(a) the finding that the primary judge was partly heard in the appeal;
(b) the validity of the provisions for appointment of acting judges, namely s 18 of the District Court Act , and
(c) the validity of the appointment of the primary judge as an acting judge of the District Court.
The challenge to the refusal of the primary judge to recuse himself for apprehended bias will be addressed separately, as it involves findings on evidence presented in this Court.
(b) whether primary judge partly heard on expiry of his commission
80 For the purposes of this challenge and the challenge to the constitutionality of s 18, it is convenient to set out the section in full, in the form it bore in the District Court Act in November 2009:
" 18 Acting Judges
(1) The Governor may, by commission under the public seal of the State, appoint any qualified person to act as a Judge for a time not exceeding 12 months to be specified in the commission.
(2) In subsection (1), qualified person means a person qualified for appointment as a Judge.
(3) The person so appointed, for the time and subject to the conditions or limitations specified in the person's commission, shall have the powers and authorities and fulfil the duties of the Judge and shall, for the purposes of this or any other Act (other than the Statutory and Other Offices Remuneration Act 1975 ), be deemed to be a Judge.
(3A) The person so appointed may, despite the expiration of the period of the person's appointment, complete or otherwise continue to deal with any matters relating to proceedings that have been heard, or partly heard, by the person before the expiration of that period.
(3AA) While a person completes or otherwise continues under subsection (3A) to deal with any matters relating to proceedings that have been heard or partly heard by the person before the expiration of the person's appointment, the person has all the entitlements and functions of a Judge (subject to the conditions and limitations specified in the person's commission) and, for the purposes of those proceedings, is taken to continue to be a Judge.
(3B) The person so appointed is entitled to be paid remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975 . The remuneration payable to such a person is to be paid to the person so long as he or she continues to hold office.
(4) A retired Judge of the Court or of another court in New South Wales … may be so appointed even though the retired Judge has reached the age of 72 years (or will have reached that age before the appointment expires), but may not be so appointed for any period that extends beyond the day on which he or she reaches the age of 75 years.
(4A) A person who is or has been a judge of the Federal Court of Australia or of the Supreme Court, District Court or County Court of another State or Territory may be so appointed even though that person has reached the age of 72 years (or will have reached that age before the appointment expires), but may not be so appointed for any period that extends beyond the day on which he or she reaches the age of 75 years.
(5) The conditions or limitations specified in a commission under this section may exclude the whole or any part of the period of appointment from being regarded as prior judicial service (within the meaning of section 8 of the Judges' Pensions Act 1953 ) by the person.
(6) A person appointed under this section may be appointed under the title of Acting Judge or Associate Judge."
81 It was common ground that the primary judge turned 75 in November 2009. His last commission, which commenced on 1 July 2009, concluded on that day. There were no conditions or limitations specified in the commission which affected the power to complete or otherwise continue to deal with any matters relating to the proceedings if they were proceedings that "have been … partly heard, by the person before the expiration of that period": s 18(3A).
82 Each of the applicant and the prosecutor (the RSPCA) made submissions as to whether his Honour was partly heard on the day his commission expired. His Honour had expressed a view in that regard in his judgment delivered on 18 December 2009, the validity of which no doubt depended upon the answer given to the question. Although presumably the State has continued to pay the primary judge since the date on which his commission expired, the Solicitor-General made no submissions in respect of the issue as to whether he validly continued to act, nor did he make submissions as to how this Court should approach an assessment of that question.
83 The RSPCA based its submissions on the proposition that, if the proceedings were the appeal, they had been "partly heard" by 14 November 2009, with the result that his Honour could continue to deal with any matters relating to the appeal, including its determination. In the alternative, the RSPCA submitted that if the proceedings were the motion to adduce further evidence, it had undoubtedly been heard and what remained in the appeal were matters "relating to" that motion.
84 The alternative construction reverses the focus and meaning of sub-s 18(3A). It is the "proceedings" that must have been heard or partly heard; where the substantive issues have not yet been addressed by the Court, proceedings cannot be said to "have been heard". If the substantive issues have been addressed but questions of interest on a judgment, costs or some ancillary consequential matter have not been determined, those matters can be completed. On the other hand, where the judge is one week into a two week trial, it is clear that he or she may "continue to deal with" and "complete" the substantive issues as well as any consequential matters. Where a preliminary matter has been heard (or partly heard) the liberty granted by the section is not engaged so as to permit the judge whose appointment has expired to commence hearing the substantive issues in dispute. What is less clear is whether a preliminary matter is being dealt with, in a particular case, as part of the substantive hearing, or as a preliminary matter, separately and before the substantive hearing. In the present case the question is whether the application to hear further evidence was being heard as part of the appeal or separately and before consideration of the appeal against the convictions.
85 Proceedings "have been heard" where the hearing of evidence and submissions has finished, but judgment has not been delivered. The section would permit delivery of judgment in such circumstances, after the expiration of the judge's commission. It is arguable that the first limb of the conferral of power ("complete") attaches to proceedings "that have been heard", whereas the second limb ("otherwise continue to deal with") attaches to the second limb of the state of the proceedings, namely those that are "partly heard". While such a construction has a superficial attraction, it is not necessary to limit the operation of the language in this way and the likelihood that any such limitation was intended is diminished by the separation of the subject of the two sets of elements, the first dealing with matters relating to proceedings and the latter with the proceedings themselves.
86 The Court was referred by the RSPCA to the decision of Hall J in Khalil v His Honour, Magistrate Johnson [2008] NSWSC 1092. That case involved an application to set aside orders made by the magistrate refusing an application under certain provisions of the Mental Health (Criminal Procedure) Act 1990 (NSW). One ground of the review sought asserted that the magistrate had determined the application in circumstances where another magistrate was part-heard. Intervention in such a case has been held by this Court to be warranted: see Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 at 649C under the heading "Principles governing substitution of judges". In Khalil, Hall J looked at the circumstances of the case, including the manner in which the first magistrate had dealt with the proceeding before him, to determine whether he was in fact "part heard". As his Honour concluded that the first magistrate was not part heard, the legal consequence of the ground of appeal as formulated in those terms was not considered.
87 In the present context, the legal consequence is not in dispute: absent reliance on s 18(3A), the primary judge had no power to deal with the matter after November 2009 and all steps taken thereafter before his Honour must be treated as null and void.
88 The assessment of whether the requirements of s 18(3A) were fulfilled is a matter to be determined by this Court on the basis of the circumstances that had arisen prior to November 2009. There is no doubt, in that regard, that various factors pointed in different directions and that the parties themselves adopted different positions at different stages. The material events may be dealt with chronologically. First, on 11 August 2009, counsel for the applicant commenced with an opening described in the following terms (Tcpt, 11/08/09, p 2(10)):
"In these opening remarks, your Honour, I will give a short narrative of the facts of the matter, including a review of the reasons for judgment, outline the grounds of appeal, the evidence in the matter that is proposed to be led in the court pursuant to the court's powers under sections 18 and 19 of the Act, refer briefly to the case of the respondent, and then I hope to conclude these opening remarks shortly before the luncheon adjournment, if not sooner."
89 The opening was clearly undertaken on the basis that the motion to admit further evidence would be dealt with as part of the appeal. Indeed, as counsel later indicated, he did not envisage that the primary judge would rule on the admissibility of the evidence at that stage, but indicated (Tcpt, p 9(20)):
"I proposed to introduce to your Honour the additional material we wish to lead. If we're successful in having that led then the court will take it into account. It will be part of our submission your Honour should simply admit it provisionally under the Evidence Act and deal with it in the judgment if it's appropriate to say. If not it will be rejected and then nonetheless we still propose to proceed with the appeal and the costs order, because of the importance of the matter."
90 It is clear that what had been fixed for hearing on 11 August was the appeal: the debate which ensued concerned the likelihood of the appeal being concluded within the five days. Although the applicant did not consider that there would be a problem, as indicated above at [75], it would have been open to the primary judge to have decided to deal with the question of evidence separately and not to embark on the hearing of the appeal itself. However, the need to consider how the further evidence might be seen to operate in circumstances where the appeal would otherwise proceed by reference to the transcripts of the evidence given before the magistrate, might have rendered any possible separation inefficient, if not counterproductive. Thus, while it may be accepted that where the hearing of the appeal has commenced, the Court may nevertheless abandon that course and limit itself to a specific preliminary issue, there is no suggestion that such a course was taken in the present case. The appeal was listed for hearing, the hearing commenced, counsel opened generally, and the matter proceeded for the next four days. The fact that the whole of the period was taken up in debating the application to call further evidence does not demonstrate that that application, important as it was, in the applicant's view, to the outcome of the appeal, was not being dealt with as part of the appeal.
91 On the Friday of the first week, following the delivery of judgment rejecting the application, the parties considered further dates for the hearing and attempts were made to find a further three days. At least in the applicant's view, the bulk of the extra time was considered necessary because of an expectation that there would be a challenge to the reasonableness of the costs which were sought to be recovered by the RSPCA, in the event that the conviction were upheld: Tcpt, 14/08/09, pp 2-3. Otherwise counsel noted that his Honour had had "the opportunity of perusing the transcript", being that in the Local Court, although he anticipated that the primary judge "may need to revisit it of course": Tcpt, p 2(40). There seems to have been little anticipation that there was much left to say in respect of the substance of the appeal.
92 The motion for recusal signed by the solicitor for the applicant on 23 August 2009 sought that his Honour "be recused from the further hearing of the appeal". It may be inferred from that step that the applicant's legal advisors were then of the view that the matter was partly heard before his Honour, although the present issue was probably not then in contemplation.
93 When the matter came back before the primary judge on 20 October 2009 counsel raised the possibility that if the matter were not completed by November 2009, the recusal application might be unnecessary. His Honour noted that if he were "embarked on the appeal" he was allowed to finish anything that he had commenced and stated (Tcpt, 20/10/09, p 2(1)):
"I would, without having heard argument on the matter, take the view that hearing an application for leave to bring further evidence is part of the appeal process and that rarely I am part heard on the appeal. Now I am prepared to hear argument either way on that issue."
94 That argument did not in fact take place until 15 December 2009.
95 Leaving to one side what happened after November 2009, it is necessary to refer to some aspects of the judgment of 14 August 2009, on which the applicant placed reliance. In that judgment his Honour was dealing with the motion to call fresh evidence, which required leave pursuant to s 18(2) of the Appeal and Review Act. His Honour commenced by noting the principles to be applied in dealing with such an application and stated (Judgment, p 5):
"The prosecution case in the court below ran for ten days. I need to say something about the conduct of the case because I was asked by counsel from both ends of the bar table to read the evidence and view the exhibits from the court below. I have done so. I might say it was no small task."
96 His Honour noted the procedural history and the fact that reference had been made in the course of argument before him to the disparity in experience of the counsel appearing for the parties in the Local Court. He continued, having referred to the care with which counsel had presented the applicant's case (Judgment, p 7):
"I noted that his address to the magistrate made at the very conclusion of the case was extremely lengthy and extremely detailed. That is not to say the inequality in level of seniority of counsel is a matter which is likely to prevail as an issue on appeal. I am, of course, here not dealing with the appeal. I am only dealing with the application for leave to appeal. Unless there were gross incompetence on the part of her counsel, it would be very unusual for an appellate court to be interfering with an outcome merely on the basis of the difference in the level of experience of counsel.
It's necessary, unfortunately, that I make some comment about the facts."
97 Before us, the applicant sought to invite attention to the primary judge's statement that he was "here not dealing with the appeal". However, read in context, that statement is neutral. In that judgment, he was not determining the appeal, but the application for leave to call fresh evidence. (Indeed the next sentence misstates the nature of the application, although it is not in doubt that his Honour knew the nature of the exercise in which he was actually engaged.) Given that it was necessary to make some comment about the submissions and the factual material before him, it was also necessary for his Honour to note at various stages that he was not determining the appeal but only the application. There was nothing of significance to be inferred from that statement, for present purposes.
98 In the course of the hearing on 11 August, it was counsel for the RSPCA who raised the possibility that the case would not be completed that week. After submitting that the matter could be dealt with either within the time envisaged or within a short additional period, counsel for the applicant stated (Tcpt, pp 7-8):
"Mrs Downey is an elderly lady, she lives on her own at the farm, she's got several country witnesses all down here. They're being looked after very nicely by the Salvation Army people but it is a distress for them to have to come all this way. Folk who are just ordinary folk who are very concerned about what happened in this case which has had some publicity and the matters that we wish to bring before the court are very proper and so your Honour we are very concerned to proceed before your Honour this week as far as we can get. We think that with co-operation between counsel, it can even be finished this week."
99 From that statement, it was clear that the applicant expected the whole of the appeal to be dealt with in the time fixed. That expectation was not of course conclusive as to what happened thereafter. Nevertheless, it is consistent with other factors which suggest that the primary judge was dealing with a stage of the appeal. There being clear indications that when the proceedings commenced on 11 August what was listed, what was opened, and what was expected to be addressed, was the appeal itself, including the application to call fresh evidence, it is necessary to look for indications after the commencement of the proceedings that some different course was taken. The fact that it was only the application to call fresh evidence which was ultimately completed does not, of itself, provide any clear indication that the hearing of the rest of the appeal was no longer in contemplation before that judge, even if it were necessary to obtain a further special fixture. There is nothing else, beyond the later submissions of counsel for the applicant, suggesting a change in course. Accordingly, the applicant has failed to demonstrate that the primary judge was not "partly heard" in respect of the appeal from the proceedings in the Local Court when his commission expired. This ground of challenge to the proceedings in the District Court is rejected.
(c) validity of s 18
100 The scope of the applicant's submissions in respect of constitutional invalidity of s 18 is not easy to encapsulate in a simple statement. The primary basis of the submission was the statement of principle in Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45. Forge was concerned with an argument that s 37 of the Supreme Court Act 1970 (NSW), providing for the appointment of acting judges to the Supreme Court, was invalid because it compromised the institutional integrity of the Court as a body required to exercise federal judicial power, and as recognised by the Constitution. Section 37 was found not to be invalid in Forge, and it was not demonstrated that it had not been validly engaged to appoint the acting judge who had heard the case from which the appeal was brought: at [102]. While rejecting the appellant's submissions in that case, the High Court acknowledged that the appointment of acting judges, who lacked tenure and hence independence, could impugn the institutional integrity of the Court. Thus, Gummow, Hayne and Crennan JJ stated at [101]:
"Whether, or when, the institutional integrity of the court is affected depends, then, upon consideration of much more than the bare question: how many acting judges have been appointed? Regard must be paid to who has been appointed, for how long, to do what, and, no less importantly, why it has been thought necessary to make the acting appointments that have been made. Those alleging invalidity in the present matter did not seek to make a case founded in any examination of the circumstances that led either to the successive appointments of Foster AJ, or any of the other appointments made at or about the time of his appointments."
101 The applicant sought to rely upon that passage to justify an extensive exploration of those issues in respect of the period in which the primary judge was appointed and reappointed, namely between 1 July 2006 and 1 July 2009. The applicant also sought to rely upon a point of construction discussed in the joint judgment at [72] in the following terms, dealing with s 37 of the Supreme Court Act.
"Given that it distinguishes between acting and permanent appointments in the way described, the Supreme Court Act would not easily be read as permitting the appointment of so few persons as judges, and so many to act as judges, as would permit the conclusion that the court was predominantly, or chiefly, composed of acting judges. On the proper construction of the Act the power to appoint acting judges under s 37 would not extend to authorising the making of so many appointments."
102 Despite accepting the relevance of the raw numbers, the Court eschewed reliance upon some "quantitative criterion" taken alone: at [90]. As their Honours further explained, a significant difference might be identified between the appointment of a retired judge, and that of a legal practitioner, to act as a judge for a temporary period: at [96]-[98]. Their Honours continued:
"99. That is not to say that the importance of these considerations may not be reduced if account is taken of the reasons that lead to the making of an acting appointment. The greater the necessity for the appointment, the less influential on perceptions of impartiality and integrity may be the considerations of the possible frailties of the person or persons appointed. That is, the institutional integrity of the court is less likely to be damaged by response to pressing necessity than it is by the change of character that may be worked by a succession of short-term appointments for no apparent reason other than avoiding the costs associated with making full-time appointments or, perhaps worse, a desire to assess the 'suitability' of a range of possible appointees.
100. As is implicit in what is just said, 'pressing necessity' refers to some necessity arising from the work of the court, not simply a desire, by the Executive, to avoid the costs of making full-time appointments. In particular, the proposition that a sudden increase in the work of a court may turn out to be 'of a temporary nature only' will seldom amount to such a pressing necessity. It is an assertion which serves only to obscure first, the fact that '[j]udicial power is exercised as an element of the government of society' and secondly, and no less importantly, that 'the third great department of government' cannot discharge its functions without adequate financial support from the other two departments."
103 Relying on these passages, the applicant submitted that, despite calls for the production of relevant material, nothing had been produced by the State which demonstrated any "pressing necessity" for the appointment of the primary judge as an acting judge, or the appointments of others made at approximately the same times.
104 The applicant also relied on a number of features of the case as in some way demonstrating the invalidity of the appointment of the primary judge. Properly understood, such material was only available to demonstrate, in a practical sense, how the appointment of an acting judge might create conflicts of interest and duty and demonstrate a lack of independence. In fact, for reasons which will be outlined below, factors particular to this case can do little more than illustrate the principles articulated in Forge.
105 The constitutional principles at stake commence in certainty but lose that characteristic as they approach their penumbra. The first proposition, which flows from s 72 of the Constitution, is that no justice appointed to the High Court or to another court created by the Parliament can be appointed for a fixed term or for any term beyond the age of 70 years. Secondly, that provision applies to federal courts in the narrow sense and does not extend to the Supreme Court of the Australian Capital Territory: Re The Governor, Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44; 200 CLR 322. However, the underlying principle was applied to the constitution of the Local Court of the Northern Territory and the fixing of the remuneration of the Chief Magistrate for a fixed period: North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; 218 CLR 146.
106 Thirdly, the role of State Supreme Courts is recognised in the Constitution (s 73) in a way which precludes interference by the government with the essential supervisory jurisdiction of those courts as it existed at the time of Federation: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [97]-[100]; see also Spigelman JJ, "The Centrality of Jurisdictional Error" (2010) 21 PLR 77 at 78-79. That principle may not apply to inferior State and Territory courts generally, except to the extent that they may exercise federal jurisdiction: s 73(ii). However, the fact that the Parliament may invest federal jurisdiction in "any court of a State", pursuant to s 77(iii), and has invested such jurisdiction in the District Court, places it in a position similar to that of the Supreme Court for this purpose.
107 Fourthly, the fact that a State court is capable of exercising federal jurisdiction requires that such a court "be and appear to be an independent and impartial tribunal": Bradley, at [29] referring to the remarks of Gaudron J in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [81] where her Honour observed:
"Impartiality and the appearance of impartiality are necessary for the maintenance of public confidence in the judicial system. Because State courts are part of the Australian judicial system created by Ch III of the Constitution and may be invested with the judicial power of the Commonwealth, the Constitution also requires, in accordance with Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, that, for the maintenance of public confidence, they be constituted by persons who are impartial and who appear to be impartial even when exercising non-federal jurisdiction."
108 Fifthly, as the judgment in Bradley continued, a difficulty arises in discerning "the relevant minimum characteristic of an independent and impartial tribunal": at [30]. The joint judgment referred, with apparent approval, to the remarks of McHugh J in Kable at 119 that the boundary of legislative power -
"is crossed when the vesting of those functions or duties might lead ordinary reasonable members of the public to conclude that the State court as an institution was not free of government influence in administering the judicial functions invested in the court."
109 Referring to the opinions in the House of Lords in Porter v Magill [2002] 2 AC 357, especially at [88] (Lord Hope of Craighead), Gleeson CJ in Bradley noted that in considering whether a tribunal is independent, "regard must be had inter alia to the manner of appointment of its members and their term of office, and the existence of guarantees against outside pressures": at [3]. After referring to numerous sources for the proposition that the "fundamental importance of judicial independence and impartiality is not in question", his Honour continued:
"Within the Australian judiciary, there are substantial differences in arrangements concerning the appointment and tenure of judges and magistrates, terms and conditions of service, procedures for dealing with complaints against judicial officers, and court administration. All those arrangements are relevant to independence. The differences exist because there is no single ideal model of judicial independence, personal or institutional. There is room for legislative choice in this area; and there are differences in constitutional requirements."
110 The comments of McHugh J in Kable suggest that the boundary of legislative power is identified by reference to arrangements which "might lead ordinary reasonable members of the public to conclude that [a court] as an institution was not free of government interference" in administering its judicial functions. That test is redolent of the standard required of individual judges in carrying out their functions in a particular case, free from a reasonable apprehension of bias. Although not easy to apply in particular cases, the use of such language appears to lead the Court into well-trod territory. However, its application in respect of "institutional integrity" requires normative judgments of a different kind. It is also necessary to consider the consequences of a conclusion that the relevant boundary of either legislative or executive power has been crossed. Where there is a lack of institutional integrity, can the consequences be limited to the particular case in which that is determined? If not, there will be circumstances where a declaration of invalidity may have a far greater effect in diminishing public confidence in the court as an institution, than the legislative or executive act which crossed the relevant boundary.
111 Most of the cases applying these principles have arisen in respect of the existence or exercise of powers of removal of judges: see, eg, in Canada Valente v The Queen [1985] 2 SCR 673; Ell v Alberta [2003] 1 SCR 857. Other cases deal with the independence and impartiality of tribunals: see, eg, Porter v Magill.
112 Questions about appointment of judicial officers raise different issues. Such questions arose in one particular context with the introduction of the Local Courts Act 1982 (NSW) and the requirement that stipendiary magistrates appointed under the Justices Act 1902 (NSW) apply for reappointment under the new Act. Issues relating to the mechanism for appointment of "former magistrates" were discussed in Macrae v Attorney-General (NSW) (1987) 9 NSWLR 268 and in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1. As noted by Mason CJ in Quin at p 18:
"However, in the present case there is no justification for granting relief in a form which would compel the Executive to adhere to an approach to judicial appointment which it has discarded in favour of a different approach which, in the opinion of the Executive, is better calculated to serve the administration of justice and make it more effective. Generally speaking, the judicial branch of government should be extremely reluctant to intervene in the Executive process of appointing judicial officers. Apart from s 12 [of the Local Courts Act ], under the constitutional arrangements which prevail in New South Wales and the doctrine of separation of powers, to the extent to which it applies in that State, the function of making appointments to the Judiciary lies within the exclusive province of the Executive. According to tradition, it is not a function over which the courts exercise supervisory control."
113 Brennan J, agreeing with the Chief Justice as to the result, stated at pp 33-34:
"It is not the function of a court to direct or to affect the selection of judicial officers. A remedy (quo warranto) can be granted only in the exceptional case where the appointment is not authorized by law. It is not to the point that some appointments to judicial office have been made for unworthy purposes or of unworthy people; the responsibility for appointments to judicial office, by constitutional convention if not by constitutional law, belongs to the Executive Government. The courts are not responsible for their own constitution. The calibre of appointments to the judiciary depends solely on the Executive Government and that is a heavy responsibility which the Executive Government alone must bear. Therefore it is the criteria which appeal to the Executive Government, not the criteria which appeal to the courts, which necessarily prevail in the selection of judicial officers."
114 Departure from these principles where constitutional requirements render interference necessary, should be a rare case. As will be explained, it is not necessary in the circumstances of the present case to chart the occasions on which such interference will be appropriate, nor the consequences thereof.
115 In Forge, the joint judgment noted that the appointment of a serving judge of another court of equivalent jurisdiction as an acting judge could not possibly give rise to any concern as to institutional integrity of the court to which he or she was appointed: at [95]. Similarly, the appointment of a retired judge from a court of equal standing for a particular case, with no immediate prospect of reappointment, could have no adverse effect on institutional integrity: at [96]. Apart from those clear cases, the Court envisaged possible adverse impacts, depending on the circumstances. As the Court noted at [92]:
"Different considerations affect these different classes of qualified persons. The prospect of appointment as a permanent judge, or reappointment as an acting judge, will most likely bear differently upon those who, at the time of appointment as an acting judge, are judges of [another court] from the way in which they bear upon retired judges, judges of other, inferior, courts, or legal practitioners in active practice."
116 Their Honours' reference to the concept of "pressing necessity" may reflect the exception to the rule with respect to apprehension of bias which, if applied in the usual way, would disable a tribunal from performing its statutory functions: see, eg, Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70 at 88-89 (Mason CJ and Brennan J). So understood, it would be a factor which operated by way of an exception in circumstances where a failure of institutional integrity of the court had been established. By contrast, in the present case, the applicant sought to argue that, having demonstrated either a prima facie case of the integrity of the Court being undermined, or of the individual officer having a conflict of interest and duty, it was a matter for the State to demonstrate the "pressing necessity" for the appointment.
117 In particular, he noted the remarks in Forge that "pressing necessity" was contrasted with the effects of a succession of short-term appointments "for no apparent reason other than avoiding the costs associated with making full-time appointments": Forge at [99].
118 The submission that Forge renders justiciable the purposes or criteria affecting an individual appointment as an acting judge, or indeed a series of such appointments, would involve a major intrusion on the principles stated by members of the Court in Quin. The extent to which and the circumstances in which that submission should be accepted need not be determined. Because the test involves an assessment of the reasonable conclusions of "the informed observer", the unrevealed purposes and intentions of the Executive Government are unlikely to be decisive; it is the objective appearance which must be assessed: Forge, at [93].
119 In addition to the reasons for caution noted above, the Court should not, at the instance of an individual litigant, involve itself in any inquiry into the institutional integrity of a particular court beyond the period necessary to dispose of the specific case. The applicant sought to rely upon statistics for the years 2006-2009, although her case did not come to the District Court until early 2009. The period was chosen because it encompassed the period during which the primary judge was an acting judge of the Court. However, as appears from the material in evidence, circumstances differed significantly over that period. For example, some 33 persons held appointments as acting judges over the calendar year 2006, whereas, in the current year, only 14 persons have held such appointments (other than judges continuing to deal with partly heard matters) and all were persons who had held previous judicial offices. Because it is unnecessary to do so, it is inappropriate to speculate as to what might be the legal consequence of a finding that the Court lacked institutional integrity in one year, but had regained it in the next.
120 In 2010, the 14 acting judges should be seen in the context of there being 63 permanent holders of judicial office in the District Court. Further, although the figures are not available for 2009 or 2010, in 2008 when there were 19 acting judges, the actual number of sitting days of those judges, was equivalent to two full-time appointments: District Court of New South Wales Annual Review 2008, p 29.
121 Although quantitative criteria are not determinative, they should not be irrelevant. Assuming that the government has some flexibility in assessing the need for judges against variations in the workload of a particular court, together with fluctuations in availability of judges caused by eligibility for extended leave and illness, it is fanciful to think that an informed observer would view the volume of the Court's caseload undertaken by acting judges in 2009 and 2010 as diminishing the status of the Court as a body comprised almost entirely of permanent judicial officers.
122 The second important consideration is that, since 31 July 2009, no acting judge has been appointed other than from the holders of previous judicial offices.
123 Thirdly, considering the circumstances relating to the appointment of the primary judge in particular, the relevant appointment was, by law, his last. Accordingly, he had no interest in determining cases in any way which might be thought to promote his opportunities for reappointment.
124 To the extent that the applicant submitted that even after turning 75, he might have an interest in being recommended for "other judicial or quasi-judicial work such as commissions of inquiry or references by the Attorney-General under the" Appeal and Review Act, the Solicitor described the point as "fanciful". The description is apt.
125 It follows that, whatever the circumstances in which it might be thought that the appointment of acting judges had undermined the institutional integrity of the District Court, it cannot be said that that point was approached in 2009-2010. Further, there is no reason to suppose that the final reappointment of the primary judge was invalid because it demonstrated a lack of independence of the Executive Government.
126 In the second further amended statement of claim, the applicant sought declarations that the primary judge was not "authorised" by s 18 to hear or further hear the proceedings and a declaration that s 18, in so far as it purported to authorise the primary judge to hear or further hear the proceedings, was invalid. The sense in which s 18 "authorised" the primary judge to hear the proceedings appears to have been a reference to his appointment as an acting judge on 1 July 2009. The reference to authority to continue to hear the proceedings could be understood as a challenge to the validity of s 18(3A), permitting an acting judge whose commission has expired to continue to deal with proceedings that have been heard or partly heard prior to the expiration of the commission. However, no separate argument was put specifically in that regard.
127 Consistently with Forge, s 18 is not invalid. Nor did the circumstances of the appointment of the primary judge in 2009 demonstrate any relevant failure of institutional integrity.
(d) invalidity: State Constitution
128 The applicant raised a separate argument as to the validity of s 18(4A), which permits the appointment as an acting judge of a person who, amongst other qualifications, had been a judge of the District Court of another State and who had reached the age of 72 years. This provision, without which the appointment of the primary judge could not have occurred, was inserted in the District Court Act by the Courts Legislation Amendment Act 2001 (NSW) ("the 2001 Amendment Act"), Sch 2 [2]. The effect of this provision, the submission proceeded, was to amend, expressly or impliedly, provisions in Pt 9 of the Constitution Act 1902 (NSW) dealing with the State judiciary. Since its insertion in the Constitution Act in 1995, s 7B required that such an amendment be submitted to the electors in accordance with the Constitution Further Amendment (Referendum) Act 1930 (NSW), absent approval by whom, the Bill may not be presented to the Governor for assent.
129 It is clear that sub-s 18(4A) does not, expressly, repeal or amend any part of Pt 9 of the Constitution Act. It was therefore necessary for the applicant to identify some manner in which it impliedly amended (repeal was not suggested) some provision in Pt 9. That result was achieved, the applicant submitted as follows:
"33. Recognised and protected by Part 9 as part of the State judiciary for certain purposes[,] in particular preventing despotic dismissal of acting judges[,] are acting appointments to judicial office: s 53(4) and (5).
34. State legislative arrangements in relation to the judiciary including its 'composition' and nature, are part of the Constitution of NSW, even though not all such provisions form part of the Constitution Act 1902 ….
35. The composition of the State judiciary is described generally in Part 9, supplemented by laws which identify the judges and acting appointments referred to. … Section 18 [the] District Court Act 1973 made prior to the entrenchment law, purports to 'deem' persons appointed to the position of acting judges as 'judges' of the [District Court]."
36. Subsection 4A purports to extend the composition of the State's judiciary to former judges of other States and to other jurisdictions outside the State's judicial structure, whether or not they have ever been 'judicial officers' of New South Wales, with no experience whatsoever of NSW laws and usages or the administration of justice in this State, and who exceed the age of judges who may lawfully be appointed judges of this State."
130 In their terms, these submissions misconceive the scope of Part 9 of the Constitution and the purpose and effect of sub-s 18(4A). Dealing first with the operation of sub-s 18(4A), the class of persons who may be appointed is not identified by that provision, but by sub-s 18(2), which specifies that qualification for appointment as an acting judge is the same as that for appointment as a judge. That in turn picks up the definition of "qualified person" in s 13(2), which presently includes "a person who holds or has held a judicial office of this State or of the Commonwealth, another State or a Territory": s 13(2)(b). However, that definition was, itself, introduced by the 2001 Amendment Act which introduced s 18(4A). Prior to that amendment, s 13(1) provided that a person qualified for appointment as a judge was "a Magistrate, or a legal practitioner of at least 7 years' standing": former s 13(1). Thus, the complaint based on an expansion of the pool of eligible persons for appointment to office must be referable to the insertion in 2001 of new sub-s 13(1) and (2). The purpose of sub-s 18(4A) was, as the Solicitor-General pointed out, to overcome the effect of the Judicial Officers Act 1986 (NSW), s 44, which imposed a retirement age of 72 years.
131 The applicant's submission, however, fails at a more fundamental level. The assumption that the 2001 Amendment Act affected Pt 9 of the Constitution Act depended upon the characterisation of Pt 9 as identifying, not the members of the judiciary, but the pool of eligible candidates for appointment to judicial office. None of the five sections in Pt 9 (ss 52-56) has that effect. Section 52 defines "judicial office" for the purposes of the Part and identifies various categories by reference to particular courts. The other sections deal with removal, suspension and retirement from judicial office, and the abolition of judicial office, respectively. No section deals with appointment. Section 53, to which reference was made in the applicant's submissions, provides protection from removal, otherwise than in accordance with Pt 9. It alone refers to acting judges and does so by extending the operation of s 53 to "acting appointments to judicial office, whether made with or without a specific term": s 53(5). That the purpose of Pt 9 is to protect the holders of judicial office, whoever they may be, is reflected in the entrenchment provision in s 7B which excludes from its own operation the provision of a Bill that would amend s 52 "for the purpose of extending the application of Part 9 to additional judicial officers or classes of judicial officers": s 7B(8).
132 The protection accorded by Part 9 is not relevantly affected by s 18(4A) of the District Court Act. The submission that s 18(4A) or, more properly, that provision and sub-s 13(2), are invalid because they were not enacted in accordance with s 7B of the Constitution Act is rejected, because the requirements of s 7B were not engaged.
(e) District Court Act - validity of privative clause
133 As noted above, a summons seeking relief under s 69 of the Supreme Court Act is required to contain a statement setting out "briefly but specifically" the grounds relied on in support of the claim: UCPR, r 6.12A(b). The failure to comply with that provision gave rise to a degree of uncertainty as to the grounds, which needed to be extracted from the various emanations of the written submissions of the applicant. According to the notice served under s 78B of the Judiciary Act 1903 (Cth), one of the constitutional issues which arose was the validity of s 176 of the District Court Act: Notice, par 2(c). The notice further stated that the applicant has "no or limited rights of review by certiorari" in respect of a decision of the District Court in a criminal cause. The reference may have been defensive, in the expectation that one of the respondents would seek to call in aid s 176, which appears in Pt 4 of the District Court Act, headed "The criminal jurisdiction of the Court", and provides:
" 176 No proceedings in the nature of certiorari
No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court."
134 No respondent sought to rely upon this provision in resisting the relief sought by the applicant. As the Solicitor-General submitted, while s 176 applies to the present proceedings, it is accepted that it does not prevent this Court from granting relief in respect of jurisdictional error: see Director of Public Prosecutions v Emanuel [2009] NSWCA 42; 193 A Crim R 552 at [18] and [45]; Spanos v Lazaris [2008] NSWCA 74 at [15]. Were it otherwise, the provision might well exceed the power of the State legislature: Kirk at [100]. It is unnecessary to say anything further in respect of this issue.
(6) Apprehension of bias
(a) issues raised
135 Following the unsuccessful application to lead fresh evidence, the applicant requested the primary judge to disqualify himself from further hearing of the appeal on the ground of apprehended bias and, indeed, actual bias. The demonstration of bias was said to arise from, chronologically: