On 10 December 2020, the Attorney General, the Honourable Vickie Chapman MP, announced that Justices Trish Kelly, David Lovell and Sam Doyle had been appointed to the Court of Appeal. Justices Mark Livesey and Chris Bleby had been appointed in January and May 2020.
The Attorney General also announced that the Supreme Court (Court of Appeal) Amendment Act 2019 will come into operation on 1 January 2021.
Sittings of the Court of Appeal
Sittings of the Court of Appeal commenced in February 2021.
The Court of Appeal will sit in two terms between February and June and then between August and December each year. The Court of Appeal will not sit in January or July each year.
Each month of sittings will be divided, very broadly, into a first week of civil appeals, a second week of criminal sentence appeals and a third week of criminal convictions appeals.
Those members of the Court of Appeal not occupied with sittings will consider applications for leave to appeal, whether these be civil or criminal appeals.
Jurisdiction of the Court of Appeal of South Australia
By the Supreme Court (Court of Appeal) Amendment Act 2019, the Supreme Court Act 1935 has been amended so that the Court is now constituted of the General Division and the Court of Appeal.
By s 7(1a), the Court of Appeal consists of the Chief Justice, the President and the puisne judges of the court that are appointed to the Court of Appeal, the masters and the judicial registrars. By s 9B, the President “is responsible, subject to the Chief Justice’s directions, for the administration of the Court of Appeal”. By s 45(3a), the Court of Appeal will sit at such times and places as the President may direct.
By s 19B, the Court of Appeal has jurisdiction to hear and determine all appeals from a single judge and, subject to the Supreme Court Act or any other Act, and to the rules of court, all appeals from a single judge sitting in chambers. As may be expected, the Court of Appeal also has jurisdiction to hear and determine all questions of law referred to or reserved for the consideration of the Court of Appeal.
By s 19C, the Court of Appeal is constituted of not less than 3 judges when hearing and determining any matter. In accordance with any Act or rules of court, the Court of Appeal may be constituted by 2 judges. In such circumstances, a decision of the Court is to be in accordance with the opinion of those judges, or, if they are divided, the proceedings must be reheard and determined by the Court of Appeal constituted by 3 judges (including, if practicable, the 2 judges who first heard the proceedings).
By s 19D, in hearing and determining matters within the jurisdiction conferred by s 19B, the Court of Appeal has, and may exercise, any jurisdiction and powers that the court has in its General Division, or that were exercisable by the Full Court immediately before the commencement of s 4(2) of the Supreme Court (Court of Appeal) Amendment Act 2019.
By s 47, there is facility for the Chief Justice and the President to agree that a General Division judge may act as an acting judge in the Court of Appeal for a “suitable period”, and vice versa. It is necessary for the particular judge to agree to undertake acting duties. The Chief Justice may then, by instrument in writing, authorise the judge to undertake acting duties for a specified period.
Other Australian Courts of Appeal
The first Australian Court of Appeal was established in New South Wales in 1966. The Queensland Court of Appeal was established in 1991, the Victorian Court of Appeal was established in 1994 and the Western Australian Court of Appeal was established in 2005.
These arrangements generally replaced the hearing of appeals by a “Full Court” made up of puisne judges allocated by the Chief Justice for particular sittings and hearings.
The New South Wales Court of Appeal operates in a manner different to all other Courts of Appeal. The judges appointed to that Court sit routinely on civil matters. Criminal matters are heard by the New South Wales Court of Criminal Appeal which still operates on a “Full Court” basis, with judges allocated from the Court of Appeal, the Chief Judges of Common Law and Equity, and from the Common Law Division (where criminal trials are heard). Common Law Division judges are not allocated to appeals from other Common Law Division judges.
Otherwise, Courts of Appeal around Australia routinely hear both criminal and civil matters. Criminal matters in those courts account for well over half the caseload.
In New South Wales, the Court of Appeal comprises the Chief Justice, the President and 11 judges, plus acting judges. In Victoria, apart from the Chief Justice and the President, there are 11 judges.
At six judges (including the Chief Justice) the South Australian Court of Appeal is slightly smaller Western Australian Court of Appeal, which has eight judges including the President and Chief Justice, and the same size as the Queensland Court of Appeal which has six judges including the President and Chief Justice.