Removal and reference

[5-0400] Removal and reference of proceedings: terminology

The word “removal” is used in the UCPR in relation to the transfer of proceedings by a Division of the Supreme Court to the Court of Appeal. The word “reference” is used in the UCPR in relation to the transfer of proceedings from a lower to a higher level within the Supreme Court, District Court and Local Court respectively, by order of a judicial officer at the lower level. There appears to be no intended difference of meaning as between the words “removal” and “reference” as used in these contexts.

The word “removal” is again used in the UCPR in relation to the transfer of proceedings from a lower to a higher level within the Supreme Court, District Court and Local Court respectively but, in this instance, by order of a judicial officer at the higher level.

In order to retain consistency with the rules, the terminology used in the rules has been preserved in this review.

[5-0410] Removal of proceedings into the Court of Appeal by a judge of the Supreme Court

Rule 1.21 of the UCPR, Removal to Court of Appeal, provides that the Supreme Court in a Division may make an order that proceedings commenced in the Division be removed into the Court of Appeal.

The rule includes conditions for its operation, namely, that an order is made under r 28.2 for the decision of a question of law or that the judge, having stated the question to be decided, is satisfied that special circumstances make removal into the Court of Appeal desirable.

The rule may be utilised where there are conflicting authorities or where the matter is one of importance and there is no clear authority on the subject. However, the rule is not confined to questions of law. The term “question” is defined broadly by r 1.21(4) as including any question or issue of fact or of law or partly of fact and partly of law.

The following note is included after consultation with Justice Mason, President of the Court of Appeal, and at his request. Before making an order removing proceedings into the Court of Appeal pursuant to r 1.21, the judge should consult with the President. This is for practical reasons and not just a matter of courtesy. The President might be able to refer the judge to authority of which the judge is unaware or might be in a position to advise the judge of a pending decision of the Court of Appeal which would resolve the matter in question; or the case might be one in which the Court of Appeal would wish to have the benefit of the judge’s opinion in the form of a considered judgment.

[5-0420] Sample orders

[5-0430] Reference of proceedings within the Supreme Court, District Court and Local Court

Proceedings may be referred:

  • by an associate judge of the Supreme Court to a judge of that court: r 49.2(1)

  • by the judicial registrar of the District Court to a judge of that court: r 49.5,

  • by a registrar of the Supreme Court, District Court or Local Court (other than the judicial registrar of the District Court) to a judge or magistrate of the respective court.

The procedure may be utilised where there is conflicting authority or the absence of clear authority, as in the case of removal of proceedings into the Court of Appeal by a judge of the Supreme Court (see above), or where there is doubt concerning power to hear and determine a matter in question in the proceedings.

There are not the same conditions for the operation of these rules as exist in relation to removal of proceedings into the Court of Appeal by a judge of the Supreme Court (see above). Avoiding the costs of an inevitable appeal would then seem to be an important consideration in the exercise of the discretion to refer.

[5-0440] Sample orders

[5-0450] Removal of proceedings within the Supreme Court, District Court and Local Court

Proceedings may be removed:

  • by order of a judge of the Supreme Court, from an associate judge of the Supreme Court to a judge of that court: r 49.2(2)

  • by order of a judge of the District Court, from the judicial registrar of the District Court to a judge of that court: r 49.6,

  • by order of a judge or magistrate of the Supreme Court, District Court or Local Court, from a registrar of the respective court (other than the judicial registrar of the District Court) to a judge or magistrate of the respective court: r 49.17.

The procedure may be utilised by a party who has been refused an application to refer.

[5-0460] Sample orders

[5-0470] Disposition of proceedings referred or removed within the Supreme Court, District Court and Local Court

In each case, the judicial officer to whom proceedings are referred or removed must determine the proceedings or, alternatively, determine any question arising in the proceedings and remit the proceedings back with such directions as are thought fit: respectively, rr 49.3, 49.7 and 49.18.

[5-0480] Sample orders

Rules

  • UCPR r 1.21, r 28.2, Pt 49, Pt 50