Most contact a litigant has with the Supreme Court before the appeal is heard is with one Judge: the Duty Judge for the month. Understanding the role explains where applications go and why some cannot be heard until the full Court sits.
The rule
(1) The Chief Justice shall assign a Judge or Judges to conduct listings and hear applications or motions which he or she has jurisdiction to hear, which will include urgent applications as provided in Rule 14. (2) The Judge assigned is also the Duty Judge for that circuit month.
Rule 1 defines the Duty Judge as the Judge for the month as determined by the Chief Justice, and Rule 4 provides that the Chief Justice assigns Judges to hearings in the Annual Circuit Calendar. The Duty Judge roster is therefore part of the same calendar that fixes the sittings. See when the Supreme Court sits.
What the Duty Judge does
| Function | Rule | When |
|---|---|---|
| Directions hearing on the Directions List | O 13 r 8 | First Monday of the circuit month |
| Further directions hearings | O 13 r 9 | During the circuit month |
| Status conference on the draft Hearing List | O 13 r 10 | Monday of the week before the sittings |
| Disputes about the contents of a book | O 13 r 7(5) | On referral by the Registrar |
| Interlocutory applications in Form 4 | O 13 r 15 | Scheduled motions day |
| Urgent applications, including stays | O 13 r 14 | By appointment through the Registrar |
| Registrar’s referrals in Form 10C | O 13 r 14(5) | As referred |
| Referral to summary determination | O 13 rr 10(2)(c), 16(1)(b) | At the status conference or otherwise |
What the Duty Judge cannot do
Rule 2 gives the Duty Judge the applications “which he or she has jurisdiction to hear”, and Rule 14(1) opens with “subject to expressed jurisdictional limits”. The jurisdiction of a single Judge is fixed by Constitution section 162(2), which allows it only where an Act or the Rules provide, and by sections 5 and 10 of the Supreme Court Act. The Duty Judge can grant leave to appeal, extend time, admit to bail, order security for costs, make interim orders to prevent prejudice, and give directions not involving the decision on the appeal. The Duty Judge cannot hear the appeal, decide an objection to competency that is outside a single Judge’s jurisdiction, or make an order that in substance disposes of the appeal. See when a single Judge can decide a matter.
A party dissatisfied with a Duty Judge’s direction or order under the Rules or section 5 may apply to the full Court within 21 days under Order 11 Rule 25, and a refusal of leave, extension of time or bail can be renewed before the Court under section 10(2) of the Act by written request to the Registrar within 14 days under Order 11 Rule 27. See asking the full Court to reconsider.
How to get before the Duty Judge
There are three doors. The first is the listings process itself: a matter on the Directions List comes before the Duty Judge automatically on Form 10A. The second is the motions day: Rule 15 requires all applications for interlocutory orders, other than urgent ones, to be made to the Duty Judge on a scheduled motions day, in Form 4, with a concise statement of the Court’s jurisdiction to grant the orders sought. The third is the urgent application under Rule 14: a written request to the Registrar explaining the urgency, the Registrar’s referral in Form 10C to the Duty Judge or, in his absence, the Chief Justice, and an appointment. See making an application and making an urgent application.
The Duty Judge and stays
The commonest urgent application is for a stay of the National Court judgment pending appeal. Section 19 of the Act provides that an appeal does not operate as a stay unless the Court or a Judge orders, and section 5(1)(b) allows a Judge to make an interim order to prevent prejudice. Rule 14 names “urgent applications for a stay” as the paradigm case. The application must be accompanied by the originating process, the application, affidavits, an undertaking as to damages where appropriate, and a draft order, and if it is to be heard ex parte it must first seek an order dispensing with service and explain why. See applying for a stay.
The Chief Justice’s role
Rule 14(2) provides that the appointment for an urgent application is obtained from the Duty Judge “or in his absence the Chief Justice”, and Form 10C is addressed to “Chief Justice/Duty Judge”. Rule 12(2) reserves alteration of the Hearing List to the Chief Justice or the bench before which the matter is listed. Order 11 Rule 10 lets the Registrar waive document and appeal-book requirements after consulting the Chief Justice or, if unavailable, the next most senior Judge in chambers. The Chief Justice is, in effect, the Duty Judge of last resort.
Sources
- Supreme Court Rules 2012 — O 13 rr 1, 2, 4, 7–16; O 11 rr 10, 25–27; Forms 4, 10A, 10C
- Supreme Court Act (Chapter 37) — ss 5, 10, 19
- Constitution — s 162(2)
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.