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"

Constitution Ch III Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 19 LEGISLATION CITED: 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

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 CASES CITED: 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