XN000022-1987-03-11 — Page 32

WEDNESDAY, MARCH 11, 1987

30

CROWN'S ROLE IN PARTITION DISPUTES CLARIFIED

*****

THE MAIN OBJECT OF THE PARTITION (AMENDMENT) BILL 1987 IS TO ABOLISH THE STATUTORY REQUIREMENT OF MAKING THE CROWN A NECESSARY PARTY TO EVERY PARTITION ACTION, THE ACTING ATTORNEY GENERAL, THE HON JEREMY MATHEWS, SAID IN THE LEGISLATIVE COUNCIL TODAY (WEDNESDAY).

MOVING THE SECOND READING OF THE BILL, MR MATHEWS SAID THE BILL SOUGHT TO REPLACE THIS REQUIREMENT WITH A REQUIREMENT FOR SERVICE OF THE RELEVANT DOCUMENTS ON THE DIRECTOR OF BUILDINGS AND LANDS IN THE FIRST INSTANCE SO THAT HE WOULD HAVE NOTICE OF THE INTENDED PARTITION.

+THE BILL ALSO PROVIDES THE MEANS FOR THE DIRECTOR TO OBTAIN MORE TIME, WHERE NECESSARY, TO SEEK ADVICE FROM OR INSTRUCT THE ATTORNEY GENERAL.

+THIS IS ACHIEVED BY A PROVISION ALLOWING THE DIRECTOR TO FILE A MEMORANDUM IN COURT UPON WHICH THE PROCEEDINGS WILL BE STAYED FOR A SPECIFIED PERIOD OF TIME.

+ALLIED TO THESE MEASURES IS THE PROVISION ENABLING THE ATTORNEY GENERAL TO BE JOINED AS A PARTY AT ANY STAGE IN A PARTITION ACTION ON HIS APPLICATION.+

MR MATHEWS SAID THE PARTITION ORDINANCE, WHICH WAS ENACTED IN 1969 AS A LAW REFORM MEASURE, PROVIDED FOR THE DIVISION OF THE OWNERSHIP OF BUILDINGS OR LAND HELD BY CO-OWNERS.

+THE NEED FOR THIS MACHINERY ARISES MOST FREQUENTLY WHERE THERE ARE DISPUTES BETWEEN CO-OWNERS. THE ORDINANCE EMPOWERS THE COURT TO DIVIDE BUILDINGS AND LAND FAIRLY IN ACCORDANCE WITH SETTLED LEGAL PRINCIPLES, HE EXPLAINED.

+THE ONLY PROBLEM WHICH HAS ARISEN IN PRACTICE IS THAT, AS THE ORDINANCE STANDS NOW, UNDER SECTION 3, THE CROWN HAS TO BE MADE A NECESSARY PARTY TO EVERY PARTITION PROCEEDING.

+A REVIEW WAS DONE TO SEE WHETHER PUBLIC ISSUES ARISE BEYOND THE INTERESTS OF THE PRIVATE PARTIES IN THESE CASES, HE ADDED.

THE REVIEW, MR MATHEWS SAID, HAD BEEN PROMPTED BY A COURT CASE WHERE THE ATTORNEY GENERAL'S COSTS IN APPEARING WERE DISALLOWED BY THE TRIAL JUDGE ON THE BASIS THAT THE CROWN'S INVOLVEMENT HAD BEEN UNNECESSARY.

+THIS REVIEW REACHED TWO CONCLUSIONS -- FIRSTLY, EXPERIENCE HAS SHOWN THAT FEW ISSUES OF CONCERN TO THE CROWN ARISE IN THESE ACTIONS AND SECONDLY, THAT ANY INTERESTS THE CROWN HAS CAN BE ADEQUATELY PROTECTED WITHOUT THE INTERVENTION OF THE CROWN IN THE FIRST INSTANCE.+

/CALLING THE