Supreme Court Act 1933

If, before a proceeding on an appeal is decided, 1 of the judges becomes unable to continue to sit on the appeal, the proceedings may continue before the appeal court constituted by the 2 remaining judges, if the parties agree.

Note If a judge’s term of office ends before the proceeding is decided, this section does not apply (unless the judge is removed from office, or is otherwise unable to continue to sit on the appeal). Section 60A provides that, in this circumstance, the judge continues to hold office for the purpose of the proceeding, and may continue to exercise the jurisdiction of the Court of Appeal for that purpose.

If the parties do not agree to the continuation of the proceeding before the 2 remaining judges, the appeal must be reheard and decided by the Court of Appeal constituted by 3 judges ((including, if practicable, the 2 remaining judges)).

If the parties agree to the continuation of proceedings before the 2 remaining judges, and the remaining judges are divided in opinion—

if they are divided in opinion about the decision on the appeal—the appeal must be reheard and decided by the Court of Appeal constituted by 3 judges (including, if practicable, the 2 remaining judges); or

if they are divided in opinion about any other issue—the decision of the court is the decision of the most senior of the remaining judges.