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.