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Civil Procedure Bill
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Page: 15449
Second Reading
Debate resumed from 6 April 2005.
Mr ANDREW TINK (Epping) [7.58 p.m.]: This large and important, though not controversial, bill is an attempt to simplify the rules of court. There are three basic jurisdictions in New South Wales—the Supreme Court, the District Court and the Local Court. They have all had their own separate rules, different procedures, and so forth. The bill seeks to unify and simplify those procedures. In essence, the bill is designed to make things easier for practitioners and litigants, to minimise the chance that technical points will arise from forms and such like, and to allow the substance of matters to be dealt with as quickly, cheaply and efficiently as possible. The bill is all about simplification, efficiency and economy.
I am very pleased that the genesis of this bill lies with the Public Accounts Committee and a report that it released some years ago. This follows some earlier work by the Public Accounts Committee in relation to substantial and important changes to the law. When I chaired the Public Accounts Committee we released a report about public defenders that subsequently formed the basis of some important new laws regarding the operations of public defenders. Those changes were endorsed strongly by public defenders of the day and, as far as I am aware, are still central to the way in which public defenders operate. So the Public Accounts Committee has had a strong background in this sort of work for many years and it is pleasing to see more recent recommendations of that committee forming the basis of substantial legislation such as this.
Like the Attorney General, I think it is important to place on record my thanks to those on the working party, including Justice Hamilton, Judge Garling and Local Court Magistrate Paul Cloran; Michael McHugh, Greg George and Hamish Stitt from the New South Wales Bar Association; and Peter Johnstone from the Law Society. Last but by no means least, I also thank a number of representatives from the Attorney General's Department, including Tim McGrath, Jennifer Atkinson, Steve Jupp, Stephen Olischlager, Peter Ryan, Peter Shiels and Pam Wilde.
I understand that some amendments will be moved to the bill in Committee. This sort of legislation is never final or set in stone for all time; it is always moving. We must be careful that in constantly changing legislation we do not unwittingly create problems for litigants or traps into which they may fall through no fault of their own. That is certainly not the intention of the amendments to this bill. As far as I am concerned, they aim to put the bill on the right footing before it becomes law. The existence of these amendments does not detract from the important work that has been done on this bill; it simply indicates that the public consultation that has been a feature of the bill is an ongoing process. I believe that is a good and positive development. I support the bill and commend it to the House. I hope it will provide significant practical advantages to practitioners, litigants and the wider community in helping to achieve speedier and more economical justice.
Mr PAUL LYNCH (Liverpool) [8.03 p.m.]: I support the Civil Procedure Bill, which is quite an important bill. With all the technical details that surround it, it is perhaps easy to miss one fundamentally positive point: By standardising forms, procedures and formats between different courts the bill is a significant measure of law reform. Demystifying formal processes—making the same type of form applicable to different courts—makes justice more accessible. It makes the courts easier to use not just for practitioners but for everyone. That is a significant legal reform.
As its title suggests, the bill is aimed at civil proceedings. These are probably best explained as non-criminal proceedings. The bill aims as much as possible to make the rules in civil proceedings the same in different courts. It is aimed particularly at the Local Court, the District Court, the Supreme Court and the Dust Diseases Tribunal. I note from the second reading speech of the Attorney General that specialist rules in some jurisdictions, such as the Probate and Court of Appeal jurisdictions of the Supreme Court, have not yet been included in the bill. On the face of it, that makes sense to me in light of the specific particularities of those jurisdictions. I note also from the second reading speech that there are ongoing efforts to have them included in the future.
As I understand it, the bill does not intend to alter substantially the provisions of the law but rather to alter its forms. Admittedly, there are some exceptions to this. At present garnishee orders are limited to operating for four weeks. Garnishee orders are issued by courts against judgment debtors against their wages and salaries and are directed at whoever is paying the wages and salaries. This means that after four weeks the judgment creditor must make another application for a garnishee order and so on. The bill seems to do away with the need for judgment creditors to return to the court—which usually involves filing another set of papers with the registry office—by abolishing the four-week limit. That is obviously a win for the debt recovery industry. Whether it is good or bad depends, I suppose, on one's perspective.
I do not have too much sympathy for rapacious banks and moneylenders who try to extract blood from a stone and who will benefit from this provision. On the other hand, I would certainly sympathise with the not terribly wealthy car owner with no comprehensive car insurance whose car is damaged by another hopelessly negligent and dangerous driver who does not have third-party property insurance and who outrageously refuses to pay for the damage that he or she has caused. In that case one would have a lot of sympathy for the changes being introduced. Certainly those who support the change would argue understandably that we are simply removing a number of unnecessary form-filling steps and that this removal does not transgress any rule of fairness or justice, which is self-evident.
The bill also introduces a change in relation to examination summonses. As I understand it, the bill will allow judgment debtors to provide information to judgment creditors without having to appear in court to answer a summons. This will make it easier for judgment debtors, and presumably cheaper for judgment creditors. It will remove the need for lengthy examination summons lists run by the registrar on a regular basis—as I recall, that was the practice at Liverpool Local Court when I practised there in the dim past. The only practical downside of this provision is that it perhaps removes the possibility of the judgment creditor and judgment debtor meeting to agree upon a repayment regime, which could then be formalised by an instalment order. My recollection of examination summons lists is that the real exercise was to see whether they could settle the amount outstanding rather than to gather information from the judgment debtor. Another change introduced by the rules that is much beloved of civil litigators is the reintroduction of the law in relation to set-off.
Mr Bob Debus: There is a judge of the Supreme Court mad for this amendment.
Mr PAUL LYNCH: Indeed. I think it is fair to say that this matter has been ventilated by lawyers and legal academics for some considerable time. The reintroduction of the law in relation to set-off was recommended by the Law Reform Commission in 2000 in Law Reform Commission report No. 94. A set-off allows one party to apply a debt owed to it by another party to discharge all or part of a debt that it owed to the other party. Many people believe this has advantages over the current use of cross-claims in civil litigation. According to the Law Reform Commission, its reintroduction will avoid a number of unnecessary additional procedures. The Law Reform Commission also pointed in its report to undesirable results concerning costs orders following cross-claims that do not flow from the use of set-offs.
It is relevant to note that the bill also includes the recommendation of the Law Reform Commission that there be an express statement that set-off may be excluded by agreement between the parties. The bill also contains specific provisions about existing debts, and I note that those matters were raised in the Law Reform Commission report. This issue has been attracting interest and concern for some time. The Law Reform Commission recommendations resulted from a reference from the then State Attorney General in 1997 and a discussion paper in 1998. That, in turn, had followed a request from Justice Handley to the Chair of the Law Reform Commission in 1994. The statutes of set-off dated from the eighteenth century during the reign of George II. They were obviously part of English common law. They were repealed by a 1969 statute of this Parliament: the Imperial Acts Application Act. The repeal of the statutes of set-off resulted only in counter claims being available—where there are separate judgments in each claim rather than only one judgment and separate cost orders flowing from each of those judgments.
So New South Wales is now leaping forward to reinstate the statutes of 1735. One assumes the reasons to be the same in 1735 as they are today—although it is hard to tell because publication of the debates of Parliament was a breach of privilege in 1735. One assumes that the statutes were introduced then, as now, to prevent unnecessary law suits. The bill also follows the recommendations of the Law Reform Commission as to precisely how the statutes of set-off are to be reintroduced, that is, a restatement of the law in plain English. That is a better option perhaps than the alternatives of inserting a savings provision in or repealing the Imperial Acts Application Act. As I say, this is a matter beloved of academic lawyers and of those who follow civil litigation. There are some arguments against it. I think on balance, however, that the reintroduction probably makes sense. It is also worth pointing out that this bill includes another recommendation of the Law Reform Commission, which is that the set-off is available where debts are due and payable at the time when the defence of set-off is filed. I commend the bill to the House.
Mr BARRY COLLIER (Miranda) [8.10 p.m.]: I am pleased to speak on this bill, the purpose of which is to consolidate as much as possible the law relating to civil procedure so far as it affects proceedings in the Supreme, District and Local Courts. No doubt it is an important advance in how we conduct civil litigation in New South Wales. We will have one set of rules governing the general run of civil proceedings in the Supreme, District and Local Courts as well as the Dust Diseases Tribunal. Streamlining and simplifying procedures, removing unnecessary differences between the courts and saving time and costs of the courts, the legal profession and the general public.
The bill notes in proposed section 56 that the overriding purpose of the Act and of rules of court in their application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. It aims to provide a common set of rules, simplified and without radical change in substance. I note from the Legislation Review Digest that the bill provides a simplified set of common forms for use in all three courts. That is particularly helpful to practitioners, who will have to keep only one set of forms on their computers and fill in the blanks according to which court the proceedings are in. That will save time, cost and money, and will save practitioners having three sets of practices: one for the Supreme Court, one for the District Court and one for the Local Court. The forms are designed for use in the CourtLink system, which is in the course of being introduced.
The statement of claim and the summons, the two forms of originating process, will continue in all three courts. The rules of pleadings, discovery and interrogatories will be maintained, and there are new rules regarding subpoenas which are being adopted widely across Australia and have also been adopted in the Federal Court. I am pleased to support this extremely important bill, which is the culmination of many months work by a dedicated group of people who consulted widely with the courts, the profession and other interested groups. I commend those who have worked so hard on this bill.
The Civil Procedure Bill and rules will streamline and simplify procedures and remove unnecessary differences between courts. One can find many examples of provisions that are similar but differ ever so slightly between courts. Those differences have created barriers to accessing the justice system by requiring legal practitioners and clients of the court to be familiar with three different sets of court rules. For example, schedule 7, Uniform Civil Procedure Rules, refers in part 19, Amendment, rule 19.1 "Amendment of statement of claim", to Part 15, rule 12, Part 20, rules 2 and 2A of the previous Supreme Court Rules; Part 17, rules 2 and 2A of the District Court Rules; and Part 16, rule 2 of the Local Court Rules. This bill encapsulates that simply as part 19.1 "Amendment of statement of claim". That will make the lives of practitioners a lot easier and will reduce costs to court clients.
If a legal practitioner usually practices in the civil jurisdiction of a Local Court, it will be much easier for him or her to move between jurisdictions and assist a client in District Court proceedings because the same legislative provisions and rules which form the basis of court procedure will apply to both courts. Even where it has been necessary for one jurisdiction to differ from another, one of the benefits of the new Civil Procedure Bill and Rules is that those differences will be clearly apparent in one provision. It will not be necessary for legal practitioners and court clients to research three sets of rules to ascertain the differences.
The new rules have been organised to simplify the layout of the new procedures. The new bill and rules will ensure that, where possible, like rules are placed together. For example, the rules about parties to proceedings have been gathered together in part 7. Previously a person had to know that the rules relating to disable persons and business names were located in various parts throughout the rules. The rules are organised so that they track through the general litigation process from filing through to interlocutory procedures, trial and enforcement procedures. Another major advantage of this reform is that the bill and rules will create a platform upon which courts will be able to avail themselves of new technologies such as the electronic lodgment of documents and other court management practices.
This is a very important bill that will make life for much simpler for legal practitioners and cut the costs to court users and to the clients of legal practitioners. The important aim of the project has always been to develop a system that promotes access to justice. Having looked at this bill closely I believe that its aims have been achieved, and I have great pleasure in commending the bill to the House.
Mr MALCOLM KERR (Cronulla) [8.16 p.m.]: This bill is designed to expedite the commencement of the journey in litigation to the end of the journey in terms of court proceedings. It might be regarded by such people as the honourable member for Heathcote as the legal procedural equivalent to the F6 in terms of speeding up a journey, and I welcome it in that regard. As I understand, today the honourable member for Miranda migrated from the right to the left. He might consider uniform rules for meetings between right and left! The Opposition welcomes the bill. Once again the honourable member for Liverpool was a bit of a tease when he did not elaborate on the arguments against the bill. It would have been helpful to honourable members before they voted to hear those arguments, which were not apparent to me.
The Legislation Review Digest is excellent. I commend its commentary to those who are interested in the bill. The committee will always be concerned to identify where legislation has a retrospective effect that may impact adversely upon any person. To change the rules for proceedings already on foot may frustrate the legitimate expectation of those involved that the rules would remain consistent throughout the course of those proceedings. That is a reasonable argument—
Mr Bob Debus: So is the rest of what I have said.
Mr MALCOLM KERR: Absolutely.
Mr Paul Gibson: Mr Bean!
Mr MALCOLM KERR: Now, now. The honourable member for Blacktown, the Chairman of the Staysafe committee, should appreciate that I do not want to be booked for speeding at this time, so I pause for effect because that is important. Some people listening to this debate are probably quite fearful about the impact of this bill, and I want to allay their fears. I am pleased that the honourable member for Canterbury, who is a member of the Legislation Review Committee, has entered the Chamber.
Mr Barry Collier: Well respected.
Mr MALCOLM KERR: That committee is well respected. I am sure the honourable member for Canterbury would agree with my words. However, given the apparent advantage of having the rules apply to all relevant proceedings and the courts' power to dispense with the new rules where appropriate, the committee did not consider that applying the new rules to proceedings already commenced trespasses unduly on personal rights and liberty. For the benefit of those listening to the debate in their offices, I repeat that this is a very important provision, as the honourable member for Kiama would acknowledge. The key words, as the honourable member for Canterbury would well recall, are "having regard to the court's power to dispense with the new rules where appropriate". That is where injustice could occur. That is a considerable advantage of this legislation. As the honourable member for Epping said, the genesis of the bill is the Public Accounts Committee, of which the honourable member for Epping is a former distinguished chair.
Mr Barry Collier: I was a member of the committee.
Mr MALCOLM KERR: The honourable member for Miranda put up his hand as a member of the Public Accounts Committee.
Mr Barry Collier: At the time it prepared this report.
Mr ACTING-SPEAKER (Mr John Mills): Order! The honourable member for Cronulla has the call. Government members should cease interjecting.
Mr MALCOLM KERR: "And claiming credit", you might add, Mr Acting-Speaker! I return to the debate on the bill. This measure was a recommendation of the Public Accounts Committee.
Ms Linda Burney: Are you going to use the whole of the time allocated you?
Mr MALCOLM KERR: Why do you ask?
Ms Linda Burney: I was just wondering.
Mr MALCOLM KERR: I will give the honourable member a few minutes to read the bill! As the honourable member for Miranda would recall, sometimes members have been approached by members from the other side, saying, "Would you open at length so I can read my brief?" No doubt, that is what the honourable member for Canterbury wants me to do.
Ms Linda Burney: I was just wondering.
Mr MALCOLM KERR: You will have time for a few Canterbury tales by the time I have finished. I return to the bill. The Uniform Civil Procedure Rules project, which resulted in this bill, commenced in 2003. The working party set up had on it representatives of the Supreme Court, District Court, Local Court, Bar Association, Law Society and Attorney General's Department. One should not deny the amount of work that was done under that project and the difficulties that confronted the working party. Over decades, many people spoke of the need for uniformity in the civil procedure rules of the Courts of Petty Sessions, District Court and Supreme Court. As all of those jurisdictions were involved in the application of the law, there was a case for greater uniformity in procedural matters because appeals are made from magistrates courts to the District Court and from the District Court to the Court of Appeal. Nor, as the honourable member for Miranda would know, is procedural law an easy subject.
Mr Barry Collier: That is right. I agree with you—for the first time in five years!
Mr MALCOLM KERR: The honourable member for Miranda concurs with my judgment. Despite the obvious dissension among members on the other side of the Chamber, we on this side are quite united in our approach to the bill. This is a good and constructive measure and it will assist the people of New South Wales. I understand the Attorney General will be moving amendments to the bill. Is that correct?
Mr Bob Debus: That is true.
Mr MALCOLM KERR: Coalition members look forward to seeing those amendments and hopefully being able to support them as measures that will further refine what is a constructive piece of reform.
Mr BOB DEBUS (Blue Mountains—Attorney General, and Minister for the Environment) [8.23 p.m.], in reply: I thank honourable members for their contributions to the debate. The Civil Procedure Bill, as honourable members have agreed, is a most significant advance in the way that civil proceedings can be conducted in this State. Its provisions will bring benefits for the courts, the legal profession and the public. The bill will assist courts by giving a statutory basis to case management. Courts will be given a set of guiding principles for conducting court proceedings. The main objective will be to facilitate the just, quick and cheap resolution of the real issues that exist in any particular proceeding. To achieve that objective, parties and their legal representatives will be under a duty to assist the court.
Courts will be able to manage proceedings with the aim of eliminating delay and resolving disputes so that the costs of proceedings are proportionate to the importance and complexity of the dispute itself. Courts will be able to impose appropriate sanctions if parties fail to take steps within a specified time. The legal profession will save time and costs because they will have to be familiar with only a single set of rules and will need to maintain only one set of court forms. In turn, that will allow practitioners to develop an expertise across jurisdictions, even if they normally practise in a single jurisdiction. The rules themselves indicate whether there are differences between jurisdictions, so practitioners are less likely to trip up by not being aware of those differences. Members of the public will be more readily able to locate information about how proceedings are conducted and will find it easier to prepare documents for filing in court; that is to say, court proceedings will be easier and more accessible for all concerned.
I shall be moving a number of amendments to the bill to address issues that have arisen since it was finalised. It might be efficacious if I explain those amendments now, in anticipation of proceedings at the Committee stage, since it is easier to deal with the amendments themselves en bloc rather than to try to debate them, amendment by amendment, in the technical details of the bill itself. Government amendment No. 1 will amend subclause (1) of clause 61 so that the words "(whether or not inconsistent with the rules of court)" will be included after the words "thinks fit". This subclause is based on section 76A of the Supreme Court Act. Section 76A allows the court to give directions for the speedy determination of real questions in proceedings, whether or not such directions are inconsistent with the rules. The words "whether or not inconsistent with the rules" were inadvertently omitted when section 76A was carried over into subclause (1) of the present bill. Here, in effect, we are correcting a clerical oversight.
Government amendments Nos 2 to 4 will amend clause 65 of the bill. This clause is based on a rule of court and has been moved into the bill to remove any doubt about the ability of lower courts to make rules dealing with amendments to originating process outside a limitation period, as was argued in the case of Air Link Pty Ltd v Paterson (No 2) [2003] New South Wales Court of Appeal Reports, page 251. The amendments are designed to ensure that the clause more closely reflects the existing Supreme Court and District Court rules. Government amendment No. 2 will make it clear that when the court grants leave for a plaintiff to amend the originating process under clause 65, that leave is granted under clause 64 (1) (b). This approach is consistent with that taken in the existing rule.
Government amendment No. 3 will make it clear that the time when an amendment is taken to have effect is the date on which the proceedings commenced. The revised subclause more closely reflects the approach taken in rule 4 (5A) of part 20 of the Supreme Court Rules and rule 4 (5A) of part 17 of the District Court Rules, namely, that the amendment relates back to the date of filing of the originating process. Government amendment No. 4 will include a new subclause (6). This subclause will define "originating process" for the purposes of the clause to include any pleading subsequently filed in the proceedings. This subclause is necessary to ensure that the clause applies not only to proceedings commenced by a statement of claim or summons but also to proceedings where a plaintiff is ordered to file a statement of claim after incorrectly commencing proceedings by summons. It is consistent with the approach taken in the Supreme Court Rules.
Government amendment No. 5 will replace clause 96, the section that allows District Court and Local Court judgments to be set off against another judgment of the court. That section was inadvertently limited to the Local Court. Both the District Court and the Local Court presently allow judgments to be set off against another judgment under part 31 rule 23 of the District Court Rules and section 64 of the Local Courts (Civil Claims) Act 1970. That procedure will continue under the present legislation. Government amendment No. 6 seeks to omit clause 4 (c) of schedule 6. It is intended that the regulations that currently set court fees will be repealed because the fees will be set under the Civil Procedure Regulation 2005. Clause 4 of schedule 6 establishes the mechanism to amend and, in future, repeal existing regulations. It provides that the listed regulations are taken to be made under section 18, dealing with fees, and may be amended and repealed accordingly.
The Dust Diseases Tribunal Regulation 2001 is presently listed in clause 4 of schedule 6. Because that regulation will deal with a new claims process for asbestos-related compensation claims as well as court fees, it is inappropriate to include it in clause 4 of schedule 6. I will seek leave in Committee to move those amendments in globo. I again thank the civil procedure working party, Justice Hamilton and all those named in my second reading speech for their extraordinary efforts in completing this project. The co-operation between the courts, the legal profession and the Attorney General's Department in this enterprise has been highly effective. I am very proud of them for the work they have done. I have pleasure in commending the bill to the House.
Motion agreed to.
Bill read a second time.
In Committee
Clauses 1 to 60 agreed to.
Amendments, in globo by leave, by Mr Bob Debus agreed to:
No. 1 Page 28, clause 61, line 9. Insert "(whether or not inconsistent with rules of court)" after "thinks fit".
No. 2 Page 31, clause 65, line 27. Insert "under section 64 (1) (b)" after "court".
No. 3 Page 32, clause 65, lines 6-8. Omit all words on those lines. Insert instead:
(3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced.
No. 4 Page 32, clause 65. Insert after line 11:
(6) In this section, originating process, in relation to any proceedings, includes any pleading subsequently filed in the proceedings.
No. 5 Pages 45 and 46, clause 96, line 28 on page 45 to line 14 on page 46. Omit all words on those lines. Insert instead:
96 Set-off of judgments (cf DCR Part 31, rule 23; Act No 11 1970, section 64)
(1) This section applies if, in relation to any two or more judgments of the same court, the judgment creditor and judgment debtor under one or more of the judgments are the judgment debtor and judgment creditor, respectively, under the other judgments.
(2) The judgment debtor under any such judgment (the first judgment) may apply to the court for an order that the judgment be set off against any other such judgment (the second judgment) in respect of which he or she is the judgment creditor.
(3) An order under this section has the following effect:
(a) if the amount of the first judgment is less than the amount of the second judgment, the first judgment is taken to have been satisfied and the amount of the second judgment is taken to have been reduced by the amount of the first judgment,
(b) if the amount of the first judgment is equal to the amount of the second judgment, both judgments are taken to have been satisfied,
(c) if the amount of the first judgment is greater than the amount of the second judgment, the second judgment is taken to have been satisfied and the amount of the first judgment is taken to have been reduced by the amount of the second judgment.
(4) For the purposes of this section:
(a) judgments of different Local Courts are taken to be judgments of the same court, and
(b) an application for an order that one such judgment be set off against another may be made to either of the Local Courts in which those judgments were given or entered.
(5) This section does not apply to judgments of the Supreme Court.
No. 6 Page 121, schedule 6, line 3. Omit all words on that line.
Clause 61 as amended agreed to.
Clauses 62 to 64 agreed to.
Clause 65 as amended agreed to.
Clauses 66 to 95 agreed to.
Clause 96 as amended agreed to.
Clauses 97 to 152 agreed to.
Schedules 1 to 5 agreed to.
Schedule 6 as amended agreed to.
Schedule 7 agreed to.
Bill reported from Committee with amendments and passed through remaining stages.
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