(a) a judge (the
"original judge" ) starts the hearing of a civil or criminal proceeding; and
(b) before the proceeding has been determined, the original judge dies or
resigns as a judge, or is certified as incapable of sitting.
Note—
For the
Court of Appeal, see section 31(Constitution of court if 1 judge of appeal
unable to continue).
(2) For subsection (1) , a judge is certified as
incapable of sitting if the Chief Justice or Senior Judge Administrator has
issued a certificate (an
"incapacity certificate" ) stating the judge is incapable of sitting, whether
temporarily or otherwise.
(3) A party to the proceeding may apply to the
court for directions as to the determination of the proceeding.
(4) On its
own initiative or on an application under this section, the court may—
(i) adjourn the proceeding to enable the
original judge to complete the hearing and determination of the proceeding; or
(ii) order that the proceeding be heard and determined afresh; or
(b) in any
other case—
(i) order that the proceeding be heard and determined afresh; or
(ii) make any other order it considers appropriate.
(5) If the court orders
that a proceeding be heard and determined afresh, the court may make an order
it considers appropriate to facilitate the hearing and determination.
(6)
Without limiting the orders that may be made under subsection (5) , the court
may make an order that any order, or ruling or finding made by the
original judge, be set aside.
(7) The court hearing and determining a
proceeding afresh because of an order under this section may make the order it
considers appropriate about the costs of the first hearing.
