36   Delegation to Commissioners

(1)  Where proceedings are pending in Class 1, 2 or 3 of the Court’s jurisdiction (other than proceedings in Class 1 that are brought under section 97 of the Environmental Planning and Assessment Act 1979), 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)  The Commissioner or Commissioners may, of the Commissioner’s or the Commissioners’ own motion or on the request of a party, refer a question of law (including the question whether a particular question is one of law) raised in the proceedings to the Chief Judge for determination by a Judge.

(6)  Where a question is referred to the Chief Judge under subsection (5):

(a)  subject to paragraphs (c) and (d), the Commissioner or Commissioners may continue to hear the proceedings unless the Chief Judge otherwise directs,

(b)  a Judge shall determine the question and then remit the determination to the Commissioner or Commissioners,

(c)  the Commissioner or Commissioners shall not make an order or decision to which the question is relevant until a Judge has determined the question, and

(d)  the Commissioner or Commissioners shall not make an order or determination that is inconsistent with the determination of the question by a Judge.

(7)  A decision of a Judge that a question referred under subsection (5) need not be determined because it is not relevant to the particular proceedings shall, for the purposes of subsection (6), be deemed to be the Judge’s determination of the question.