Downey v Acting District Court Judge Boulton (No 3)

[2010] NSWCA 50

New South Wales

Court of Appeal

CITATION:	DOWNEY v ACTING DISTRICT COURT JUDGE BOULTON (NO 3) [2010] NSWCA 50
HEARING DATE(S):	16 March 2010
JUDGMENT DATE:	22 March 2010
JUDGMENT OF:	Beazley JA at 1; Basten JA at 1; Macfarlan JA at 1
EX TEMPORE JUDGMENT DATE:	16 March 2010
DECISION:	(1) Dismiss the motion. (2) Applicant to pay the second respondent’s costs of the proceedings in this Court seeking to restrain, on an interlocutory basis, the District Court as constituted by Judge Boulton from proceeding to hear the applicant’s appeal.
CATCHWORDS:	APPEAL – civil – procedure – restraint of proceedings in lower court – challenge to appointment of acting judge of District Court – whether constitutional challenge reasonably arguable on facts before court – balance of convenience – whether restraint justified pending determination of appeal - CONSTITUTIONAL LAW – judicial power – appointment of acting judge to State court – whether residence in State a condition of valid appointment – whether pressing necessity a condition of valid appointment - PROCEDURE – matter arising under Constitution – urgent interlocutory hearing – no requirement of notice – Judiciary Act 1903 (Cth), s 78B(5) - WORDS & PHRASES – "pressing necessity"
LEGISLATION CITED:	Constitution Ch III Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 19 District Court Act 1973 (NSW), ss, 8, 18 Judiciary Act 1903 (Cth), s 78B Supreme Court Act 1970 (NSW), s 37
CATEGORY:	Procedural and other rulings
CASES CITED:	Cameron v Cole [1944] HCA 5; 68 CLR 571 Downey v Judge Boulton (No 1) [2010] NSWCA 48 Downey v Judge Boulton (No 2) [2010] NSWCA 49 Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 Re Macks; Ex parte Saint [2000] HCA 62; 204 CLR 158 W O v Director of Public Prosecutions (NSW) [2009] NSWCA 370
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 Solicitors Office - First and Fourth Respondents Smythe Wozniak - Second Respondent

CA 2010/22284

BEAZLEY JA
BASTEN JA
MACFARLAN JA

16 March 2010
22 March 2010

Ruth DOWNEY v ACTING DISTRICT COURT JUDGE BOULTON & ORS

(No 3)

Judgment

1 JUDGMENT of THE COURT delivered by Basten JA: On 16 March 2010, the applicant sought orders restraining the District Court, constituted by Acting Judge Boulton from hearing an appeal from a judgment of the Local Court. At the conclusion of the hearing the Court dismissed the motion, thus refusing relief. It indicated it would deliver reasons later. These are the reserved reasons for dismissing the motion and ordering the applicant to pay the costs of the second respondent, being the prosecutor in the court below and the active party in this Court.

Procedural history

2 On 24 October 2008 the applicant was found in the Local Court at Narrabri to have committed 96 offences involving two sets of charges, each dealing with 48 animals. The first set alleged failure to provide food which was proper and sufficient for cattle and which it was reasonably practicable for her to have provided; the second set alleged aggravated cruelty in keeping animals in poor nutrition and an emaciated condition. She was ordered to pay the prosecutor’s costs.

3 The applicant appealed from the determinations of the Local Court pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) (“the Appeal and Review Act”). The appeals were listed for hearing in the District Court at Sydney, commencing Monday 15 March 2010, before Boulton ADCJ.

4 On 25 January 2010, the applicant commenced proceedings in this Court challenging the legal validity of the proceedings in the District Court on a number of bases, which have not yet been precisely identified but appear to include the following:

(1) Boulton ADCJ is not qualified to hear the matter because his commission as an acting judge expired on 13 November 2009 and the proceedings had not then been heard or partly heard by him, for the purposes of s 18(3A) of the District Court Act 1973 (NSW).

(2) Judge Boulton’s appointment as an acting judge for the period terminating on 13 November 2009 was invalid because:

(a) there was no “pressing necessity” justifying the appointment, and
(b) Judge Boulton was at the relevant time resident in Queensland.


(3) If the appointment were permitted under s 18, that provision was inconsistent with the requirements of a State Court under Ch III of the Constitution and hence invalid.

(4) Judge Boulton was disqualified from sitting on the basis of a reasonable apprehension of bias arising from an interlocutory ruling refusing the applicant leave to call witnesses, pursuant to s 18(2) or s 19 of the Appeal and Review Act , being a judgment delivered on 14 August 2009.

5 The proceedings in this Court were first returnable before the Registrar on 22 February 2010. The matter was stood over for directions before the President on 24 February 2010. The President granted the parties leave to seek a date for hearing “as soon as possible after 27 April 2010” (that being the first date available in the Court, but which was not convenient to the parties) and gave further directions as to the issue of a notice under s 78B of the Judiciary Act 1903 (Cth). The matter was listed for further directions on 15 March 2010, when it came before Basten JA. Further directions were given by his Honour which are not presently relevant: see Downey v Judge Boulton (No 1) [2010] NSWCA 48.

6 Following the directions hearing in this Court, the applicant sought to have the District Court vacate the hearing dates and relist the appeal on a date in August, after the hearing of the summons for judicial review in this Court in June 2010, and allowing a period for this Court to deliver its judgment.

7 According to an affidavit filed in this Court by the applicant’s solicitor, he had been aware since 18 December 2009 of the listing of the appeal in the District Court in Sydney for the week commencing 15 March 2010.

8 Judge Boulton refused the application to vacate the hearing dates. The matter was stood over for a time to allow counsel to approach this Court. When the matter came before a single Judge of this Court on Monday afternoon, the applicant sought a “stay” of the proceedings in the District Court. Being of the view that the relief sought was in the nature of prohibition or injunctive relief, his Honour doubted that he had power to make such an order, sitting as a single judge of the Court, and in any event declined to exercise such power, if it existed: see Downey v Judge Boulton (No 2) [2010] NSWCA 49. The matter was referred to a Court to be constituted the following day.

9 The applicant has now identified in a notice of motion the orders sought, consistently with the understanding of this Court referred to in Downey (No 2). In particular, an order was sought restraining the District Court, as presently constituted, from proceeding with the hearing of the appeal. The grounds on which the order was sought, although not identified in the notice of motion, as gleaned from the written and oral submissions of the applicant, were that:

(a) it was reasonably arguable that the appointment of Judge Boulton on 1 July 2009 as an acting judge of the District Court was invalid because -
(i) he was resident in Queensland at the time of his appointment, and
(ii) there was no “pressing necessity” for his Honour’s appointment;


(b) it was reasonably arguable that his Honour’s appointment, in the circumstances in which it occurred, had a qualitative effect on the integrity of the District Court, as a court capable of exercising federal jurisdiction, and

(c) the balance of convenience favoured a delay of the proceedings in the District Court to allow the challenges raised to the continued hearing of the matter by Judge Boulton to be determined in this Court.

10 The parties put before this Court a copy of a judgment prepared by Boulton ADCJ, dated 15 March 2010, giving reasons for his Honour’s refusal to adjourn the hearing of the appeal before him. As the matter in this Court does not purport to be an application for leave to appeal from that judgment, it is not necessary to consider further his Honour’s reasons.

11 In support of the application, counsel for the applicant read a number of affidavits of her solicitor. Much of that material was, however, irrelevant to the arguments presented in this Court, and it is convenient to identify the legal basis upon which the matter was presented, before addressing the evidential support for it.

Power to grant relief

12 There is no doubt that this Court, properly constituted, can make an order in the nature of prohibition, restraining the District Court from proceeding with a hearing: W O v Director of Public Prosecutions (NSW) [2009] NSWCA 370 and authorities referred to therein. The question in the present case is whether such an order is appropriate.

Residence in Queensland

13 The first basis for relief was that Judge Boulton was resident in Queensland at the time of his reappointment on 1 July 2009. That was said to cause difficulties of an administrative kind, both in contacting him for the purpose of fixing a time and place for the hearing of the appeal, and in serving him with the proceedings issued in this Court. The basis upon which residence in another State affected the validity of his appointment as an acting judge was not articulated in terms which had any statutory or constitutional basis. So far as administrative arrangements for the hearing of cases are concerned, it will usually be inappropriate to contact the judicial officer concerned directly. Listing arrangements should be made through the administrative officers of the Court or through the judge’s associate. Similarly, it is by no means clear that the ability to serve a judge with court process, has any bearing on the validity of his or her appointment. No reasonably arguable ground of challenge, based on the fact of residence in another State, was presented.

14 Secondly, the applicant sought to rely upon the claim that there was “no pressing necessity of a relevant kind” for his Honour’s last appointment. The basis for this requirement was sought to be derived from the reasons of the joint judgment of Gummow, Hayne and Crennan JJ in Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45. Forge involved a challenge to the appointment of an acting judge of the Supreme Court, pursuant to s 37 of the Supreme Court Act 1970 (NSW). As explained in the joint judgment, the assertion of invalidity was put on a global basis, namely that there could not ever be a valid acting appointment: at [86]. That gave rise to a question as to whether the number of acting judges at a particular time or over a particular period had any relevance. At [87], their Honours stated:

“No quantitative criterion should be adopted as limiting the exercise of power under s 37. Any such criterion would inevitably be arbitrary in its content and application.”

15 In the present matter, the applicant eschewed an argument based on a quantitative criterion, preferring to describe her claim as involving a “qualitative” assessment. Nevertheless, annexed to an affidavit of her solicitor was a copy of an article from the Sydney Morning Herald which, amongst other things, asserted that a specific proportion of the judges of the Supreme and District Courts had, in either 2007 or 2008 (there was an ambiguity in the article), constituted 20% of the judges. The article also quoted the comments of an academic on the significance of “such a number of acting judges”. The value of this evidence might have required consideration, but for the fact that the quantitative claim was not pressed (understandably in the light of the decision in the High Court in Forge); it need not be considered further.

16 So far as the “qualitative” claim was concerned, reference was made to the discussion of the joint judgment in Forge at [92]-[101]. At [92], their Honours stated:

“Different considerations affect these different classes of qualified persons. The prospect of appointment as a permanent judge, or reappointment as an acting judge, will most likely bear differently upon those who, at the time of appointment as an acting judge, are judges of the Federal Court or the Supreme Court of another State or Territory from the way in which they bear upon retired judges, judges of other, inferior, courts, or legal practitioners in active practice. The person in active practice may be thought by some to be concerned about prospects of future permanent appointment, or about the effect of what is done while an acting judge upon resumption of practice at the end of the period of appointment. The person who holds some other judicial office may be thought to be concerned about prospects of promotion to the Supreme Court. The retired judge may be thought to be concerned about the prospect of being able to continue to act as a judge beyond retirement and beyond the statutory retiring age with its consequences for continued professional engagement and enjoyment of a larger income. Is the availability of such arguments to be left for consideration under the principle of apprehended bias or are they considerations that bear upon the institutional integrity of the court?”

17 Clearly the appointment of Judge Boulton on 1 July 2009, pursuant to a commission which expired on his 75^th birthday, could not be affected by considerations pertaining to him as an individual. He had no prospects of future permanent appointment, there could be no real concerns about his resumption of practice in this State, he had no prospects of promotion nor even of a further acting appointment. In such circumstances it was not reasonably arguable that his appointment could have had “an adverse effect on the institutional integrity of the court”: see Forge at [96]. Rather, the applicant sought to rely upon different considerations, outlined in the joint judgment after consideration of the difficulties which could arise were a legal practitioner appointed to act as a judge for a temporary period, at [97]-[98]. The judgment continued:

“[99] That is not to say that the importance of these considerations may not be reduced if account is taken of the reasons that lead to the making of an acting appointment. The greater the necessity for the appointment, the less influential on perceptions of impartiality and integrity may be the considerations of the possible frailties of the person or persons appointed. That is, the institutional integrity of the court is less likely to be damaged by response to pressing necessity than it is by the change of character that may be worked by a succession of short-term appointments for no apparent reason other than avoiding the costs associated with making full-time appointments or, perhaps worse, a desire to assess the ‘suitability’ of a range of possible appointees.
[100] As is implicit in what is just said, ‘pressing necessity’ refers to some necessity arising from the work of the court, not simply a desire, by the Executive, to avoid the costs of making full-time appointments. In particular, the proposition that a sudden increase in the work of a court may turn out to be ‘of a temporary nature only’ will seldom amount to such a pressing necessity. It is an assertion which serves only to obscure first, the fact that ‘[j]udicial power is exercised as an element of the government of society’ and secondly, and no less importantly, that ‘the third great department of government’ cannot discharge its functions without adequate financial support from the other two departments.
[101] Whether, or when, the institutional integrity of the court is affected depends, then, upon consideration of much more than the bare question: how many acting judges have been appointed? Regard must be paid to who has been appointed, for how long, to do what, and, no less importantly, why it has been thought necessary to make the acting appointments that have been made. Those alleging invalidity in the present matter did not seek to make a case founded in any examination of the circumstances that led either to the successive appointments of Foster AJ, or any of the other appointments made at or about the time of his appointments.”

18 Significantly, the concept of “pressing necessity” appears to be introduced as a factor tending to lessen the risk of damage to the institutional integrity of a court which might flow from the factors earlier considered. Because those factors do not arise to any significant extent in the present case, it is doubtful whether any attempt to explore the reasons of the government for making a particular appointment, let alone a series of appointments, would constitute a legitimate exercise in demonstrating harm to the institutional integrity of the District Court. These remarks also give rise to large questions as to the nature of the evidence which might be called in support of such contentions and the justiciability of some issues, such as the reasons for a particular appointment. It is neither necessary nor appropriate to explore these issues further at this stage of the proceedings.

19 The critical factor in disposing of the present application is the absence of any factual basis for an allegation of invalidity based on the principles discussed in Forge. The only evidence relied on to support such a claim is the unawareness of the applicant’s solicitor of any pressing necessity for the appointment. That evidence is of no value for this purpose. For that reason, the applicant has failed presently to demonstrate a reasonably arguable case on the second basis relied upon.

Balance of convenience

20 Had a reasonably arguable case as to the invalidity of Judge Boulton’s final appointment been demonstrated, there might be force in the submission that the argument should be resolved before the appeal to the District Court was heard. Nevertheless, it would have been necessary to persuade the Court to overcome the counsel of restraint that usually applies in relation to intervention in the criminal process. It is not necessary in the circumstances to embark on that assessment.

Notices under s 78B

21 To the extent that the issues raised above rely upon constraints on the State Parliament flowing from Chapter III of the Constitution, it should be noted that this Court is not impeded from considering such matters, on an interlocutory basis, by reason that no notices as to this hearing have been given pursuant to s 78B of the Judiciary Act 1903 (Cth). The prohibition contained in that section against a court proceeding in a cause until such notices have been given does not apply to prevent a court from proceeding “without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so”: s 78B(5).

22 This Court has been constituted within 24 hours of the application being made, in order to deal with the claim for interlocutory relief. It is apparent that the Court has proceeded “without delay”, the circumstances being such that the Court was satisfied that it was necessary in the interests of justice to proceed in this manner, to determine whether or not to grant the interlocutory relief sought.

23 Directions have been given in relation to the service of notices under s 78B for the purposes of the principal proceedings and, at least informally, the Court has been informed that steps have been taken in that regard and that some responses have been received.

Other matters

24 A further argument in favour of an order prohibiting the District Court from proceeding to hear and determine the matter was based on the proposition that anything which his Honour undertook would be a nullity. Reliance was placed on the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597.

25 Reliance on that authority was misconceived. Bhardwaj was concerned with a decision by an administrative tribunal, the Refugee Review Tribunal, not a decision of a court of record. The District Court undoubtedly has jurisdiction to determine whether it is properly constituted to hear a particular matter, whether the matter itself falls within the scope of its jurisdiction and whether the relief sought is within the scope of its powers: District Court Act, s 8. A decision by the District Court that it has jurisdiction will be valid until set aside. Any order made by the Court in the exercise of a jurisdiction which it does not have will also be valid until set aside: Cameron v Cole [1944] HCA 5; 68 CLR 571 at 590 (Rich J, Latham CJ agreeing); Re Macks; Ex parte Saint [2000] HCA 62; 204 CLR 158 at [20] (Gleeson CJ), [49] (Gaudron J, the orders not being made in the exercise of federal jurisdiction), [135] (McHugh J, on the same basis), [232] (Gummow J), [255]-[256] (Kirby J) and [328] (Hayne and Callinan JJ).

Conclusions

26 On the application for interlocutory relief, the Court is not satisfied that it was shown to be reasonably arguable that Judge Boulton’s appointment as an acting judge was invalid. Residence in the State of appointment was not shown to be a legal requirement, even on the undemanding criterion of being reasonably arguable. While Forge may provide support for a need for “pressing necessity” in the appointment of acting judges, as a matter of fact it has not been established as reasonably arguable that no such state of affairs existed when Judge Boulton was last appointed as an acting judge of the District Court.

27 As indicated at the conclusion of the hearing on Tuesday, 16 March 2010, the present application should be dismissed. The applicant should pay the second respondent’s costs of the proceedings in this Court seeking to restrain, on an interlocutory basis, the District Court as constituted by Judge Boulton from proceeding to hear the applicant’s appeal.

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