Part 1Constitution of the Supreme Court

Part 1—Constitution of the Supreme Court 6—Continuance of Supreme Court The Supreme Court of South Australia as by law established is hereby continued as the superior court of record, in which has been vested all such jurisdiction (whether original or appellate) as is at the passing of this Act vested in, or capable of being exercised by that court. 6A—Divisions of Supreme Court The Supreme Court is constituted of the General Division and the Court of Appeal. 7—Judicial officers of the court (1) The General Division of the court consists of— (a) the Chief Justice; and (b) the puisne judges of the court that are not appointed to the Court of Appeal; and (c) the Associate Justices; and (d) the judicial registrars. (1a) The Court of Appeal consists of— (a) the Chief Justice; and (b) the President; and (c) the puisne judges of the court that are appointed to the Court of Appeal; and (d) the Associate Justices; and (e) the judicial registrars. (2) Subject to this Act or any other Act, the judges, Associate Justices and judicial registrars have the power, authority and jurisdiction conferred on them under this Act or any other Act, and the rules of court made under this Act or any other Act. (3) The puisne judges shall be styled "Justices of the Supreme Court of South Australia". (4) An Associate Justice is, while holding that office, also a District Court Judge. 8—Qualifications for appointment as judges and Associate Justices (1) No person shall be qualified for appointment as a puisne judge of the court unless he is a practitioner of the court of not less than ten years' standing. (1a) A person is not qualified for appointment as President unless the person is a practitioner of the court of not less than 12 years' standing or a puisne judge of the court. (2) No person shall be qualified for appointment as Chief Justice unless he is a practitioner of the court of not less than fifteen years' standing or a puisne judge of the court. (3) No person shall be qualified for appointment as an Associate Justice unless he is a practitioner of the court of not less than seven years standing. (4) For the purpose of determining whether a practitioner of the court has the standing necessary for appointment as a judge or Associate Justice, periods of legal practice and (where relevant) judicial service within and outside the State will be taken into account. 9—Appointments to the court (1) Whenever necessary, the Governor shall appoint a qualified person to hold the office of judge of the court or judge of the Court of Appeal with the tenure prescribed by the Constitution Act 1934, but subject to the provisions of this Act as to retirement. (2) Appointments to the office of Associate Justice shall be made by the Governor whenever necessary. (3) Subject to the provisions of this Act as to retirement, the commission of an Associate Justice shall remain in full force during his good behaviour but the Governor may, upon the address of both Houses of Parliament, remove an Associate Justice from office and revoke his commission. 9A—The Chief Justice (1) The Chief Justice is the principal judicial officer of the court. (2) The Chief Justice is responsible for the administration of the court. 9B—President The President is a judge of the Supreme Court and is responsible, subject to the Chief Justice's directions, for the administration of the Court of Appeal. 10—Acting Chief Justice and Acting President (1) If— (a) the Chief Justice is absent or, for any reason, is unable for the time being to carry out the duties of the office; or (b) the office of the Chief Justice becomes vacant, the Governor may appoint— (c) the President; or (d) if the President is absent or, for any reason, is unable for the time being to carry out the duties of the office—a puisne judge of the court, to be Acting Chief Justice until the Chief Justice returns to official duties or a person is appointed to the office of the Chief Justice (as the case requires). (2) If— (a) the President is absent or, for any reason, is unable for the time being to carry out the duties of the office; or (b) the office of the President becomes vacant, the Governor may appoint a puisne judge of the court to be Acting President until the President returns to official duties or a person is appointed to the office of the President (as the case requires). (3) Any power or duty attached to the office of the Chief Justice or President by or under this or any other Act— (a) on the appointment of a judge to be Acting Chief Justice or Acting President, devolves on the judge so appointed; or (b) if no such appointment is made, devolves— (i) during the absence or inability of the Chief Justice or until a vacancy in the office of Chief Justice is filled— (A) on the President; or (B) if the President is absent or, for any reason, is unable for the time being to carry out the duties of the office—on the most senior of the puisne judges appointed to the Court of Appeal who is available to undertake those responsibilities; or (ii) during the absence or inability of the President or until a vacancy in the office of President is filled—on the most senior of the puisne judges appointed to the Court of Appeal who is available to undertake those responsibilities. 11—Acting judges and acting Associate Justices (1) Where it appears necessary or desirable to do so in the interests of the administration of justice, the Governor may, subject to subsection (6)— (a) appoint a person who is qualified for appointment as a puisne judge as an acting judge (either of the court or of the Court of Appeal); or (b) appoint a person who is qualified for appointment as an Associate Justice as an acting Associate Justice. (1a) A former judge or Associate Justice who has retired from office is eligible for appointment as an acting judge (of the court or of the Court of Appeal) or an acting Associate Justice. (1b) An appointment under this section will be for a term not exceeding 12 months. (2) The jurisdiction of the court is exercisable by an acting judge to the same extent as by a judge, and by an acting Associate Justice to the same extent as by an Associate Justice. (3) An acting judge or acting Associate Justice has the same privileges and immunities as a judge or Associate Justice. (5) An acting judge or an acting Associate Justice may, notwithstanding the expiration of the period of his appointment, complete the hearing of any proceedings part-heard by him before the expiration of that period and, in relation to any such proceedings, shall be deemed to continue as an acting judge, or acting Associate Justice. (6) A District Court Judge or a Deputy President of the South Australian Civil and Administrative Tribunal or of the South Australian Employment Tribunal may not be appointed as an acting judge under subsection (1) except on the recommendation of the Chief Justice made with the concurrence of the Chief Judge of the District Court or of the President of the relevant Tribunal (as the case requires). 12—Remuneration of judges and Associate Justices (1) The Chief Justice, the President and each puisne judge are entitled to salary and allowances at rates determined by the Remuneration Tribunal in relation to the respective offices. (2) An Associate Justice is entitled to salary and allowances at the rates applicable to a District Court Judge. (3) A rate of salary for a judge or Associate Justice cannot be reduced by determination of the Remuneration Tribunal. (4) The remuneration of the judges and Associate Justices is payable from the General Revenue of the State, which is appropriated to the necessary extent. 13—Salaries of Judges, and officers to be in lieu of fees The salaries of the judges, and of the officers of the court, shall be in lieu of all fees or other emoluments whatsoever, it being the intent of this Act that the judges and the officers of the court shall derive no emolument from any fees payable under the authority of this Act, but that such fees shall be paid to the Treasurer in aid of the general revenue of the State. 13A—Retirement of judges and Associate Justices (1) A judge or Associate Justice shall retire on reaching the age of seventy years. (2) Section 74 of the Constitution Act 1934 shall be read subject to this section. (3) A judge or Associate Justice who retires or resigns may nevertheless complete the hearing and determination of proceedings part-heard by him before his retirement or resignation and, in relation to any such proceedings, shall be deemed to continue as a judge or Associate Justice (as the case may require). 13B—Special leave (1) A judge may apply to the Chief Justice for special leave without remuneration. (2) The Governor may, on the recommendation of the Chief Justice, grant an application for special leave under this section. (3) A period of special leave under this section will not be taken to be judicial service within the meaning of the Judges' Pensions Act 1971. 13H—Pre-retirement leave (1) Subject to this section, the Governor may grant to any judge or Associate Justice immediately prior to his retirement not more than six months leave of absence on full salary. (2) Where a judge or Associate Justice retires or resigns without taking any leave which had been or could have been granted to him under subsection (1) of this section, the Governor may direct that a cash payment be made to him in lieu of the leave not so taken. The payment shall not exceed the amount of the salary of the judge or Associate Justice for a period equal to the period of the leave not so taken, calculated at the rate at which he was being paid at the time of the retirement or resignation. (3) A direction under subsection (2) of this section may be given before or after the retirement or resignation of the judge or Associate Justice and a payment under that subsection may be made before or after that retirement or resignation. (4) If any judge or Associate Justice dies before the commencement or during the currency of any leave granted or before such leave has been granted pursuant to subsection (1) of this section the Governor may, in respect of the period of the leave so granted or the unexpired portion thereof, or in respect of the period of the leave which might have been granted (according to the circumstances of the case), pay to the dependants (if any) of such judge or Associate Justice the amounts of salary which would have been payable to such judge or Associate Justice himself if he had survived. (4a) If the judge or Associate Justice died without leaving any dependants the Governor may pay the said amounts of salary to his personal representatives. (4b) Any question as to— (a) whether there are any dependants in any particular case, or who are the dependants; (b) what dependant or dependants shall be entitled to the benefit of payments made under this subsection, and in what proportions if more than one dependant, shall be settled by the Governor, as he deems proper. (4c) In this section— dependants means those members of the family of a judge or Associate Justice who were wholly or in part dependent upon his earnings at the time of his death; domestic partner, in relation to a deceased judge or Associate Justice, means— (a) a person declared under the Family Relationships Act 1975 to have been the domestic partner of that judge or Associate Justice (as the case may be) as at the date of the judge's or Associate Justice's death; or (b) a person who was in a registered relationship with the judge or Associate Justice (as the case may be) as at the date of the judge's or Associate Justice's death; members of the family includes spouse, domestic partner, parents, grandparents, step-parents, children, grandchildren, step-children, brothers, sisters, half-brothers and half-sisters; registered relationship means a relationship that is registered under the Relationships Register Act 2016, and includes a corresponding law registered relationship under that Act; spouse—a person is the spouse of another if they are legally married. (5) Where leave is granted to any judge or Associate Justice under this section, that judge or Associate Justice may, at the commencement of such leave, be paid the total salary which would be payable to him during the currency of the leave. (6) This section shall not apply to a person who was, immediately before the commencement of the Statutes Amendment (Administration of Courts and Tribunals) Act 1981, the master or a deputy master of the court. 13I—Appointment and conditions of judicial registrars (1) The Governor may, on the recommendation of the Attorney‑General and with the concurrence of the Chief Justice, appoint a legal practitioner of at least 5 years standing to be a Supreme Court judicial registrar. (2) The term of appointment (which must be for at least 7 years), the remuneration and the conditions of service applicable to a person holding an appointment under this section will be as determined by the Governor with the concurrence of the Chief Justice, and specified in the instrument of appointment. (3) An appointment of a judicial registrar under this section will be taken to be on a full‑time basis unless the instrument of appointment provides that the appointment is on a part‑time basis. (4) However, a judicial registrar not appointed on a part‑time basis may, by written agreement with the Chief Justice made with the approval of the Attorney‑General, perform the duties of office on a part‑time basis for a period specified in the agreement. (5) An instrument appointing a judicial registrar on a part‑time basis or an agreement under subsection (4) must specify the hours of duty the judicial registrar will ordinarily be required to work, expressed as a proportion of the time a judicial registrar appointed on a full‑time basis is ordinarily required to work. (6) The hours of duty specified in an instrument of appointment or an agreement under subsection (4) may be varied by written agreement between the judicial registrar and the Chief Justice made with the approval of the Attorney‑General. (7) The remuneration determined by the Governor with the concurrence of the Chief Justice and specified in the instrument of appointment may not be reduced by subsequent determination. (8) However, a judicial registrar (whether appointed on a full‑time or part‑time basis) is, while performing the duties of the office on a part‑time basis, entitled to remuneration on a pro‑rata basis in respect of the hours of duty at the rate determined by the Governor under this section in relation to a judicial registrar appointed on a full‑time basis. (9) For the purpose of determining whether a legal practitioner has the standing necessary for appointment to the office of judicial registrar, periods of legal practice within and outside the State will be taken into account. (10) A person appointed as a judicial registrar is, on the recommendation of the Attorney‑General and with the concurrence of the Chief Justice eligible for reappointment at the expiration of a term of office. (11) A judicial registrar may, with the approval of the Attorney‑General and the concurrence of the Chief Justice, concurrently hold office as a member of the court's non‑judicial staff if the non‑judicial office is compatible with the judicial office. 13J—Judicial registrar ceasing to hold office and suspension (1) The Governor may, on the recommendation of the Attorney‑General, remove a judicial registrar from office for— (a) mental or physical incapacity to carry out official duties satisfactorily; or (b) neglect of duty; or (c) dishonourable conduct. (2) A judicial registrar ceases to hold office if the judicial registrar— (a) dies; or (b) completes a term of office and is not reappointed; or (c) resigns by written notice to the Attorney‑General; or (d) ceases to satisfy any qualification by virtue of which the person was eligible for appointment to the office of judicial registrar; or (e) is removed from office under subsection (1). (3) The Attorney‑General may only make a recommendation under subsection (1) with the concurrence of the Chief Justice. (4) The Chief Justice may, on the Chief Justice's own initiative or at the request of the Attorney‑General, suspend a judicial registrar from office if it appears that there may be grounds for the removal of the judicial registrar from office. (5) If a judicial registrar is suspended under subsection (4), the judicial registrar remains entitled to the judicial registrar's usual remuneration and allowances during the period of suspension. 14—Certain common interests do not disqualify A judge, Associate Justice or judicial registrar of the court is not incapable of acting in judicial office in any proceeding by reason of being 1 of several ratepayers or taxpayers or 1 of any other class of persons liable in common with others to contribute to or be benefited by a rate or tax which may be increased, diminished or in any way affected by that proceeding. 15—Seal of court (1) The court shall continue to have and use a seal bearing a device or impression of the Royal Arms, within an exergue or label surrounding the same, and with the following inscription: "Supreme Court, South Australia"; and the said seal shall be kept in the custody of the registrar. (2) There shall also be kept and used such other seals as are required for the business of the court, and such seals shall be in such form and kept in such custody as the Chief Justice directs. (3) All documents and exemplifications and copies thereof purporting to be sealed with any such seal shall be receivable in evidence without further proof of the seal. 16—Councils of judges to consider procedure and administration of justice The judges shall— (a) assemble once at least in every year for the purpose of considering the operation of this Act and of the rules of court for the time being in force, and also the working of the several offices, and the arrangements relative to the duties of the officers of the court respectively, and of inquiring and examining into any defects which appear to exist in the system of procedure or the administration of the law in the said court; and (b) report annually to the Attorney-General of the State what (if any) amendments it would, in their judgment, be expedient to make in this Act, or otherwise relating to the administration of justice, and what other provisions (if any) which cannot be carried into effect without the authority of Parliament, it would be expedient to make for the better administration of justice.