New South Wales Court of Appeal CITATION: DOWNEY v ACTING DISTRICT COURT JUDGE BOULTON (NO 4) [2010] NSWCA 114 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 20 May 2010 JUDGMENT DATE: 20 May 2010 JUDGMENT OF: Basten JA at 1 (1) Applicant to file and serve any affidavits in reply on or before Wednesday 26 May 2010. (2) Applicant to file and serve written submissions on or before Wednesday 26 May 2010. (3) Second, fourth and fifth respondents to file and serve written submissions on or before Friday 28 May 2010. (4) Applicant to file and serve any written submissions in reply on or before Monday 31 May 2010. (5) The request for a separate determination of certain questions raised by the relief sought in the summons is rejected. (6) Stand over any question of compliance with, or setting aside of, the notices to produce which have been issued by the applicant to the hearing of the summons. (7) Dismiss the notice of motion filed on behalf of the second and fifth respondents, with no order as to costs. DECISION: (8) Note the statement of counsel for the State that – (a) it will give consideration to such matters as can be admitted; (b) it has produced the documents referred to in pars 7 and 8 of the letter of 3 March 2010, and (c) it has obtained some, though not necessarily all, documents available in relation to pars 4, 5 and 6 of that letter and is using its best endeavours to obtain a complete set of documents which it is able to provide before the hearing to the extent that there is no objection to their production. (9) Note there is a question of relevance reserved by the State in relation to all material sought pursuant to the notice to produce. (10) Reserve the costs of today other than in relation to the motion the subject of order (7) which has been dismissed. (11) Grant leave to the applicant to file a second further amended summons in the form which has been provided to the Court, signed by me and placed with the papers. (12) Vacate 3 June 2010 as the date for hearing of the summons and fix the hearing for 1 June 2010. Note that the Court will be available on 2 June if the matter is not completed on 1 June. CATCHWORDS: PROCEDURE – application for judicial review – constitutional challenge to validity of statute – application to direct compliance with notice to produce – application to direct admissions to be given – Civil Procedure Act 2005 (NSW) s 70(1)(c) - PROCEDURE – application for judicial review – constitutional challenge to validity of statute – application for hearing of separate questions – whether likely to save expense or delay – whether likely to promote efficient allocation of Court resources - PROCEDURE – compliance with notices to produce – obligation of parties and lawyers to facilitate the just, quick and cheap resolution of real issues – Civil Procedure Act 2005 (NSW), s 56 - PROCEDURE – proceedings for judicial review – need to identify grounds on which relief sought – Uniform Civil Procedure Rules 2005 (NSW), r 51.45 Civil Procedure Act 2005 (NSW), ss 56, 70 District Court Act 1973 (NSW), s 18 LEGISLATION CITED: Prevention of Cruelty to Animals Act 1979 (NSW), ss 34, 34B Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW)m rr 6.4, 28,2, 51.45; Pt 51 CATEGORY: Procedural and other rulings Ruth Downey - Applicant Acting District Court Judge Boulton - First Respondent PARTIES: 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 Gary Ashton – Fifth Respondent FILE NUMBER(S): CA 2010/22284 P E King – Applicant Submitting appearance – First Respondent COUNSEL: R F Sutherland/M Castle – Second and Fifth Respondents Submitting appearance – Third Respondent J K Kirk/B K Baker – Fourth Respondent Sam Hegney Solicitors - Applicant SOLICITORS: Crown Solicitors Office – First, Third and Fourth Respondents Smythe Wozniak - Second and Fifth Respondents IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2010/22284 BASTEN JA 20 May 2010 Ruth DOWNEY v ACTING DISTRICT COURT JUDGE BOULTON & ORS (NO 4) Judgment 1 BASTEN JA: These proceedings involve a challenge to the constitution of the District Court of New South Wales for the purposes of hearing the applicant's appeal from the Local Court. The subject matter of that appeal was a series of offences under the Prevention of Cruelty to Animals Act 1979 (NSW). The appeal came before an acting judge of the District Court. An issue has been raised as to the constitutional validity of the appointment of the acting judge and hence his power to determine the appeal. 2 The proceedings seek relief pursuant to s 69 of the Supreme Court Act 1970 (NSW), namely orders in the nature of prerogative relief, together with certain declarations. 3 The first five prayers for relief are directed to the validity of s 18 of the District Court Act 1973 (NSW), which provides for the appointment by the Governor of a qualified person to "act as a judge for a time not exceeding 12 months". Order 8 seeks mandamus directed to the District Court to hear the appeal and is consequential upon orders 1 to 5, the premise being that the hearing before the acting judge did not constitute a valid hearing of the appeal. 4 Orders 6 and 7 have now been removed from the Second Further Amended Summons. Order 13 is in the common generic form, permitting the Court to make such other order as it thinks fit, and can be disregarded. Order 14 concerns costs. 5 There remain orders 9-12. These involve a challenge to the validity of ss 34 and 34B of the Prevention of Cruelty to Animals Act and hence, it is alleged, the validity of the proceedings in the Local Court for offences against that Act. Motions before the Court 6 The first motion before the Court was an application by the RSPCA and its officer (the prosecutors) seeking to strike out paragraphs 9, 11 and 12 in the summons. That was apparently on the basis that, in its earlier emanation, the summons challenged the validity of a provision which may not have been in force at the relevant time. The amendment to the summons led to the abandonment of the motion which should, by consent, be dismissed with no orders as to costs. 7 The second motion was brought by the State of New South Wales, seeking to set aside a letter of 3 March 2010 which purported to be a notice to produce documents. It will be necessary to address that application shortly. 8 The third notice of motion was filed by the applicant on 17 May 2010. She sought an order that so much of the relief as sought to challenge the validity of s 18 of the District Court Act be heard separately from other issues in the proceedings. In the alternative, she sought to have the matter heard at a date after the completion of the proceedings in the District Court, presently anticipated to be in late June 2010, subject, no doubt, to any period during which his Honour may reserve before handing down his final judgment on sentence and costs, being the presently outstanding issues. 9 The applicant also seeks directions that the acting judge and the District Court either admit or dispute facts and the authenticity of documents. (Both respondents have filed submitting appearances.) She also seeks a direction that the State of New South Wales "make all appropriate admissions". 10 At the commencement of the hearing, counsel for the State handed up proposed directions dealing with affidavits, written submissions and submissions in reply. Those directions were ultimately not opposed on behalf of the applicant, and orders were made in the terms proposed. 11 Counsel for the applicant handed up a set of short minutes containing 17 orders or directions. It is not necessary to set them out in these reasons. The convenient course is to address the substantive issues raised by the parties requiring determination in order to permit the proceedings to be disposed of in a timely manner. Separation of issues 12 In dealing with an application for relief pursuant to s 69 of the Supreme Court Act, this Court has power to direct the determination of a particular question separately from any other question arising in the proceedings: Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), r 28.2. However, in order to exercise that power, the Court must be satisfied that there are issues which are in truth severable from other issues and as to the reason why the hearing should be partitioned. Proceedings under s 69 are commenced by summons UCPR, r 6.4(b1) and, when they are properly brought in this Court, r 51.45(1). The procedure in this Court requires that the summons be accompanied by written submissions which must, amongst other things, "state the grounds on which relief is sought": r 51.45(2) and (3)(c). That was not done in the present case. More than four months after the summons was initially filed, submissions have not been filed: no written submissions were sought to be filed with the second further amended summons. 13 Despite these difficulties, there is discernable from the relief sought two separate bases of challenge to the proceedings below, namely that directed to the proceedings in the Local Court and that directed to the constitution of the District Court. However, what is less clear is the possibility that success on the former might obviate the need to consider the latter. It is with respect to the latter that issues have arisen (discussed below) as to what evidence should be available for tender in this Court. There may be a further issue as to whether the challenge to the proceedings in the Local Court is still available to the applicant, in circumstances where the challenge may not have been raised in that Court and where there has been a rehearing on the merits in the District Court. 14 The usual basis for determining one question (or group of questions) separately from other questions arising in proceedings is that determination of the separated question (or questions) will render unnecessary determination of the remainder. That may allow for an efficient allocation of Court time and prevent unnecessary expenditure by the parties, but only when the separated question has a reasonable likelihood of determining the outcome of the proceedings and where there is significant quantifiable additional expense involved in preparing for, or determining, the remaining questions. Neither of these benefits will accrue in the present case. The issues to be left, concerning the Local Court proceedings, are, it appears, within a confined compass, although the basis of challenge to the provisions of the Prevention of Cruelty to Animals Act has yet to be identified. There is no clear benefit to the parties in separating the issues, nor would that course promote the efficient conduct of business in the Court. For these reasons, the application for separate questions was rejected. Factual issues 15 On 3 March 2010 the solicitor for the applicant wrote to the Crown Solicitor (NSW) requiring the production of nine categories of documents. Whether the letter constituted a formal notice to produce, to what party it was directed and what precisely it sought are matters which may be passed over. Now that the State has been joined, it has, quite properly, addressed itself to the substance of the matters identified in the pleadings and the documentation sought by the letter, on behalf, as I understood counsel, of the government, the District Court and the acting judge. In substance, the letter sought virtually any document in the possession of the acting judge, the District Court or the State relating to the reappointment of the acting judge as such on 1 April 2009. Counsel for the State informed the Court that it had identified the instrument of reappointment and any advertisement prior to 1 July 2009 calling for interest in the position to which Acting Judge Boulton was appointed (letter, pars 7 and 8). Counsel also indicated that documents had been located in other categories of documents regarding the reappointment identified in the letter (though he could not advise that exhaustive searches had been completed). Such material as was located had been or would be provided to the applicant. 16 The primary objection of the State to an order for compliance with the "notice to produce" was that questions surrounding the reappointment of Acting Judge Boulton were immaterial to the pleaded case challenging the validity of s 18 of the District Court Act, pursuant to which his Honour was reappointed. This basis of objection requires, at least in part, a ruling on one of the substantive issues at stake in the proceedings. That is an issue which will be agitated before the Court at the hearing of the summons on 1 June 2010. It is not an appropriate matter to be addressed by a single judge. However, it is not necessarily an appropriate matter for separate determination by the Court. Accordingly, I declined to direct the State to comply with the notice to produce and also declined to rule on its request to have the notice set aside. If the State is correct in its submissions, it seems likely that the hearing on 1 June will dispose of the issues raised on the summons. If the State is not correct, and it is not able to confirm that all material properly sought under the notice has been produced, the applicant may be entitled to production of further material, which will result in the need for further argument. The latter result may appear unfortunate, but it would be no different to a separate determination of the validity of the notices to produce. The course taken allows for the possibility that the proceedings will be finally resolved following the hearing on 1 June. 17 A separate issue arose as to the position of the prosecutors. They were apparently served with a notice to produce, a copy of which is not before the Court. On 19 May 2010 they apparently provided a solicitor's affidavit (a copy of which is not before the Court). The applicant sought a direction that they comply with their notice and that the exhibit to the affidavit "be served forthwith" on counsel for the applicant. (The exhibit is not before the Court.) Counsel for the prosecutors told the Court that the exhibit included documents before the Local Court, the transcript of the proceedings in the Local Court and other material. 18 It is not self-evident that the material in the exhibit (as described by counsel for the prosecutors) could have any bearing on the issues raised by the summons. Nor is it demonstrated that the prosecutors are likely to have any documents relevant to the issues raised by the summons, covered by a notice to produce and not produced. Nevertheless, the prosecutors have a duty to assist the Court, relevantly for present purposes, in disposing expeditiously of the matters raised at the hearing on 1 June: Civil Procedure Act 2005 (NSW), s 56(3). Their legal representatives are also under a duty to ensure that they do not cause the prosecutors to be in breach of that duty: s 56(4). Both the prosecutors and their lawyers are reminded of the power of the Court to take any non-compliance with those obligations into account in exercising its discretion with respect to costs: s 56(5). Further, those who take upon themselves statutory functions in relation to criminal prosecutions, should expect to be treated as "model litigants", and should take such steps as are reasonably practicable and appropriate to ensure that relevant material in their possession is provided in a timely fashion to another party seeking access to it. Admissions as to facts 19 Although no such order was sought in any notice of motion filed before the hearing, the short minutes of order handed up by the applicant invited the Court to direct the State to make certain admissions, pursuant to s 70(1)(c) of the Civil Procedure Act. The admissions were in the following terms: "a. That there were no special circumstances in or concerning the business of the Third Defendant requiring the re-appointment of the First Defendant in June 2009, which special circumstances distinguished the re-appointment of the First Defendant as an acting judge of the Third Defendant from the appointment or re-appointment of any other acting judge of the Third Defendant at any time in 2009. b. There was no pressing necessity for the re-appointment of the First Defendant arising from the business of or concerning the Third Defendant in June 2009, which pressing necessity distinguished the re-appointment of the First Defendant as an acting judge of the Third Defendant from the appointment or re-appointment of any other acting judge of the Third Defendant at any time in 2009. c. There was no pressing necessity for the appointment or re-appointment of any of the acting judges of the Third Defendant holding judicial office during 2006 to 2009 inclusive being the persons specified in the schedule attached to this minute or order and marked "A"." 20 It should be noted that no schedule was attached to the minute as indicated by par (c), but nothing of substance turned on this omission. 21 The purpose identified by the applicant in seeking such admissions was to obviate the need to rely upon the production of documents to establish those facts. That is, of course, a legitimate purpose and may provide a basis for directing an admission in particular circumstances, particularly where the result will be to avoid expense or delay. 22 Although counsel for the State indicated that his client might be willing to consider admissions in terms of, or similar to, pars (a) and (b), he was in no position to obtain instructions during the hearing. It was a matter which would require further consideration. 23 The circumstances justifying such a direction do not arise here. A relevant consideration in relation to the power conferred by s 70 of the Civil Procedure Act is whether there is a bona fide dispute as to the matters sought to be the subject of directed admissions. I am content for present purposes to assume that the power in paragraph (c) is not restricted to such matters, identified in paragraph (a). The difficulties in this case run deeper. The first proposed admission invites a comparison between the circumstances involving the reappointment of Acting Judge Boulton and the appointment or reappointment of any other acting judge of the District Court during 2009. Such an admission would require knowledge of the circumstances of the various appointments and reappointments and an assessment as to whether there were "special circumstances" distinguishing one reappointment from the others. There may be information available to the State which would permit it to make such an admission: there is no material before this Court which would allow me to determine whether such an admission would be appropriate and should be required. 24 The same may be said in relation to the proposed admission (b). However, there is the additional problem that the criterion of "pressing necessity" is imprecise and may be open to different interpretations. An admission in those terms is likely to conceal the consideration of various unidentified factors. 25 In relation to the third admission, I would accept that the State would not be impeded by the absence of the schedule referred to. Nevertheless, it is not an admission which the Court should direct for various reasons, including those referred to above with respect to the concept of "pressing necessity". Further, it appears to be intended as an admission of a constitutionally relevant fact, the scope of which is presently obscure. 26 For these reasons, I declined to make any order in the terms sought in paragraph 11 of the short minutes provided by the applicant. Other matters 27 Two issues remained for consideration. The first, involving a grant of leave to the applicant to file the second further amended summons, a copy of which was handed up in Court, was made by consent. (It would have been preferable if the summons had adopted the language of Pt 51 of the UCPR, referring to the parties as 'applicant' and 'respondents' respectively.) 28 The second issue concerned the hearing, which was set down for 3 June 2010. The applicant at least is of the view that the summons, without the separation of issues which she sought, will take more than a day for hearing. If the Court had sat on June 3, it would not have been possible to continue the hearing on the following day. 29 I am not persuaded that the hearing of the summons will take more than a day, assuming that the parties file appropriate written submissions and do not seek to tender evidence which is not necessary for the proper determination of the matters raised. Nevertheless, to avoid any possible failure to complete the hearing I vacated the date fixed for 3 June and directed that the summons be specially fixed for hearing on 1 June, with the understanding that the Court would be available on the following day (2 June) if the hearing were not completed within the allocated day. All counsel have indicated to the Registrar that they are available on both days and should continue to act on the same basis as the Court, namely that the matter may not be completed within the first day. 30 No order was made as to the costs of the prosecutor's notice of motion, on the basis that it sought to rely upon an error which had been corrected in the latest amended summons. Otherwise, the costs of the motions were reserved. 31 For convenience the orders made by the Court orally are recorded as follows: (1) Applicant to file and serve any affidavits in reply on or before Wednesday 26 May 2010. (2) Applicant to file and serve written submissions on or before Wednesday 26 May 2010. (3) Second, fourth and fifth respondents to file and serve written submissions on or before Friday 28 May 2010. (4) Applicant to file and serve any written submissions in reply on or before Monday 31 May 2010. (5) The request for a separate determination of certain questions raised by the relief sought in the summons is rejected. (6) Stand over any question of compliance with, or setting aside of, the notices to produce which have been issued by the applicant to the hearing of the summons. (7) Dismiss the notice of motion filed on behalf of the second and fifth respondents, with no order as to costs. (8) Note the statement of counsel for the State that – (a) it will give consideration to such matters as can be admitted; (b) it has produced the documents referred to in pars 7 and 8 of the letter of 3 March 2010, and (c) it has obtained some, though not necessarily all, documents available in relation to pars 4, 5 and 6 of that letter and is using its best endeavours to obtain a complete set of documents which it is able to provide before the hearing to the extent that there is no objection to their production. (9) Note there is a question of relevance reserved by the State in relation to all material sought pursuant to the notice to produce. (10) Reserve the costs of today other than in relation to the motion the subject of order (7) which has been dismissed. (11) Grant leave to the applicant to file a second further amended summons in the form which has been provided to the Court, signed by me and placed with the papers. (12) Vacate 3 June 2010 as the date for hearing of the summons and fix the hearing for 1 June 2010. Note that the Court will be available on 2 June if the matter is not completed on 1 June. ********** 26/05/2010 - Correcting typographical error - Paragraph(s) 22 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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