AB v JUDICIAL COMMISSION OF NSW (CONDUCT DIVISION) 2018 NSWCA 264

AB v JUDICIAL COMMISSION OF NSW (CONDUCT DIVISION) 2018 NSWCA 264

AB, a Local Court Magistrate, was the subject of complaint to the Judicial Commission of NSW and in turn referred to the Conduct Division. Pursuant to s.24(l) of the Judicial Officers Act the Conduct Division “May hold hearings in connection with the complaint”.

On 8 June 2018 the Conduct Division directed that a hearing be held and affixed the dates for the hearing. Pursuant to s.24(2) the Conduct Division may determine that a hearing “be held in public or in private”.  On 8 October 2018 the Conduct Division determined that the hearing should be held in public.

AB appealed to the NSW Court of Appeal from the decision of the Conduct Division.

The Court, comprised of Basten JA; Meagher JA and Gleeson JA, dismissed the summons seeking judicial review of the decision of the Conduct Division to hold a hearing in public. 1

Eleven grounds of review were relied upon by AB. It was argued that the Conduct Division “plainly fell into error by wrongly construing s. 24(2)” and in so doing “failed to consider the purpose of the text of s.24(2) in its proper context within the operation of the Judicial Officers Act”. The Court held that grounds 1 and 5 were without substance and that the Conduct Division dealt with the power to determine whether a hearing be held in public or private properly.

Grounds 2 and 3 were also rejected and the Court found that the Conduct Division did not conclude that it had made a constraining order at some point which had no power to undo the order: it was patently more concerned about the effect of failing to make such an order, which was the course that took over the objection in the applicant.2

Ground 4 alleged that the Conduct Division “incorrectly applied the principles of ‘open justice’ to an administrative rather than judicial context”. The Court observed that an incorrect application of a legal principle does not necessarily involve jurisdictional error. Further, that giving ‘too much weight’ to a permissible consideration does not usually indicate jurisdictional error. Their Honours referred to the observations of Spigelman CJ in Bruce v Cole3  that the role of the Conduct Division was to provide a procedural strength, reinforced in the principle of judicial independence, in the system for maintaining the integrity of the judiciary pursuant to which “from the passage of the act of settlement (1700) Eng” it has been accepted that judicial officers cannot be removed except by exceptional measures involving action by both the executive and the legislature.4

The Court also rejected Ground 6 of ‘public interest’. The Court at [54] observed “the term ‘Public interest’ has no precise meaning. It is protean and will take its possible meanings from the context in which it is used. In fact each of the six criteria set out in the Guideline involves an element of the ‘public interest’”.

Grounds 7, 8, 9, 10 and 11 were also rejected.

1 See AB v Judicial Commission of NSW (Conduct Division) [2018] NSWCA 264.       
2 Para [35]
3 (1998) 45 NSWLR 163 At [166]-[177]
4 Bruce v Cole (1998) 45 NSWLR 163 At [166f]