Victorian Consolidated Legislation

County Court Act 1958 - SECT 11

Appointment of acting judges

11. Appointment of acting judges



(1) The Governor in Council may appoint as many acting judges of the court as
are necessary for transacting the business of the court.





(2) A person is not eligible for appointment as an acting judge unless he or
she-

   (a)  has not attained the age of 75 years and is or has been a judge or
        magistrate of-

   (i)  the High Court of Australia or of a court created by the Parliament of
        the Commonwealth; or

   (ii) a court of Victoria or of another State or of the Northern Territory
        or the Australian Capital Territory; or

   (b)  has not attained the age of 70 years and has been admitted to legal
        practice in Victoria, another State, the Northern Territory or the
        Australian Capital Territory, or has been enrolled as a legal
        practitioner of the High Court of Australia, for not less than 5
        years.

(3) The instrument of appointment of a person as an acting judge must specify
the terms and conditions of appointment.

(4) The Attorney-General may from time to time, by notice in writing, require
an acting judge to undertake the duties of a judge on a full time or sessional
basis.

(5) The Attorney-General does not have the power to revoke or amend a notice
given under subsection (4).

(6) An acting judge of the court-

   (a)  has the same powers and jurisdiction as a judge of the court;

   (b)  is eligible for re-appointment as an acting judge of the court;

   (c)  ceases to hold office-

   (i)  at the end of 5 years from the date of his or her appointment; or

   (ii) on attaining the age of 70 years or, in the case of an acting judge of
        the court covered by subsection (2)(a), 75 years- whichever is the
        sooner;

   (d)  may only be removed from office in the same way and on the same
        grounds as a judge of the court is liable to be removed from office.

(7) Subject to subsection (8), each acting judge of the court, required to
undertake the duties of a judge on a full time basis, shall be paid a salary
at a rate no less than the rate for the time being applicable under the
Judicial Salaries Act 2004 to the holder of that office on other than an
acting basis.

(8) If an acting judge of the court, who is required to undertake the duties
of a judge on a full time basis, is entitled to-

   (a)  a non-contributory pension under a relevant Act within the meaning of
        section 16A of the State Superannuation Act 1988; or

   (b)  because he or she has held a public office in another jurisdiction, a
        non-contributory pension under any other law-

the amount of pension to which the acting judge is entitled shall be deducted
from the salary payable to that acting judge under subsection (7).

(9) Subject to subsection (10), each acting judge of the court, required to
undertake the duties of a judge on a sessional basis, shall be paid the
sessional rate for the time being applicable under the
Judicial Salaries Act 2004 to the holder of that office.

(10) An acting judge of the court who is required to undertake the duties of a
judge on a sessional basis and is entitled to-

   (a)  a non-contributory pension under a relevant Act within the meaning of
        section 16A of the State Superannuation Act 1988; or

   (b)  because he or she has held a public office in another jurisdiction, a
        non-contributory pension under any other law-

shall be paid a salary calculated in accordance with the following formula-

where- "S" means the sessional rate for the time being applicable under the
Judicial Salaries Act 2004 to the acting judge of the court; "P" means the
annual pension to which the acting judge is entitled that is referred to in
paragraph (a) or (b).

(11) Each acting judge shall be paid allowances at such rate or amount or of
such kind as are for the time being applicable under the
Judicial Salaries Act 2004.

(11A) An acting judge of the court may by notice in writing to the
Attorney-General enter into an arrangement under which the acting judge agrees
to receive the whole or part of his or her total amount of future salary
(whether or not payable at a sessional rate) as non-salary benefits of an
equivalent value.

(11B) The notice must specify a date from which the arrangement is to take
effect which must be the date on which the notice is given or a later date.

(11C) An acting judge of the court may vary or revoke a notice he or she has
given under subsection (11A) by notice in writing to the Attorney-General.

(11D) The notice of variation or revocation must specify a date from which the
variation or revocation is to take effect which must be the date on which the
notice is given or a later date.

(12) Except as provided by section 14(5)(aa), service as an acting judge of
the court does not count as service in the office of judge of the court for
the purposes of section 14.

(13) Except with the approval of the Attorney-General, an acting judge of the
court must not engage in legal practice, undertake paid employment or conduct
a business, trade or profession of any kind while undertaking the duties of a
judge.

(14) The following are to be paid out of the Consolidated Fund, which is
appropriated to the necessary extent-

   (a)  the amounts (including the amount of any non-salary benefits) payable
        to or for acting judges of the court; and

   (b)  premiums and other amounts payable under the
        Accident Compensation (WorkCover Insurance) Act 1993 in respect of
        those acting judges; and

   (c)  payroll tax payable under the Payroll Tax Act 2007 in respect of wages
        paid or payable to those acting judges; and

   (d)  tax payable under the Fringe Benefits Tax Act 1986 of the Commonwealth
        in respect of fringe benefits provided to those acting judges.

(15) If, before the commencement of section 8 of the Salaries Legislation
Amendment (Salary Sacrifice) Act 2008 (the 2008 Act), an acting judge of the
court entered into an arrangement under which the acting judge agreed to
receive the whole or part of his or her total amount of salary (whether or not
payable at a sessional rate) as an acting judge as non-salary benefits of an
equivalent value, that arrangement, by virtue of this subsection, has and is
deemed always to have had full effect according to its tenor as if it had been
authorised under this section.

(16) On and after the commencement of section 8 of the 2008 Act, an
arrangement referred to in subsection (15) may only be varied or revoked in
accordance with subsection (11C).

(17) In subsection (11A), non-salary benefits has the same meaning as it has
in clause 3(5) of Schedule 1A to the Public Administration Act 2004.



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