South Australian Consolidated Acts South Australian Consolidated Acts15—Constitution of Court
(1) Subject to this
section, the Senior Judge of the Court may determine, in relation to a
particular matter or matters, or particular classes of matters, that the Court
will be constituted of—
(a)
—
(i)
a Judge, a magistrate and not less than one commissioner;
or
(ii)
a Judge and not less than two commissioners,
(referred to as a "full bench"); or
(b) a
Judge, magistrate or commissioner sitting alone; or
(c) two
or more commissioners.
(1a) When sitting to
exercise its native title jurisdiction the Court must consist of, or include,
a legal practitioner of at least 5 years' standing.
(1b) If the Court,
when sitting to exercise its native title jurisdiction is to consist of, or
include, a commissioner or two or more commissioners, the commissioner or at
least one-half the number of the commissioners must be native
title commissioners.
(2) The Court will
only be constituted of a full bench if—
(a) the
parties appearing at a conference request that the Court be constituted of a
full bench; or
(b) the
Senior Judge of the Court is of the opinion that the questions to be
determined by the Court are of such importance that they should be determined
by a full bench of the Court.
(2a) The appointment
of a person as a commissioner on the basis of expertise in a particular field
or fields relevant to the exercise of jurisdiction under a particular Act does
not prevent the commissioner being a member of a full bench hearing a matter
or matters under another Act.
(3) Where the Court
is, at the commencement of a hearing, constituted of a full bench and a member
of the full bench dies or is for any reason unable to continue with the
hearing—
(a) if
the member is the Judge—another Judge may be appointed by the Senior
Judge of the Court to the full bench so that the bench may continue and
complete the hearing and determination of the proceedings; or
(b) in
any other case—the remaining members of the full bench may, if the Judge
so determines after consultation with the Senior Judge of the Court, continue
and complete the hearing and determination of the proceedings,
but otherwise the proceedings will be reheard.
(4) Where the Court
is, at the commencement of a hearing, constituted of two or more commissioners
and a commissioner dies or is for any other reason unable to continue with the
hearing, the remaining commissioner or commissioners may, if the Senior Judge
of the Court so determines, continue and complete the hearing and
determination of the proceedings, but otherwise the proceedings will be
reheard.
(5) Where proceedings
are reheard, the members of the Court rehearing the proceedings may, for the
purposes of those proceedings, have regard to any record of the proceedings
made for the purposes of the earlier proceedings (including a record of any
evidence taken in those proceedings).
(6) The Court may be
constituted of a Master for any purpose prescribed by a relevant Act or the
rules of the Court.
(7) The Court may be
constituted of a registrar—
(a) for
the purpose of adjourning proceedings; or
(b) for
any other purpose prescribed by the rules of the Court.
(8) The Court, when
constituted of a magistrate, commissioner, Master or registrar, may refer a
question of law for the decision of a Judge and, in that event, the Judge will
decide that question and may, in addition—
(a)
decide any other questions remaining between the parties; and
(b) make
such orders as are necessary to dispose of the matter.
(9) A decision or
order of a Judge pursuant to subsection (8) is a decision or order of the
Court.
(10) The following
provisions apply in relation to the decision-making of the Court where the
Court is constituted of two or more members:
(a)
where the Court is constituted as a full bench—
(i)
questions of law or procedure will be determined by the
Judge;
(ii)
other questions will be decided by majority decision of
the persons constituting the Court unless there is an equal division of
opinion, in which case, the decision of the Judge will be the decision of the
Court;
(b)
where the Court is constituted by two or more commissioners sitting without a
Judge, questions will be decided by majority decision of the commissioners
constituting the Court unless there is an equal division of opinion, in which
case, the matter will be determined by a Judge, or by an umpire appointed by a
Judge for the purpose of resolving the matter.
(11) The Court may, at
any one time, be separately constituted in accordance with this section for
the hearing and determination of any number of separate matters.
(12) The Court may, if
it considers it appropriate to do so, organise its business and regulate
proceedings before the Court in such a way that two or more proceedings in
respect of the same matter are heard together.
(13) Where other
provisions of this Act or the provisions of a relevant Act deal with the
manner in which the Court is to be constituted for the purposes of proceedings
or any other business under a relevant Act, this section applies subject to
those provisions.
(14) Where the Court
has jurisdiction to try a charge for any offence, the Court will be
constituted of—
(a) in
the case of a minor indictable offence—a Judge; or
(b) in
the case of a summary offence—a Judge or a magistrate.