Reference to referee
What is a reference to a referee?
The Court may refer proceedings, or a question arising in proceedings, to a person for inquiry and report to the Court. The person to whom the reference is made is called a referee.
When is a reference to a referee available?
The Court may also direct an inquiry and report on any issue raised in, or other matter connected with, proceedings in Class 3 of the Court’s jurisdiction by a commissioner of the Court ( s 35(1) of the Land and Environment Court Act 1979 (the Court Act).
How is a reference to a referee undertaken?
A reference to a referee is undertaken pursuant to Pt 20 Div 3 of the Uniform Procedure Rules 2005 (UCPR). The Court may refer to a referee appointed by the Court the whole of the proceedings or any question arising in the proceedings for inquiry and report by the referee (Pt 20 r 20.14(1) of the UCPR).
The Court may appoint any person as a referee (Pt 20 r 20.15(1) of the UCPR). A judge of the Court, who is a judicial officer, or a commissioner of the Court, who is another officer of the Court, cannot be appointed to act as a referee without the concurrence of the Chief Judge of the Court (Pt 20 r 20.15(2) of the UCPR). For an inquiry in Class 3 proceedings, however, a single commissioner can be appointed to make the inquiry (s 35(1) of the Court Act). If the referee is a commissioner or judge of the Court, there is no cost to the parties.
The Court may also appoint an external person not associated with the Court to act as a referee. The parties are responsible for the costs of an external referee.
The referee may conduct the proceedings under the reference in such manner as the referee thinks fit. The referee is not bound by the rules of evidence but may inform himself or herself in relation to any matter in such manner as the referee thinks fit ( Pt 20 r 20.20(2) of the UCPR). Evidence before the referee may be given orally or in writing and, if the referee so requires, be given on oath or by affidavit. The referee may take the examination of any person (Pt 20 r 20.20(3) and (4) of the UCPR). Each party is to provide to the referee a statement of the findings of fact and the law for which the party contends (Pt 20 r 20.20(5) of the UCPR).
Duty to participate in good faith
Each party must do all things the referee requires to enable a just opinion to be reached and no party may wilfully do or cause to be done any act to delay or prevent an opinion being reached (Pt 20 r 20.20(6) of the UCPR).
Report of the referee
The referee is to make a written report to the Court on the matter referred to the referee. The report is to state the referee’s opinion on the matter and the referee’s reasons for that opinion (Pt 20 r 20.23(1) of the UCPR). The Court is to send a copy of the report to the parties (Pt 20 r 20.23(2) of the UCPR).
Similarly, a commissioner directed to make an inquiry in Class 3 proceedings is to make a written report to the Court and the Court is to send a copy to the parties ( s 35(2) and (3) of the Court Act).
Outcomes and orders: proceedings on the report
After receiving a report by the referee, the Court may, on a matter of fact or law, do any of the following:
(a) adopt, vary or reject the report in whole or in part;
(b) require an explanation by way of report from the referee;
(c) on any ground, remit for further consideration by the referee the whole or any part of the matter referred for a further report; and
(d) decide any matter on the evidence taken before the referee, with or without additional evidence,
and must, in any event, give such judgment or make such order as the Court thinks fit (Pt 20 r 20.24(1) of the UCPR).
For an inquiry by a commissioner in Class 3 proceedings, the Court may, with the consent of the parties, adopt any findings or observations set out in the report by the commissioner (s 35(4) of the Court Act).