sec.47Application if original judge unable to continue

### sec.47 Application if original judge unable to continue This section applies if— a judge (the original judge ) starts the hearing of a civil or criminal proceeding; and before the proceeding has been determined, the original judge dies or resigns as a judge, or is certified as incapable of sitting. For the Court of Appeal, see section 31 (Constitution of court if 1 judge of appeal unable to continue). 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. A party to the proceeding may apply to the court for directions as to the determination of the proceeding. On its own initiative or on an application under this section, the court may— if there is an incapacity certificate stating the original judge is temporarily incapable of sitting— adjourn the proceeding to enable the original judge to complete the hearing and determination of the proceeding; or order that the proceeding be heard and determined afresh; or in any other case— order that the proceeding be heard and determined afresh; or make any other order it considers appropriate. 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. 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. 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. s 47 prev s 47 om 1997 No. 38 s 125 pres s 47 ins 2011 No. 45 s 189 (sec.47-ssec.1) This section applies if— a judge (the original judge ) starts the hearing of a civil or criminal proceeding; and before the proceeding has been determined, the original judge dies or resigns as a judge, or is certified as incapable of sitting. For the Court of Appeal, see section 31 (Constitution of court if 1 judge of appeal unable to continue). (sec.47-ssec.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. (sec.47-ssec.3) A party to the proceeding may apply to the court for directions as to the determination of the proceeding. (sec.47-ssec.4) On its own initiative or on an application under this section, the court may— if there is an incapacity certificate stating the original judge is temporarily incapable of sitting— adjourn the proceeding to enable the original judge to complete the hearing and determination of the proceeding; or order that the proceeding be heard and determined afresh; or in any other case— order that the proceeding be heard and determined afresh; or make any other order it considers appropriate. (sec.47-ssec.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. (sec.47-ssec.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. (sec.47-ssec.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. - (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. - (a) if there is an incapacity certificate stating the original judge is temporarily incapable of sitting— (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 - (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. - (i) order that the proceeding be heard and determined afresh; or - (ii) make any other order it considers appropriate. - (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 - (i) order that the proceeding be heard and determined afresh; or - (ii) make any other order it considers appropriate.