An Act to constitute the Land and Environment Court and to make provision with respect to its jurisdiction.
Part 1 Preliminary
1 Name of Act
This Act may be cited as the Land and Environment Court Act 1979.
2 Commencement
(1) This section and section 1 shall commence on the date of assent to this Act.(2) Except as provided by this section, this Act shall commence on:(a) such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette (being a day that is not later than the day referred to in paragraph (b)), or(b) if a day is not appointed and notified under paragraph (a)—the day appointed and notified under section 2 (2) of the Environmental Planning and Assessment Act 1979.(3) Section 71 shall commence on the day appointed and notified under section 2 (2) of the Environmental Planning and Assessment Act 1979.(4) No proceedings shall be commenced in the Court before the day appointed and notified under section 2 (2) of the Environmental Planning and Assessment Act 1979.
3 (Repealed)
s 3: Rep 1985 No 63, Sch 1 (1).
4 Definitions
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:Chief Judge means the Chief Judge of the Court.Commissioner means a person appointed as a Commissioner of the Court under Division 3 of Part 2.Court means the Land and Environment Court constituted under this Act.Division means a Division of the Court specified in section 26.functions includes powers, authorities and duties.Judge means a Judge of the Court.registrar means the registrar of the Court.regulations means regulations for the time being in force under this Act.rules means the rules of the Court for the time being in force under this Act.(2) A reference in this Act to the exercise of a function includes, where that function is a duty, the performance of that duty.s 4: Am 1998 No 172, Sch 6 [2] [3].
Part 2 Constitution of the Court
Division 1 Constitution
5 Constitution of the Court
(1) There is hereby constituted a superior court of record to be known as the Land and Environment Court.(2) There shall be a seal of the Court, and any document required by or under this or any other Act or law to be sealed or stamped with the seal of the Court shall be so sealed or stamped.
6 Single Judge to constitute the Court
(1) All proceedings in the Court, and all business arising out of any such proceedings, shall, subject to this Act, 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 one or more Commissioners or other officers of the Court.
Division 2 The Judges
7 Composition of the Court
The Court shall be composed of a Chief Judge appointed by the Governor and such other Judges as the Governor may from time to time appoint.
8 Appointment and qualifications of Judges
(1) The Governor may, by commission under the public seal of the State, appoint any qualified person to be a Judge.(2) A person is qualified for appointment as a Judge if the person is under 70 years of age and:(a) holds or has held a judicial office of this State or of the Commonwealth, another State or a Territory, or(b) (Repealed)(c) is a legal practitioner of at least 7 years’ standing.s 8: Am 1991 No 34, Sch 3; 1993 No 87, Sch 5; 1996 No 17, Sch 5.9 [1]; 2002 No 7, Sch 2.
9 Remuneration etc
(1) (Repealed)(2) Each Judge shall have the same rank, title, status and precedence and, except as provided by subsection (2A), the same remuneration and other rights as a Judge of the Supreme Court (other than the Chief Justice and the President of the Court of Appeal).(2A) The Chief Judge shall have the same remuneration as the President of the Industrial Relations Commission of New South Wales.(3) (Repealed)s 9: Am 1985 No 63, Sch 1 (2); 1986 No 100, Sch 4; 1991 No 34, Sch 3; 1996 No 17, Sch 5.9 [2].
10 Acting Chief Judge
(1) The Governor may, by commission under the public seal of the State, appoint a Judge (but not an acting Judge) to be Acting Chief Judge during such period as the Chief Judge may be absent from duty.(2) While holding office, the Acting Chief Judge shall have and may exercise the functions of the Chief Judge.s 10: Am 1994 No 32, Sch 3.
11 Acting Judges
(1) The Governor may, by commission under the public seal of the State, appoint any qualified person to act as a Judge for a time not exceeding 12 months to be specified in the commission.(2) In subsection (1), qualified person means a person qualified for appointment as a Judge.(3) The person so appointed shall, for the time and subject to the conditions or limitations specified in the person’s commission, have and may exercise the functions of a Judge and shall, for the purposes of this or any other Act, be deemed to be a Judge.(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.(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 the Industrial Relations Commission) may be so appointed even though the retired Judge has reached the age of 72 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 75 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.s 11: Am 1988 No 10, Sch 3; 1989 No 169, Sch 5; 1990 No 56, Sch 1; 1991 No 94, Sch 1; 1994 No 32, Sch 3; 1996 No 121, Sch 4.32; 1998 No 49, Sch 18 [1].
Division 3 Commissioners
pt 2, div 3, hdg: Am 1998 No 172, Sch 6 [4].
12 Commissioners
(1) The Governor may appoint any qualified person to be a Commissioner of the Court.(2) A person is qualified to be appointed as a Commissioner if the person has, in the opinion of the Minister:(a) special knowledge of and experience in the administration of local government or town planning,(b) suitable qualifications and experience in town or country planning or environmental planning,(c) special knowledge of and experience in environmental science or matters relating to the protection of the environment and environmental assessment,(d) special knowledge of and experience in the law and practice of land valuation,(e) suitable qualifications and experience in architecture, engineering, surveying or building construction,(f) special knowledge of and experience in the management of natural resources or the administration and management of Crown lands, lands acquired under the Closer Settlement Acts and other lands of the Crown, or(g) suitable knowledge of matters concerning land rights for Aborigines and qualifications and experience suitable for the determination of disputes involving Aborigines.(3) One of the Commissioners may, by the instrument of the Commissioner’s appointment or by a subsequent instrument, be appointed to be Senior Commissioner.(4) Schedule 1 has effect in respect of the Commissioners.s 12: Am 1983 No 42, Sch 3; 1994 No 32, Sch 3; 1998 No 172, Sch 6 [5]–[7].
13 Acting Commissioners
(1) The Governor may appoint any qualified person to act as a Commissioner of the Court for a time not exceeding 12 months to be specified in the instrument of appointment.(2) In subsection (1), qualified person means a person qualified for appointment as a Commissioner.(3) The person so appointed shall, for the time and subject to the conditions or limitations specified in the instrument of appointment, have and may exercise the functions of a Commissioner and shall, for the purposes of this or any other Act, be deemed to be a Commissioner.(4) An acting Commissioner is entitled to receive such remuneration and allowances as the Governor may determine.(5) The provisions of the Public Service Act 1979 do not apply to or in respect of the appointment of an acting Commissioner, and an acting Commissioner is not, in the acting Commissioner’s capacity as such, subject to those provisions during the acting Commissioner’s term of office.s 13: Am 1994 No 32, Sch 3; 1998 No 172, Sch 6 [7] [8].
14 Disqualification of Commissioners
(1) Where a Commissioner:(a) has a pecuniary interest, direct or indirect, in a matter which is the subject of proceedings before the Court, orbeing proceedings in respect of which the Commissioner is exercising any functions conferred or imposed on the Commissioner by or under this Act or the rules, then:(b) is a member, officer, employee or servant of a public or local authority that is a party to any proceedings before the Court,(c) the Commissioner shall inform the Chief Judge that the Commissioner has such an interest or is such a member, officer, employee or servant, and(d) the Commissioner shall thereupon cease to exercise those functions in relation to the proceedings.(2) A decision of the Court is not vitiated by reason that a Commissioner has failed to comply with subsection (1).s 14: Am 1994 No 32, Sch 3; 1998 No 172, Sch 6 [7] [9].
Division 4 Other officers of the Court
15 Appointment of other officers
(1) A registrar, an assistant registrar and such other officers of the Court as may be necessary for the proper administration of this Act and the rules may be appointed and employed under and subject to the Public Service Act 1979.(2) The registrar, assistant registrar and other officers of the Court shall have such functions as may be prescribed by this Act, the rules or the regulations.(3) The assistant registrar shall have and may exercise the functions of the registrar, and all acts, matters and things done or omitted by the assistant registrar shall be as valid and effectual and shall have the same consequences as if the acts, matters and things had been done or omitted by the registrar.
Part 3 Jurisdiction of the Court
Division 1 General
16 Jurisdiction of the Court generally
(1) The Court shall have the jurisdiction vested in it by or under this or any other Act.(1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act.(2) For the purposes of this Act, the jurisdiction of the Court is divided into 7 classes, as provided in this Division.s 16: Am 1990 No 84, Sch 2; 1993 No 32, Sch 2; 1999 No 39, Sch 5 [1].
17 Class 1—environmental planning and protection appeals
The Court has jurisdiction (referred to in this Act as “Class 1” of its jurisdiction) to hear and dispose of:(a) appeals under Part 9.2 of the Protection of the Environment Operations Act 1997,(aa) (Repealed)(b) appeals under section 114 of the Pesticides Act 1999,(ba)–(c) (Repealed)(ca) appeals under section 54 of the Biological Control Act 1985,(cb) appeals and determinations under sections 6 and 22L of the Rivers and Foreshores Improvement Act 1948,(cc) appeals under section 180J of the Water Act 1912,(d) appeals, objections and applications under sections 95A, 96, 96A, 97, 98, 98A, 109K, 121ZK, 121ZM and 149F of the Environmental Planning and Assessment Act 1979,(da) appeals under section 211 of the Water Act 1912,(e) appeals under section 30, 70, or 70A of the Heritage Act 1977 and appeals remitted to the Court under section 77 (1) (b) of the Heritage Act 1977 in respect of applications under the Environmental Planning and Assessment Act 1979,(ea) appeals under section 106 of the Threatened Species Conservation Act 1995, and(f) appeals under sections 37–40 of the Environmentally Hazardous Chemicals Act 1985 and applications under section 44 (4) of that Act,(g) appeals under section 48 of the Native Vegetation Conservation Act 1997, and(h) appeals under Part 6 of the Contaminated Land Management Act 1997, and(i) appeals under section 24 of the Plantations and Reafforestation Act 1999.s 17: Am 1983 No 93, Sch 1 (1); 1985 No 15, Sch 1; 1985 No 115, Sch 1 (1); 1985 No 200, Sch 1 (1); 1986 No 220, Sch 1; 1989 No 204, Sch 1; 1991 No 66, sec 6; 1991 No 90, Sch 2 (1); 1993 No 12, Sch 2; 1995 No 101, Sch 6.5 [1]; 1995 No 102, Sch 6.3 [1]; 1997 No 133, Sch 5.2 [1]; 1997 No 140, Sch 1.3 [1]; 1997 No 152, Sch 4.18 [1] [2]; 1997 No 156, Sch 4.10 [1]; 1998 No 120, Sch 2.18; 1998 No 138, Sch 2.4 [1]; 1999 No 31, Sch 2.20 [1]; 1999 No 80, Sch 3.4 [1]; 1999 No 87, Sch 2 [1]; 1999 No 94, Sch 4.1; 1999 No 97, Sch 2.5 [1]; 2001 No 58, Sch 3.4 [1].
18 Class 2—local government and miscellaneous appeals and applications
The Court has jurisdiction (referred to in this Act as “Class 2” of its jurisdiction) to hear and dispose of:(a) appeals or objections under sections 176, 177, 178, 180, 182 and 611 of the Local Government Act 1993,(a1) appeals under sections 15 and 105, and applications under section 106, of the Roads Act 1993,(a2) appeals under section 26 (3) of the Water Supply Authorities Act 1987,(b) appeals under section 3 (1) (a) of the Local Government (Regulation of Flats) Act 1955,(c) appeals under section 40 (4) of the Strata Schemes (Freehold Development) Act 1973 and under section 69 (4) of the Strata Schemes (Leasehold Development) Act 1986,(c1) appeals under section 16 of the Lake Illawarra Authority Act 1987,(c2) appeals under section 55 of the Catchment Management Act 1989,(c3) appeals under section 26 of the Swimming Pools Act 1992,(c4) appeals under section 25 of the Noxious Weeds Act 1993,(d) appeals remitted to the Court under section 77 (1) (b) of the Heritage Act 1977 other than appeals referred to in section 17 (e),(e) appeals under section 120L of the Heritage Act 1977, and(f) proceedings under sections 28K and 28QA of the Strata Schemes (Freehold Development) Act 1973, under sections 51 and 57AA of the Strata Schemes (Leasehold Development) Act 1986 and under section 107 of the Community Land Management Act 1989.s 18: Am 1986 No 22, sec 3; 1986 No 158, Sch 1; 1986 No 220, Sch 1 (am 1988 No 58, Sch 1); 1987 No 150, sec 4; 1987 No 209, Sch 18 (1); 1987 No 285, sec 34; 1989 No 235, sec 65; 1990 No 31, sec 33; 1990 No 89, sec 4; 1992 No 49, Sch 2; 1993 No 11, Sch 3; 1993 No 12, Sch 2; 1993 No 13, Sch 2; 1993 No 32, Sch 2; 1993 No 33, Sch 1; 1994 No 44, Sch 19; 1996 No 139, Sch 2.18 [1] [2] (am 1997 No 55, Sch 2.18 [1] [2]); 1997 No 152, Sch 4.18 [3] [4]; 1998 No 138, Sch 2.4 [2].
19 Class 3—land tenure, valuation, rating and compensation matters
The Court has jurisdiction (referred to in this Act as “Class 3” of its jurisdiction) to hear and dispose of:(a) appeals, references or other matters that may be heard and disposed of by the Court under the Crown Lands Act 1989, the Western Lands Act 1901 or Division 2 of Part 12 of the Roads Act 1993, being appeals, references or other matters that are not referred to in any other section of this Part,(b) appeals under section 37 (1) of the Valuation of Land Act 1916,(b1) (Repealed)(c) appeals against boundary determinations under Part 14A (Boundary determinations) of the Real Property Act 1900,(c1) proceedings under the Encroachment of Buildings Act 1922,(d) appeals and applications under sections 179, 181, 526 (and section 526 as applied by section 531), 574, 677 and 730 of the Local Government Act 1993,(e) claims for compensation by reason of the acquisition of land, referred to in Division 2,(e1) appeals under section 199 of the Water Act 1912,(e2) proceedings under sections 29, 30 and 31 of the Access to Neighbouring Land Act 2000,(f) proceedings under section 10 of the Growth Centres (Land Acquisition) Act 1974,(f1) appeals under section 12B of the Mine Subsidence Compensation Act 1961,(g) proceedings to recover compensation payable pursuant to sections 96A (7) and 121ZL of the Environmental Planning and Assessment Act 1979,(g1) appeals under section 44 or 202 of the Fisheries Management Act 1994,(g2) appeals under section 174 of the Aboriginal Land Rights Act 1983,(g3) references under section 175 of the Aboriginal Land Rights Act 1983, and(h) any other appeals, references or other matters which an Act provides may be heard and disposed of by the Court, being appeals, references or other matters that are not referred to in any other section of this Part.s 19: Am 1981 No 119, Sch 1; 1989 No 154, Sch 2 (1); 1989 No 171, Sch 3; 1990 No 55, Sch 1; 1992 No 34, Sch 1; 1992 No 84, Sch 3; 1992 No 111, Sch 1; 1993 No 32, Sch 2; 1993 No 33, Sch 1; 1994 No 38, Sch 8; 1995 No 16, Sch 2.14 [1] [2]; 1997 No 128, Sch 2.2; 1997 No 152, Sch 4.18 [5] (am 1998 No 120, Sch 2.15 [2]); 1999 No 39, Sch 5 [2]; 1999 No 58, Sch 2.2; 2000 No 2, Sch 1 [1]; 2000 No 106, Sch 4.3 [1] [2]; 2001 No 118, Sch 2.7 [1] [2].
20 Class 4—environmental planning and protection and development contract civil enforcement
(1) The Court has jurisdiction (referred to in this Act as “Class 4” of its jurisdiction) to hear and dispose of:(a) proceedings under section 44 or 153 of the Heritage Act 1977,(aa) proceedings under section 282 of the Fisheries Management Act 1994,(b) proceedings referred to in section 35 of the Environmental Planning and Assessment Act 1979,(ba) proceedings under section 10 of the Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986,(bb) proceedings under section 18 of the Ozone Protection Act 1989,(c) proceedings under section 123 of the Environmental Planning and Assessment Act 1979,(ca) proceedings under section 57 of the Environmentally Hazardous Chemicals Act 1985,(caa) proceedings under Division 6 of Part 3, Part 7 and section 96 of the Contaminated Land Management Act 1997,(cb) proceedings under section 96 of the Pesticides Act 1999,(cbb) proceedings under section 108 of the Pesticides Act 1999,(cc) proceedings under section 32 of the Forestry and National Park Estate Act 1998,(cd) proceedings under section 60B of the Pipelines Act 1967,(ce) proceedings referred to in section 69G of the National Parks and Wildlife Act 1974,(cf) proceedings under section 91H of the National Parks and Wildlife Act 1974,(cg) proceedings under section 176A of the National Parks and Wildlife Act 1974,(ch) proceedings under section 27 of the Wilderness Act 1987,(ci) proceedings under Part 8.4 of the Protection of the Environment Operations Act 1997,(cia) proceedings under sections 247 and 307 of the Protection of the Environment Operations Act 1997,(cj) proceedings under section 22E of the Rivers and Foreshores Improvement Act 1948,(cja) proceedings under section 100H of the Rural Fires Act 1997,(ck) proceedings under section 147 of the Threatened Species Conservation Act 1995,(cl), (cm) (Repealed)(cn) proceedings under clauses 14–17 of Schedule 2 to the Rural Lands Protection Act 1998,(d) proceedings under sections 673 and 674 of the Local Government Act 1993,(da) applications under section 17 of the Disorderly Houses Act 1943,(db) proceedings under section 15D of the Mine Subsidence Compensation Act 1961,(dc) proceedings under section 30 of the Swimming Pools Act 1992,(dd) proceedings under Division 5 of Part 7 of the Aboriginal Land Rights Act 1983,(de) proceedings under section 45 or 63 of the Native Vegetation Conservation Act 1997,(df) proceedings under section 180C or 180K of the Water Act 1912,(df1) proceedings under sections 335 and 336 of the Water Management Act 2000,(dg) proceedings under the Nature Conservation Trust Act 2001,(dh) proceedings under section 57 or 60 of the Plantations and Reafforestation Act 1999,(e) proceedings referred to in subsection (2).(2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of proceedings:(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract,(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract,(c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, and(d) whether or not as provided by section 68 of the Supreme Court Act 1970—to award damages for a breach of a development contract.(2A) The Court has jurisdiction to hear and dispose of proceedings referred to in subsection (1) (dd).(3) For the purposes of subsection (2), a planning or environmental law is:(a) any of the following Acts or provisions:Aboriginal Land Rights Act 1983 (other than Division 5 of Part 7),Part 2 of Chapter 6, Chapter 7 or Chapter 15 of the Local Government Act 1993,Schedule 3 to the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979,Part 5 of the Olympic Co-ordination Authority Act 1995,(b) any statutory instrument made or having effect thereunder or made for the purposes thereof, including any deemed environmental planning instrument within the meaning of the Environmental Planning and Assessment Act 1979, oras respectively in force at any time, whether before, on or after 1 September 1980.(c) (Repealed)(4) The provisions of the Supreme Court Act 1970, and the rules thereunder, relating to the enforcement of judgments and orders of the Supreme Court apply to the enforcement of any judgment or order of the Court in proceedings referred to in Class 4 of its jurisdiction, and so apply as if references in those provisions to the Supreme Court were references to the Court, and with such other adaptations as may be necessary or as may be prescribed by the rules.(5) In this section, development contract means an agreement implied by section 15 of the Community Land Management Act 1989, section 28I of the Strata Schemes (Freehold Development) Act 1973 or section 49 of the Strata Schemes (Leasehold Development) Act 1986.s 20: Am 1980 No 77, Sch 1 (1); 1980 No 153, sec 3; 1985 No 63, Sch 1 (3); 1985 No 115, Sch 1 (2); 1985 No 200, Sch 1 (2); 1985 No 218, sec 3; 1986 No 194, sec 14 (a) (b); 1986 No 220, Sch 1; 1987 No 159, Sch 1; 1987 No 197, Sch 2; 1989 No 150, sec 29; 1989 No 154, Sch 2 (2); 1989 No 204, Sch 1; 1989 No 208, sec 37 (a) (b); 1991 No 90, Sch 2 (2); 1992 No 34, Sch 1; 1992 No 49, Sch 2; 1993 No 12, Sch 2; 1993 No 13, Sch 2; 1993 No 32, Sch 2; 1994 No 38, Sch 8; 1995 No 10, Sch 1.4; 1995 No 39, Sch 2 [1]–[3]; 1995 No 53, Sch 2.2; 1995 No 101, Sch 6.5 [2] [3]; 1995 No 102, Sch 6.3 [2]; 1996 No 139, Sch 2.18 [3] [4] (am 1997 No 55, Sch 2.18 [1] [2]); 1996 No 142, Sch 3; 1997 No 65, Sch 4.13; 1997 No 133, Sch 5.2 [2] [3]; 1997 No 140, Sch 1.3 [2] [3]; 1997 No 156, Sch 4.10 [2]–[4]; 1998 No 29, Sch 2.5 [1] [2]; 1998 No 138, Sch 2.4 [3]; 1998 No 143, Sch 6.13 (am 1999 No 31, Sch 2.37); 1998 No 163, Sch 12 [1] [2]; 1999 No 39, Sch 5 [3]; 1999 No 80, Sch 3.4 [2] [3]; 1999 No 87, Sch 2 [2]; 1999 No 97, Sch 2.5 [2] [3]; 2001 No 10, Sch 5.2; 2001 No 56, Sch 2.26 [1] [2]; 2001 No 58, Sch 3.4 [2] [3]; 2001 No 59, Sch 3.3; 2001 No 118, Sch 2.7 [3]; 2002 No 67, Sch 5.3; 2002 No 138, Sch 5.2.
21 Class 5—environmental planning and protection summary enforcement
The Court has jurisdiction (referred to in this Act as “Class 5” of its jurisdiction) to hear and dispose of in a summary manner:(a) proceedings under Parts 8.2 and 8.3 of the Protection of the Environment Operations Act 1997,(aa) proceedings under section 23 of the Ozone Protection Act 1989,(b) proceedings under Divisions 1, 3 and 4 of Part 10 of the Pesticides Act 1999,(ba) (Repealed)(c) proceedings under section 55 of the Waste Disposal Act 1970,(ca), (d) (Repealed)(da) proceedings under section 39 (4) of the Road and Rail Transport (Dangerous Goods) Act 1997,(e) proceedings under section 158 of the Heritage Act 1977,(f) proceedings under section 127 of the Environmental Planning and Assessment Act 1979,(faa) proceedings under Part 10 of the Contaminated Land Management Act 1997,(fa) proceedings under section 12 of the Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986,(g) proceedings under section 691 of the Local Government Act 1993,(ga) proceedings under section 26 of the Rivers and Foreshores Improvement Act 1948,(gb) proceedings under section 277 (1) (c) of the Fisheries Management Act 1994,(h) proceedings under section 176 (1AA) of the National Parks and Wildlife Act 1974, and(ha) proceedings under section 21 of the Very Fast Train (Route Investigation) Act 1989, and(hb) proceedings under the Irrigation Corporations Act 1994, and(i) any other proceedings for an offence which an Act provides may be taken before, or dealt with by, the Court.s 21: Am 1980 No 77, Sch 1 (2); 1983 No 93, Sch 1 (3); 1986 No 134, Sch 1; 1986 No 194, sec 14 (c); 1987 No 209, Sch 18 (2); 1989 No 44, sec 23; 1989 No 150, sec 29; 1989 No 208, sec 37 (c); 1990 No 84, Sch 2; 1991 No 90, Sch 2 (3); 1992 No 34, Sch 1; 1993 No 32, Sch 2; 1993 No 46, Sch 1; 1994 No 41, Sch 3; 1995 No 102, Sch 6.3 [3]; 1997 No 113, Sch 1.4; 1997 No 140, Sch 1.3 [4]; 1997 No 153, Sch 6.3; 1997 No 156, Sch 4.10 [5]; 1999 No 80, Sch 3.4 [4].
21A Class 6—appeals from convictions relating to environmental offences
The Court has jurisdiction (referred to in this Act as “Class 6” of its jurisdiction) to hear and dispose of appeals under Part 5B of the Justices Act 1902, other than appeals under Division 3A of that Part.s 21A: Ins 1990 No 84, Sch 2. Am 1998 No 137, Sch 2.13; 1999 No 39, Sch 5 [4].
21B Class 7—other appeals relating to environmental offences
The Court has jurisdiction (referred to in this Act as “Class 7” of its jurisdiction) to hear and dispose of appeals under Division 3A of Part 5B of the Justices Act 1902.s 21B: Ins 1999 No 39, Sch 5 [5].
22 Determination of matter completely and finally
The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.s 22: Am 1994 No 32, Sch 3.
23 Making of orders
The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.
Division 2 Claims for compensation
24 Claim for compensation in compulsory acquisition cases
(1) If:(a) a claim is made for compensation because of the compulsory acquisition of land in accordance with the Land Acquisition (Just Terms Compensation) Act 1991, Division 2 of Part 12 of the Roads Act 1993 or any other Act, andthe claim is (subject to any such Act) to be heard and disposed of by the Court and not otherwise.(b) no agreement is reached between the claimant and the authority required to pay the compensation,(2) The Court shall, for the purpose of determining any such claim, give effect to any relevant provisions of any Acts that prescribe a basis for, or matters to be considered in, the assessment of compensation.(3) (Repealed)s 24: Am 1980 No 77, Sch 1 (3); 1991 No 22, Sch 1; 1993 No 33, Sch 1.
25 Determination of estate, interest and amount
(1) In hearing and disposing of any claim referred to in section 24, the Court shall have jurisdiction to determine the nature of the estate or interest of the claimant in the subject land and the amount of compensation (if any) to which the claimant is entitled.(2) In the exercise of its jurisdiction under subsection (1), the Court may order that any other person who claims to have had or who may have had an interest in the subject land at the date of acquisition or taking be joined as a party to the proceedings and may then proceed to determine the nature of the estate or interest of that person and the amount of compensation (if any) to which the person is entitled.(3) (Repealed)s 25: Am 1991 No 22, Sch 1; 1994 No 32, Sch 3.
Division 3 Orders of conditional validity for certain development consents
pt 3, div 3: Ins 1997 No 81, Sch 2.
25A Application of Division
(1) This Division applies to:(a) a development consent granted, or purporting to be granted, under the Environmental Planning and Assessment Act 1979:(i) by the Minister, and(ii) whether before or after the commencement of this subsection, and(b) a development consent granted, or purporting to be granted, under the Environmental Planning and Assessment Act 1979:(i) by any other consent authority, and(ii) in respect of a development application made on or after the commencement of this subsection.(2) This Division extends to invalidity arising from any steps preliminary to the granting of a development consent to which this Division applies, whether those steps were taken, or should have been taken, by the Minister or any other consent authority, or by any other person or body.(3) In particular, this Division extends to invalidity arising from non-compliance with requirements declared to be mandatory requirements under section 102 of the Environmental Planning and Assessment Act 1979.(4) A reference in this Division to the Minister is a reference to the Minister responsible for the administration of the Environmental Planning and Assessment Act 1979.s 25A: Ins 1997 No 81, Sch 2. Am 1997 No 152, Sch 4.18 [6]–[8]; 1999 No 31, Sch 2.20 [2].
25B Orders for conditional validity of development consents
(1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order:(a) suspending the operation of the consent in whole or in part, and(b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations).(2) Terms may include (without limitation):(a) terms requiring the carrying out again of steps already carried out, or(b) terms requiring the carrying out of steps not already commenced or carried out, or(c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.s 25B: Ins 1997 No 81, Sch 2.
25C Orders for validity of development consents
(1) On application by the Minister or any other consent authority for an order under this subsection on the grounds that the terms specified under section 25B have been substantially complied with and that it is not proposed that the relevant development consent be regranted with alterations, the Court may make an order:(a) declaring that the terms have been substantially complied with, and(b) declaring that the consent is valid, and(c) revoking the order of suspension.(2) On application by the Minister or any other consent authority for an order under this subsection on the ground that the terms specified under section 25B have been substantially complied with and that the development consent has been regranted with alterations as referred to in section 103 of the Environmental Planning and Assessment Act 1979, the Court may make an order:(a) declaring that the terms have been complied with, and(b) declaring that the development consent has been validly regranted, and(c) declaring that the suspended development consent has been revoked, and(d) revoking the order of suspension.s 25C: Ins 1997 No 81, Sch 2. Am 1997 No 152, Sch 4.18 [9] [10]; 1999 No 31, Sch 2.20 [3].
25D Power to grant another development consent
Nothing in this Division prevents the grant of another development consent in relation to the same matter, during or after the period of suspension, pursuant to a development application duly made.s 25D: Ins 1997 No 81, Sch 2.
25E Duty of Court
It is the duty of the Court to consider making an order under this Division instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part.s 25E: Ins 1997 No 81, Sch 2.
Part 4 Exercise of jurisdiction
Division 1 Divisions of the Court
26 Divisions of the Court
For the more convenient despatch of business, the Court shall be divided into:(a) the Environmental Planning and Protection Appeals Division,(b) the Local Government and Miscellaneous Appeals and Applications Division,(c) the Land Tenure, Valuation, Rating and Compensation Division,(d) the Environmental Planning and Protection and Development Contract Civil Enforcement Division,(e) the Environmental Planning and Protection Summary Enforcement Division, and(f) the Environmental Offences Appeals Division.s 26: Am 1990 No 84, Sch 2; 1993 No 12, Sch 2.
Division 2 Distribution of business among the Divisions of the Court
27 Arrangements for despatch of business
The business of the Court shall, for convenient despatch, be assigned in accordance with this Division.
28 Distribution of business among the Divisions
(1) Proceedings in Class 1 of the Court’s jurisdiction shall be assigned to the Environmental Planning and Protection Appeals Division.(2) Proceedings in Class 2 of the Court’s jurisdiction shall be assigned to the Local Government and Miscellaneous Appeals and Applications Division.(3) Proceedings in Class 3 of the Court’s jurisdiction shall be assigned to the Land Tenure, Valuation, Rating and Compensation Division.(4) Proceedings in Class 4 of the Court’s jurisdiction shall be assigned to the Environmental Planning and Protection and Development Contract Civil Enforcement Division.(5) Proceedings in Class 5 of the Court’s jurisdiction shall be assigned to the Environmental Planning and Protection Summary Enforcement Division.(6) Proceedings in Class 6 or Class 7 of the Court’s jurisdiction shall be assigned to the Environmental Offences Appeals Division.s 28: Am 1990 No 84, Sch 2; 1993 No 12, Sch 2; 1999 No 39, Sch 5 [6].
Division 3 Organisation generally
29 Sittings of the Court
(1) The Court shall sit at such places and times as the Chief Judge may direct.(2) More than one sitting of the Court may be held at the same time.
30 Arrangement of business of the Court
(1) The Chief Judge is responsible for ensuring the orderly and expeditious discharge of the business of the Court and accordingly may, subject to this Act and to such consultation with the Judges as is appropriate and practicable, make arrangements as to:(a) the Judge, Commissioner or Commissioners who is or are to exercise the Court’s jurisdiction in particular matters or classes of matters, and(b) the Commissioner or Commissioners who is or are to exercise any other function under this Act.(2) Subject to subsections (2A) and (2B), in determining the Commissioner or Commissioners who is or are to exercise the jurisdiction of the Court or any other function under this Act in relation to any proceedings, regard shall be had to the knowledge, experience and qualifications of the Commissioners and to the nature of the matters involved in the proceedings.(2A) A Commissioner shall not exercise the jurisdiction of the Court or any other function under this Act in relation to any proceedings arising under the Aboriginal Land Rights Act 1983, unless the qualification for the Commissioner’s appointment was a qualification referred to in section 12 (2) (g).(2B) A Commissioner whose qualification for appointment was a qualification referred to in section 12 (2) (g) shall not exercise the jurisdiction of the Court or any other function under this Act in relation to any proceedings other than proceedings arising under the Aboriginal Land Rights Act 1983.(3) Where the hearing of any proceedings has been commenced or completed by 2 or more Commissioners in accordance with section 36 but, before the proceedings have been disposed of, one of those Commissioners has ceased to be a Commissioner or has ceased to be available for the purposes of the proceedings:(a) if the parties agree and the Chief Judge concurs, the proceedings may be heard and disposed of, or disposed of, by the remaining Commissioner or Commissioners, or(b) in any other case—the proceedings shall be reheard in accordance with this Act.(4) Where proceedings are reheard, as referred to in subsection (3), the Court or the Commissioner or Commissioners rehearing the proceedings may, for the purposes of those proceedings, have regard to any record of the proceedings before the Commissioners referred to in that subsection, including a record of any evidence taken in the proceedings.s 30: Am 1983 No 42, Sch 3; 1994 No 32, Sch 3; 1998 No 172, Sch 6 [7] [10]–[13].
31 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.
32 Validity of proceedings in any Division
Any step taken, order made, judgment given or other thing done in any proceedings in any Division shall be as valid in every way as if taken, made, given or done in the Division to which the proceedings are assigned by this Act.
33 Exercise of jurisdiction in the Divisions
(1) Classes 1, 2 and 3 of the Court’s jurisdiction shall, in accordance with this Act, be exercised by a Judge or one or more Commissioners.(2) Classes 4, 5, 6 and 7 of the Court’s jurisdiction shall, in accordance with this Act, be exercised by a Judge.(3) The Court’s jurisdiction under section 16 (1A) is to be exercised by a Judge, but this subsection does not prevent a Judge from being assisted by one or more Commissioners in accordance with section 37.s 33: Am 1990 No 84, Sch 2; 1993 No 32, Sch 2; 1999 No 39, Sch 5 [7].
Division 4 Special provisions respecting Class 1, 2 or 3 proceedings
34 Preliminary conferences
(1) Where proceedings are pending in Class 1 or 2 of the Court’s jurisdiction, the registrar shall, unless otherwise directed by the Chief Judge, arrange a conference between the parties to the proceedings or their representatives, to be presided over by a single Commissioner.(1A) Where proceedings are pending in Class 3 of the Court’s jurisdiction in respect of a claim for compensation by reason of the compulsory acquisition of land (referred to in Division 2 of Part 3), the registrar is required to arrange (at the request of all the parties to the proceedings) a conference between the parties to the proceedings or their representatives, to be presided over by a single Commissioner. The conference is to be arranged within 28 days after the proceedings are commenced or within such further time as the Chief Judge directs.(2) The registrar shall notify the parties or their representatives of the time and place fixed by the registrar for the conference.(3) Where:(a) at or after a conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions)—the Commissioner shall dispose of the proceedings in accordance with the decision, or(b) no such agreement is reached:(i) unless the parties consent under subparagraph (ii)—the Commissioner shall make a written report to the Court setting out that fact and also setting out the Commissioner’s views as to the issues in dispute between the parties to the proceedings, or(ii) if the parties consent—the Commissioner may dispose of the proceedings, whether with or without further hearing.(4) Subject to this Act and the rules, the Commissioner disposing of, or hearing and disposing of, proceedings pursuant to subsection (3) (a) or (3) (b) (ii) shall have and may exercise the functions of the Court.(5) The decision of the Commissioner under subsection (3) (a) or (3) (b) (ii) shall be deemed to be the decision of the Court.(6) Where a report is made to the Court under subsection (3) (b) (i), the registrar shall, as soon as practicable, furnish a copy of the report to each of the parties.(7) Evidence of anything said or admission made in the course of a conference shall not, unless the parties consent, be admissible at the hearing of the proceedings.(8) A Commissioner who has presided over a conference under this section in relation to any proceedings is disqualified from further participation in those proceedings, unless the parties otherwise agree.(9) The registrar may, unless otherwise directed by the Chief Judge, preside over a conference under this section, and for that purpose a reference in this section to a Commissioner includes a reference to the registrar.s 34: Am 1991 No 22, Sch 1; 1994 No 32, Sch 3; 1998 No 172, Sch 6 [7] [10].
35 Inquiries by Commissioners
(1) Where proceedings are pending in Class 3 of the Court’s jurisdiction, the Court may, with the consent of the parties, direct that an inquiry into any issue raised in, or other matter connected with, the proceedings be made by a single Commissioner.(2) The Commissioner making an inquiry pursuant to this section shall make a report to the Court.(3) Where a report is made to the Court under subsection (2), the registrar shall, as soon as practicable, furnish a copy of the report to each of the parties.(4) The Court may, with the consent of the parties, adopt any findings or observations set out in a report under subsection (2).(5) A Commissioner, in making an inquiry pursuant to this section, shall have and may exercise the functions of the Court under section 67 (paragraphs (d) and (e) excepted).(6) A Commissioner who has made an inquiry pursuant to this section in relation to any proceedings is disqualified from further participation in those proceedings, unless the parties otherwise agree.s 35: Am 1998 No 172, Sch 6 [10].
36 Delegation to Commissioners
(1) Where proceedings are pending in Class 1, 2 or 3 of the Court’s jurisdiction, the Chief Judge:(a) except as provided by paragraph (b) or subsection (1B), may, of the Chief Judge’s own motion or on the request of a party, direct that the proceedings be heard and disposed of by one or more Commissioners, and(b) shall, where the proceedings are proceedings:(i) arising under the Aboriginal Land Rights Act 1983, anddirect that the proceedings be heard and disposed of by a Commissioner.(ii) of a kind specified in Schedule 2,(1A) The Governor may, by regulation, amend Schedule 2 by:(a) adding thereto any matter,(b) altering any matter therein, oror may, by regulation, omit the Schedule and insert instead a new Schedule.(c) omitting any matter therefrom,(1B) The Chief Judge may not direct under this section that proceedings under section 29, 30 or 31 of the Access to Neighbouring Land Act 2000 are to be heard and disposed of by one or more Commissioners.(2) Subject to this Act and the rules, the Commissioner or Commissioners hearing and disposing of the proceedings pursuant to this section shall have and may exercise the functions of the Court (other than its functions under this section).(3) The decision of the Commissioner or Commissioners shall be deemed to be the decision of the Court.(4) Where proceedings are directed to be heard and disposed of by 2 or more Commissioners:(a) if the Senior Commissioner is one of the Commissioners hearing and disposing of the proceedings—the Senior Commissioner shall preside at the hearing of the proceedings,(b) if the Senior Commissioner is not one of those Commissioners—one of those Commissioners directed to do so by the Chief Judge shall preside at the hearing, and(c) if the Commissioners are divided in opinion as to the decision to be made on any question:(i) if there is a majority of the one opinion—the question shall be decided according to the opinion of the majority, or(ii) in any other case—the question shall be decided according to the opinion of the Commissioner presiding.(5) The Commissioner or Commissioners may, of the Commissioner’s or the Commissioners’ own motion or on the request of a party, refer a question of law (including the question whether a particular question is one of law) raised in the proceedings to the Chief Judge for determination by a Judge.(6) Where a question is referred to the Chief Judge under subsection (5):(a) subject to paragraphs (c) and (d), the Commissioner or Commissioners may continue to hear the proceedings unless the Chief Judge otherwise directs,(b) a Judge shall determine the question and then remit the determination to the Commissioner or Commissioners,(c) the Commissioner or Commissioners shall not make an order or decision to which the question is relevant until a Judge has determined the question, and(d) the Commissioner or Commissioners shall not make an order or determination that is inconsistent with the determination of the question by a Judge.(7) A decision of a Judge that a question referred under subsection (5) need not be determined because it is not relevant to the particular proceedings shall, for the purposes of subsection (6), be deemed to be the Judge’s determination of the question.s 36: Am 1983 No 42, Sch 3; 1994 No 32, Sch 3; 1998 No 172, Sch 6 [6] [7] [12]; 1999 No 31, Sch 2.20 [4]; 2000 No 2, Sch 1 [2] [3].
37 Commissioners sitting with a Judge
(1) Where proceedings are pending in Class 1, 2 or 3 of the Court’s jurisdiction before a Judge, the Court may, in hearing the proceedings, or any part of the proceedings, be assisted by one or more Commissioners.(2) Notwithstanding subsection (1), where proceedings are pending in Class 3 of the Court’s jurisdiction, being proceedings:(a) arising under the Aboriginal Land Rights Act 1983, andthe Court shall, in hearing the proceedings or any part of the proceedings, be assisted by 2 Commissioners or, if the Chief Judge so directs, by one Commissioner.(b) other than of a kind specified in Schedule 2,(3) A Commissioner assisting the Court as referred to in subsection (1) or (2) may assist and advise the Court, but shall not adjudicate on any matter before the Court.(4) A Judge before whom proceedings referred to in subsection (1) or (2) are pending may commence or continue the hearing of the proceedings, or any part of the proceedings:(a) without the assistance of a Commissioner who is not available or has ceased to be available to assist in the hearing of the proceedings or part of the proceedings, and(b) without the assistance of Commissioners generally if, in the opinion of the Judge, the proceedings or part of the proceedings concern or concerns a question of law only.s 37: Am 1983 No 42, Sch 3; 1987 No 162, Sch 1 (1); 1998 No 172, Sch 6 [7] [10].
38 Procedure
(1) Proceedings in Class 1, 2 or 3 of the Court’s jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit.(2) In proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.(3) Subject to the rules, and without limiting the generality of subsection (2), the Court may, in relation to proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and may receive in evidence the certificate of any such person.(4) In proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, the Court may, in respect of a matter not dealt with by this Act or the rules, give directions as to the procedure to be followed at or in connection with the hearing.(5) In this section, a reference to the Court includes a reference to the Commissioner or Commissioners directed under section 36 to hear and dispose of proceedings.
39 Powers of Court on appeals
(1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.(4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.(5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.(6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body:(a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and(b) in a case where the concurrence or approval has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.(6A) Notwithstanding any other provision of this section, if an appeal relates to an application made to a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and the application relates to integrated development within the meaning of section 91 of that Act:(a) the Court may determine the appeal whether or not the consent authority has obtained the general terms of approval of each relevant approval body within the meaning of section 90A of that Act, and(b) the Court is not bound to refuse an application for development consent because an approval body has decided not to grant its approval or has failed to inform the consent authority whether or not it will grant its approval, and(c) the Court may determine the appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of an approval body.Section 93 of that Act applies to a development consent granted as a result of the appeal.(7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.(8) This section (other than subsection (5)) does not apply to proceedings under section 30 or 31 of the Access to Neighbouring Land Act 2000.s 39: Am 1994 No 44, Sch 19; 1997 No 156, Sch 4.10 [6]; 2000 No 2, Sch 1 [4].
40 Additional powers of Court—provision of easements
(1) Where on any appeal under section 97 or 98 of the Environmental Planning and Assessment Act 1979 or section 176, 177 or 178 of the Local Government Act 1993, the Court is satisfied that it is necessary, for the drainage of the land to which the appeal relates or the disposal of that drainage, that a drainage easement should be provided over other land, the Court may, by its decision, in addition to exercising any other of its functions, require the applicant to pay to a council (within the meaning of the Local Government Act 1993), or to give to such a council security to its satisfaction for, such sum as may be determined by the Court as being the cost of acquisition by the council of such an easement specified by the Court in its decision and the cost of any works, so specified, within the easement.(2) Before making any decision under subsection (1), the Court shall notify the owner of any land over which it appears to the Court that it may be necessary for an easement to be provided, or on which it may be necessary for any works to be constructed, as referred to in subsection (1), and that owner may object to the provision of the easement and the construction of the works.(3) Each such objector is entitled to appear before the Court in support of the objector’s objections and the Court shall consider all such objections.s 40: Am 1993 No 32, Sch 2; 1994 No 32, Sch 3.
Division 5 Special provisions respecting Class 5 proceedings (summary jurisdiction)
41 Orders for appearance or apprehension of defendants
(1) Upon an application being made by any person (in this Division referred to as the prosecutor) in accordance with the rules, a Judge shall make an order:(a) ordering any person alleged in the application to have committed an offence punishable in the Court in its summary jurisdiction to appear at a time and place specified in the order to answer to the offence charged in the order, or(b) ordering the apprehension of any such person for the purpose of the person’s being brought before a Judge to answer to the offence charged in the order.(2) An order under subsection (1) may be made ex parte.(3) An order in respect of an offence alleged to have been committed by a person may be made under subsection (1) (b) whether or not an order in respect of that offence has been made under subsection (1) (a).(4) An order under subsection (1) (b):(a) shall be addressed to all members of the police force,(b) may be addressed to any other person specified in the order, and(c) may be executed by any member of the police force or by any person to whom it is addressed at any place at which, had the offence specified in the order been committed at that place, that offence would be triable in the Court.s 41: Am 1994 No 32, Sch 3.
42 Powers of Judge where defendant apprehended
Where any person apprehended pursuant to an order made under section 41 (1) (b) is brought before a Judge, the Judge shall, subject to the Bail Act 1978, by warrant commit the person to prison and order the person to be there detained until the person is brought before a Judge at a time and place specified in the order to answer to the offence with which the person is charged.s 42: Subst 1979 No 205, Sch 2, Part 2. Am 1994 No 32, Sch 3.
42A Notices to be given to prosecutor
(1) The registrar shall, as soon as practicable after the making of any order under section 42, cause notice of the order to be given to the prosecutor.(2) The registrar shall, as soon as practicable after a notice is given or sent (as referred to in section 34 of the Bail Act 1978) to a person referred to in section 42, cause a copy of the notice to be given to the prosecutor.s 42A: Ins 1979 No 205, Sch 2, Part 2.
43 Defects and variances in process
No objection shall be taken or allowed to any application referred to in, or to any order or warrant made or issued under, section 41 or 42 by reason of any alleged defect in it in substance or in form or by reason of any variance between it and the evidence adduced at the proceedings for the offence charged in the application or order.
44 Adjournment consequent on variance
The Judge hearing the proceedings for any offence referred to in section 43 shall:(a) where it appears to the Judge that any variance between any such application or order and the evidence adduced in respect of the offence charged in the application or order is such that the defendant has been misled by the variance, andadjourn the hearing.(b) the defendant applies for an adjournment of the hearing,s 44: Am 1994 No 32, Sch 3.
45 How defendant dealt with during adjournment
Where the hearing of the proceedings for an offence punishable in the summary jurisdiction of the Court is adjourned, whether under section 44 or otherwise, the Judge before whom the proceedings are taken may, subject to the Bail Act 1978, by warrant commit the defendant to prison and order the defendant to be there detained until the defendant is brought before the Judge at a time and place specified in the order to answer further to the offence with which the defendant is charged.s 45: Subst 1979 No 205, Sch 2, Part 2. Am 1994 No 32, Sch 3.
46 Practice and procedure for taking and receiving evidence
Subject to this Act and the rules, the practice and procedure of the Supreme Court in relation to the taking and receiving of evidence at the trial of accused persons on indictment apply to the taking and receiving of evidence in proceedings in the summary jurisdiction of the Court.
47 Procedure where prosecutor does not but defendant does appear
(1) If, upon the day and at the time and place appointed by an order made in respect of a defendant under section 41 (1) (a), or under section 42, the prosecutor does not appear in person or by the prosecutor’s counsel or attorney, but the defendant attends in accordance with the order and, in the case of an order under section 42, the prosecutor has received notice of the order, the Judge shall dismiss the charge unless for some reason the Judge thinks it proper to adjourn the hearing.(2) If, upon the day and at the time and place specified in a notice referred to in section 42A (2), the prosecutor does not appear in person or by the prosecutor’s counsel or attorney, but the defendant attends, and the prosecutor has received a copy of the notice, the Judge shall dismiss the charge unless for some reason the Judge thinks it proper to adjourn the hearing.s 47: Am 1979 No 205, Sch 2, Part 2; 1994 No 32, Sch 3.
48 Procedure where defendant does not obey order to appear
If, upon the day and at the time and place appointed by an order made in respect of a defendant under section 41 (1) (a), the defendant does not appear, then upon proof of the due service, in accordance with the rules, of the order upon the defendant at a reasonable time before the time appointed for the defendant’s appearance the Judge may either:(a) proceed to hear and determine the case and adjudicate thereon in the absence of the defendant, or(b) adjourn the hearing and make an order for the apprehension of the defendant as provided in section 41 (1) (b).s 48: Am 1994 No 32, Sch 3.
49 Procedure where either party does not appear at adjourned hearing
If, upon the day and at the time and place to which the hearing or further hearing of a charge has been adjourned, either or both of the parties does not, or do not, appear in person or by the party’s or parties’ counsel or attorneys, the Judge then and there present may proceed with the hearing as if that party or those parties were present, and in a case where it is the prosecutor who does not so appear may dismiss the charge with or without costs.s 49: Am 1994 No 32, Sch 3.
50 Where both parties appear Judge to hear and determine the case
If, upon a day and at the time and place appointed for the hearing or to which the hearing or further hearing has been adjourned, both parties appear in person or by their respective counsel or attorneys, the Judge shall proceed to hear the case.
51 Provision for hearing cases together
(1) Where a defendant is charged with 2 or more offences punishable in the summary jurisdiction of the Court, whether of a like or different nature, the Judge shall have jurisdiction to hear and determine the charges together.(2) Where 2 or more defendants are separately charged with any such offences, whether of a like or different nature, alleged to have been committed at the same time and place, the Judge shall have jurisdiction to hear and determine the charges together.
52 Judge may order payment of costs
(1) Where a Judge:(a) convicts any person of an offence punishable in the summary jurisdiction of the Court,(b) makes an order dismissing the charge for any such offence, orthe Judge may, in and by the conviction or order, order the defendant, in the case of a conviction or order referred to in paragraph (a) or (c), to pay to the prosecutor, or, in the case of an order referred to in paragraph (b), order the prosecutor to pay to the defendant, costs of such amount as are specified in the conviction or order or, if the conviction or order so directs, as may be determined under subsection (2).(c) makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of any such offence,(2) The costs payable by a prosecutor or defendant in accordance with a direction under this section are to be determined:(a) by agreement between the prosecutor and defendant, or(b) if no such agreement can be reached, in accordance with the regulations.(3) Regulations made for the purposes of this section may, without limitation, adopt all or any specified provisions of Division 6 of Part 11 of the Legal Profession Act 1987, with or without specified modifications.(4) Any such regulation may:(a) confer or impose, or have the effect of conferring or imposing, jurisdiction or functions on any court or judicial officer, or(b) confer or impose, or have the effect of conferring or imposing, functions on any officer or costs assessor.s 52: Am 1994 No 32, Sch 3; 1997 No 47, Sch 4 [1] [2]; 1998 No 49, Sch 18 [2]; 1999 No 94, Sch 4.36.
53 Enforcement of fines or orders
The payment of any money ordered by a Judge exercising summary jurisdiction under this Act to be paid as a penalty or for costs may be enforced in accordance with the Fines Act 1996.s 53: Subst 1996 No 99, Sch 2.10 [1].
54 (Repealed)
s 54: Am 1994 No 32, Sch 3. Rep 1996 No 99, Sch 2.10 [2].
55 Aiding, abetting, counselling or procuring the commission of offences
A person who aids, abets, counsels or procures the commission by another person of an offence punishable in the summary jurisdiction of the Court is guilty of the like offence and may be tried at the same time as or before or after the trial of the principal offender.
Part 5 Appeals from the Court
Division 1 General
56 Nature of decision of the Court
Except as provided:(a) by Division 2, in relation to proceedings in Class 1, 2, 3 or 4 of the Court’s jurisdiction, ora decision of the Court shall be final and conclusive.(b) by the Criminal Appeal Act 1912, in relation to proceedings in Class 5, 6 or 7 of the Court’s jurisdiction,s 56: Am 1990 No 84, Sch 2; 1999 No 39, Sch 5 [8].
Division 2 Class 1–4 proceedings
56A Class 1, 2 and 3 proceedings—appeals to the Court against decisions of Commissioners
(1) A party to proceedings in Class 1, 2 or 3 of the Court’s jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners.(2) On the hearing of an appeal under subsection (1), the Court shall:(a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or(b) make such other order in relation to the appeal as seems fit.(3) Notwithstanding subsection (1), an appeal shall not lie to the Court under that subsection in respect of a question of law that has been referred to, and determined by, a Judge pursuant to section 36.s 56A: Ins 1985 No 63, Sch 1 (4). Am 1998 No 172, Sch 6 [7] [12].
57 Class 1, 2 and 3 proceedings—appeals
(1) A party to proceedings in Class 1, 2 or 3 of the Court’s jurisdiction may appeal to the Supreme Court against an order or decision (including an interlocutory order or decision) of the Court on a question of law.(2) On the hearing of an appeal under subsection (1), the Supreme Court shall:(a) remit the matter to the Court for determination by the Court in accordance with the decision of the Supreme Court, or(b) make such other order in relation to the appeal as seems fit.(3) Despite subsection (1), an appeal does not lie to the Supreme Court against an order or decision of the Court that has been made by a Commissioner or Commissioners, other than a decision of the kind referred to in subsection (4) (a) or (b).(4) Despite subsection (1), an appeal does not lie to the Supreme Court against any of the following orders or decisions of the Court except by leave of the Supreme Court:(a) a decision on a question of law determined by a judge pursuant to a reference under section 36 (5),(b) a decision of a Commissioner or Commissioners made after a judge’s determination referred to in paragraph (a), where the judge’s determination is itself the subject of an appeal to the Supreme Court,(c) an order or decision made on an appeal under section 56A,(d) an interlocutory order or decision,(e) an order made with the consent of the parties,(f) an order or decision as to costs.s 57: Am 1985 No 63, Sch 1 (5); 1987 No 162, Sch 1 (2); 1998 No 172, Sch 6 [7] [12]; 2000 No 31, Sch 10 [1] [2]; 2002 No 99, Sch 3.5 [1].
58 Class 4 proceedings—appeals
(1) Where a party to proceedings in Class 4 of the Court’s jurisdiction is dissatisfied with an order or decision (including an interlocutory order or decision) of the Court, the party may appeal to the Supreme Court against the order or decision.(2) On the hearing of an appeal under subsection (1), the Supreme Court shall:(a) make an order reversing, affirming or amending the order or decision appealed against,(b) remit the matter to the Court for determination by the Court in accordance with the decision of the Supreme Court,(c) make an order directing a rehearing of the proceedings in respect of which the order or decision appealed against was made, or(d) make such other order in relation to the appeal as seems fit.(3) Despite subsection (1), an appeal does not lie to the Supreme Court against any of the following orders or decisions of the Court except by leave of the Supreme Court:(a) an interlocutory order or decision,(b) an order made with the consent of the parties,(c) an order or decision as to costs.(4) The amendment made to this section by the Courts Legislation Further Amendment Act 1995 does not operate to require leave to appeal against an order or decision of the Court if, when the order or decision was made, an appeal lay as of right.s 58: Am 1987 No 162, Sch 1 (3); 1995 No 88, Sch 1.5 [1] [2]; 2002 No 99, Sch 3.5 [2].
59 Suspension of operation of order etc
(1) Where an appeal is made to the Supreme Court under this Division, either the Court or the Supreme Court may suspend the operation of any relevant order or decision until the Supreme Court makes its decision.(2) Where an appeal is made to the Court under this Division, the Court may suspend the operation of any relevant order or decision until the Court makes its decision.s 59: Am 1985 No 63, Sch 1 (6).
60 Termination of suspension
(1) Where, under section 59 (1), the Court has suspended the operation of an order or decision, the Court or Supreme Court may terminate the suspension and, where the Supreme Court has suspended the operation of any such order or decision, the Supreme Court may terminate the suspension.(2) Where, under section 59 (2), the Court has suspended the operation of an order or a decision, the Court may terminate the suspension.s 60: Am 1985 No 63, Sch 1 (7).
61 Rules
(1) An appeal to the Supreme Court under this Division shall be made in such manner, and be subject to such conditions, as are prescribed by rules of court of the Supreme Court.(2) An appeal to the Court under this Division shall be made in such manner, and be subject to such conditions, as are prescribed by the rules.s 61: Subst 1985 No 63, Sch 1 (8).
Part 5A Mediation and neutral evaluation
pt 5A (ss 61A–61L): Ins 1994 No 57, Sch 1.
61A Purpose of Part
(1) The purpose of this Part is to enable the Court to refer matters for mediation or neutral evaluation if the parties to the proceedings concerned have agreed to that course of action.(2) This Part does not prevent:(a) the parties to proceedings from agreeing to and arranging for mediation or neutral evaluation of any matter otherwise than as referred to in this Part, or(b) a matter arising in proceedings from being dealt with under the provisions of the Community Justice Centres Act 1983.pt 5A (ss 61A–61L): Ins 1994 No 57, Sch 1.
61B Meaning of “mediation” and “neutral evaluation”
(1) For the purposes of this Part, mediation means a structured negotiation process in which the mediator, as a neutral and independent party, assists the parties to a dispute to achieve their own resolution of the dispute.(2) For the purposes of this Part, neutral evaluation means a process of evaluation of a dispute in which the evaluator seeks to identify and reduce the issues of fact and law in dispute. The evaluator’s role includes assessing the relative strengths and weaknesses of each party’s case and offering an opinion as to the likely outcome of the proceedings, including any likely findings of liability or the award of damages.pt 5A (ss 61A–61L): Ins 1994 No 57, Sch 1.
61C Other definitions
In this Part:evaluator means a person to whom the Court refers a matter for neutral evaluation under this Part.mediation session means a meeting arranged for the mediation of a matter under this Part.mediator means a person to whom the Court refers a matter for mediation under this Part.neutral evaluation session means a meeting arranged for the neutral evaluation of a matter under this Part.pt 5A (ss 61A–61L): Ins 1994 No 57, Sch 1.
61D Referral by Court
(1) The Court may, by order, refer a matter arising in proceedings before it (other than criminal proceedings) for mediation or neutral evaluation if:(a) the Court considers the circumstances appropriate, and(b) the parties to the proceedings consent to the referral, and(c) the parties to the proceedings agree as to who is to be the mediator or evaluator for the matter.(2) The mediator or evaluator may, but need not be, a person whose name is on a list compiled under this Part.pt 5A (ss 61A–61L): Ins 1994 No 57, Sch 1.
61E Mediation and neutral evaluation to be voluntary
(1) Attendance at and participation in mediation sessions or neutral evaluation sessions are voluntary.(2) A party to a mediation session or neutral evaluation session may withdraw from the session at any time.pt 5A (ss 61A–61L): Ins 1994 No 57, Sch 1.
61F Costs of mediation and neutral evaluation
The costs of mediation or neutral evaluation, including the costs payable to the mediator or evaluator, are to be borne by the parties to the proceedings in such proportions as they may agree among themselves or, failing agreement, in equal shares.pt 5A (ss 61A–61L): Ins 1994 No 57, Sch 1.
61G Agreements and arrangements arising from mediation sessions
(1) The Court may make orders to give effect to any agreement or arrangement arising out of a mediation session.(2) This Part does not affect the enforceability of any other agreement or arrangement that may be made, whether or not arising out of a mediation session, in relation to the matters the subject of a mediation session.pt 5A (ss 61A–61L): Ins 1994 No 57, Sch 1.
61H Mediators and evaluators
(1) The Chief Judge may compile a list or lists of persons considered by the Chief Judge to be suitable to be mediators for the purposes of this Part.(2) The Chief Judge may compile a list or lists of persons considered by the Chief Judge to be suitable to be evaluators for the purposes of this Part.(3) Different lists may be compiled for different types of matters or to take account of any other factors.(4) A person may be included in a list under this section only if:(a) the person consents to being included in the list, and(b) the person agrees to comply with the provisions of this Part and of any regulations or rules made for the purposes of this Part.(5) The Chief Judge may amend or revoke any list compiled under this section for any reason that the Chief Judge considers appropriate.(6) The Chief Judge is to review at least annually any list compiled under this section.pt 5A (ss 61A–61L): Ins 1994 No 57, Sch 1.
61I Privilege
(1) In this section, mediation session or neutral evaluation session includes any steps taken in the course of making arrangements for the session or in the course of the follow-up of a session.(2) Subject to subsection (3), the same privilege with respect to defamation as exists with respect to judicial proceedings and a document produced in judicial proceedings exists with respect to:(a) a mediation session or neutral evaluation session, or(b) a document or other material sent to or produced to a mediator or evaluator, or sent to or produced at the Court or the registry of the Court, for the purpose of enabling a mediation session or neutral evaluation session to be arranged.(3) The privilege conferred by subsection (2) only extends to a publication made:(a) at a mediation session or neutral evaluation session, or(b) as provided by subsection (2) (b), or(c) as provided by section 61J.(4) Evidence of anything said or of any admission made in a mediation session or neutral evaluation session is not admissible in any proceedings before any court, tribunal or body.(5) A document prepared for the purposes of, or in the course of, or as a result of, a mediation session or neutral evaluation session, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body.(6) Subsections (4) and (5) do not apply with respect to any evidence or document:(a) if the persons in attendance at, or identified during, the mediation session or neutral evaluation session and, in the case of a document, all persons identified in the document, consent to the admission of the evidence or document, or(b) in proceedings instituted with respect to any act or omission in connection with which a disclosure has been made under section 61J (c).pt 5A (ss 61A–61L): Ins 1994 No 57, Sch 1.
61J Secrecy
A mediator or evaluator may disclose information obtained in connection with the administration or execution of this Part only in any one or more of the following circumstances:(a) with the consent of the person from whom the information was obtained,(b) in connection with the administration or execution of this Part,(c) if there are reasonable grounds to believe that the disclosure is necessary to prevent or minimise the danger of injury to any person or damage to any property,(d) if the disclosure is reasonably required for the purpose of referring any party or parties to a mediation session or neutral evaluation session to any person, agency, organisation or other body and the disclosure is made with the consent of the parties to the mediation session or neutral evaluation session for the purpose of aiding in the resolution of a dispute between those parties or assisting the parties in any other manner,(e) in accordance with a requirement imposed by or under a law of the State (other than a requirement imposed by a subpoena or other compulsory process) or the Commonwealth.pt 5A (ss 61A–61L): Ins 1994 No 57, Sch 1.
61K Exoneration from liability for listed mediators and evaluators
No matter or thing done or omitted to be done by a mediator or evaluator subjects the mediator or evaluator to any action, liability, claim or demand if:(a) the matter or thing was done in good faith for the purposes of a mediation session or neutral evaluation session under this Part, and(b) when the subject-matter of the mediation or neutral evaluation was referred for mediation or neutral evaluation, the mediator’s or evaluator’s name was included in a list compiled under this Part.pt 5A (ss 61A–61L): Ins 1994 No 57, Sch 1.
61L Regulations for the purposes of this Part
The regulations may include provisions for the purposes of this Part.pt 5A (ss 61A–61L): Ins 1994 No 57, Sch 1.
Part 6 Miscellaneous
62 Proceedings in open court
All proceedings before the Court shall, unless the Court otherwise orders, be heard in open court.
63 Right of appearance
A person entitled to appear before the Court may appear in person, or by a barrister or solicitor, or (except in proceedings in Class 5, 6 or 7 of the Court’s jurisdiction) by an agent authorised by the person in writing.s 63: Am 1990 No 84, Sch 2; 1999 No 39, Sch 5 [8].
64 Appearance by the Crown
(1) The Crown may appear before the Court in any case in which the public interest or any right or interest of the Crown may be affected or involved.(2) Without affecting the generality of subsection (1), the Attorney General or the Minister for Planning and Environment, or both, may, at any stage of any proceedings before the Court, intervene by counsel, solicitor or agent, and may examine witnesses and address the Court with respect to matters relevant to the proceedings.(3) Without affecting the generality of subsection (1), the Minister administering the Community Welfare Act 1987 may, at any stage of any proceedings before the Court in which an approved non-Government organisation within the meaning of that Act is a party, with the consent of that organisation, intervene by counsel, solicitor or agent and may examine witnesses and address the Court with respect to matters relevant to the proceedings.s 64: Am 1987 No 58, Sch 3.
65 Issue of process
All process issuing out of the Court shall be in the form prescribed by the rules and be signed or otherwise authenticated in accordance with the rules.s 65: Am 2002 No 70, Sch 2 [1].
66 Judicial notice of certain signatures
Judicial notice shall be taken of the signature of a Judge, a Commissioner, the registrar or the assistant registrar when appearing on a document issuing out of the Court.s 66: Am 1998 No 172, Sch 6 [7].
67 Powers of the Court as to the production of evidence
The Court shall have and may exercise the functions vested in the Supreme Court in respect of the following matters:(a) compelling the attendance of witnesses and examining them on oath, affirmation or declaration,(b) compelling the production, discovery and inspection of books, records, documents and other papers,(c) compelling witnesses to answer questions which the Court considers to be relevant in any proceeding before it,(d) the apprehension, detention and punishment of persons guilty of contempt, or of disobedience to any order made by the Court, or of any process issuing out of the Court, and(e) directing witnesses to be prosecuted for perjury.
68 Amendments and irregularities
(1) In any proceedings before the Court, the Court shall have power at any stage of the proceeding to order, upon such terms as to costs or otherwise as the Court thinks fit, any amendments to be made which, in the opinion of the Court, are necessary in the interests of justice.(2) Where, in beginning or purporting to begin any proceedings before the Court or at any stage in the course of or in connection with any such proceedings, there is, by reason of anything done or left undone, a failure to comply with the requirements of this Act or of the rules whether in respect of time, place, manner, form or content or in any other respect:(a) the failure shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings, or any document, judgment or order in the proceedings, and(b) subject to subsection (3), the Court may, on terms, set aside wholly or in part the proceedings or any step taken in the proceedings or any document, judgment or order in the proceedings or exercise its functions under this Act and the rules to allow amendments and to make orders dealing with the proceedings generally.(3) The Court shall not set aside any proceedings before it or any step taken in any such proceedings or any document, judgment or order in any such proceedings on the ground of a failure to which subsection (2) applies on the application of any party unless the application is made within a reasonable time and before the applicant has taken any fresh step after becoming aware of the irregularity.
69 Costs
(1) In this section, costs includes:(a) costs of or incidental to proceedings in the Court,(b) in the case of an appeal to the Court, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal, and(c) in the case of proceedings transferred or remitted to the Court, the costs of or incidental to the whole proceedings, both before and after the transfer or remittal.(2) Subject to the rules and subject to any other Act:(a) costs are in the discretion of the Court,(b) the Court may determine by whom and to what extent costs are to be paid, and(c) the Court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis.(3) The Court may order a party instituting proceedings in the Court to give security for the payment of costs that may be awarded against that party.(4) The security referred to in subsection (3) shall be of such amount, and given at such time and in such manner and form, as the Court directs.(5) The Court may reduce or increase the amount of security ordered under subsection (3) to be given and may vary the time at which, or the manner or form in which, the security is to be given.(6) If security, or further security, is not given in accordance with an order under this section, the Court may order that the proceedings be dismissed.(7) The provisions of this section relating to security do not affect the operation of any provision made by or under any other Act or by the rules for or in relation to the furnishing of security.(8) A Commissioner or Commissioners may not make an order under this section except with the concurrence of the Chief Judge.(9) This section does not apply to proceedings in Class 5, 6 or 7 of the Court’s jurisdiction.s 69: Am 1990 No 84, Sch 2; 1993 No 87, Sch 6; 1994 No 32, Sch 3; 1998 No 172, Sch 6 [10] [12]; 1999 No 39, Sch 5 [8].
69A Interest payable on money ordered to be paid
(1) If an order is made by the Court for the payment of money, interest is payable at the prescribed rate from the date the order takes effect on so much of the money as is from time to time unpaid, unless the Court otherwise orders.(2) This section does not apply in the case of money ordered to be paid as a penalty.(3) In the case of an order of the Court for the payment of compensation under the Land Acquisition (Just Terms Compensation) Act 1991, the rate of interest is the rate determined under that Act in respect of the payment of compensation.s 69A: Ins 1989 No 132, Sch 1. Am 1991 No 22, Sch 1.
70 Vexatious litigant
(1) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings in the Court, whether against the same person or against different persons, the Court may, on application by the Attorney General, order that the vexatious litigant shall not, without the leave of the Court, institute any legal proceedings in the Court and that any legal proceedings instituted by the vexatious litigant in the Court before the making of the order shall not be continued by the vexatious litigant without the leave of the Court.(2) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings against any person (in this subsection called the person aggrieved) in the Court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without the leave of the Court, institute any legal proceedings against the person aggrieved in the Court and that any legal proceedings instituted by the vexatious litigant against the person aggrieved in the Court before the making of the order shall not be continued by the vexatious litigant without the leave of the Court.(3) The Court may, from time to time, rescind or vary any order made by it or under subsection (1) or (2).(4) Where the Court has made an order under subsection (1) or (2) against any person, the Court shall not give that person leave to institute or continue any legal proceedings unless the Court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.s 70: Am 1994 No 32, Sch 3.
71 Proceedings in Supreme Court
(1) Subject to section 58, proceedings of the kind referred to in section 20 (1) (e) may not be commenced or entertained in the Supreme Court.(2) (Repealed)s 71: Am 1980 No 77, Sch 1 (4); 1985 No 115, Sch 1 (3); 1986 No 220, Sch 1; 1993 No 12, Sch 2.
72 Transfer of proceedings from Supreme Court
Where the Supreme Court is of opinion that any proceedings commenced or purporting to have been commenced in the Supreme Court could or should have been commenced in the Court, the Supreme Court may, on the application of any party or of its own motion, order that those proceedings be transferred to the Court.
73 Procedure on transfer
Where the Supreme Court makes an order under section 72 for the transfer of any proceedings to the Court:(a) the plaintiff shall lodge a copy of the order and a copy of the pleadings (if any) in the proceedings with the registrar and, if the plaintiff does not lodge that copy or those copies, as the case may be, within 10 days after the entry of the order, the defendant may lodge it or them with the registrar,(b) where the copy or copies, as the case may be, has or have been lodged under paragraph (a), the proceedings shall:(i) cease to be proceedings in the Supreme Court, and(ii) become proceedings in the Court and be continued in the Court as if originally commenced in the Court, and(c) any costs payable in respect of the proceedings shall:(i) as regards costs of work done after the making of the order—be dealt with under section 69, and(ii) as regards costs of the order, copies of the order and pleadings (if any), and work done before the making of the order—be allowed, subject to any order of the Supreme Court.s 73: Am 1993 No 87, Sch 6.
74 Rules
(1) The Chief Judge and any 2 other Judges may make rules for or with respect to:(a) the procedure (including the method of pleading) and the practice to be followed in the Court in any proceedings (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 application or appeal which under this or any other Act or Commonwealth Act is to be made to the Court,(a1) the practice and procedure to be followed in the mediation or neutral evaluation of any matter under Part 5A,(a2) appeals under Division 3A of Part 5B of the Justices Act 1902,(b) the joinder of causes of action, the consolidation of proceedings, and the joinder, misjoinder and non-joinder of parties,(c) the means for, and the practice and procedure to be followed in, the enforcement and execution of decisions, judgments and orders of the Court,(d) the furnishing of security,(e) the costs of proceedings in the Court, and(f) all matters that by this Act are required or permitted to be prescribed by rules or that are necessary or convenient to be prescribed by rules for carrying out or giving effect to this Act.(2) Without affecting the generality of subsection (1), rules may be made, in relation to matters within the jurisdiction of the Court, for or with respect to matters for or with respect to which rules may be made under the Supreme Court Act 1970, including rules that may be so made by virtue of the Supreme Court (Summary Jurisdiction) Act 1967, or any other Act.(3) The rules may, with any adaptations specified therein, adopt by reference any rules made under the Supreme Court Act 1970.(4) Rules may be made so as to apply differently according to such factors as may be specified in the rules.(5) While there are no Judges other than the Chief Judge, the reference in subsection (1) to other Judges shall be deemed to be omitted, and while there is only one such Judge, that reference shall be construed as a reference to that Judge.(6) This section does not give power to make rules with respect to any matter relating to costs that is regulated by Part 11 of the Legal Profession Act 1987.(7) A practice note (including any other document, however described, which regulates the practice or procedure of the Court, or of any class of proceedings in the Court, but excluding a decision of the Court) issued by or on behalf of the Court is taken to be a statutory rule for the purposes of Part 6 of the Interpretation Act 1987. This subsection does not apply to a practice note issued before the commencement of this subsection.s 74: Am 1993 No 87, Sch 6; 1994 No 32, Sch 3; 1994 No 57, Sch 1; 1999 No 39, Sch 5 [9].
75–77 (Repealed)
ss 75–77: Rep 1987 No 48, Sch 32.
78 Regulations
The Governor may make regulations, not inconsistent with this Act, for or with respect to:(a) fixing or otherwise relating to fees and percentages to be taken in respect of the business of the Court,(aa) the leave which may be granted to Commissioners,(b) the appointment of persons to panels from which persons may be appointed as acting Commissioners, and(c) all matters that by this Act are required or permitted to be prescribed by regulations or that are necessary or convenient to be prescribed by regulations for carrying out or giving effect to this Act.s 78: Am 1985 No 63, Sch 1 (9).
79 Savings, transitional and other provisions
Schedule 3 has effect.s 79: Ins 1997 No 47, Sch 4 [3].
Schedule 1 The Commissioners
(Section 12)
sch 1, hdg: Am 1998 No 172, Sch 6 [14].
1 Term of office
(1) A Commissioner shall, subject to this Schedule, hold office for a term of 7 years, and shall be, if otherwise qualified, eligible for re-appointment from time to time for further like terms.(2) A Commissioner shall, except as the Minister may otherwise approve, devote the whole of the Commissioner’s time to the duties of the Commissioner’s office.
2 Remuneration
A Commissioner is entitled to be paid:(a) remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975, and(b) such travelling and subsistence allowances as the Minister may from time to time determine in respect of the Commissioner.
2A Leave entitlements
Subject to this Act and the regulations, the leave which may be granted to Commissioners shall be as determined by the Minister from time to time.
3 Application of Public Service Act 1979
The provisions of the Public Service Act 1979 do not apply to or in respect of the appointment of a Commissioner, and a Commissioner shall not, in the Commissioner’s capacity as such, be subject to those provisions during the Commissioner’s term of office.
4, 5 (Repealed)
6 Removal from office
The Governor may remove a Commissioner from office for misbehaviour or incompetence.
7 Vacation of office
A Commissioner shall be deemed to have vacated office if the Commissioner:(a) dies,(b) resigns the office by instrument in writing addressed to the Minister,(c) becomes a mentally incapacitated person, or(d) is removed from office by the Governor under clause 6.
8 Preservation of rights of Commissioner if previously public servant etc
(1) In this clause:statutory body means any body declared under clause 10 to be a statutory body for the purposes of this Schedule.superannuation scheme means a scheme, fund or arrangement under which any superannuation or retirement benefits are provided and which is established by or under any Act.(2) Subject to subclause (3) of this clause and to the terms of appointment, where a Commissioner was, immediately before being appointed as Commissioner:(a) an officer of the Public Service,(b) a contributor to a superannuation scheme,(c) an officer employed by any statutory body, orthe Commissioner:(d) a person in respect of whom provision was made by an Act for the retention of any rights accrued or accruing to the person as an officer or employee,(e) shall retain any rights accrued or accruing to the Commissioner as such an officer, contributor or person,(f) may continue to contribute to any superannuation scheme to which the Commissioner was a contributor immediately before being appointed as Commissioner, andas if the Commissioner had continued to be such an officer, contributor or person during the Commissioner’s service as Commissioner, and:(g) shall be entitled to receive any deferred or extended leave and any payment, pension or gratuity,(h) the Commissioner’s service as Commissioner shall be deemed to be service as an officer or employee for the purpose of any law under which those rights accrued or were accruing, under which the Commissioner continues to contribute or by which that entitlement is conferred, and(i) the Commissioner shall be deemed to be an officer or employee, and the Government of New South Wales shall be deemed to be the Commissioner’s employer, for the purpose of the superannuation scheme to which the Commissioner is entitled to contribute under this subclause.(3) Where a Commissioner would, but for this subclause, be entitled under subclause (2) of this clause to contribute to a superannuation scheme or to receive any payment, pension or gratuity under that scheme, the Commissioner shall not be so entitled upon the Commissioner’s becoming (whether upon being appointed as Commissioner or at any later time while the Commissioner holds office as Commissioner) a contributor to any other superannuation scheme, and the provisions of subclause (2) (i) of this clause cease to apply to or in respect of the Commissioner and the Government of New South Wales in any case where the Commissioner becomes a contributor to such another superannuation scheme.(4) Subclause (3) of this clause does not prevent the payment to a Commissioner upon the Commissioner’s ceasing to be a contributor to a superannuation scheme of such amount as would have been payable to the Commissioner if the Commissioner had ceased, by reason of resignation, to be an officer or employee for the purposes of that scheme.(5) A Commissioner shall not, in respect of the same period of service, be entitled to claim a benefit under this Act and another Act.
9 Commissioner entitled to re-appointment in former employment in certain cases
(1) In this clause:retiring age means:(a) in relation to a person who was, immediately before being appointed as Commissioner, an officer of the Public Service—the age of 60 years, and(b) in relation to a person who was, immediately before being appointed as Commissioner, an officer or employee of a statutory body and except as provided in paragraph (a)—the age at which officers or employees (being officers or employees of the class to which that person belonged immediately before being appointed as Commissioner), as the case may be, of that body are entitled to retire.statutory body means any body declared under clause 10 to be a statutory body for the purposes of this Schedule.(2) Where a person ceases to be a Commissioner, otherwise than pursuant to clause 7 (paragraph (b) excepted), the person shall, if the person has not attained the retiring age, be entitled to be appointed, where, immediately before being appointed as Commissioner, the person was:(a) an officer of the Public Service—to some position in the Public Service, ornot lower in classification and salary than that which the person held immediately before being appointed as Commissioner.(b) an officer or employee of a statutory body, except as provided in paragraph (a)—to some office in the service of that body,
10 Statutory bodies
The Governor may, by proclamation published in the Gazette, declare any body constituted by or under any Act to be a statutory body for the purposes of this Schedule.
sch 1: Am 1985 No 63, Sch 1 (10); 1990 No 99, Sch 4; 1994 No 32, Sch 3; 1998 No 172, Sch 6 [7] [9]–[11] [15].
Schedule 2
(Sections 36 (1) (b), (1A), 37 (2))
Proceedings under Part 13 of the Aboriginal Land Rights Act 1983.Appeals under section 26 of the Swimming Pools Act 1992.
sch 2: Ins 1983 No 42, Sch 3. Am 1992 No 49, Sch 2; 2001 No 118, Sch 2.7 [4].
Schedule 3 Savings, transitional and other provisions
(Section 79)
1 Provisions consequent on enactment of Courts Legislation Amendment Act 1997
Section 52, as amended by the Courts Legislation Amendment Act 1997, does not apply to or in respect of any conviction or order arising out of proceedings determined before the commencement of Schedule 4 to that Act.
2 Provisions consequent on enactment of Courts Legislation Further Amendment Act 1998
(1) In this clause, amending Act means the Courts Legislation Further Amendment Act 1998.(2) A person appointed as an assessor immediately before the commencement of Schedule 6 [3] to the amending Act is taken to be duly appointed as a Commissioner under section 12 for the balance of the term of his or her appointment.(3) The person appointed as senior assessor immediately before the commencement of Schedule 6 [3] to the amending Act is taken to be duly appointed as Senior Commissioner under section 12 (3).(4) On and from the commencement of Schedule 6 [3] to the amending Act, a reference in any other Act or any instrument to an assessor of the Land and Environment Court is taken to be a reference to a Commissioner.
3 Provisions consequent on enactment of Courts Legislation Amendment Act 1999
The amendments made to sections 19 and 20 by the Courts Legislation Amendment Act 1999 do not apply in relation to proceedings that have been commenced in the Court (but not determined) before the commencement of those amendments.
5 Provision consequent on enactment of Courts Legislation Further Amendment Act 2002
Anything that was done or omitted to be done on or after 1 July 2002 and before the commencement of the amendment made by Schedule 2 to the Courts Legislation Further Amendment Act 2002, and that would have been valid if that amendment had been in force when the thing was done or omitted to be done, is validated.
sch 3: Ins 1997 No 47, Sch 4 [4]. Am 1998 No 172, Sch 6 [16]; 1999 No 39, Sch 5 [10]; 2002 No 70, Sch 2 [2].