New Permanent Court of Appeal for South Australia

Wednesday 30 October 2019 @ 8.47 a.m. | Judiciary, Legal Profession & Procedure | Legal Research

On 16 October 2019, the South Australian Attorney-General, Vickie Chapman (the Attorney-General) introduced the Supreme Court (Court of Appeal) Amendment Bill 2019 (No 109 of 2019) into the South Australian Parliament. The Bill proposes to establish a "permanent court of appeal" in South Australia, as a division of the Supreme Court of South Australia. The key benefit that the government sees as flowing from the establishment of a court of appeal for South Australia is ". . . a more effective and efficient means of disposing [of] the appellate work of the Supreme Court".

Current Operation of the South Australian Supreme Court

The current jurisdiction of the South Australian Supreme Court includes hearing first instance civil cases and serious criminal matters. In its current appellate jurisdiction, the South Australian Supreme Court reviews and determines whether errors have occurred in other state courts and interprets the law for the guidance of other courts. Currently the judges of the South Australian Supreme Court work on a rotational basis in the Full Court where they hear civil appeals and in the Court of Criminal Appeal where they hear criminal appeals. They also sit as a single judge when hearing and determining first instance civil and criminal matters.

The Rationale for Change

South Australia remains one of the only jurisdictions yet to establish a dedicated court of appeal. When considering the reform, the South Australian Government had looked to the successful establishment of courts of appeal in New South Wales, Victoria, Queensland and Western Australia.

According to the Attorney-General's second reading speech, the key advantages and reasons for change are in the different functions performed by trial judges and appellate judges:

"The functions of an appellate and a trial judge are significantly different. The trial function involves hearing evidence, making findings of fact and making rulings on evidence. The appellate function involves a much greater element of theory, principle and conceptualisation of the law."

The reform of creating a permanent court of appeal is seen by the government as recognising that ". . . appellate work involves functions and skills different from those performed in trial work and is therefore better performed in a separate court of permanent members than in a court of changing membership."

A further benefit of the reform is, that by the appointment of judges to a court of appeal on a permanent and ongoing basis, specialist appellate expertise will be fostered and developed, and such will lead to greater efficiency in the South Australian justice system and the production of ". . . higher quality judgments".

SA Bill "Broadly" Modelled on WA's Court of Appeal

In her second reading speech the Attorney-General indicated that ". . . This bill has broadly been modelled on the legislation establishing Western Australia's Court of Appeal".

In Western Australia in 2001 a high-level committee was established to consider the desirability and feasibility of establishing a court of appeal and its final report, had according to the Attorney-General, come to the conclusion that the courts of appeal in New South Wales, Victoria and Queensland were:

". . . successful, working effectively and efficiently and were superior to a full court comprising several judges of a supreme court sitting on appeals in rotation, as is currently the case in this state."

Major Features of the SA Bill

This Bill has, as outlined in the Attorney-General’s second reading speech, the following major features:

  1. The Court of Appeal will be established as a division of the Supreme Court, with a separate general division for the matters that are not heard by the Court of Appeal. This is consistent with the court structure in New South Wales, Victoria, Western Australia and Queensland, whose courts of appeal are integrated with their supreme courts.
  2. The Chief Justice will remain the principal judicial officer of the Supreme Court, including of the Court of Appeal.
  3. The Court of Appeal will be comprised of the Chief Justice, the president and the judges of the Supreme Court who have been appointed to the Court of Appeal.
  4. The president of the Court of Appeal will be responsible to the Chief Justice for the administration of the Court of Appeal.
  5. The jurisdiction of the Court of Appeal will be the existing jurisdiction of the Full Court of the Supreme Court of South Australia and of the Court of Criminal Appeal.
  6. To hear matters, the Court of Appeal will be constituted by at least three judicial officers.
  7. The general division will be comprised of the Chief Justice and the judges of the Supreme Court who are not appointed to the Court of Appeal.
  8. The jurisdiction of the general division will be the current jurisdiction of the single judges of the court, and it will also include current jurisdiction of the land and valuation division of the Supreme Court, which is to be abolished and subsumed within the general division.
  9. To hear matters, the general division will be constituted by a single judge.
  10. The Chief Justice and president will jointly be able to authorise a judge of the Court of Appeal to temporarily sit in the general division and authorise a judge of the general division to temporarily sit in the Court of Appeal.

The Bill also makes a large number of consequential and transitional amendments to the South Australian legislation to reflect and reference the new court structure.

Reform Agreed to by the SA Bar

In her second reading speech the Attorney-General indicated that, the South Australian Bar was in agreement with the reform and that ". . . its members have welcomed the establishment of a court of appeal and the introduction of the Bill into the parliament."

The Bar's endorsement of the Bill according to the Attorney-General is important as its members appear in and have a specialist working knowledge of the courts and gain most from the reform.

The South Australian Government sees the establishment of a dedicated court of appeal as improving the state's justice system, an important reform that it says ". . . will serve the people of South Australia well into the years to come".

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Sources:

Supreme Court (Court of Appeal) Amendment Bill 2019 (109 of 2019) [SA] the second reading speech and explanation of clauses as reported in the TimeBase LawOne Service

South Australia to get new Court of Appeal [Media Release - Vickie Chapman MP Attorney-General SA]

South Australia to get new Court of Appeal [Comment CCK Lawyers]

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