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Western Australia
Acts Amendment (Court of Appeal) Bill 2004
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Supreme Court Act 1935
amended
3. The Act amended 3
4. Section 4 amended 3
5. Sections 6 and 7 replaced by sections 6, 7 and 7A, and
transitional provision 3
6. Section 9 amended 7
7. Sections 9A and 9B inserted 7
8. Section 10 amended 9
9. Section 10A inserted 9
10. Sections 10B and 10C inserted 10
11. Section 11A amended 11
12. Section 11B amended 11
13. Section 11C repealed 11
14. Section 13 amended 11
15. Section 20 replaced 11
16. Section 38 amended 12
17. Section 41 amended 12
18. Heading amended 12
19. Section 57 replaced 12
20. Section 58 amended 14
21. Section 59 amended 15
22. Section 60 amended 15
23. Section 61 replaced 15
24. Section 62 replaced 16
318--3 page i
Acts Amendment (Court of Appeal) Bill 2004
Contents
25. Section 155 amended 17
26. Section 167 amended 18
27. References to "Full Court" changed to "Court of
Appeal" 19
Part 3 -- Various other Acts amended
28. Bail Act 1982 amended 20
29. Children's Court of Western Australia Act 1988
amended 23
30. The Criminal Code amended 24
31. Criminal Procedure (Summary) Act 1902 amended 25
32. District Court of Western Australia Act 1969 amended 26
33. Interpretation Act 1984 amended 27
34. Judges' Retirement Act 1937 amended 28
35. Judges' Salaries and Pensions Act 1950 amended 29
36. Justices Act 1902 amended 31
Part 4 -- Minor amendments to various
Acts
37. Various Acts amended 33
Part 5 -- Transitional provisions
38. Appeals pending before Full Court or Court of
Criminal Appeal 34
39. References to "Full Court" or "Court of Criminal
Appeal" to be read as references to "Court of Appeal" 34
Schedule 1 -- Minor amendments to
various Acts 35
Division 1 -- Amendments not affected by impending
legislation 35
1. Adoption Act 1994 35
2. Constitution Acts Amendment Act 1899 35
3. Corporations (Western Australia) Act 1990 35
4. Criminal Injuries Compensation Act 2003 35
5. Family Court Act 1997 35
6. Federal Courts (State Jurisdiction) Act 1999 36
7. Guardianship and Administration Act 1990 36
8. Income Tax Assessment Act 1937 36
9. Jurisdiction of Courts (Cross-vesting) Act 1987 36
page ii
Acts Amendment (Court of Appeal) Bill 2004
Contents
10. Katanning Electricity Supply Undertaking Acquisition
Act 1961 36
11. Legal Aid Commission Act 1976 37
12. Legal Practice Act 2003 37
13. Liquor Licensing Act 1988 37
14. Mining Act 1978 38
15. Newspaper Libel and Registration Act 1884
Amendment Act 1888 38
16. Prisons Act 1981 38
17. Prostitution Act 2000 38
18. Public Notaries Act 1979 38
19. Restraining Orders Act 1997 39
20. Salaries and Allowances Act 1975 39
21. Sentencing Act 1995 39
Division 2 -- Amendments that may be affected by
impending legislation 39
22. Land Administration Act 1997 39
23. Legal Practice Act 2003 40
24. Local Courts Act 1904 40
25. Magistrates Court (Civil Proceedings) Act 2004
[261--2] 40
26. Royal Commissions Act 1968 40
27. State Administrative Tribunal Act 2004 [213--2] 41
28. Workers' Compensation and Rehabilitation Act 1981 41
29. Workers' Compensation and Injury Management
Act 1981 41
page iii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during committee)
Acts Amendment (Court of Appeal) Bill 2004
A Bill for
An Act --
· to amend the Supreme Court Act 1935 to establish the Court of
Appeal; and
· to amend various Acts as a consequence of establishing the Court
of Appeal,
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Acts Amendment (Court of Appeal) Bill 2004
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Acts Amendment (Court of
Appeal) Act 2004.
5 2. Commencement
(1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for
section 6(2), 14, 20, 28, 31 or 36 or for Schedule 1 Division 2 or
for any amendment in a Table to or in any of those provisions.
10
page 2
Acts Amendment (Court of Appeal) Bill 2004
Supreme Court Act 1935 amended Part 2
s. 3
Part 2 -- Supreme Court Act 1935 amended
3. The Act amended
The amendments in this Part are to the Supreme Court
Act 1935*.
5 [* Reprinted as at 9 February 2001.
For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 381-2.]
4. Section 4 amended
Section 4(1) is amended as follows:
10 (a) by deleting the definition of "Full Court";
(b) by inserting in the appropriate alphabetical positions the
following definitions --
"
"Court of Appeal" means the division of the Supreme
15 Court referred to in section 7(1)(b).
"Court of Appeal Registrar" means the Court of
Appeal Registrar appointed as described in
section 155(1) and includes a duly appointed
acting Court of Appeal Registrar.
20 "judge of appeal" means a judge of the Supreme
Court who also holds a commission as a judge of
appeal.
"President" means the President of the Court of
Appeal.
25 ".
5. Sections 6 and 7 replaced by sections 6, 7 and 7A, and
transitional provision
(1) Sections 6 and 7 are repealed and the following sections are
inserted instead --
page 3
Acts Amendment (Court of Appeal) Bill 2004
Part 2 Supreme Court Act 1935 amended
s. 5
"
6. Supreme Court of Western Australia
(1) The previously established court called the Supreme
Court of Western Australia continues in existence for
5 the State of Western Australia.
(2) The Court is a superior court of record.
(3) The Court consists of --
(a) any judge holding office under an appointment
made under section 7A(1);
10 (b) any acting judge holding office under an
appointment made under section 11;
(c) any auxiliary judge holding office under an
appointment made under section 11AA;
(d) any commissioner holding office under an
15 appointment made under section 49;
(e) any master holding office under an appointment
made under section 11A; and
(f) any acting master holding office under an
appointment made or deemed to have been
20 made under section 11D.
7. Divisions of the Court
(1) The exercise of the Court's jurisdiction is divided
between --
(a) the General Division; and
25 (b) the Court of Appeal.
(2) The General Division consists of --
(a) the Chief Justice;
(b) each other judge who is not either the President
or a judge of appeal;
page 4
Acts Amendment (Court of Appeal) Bill 2004
Supreme Court Act 1935 amended Part 2
s. 5
(c) any judge of appeal who under section 10C is
approved to sit in the General Division;
(d) any acting judge holding office under an
appointment made under section 11;
5 (e) any auxiliary judge holding office under an
appointment made under section 11AA;
(f) any commissioner holding office under an
appointment made under section 49;
(g) any master holding office under an appointment
10 made under section 11A; and
(h) any acting master holding office under an
appointment made or deemed to have been
made under section 11D.
(3) The Court of Appeal consists of --
15 (a) the Chief Justice;
(b) the President;
(c) each other judge of appeal; and
(d) any other judge, and any acting judge or
auxiliary judge, who under section 10B(1)
20 or (2) is authorised to act as a judge of appeal.
(4) The General Division exercises all of the jurisdiction of
the Supreme Court other than the jurisdiction referred
to in section 58(1).
(5) The Chief Justice is the principal judicial officer of the
25 Supreme Court including the Court of Appeal.
(6) Subject to the Chief Justice's directions, the President
is responsible for the administration of the Court of
Appeal including its sitting dates.
page 5
Acts Amendment (Court of Appeal) Bill 2004
Part 2 Supreme Court Act 1935 amended
s. 5
7A. Appointment of judges, judges of appeal, Chief
Justice and President
(1) The Governor may appoint a duly qualified person to
be a judge of the Supreme Court.
5 (2) The Governor may appoint as many judges of the
Supreme Court as are needed to deal with the workload
of the Supreme Court.
(3) The Governor may appoint a judge of the Supreme
Court to be also a judge of appeal.
10 (4) The Governor may appoint as many judges of appeal as
are needed to deal with the workload of the Court of
Appeal.
(5) The Governor may appoint one of the judges of the
Supreme Court to be also the Chief Justice of Western
15 Australia.
(6) The Governor may appoint one of the judges of appeal
to be also the President of the Court of Appeal.
(7) A person cannot hold both the office of Chief Justice
and the office of President.
20 (8) A person who does not hold the office of judge cannot
be appointed to be, and cannot hold the office of, Chief
Justice, President or judge of appeal.
(9) A person may be appointed as the Chief Justice at the
time of being appointed as a judge or afterwards.
25 (10) A person may be appointed as the President or as a
judge of appeal at the time of being appointed as a
judge or afterwards.
(11) The appointment of a judge, a judge of appeal, the
Chief Justice, or the President, is to be by a
30 commission under the Public Seal of the State issued
by the Governor.
".
page 6
Acts Amendment (Court of Appeal) Bill 2004
Supreme Court Act 1935 amended Part 2
s. 6
(2) A person who holds any of the offices of which the Court
consists immediately before the coming into operation of
subsection (1) continues to hold the corresponding office in the
General Division when subsection (1) comes into operation.
5 6. Section 9 amended
(1) After section 9(1) the following subsections are inserted --
"
(1a) All judges of appeal, the Chief Justice and the
President shall hold their offices while they hold office
10 as a judge, subject to section 9A(2), (3) and (4).
(1b) A person cannot be removed from the office of judge
of appeal or Chief Justice or President except by
removing the person from the office of judge.
".
15 (2) Section 9(2) is amended by inserting after "Court" --
" or a judge of appeal ".
7. Sections 9A and 9B inserted
After section 9 the following sections are inserted --
"
20 9A. Resignation of judges
(1) This section is in addition to and does not affect the
operation of the Judges' Retirement Act 1937.
(2) With the Governor's approval a person may resign
from the office of Chief Justice, President, or judge of
25 appeal, without resigning from the office of judge.
(3) With the Governor's approval a person may resign
from the office of President without resigning from the
office of judge of appeal.
page 7
Acts Amendment (Court of Appeal) Bill 2004
Part 2 Supreme Court Act 1935 amended
s. 7
(4) With the Governor's approval a person may resign
from the office of Chief Justice without resigning from
the office of judge of appeal.
9B. Seniority
5 (1) Judges in the General Division have seniority
according to the following order --
(a) the Chief Justice;
(b) the other judges, excluding the judges of
appeal, according to the dates of their
10 commissions of appointment as judges.
(2) Judges of appeal have seniority according to the
following order --
(a) the Chief Justice;
(b) the President;
15 (c) the other judges of appeal according to the
dates of their commissions of appointment as
judges of appeal.
(3) Masters have seniority according to the dates of their
commissions of appointment as masters.
20 (4) If 2 or more persons receive commissions dated the
same day, their seniority as between them is to be
determined --
(a) according to the dates on which they begin in
office; or
25 (b) if they are to begin in office on the same day,
by the Governor when appointing them.
(5) For the purposes of any other written law or any matter
connected with the administration of the State, the
seniority of judges is to be determined under
30 subsections (1) and (4).
".
page 8
Acts Amendment (Court of Appeal) Bill 2004
Supreme Court Act 1935 amended Part 2
s. 8
8. Section 10 amended
(1) Section 10(1) is amended by inserting after "senior Judge" at
the end of the subsection --
" in the General Division ".
5 (2) Section 10(2) is amended by inserting after "devolve upon the
Judge" --
" in the General Division ".
9. Section 10A inserted
After section 10 the following section is inserted --
10 "
10A. Acting President
(1) During any vacancy in the office of President, or when
and so often as the President is absent on leave or in
consequence of sickness, or for any reason is
15 temporarily unable to perform the duties of his office,
all the duties and powers of the President shall during
such vacancy, absence, or inability devolve upon the
senior judge of appeal other than the Chief Justice.
(2) In the case of the absence or inability of the judge of
20 appeal upon whom the powers and duties of the
President devolve under subsection (1), such powers
and duties shall during such absence or inability
devolve upon the judge of appeal who is next in
seniority.
25 (3) Where the office of President is vacant or the President
is, or is expected to be, absent or for any reason unable
to perform the duties of his office, the Governor by
commission under the Public Seal of the State may
appoint a judge of appeal to act in the office of
30 President for such period as the Governor thinks fit and
specifies in the commission.
".
page 9
Acts Amendment (Court of Appeal) Bill 2004
Part 2 Supreme Court Act 1935 amended
s. 10
10. Sections 10B and 10C inserted
Before section 11 the following sections are inserted --
"
10B. Acting judges of appeal
5 (1) If the Chief Justice and the President agree that the
Court of Appeal needs an acting judge of appeal, the
Chief Justice in writing may authorise a judge, acting
judge, or auxiliary judge, who is willing to do so, to act
as a judge of appeal for a period specified in the
10 authorisation of not more than 6 months.
(2) If --
(a) the Chief Justice and the President agree that a
particular judge, acting judge or auxiliary judge
should act as a judge of appeal in a particular
15 proceeding before the Court of Appeal; and
(b) the particular judge, acting judge or auxiliary
judge is willing to do so,
the Chief Justice in writing may authorise the judge,
acting judge, or auxiliary judge to do so.
20 (3) A judge, acting judge, or auxiliary judge who is
authorised to act as a judge of appeal under this section
has the same powers and may exercise the same
jurisdiction as a judge of appeal.
(4) An acting judge of appeal may complete any
25 proceeding that is pending before him as an acting
judge of appeal immediately before he ceases to be an
acting judge of appeal.
10C. Judge of appeal may sit in General Division if
approved
30 A judge of appeal may sit in the General Division with
the prior approval of the Chief Justice given after
consulting the President.
".
page 10
Acts Amendment (Court of Appeal) Bill 2004
Supreme Court Act 1935 amended Part 2
s. 11
11. Section 11A amended
(1) Section 11A(2)(b) is amended by inserting after "Principal
Registrar" --
" or the Court of Appeal Registrar ".
5 (2) Section 11A(5) is repealed.
12. Section 11B amended
Section 11B(4) and (5) are repealed.
13. Section 11C repealed
Section 11C is repealed.
10 14. Section 13 amended
Section 13 is amended by deleting "be a Judge, an acting Judge,
an auxiliary Judge, a Master, an acting Master, or a
commissioner, of the Court," and inserting instead --
"
15 an office referred to in section 6(3) or to the office of
judge of appeal, Chief Justice or President,
".
15. Section 20 replaced
Section 20 is repealed and the following section is inserted
20 instead --
"
20. Appellate jurisdiction
(1) The Supreme Court has jurisdiction to hear and
determine any application, or any appeal, whether by
25 case stated or otherwise, that the Court or a Judge is
empowered by a written law to hear and determine.
(2) Any such application or appeal must be heard and
determined subject to the written law concerned.
".
page 11
Acts Amendment (Court of Appeal) Bill 2004
Part 2 Supreme Court Act 1935 amended
s. 16
16. Section 38 amended
Section 38 is amended as follows:
(a) by inserting before "The Supreme" the subsection
designation " (1) ";
5 (b) by inserting the following subsection --
"
(2) Two or more sittings of the Court may be conducted at
the same time.
".
10 17. Section 41 amended
Section 41(3) is amended by inserting after "chambers" --
"
or, if this or another Act or the Rules of Court confer
any of that jurisdiction on a Master, by a single Master,
15 whether sitting in court or in chambers
".
18. Heading amended
The heading immediately before section 57 is amended by
deleting "Full Court" and inserting instead --
20 " Court of Appeal ".
19. Section 57 replaced
Section 57 is repealed and the following section is inserted
instead --
"
25 57. Court of Appeal, constitution of
(1) The Court of Appeal shall be constituted by 2 or more
judges of appeal.
page 12
Acts Amendment (Court of Appeal) Bill 2004
Supreme Court Act 1935 amended Part 2
s. 19
(2) When hearing and determining an application or appeal
under Chapter LXIX of The Criminal Code the Court
of Appeal shall be constituted --
(a) if the application or appeal relates solely to a
5 sentence imposed for an offence, by 2 or more
of the judges of appeal;
(b) otherwise, by an uneven number of the judges
of appeal being not less than 3.
(3) If a judge of appeal's judgment or decision is the
10 subject of an appeal to the Court of Appeal, the court
shall not be constituted so as to include the judge.
(4) When the Court of Appeal is constituted by 3 or more
judges of appeal to hear and determine --
(a) an appeal that is not under Chapter LXIX of
15 The Criminal Code; or
(b) an appeal that is under Chapter LXIX of The
Criminal Code and relates solely to a sentence
imposed for an offence,
and one or more of the judges for any reason becomes
20 unable to continue as a member of the court for the
purpose of hearing and determining the appeal, the
remaining judges may continue to hear and determine
the appeal if not less than 2 judges remain and all
parties to the appeal consent.
25 (5) When the Court of Appeal is sitting, the presiding
judge of appeal is --
(a) if the court is constituted so as to include the
Chief Justice, the Chief Justice;
(b) if the court is constituted so as to not include
30 the Chief Justice but to include the President,
the President;
page 13
Acts Amendment (Court of Appeal) Bill 2004
Part 2 Supreme Court Act 1935 amended
s. 20
(c) if the court is constituted so as to not include
either the Chief Justice or the President, the
senior judge of appeal.
(6) For the purposes of delivering judgment in an
5 appeal --
(a) despite subsections (1) to (4), the Court of
Appeal may be constituted by any one or more
judges of appeal, none of whom needs to have
been a member of the court when it heard the
10 appeal;
(b) the written judgment of any of the judges of
appeal before whom the appeal was heard may
be made public by any judge of appeal; and
(c) a judgment delivered in accordance with this
15 subsection has the same effect as if each
member of the Court of Appeal that heard the
appeal had been present in court and delivered
his judgment in person.
".
20 20. Section 58 amended
Section 58(1) is amended as follows:
(a) by deleting "Full Court" in each place it occurs and in
each place inserting instead --
" Court of Appeal ";
25 (b) by deleting paragraph (g) and inserting --
"
(f) applications and appeals under Chapter LXIX
of The Criminal Code to the Court of Appeal;
";
page 14
Acts Amendment (Court of Appeal) Bill 2004
Supreme Court Act 1935 amended Part 2
s. 21
(c) by deleting paragraph (h) and inserting --
"
(g) appeals under Part VIII of the Criminal
Procedure (Summary) Act 1902 that are
5 ordered to be dealt with by the Court of Appeal;
(h) applications and appeals under Part VIII of the
Criminal Procedure (Summary) Act 1902 from
a judge to the Court of Appeal;
";
10 (d) by deleting paragraph (i) and inserting instead --
"
(i) appeals to the Court of Appeal under the
Magistrates Court (Civil Proceedings)
Act 2003;
15 ";
(e) be deleting paragraph (j).
21. Section 59 amended
Section 59(6) is amended by deleting "relating to appeals from a
Judge to a Full Court".
20 22. Section 60 amended
Section 60(1)(f)(iv) and (v), and "and" after paragraph (v), are
deleted and the following is inserted instead --
" and ".
23. Section 61 replaced
25 Section 61 is repealed and the following section is inserted
instead --
"
61. Powers of single judge of appeal and master
(1) In relation to an appeal or application before the Court
30 of Appeal, a single judge of appeal may exercise any
page 15
Acts Amendment (Court of Appeal) Bill 2004
Part 2 Supreme Court Act 1935 amended
s. 24
jurisdiction or powers of the Court of Appeal that are
conferred on a single judge of appeal by Rules of
Court.
(2) In relation to an appeal or application before the Court
5 of Appeal, a master may exercise any jurisdiction or
powers of the Court of Appeal that are conferred on a
master by Rules of Court.
(3) A person who is dissatisfied with a decision or order
made by a single judge of appeal or a master may apply
10 to the Court of Appeal to set aside or vary the decision
or order.
(4) Any decision or order made by a single judge of appeal
or a master may be set aside or varied by the Court of
Appeal.
15 ".
24. Section 62 replaced
Section 62 is repealed and the following section is inserted
instead --
"
20 62. Divided decisions, effect of
(1) If the judges of appeal constituting the Court of Appeal
are divided on the decision to be given on a question,
the question shall be decided according to the decision
of the majority, if there is a majority.
25 (2) If the Court of Appeal is constituted by more than
3 judges of appeal and they are equally divided on the
decision to be given on a question, the question shall be
decided according to the decision of the presiding
judge of appeal.
page 16
Acts Amendment (Court of Appeal) Bill 2004
Supreme Court Act 1935 amended Part 2
s. 25
(3) If the Court of Appeal is constituted by 2 judges of
appeal and they are divided on the decision to be given
on a question --
(a) any party to the appeal may, within one month
5 after the date the judgments are delivered, serve
the Court of Appeal Registrar and each other
party with a written notice requiring the appeal
to be reheard by the Court of Appeal
constituted by 3 or more judges of appeal;
10 (b) if the appeal is against a judgment or order of a
court other than the Supreme Court, either or
both of the 2 judges of appeal may, of their own
motion, order the appeal to be reheard by the
Court of Appeal constituted by 3 or more
15 judges of appeal.
(4) If a party gives notice under subsection (3)(a) or an
order is made under subsection (3)(b) the appeal shall
be reheard by the Court of Appeal constituted by 3 or
more judges of appeal.
20 (5) If no party gives notice under subsection (3)(a) or if no
order is made under subsection (3)(b), the appeal shall
not be reheard and the judgment or order against which
the appeal was taken shall remain unaltered.
".
25 25. Section 155 amended
(1) Section 155(1) is amended by inserting after "Registrar" --
" , a Court of Appeal Registrar, ".
page 17
Acts Amendment (Court of Appeal) Bill 2004
Part 2 Supreme Court Act 1935 amended
s. 26
(2) Section 155(3) is repealed and the following subsection is
inserted instead --
"
(3) In relation to appeals, applications, causes, matters or
5 proceedings within the jurisdiction of the Court of
Appeal --
(a) the Court of Appeal Registrar shall have all the
duties, including the taxation of costs, that are
conferred on Registrars under this or any other
10 Act or on the Court of Appeal Registrar by
Rules of Court; and
(b) a reference to the Principal Registrar or a
Registrar is to be taken to be a reference to the
Court of Appeal Registrar, unless the context
15 requires otherwise.
".
26. Section 167 amended
Section 167(1) is amended as follows:
(a) by inserting after paragraph (b) the following
20 paragraphs --
"
(ba) For conferring on a single judge of appeal,
either generally or in particular cases and under
such circumstances and on such conditions as
25 are prescribed, such of the jurisdiction and
powers of the Court of Appeal as the rules
specify.
(bb) For conferring on a master or the Court of
Appeal Registrar, either generally or in
30 particular cases and under such circumstances
and on such conditions as are prescribed, such
of the jurisdiction and powers of the Court of
Appeal as the rules specify.
";
page 18
Acts Amendment (Court of Appeal) Bill 2004
Supreme Court Act 1935 amended Part 2
s. 27
(b) by inserting after paragraph (i) the following
paragraph --
"
(ia) For allowing the Court of Appeal to review any
5 decision made by a single judge of appeal or
the Court of Appeal Registrar.
";
(c) in paragraph (j) by deleting "from inferior courts".
27. References to "Full Court" changed to "Court of Appeal"
10 The Act is amended in each provision listed in the Table to this
section by deleting "Full Court" wherever it appears and in each
place inserting instead --
" Court of Appeal ".
Table
s. 41(1) s. 59(1) s. 60(1)
s. 43(1) s. 59(4) s. 60(3)
s. 43(2) s. 59(5)
s. 58(2) s. 59(6)
page 19
Acts Amendment (Court of Appeal) Bill 2004
Part 3 Various other Acts amended
s. 28
Part 3 -- Various other Acts amended
28. Bail Act 1982 amended
(1) The amendments in this section are to the Bail Act 1982*.
[* Reprinted as at 27 August 1999.
5 For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 28 and
Acts Nos. 50 of 2003 and 4 of 2004.]
(2) Section 52(2)(a) is deleted and the following paragraphs are
inserted instead --
10 "
(a) by a judge of the Supreme Court in any case
where the defendant was bound to appear
before the General Division of the Supreme
Court;
15 (ab) by a judge of appeal in any case where the
defendant was bound to appear before the Court
of Appeal;
".
(3) Section 53 is repealed and the following section is inserted
20 instead --
"
53. Appeals against decisions made under s. 52
(1) A person who is dissatisfied with a decision (as defined
in section 4 of the Criminal Procedure (Summary)
25 Act 1902) made under section 52 may, with the leave
of the Court of Appeal, appeal against it.
(2) For the purposes of subsection (1), Part VIII of the
Criminal Procedure (Summary) Act 1902, with any
necessary changes, applies as if --
30 (a) the decision referred to in subsection (1) were a
decision of a court of summary jurisdiction;
page 20
Acts Amendment (Court of Appeal) Bill 2004
Various other Acts amended Part 3
s. 28
(b) a reference in that Part to a court of summary
jurisdiction were a reference to the court that
made the decision referred to in subsection (1);
and
5 (c) a reference in that Part to commencing an
appeal were a reference to applying for leave to
appeal.
(3) Despite section 195A of the Criminal Procedure
(Summary) Act 1902, the appeal is to be dealt with by
10 the Court of Appeal.
".
(4) The Act is amended as set out in the Table to this section.
Table
s. 3(1) In the definition of "appropriate judicial officer", delete
paragraph (b) and insert instead --
"
(b) if the court is the Court of Appeal, means a judge of
appeal;
".
In the definition of "court", delete paragraphs (f) and (g) and
insert instead --
"
(f) the Court of Appeal;
".
s. 7A(1) In paragraph (a), delete "Full Court" in the first 3 places
where it occurs and in each place insert instead --
" Court of Appeal ".
In paragraph (a), delete "the Full Court" in the fourth place
where it occurs and insert instead --
" a judge of appeal ".
s. 15(1)(b) Delete "Full Court or the Court of Criminal Appeal" and
insert instead --
" Court of Appeal ".
page 21
Acts Amendment (Court of Appeal) Bill 2004
Part 3 Various other Acts amended
s. 28
s. 52(1) Delete "Court of Criminal Appeal, the Full Court of the
Supreme Court, the Supreme Court constituted by a single
Judge," and insert instead --
" Supreme Court ".
s. 52(3)(a) After "subsection (2)(a)" insert --
" or (ab) ".
Sch. 1 Pt. A Delete the content of the Second Column and insert instead --
cl. 4(a) "
If the appeal is being
determined by a single
judge, a single judge;
If the appeal is being
determined by the Court of
Appeal, the Court of Appeal
or a single judge of appeal;
".
Sch. 1 Pt. A In the First Column, before "appeal" insert --
cl. 4(b) " application for leave to appeal or an ".
Delete the content of the Second Column and insert instead --
"
The Court of Appeal or a
single judge of appeal;
".
Sch. 1 Pt. A Delete the content of the Second Column and insert instead --
cl. 4(d) "
The Court of Appeal or a
single judge of appeal;
".
page 22
Acts Amendment (Court of Appeal) Bill 2004
Various other Acts amended Part 3
s. 29
Sch. 1 Pt. A Delete the content of the Second Column and insert instead --
cl. 4(e)(i) "
If the appeal was determined
by a single judge, a single
judge;
If the appeal was determined
by the Court of Appeal, the
Court of Appeal or a single
judge of appeal;
".
Sch. 1 Pt. A Delete the content of the Second Column and insert instead --
cl. 4(e)(ii) "
The Court of Appeal or a
single judge of appeal;
".
Sch. 1 Pt. A Delete the content of the Second Column and insert instead --
cl. 4(f) "
The Court of Appeal or a
single judge of appeal;
".
29. Children's Court of Western Australia Act 1988 amended
(1) The amendments in this section are to the Children's Court of
Western Australia Act 1988*.
[* Reprinted as at 25 August 2000.
5 For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 54 and
Act No. 4 of 2004.]
(2) The Act is amended as set out in the Table to this section.
Table
s. 3 Delete the definition of "Court of Criminal Appeal".
Delete the definition of "Full Court".
page 23
Acts Amendment (Court of Appeal) Bill 2004
Part 3 Various other Acts amended
s. 30
s. 40(8) In each provision, delete "Full Court" and insert instead --
s. 43(1) " Court of Appeal ".
s. 43(3)
s. 43(4)
s. 43(2) Delete "Full Court" in the first place it occurs and insert
instead --
" Court of Appeal ".
Delete "and for the purposes of such appeals, the Full Court
has the powers of the Court of Criminal Appeal".
30. The Criminal Code amended
(1) The amendments in this section are to The Criminal Code*.
[* Reprint 10 as at 7 February 2003 (see the Schedule to the
Criminal Code Act 1913 appearing as Appendix B to the
5 Criminal Code Act Compilation Act 1913).
For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 95 and
Acts Nos. 50 of 2003 and 4 of 2004.]
(2) Section 687(1) is amended as follows:
10 (a) by deleting "Full Court (as defined by section 57 of the
Supreme Court Act 1935)" and inserting instead --
" Court of Appeal ";
(b) by deleting ", and the expression Court of Criminal
Appeal in this Code shall mean the said Full Court".
15 (3) Section 687(2), (4), (5), (6) and (7) are repealed.
(4) Section 702 is repealed.
(5) Section 703 is amended by inserting after the last paragraph the
following paragraph --
"
20 The expression "Registrar" means the Court of Appeal
Registrar appointed under the Supreme Court Act 1935.
".
page 24
Acts Amendment (Court of Appeal) Bill 2004
Various other Acts amended Part 3
s. 31
(6) The Criminal Code is amended in each provision listed in the
Table to this section by deleting "Court of Criminal Appeal"
wherever it appears and in each place inserting instead --
" Court of Appeal ".
5 Table
s. 655 s. 691(2) s. 694(2)
s. 687(3) s. 693(1) s. 695(1)
s. 688(1) s. 693(1a) s. 696
s. 688(1a) s. 693(2) s. 697
s. 688(2) s. 693(3) s. 699(1)
s. 689(1) s. 693A(1) s. 703
s. 689(2) s. 693A(2) s. 747
s. 689(3) s. 693A(3)
s. 689(4) s. 693A(4)
31. Criminal Procedure (Summary) Act 1902 amended
(1) The amendments in this section are to the Criminal Procedure
(Summary) Act 1902*.
[* Reprint 14 as at 16 May 2003.
10 For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 203 and
Acts Nos. 50 of 2003 and 4 of 2004.]
(2) Section 183 is amended by deleting the definition of "Full
Court".
15 (3) Section 195A(1) is amended by inserting after "Judge" --
" sitting in the General Division of the Supreme Court ".
page 25
Acts Amendment (Court of Appeal) Bill 2004
Part 3 Various other Acts amended
s. 32
(4) Section 206A(3) is repealed and the following subsections are
inserted instead --
"
(3) An application for leave to appeal must be made to the
5 Court of Appeal constituted by a single judge of
appeal.
(3a) If a single judge of appeal refuses an application for
leave to appeal, the applicant may apply to the Court of
Appeal to set aside the refusal and determine the
10 application afresh.
".
(5) The Act is amended in each provision listed in the Table to this
section by deleting "Full Court" wherever it appears and in each
place inserting instead --
15 " Court of Appeal ".
Table
s. 195A(2) s. 199(1)(e) s. 206A(1)
32. District Court of Western Australia Act 1969 amended
(1) The amendments in this section are to the District Court of
Western Australia Act 1969*.
20 [* Reprinted as at 19 January 2001.
For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 108.]
(2) Section 79(1a) is repealed and the following subsection is
inserted instead --
25 "
(1a) Notwithstanding anything in this section, an appeal to
the Court of Appeal in respect of a judgment, order or
determination in proceedings in the Court under the
Commercial Arbitration Act 1985 may be made only
30 by leave of the Court of Appeal.
".
page 26
Acts Amendment (Court of Appeal) Bill 2004
Various other Acts amended Part 3
s. 33
(3) Section 79(2) is repealed and the following subsection is
inserted instead --
"
(2) An appeal under this section shall be made in the same
5 way as an appeal from a judgment or order of the
Supreme Court or a Judge thereof, may be made to the
Court of Appeal, and in all respects the practice and
procedure of the Court of Appeal in the appeal shall be
the same as though the appeal were an appeal to the
10 Court of Appeal from a judgment or order of the
Supreme Court or a Judge thereof.
".
(4) The Act is amended as set out in the Table to this section.
Table
s. 49 Delete "Full Court sitting as a Court of criminal appeal" and
insert instead --
" Court of Appeal ".
s. 79(1)(a) Delete "Full Court constituted under the Supreme Court
Act 1935" and insert instead --
" Court of Appeal ".
s. 79(1)(b) Delete "Supreme Court or a Judge thereof, appeal to such Full
Court" and insert instead --
" Court of Appeal, appeal to the Court of Appeal ".
s. 79(3) In each provision, delete "Full Court" and insert instead --
s. 79(4) " Court of Appeal ".
15 33. Interpretation Act 1984 amended
(1) The amendment in this section is to the Interpretation
Act 1984*.
[* Reprint 4 as at 6 February 2004.
For subsequent amendments see Act No. 4 of 2004.]
page 27
Acts Amendment (Court of Appeal) Bill 2004
Part 3 Various other Acts amended
s. 34
(2) Section 5 is amended by inserting in the appropriate
alphabetical position the following definition --
"
"Court of Appeal" means the Court of Appeal
5 established under the Supreme Court Act 1935;
".
34. Judges' Retirement Act 1937 amended
(1) The amendment in this section is to the Judges' Retirement
Act 1937*.
10 [* Reprint 2 as at 5 December 2003.]
(2) Section 2 is amended in the definition of "Judge" as follows:
(a) by inserting after paragraph (a) the following
paragraph --
"
15 (aa) President of the Court of Appeal; or
";
(b) by inserting after paragraph (c) the following
paragraph --
"
20 (ca) Master or acting Master of the Supreme
Court of Western Australia; or
".
(3) Section 3 is amended as follows:
(a) by deleting ", save for the purpose of completing the
25 trial of any action as next hereinafter provided, and such
office may, notwithstanding the pendency of any such
trial, be filled by the appointment of any qualified
person";
page 28
Acts Amendment (Court of Appeal) Bill 2004
Various other Acts amended Part 3
s. 35
(b) in the first proviso by deleting "the trial of any action
which he had entered upon and had not completed
before" and inserting instead --
"
5 the hearing and determination of any action, cause,
matter, trial or proceeding that was pending before him
immediately before
".
(4) After section 3 the following section is inserted --
10 "
4. Resignation of judges
(1) A Judge may at any time resign from office by giving
his written and signed resignation to the Governor.
(2) If the Governor agrees to the resignation, it takes effect
15 on the day on which the Governor agrees to it or on
any later day that it may specify.
(3) A Judge who resigns from office may complete the
hearing and determination of any action, cause, matter,
trial or proceeding that was pending before him
20 immediately before his resignation took effect and for
that purpose the Judge's appointment is to be taken to
be extended until he has done so.
".
35. Judges' Salaries and Pensions Act 1950 amended
25 (1) The amendments in this section are to the Judges' Salaries and
Pensions Act 1950*.
[* Reprint 5 as at 19 September 2003.
For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 197.]
page 29
Acts Amendment (Court of Appeal) Bill 2004
Part 3 Various other Acts amended
s. 35
(2) Section 2 is amended by inserting after the definition of
"retirement" the following definition --
"
"Senior Puisne Judge" means the senior Judge of the
5 Supreme Court who is neither the Chief Justice of
Western Australia, the President of the Court of
Appeal nor a judge of appeal;
".
(3) Section 3 is amended as follows:
10 (a) by inserting after "Australia" in the first place where it
occurs --
" , the President of the Court of Appeal ";
(b) by deleting "section 7" and inserting instead --
" section 7A ".
15 (4) Section 5(1) is repealed and the following subsection is inserted
instead --
"
(1) The rate of the annual salary payable to a Judge while
his commission remains in force shall be determined
20 from time to time under section 7 of the Salaries and
Allowances Act 1975 but --
(a) the rate of the annual salary payable to the
President of the Court of Appeal shall not
exceed that payable to the Chief Justice of
25 Western Australia;
(b) the rate of the annual salary payable to the
senior judge of appeal, other than the Chief
Justice of Western Australia and the President
of the Court of Appeal, shall not exceed that
30 payable to the Senior Puisne Judge.
".
page 30
Acts Amendment (Court of Appeal) Bill 2004
Various other Acts amended Part 3
s. 36
(5) Section 5(1a) is amended by deleting "section 7(1)(a)" and
inserting instead --
" section 7A(5) ".
(6) After section 5(1a) the following subsection is inserted --
5 "
(1aa) A judge of appeal who is appointed to act in the office
of President under section 10A(3) of the Supreme
Court Act 1935 shall be entitled, for so long as his
commission remains in force, to be remunerated and to
10 receive other allowances and reimbursements as if he
had been appointed substantively to the office of
President under section 7A(6) of the Supreme Court
Act 1935.
".
15 (7) After section 5(3) the following subsections are inserted --
"
(4) A person who holds more than one office under the
Supreme Court Act 1935 is entitled to the rate of
annual salary of only one of those offices.
20 (5) If a Judge is appointed to be also a judge of appeal and
as a result ceases to be the Senior Puisne Judge, he is
entitled to retain the rate of annual salary of the Senior
Puisne Judge if that rate is higher than his rate of
annual salary as a judge of appeal.
25 ".
36. Justices Act 1902 amended
(1) The amendments in this section are to the Justices Act 1902*.
[* Reprint 14 as at 16 May 2003.
For subsequent amendments see Western Australian
30 Legislation Information Tables for 2003, Table 1, p. 203 and
Acts Nos. 50 of 2003 and 4 of 2004.]
page 31
Acts Amendment (Court of Appeal) Bill 2004
Part 3 Various other Acts amended
s. 36
(2) Section 183 is amended by deleting the definition of "Full
Court".
(3) Section 187(3)(a) is amended by inserting after "Judge" --
" sitting in the General Division of the Supreme Court ".
5 (4) Section 206A(3) is repealed and the following subsections are
inserted instead --
"
(3) An application for leave to appeal must be made to the
Court of Appeal constituted by a single judge of
10 appeal.
(3a) If a single judge of appeal refuses an application for
leave to appeal, the applicant may apply to the Court of
Appeal to set aside the refusal and determine the
application afresh.
15 ".
(5) The Act is amended in each provision listed in the Table to this
section by deleting "Full Court" wherever it appears and in each
place inserting instead --
" Court of Appeal ".
20 Table
s. 183 "Court" s. 189(2) Heading before s. 206A
s. 187(3)(b) s. 190(2) s. 206A(1)
s. 189(1) s. 199(1)(e)
page 32
Acts Amendment (Court of Appeal) Bill 2004
Minor amendments to various Acts Part 4
s. 37
Part 4 -- Minor amendments to various Acts
37. Various Acts amended
Each Act listed in Schedule 1 is amended as set out in that
Schedule.
page 33
Acts Amendment (Court of Appeal) Bill 2004
Part 5 Transitional provisions
s. 38
Part 5 -- Transitional provisions
38. Appeals pending before Full Court or Court of Criminal
Appeal
(1) If on the commencement of this Act an appeal or an application
5 for leave to appeal is pending before --
(a) the Full Court of the Supreme Court; or
(b) the Court of Criminal Appeal,
the appeal or application is to be taken to have been commenced
or made and to be pending before the Court of Appeal.
10 (2) Despite subsection (1), if on the commencement of this Act an
appeal or an application for leave to appeal is part heard by --
(a) the Full Court of the Supreme Court; or
(b) the Court of Criminal Appeal,
then the hearing and determination of the appeal or application
15 may be completed by the Full Court or the Court of Criminal
Appeal, as the case requires, as if this Act had not commenced.
39. References to "Full Court" or "Court of Criminal Appeal"
to be read as references to "Court of Appeal"
(1) A reference in a written law or book, document or writing to the
20 Full Court of the Supreme Court (whether those or some other
words are used) is, unless the contrary intention appears, to be
construed as if it had been amended to be a reference to the
Court of Appeal.
(2) A reference in a written law or book, document or writing to the
25 Court of Criminal Appeal is, unless the contrary intention
appears, to be construed as if it had been amended to be a
reference to the Court of Appeal.
page 34
Acts Amendment (Court of Appeal) Bill 2004
Minor amendments to various Acts Schedule 1
Schedule 1 -- Minor amendments to various Acts
[s. 37]
Division 1 -- Amendments not affected by impending legislation
1. Adoption Act 1994
Heading to Delete "Full Court" and insert instead --
Part 5 " Court of Appeal ".
Division 4
s. 118(1) In each provision, delete "Full Court of the Supreme Court"
s. 119 and insert instead --
" Court of Appeal "
5 2. Constitution Acts Amendment Act 1899
s. 41(1) In each provision, delete "Supreme Court" and insert
s. 41(2) instead --
s. 41(3) " Court of Appeal ".
s. 41(4) Repeal the subsection.
3. Corporations (Western Australia) Act 1990
s. 3(1) Delete the definition of "Full Court".
4. Criminal Injuries Compensation Act 2003
s. 56(2)(e) In each provision, delete "Full Court of the Supreme Court"
s. 58 and insert instead --
" Court of Appeal ".
5. Family Court Act 1997
s. 211(3) In each provision, delete "Full Court of the Supreme Court" in
s. 211(5) each place it occurs and in each place insert instead --
" Court of Appeal ".
s. 211(3) Delete "Full Court" in the third place it occurs and insert
instead --
" Court of Appeal ".
page 35
Acts Amendment (Court of Appeal) Bill 2004
Schedule 1 Minor amendments to various Acts
6. Federal Courts (State Jurisdiction) Act 1999
s. 6(c) Delete "Full Court of the Supreme Court" and insert
instead --
" Court of Appeal ".
7. Guardianship and Administration Act 1990
s. 18(1) In the definition of "Court" delete "Full Court of the Supreme
Court" and insert instead --
" Court of Appeal ".
s. 19(b) In each provision, delete "Full Court of the Supreme Court"
s. 37A and insert instead --
" Court of Appeal ".
Heading to Delete "Full Court" and insert instead --
Part 3 " Court of Appeal ".
Division 4
8. Income Tax Assessment Act 1937
s. 173(5) Delete "Full Court of the Supreme Court" and insert
instead --
" Court of Appeal ".
9. Jurisdiction of Courts (Cross-vesting) Act 1987
s. 6(9) In each provision, delete "Full Court of the Supreme Court"
s. 7(1) and insert instead --
s. 7(3) " Court of Appeal ".
s. 7(7)(a)
s. 7(8)
5 10. Katanning Electricity Supply Undertaking Acquisition Act 1961
s. 7(2) Delete "Full Court of the Supreme Court of Western
Australia" and insert instead --
" Court of Appeal ".
page 36
Acts Amendment (Court of Appeal) Bill 2004
Minor amendments to various Acts Schedule 1
11. Legal Aid Commission Act 1976
s. 40(6a) Delete "Full Court of the Supreme Court" and insert
instead --
" Court of Appeal ".
12. Legal Practice Act 2003
s. 3 Delete the definition of "Full Court".
Insert the following definition in the appropriate alphabetical
position --
"
"Supreme Court (full bench)" means the Supreme
Court constituted by at least 3 judges;
".
s. 28(1) In each provision, delete "Full Court" in each place it occurs
s. 30(1) and in each place insert instead --
s. 34(1) " Supreme Court (full bench) ".
s. 34(2)
s. 185(2)(a)
s. 185(3)
s. 190(4)(b)
s. 190(5)
s. 194(1)
s. 194(2)
s. 194(3)
s. 204(3)(b)
s. 204(6)
13. Liquor Licensing Act 1988
s. 27(2) In each provision, delete "Full Court" and insert instead --
s. 28(4)(a) " Court of Appeal ".
page 37
Acts Amendment (Court of Appeal) Bill 2004
Schedule 1 Minor amendments to various Acts
14. Mining Act 1978
s. 146(5) Delete "Full Court of the Supreme Court" and insert
instead --
" Court of Appeal ".
Delete "Full Court" in the second and third place it occurs and
in each place insert instead --
" Court of Appeal ".
s. 146(6) In each provision, delete "Full Court" and insert instead --
s. 146(7) " Court of Appeal ".
15. Newspaper Libel and Registration Act 1884 Amendment Act 1888
s. 3 Delete "full Court" and insert instead --
" Court of Appeal ".
16. Prisons Act 1981
s. 23 Delete "Court of Criminal Appeal or a Judge of that Court"
and insert instead --
" Court of Appeal or a judge of appeal ".
Delete "a Registrar of the Supreme Court" and insert
instead --
" the Court of Appeal Registrar ".
17. Prostitution Act 2000
s. 47(4) In each provision, delete "Full Court" and insert instead --
s. 47(5) " Court of Appeal ".
s. 47(6)
s. 47(7) Repeal the subsection.
5 18. Public Notaries Act 1979
s. 3 Insert the following definition in the appropriate alphabetical
position --
"
"Supreme Court (full bench)" means the Supreme
Court constituted by at least 3 judges.
".
page 38
Acts Amendment (Court of Appeal) Bill 2004
Minor amendments to various Acts Schedule 1
s. 6(2) In each provision, delete "Full Court" and insert instead --
s. 9 " Supreme Court (full bench) ".
s. 10(2)
s. 12
s. 16(1)
s. 11 Delete "Court" in the first place it occurs and insert instead --
" Supreme Court (full bench) ".
19. Restraining Orders Act 1997
s. 64(4) In each provision, delete "Full Court" and insert instead --
s. 64(5) " Court of Appeal ".
s. 64(6)
s. 64(6a)(b)
s. 64(7) Repeal the subsection.
20. Salaries and Allowances Act 1975
s. 7(1) Delete "section 5(1b)" and insert instead --
" section 5(1) and (1b) ".
21. Sentencing Act 1995
s. 140(1) In each provision, delete "Court of Criminal Appeal" and
s. 140(2) insert instead --
" Court of Appeal ".
s. 143(1) Delete "Full Court of the Supreme Court or the Court of
Criminal Appeal" and insert instead --
" Court of Appeal ".
Division 2 -- Amendments that may be affected by impending
5 legislation
22. Land Administration Act 1997
s. 237(2) Delete "Full Court" and insert instead --
" Court of Appeal ".
page 39
Acts Amendment (Court of Appeal) Bill 2004
Schedule 1 Minor amendments to various Acts
23. Legal Practice Act 2003
s. 202(2) Delete "Full Court" and insert instead --
" Supreme Court (Full Bench) ".
24. Local Courts Act 1904
s. 107 Delete "Full Court of the Supreme Court" or "Full Court"
wherever they occur and in each place insert instead --
" Court of Appeal ".
25. Magistrates Court (Civil Proceedings) Act 2004 [261--2]
s. 41(1) Delete "Supreme Court" and insert instead --
" Court of Appeal ".
Delete "Full Court" and insert instead --
" Court of Appeal ".
s. 41(3) Delete "Supreme Court" and insert instead --
" Court of Appeal ".
Delete "Full Court" in the 2 places it occurs and in each place
insert instead --
" Court of Appeal ".
s. 41(4) Delete "Supreme Court" in the first place it occurs and insert
instead --
" Court of Appeal ".
Delete "Full Court" and insert instead --
" Court of Appeal ".
s. 42(1) Delete "Full Court of the Supreme Court" and insert instead --
" Court of Appeal ".
s. 42(3) In each provision, delete "Full Court" in each place it occurs
s. 42(5) and in each place insert instead --
s. 43(7)(e) " Court of Appeal ".
26. Royal Commissions Act 1968
s. 16(2) In each provision, delete "Full Court of the Supreme Court"
s. 17 and insert instead --
" Court of Appeal ".
page 40
Acts Amendment (Court of Appeal) Bill 2004
Minor amendments to various Acts Schedule 1
27. State Administrative Tribunal Act 2004 [213--2]
s. 104(3)(a) Delete "Full Court" and insert instead --
" Court of Appeal ".
s. 104(4) Repeal the subsection.
28. Workers' Compensation and Rehabilitation Act 1981
s. 84ZX Delete "Full Court of the Supreme Court" and insert
instead --
" Court of Appeal ".
s. 84ZY Delete "Full Court" wherever it appears and in each place
insert instead --
" Court of Appeal ".
29. Workers' Compensation and Injury Management Act 1981
s. 251(1) Delete "Full Court of the Supreme Court" and insert
s. 252(1) instead --
" Court of Appeal ".
s. 254(1) Delete "Supreme Court appeal to the Supreme Court" and
insert instead --
" Court of Appeal appeal to the Court of Appeal ".
s. 254(2) Repeal the subsection.
page 41
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