasonable access includes, but is not limited to, enabling the applicant to make a photocopy of a document during ordinary business hours.(7) If a party to proceedings before the Court seeks a summons under section 41 against a decision-maker for the production of any document and a copy of that document has been lodged with the Court under subsection (1) or (4) , the Court may (on such conditions as it considers appropriate) direct the registrar to grant the party access to its copy of the document instead of issuing a summons if access to the document could lawfully be required by the issue of a summons.(8) Nothing in this section requires the disclosure of, or the granting of access to, any document in contravention of any of the following:(a) an order made under section 22 ;(b) an order made under section 36 .(9) For the purposes of this section, a reference to a document in the possession of a decision-maker includes a reference to a document to which the decision-maker has an immediate right of access.
(1) A decision-maker may apply to the Court before the expiry of the period referred to in section 21(1) for an order that the decision-maker not be required to lodge a document under section 21 .(2) On any such application, the Court may make an order that a document not be lodged with the Court if it considers that, if an application were made under subsection (2) of section 36 , it would be appropriate to make an order under that subsection prohibiting or restricting the publication or disclosure of evidence of the document.
Subdivision 2 - Effect of pending applications on reviewable decisions
(1) Subject to any other enactment, the making of an application to the Court for a review of a reviewable decision does not –(a) affect the operation of the decision; or(b) prevent the taking of action to implement the decision.(2) Despite subsection (1) , the Court –(a) may, by order, suspend the operation of the decision; and(b) may order a stay of any proceeding under the decision.(3) The Court may make the order –(a) of the Court's own motion; or(b) on the application of the person who made the application for a review of the reviewable decision.
24. Restrictions on ordering stay of proceedings
(1) The Court may not –(a) make an order under section 23 unless the decision-maker who made the decision to which such an order would relate has been given a reasonable opportunity to make submissions in relation to the matter; or(b) make an order varying or revoking an order in force under section 23 (including an order as varied) unless the following persons have been given a reasonable opportunity to make submissions in relation to the matter:(i) the decision-maker who made the decision to which such an order would relate;(ii) the person who requested the making of the order;(iii) if the order has previously been varied by an order or orders under section 23 , the person or persons who requested the making of the only, or the later or latest, such order.(2) This section does not prevent the Court from making an order under section 23 without giving to any person referred to in subsection (1) a reasonable opportunity to make submissions in relation to a matter if the Court is satisfied that, because of the urgency of the case or otherwise, it is not practicable to give the person such an opportunity.(3) If an order under this section is made without giving such an opportunity to the decision-maker who made the decision to which the application relates, the order does not take effect until a notice setting out the terms of the order is served on the decision-maker.
(1) An order in force under section 23 (including an order that has previously been varied on one or more occasions) is subject to such conditions as are specified in the order.(2) Any such order has effect –(a) if a period for the operation of the order is specified in the order, until the expiration of that period or, if the application for a review of a reviewable decision is decided by the Court before the expiration of that period, until the decision of the Court on the application takes effect; or(b) if no period is so specified, until the decision of the Court on the application takes effect.
Subdivision 3 - Powers on review
26. Determination of review by Court
(1) A review of a decision by the Court is to be by way of hearing de novo.(2) In determining an application for a review of a reviewable decision, the Court may exercise all of the functions that are conferred or imposed by any relevant enactment on the decision-maker who made the decision.(3) In determining an application for a review of a reviewable decision, the Court may decide –(a) to affirm the reviewable decision; or(b) to vary the reviewable decision; or(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside; or(d) to set aside the reviewable decision and remit the matter for reconsideration by the decision-maker in accordance with any directions or recommendations of the Court.
27. Application of Government policy
(1) In determining an application for a review of a reviewable decision, the Court must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.(2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter.(3) The certificate is evidence of the Government policy concerned and the Court is to take judicial notice of the contents of that certificate.(4) In determining an application for a review of a reviewable decision, the Court may have regard to any other policy applied by the decision-maker in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.(5) In this section –Government policy means a policy adopted by –that is to be applied in the exercise of discretionary powers by decision-makers.(a) the Cabinet; or(b) the Premier or any other Minister –
28. Power to remit matters to decision-maker for further consideration
(1) At any stage of proceedings to determine an application for a review of a reviewable decision, the Court may remit the decision to the decision-maker who made it for reconsideration of the decision by the decision-maker.(2) If a decision is so remitted to a decision-maker, the decision-maker may reconsider the decision and may –(a) affirm the decision; or(b) vary the decision; or(c) set aside the decision and make a new decision in substitution for the decision set aside.(3) If the decision-maker varies the decision –(a) the application is taken to be an application for review of the decision as varied; and(b) the person who made the application may either –(i) proceed with the application for review of the decision as varied; or(ii) withdraw the application.(4) If the decision-maker sets the decision aside and makes a new decision in substitution for the decision set aside –(a) the application is taken to be an application for review of the new decision; and(b) the person who made the application may either –(i) proceed with the application for review of the new decision; or(ii) withdraw the application.
(1) Subject to subsection (2) , a decision determining an application for a review of a reviewable decision takes effect on the date on which it is given or such later date as may be specified in the decision.(2) If any such decision varies, or is made in substitution for, a decision-maker's decision, the decision of the Court is taken –(a) to be the decision of the decision-maker (other than for the purposes of a review under this Part); and(b) to have had effect as the decision of the decision-maker on and from the date of the decision-maker's actual decision, unless the Court orders otherwise.
PART 5 - Procedure of Court generally
Division 1 - Parties to proceedings
30. Parties to proceedings before Court
(1) The parties to proceedings before the Court for a review of a reviewable decision are –(a) any person who, being entitled to do so, has duly applied to the Court for a review of the decision; and(b) the decision-maker who made the decision; and(c) any other person who has been made a party to the proceedings by the Court in accordance with subsection (2) ; and(d) any person specified by or under any enactment as a party to the proceedings.(2) The Court may, by order, make a person who is not a party to proceedings for a review of a reviewable decision a party to the proceedings, either of its own motion or on the written application of the person, if it is satisfied that the interests of the person are affected by the reviewable decision.(3) A person who is a party to proceedings before the Court –must be described in the proceedings by the person's official title.(a) by reason of a decision made by the person in the performance of the duties of an office or appointment; or(b) by reason of the operation of section 10(4) –
31. Opportunity of parties to make submissions
The Court must ensure that every party to proceedings before the Court is given a reasonable opportunity –(a) to present the party's case (whether at a hearing or otherwise); and(b) to make submissions in relation to the issues in the proceedings.
32. Representation before Court
(1) At the hearing of a proceeding before the Court, a party to the proceeding may –(a) appear in person; or(b) unless any enactment specifically states to the contrary, be represented by a legal practitioner; or(c) if any enactment specifically allows it, be represented by some other class of person specified in that enactment.(2) Despite subsection (1)(b) and (c) , the Court may order that the parties to the proceedings before it may not be represented by a legal practitioner or particular class of person if the Court considers it appropriate.
33. Notice of application to be served on other parties
(1) The registrar must cause notice of an application to the Court to be served on any party (other than the applicant) to the proceedings within such time and in such manner as may be prescribed by the rules of court.(2) It is sufficient compliance with subsection (1) if –(a) the registrar directs the applicant to serve notice referred to in subsection (1) on another party on the registrar's behalf; and(b) notice is served on the other party by the applicant in accordance with the rules of court referred to in subsection (1) .
Division 2 - Other procedural matters
34. Procedure of Court generally
(1) The Court may, subject to this Act and the rules of court, determine its own procedure.(2) The Court is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.(3) The Court is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.(4) The Court is to take such measures as are reasonably practicable –(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions; and(b) if requested to do so, to explain to the parties any aspect of the procedure of the Court, or any decision or ruling made by the Court, that relates to the proceedings; and(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.(5) The Court –(a) is to act as quickly as is practicable; and(b) is to ensure that all relevant material is disclosed to the Court so as to enable it to determine all of the relevant facts in issue in any proceedings; and(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument; and(d) in the case of a hearing, may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases; and(e) may require a document to be served outside the State; and(f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement); and(g) may dismiss at any stage any proceedings before it if the applicant withdraws the application to which the proceedings relate; and(h) may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.
(1) The Court may, before formally commencing to determine an application, confer informally with the parties to the proceedings in a preliminary conference and make any determination with respect to the proceedings that is agreed to by the parties.(2) A determination is not to be made under this section unless the Court is satisfied that the determination is in the best interests of the person whose interests are considered by the Court to be paramount.(3) If the proceedings are not determined under this section and proceed for a formal determination by the Court, evidence is not to be given, and statements are not to be made, concerning any words spoken or acts done at a conference held in accordance with this section unless the parties otherwise agree.
36. Proceedings on hearing to be conducted in public
(1) If proceedings before the Court are to be determined by holding a hearing, the hearing is to be open to the public.(2) However, if the Court is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:(a) an order that the hearing be conducted wholly or partly in private;(b) an order prohibiting or restricting –(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Court or a witness summoned by, or appearing before, the Court); or(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person;(c) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Court;(d) an order prohibiting or restricting the publication of evidence given before the Court, whether in public or in private, or of matters contained in documents lodged with the Court or received in evidence by the Court;(e) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Court, or of the contents of a document lodged with the Court or received in evidence by the Court, in relation to the proceedings.(3) The Court may from time to time vary or revoke an order made under subsection (2) .
37. Circumstances in which hearing may be dispensed with
The Court may determine proceedings by considering the documents or other material lodged with or provided to the Court and without holding a hearing if it appears to the Court that the issues for determination can be adequately determined in the absence of the parties.
38. Amendments and irregularities
(1) The Court may, in any proceedings before it, make any amendments to the proceedings that the Court considers to be necessary in the interests of justice.(2) Any such amendment may be made –(a) at any stage of the proceedings (including the commencement or purported commencement of proceedings); and(b) on such terms as the Court thinks fit (including, if it can award costs in the proceedings, terms as to costs).(3) If this Act or the rules of court are not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings before the Court, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings or any decision in the proceedings.(4) For the purposes of subsection (3) , the Court may wholly or partly set aside the proceedings, a step taken in the proceedings or a decision in the proceedings.
39. Orders for payment of money
Where an order is made by the Court for the payment of a sum of money, the order is taken to be a judgment of the Magistrates Court (Civil Division) and is enforceable as provided by the Magistrates Court (Civil Division) Act 1992 .
40. Powers in relation to witnesses
(1) The Court may –(a) call any witness of its own motion in any proceedings; and(b) examine any witness on oath or affirmation, or by use of a statutory declaration, in any proceedings; and(c) examine or cross-examine any witness to such extent as the Court thinks proper in order to elicit information relevant to the exercise of the functions of the Court in any proceedings; and(d) compel any witness to answer questions which the Court considers to be relevant in any proceedings before it.(2) If the Court decides to call a person as a witness under subsection (1)(a) , the Court may –(a) seek to procure the voluntary attendance of the person before it by notifying the person in such manner as it thinks appropriate in the circumstances; or(b) direct the registrar to issue a summons to compel the attendance of the person before it.(3) Nothing in subsection (1) enables the Court to compel a witness to answer a question if the witness has a reasonable excuse for refusing to answer the question.
(1) A summons for the purposes of this Act may be issued by the registrar –(a) on the application of a party to proceedings before the Court; or(b) at the direction of the Court.(2) Any such summons must be signed by the registrar or as otherwise provided by the rules of court.(3) Any such summons may require a person to do any one or more of the following:(a) attend and give evidence;(b) attend and produce documents or other things.(4) A person who, without reasonable excuse, fails to comply with the requirements of a summons is guilty of an offence.Penalty: Fine not exceeding 10 penalty units.(5) A summons may be served within or outside the State.
42. Power to impose conditions
A power of the Court to make an order or other decision includes a power to make the order or other decision subject to such conditions as the Court specifies when making the order or other decision.
43. Powers when proceedings settled
(1) The Court may, at any stage of proceedings before it, make such orders (including an order dismissing the application that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties to the proceedings if –(a) the terms of the agreed settlement are reduced to writing, signed by or on behalf of the parties and lodged with the Court; and(b) the Court is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement; and(c) the Court is satisfied that the agreed settlement is in the best interests of the person whose interests are considered by the Court to be paramount.(2) The Court may dismiss the application that is the subject of the proceedings if it is not satisfied that –(a) it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement; or(b) the agreed settlement is in the best interests of the person whose interests it considers paramount.(3) Nothing in this section affects the power of the Court to make a determination under section 35 to which the parties to the proceedings concerned agree.
44. Power to correct decisions of Court
(1) If, after the making of a decision by the Court, the Court is satisfied that there is an obvious error in the text of the decision or in a written statement of reasons for the decision, the Court may direct the registrar to alter the text of the decision or statement in accordance with the directions of the Court.(2) If the text of a decision or statement is so altered, the altered text is taken to be the decision of the Court or the reasons for the decision, as the case may be.(3) Examples of obvious errors in the text of a decision or statement of reasons are where –(a) there is an obvious clerical or typographical error in the text of the decision or statement of reasons; or(b) there is an error arising from an accidental slip or omission; or(c) there is a defect of form; or(d) there is an inconsistency between the decision and the statement of reasons.
(1) Subject to this section, each party is to bear their own costs in the proceeding.(2) At any time, the Court may order that a party pay all or a specified part of the costs of another party in a proceeding.(3) The Court may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to –(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as –(i) failing to comply with an order or direction of the Court without reasonable excuse; or(ii) failing to comply with this Act, the rules of court or a relevant enactment; or(iii) asking for an adjournment as a result of subparagraph (i) or (ii) ; or(iv) causing an adjournment; or(v) attempting to deceive another party or the Court; or(vi) vexatiously conducting the proceeding; and(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding; and(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law; and(d) the nature and complexity of the proceeding; and(e) any other matter the Court considers relevant.(4) If the Court considers that the representative of a party, rather than the party, is responsible for conduct described in subsection (3)(a) or (b) , the Court may order that the representative in his or her own capacity compensate another party for any costs incurred unnecessarily.(5) Before making an order under subsection (4) , the Court is to give the representative a reasonable opportunity to be heard.(6) If the Court makes an order for costs before the end of a proceeding, the Court may require that the order be complied with before it continues with the proceeding.(7) In this section –relevant enactment means an enactment under which the Court has jurisdiction to review a reviewable decision, or that otherwise deals with the jurisdiction of the Court.
46. Court to give decision determining application
(1) If the Court determines an application for the review of a reviewable decision, the Court is to cause a copy of its decision to be served on each party to the proceedings for the decision.(2) The Court may give reasons either orally or in writing for its decision.(3) If the Court does not give reasons in writing for its decision –(a) a party to the proceedings may, within 28 days after the day on which a copy of the decision of the Court is served on that party, request the Court to give the party a statement in writing of the reasons of the Court for its decision; and(b) the Court must, within 28 days after receiving the request, give the party such a statement.(4) For the purposes of compliance with subsection (3) , it is sufficient if the Court gives the party a copy of a transcript of oral reasons previously delivered that complies with subsection (5) .(5) If the Court gives the reasons for its decision in writing under subsection (2) , the written reasons are to set out the following:(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based;(b) the Court's understanding of the applicable law;(c) the reasoning processes that led the Court to the conclusions it made.
PART 6 - Appeals to supreme court
47. Appeals to Supreme Court from decisions of Court
(1) Except as provided otherwise in this section or any other enactment, a decision of the Court in respect of an application for review under this Act is final.(2) A party to a proceeding before the Court may appeal to the Supreme Court, on a question of law, from a decision of the Court in that proceeding.(3) An appeal by a person under subsection (2) is to be instituted –(a) not later than 28 days after the day on which a document setting out the terms of the decision of the Court is given to the person or within such further time as the Supreme Court (whether before or after the expiration of that day) allows; and(b) subject to and in accordance with the Rules of the Supreme Court.(4) The Supreme Court is to hear and determine the appeal and may make such order as it thinks appropriate.
48. Operation and implementation of decision that is subject to appeal
(1) Subject to this section, the institution of an appeal to the Supreme Court from a decision of the Court does not affect the operation of the decision or prevent the taking of action to implement the decision.(2) If an appeal is instituted in the Supreme Court from a decision of the Court, the Supreme Court may make such order as the Supreme Court considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal, or staying or otherwise affecting the operation or implementation of either or both of the following:(a) the decision of the Court or part of that decision;(b) the decision to which the proceeding before the Court related or a part of that decision.(3) If an order is in force under subsection (2) (including an order that has previously been varied on one or more occasions under this subsection) the Supreme Court may make an order varying or revoking the first-mentioned order.
49. Questions reserved for opinion of Supreme Court
(1) The Court may, if it thinks fit, reserve a question in the form of a special case for the opinion of the Supreme Court.(2) A decision or order is not to be given or made in respect of any matter on which a question referred to in subsection (1) has been reserved until the Supreme Court gives its opinion on the question.
PART 7 - Miscellaneous
50. References to application in enactments
(1) An application to the Court includes a complaint, referral or other mechanism by means of which an enactment provides for a matter to be brought to the attention of the Court for a review of a reviewable decision.(2) If an enactment provides that an application may be made to the Court, but does so by reference to some word or expression other than "application" or some other part of speech or grammatical forms of that word or expression –(a) the rules of court may refer to such applications by reference to the word or expression used in the enactment (or some other part of speech or grammatical forms of that word or expression); and(b) the regulations may refer to such applications by reference to the word or expression used in the enactment (or some other part of speech or grammatical forms of that word or expression); and(c) any notice or other document issued, lodged, served or given under this Act in relation to such applications may refer to the applications by reference to the word or expression used in the enactment (or some other part of speech or grammatical forms of that word or expression).
[Section 51 Substituted by No. 6 of 2003, s. 30, Applied:01 Jul 2003] The rules of court may, without limiting the generality of the Magistrates Rule Committee's powers, make provision for or with respect to all or any of the following:(a) the commencement of proceedings in the Court;(b) the practice and procedure to be followed in, or for the purposes of, proceedings before the Court;(c) the means for, and the practice and procedure to be followed in, the enforcement and execution of decisions of the Court;(d) the functions of the registrar or other officers under this Act, including functions in relation to proceedings instituted before the Court.
(1) The Governor may make regulations for the purposes of this Act.(2) Without limiting subsection (1) , the regulations may prescribe the fees payable in respect of an application to the Court.(3) The regulations may be made subject to such conditions, or be made so as to apply differently according to such factors, as may be specified in the regulations or according to such limitations or restrictions, whether as to time or circumstance or otherwise, as may be so specified.(4) The regulations may authorise any matter to be from time to time determined, applied or regulated by the Chief Magistrate or the Administrator.(5) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act.(6) A provision referred to in subsection (5) may, if the regulations so provide, take effect from the commencement of this Act or a later day.
Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –(a) the administration of this Act is assigned to the Minister for Justice and Industrial Relations; and(b) the department responsible to the Minister for Justice and Industrial Relations in relation to the administration of this Act is the Department of Justice and Industrial Relations.
54. Transitional: Appeals and reviews
Any appeals lodged or reviews commenced under any Act before the commencement of this Act and not finally dealt with before that commencement are to be dealt with as if this Act had not been enacted.
55. Transitional: rules of court
[Section 55 Inserted by No. 6 of 2003, s. 31, Applied:01 Jul 2003](1) In this section –new rules means rules of court made for this Act by the Magistrates Rule Committee on or after the transition day;old rules means the rules of court in force under section 51 immediately before the transition day;Transition Act means the Justice (Delegated Legislation) Act 2003 ;transition day means the day on which Part 6 of the Transition Act commences.(2) Notwithstanding the amendments made to this Act by Part 6 of the Transition Act, the old rules –(a) continue in force on and after the transition day until new rules take effect; and(b) may be amended by the Magistrates Rule Committee, for which purpose the committee has and may exercise any power expressly or impliedly conferred on it under section 15AE of the Magistrates Court Act 1987 .(3) The Magistrates Rule Committee may rescind the old rules.