"No pressing necessity"
14 Secondly, the applicant sought to rely upon the claim that there was "no pressing necessity of a relevant kind" for his Honour's last appointment. The basis for this requirement was sought to be derived from the reasons of the joint judgment of Gummow, Hayne and Crennan JJ in Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45. Forge involved a challenge to the appointment of an acting judge of the Supreme Court, pursuant to s 37 of the Supreme Court Act 1970 (NSW). As explained in the joint judgment, the assertion of invalidity was put on a global basis, namely that there could not ever be a valid acting appointment: at [86]. That gave rise to a question as to whether the number of acting judges at a particular time or over a particular period had any relevance. At [87], their Honours stated:
"No quantitative criterion should be adopted as limiting the exercise of power under s 37. Any such criterion would inevitably be arbitrary in its content and application."
15 In the present matter, the applicant eschewed an argument based on a quantitative criterion, preferring to describe her claim as involving a "qualitative" assessment. Nevertheless, annexed to an affidavit of her solicitor was a copy of an article from the Sydney Morning Herald which, amongst other things, asserted that a specific proportion of the judges of the Supreme and District Courts had, in either 2007 or 2008 (there was an ambiguity in the article), constituted 20% of the judges. The article also quoted the comments of an academic on the significance of "such a number of acting judges". The value of this evidence might have required consideration, but for the fact that the quantitative claim was not pressed (understandably in the light of the decision in the High Court in Forge); it need not be considered further.
16 So far as the "qualitative" claim was concerned, reference was made to the discussion of the joint judgment in Forge at [92]-[101]. At [92], their Honours stated:
"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 the Federal Court or the Supreme Court of another State or Territory from the way in which they bear upon retired judges, judges of other, inferior, courts, or legal practitioners in active practice. The person in active practice may be thought by some to be concerned about prospects of future permanent appointment, or about the effect of what is done while an acting judge upon resumption of practice at the end of the period of appointment. The person who holds some other judicial office may be thought to be concerned about prospects of promotion to the Supreme Court. The retired judge may be thought to be concerned about the prospect of being able to continue to act as a judge beyond retirement and beyond the statutory retiring age with its consequences for continued professional engagement and enjoyment of a larger income. Is the availability of such arguments to be left for consideration under the principle of apprehended bias or are they considerations that bear upon the institutional integrity of the court?"
17 Clearly the appointment of Judge Boulton on 1 July 2009, pursuant to a commission which expired on his 75th birthday, could not be affected by considerations pertaining to him as an individual. He had no prospects of future permanent appointment, there could be no real concerns about his resumption of practice in this State, he had no prospects of promotion nor even of a further acting appointment. In such circumstances it was not reasonably arguable that his appointment could have had "an adverse effect on the institutional integrity of the court": see Forge at [96]. Rather, the applicant sought to rely upon different considerations, outlined in the joint judgment after consideration of the difficulties which could arise were a legal practitioner appointed to act as a judge for a temporary period, at [97]-[98]. The judgment 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.
[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."
18 Significantly, the concept of "pressing necessity" appears to be introduced as a factor tending to lessen the risk of damage to the institutional integrity of a court which might flow from the factors earlier considered. Because those factors do not arise to any significant extent in the present case, it is doubtful whether any attempt to explore the reasons of the government for making a particular appointment, let alone a series of appointments, would constitute a legitimate exercise in demonstrating harm to the institutional integrity of the District Court. These remarks also give rise to large questions as to the nature of the evidence which might be called in support of such contentions and the justiciability of some issues, such as the reasons for a particular appointment. It is neither necessary nor appropriate to explore these issues further at this stage of the proceedings.
19 The critical factor in disposing of the present application is the absence of any factual basis for an allegation of invalidity based on the principles discussed in Forge. The only evidence relied on to support such a claim is the unawareness of the applicant's solicitor of any pressing necessity for the appointment. That evidence is of no value for this purpose. For that reason, the applicant has failed presently to demonstrate a reasonably arguable case on the second basis relied upon.
Balance of convenience
20 Had a reasonably arguable case as to the invalidity of Judge Boulton's final appointment been demonstrated, there might be force in the submission that the argument should be resolved before the appeal to the District Court was heard. Nevertheless, it would have been necessary to persuade the Court to overcome the counsel of restraint that usually applies in relation to intervention in the criminal process. It is not necessary in the circumstances to embark on that assessment.
Notices under s 78B
21 To the extent that the issues raised above rely upon constraints on the State Parliament flowing from Chapter III of the Constitution, it should be noted that this Court is not impeded from considering such matters, on an interlocutory basis, by reason that no notices as to this hearing have been given pursuant to s 78B of the Judiciary Act 1903 (Cth). The prohibition contained in that section against a court proceeding in a cause until such notices have been given does not apply to prevent a court from proceeding "without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so": s 78B(5).
22 This Court has been constituted within 24 hours of the application being made, in order to deal with the claim for interlocutory relief. It is apparent that the Court has proceeded "without delay", the circumstances being such that the Court was satisfied that it was necessary in the interests of justice to proceed in this manner, to determine whether or not to grant the interlocutory relief sought.
23 Directions have been given in relation to the service of notices under s 78B for the purposes of the principal proceedings and, at least informally, the Court has been informed that steps have been taken in that regard and that some responses have been received.