On 24 May 2011 Hoeben J delivered judgment in respect of a claim by Brian Vincent Maloney, a Local Court Magistrate, seeking prepatory relief that the decision of the defendants that he is currently incapacitated for performance of the office of Magistrate is invalid.
A judicial officer can only be removed from office pursuant to s.53 of the Constitution Act 1982, by the Governor on an address from both Houses of Parliament in the same session, seeking removal on the grounds of prudeness, behaviour or incapacity. The removal can only occur if there is a report from the Conduct Division containing an opinion set out in s.28(1)(a) Judicial Officers Act, 1986, NSW (“the Act”).
Magistrate Maloney was subject to four complaints. Three of these relate to events between 17 September 2008 and 23 December 2009. The first two complaints were from individuals who appeared in proceedings before the plaintiff, Mr Tareq Altaranesi (9 January 2009) and Mr Oliver Banovec (17 September 2009). The third complaint was referred to the Conduct Division being from Dr Duncan Wallace concerning mental health hearings which took place before Magistrate Maloney on 3 December 2009 at the Kiloh Centre, Prince of Wales Hospital. The fourth complaint consisted of an image on Magistrate Maloney’s computer in 2002.
Magistrate Maloney had first consulted Dr Olav Nielssen, Psychiatrist, on 15 February 2010. He was diagnosed with a bipolar disorder. Treatment began with Dr Nielssen in February 2010 and there has been no further apparent behaviour or any evidence of hypermanic episode on his part.
The Conduct Division required Magistrate Maloney to be examined by Dr Phillips and Dr O’Dea. The psychiatrists gave joint evidence to the Conduct Division. In the report of 10 January 2010 Dr Nielssen expressed a positive opinion in relation to treatment and that Magistrate Maloney had good insight regarding the nature of the condition and the need for that treatment.
The Conduct Division accepted that the Doctor’s opinion, in the joint report, was that Magistrate Maloney’s mood state is currently stable and that he is currently fit to perform the duties of a judicial officer not being affected by symptoms that might affect his capacity to perform such duties.
However, the Conduct Division went on to find that Magistrate Maloney’s bipolar 2 disorder was a lifelong one requiring continuous treatment and supervision. If not correctly treated he will suffer hypermanic attacks and other changes of mood with increasing frequency and not increasing the intensity. On such a basis he would be clearly incapacitated for his judicial duties.
It was in this context that the Conduct Division formed the opinion that incapacity could justify parliamentary consideration of the removal of Magistrate Maloney from office on the ground of prudent incapacity.
In argument before Justice Hoeben, it was contended that the Conduct Division had fallen into error. His Honour identified those errors at  (a-d) namely that:
- It replaced a statutory test for proven incapacity with a speculative of enquiry as to whether there was a chance of previous incapacity currently reversed could re-emerge within a 12 year period;
- Did not apply the Briginshaw standard;
- If relied upon a finding of the plaintiff would or might have needed treatment which was never put to him and was against the evidence of the treating psychiatrist;
- the sequence of events was not supported by the evidence of Dr O’Dea or Phillips
Hoeben J ultimately rejected all of the arguments. His Honour at  found “that the conduct division appropriately summarised the effect of the evidence.”
His Honour noted that there was no issue in the proceedings that Magistrate Maloney had been working as a Magistrate since his return to work in August 2010 without complaint and without reoccurrence of symptoms. His Honour found that the evidence of Dr Nielssen, with which the other two Doctors did not disagree was that on balance, Magistrate Maloney would be the subject of at least one (1) further hypermanic episode during his working career as a Magistrate. If not detected immediately so that a gap between recognition and treatment occur, this could lead to behaviour that was unjudicial.
At  His Honour dealt with the finding that Magistrate Maloney had a capacity for denial, self justification and self deception. It was contended on his behalf that there was no evidentiary basis for such finding. His Honour referred to “some of the evidence relating to the screen saver issue and the facial gesture made at the Prince of Wales Hospital, that evidence was given at a time when the Plaintiff was functioning appropriately as a Magistrate receiving treatment“
It is unclear whether His Honour was actually referring to the evidence of Magistrate Maloney given in the Conduct Division about these issues or other evidence given by witnesses at the time of such behaviour. This is an important distinction because both the screen saver and Prince of Wales Hospital matters occurred at a time when Magistrate Maloney was undiagnosed and not receiving treatment. Though his Honour went on to refer to the findings not being about medical issues but were demeanour based findings. The context in which the Conduct Division made such findings specifically relating to the finding that Magistrate Maloney would be unlikely to comply with his treatment regime.
Justice Hoeben dismissed the summons with costs.