Courts Legislation (Funds in Court) Act 2004

Courts Legislation (Funds in Court) Act 2004

Act No. 30/2004

table of provisions

SectionPage

Part 1—Preliminary

1.Purposes

2.Commencement

Part 2—Amendment to Supreme Court Act 1986

3.Common funds

4.New sections 113A and 113B inserted

113A.Common Fund No. 3

113B.Senior Master to have certain powers of administrator

Part 3—Amendment to County Court Act 1958

5.New Division 2B inserted

Division 2B—Transfer and Payment of Money to the Supreme Court for Person under Disability

39C.Money held in court for person under disability

Part 4—Amendment to Magistrates' Court
Act 1989

6.New Division 1B inserted

Division 1B—Transfer and Payment of Money to the Supreme Court for Person under Disability

101B.Money held in court for person under disability

Part 5—Amendment to Victims of Crime
Assistance Act 1996

7.New definition

8.Making of awards

9.New section 70A inserted

70A.Money held by Tribunal for person under disability

Part 6—Amendments to Other Legislation

10.Amendment to Trustee Act 1958

11.Amendment to Transfer of Land Act 1958

Part 7—Statute Law Revision

12.Amendment to Supreme Court Act 1986

13.Amendment to County Court Act 1958

14.Amendment to Magistrates' Court Act 1989

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Endnotes

SectionPage

Victoria

No. 30 of 2004

SectionPage

Courts Legislation (Funds in Court) Act 2004[†]

[Assented to 1 June 2004]

Act No. 30/2004

Courts Legislation (Funds in Court) Act 2004

Act No. 30/2004

Courts Legislation (Funds in Court) Act 2004

The Parliament of Victoriaenacts as follows:

Part 7—Statute Law Revision

Courts Legislation (Funds in Court) Act 2004

Act No. 30/2004

Part 1—Preliminary

1.Purposes

The purposes of this Act are—

(a)to amend certain provisions in the Supreme Court Act 1986 relating to investment and use of money held in common funds;

(b)to amend the County Court Act 1958 and the Magistrates' Court Act 1989 to provide that money held, or which but for this Act would be held, in those courts on behalf of any person under disability is transferred to the Supreme Court to be dealt with by that Court;

(c)to amend the Victims of Crime Assistance Act 1996 to provide that money held, or which but for this Act would be held, by the Victims of Crime Assistance Tribunal on trust for any person under disability is transferred to the Supreme Court to be dealt with by that Court;

(d)to make minor amendments to the Trustee Act 1958 and the Transfer of Land Act 1958.

2.Commencement

s. 2

This Act comes into operation on 1 July 2004.

______

See:
Act No.
110/1986.
Reprint No. 4
as at
1 June 2001
and amending
Act Nos
44/2001, 11/2002 and 71/2003.
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gov.au

Part 2—Amendment to Supreme Court Act 1986

3.Common funds

s. 3

(1)In section 113(1) of the Supreme Court Act 1986, after "1986"insert "and section 51A of this Act".

(2)In section 113(2) of the Supreme Court Act 1986, after "1958"insert "and Common Fund No.3 established by section 113A of this Act".

(3)In section 113(4) of the Supreme Court Act 1986, after "Fund" insert "(except Common Fund No. 3)".

(4)In section 113(5) of the Supreme Court Act 1986, after "Fund" insert "(except Common Fund No. 3)".

(5)In section 113(12) of the Supreme Court Act 1986, for "Unless" substitute "Subject to section 113A and unless".

(6)In section 113(13) of the Supreme Court Act 1986, after "a Common Fund" insert "(except Common Fund No. 3)".

(7)In section 113(14) of the Supreme Court Act 1986, after "a Common Fund" insert "(except Common Fund No. 3)".

(8)In section 113(15)(a) of the Supreme Court Act 1986, after "Common Fund" insert "(except Common Fund No. 3)".

(9)In section 113(17) of the Supreme Court Act 1986, after "Fund" insert "(except Common Fund No. 3)".

(10)After section 113(18)(b) of the Supreme Court Act 1986insert—

"(ba)Payments of any costs, expenses and charges incurred in respect of staff employed in connection with the administration of a Common Fund as in the opinion of the Senior Master are properly chargeable against the Common Funds Guarantee and Reserve Account;

(bb) Payments of any costs, expenses and charges incurred in respect of—

(i)legal advice obtained in relation to a person, estate or trust; or

(ii)legal proceedings to which a person, estate or trust is a party—

as in the opinion of the Senior Master are properly chargeable against the Common Funds Guarantee and Reserve Account and not against a particular person, estate or trust because of the general interest and importance of the subject matter of the advice or proceedings;".

(11)In section 113(23) of the Supreme Court Act 1986, after "a Common Fund" insert "(except Common Fund No. 3)".

4.New sections 113A and 113B inserted

s. 4

After section 113 of the Supreme Court Act 1986insert—

'113A.Common Fund No. 3

(1)In this section, "prescribed financial market" has the same meaning as in section9 of the Corporations Act.

(2)There is established a Common Fund to be known as Common Fund No. 3.

(3)On the commencement of section 4 of the Courts Legislation (Funds in Court) Act 2004—

(a)the interest of any person, estate or trust in a security listed on a prescribed financial market and held by the Senior Master on separate account under section 113(6) immediately before that commencement is cancelled;

(b)all securities of a kind referred to in paragraph (a) are transferred to Common Fund No. 3;

(c)in consideration of, and as compensation for, the cancellation of any interest of a person, estate or trust in a security by force of paragraph (a), that person, estate or trust is given all the rights of a person, estate or trust with money invested in Common Fund No. 3 as set out in section 113.

s. 4

(4)No duty or other tax is chargeable under any Act in respect of anything effected by or done under this section or in respect of any act or transaction connected with or necessary to be done by reason of this section, including a transaction entered into or an instrument made, executed, lodged or given, for the purpose of, or connected with the transfer of securities made by this section.

(5)Money held in Common Fund No. 3 may only be invested in securities listed on a prescribed financial market or in cash securities, deposits or discount bills-of-exchange or in another type of security determined by the Senior Master.

(6)The monetary value at any time of a security listed on a prescribed financial market and held by the Senior Master in Common Fund No. 3 is the value last published by that market with respect to that security.

(7)Any capital profit or loss incurred on the realisation of an asset in Common Fund No.3 must be credited or debited (as the case requires) to that Fund and apportioned between the accounts of each person, estate or trust with money invested in the Fund at that time proportionately to the extent of that investment.

(8)Income arising from Common Fund No. 3 must be apportioned between the accounts of each person, estate or trust with money invested in the Fund at that time proportionately to the extent of that investment.

113B.Senior Master to have certain powers of administrator

s. 4

(1)If—

(a)an administrator has not been appointed under the Guardianship and Administration Act 1986 in respect of the estate of a person under disability; and

(b)the Senior Master holds money on behalf of that person—

the Senior Master has, in respect of that money, the powers referred to in section 58B(2) of that Act that he or she would have if he or she had been named as administrator in an administration order made under that Act that specified the administrator as having those powers.

(2)The Senior Master ceases to have the powers conferred by sub-section (1) if another person is appointed under the Guardianship and Administration Act 1986 as an administrator of the estate of the person under disability.

(3)The Senior Master may, by instrument, delegate to any person employed in connection with the administration of a Common Fund any power of the Senior Master conferred by sub-section (1).'.

s. 4

______

See:
Act No.
6230.
Reprint No. 10
as at
27 September 2001
and amending
Act Nos
107/1986, 4/2002, 11/2002 and 39/2003.
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gov.au

Part 3—Amendment to County Court Act 1958

5.New Division 2B inserted

s. 5

After Division 2A of Part II of the County Court Act 1958 insert—

'Division 2B—Transfer and Payment of Money to the Supreme Court for Person under Disability

39C.Money held in court for person under disability

(1)In this section, "person under disability" means—

(a)a minor; or

(b)a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his or her affairs in relation to the proceeding.

(2)Unless the court orders otherwise, money held in court on behalf of a person under disability immediately before the commencement of section 5 of the Courts Legislation (Funds in Court) Act 2004 must be paid into the Supreme Court by payment to the Senior Master of the Supreme Court to be held in that Court on behalf of the person under disability.

(3)Unless the court orders otherwise, in any proceeding in the court in which it is adjudged or ordered that money be paid for a person under disability, that money must be paid into the Supreme Court (in full compliance with the judgment or order of the court) by payment to the Senior Master of the Supreme Court to be held in that Court on behalf of the person under disability.

(4)Money paid to the Senior Master under sub-section (2) or (3) is to be held by the Senior Master as if an order had been made in a proceeding in the Supreme Court that the money be paid into court to be held on behalf of the person under disability and as if that money had been paid into court in accordance with that order.

(5)The Senior Master has the same powers with respect to loss occasioned by delay as the Senior Master would have if an order referred to in sub-section (4) had been made.

Note:Rule 79.06 of the Supreme Court (General Civil Procedure) Rules 1996 provides the Senior Master with powers with respect to loss occasioned by delay.

s. 5

(6) Nothing in this section affects the operation of section 39B of this Act or section 66 of the Guardianship and Administration Act 1986.'.

______

See:
Act No.
51/1989.
Reprint No. 9
as at
7 May 2003
and amending
Act Nos
27/2002, 28/2003, 39/2003, 52/2003, 74/2003, 80/2003, 94/2003 and 108/2003.
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gov.au

Part 4—Amendment to Magistrates' Court Act 1989

6.New Division 1B inserted

s. 6

After Division 1A of Part 5 of the Magistrates' Court Act 1989 insert—

'Division 1B—Transfer and Payment of Money to the Supreme Court for Person under Disability

101B.Money held in court for person under disability

(1)In this section, "person under disability" means—

(a)a minor; or

(b)a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his or her affairs in relation to the proceeding.

(2)Unless the Court orders otherwise, money held in Court on behalf of a person under disability immediately before the commencement of section 6 of the Courts Legislation (Funds in Court) Act 2004 must be paid into the Supreme Court by payment to the Senior Master of the Supreme Court to be held in that Court on behalf of the person under disability.

(3)Unless the Court orders otherwise, in any proceeding in the Court in which it is adjudged or ordered that money be paid for a person under disability, that money must be paid into the Supreme Court (in full compliance with the judgment or order of the Court) by payment to the Senior Master of the Supreme Court to be held in that Court on behalf of the person under disability.

(5)The Senior Master has the same powers with respect to loss occasioned by delay as the Senior Master would have if an order referred to in sub-section (4) had been made.

Note:Rule 79.06 of the Supreme Court (General Civil Procedure) Rules 1996 provides the Senior Master with powers with respect to loss occasioned by delay.

s. 6

(6) Nothing in this section affects the operation of section 101A of this Act or section 66 of the Guardianship and Administration Act 1986.'.

______

See:
Act No.
81/1996.
Reprint No. 3
as at
12 June 2003
and amending
Act No.
47/2003.
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dpc.vic.
gov.au

Part 5—Amendment to Victims of Crime Assistance Act 1996

7.New definition

s. 7

In section 3(1) of the Victims of Crime Assistance Act 1996 insert—

' "person under disability" means—

(a)a minor; or

(b)a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his or her affairs in relation to the proceeding;'.

8.Making of awards

(1)In section 50(3)(b) of the Victims of Crime Assistance Act 1996, after "another person" insert "(other than a person under disability)".

(2)At the foot of section 50(3) of the Victims of Crime Assistance Act 1996 insert—

"Note:In relation to a person under disability, see section70A.".

(3)At the foot of section 55(1) of the Victims of Crime Assistance Act 1996 insert—

"Note:In relation to an award of assistance made for the benefit of a person under disability, see section70A.".

9.New section 70A inserted

s. 9

After section 70 of the Victims of Crime Assistance Act 1996 insert—

"70A.Money held by Tribunal for person under disability

(1)Unless the Tribunal orders otherwise, money held by the Tribunal on trust for a person under disability immediately before the commencement of section 9 of the Courts Legislation (Funds in Court) Act 2004 must be paid into the Supreme Court by payment to the Senior Master of the Supreme Court to be held in that Court on behalf of the person under disability.

(2)Unless the Tribunal orders otherwise, in any proceeding in the Tribunal in which an award of assistance is made for the benefit of a person under disability, that award must be made payable to the Senior Master of the Supreme Court and paid to the Senior Master and held in that Court on behalf of the person under disability.

(3)Money paid to the Senior Master under sub-section (1) or (2) is to be held by the Senior Master as if an order had been made in a proceeding in the Supreme Court that the money be paid into court to be held on behalf of the person under disability and as if that money had been paid into court in accordance with that order.

(4) Nothing in this section affects the operation of section 70 of this Act or section 66 of the Guardianship and Administration Act 1986.".

______

Part 6—Amendments to Other Legislation

See:
Act No.
6401.
Reprint No. 11
as at
31 May 2002.
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gov.au

10.Amendment to Trustee Act 1958

s. 10

After section 69(6) of the Trustee Act 1958 insert—

'(7)In this section, "Court" means the Supreme Court.'.

See:
Act No.
6399.
Reprint No. 14
as at
1 January 2003.
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gov.au

11.Amendment to Transfer of Land Act 1958

In section 77(3)(d) of the Transfer of Land Act 1958, for "Court" substitute "Supreme Court".

______

Part 7—Statute Law Revision

12.Amendment to Supreme Court Act 1986

s. 12

(1)In section 51A of the Supreme Court Act 1986,for "Guardianship and Administration Board Act 1986" (where twice occurring) substitute "Guardianship and Administration Act 1986".

(2)In section 51A(5) of the Supreme Court Act 1986,for "Guardianship and Administration Board established under" substitute "Tribunal within the meaning of".

13.Amendment to County Court Act 1958

(1)In section 39B of the County Court Act 1958, for "Guardianship and Administration Board Act 1986" (where twice occurring) substitute"Guardianship and Administration Act 1986".

(2)In section 39B(5) of the County Court Act 1958,for "Guardianship and Administration Board established under" substitute "Tribunal within the meaning of".

14.Amendment to Magistrates' Court Act 1989

(1)In section 101A of the Magistrates' Court Act 1989,for "Guardianship and Administration Board Act 1986" (where twice occurring) substitute "Guardianship and Administration Act 1986".

(2)In section 101A(5) of the Magistrates' Court Act 1989,for "Guardianship and Administration Board established under" substitute "Tribunal within the meaning of".

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Courts Legislation (Funds in Court) Act 2004

Act No. 30/2004

Endnotes

[†] Minister's second reading speech—

Legislative Assembly: 22 April 2004

Legislative Council: 12 May 2004

The long title for the Bill for this Act was "to amend the Supreme Court Act 1986, the County Court Act 1958, the Magistrates' Court Act 1989, the Victims of Crime Assistance Act 1996 and the Trustee Act 1958 with respect to the investment and use of money held in court or by the Victims of Crime Assistance Tribunal on behalf of persons under disability and for other purposes."