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Contents (1979 - 204)
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Land and Environment Court Act 1979 No 204
Current version for 7 December 2019 to date (accessed 10 April 2020 at 10:11)
Part 6
Part 6 Miscellaneous
62   Proceedings in open court
All proceedings before the Court shall, unless the Court otherwise orders, be heard in open court.
63   Right of appearance
(1)  A person entitled to appear before the Court may appear in person, or by an Australian legal practitioner, or (except in proceedings in Class 5, 6 or 7 of the Court’s jurisdiction) by an agent authorised by the person in writing.
(2)  Despite subsection (1), a person may not appear before the Court by an agent except with the leave of the Court.
(3)  In determining whether to grant leave for a person to appear by an agent the Court is to consider—
(a)  whether the agent has provided the person with the information required by the rules, and
(b)  whether granting leave is in the best interests of the person.
(4)  Leave granted under this section may—
(a)  be granted subject to conditions, and
(b)  be revoked at any time for any reason.
64   Appearance by the Crown
(1)  The Crown may appear before the Court in any case in which the public interest or any right or interest of the Crown may be affected or involved.
(2)  Without affecting the generality of subsection (1), the Attorney General or the Minister for Planning and Environment, or both, may, at any stage of any proceedings before the Court, intervene by an Australian legal practitioner or an agent, and may examine witnesses and address the Court with respect to matters relevant to the proceedings.
(3)  Without affecting the generality of subsection (1), the Minister administering the Community Welfare Act 1987 may, at any stage of any proceedings before the Court in which an approved non-Government organisation within the meaning of that Act is a party, with the consent of that organisation, intervene by an Australian legal practitioner or an agent and may examine witnesses and address the Court with respect to matters relevant to the proceedings.
65   Issue of process
All process issuing out of the Court shall be in the form approved under section 77A and be signed or otherwise authenticated in accordance with the rules.
66   Judicial notice of certain signatures
Judicial notice shall be taken of the signature of a Judge, a Commissioner, the Registrar or the Assistant Registrar when appearing on a document issuing out of the Court.
67   Powers of the Court as to the production of evidence
(1)  The Court shall have and may exercise the functions vested in the Supreme Court in respect of the following matters—
(a)  compelling the attendance of witnesses and examining them on oath, affirmation or declaration,
(b)  compelling the production, discovery and inspection of books, records, documents and other papers,
(c)  compelling witnesses to answer questions which the Court considers to be relevant in any proceeding before it,
(d)  the apprehension, detention and punishment of persons guilty of contempt, or of disobedience to any order made by the Court, or of any process issuing out of the Court, and
(e)  directing witnesses to be prosecuted for perjury.
(2)  This section does not apply to proceedings in Class 1, 2, 3 or 4 of the Court’s jurisdiction.
67A   Disrespectful behaviour in Court
(1) Offence A person is guilty of an offence against this section if—
(a)  the person is an accused person or defendant in, or a party to, proceedings before the Court or has been called to give evidence in proceedings before the Court, and
(b)  the person intentionally engages in behaviour in the Court during the proceedings, and
(c)  that behaviour is disrespectful to the Court or the Judge presiding over the proceedings (according to established court practice and convention).
Maximum penalty—14 days imprisonment or 10 penalty units, or both.
(2)  In this section, behaviour means any act or failure to act.
(3)  This section does not apply to an Australian legal practitioner appearing in that capacity.
(4) Proceedings for offences Proceedings against a person for an offence against this section are to be dealt with summarily before—
(a)  if the person is a child—the Children’s Court, or
(b)  if the person is not a child—the Local Court.
(5)  Proceedings for an offence against this section may be brought at any time within 12 months after the date of the alleged offence.
(6)  Proceedings for an offence against this section may be brought only by a person or a member of a class of persons authorised, in writing, by the Secretary of the Department of Justice for that purpose.
(7)  A Judge may refer any disrespectful behaviour in proceedings over which the Judge is presiding to the Attorney General.
(8)  Proceedings for an offence against this section may be commenced only with the authorisation of the Attorney General. Authorisation may be given by the Attorney General whether or not the disrespectful behaviour is referred to the Attorney General by a Judge under this section.
(9) Evidence An official transcript or official audio or video recording of the proceedings in the Court is admissible in evidence in proceedings for an offence against this section and is evidence of the matter included in the transcript or audio or video recording.
(10)  The Judge presiding over the proceedings in which the alleged disrespectful behaviour occurred cannot be required to give evidence in proceedings before any court for an offence against this section.
(11) Contempt and double jeopardy This section does not affect any power with respect to contempt or the exercise of any such power.
(12)  A person cannot be prosecuted for an offence against this section and proceeded against for contempt in respect of essentially the same behaviour. However, nothing in this section prevents proceedings for contempt in respect of behaviour that constitutes an offence against this section.
(13)  This section does not apply in Class 1, 2, 3 or 4 of the Court’s jurisdiction.
68   Amendments and irregularities
(1)  In any proceedings before the Court, the Court shall have power at any stage of the proceeding to order, upon such terms as to costs or otherwise as the Court thinks fit, any amendments to be made which, in the opinion of the Court, are necessary in the interests of justice.
(2)  Where, in beginning or purporting to begin any proceedings before the Court or at any stage in the course of or in connection with any such proceedings, there is, by reason of anything done or left undone, a failure to comply with the requirements of this Act or of the rules whether in respect of time, place, manner, form or content or in any other respect—
(a)  the failure shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings, or any document, judgment or order in the proceedings, and
(b)  subject to subsection (3), the Court may, on terms, set aside wholly or in part the proceedings or any step taken in the proceedings or any document, judgment or order in the proceedings or exercise its functions under this Act and the rules to allow amendments and to make orders dealing with the proceedings generally.
(3)  The Court shall not set aside any proceedings before it or any step taken in any such proceedings or any document, judgment or order in any such proceedings on the ground of a failure to which subsection (2) applies on the application of any party unless the application is made within a reasonable time and before the applicant has taken any fresh step after becoming aware of the irregularity.
(4)  This section does not apply to proceedings in Class 1, 2, 3 or 4 of the Court’s jurisdiction.
69–70   (Repealed)
71   Proceedings in Supreme Court
(1)  Subject to section 58, proceedings of the kind referred to in section 20(1)(e) may not be commenced or entertained in the Supreme Court.
(2)  The jurisdiction conferred on the Court in respect of proceedings referred to in section 20(1)(e) is not limited by any provision of the Civil Procedure Act 2005 or the uniform rules under that Act.
72   Transfer of proceedings from Supreme Court
(1)  Where the Supreme Court is of opinion that any proceedings commenced or purporting to have been commenced in the Supreme Court could or should have been commenced in the Court, the Supreme Court may, on the application of any party or of its own motion, order that those proceedings be transferred to the Court.
(2)  This section does not apply to proceedings in Class 1, 2, 3, 4 or 8 of the Court’s jurisdiction.
73   Proceedings after transfer
(cf Civil Procedure Act 2005, section 148)
(1)  Subject to the rules, any proceedings with respect to which an order under section 72 is made are to continue in the Court as if they had been duly commenced in the Court on the date on which they were commenced in the Supreme Court.
(2)  For the purposes of any proceedings continued in the Court, any admission duly made in the Supreme Court is to be treated as if it had been duly made in the Court.
(3)  Subject to the rules, the power of the Court to make orders as to costs includes a power to make orders with respect to the costs of—
(a)  the application for, and the making of, the order under section 72, and
(b)  any step taken in the proceedings before the order under section 72 was made.
74   Rules
(1)  The Chief Judge and any 2 other Judges may make rules for or with respect to—
(a)  the procedure (including the method of pleading) and the practice to be followed in the Court in any proceedings (including the procedure and practice to be followed in the offices of the Court) and any matters incidental to, or relating to, any such procedure or practice, including the manner and time of making any application or appeal which under this or any other Act or Commonwealth Act is to be made to the Court,
(a1)    (Repealed)
(a2)  appeals under section 32 or 43 of the Crimes (Appeal and Review) Act 2001,
(b)  the joinder of causes of action, the consolidation of proceedings, and the joinder, misjoinder and non-joinder of parties,
(c)  the means for, and the practice and procedure to be followed in, the enforcement and execution of decisions, judgments and orders of the Court,
(d)  the furnishing of security,
(e)  the costs of proceedings in the Court, and
(f)  all matters that by this Act are required or permitted to be prescribed by rules or that are necessary or convenient to be prescribed by rules for carrying out or giving effect to this Act.
(2)  Without affecting the generality of subsection (1), rules may be made, in relation to matters within the jurisdiction of the Court, for or with respect to matters for or with respect to which rules may be made under the Supreme Court Act 1970 or the Civil Procedure Act 2005, including rules that may be so made by virtue of section 257 of the Criminal Procedure Act 1986, or any other Act.
(3)  The rules may, with any adaptations specified therein, adopt by reference any rules made under the Supreme Court Act 1970 or the Civil Procedure Act 2005.
(4)  Rules may be made so as to apply differently according to such factors as may be specified in the rules.
(5)  While there are no Judges other than the Chief Judge, the reference in subsection (1) to other Judges shall be deemed to be omitted, and while there is only one such Judge, that reference shall be construed as a reference to that Judge.
(6)  This section does not give power to make rules with respect to—
(a)  any matter relating to costs that is regulated by the legal profession legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014), or
(b)  any matter for which Admission Rules may be made under the Legal Profession Uniform Law (NSW).
(7)  The rules made under this section may authorise or require the use of an electronic case management system established under clause 2 of Schedule 1 to the Electronic Transactions Act 2000 in relation to any proceedings in a court in respect of which the use of such a system is authorised by an order in force under clause 3 of Schedule 1 to that Act.
(8)  The rules made under this section may provide for the exercise by the Registrar or any other officer of the Court of any of the Court’s administrative or judicial functions under this or any other Act and for the review by the Court of the exercise by the Registrar or any other such officer of any such function.
75   Court may dispense with rules in particular cases
(cf Civil Procedure Act 2005, section 14)
The Court may, by order, dispense with any requirements of the rules if satisfied that it is appropriate to do so in the circumstances of the case.
76   Practice notes
(cf Civil Procedure Act 2005, section 15)
(1)  Subject to the rules, the Chief Judge may issue practice notes in relation to any matter with respect to which rules may be made.
(2)  A practice note must be published in the Gazette.
(2A)  Sections 40 and 41 of the Interpretation Act 1987 apply to a practice note in the same way as they apply to a statutory rule.
(3)  This section does not apply to proceedings in Class 1, 2, 3 or 4 of the Court’s jurisdiction.
77   Court may give directions in circumstances not covered by rules
(cf Civil Procedure Act 2005, section 16)
(1)  In relation to particular proceedings, the Court may give directions with respect to any aspect of practice or procedure for which the rules or practice notes do not provide.
(2)  Anything done in accordance with such a direction (including the commencing of proceedings and the taking of any step in proceedings) is taken to have been validly done.
(3)  This section does not apply to proceedings in Class 1, 2, 3 or 4 of the Court’s jurisdiction.
77A   Forms
(cf Civil Procedure Act 2005, section 17)
(1)  The Chief Judge—
(a)  may approve forms for documents to be used in connection with proceedings, and
(b)  in the case of documents filed with a court, or issued by a court, by means of an ECM system within the meaning of the Electronic Transactions Act 2000, may approve the format in which such documents are to be filed or issued.
(2)  Copies of the approved forms are to be made available for public inspection at each registry of the Court and on the Court’s internet website.
(3)  If a form is approved in relation to a document to be used in connection with proceedings, a document that is filed with or issued by the Court is to be in that form.
(4)  If a form is approved under section 17 of the Civil Procedure Act 2005 in relation to the same matter as that for which a form is approved under subsection (1), the form to be used is the form approved under subsection (1).
78   Regulations
The Governor may make regulations, not inconsistent with this Act, for or with respect to—
(a)  fixing or otherwise relating to fees and percentages to be taken in respect of the business of the Court,
(aa)  the leave which may be granted to Commissioners,
(b)  the appointment of persons to panels from which persons may be appointed as acting Commissioners, and
(c)  all matters that by this Act are required or permitted to be prescribed by regulations or that are necessary or convenient to be prescribed by regulations for carrying out or giving effect to this Act.
79   Savings, transitional and other provisions
Schedule 3 has effect.