Supreme Court Act 1959

Supreme Court Act 1959

An Act to revive the office of the Master of the Supreme Court and to consolidate and amend certain enactments relating to the Supreme Court

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART I - Preliminary

1.   Short title

This Act may be cited as the Supreme Court Act 1959 .

2.   Repeals

The enactments that are specified in Schedule 1 are repealed.

3.   Interpretation

[Section 3 Amended by No. 102 of 1984, s. 4 ][Section 3 Substituted by No. 91 of 1999, s. 79, Applied:15 Dec 1999] In this Act, unless the contrary intention appears –

accumulation scheme means the Tasmanian Accumulation Scheme established under the Public Sector Superannuation Reform Act 1999 ;

barrister means a barrister within the meaning of the Legal Profession Act 1993 ;

[Section 3 Amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000]

[Section 3 Amended by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] complying superannuation scheme means a complying superannuation fund as provided by the law of the Commonwealth;

Court means the Supreme Court;

Master means the Master and Keeper of the Records mentioned in the Charter of Justice and includes an Acting Master;

RBF Board means the Retirement Benefits Fund Board continued in existence under section 7 of the Retirement Benefits Act 1993 ;

Registrar means the Registrar mentioned in the Charter of Justice;

Secretary means the Secretary of the Department;

transfer day means the day specified in a notice under section 7(5) of the Public Sector Superannuation Reform Act 1999 .

PART II - The Master of the Supreme Court

[Part II Heading amended by No. 92 of 1974, s. 2 ]

4.   Appointment of Master

[Section 4 Substituted by No. 92 of 1974, s. 3 ]

(1)  The Governor may appoint a person to be the Master.

(2)  No person is qualified to be appointed under this section unless he is a barrister of at least 5 years' standing.

(3)  [Section 4 Subsection (3) omitted by No. 15 of 1975, s. 3 ][Section 4 Subsection (3) inserted by No. 45 of 1996, s. 7 ]For the period 26 June 1995 to 30 September 1996, both days inclusive, the Master is to be paid a salary at the rate of 80% of the salary payable to a puisne judge of the Court for the same period.

(4)  [Section 4 Subsection (4) omitted by No. 15 of 1975, s. 3 ][Section 4 Subsection (4) inserted by No. 45 of 1996, s. 7 ]After 30 September 1996, the Master is to be paid a salary at the rate of 85% of the salary payable to a puisne judge of the Court.

(4A)  [Section 4 Subsection (4A) inserted by No. 91 of 1999, s. 80, Applied:15 Dec 1999] Notwithstanding subsection (4) , the Master may elect, in writing to the Secretary, within one month after –

(a) the date of commencement of the Superannuation (Parliament, Judiciary and Statutory Legal Officers) Reform Act 1999 or the date of the Master's appointment, whichever is the later; or

(b) each succeeding period of 3 years after the relevant date applicable under paragraph (a)  –

that the salary determined in accordance with this section may be provided –

(c) in part by the payment of salary to the Master; and

(d) in part by the payment of employer superannuation contributions to a complying superannuation scheme, which may include the accumulation scheme or an investment account established by the regulations under the Retirement Benefits Act 1993 .

(4B)  [Section 4 Subsection (4B) inserted by No. 91 of 1999, s. 80, Applied:15 Dec 1999] If the Master elects to sacrifice some or all of his or her salary in accordance with subsection (4A)  –

(a) the election has effect from the date of the election or from a later date specified in the election for that purpose; and

(b) the Master is taken, for any purpose related to superannuation, to have received the salary determined in accordance with subsection (4) , notwithstanding the salary sacrifice.

(5)  [Section 4 Subsection (5) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 4 Subsection (5) inserted by No. 45 of 1996, s. 7 ]In addition to the salary payable under this Act, the Master is entitled to be paid any travelling allowances and other allowances as the Governor determines and, until the Governor makes a determination under this subsection, is entitled to be paid the same travelling allowances and other allowances as are applicable to the Head of a State Service Agency.

(6)  [Section 4 Subsection (6) inserted by No. 45 of 1996, s. 7 ]The Master is entitled to be paid out of the Consolidated Fund.

(7)  [Section 4 Subsection (7) inserted by No. 45 of 1996, s. 7 ]Any allowance payable to the Master under this Act is to be paid out of the Consolidated Fund.

(8)  [Section 4 Subsection (8) inserted by No. 45 of 1996, s. 7 ]The Consolidated Fund is appropriated to the extent necessary for the purposes of subsections (7) and (8) .

4AA.   Superannuation entitlements of Master appointed after 1 July 1999

[Section 4AA Inserted by No. 91 of 1999, s. 81, Applied:15 Dec 1999]

(1)  This section applies only in respect of a person appointed as Master after 1 July 1999.

(2)  Where a person is appointed as Master after 1 July 1999 and before the transfer day –

(a) he or she is not eligible to become a member of the contributory scheme provided by the regulations under the Retirement Benefits Act 1993 ; and

(b) subject to subsection (4) , he or she is to be a member of the non-contributory scheme provided by those regulations; and

(c) references to an eligible employee in those regulations are to be read as including references to the Master; and

(d) the rate of contributions to be made in respect of the Master is 9% of the salary determined in accordance with section 4(4) ; and

(e) before the transfer day all such contributions are to be paid into a complying superannuation scheme nominated by the Master in accordance with subsection (4) or, if no such nomination is made, into an investment account provided by the regulations under the Retirement Benefits Act 1993 .

(3)  Where a person is appointed as Master on or after the transfer day –

(a) he or she is not eligible to become a member of the contributory scheme provided by the regulations under the Retirement Benefits Act 1993 ; and

(b) subject to subsection (4) , he or she is to be a member of the accumulation scheme; and

(c) references to an employee in the Public Sector Superannuation Reform Act 1999 are to be read as references to the Master; and

(d) the rate of contributions to be made in respect of the Master is 9% of the salary determined in accordance with section 4(4) of this Act.

(4)  The Master may elect, either before or after commencing the duties of that office, to become a member of a complying superannuation scheme that is not the non-contributory scheme referred to in subsection (2) or the accumulation scheme.

(5)  If the Master has become a member of a complying superannuation scheme that is not the non-contributory scheme or the accumulation scheme, he or she may at any time elect to become a member of the accumulation scheme instead.

(6)  Where the Master elects to become a member of a complying superannuation scheme that is not the non-contributory scheme referred to in subsection (2) or the accumulation scheme, the Secretary must, on being satisfied after making reasonable inquiries that the nominated scheme is a complying superannuation scheme, make contributions –

(a) at the rate of 9% of the salary determined in accordance with section 4(4) ; and

(b) in the manner required by the rules of that scheme and the requirements of the law of the Commonwealth.

(7)  An election under this section is to be made in writing to the Secretary.

(8)  [Section 4AA Subsection (8) inserted by No. 103 of 2000, Sched. 1, Applied:13 Dec 2000] The Secretary is not required to pay superannuation contributions into a complying superannuation scheme if that scheme does not accept payment by electronic funds transfer.

4AB.   Voluntary contributions and spouse contributions

[Section 4AB Inserted by No. 91 of 1999, s. 81, Applied:15 Dec 1999] The Master may elect, in writing to the RBF Board, to make voluntary contributions or spouse contributions to the accumulation scheme or an investment account established by the regulations under the Retirement Benefits Act 1993 .

4AC.   Lump sum benefit may be taken as allocated pension

[Section 4AC Inserted by No. 91 of 1999, s. 81, Applied:15 Dec 1999] Where the Master, his widow or her widower is in receipt of a lump sum benefit, he or she may elect to transfer all or part of that benefit to the accumulation scheme or an allocated pension account established by the regulations under the Retirement Benefits Act 1993 .

4A.   Power to appoint Acting Master

[Section 4A Inserted by No. 102 of 1984, s. 5 ]

(1)  [Section 4A Subsection (1) substituted by No. 75 of 1993, s. 4 ]If the Master is, for any reason, unable to perform his or her duties or functions, either generally or in respect of a particular matter or class of matters, the Governor, on the recommendation of the Chief Justice, may appoint a person who is a barrister of at least 5 years' standing to be the Acting Master for such a period, or until the happening of such an event, as the Governor may specify in the instrument of appointment.

(2)  [Section 4A Subsection (2) amended by No. 51 of 1985, s. 4 and Sched. 2, Pt. II ]Without limiting the generality of subsection (1) , a reference to reason in that subsection includes a reference to illness, leave of absence, temporary absence from Tasmania, or disqualification.

(2A)  [Section 4A Subsection (2A) inserted by No. 75 of 1993, s. 4 ]Subject to subsection (2B) , the Acting Master may –

(a) continue to maintain a legal practice and receive a share of the profits of the practice; or

(b) continue to maintain chambers as a barrister.

(2B)  [Section 4A Subsection (2B) inserted by No. 75 of 1993, s. 4 ]The Acting Master may not actively engage in the practise of a barrister or legal practitioner.

(2C)  [Section 4A Subsection (2C) inserted by No. 75 of 1993, s. 4 ] Section 5E does not apply to the Acting Master.

(3)  Except as otherwise provided by the Rules of Court –

(a) an Acting Master may perform any of the functions and exercise any of the powers conferred by any enactment or otherwise on the Master;

(b) any act or thing done by, or before, an Acting Master has the same force and effect as if it were done by, or before, the Master; and

(c) the provisions of this Part extend to, and in relation to, a person appointed as Acting Master under subsection (1) .

5.   Tenure of office and terms of appointment of Master

[Section 5 Substituted by No. 92 of 1974, s. 3 ]

(1)  Subject to this Act, a person appointed as Master holds office during good behaviour on such terms and conditions as the Governor determines.

(2)  [Section 5 Subsection (2) amended by No. 75 of 1993, s. 5 ]A person is not eligible to be appointed, or to hold office, as Master otherwise than in an acting capacity after he has attained the age of 70 years.

5A.   

[Section 5A Repealed by No. 15 of 1975, s. 3 ].  .  .  .  .  .  .  .  

5B.   Leave of absence of Master

[Section 5B Substituted by No. 92 of 1974, s. 3 ]

(1)  [Section 5B Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 5B Subsection (1) amended by No. 29 of 1984, s. 3 and Sched. 1 ]The Master is entitled to the same leave of absence for recreation or on account of sickness as if he were an employee, within the meaning of the State Service Act 2000 .

(2)  [Section 5B Subsection (2) amended by No. 68 of 1994, s. 3 and Sched. 1 ]The Master is an employee for the purposes of the Long Service Leave (State Employees) Act 1994 .

5C.   Resignation of Master

[Section 5C Inserted by No. 92 of 1974, s. 3 ]The Master may resign his office by writing signed by him and delivered to the Governor.

5D.   Suspension or removal of Master from office

[Section 5D Substituted by No. 75 of 1993, s. 6 ]The Master may only be suspended or removed from office by the Governor on an address from both Houses of Parliament seeking such suspension or removal on the ground of misbehaviour or incapacity.

5E.   Master not to engage in private practice, &c.

[Section 5E Inserted by No. 92 of 1974, s. 3 ]

(1)  Subject to this section, the Master shall not engage in the practice of his profession or in any other employment except in the performance of the functions of his office.

(2)  Subsection (1) does not preclude the Master from –

(a) holding an office that, by or under an enactment, is to be or may be held by the holder of the office of Master; or

(b) holding an office or engaging in employment where he is expressly authorized by the Attorney-General, in writing, to do so.

5F.   Rights of public servant appointed as Master

[Section 5F Inserted by No. 92 of 1974, s. 3 ][Section 5F Amended by No. 10 of 1982, s. 8 ]

(1)  [Section 5F Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 5F Subsection (1) amended by No. 29 of 1984, s. 3 and Sched. 1 ]The Master is not, in respect of his office as such, subject to the provisions of the State Service Act 2000 but where a person who is appointed as Master was, immediately before his appointment, an employee, within the meaning of that Act–

(a) he retains all his existing and accruing rights; and

(b) for the purpose of determining those rights, his service as Master shall be taken into account as if it were service as an employee, within the meaning of that Act.

(2)  [Section 5F Subsection (2) omitted by No. 19 of 1995, s. 13 ].  .  .  .  .  .  .  .  

(3)  [Section 5F Subsection (3) omitted by No. 19 of 1995, s. 13 ].  .  .  .  .  .  .  .  

(4)  [Section 5F Subsection (4) omitted by No. 19 of 1995, s. 13 ].  .  .  .  .  .  .  .  

5G.   Assistance for the Master

[Section 5G Substituted by No. 29 of 1984, s. 3 and Sched. 1 ]On being requested by the Master to do so, the Registrar may provide the services of such employees employed in the Supreme Court and Sheriff's Department as he considers may reasonably be necessary for the purpose of assisting the Master in the performance of his duties.

5H.   Master may act as magistrate or commissioner of court of requests

[Section 5H Inserted by No. 92 of 1974, s. 3 ][Section 5H Amended by No. 27 of 1992, Sched. 1, Applied:30 Mar 1998] In addition to his duties as Master the person appointed to that office may exercise all the functions, powers, and authority of a magistrate.

5HA.   Transitional superannuation provision

[Section 5HA Inserted by No. 91 of 1999, s. 82, Applied:15 Dec 1999]

(1)  Where a person was appointed as Master after 1 July 1999 and before the commencement of the Superannuation (Parliament, Judiciary and Statutory Legal Officers) Reform Act 1999 , the amounts specified in subsection (4) are to be transferred to a complying superannuation scheme nominated by the Master, which may include an investment account established by the regulations under the Retirement Benefits Act 1993 .

(2)  The Master may make a nomination under subsection (1) to the Treasurer within one month after the commencement of the Superannuation (Parliament, Judiciary and Statutory Legal Officers) Reform Act 1999 but, if no such nomination is made within that period, the Master is taken to have elected to transfer the amounts specified in subsection (4) to an investment account established by the regulations under the Retirement Benefits Act 1993 .

(3)  The investment account referred to in subsection (2) is to be an account determined by the RBF Board.

(4)  The amounts to be transferred under this section are as follows:

(a) all contributions made by the Master under the Judges' Contributory Pensions Act 1968 , together with interest on those contributions at a rate determined by the Treasurer;

(b) with respect to the period from the commencement of his or her duties until the date on which the amount is transferred in accordance with subsection (2) , an amount equal to 9% of the salary of the Master determined in accordance with section 4(4) of this Act, together with interest on that amount at a rate determined by the Treasurer.

(5)  The amount specified in subsection (4)(a) is to be transferred from the Judges' Pension Fund established under section 9 of the Judges' Contributory Pensions Act 1968 and the amount specified in subsection (4)(b) is to be transferred from the Consolidated Fund which, to the necessary extent, is appropriated accordingly.

PART IIA - Registrar of the Supreme Court

[Part IIA Inserted by No. 92 of 1974, s. 3 ]

5J.   Registrar and Deputy Registrar

[Section 5J Substituted by No. 29 of 1984, s. 3 and Sched. 1 ]

(1)  [Section 5J Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] Subject to and in accordance with Part 6 of the State Service Act 2000 , a person may be appointed to be the Registrar of the Supreme Court.

(2)  [Section 5J Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] Subject to and in accordance with the State Service Act 2000 , persons may be appointed as Deputy Registrar of the Supreme Court and Assistant Deputy Registrar of the Supreme Court.

5K.   Deputies acting in place of Registrar

[Section 5K Inserted by No. 92 of 1974, s. 3 ][Section 5K Amended by No. 48 of 1979, s. 5 ]Subject to the Rules of Court, the Deputy Registrar or the Assistant Deputy Registrar may exercise any of the functions conferred by any enactment or otherwise on the Registrar, and any act or thing done by or before the Deputy Registrar or the Assistant Deputy Registrar has the same force and effect as if it were done by or before the Registrar.

5L.   Functions of Registrar in other offices

[Section 5L Inserted by No. 92 of 1974, s. 3 ][Section 5L Amended by No. 48 of 1979, s. 6 ][Section 5L Amended by No. 29 of 1984, s. 3 and Sched. 1 ]

(1)  Where the person who holds office as Registrar also holds an office to which this section applies, the Deputy Registrar or the Assistant Deputy Registrar appointed pursuant to this Act may act as, and exercise any of the functions conferred on, the holder of that office, and any act or thing done by or before the Deputy Registrar or the Assistant Deputy Registrar so acting has the same force and effect as if it were done by or before the person holding that office.

(2)  This section applies to the offices of –

(a) Registrar of Building Societies;

(b) Registrar of Business Names;

(c) Registrar of Friendly Societies; and

(d) Registrar under the Trades Unions Act 1889 –

and to any other office declared by the Governor by order to be an office to which this section applies.

PART III - Miscellaneous

6.   

[Section 6 Repealed by No. 34 of 1982, s. 5 ].  .  .  .  .  .  .  .  

7.   Postponement of sittings

(1)  If from any cause a judge does not open the session or sittings appointed to be held at any place on the day appointed therefor, that session or sittings shall be opened and holden either by the same or some other judge as soon afterwards as is practicable.

(2)  If in any case the judges or any one of them are or is of opinion that the matters requiring to be dealt with at any session or sittings appointed to be held at any place are not of sufficient number or importance to justify the holding of that session or sittings, or that for any other reason it is desirable so to do, they or he may, by order in writing, postpone that session or sittings to some later date specified in the order, or may direct that those matters shall be dealt with at some subsequent session or sittings to be holden at the same place.

(3)  Where the trial of a person has been postponed under subsection (2) that person shall be deemed to have been remanded to stand his trial at the time fixed by the order of postponement, and any bond or recognizance entered into for the appearance of that person to stand his trial shall be construed as enlarged accordingly.

8.   Seals of the Court

(1)  In addition to the seal of the Supreme Court under the Charter of Justice, the Court shall have and use, as occasion may require, such other seals as are recommended by the Chief Justice and approved by the Attorney-General.

(2)  The judges, or a majority of them, may make Rules of Court providing for and regulating the custody and use of any seal approved under subsection (1) and the purposes for, and occasions on which, any such seal may be used.

9.   Custody, disposal, &c., of records

[Section 9 Amended by No. 29 of 1984, s. 3 and Sched. 1 ]The judges, or a majority of them, may make Rules of Court providing for and regulating the custody, preservation, or disposal of –

(a) all or any records, or portions of records, of the Supreme Court or of its proceedings or of any special jurisdiction of the Court (including records relating to the exercise of any Federal jurisdiction or any jurisdiction under any Commonwealth Act); and

(b) any documents filed or deposited in connection with any such proceedings or the exercise of any such jurisdiction or under any law of this State or of the Commonwealth –

whether or not the person to be entrusted for the time being or from time to time with the custody of any such records or documents is an officer in the service of this State or of the Commonwealth or otherwise.

10.   Taxing officers

[Section 10 Substituted by No. 92 of 1974, s. 4 ][Section 10 Amended by No. 48 of 1979, s. 7 ]

(1)  The Registrar, the Deputy Registrar, the Assistant Deputy Registrar, and the District Registrars shall be taxing officers of the Court.

(2)  The work of the taxing officers shall be divided between them as the Registrar directs.

SCHEDULE 1 - Enactments Repealed

[Schedule 1 Amended by No. 36 of 1958, s. 4 and Sched. 3 ]

Section 2

Enactments Repealed