(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.
(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.
(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.
(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).
(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.
(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.
(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.
(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.
(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.
(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.
(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 12 months 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.
(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.
(1) This section applies to a judicial member of the Industrial Relations Commission (an eligible judicial officer ), but not to an acting judicial member of that Commission.
(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.
(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)
(1) Any 3 or more Judges of Appeal constitute the Court of Appeal.
(1) The decision of the Court of Appeal shall be in accordance with the opinion of the majority of the Judges of Appeal present.
(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.
(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).
(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 Compensation Court or the District Court (in respect of a matter that would have been within the jurisdiction of the Compensation Court had the not been enacted), where the appeal relates solely to the amount of compensation awarded by that Court, or Compensation Court Repeal Act 2002 (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.
(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).
(1)
(a) In this section: specified tribunal means:
(i) the Land and Environment Court or a Judge of that Court, (ia) (ii) the Industrial Relations Commission in Court Session or a judicial member of the Commission, (iia) the Dust Diseases Tribunal of New South Wales, (iii) (iv) the District Court or a Judge of the District Court, (v) the Compensation Court of New South Wales, (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 body of persons having amongst its number a judge or member, being a body functioning or purporting to function under any Act giving power to a body having amongst its number a judge or member, whether as judge or member or as a designated person, but not including the State Parole Authority, or (viii) an Appeal Panel or the Legal Services Division of the Administrative Decisions Tribunal. (b) In subparagraphs (vi) and (vii) of paragraph (a) judge or member means a judge or member mentioned in any of subparagraphs (i) to (v) inclusive of that paragraph.
(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)
(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.
(1) The Court shall not restrain by injunction any proceedings pending in the Court.
(1) The Court may, at any stage of proceedings, by interlocutory or other injunction, restrain any threatened or apprehended breach of contract or other injury.
(1) Where formerly:
(a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or (b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course, then, after the commencement of this Act:
(c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but (d) shall not issue any such writ, and (e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and (f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules.
(1) This section and section 69B apply to proceedings in the Court by a convicted person ( the claimant ) seeking judicial review in relation to a conviction or sentence for an offence.(2) A claimant who is not released on bail must, pending the determination of the proceedings, be treated in such manner as may be directed by regulations made under the (which is referred to in this section as Crimes (Administration of Sentences) Act 1999 special treatment ).
(1) This section and section 69D apply to proceedings in the Court for judicial review of a determination made by the District Court in appeal proceedings relating to a conviction or order made by the Local Court (or part of such a conviction or order) or sentence imposed by the Local Court.
(1) The Court may, on an application for a writ of habeas corpus, give such judgment or make such order disposing of the proceedings as the nature of the case requires. (2) Where an application for a writ of habeas corpus has been made in respect of any person, no application for a writ of habeas corpus shall again be made in respect of that person on the same grounds, whether to the same Judge or to any other Judge or to the Court of Appeal, unless fresh evidence is adduced in support of the application.
(1) In this section, warrant means a warrant of commitment issued in relation to a conviction or order of the Local Court.(2) This section has effect despite section 71. (3) In proceedings for a writ of habeas corpus or for the setting aside of a conviction or order of the Local Court, the Supreme Court is not to make an order for the discharge from custody of a person in custody under a warrant on the ground of any defect or error in the warrant unless the requirements of subsection (4) have been complied with.
(1) Subject to subsections (2) and (3), this section applies to an appeal to the Court and to an appeal in proceedings in the Court. (2) This section does not apply to so much of an appeal as relates to a claim in the appeal:
(a) for a new trial on a cause of action for debt, damages or other money or for possession of land, or for detention of goods, or (b) for the setting aside of a verdict, finding, assessment or judgment on a cause of action of any of those kinds, being an appeal arising out of:
(c) a trial with a jury in the Court, or (d) a trial:
(i) with or without a jury in an action commenced before the commencement of section 4 of the , or District Court (Amendment) Act 1975 (ii) with a jury in an action commenced after the commencement of that section, in the District Court. (3) This section does not apply to:
(a) an appeal to the Court under the , or Crimes (Local Courts Appeal and Review) Act 2001 (b) to a case stated under the . Criminal Appeal Act 1912 (4) This section has effect subject to any Act.
(1) Proceedings in any Division are to be tried without a jury, unless the Court orders otherwise. (2) The Court may make an order under subsection (1) that proceedings are to be tried with a jury if:
(a) any party to the proceedings:
(i) files a requisition for trial with a jury, and (ii) pays the fee prescribed by the regulations made under section 18 of the , and Civil Procedure Act 2005 (b) the Court is satisfied that the interests of justice require a trial by jury in the proceedings.
(1) Subject to this and any other Act and subject to the rules, an appeal shall lie to the Court of Appeal from:
(a) any judgment or order of the Court in a Division, and (b) without limiting the generality of paragraph (a):
(i) any opinion, decision, direction or determination of the Court in a Division on a stated case, (ii) any exercise of a power to which section 24 applies, and (iii) any determination of the Court in a Division in proceedings remitted under subsection (4) of section 51. (2) An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from:
(a) an order in proceedings in the Court directing an amendment of a judgment or order correcting a clerical mistake in the judgment or order or an error arising from an accidental slip or omission, (b) (c) a judgment given or order made in proceedings in the Court with the consent of the parties or as to costs only which are in the discretion of the Court, (d) (e) an interlocutory judgment or order in proceedings in the Court, (f) a judgment or order in proceedings in the Court on an interpleader issue decided in a summary way pursuant to the rules, (g) (h) an order of the Court in a Division on an appeal under Part 5 of the , Crimes (Local Courts Appeal and Review) Act 2001 (i) a judgment, order or determination in proceedings in the Court under the , Commercial Arbitration Act 2010 (j), (k) (l) a judgment or order of the Court in a Division on an application for summary judgment under the rules, (m) a judgment or order of the Court on an application under section 74K, 74MA or 74O of the , Real Property Act 1900 (n) a judgment or order of the Court in a Division for the winding up of a corporation, (o) a judgment or order of the Court in a Division restraining or refusing to restrain the presentation or advertisement of an application for the winding up of a corporation, (p) a judgment or order of the court on an application under section 459G of the or section 459G of the Corporations Law of the Commonwealth, Corporations Act 2001 (q) a judgment or order in proceedings of the Court with respect to the taxation or assessment of costs, or (r) a final judgment or order in proceedings of the Court, other than an appeal:
(i) that involves a matter at issue amounting to or of the value of $100,000 or more, or (ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more.
(1) At any time after the conclusion of contempt proceedings in which the alleged contemnor is found not to have committed contempt, the Attorney General may submit to the Court of Appeal any question of law arising from or in connection with the proceedings. (2) The Attorney General must submit with the question to be determined a statement of the circumstances out of which the question arose, and thereafter must furnish such further statement as the Court of Appeal may require. (3) The Court of Appeal has jurisdiction to hear and determine any question submitted to it under this section. (4) The determination of the Court of Appeal of the question submitted does not in any way affect or invalidate any finding or decision given in the contempt proceedings.
(1) Where, in an appeal to which this section applies, it appears to the Court of Appeal that, because of matters which have occurred since the trial, the amount of damages awarded at the trial is manifestly too high or too low, the Court of Appeal may set aside the verdict, finding, assessment or judgment and may order a new trial on the issue of damages.
(1) The Governor may appoint one or more associate Judges. (2) The Governor may appoint one or more acting associate Judges.
(1) The shall not apply to an associate Judge. Superannuation Act 1916
(1) An associate Judge or an acting associate Judge may:
(a) resign from office by instrument in writing, or (b)
(1) In this section, associate Judge in the Court of Appeal means an associate Judge or acting associate Judge assigned to the Court of Appeal or an associate Judge or acting associate Judge directed by the Chief Justice to act in the Court of Appeal.
(1) In this section, divisional associate Judge means, in relation to any Division, an associate Judge or acting associate Judge assigned to the Division or an associate Judge or acting associate Judge directed by the Chief Justice to act in the Division.
(1A) The registrar of the Court of Criminal Appeal may, subject to the rules, exercise the powers of a registrar of the Supreme Court and, when exercising those powers, is taken to be a registrar of the Supreme Court. (1B) An officer of the Court of Criminal Appeal may, subject to the rules, exercise the powers of an officer of the Supreme Court and, when exercising those powers, is taken to be an officer of the Supreme Court.
(1) In this section officer means a registrar, taxing officer, or other officer of the Court.
(1) The rules in the Fourth Schedule shall come into operation on the commencement of this Act, but subject to and together with rules made by the Rule Committee.
(1) Rules may be made under this Act by a Rule Committee consisting of:
(a) the Chief Justice, (b) the President of the Court of Appeal or a Judge of Appeal appointed on the nomination of the President of the Court of Appeal, (c) one other appointed Judge of Appeal, (d) four other appointed judges, and (e) an appointed barrister and an appointed solicitor. (2) In this section, appointed means appointed to the Rule Committee by the Chief Justice by instrument in writing.(2A) In this section and in section 123A: barrister has the same meaning as in the. Legal Profession Act 2004 solicitor has the same meaning as in the. Legal Profession Act 2004 (3) A person appointed shall hold office for the time specified in the appointment but may resign by instrument in writing addressed to the Chief Justice.
(1) Any rules may be altered or added to or rescinded, and any further or additional rules may be made, by the Rule Committee for the purpose of carrying this Act into effect and, without limiting the generality of the foregoing, for the following purposes:
(a) for regulating and prescribing the procedure (including the method of pleading) and the practice to be followed in the Court in all proceedings in, or with respect to which, the Court has for the time being jurisdiction (including the procedure and practice to be followed in the offices of the Court), and any matters incidental to, or relating to, any such procedure or practice, including the manner and time of making any applications which under this or any other Act, or under any Imperial Act or Commonwealth Act, are to be made to the Court, (b) for regulating and prescribing the form and contents of any case stated to the Court by or from any court or person and the time within which and the manner in which proceedings thereon are to be instituted in the Court and the practice and procedure thereafter to be followed in the Court and the notification of the decision of the Court, (c) for regulating and prescribing the practice and procedure to be followed in connection with the institution of any appeal from any inferior court or from any person to the Court, including the time within which, and the manner in which, the appeal is to be instituted, and the practice and procedure thereafter to be followed in the Court, (d) for regulating and prescribing the practice and procedure to be followed in connection with the transfer of any proceedings from any inferior court to the Court or from the Court to any inferior court, and for the co-ordination or expedition of any such transfers, and, where proceedings are transferred to the Court, the practice and procedure thereafter to be followed in the Court, (e) for regulating and prescribing any matter which, under any Act or Imperial Act, may be regulated or prescribed by rules of the Court or by rules made by the Judges or any Judges or the Chief Judge in Equity or any other Judge identified by description of his or her office or the Judges of Appeal or any Judges of Appeal, (f) for altering, adding to or rescinding any rules in force immediately before the commencement of this Act, which regulate or prescribe any matter which, under any Act or Imperial Act, might, immediately before the commencement of this Act, be regulated or prescribed by rules of the Court or by rules made by the Judges or any Judges or the Chief Judge in Equity or any other Judge identified by description of his or her office or the Judges of Appeal or any Judges of Appeal, (g) for 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, (h) for prescribing what powers of the Court may be exercised by any of the associate Judges, acting associate Judges, registrars and other officers of the Court, (i) (j) for regulating any matters relating to the costs of proceedings in the Court and, in particular, prescribing, limiting or otherwise affecting the costs recoverable in any action or proceedings that the Court considers might properly have been dealt with in an inferior court, (k), (ka) (l) for prescribing means for, and the practice and procedure to be followed in, the enforcement and execution of judgments and orders, (m) for regulating the means by which particular facts may be proved, and the mode in which evidence may be given (including the administration of oaths to and the taking of the evidence of witnesses in or out of New South Wales), in any proceedings, or on any application in connection with, or at any stage of, any proceedings, (ma) for prescribing matters relating to expert evidence, including the disclosure, by the furnishing of copies of reports or otherwise, of the nature of expert evidence to be given, and including the exclusion of expert evidence in case of non-compliance with the rules relating to expert evidence or with any order for disclosure of the nature of expert evidence, (n) for prescribing the cases in which security may be required, and the form of such security, and the manner in which, and the person to whom, it is to be given, (o) for regulating and prescribing any matter concerning or in relation to which provision was made by the rules set out in the Fourth Schedule to this Act when it commenced, (p), (q) (r) for regulating the payment or transfer into or out of Court and, subject to the consent of the Treasurer, the custody, management and investment of moneys, securities and effects, and (s) for prescribing and regulating the duties of the associate Judges, acting associate Judges, registrars and other officers of the Court in relation to or for the purpose of any proceedings. (t) (2) The rules may make provision for or with respect to:
(a) the cases in which the whole of any proceedings or any question or issue arising in any proceedings may be referred by the Court to an arbitrator or referee for determination or for inquiry and report, (b) the appointment of a Judge, associate Judge, registrar or other officer of the Court or other person as an arbitrator or referee, (c) the fees to be paid to such an arbitrator or referee, (d) the persons by whom the whole or any part of any such fees are payable, (e) the consequences of a determination or report by an arbitrator or referee, (f) the manner in which such a determination or report may be called in question, (g) whether or not, or to what extent, a determination or report may be called in question on a matter of fact or law, (h) the provision of the services of officers of the Court and the provision of court rooms and other facilities for the purpose of a reference of any proceedings or any question or issue arising in any proceedings to an arbitrator or referee, and (i) any other matters associated with such a reference. (3) The rules may make provision for or with respect to the assignment of proceedings to the Court of Appeal or a Division. The assignment by the rules of any proceedings to the Court of Appeal or any Division has effect despite any contrary provision of this or any other Act or law. (4) The rules may authorise an associate Judge to punish contempt in the face of the Court or in the hearing of the Court where the Court is constituted by that associate Judge and to punish the breach of an undertaking given to the Court constituted by that associate Judge, but otherwise the rules shall not authorise an associate Judge, registrar or other officer to make an order for the committal, attachment or arrest of any person. (5) Where the rules rescind a rule by which a previous rule was rescinded, then, unless the contrary intention appears, the previous rule shall not be revived. (6) Where the rules rescind or amend a previous rule, then, unless the contrary intention appears, the rescission or amendment shall not revive anything not in force or existing immediately before the rescission or amendment takes effect.
(Section 17 (1))
(a) Proceedings in the Court for the prosecution of offenders on indictment ( indictment including any information presented or filed as provided by law for the prosecution of offenders) including the sentencing or otherwise dealing with persons convicted,(a1) proceedings (including committal proceedings) for the prosecution of offenders on indictment ( indictment including any information presented or filed as provided by law for the prosecution of offenders) in the Court or in the District Court,(a2) proceedings (whether in the Court or the District Court) under Division 5 of Part 2 of Chapter 3 of the , Criminal Procedure Act 1986 (b) gaol delivery,
(Section 129)