Review of single appellate judge orders by full court February 13, 2017
46 Powers of Judge of Appeal(1) A Judge of Appeal may exercise the powers of the Court of Appeal:(a) to give any judgment by consent or make any order by consent,(b) to dismiss an appeal or other proceedings for want of prosecution or for other cause specified in the rules,(c) to dismiss an appeal or other proceedings on the application of the appellant or plaintiff, or(d) to deal with costs and other matters incidental to the matters mentioned in paragraphs (a), (b) and (c).(2) A Judge of Appeal may exercise the powers of the Court of Appeal:(a) to make an order or give any direction concerning the institution of an appeal or other proceedings in the Court of Appeal, or(b) to make any order or give any direction in any appeal or other proceedings, but not an order or direction involving the determination or decision of the appeal or other proceedings.(3) Subsection (2) does not authorise a Judge of Appeal to grant or refuse leave to appeal to the Court of Appeal.(4) The Court of Appeal may discharge or vary a judgment given by a Judge of Appeal, or an order made or direction given by a Judge of Appeal.(5) Subject to subsection (4), a judgment, order or direction given or made by a Judge of Appeal is to have effect as a judgment, order or direction of the Court of Appeal, whether or not the judgment, order or direction is within the powers of the Judge of Appeal under this section.
- The principles applicable to a review under s 46(4) of the Supreme Court Act were stated by this Court in Rhinehart v Welker  NSWCA 403 at  as follows:
“We are conscious of the heavy burden a party seeking a s 46(4) review has to discharge to have a Judge of Appeal’s order set aside. Such an application is not an appeal: s 19(2), Supreme Court Act; Uniform Civil Procedure Rules 2005 51.2. In order to succeed, the plaintiff beneficiaries must demonstrate that the judge erred in principle or that the judge’s decision was plainly wrong: Transglobal Capital Pty Ltd v Yolarno Pty Ltd  NSWCA 136; (2004) 60 NSWLR 143 (at , ); Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd  NSWCA 274 (at ) (per Giles JA, Ipp and Basten JJA agreeing); Lo v Iverach  NSWCA 92 (at [ 29]) (Allsop P, Giles and Macfarlan JJA). Although these tests bear similarities to those applied in reviewing a discretionary decision (House v R  HCA 40; 55 CLR 499), a decision to make a suppression order is not a discretionary one: Hogan v Australian Crime Commission (at ).”
- The decision under review in that case was not discretionary, whereas that in the present case is. This fortifies the analogy to be drawn in the present case with House v R principles and confirms that Mr Singh, who seeks intervention by the Court, bears a heavy burden of the nature described in Rhinehart v Welker.