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1
Courts Legislation Amendment
COURTS LEGISLATION AMENDMENT
BILL 1995
EXPLANATORY NOTES
TITLE
Courts Legislation Amendment Bill 1995.
POLICY OBJECTIVES
The primary policy objective of this Bill is to provide an opportunity for
litigants to participate in ADR processes, within the court system, to resolve
their disputes more quickly and cheaply than by proceeding to trial. In the
case of mediation, that resolution can be achieved by agreement.
The ADR processes to be used are mediation and case appraisal.
The policy objective is advanced by providing a framework for ADR
processes within the court system. That framework consists of:
· The conferral on the court of a power to refer disputes to ADR
processes and receive the parties' submissions on the proposed
referral.
· The establishment of the procedures at ADR processes.
· The ability to impose sanctions on a party who impedes an ADR
process, that is, a party who fails to attend or participate or fails to
pay any required amount.
· Provisions designed to protect the integrity of the ADR
processes, e.g. provisions ensuring confidentiality.
FUNDAMENTAL LEGISLATIVE PRINCIPLES
The Bill is consistent with the fundamental legislative principles. The
operation of the Judicial Review Act has been excluded in relation to certain
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Courts Legislation Amendment
administrative decisions, but an alternative review process has been
included.
Decisions of a case appraiser have been excluded from judicial review.
CONSULTATION
This Bill was initially developed and recommended by the Litigation
Reform Commission. The Litigation Reform Commission conducted
consultation with the Queensland Law Society, the Queensland Bar
Association and Lawyers Engaged in Alternative Dispute Resolution.
DESCRIPTION OF PROVISIONS
PART 1--PRELIMINARY
Clause 1. This states the short title of the legislation--the Courts
Legislation Amendment Act 1995.
Clause 2. This clause provides for the commencement of the Act on a
day fixed by proclamation.
PART 2--AMENDMENT OF THE SUPREME COURT
OF QUEENSLAND ACT 1991
Clause 3. This clause provides that this Part amends the Supreme Court
of Queensland Act 1991.
Clause 4. This clause inserts in s.3 of the Supreme Court of Queensland
Act 1991 definitions of `ADR costs', `ADR convenor', `ADR dispute',
`ADR process', `case appraisal', `case appraiser', `dispute', `mediation',
`mediator', `party', `referring order', `Supreme Court Acts' and ` Supreme
Court Jurisdiction Act'.
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Courts Legislation Amendment
Clause 5. This clause omits existing s.75(6) of the Supreme Court of
Queensland Act 1991 and substitutes a provision that Rules of Court (other
than rules under s.32) may not be made under an Act, and a regulation may
not be made under this Act, unless a report and recommendation from the
Litigation Reform Commission, or one of its Divisions has been obtained.
Clause 6. New Part 7A--ADR Processes and Part 7B--Rules of Court
are inserted.
Clause 100A. This clause states the object of Part 7A.
Clause 100B. The expression `ADR process' is defined. In relation to
Division 6 of Part A the expression `ADR process' includes all steps
involved in an ADR process, including, pre-mediation and post-mediation
sessions.
Clause 100C. This clause defines mediation as a process under the rules
under which the parties use a mediator to help them resolve their dispute by
negotiated agreement without adjudication.
Clause 100D. This clause defines case appraisal as a process under the
rules under which a case appraiser provisionally decides a dispute, and
provides that a case appraiser's decision is not binding on the parties until
the time prescribed by the rules for filing an election to go to trial has passed
and the Court by order gives effect to the decision.
Clause 100E. This clause provides that the Senior Judge Administrator,
in consultation with the Chief Justice, may approve or refuse to approve a
person as a mediator.
Clause 100F. This clause provides that the Senior Judge Administrator,
in consultation with the Chief Justice, may approve or refuse to approve a
person as a case appraiser.
Clause 100G. This clause provides for the Registrar to keep a register of
information about ADR processes in any form the Registrar considers
appropriate; however, the register must contain the name and address of
each mediator and case appraiser (other than a judge), other information
prescribed under the rules, and other information decided by the Senior
Judge Administrator.
Clause 100H. This clause ensures that parties may, by consent, opt into
the ADR scheme created by the Bill.
Clause 100I. This clause provides that the Court may require the parties
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Courts Legislation Amendment
or their representatives to attend before it to enable the Court to decide
whether the parties' dispute should be referred to an ADR process. The
clause further provides that the Court may make a referring order referring
the dispute for mediation or case appraisal, and that the Court may take the
following matters into account when deciding whether to refer a dispute to
case appraisal--whether the costs of litigating the dispute are likely to be
disproportionate to the benefit gained, the likelihood of a case appraisal
producing a compromise or an abandonment of a claim or defence, and
other circumstances.
Clause 100J. This clause provides that if a referring order is made the
parties must attend before the ADR convenor appointed to conduct the
ADR process, and not impede the ADR convenor in conducting and
finishing the ADR process within the time allowed under the referring
order. This clause further provides that if a party impedes an ADR process,
the Court may impose sanctions against the party, including, for example,
by ordering that any claim for relief by the defaulting party is stayed
pending further order and by taking the party's action into account when
awarding costs in the proceeding or in another proceeding between the
parties.
Clause 100K. This clause provides that at a case appraisal the case
appraiser must decide the procedure to be used, and may adopt any
procedure that will in the case appraiser's view enable a sound view of the
likely outcome of the dispute to be reached, and must finish the case
appraisal as quickly as possible. The clause contains a proviso that the case
appraiser may in special circumstances receive evidence, examine witnesses
and administer oaths to witnesses who have been lawfully called before the
case appraiser. It provides that the court may at any time give directions
about procedure to be used at the case appraisal.
Clause 100L. This clause provides that a person may not be subpoenaed
to appear at a case appraisal without an order of the Court. It provides that a
person may not be subpoenaed to appear at a mediation. Further, a person
subpoenaed to appear at a case appraisal must not be compelled to answer a
question, or produce a document that the person could not be compelled to
answer or produce before the Court.
Clause 100M. This clause provides that if at any time the Court is of the
opinion that a party to an ADR process is unable to pay that party's
percentage of costs because of the party's financial circumstances, the Court
may make an order appropriate in the circumstances, including an order that
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Courts Legislation Amendment
the reference to the ADR process be cancelled, or that the referring order be
revoked and another referring order made.
Clause 100N. This clause provides that if the parties agree on a resolution
of their dispute or part of it at a mediation, the agreement must be written
down and signed by or for each party and by the mediator, and that such an
agreement has the same effect as any other compromise.
Clause 100O. It is provided that as soon as practicable after the end of a
mediation, the mediator must file a certificate in the prescribed form.
Clause 100P. It is provided that as soon as practicable after the end of a
case appraisal, the case appraiser must file a certificate in the prescribed
form and the decision (if any).
Clause 100Q. This clause provides that a party may apply to the Court
for an order giving effect to an agreement reached after mediation; however
that party may apply for the order only after the mediator's report is filed
with the Registrar.
Clause 100R. This clause provides that a party may apply to the Court
for an order giving effect to a case appraiser's decision after the time
prescribed for electing to go to trial has passed. A party may apply before
that time has passed, if all parties agree.
Clause 100S. This provides that an ADR convener must not without
reasonable excuse disclose information coming to the convener's
knowledge during an ADR process, and provides a maximum penalty of
fifty penalty units, that is $3,000.00. The clause provides that it is a
reasonable excuse to disclose information if the disclosure is made with the
agreement of all parties to the ADR process, or for this Part or for statistical
purposes without revealing the identity of a person about whom the
information is relevant, or for an inquiry or proceeding about an offence
which has taken place during the ADR process, or for a proceeding founded
on fraud that is alleged to be connected with the ADR process, or under a
requirement imposed under an Act.
Clause 100T. This clause provides that in performing the functions of a
mediator or case appraiser an ADR convenor has the same protection and
immunity as a judge performing the functions of a judge; that a party or a
party's lawyer or agent appearing in an ADR dispute has the same
protection and immunity the person would have if the dispute were being
heard in court; that a witness attending an ADR dispute has the same
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Courts Legislation Amendment
protection as a witness attending before court; and that a document
produced at or used for an ADR dispute has the same protection during the
ADR dispute as if it were produced before the court.
Clause 100U. This clause provides that evidence of anything said, or any
admission made at an ADR process about the dispute is not admissible in
any "civil proceeding" in the court or in any other civil proceeding;
however, "civil proceeding" does not include a civil proceeding founded on
fraud.
Clause 100V. This clause provides that the Senior Judge Administrator,
in consultation with the Chief Justice, may revoke the approval of a person
as a mediator or case appraiser; however, the Senior Judge Administrator
must give the person a statement of reasons for the revocation.
Clause 100W. This clause provides that an appeal lies to the Court of
Appeal, by leave of that Court, against a refusal to approve or the revocation
of the approval of a person as a mediator or case appraiser.
Clause 100X. This clause provides that the Governor-in-Council, with
the agreement of two or more judges, may make Rules of Court under this
Act or any other law conferring jurisdiction on the court (jurisdiction laws).
This clause does not affect s.32 Supreme Court of Queensland Act 1991.
Clause 100Y. This clause provides that a rule of court made under a
jurisdiction law before the commencement of this Act is of the same
authority, force and effect as if it were an Act, and must be judicially
noticed, and cannot be questioned in any legal proceeding. The first
sub-clause is expressed to apply to an existing rule made under a
jurisdiction law from the day the rule commenced.
Clause 7. This clause inserts a new clause 110 providing that the
Reprints Act 1992, section 43, must be used in the next reprint of the Act.
Clause 8. This relocates Part 9 as Part 7C.
Clause 9. This clause inserts schedules to the Act. The first is entitled
"Subject Matter for Rules". The first schedule lists various matters as to
which Rules of Court may be made. The second schedule lists Supreme
Court Acts and Supreme Court Jurisdiction Acts.
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Courts Legislation Amendment
PART 3--AMENDMENT OF THE DISTRICT COURTS
ACT 1967
Clause 10. This provides that this Part amends the District Courts Act
1967.
Clause 11. Section 4 of the District Courts Act 1967 is amended by
inserting definitions of `ADR costs', `ADR convenor', `ADR dispute',
`ADR process', `case appraisal', `case appraiser', `dispute', `District Court
jurisdiction Act', `mediation', `mediator', `party', `referring court',
`referring order' and rules.
Clause 12. A new part 6A, ADR processes is inserted in the District
Court Act 1967 after Part 6.
Clause 91A. This clause states the object of Part 6A.
Clause 91B. The expression `ADR process' is defined. In relation to
Division 6 the expression `ADR process' includes all steps involved in an
ADR process, including, pre-mediation and post-mediation sessions.
Clause 91C. This clause defines mediation as a process under the rules
under which the parties use a mediator to help them resolve their dispute by
negotiated agreement without adjudication.
Clause 91D. This clause defines case appraisal as a process under the
rules under which a case appraiser provisionally decides a dispute, and
provides that a case appraiser's decision is not binding on the parties until
the time prescribed by the rules for filing an election to go to trial has passed
and a District Court by order gives effect to the decision.
Clause 91E. This clause provides that the Chief Judge may approve or
refuse to approve a person as a mediator.
Clause 91F. This clause provides that the Chief Judge may approve or
refuse to approve a person as a case appraiser.
Clause 91G. This clause provides for the Registrar of the Supreme Court
to keep a register of information about ADR processes in any form the
Registrar considers appropriate; however, the register must contain the
name and address of each mediator and case appraiser (other than a judge),
other information prescribed under the rules, and other information decided
by the Senior Judge Administrator.
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Courts Legislation Amendment
Clause 91H. This clause ensures that parties are able by consent to opt
into the scheme established by the Bill.
Clause 91I. This clause provides that the Court may require the parties or
their representatives to attend before it to enable the Court to decide whether
the parties' dispute should be referred to an ADR process. The clause
further provides that the Court may make a referring order referring the
dispute for mediation or case appraisal, and that the Court may take the
following matters into account when deciding whether to refer a dispute to
case appraisal--whether the costs of litigating the dispute are likely to be
disproportionate to the benefit gained, the likelihood of a case appraisal
producing a compromise or an abandonment of a claim or defence, and
other circumstances.
Clause 91J. This clause provides that if a referring order is made the
parties must attend before the ADR convenor appointed to conduct the
ADR process, and not impede the ADR convenor in conducting and
finishing the ADR process within the time allowed under the referring
order. This clause further provides that if a party impedes an ADR process,
the Court may impose sanctions against the party, including, for example,
by ordering that any claim for relief by the defaulting party is stayed
pending further order and by taking the party's action into account when
awarding costs in the proceeding or in another proceeding between the
parties.
Clause 91K. This clause provides that at a case appraisal the case
appraiser must decide the procedure to be used, and may adopt any
procedure that will in the case appraiser's view enable a sound view of the
likely outcome of the dispute to be reached, and must finish the case
appraisal as quickly as possible. The clause contains a proviso that the case
appraiser may in special circumstances receive evidence, examine witnesses
and administer oaths to witnesses who have been lawfully called before the
case appraiser. It provides that the Court may at any time give directions
about procedure to be used at the case appraisal.
Clause 91L. This clause provides that a person may not be subpoenaed
to appear at a case appraisal without an order of the Court. It provides that a
person may not be subpoenaed to appear at a mediation. Further, a person
subpoenaed to appear at a case appraisal must not be compelled to answer a
question, or produce a document that the person could not be compelled to
answer or produce before the Court.
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Courts Legislation Amendment
Clause 91M. This clause provides that if at any time the Court is of the
opinion that a party to an ADR process is unable to pay that party's
percentage of costs because of the party's financial circumstances, the Court
may make an order appropriate in the circumstances, including an order that
the reference to the ADR process be cancelled, or that the referring order be
revoked and another referring order made.
Clause 91N. This clause provides that if the parties agree on a resolution
of their dispute or part of it at a mediation, the agreement must be written
down and signed by or for each party and by the mediator, and that such an
agreement has the same effect as any other compromise.
Clause 91O. It is provided that as soon as practicable after the end of a
mediation, the mediator must file a certificate in the prescribed form.
Clause 91P. It is provided that as soon as practicable after the end of a
case appraisal, the case appraiser must file a certificate in the prescribed
form and the decision (if any).
Clause 91Q. This clause provides that a party may apply to the Court for
an order giving effect to an agreement reached after mediation; however,
that party may apply for the order only after the mediator's report is filed
with the Registrar.
Clause 91R. This clause provides that a party may apply to the Court for
an order giving effect to a case appraiser's decision after the time prescribed
for electing to go to trial has passed. A party may apply before that time
has passed, if all parties agree.
Clause 91S. This clause provides that an ADR convener must not
without reasonable excuse disclose information coming to the convener's
knowledge during an ADR process, and provides a maximum penalty of
fifty penalty units. The clause provides that it is a reasonable excuse to
disclose information if the disclosure is made with the agreement of all
parties to the ADR process, or for this Part or for statistical purposes
without revealing the identity of a person about whom the information is
relevant, or for an inquiry or proceeding about an offence which has taken
place during the ADR process, or for a proceeding founded on fraud that is
alleged to be connected with the ADR process, or under a requirement
imposed under an Act.
Clause 91T. This clause provides that in performing the functions of a
mediator or case appraiser an ADR convenor has the same protection and
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Courts Legislation Amendment
immunity as a judge performing the functions of a judge; that a party or a
party's lawyer or agent appearing in an ADR dispute has the same
protection and immunity the person would have if the dispute were being
heard before a District Court; that a witness attending an ADR dispute has
the same protection as a witness attending before a District Court; and that
a document produced at or used for an ADR dispute has the same
protection during the ADR dispute as if it were produced before a District
Court.
Clause 91U. This clause provides that evidence of anything said, or any
admission made at an ADR process about the dispute is not admissible in
any "civil proceeding" in the Court or in any other civil proceeding;
however, "civil proceeding" does not include a civil proceeding founded on
fraud.
Clause 91V. This clause provides that the Chief Judge, may revoke the
approval of a person as a mediator or case appraiser; however, the Chief
Judge must give the person a statement of reasons for the revocation.
Clause 13. This clause inserts a new clause 95A; which provides that an
appeal lies to the Court of Appeal, by leave of that Court, against a refusal to
approve or the revocation of the approval of a person as a mediator or case
appraiser.
Clause 14. This clause omits s.101 and substitutes a new clause
simplifying the procedure for making District Court Rules.
Clause 15. This clause inserts a new s.111, which saves existing rules of
court and a new s.112, which ensures that when the District Courts Act is
next reprinted, it is renumbered according to s.43 of the Reprints Act 1992.
Clause 16. This inserts a Schedule after s.110. The Schedule lists the
matters as to which Rules of Court may be made.
PART 4--AMENDMENT OF THE MAGISTRATES
COURTS ACT 1921
Clause 17. This clause provides that this Part and the Schedule amend
the Magistrates Courts Act 1921.
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Courts Legislation Amendment
Clause 18. This clause amends s.2 of the Magistrates Courts Act 1921
by introducing definitions of `ADR costs', `ADR convenor', `ADR
dispute', `ADR process', `case appraisal', `case appraiser', `dispute',
`mediation', `mediator', `party', `referring court', `referring order', `rules',
and `Small Debts Court'.
Clause 19. This clause inserts a new Part 5--ADR processes.
Clause 10B. This clause states the object of Part 5.
Clause 10C. The expression `ADR process' is defined. In relation to
Division 6 the expression `ADR process' includes all steps involved in an
ADR process, including, pre-mediation and post-mediation sessions.
Clause 10D. This clause defines mediation as a process under the rules
under which the parties use a mediator to help them resolve their dispute by
negotiated agreement without adjudication.
Clause 10E. This clause defines case appraisal as a process under the
rules under which a case appraiser provisionally decides a dispute, and
provides that a case appraiser's decision is not binding on the parties until
the time prescribed by the rules for filing an election to go to trial has passed
and the Court by order gives effect to the decision.
Clause 10F. This clause provides that the Chief Stipendiary Magistrate
may approve or refuse to approve a person as a mediator.
Clause 10G. This clause provides that the Chief Stipendiary Magistrate
may approve or refuse to approve a person as a case appraiser.
Clause 10H. This clause provides that the Registrar of a Brisbane
Registry of the Magistrates Court nominated by the Chief Stipendiary
Magistrate for the purpose must keep a register of information about ADR
processes in any form the registrar considers appropriate; however, the
register must contain the name and address of each mediator and case
appraiser (other than a Magistrate), other information prescribed under the
rules, and other information decided by the Chief Stipendiary Magistrate.
Clause 10I. This clause permits parties to refer their dispute by
agreement to an ADR process. The parties must file a consent order.
Clause 10J. This clause provides that the Court may require the parties or
their representatives to attend before it to enable the Court to decide whether
the parties' dispute should be referred to an ADR process. The clause
further provides that the Court may make a referring order referring the
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Courts Legislation Amendment
dispute for mediation or case appraisal, and that the Court may take the
following matters into account when deciding whether to refer a dispute to
case appraisal--whether the costs of litigating the dispute are likely to be
disproportionate to the benefit gained, the likelihood of a case appraisal
producing a compromise or an abandonment of a claim or defence, and
other circumstances justifying a case appraisal.
Clause 10K. This clause provides that if a referring order is made the
parties must attend before the ADR convenor appointed to conduct the
ADR process, and must not impede the ADR convenor in conducting and
finishing the ADR process within the time allowed under the referring
order. This clause further provides that if a party impedes an ADR process,
the Court may impose sanctions against the party, including, for example
by ordering that any claim for relief by the defaulting party is stayed
pending further order and by taking the party's action into account when
awarding costs in the proceeding or in another proceeding between the
parties.
Clause 10L. This clause provides that at a case appraisal the case
appraiser must decide the procedure to be used, and may adopt any
procedure that will in the case appraiser's view enable a sound view of the
likely outcome of the dispute to be reached, and must finish the case
appraisal as quickly as possible. The clause contains a proviso that the case
appraiser may in special circumstances receive evidence, examine witnesses
and administer oaths to witnesses who have been lawfully called before the
case appraiser. It provides that the Court may at any time give directions
about procedure to be used at the case appraisal.
Clause 10M. This clause provides that a person may not be subpoenaed
to appear at a case appraisal without an order of the Court. It provides that a
person may not be subpoenaed to appear at a mediation. Further, a person
subpoenaed to appear at a case appraisal must not be compelled to answer a
question, or produce a document that the person could not be compelled to
answer or produce before the Court.
Clause 10N. This clause provides that if at any time the Court is of the
opinion that a party to an ADR process is unable to pay that party's
percentage of costs because of the party's financial circumstances, the Court
may make an order appropriate in the circumstances, including an order that
the reference to the ADR process be cancelled, or that the referring order be
revoked and another referring order made.
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Courts Legislation Amendment
Clause 10O. This clause provides that if the parties agree on a resolution
of their dispute or part of it at a mediation, the agreement must be written
down and signed by or for each party and by the mediator, and that such an
agreement has the same effect as any other compromise.
Clause 10P. It is provided that as soon as practicable after the end of a
mediation, the mediator must file a certificate in the prescribed form.
Clause 10Q. It is provided that as soon as practicable after the end of a
case appraisal, the case appraiser must file a certificate in the prescribed
form and the decision (if any).
Clause 10R. This clause provides that a party may apply to the Court for
an order giving effect to an agreement reached after mediation; however,
that party may apply for the order only after the mediator's report is filed
with the Registrar.
Clause 10S. This clause provides that a party may apply to the Court for
an order giving effect to a case appraiser's decision after the time prescribed
for electing to go to trial has passed. A party may apply before that time
has passed, if all parties agree.
Clause 10T. This provides that an ADR convener must not without
reasonable excuse disclose information coming to the convener's
knowledge during an ADR process, and provides a maximum penalty of
fifty penalty units. The clause provides that it is a reasonable excuse to
disclose information if the disclosure is made with the agreement of all
parties to the ADR process, or for this Part or for statistical purposes
without revealing the identity of a person about whom the information is
relevant, or for an inquiry or proceeding about an offence which has taken
place during the ADR process, or for a proceeding founded on fraud that is
alleged to be connected with the ADR process, or under a requirement
imposed under an Act.
Clause 10U. This clause provides that in performing the functions of a
mediator or case appraiser an ADR convenor has the same protection and
immunity as a Magistrate performing the functions of a Magistrate; that a
party or a party's lawyer or agent appearing in an ADR dispute has the
same protection and immunity the person would have if the dispute were
being heard before a Magistrates Court; that a witness attending an ADR
dispute has the same protection as a witness attending before a Magistrates
Court; and that a document produced at or used for an ADR dispute has the
same protection during the ADR dispute as if it were produced before a
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Courts Legislation Amendment
Magistrates Court.
Clause 10V. This clause provides that evidence of anything said, or any
admission made at an ADR process about the dispute is not admissible in
any "civil proceeding" in the Court or in any other civil proceeding;
however, "civil proceeding" does not include a civil proceeding founded on
fraud.
Clause 10W. This clause provides that the Chief Stipendiary Magistrate
may revoke the approval of a person as a mediator or case appraiser;
however, the Chief Stipendiary Magistrate must give the person a statement
of reasons for the revocation.
Clause 20. This clause inserts a new clause 11AF, after Part 6. Clause
11AF provides a right of appeal to the District Court against a refusal to
appoint or the revocation of the approval of a person as a mediator or case
appraiser.
Clause 21. This clause inserts a new clause 13C, which provides that the
procedure for an appeal to the Magistrates Court, if not provided for by the
rules, is as directed by the Magistrate.
Clause 22. This clause omits s.14 and inserts a new clause 14 providing
that the Governor-in-Council may make Rules of Court under the
Magistrates Courts Act 1921 for a jurisdiction law and may make
provision about the matters mentioned in the Schedule.
Clause 23. This clause inserts a clause 16, saving rules of court, made
prior to this Bill.
Clause 24. This inserts clause 17 providing that the next reprint must be
renumbered pursuant to s.43 Reprints Act 1992.
Clause 25. This clause inserts a Schedule after s.16. The Schedule
specifies matters as to which Rules of Court may be made.
PART 5--AMENDMENT OF THE JUDICIAL REVIEW
ACT 1991
Clause 26. This clause provides that this Part amends the Judicial Review
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Courts Legislation Amendment
Act 1991.
Clause 27. This clause omits from s.3, the definitions of `GOC' and
`rules of court'. A definition of `rules of court' is substituted.
Clause 28. This clause omits s.18 and inserts new clause 18 providing
for the effect of the Judicial Review Act on other laws.
Clause 29. This clause omits s.55.
Clause 30. This clause omits Part 7.
Clause 31. This clause amends Schedule 1, Parts 1 and 2. Certain
decisions made in relation to ADR processes are exempted from judicial
review.
SCHEDULE 1 AND SCHEDULE 2
The schedules make minor amendments to the District Courts Act 1967
and the Magistrates Courts Act 1921.
© The State of Queensland 1995