Downey v Acting District Court Judge Boulton (No 2)

[2010] NSWCA 49

New South Wales

Court of Appeal

CITATION:	DOWNEY v ACTING DISTRICT COURT JUDGE BOULTON (NO 2) [2010] NSWCA 49
HEARING DATE(S):	15 March 2010
JUDGMENT DATE:	15 March 2010
JUDGMENT OF:	Basten JA at 1
EX TEMPORE JUDGMENT DATE:	15 March 2010
DECISION:	Matter stood over for hearing by a three judge Court at a time to be fixed.
CATCHWORDS:	APPEAL – civil – procedure – restraint of proceedings – powers of Court – whether single judge of appeal possesses power to restrain proceedings in District Court – Supreme Court Act 1970 (NSW), s 46
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW), s 67 Supreme Court Act 1970 (NSW), ss 43, 46, 48
CATEGORY:	Procedural and other rulings
CASES CITED:	Gill v Walton (1991) 25 NSWLR 190 Walton v Gardiner [1993] HCA 77; 177 CLR 378
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 Respondent
FILE NUMBER(S):	CA 2010/22284
COUNSEL:	P E King - Applicant R F Sutherland/M Castle - Second Respondent
SOLICITORS:	Sam Hegney Solicitors - Applicant Ms Shanks - Crown Solicitor's Office - First and Fourth Respondents Smythe Wozniak - Second Respondent

CA 2010/22284

BASTEN JA

15 March 2010

Ruth DOWNEY v ACTING DISTRICT COURT JUDGE BOULTON & ANOR (NO 2)

Judgment

1 BASTEN JA: This matter comes before me as a matter of urgency. This morning Acting Judge Boulton in the District Court was asked to adjourn the hearing of an appeal from the Local Court to the District Court to allow a challenge to His Honour’s jurisdiction to hear that appeal to be resolved in this Court. The hearing date for the summons in this Court has been fixed in June 2010.

2 His Honour refused the application. Counsel for the applicant now seeks from this Court constituted by a single Judge an order staying the hearing of the appeal in the District Court.

3 In my view that is an order in the nature of an interlocutory injunction or prohibition directed to another Court. It may also constitute, although it is not expressed in this form, an application for leave to appeal from the refusal of the adjournment. The latter form seeks an order (namely leave to appeal from an interlocutory decision) which is not one available from a single Judge of this Court. The Court is constituted by three Judges: Supreme Court Act 1970 (NSW), s 43. There are circumstances in which it may be possible for a single Judge to make orders and counsel for the applicant has suggested s 46(2)(b) as a basis for me to act in this matter. I am not persuaded that I have power to do so in this case under that provision or any other part of s 46, but if I am wrong in that respect it is not a power which I would exercise in the circumstances.

4 It is clear that an order of the kind sought must be made in the Court of Appeal because the District Court is a specified tribunal for the purposes of s 48 of the Supreme Court Act and the order is of a kind identified in s 48(2).

5 I am not assisted by reference to s 67 of the Civil Procedure Act 2005 (NSW) which allows a Judge of the Court to stay proceedings before it, this is an application to stay proceedings which are not before this Court but before the District Court. Nor am I assisted by reference to the decision in Gill v Walton (1991) 25 NSWLR 190; (on appeal) Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 393, which involved an application for a permanent stay. It was certainly not a power exercised by a single Judge of the Court.

6 I am told that the matter has been relisted in the District Court for 10 am tomorrow. I am prepared to see what administrative steps can be taken to constitute a Court of three Judges to hear an application tomorrow. I am not presently aware of what steps can be taken. The Court has matters listed before it tomorrow and at least seven Judges of the Court will be involved in those matters.

7 I intend to stand the matter over to a time to be fixed and my associate will advise the parties early in the morning as to whether or not a Court can be constituted and, if so, at what time and where, in ample time to allow the parties to take necessary steps in order to ensure that there is no discourtesy to Judge Boulton or any other member of the District Court with respect to the arrangements to be made in this Court.

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