Downey v Acting District Court Judge Boulton (No 1)
[2010] NSWCA 48
•15 March 2010
New South Wales
Court of Appeal
CITATION: DOWNEY v ACTING DISTRICT COURT JUDGE BOULTON (NO 1) [2010] NSWCA 48 HEARING DATE(S): 15 March 2010
JUDGMENT DATE:
15 March 2010JUDGMENT OF: Basten JA at 1 EX TEMPORE JUDGMENT DATE: 15 March 2010 DECISION: (1) Grant leave to the applicant to file and serve an amended summons on or before 19 March 2010.
(2) Order that the District Court of New South Wales and the State of New South Wales be added as parties to the proceedings.
(3) Direct the applicant to file and serve by 5 April 2010 an affidavit detailing the steps taken in relation to the filing and service of, and responses to, a notice under s 78B of the Judiciary Act 1903 (Cth).
(4) Direct the respondents to file and serve any material on which they propose to rely by 5 April 2010.
(5) Order that the costs of today be costs in the proceedings.
(6) Each party has liberty to apply on three days notice to the Registrar, who may refer the matter to me if he thinks that appropriate.CATCHWORDS: PROCEDURE – Court of Appeal – directions – preparation of matter for hearing – service of notice of constitutional issue LEGISLATION CITED: District Court Act 1973 (NSW), s 18
Judiciary Act 1903 (Cth), s 78BCATEGORY: Procedural and other rulings PARTIES: Ruth Downey - Applicant
Acting District Court Judge Boulton - First Respondent
Royal Society for the Prevention of Cruelty to Animals - Second Respondent
District Court of New South Wales - Third Respondent
State of New South Wales - Fourth RespondentFILE NUMBER(S): CA 2010/22284 COUNSEL: P E King - Applicant
R F Sutherland/M Castle - Second RespondentSOLICITORS: Sam Hegney Solicitors - Applicant
M Shanks - Crown Solicitors Office - First and Fourth Respondents
Smythe Wozniak - Second Respondent
CA 2010/22284
MONDAY, 15 MARCH 2010BASTEN JA
1 BASTEN JA: This matter comes before me for directions in relation to the preparation of the matter for hearing, which has been fixed for 3 June 2010.
2 The first question concerns the service of a s 78B notice necessary because of the raising by the applicant of an issue as to the constitutional validity of two provisions of District Court Act 1973 (NSW). The orders made on 24 February 2010 directed that the parties consult as to the form of the notice. That consultation take took place and I am told the notice has been served, although there is no evidence before me to indicate when that notice was served, nor on whom. I have been handed a copy of a notice which gives rise to some doubt as to the precise issue of constitutional significance.
3 I am now advised that the re-appointment of Boulton ADCJ on 1 July 2009 to act as a judge of the District Court is sought to be challenged on two bases. One is that there was and is "no pressing necessity" for his appointment. The second is that he was at the time of his re-appointment a resident of Queensland. These are matters which will no doubt give rise to factual issues. I am instructed that the evidence which the applicant seeks to rely upon to support the factual premises upon which these constitutional issues are said to be based has already been filed and served. Accordingly, no further direction as to that is required.
4 The second matter which is sought to be raised is whether or not s 18 of the District Court Act is constitutionally valid. However, Judge Boulton would not be entitled to sit in the matter unless he was part-heard prior to the termination of his appointment on his 75th birthday, last December. The applicant seeks to challenge his continued hearing of the matter on the basis that he was not part-heard on the date on which his appointment expired. That involves a factual issue which will need to be determined by this Court. Whether or not all the material which is relevant to it has been filed is a little unclear. It would appear that there may be a question about what was said at various times in the course of the hearing, which might require to be proved by evidence.
5 The third issue raised is a challenge to his Honour's refusal to disqualify himself from further sitting on the matter by a judgment which I am told was delivered on 18 December 2009, which is not before the Court.
6 In these circumstances I am asked to make six orders. The first is that the applicant have leave to file and serve an amended summons on or before 19 March 2010. I am told that the amendment (which I have not seen) raises a claim for further relief by way of mandamus, said to be necessary in the event that the applicant is successful in his application and Judge Boulton is no longer able to hear the matter. Whether that amendment is strictly necessary might be doubtful, there being no suggestion that the District Court would not otherwise deal with the appeal from the Local Court. Nevertheless the amendment is not opposed. I will, therefore, make that order. The amended summons should include all the parties.
7 The second order sought is that both the District Court of New South Wales and the State of New South Wales be added as parties to the proceedings. I understand this has not formally been done and as it is by consent, I will make that order.
8 The third is to note that the Attorneys of the States and Territories have been served with notices under s 78B of the Judiciary Act 1903 (Cth). I have been informed that that has happened but there is no material before me which demonstrates when or in precisely what form they have been served. No s 78B notice has been served on the respondents to the application, nor has one been filed in the Court. I further remark that what I was asked to note does not include service on the Commonwealth.
9 These matters will be have to be attended to and I decline to note the matter as indicated. I will direct that the applicant file and serve by 5 April 2010 an affidavit indicating on whom the 78B notices have been served and in what form and as to any response received.
10 The fourth order is a direction in respect of evidence to be filed and served by the respondents. I will do that. With respect to the preparation of the matter for hearing I will give a direction that the respondents file and serve material on which they propose to rely in relation to the RSPCA by 5 April 2010.
11 The fifth order seeks leave for the applicant to inspect documents produced by the third and fourth defendants in answer to notices to produce. That is not a matter which I intend to deal with in this list. It is a matter that can be dealt with by the Registrar. If there is a contest in relation to the obligation to produce documents, that can be dealt with, at least in the first instance, by the Registrar.
12 I am asked to reserve the costs of today.
13 The orders I will make are as follows:
(1) Grant leave to the applicant to file and serve an amended summons on or before 19 March 2010.
(2) Order that the District Court of New South Wales and the State of New South Wales be added as parties to the proceedings.
(3) Direct the applicant to file and serve by 5 April 2010 an affidavit detailing the steps taken in relation to the filing and service of, and responses to, a notice under s 78B of the Judiciary Act 1903 (Cth).
(4) Direct the respondents to file and serve any material on which they propose to rely by 5 April 2010.
(6) Each party has liberty to apply on three days notice to the Registrar, who may refer the matter to me if he thinks that appropriate.(5) Order that the costs of today be costs in the proceedings.
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