DOWNEY v ACTING DISTRICT COURT JUDGE BOULTON (NO 5) [2010] NSWCA 240

New South Wales Court of Appeal

CITATION: DOWNEY v ACTING DISTRICT COURT JUDGE BOULTON (NO 5) [2010] NSWCA 240 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 1, 2 June 2010

JUDGMENT DATE: 15 September 2010

JUDGMENT OF: Allsop P at 1; Basten JA at 2; Macfarlan JA at 178

DECISION: (1) Dismiss the summons; (2) Order the applicant to pay the costs of the second and fifth respondents.

CATCHWORDS: ADMINISTRATIVE LAW – judicial review – apprehended bias – whether rulings on evidence comments in the judgment dismissal of the recusal application refusal to state a case in the Court of Criminal Appeal and refusal to adjourn to permit the issue of s 78B notices indicated apprehended bias - CONSTITUTIONAL LAW – District Court – whether provisions relating to the appointment of acting judges, appointment of retired judges from another State or Territory render proceedings invalid – District Court Act 1973 (NSW), s 18 - CONSTITUTIONAL LAW – District Court – whether appointment of acting judges compromised the institutional integrity of the Court so it was no longer a Court of the State for the purposes of Ch III of the Constitution - CONSTITUTIONAL LAW – District Court – whether invalid preclusion of certiorari – District Court Act, s 176 - PROCEDURE – District Court – whether primary judge was partly heard on expiry of his commission – District Court Act, s 18(3A) - PROCEDURE – summary proceedings – court attendance notice – essential elements of offence - PROCEDURE – Local Court – role of prosecutor – whether potential financial interest of prosecutor in outcome rendered prosecutions invalid - Fines Act 1996 (NSW), s 122(2) - PROCEDURE – Local Court – role of prosecutor – whether the prior role of prosecutor rendered prosecutions invalid - WORDS AND PHRASES – District Court Act 1973 (NSW), s 18(3A) - "partly heard"