AustLII Tasmanian Consolidated Acts

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SUPREME COURT CIVIL PROCEDURE ACT 1932 - SECT 15

Causes and matters to be brought before Full Court

(1)  Subject to the provisions of subsection (6) , all –
(a) applications for a new trial or rehearing of any cause or matter tried or heard by a judge, or to set aside any verdict, finding, or judgment found, given, or made in any cause or matter tried or heard by a judge;
(b) appeals from a judge, whether sitting in court or in chambers;
(c) rules nisi and orders to show cause returnable before a Full Court;
(d) cases, points, and questions reserved by a judge for the consideration or judgment of a Full Court, or directed by a judge to be argued before a Full Court;
(e) .  .  .  .  .  .  .  .  
(f) trials at bar;
(g) causes and matters which –
(i) this Act;
(ii) any Rule of Court made under this Act;
(iii) any Imperial Act passed after the commencement of this Act, or any Order or Rule of Court made thereunder;
(iv) any Act of the Parliament of Tasmania passed after the commencement of this Act, or any Order or Rule of Court made thereunder; or
(v) any Commonwealth Act –
requires to be heard and determined by a Full Court –
shall be heard and determined, or otherwise disposed of, by a Full Court.
(2)  Subject to the Rules of Court , any cause or matter which is within the jurisdiction of the Court which is subject to this Act, but which is not by subsection (1) required to be heard and determined by a Full Court, may, with the special leave of a Full Court, be heard and determined by a Full Court in the first instance.
(3)  The provisions of subsection (2) shall extend and apply to any part of the jurisdiction of the Court therein mentioned, notwithstanding that the same is by this Act, or other the statute conferring such jurisdiction, expressed to be conferred on a judge of the Court, and not on the Court itself.
(4)  For the purpose of hearing and determining, or disposing of any cause or matter brought before it, a Full Court may exercise all or any part of the jurisdiction of the Court which is subject to this Act, and all such powers and authorities as are conferred upon it by this Act or the Rules of Court .
(5)  A Full Court may, when granting a rule nisi or order to show cause, make the same returnable before a judge of the Court, whether sitting in court or in chambers.
(6)  In any cause or matter pending before a Full Court or about to be brought before a Full Court, any order or direction incidental thereto, not involving the decision of the cause or matter, or any order or direction which may be necessary or proper to prevent prejudice to the rights or claims of any party to any such cause or matter, or of any person who is about to institute any cause or matter before a Full Court, may be made or given by a judge sitting in court or in chambers; but every such order or direction may be discharged or varied by a Full Court.
(7)  A Full Court may direct any cause or matter, or point or question in any cause or matter, pending before it, to be re-argued, or re-heard before final judgment.
(8)  –
(a) In the case of an appeal from a judgment or order of a judge any party who is entitled to be heard on the hearing of the appeal shall (subject to the provisions of this subsection) be entitled as of right to object to the appeal being heard and determined by a Full Court consisting of only two judges, one of whom is the judge who gave or made the judgment or order which is the subject of the appeal;
(b) In any case in which an appeal from a judgment or order of a judge comes on to be heard by a Full Court consisting of only two judges, one of whom is the judge who gave or made the judgment or order which is the subject of the appeal, every party entitled to exercise the right conferred by paragraph (a) who desires to exercise the same shall so inform the Court when the appeal is called on for hearing, and before the hearing thereof is commenced; and if any such party exercises such right the Court shall postpone the hearing of the appeal until such time as it can be heard by a Full Court consisting either of 3 judges or of two judges neither of whom is the judge who gave or made the judgment or order which is the subject of the appeal; and for that purpose the hearing of the appeal shall be adjourned either to a date to be then appointed or to a date to be thereafter appointed, and in the latter case when a date has been appointed notice thereof shall be given by the Clerk of the Court or other prescribed officer, in accordance with the Rules of Court , to all parties to the appeal;
(c) Provided that, with the consent of all parties to the appeal, the same may be heard at any time, although the notice required by paragraph (b) has not been given, or if given, has not expired;
(d) Provided, also, that any party to the appeal who has exercised the right conferred by paragraph (a) of this subsection may at any time, by notice in writing to the Clerk of the Court or other prescribed officer and to all other parties to the appeal, consent to the appeal being heard by a Full Court consisting of any two judges of the Court; and if all other parties to the appeal who have exercised such right as aforesaid give the like consent in the manner aforesaid, the Clerk of the Court or other prescribed officer shall again enter the appeal for hearing, and shall give notice thereof, in accordance with the Rules of Court , to all parties to the appeal, and the appeal may thereupon be heard and determined by any two judges of the Court;
(e) The provisions of this subsection shall extend and apply to an appeal from part only of a judgment or order of a judge, as well as to an appeal from the whole of such a judgment or order.
(9)  –
(a) When the judges sitting as a Full Court are divided in opinion as to the decision to be given on any question –
(i) the question shall be decided in accordance with the decision of the majority, if there is a majority; but
(ii) if the Court is equally divided in opinion, the opinion of the Chief Justice, or, if he is absent, the opinion of the Senior Puisne Judge present, shall prevail, except in the case of an appeal from a judgment or order of a judge who is not sitting as a member of the Full Court which hears the appeal, in which case the judgment or order appealed from shall be affirmed;
(b) Provided that, if in the last-mentioned case the judge whose judgment or order is appealed from reports to the Court that he desires that the appeal shall be determined without regard to the fact that he has given or made the judgment or order, the opinion of the Chief Justice or Senior Puisne Judge present shall prevail;
(c) The provisions of paragraph (a) shall extend and apply to any case in which, in accordance with the provisions of that paragraph, a judgment or order which is the subject of an appeal –
(i) is to be affirmed, but there is a division of opinion amongst the judges who heard the appeal as to whether the judgment or order should be affirmed simpliciter or with a variation; or
(ii) is to be affirmed with a variation, but there is a division of opinion amongst the judges who heard the appeal as to what the variation should be:
But in determining what the decision of the Court is in any such case, the opinion of all the judges who heard the appeal, and who shall give any opinion on any such question, shall be considered, notwithstanding that any such judge may be of opinion that the judgment or order should be reversed.
(10)  In subsection (8) and subsection (9) the term
appeal includes any appeal which a Full Court has jurisdiction to hear and determine under Part V and any application which a Full Court has jurisdiction to hear and determine under section 39 , and which is founded on any alleged misdirection or erroneous order, decision, or ruling of the judge, and any other application or proceeding to obtain a review of or calling in question any judgment, order, or other determination (whether final or otherwise) or any ruling or direction given or made by a judge in any cause or matter.
(11)  In paragraphs (a) , (b) , and (d) of subsection (1) and subsection (10) , the term
judge includes a judge sitting in court (whether with or without a jury or an assessor or assessors) and a judge sitting in chambers (whether with or without an assessor or assessors).



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