2005
2005
2006-06-20
act
government
publicspecial
act.reprint
allinforce
2005-09-15
2005-09-15
0
2006-06-20
act-2006-058
2005
none
act-2005-076
0e9d7d71-efdb-4606-a635-2184d47db9cb
75785513-c58d-47e0-8027-d749cd65b2ea
Note—
The Act was repealed by Sch 4 to the Statute Law (Miscellaneous Provisions) Act 2006
No 58 with effect from 20.6.2006.
An Act to amend the Civil
Liability Act 2002 to provide for the satisfaction of
personal injury damages claims by victims of crime from certain damages
awarded to offenders; and for other purposes.
1Name of
Act
This Act is the Civil Liability
Amendment (Offender Damages Trust Fund) Act
2005.
2Commencement
This Act commences on the date of
assent.
3Amendment of Civil Liability Act 2002 No
22
The Civil Liability
Act 2002 is amended as set out in Schedule
1.
Schedule 1Amendments
(Section 3)
[1]Part 2A, Division
6
Insert after Division 5 of Part 2A:
Division 6Offender damages trust
funds
26KInterpretation
(1)
In this Division:
award of damages means an award of
damages by a court (including such an award pursuant to judgment entered in
accordance with an agreement between the parties to a claim for
damages).
offender means a person to whom an
award of offender damages is made.
offender
damages means personal injury damages awarded pursuant to an
award to which this Part applies.
Note—
For the purposes of this Division, this Part has
an extended application. See Part 7 of Schedule 1.
victim
claim means a claim for personal injury damages in respect
of:
(a)
an injury to a person caused by conduct of an
offender that, on the balance of probabilities, constitutes an offence,
or
(b)
the death of a person caused by or resulting from
an injury to the person caused by conduct of an offender that, on the balance
of probabilities, constitutes an offence.
victim
trust fund means offender damages awarded to an offender
that are held on trust under this Division.
(2)
The definition of victim
claim in this section:
(a)
operates whether or not a person whose conduct is
alleged to constitute an offence has been, will be or is capable of being
proceeded against or convicted of any offence concerned,
and
(b)
extends to conduct of a person that would have
constituted an offence if the person had not been suffering from a mental
illness at the time of the conduct (whether or not the person was acquitted of
an offence concerning that conduct by reason of mental illness or was found by
a court not to be fit to be tried for an offence concerning that conduct by
reason of such an illness).
26LOffender damages to be held in
trust as victim trust fund
(1)
The amount of any offender damages awarded to an
offender is to be held in trust for the offender by the protected defendant
liable to pay those damages and may be paid out only as authorised by this
Division.
(2)
Offender damages held by a protected defendant in
trust for an offender under this Division comprise a victim
trust fund for victims of the offender. The protected
defendant is responsible for the
fund.
(3)
This section does not affect (and is subject to)
any obligation imposed on the protected defendant by or under an enactment of
the State or the Commonwealth to pay to some other person money owed or due to
or held on account of the offender.
Note—
Section 26T also provides an exception to this
section for legal costs.
(4)
An amount deducted or withheld from offender
damages under Division 5 (Victims support payments owed by offender) is not
required to be held in trust under this section.
(5)
An amount held in a victim trust fund for victims
of an offender is:
(a)
not available for the payment of a creditor of
the offender, and
(b)
not liable to be attached or taken in execution
at the instance of a creditor of the offender.
26MVictim trust fund available to
satisfy eligible victim claims
(1)
A victim trust fund is available to satisfy
victim claims against the offender concerned as provided by this Division but
only if the claim is eligible to be satisfied from the
victim trust fund as provided by this section.
(2)
A victim claim is eligible to be satisfied from a
victim trust fund only if within the eligibility period for the victim
trust fund:
(a)
the person commences proceedings on the claim in
a court (or proceedings by the person on the claim are pending in a court at
the beginning of the eligibility period), and
(b)
the person gives the protected defendant
responsible for the victim trust fund notice in writing of those proceedings
together with such details of those proceedings as the protected defendant may
request, and
(c)
the person certifies to the court before which
those proceedings are taken that the person is making the claim as a claim
that is eligible to be satisfied from the victim trust
fund.
(3)
The eligibility period for a victim
trust fund comprising offender damages awarded to an offender is the period of
6 months following the date (the award
date for those damages) on which the claim for those damages
is finally determined by a court award of those damages.
(4)
A claim is not finally determined by a court
until the time for appealing against the award of damages expires with no
appeal having been made or when all appeals against the award have been
withdrawn or finally determined.
(5)
The protected defendant responsible for a victim
trust fund must give the registrar of each court in which a victim claim may
be brought notice of each victim claim of which the protected defendant is
given notice under this section.
26NNotice to persons entitled to
make victim claim
(1)
The protected defendant responsible for a victim
trust fund must, within 28 days after the award date for the damages
concerned, send to each person who appears (from any official records
reasonably available to the protected defendant) to have a victim claim
against the offender a notice in writing:
(a)
naming the offender and stating that there is a
victim trust fund for victims of the offender, and
(b)
specifying the eligibility period for that victim
trust fund, and
(c)
stating that a victim claim made within the
eligibility period for the victim trust fund may be eligible to be satisfied
from the victim trust fund.
(2)
The notice is to be sent to a person at the
address of the person last known to the protected defendant or as shown in
official records reasonably available to the protected
defendant.
(3)
The protected defendant may also publish such a
notice in the Gazette.
(4)
To remove doubt, victim
claim in this section includes a victim claim that can be
made as a result of section 26P (Commencement of victim claims proceedings
despite expiry of limitation period).
26OProvision of information to
persons entitled to claim
(1)
A protected defendant must, in response to a
request made during or within 1 month after the eligibility period for a
victim trust fund by or on behalf of a person who appears to the protected
defendant to be entitled to make a victim claim against the offender, provide
such information as the protected defendant is reasonably able to provide
concerning:
(a)
the award of damages to the offender and the
amount of the victim trust fund, and
(b)
any other victim claim against the offender that
may be eligible to be satisfied from the victim trust fund and of which the
protected defendant has been given notice under this
Division.
(2)
The provision of information by a protected
defendant under this section:
(a)
is authorised despite any agreement to which the
protected defendant is a party that would otherwise prohibit or restrict the
disclosure of information concerning an award of offender damages,
and
(b)
does not constitute a contravention of any such
agreement.
(3)
A person to whom information is provided under
this section must not disclose that information to any other person except for
the purposes of or in connection with the taking and determination of
proceedings on a victim claim against the offender concerned.
Maximum penalty: 50 penalty
units.
(4)
Proceedings for an offence under this section may
be dealt with summarily before a Local Court.
26PCommencement of victim claims
proceedings despite expiry of limitation period
(1)
If there is a victim trust fund for victims of an
offender, an action on a cause of action to recover damages pursuant to a
victim claim against the offender is (despite any provision of the Limitation Act 1969) maintainable by
proceedings on the cause of action commenced during the eligibility period for
the victim trust fund.
(2)
The right and title to damages of a person
formerly having such a cause of action that has been extinguished by the
expiration of a limitation period fixed by or under the Limitation Act 1969 is reinstated for
the purposes of proceedings on the cause of action that are commenced during
the eligibility period for the victim trust fund.
(3)
However, an award of damages in proceedings
commenced under this section (that could not otherwise be commenced):
(a)
has effect only for the purpose of enabling an
order to be made under this Division for the payment of the whole or a
specified part of those damages out of money held in the victim trust fund
concerned, and
(b)
cannot otherwise be enforced against the offender
concerned or any property of the offender.
26QOrders for payment of damages
out of money held in trust for victims of offender
(1)
A court that awards damages to a person on a
victim claim against an offender may, if satisfied that the claim is eligible
to be satisfied from a victim trust fund for victims of the offender, order
that the whole or a specified part of those damages is to be paid out of money
held in the victim trust fund.
(2)
Before the court orders the payment of damages
out of money held in the victim trust fund, the court must consider:
(a)
whether there are or are likely to be other
victim claims eligible to be satisfied from the victim trust fund that may be
ordered to be wholly or partly satisfied by payment from the victim trust
fund, and
(b)
the amount of the damages likely to be awarded in
respect of those claims.
(3)
In determining the amount of any damages to be
ordered to be paid out of a victim trust fund, a court must ensure that the
amount ordered to be paid:
(a)
is fair and reasonable having regard to the
existence of other claims that are eligible to be satisfied from the fund and
that may be ordered to be wholly or partly satisfied by payment from the fund,
and the amounts likely to be awarded in respect of those claims,
and
(b)
does not, as a proportion of the amount of the
victim trust fund, exceed the proportion that the damages awarded represents
as a proportion of the total damages likely to be awarded in respect of all
claims eligible to be satisfied from the fund.
(4)
A court may defer making an order for the payment
of damages out of a victim trust fund until the court is satisfied that it is
able to make a reasonable assessment of the extent of claims eligible to be
satisfied from the fund.
(5)
The payment by a protected defendant of an amount
out of a victim trust fund in accordance with an order of a court under this
section is taken to be a payment made at the direction of the offender and
operates as a discharge, to the extent of the payment, of any liability of the
protected defendant to pay the amount to the offender concerned as offender
damages.
(6)
An order of a court under this section is not
subject to appeal except on a question of law.
26RPayment to offender of trust
fund surplus
(1)
When the protected defendant responsible for a
victim trust fund is satisfied that all claims eligible to be satisfied from
the fund have been finally determined, the protected defendant is to make a
determination of the surplus (if any) in the fund.
(2)
A court that awards damages to a person on a
victim claim against an offender may give directions to the protected
defendant concerned in respect of the determination by the protected defendant
of the surplus (if any) in the victim trust fund
concerned.
(3)
If a protected defendant responsible for a victim
trust fund determines that there is a surplus in the fund, the protected
defendant must pay that surplus to or at the direction of the offender
concerned.
(4)
The surplus in a victim trust fund is
the amount that will remain in the fund after payment out of the fund of the
following amounts:
(a)
the amount of all claims eligible to be satisfied
from the fund that are ordered by a court under this Division to be paid out
of the fund,
(b)
all amounts payable to the Public Trustee out of
the fund.
26STrust funds to be held by
Public Trustee
(1)
Money held by a protected defendant in trust
under this Division is to be held by the Public Trustee on behalf of the
protected defendant.
(2)
Interest received by the Public Trustee in
respect of the investment of an amount held by the Public Trustee under this
section is payable to and forms part of the victim trust fund of which the
amount forms part.
(3)
A protected defendant may enter into arrangements
with the Public Trustee for the exercise by the Public Trustee on behalf of
the protected defendant of any functions of the protected defendant under this
Division.
(4)
The Public Trustee is authorised to enter into
any such arrangements and is authorised to exercise any functions on behalf of
a protected defendant in accordance with those
arrangements.
(5)
There is payable to the Public Trustee out of a
victim trust fund the reasonable costs of the Public Trustee incurred in the
exercise in respect of the fund of any functions under this section or any
functions on behalf of a protected defendant pursuant to an arrangement with
the protected defendant under this section.
(6)
The Public Trustee is to certify as to the
reasonable costs payable to the Public Trustee under this section and such a
certificate is sufficient authority for the payment of the relevant amounts
out of the victim trust fund concerned.
26TException for legal
costs
(1)
This Division does not require any amount to be
held in trust that is payable by the protected defendant as legal costs under
an order for costs made against the protected defendant or (in the case of an
award of damages that is inclusive of costs) that is reasonably attributable
to the offender’s legal costs.
(2)
The amount reasonably attributable to the
offender’s legal costs in the case of an award of damages that is
inclusive of costs is the amount determined by the protected defendant on the
basis of a bill for those costs provided to the protected defendant by the
legal practitioner concerned.
(3)
If the amount determined by the protected
defendant as the amount reasonably attributable to the offender’s legal
costs is disputed, the protected defendant is to apply for the assessment of
those costs under the Legal Profession Act
1987 or the Legal Profession
Act 2004 (as if the protected defendant were liable to pay
those costs as a result of an order for the payment of an unspecified amount
of costs made by a court).
(4)
The costs of a costs assessment for the purposes
of this section are payable:
(a)
by the offender (by deduction from the offender
damages concerned), unless paragraph (b) applies, or
(b)
by the protected defendant if the amount of the
costs as determined by the costs assessor is at least 10% more than the amount
determined by the protected defendant.
26UMaximum legal costs of
eligible claims
(1)
The maximum costs for legal services provided to
the plaintiff in connection with a victim claim that is eligible to be
satisfied from a victim trust fund are fixed as follows:
(a)
if the amount recovered on the claim does not
exceed $100,000—maximum costs are fixed at 20% of the amount recovered
or $10,000, whichever is greater,
(b)
if the amount recovered on the claim exceeds
$100,000 but does not exceed $250,000—maximum costs are fixed at 18% of
the amount recovered or $20,000, whichever is greater,
(c)
if the amount recovered on the claim exceeds
$250,000 but does not exceed $500,000—maximum costs are fixed at 16% of
the amount recovered or $45,000, whichever is greater,
(d)
if the amount recovered on the claim exceeds
$500,000—maximum costs are fixed at 15% of the amount recovered or
$80,000, whichever is greater.
(2)
The regulations may prescribe an amount or
percentage to replace any amount or percentage in subsection (1). When such a
replacement amount or percentage is prescribed, it applies for the purposes of
subsection (1) in place of the amount or percentage that it
replaces.
(3)
Before the commencement of the Legal Profession Act 2004, Division 5B
(Maximum costs in personal injury damages matters) of Part 11 of the Legal Profession Act 1987 applies in
respect of the maximum costs for legal services provided to a plaintiff in
connection with a victim claim that is eligible to be satisfied from a victim
trust fund as if subsections (1) and (2) of this section were substituted for
subsections (1) and (2) of section 198D of that Act.
(4)
After the commencement of the Legal Profession Act 2004, Division 9
(Maximum costs in personal injury damages matters) of Part 3.2 of the Legal Profession Act 2004 applies in
respect of the maximum costs for legal services provided to a plaintiff in
connection with a victim claim that is eligible to be satisfied from a victim
trust fund as if subsections (1) and (2) of this section were substituted for
subsections (1) and (2) of section 338 of that Act.
(5)
The amount
recovered on a claim is the full amount of the damages
awarded (not just the amount ordered to be paid from a victim trust
fund).
26VProtection from
liability
(1)
An act or omission by a person as a public
official does not subject the person personally to any action, liability,
claim or demand if the act or omission was done or omitted to be done in good
faith in the administration or execution of this
Division.
(2)
In this section:
public
official means:
(a)
a member of staff of or agent of a protected
defendant, or
(b)
the Public Trustee, or a member of staff or agent
of the Public Trustee, when the Public Trustee is acting on behalf of a
protected defendant under this Division.
26WDivision overrides Part 7
Division 2
Division 2 (Supervision of damages arising out of
criminal conduct by persons suffering from mental illness) of Part 7 does not
apply to damages required to be held in trust under this
Division.
[2]Schedule 1 Savings and
transitional provisions
Insert at the end of clause 1 (1):
Civil Liability
Amendment (Offender Damages Trust Fund) Act
2005
[3]Schedule
1
Insert after Part 6:
Part 7Provisions consequent on
enactment of Civil Liability Amendment (Offender
Damages Trust Fund) Act 2005
20Extended operation of Part 2A
Division 6
For the purposes of the operation of Division 6
(Offender damages trust funds) of Part 2A:
(a)
that Part extends to an award of personal injury
damages in proceedings commenced before the commencement of that Part,
and
(b)
Parts 5 and 6 of this Schedule do not limit the
operation of that Part.
Note—
This clause has the effect of extending the
operation of Division 6 of Part 2A beyond the operation of the other
provisions of that Part.
21Amendments extend to existing
claims and damages awards
A provision of Division 6 (Offender damages trust
funds) of Part 2A extends to:
(a)
an award of offender damages made before the
commencement of the provision that has not been satisfied by the protected
defendant concerned as at that commencement, and
(b)
an award of offender damages made after the
commencement of the provision in respect of a claim for damages that arose
before that commencement, and
(c)
a victim claim made in respect of a cause of
action that arose before the commencement of the
provision.
Historical
notes
Table of amending
instruments
Civil Liability
Amendment (Offender Damages Trust Fund) Act 2005 No 76.
Second reading speech made: Legislative Assembly, 15.9.2005; Legislative
Council, 19.10.2005. Assented to 26.10.2005. Date of commencement, assent, sec
2.