Division 3 Hearing of proceedings

53   Time for hearing

(cf LCA 1982, section 46)

(1)  On the first return date for an application notice in any proceedings, or at such later time as the Court determines, the Court must set the date, time and place for hearing and determining the matter.

(2)  The 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 Court may proceed to hear and determine the matter on that day at its discretion.

Note. The powers of the Court to adjourn proceedings are set out in section 61.

54   Proceedings to be open to public

(cf LCA 1982, section 47)

(1)  Application proceedings before the Court are to be heard in open court.

(2)  This section is subject to the provisions of any other Act or law.

55   Change of venue

(cf LCA 1982, section 48)

The Court may make an order changing the venue of the proceedings if it thinks it appropriate in the circumstances.

56   Right to defend action

(cf LCA 1982, section 49)

A respondent in application proceedings may defend the action and any proceedings ancillary to the action.

57   Right of representation

(cf LCA 1982, section 50)

(1)  An applicant or respondent may appear personally or by an Australian legal practitioner or other representative 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.

58   Conduct of case

(cf LCA 1982, section 51)

(1)  The applicant’s case may be conducted by the applicant or by the applicant’s Australian legal practitioner or any other representative 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 representative permitted to appear for the respondent (whether under this or any other Act).

59   Evidence to be on oath

(cf LCA 1982, section 52)

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.

60   Recording of evidence

(cf LCA 1982, section 53)

(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.

61   Adjournments

(cf LCA 1982, section 54)

(1)  The Court may at any stage of proceedings adjourn the proceedings to a specified time and place.

(2)  An adjournment of proceedings may be in such terms as the Court thinks fit.

62   Irregularity

(cf LCA 1982, section 55)

(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, 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 judgments and to make orders dealing with the proceedings generally.

(4)  The 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.

63   Power to dispense with rules

(cf LCA 1982, section 56)

(1)  In relation to particular application proceedings, the Court 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), the 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. The Court may also give directions with respect to any aspect of practice or procedure not provided for by or under this Act or any other Act (see section 28).

64   Power to stay proceedings

(cf LCA 1982, section 57)

(1)  Subject to the rules, the Court may at any time and from time to time, by order, stay any application proceedings before it, either permanently or until a specified day.

(2)  The power to stay proceedings includes power to order a stay of an enforcement of an order.

65   Arrest of respondent during proceedings

(cf LCA 1982, section 58)

(1)  A Magistrate may, at any time when or after a matter is first before the Court and before it is finally disposed of by the Court, 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 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 the 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.

66   Witnesses and production of evidence

(cf LCA 1982, section 59)

The provisions of Part 3 of Chapter 4 of the Criminal Procedure Act 1986 apply, with any necessary modifications, to application proceedings in the same way as they apply to proceedings for summary offences under that Act.

67   Warrants of arrest and warrants of commitment

(cf LCA 1982, section 60)

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.

68   Enforcement of orders for payment of money

(cf LCA 1982, section 61)

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.

69   Costs

(cf LCA 1982, section 62)

(1)  The 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)  The 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.

70   Appeals

(cf LCA 1982, section 64)

(1)  In relation to any order arising from an application notice:

(a)  an application for annulment may be made in accordance with Part 2 of the Crimes (Appeal and Review) Act 2001, and

(b)  an appeal to the District Court may be made in accordance with Part 3 of the Crimes (Appeal and Review) Act 2001, and

(c)  an appeal to the Supreme Court may be made in accordance with Part 5 of the Crimes (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.

(2)  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 was made.

(3)  If any other Act:

(a)  provides for an appeal to the District Court against an order of the Court 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 (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)  If any other Act provides for an appeal to the Supreme Court against an order of the Court under that Act, such an appeal is to be made to the Supreme Court in accordance with Part 5 of the Crimes (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.

(5)  The Crimes (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.

(6)  In this section, a reference to an order includes a reference to any determination that the Court has jurisdiction to make, and any penalty that the Court has jurisdiction to impose.