Downey v Acting District Court Judge Boulton (No 3)

In *Downey v Acting District Court Judge Boulton (No 3)*, the applicant sought to restrain proceedings in the District Court, challenging the constitutional validity of the appointment of an acting judge. The applicant contended that the appointment of the acting judge was invalid, thereby rendering the District Court, as constituted by that judge, unable to hear the applicant's appeal. The matter came before the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the applicant's constitutional challenge to the appointment of the acting judge was reasonably arguable, and whether the balance of convenience justified restraining the District Court proceedings pending the determination of the appeal. Specifically, the court considered whether the judge's residence within the State or the existence of a "pressing necessity" were conditions precedent to a valid appointment of an acting judge to a State court under the relevant constitutional provisions.

The Court of Appeal reasoned that the applicant's constitutional arguments were not reasonably arguable on the facts before the court. The court found that the concept of "pressing necessity" was not a condition for the valid appointment of an acting judge, nor was residence within the State a constitutional requirement. Consequently, the court concluded that the balance of convenience did not favour granting an interlocutory restraint on the District Court proceedings.

Accordingly, the Court of Appeal dismissed the applicant's motion seeking to restrain the District Court proceedings and ordered the applicant to pay the second respondent's costs of the interlocutory proceedings in the Court of Appeal.