Part 4 Exercise of jurisdiction
26–28(Repealed)
Division 3 Organisation generally
(1) The Court shall sit at such places and times as the Chief Judge may direct.(2) More than one sitting of the Court may be held at the same time.
30 Arrangement of business of the Court
(1) The Chief Judge is responsible for ensuring the orderly and expeditious discharge of the business of the Court and accordingly may, subject to this Act and to such consultation with the Judges as is appropriate and practicable, make arrangements as to:(a) the Judge, Commissioner or Commissioners who is or are to exercise the Court’s jurisdiction in particular matters or classes of matters, and(b) the Commissioner or Commissioners who is or are to exercise any other function under this Act.(2) Subject to subsections (2A), (2B) and (2C), in determining the Commissioner or Commissioners who is or are to exercise the jurisdiction of the Court or any other function under this Act in relation to any proceedings, regard shall be had to the knowledge, experience and qualifications of the Commissioners and to the nature of the matters involved in the proceedings.(2A) A Commissioner shall not exercise the jurisdiction of the Court or any other function under this Act in relation to any proceedings arising under the Aboriginal Land Rights Act 1983, unless the qualification for the Commissioner’s appointment was a qualification referred to in section 12 (2) (g).(2B) A Commissioner whose only qualification for appointment was a qualification referred to in section 12 (2) (g) shall not exercise the jurisdiction of the Court or any other function under this Act in relation to any proceedings other than proceedings arising under the Aboriginal Land Rights Act 1983.(2C) A Commissioner shall not exercise the jurisdiction of the Court or any other function under this Act in relation to proceedings in Class 8 of the Court’s jurisdiction unless the Commissioner is an Australian lawyer.(3) Where the hearing of any proceedings has been commenced or completed by 2 or more Commissioners in accordance with section 36 but, before the proceedings have been disposed of, one of those Commissioners has ceased to be a Commissioner or has ceased to be available for the purposes of the proceedings:(a) if the parties agree and the Chief Judge concurs, the proceedings may be heard and disposed of, or disposed of, by the remaining Commissioner or Commissioners, or(b) in any other case—the proceedings shall be reheard in accordance with this Act.(4) Where proceedings are reheard, as referred to in subsection (3), the Court or the Commissioner or Commissioners rehearing the proceedings may, for the purposes of those proceedings, have regard to any record of the proceedings before the Commissioners referred to in that subsection, including a record of any evidence taken in the proceedings.
31 Irregularity of proceedings
(1) This section applies if the Court determines, on application by a party or of its own motion, that any proceedings before it are not being dealt with in the manner appropriate to the class of jurisdiction to which they belong.(2) In the circumstances referred to in subsection (1), the Court may make either of the following orders on such terms as may be necessary:(a) an order that the proceedings be dismissed,(b) an order that the proceedings be dealt with in the appropriate manner.(3) If the Court makes an order referred to in subsection (2) (b):(a) the proceedings are taken to have been duly commenced, and(b) any step that has been taken in the proceedings is deemed to have been duly taken.(4) The Court may make such orders as it thinks fit for the future conduct of the proceedings.
33 Exercise of jurisdiction generally
(1) Classes 1, 2 and 3 of the Court’s jurisdiction shall, in accordance with this Act, be exercised by a Judge or one or more Commissioners.(2) Classes 4, 5, 6 and 7 of the Court’s jurisdiction shall, in accordance with this Act, be exercised by a Judge.(2A) Class 8 of the Court’s jurisdiction shall, in accordance with this Act, be exercised by a Judge or by a Commissioner who is an Australian lawyer.(3) The Court’s jurisdiction under section 16 (1A) is to be exercised by a Judge, but this subsection does not prevent a Judge from being assisted by one or more Commissioners in accordance with section 37.
Division 4 Special provisions respecting Class 1, 2 or 3 proceedings
(1) If proceedings are pending in Class 1, 2 or 3 of the Court’s jurisdiction, the Court:(a) may arrange a conciliation conference between the parties or their representatives, with or without their consent, and(b) if it does so, must notify the parties or their representatives of the time and place fixed for the conference.(1A) It is the duty of each party to proceedings where a conciliation conference has been arranged under subsection (1) to participate, in good faith, in the conciliation conference.(2) A conciliation conference is to be presided over by a single Commissioner.(3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner:(a) must dispose of the proceedings in accordance with the decision, and(b) must set out in writing the terms of the decision.(4) If no such agreement is reached, the Commissioner must terminate the conciliation conference and:(a) unless the parties consent under paragraph (b), must make a written report to the Court:(i) stating that no such agreement has been reached and that the conciliation conference has been terminated, and(ii) setting out what in the Commissioner’s view are the issues in dispute between the parties, or(b) if the parties consent to the Commissioner disposing of the proceedings, must dispose of the proceedings:(i) following a hearing, whether held forthwith or later, or(ii) with the consent of the parties, on the basis of what has occurred at the conciliation conference.(5) The Commissioner, when giving his or her decision under subsection (4) (b), is to give reasons for the decision:(a) in writing, or(b) orally and recorded by means that can be reproduced.(6) If satisfied that there is a good reason to do so, the Commissioner may adjourn the conciliation conference to a time and place fixed in consultation with the Registrar.(7) Subject to this Act and the rules, the Commissioner disposing of, or hearing and disposing of, proceedings pursuant to subsection (3) or (4) (b) has and may exercise the functions of the Court.(8) The decision of the Commissioner under subsection (3) or (4) (b) is taken to be the decision of the Court.(9) If a report is made to the Court under subsection (4) (a), it must, as soon as practicable, furnish a copy of the report to each of the parties.(10) If an agreement is reached between the parties and proceedings are being dealt with under subsection (3), any document signed by the parties is admissible as to the fact that such an agreement has been reached and as to the substance of the agreement.(10A) The same privilege with respect to defamation as exists with respect to judicial proceedings and a document produced in judicial proceedings exists with respect to:(a) a conciliation conference, and(b) a document or other material sent to or produced to a Commissioner, or sent to or produced at the Court or the registry of the Court, for the purpose of enabling a conciliation conference to be arranged.(10B) The privilege conferred by subsection (10A) extends only to a publication made:(a) at a conciliation conference, or(b) in a document or other material sent to or produced to a Commissioner, or sent to or produced at the Court or the registry of the Court, for the purpose of enabling a conciliation conference to be arranged.(11) Subject to subsections (10) and (12):(a) evidence of anything said or of any admission made in a conciliation conference is not admissible in any proceedings before any court, tribunal or body, and(b) a document prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body.(12) Subsection (11) does not apply with respect to any evidence or document if the parties consent to the admission of the evidence or document.(13) The Commissioner presiding over a conference under this section in relation to any proceedings is disqualified from further participation in those proceedings, unless the parties otherwise agree.(14) Unless otherwise directed by the Chief Judge, the Registrar may preside over a conference under this section and, in that event, a reference in this section to a Commissioner includes a reference to the Registrar.
34AA Mandatory conciliation and arbitration
(1) This section applies to the following proceedings pending in Class 1 of the Court’s jurisdiction relating to appeals, objections and applications under section 97 or 97AA of the Environmental Planning and Assessment Act 1979:(a) proceedings concerning development applications, or modifications to development consents, for:(i) development for the purposes of detached single dwellings and dual occupancies (including subdivisions), or alterations or additions to such dwellings or dual occupancies, or(ii) development of a kind prescribed by the regulations,(b) particular proceedings that the Court orders, on the application of a party to the proceedings or of its own motion, to be dealt with under this section.(2) Section 34 applies to the proceedings with the following modifications:(a) the Court must arrange a conciliation conference between the parties and their representatives with or without their consent,Note. The Commissioner has the discretion to determine the place (including an on-site hearing) fixed for the conciliation conference.(b) if no agreement of a kind referred to in section 34 (3) is reached, the Commissioner who presides over the conciliation conference must terminate the conciliation conference and, subject to this section, dispose of the proceedings:(i) following a hearing held forthwith, or(ii) if the parties consent, on the basis of what has occurred at the conciliation conference.(3) The Court or the Commissioner may at any time, if the Court or Commissioner thinks it appropriate in the circumstances of the case, determine that proceedings are not to be dealt with or are not to continue to be dealt with under subsection (2). A determination may be made on the motion of the Court or Commissioner or on application by the parties.(4) If the Court or Commissioner determines that proceedings are not to be dealt with or are not to continue to be dealt with under subsection (2), the proceedings are to be dealt with under section 34C.
34A Proceedings to which on-site hearing procedures apply
(1) This section applies to the following proceedings, if the proceedings have not been disposed of under section 34:(a), (b) (Repealed)(c) proceedings in Class 1 of the Court’s jurisdiction that are brought under section 97 of the Environmental Planning and Assessment Act 1979,(c1) proceedings in Class 1 of the Court’s jurisdiction that are brought under section 97AA of the Environmental Planning and Assessment Act 1979,(d) proceedings in Class 1 of the Court’s jurisdiction that are brought under section 121ZK of the Environmental Planning and Assessment Act 1979,(e) proceedings in Class 1 of the Court’s jurisdiction that are brought under section 149F of the Environmental Planning and Assessment Act 1979,(f) proceedings in Class 2 of the Court’s jurisdiction that are brought under section 7 of the Trees (Disputes Between Neighbours) Act 2006,(g) proceedings in Class 2 of the Court’s jurisdiction that are brought under section 14B of the Trees (Disputes Between Neighbours) Act 2006.(1A) This section does not apply to proceedings to which section 34AA applies.(2) If, in relation to proceedings under section 97 of the Environmental Planning and Assessment Act 1979, the parties agree, or, in the absence of any such agreement, the Registrar at the first or a subsequent callover determines, that the proceedings involve proposed development that:(a) has an estimated value that is less than half the median sale price for the previous quarter for all dwellings in the local government area in which the development is proposed to be carried out, and(b) if carried out, would have little or no impact beyond neighbouring properties, and(c) does not involve any significant issue of public interest beyond any impact on neighbouring properties,the proceedings are to be dealt with under section 34B, subject to subsection (6).(2A) Proceedings to which this section applies (other than proceedings under section 97 of the Environmental Planning and Assessment Act 1979) are to be dealt with under section 34B, subject to subsection (6), if the Registrar at the first or a subsequent callover determines that the proceedings:(a) have little or no impact beyond neighbouring properties, and(b) do not involve any significant issue of public interest beyond any impact on neighbouring properties.(3) Proceedings that are dealt with under section 34B are referred to in this Act as on-site hearing matters.(4) Proceedings to which this section applies, other than those referred to in subsection (2) or (2A), are to be dealt with under section 34C, subject to subsection (6).(5) Proceedings that are dealt with under section 34C are referred to in this Act as court hearing matters.(6) At any time before proceedings to which this section applies commence to be dealt with under section 34B or 34C, the Court, on the application of a party or of its own motion, may determine that the proceedings are to be dealt with:(a) under section 34C instead of under section 34B, or(b) under section 34B instead of under section 34C.
34B Arrangements for dealing with on-site hearing matters
(1) Proceedings that are dealt with under this section are to be dealt with by means of an on-site conference to be heard and disposed of by one or more Commissioners.(2) The on-site conference is to be held on the site of the proposed development, unless the Commissioner is of the opinion that:(a) it would be unfair to the interests of one or more of the parties to hold the on-site conference there, or(b) the lack of facilities at that site make it impractical to hold the on-site conference there.(3) The Commissioner may dispose of the proceedings with or without further hearing, at any time after the conclusion of the on-site conference.(4) The Commissioner, when giving his or her decision, is to give reasons for the decision:(a) in writing, or(b) orally and recorded by means that can be reproduced.(5) The provisions of section 36 (2)–(6) apply to the hearing and disposal of proceedings under this section.(6) In this section, Commissioner means the Commissioner or Commissioners hearing the on-site hearing matter.
34C Arrangements for dealing with court hearing matters
(1) Proceedings that are dealt with under this section are to be dealt with, at the direction of the Chief Judge:(a) by a Judge, or(b) by a single Commissioner, or(c) if, in the opinion of the Chief Judge, the hearing of the proceedings is likely to be lengthy, or if the proceedings involve a publicly controversial site, or a publicly controversial development, or if the proceedings involve a substantial number of issues, or if the Chief Judge is of the opinion that it is otherwise appropriate to do so, by a panel consisting of:(i) two or more Commissioners, or(ii) a Judge and one or more Commissioners.(2) The appointment of a person to a panel is to be made having regard to the relevance of the person’s expertise and experience to the subject of the proceedings.(3) If a panel consists of two or more Commissioners, the provisions of section 36 (2)–(7) apply to the proceedings before the panel in the same way as those provisions apply to proceedings under section 36.(4) If a panel consists of a Judge and one or more Commissioners:(a) subject to this Act and the rules, the panel has and may exercise the functions of the Court, and(b) the Judge is to preside at the hearing of the proceedings before the panel, and(c) the Commissioner or Commissioners may advise and assist the Judge but are not to adjudicate on any matter before the panel, and(d) the provisions of section 37 (4) apply to the Judge who is a member of the panel in the same way as those provisions apply to a Judge before whom proceedings referred to in section 37 (1) or (2) are pending, and(e) the decision of the panel is taken to be the decision of the Court.(5) The provisions of section 36 (2), (3), (5), (6) and (7) apply to the hearing and disposal of proceedings under this section by a single Commissioner in the same way as those provisions apply to the hearing and disposal of proceedings under that section by a single Commissioner.
34D Site inspections in court hearing matters
Before disposing of a court hearing matter, the Court (or the persons exercising the functions of the Court) must make an inspection of the site of the proposed development, unless:(a) all the parties agree to dispense with an inspection, or(b) the Court (or the persons exercising the functions of the Court) considers that the matter can be properly determined without the need for an inspection.
(1) Where proceedings are pending in Class 3 of the Court’s jurisdiction, the Court may, with the consent of the parties, direct that an inquiry into any issue raised in, or other matter connected with, the proceedings be made by a single Commissioner.(2) The Commissioner making an inquiry pursuant to this section shall make a report to the Court.(3) Where a report is made to the Court under subsection (2), the Court shall, as soon as practicable, furnish a copy of the report to each of the parties.(4) The Court may, with the consent of the parties, adopt any findings or observations set out in a report under subsection (2).(5) A Commissioner, in making an inquiry pursuant to this section, shall have and may exercise the functions of the Court under section 68 of the Civil Procedure Act 2005.(6) A Commissioner who has made an inquiry pursuant to this section in relation to any proceedings is disqualified from further participation in those proceedings, unless the parties otherwise agree.
36 Delegation to Commissioners
(1) Where proceedings are pending in Class 1, 2 or 3 of the Court’s jurisdiction (other than proceedings that are being dealt with under section 34A or 40), the Chief Judge:(a) except as provided by paragraph (b) or subsection (1B), may, of the Chief Judge’s own motion or on the request of a party, direct that the proceedings be heard and disposed of by one or more Commissioners, and(b) shall, where the proceedings are proceedings:(i) arising under the Aboriginal Land Rights Act 1983, and(ii) of a kind specified in Schedule 2,direct that the proceedings be heard and disposed of by a Commissioner.(1A) The Governor may, by regulation, amend Schedule 2 by:(a) adding thereto any matter,(b) altering any matter therein, or(c) omitting any matter therefrom,or may, by regulation, omit the Schedule and insert instead a new Schedule.(1B) The Chief Judge may not direct under this section that proceedings under section 29, 30 or 31 of the Access to Neighbouring Land Act 2000 are to be heard and disposed of by one or more Commissioners.(2) Subject to this Act and the rules, the Commissioner or Commissioners hearing and disposing of the proceedings pursuant to this section shall have and may exercise the functions of the Court (other than its functions under this section).(3) The decision of the Commissioner or Commissioners shall be deemed to be the decision of the Court.(4) Where proceedings are directed to be heard and disposed of by 2 or more Commissioners:(a) if the Senior Commissioner is one of the Commissioners hearing and disposing of the proceedings—the Senior Commissioner shall preside at the hearing of the proceedings,(b) if the Senior Commissioner is not one of those Commissioners—one of those Commissioners directed to do so by the Chief Judge shall preside at the hearing, and(c) if the Commissioners are divided in opinion as to the decision to be made on any question:(i) if there is a majority of the one opinion—the question shall be decided according to the opinion of the majority, or(ii) in any other case—the question shall be decided according to the opinion of the Commissioner presiding.(5) Proceedings that are before a Commissioner under section 34, or under this section, may be referred or removed for hearing and determination by a Judge in the same way as proceedings before an associate Judge may be referred or removed for hearing and determination by a Judge in the Supreme Court.(6) The power of a Commissioner to refer proceedings pursuant to subsection (5) is subject to any contrary order of the Chief Judge.(7) (Repealed)
37 Commissioners sitting with a Judge
(1) Where proceedings are pending in Class 1, 2 or 3 of the Court’s jurisdiction before a Judge (other than proceedings that are being dealt with under section 34A), the Court may, in hearing the proceedings, or any part of the proceedings, be assisted by one or more Commissioners.(2) Notwithstanding subsection (1), where proceedings are pending in Class 3 of the Court’s jurisdiction, being proceedings:(a) arising under the Aboriginal Land Rights Act 1983, and(b) other than of a kind specified in Schedule 2,the Court shall, in hearing the proceedings or any part of the proceedings, be assisted by 2 Commissioners or, if the Chief Judge so directs, by one Commissioner.(3) A Commissioner assisting the Court as referred to in subsection (1) or (2) may assist and advise the Court, but shall not adjudicate on any matter before the Court.(4) A Judge before whom proceedings referred to in subsection (1) or (2) are pending may commence or continue the hearing of the proceedings, or any part of the proceedings:(a) without the assistance of a Commissioner who is not available or has ceased to be available to assist in the hearing of the proceedings or part of the proceedings, and(b) without the assistance of Commissioners generally if, in the opinion of the Judge, the proceedings or part of the proceedings concern or concerns a question of law only.
(1) Proceedings in Class 1, 2 or 3 of the Court’s jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit.(2) In proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.(3) Subject to the rules, and without limiting the generality of subsection (2), the Court may, in relation to proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and may receive in evidence the certificate of any such person.(4) In proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, the Court may, in respect of a matter not dealt with by this Act or the rules, give directions as to the procedure to be followed at or in connection with the hearing.(5) In this section, a reference to the Court includes a reference to the Commissioner or Commissioners directed under section 36 to hear and dispose of proceedings.
(1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.(4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.(5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.(6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body:(a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and(b) in a case where the concurrence or approval has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.(6A) Notwithstanding any other provision of this section, if an appeal relates to an application made to a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and the application relates to integrated development within the meaning of section 91 of that Act:(a) the Court may determine the appeal whether or not the consent authority has obtained the general terms of approval of each relevant approval body within the meaning of section 90A of that Act, and(b) the Court is not bound to refuse an application for development consent because an approval body has decided not to grant its approval or has failed to inform the consent authority whether or not it will grant its approval, and(c) the Court may determine the appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of an approval body.Section 93 of that Act applies to a development consent granted as a result of the appeal.
(7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.(8) This section (other than subsection (5)) does not apply to proceedings under section 30 or 31 of the Access to Neighbouring Land Act 2000.
39A Joinder of parties in certain appeals
On an appeal under section 96 (6), 96AA (3), 96A (5), 97 or 98 of the Environmental Planning and Assessment Act 1979, the Court may, at any time, on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion:(a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or(b) that:(i) it is in the interests of justice, or(ii) it is in the public interest,that the person be joined as a party to the appeal.
40 Additional powers of Court—provision of easements
(1) This section applies if:(a) the Court has determined to grant or modify a development consent pursuant to proceedings on an appeal under the Environmental Planning and Assessment Act 1979, or(b) proceedings on an appeal under the Environmental Planning and Assessment Act 1979 with respect to the granting or modification of a development consent are pending before the Court (whether constituted by a Judge or by one or more Commissioners).(2) The appellant may make an application to the Court for an order imposing an easement over land.(3) The parties to an application under this section include the owner of the land to be burdened by the easement, and each other person having an estate or interest in the land, as evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900.(4) In dealing with an application under this section, the Court may exercise the jurisdiction of the Supreme Court under section 88K of the Conveyancing Act 1919 and, in that event, section 88K of the Conveyancing Act 1919 applies to the Court’s exercise of that jurisdiction in the same way as it applies to the exercise of that jurisdiction by the Supreme Court.
Division 5 Special provisions respecting Class 5 proceedings (summary jurisdiction)
41 Application of Criminal Procedure Act 1986
Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings in Class 5 of the Court’s jurisdiction.
Division 6 Special provisions respecting Class 8 proceedings (mining matters)
42 Delegation to Commissioners
(1) Where proceedings are pending in Class 8 of the Court’s jurisdiction, the Chief Judge may, of the Chief Judge’s own motion or on the request of a party, direct that the proceedings be heard and disposed of by one or more Commissioners.(2) Subject to this Act and the rules, the Commissioner or Commissioners hearing and disposing of the proceedings pursuant to this section shall have and may exercise the functions of the Court (other than its functions under this section).(3) The decision of the Commissioner or Commissioners shall be deemed to be the decision of the Court.(4) Where proceedings are directed to be heard and disposed of by 2 or more Commissioners:(a) if the Senior Commissioner is one of the Commissioners hearing and disposing of the proceedings—the Senior Commissioner shall preside at the hearing of the proceedings, and(b) if the Senior Commissioner is not one of those Commissioners—one of those Commissioners directed to do so by the Chief Judge shall preside at the hearing, and(c) if the Commissioners are divided in opinion as to the decision to be made on any question:(i) if there is a majority of the one opinion—the question shall be decided according to the opinion of the majority, or(ii) in any other case—the question shall be decided according to the opinion of the Commissioner presiding.(5) Proceedings that are before a Commissioner under this section may be referred or removed for hearing and determination by a Judge in the same way as proceedings before an associate Judge may be referred or removed for hearing and determination by a Judge in the Supreme Court.(6) The power of a Commissioner to refer proceedings pursuant to subsection (5) is subject to any contrary order of the Chief Judge.
43 Commissioners sitting with a Judge
(1) Where proceedings are pending in Class 8 of the Court’s jurisdiction before a Judge, the Court may, in hearing the proceedings, or any part of the proceedings, be assisted by one or more Commissioners.(2) A Commissioner assisting the Court as referred to in subsection (1) may assist and advise the Court, but shall not adjudicate on any matter before the Court.(3) A Judge before whom proceedings referred to in subsection (1) are pending may commence or continue the hearing of the proceedings, or any part of the proceedings:(a) without the assistance of a Commissioner who is not available or has ceased to be available to assist in the hearing of the proceedings or part of the proceedings, and(b) without the assistance of Commissioners generally if, in the opinion of the Judge, the proceedings or part of the proceedings concern or concerns a question of law only.