Part 6 Application proceedings in Local Courts
35 Matters that may be dealt with by Local Courts
(1) If a Local Court is given power under any Act or other law to determine any matter or to make an order or impose a penalty, the matter is to be dealt with by a Local Court in accordance with this Part.(2) This section applies to a power conferred before or after the commencement of this section.(3) This section extends to the following matters:(a) matters for which a complaint could, immediately before the commencement of this section, be made to a Justice under the Justices Act 1902 in a case where a Justice or Justices or Magistrate had authority to make an order for the payment of money or any other order,(b) matters for which a complaint or an application could, immediately before the commencement of this section, be made to a Justice or Justices or Magistrate under an Act other than the Justices Act 1902.
36 Proceedings to which Part does not apply
(1) This Part does not apply to the following proceedings:(a) proceedings for a summary or indictable offence,(b) proceedings with respect to any order that may be made in, or as a result of, criminal proceedings,(c) proceedings with respect to any matter for which jurisdiction is conferred on the Local Court under the Crimes (Domestic and Personal Violence) Act 2007,(d) proceedings with respect to any matter for which jurisdiction is conferred on a Local Court under Part 7.(2) To avoid doubt, and despite subsection (1) (b), this Part applies to the following proceedings:(a) applications for orders under the Crimes (Forensic Procedures) Act 2000,(b) proceedings for the purposes of Part 2 of Chapter 7 of the Criminal Procedure Act 1986,(c) applications for orders, or to vary or revoke any such orders, under the Child Protection (Offenders Prohibition Orders) Act 2004,(d) applications for orders under Part 16A of the Law Enforcement (Powers and Responsibilities) Act 2002,(e) applications for an order under section 3E or 3F of the Child Protection (Offenders Registration) Act 2000.
Division 2 Commencement of proceedings
37 Commencement of proceedings by application notice
Application proceedings are to be commenced in a Local Court by the issuing and filing of an application notice in accordance with this Division.
38 Commencement of proceedings by police officer or public officer
If a police officer or public officer is authorised to commence application proceedings against a person, the officer may commence the proceedings by issuing an application notice and filing the notice in accordance with this Division.
39 Commencement of private actions
(1) If a person other than a police officer or public officer is authorised to commence application proceedings against a person, the person may commence the proceedings by issuing an application notice, signed by a registrar, and filing the notice in accordance with this Division.(2) A registrar must not sign an application notice if:(a) the registrar is of the opinion that the notice does not disclose grounds for the proceedings, or(b) the registrar is of the opinion that the notice is not in the form required by or under this Act, or(c) the registrar is of the opinion that a ground for refusal set out in the rules applies to the notice.(3) If a registrar refuses to sign an application notice proposed to be issued by any such person, the question of whether the application notice is to be signed and issued is to be determined by the Local Court on application by the person.
(1) An application notice must be in writing and be in the form prescribed by the rules.(2) The rules may prescribe one or more forms of application notice.(3) An application notice must do the following:(a) describe the grounds for the proceedings and the remedy sought,(b) contain the name of the applicant,(c) require the respondent to appear before the Local Court or a Magistrate at a specified date, time and place.(4) The rules may prescribe additional matters to be included in application notices.
41 Application notice to be for one cause of action only
An application notice may not relate to more than one cause of action.
42 Service of application notice
(1) An application notice issued by a police officer must be served by a police officer in accordance with the rules.(2) An application notice issued by a public officer must be served by a police officer or public officer or other person authorised by the rules in accordance with the rules.(3) An application notice issued by a person other than a police officer or a public officer must be served by a person authorised by the rules in accordance with the rules.(4) A copy of an application notice must be filed in a Local Court in accordance with the rules.
(1) All proceedings are taken to have commenced on the date on which an application notice is filed in a Local Court.(2) An application notice may be filed even though it has not been served if:(a) the notice is not able to be served, despite reasonable attempts to do so, or(b) the registrar gives leave to do so after forming the opinion that it is not reasonable in the circumstances of the case to require prior service of the notice.(3) Nothing in this section affects any other Act or law under which proceedings are taken to have commenced on another date.
44 Time limit for commencement of proceedings
(1) Application proceedings must be commenced not later than 6 years from when the cause of action is alleged to have arisen.(2) This section is subject to any other Act or law.
45 Relationship to other law or practice
If an Act or a statutory rule provides for application proceedings to be commenced otherwise than by issuing an application notice, the proceedings may be commenced in accordance with this Act.
Division 3 Hearing of proceedings
(1) On the first return date for an application notice in any civil proceedings, or at such later time as the Local Court determines, the Court must set the date, time and place for hearing and determining the matter.(2) The Local Court must notify the respondent of the date, time and place, if the respondent is not present.(3) However, if the respondent is not present at the first return date, the Local Court may proceed to hear and determine the matter on that day at its discretion.Note. The powers of a Local Court to adjourn proceedings are set out in section 54.
47 Proceedings to be open to public
(1) Application proceedings before a Local Court are to be heard in open court.(2) This section is subject to the provisions of any other Act or law.
A Local Court may remove application proceedings to a Local Court in another place, if it thinks it appropriate in the circumstances.
A respondent in application proceedings may defend the action and any proceedings ancillary to the action.
(1) An applicant or respondent may appear personally or by an Australian legal practitioner or other person empowered by an Act or other law to appear for the applicant or respondent.(2) An applicant who is a police officer may appear personally or by a person permitted by subsection (1) or by a police prosecutor.
(1) The applicant’s case may be conducted by the applicant or by the applicant’s Australian legal practitioner or any other person permitted to appear for the applicant (whether under this or any other Act).(2) The respondent’s case may be conducted by the respondent or by the respondent’s Australian legal practitioner or any other person permitted to appear for the respondent (whether under this or any other Act).
The usual oath must be administered to a witness before the witness is examined.Note. For the form of oaths and declarations see the Oaths Act 1900.
(1) The evidence of each witness in application proceedings must be recorded.(2) Rules may be made for or with respect to the manner in which the evidence may be recorded and the authentication of evidence or of transcripts of evidence given in proceedings.
(1) The Local Court may at any stage of proceedings adjourn the proceedings generally or to a specified time and place.(2) An adjournment of proceedings may be in such terms as the Local Court thinks fit.(3) A matter that is adjourned generally must be listed before a Local Court or registrar not later than 2 years after the adjournment.
(1) If, in or in connection with application proceedings or the commencement of application proceedings, there is a failure to comply with any requirement of this Act or the rules, the failure is to be treated as an irregularity and does not nullify the proceedings or any step taken in the proceedings, or any judgment, document or order in the proceedings.(2) Subsection (1) applies to a failure to comply with a requirement relating to time, place, manner, form or content or any other failure.(3) In the case of an irregularity, a Local 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 judgments and to make orders dealing with the proceedings generally.(4) The Local Court must not take action under subsection (3) on the application of a party unless that application is made within a reasonable time and before the party has taken any fresh step after becoming aware of the irregularity.
56 Power to dispense with rules
(1) A Local Court determining application proceedings may, if of the opinion that it is in the interests of justice to do so, dispense with or vary a requirement of the rules.(2) For the purposes of subsection (1), a Local Court may make directions as to the conduct of application proceedings.(3) The power conferred by this section does not extend to any rule declared by the rules to be mandatory.Note. A Local Court may also direct the manner and form of procedure for taking any step in proceedings if it is not prescribed by or under this Act (see section 26).
(1) A Local Court may order, on such terms as it thinks fit, that any application proceedings be stayed at any stage of the proceedings.(2) The power to stay proceedings includes power to order a stay of an enforcement of an order.(3) A Magistrate who is satisfied that because of urgent circumstances it is not practicable for the power conferred by this section to be exercised by the court on which they are conferred may exercise that power.
58 Arrest of respondent during proceedings
(1) A Magistrate may, at any time when or after a matter is first before a Local Court or Magistrate and before it is finally disposed of by the Court or Magistrate, issue a warrant to arrest a respondent if the respondent fails to appear personally or to appear by an Australian legal practitioner or other representative at the Court and the Magistrate is satisfied that the respondent had notice of the date, time and place of the proceedings.(2) A Magistrate, registrar or authorised officer before whom a respondent is brought on arrest on a warrant issued under this section may, if bail is not dispensed with or granted, issue a warrant:(a) committing the respondent to a correctional centre or other place of security, and(b) ordering the respondent to be brought before a Local Court at the date, time and place specified in the order.(3) The Magistrate, registrar or authorised officer must give notice of the date, time and place set to the applicant.
59 Witnesses and the production of evidence
The provisions of Part 3 of Chapter 4 of the Criminal Procedure Act 1986 apply, with any necessary modifications, to application proceedings under this Act in the same way as they apply to proceedings for summary offences under that Act.
60 Warrants of arrest and warrants of commitment
The provisions of Part 4 of Chapter 4 of the Criminal Procedure Act 1986 apply, with any necessary modifications, to warrants of arrest, or warrants of commitment, issued under this Act in the same way as they apply to warrants of arrest or warrants of commitment issued under that Act.
61 Enforcement of orders for payment of money
An order for the payment of money by a party to application proceedings (including an order as to payment of costs) may be enforced in a court of competent jurisdiction as if it were a debt due to the person to whom the money is ordered to be paid.
(1) A Local Court may award costs in application proceedings at its discretion and may determine by whom, to whom and to what extent costs are to be paid in or in relation to application proceedings.(2) A Local Court may order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on an indemnity basis.(3) This section is subject to this Act, the rules and any other Act.
(1) The rules may make provision for or with respect to the following matters relating to application proceedings:(a) regulating the practice and procedure in Local Courts and in proceedings before registrars,(b) service of application notices and other documents,(c) endorsement of service of application notices and other documents,(d) the form of subpoenas,(e) additional requirements for the form of warrants,(f) the functions of registrars,(g) the hearing of proceedings, including the procedure to be followed and the orders to be made, when a party fails to attend,(h) empowering a Local Court to dispense with rules of evidence for proving any matter that is not genuinely in dispute in any proceedings and to dispense with rules of evidence that might cause expense or delay in proceedings if those rules were applied in specified circumstances,(i) 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,(j) providing for any matter relating to the costs of proceedings.(2) Without limiting the generality of subsection (1), the rules may make provision for or with respect to empowering a court to make the following orders:(a) that a party give discovery of documents to any party,(b) that a party produce documents for inspection by any party,(c) that a party produce documents at the hearing of any action,(d) that a party attend for a medical examination,(e) that a party make admissions for the purposes of the action,(f) that a party give further particulars of any action commenced or grounds of defence filed,(g) any further order 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.(3) This section does not give power to make rules with respect to any matter relating to costs that is regulated by Part 3.2 of the Legal Profession Act 2004.
(1) In relation to any order arising from an application notice under this Part:(a) an application for annulment may be made in accordance with Part 2 of the Crimes (Local Courts Appeal and Review) Act 2001, and(b) an appeal to the District Court may be made in accordance with Part 3 of the Crimes (Local Courts Appeal and Review) Act 2001, and(c) an appeal to the Supreme Court may be made in accordance with Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001,in the same way as such an application or appeal may be made in relation to a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986.(1A) An application or appeal may not be made under subsection (1) in relation to an order referred to in that subsection if the making of such an application or appeal is prohibited by the Act or law pursuant to which the order is made.(2) If any other Act:(a) provides for an appeal to the District Court against an order of a Magistrate or Justice under that Act, or(b) provides for an appeal against such an order without identifying to which court such an appeal is to be made,such an appeal is to be made to the District Court in accordance with Part 3 of the Crimes (Local Courts Appeal and Review) Act 2001 in the same way as an appeal under that Part may be made in relation to a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986.(3) If any other Act provides for an appeal to the Supreme Court against an order of a Magistrate or Justice under that Act, such an appeal is to be made to the Supreme Court in accordance with Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001 in the same way as an appeal under that Part may be made in relation to a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986.(4) The Crimes (Local Courts Appeal and Review) Act 2001 applies to an application or appeal arising under this section with such modifications as are made by or in accordance with the regulations under that Act.(5) In this section, a reference to an order includes a reference to any determination that a Local Court has jurisdiction to make, and any penalty that a Local Court has jurisdiction to impose, as referred to in section 35.