Magistrates Court Act 1991

This Act may be cited as the Magistrates Court

Act 1991.

In this Act, unless the contrary intention appears—

Chief Magistrate means the person holding or acting in the office of Chief Magistrate under the Magistrates Act 1983;

civil action means an action or proceeding brought in a civil division of the Court;

Court or Magistrates Court means the Magistrates Court of South Australia;

criminal action means an action or proceeding brought in a criminal division of the Court;

criminal division means the Criminal Division or the Nunga Court Division of the Court;

evidentiary material means any document, object or substance of evidentiary value in proceedings before the Court and includes any document, object or substance that should, in the opinion of the Court, be produced for the purpose of enabling the Court to determine whether or not it has evidentiary value;

interlocutory judgment includes—

an interlocutory order; and

an order or ruling relating to the admissibility or giving of evidence;

judgment means a judgment, order or decision and includes an interlocutory judgment;

judicial office means the office of Magistrate, Judicial Registrar or special justice;

Judicial Registrar means a Magistrates Court Judicial Registrar;

Magistrate means a person holding office as a Magistrate under the Magistrates Act 1983;

minor civil action—see subsection (2);

minor statutory proceeding means—

an application under the Fences Act 1975; or

an application under Part 4 or section 33 of the Second-hand Vehicle Dealers Act 1995; or

an application under the Retail and Commercial Leases Act 1995, other than an application that involves a monetary claim for more than $12 000; or

an application under section 11(8) of the Second-hand Dealers and Pawnbrokers Act 1996; or

an application under Part 5 of the Building Work Contractors Act 1995; or

a transferred proceeding within the meaning of Part 3A of the South Australian Civil and Administrative Tribunal Act 2013; or

any other proceeding declared by statute to be a minor statutory proceeding;

neighbourhood dispute means a dispute between neighbours, or the occupiers of properties in close proximity, based on allegations of trespass or nuisance;

Nunga Court means the Nunga Court Division of the Court;

Registrar means the Principal Registrar, or any Registrar or Deputy Registrar of the Court, but does not include a Judicial Registrar;

rules means the rules of the Court in force under this Act;

small claim means a monetary claim for $12 000 or less.

For the purposes of this Act, a person will be taken to be an Aboriginal or Torres Strait Islander person if—

the person is descended from an Aboriginal or Torres Strait Islander person; and

the person identifies as an Aboriginal or Torres Strait Islander person; and

the person is accepted as an Aboriginal or Torres Strait Islander person by an Aboriginal or Torres Strait Islander community.

When sentencing an Aboriginal or Torres Strait Islander person in the Nunga Court Division of the Court, the Court will be known as—

the Nunga Court; or

if the Chief Magistrate assigns another name to the Court for the purposes of this subsection—that name (and a reference in this Act to the Nunga Court or the Nunga Court Division will be taken to include a reference to the Court as so named).

Before assigning a name to the Court under subsection (1b)(b), the Chief Magistrate—

must consult with Aboriginal and Torres Strait Islander Justice Officers (within the meaning of section 22 of the Sentencing Act 2017) and any other persons or bodies recommended by the Aboriginal and Torres Strait Islander Justice Officers; and

may consult with any other persons or bodies that the Chief Magistrate thinks appropriate.

Subject to subsections (3) and (4), a minor civil action is an action founded on—

a small claim; or

a claim for relief in relation to a neighbourhood dispute; or

a minor statutory proceeding.

If a claim that is not within one of the classes referred to in subsection (2) is introduced into a minor civil action, the action ceases to be a minor civil action unless the Court orders that the subsequent claim be tried separately.

Subject to subsection (4a), if a neighbourhood dispute or a minor statutory proceeding involves—

a monetary claim for more than $12 000; or

a claim for relief in the nature of an order to carry out work where the value of the work is more than $12 000, a party may elect, in accordance with the rules, to exclude the dispute or proceeding from the rules governing minor civil actions¹, and in that case, the dispute or proceeding ceases to be a minor civil action.

Subsection (4) does not apply to a minor statutory proceeding that is a transferred proceeding within the meaning of Part 3A of the South Australian Civil and Administrative Tribunal Act 2013 (and the Court may deal with the proceeding as a minor statutory proceeding despite the fact that the proceeding involves a claim that exceeds the monetary limits referred to in that subsection).

Proceedings for a contempt of the Court will be regarded as a civil action or a criminal action according to whether the contempt relates to proceedings in a civil division or a criminal division of the Court and where the contempt is unrelated to proceedings in the Court, the proceedings for contempt will be regarded as a criminal action.

Notes1 See Division 2 of Part 5.2 For definition of divisional penalties (and divisional expiation fees) see Appendix.

The Magistrates Court of South Australia is established.

The Court is a Court of record.

The Court will have such seals as are necessary for the transaction of its business.

A document apparently sealed with a seal of the Court will, in the absence of evidence to the contrary, be taken to have been duly issued under the authority of the Court.

The Court is divided into the following Divisions:

the Civil (General Claims) Division;

the Civil (Consumer and Business) Division;

the Civil (Minor Claims) Division;

the Criminal Division;

the Nunga Court Division;

the Petty Sessions Division.

The Court is, in its Criminal Division, a court of summary jurisdiction.

Subject to this section, the Court, when sitting to adjudicate on any matter, must be constituted of a Magistrate.

Subject to the regulations, Judicial Registrars may exercise such jurisdiction of the Court as assigned by the Chief Magistrate or the rules.

The Court may be constituted of a special justice—

in its Petty Sessions Division; or

to hear and determine uncontested applications of a class prescribed by the regulations; or

to hear and determine appeals under section 23 of the

Fines Enforcement and Debt Recovery

Act 2017; or

in any other case—if there is no Magistrate or Judicial

Registrar available.

If the Court is constituted of a Judicial Registrar or special justice in criminal proceedings, the Court—

may not impose a sentence of imprisonment; and

if of the opinion that the limitation on its powers imposed under this subsection prevents it from imposing an appropriate sentence—may adjourn the question of sentence for hearing and determination by a

Magistrate.

If there is no Magistrate, Judicial Registrar or special justice available to constitute the Court as a bail authority, the Court may be constituted of 2 justices for the purposes of an application under the

Bail

Act 1985.

The Court may, at any one time, be separately constituted in accordance with this section for the hearing and determination of any number of separate matters.

The Governor may, on the recommendation of the

Attorney‑General and with the concurrence of the Chief Magistrate, appoint a legal practitioner of at least 5 years standing to be a

Magistrates Court Judicial Registrar.

The term of appointment (which must be for at least 7 years), the remuneration and the conditions of service applicable to a person holding an appointment under this section will be as determined by the Governor with the concurrence of the Chief Magistrate, and specified in the instrument of appointment.

An appointment of a Judicial Registrar under this section will be taken to be on a full‑time basis unless the instrument of appointment provides that the appointment is on a part‑time basis.

However, a Judicial Registrar not appointed on a part‑time basis may, by written agreement with the Chief Magistrate made with the approval of the Attorney‑General, perform the duties of office on a

part‑time basis for a period specified in the agreement.

An instrument appointing a Judicial Registrar on a part‑time basis or an agreement under subsection (4) must specify the hours of duty the

Judicial Registrar will ordinarily be required to work, expressed as a proportion of the time a Judicial Registrar appointed on a full‑time basis is ordinarily required to work.

The hours of duty specified in an instrument of appointment or an agreement under subsection (4) may be varied by written agreement between the Judicial Registrar and the Chief Magistrate made with the approval of the Attorney‑General.

The remuneration determined by the Governor with the concurrence of the Chief Magistrate and specified in the instrument of appointment may not be reduced by subsequent determination.

However, a Judicial Registrar (whether appointed on a full‑time or part‑time basis) is, while performing the duties of the office on a part‑time basis, entitled to remuneration on a pro‑rata basis in respect of the hours of duty at the rate determined by the Governor under this section in relation to a Judicial Registrar appointed on a full‑time basis.

For the purpose of determining whether a legal practitioner has the standing necessary for appointment to the office of Judicial Registrar, periods of legal practice within and outside the State will be taken into account.

A person appointed as a Judicial Registrar is, on the recommendation of the Attorney‑General and with the concurrence of the

Chief Magistrate, eligible for reappointment at the expiration of a term of office.

A Judicial Registrar may, with the approval of the

Attorney‑General and the concurrence of the Chief Magistrate, concurrently hold office as a member of the Court's non‑judicial staff if the non‑judicial office is compatible with the judicial office.

The Governor may, on the recommendation of the

Attorney‑General, remove a Judicial Registrar from office for—

mental or physical incapacity to carry out official duties satisfactorily; or

neglect of duty; or

dishonourable conduct.

A Judicial Registrar ceases to hold office if the Judicial

Registrar—

dies; or

completes a term of office and is not reappointed; or

resigns by written notice to the Attorney‑General;

or

ceases to satisfy any qualification by virtue of which the person was eligible for appointment to the office of Judicial Registrar;

or

is removed from office under subsection (1).

The Attorney‑General may only make a recommendation under subsection (1) with the concurrence of the Chief

Magistrate.

The Chief Magistrate may, on the Chief Magistrate's own initiative or at the request of the Attorney‑General, suspend a Judicial Registrar from office if it appears that there may be grounds for the removal of the

Judicial Registrar from office.

If a Judicial Registrar is suspended under subsection (4), the Judicial Registrar remains entitled to the Judicial Registrar's usual remuneration and allowances during the period of suspension.

If under an Act conferring a jurisdiction on the Court in its Civil (Consumer and Business) Division the Court is to sit with assessors in exercising that jurisdiction, then the following provisions apply:

the Court will (except for the purpose of dealing with interlocutory, procedural or administrative matters) sit with assessors selected in accordance with the Act conferring the jurisdiction;

where the Court sits with assessors—

questions of law or procedure will be determined by the judicial officer presiding at the proceedings; and

other questions will be determined by majority opinion.

The Nunga Court must, in sentencing an Aboriginal or Torres Strait

Islander defendant, be assisted by 1 or more of the following:

a person regarded by the defendant, and accepted within the defendant's Aboriginal or Torres Strait Islander community, as an Aboriginal or

Torres Strait Islander Elder or Respected Person;

a person accepted by the defendant's Aboriginal or Torres Strait

Islander community as a person qualified to provide cultural advice relevant to sentencing of the defendant, and may be assisted by any other person the Court considers appropriate.

A person referred to in subsection (1) is to assist the Court in sentencing

Aboriginal or Torres Strait Islander defendants by providing advice on

Aboriginal or Torres Strait Islander society and culture or any other matter the Court considers appropriate.

Nothing in this section limits section 7A.

The Court has jurisdiction—

to hear and determine an action (at law or in equity) for a sum of money where the amount claimed does not exceed $100 000;

to hear and determine an action (at law or in equity) to obtain or recover title to, or possession of, real or personal property where the value of the property does not exceed $100 000;

to hear and determine an interpleader action where the value of the property to which the action relates does not exceed

$100 000;

to grant any form of relief necessary to resolve a minor civil action.

The parties to an action may waive any monetary limit on the civil jurisdiction of the Court, and, in that event, the Court will have jurisdiction to determine, the action without regard to that limitation.