Tarasenko v Boylan and the Attorney-General File No. SCGRG 92/1672 Judgment No. 3642 Number of Pages 14 Courts and Judges (1992) 64 a Crim R 268

[1992] SASC 3642

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA King C.J.(1), Olsson(2) and Mullighan(3), JJ.

CWDS
Courts and judges - courts - judicial review to compel District court judge to impose penalties for summary offences constituting breaches of a bond imposed in district Court - whether section 22 of the Magistrates Act or section 5 Judicial Administration (Auxiliary Powers and Appointments) Act empower District Court judge to exercise powers of magistrate under Magistrates Courts Act 1922 - such powers exercisable by District Court judge sitting as District Court - section 57(4) Criminal Law (Sentencing) Act not impliedly repealed by Magistrates Court Act or section 9 District Court Act - District Court judge required to impose penalties for summary offences constituting breach of bond granted in District Court - order in nature of mandamus commanding District Court judge to impose penalties for the summary offences.

HRNG ADELAIDE, 8 September 1992 #DATE 16:10:1992
Counsel for plaintiff:         Mr G.F. Barrett
Solicitors for plaintiff:     Matthew Mitchell
Counsel for defendant Boylan:    No attendance.
Counsel for Attorney-General for South Australia:             Mr S.A. Millsteed
Solicitors:   Crown Solicitor

ORDER
Delivery of reasons for judgment made earlier.

JUDGE1 KING C.J. In this action for judicial review the plaintiff sought an order in the nature of mandamus directing Judge Boylan of the District Court of South Australia to sentence him with respect to four summary offences to which he pleaded guilty on 27th May 1992 in the Holden Hill Magistrates Court. The Court made the order and indicated that reasons for judgment would be delivered later. 2. The summary offences to which the plaintiff pleaded guilty were breaches of a bond upon which a sentence in the District Court was suspended on 2nd August 1991. When the plaintiff pleaded guilty to the summary offences in the Holden Hill Magistrates Court, he was remanded pursuant to section 57(4) of the Criminal Law (Sentencing) Act to appear for sentence in the District Court. When the plaintiff appeared for sentence before Judge Boylan in the District Court on 29th June 1992, the learned judge declined to deal with the matter and remanded the plaintiff to the Holden Hill Magistrates Court. When the plaintiff appeared in that court on 7th July 1992, the magistrate considered that he was precluded by section 57(4) of the Criminal Law(Sentencing) Act from imposing sentence and remanded the plaintiff back to the District Court. On 13th July 1992, when the plaintiff again appeared before Judge Boylan, the learned judge revoked the suspension of the sentence imposed in the District Court and estreated the recognisance, but declined to sentence the plaintiff for the summary offences. This action is designed to compel him to do so. 3. In declining to sentence the plaintiff, Judge Boylan relied upon a view of the law expressed by Judge Lunn of the District Court in a memorandum which Judge Boylan communicated to counsel. That memorandum is before us. Since that time the views expressed by Judge Lunn have been substantially reproduced by him in reasons for judgment in R v Mark Anthony Schettini delivered in the District Court on 5th August 1992. 4. The first issue arising is whether the Magistrates Court Act 1991, which came into operation on 6th July 1992, or section 9 of the District Court Act1991, which came into operation on the 6th July 1992, or both operate to deprive District Court judges of the power previously exercised by them to impose penalties in respect of summary offences. That power was conferred by section 22 of the Magistrates Act 1983 which is as follows:
    "22. Any of the following persons, namely-
    (a) a Judge of the Supreme Court;
    (b) a Master of the Supreme Court; or
    (c) a District Court Judge, may exercise the jurisdiction,
        powers or functions of a magistrate." 5. Since 1984, where an offender has pleaded guilty to charges in the District Court and has also pleaded guilty or desires to plead guilty to charges of summary offences, the practice has existed of transferring the files relating to the summary offences to the District Court to enable the District Court judge to frame penalties which dispose of all matters. This practice has overcome the difficulties existing in the past arising from the ignorance of the sentencing magistrate as to what sentence the District Court might impose with respect to the District Court charges and the ignorance of the District Court judge as to what sentence the magistrate might impose with respect to the summary offences. The advantage in the administration of justice of having the offender dealt with by the same judge for all offences is manifest. The practice was sanctioned by the Chief Justice, the Chief Judge of the District Court, and the Chief Magistrate. It was implemented administratively by directions given by the Chief Magistrate authorising the transfer of files to the District Court in such cases. I might add, although it is not material for the purpose of the present case, that the same arrangement exists with respect to the Supreme Court. 6. In Schettini, Judge Lunn took the view that judges of the District Court had exercised jurisdiction with respect to summary matters by constituting themselves courts of summary jurisdiction. He considered that the power to do this, and therefore, in his view, the power to deal with summary offences, disappeared when the Magistrates Court Act 1991 came into force on 6th July 1992. Courts of summary jurisdiction, upon which jurisdiction to dispose of charges of summary offences was conferred by the Summary Procedure Act 1921, were not courts of record and had no continuity. A magistrate or justices sitting to hear a complaint of a summary offence sat ad hoc as a court of summary jurisdiction to dispose of that complaint. When the complaint was disposed of that court of summary jurisdiction ceased to exist. R v O'Loughlin ex parte Ralphs (1971) 1 SASR 219 per Bray C.J. at 231. Such courts were effectively abolished when the Magistrates Court Act came into operation in 1992. Jurisdiction to hear and determine a charge of a summary offence was conferred on the Magistrates Court by section 9. The Magistrates Court was established by the Magistrates Court Act as a court of record possessing continuity and a permanent structure. Responsibility for administration of the court was vested in the Chief Magistrate. The Act does not provide for the judicial composition of the court as does section 7 of the Supreme Court Act and section 10 of the District Court Act. Section 15 of the Magistrates Court Act provides that the court, when sitting to adjudicate on any matter, must be constituted of a magistrate, or in certain circumstances, a special justice or two justices. A magistrate for the purpose of the Act is defined as meaning a person holding office as a magistrate under the Magistrates Act 1983 or as an industrial magistrate under the Industrial Conciliation and Arbitration Act 1972. 7. In Schettini Judge Lunn took the view that the conferral on a judge by section 22 of the Magistrates Act of the jurisdictions powers or functions of a magistrate did not confer on the judge the office of a magistrate and "does not go far enough to actually make him or her a constituent member of the Magistrates Court". He considered that as jurisdiction to hear and determine charges of summary offences was now vested in the Magistrates Court, a District Court judge could no longer exercise that jurisdiction. I think that, apart from any other consideration, that view overlooks the fact that there is no such thing as a constituent member of the Magistrates Court. The Magistrates Court Act, as I have pointed out, does not provide for constituent members of the Magistrates Court. The magistracy is constituted by the Magistrates Act. A magistrate is not appointed to the Magistrates Court but as a magistrate under the Magistrates Act. The decision as to which magistrates sit in the Magistrates Court from time to time is for the Chief Magistrate exercising his powers under section 8 of the Magistrates Act and his responsibility for the administration of the court pursuant to section 11 of the Magistrates Court Act. There is no permanent Magistrates Court judiciary. 8. I am unable to agree with Judge Lunn's view that a District Court judge is not authorised to sit as the Magistrates Court. I think that the jurisdiction powers and functions of a magistrate which a judge is authorised to exercise by section 22 of the Magistrates Act, include the totality of a magistrate's jurisdiction powers or functions, from whatever source derived, and include his jurisdiction powers and functions when sitting as the Magistrates Court. The distinction sought to be made between the jurisdiction power or functions of a magistrate as such and his jurisdiction powers or functions when sitting as the Magistrates Court, is unduly subtle and, in my opinion, not warranted by the section. The section seems to me moreover to have a wider operation. It enables the judge to exercise the jurisdiction powers or functions of a magistrate by sitting in the Magistrates Court, but it goes further than that. It does not limit the means by which a judge may exercise the jurisdiction powers and functions of a magistrate, to sitting as the Magistrates Court. The language of the section is apt to confer on the District Court judge, while sitting as the District Court, the jurisdiction powers and functions of a magistrate. As the jurisdiction powers or functions of a magistrate include the jurisdiction powers or functions which he enjoys in sitting as the Magistrates Court, it follows that the District Court judge sitting as the District Court may exercise the jurisdiction powers or functions of the Magistrates Court. 9. The operation of section 22 of the Magistrates Act is, for relevant purposes twofold. It empowers the judge to sit in the Magistrates Court as though he were a magistrate and to exercise the jurisdictions powers and function of a magistrate therein. It also enables him, while sitting in his own court and exercising the jurisdiction of that court, to exercise the jurisdiction powers or functions of a magistrate including those which the magistrate could exercise when sitting as the Magistrates Court. 10. The legal position as outlined above is confirmed by section 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988. Subsection (1) of that section, provides that:
    "... a judicial officer holding or acting in a particular
    judicial office may exercise, in addition to the jurisdiction
    and powers attaching to that office, the jurisdiction and powers
    attaching to any other judicial office of a co-ordinate or
    lesser level of seniority." 11. Subsection (4) provides that:
    "A judicial officer who has been appointed to hold or act in a
    judicial office in a particular court must obtain the consent of
    the judicial head of that court before undertaking judicial work
    in another court (but such a consent is not required where the
    occasion to exercise the jurisdiction and powers of some other
    court arises incidentally in some matter before the court to
which the judicial officer was appointed)." 12. I think that subsection (4) clearly contemplates that a judge may sit in a lower court and exercise its jurisdiction, but that he may also exercise the jurisdiction and powers of a lower court while sitting as the court to which he has been appointed. 13. I am of opinion therefore that a judge of the District Court is authorised to hear and determine charges of summary offences in proceedings which have been instituted in the Magistrates Court and that there is no occasion to discontinue the practice which has hitherto been followed. It is not necessary for the District Court judge to sit as the Magistrates Court. He is entitled to exercise the jurisdiction as a judge of the District Court. The proceeding is not, of course, in any sense removed from the Magistrates Court into the District Court, but is dealt with by the District Court judge pursuant to the special powers conferred by section 22 of the Magistrates Act and section 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act. It remains a "criminal action" within the meaning of section 3 of the Magistrates Court Act and an appeal would therefore be governed by section 42 of the Magistrates Court Act. 14. I should mention a point raised by Judge Lunn in Schettini's case relating to the affect of section 9 of the District Court Act. That section is as follows:
    "9. (1) The Court has jurisdiction to try a charge of any
     offence except treason or murder, or a conspiracy or attempt to
     commit, or assault with intent to commit, either of those
     offences.
     (2) The Court has jurisdiction to convict and sentence, or to
     sentence, a person found guilty on trial, or on his or her own
     admission, of such an offence.
     (3) The Court's jurisdiction to try, convict or sentence for a
     summary offence exists only where the offence is charged in the
     same information as an indictable offence.
     (4) The Court has any other criminal jurisdiction conferred by
statute." 15. Judge Lunn saw subsection (3) of that section as precluding a District Court judge, sitting as the District Court, from entertaining the charge of a summary offence where that charge was not included in the same information as an indictable offence. I think that reads too much into the subsection. The purpose of the subsection is clear. Subsection (1) confers on the District Court jurisdiction to try any offence except the named offences and is wide enough to embrace all charges of summary offences. Subsection (3) operates to limit the jurisdiction with respect to summary offences to those which are charged in the same information as an indictable offence. Were it not for this subsection, the jurisdiction of the District Court would include that of the Magistrates Court. I do not discern any intention in that section to restrict the flexibility in curial functions introduced by section 22 of the Magistrates Act and section 5 of the Judicial Administration (AuxiliaryAppointments and Powers) Act. A subsequent statutory provision couched in general terms or directed to a different subject matter, will not be construed as repealing impliedly prior enactments having a special purpose, unless the intention to effect repeal is clear: Butler v Attorney-General (Victoria)
(1961) 106 CLR 268 per Fullagar J. at p 275-6. Section 9 is designed to define the primary jurisdiction of the District Court in criminal matters. There is no reason to construe it as impliedly repealing the special powers conferred upon a District Court judge to exercise the jurisdiction of a magistrate. 16. It follows from what I have said that a District Court judge is empowered by the above sections not only to sit in the Magistrates Court and exercise its jurisdiction, but also to hear and determine charges of summary offences while sitting as the District Court. That conclusion would not of itself justify an order in the nature of mandamus. The exercise of the power conferred upon a District Court judge by the above sections is not mandatory. He has a discretion as to whether or not to exercise it. A District Court judge, like a Supreme Court judge, is to be encouraged to make use of the power whenever it is in the interests of justice to dispose of all matters pending against a particular offender in the same court. He would be acting unjudicially if he refused to do so for capricious or unjudicial reasons. A distaste for his decisions on penalties for summary offences being subject to appeal to a single judge of the Supreme Court rather than the Full Court would certainly not be a proper reason for refusal to exercise the power. Whether mandamus would lie to compel a judge to exercise a jurisdiction where his refusal was based upon such grounds, need not be decided in the present case. 17. The above reasoning disposes, in my opinion, of the first ground advanced by Judge Lunn, upon whose memorandum Judge Boylan relied, for considering that a District Court judge could no longer impose penalties for summary offences. The second ground advanced was that the Magistrates Court Act and section 9 of the District Court Act also operate as an implied repeal of section 57(4) of the Criminal Law (Sentencing) Act 1988 which is as follows:
    "(4) If a probationer is found guilty of an offence by a court
     other than the probative court, being an offence committed
     during the term of the bond, that other court-
     (a) if it is of a superior jurisdiction to that of the
         probative court, must deal with the probationer for the
         breach of condition arising out of the commission of the
         offence; or
     (b) if it is of an inferior jurisdiction to that of the
         probative court, must remand the probationer to the
         probative court for sentence for the offence." 18. The general provisions of the Magistrates Court Act and section 9 of the District Court Act do not disclose, in my opinion, any intention to repeal the special provisions of section 57(4) of the Criminal Law (Sentencing) Act which deal with the particular problem of sentencing offenders who are in breach of conditions of a bond imposed in another court. In my opinion, the provisions of section 57(4) are mandatory and required Judge Boylan to determine and impose the penalties for the summary offences which constituted the breach of the bond. 19. I should add that I am strongly of the view that even if section 57(4) did not exist, it would nevertheless have been highly desirable for the District Court judge to deal with the question of penalty for all the offences for which the plaintiff was before the courts, that is to say the original offence in respect of which the sentence was suspended and the summary offences which were the breaching offences. I note that subsection (4) of section 57 is repealed by the Statutes Amendment (Sentencing) Act 1992 which is not yet in operation. When that Act comes into operation, any invalidity attaching to a sentence imposed in the lower court due to inadvertence will be removed, but the practice of transmitting the matters constituting the breach to the probative court should be maintained and the probative court should make use of the powers discussed in this judgment, wherever practicable, to dispose of all matters for which the offender is before the courts.

JUDGE2 OLSSON J. This is an action in which the plaintiff seeks an order in the nature of mandamus that the firstnamed defendant, a Judge of the District Court, proceed to sentence the plaintiff with respect to four separate offences to which he pleaded guilty in the Holden Hill Magistrates' Court on 27 May 1992. 2. The background facts and circumstances giving rise to the application are not in dispute and may simply be stated. 3. On 2 August 1991 the plaintiff appeared before the District Court with respect to a variety of offences, including assault. He was sentenced to a total of 12 months imprisonment with a non-parole period of 6 months. The custodial sentence in respect of certain offences was suspended upon him entering into a bond in the sum of $200 to be of good behaviour for a period of two years. It also contained certain other terms and conditions. 4. On 27 May 1992 the plaintiff further appeared in the Holden Hill Magistrates' Court charged with four separate offences, two of which were committed on 24 January 1992 and the remainder of which were committed on 29 March 1992. (I shall collectively refer to these offences as "the remand offences".) The earlier offences were driving whilst disqualified and driving an unregistered motor vehicle. The later offences were those of assault and assaulting occasioning actual bodily harm. 5. On the plaintiff entering a plea of guilty to all four offences the presiding magistrate took the view that he was required, by virtue of the provisions of section 57(4) of the Criminal Law (Sentencing) Act 1988 (SA) ("the Sentencing Act") to remand the plaintiff for sentence by the District Court, being the probative court in relation to the bond to be of good behaviour. 6. On 23 June 1992 the Crown made application to the District Court seeking that the plaintiff be brought before it, as the probative court, to answer an allegation that the bond to be of good behaviour had been breached by the commission of the remand offences; and to show cause why the plaintiff should not be dealt with according to law. 7. This application came before Boylan D.C.J. on 29 June 1992, at which time the plaintiff admitted his breaches of the bond. Upon counsel for the plaintiff seeking to make pleas in mitigation of penalty with respect, not only to the breach of bond, but also the remand offences, Boylan D.C.J. declined to deal with other than the breach of bond matter. He expressed the opinion that, in view of the then pending amendments to the relevant legislation, he had no jurisdiction to deal with the remand offences. 8. The remand offences were thereupon relisted before the Deputy Chief Magistrate, sitting as the Magistrates' Court at Holden Hill, on 7 July 1992. He, in turn, declined to deal with them on the basis that he considered that the effect of section 57(4) of the Sentencing Act was that he had no jurisdiction to deal with them. He was of opinion that the sentencing process had to be carried out by the Judge of the District Court. 9. Something akin to the legendary "Mexican Standoff" then developed. Counsel for the plaintiff again appeared before Boylan D.C.J. on 13 July 1992, at which time that learned judge estreated the amount of the breached bond and revoked the suspension of the relevant custodial sentence - directing that it be deemed to have commenced on 8 May 1992, the date upon which the plaintiff had been taken into custody. 10. Boylan D.C.J., however, persisted in his attitude that he had no jurisdiction to sentence the plaintiff with respect to the remand offences. 11. The somewhat Gilbertian situation prevailing at the present time is that the plaintiff is currently in custody serving the non-parole period related to the sentence the suspension of which was revoked. After taking into account remissions for good behaviour and the possibility of home detention, the plaintiff may be eligible for release from secure custody in the immediate future. On the other hand, bail has not been granted in respect of the remand matters and neither the Magistrates' Court nor the District Court are disposed to sentence him in respect of them. 12. In my opinion (and with all due respect to a contrary view expressed by Lunn D.C.J. in his reasons for decision in the matter of The Queen v Schettini (Lunn D.C.J., 5 August 1992, unreported) ("Schettini")) the principal issue now before the Full Court is simply disposed of. 13. Section 57(4) of the Sentencing Act stipulates as under:-

    "(4) If a probationer is found guilty of an offence by a
     court other than the probative court, being an offence
     committed during the term of the bond, that other court -
     (a) if it is of superior jurisdiction to that of the probative
         court, must deal with the probationer for the breach of
         condition arising out of the commission of the offence; or
     (b) if it is of an inferior jurisdiction to that of the
         probative court, must remand the probationer to the
probative court for sentence for the offence." 14. That section is couched in clear and unequivocal terms. It is abundantly clear that the situation with which Boylan D.C.J. was confronted fell fairly and squarely within paragraph (b) of the sub-clause. 15. By virtue of section 57(4) of the Sentencing Act, the plaintiff having been convicted of offences committed during the term of the bond entered into before the District Court, the Magistrates' Court was thereupon expressly denied jurisdiction to sentence the plaintiff. It was a mandatory requirement of the legislation that he be remanded to the District Court, as the probative court, for sentence in respect of the offences in question. 16. Counsel for both the plaintiff and the defendants in the present proceedings conceded that such a situation is the logical outcome of the only construction which may fairly be placed upon the provisions of the Sentencing Act. 17. The contrary view expressed by Lunn D.C.J. in Schettini and accepted by Boylan D.C.J. appears to be based upon what seems to me to be a fallacious view of the interaction between the Sentencing Act and the District Court Act1991 (SA) ("the District Court Act"). 18. In the course of his reasons for decision in Schettini, Lunn D.C.J. had this to say:-
"Section 57(4)(b) of the Criminal Law (Sentencing) Act 1988,
    which is referred to above, provides that the defendant is to be
    referred to the District Court for sentence. However, I do not
    consider that that section in itself confers jurisdiction on the
    District Court to undertake the sentencing of the defendant.
    Section 9(3) of the District Court Act 1991, as a subsequent
    piece of legislation, must take precedence over any implication
that section 57(4)(b) of the Sentencing Act carries in it an
    implied power to deal with a summary offence. Therefore, the
    only way in which a District Court Judge could have jurisdiction
    to deal with summary offences other than those coming within
section 9(3) of the District Court is if that judge can sit as
    the Magistrates' Court and exercise its powers to deal with
    summary offences. The second major issue to be addressed is
whether this is possible." 19. The learned judge then went on to discuss the interaction of other legislative provisions to which it is, for the moment, unnecessary to refer. 20. In my opinion this approach misconceives the obvious intention and clear legal effect of section 57(4) of the Sentencing Act, read in light of the complementary provisions of section 9 of the District Court Act. The latter section is expressed as follows:-
    "9. (1) The Court has jurisdiction to try a charge of any
     offence except treason or murder, or a conspiracy or attempt to
     commit, or assault with intent to commit, either of those
     offences.
     (2) The Court has jurisdiction to convict and sentence, or to
     sentence, a person found guilty on trial, or on his or her own
     admission, of such an offence.
     (3) The Court's jurisdiction to try, convict or sentence for a
     summary offence exists only where the offence is charged in the
     same information as an indictable offence.
     (4) The Court has any other criminal jurisdiction conferred by
statute." 21. It is at once to be noted that, whilst sub-clause (3) restricts the general jurisdiction of the District Court to deal with summary offences to situations in which the offence charged is contained in the same information as an indictable offence, sub-section (4) nevertheless expressly sets out to preserve any other criminal jurisdiction which is separately and specifically conferred by statute upon the District Court. The two statutes in question are thus not in conflict with, but complement, one another. 22. It seems implicit in the reasoning of Lunn D.C.J. that, in dealing with all summary matters which come before it for disposal, a Judge of the District Court is exercising a magisterial jurisdiction. In my view this is a misconception of the provisions of the Sentencing Act, at least in so far as section 57(4) is concerned. 23. A careful study of the lastmentioned section immediately reveals that it actually operates so as to oust the summary jurisdiction altogether, in situations to which sub-paragraph (b) of it applies. Having convicted the probationer of any relevant offence the Magistrates' Court is required to remand that person to the probative court for sentence in respect of the various convictions. Upon that remand the court to which the probationer is remanded thereupon exercises its own jurisdiction in imposing the resultant sentence. It is not then dealing with a summary offence in the sense contemplated by section 9(3) of the District Court Act. 24. So it is that, in the instant case, no problem of the type discussed in Schettini arises. 25. It therefore follows that Boylan D.C.J. was bound to accept the remand to him and proceed to sentence the plaintiff in respect of the remand offences. 26. Having regard to the submissions of counsel on the hearing of this matter, it is desirable that some further comment be made concerning the types of problem envisaged in Schettini and those adverted to by counsel before the Full Court. 27. For some time it has often been the situation, both within the District Court and the Supreme Court, that, quite aside from section 57 situations, the presiding judge is requested to call for pending files related to summary offences for the purpose of sentencing an offender in respect of all currently outstanding offences by imposition of a composite sentencing package. Manifestly this is a most desirable approach. It has the advantage of avoiding the possibility that a court exercising a summary jurisdiction may proceed to impose a sentence or sentences which could have the practical effect of largely destroying the concept of a separate sentencing package designed by a superior court with a particular view in mind - one which may often be related to the rehabilitation of the offender. 28. There can be no doubt that, prior to the proclamation of the recent legislative package which came into effect as of 6 July 1992 ("the legislative package"), such a process could be achieved by either one of two separate routes. 29. Section 2 of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) ("the Auxiliary Appointments Act") establishes a judicial hierarchy within this State and accords the various judicial officers relative degrees of seniority for the purposes of the statute. 30. Section 5 of the Auxiliary Appointments Act provides that, subject to an exception not here relevant,:-
    "... a judicial officer holding or acting in a particular
    judicial office may exercise, in addition to the jurisdiction
    and powers attaching to that office, the jurisdiction and powers
    attaching to any other judicial office of a co-ordinate or
    lesser level of seniority." 31. It goes on to stipulate as follows:-
    "(3) A judicial officer who holds a particular judicial
     office but is acting in another may adopt the title appropriate
     to that other office.
     (4) A judicial officer who has been appointed to hold or act in
     a judicial office in a particular court must obtain the consent
     of the judicial head of that court before undertaking judicial
     work in another court (but such a consent is not required where
     the occasion to exercise the jurisdiction and powers of some
     other court arises incidentally in some matter before the court
to which the judicial officer was appointed)." 32. It is to be noted that the Auxiliary Appointments Act was, according to its long title, expressly enacted to supplement and achieve efficiencies in the deployment of the State's judiciary. The concept of section 5, in seeking to achieve that aim, was to enable a puisne judge of the Supreme Court, in appropriate cases, to exercise the jurisdiction of any judicial officer of a lesser level of seniority; and a District Court judge to exercise the jurisdiction of any judicial officer of either co-ordinate or lower levels of seniority. 33. So it was that, under the Auxiliary Appointments Act, a District Court judge, for example, who was sitting in the criminal jurisdiction for the purpose of sentencing an offender in relation to a particular factual scenario was entitled, without the consent of the judicial head of his or her court, by virtue of section 5 of the Auxiliary Appointments Act, also to deal with other summary offences arising out of the same scenario. With the appropriate consent it would also have been open to that judge to deal with any other pending summary matter if it was considered desirable so to do for the purposes of achieving a co-ordinated sentencing package. The latter situation was the case whether or not the occasion to do so arose incidentally in some matter then before the court. A somewhat complementary, but separate, provision was also to be found in the Magistrates Act, 1983. Section 22 of that statute was expressed in these terms:-
    "22. Any of the following persons, namely -
    (a) a Judge of the Supreme Court;
    (b) a Master of the Supreme Court; or
    (c) a District Court Judge, may exercise the jurisdiction,
powers or functions of a magistrate." 34. Having regard to the scheme of the then Justices Act 1921 (SA), it followed from section 22 that, in any event and without reference to the judicial head of the court in question, any one of the persons referred to in section 22 could sit as a court of summary jurisdiction; and, by virtue of the authority conferred by that section, proceed to dispose of outstanding summary offences where the files were brought up for consideration at the same time as an indictable offence being dealt with in the relevant superior court. 35. The legislative package, as proclaimed, involved a serious of separate enactments. 36. At the District Court level, the Local and District Criminal Courts Act 1926 (SA) was repealed and replaced by the District Court Act. The District Court was established by the latter statute as a Court of record, having a judiciary consisting of the Chief Judge, other Judges and the Masters. 37. Section 11 of the District Court Act provided that the Chief Judge was to be the principal judicial officer of the court. Section 12 stipulated that other appointments to judicial office in the court were to be made by the Governor. The actual repeal of the pre-existing Local and District Criminal Courts Act was effected by the Statutes Repeal and Amendment (Courts) Act 1991 (SA). Section 19 of that Act contained a transitional provision which enacted that, on the commencement of the District Court Act, the Senior Judge of the former District Court was to become the Chief Judge of the new Court; and that the Judges and Masters then holding office under the repealed Local and District Criminal Courts Act were to become Judges and Masters respectively of the new Court. 38. The legislative package also substantially amended the Justices Act and retitled it the Summary Procedure Act 1991 (SA). The hitherto regionally constituted courts of summary jurisdiction were abolished and replaced by a totally new single structure. 39. The lastmentioned structure was erected by the Magistrates' Court Act 1991 (SA). This brought the new Magistrates' Court of South Australia into being as a court of record. That court was of statewide jurisdiction. It was divided into three separate divisions, one of which was the criminal division. Section 7 of the Magistrates' Court Act provided that the court was, in its criminal division, to be a court of summary jurisdiction. 40. It is particularly to be noted that, in the case of the Magistrates' Court, the transitional provision expressed in the Statutes Repeal and Amendment (Courts) Act 1991 read as follows:-
"20. (1) On the commencement of the Magistrates Court Act
     1991 the Registrars and non-judicial staff of local courts of
     limited and special jurisdiction and of courts of summary
     jurisdiction are transferred to corresponding positions on the
     staff of the Magistrates Court.
     (2) Any proceedings commenced before a local court of limited
     or special jurisdiction or a court of summary jurisdiction may
     be continued and completed before the Magistrates Court.
     (3) A preliminary examination commenced before a justice may be
     continued and completed before the Magistrates Court, but the
     Court will apply the law as in force at the commencement of the
     proceedings in all respects as if references in that law to a
     justice were references to the Court." 41. It is at once apparent that, unlike the transitional provisions contained in section 19 apropos the District Court Act, section 20 was singularly silent as to who were to be the initial magistrates to discharge the functions of the new Magistrates' Court. Moreover, as I understand the position, no formal steps are envisaged or have been taken, since the promulgation of the Magistrates Act, to achieve any formal separate appointment of judicial officers to that Court. Existing magistrates have simply been assigned by the Chief Magistrate, in an informal manner, to work in its various Divisions. 42. I consider that the reason for such a situation is clearly to be discerned when one studies section 15 of the Magistrates Court Act. Inter alia, that section enacts:-
    "(1) Subject to this section, the Court, when sitting to
adjudicate on any matter must be constituted of a Magistrate." 43. That statute does not itself provide any specific machinery for the formal appointment of the magistrates to it, as members of the Court. Furthermore, whilst it prescribes that the Chief Magistrate is the principal officer of the Court, it does not specifically erect any machinery, within the statute itself, for his appointment. 44. In my opinion the reason for these omissions is readily to be ascertained by reference to section 3 of the same statute. That section defines the expression "Chief Magistrate", as employed in the Magistrates Court Act, as meaning "the person holding or acting in the office of Chief Magistrate under the Magistrates Act 1983". Similarly the word "Magistrate" as employed in the Magistrates Court Act is defined as meaning "a person holding office as a Magistrate under the Magistrates Act 1983 or as an Industrial Magistrate under the Industrial Conciliation and Arbitration Act 1972". 45. It follows from that situation that whilst, as is pointed out in Schettini, the jurisdiction to deal with summary offences is now vested in the Magistrates Court, nevertheless that Court is, in turn, constituted of those persons who have been appointed as Magistrates and Chief Magistrate respectively pursuant to the provisions of the Magistrates Act. 46. It is not without significance that nowhere in the recent legislative package is there any reference to the repeal or modification of either section 22 of the Magistrates Act or of sections 4 or 5 of the Auxiliary Appointments Act. By way of contrast many other statutory provisions rendered redundant by the new legislation were expressly repealed by the Statutes Repeal and Amendment (Courts) Act 1991. 47. I am firmly of the view that, having regard to the features which I have above identified, there is simply no warrant for suggesting that Parliament impliedly intended to repeal or cut down any of those provisions. On the contrary there still remains adequate scope for them to operate harmoniously within the new legislative scheme. 48. It would, in fact, be surprising if it were otherwise, when it is borne in mind that the clear legislative policy, in recent years, has been to establish situations in which all members of the judiciary may be deployed and operate in as efficient, co-operative and flexible a manner as is possible. 49. As Mr Millsteed, of counsel for the Attorney General pointed out, it has never been questioned that puisne judges of the Supreme Court have, under the relevant legislative provisions, regularly exercised the jurisdiction and powers of the District Court, notwithstanding that such Court and its predecessor were both courts of record to which judges were specifically appointed. As he argued, it is illogical, in those circumstances, to suggest that, simply because the Magistrates' Court has now been erected as a court of record, members of courts superior to it are debarred from exercising its jurisdiction, even if it be the case that magistrates must specifically be appointed as members of it. 50. In both instances the clear concept of the Auxiliary Appointments Act is that judges appointed to senior levels of the judiciary are to be at liberty to discharge the functions of less senior judicial officers within the court environments in which they themselves are authorised to sit, regardless of where they are for the time being deployed. 51. However, that reasoning is by no means essential to the primary conclusion to which I have come. 52. I entertain no doubt that the difficulties perceived by Lunn D.C.J. do not exist. When the legislation is properly read according to its terms and manifest intent, it is clear that the authorisation of more senior judicial officers to exercise the jurisdiction, powers or functions of a magistrate pursuant to section 22 of the Magistrates Act automatically carries with it, inter alia, the power to exercise the jurisdiction of magistrates assigned to the Magistrates' Court. 53. Equally, there is simply no basis for contending that the various provisions of the Auxiliary Appointments Act do not continue to operate in relation to the newly erected courts according to their tenure. It is trite law to say that, if the legislature intends to remove an existing jurisdiction of a superior court, then it must do so in unambiguous language which either expressly or inescapably impliedly indicates an intention to achieve that result. (Johnson and Anor v Director General of Social Welfare (Victoria)
(1976) 50 ALJR 562 at 564.) 54. It follows that, for the reasons above expressed, the plaintiff is entitled to the relief claimed. I would make an order in the nature of mandamus enjoining the first defendant to proceed to sentence the plaintiff in respect of the remand offences.

JUDGE3 MULLIGHAN J. I agree with the reasons for judgment of the Chief Justice.