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Legislative Assembly for the ACT: 2004 Week 05 Hansard (Friday, 14 May 2004) . . Page.. 1923 ..

practices and procedures used in the Supreme Court and the Magistrates Court differ significantly.

The practice and procedure used in the Magistrates Court is legislative in nature. Much of it can be found in the provisions of the Magistrates Court (Civil Jurisdiction) Act 1982. The practice and procedure of the Supreme Court derives from rules of court made by the judges under the Supreme Court Act 1933. One example of these differences will suffice. In the Magistrates Court a notice to admit facts requires a response within 21 days. If a response is not received, the person will be taken to have admitted them. A similar notice in the Supreme Court requires a response within 14 days and a failure to respond involves no admission. However, the differences between the courts is a trap for the unwary and may have a significant impact on an outcome in a case. There is no good reason for variations between the courts. There should be a rule covering this point and the rule should be the same.

In 1997, the Community Law Reform Committee argued that uniform procedures would be useful. It identified a number of reasons: reducing costs by enabling lawyers to find the relevant rules more quickly and to consult common annotations and/or case notes; reducing the potential for confusion as to whether authorities dealing with rules in one court apply to a comparable but different rule in another; reducing the likelihood of litigants having to pay unnecessary costs as a result of procedural mistakes; and reducing the cost of maintaining a constant revision of rules facilitating the transfer of proceedings from one court to another without unnecessary delay or expense.

The committee recognised that it was relatively easy to identify the goal. The real difficulty was working out how to get there. The committee was aware of the magnitude of that task. It identified some of the necessary preconditions. These included the establishment of a common rules committee, development of a common format of rules, development of rules for common pleadings, use of common terminology, the elimination of jurisdictional anomalies and development of common procedures at a registry level—perhaps a common administrative service under the supervision of a single chief executive officer.

In 2000 Mr Ted O’Grady, a respected jurist in the field of court practice and procedure, considered how the task might be achieved in the ACT. He found little consistency between the rules of the ACT Magistrates Court and the ACT Supreme Court. Further, it became apparent that the legislatively entrenched procedures of the Magistrates Court were comparatively difficult to change. Many of the Magistrates Court’s procedures had been abandoned in other jurisdictions.

When this government developed its tort reform agenda a couple of years ago these challenges were identified as requiring a concerted effort by all concerned. Members will be aware that the ACT’s tort reform agenda is being dealt with in three stages. In the first two stages we have rebuilt the civil law about wrongs word by word. This undertaking is largely complete. The third and final stage, the subject of the legislation I have introduced today, involves harmonising the practice and procedures of the courts. Currently the rules of the Magistrates Court are contained in the Magistrates Court Act and the Magistrates Court (Civil Jurisdiction) Act. These rules may only be changed by the Assembly amending the legislation.

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