An Act to confer on Local Courts jurisdiction in respect of certain civil claims; to repeal the Small Debts Recovery Act 1912 and certain other enactments; and for purposes connected therewith.
long title: Am 1982 No 166, Sch 1 (1).
Part 1 Preliminary
1 Name of Act and commencement
(1) This Act may be cited as the Local Courts (Civil Claims) Act 1970.(2) Except as provided in subsection (3), this Act shall commence upon a day to be appointed by the Governor and notified by proclamation published in the Gazette, which day is in this Act referred to as the commencement of this Act.(3) This section and section 85 shall commence upon the day upon which the assent of Her Majesty to this Act is signified.s 1: Am 1982 No 166, Sch 1 (2).
2, 3 (Repealed)
s 2: Am 1975 No 106, Sch 1 (1) (2); 1977 No 19, Sch 1; 1980 No 61, Schs 1 (1), 3 (1); 1983 No 45, Schs 1 (1), 4 (1); 1983 No 203, Sch 1 (1). Rep 1984 No 153, Sch 16.
s 3: Am 1980 No 61, Sch 3 (2); 1982 No 166, Sch 1 (3). Rep 1987 No 48, Sch 32.
4 Definitions
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:Assessor means a person appointed as an Assessor under section 10.attorney means an attorney of the Supreme Court.barrister means a barrister-at-law admitted by the Supreme Court.commercial agent means a licensed commercial agent within the meaning of the Commercial Agents and Private Inquiry Agents Act 1963.court means a Local Court, other than a Local Court in respect of which an order under section 77 (3) is in force.cross-claim includes cross-action and set-off.district means a district appointed under section 6 (1) of the Local Courts Act 1982 for which a court shall be held.Division means a Division of a court specified in section 6.garnishee means a person who is required to make a payment under a garnishee order.garnishee order means an order made under section 47.Local Court means a Local Court established under the Local Courts Act 1982.Magistrate means a Magistrate within the meaning of the Local Courts Act 1982.Rule Committee means the Local Court (Civil Claims) Rule Committee established under the Local Courts Act 1982.rules means rules made under this Act.subagent means a subagent within the meaning of the Commercial Agents and Private Inquiry Agents Act 1963 employed by a commercial agent.writ of execution means a writ of execution issued under section 58.(2) A reference in this Act to the court for a district shall where there is more than one court for a district be construed as a reference to any court for that district.(3) A reference in this Act to:(a) the giving of a judgment is a reference to the recording and delivering of a judgment, not being a judgment under any provision of the rules prescribed for the purposes of this paragraph, and(b) to the entering up of a judgment is a reference to the entering up of a judgment in accordance with any provision of a rule so prescribed.(4) In this Act:(a) a reference to a function includes a reference to a power, authority and duty, and(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.s 4: Am 1975 No 106, Sch 1 (3); 1980 No 61, Sch 3 (3); 1982 No 166, Sch 1 (4); 1987 No 281, Schs 1 (1), 2 (1), 4 (1); 1990 No 104, Sch 1 (1); 1992 No 34, Sch 1; 1998 No 49, Sch 22 [1].
4A Notes
Notes in the text of this Act are merely explanatory and do not form part of this Act.s 4A: Ins 1996 No 111, Sch 1.6 [1].
5 Saving of jurisdiction
(1) Subject to subsection (2), the provisions of this Act have effect subject to the provisions (not being provisions repealed by this Act) of any other Act passed before the commencement of this Act conferring jurisdiction on courts.(2) Where under any Act passed before the commencement of this Act jurisdiction in respect of any matter is conferred on a justice or justices exercising jurisdiction under the Small Debts Recovery Act 1912, or on a court of petty sessions exercising that jurisdiction, the jurisdiction in respect of that matter shall not be exercised except by a Local Court held before a Magistrate.s 5: Am 1982 No 166, Sch 1 (5); 1987 No 281, Sch 4 (2).
Part 2 Courts and officers
Division 1 Courts
6 Divisions of courts exercising jurisdiction under this Act
(1) For the purposes of exercising the jurisdiction conferred on courts by or under this Act, a court is to be divided into:(a) the General Division, and(b) the Small Claims Division.(2) The jurisdiction conferred by or under this Act on a court sitting in its General Division is to be exercised by a Magistrate sitting alone.(3) The jurisdiction conferred by or under this Act on a court sitting in its Small Claims Division is to be exercised:(a) by an Assessor, or(b) by a Magistrate sitting alone.s 6: Am 1982 No 166, Sch 1 (5). Subst 1990 No 104, Sch 1 (2).
7 Courts to be courts of record
A court exercising jurisdiction under this Act or the rules shall be a court of record and a judgment of a court may be set up as a defence in any action brought in a court, in the District Court or in the Supreme Court.s 7: Am 1975 No 106, Sch 1 (4).
7A Seals of courts
(1) Each court shall have a seal.(2) Any document required by or under this or any other Act or law to be sealed or stamped with the seal of a court shall be so sealed or stamped.s 7A: Ins 1987 No 281, Sch 2 (2).
Division 2 Bailiffs
pt 2, div 2, hdg: Am 2001 No 121, Sch 2.141 [1].
8, 8AA (Repealed)
s 8: Am 1982 No 42, Sch 2 (1); 1982 No 166, Sch 1 (6); 1987 No 281, Sch 4 (3). Rep 2001 No 121, Sch 2.141 [2].
s 8AA: Ins 1996 No 111, Sch 1.6 [2]. Rep 2001 No 121, Sch 2.141 [3].
8A Sheriff and Sheriff’s officers
(1) The Sheriff shall have and may exercise the functions conferred or imposed on the Sheriff by this Act and the rules.(2) Unless the rules provide otherwise, the Sheriff may delegate to any Sheriff’s officer any of the Sheriff’s functions under this Act, except this power of delegation.(3) Subject to the rules, the Sheriff and any Sheriff’s officers to whom functions are delegated shall exercise their functions under this Act in accordance with any orders and directions given by the Chief Magistrate.s 8A: Ins 1988 No 20, Sch 10 (1).
9 Bailiffs
(1) The Chief Magistrate may, by order in writing, appoint persons to be bailiffs of the courts specified in the order and may suspend or remove from office any person so appointed.(2) Bailiffs shall have and may exercise the functions conferred or imposed on them by this Act and the rules.(3) Subject to the rules, a bailiff shall exercise his or her functions under this Act in accordance with any orders and directions given by the Chief Magistrate.(4) A bailiff who undertakes or is required to undertake the execution or service of any warrant, writ or other document relating to any proceedings in a court is responsible to any party to those proceedings for all the acts and omissions of the bailiff and any other bailiff assisting him or her in the same manner as the Sheriff is responsible for the acts and omissions of the Sheriff and the Sheriff’s officers.s 9: Am 1987 No 281, Sch 4 (4). Subst 1988 No 20, Sch 10 (2).
Division 3 Assessors
pt 2, div 3: Rep 1977 No 19, Sch 1. Ins 1990 No 104, Sch 1 (3).
10 Appointment of, and qualifications for, Assessors
(1) The Minister may appoint any qualified person to be an Assessor.(2) The appointment of an Assessor may be on a full-time or part-time basis.(3) A person is qualified to be appointed as an Assessor if the person is, or is eligible to be admitted as:(a) a barrister or solicitor of the Supreme Court, or(b) a barrister or solicitor (or both) of any Court of another State or Territory or of the High Court.(4) If appointed on a full-time basis, an Assessor is to devote the whole of his or her time to the duties of the office of an Assessor.(5) Schedule 1 has effect with respect to Assessors.s 10: Am 1975 No 106, Sch 1 (5). Rep 1977 No 19, Sch 1. Ins 1990 No 104, Sch 1 (3).
Division 3A
10A–10F (Repealed)
pt 2, div 3A: Ins 1992 No 34, Sch 1. Rep 1998 No 49, Sch 22 [2].
s 10A: Ins 1992 No 34, Sch 1. Rep 1998 No 49, Sch 22 [2].
s 10B: Ins 1992 No 34, Sch 1. Am 1994 No 32, Sch 1. Rep 1998 No 49, Sch 22 [2].
s 10BA: Ins 1994 No 32, Sch 1. Rep 1998 No 49, Sch 22 [2].
ss 10C–10F: Ins 1992 No 34, Sch 1. Rep 1998 No 49, Sch 22 [2].
Division 4 Right of appearance
11 Appearance of parties
(1) A party to an action or other proceeding under this Act may appear:(a) in person,(b) by the party’s spouse or employee authorised by the party in writing in that behalf, or(c) by a barrister or attorney retained by or on behalf of that party or by an attorney employed (as an agent or otherwise) by an attorney so retained.(1A) The reference in subsection (1) (b) to an employee of a party includes, where the party is a body corporate or other body of persons that may by law sue or be sued, whether in its own name or in the name of any officer or other person, a reference to an officer (including a director or any person having, whether alone or with others, powers of management, direction or control of that body) of that body authorised in writing by that body to appear on its behalf for the purposes of this Act.(1B) Any authority referred to in subsection (1A) may be given for the purposes only of the action or other proceeding specified in the authority, or the purposes of all actions or other proceedings brought, or to be brought, under this Act.(1C) In subsection (1), spouse of a party includes a person with whom the party has a de facto relationship within the meaning of the Property (Relationships) Act 1984.(2) A party to an action or other proceeding under this Act, being an action or other proceeding of a prescribed class, may appear by a commercial agent or by a subagent authorised by that party to act for the party.(3) A person appearing in an action or other proceeding may address the court and examine and cross-examine witnesses.(4) A person who is not a barrister or attorney shall not be entitled to receive or recover a sum of money or other remuneration or consideration for appearing on behalf of another person in a court or before a registrar.(5) Subsection (4) does not operate to prevent an employee who appears on behalf of the employee’s employer in the ordinary course of the employee’s employment from receiving wages or salary for so appearing.(6) Any statement of claim, application, notice or affidavit that may be filed, made, given, served or sworn by any person for the purposes of this Act may be filed, made, given, served or sworn on behalf of that person by any person authorised by the rules to do so.s 11: Am 1975 No 106, Sch 1 (6) (7); 1987 No 281, Sch 2 (3); 1994 No 32, Sch 3; 2002 No 73, Sch 1.17.
Part 3 Jurisdiction
Division 1 Amount
12 Limits of jurisdiction
(1) Subject to this Part, a court sitting in its General Division has jurisdiction to hear and determine actions for the recovery of any debt, demand or damage (whether liquidated or unliquidated) in which the amount claimed is not more than $60,000, whether on a balance of account or after an admitted set-off or otherwise.(2) Subject to this Part, a court sitting in its General Division has jurisdiction to hear and determine actions commenced after the commencement of this section to recover goods that are detained, or to recover the assessed value of the goods, if the value of the goods together with the amount of any consequential damages claimed for the detention of the goods does not exceed $60,000.(3) Subject to this Part, a court sitting in its Small Claims Division has jurisdiction to hear and determine actions for the recovery of any debt, demand or damage (whether liquidated or unliquidated) in which the amount claimed is not more than $10,000, whether on a balance of account or after an admitted set-off or otherwise.(4) Subject to this Part, a court sitting in its Small Claims Division has jurisdiction to hear and determine actions commenced after the commencement of this section to recover goods that are detained, or to recover the assessed value of the goods, if the value of the goods together with the amount of any consequential damages claimed for the detention of the goods does not exceed $10,000.(5) Nothing in subsection (3) or (4) prevents an action under the subsection from being heard and determined by a court sitting in its General Division.(6) If the amount claimed in an action includes interest (being interest which the court could, under section 39A (1), order to be included in the amount for which it could give judgment) that interest is to be disregarded for the purposes of:(a) determining whether the maximum amount for which the action is authorised by this Act to be brought has been exceeded or not, and(b) determining whether or not the court sitting in a Division has jurisdiction to hear and determine the action.(7) If:(a) this section is amended, or a rule is made, to increase an amount specified in this section, andthe court may, on the application of a plaintiff, make an order altering the amount specified in the claim to an amount not exceeding the relevant amount as increased.(b) an action in which an amount of money is claimed is pending in a court when the amendment or rule takes effect,(8) In this section, admitted set-off, in relation to an action, means set-off admitted by the plaintiff in the document by the filing of which the action is commenced.(9) In this section, a reference to an action extends to an action referred to in section 68 of the Fair Trading Act 1987.Note—The effect of subsection (9) is to confer jurisdiction on a Local Court in respect of actions for damages referred to in section 68 of the Fair Trading Act 1987. That jurisdiction is similar to the jurisdiction conferred on a Local Court by section 86 of the Trade Practices Act 1974 of the Commonwealth in respect of actions for damages referred to in section 82 of that Act.s 12: Am 1973 No 9, Sch 2; 1975 No 106, Sch 1 (8)–(12); 1979 No 75, Sch 1 (1); 1980 No 61, Schs 1 (2), 2 (1); 1982 No 42, Sch 1; 1987 No 281, Sch 1 (2); 1990 No 104, Sch 1 (4); 1991 No 12, Sch 3; 1991 No 94, Sch 2. Subst 1993 No 80, Sch 1 (1). Am 1996 No 111, Sch 1.6 [3]; 1999 No 39, Sch 6 [1] [2]; 2003 No 71, Sch 6 [1].
12A Jurisdiction in proceedings for review of contracts
(1) In relation to a contract, a Local Court has the same jurisdiction as the Supreme Court, and may exercise all the powers and authority of the Supreme Court, to grant relief under section 7 (1) (a) of the Contracts Review Act 1980.(2) This section applies only if application for the exercise of the jurisdiction is made in proceedings concerning the contract that are in the course of being heard by the Local Court.(3) This section does not authorise a Local Court to exercise the jurisdiction conferred by any other provision of the Contracts Review Act 1980.(4) This section:(a) applies to a contract whether it was entered into before or after the commencement of this section, and(b) extends to proceedings pending in a court on that commencement.s 12A: Ins 1993 No 80, Sch 1 (2).
13 Actions not to be split or divided
(1) In this section:cross-claim means a cross-claim which a defendant is entitled to bring under section 15.(2) Where a person splits or divides any cause of action against another person so as to bring an action or a cross-claim in a court for part of the amount for which an action or cross-claim may be brought on that cause, and judgment is given or entered up, or a final order is made, on that action or cross-claim, that other person is entitled to judgment in any other action or cross-claim brought or pleaded on that cause (whether brought in a Local Court or brought or pleaded in any other court).(3) Where a party to an action has given two or more bills of exchange, promissory notes, bonds or other securities for any claim by another party, whether or not the amount of that claim exceeds the amount for which an action on that claim may be brought in a court, that other party may, notwithstanding the provisions of subsection (2) but subject to any other provision of this Act, bring an action or a cross-claim on each of those securities as if each of them formed a distinct cause of action and each of those actions and cross-claims were an action or cross-claim for the recovery of a debt contracted at the place where the cause of action on which the claim is based arose.s 13: Am 1975 No 106, Sch 1 (13)–(16); 1980 No 61, Sch 2 (2); 1982 No 42, Sch 1; 1982 No 166, Sch 1 (7); 1987 No 281, Schs 1 (3), 2 (4).
14 Abandonment
A plaintiff who has a cause of action for more than the amount for which an action may be brought on that cause under this Act may abandon the excess by stating the abandonment in the document by the filing of which the action is commenced, and where the abandonment is so stated:(a) the plaintiff’s claim shall be reduced by the amount of the excess and the plaintiff shall, on proving his or her case, recover to an amount not exceeding the amount for which an action may be so brought,(b) judgment in the action shall be in full discharge of all demands in respect of that cause of action, and(c) entry of the judgment in the records of the court shall be made accordingly.s 14: Am 1987 No 281, Sch 2 (5); 1994 No 32, Sch 3.
15 Cross-claim
(1) The defendant, or one of two or more defendants, in an action in a court may, subject to and in accordance with the rules, bring a cross-claim against the plaintiff, or one of two or more plaintiffs, if the amount claimed in the cross-claim does not exceed the amount for which an action may be brought under this Act on the cause of action on which the cross-claim is brought.(2) (Repealed)(3) If a defendant has a cause of action against a plaintiff for more than the amount for which an action may be brought under this Act on that cause of action, the defendant may, where the defendant brings a cross-claim on that cause of action, abandon the excess.(4) Any such abandonment shall be stated in the prescribed notice of cross-claim, and where the abandonment is so stated:(a) the defendant’s claim shall be reduced by the amount of the excess and the defendant shall, on proving his or her case, be entitled to judgment for an amount not exceeding the amount for which an action may be brought on the defendant’s cause of action under this Act reduced by the amount, if any, for which judgment is given for the plaintiff,(b) judgment upon the cross-claim shall be in full discharge of all demands in respect of the defendant’s cause of action, and(c) entry of the judgment in the records of the court shall be made accordingly.(5), (6) (Repealed)(7) Where judgment is given in an action and on a cross-claim:(a) the judgments shall be set-off by the court and judgment for the difference shall be given in favour of the party who recovered the higher amount, and(b) the judgments shall be in full discharge of all demands in respect of the plaintiff’s cause of action and of all demands in respect of the cause of action to which the cross-claim relates.(8)–(10) (Repealed)s 15: Am 1975 No 106, Sch 1 (17)–(31); 1980 No 61, Sch 2 (3); 1982 No 42, Sch 1; 1987 No 281, Sch 2 (6); 1994 No 32, Sch 3.
Division 2 Place
16 Where action may be brought
(1) Every court, wherever situated, shall have jurisdiction in accordance with this Act.(2) Subject to and in accordance with the rules, an action commenced in a court for a district may, on the application of a defendant, be transferred to, and heard and determined in, a court for another district.(3) This section and any rules made for the purposes of this section have effect subject to the provisions of any other Act conferring jurisdiction on courts.s 16: Am 1975 No 106, Sch 1 (32)–(34); 1980 No 61, Sch 2 (4); 1982 No 42, Sch 2 (2). Subst 1987 No 281, Sch 2 (7).
17 Jurisdiction when cause of action or defendant outside the State
(1) A court has jurisdiction in accordance with this Act and a registrar may exercise the powers conferred on a registrar by or under this Act:(a) even if part of the cause of action arose outside New South Wales, so long as a material part of the cause of action arose within New South Wales, and(b) even if the whole cause of action arose outside New South Wales, so long as the defendant was resident within New South Wales at the time of service of the document which commenced the action, and(c) even if the defendant is not within New South Wales, so long as the whole or a material part of the cause of action arose within New South Wales and the defendant was within a State or a part of the Commonwealth (within the meaning of the Service and Execution of Process Act 1901 of the Commonwealth) at the time of service of the document which commenced the action.(2) Subsection (1) (c) applies whether or not the defendant has ever been resident or carried on business in New South Wales.(3) In this section, defendant includes, if there are 2 or more defendants, any one of those defendants.(4) This section applies whether the cause of action arose before or after the commencement of this section.s 17: Am 1975 No 106, Sch 1 (35); 1980 No 61, Sch 2 (5); 1987 No 281, Schs 2 (8), 4 (5). Subst 1989 No 169, Sch 6 (1).
18 Change of venue
(1) If a court is satisfied that any action or other proceeding therein pending can be more conveniently or fairly tried or determined by some other court, it may, subject to and in accordance with the rules, order that the venue be changed, and that the action or proceeding be sent for hearing to the other court.(1A)–(3) (Repealed)s 18: Am 1982 No 42, Sch 2 (3); 1982 No 166, Sch 1 (5); 1987 No 281, Sch 2 (9).
Division 3 Subject-matter
19 Limitation of jurisdiction
(1) A court shall not have jurisdiction under this Act in any of the following cases:(a) where the validity or effect of any devise, bequest or limitation under any will or settlement, or under any document in the nature of a settlement, is disputed,(b) actions for passing-off, wrongful arrest, false imprisonment or malicious prosecution, or for or in the nature of defamation, or for seduction or enticement, or for breach of promise of marriage,(c) actions for infringement of letters patent or copyright,(d) actions for the detention of goods, where any such action is for the detention of goods comprised in a hire-purchase agreement, by the owner of those goods, or any person acting on the owner’s behalf, or(e) actions in which the title to land is in question.(2) If the title to land incidentally comes in question in an action, the court shall have power to decide the claim which it is the immediate object of the action to enforce, but the judgment of the court shall not be evidence of title between the parties or their privies in another action in that court or in any proceedings in any court, whether or not it is a Local Court.s 19: Am 1979 No 75, Sch 1 (2); 1982 No 166, Sch 1 (7); 1994 No 32, Sch 3.
Division 4 Parties
20 Persons jointly liable
(1) Where a plaintiff has a cause of action against two or more persons jointly answerable, it shall be sufficient if any one or more of those persons is served with process, and judgment may be given or entered up and enforced against the person or persons so served notwithstanding that others jointly liable have not been served or sued, or are not within the jurisdiction of the court.(2) A person against whom such a judgment is given or entered up and who satisfies the whole or any part of the judgment shall be entitled to demand and recover contribution from any other person jointly liable with the person.s 20: Am 1994 No 32, Sch 3.
21 (Repealed)
s 21: Am 1970 No 52, Second Sch (am 1972 No 41, Second Sch); 1980 No 61, Sch 3 (4). Rep 1987 No 281, Sch 2 (10).
Part 3A Removal of actions into or from District Court
pt 3A: Ins 1980 No 61, Sch 1 (3).
Division 1 Removal of actions into District Court
21A Definitions
In this Division, proclaimed place and nearest proclaimed place have the meanings ascribed thereto in sections 4 (1) and 5 respectively of the District Court Act 1973.s 21A: Ins 1980 No 61, Sch 1 (3).
21B Removal of proceedings into District Court
(1) If an action is pending in a court, the District Court may, on application by a party to the action, order that the action, including any cross-claim brought in relation to the action, be removed into the District Court sitting at such proclaimed place as the District Court may specify in the order.(2) Subject to section 21E (6), the District Court may make an order for removal under subsection (1) upon such terms as to payment of costs, giving of security for any amount claimed or for costs, or otherwise, as the District Court thinks fit.(3) An order for removal made under subsection (1) shall take effect on service of a copy of the order on the registrar of the court or on earlier notification of the order to the registrar of the court in such manner as the District Court may direct.(4) Subject to section 21E (5), an order for removal made under subsection (1) shall not affect the validity of any order made or other thing done in the action to which the order for removal relates before the order for removal takes effect but, except as otherwise expressly provided by this Division, any such order or thing has no operation after the order for removal takes effect.(5) Where the District Court has made an order for removal under subsection (1), the registrar of the court in which the action was pending shall forthwith after a copy of the order authenticated in accordance with the rules is lodged with the registrar deliver or send by post the whole record thereof to the registrar of the District Court for the proclaimed place specified in the order.s 21B: Ins 1980 No 61, Sch 1 (3). Am 1987 No 281, Sch 2 (11); 1994 No 32, Sch 3.
21C Stay of proceedings in Local Court
(1) Where an application is pending in the District Court for an order under section 21B (1) for removal of an action, the District Court may make orders for a stay of proceedings in the action.(2) An order under subsection (1) for a stay of proceedings shall take effect on service of a copy of the order on the registrar of the court or on earlier notification of the order to the registrar of the court in such manner as the District Court may direct.s 21C: Ins 1980 No 61, Sch 1 (3). Am 1987 No 281, Sch 2 (12).
21D Place of application for removal or stay
(1) Proceedings in the District Court for an order under section 21B (1) for removal of an action, or proceedings in the District Court for a stay under section 21C of proceedings in any such action, shall be commenced at the nearest proclaimed place to the court.(2) Where proceedings to which subsection (1) applies are commenced at a proclaimed place that is not a place at which they ought, under subsection (1), to have been commenced, the District Court may, on the application of a party to the proceedings or without any such application:(a) order that the proceedings be continued in the District Court notwithstanding that they were commenced at that place,(b) order a change of venue of the proceedings under section 40 of the District Court Act 1973 to such other proclaimed place as the District Court thinks proper, or(c) strike out the proceedings.s 21D: Ins 1980 No 61, Sch 1 (3). Am 1987 No 281, Sch 2 (13).
21E Proceedings after removal
(1) Where an order under section 21B (1) for removal into the District Court of an action in a court takes effect, the action ceases to be an action in the court, but proceedings in the action continue, in accordance with rules made under the District Court Act 1973, in the District Court as if the action had been duly commenced, and any cross-claim brought in relation to the action had been duly pleaded, in the District Court at the proclaimed place specified in the order on the date on which the action was commenced, or the cross-claim was brought, as the case may be, in the court.(2) Where any proceedings continue in the District Court as referred to in subsection (1), any abandonment made in accordance with section 14 or 15 has no further force or effect except to the extent that the amount originally claimed in the action, or in any cross-claim brought in relation to the action, before any abandonment exceeded the appropriate amount specified in section 44 (1) (a), (aa) or (b) of the District Court Act 1973, as the case may be.(3) Where an order under section 21B (1) for removal into the District Court of an action in a court takes effect, any admission made in accordance with the rules for the purposes of the action, including the purposes of any cross-claim brought in relation to the action, shall, if it could have been made in accordance with the rules made under the District Court Act 1973, be treated as an admission made under those rules.(4) Subsection (1) has effect subject to:(a) the District Court Act 1973 and the rules made under that Act, and(b) any order of the District Court as to procedure.(5) An order made by a court in an action removed into the District Court under section 21B (1) may be set aside or varied, and is subject to appeal, as if made by the District Court.(6) Costs payable under an order of the District Court in respect of any step in an action removed into the District Court under section 21B (1) shall be limited as may be prescribed in the rules.s 21E: Ins 1980 No 61, Sch 1 (3). Subst 1987 No 281, Sch 2 (14).
Division 2 Removal of actions from District Court
21F Removal of proceedings from District Court
(1) Where an action is pending in the District Court and the District Court is satisfied that the action could properly have been commenced as an action in a court, and that any cross-claim pleaded in relation to the action could properly have been brought as a cross-claim in a court, the District Court may, on application by a party to the action or of its own motion, order that the action, including any cross-claim pleaded in relation to the action, be removed into a court for such district as the District Court shall specify in the order.(2) The District Court shall not make an order under subsection (1) in respect of an action unless it is satisfied that:(a) the document by the filing of which the action was commenced has been served on the defendant, and(b) any cross-claim pleaded in relation to the action has been served on the plaintiff.(3) An order for removal made under subsection (1) shall take effect on service of a copy of the order on the registrar of the court or on earlier notification of the order to the registrar of the court in such manner as the District Court may direct.(4) Subject to section 21G (4), an order for removal made under subsection (1) shall not affect the validity of any order made or other thing done in the action to which the order for removal relates before the order for removal takes effect but, except as otherwise expressly provided by this Division, any such order or thing has no operation after the order for removal takes effect.(5) Where the District Court has made an order for removal under subsection (1), the applicant for the order shall, within 10 days after the making of the order or within such other time as the District Court may direct, or, if the applicant defaults, any other party may, lodge with the registrar of the court for the district specified in the order for removal a copy of each document filed in the District Court in the action to which the order for removal relates.s 21F: Ins 1980 No 61, Sch 1 (3). Am 1987 No 281, Sch 2 (15).
21G Proceedings after removal
(1) Where an order under section 21F (1) for removal into a court of an action in the District Court takes effect, the action ceases to be an action in the District Court but proceedings in the action continue in the court as if the action had been duly commenced, and any cross-claim pleaded in relation to the action had been duly brought, in a court for the district specified in the order on the date on which the action was commenced, or the cross-claim was pleaded, as the case may be, in the District Court.(2) Where an order under section 21F (1) for removal into a court of an action takes effect, any admission made in accordance with the rules made under the District Court Act 1973 for the purposes of the action, including the purposes of any cross-claim pleaded in relation to the action, shall, if it could have been made under the rules, be treated as an admission made under the rules in the action in that court.(3) Subsection (1) has effect subject to this Act and the rules.(4) An order made by the District Court in an action removed into a court under section 21F (1) may be set aside or varied, and is subject to appeal, as if made by the court.(5) No costs shall be payable under an order of the District Court in respect of any step in an action removed into a court under section 21F (1).(6) In respect of an action removed into a court under section 21F (1), the court may order that such costs as may be prescribed be payable in respect of the order of removal, the copies of the order and any step taken in the action before the order of removal takes effect.s 21G: Ins 1980 No 61, Sch 1 (3). Subst 1987 No 281, Sch 2 (16).
Part 3B Arbitration under Arbitration (Civil Actions) Act 1983
pt 3B: Ins 1983 No 45, Sch 1 (2).
21H Arbitration under Arbitration (Civil Actions) Act 1983
(1) Except as provided by subsection (3), a court prescribed by the rules for the purposes of this section at any time may, whether of its own motion or on application, order that, in accordance with the rules, an action before it be referred for determination pursuant to the Arbitration (Civil Actions) Act 1983 by an arbitrator or arbitrators holding office under section 5 (3) of that Act.(2) A court shall, before making an order under subsection (1) in relation to an action:(a) consider the preparations for the hearing and determination of the action,(b) as far as possible, deal with all matters that may be dealt with by the court on application to the court before the hearing and determination of the action, and(c) give such directions for the conduct of the proceedings before the arbitrator as appear best adapted for the just, quick and cheap disposal of the proceedings.(3) A court shall not make an order under subsection (1) if:(a) no issue in the action is contested or judgment in the action has been given or entered up and has not been set aside,(b), (c) (Repealed)(d) the action is an action within a class of actions prescribed by the rules as a class of actions that may not be so referred, or(e) cause is otherwise shown why the action should not be so referred.(4) A court may, at any time before the making of an award under the Arbitration (Civil Actions) Act 1983 in relation to an action the subject of an order under subsection (1), revoke the order and give directions for the subsequent conduct of the action and as to any costs incurred before the revocation of the order.(5) Except in the case of an action in respect of which an order for rehearing has been made under section 18 of the Arbitration (Civil Actions) Act 1983, the award of an arbitrator in relation to an action referred to the arbitrator under subsection (1) shall, after the expiration of the time prescribed by the rules for the purposes of this subsection, be deemed to be a judgment or order of the court by which the matter was referred to the arbitrator.(6) This section does not affect the operation of section 71.s 21H: Ins 1983 No 45, Sch 1 (2). Am 1984 No 153, Sch 16; 1989 No 169, Sch 6 (2); 1994 No 32, Sch 3; 2001 No 108, Sch 4 [1].
Part 3C Mediation and neutral evaluation
pt 3C (ss 21I–21T): Ins 1994 No 57, Sch 1.
21I Purpose of Part
(1) The purpose of this Part is to enable a court to refer matters for mediation or neutral evaluation if the parties to the proceedings concerned have agreed to that course of action.(2) This Part does not prevent:(a) the parties to proceedings from agreeing to and arranging for mediation or neutral evaluation of any matter otherwise than as referred to in this Part, or(b) a matter arising in proceedings from being dealt with under the provisions of the Community Justice Centres Act 1983.pt 3C (ss 21I–21T): Ins 1994 No 57, Sch 1.
21J Meaning of “mediation” and “neutral evaluation”
(1) For the purposes of this Part, mediation means a structured negotiation process in which the mediator, as a neutral and independent party, assists the parties to a dispute to achieve their own resolution of the dispute.(2) For the purposes of this Part, neutral evaluation means a process of evaluation of a dispute in which the evaluator seeks to identify and reduce the issues of fact and law in dispute. The evaluator’s role includes assessing the relative strengths and weaknesses of each party’s case and offering an opinion as to the likely outcome of the proceedings, including any likely findings of liability or the award of damages.pt 3C (ss 21I–21T): Ins 1994 No 57, Sch 1.
21K Other definitions
In this Part:evaluator means a person to whom a court refers a matter for neutral evaluation under this Part.mediation session means a meeting arranged for the mediation of a matter under this Part.mediator means a person to whom a court refers a matter for mediation under this Part.neutral evaluation session means a meeting arranged for the neutral evaluation of a matter under this Part.pt 3C (ss 21I–21T): Ins 1994 No 57, Sch 1.
21L Referral by court
(1) A court may, by order, refer a matter arising in proceedings before it (other than criminal proceedings) for mediation or neutral evaluation if:(a) the court considers the circumstances appropriate, and(b) the parties to the proceedings consent to the referral, and(c) the parties to the proceedings agree as to who is to be the mediator or evaluator for the matter.(2) The mediator or evaluator may, but need not be, a person whose name is on a list compiled under this Part.pt 3C (ss 21I–21T): Ins 1994 No 57, Sch 1.
21M Mediation and neutral evaluation to be voluntary
(1) Attendance at and participation in mediation sessions or neutral evaluation sessions are voluntary.(2) A party to a mediation session or neutral evaluation session may withdraw from the session at any time.pt 3C (ss 21I–21T): Ins 1994 No 57, Sch 1.
21N Costs of mediation and neutral evaluation
The costs of mediation or neutral evaluation, including the costs payable to the mediator or evaluator, are to be borne by the parties to the proceedings in such proportions as they may agree among themselves or, failing agreement, in equal shares.pt 3C (ss 21I–21T): Ins 1994 No 57, Sch 1.
21O Agreements and arrangements arising from mediation sessions
(1) A court may make orders to give effect to any agreement or arrangement arising out of a mediation session.(2) This Part does not affect the enforceability of any other agreement or arrangement that may be made, whether or not arising out of a mediation session, in relation to the matters the subject of a mediation session.pt 3C (ss 21I–21T): Ins 1994 No 57, Sch 1.
21P Mediators and evaluators
(1) The Chief Magistrate may compile a list or lists of persons considered by the Chief Magistrate to be suitable to be mediators for the purposes of this Part.(2) The Chief Magistrate may compile a list or lists of persons considered by the Chief Magistrate to be suitable to be evaluators for the purposes of this Part.(3) Different lists may be compiled for different types of matters or to take account of any other factors.(4) A person may be included in a list under this section only if:(a) the person consents to being included in the list, and(b) the person agrees to comply with the provisions of this Part and of any regulations or rules made for the purposes of this Part.(5) The Chief Magistrate may amend or revoke any list compiled under this section for any reason that the Chief Magistrate considers appropriate.(6) The Chief Magistrate is to review at least annually any list compiled under this section.pt 3C (ss 21I–21T): Ins 1994 No 57, Sch 1.
21Q Privilege
(1) In this section, mediation session or neutral evaluation session includes any steps taken in the course of making arrangements for the session or in the course of the follow-up of a session.(2) Subject to subsection (3), the same privilege with respect to defamation as exists with respect to judicial proceedings and a document produced in judicial proceedings exists with respect to:(a) a mediation session or neutral evaluation session, or(b) a document or other material sent to or produced to a mediator or evaluator, or sent to or produced at a court or a registry of a court, for the purpose of enabling a mediation session or neutral evaluation session to be arranged.(3) The privilege conferred by subsection (2) only extends to a publication made:(a) at a mediation session or neutral evaluation session, or(b) as provided by subsection (2) (b), or(c) as provided by section 21R.(4) Evidence of anything said or of any admission made in a mediation session or neutral evaluation session is not admissible in any proceedings before any court, tribunal or body.(5) A document prepared for the purposes of, or in the course of, or as a result of, a mediation session or neutral evaluation session, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body.(6) Subsections (4) and (5) do not apply with respect to any evidence or document:(a) if the persons in attendance at, or identified during, the mediation session or neutral evaluation session and, in the case of a document, all persons identified in the document, consent to the admission of the evidence or document, or(b) in proceedings instituted with respect to any act or omission in connection with which a disclosure has been made under section 21R (c).pt 3C (ss 21I–21T): Ins 1994 No 57, Sch 1.
21R Secrecy
A mediator or evaluator may disclose information obtained in connection with the administration or execution of this Part only in any one or more of the following circumstances:(a) with the consent of the person from whom the information was obtained,(b) in connection with the administration or execution of this Part,(c) if there are reasonable grounds to believe that the disclosure is necessary to prevent or minimise the danger of injury to any person or damage to any property,(d) if the disclosure is reasonably required for the purpose of referring any party or parties to a mediation session or neutral evaluation session to any person, agency, organisation or other body and the disclosure is made with the consent of the parties to the mediation session or neutral evaluation session for the purpose of aiding in the resolution of a dispute between those parties or assisting the parties in any other manner,(e) in accordance with a requirement imposed by or under a law of the State (other than a requirement imposed by a subpoena or other compulsory process) or the Commonwealth.pt 3C (ss 21I–21T): Ins 1994 No 57, Sch 1.
21S Exoneration from liability for listed mediators and evaluators
No matter or thing done or omitted to be done by a mediator or evaluator subjects the mediator or evaluator to any action, liability, claim or demand if:(a) the matter or thing was done in good faith for the purposes of a mediation session or neutral evaluation session under this Part, and(b) when the subject-matter of the mediation or neutral evaluation was referred for mediation or neutral evaluation, the mediator’s or evaluator’s name was included in a list compiled under this Part.pt 3C (ss 21I–21T): Ins 1994 No 57, Sch 1.
21T Regulations for the purposes of this Part
The Governor may make regulations for the purposes of this Part.pt 3C (ss 21I–21T): Ins 1994 No 57, Sch 1.
Part 4 Procedure
Division 1 Commencement of actions
pt 4, div 1, hdg: Subst 1987 No 281, Sch 2 (17).
22 Manner of commencement of actions
An action in a court, and any proceedings ancillary to an action, shall be commenced in the manner prescribed by the rules.s 22: Am 1979 No 75, Sch 1 (3). Subst 1987 No 281, Sch 2 (17).
Division 2 Defences
pt 4, div 2, hdg: Subst 1987 No 281, Sch 2 (17).
23 Right to defend action
A person against whom an action in a court has been commenced may defend the action and any proceedings ancillary to the action as prescribed by the rules.s 23: Am 1975 No 106, Sch 1 (36). Subst 1987 No 281, Sch 2 (17).
Division 2A Procedure etc in Small Claims Division
pt 4, div 2A: Ins 1975 No 106, Sch 1 (37). Rep 1987 No 281, Sch 2 (17). Ins 1990 No 104, Sch 1 (5).
23A Conciliation of parties
(1) An Assessor or Magistrate is not to give judgment or make a final order in respect of an action being heard in the Small Claims Division of a court unless the Assessor or Magistrate has brought, or has used his or her best endeavours to bring, the parties to the action to a settlement acceptable to the parties.(2) If such a settlement is reached, whether or not pursuant to subsection (1), the Assessor or Magistrate is to give judgment or make a final order that gives effect to the terms of the settlement.s 23A: Ins 1975 No 106, Sch 1 (37). Am 1980 No 61, Schs 2 (6), 3 (5). Rep 1987 No 281, Sch 2 (17). Ins 1990 No 104, Sch 1 (5).
23B Procedure generally in Small Claims Division
(1) Proceedings in the Small Claims Division of a court are to be conducted with as little formality and technicality as the proper consideration of the matter permits.(2) The rules of evidence do not apply to an action being heard or other proceedings in the Small Claims Division of a court.(3) An Assessor or Magistrate exercising the jurisdiction conferred on a court sitting in its Small Claims Division may inform himself or herself on any matter relating to an action being heard or other proceedings in the Small Claims Division in such manner as he or she thinks fit.(4) Proceedings in the Small Claims Division of a court (other than any judgment given or order made in respect of the proceedings) are not required to be recorded.s 23B: Ins 1990 No 104, Sch 1 (5).
Divisions 3, 3A
24–25A (Repealed)
pt 4, div 3, hdg: Rep 1987 No 281, Sch 2 (17).
s 24: Am 1983 No 45, Sch 3. Rep 1987 No 281, Sch 2 (17).
s 25: Am 1975 No 106, Sch 1 (38); 1980 No 61, Sch 2 (7). Rep 1987 No 281, Sch 2 (17).
pt 4, div 3A: Ins 1975 No 106, Sch 1 (39). Rep 1987 No 281, Sch 2 (17).
s 25A: Ins 1975 No 106, Sch 1 (39). Am 1980 No 61, Sch 3 (6). Rep 1987 No 281, Sch 2 (17).
Division 4 Judgment
26–28 (Repealed)
s 26: Am 1975 No 106, Sch 1 (40)–(44); 1980 No 61, Sch 3 (7). Rep 1987 No 281, Sch 2 (18).
s 27: Am 1975 No 106, Sch 1 (45) (46); 1980 No 61, Sch 3 (8); 1984 No 56, Sch 1 (1); 1987 No 48, Sch 14 (1). Rep 1987 No 281, Sch 2 (18).
s 28: Am 1975 No 106, Sch 1 (47)–(50); 1980 No 61, Schs 1 (4), 2 (8), 3 (9); 1982 No 42, Sch 2 (4). Rep 1987 No 281, Sch 2 (18).
28A Judgment in an action relating to the detention of goods
(1) In an action relating to the detention of goods, the court may, if it finds for the plaintiff, give judgment:(a) for delivery of the goods to the plaintiff, or(b) for delivery of the goods to the plaintiff, but giving the defendant the option of retaining the goods and paying the plaintiff the value of the goods, as assessed by the court, ortogether with any consequential damages.(c) for payment to the plaintiff of the value of the goods, as so assessed,(2) Subject to the rules, relief under subsection (1) (a) is at the discretion of the court, but the plaintiff may choose between the other forms of relief prescribed by subsection (1).(3) If, in an action relating to the detention of goods, judgment is given as referred to in subsection (1) (b), the court, in its discretion, may, on the application of the plaintiff, subsequently make an order for the delivery of the goods to the plaintiff without giving the defendant the option of retaining the goods and paying their assessed value.(4) The rules may make provision with respect to the manner in which a judgment given as referred to in this section may be enforced or satisfied.s 28A: Ins 1979 No 75, Sch 1 (4). Subst 1993 No 80, Sch 1 (3).
29 Judgment against some only of defendants
Judgment against one or more of several defendants shall not preclude the plaintiff from proceeding to judgment and enforcing it against any other defendant or defendants, except in so far as satisfaction by any of them operates in favour of all.
30 (Repealed)
s 30: Am 1980 No 61, Sch 2 (9); 1987 No 48, Sch 14 (2). Rep 1987 No 281, Sch 2 (19).
31 Judgments—how recorded
The entry of a judgment in the records of a court shall be the record of that judgment, and that entry or a copy thereof, certified to be true copy under the hand of the registrar, shall be received as evidence of that judgment.
32 Power to stay proceedings
(1) A court may order, on such terms as it thinks fit, that any proceedings in any action or matter before that court be stayed at any stage of the proceedings.(2) The power conferred by subsection (1) to order a stay of proceedings includes power to order a stay of enforcement of a judgment.(3) Where a court is satisfied that a defendant in an action is maintaining proceedings against the plaintiff in the District Court or the Supreme Court and that those proceedings arise out of the same circumstances as the action, the court shall, on such terms as it thinks fit, order a stay of enforcement of any judgment given or entered up in the action.(4) A Magistrate who is satisfied that because of urgent circumstances it is not practicable for the powers conferred by subsection (1), (2) or (3) to be exercised by the court on which they are conferred may exercise those powers.s 32: Am 1975 No 106, Sch 1 (51); 1982 No 166, Sch 1 (5).
Division 5 Costs
pt 4, div 5, hdg: Subst 1987 No 281, Sch 2 (20).
33 Definition of “costs”
In this Division, a reference to costs is a reference to the costs payable by a party in or in relation to proceedings, including disbursements.s 33: Am 1975 No 106, Sch 1 (52) (53); 1980 No 61, Sch 1 (5). Subst 1987 No 281, Sch 2 (20); 1993 No 87, Sch 6.
34 Costs to be in discretion of court
(1) Subject to this Act and the rules, and subject to any other Act:(a) costs in or in relation to an action shall be in the discretion of a court,(b) a court has full power to determine by whom, to whom and to what extent costs are to be paid in or in relation to an action, and(c) a court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis.(1A) Except as may be provided by the rules, a court sitting in its Small Claims Division has no power to award costs to or against a party to proceedings in the Division.(2) If, in accordance with subsection (1A), the rules provide for a court sitting in its Small Claims Division to award costs, the amount of any such costs is to be determined in accordance with the rules. This subsection prevails to the extent of any inconsistency with section 84 (4), or with the provisions of the Legal Profession Act 1987 (in particular section 196 of that Act) and the regulations under that Act.(3), (4) (Repealed)s 34: Am 1975 No 106, Sch 1 (54); 1980 No 61, Sch 1 (6); 1984 No 56, Sch 1 (1). Subst 1987 No 281, Sch 2 (20). Am 1989 No 169, Sch 6 (3); 1990 No 104, Sch 1 (6); 1992 No 57, Sch 1; 1993 No 87, Sch 6; 2000 No 31, Sch 12 [1].
34A (Repealed)
s 34A: Ins 1982 No 44, Sch 2 (5). Rep 1987 No 281, Sch 2 (20). Ins 1993 No 80, Sch 1 (4). Rep 1993 No 80, Sch 1 (4).
35 Costs to form part of judgment debt
Any costs payable by a judgment debtor under this Act shall form part of the judgment debt.s 35: Subst 1975 No 106, Sch 1 (55). Am 1980 No 61, Sch 1 (7); 1982 No 42, Sch 3 (1). Subst 1987 No 281, Sch 2 (20).
36–38 (Repealed)
s 36: Am 1980 No 61, Schs 1 (8), 3 (10); 1982 No 42, Sch 2 (6). Rep 1987 No 281, Sch 2 (20).
s 36A: Ins 1975 No 106, Sch 1 (56). Am 1984 No 56, Sch 1 (1). Rep 1987 No 281, Sch 2 (20).
s 37: Am 1975 No 106, Sch 1 (57); 1980 No 61, Schs 1 (9), 2 (10); 1982 No 42, Sch 2 (6); 1984 No 56, Sch 1 (2); 1987 No 21, Sch 1 (1); 1987 No 111, Sch 1. Rep 1987 No 281, Sch 2 (20).
s 38: Rep 1987 No 281, Sch 2 (20).
Division 6 Interest
39 Interest on judgment debt
(1) Unless a court orders in any particular case that interest be not payable, interest shall, subject to subsection (3), be payable on so much of the amount of a judgment debt as is from time to time unpaid.(2) Interest payable under subsection (1) in respect of a judgment debt shall:(a) subject to subsection (3), be calculated as from the date when the judgment debt came into being or from such later date as a court in any particular case fixes,(b) be calculated at such rate as may be prescribed by the rules, and(c) form part of the judgment debt, but not so as to require the payment of interest upon interest.(3) Where:(a) the amount of a judgment debt (excluding the amount of any costs remaining to be ascertained) is paid in full within 21 days after the judgment debt becomes payable, orinterest shall, unless a court otherwise orders in any particular case, not be payable on the amount so paid.(b) any amount of costs is paid in full within 21 days after that amount is ascertained,s 39: Am 1980 No 61, Sch 3 (11); 1982 No 42, Sch 2 (7). Subst 1987 No 281, Sch 2 (21). Am 1989 No 89, Sch 1.
39A Order for interest
(1) In any proceedings for the recovery of any money (including any debt, demand or damages or the value of any goods), the court may order that there shall be included, in the amount for which judgment is given, interest at such rate as it thinks fit on the whole or any part of that amount for the whole or any part of the period between the date when the cause of action arose and the date when the judgment takes effect.(2) Where:(a) proceedings have been commenced for the recovery of a debt, a liquidated demand or liquidated damages, andthe court may order that interest be paid at such rate as it thinks fit on the whole or any part of the money paid for the whole or any part of the period between the date when the cause of action arose and the date of the payment.(b) payment of the whole or a part of the debt, demand or damages is made during the currency of the proceedings and prior to or without judgment being given in respect of the debt, demand or damages,(3) This section does not:(a) authorise the giving of interest upon interest,(b) apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise, or(c) affect the damages recoverable for the dishonour of a bill of exchange.(4) The rules may provide that the provisions of subsection (1) or (2), or both, do not apply to or in respect of any proceedings of a class or description that is specified in the rules.s 39A: Ins 1983 No 203, Sch 1 (2).
39B (Repealed)
s 39B: Ins 1983 No 203, Sch 1 (2). Rep 1987 No 281, Sch 2 (22).
Part 5 Enforcement of judgments
Division 1
40 (Repealed)
pt 5, div 1: Rep 1987 No 281, Sch 2 (23).
s 40: Am 1975 No 106, Sch 1 (58)–(60); 1980 No 61, Schs 2 (11), 3 (12); 1983 No 45, Sch 5; 1987 No 48, Sch 14 (3). Rep 1987 No 281, Sch 2 (23).
Division 2 Examination of judgment debtor
41 Summons for examination of judgment debtor
(1) Where a judgment debt has not been satisfied, the judgment creditor may file with the registrar of the court in which the judgment is given or entered up a summons (in this Division referred to as an examination summons) requiring the judgment debtor to be examined at the court for the district specified in the summons, being the district in which the judgment debtor has his or her place of abode, business or employment, as to the matters referred to in subsection (2) (b).(2) An examination summons:(a) shall be made returnable before the registrar of a court, determined by the registrar of the court in which it was filed, for the district specified by the judgment creditor in the summons and at a time on a return date so determined,(b) shall require the judgment debtor to appear at that time before the registrar of the court specified in the summons to be orally examined by the judgment creditor before that registrar or by that registrar as to his or her property and other means of satisfying the judgment debt and generally as to his or her financial circumstances, and(c) may require the judgment debtor to produce to the registrar, at the time and place specified in the summons, any documents or things in the possession or control of the judgment debtor which tend to show the judgment debtor’s true financial circumstances.(3) A person is not bound to produce any document or thing not specified or otherwise sufficiently described in the examination summons or which the person would not be bound to produce on a subpoena for production in the Supreme Court.(4) If a judgment debtor served with an examination summons before or after the substitution of this subsection by the Courts Legislation (Amendment) Act 1993 attends before a registrar as required by the summons:(a) the judgment creditor may, in accordance with the rules, orally examine the judgment debtor before the registrar, oras to the judgment debtor’s property and other means of satisfying the judgment debt and generally as to the judgment debtor’s financial circumstances.(b) if the judgment creditor has so requested in accordance with the rules, the registrar may, in accordance with the rules, orally examine the judgment debtor,(5) (Repealed)(6) Where a judgment creditor has filed an examination summons by reason of the judgment debt not having been satisfied the judgment creditor shall not file another examination summons by reason of that judgment debt not having been satisfied within 3 months after the judgment debtor has appeared for examination in answer to that firstmentioned examination summons or in proceedings under this Division taken against the judgment debtor consequent upon the filing by the judgment creditor of that firstmentioned examination summons.s 41: Am 1970 No 52, Second Sch (am 1972 No 41, Second Sch); 1975 No 106, Sch 1 (61)–(66); 1980 No 61, Sch 3 (13); 1987 No 281, Sch 2 (24); 1993 No 80, Sch 1 (5); 1994 No 32, Sch 3.
42 Failure to attend in answer to examination summons
(1) If, at the time set down (whether originally or on an adjournment) for the examination of a judgment debtor before a registrar:(a) the judgment debtor fails to attend before the registrar,(b) the registrar has no information which satisfies the registrar that the judgment debt has been paid, andthe court may act under subsection (2).(c) there is due proof of service of the examination summons on the judgment debtor (or, if the examination has been adjourned, of service on the judgment debtor of notice of the time and place fixed for the examination),(2) The court may:(a) authorise the issue of a warrant for the apprehension of the judgment debtor, orand the registrar shall forthwith serve on the judgment debtor a notice informing the judgment debtor of any action taken by the court under this subsection.(b) adjourn the examination proceedings and order that the judgment debtor attend before the registrar at that court on a date and at a time specified in the order,(3) A warrant shall not be issued under this section until after the expiration of 14 days after the registrar served the notice under subsection (2).(4) If before an application is made under this subsection the judgment debtor has not attended, by arrangement with the registrar, to be examined as to the matters referred to in section 41 (2) (b), the registrar, on the application of the judgment creditor verified by the judgment creditor’s affidavit or in such other manner as may be prescribed and made not earlier than 14 days, and not later than 3 months, after the registrar served the notice under subsection (2) in respect of the judgment debtor, may issue the warrant for the apprehension of the judgment debtor.(4A) If a judgment creditor fails to make an application under subsection (4) within the time limited by that subsection, the court, if satisfied with the reasons for the failure, may issue a warrant for the apprehension of the judgment debtor.(4B) The functions of the court under subsections (2) and (4A) may be exercised by the registrar.(5) The warrant shall:(a) be under the hand of the registrar,(b) name or otherwise describe the judgment debtor whose apprehension is required by the warrant,(c) state shortly the reason for its issue,(d) contain an order, addressed to the Sheriff and all bailiffs, requiring the apprehension of the judgment debtor if he or she is within New South Wales and directing that he or she be brought before the registrar of the nearest convenient court to the place at which he or she is apprehended to be examined as to the matters referred to in section 41 (2) (b), and(e) subject to subsection (7), continue in force until:(i) the registrar endorses on the warrant that the warrant is revoked by order of any court or of the registrar of the court at which it was issued,(ii) it is endorsed by the registrar in accordance with subsection (6), or(iii) it expires in accordance with the rules.(6) A registrar who examines a judgment debtor in respect of whom a warrant is in force under this section as to the matters referred to in section 41 (2) (b) shall, as soon as practicable after doing so, endorse on the warrant that the warrant is revoked.(7) A registrar who adjourns the examination under an examination summons of a judgment debtor in respect of whom a warrant is in force under this section shall, as soon as practicable after doing so, endorse on the warrant that the warrant is suspended until the time fixed for the examination of the judgment debtor on the day to which the examination of the judgment debtor has been adjourned, and where the warrant is so endorsed it shall not be in force during the period of its suspension but on the expiration of that period shall, subject to subsection (6), be in force, except as may be otherwise provided by the rules.(8) The Sheriff or any bailiff may execute the warrant and any member of the police force shall, if called upon by the Sheriff or a bailiff to do so, aid and assist in the execution of the warrant.s 42: Subst 1975 No 106, Sch 1 (67). Am 1980 No 61, Sch 3 (14); 1987 No 281, Sch 2 (25); 1988 No 20, Sch 10 (3); 1993 No 80, Sch 1 (6); 1994 No 32, Sch 3.
43 (Repealed)
s 43: Rep 1975 No 106, Sch 1 (68).
43A Examination notice
(1) Unless the registrar of the court in which a judgment is given or entered up has information satisfying the registrar that the judgment debt has been paid, that registrar may, on the application of the judgment creditor, serve on the judgment debtor a notice calling upon the judgment debtor to furnish, within such period, not being less than 14 days, as may be specified in the notice, to the judgment creditor answers to the questions contained in the notice relating to the matters referred to in section 41 (2) (b).(2) Notwithstanding subsection (1), while enforcement of a judgment is stayed, the registrar shall not serve on the judgment debtor a notice referred to in subsection (1) relating to the judgment debt under that judgment.(3) Where:(a) a notice referred to in subsection (1) has been served on a judgment debtor,(b) the judgment debtor has, within the period specified in the notice, furnished to the judgment creditor answers to the questions contained in the notice,(c) the judgment debtor is, within 3 months after the service on the judgment debtor of the notice, examined pursuant to an examination summons before or by a registrar (whether that summons was filed before or after the service of the notice on the judgment debtor or before or after the commencement of this section), andthere shall not be added to the judgment debt any costs in respect of the filing, issuing or serving of that examination summons or of any document filed, issued or served in connection with that examination of the judgment debtor.(d) the registrar, on the application of the judgment debtor made at the examination of the judgment debtor, certifies that he or she is satisfied that the judgment debtor answered the questions contained in the notice fairly and truthfully,s 43A: Ins 1975 No 106, Sch 1 (69). Am 1980 No 61, Sch 3 (15); 1987 No 281, Sch 2 (26); 1994 No 32, Sch 3.
44 Examination of judgment debtor
(1) Where a judgment debtor appears before a registrar for examination in accordance with this Division the judgment debtor may be examined on oath as to any of the matters referred to in section 41 (2) (b) by the judgment creditor or, where the judgment creditor has so requested in accordance with section 41 (4) (b) or the judgment debtor is brought before the registrar in accordance with a warrant issued under section 42, by the registrar of the court at which the judgment debtor appears for examination and, if the judgment creditor is present, by the judgment creditor.(2), (3) (Repealed)(4) The registrar before whom a judgment debtor appears for examination under this Division may administer an oath to the judgment debtor for the purposes of that examination.(5) Where a judgment debtor appears for examination in accordance with this Division, a Magistrate may exercise the powers of the registrar under this section.s 44: Am 1975 No 106, Sch 1 (70); 1980 No 61, Sch 3 (16); 1982 No 166, Sch 1 (5); 1987 No 281, Sch 2 (27); 1993 No 80, Sch 1 (7); 1994 No 32, Sch 3.
45 Where judgment debtor corporation
Where a judgment debtor is a body corporate or other body of persons that may by law sue or be sued, whether in its own name or in the name of any officer or other person, an examination summons may be issued under section 41 requiring an officer or former officer of the judgment debtor to appear for examination under this Division as to the property of, and other means of satisfying the judgment debt available to, the judgment debtor and generally as to the financial circumstances of the judgment debtor, and the provisions of this Division shall apply to the person so summoned in the same way as if the person were the judgment debtor.s 45: Am 1992 No 57, Sch 1.
46 Offences where judgment debtor attends for examination
A judgment debtor who attends for examination under this Division shall not:(a) without reasonable excuse, refuse to give evidence on oath at the examination,(b) give false information at the examination, or(c) without reasonable excuse, fail to produce any documents or things that the judgment debtor is required by an examination summons to produce.Penalty: 10 penalty units.s 46: Am 1980 No 61, Sch 3 (17); 1987 No 281, Schs 2 (28), 3 (1); 1994 No 32, Sch 3.
Division 3 Attachment of debts
47 Garnishee orders
(1) The registrar of a court in which a judgment is given or entered up may make an order that all debts due or accruing to the judgment debtor from any person specified in the order shall be attached to answer the judgment debt.(2) A garnishee order shall take effect upon its being served on the garnishee, and upon its being so served:(a) except in a case to which paragraph (b) applies or except in the case of an order to which section 48 applies, shall operate to attach in the hands of the garnishee, to the extent of the amount specified in the order, all debts which are due or accruing from the garnishee to the judgment debtor at the time of service of the order (whether or not they were so due or accruing at the time when the order was made),(b) in the case of an order expressed to be for the attachment of any wage or salary, not being an order to which section 48 applies, shall operate, subject to this Division, to attach, to the extent of the amount specified in the order, the wage or salary next payable by the garnishee to the judgment debtor within 4 weeks after the service of the order on the garnishee.(3) An application for a garnishee order may be made ex parte by, and shall be supported by an affidavit of, the judgment creditor.(4) A garnishee order shall:(a) specify the unpaid amount of the judgment debt owing to the judgment creditor, and(b) require the garnishee to pay, in accordance with this Act and the rules, the debt, wage or salary attached or so much of it as may be sufficient to satisfy that unpaid amount after deducting such amount (if any) as may be notified in writing to the garnishee by the judgment creditor or the registrar as having been paid or credited to the judgment creditor on account of that unpaid amount otherwise than under the order.(5) Where, by reason of the smallness of the judgment debt or of the amount to be recovered or of the debt sought to be attached or for any other reason, the registrar is of the opinion that a garnishee order should not be made, the registrar may refuse to make the order.s 47: Am 1980 No 61, Sch 3 (18); 1987 No 21, Sch 1 (2); 1994 No 32, Sch 3.
47A Affidavit that no debt due or accruing
(1) A garnishee who believes that, at the time of service of the garnishee order, there was no debt due or accruing from the garnishee to the judgment debtor may serve on the judgment creditor an affidavit which is to that effect and contains a summary of the grounds on which that belief is based.(2) A disclosure of any information in an affidavit served pursuant to subsection (1) shall not, if the disclosure was reasonable in the circumstances, subject the garnishee to any action, liability, claim or demand.s 47A: Ins 1987 No 21, Sch 1 (3).
47B Time for payment by garnishee
(1) Payment by a garnishee in accordance with a garnishee order not expressed to be for the attachment of any wage or salary shall be made:(a) within the period of 21 days after service of the order on the garnishee, or(b) in the case of any debt attached which is due for payment to the judgment debtor after the expiration of that period—not later than the date on which that debt is due for payment to the judgment debtor.(2) Payment by a garnishee in accordance with a garnishee order expressed to be for the attachment of any wage or salary shall be made within the period of 14 days after the wage or salary is due for payment to the judgment debtor.(3) (Repealed)s 47B: Ins 1987 No 21, Sch 1 (3). Am 1992 No 57, Sch 1.
47C Notice required for certain attached debts accruing
(1) Where a garnishee order not expressed to be for the attachment of any wage or salary attaches a debt which is due for payment to the judgment debtor after the expiration of the period of 21 days after service of the order on the garnishee, the garnishee shall, before the expiration of that period, serve on the judgment creditor a notice which complies with subsection (2).(2) A notice under subsection (1) in respect of a debt shall specify:(a) the date on which the debt is, or is likely to be, due for payment to the judgment debtor, and(b) if the amount of the debt is less than the unpaid amount of the judgment debt specified in the garnishee order—the amount of the debt.(3) A person shall not make in a notice served pursuant to subsection (1) a statement which, to the person’s knowledge, is false.Maximum penalty: 2 penalty units.s 47C: Ins 1987 No 21, Sch 1 (3). Am 1993 No 47, Sch 1.
47D Garnishee’s costs
If a garnishee complies with a garnishee order (other than a garnishee order to which section 48 applies) within the time prescribed by section 47B and, where applicable, complies with section 47C (1):(a) the garnishee may retain out of the debt attached for the garnishee’s own use an amount not exceeding that prescribed by the rules, and(b) any amount so retained shall, for the purposes of the debt attached, be deemed to have been paid by the garnishee to the judgment debtor.s 47D: Ins 1987 No 21, Sch 1 (3).
47E Reduction of attached debt by court
If, after service of a garnishee order on the garnishee, the garnishee acts with reasonable diligence for the purpose of giving effect to the attachment but nevertheless pays to the judgment debtor the whole or any part of the debt attached or otherwise deals with the debt attached so as to satisfy, as between the garnishee and the judgment debtor, the whole or any part of the debt attached, the court may order that, for the purposes of the garnishee proceedings, the debt attached be reduced to the extent of the payment or satisfaction.s 47E: Ins 1987 No 21, Sch 1 (3).
48 Continuous operation of garnishee order
(1) In this section, instalment order means an order made in accordance with the rules providing for a judgment debt to be paid by instalments.(2) This section applies to and in respect of a garnishee order expressed to be for the continuous attachment of the wage or salary of a judgment debtor if the applicant for the garnishee order, in the application, requests that the order be so expressed and the registrar so expresses the order.(3) A garnishee order to which this section applies, upon its being served on the garnishee, shall, subject to this section, thereafter operate to attach, to the extent of the amount specified in the order, any wage or salary payable by the garnishee to the judgment debtor from time to time until the expiration of a period of 4 weeks after the garnishee order is so served.(4) Where an instalment order is in force relating to a judgment debt the subject of a garnishee order to which this section applies and a copy of the instalment order is served on the garnishee, the garnishee order shall thereafter, unless any period specified in the instalment order for which it was to remain in force has expired, operate, to the extent necessary to secure payment of the instalments specified in that instalment order, to attach any wage or salary payable by the garnishee to the judgment debtor from time to time, but shall not so operate to an extent greater than is necessary to satisfy the judgment debt.(5) A garnishee order made under this Act for the attachment of a wage or salary to answer the same judgment debt in respect of which an order to which this section applies is in force shall have no force or effect.s 48: Am 1980 No 61, Sch 3 (19); 1987 No 21, Sch 1 (4); 1987 No 281, Sch 2 (29); 1994 No 32, Sch 3.
49 Limitation on operation of garnishee orders attaching a wage or salary
(1) In this section:prescribed rate, in relation to a wage or salary, means:(a) if no part of the wage or salary is otherwise attached under this or any other Act—a rate equal to the weekly compensation payment, or(b) if any part of the wage or salary is otherwise attached under this or any other Act—a rate equal to the weekly compensation payment increased by the amount so attached, calculated on a weekly basis.wage or salary includes earnings that are not payable under a contract of employment, but that are either analogous to or in the nature of wages or salary, and the earnings of a share farmer or share worker.weekly compensation payment means an amount calculated at a weekly rate that is equivalent to 80 per cent of the maximum single weekly payment of compensation for the time being referred to in section 37 (1) (a) (i) of the Workers Compensation Act 1987 as adjusted under that Act.(2) A garnishee order for the attachment of the wage or salary of a judgment debtor shall extend only:(a) where the wage or salary is payable for a period of one week, to that part of the wage or salary that is payable at a rate in excess of the prescribed rate, or(b) where the wage or salary is payable for a period greater than one week, to that part of the wage or salary payable for that period that is payable at a rate in excess of the prescribed rate.s 49: Am 1980 No 61, Sch 3 (20); 1992 No 57, Sch 1.
50 Payment under certain garnishee orders
(1) Subject to compliance with subsection (2), a garnishee required to make a payment under a garnishee order to which section 48 applies may deduct therefrom for the garnishee’s own use an amount equal to 10 per cent thereof.(2) Where a garnishee makes a deduction in accordance with subsection (1), the garnishee shall forward to the judgment creditor, when making payment to the registrar or the judgment creditor of the balance of the payment due, a statement showing:(a) the amount deducted under the garnishee order from the wage or salary of the judgment debtor,(b) the amount deducted by the garnishee for the garnishee’s own use under subsection (1), and(c) the amount of the payment to the registrar or the judgment creditor, as the case may be.(3) Where a garnishee makes a payment in accordance with a garnishee order to which section 48 applies after making a deduction in accordance with subsection (1), the amount deducted shall for the purposes of the wage or salary attached be deemed to have been paid by the garnishee to the judgment debtor.s 50: Am 1980 No 61, Sch 3 (21); 1987 No 21, Sch 1 (5); 1994 No 32, Sch 3.
51 Limitation of payment under certain concurrent attachment orders
(1) In this section, instalment garnishee order means a garnishee order that operates as provided by section 48 (4) and includes an attachment order, made under an Act other than this Act, that has a like operation.(2) This section shall apply where a wage or salary is attached by more than 1 order, including at least 1 garnishee order, whether or not the other orders were made under this Act, and where, of the orders attaching to the wage or salary, at least 1 is, and 1 is not, an instalment garnishee order.(3) Subject to section 49 and except to the extent that, in the case of an order made under an Act other than this Act, that other Act otherwise provides, where this section applies the amount payable by the garnishee under any of the orders that is not an instalment garnishee order shall not, in respect of any payment of wage or salary attached under such an order, exceed:(a) where only 1 of the orders is an instalment garnishee order, the amount payable by the garnishee under that instalment garnishee order in respect of any payment of wage or salary, or(b) where more than 1 of the orders is an instalment garnishee order, the greater, or greatest, of the amounts payable by the garnishee under the instalment garnishee orders in respect of any payment of wage or salary.s 51: Am 1980 No 61, Sch 3 (22).
52 Procedure where garnishee order not complied with
(1) Where a judgment creditor is satisfied that a garnishee order relating to the judgment debt has not been complied with by the garnishee on whom it was served, the judgment creditor may file with the registrar a summons requiring the garnishee to show cause at the court for the district specified in the summons, being the district in which the garnishee has his or her place of abode, business or employment, why the garnishee should not comply with the garnishee order.(2) A summons filed under subsection (1) shall be made returnable at a court, determined by the registrar of the court in which it was filed, for the district specified by the judgment creditor in the summons and at a time and on a return date so determined.(3) If at the time set down (whether originally or on an adjournment) for the garnishee’s appearance to answer the summons, the garnishee:(a) fails to appear at the court determined by the registrar, orthe court may:(b) appears at that court but does not satisfy the court that the debt alleged by the judgment creditor to be owing by the garnishee to the judgment debtor is bona fide in dispute,(c) order execution to issue and it may be sued out accordingly without any other writ or process to levy the amount alleged to be due from the garnishee to the judgment debtor or the unpaid amount of the judgment debt, whichever is the lesser, in payment of or towards satisfaction of the judgment debt, orbut shall not make an order under paragraph (c) except upon due proof of service of the summons on the garnishee or, where the matter has been adjourned, of the garnishee having been served with notice of the time and place fixed for the garnishee’s appearance.(d) adjourn the matter and order that the garnishee appear before the court to show cause at such time as may be specified in the order why the garnishee should not comply with the garnishee order,(4) Where a garnishee appears to show cause as mentioned in subsection (3) and satisfies the court that the debt alleged by the judgment creditor to be owing by the garnishee to the judgment debtor is bona fide in dispute, the court shall:(a) where it is satisfied that it would not have jurisdiction under this Act in an action relating to the debt—by its order, discharge the garnishee order which shall thereupon cease to have any force or effect, or(b) in any other case—order that the question as to whether the garnishee is liable to pay the debt or any part of the debt to the judgment debtor be set down for hearing in the court at a time and on a date specified in the order.(5) Where the court makes an order under subsection (4) (b), the judgment creditor shall be deemed to have commenced an action, at the court and at the time on the date specified in the order, against the garnishee for the recovery of the amount of the debt alleged to be owing by the garnishee to the judgment debtor or the unpaid amount of the judgment debt, whichever is the lesser, and, upon the judgment creditor proving the debt, judgment against the garnishee shall be given in favour of the judgment creditor for that amount.(6) The court may, in an order under subsection (4) (a) or in a judgment under subsection (5), order the payment of such amount as may be specified in the order or judgment by one party to the other:(a) for or towards the reasonable professional costs incurred by that other party in connection with proceedings under this section,(b) for or towards the reasonable expenses incurred by that other party in connection with the garnishee order, and(c) for or towards witnesses’ expenses incurred by that other party.(7) Costs or expenses allowed as referred to in subsection (6):(a) in the case of an order under subsection (4) (a)—are a judgment against the party liable to pay the costs or expenses, orand are enforceable accordingly.(b) in the case of a judgment under subsection (5)—form part of the judgment,s 52: Am 1975 No 106, Sch 1 (71)–(73); 1980 No 61, Sch 3 (23); 1987 No 21, Sch 1 (6); 1987 No 281, Sch 2 (30); 1994 No 32, Sch 3.
52A Bank, building society and credit union accounts
(1) In this section, except in so far as the context or subject-matter otherwise indicates or requires:account includes:(a) a deposit account or withdrawable share account, andbut does not include an account or a record which is prescribed by the rules as exempt from the operation of this section.(b) any record of deposit or of subscription for withdrawable shares,bank means:(a) a bank within the meaning of the Banking Act 1959 of the Commonwealth, as amended and in force for the time being, or(b) a person who carries on State banking within the meaning of section 51 (xiii) of the Constitution of the Commonwealth.building society means a building society registered under the Financial Institutions (NSW) Code or a co-operative housing society registered under the Co-operative Housing and Starr-Bowkett Societies Act 1998.credit union means a credit union registered under the Financial Institutions (NSW) Code.deposit-taking institution means a bank, building society or credit union.(2) For the purpose of determining whether an amount standing to the credit of a judgment debtor in an account in a deposit-taking institution is attachable as a debt due or accruing to the judgment debtor, the following conditions shall be disregarded:(a) a condition that a demand must be made before any money or share is withdrawn,(b) a condition relating to the manner in which or the place at which any such demand is to be made,(c) a condition that a passbook, receipt or other document must be produced before any money or share is withdrawn,(d) a condition that notice is required before any money or share is withdrawn,(e) except in the case of an account in a Starr-Bowkett society, a condition that any money or share must not be withdrawn for any specified period,(f) a condition prescribing a minimum amount in respect of any withdrawal from the account,(g) a condition that a minimum balance must be maintained in the account,(h) a condition relating to the account prescribed by the rules for the purposes of this subsection.(3) So much of the amount standing to the credit of a judgment debtor in a withdrawable share account in a building society or credit union as is the minimum amount that must be maintained in the account in order that the judgment debtor retains membership of the building society or credit union is not attachable.(4) Where an amount standing to the credit of a judgment debtor in an account in a deposit-taking institution is attached, the garnishee order shall be deemed to operate as a notice of withdrawal or demand for payment under the contract between the garnishee and judgment debtor in respect of the account, and that notice or demand is, while the order remains in force, irrevocable and shall be deemed to have been received by the garnishee:(a) on the date of service of the order, or(b) where the judgment debtor is not entitled under the contract to give a notice of withdrawal or make a demand for payment on the date of service of the order—on the date on which the judgment debtor would, but for the order, have become so entitled.(5) Any charge on an amount standing to the credit of a judgment debtor in an account in a building society or credit union (being a charge created by an Act under which the building society or credit union is registered or regulated or by the rules of the building society or credit union) shall be disregarded for the purposes of a garnishee order, but nothing in the foregoing affects the rights of the building society or credit union to set off or appropriate the whole or any part of that amount.(6) Where:(a) before the expiration of the period of 21 days after service of a garnishee order on a deposit-taking institution with respect to an amount standing to the credit of a judgment debtor in an account, the garnishee pays to the registrar the debt attached to the extent of the attachment, andthe garnishee may, at the time of payment of that amount to the registrar, by instrument in writing signed by an officer of the deposit-taking institution, require the registrar to retain the amount so paid for any specified period not exceeding 2 months commencing on the date of that payment.(b) one of the conditions applicable to the account is that a passbook must be produced before any money or share is withdrawn,(7) Where:(a) a registrar is required under subsection (6) by a garnishee to retain an amount for a period specified under that subsection, andthe court may, if it thinks fit, order the registrar to repay that amount or any part of that amount to the garnishee.(b) the garnishee during that period makes an application for an order under this subsection on the ground that the garnishee has acted with reasonable diligence in relation to the garnishee order but nevertheless, because of the production of a current passbook relating to that amount or any part of that amount, has (whether during or before that period) paid to the judgment debtor the whole or any part of the debt attached or otherwise dealt with the debt attached so as to satisfy, as between the garnishee and the judgment debtor, the whole or any part of the debt attached,(8) Where a registrar is required under subsection (6) by a garnishee to retain an amount for a period specified under that subsection, the registrar shall not pay that amount or any part of that amount to the judgment creditor:(a) until after:(i) the garnishee, by instrument in writing signed by an officer of the deposit-taking institution, informs the registrar, or the registrar is otherwise satisfied, that a current passbook relating to that amount or any part of that amount has, during that period, come into the possession of the garnishee at the place of keeping of the account to the credit of which that amount was standing, orwhichever first occurs, and(ii) the expiration of that period,(b) unless the registrar is satisfied, on such information as is available to the registrar, that no application made during that period by the garnishee for an order under subsection (7) in relation to that amount or any part of that amount is still pending.(9) If an amount referred to in subsection (8) or any part of such an amount is ordered to be repaid to the garnishee under subsection (7), the balance (if any) only is payable to the judgment creditor.s 52A: Ins 1975 No 106, Sch 1 (74). Am 1980 No 61, Sch 3 (24). Subst 1987 No 21, Sch 1 (7). Am 1998 No 11, Sch 6.16.
53 (Repealed)
s 53: Am 1980 No 61, Schs 2 (12), 3 (25). Rep 1987 No 281, Sch 2 (31).
54 Discharge of garnishee
Subject to section 55 (2), payment made by or execution levied upon a garnishee shall satisfy the judgment debt, and be a valid discharge to the garnishee as against the judgment debtor, to the extent of the amount paid or levied, notwithstanding that the garnishee order or the judgment for the judgment debt may be set aside or the judgment reversed.s 54: Am 1975 No 106, Sch 1 (75); 1994 No 32, Sch 3.
55 Payments by garnishee to judgment creditor
(1) A payment under a garnishee order shall be made to the registrar, for payment (subject to subsection (2)) to the judgment creditor, or, if the garnishee before making the payment serves on the judgment debtor notice that the garnishee proposes so to do, may be made to the judgment creditor.(2) Where any amount is ordered to be repaid to a garnishee under section 52A (7):(a) the payment of that amount by the garnishee does not satisfy, and shall be deemed never to have satisfied, the judgment debt, and(b) this Division applies to and in respect of the judgment debt as if the garnishee had never made that payment.s 55: Am 1975 No 106, Sch 1 (76)–(78); 1980 No 61, Sch 3 (26); 1982 No 44, Sch 3 (2); 1987 No 21, Sch 1 (8); 1994 No 32, Sch 3.
56 Judgment creditor to account for any excess paid by a garnishee
(1) Where a judgment creditor receives an amount paid under a garnishee order in excess of the amount required to satisfy the judgment debt the judgment creditor shall forthwith serve on the garnishee and the judgment debtor notice of that fact and on demand made by the judgment debtor pay the excess to the judgment debtor.Maximum penalty: 1 penalty unit.(2) Where an amount in excess of the amount required to satisfy the judgment debt is paid by a garnishee under a garnishee order, the excess shall be recoverable by the garnishee or the judgment debtor from the judgment creditor in any court of competent jurisdiction.s 56: Am 1975 No 106, Sch 1 (79); 1980 No 61, Sch 3 (27); 1993 No 47, Sch 1; 1994 No 32, Sch 3.
57 Registrar may pay amounts received from garnishee to judgment creditor
Subject to section 52A, any amounts received by the registrar from the garnishee under a garnishee order may be paid by the registrar to the judgment creditor without further order.s 57: Am 1975 No 106, Sch 1 (80); 1994 No 32, Sch 3.
Division 4 Execution
58 Execution
(1) The registrar of a court in which a judgment is given or entered up may, on the application of the judgment creditor, issue a writ of execution in the nature of a writ of fieri facias, which writ of execution shall be directed to the Sheriff and all bailiffs appointed for the purposes of this Act, who, subject to section 9, are hereby empowered to execute the writ in any part of New South Wales in the same manner in all respects, subject to the provisions of this Act, as a process of a similar nature issuing out of the Supreme Court may be executed by the sheriff or a deputy sheriff of that court.(2) A writ of execution issued under this section shall be in force for the prescribed period.s 58: Am 1980 No 61, Sch 3 (28); 1983 No 45, Sch 4 (2); 1989 No 169, Sch 6 (4).
59 Sheriff or bailiff to take under writ of execution
(1) The Sheriff or a bailiff of any court may seize and take under any writ of execution whereby he or she is directed to levy any sum of money, and may cause to be sold:(a) all the goods, chattels and other personal property, other than chattels real, of or to which the person named in the writ as judgment debtor is or may be possessed or entitled, or which the person can, either at law or in equity, assign or dispose of, except:(i) any wearing apparel and any bedroom or kitchen furniture, andbeing used as such by the judgment debtor or any member of his or her family, and(ii) any ordinary tools of trade, plant and equipment, professional instruments and reference books, not exceeding in the aggregate $2,000 in value,(b) subject to this Division, all the land of or to which the person named in the writ as judgment debtor is seized or entitled, or which the person can, either at law or in equity, assign or dispose of.(2) The Sheriff or a bailiff shall, before selling any property, diligently ascertain whether it would be best, with the view of obtaining the highest prices for the property, to cause the sale to be at the place of levy or elsewhere, and shall sell at the place where, in his or her judgment, those prices are most likely to be obtained.(2A) If, in the opinion of the Sheriff or a bailiff of any court, the cost of seizing, removing, storing and selling property to be seized or taken under a writ of execution is likely to exceed the total sale price of that property, the Sheriff or bailiff concerned may decline to execute that writ.(3) A judgment debtor against whom a writ of execution has issued may inform the Sheriff or bailiff that his or her property available for execution is more than sufficient to satisfy the execution and point out to the Sheriff or bailiff what part or parts of the property he or she will have first sold, and that part or those parts shall be sold accordingly but, if that part or those parts is or are not sufficient to satisfy the execution, the Sheriff or the bailiff shall proceed to sell the whole of the property or such other parts thereof as are sufficient to satisfy the execution.(4) All property taken under a writ of execution shall be put up for sale as soon as possible with due regard to the interests of all parties but, if the Sheriff or bailiff cannot effect an early sale of any property without a sacrifice of its reasonable value, he or she may delay the sale.(5) Where any property is to be sold pursuant to any such writ, the Sheriff or bailiff shall cause notice of the writ, of the intended day and place of the sale and of particulars of the property, to be published in such manner as may be prescribed.(6) The Sheriff or a bailiff may serve:(a) on a judgment debtor against whom a writ of execution has issued, ora notice in writing informing the person so served that that person is responsible for the safekeeping of such of the personal property of the judgment debtor in his or her custody as has been seized under the writ of execution.(b) on any person who has the custody of any personal property of such a judgment debtor,(7) A person (whether or not the person is the judgment debtor), knowing that any personal property has been seized under subsection (1) or is the subject of a notice under subsection (6), shall not, except with the consent in writing of the Sheriff or bailiff by whom the property was seized or by whom such a notice was served, interfere with or dispose of any such property or remove any such property from the place at which it was seized or at which it was situated when the notice was served.Maximum penalty: 50 penalty units.(8) Nothing in this section affects the provisions of the Judgment Creditors’ Remedies Act 1901.s 59: Am 1975 No 106, Sch 1 (81) (82); 1980 No 61, Sch 3 (29); 1987 No 48, Sch 14 (4); 1988 No 20, Sch 10 (4); 1989 No 169, Sch 6 (5); 1992 No 57, Sch 1; 1994 No 32, Sch 3; 2001 No 85, Sch 7 [1] [2].
59A Auctioning of seized property
(1) The rules may make provision for or with respect to:(a) the appointment of a licensee within the meaning of the Property, Stock and Business Agents Act 2002 who is accredited to act as an auctioneer under section 21 of that Act to sell any property under a writ of execution, and(b) the respective functions of the auctioneer and the Sheriff or bailiff.(2) Without limiting the generality of this section, the rules may authorise or require the auctioneer to exercise any function of the Sheriff or bailiff in connection with the sale of the property.s 59A: Ins 1988 No 20, Sch 10 (5). Am 1989 No 169, Sch 6 (6); 2003 No 71, Sch 6 [2].
60, 61 (Repealed)
s 60: Am 1975 No 106, Sch 1 (83)–(85); 1980 No 61, Sch 3 (30). Rep 1989 No 169, Sch 6 (7).
s 61: Am 1980 No 61, Sch 3 (31). Rep 1993 No 80, Sch 1 (8).
62 Realty and leaseholds
No real or leasehold property shall be liable to be levied upon under a writ of execution except as provided by section 62A.s 62: Am 1989 No 169, Sch 6 (8).
62A Special provisions relating to execution against land
(1) This section does not apply to a writ of execution unless the amount required to satisfy it is at least $3,000 or such other amount as may be prescribed.(2) Subject to section 105 of the Real Property Act 1900 and section 188 of the Conveyancing Act 1919, a writ of execution, when delivered to the Sheriff or bailiff required to execute it, binds land in the same manner as a writ of execution against property binds goods and chattels.(3) Land is not to be sold under a writ of execution before all the property referred to in section 59 (1) (a) that may be sold under the writ has been sold unless:(a) the judgment debtor requests that the land be sold before all or any of that property is sold, or(b) the Sheriff or bailiff is satisfied that the sale of the land before the sale of all or any of that property would minimise hardship to the judgment debtor or any other person.(4) The Sheriff or bailiff must not cause land to be sold under a writ of execution except on compliance by the judgment creditor and the Sheriff or bailiff with the prescribed procedures, but a purchaser of the land, and the Registrar-General, need not be concerned to inquire whether this subsection has been complied with.(5) The publication under section 59 (5) of notice of the intended sale under a writ of execution of any land is to be considered to be a seizure by the Sheriff or bailiff of the land under the writ, and no actual seizure of the land is necessary in order to authorise its sale under the writ.(6) If land that is not under the provisions of the Real Property Act 1900 is sold under a writ of execution, the registrar of the court that is nearest to the place of sale is to execute a proper assurance in favour of the purchaser.s 62A: Ins 1989 No 169, Sch 6 (9).
62B Sale or mortgage by judgment debtor of land affected by writ
(1) In this section:issuing registrar, in relation to a writ of execution, means the registrar of the court at which the writ of execution was issued.notice of consent means the notice referred to in subsection (2) (a).(2) If land is affected by a writ of execution particulars of which have been recorded in accordance with section 105 of the Real Property Act 1900, or which has been registered in the register of causes, writs and orders affecting land in accordance with section 186 of the Conveyancing Act 1919 and:(a) the judgment creditor consents, by notice in writing, to the sale or mortgage of the land by the judgment debtor, and(b) the judgment creditor stipulates, in the notice of consent, the minimum amount that should be paid to the issuing registrar out of the proceeds of the sale or the money advanced in respect of the mortgage, and(c) the notice of consent is filed with the issuing registrar, andthe endorsement of the notice with that certificate operates to prohibit the sale of the land under the writ during the prescribed period.(d) the issuing registrar, after due inquiry, endorses the notice of consent with a certificate to the effect that the land has not been sold under the writ,(3) If during that prescribed period:(a) the judgment debtor sells or mortgages the land, and(b) in the case of a sale, the amount of the deposit (if any) is paid to the issuing registrar, to be held by the registrar as stakeholder, andany liability of the purchaser or mortgagee for payment to the judgment debtor of those proceeds or that money is extinguished to the extent of the amount so paid to the issuing registrar, and the issuing registrar must, upon production to him or her of the instrument evidencing the sale or mortgage, and if he or she is satisfied as to the matters referred to in paragraphs (a), (b) and (c), endorse the instrument with his or her consent to the sale or mortgage.(c) an amount (including any deposit paid to the issuing registrar as referred to in paragraph (b)) that is not less than:(i) the minimum amount referred to in subsection (2) (b), oris paid to the issuing registrar out of the proceeds of the sale or money advanced in respect of the mortgage,(ii) if the judgment creditor notifies the issuing registrar in writing that he or she consents to payment of a specified amount that is less than that minimum amount—that specified amount,(4) The interest of the purchaser or mortgagee evidenced by the instrument endorsed with the issuing registrar’s consent is not, in relation to the land, affected by anything done or purporting to have been done, whether before or after the endorsement of the consent, under the writ of execution.(5) The amount paid to the issuing registrar, as referred to in subsection (3) (c), is, subject to and in accordance with the rules:(a) to be paid to or at the direction of the judgment creditor, and(b) to be in reduction of the judgment debt.s 62B: Ins 1989 No 169, Sch 6 (9).
Division 5 Setting off of judgments
63 Enforcement where judgment given on action and cross-claim
Where a cross-claim is brought in relation to an action and judgment for the payment of an amount is given on the action and on the cross-claim:(a) the party in whose favour judgment is given for the lesser amount shall not be entitled to enforce that judgment, and(b) the party in whose favour judgment is given for the larger amount shall be entitled to enforce the judgment only for so much of that amount as exceeds the lesser amount.s 63: Am 1975 No 106, Sch 1 (86); 1987 No 281, Sch 2 (32).
64 Set-off of judgments
(1) Where:(a) judgment in an action has been given or entered up in a court (in this section referred to as the first court), andthat judgment debtor may apply to the first court for an order that the judgment against the judgment debtor be set off against the judgment in the judgment debtor’s favour.(b) the judgment debtor under that judgment has had a judgment given or entered up in his or her favour in another action against his or her judgment creditor in the same or another court (in this section referred to as the second court),(2) Where any such order has been made and:(a) the amount of the judgment in the first court is less than or equal to the amount of the judgment in the second court, the judgment in the first court shall be deemed to be satisfied, and the amount of the judgment in the second court shall be reduced by the amount of the judgment in the first court, or(b) the amount of the judgment in the first court is greater than the amount of the judgment in the second court, the amount of the judgment in the first court shall be reduced by the amount of the judgment in the second court, and the judgment in the second court shall be deemed to be satisfied.s 64: Am 1994 No 32, Sch 3.
Division 6 Limitation periods
pt 5, div 6 (s 64A): Ins 1983 No 45, Sch 4 (3). Am 1987 No 281, Sch 2 (33).
64A Limitation on enforcement
(1) Without the leave of the court:(a) an application may not be made by a judgment creditor under section 43A (1), 47 (3) or 58 (1), andif a period of 12 years has elapsed since the judgment was given or entered up.(b) a summons may not be filed by a judgment creditor under section 41 (1),(2) The court may not grant leave under subsection (1) in respect of a judgment unless a certified copy of the judgment is produced to the court by the applicant for leave.pt 5, div 6 (s 64A): Ins 1983 No 45, Sch 4 (3). Am 1987 No 281, Sch 2 (33).
Part 6 Interpleader
65 Interpleader by defendant, Sheriff or bailiff
(1) An application may be made for relief by way of interpleader:(a) by a defendant in an action brought in a court for or in respect of any debt, money, goods or chattels to which some third party makes a claim, or(b) by the Sheriff or a bailiff if a claim is made to any money, goods, or chattels, taken or intended to be taken in execution under a writ of execution, or to the proceeds or value of any such goods or chattels, by any person other than the person against whom the writ issued.(2) An application under subsection (1) shall be made to the registrar of the court in which the action is brought or of the court for the district in which the writ of execution is or is intended to be executed, as the case may be.(3) Where the application is made by the defendant, it shall be supported by an affidavit showing:(a) that the applicant claims no interest in the subject-matter in dispute other than for charges or costs,(b) that the applicant does not collude with the person making a claim as referred to in subsection (1) (a), and(c) that the applicant is willing to pay or transfer the subject-matter in dispute into court.s 65: Am 1980 No 61, Sch 3 (32); 1988 No 20, Sch 10 (6).
66 Claim by third party to property seized under writ of execution
(1) Where:(a) any property has been seized by the Sheriff or a bailiff under a writ of execution,(b) a claim thereto, verified by the affidavit of the claimant (not being the judgment debtor), is made to the Sheriff or bailiff,(c) the property has not been sold under the writ, andthe property shall thereupon be released from execution under the writ, and the Sheriff or bailiff shall make an application for relief by way of interpleader under section 65.(d) the claimant has:(i) paid to the Sheriff or bailiff an amount equal to the value of the property, or(ii) given to the Sheriff or bailiff security to the value of the property,(2) The amount of such value and the nature of such security shall be as may be agreed upon between the claimant and the Sheriff or bailiff, or where they have not agreed shall be as determined by some competent person appointed by the registrar, and the costs of the determination shall be paid by the claimant, and, if the court so orders, may be added to the costs of the levy or of any proceedings under this Part.(3) Any amount paid to the Sheriff or bailiff under subsection (1) (d) (i) shall be forthwith paid by the Sheriff or bailiff to the registrar of the court to which the application under section 65 (1) was made, and shall be paid out by the registrar in accordance with the order of the court hearing the claim.(3A) Subject to and in accordance with the rules, where a claim is made to any property under subsection (1) (b) and the claimant has not paid any amount, or given any security, to the Sheriff or bailiff under subsection (1) (d), the Sheriff or bailiff may:(a) apply for relief by way of interpleader under section 65 in respect of the property, and(b) postpone the sale of the property pending hearing by the court of the application for relief.(3B) Upon the hearing of an application referred to in subsection (3A), the court shall adjudicate on the claim to the property the subject of the application and shall make such order between the parties in respect of that property, and of the costs of the proceedings on the application, as may to it seem fit.(4) On the hearing of the application for relief by way of interpleader the cost of the levy on the goods claimed shall be either added to the amount of the costs charged in the execution or paid by the judgment creditor or by the party claiming the property, as the court may direct.s 66: Am 1980 No 61, Sch 3 (33); 1987 No 281, Sch 2 (34); 1988 No 20, Sch 10 (7); 1994 No 32, Sch 3.
67 Registrar to issue summons and record commencement of interpleader action
(1) Upon an application being made under section 65, other than an application referred to in section 66 (3A), the registrar shall issue a summons calling upon the claimant to state the nature and particulars of his or her claim in such form and within such time as may be prescribed.(2) Upon the issue of the summons and, where the application for relief is made by the defendant, upon the payment of the amount, or the transfer of the property the subject, of the claim into court or upon the claimant giving security to the value of that property, as may be required by the registrar, all proceedings in the action and in any other action which may have been brought in the Supreme Court, District Court or a court in respect of the claim shall be stayed.(3) If the claimant complies with the summons, the registrar shall record the commencement of an interpleader action and issue an interpleader summons calling before the court the execution creditor or the plaintiff in the action and the claimant, and the court shall adjudicate upon the claim, and:(a) make such order between the parties in respect thereof, of the costs of the proceedings and of the continuance of the actions in which proceedings have been stayed, andas may to it seem fit.(b) where any amount has been paid, or security has been given, to the Sheriff or a bailiff in respect of property the subject of the claim, make such order with respect to the payment of that amount or the enforcement or discharge of that security,(4) An order made under subsection (3) may be enforced in the same manner as a judgment in any other action brought in the court.(5) If the claimant fails to comply with the summons issued under subsection (1):(a) the stay of proceedings shall be removed, andunless the court otherwise orders upon satisfactory explanation made by the claimant in such manner and within such time as may be prescribed, and where any moneys have been paid into court by the defendant or the Sheriff or bailiff or any security has been given to the Sheriff or bailiff or registrar in respect of the property the subject of the claim the court may make such order with respect to the payment of those moneys or the enforcement or discharge of that security as it thinks fit.(b) the claimant shall be forever barred from prosecuting any claim in respect of the subject matter of the action,(6) An order under subsection (5) shall not be made except upon an application made by the plaintiff or the judgment creditor, as the case may be, or by the registrar.s 67: Am 1987 No 281, Sch 2 (35); 1988 No 20, Sch 10 (8); 1994 No 32, Sch 3.
68 Adverse titles
Relief by way of interpleader may be granted though the titles of the persons claiming to the money, goods, or chattels in question, or to the proceeds or value thereof have not a common origin, but are adverse to and independent of each other.
Part 7 Appeal
69 Appeal
(1) Subject to subsection (2), all judgments and orders of a court exercising jurisdiction under this Act shall be final and conclusive.(2) A party to proceedings under this Act who is dissatisfied with the judgment or order of the court as being erroneous in point of law, may appeal to the Supreme Court therefrom.(2A) However, in the case of proceedings in the Small Claims Division of a court, an appeal under subsection (2) lies only on the ground of lack of jurisdiction or denial of natural justice.(2B) Despite subsection (2), but subject to subsection (2A), an appeal does not lie to the Supreme Court against any of the following judgments or orders of a court except by leave of the Supreme Court:(a) an interlocutory judgment or order,(b) a judgment or order made with the consent of the parties,(c) an order as to costs.(3) A party to proceedings under this Act who is dissatisfied with the judgment or order of the court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court, but only by leave of the Supreme Court.(4) The Supreme Court may determine an appeal made under this section:(a) by setting the judgment or order aside, or(b) by varying the terms of the judgement or order, or(c) by setting the judgment or order aside and remitting the matter to the court for determination in accordance with the Supreme Court’s directions, or(d) by dismissing the appeal.(5) Subject to any order of the Supreme Court to the contrary, the judgment or order against which the appeal is made is stayed pending the determination of the appeal.(6) If the Supreme Court determines the appeal by remitting the matter to the court, and the Magistrate who gave the judgment or made the order:(a) has ceased to hold office as Magistrate, orthe matter is to be dealt with by another Magistrate nominated by the Chief Magistrate.(b) is for any other reason unable to continue to hear and determine the matter,s 69: Am 1970 No 52, Second Sch (am 1972 No 42, Second Sch); 1990 No 104, Sch 1 (7); 1998 No 137, Sch 2.16; 2001 No 121, Sch 2.141 [4]; 2002 No 99, Sch 3.6.
Part 8 Miscellaneous
69A Matters ancillary to hearing
(1) The rules may make provision for or with respect to:(a) empowering a party to an action to give another party a notice requiring that other party to do any one or more of the following things:(i) to give discovery of documents,(ii) to produce documents for inspection,(iii) to produce documents at the hearing of the action,(iv) to attend for a medical examination,(v) to make admissions for the purposes of the action,(b) the manner of compliance with such a requirement, and(c) empowering a court to make such orders as may be prescribed in the event of failure to comply with such a requirement.(2) Without limiting the generality of subsection (1), the rules may make provision for or with respect to empowering a court to order that a party:(a) give discovery of documents to any party,(b) produce documents for inspection by any party,(c) produce documents at the hearing of any action,(d) attend for a medical examination,(e) make admissions for the purposes of the action,(f) give further particulars of any action commenced, grounds of defence filed or cross-claim brought by the party, orand empowering the court to make such further order as may be prescribed in the event of the failure of a party to comply with an order made under rules made for the purposes of this subsection.(g) be at liberty to inspect property, whether real or personal, and whether or not in the possession or control of any party, for the purposes of any action,s 69A: Ins 1987 No 281, Sch 2 (36). Am 1992 No 34, Sch 1.
70 Certain orders to be deemed to be judgments
Any order made under this Act by a court for the payment of an amount of money by one person to another shall, for the purposes of Division 6 of Part 4 and Part 5, be deemed to be a judgment.
71 Arbitration award may be entered up as a judgment
Where:(a) the parties to an action in respect of which a court has jurisdiction agreed between themselves that the action should not be tried before a court, but should be determined by means of arbitration (other than arbitration pursuant to the Arbitration (Civil Actions) Act 1983), andthe award made on the arbitration shall be binding on the parties, and judgment in accordance therewith may be entered in the records of that lastmentioned court for the plaintiff or the defendant, as the case may be.(b) notice of the agreement is given to the registrar of the court in which the hearing of the action is pending,s 71: Am 1983 No 45, Sch 1 (3); 1987 No 281, Sch 2 (37).
72 Witnesses
(1) A party to any proceedings may obtain from a registrar a subpoena requiring a person to attend as a witness at those proceedings or to attend and produce at those proceedings any documents or things in his or her possession or control.(2) A person is not bound to produce any document or thing not specified or otherwise sufficiently described in the subpoena or in a warrant issued under subsection (3) or which the person would not be bound to produce upon a subpoena for production in the Supreme Court.(3) Where any person duly served with a subpoena obtained under subsection (1) fails to appear in accordance with the subpoena when called upon in open court, and:(a) (Repealed)(b) the court is satisfied by evidence on oath that it is probable that that person will not, unless compelled to do so, appear to give evidence or to produce any document or thing required for the purposes of evidence the court may order that a warrant be issued for the apprehension of that person.(4) A warrant issued under subsection (3) (b) may be executed by any member of the police force.(5) The provisions of section 229 (3) and (4) of the Criminal Procedure Act 1986, and the provisions of Part 4 of Chapter 4 of that Act applicable to warrants referred to in those provisions apply to a person who is apprehended under a warrant referred to in subsection (3) (b) in the same way as they apply to a person who is apprehended under a warrant referred to in section 229 (1) of that Act.(6)–(8) (Repealed)(9) A subpoena need not be obeyed by a person unless the person is tendered the person’s reasonable expenses for attending court in accordance with the subpoena.s 72: Am 1970 No 52, Second Sch (am 1972 No 41, Second Sch); 1975 No 106, Sch 1 (87)–(91); 1980 No 61, Sch 3 (34); 1987 No 281, Sch 2 (38); 1994 No 32, Sch 3; 1998 No 107, Sch 3.8; 1998 No 172, Sch 8 [1]–[3]; 2001 No 121, Sch 2.141 [5] [6].
73 Service of processes
(1) Service of any summons, subpoena, order, notice or other document under this Act may be effected by delivering a copy thereof to the person to be served, or in such other manner as may be prescribed.(2) Without limiting the generality of subsection (1), the rules may provide for substituted service to be effected in such manner and in such circumstances as may be prescribed.
74 Proceedings may not be removed
Subject to this Act, no order of removal out of a court into the Supreme Court shall be made of an action commenced in a court under this Act.s 74: Am 1970 No 52, Second Sch (am 1972 No 41, Second Sch); 1987 No 281, Sch 2 (39).
75 Adjournment
(1) A court may, upon such terms as to costs or otherwise, from time to time adjourn any proceedings before it as it sees fit.(2) When a Magistrate or an Assessor appointed to hold a court is not present to hold the court at any time appointed for the holding of the court, the registrar may adjourn any matters listed for hearing or determination by the court at that time.(3) A registrar may from time to time adjourn any examination before the registrar under this Act, whether or not the judgment debtor appears.s 75: Am 1975 No 106, Sch 1 (92) (93); 1982 No 166, Sch 1 (5); 1990 No 104, Sch 1 (8); 1994 No 32, Sch 3.
75A Irregularity
(1) If, in the purported commencement of any proceedings or at any stage in the course of or in connection with any proceedings, there is, by reason of anything done or left undone, a failure to comply with any requirement of this Act or of the rules whether in respect of time, place, manner, form or content or in any other respect:(a) the failure is to be treated as an irregularity and is not to nullify the proceedings, or any step taken in the proceedings, or any document, judgment or order in the proceedings, and(b) subject to subsections (2) and (3), the court may, on terms, set aside wholly or in part the proceedings or any step taken in the proceedings or any document, judgment or order in the proceedings, or exercise its powers under the rules to allow amendments and to make orders dealing with the proceedings generally.(2) The court must not wholly set aside any proceedings on the ground that, although not constituting an action for the recovery of a debt or liquidated demand, they were commenced by the lodging of a statement of liquidated claim.(3) The court must not set aside any proceedings or any step taken in any proceedings or any document, judgment or order in any proceedings on the ground of a failure to which subsection (1) applies on the application of any party unless the application is made within a reasonable time and before the applicant has taken any fresh step after becoming aware of the irregularity.s 75A: Ins 1992 No 57, Sch 1.
76, 76A (Repealed)
s 76: Am 1980 No 61, Sch 3 (35); 1987 No 281, Sch 3 (2); 1991 No 71, Sch 1. Rep 2001 No 121, Sch 2.141 [7].
s 76A: Ins 1992 No 57, Sch 1. Rep 2001 No 121, Sch 2.141 [8].
77 Proceedings after abolition of court
(1) All proceedings pending under this Act in a court when it is abolished, may be continued and completed in such court as the Governor by order published in the Gazette may specify, and any judgment or order of a court that has been abolished may be enforced and proceedings taken thereon in the same manner as nearly as possible as if the proceedings had been commenced in, or the judgment had been given or entered up by, or the order had been made by, the court specified in the order.(2) The Governor may in any such order direct that the records of the court that has been abolished shall be removed at or within a time stated in the order to the court specified therein.(3) The Governor may, by order published in the Gazette, declare that the jurisdiction conferred by this Act shall be not exercised by any court specified in the order.(4) A court in respect of which an order under subsection (3) is in force and the registrar of such a court shall not have or exercise any of the jurisdiction or functions conferred or imposed on courts and registrars by or under this Act.(5) The provisions of subsections (1) and (2) shall apply to a court in respect of which an order under subsection (3) has been made as if that court had been abolished.(6) An order under subsection (1) may be included in an order abolishing a court, in an order made under subsection (3) or may be published separately.(7) An order may be made under subsection (1) whether the court has been abolished before or after the commencement of this Act.s 77: Am 1980 No 61, Sch 3 (36); 1987 No 281, Sch 4 (6).
78 Privilege
No privilege shall be allowed to any barrister, attorney or other person to exempt the barrister, attorney or other person from the provisions of this Act.s 78: Am 1994 No 32, Sch 3.
79 Obstructing Sheriff or bailiff
A person shall not assault, resist, interrupt or obstruct the Sheriff, a Sheriff’s officer or a bailiff in the exercise of any of his or her functions under this Act, or rescue or attempt to rescue any property seized or taken by the Sheriff, a Sheriff’s officer or a bailiff.Penalty: 10 penalty units or imprisonment for 6 months, or both.s 79: Am 1980 No 61, Sch 3 (37); 1987 No 281, Schs 3 (3), 4 (7); 1988 No 20, Sch 10 (9).
80 Court fees not charged to Government departments etc
Court fees, except fees in respect of the copying of documents, payable under this Act shall not be charged to or payable by the Government of New South Wales, or any Government department or statutory body whose expenditure is paid out of the Consolidated Revenue Fund, but nothing in this section prevents the recovery by the Crown or any such Government department or statutory body of any such fees that would, had they been paid, have been recoverable.
81 Proceedings for offences
All proceedings for offences against this Act shall be disposed of summarily before a Local Court.s 81: Am 1982 No 166, Sch 1 (5) (7); 2001 No 121, Sch 2.141 [9].
82 Provisions relating to offences by bodies corporate
Where a person convicted of an offence against this Act is a body corporate, every person who at the time of the commission of the offence was a director or officer of the body corporate shall be deemed to have committed the like offence and be liable to the penalty provided by this Act for the offence accordingly, unless he or she proves that the offence was committed without his or her knowledge, or that he or she used all due diligence to prevent the commission of the offence.s 82: Am 1994 No 32, Sch 3.
83 Civil remedy not affected by proceedings for an offence
Notwithstanding any proceedings against any person for an offence against this Act (whether resulting in a conviction or otherwise) that person shall remain liable to all civil proceedings in like manner as if the proceedings for the offence had not been taken.
83A Forms
(1) Forms to be used for the purposes of this Act, including the forms of any affidavits or other documents to be so used, shall be in or to the effect of forms approved for the time being for those purposes by an order made by the Chief Magistrate of the Local Courts appointed under the Local Courts Act 1982.(2) Where the form of any document to be used in a Local Court for the purposes of this Act has not been approved under subsection (1), the form of the document shall be adequate for those purposes if it has been approved by the registrar of the court.s 83A: Ins 1982 No 166, Sch 1 (8).
84 Rules
(1) The Rule Committee may make rules for or with respect to:(a) regulating the practice and procedure in courts and in proceedings before registrars,(b) removal of actions between Divisions,(b1) determining the Division in which any particular action or class of action is to be heard,(b2) referring any matter to a Community Justice Centre,(c) the functions of registrars,(d) notices, and the filing, giving or serving of notices, under this Act,(e) (Repealed)(f) prescribing scales of expenses to be tendered to persons under subpoena,(g) prescribing the times for doing any matter or thing for the purposes of this Act and authorising courts or registrars to substitute in such classes of cases as may be prescribed other times for those prescribed,(h) excusing non-compliance with the rules,(i) prescribing the manner of doing any matter or thing for the purposes of this Act,(j) prescribing the manner in which actions may be taken by or against persons in a representative capacity,(k) prescribing the manner of appointing persons as tutors for the purposes of actions against or by persons under disability,(l) providing for the amendment of documents filed by a party to any proceedings,(m) providing for and regulating the joinder of parties, the joinder of causes of action and the consolidation of proceedings,(n) the practice and procedure in relation to cross-claims,(n1) regulating and prescribing the practice and procedure to be followed in the mediation or neutral evaluation of any matter under Part 3C,(o) the hearing of proceedings, including the procedure to be followed and the orders to be made when a party fails to attend when proceedings are called on for hearing,(p) the transfer of an action, on the application of a defendant, from a court for a district to a court for another district,(q) empowering a court to dispense with the rules of evidence for proving any matter that is not genuinely in dispute in any proceedings and to dispense with such rules of evidence as might cause expense or delay in proceedings if those rules were applied in specified circumstances,(q1) prescribing matters relating to expert evidence, including the disclosure, by providing copies of reports or otherwise, of the nature of expert evidence to be given, and including the exclusion of expert evidence in the case of non-compliance with the rules relating to expert evidence or with any order for disclosure of the nature of expert evidence,(r) prescribing the circumstances in which judgments and orders may be set aside,(s) providing for judgments by confession, agreement or consent, and providing for orders for judgment, default judgments and orders for summary judgment and the circumstances in which those judgments and orders may be given, entered or made,(t) prescribing matters relating to claims for, payment of, and entering up of judgment for, interest on money (including debts, damages and the value of goods) recovered or sought to be recovered in proceedings before a court,(u) providing for any matters relating to the costs of proceedings,(v) providing for the manner of payment of a judgment debt and prescribing the practice and procedure to be followed in relation to orders and agreements for varying the manner of payment of any such debt,(v1) prescribing means for, and the procedure and practice to be followed in, the enforcement and execution of judgments and orders of a court,(w) all matters that by this Act are required or permitted to be prescribed or that are necessary or convenient to be prescribed for carrying out or giving effect to this Act or any other Act pursuant to which rules made under this Act apply.(1A), (2) (Repealed)(3) In this section, a reference to a court includes a reference to a Division of a court.(4) This section does not give power to make rules with respect to any matter relating to costs that is regulated by Part 11 of the Legal Profession Act 1987.(5) (Repealed)s 84: Am 1975 No 106, Sch 1 (94) (95); 1978 No 108, sec 3; 1980 No 61, Sch 1 (10); 1982 No 166, Sch 1 (9); 1983 No 45, Schs 1 (4) (am 1984 No 153, Sch 16), 2; 1984 No 153, Sch 16; 1987 No 48, Sch 14 (5); 1987 No 281, Schs 2 (40), 4 (8); 1989 No 169, Sch 6 (10); 1990 No 104, Sch 1 (9); 1992 No 34, Sch 1; 1992 No 57, Sch 1; 1993 No 87, Sch 6; 1994 No 57, Sch 1; 2002 No 99, Sch 1.6.
85 Regulations—court fees
The Governor may make regulations for or with respect to the fees to be paid in respect of any matter or thing under this Act.s 85: Rep 1971 No 70, sec 5 (1). Ins 1992 No 34, Sch 1.
86 Savings and transitional provisions
Schedule 2 has effect.s 86: Ins 1993 No 80, Sch 1 (9).Sch: Am 1979 No 145, Sch 1. Rep 1990 No 104, Sch 1 (10).
Schedule 1 Provisions relating to Assessors
(Section 10 (5))
1 Terms of office
Subject to this Schedule, an Assessor holds office, for such period (not exceeding 7 years) as may be specified in the Assessor’s instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.
2 Remuneration
An Assessor is entitled to be paid:(a) remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975, and(b) such travelling and subsistence allowances as the Minister may from time to time determine in respect of the Assessor.
3 Effect of certain other Acts
(1) The provisions of the Public Sector Management Act 1988 do not apply to or in respect of the appointment of an Assessor and an Assessor is not, as an Assessor, subject to that Act.(2) If by or under any Act provision is made:(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, orthat provision does not operate to disqualify the person from holding that office and also the office of an Assessor appointed on a part-time basis or, subject to subclause (3), from accepting and retaining any remuneration payable to the person under this Act as an Assessor appointed on a part-time basis.(b) prohibiting a person from engaging in employment outside the duties of that office,(3) Subclause (2) does not operate to authorise an officer of a court to accept or retain any remuneration payable to the officer as an Assessor.
4 Leave
(1) An Assessor, if appointed on a full-time basis, is entitled to such leave:(a) as is determined by the Minister, or(b) as may be specified in respect of the Assessor in the Assessor’s instrument of appointment.(2) Leave may be determined or specified as referred to in subclause (1) by reference to the leave entitlement of the holder of any other office or class of office.
5 Removal from office
The Minister may remove an Assessor from office for incapacity, incompetence or misbehaviour.
6 Vacation of office
An Assessor vacates office if the Assessor:(a) completes a term of office and is not re-appointed, or(b) dies, or(c) resigns the office by instrument in writing addressed to the Minister, or(d) becomes a mentally incapacitated person, or(e) is removed from office by the Minister under clause 5.
sch 1: Ins 1990 No 104, Sch 1 (10).
Schedule 2 Savings and transitional provisions
(Section 86)
Part 1 Provisions consequent on enactment of Local Courts (Civil Claims) (Garnishee Proceedings) Amendment Act 1987
1A Definition
In this Part, amending Act means the Local Courts (Civil Claims) (Garnishee Proceedings) Amendment Act 1987.
1B Garnishee orders
(1) The amendments effected to this Act by the amending Act do not apply to or in respect of a garnishee order made under section 47 before 1 January 1988 (the date of commencement of the amending Act).(2) Subject to subclause (1), this Act, as amended by the amending Act, applies to and in respect of a judgment debt arising before 1 January 1988 as well as to and in respect of a judgment debt arising after 1 January 1988.(3) This clause is taken to have commenced on 1 January 1988.(4) Subclauses (1) and (2) re-enact (with minor modification) section 4 of the amending Act. Subclauses (1) and (2) are transferred provisions to which section 30A of the Interpretation Act 1987 applies.
Part 2 Provisions consequent on enactment of Local Courts (Civil Claims) Amendment Act 1987
1C Definition
In this Part, amending Act means the Local Courts (Civil Claims) Amendment Act 1987.
1D Savings and transitional provisions in rules
(1) The rules may contain provisions of a savings or transitional nature consequent on the enactment of the amending Act.(2) A provision referred to in subclause (1) may, if the rules so provide, take effect as from the date of commencement of the relevant provision of the amending Act or a later day.(3) To the extent to which a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication therein, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication therein.(4) This clause is taken to have commenced on 16 December 1987 (the date of assent to the amending Act).(5) Subclauses (1), (2) and (3) re-enact (with minor modification) section 4 of the amending Act (which is uncommenced).
Part 3 Provisions consequent on enactment of Local Courts (Civil Claims) Amendment Act 1990
1E Definition
In this Part, amending Act means the Local Courts (Civil Claims) Amendment Act 1990.
1F Application to certain actions
(1) The amendments made to this Act by the amending Act do not apply to actions commenced in a Local Court before 1 September 1991 (the date of commencement of Schedule 1 (2) of the amending Act).(2) This clause is taken to have commenced on 1 September 1991.(3) Subclause (1) re-enacts (with minor modification) section 5 of the amending Act. Subclause (1) is a transferred provision to which section 30A of the Interpretation Act 1987 applies.
Part 4 Provisions consequent on enactment of Courts Legislation (Amendment) Act 1993
1 Variation in jurisdiction
If an action is pending in a Local Court on the commencement of section 12 as substituted by the Courts Legislation (Amendment) Act 1993 to recover the value of goods, the court may make an order for the recovery of the goods.
2 Limitation on time of execution of certain writs
Property may not be seized or taken under a writ of execution at any time between 8 pm on one day and 7 am on the next day, if the writ was issued under Division 4 of Part 5 before the date of assent to the Courts Legislation (Amendment) Act 1993.
Part 5 Provision consequent on enactment of Courts Legislation Amendment Act 1998
3 Rules and regulations
The repeal of section 10F does not affect the status of rules and regulations made under this Act and in force at the commencement of this Part.
Part 6 Provision consequent on enactment of Courts Legislation Amendment Act 1999
4 Increase in jurisdiction of Small Claims Division
The amendments made to section 12 of this Act by the Courts Legislation Amendment Act 1999 do not apply in respect of proceedings commenced before those amendments.
Part 7 Provision consequent on enactment of Courts Legislation Amendment Act 2000
5 Validation of rules
Any rule made (or purporting to be made) under section 34 (2) before the commencement of Schedule 12 [1] to the Courts Legislation Amendment Act 2000 that could have been made under section 34 (2) (as amended by that Schedule) is taken to be made under that subsection as so amended.
Part 8 Provisions consequent on enactment of Courts Legislation Amendment Act 2001
6 Sheriff or bailiff to take under writ of execution
(1) Section 59, as amended by Schedule 7 to the Courts Legislation Amendment Act 2001, applies to and in respect of writs of execution issued on or after the commencement of that amendment.(2) Section 59, as in force immediately before its amendment by the Courts Legislation Amendment Act 2001 continues to apply to and in respect of writs of execution issued before the commencement of that amendment.
Part 9 Provision consequent on enactment of Courts Legislation Further Amendment Act 2001
7 Application of amendment
Section 21H, as amended by the Courts Legislation Further Amendment Act 2001, extends to and in respect of proceedings instituted before the amendment took effect.
Part 10 Provision consequent on enactment of Courts Legislation Amendment Act 2003
8 Increase in jurisdiction of General Division
The amendments made to section 12 of this Act by the Courts Legislation Amendment Act 2003 do not apply in respect of proceedings commenced before the commencement of those amendments.
sch 2: Ins 1993 No 80, Sch 1 (10). Am 1996 No 30, Sch 4; 1998 No 49, Sch 22 [3]; 2000 No 31, Sch 12 [2] [3]; 2001 No 85, Sch 7 [3]; 2001 No 108, Sch 4 [2]; 2003 No 71, Sch 6 [3]; 2004 No 55, Sch 2.19.