New South Wales: Supreme Court Act 1970 (NSW)

Supreme Court Act 1970 No 52 An Act to provide for the concurrent administration of law and equity in the Supreme Court; to amend and consolidate the law with respect to the administration of justice and the procedure and practice of the Supreme Court; to repeal the Common Law Procedure Act 1899, the Equity Act 1901 and certain other Acts; to amend the Partnership Act 1892 and certain other Acts; and for purposes connected therewith. Part 1 Preliminary Division 1 General 1 Name of Act This Act may be cited as the Supreme Court Act 1970. 2 Commencement (1) Except as provided in subsection (2), this Act shall commence on a day to be appointed by the Governor and notified by proclamation published in the Gazette. (2) Part 9 shall commence on the date upon which the assent of Her Majesty to this Act is signified. 3 The Crown (1) Subject to this and any other Act, the Crown is bound by, and has the benefit of, this Act and the rules. (2) In subsection (1), Crown includes not only the Crown in right of New South Wales but also the Crown in all its other capacities. 4 (Repealed) 5 Repeals Each Act mentioned in the First Schedule to this Act is, to the extent therein expressed, hereby repealed. 6 Inconsistency with rules Any Act in force immediately before the commencement of this Act which is inconsistent with the rules shall be superseded to the extent of such inconsistency and while such inconsistency continues to exist. 7 (Repealed) 8 Construction of references (1) In any Act, rule of court or regulation in force immediately before the commencement of this Act— (a) a reference to the Court in Banco or to the Full Court or to the Court as a court consisting of two or more Judges shall be construed as a reference to the Court of Appeal, (b) a reference to the Court or to a Judge in any of the jurisdictions specified in the First Column of the Table below or to the practice or procedure of the Court in any of those jurisdictions shall be construed as a reference to the Division specified opposite that jurisdiction in the Second Column of that Table or, as the case may be, to the practice or procedure in that Division— Table First Column Second Column Jurisdiction Division Common Law Common Law Division Equity Equity Division Probate Probate Division Matrimonial Causes Divorce Division Protective Protective Division Admiralty Admiralty Division (c) a reference to the Judge exercising the matrimonial causes jurisdiction of the Court or appointed to exercise that jurisdiction shall be construed as a reference to the Chief Judge in Divorce, (d) a reference to a writ, whether of prohibition, mandamus, or certiorari or of any other description by which the Court formerly had jurisdiction to grant any relief or remedy shall, subject to subsection (2), be construed as a reference to the judgment or order by which the Court may grant that relief or remedy under this Act and the rules, (e) a reference to the Master in Equity or to the Master in the protective jurisdiction of the Court shall, subject to the rules, be construed as a reference to the master assigned to the Equity Division or, as the case may be, to the master assigned to the Protective Division or, where two or more masters are so assigned, to the senior master so assigned, (f) a reference to the holder of an office named in the First Column of the Table below shall, subject to the rules, be construed as a reference to the holder of the office named in the Second Column of that Table opposite to the name of the firstmentioned office— Table First Column Second Column Prothonotary Prothonotary Deputy Master and Registrar in Equity Registrar in Equity Registrar of Probates Registrar in Probate Registrar in Divorce Registrar in Divorce Registrar in Admiralty Registrar in Admiralty Registrar of the Court of Appeal Registrar of the Court of Appeal (g) a reference to the verdict or finding of a jury in any proceedings or on any issue in any proceedings on a trial with a jury shall, unless the context or subject matter otherwise indicates or requires, extend, in the case of proceedings on a common law claim tried without a jury pursuant to this Act, to the determination of the Court in the proceedings or on any such issue on a trial without a jury, and (h) a reference to an action of ejectment in the Court shall be construed as a reference to proceedings in the Court for possession of land. (2) Paragraph (d) of subsection (1) does not apply to a reference to— (a) the writ of habeas corpus ad subjiciendum, (b) any writ of execution for the enforcement of a judgment or order of the Court, or (c) any writ in aid of any such writ of execution. 9 Non-revivor A repeal made by section 5 or an amendment made by section 7 shall not revive anything not in force or existing immediately before the commencement of this Act. Division 2 Abolition of certain matters 10 (Repealed) 11 Distinction between court and chambers (1) The distinction between court and chambers is abolished. (2) The business of the Court, whether conducted in court or otherwise, shall be taken to be conducted in court. 12 Quo warranto Informations in the nature of quo warranto are abolished. Division 3 Transition 13 Judges (1) A person who immediately before the commencement of this Act held any office specified in the Table below shall subject to this Act continue to hold that office under this Act. Table Chief Justice President of the Court of Appeal Judge of Appeal Chief Judge in Equity Judge exercising the matrimonial causes jurisdiction of the Court Probate Judge Judge (2) The person who immediately before the commencement of this Act held the office of Judge exercising the matrimonial causes jurisdiction of the Court shall, on the commencement of this Act, be Chief Judge in Divorce. 14 Masters (1) Notwithstanding section 111 and section 116, the holder immediately before the commencement of this Act of the office of Master in Equity is hereby— (a) appointed to be a master under this Act, and (b) assigned to the Equity Division and to the Protective Division. (2) Notwithstanding section 116— (a) the assignment by paragraph (b) of subsection (1) shall not be revoked without the consent of the master concerned, and (b) the master assigned to the Equity Division and to the Protective Division by that paragraph shall not be assigned to any other Division without the master's consent. (3) (Repealed) 15 Registrars and other officers Notwithstanding section 120, the holder immediately before the commencement of this Act of each office named in the First Column in the Table in paragraph (f) of subsection (1) of section 8 is hereby appointed to the office under this Act named in the Second Column in that Table opposite to the name of the firstmentioned office, to hold office subject to the provisions of the Public Service Act 1902. 16 Pending proceedings (1) Subject to the rules, and unless the Court otherwise orders, this Act does not apply to, and the repeals and amendments made by this Act do not affect, any proceedings commenced in the Court before the commencement of this Act. (2) In particular, but without limiting the generality of subsection (1), subject to the rules, and unless the Court otherwise orders, in the case of any proceedings commenced in the Court before the commencement of this Act, this Act does not apply to, and the repeals and amendments made by this Act do not affect— (a) the completion after the commencement of this Act of any step in the proceedings taken before the commencement of this Act, or (b) the taking and completion after the commencement of this Act of any step in the proceedings. (3) Notwithstanding subsections (1) and (2)— (a) sections 10 and 98 apply to proceedings commenced in the Court before the commencement of this Act, (b) any person held in custody on the date of commencement of this Act under any attachment or committal (otherwise than for contempt of court) or under any writ of capias ad respondendum or writ of ne exeat or otherwise on mesne process or under any writ of capias ad satisfaciendum shall, unless there is other lawful warrant for holding the person in custody, be discharged from custody on the date of commencement of this Act, and (c) no writ of foreign attachment under Part 20 of the Common Law Procedure Act 1899 shall be issued after the commencement of this Act. (4) For the purposes of this section— (a) the expression proceedings includes— (i) any cause, suit, application or matter in or before the Court or for decision or determination by the Court or any Judge of the Court, and (ii) any appeal from, or other means of review (whether by way of stated case, statutory prohibition or otherwise) of, any decision or determination of any court, tribunal or person, (b) the expression judgment includes any rule, decree or order, and (c) the expression step includes— (i) the entry or other perfecting of any judgment, (ii) an appeal to the Court of Appeal, (iii) an application for a new trial or for judgment notwithstanding a verdict, (iv) a motion in arrest of judgment, (v) a new trial, (vi) the punishment of contempt in connection with the proceedings, (vii) any thing done or to be done by way of execution or enforcement of a judgment in the proceedings, (viii) interpleader by any person having the execution of a judgment in the proceedings, (ix) an application for a stay of proceedings, (x) any thing done or to be done in consequence of an appeal to Her Majesty in Council or to the High Court of Australia, whether before or after final judgment. (5) The Court may make orders under this section on application by a party or of its own motion. Division 4 Savings 17 Criminal proceedings (1) Except as provided in this section this Act and the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule, and no claim for relief lies to the Court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of that Schedule. (2) Rules may be made under this Act— (a) for regulating and prescribing the practice and procedure of the Court, and (b) without limiting the generality of paragraph (a), for— (i) providing for the regulation of the sittings and order of business of the Court and the regulation of the vacations and holidays to be observed by the Court and in the offices of the Court, and (ii) prescribing the duties and functions of the Prothonotary and other officers of the Court and the records to be kept by them, in relation to any of the proceedings in the Court which are specified in the Third Schedule. (2A) The provisions of this Act, including Part 9 (subsections (1) and (4) of section 124 excepted), apply in relation to rules made pursuant to subsection (2) as they apply in relation to other rules. (3) Subsection (1) does not affect the operation of sections 1, 2, 5, 6, 7, 41, 53, 54, 55, 72, 101 (5) and 130. (4) (Repealed) 18 Appeal to Privy Council (1) Subject to subsection (2), nothing in this Act or in the rules affects the law formerly existing concerning appeals to Her Majesty in Council. (2) The provisions of this Act and the rules apply to proceedings in the Court for leave to appeal to Her Majesty in Council and to proceedings in the Court relating to such an appeal. (3) Subsection (2) has effect subject to Orders in Council from time to time in force under the Australian Courts Act 1828. Division 5 Interpretation 19 Definitions generally (1) In this Act and in the rules, except in so far as the context or subject-matter otherwise indicates or requires— claim for relief includes— (a) a claim for the recovery of damages or other money, or for possession of land, or for delivery of goods, (b) a claim for a declaration of right, (c) a claim for the determination of any question or matter which may be determined by the Court, and (d) any other claim (whether legal, equitable or otherwise) justiciable in the Court. commencement, in relation to this Act, means the date appointed under subsection (1) of section 2. common law claim means a claim for damages or other money, or for possession of land, or for detention of goods, in proceedings in the Common Law Division. costs includes fees, charges, disbursements, expenses and remuneration. Court means the Supreme Court of New South Wales. defendant includes any person served with a statement of claim or summons, or served with notice of or entitled to attend any proceedings. Division means a Division of the Court specified in paragraph (b) of section 38. formerly means immediately before the commencement of this Act. Judge means a Judge of the Court but does not include an associate Judge. land includes messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein, whether vested or contingent, whether freehold or leasehold, and whether at law or in equity. mandatory judicial retirement age means the maximum age at which a Judge or associate Judge is required by law to retire. Note— Section 44 of the Judicial Officers Act 1986 provided for a maximum retirement age for Judges and associate Judges of 72 years before its amendment by the Justice Legislation Amendment Act (No 3) 2018. Section 44 of the Judicial Officers Act 1986, as amended, has increased the maximum retirement age for Judges and associate Judges to 75 years. Clause 9 of Schedule 6 to the Judicial Officers Act 1986 provides that the new retirement age does not apply to Judges and associate Judges holding office who were appointed before the amendments commenced unless they consent to the change applying to them as required by section 55 (2) of the Constitution Act 1902. The retirement age of 72 years continues to apply to Judges and associate Judges who do not consent to the increased retirement age applying to them. minor means a person under the age of eighteen years. prescribed means prescribed by the rules. registrar means a person who is for the time being appointed to and holding an office of registrar, as referred to in section 119, and includes— (a) a person who is for the time being appointed to act temporarily in an office of registrar (as referred to in section 120 (b)), and (b) a person who is for the time being appointed as a deputy to the holder of an office of registrar (as referred to in section 120 (c)), whether designated as a deputy, assistant or otherwise, but only when the person is exercising a power conferred by or under this Act or the Criminal Appeal Act 1912 on the holder of an office of registrar with the authority of that holder or a person for the time being appointed to act temporarily in the office of that holder, and (c) a person who is authorised under section 120A to exercise any power conferred by or under this Act or the Criminal Appeal Act 1912 on the holder of an office of registrar, but only when the person is exercising such a power. rules means rules of the Court from time to time in force and includes— (a) rules made by the Rule Committee, and (b) rules that have effect, by virtue of section 122, as rules made by the Rule Committee, and (c) any Schedule to rules of the Court. stated case means a case stated by the Court in a Division under the rules or under any Act or a case stated under any Act by any other court or by any judge of any other court or other person for the opinion, decision, direction or determination of the Court, and includes— (a) an award in the form of a case stated under section 9 of the Arbitration Act 1902, and (b) a matter referred under section 85 of the Superannuation Act 1916. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) For the purposes of this Act and the rules, proceedings in the Court under an Act— (a) are an appeal if described in that Act or in any regulation made under that Act as an appeal, and (b) subject to the rules, are not an appeal if not so described. (3) Notes included in this Act do not form part of this Act. 20, 21 (Repealed) 21A Construction of references to Divorce Division In any Act (including this Act), rule of court or regulation in force immediately before the commencement of section 4 of the Administration of Justice Act 1973, a reference to, or a reference to be construed as a reference to— (a) the Divorce Division shall be construed as a reference to the Family Law Division, (b) the Chief Judge in Divorce shall be construed as a reference to the Chief Judge of the Family Law Division, and (c) the Registrar in Divorce shall be construed as a reference to the Registrar of the Family Law Division. Part 2 The Court Division 1 Continuance and jurisdiction 22 Continuance The Supreme Court of New South Wales as formerly established as the superior court of record in New South Wales is hereby continued. 23 Jurisdiction generally The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales. 24 Court to have powers of Judges etc (1) In this section special office means the office of Chief Judge in Equity, Chief Judge in Divorce, Probate Judge, and any other special judicial office in the Court. (2) Where, under the law in force immediately before the commencement of this Act, any power is vested in the Judges collectively, or in any two or more Judges, or in any Judge in special office, or in any Judge— (a) that power shall be exercised by the Court in all respects as those Judges or that Judge might have exercised the power immediately before the commencement of this Act, but in accordance with this Act and the rules, (b) the Court shall have power co-ordinate with the power of those Judges or that Judge, and (c) subject to paragraphs (a) and (b), that power shall not be exercised by those Judges or that Judge. (3) Where, under the law in force immediately before the commencement of this Act, any power is vested in the Court, whether generally or in any jurisdiction of the Court, that power shall be exercised by the Court in all respects as the Court might have exercised the power immediately before the commencement of this Act, but in accordance with this Act and the rules. (4) This section has effect even though— (a) in the case of a power vested in a Judge in special office, the special office has been abolished, whether before or after the commencement of this Act, or the special office is vacant, (b) the power in question is vested in the Court as a designated Court, in the Judges collectively or any two or more Judges as designated persons, or in any Judge in special office or any Judge as a designated person, or (c) exercise of the power is expressed under the law in force immediately before the commencement of this Act to be final or without appeal. (5) This section applies to a power which, immediately before the commencement of this Act, is exercisable by rule nisi or rule absolute in any proceedings or by other rule in the nature of an order or direction in any proceedings, but otherwise does not apply to a power to make rules. (6) This section does not apply to a power— (a) vested in the Chief Justice as Chief Justice, (b) vested in the Chief Judge in Equity in relation to the making of general orders under Division 1 of Part 24 of the Conveyancing Act 1919, (c) (Repealed) (d) vested in a Judge as chairman, or additional temporary chairman, of the Crown Employees Appeal Board, (e) vested in a Judge in special office or other Judge as member (whether chairman or otherwise) of a board, committee or other body of persons not composed wholly of Judges. (7) The Governor may direct by proclamation published in the Gazette that this section shall not apply to any power specified in the proclamation, being a power arising under any Act or Imperial Act in force immediately before the commencement of this Act, and the proclamation shall have effect accordingly, but subject to section 41 of the Interpretation Act 1987. (8) Sections 40 and 41 of the Interpretation Act 1987 apply to a proclamation under subsection (7) in the same way as they apply to a statutory rule within the meaning of that Act. (9), (10) (Repealed) Division 2 The Judges generally 25 Composition of Court The Court shall be composed of a Chief Justice, a President of the Court of Appeal and such other Judges of Appeal, Judges and associate Judges as the Governor may from time to time appoint. 26 Appointment and qualifications: Chief Justice and other Judges (1) The Governor may, by commission under the public seal of the State, appoint any qualified person to be Chief Justice or a Judge. (2) A person is qualified for appointment as Chief Justice or as a Judge if the person— (a) holds or has held a judicial office of this State or of the Commonwealth, another State or a Territory, or (b) is an Australian lawyer of at least 7 years' standing. (3) (Repealed) 27 Chief Judges (1) The Governor may, by commission under the public seal of the State, appoint any Judge to be— (a) Chief Judge of the Common Law Division (whose title is Chief Judge at Common Law), or (b) Chief Judge of the Equity Division (whose title is Chief Judge in Equity). (2) A Judge may be appointed a Chief Judge either at the time of his or her appointment as a Judge or at any time afterwards. (3) A Chief Judge holds that office so long as he or she holds office as a Judge. (4) A Chief Judge may, with the approval of the Governor, resign that office without resigning his or her office as a Judge. 28 List Judges (1) The Chief Justice may, by instrument in writing, designate a Judge to be a List Judge within a Division. (2) A List Judge within a Division has (subject to any direction from the Chief Justice or the Chief Judge of the Division) the function of managing such class or classes of proceedings in the Division as may be specified in the instrument designating the Judge to be a List Judge or by the rules. (3) A Judge may be designated to be a List Judge within a Division under this section even though the Judge is not appointed or nominated to the Division. Any such Judge is taken to be appointed to the Division for the purposes of exercising his or her functions as a List Judge. (4) An instrument designating a Judge to be a List Judge may specify a title for the Judge to use while exercising the functions of a List Judge. (5) The Chief Justice may at any time, by instrument in writing, revoke a Judge's designation as a List Judge. (6) The designation of a Judge to be a List Judge under this section does not affect the rank, title, status and precedence as a Judge that he or she had immediately before any such designation. 28A Special provisions as to Chief Judges who are not Judges of Appeal (1) This section applies to the Chief Judges, but does not apply to a Chief Judge who is a Judge of Appeal by virtue of having been appointed as such. (2) A Chief Judge to whom this section applies— (a) shall, while holding that office, be deemed by virtue of this section to be an additional Judge of Appeal, and (b) shall, while acting as an additional Judge of Appeal, have all the powers, authorities, privileges and immunities of a Judge of Appeal, and the provisions of section 36 (4) and (5) apply to and in respect of that Chief Judge in the Chief Judge's capacity as an additional Judge of Appeal under this section in the same way as they apply to and in respect of a Judge in the Judge's capacity as an additional Judge of Appeal appointed or nominated under section 36. (3) The Chief Judges to whom this section applies shall have seniority, rank and precedence over all the Judges (including any Judge who is for the time being an additional Judge of Appeal otherwise than by virtue of this section) except the Chief Justice, the President of the Court of Appeal and the Judges of Appeal and over all persons who, in accordance with the provisions of any Act, have the same rank, title, status and precedence as a Judge of the Supreme Court. (4) The Chief Judges to whom this section applies shall have seniority, rank and precedence between themselves according to the dates of their relevant commissions. (5) If the relevant commissions of more than one of the Chief Judges to whom this section applies bear the same date they shall have seniority, rank and precedence according to the seniority, rank and precedence assigned to them by their relevant commissions, or failing any such assignment according to the order of their being sworn— (a) in the case of a Judge referred to in subsection (7) (a)—as a Judge, or (b) in the case of a Judge referred to in subsection (7) (b)—as Chief Judge. (6) If a Chief Judge to whom this section applies resigns his or her office as a Chief Judge without resigning his or her office as a Judge, he or she shall then have the seniority, rank, status and precedence he or she would have had if he or she had not been a Chief Judge. (7) In this section, a reference to the relevant commission is— (a) in relation to a Judge holding office as Chief Judge immediately before the commencement of section 6 of the Administration of Justice Act 1973—a reference to the Judge's commission as a Judge, or (b) in relation to a Judge the date of whose commission as Chief Judge is later than the date of that commencement—a reference to the Judge's commission as Chief Judge. 29 Remuneration (1) The Judges are entitled to be paid remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975. (2) The remuneration referred to in subsection (1) and payable to each Judge shall be paid to the Judge so long as the Judge's commission continues in force. (3) However, a Judge is not entitled to the remuneration referred to in subsection (1) for any period for which the Judge is on leave without pay (being leave that is agreed to by the Judge). 30 Interest in rate or tax (1) The Chief Justice, a Judge of Appeal or a Judge shall not be incapable of acting in his or her judicial office in any proceedings, nor shall any associate Judge or registrar or other officer of the Court be incapable of acting in his or her office in any proceedings, by reason of his or her being as one of several ratepayers or as one of any other class of persons liable, in common with others, to contribute to or to be benefited by any rate or tax which may be increased, diminished or in any way affected by those proceedings. (2) In this section rate or tax means any rate, tax, duty or assessment whether public, general or local, and also any fund formed from the proceeds of any such rate, tax, duty or assessment, or applicable to the same or like purposes to which any such rate, tax, duty or assessment might be applied. Division 3 Judges of Appeal 31 Appointment (1) The Governor may, by commission under the public seal of the State, appoint any Judge to be a Judge of Appeal. (2) A Judge may be appointed to be a Judge of Appeal either at the time of his or her appointment as a Judge or at any time afterwards. (3) A Judge of Appeal shall continue to be a Judge and may from time to time sit as or exercise any of the powers of a Judge. (4) A Judge who, at the time of his or her appointment as Judge of Appeal, holds the office of Chief Judge in Equity shall continue to hold that office and may sit as or exercise any of the powers and functions of the Chief Judge in Equity. (5) A Judge of Appeal shall hold office as a Judge of Appeal so long as he or she holds office as a Judge. (6) With the approval of the Governor, a Judge of Appeal may resign his or her office as Judge of Appeal without resigning his or her office as a Judge. 32 Appointment of President (1) The Governor may, by commission under the public seal of the State, appoint a Judge of Appeal to be President of the Court of Appeal. (2) A Judge of Appeal may be appointed to be President of the Court of Appeal at the time of his or her appointment as a Judge of Appeal or at any time afterwards. 33 Seniority (1) The Judge of Appeal shall have seniority, rank and precedence over all the Judges (including any Judge who is for the time being an additional Judge of Appeal) except the Chief Justice and over all persons who, in accordance with the provisions of any Act, have the same rank, title, status and precedence as a Judge of the Supreme Court. (2) The President of the Court of Appeal shall have seniority, rank and precedence over the Judges of Appeal referred to in paragraph (c) of section 42, and those Judges of Appeal shall have seniority, rank and precedence between themselves according to the dates (whether before or after the commencement of this Act) of their commissions as Judges of Appeal. (3) If the commissions of two or more Judges of Appeal bear the same date they shall have seniority, rank and precedence according to the seniority, rank and precedence assigned to them by their commissions, or failing such assignment according to the order of their being sworn. (4) If a Judge of Appeal resigns his or her office as a Judge of Appeal without resigning his or her office as a Judge, he or she shall then have, as a Judge, the seniority, rank, status and precedence he or she would have had if he or she had not been appointed a Judge of Appeal. 34 Vacancies (1) Where there is a vacancy in the office of President of the Court of Appeal, or the President is absent from duty, the senior of the other Judges of Appeal (except the Chief Justice) willing to act as President shall act as President, shall execute the duties of that office, and may exercise all the powers which may lawfully be exercised by the President. (2) The jurisdiction of the Court of Appeal shall not be affected by any vacancy in the office of Chief Justice or of President. Division 4 Acting and additional appointments 35 Acting Chief Justice (1) The Governor may, by commission under the public seal of the State, appoint the President of the Court of Appeal, any Judge of Appeal or any Judge to be Acting Chief Justice during such period as the Chief Justice is absent from duty or there is a vacancy in the office of the Chief Justice. (1A) While the Chief Justice is absent from Australia and an Acting Chief Justice has not been appointed under subsection (1), the President of the Court of Appeal is taken to be the Acting Chief Justice. (1B) The reference to the President of the Court of Appeal in subsection (1A) does not extend to any Judge of Appeal who is for the time being acting as President under section 34. (2) While holding office, the Acting Chief Justice shall have the powers, authorities, privileges, immunities and precedence, and shall fulfil the duties of the Chief Justice and is entitled to be paid remuneration at the rate provided for the Chief Justice. 36 Additional Judges of Appeal (1) The Governor may, by commission under the public seal of the State, appoint any Judge to act as an additional Judge of Appeal during such period not exceeding six months as may be specified in the commission. (2) Whenever the Chief Justice certifies that in any proceeding before the Court of Appeal it is expedient that a Judge nominated in the certificate should act as an additional Judge of Appeal, the Judge so nominated may act as an additional Judge of Appeal for the purposes of that proceeding. (3) Every additional Judge of Appeal appointed or nominated pursuant to this section shall, while so acting, have all the powers, authorities, privileges and immunities and shall fulfil all the duties of a Judge of Appeal. (4) The fact that any Judge sits and acts as an additional Judge of Appeal shall be sufficient evidence of the Judge's authority to do so, and no judgment or order of the Court of Appeal while the Judge so acts shall be questioned on the ground that the occasion for the Judge's so acting had not arisen or had ceased to exist. (5) Every Judge who, pursuant to this section, has acted as an additional Judge of Appeal may attend the sittings of the Court of Appeal for the purpose of giving judgment in, or otherwise completing, any proceedings which have been heard by that Court while the Judge so acted, notwithstanding that the Judge is no longer an additional Judge of Appeal. (6) While a Judge attends a sitting to give a judgment or otherwise complete any proceedings under subsection (5) that have been heard while the Judge was acting as an additional Judge of Appeal, the Judge has all the entitlements and functions of a Judge of Appeal and, for the purpose of that judgment or those proceedings, is taken to continue to be a Judge of Appeal. 37 Acting Judges (1) The Governor may, by commission under the public seal of the State, appoint any qualified person to act as a Judge, or as a Judge and a Judge of Appeal, for a time not exceeding 5 years to be specified in such commission. (2) In subsection (1) qualified person means any of the following persons— (a) a person qualified for appointment as a Judge of the Supreme Court of New South Wales, (b) a person who is or has been a judge of the Federal Court of Australia, (c) a person who is or has been a judge of the Supreme Court of another State or Territory. (3) A person appointed under this section shall, for the time and subject to the conditions or limitations specified in the person's commission, have all the powers, authorities, privileges and immunities and fulfil all the duties of a Judge and (if appointed to act as such) a Judge of Appeal. (3A) The person so appointed may, despite the expiration of the period of the person's appointment, complete or otherwise continue to deal with any matters relating to proceedings that have been heard, or partly heard, by the person before the expiration of that period. (3AA) While a person completes or otherwise continues under subsection (3A) to deal with any matters relating to proceedings that have been heard or partly heard by the person before the expiration of the period of the person's appointment, the person has all the entitlements and functions of a Judge and, for the purpose of those proceedings, is taken to continue to be a Judge and (if the person was so appointed to act as such) a Judge of Appeal. (3B) The person so appointed is entitled to be paid remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975. (3C) The remuneration payable to an acting Judge is to be paid— (a) so long as the acting Judge's commission continues in force, or (b) until the acting Judge has completed or otherwise dealt with matters (as referred to in subsection (3A)), whichever is the later. (4) A retired Judge of the Court or of another court in New South Wales (including a retired judicial member of the Industrial Commission or of the Industrial Relations Commission) may be so appointed even though the retired Judge has reached the mandatory judicial retirement age (or will have reached that age before the appointment expires), but may not be so appointed for any period that extends beyond the day on which he or she reaches the age of 78 years. (4A) A retired Judge of the Federal Court of Australia or of the Supreme Court of another State or Territory may be so appointed even though the retired Judge has reached the age of 70 years (or will have reached that age before the appointment expires), but may not be so appointed for any period that extends beyond the day on which he or she reaches the age of 78 years. (5) The conditions or limitations specified in a commission under this section may exclude the whole or any part of the period of appointment from being regarded as prior judicial service (within the meaning of section 8 of the Judges' Pensions Act 1953) by the person. (6) The provisions of section 36 (4) and (5) apply to an acting Judge who acts as a Judge of Appeal in the same way as they apply to a Judge who acts as an additional Judge of Appeal. 37A Certain Chief Judges of other courts may act as additional Judges of Appeal (1) This section applies to each of the following Chief Judges (a designated Chief Judge)— (a) the Chief Judge of the Land and Environment Court, (b) the Chief Judge of the District Court. (2) A designated Chief Judge may act as an additional Judge of Appeal in relation to proceedings in the Court of Appeal if— (a) the Chief Justice certifies that it is expedient that the Chief Judge should act as an additional Judge of Appeal in the proceedings, and (b) the Chief Judge consents to act as an additional Judge of Appeal in the proceedings. (3) The following provisions apply to and in respect of a designated Chief Judge who acts as an additional Judge of Appeal pursuant to the provisions of this section— (a) the Chief Judge has, while acting as an additional Judge of Appeal, all the powers, authorities, privileges and immunities of a Judge of Appeal (including the powers, authorities, privileges and immunities of a Judge of the Supreme Court), (b) the Chief Judge may attend the sittings of the Court of Appeal for the purpose of giving judgment in, or otherwise completing, any proceedings which have been heard by the Court while the Chief Judge was acting as an additional Judge of Appeal even if the Chief Judge is no longer acting as an additional Judge of Appeal, (c) the Chief Judge is not, while receiving remuneration as a Chief Judge, entitled to remuneration for acting as an additional Judge of Appeal, (d) any service of the Chief Judge while acting as an additional Judge of Appeal is, for the purposes of the Act under which the Chief Judge was appointed and the Judges' Pensions Act 1953, taken to be service as the Chief Judge of the court concerned, (e) nothing in this Act or any other law requires the Chief Judge to devote the whole of his or her time to the duties of acting as an additional Judge of Appeal. 37B Land and Environment Court Judges may act as Supreme Court Judges (1) This section applies to the Chief Judge and each of the other Judges of the Land and Environment Court (an eligible judicial officer), but not to an acting Judge of that Court. (2) An eligible judicial officer may act as a Judge for a particular period or in relation to particular proceedings in the Court if— (a) the Chief Justice certifies that it is expedient that the eligible judicial officer should act as a Judge of the Court for the period or in relation to the proceedings, and (b) the eligible judicial officer consents to acting as a Judge for the period or in relation to the proceedings, and (c) in the case where the eligible judicial officer is not the Chief Judge of the Land and Environment Court—the Chief Judge consents to the eligible judicial officer acting as a Judge for the period or in relation to the proceedings. (3) The following provisions apply to and in respect of an eligible judicial officer who acts as a Judge of the Court pursuant to the provisions of this section— (a) the eligible judicial officer has, while acting as a Judge, all the powers, authorities, privileges and immunities of a Judge of the Supreme Court, (b) the eligible judicial officer may attend the sittings of the Court for the purpose of giving judgment in, or otherwise completing, any proceedings which have been heard by the Court while the eligible judicial officer was acting as a Judge in the proceedings even if the eligible judicial officer is no longer acting as a Judge, (c) the eligible judicial officer is not, while receiving remuneration as a Judge of the Land and Environment Court, entitled to remuneration for acting as a Judge of the Supreme Court, (d) any service of the eligible judicial officer while acting as a Judge is taken for all purposes (including for the purposes of the Land and Environment Court Act 1979 and the Judges' Pensions Act 1953) to be service as a Judge of the Land and Environment Court, (e) nothing in this Act or any other law requires the eligible judicial officer to devote the whole of his or her time to the duties of acting as a Judge of the Supreme Court. (4) If the eligible judicial officer holds office as the Chief Judge of the Land and Environment Court, a reference in subsection (3) to remuneration or service as a Judge of the Land and Environment Court is to be read as a reference to remuneration or service in that office. (5) Nothing in this section limits the operation of section 37A, or of section 3 of the Criminal Appeal Act 1912, in their application to the Chief Judge of the Land and Environment Court. 37C (Repealed) Division 5 Organisation 38 Divisions of Court For the more convenient despatch of business, the Court shall be divided into— (a) the Court of Appeal, and (b) the following Divisions— (i) the Common Law Division, (ii) the Equity Division. (iii)–(ix) (Repealed) 39 Intra-curial arrangements (1) Intra-curial arrangements for the transaction by the Judges of Appeal of the business of the Court of Appeal shall be made by the President of the Court of Appeal with the concurrence of the Chief Justice. (2) Intra-curial arrangements for the transaction of the business of any Division, by the Judges appointed or nominated to that Division— (a) may be made by all the Divisional Judges or by a majority of those of them present at a meeting summoned for that purpose and attended by at least ten of them, (b) subject to any arrangement made as provided by paragraph (a), shall be made by the Chief Justice, and (c) in the case of a Division of which there is a Chief Judge, but subject to any arrangement made as provided by paragraph (a) or paragraph (b), shall, subject to subsection (2A), be made by the Chief Judge. (2A) Subject to any arrangement made as provided by subsection (2) (a), a Chief Judge shall be responsible to the Chief Justice for, and be subject to the direction of the Chief Justice in respect of, the transaction of the business and the administration of the Chief Judge's Division. (3) For the purposes of subsection (2) Divisional Judges means the Chief Justice and all the Judges except any Judge not appointed or nominated to a Division. (4) This section has effect notwithstanding section 124. 40 Single Judge to constitute the Court (1) All proceedings in any Division and all business arising out of proceedings in a Division shall be heard and disposed of before a Judge, who shall constitute the Court. (2) Subsection (1) does not affect the provisions of this Act and the rules concerning the hearing and disposal of proceedings and business before an associate Judge or before a registrar or other officer of the Court. 41 Judges in the Divisions (1) Subject to subsection (2), the jurisdiction of the Court shall be exercised in the Divisions as follows— (a) in the Common Law Division by the Chief Judge at Common Law and such other Judges as may be nominated by the Chief Justice to act in that Division, (b) in the Equity Division by the Chief Judge in Equity and such other Judge or Judges as may be nominated by the Chief Justice to act in that Division. (c)–(h) (Repealed) (2) Any Judge may exercise the jurisdiction of the Court in any Division with all the power and authority of a Judge appointed or nominated under this or any other Act to act in that Division. (3) A Judge so appointed or nominated may be appointed or nominated to act concurrently in any other Division. (4) (Repealed) Division 6 The Court of Appeal 42 Composition Subject to this Part, the Court of Appeal shall consist of— (a) the Chief Justice who shall, by virtue of his or her office, be a Judge of Appeal and the senior member of the Court of Appeal, (b) the President of the Court of Appeal, and (c) such other Judges as are appointed to be Judges of Appeal. 43 Sittings (1) Any 3 or more Judges of Appeal constitute the Court of Appeal. (2) At a sitting of the Court of Appeal at which the Chief Justice is present the Chief Justice shall preside. (3) In the absence of the Chief Justice, the President of the Court of Appeal shall preside. (4) In the absence of both the Chief Justice and the President, the senior Judge of Appeal present shall preside. (5), (6) (Repealed) 43A Multiple sittings More than one sitting of the Court of Appeal (constituted by 2 or more Judges of Appeal) may be held at the same time. 44 Jurisdiction The Court of Appeal may, in proceedings before it, exercise every power, jurisdiction or authority of the Court, whether at law or in equity or under any Act, Imperial Act or Commonwealth Act. 45 Appeals (1) The decision of the Court of Appeal shall be in accordance with the opinion of the majority of the Judges of Appeal present. (2) If the Judges of Appeal present are equally divided in opinion the decision of the Court of Appeal shall be in accordance with the opinion of the Chief Justice or other Judge of Appeal presiding. (3) (Repealed) (4) If, in dismissing an appeal, the Court of Appeal is of the unanimous opinion that the appeal does not raise any question of general principle, it may, in accordance with the rules, give reasons for its decision in short form. 45AA Continuation of appeal if one or more Judges unable to continue (1) If an appeal is commenced before 3 or more Judges of Appeal and, before the appeal is determined, one or more of the Judges dies, resigns from office or otherwise becomes unable to continue as a member of the Court of Appeal for the purposes of the appeal, the hearing and determination of the appeal may be completed by the remaining Judges of Appeal so long as at least 2 Judges remain and the parties consent. (2) If the appeal concerned is to be heard and determined by only 2 Judges of Appeal and those Judges are divided in opinion— (a) as to the decision determining the appeal—the appeal is to be reheard and determined by the Court of Appeal constituted by such 3 or more Judges of Appeal as the President of the Court of Appeal directs (including, if practicable, the 2 Judges of Appeal who completed the hearing of the appeal), or (b) as to any other decision—the decision of the Court is to be in accordance with the opinion of the senior Judge present. (3) This section has effect despite any other provision of this Division. 45A Judgment of Court of Appeal may be delivered by single Judge of Appeal (1) When judgment in a proceeding in the Court of Appeal is delivered it is not necessary for any of the Judges of Appeal before whom it was heard to be present in court to state their opinions. (2) The opinion of any of the Judges of Appeal may be reduced to writing and made public by any Judge of Appeal when judgment in the proceeding is delivered. (3) The judgment of the Court of Appeal has the same effect as if each Judge of Appeal whose opinion is so made public had been present in court and declared his or her opinion in person. (4) For the purpose of delivering judgment the Court of Appeal may be constituted by one or more Judges of Appeal. 46 Powers of Judge of Appeal (1) A Judge of Appeal may exercise the powers of the Court of Appeal— (a) to give any judgment by consent or make any order by consent, (b) to dismiss an appeal or other proceedings for want of prosecution or for other cause specified in the rules, (c) to dismiss an appeal or other proceedings on the application of the appellant or plaintiff, or (d) to deal with costs and other matters incidental to the matters mentioned in paragraphs (a), (b) and (c). (2) A Judge of Appeal may exercise the powers of the Court of Appeal— (a) to make an order or give any direction concerning the institution of an appeal or other proceedings in the Court of Appeal, or (b) to make any order or give any direction in any appeal or other proceedings, but not an order or direction involving the determination or decision of the appeal or other proceedings. (3) Subsection (2) does not authorise a Judge of Appeal to grant or refuse leave to appeal to the Court of Appeal. (4) The Court of Appeal may discharge or vary a judgment given by a Judge of Appeal, or an order made or direction given by a Judge of Appeal. (5) Subject to subsection (4), a judgment, order or direction given or made by a Judge of Appeal is to have effect as a judgment, order or direction of the Court of Appeal, whether or not the judgment, order or direction is within the powers of the Judge of Appeal under this section. 46A Certain appeals may be heard by 2 Judges of Appeal (1) This section applies to an appeal to the Court of Appeal— (a) from any court, where the appeal relates solely to the amount of damages awarded in respect of the death of, or bodily injury to, a person, or (b) from the District Court (in respect of any matter dealt with in the compensation jurisdiction of that Court), where the appeal relates solely to the amount of compensation awarded by that Court, or (c) from the Dust Diseases Tribunal, where the appeal relates solely to the amount of compensation awarded by that Tribunal, or (d) from a court or tribunal (other than the Supreme Court), where— (i) the leave of the Court of Appeal is required in respect of the appeal, and (ii) the appeal is not against a final judgment, order, award or decision of the court or tribunal (other than an order for the payment of costs). (2) The Chief Justice may direct that such an appeal be heard and determined by such 2 Judges of Appeal as the President of the Court of Appeal directs. (3) Such a direction may only be given if the Chief Justice is of the opinion that the appeal is not likely to require the resolution of a disputed issue of general principle. (4) For the purpose of an appeal the subject of a direction under this section, the Court of Appeal is constituted by the 2 Judges directed by the President of the Court of Appeal. (5) The decision of the Court of Appeal when constituted by 2 Judges is to be in accordance with the opinion of those Judges. (6) If the Judges are divided in opinion— (a) as to the decision determining the proceedings, the appeal is to be reheard and determined by the Court of Appeal constituted by such 3 Judges of Appeal as the President of the Court of Appeal directs (including, if practicable, the 2 Judges who first heard the appeal), or (b) as to any other decision, the decision of the Court is to be in accordance with the opinion of the senior Judge present. (7) Proceedings heard by the Court of Appeal constituted by 2 Judges under this section are rendered abortive for the purposes of section 6A (1) (a1) of the Suitors' Fund Act 1951 if they are required to be reheard because the judges were divided in opinion as to the decision determining the proceedings. The rehearing of the proceedings is considered to be a new trial for the purposes of that Act. (8) In this section— compensation jurisdiction of the District Court has the same meaning as in Division 8A of Part 3 of the District Court Act 1973. 46B Certain other matters may be heard by 2 Judges (1) This section applies to the following applications— (a) applications for leave to appeal, (b) applications involving a question of practice and procedure in an appeal or other matter in the Court of Appeal (being applications that are not capable of being dealt with by a single Judge of Appeal). (2) The Chief Justice may direct that such an application be heard and determined by such 2 Judges of Appeal as the President of the Court of Appeal directs. (3) For the purpose of hearing and determining an application the subject of a direction under this section, the Court of Appeal is constituted by the 2 Judges directed by the President of the Court of Appeal. (4) The decision of the Court of Appeal when constituted by 2 Judges of Appeal is to be in accordance with the opinion of those Judges. (5) If the judges are divided in opinion, the application is to be reheard and determined by the Court of Appeal constituted by 3 Judges of Appeal. Part 3 Distribution of business Division 1 Distribution between Court of Appeal and Divisions 47 (Repealed) 48 Assignment to the Court of Appeal (1) (a) In this section— specified tribunal means— (i) the Land and Environment Court or a Judge of that Court, (ia) (Repealed) (ii) the Industrial Relations Commission or a member of the Commission, (iia) the Dust Diseases Tribunal of New South Wales, (iii) (Repealed) (iv) the District Court or a Judge of the District Court (but not a Judicial Registrar of that Court), (v) (Repealed) (vi) a judge or member functioning or purporting to function under any Act giving power to a judge or member, whether as judge or member or as a designated person, (vii) a tribunal or other body (not including the State Parole Authority) that was constituted by one or more judges or members when exercising the functions, or purporting to exercise the functions, to which the proceedings in the Court relate, or (viii) the Civil and Administrative Tribunal when exercising functions, or purporting to exercise functions, for the purposes of the Legal Profession Uniform Law (NSW) (including as applied by the Public Notaries Act 1997). (b) In paragraph (a) (vi) and (vii), judge or member means a person who is or has been— (i) a Judge or associate Judge, or (ii) a judge or member of any body referred to in paragraph (a) (i)–(iv), or (iii) a Justice of the High Court or a Judge of the Federal Court of Australia or a Supreme Court of another State or Territory. (2) There are assigned to the Court of Appeal proceedings in the Court— (a) (Repealed) (b) for commanding or otherwise requiring a specified tribunal to perform a public duty, (c) for prohibiting or otherwise restraining a specified tribunal from proceeding in any matter before the tribunal, (d) for commanding or otherwise requiring the removal into the Court of any matter before a specified tribunal, whether for the purpose of quashing or otherwise, but this paragraph has effect subject to subsection (3), (e) for determining, by declaration or otherwise, any matter concerning the powers of a specified tribunal, (f) on an appeal from a specified tribunal, (g) for otherwise reviewing a decision of a specified tribunal, (h) on a case stated by a specified tribunal, (ha) for determining any question of law referred to the Court for its opinion under the Civil and Administrative Tribunal Act 2013, (i) for the punishment of contempt of the Court, but only if the contempt consists of— (i) contempt in the face of, or in the hearing of, the Court of Appeal, or (ii) disobedience of a judgment or order of the Court of Appeal, or (iii) breach of an undertaking given to the Court of Appeal, including proceedings in which the Court of Appeal is constituted by an associate Judge, (j) for such matters as are necessary or convenient for the discharge of the functions of the Court of Appeal, and (k) for such matters as are prescribed by the rules. (3) Notwithstanding paragraph (d) of subsection (2), the rules may provide for the assignment to the Divisions of the Court of proceedings in the Court for commanding or otherwise requiring the removal into the Court of any matter before a specified tribunal in cases not involving a review of a decision of a specified tribunal. (4) (Repealed) 49 Assignment to the Divisions Subject to Part 7, proceedings in the Court which are not assigned to the Court of Appeal are assigned to the Divisions of the Court. 50 (Repealed) 51 Removal and remission (1) Where proceedings are commenced in a Division but are, under this or any other Act or under the rules, assigned to the Court of Appeal— (a) the proceedings shall be for all purposes well commenced on the date of commencement in the Division, notwithstanding that the proceedings are assigned to the Court of Appeal, (b) the Court of Appeal or the Court in the Division in which the proceedings are pending may, in either case on application by a party or of its own motion, order that the proceedings be removed into the Court of Appeal, (c) upon an order for removal being made under paragraph (b), the proceedings may be continued and disposed of in the Court of Appeal, and (d) subject to any order under paragraph (b) the proceedings may be continued and disposed of in a Division. (2) Where proceedings are commenced in the Court of Appeal but are, under this or any other Act or under the rules, assigned to a Division— (a) the proceedings shall be for all purposes well commenced on the date of commencement in the Court of Appeal, notwithstanding that the proceedings are assigned to a Division, (b) the Court of Appeal may, on application by a party or of its own motion, order that the proceedings be remitted to a Division, (c) upon an order for remission being made under paragraph (b), the proceedings may be continued and disposed of in a Division, and (d) subject to any order under paragraph (b), the proceedings may be continued and disposed of in the Court of Appeal. (3) (Repealed) (4) Where any proceedings are pending before the Court of Appeal, the Court of Appeal may, on application by a party or of its own motion, order that the whole or any part of the proceedings be remitted to a Division for the determination by trial or otherwise of the proceedings or any question arising in the proceedings. (5) Where proceedings by way of appeal or otherwise under any Act other than this Act or proceedings on a stated case, other than a case stated by the Court in a Division, are commenced in a Division— (a) the Court in the Division in which the proceedings are pending, if satisfied that special circumstances exist which render it desirable so to do, may, on application by a party or of its own motion, order that the proceedings be removed into the Court of Appeal, and (b) upon an order being made under paragraph (a), the proceedings may be continued and disposed of in the Court of Appeal. (6) Proceedings may be removed into the Court of Appeal under this section notwithstanding that any decision or determination in the proceedings is expressed by any Act to be final or without appeal. (7) None of the foregoing subsections limits the operation of any of the others. (8) This section does not limit the provision which may be made by the rules for removal or remission of proceedings. Division 2 Distribution amongst Divisions 52 Arrangements for despatch of business The business of the Court, other than the Court of Appeal, shall, for convenient despatch, be assigned in accordance with this Division. 53 Assignment of business (1) Subject to the rules, there are assigned to the Common Law Division all proceedings— (a) that, immediately before the commencement of this section, were assigned to the Division by or under any Act, or (b) that are required by or under any Act from time to time in force to be commenced, heard or determined in that Division, or (c) that are assigned to the Division by operation of Part 8 of the Fourth Schedule, or (d) that are not assigned to the Equity Division by or under this Act. (2) Subject to the rules, there are assigned to the Equity Division all proceedings— (a) that, immediately before the commencement of this section, were assigned to the Division by or under any Act, or (b) that are required by or under any Act from time to time in force to be commenced, heard or determined in that Division, or (c) that are assigned to the Division by operation of Part 8 of the Fourth Schedule. (3) Subject to the rules, there are assigned to each Division proceedings for the punishment of contempt of the Court, but only if the contempt consists of— (a) contempt in the face of, or in the hearing of, the Court in that Division, or (b) disobedience of a judgment or order of the Court in that Division, or (c) breach of an undertaking given to the Court in that Division, including proceedings in which the Court is constituted by an associate Judge. (4) Without limiting subsection (1) (d), the proceedings assigned to the Common Law Division include proceedings for contempt of the Court or of any other court (other than proceedings referred to in subsection (3) or section 48 (2) (i)). 54 Transfer and retention (1) The Court in a Division, on application by a party or of its own motion, may, on terms, order that the whole or any part of any proceedings in that Division be transferred to another Division. (2) Proceedings may be retained in a Division whether or not the proceedings are assigned to that Division by this Act or by the rules. 55 Validity of proceedings in any Division Any step taken, order made, judgment given or other thing don