James Bowers v Judicial Commission of New South Wales

Supreme Court of NSW|2021-11-26|Before: Wright J

Counsel: D Farinha (Defendant)

Solicitors: Crown Solicitor's Office (Defendant) File Number(s): 2021/00174248

Judgment

By a summons filed on 17 June 2021, the plaintiff, Mr James Bowers, sought judicial review of a decision of the defendant, the Judicial Commission of New South Wales, conveyed to him by letter dated 11 May 2021. The decision in question was to the effect that the complaint lodged by the plaintiff was summarily dismissed under s 20(1)(h) of the Judicial Officers Act 1986 (NSW), following the Commission's preliminary examination conducted as required by s 18(1) of that Act.
In keeping with the approach mandated by s 18(3) of the Judicial Officers Act that a preliminary examination take place, as far as is practicable, in private, in this judgment I shall not identify the judicial officer against whom the complaint was made, since that is not necessary to explain my reasons for making orders in the present case.

The amended summons

On 13 September 2021, the plaintiff sent an email to the Judicial Commission's solicitor stating that he would be applying to amend the summons to include a ground of breach of procedural fairness.
On 22 September 2021, the plaintiff was given leave to file an amended summons in the form of the document attached to a notice of motion filed on 15 September 2021. That amended summons was filed in Court at the hearing on 26 November 2021.
In the amended summons, the relief claimed was stated to be as follows: "1 An order in the nature of certiorari pursuant to s69 of the Supreme Court Act 1970 (NSW) setting aside the decision of the Defendant dated 11 May 2021 and constructive refusal dated 9 September 2021, received by the Plaintiff on 23 May 2021 on the Plaintiff's complaint about [the first judicial officer's] breaching the reserved judgements protocol on the basis of a breach of procedural fairness and alternatively, that it is perverse: see 10 page ex tempore judgment - revised of [the second judicial officer] dated 20 February 2020 - attached. 2 An order in the nature of mandamus pursuant to s69 of the Supreme Court Act 1970 (NSW) directing the Defendant to perform its duty pursuant to the Judicial Officers Act (NSW) 1986. 3 Costs."
Technically, the amended summons did not comply fully with the requirements of r 59.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), in that the terms of the decision to be reviewed were not stated as required by r 59.4(b)(ii), and the grounds on which relief was sought were only stated in general terms and not "with specificity" as required by r 59.4(c). This may perhaps have been because the form used was Form 4B rather than the appropriate form, Form 85, "Summons (Judicial Review)", which makes specific provision for the information required by UCPR r 59.4.
Nonetheless, from the amended summons and the material before the Court, it was sufficiently clear that the decision which the plaintiff challenged was the Judicial Commission's decision to dismiss the plaintiff's complaint under s 20(1)(h) of the Judicial Officers Act set out in the Commission's letter to the plaintiff dated 11 May 2021.
In addition, it was clear that in substance the grounds relied upon were: 1. that there was a denial of procedural fairness in the way in which the Commission dealt with the plaintiff before making its decision; and 2. that, having regard to the second judicial officer's ex tempore judgment, the Judicial Commission's decision was perverse in the sense of being unreasonable or lacking in an evident and intelligible justification.
The Judicial Commission's written submissions addressed each of these grounds. In these circumstances and as there did not appear to be any substantial prejudice to any party, under s 14 of the Civil Procedure Act 2005 (NSW) I decided to dispense with strict compliance with r 59.4 of the UCPR in respect of the amended summons in the present case.

The factual background to the complaint

In November 2019, the hearing of proceedings brought by the plaintiff took place before the second judicial officer, and at the conclusion of the hearing judgment was reserved.
On 10 February 2020, the plaintiff sent an email marked to the attention of the first judicial officer which included the following: "I am the plaintiff representing myself. I am a solicitor. [The second judicial officer] reserved judgment in this pretty straight forward … case on 21 November 2019 and I consider the delay in judgment unacceptable."
The first judicial officer's associate responded to that email by email dated 11 February 2020 which included the following: "I refer to your email communication which should have been copied to the other side. The [first judicial officer] has asked me to advise that enquiries have been made of the [second judicial officer's] chambers and it is expected that judgment in this matter will be delivered within 3 months of judgment having been reserved, which is in accordance with ordinary practice within the court."
The plaintiff sent another email dated 11 February 2020 to the associate which asked when, allowing for holidays, the three-month period would expire.
There was no response to that email, but the parties to the proceedings were notified that the second judicial officer would deliver judgment on 20 February 2020. On that day, a written judgment was handed down and, in addition, the ex tempore judgment was delivered dealing with communications and applications made by the plaintiff in the period between the end of the hearing and the delivery of the written judgment.
It is significant for the purposes of the present judicial review application that the ex tempore judgment set out in full the terms of the plaintiff's email of 10 February 2020, which has been quoted above. On this basis, it can be concluded that by the time the second judicial officer delivered the ex tempore judgment it had been disclosed to the second judicial officer that the plaintiff had made an enquiry about a reserved judgment that the plaintiff considered had been outstanding for an unreasonably long time.
It was not in dispute that the applicable reserved judgment protocol at that time stated, inter alia: "at no time will the head of jurisdiction reveal the inquirer's identity to the judicial officer/s concerned".
There was also correspondence between the plaintiff and a registrar of the court in March 2020 by which the plaintiff sent a copy of the ex tempore judgment to the registrar. On 10 March 2020, the registrar responded by email explaining that the 10 February 2020 email of the plaintiff was sent to the second judicial officer in circumstances where the plaintiff was engaged in email communication with the second judicial officer's chambers on a regular basis. The registrar also acknowledged that the relevant policy was that enquiries made as to outstanding judgments did not identify the source of the enquiry and the relevant head of jurisdiction had reminded relevant judicial officers of that policy. On the same day, the plaintiff responded to that email stating, inter alia, that he did not have "any abiding interest" in the head of jurisdiction's communications with relevant judicial officers.

The complaint

Approximately one year later, by a form dated 29 March 2021, the plaintiff made a complaint to the Judicial Commission, which was received on 30 March 2021. The substantive part of that form was as follows: "COMPLAINT AGAINST A JUDICIAL OFFICER To the Judicial Commission of NSW I, James Richard Bowers … wish to complain against [the first judicial officer]. My complaint is as follows: 1. In breach of the reserved judgements protocol, [the first judicial officer] in February 2020, informed [the second judicial officer] that I had written to [the first judicial officer] pursuant to the reserved judgments protocol. I solemnly and sincerely declare are true, and request that the complaint be investigated by the Judicial Commission. I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act 1900. Declared at: … on 29 March, 2021".
The Judicial Commission has approved a complaint form which was to some extent followed by the plaintiff in his form dated 29 March 2021 except that: 1. before the words "I solemnly and sincerely declare" on the Commission's approved form, the additional words, "In support of these allegations I submit the attached Details of Complaint which", appear and these additional words are not included on the plaintiff's form; and 2. the plaintiff's form did not include the page of the Commission's approved form headed "Details of Complaint" or the instructions pages.
The plaintiff's form was not accompanied by any supporting material when it was submitted to the Judicial Commission.
On 31 March 2021, the Judicial Commission sent to the plaintiff a letter acknowledging receipt of his complaint and stating, inter alia, that the Commission would "now investigate your complaint". The Commission did not reject the complaint on the basis that it did not comply with, or supply information or documentation required by, the complaint form approved by the Commission. Nor at any stage prior to the complaint being dismissed was the plaintiff requested or given the opportunity to provide further information to remedy such deficiencies.
As part of its preliminary examination of the complaint, the Commission sought information from the first judicial officer who responded to the effect that: 1. the first judicial officer's practice when receiving an enquiry as to an outstanding reserved judgment was: 1. to make an enquiry of the relevant judicial officer as to when it might be expected that judgment would be delivered and then to have both parties informed of when it was expected that judgment would be delivered; and 2. not to inform the judicial officer as to which of the parties had made the enquiry; and 1. the first judicial officer had no reason to believe that there had been a departure from that normal practice in the case in question or a breach of the reserved judgment protocol.
On 11 May 2021, the Judicial Commission wrote a letter to the plaintiff and the letter was received by the plaintiff on 23 May 2021. The letter referred to the information received from the first judicial officer and also stated, inter alia: "The Commission must deal with complaints according to its legislation. This means it has to determine whether the judicial officer has behaved in some way which may amount to judicial misconduct. To examine your complaint the Commission considered the allegation contained in the details of your complaint and the response proved [sic] by [the first judicial officer]. [The letter then referred to the information received from the first judicial officer.] … Having reviewed the response, the Commission is satisfied there was no conduct on the part of [the first judicial officer] which would amount to judicial misconduct within the meaning of the Judicial Officers Act. Having regard to these findings, the commission is required to dismiss your complaint under section 20(1)(h) of the Judicial Officers Act."

The application for judicial review

As noted above, on 17 June 2021 the plaintiff filed his summons seeking judicial review of the Judicial Commission's decision, and the amended summons was filed in court on 26 November 2021.
In order to consider the plaintiff's grounds, especially whether the Judicial Commission owed him a duty to accord procedural fairness and, if so, the content of that duty, it is necessary to review the relevant statutory provisions concerning the Judicial Commission and that part of its complaints process engaged in the present case.

The statutory provisions

The long title of the Judicial Officers Act indicates that one of the purposes of the Act is "to provide for the examination of complaints against Judges and other judicial officers [and] to provide for their suspension, removal and retirement in certain circumstances". At this point, it can be noted that removal and suspension from judicial office are principally governed by ss 52, 53 and 54 of the Constitution Act 1902 (NSW) which provide: "52 Definition and application (1) In this Part - judicial office means the office of any of the following - (a) Chief Justice, President of the Court of Appeal, Judge of Appeal, Judge, Associate Judge or Master of the Supreme Court, (b) Chief Judge, Deputy Chief Judge or Judge of the Industrial Court or member of the Industrial Relations Commission in Court Session, (c) Chief Judge or Judge of the Land and Environment Court, (d) Chief Judge or Judge of the District Court or President of the Children's Court, (e) Chief Judge or Judge of the Compensation Court, (f) Chief Magistrate, Deputy Chief Magistrate or Magistrate of the Local Courts; Chief Magistrate, Deputy Chief Magistrate or Magistrate of the Local Court; Senior Children's Magistrate or Children's Magistrate of the Children's Court; Chief Industrial Magistrate or Industrial Magistrate; Chairman, Deputy Chairman or Licensing Magistrate of the Licensing Court. (2) For the purposes of this Part - (a) the Supreme Court, the Industrial Court and the Land and Environment Court are taken to be courts of equivalent status, and are of higher status than the courts referred to in paragraphs (b) and (c), and (b) the District Court and the Compensation Court are taken to be courts of equivalent status, and are of higher status than the court referred to in paragraph (c), and (c) the holders of the judicial offices referred to in paragraph (f) of the definition of judicial office are taken to constitute one court, and (d) the relative status of any other court is to be as determined by legislation. (3) This Part extends to the removal or suspension of judicial officers after the commencement of this Part because of matters arising before that commencement. 53 Removal from judicial office (1) No holder of a judicial office can be removed from the office, except as provided by this Part. (2) The holder of a judicial office can be removed from the office by the Governor, on an address from both Houses of Parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity. (3) Legislation may lay down additional procedures and requirements to be complied with before a judicial officer may be removed from office. (4) This section extends to term appointments to a judicial office, but does not apply to the holder of the office at the expiry of such a term. (5) This section extends to acting appointments to a judicial office, whether made with or without a specific term. 54 Suspension from judicial office (1) No holder of a judicial office can be suspended from the office, except in accordance with legislation. (2) A suspended judicial officer is entitled to be paid remuneration as a judicial officer during the period of suspension, at the current rate applicable to the office from which he or she is suspended."
"Judicial officer" is relevantly defined in s 3(1) of the Judicial Officers Act as meaning: "(a) a Judge or associate Judge of the Supreme Court, (b) a member of the Industrial Relations Commission, (c) a Judge of the Land and Environment Court, (d) a Judge of the District Court, (e) the President of the Children's Court, (f) a Magistrate, or (g) [repealed] (h) the President of the Civil and Administrative Tribunal."
The examination of complaints against judicial officers is one of the functions of the Judicial Commission, which is constituted by s 5 of the Judicial Officers Act as a corporation having the functions conferred or imposed by, inter alia, that Act.
In Pt 5 of the Judicial Officers Act, s 13 establishes the Conduct Division of the Commission and s 14 confers on that Division the function of examining and dealing with, among other things, complaints against judicial officers referred to it under Pt 6.
In Pt 6, s 15 governs the making of complaints and imposes an obligation on the Commission not to deal with certain complaints except to dismiss them summarily. The section relevantly provides: "15 Complaints (1) Any person may complain to the Commission about a matter that concerns or may concern the ability or behaviour of a judicial officer. (2) The Commission shall not deal with a complaint (otherwise than to summarily dismiss it under section 20) unless it appears to the Commission that - (a) the matter, if substantiated, could justify parliamentary consideration of the removal of the judicial officer from office, or (b) although the matter, if substantiated, might not justify parliamentary consideration of the removal of the judicial officer from office, the matter warrants further examination on the ground that the matter may affect or may have affected the performance of judicial or official duties by the officer. (3) The Commission shall not deal with a complaint (otherwise than to summarily dismiss it under section 20) about - (a) a matter arising before the appointment of the judicial officer to the judicial office then held, or (b) a matter arising before the commencement of this Act, unless it appears to the Commission that the matter, if substantiated, could justify parliamentary consideration of the removal of the officer from office. (4) A complaint may be made in relation to a judicial officer's competence in performing judicial or official duties, so long as the Commission is satisfied as to the matters mentioned in subsection (2) (a) or (b). …"
Section 17 relates to the manner of making complaints and provides: "17 Manner of making complaints (1) A complaint shall be made in accordance with the regulations. (2) A complaint must be in writing and must identify the complainant and the judicial officer concerned."
The Judicial Officers Regulation 2017 (NSW) relevantly establishes the following in relation to how a complaint is to be made: "4 Lodging of complaints A complaint is to be in the form approved by the Commission and is to be lodged with the Chief Executive of the Commission. 5 Verification of complaints A complaint must be accompanied by particulars of the matter on which the complaint is founded and those particulars must be verified by statutory declaration."
The Commission has approved a four-page complaint form which includes: 1. on the first two pages, instructions for lodging a complaint against a judicial officer including, inter alia: "5. Please describe the circumstances that led to your complaint in the 'Details of Complaint' section. Clearly set out the conduct you are complaining about and include dates and places of the hearing, if these are relevant to the complaint. List all events in the order in which they happened. Attach additional sheets and other relevant documentation, as needed, to complete your statement"; 1. on the third page, a form with spaces for identifying the name and address of the complainant; identifying the name and court of the judicial officer against whom the complaint is made; and stating the nature of the complaint; 2. also on the third page, wording which acknowledges that the allegations which constitute the complaint are supported by "the attached Details of Complaint", and which verifies the complaint by a declaration under the Oaths Act 1900 (NSW); and 3. on the fourth page, space to provide specific information as to the basis for the complaint under the heading "Details of complaint" and a direction to "Attach additional sheets, as needed".
As noted above, the plaintiff's complaint was incomplete and only contained a modified version of the third page of the Commission's approved complaint form. It did not identify the specific allegations relied upon to establish the complaint nor did it have attached to it relevant documentation, such as the ex tempore judgment or the email correspondence with the registrar.
Section 18 requires the Commission to conduct a preliminary examination when it receives a complaint and s 20 requires the Commission summarily to dismiss a complaint in certain circumstances, including those referred to in s 15(2) and (3). Sections 18 and 20 relevantly provide as follows: "18 Preliminary examination (1) The Commission shall conduct a preliminary examination of a complaint. (2) In conducting the preliminary examination, the Commission may initiate such inquiries into the subject-matter of the complaint as it thinks appropriate. (3) The examination or inquiries shall, as far as practicable, take place in private. … 20 Summary dismissal of complaints (1) The Commission shall summarily dismiss the complaint if it is of the opinion that, whether or not it appears to be substantiated - (a) the complaint is one that it is required not to deal with, (b) the complaint is frivolous, vexatious or not in good faith, (c) the subject-matter of the complaint is trivial, (d) the matter complained about occurred at too remote a time to justify further consideration, (e) in relation to the matter complained about, there is or was available a satisfactory means of redress or of dealing with the complaint or the subject-matter of the complaint, (f) without limiting paragraph (e), the complaint relates to the exercise of a judicial or other function that is or was subject to adequate appeal or review rights, (g) the person complained about is no longer a judicial officer, or (h) having regard to all the circumstances of the case, further consideration of the complaint would be or is unnecessary or unjustifiable. (2) In deciding whether or not to summarily dismiss a complaint, the Commission may have regard to such matters as it thinks fit."
Section 21 deals with what may occur if a complaint is not summarily dismissed under s 20. Section 21 relevantly provides: "21 Reference of complaint to Conduct Division or head of jurisdiction (1) A complaint made to the Commission in accordance with this Act shall, if it is not summarily dismissed, be referred to the Conduct Division. (2) The Commission may however refer a complaint to the relevant head of jurisdiction if the Commission thinks that, although the complaint appears to be wholly or partly substantiated, it does not justify the attention of the Conduct Division. (3) A reference under subsection (2) may include recommendations as to what steps might be taken to deal with the complaint."
Thus, there are three possible outcomes as a result of the Commission receiving a complaint and conducting a preliminary examination in accordance with s 18(1): 1. summary dismissal under s 20(1) on one or more of the grounds in pars (a) to (h); 2. reference to the Conduct Division under s 21(1); or 3. reference to the relevant head of jurisdiction under s 21(2) if, notwithstanding that the complaint appears to be wholly or partly substantiated, it does not justify the attention of the Conduct Division.
Divisions 3 and 4 of Pt 6 of the Judicial Officers Act (ss 22 to 29 and ss 31 to 39 respectively) provide for, inter alia, the constitution of the Conduct Division, in s 22, and how it may conduct an examination of a complaint referred to it in, ss 23, 24 and 25. The potential outcomes of the Conduct Division's examination of a complaint are governed by ss 26 to 29, subject to certain provisions in ss 31 to 35. The more relevant sections provide as follows: "26 Dismissal of complaint by Conduct Division (1) The Conduct Division shall dismiss a complaint to the extent that the Division is of the opinion that - (a) the complaint should be dismissed on any of the grounds on which the Commission may summarily dismiss complaints, or (b) the complaint has not been substantiated. (2) If the Conduct Division dismisses a complaint it must give a report to the Commission setting out the Division's conclusions. (3) The Commission must give a copy of the report to the judicial officer concerned. (4) The Commission may give a copy of the report (or a summary of the report) to the complainant unless the Conduct Division has notified the Commission in writing that this should not occur. … 28 Substantiation of complaint (1) If the Conduct Division decides that a complaint is wholly or partly substantiated - (a) it may form an opinion that the matter could justify parliamentary consideration of the removal of the judicial officer complained about from office, or (b) it may form an opinion that the matter does not justify such consideration and should therefore be referred back to the relevant head of jurisdiction. (2) If it forms an opinion referred to in subsection (1) (b), the Conduct Division must send a report to the relevant head of jurisdiction setting out the Division's conclusions. (3) A report under subsection (2) may include recommendations as to what steps might be taken to deal with the complaint. (4) A copy of a report under subsection (2) must also be given to the Commission. (5) The Commission must give a copy of the report to the judicial officer concerned. (6) The Commission may give a copy of the report (or a summary of the report) to the complainant unless the Conduct Division has notified the Commission in writing that this should not occur. 29 Reports to Governor (1) If the Conduct Division decides that a complaint is wholly or partly substantiated and forms an opinion that the matter could justify parliamentary consideration of the removal of the judicial officer from office, it must present to the Governor a report setting out the Division's findings of fact and that opinion. … (2A) A copy of the report must be furnished forthwith to the Minister. (3) The Minister shall lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after the report is presented to the Governor. … 31 Extension or partial dismissal of complaint … (3) A power to dismiss a complaint (whether summarily or not) includes a power to dismiss a part of a complaint. 32 Non-finalisation of certain matters (1) The Conduct Division shall cease dealing with a complaint about a judicial officer if the officer ceases to hold office for any reason. … 34 Medical or psychological examination (1) If the Conduct Division is of the opinion that a judicial officer about whom a complaint has been made may be physically or mentally unfit to exercise efficiently the functions of a judicial office, the Division may request the officer to undergo such a medical or psychological examination as the Division specifies. … 35 Referral of complaint (1) If the Conduct Division decides, after examination of a complaint, that action under this section is warranted, the Division may refer the complaint or a matter arising under the complaint to any person or body considered by the Division to be appropriate in the circumstances. …"

The grounds of review

In the plaintiff's case, his complaint was dismissed by the Commission after a preliminary examination under s 18(1) on the ground in s 20(1)(h). Thus, the complaint was not referred to the Conduct Division under s 21(1) nor was it referred to the relevant head of jurisdiction under s 21(2). The plaintiff has sought judicial review of that summary dismissal decision.
At this point it is convenient to note that the Judicial Commission did not contend that the plaintiff lacked standing to bring these proceedings for orders in the nature of certiorari and mandamus under s 69 of the Supreme Court Act 1970 (NSW) or that the Commission's decision was not amenable to judicial review. The issues in these proceedings were confined to those raised by the two grounds relied upon by the plaintiff, namely: 1. whether the Commission owed the plaintiff a duty to accord him procedural fairness and, if so, whether it was breached; and 2. whether the decision was so perverse or unreasonable as to require it to be set aside.

Procedural fairness

The Judicial Commission's first submission in relation to procedural fairness was that: "[t]he summary dismissal of a complaint under s 10 [sic, s 20] of the Judicial Officers Act only affects the complainant 'as a member of the public or a class of the public' who may be subject to an exercise of power by the judge in the future, not 'individually' … Accordingly, it is doubtful that the Commission owed the plaintiff an obligation of procedural fairness. …"
In oral submissions, it was confirmed that, in addition to contending that it was doubtful that the Commission owed that obligation, it was submitted that the Commission did not owe such an obligation. It was then submitted that, even if there was an obligation to accord procedural fairness, there had been no breach.
In support of the proposition that the Judicial Commission owed no such obligation, Mr Farinha of counsel who appeared for the Judicial Commission relied on the reasoning of Basten JA in Hastwell v Health Care Complaints Commission [2021] NSWCA 22. That case concerned a complainant under the statutory complaints mechanism by which the Health Care Complaints Commission (HCCC) dealt with complaints against health practitioners.
On 25 August 2016, Mr Hastwell had complained to the Medical Council of New South Wales about a consultant psychiatrist. The complaint was referred to the HCCC, which is a body established under the Health Care Complaints Act 1993 (NSW) (HCC Act) whose functions included dealing with complaints. Under s 22 of the HCC Act, the HCCC was generally required to carry out within 60 days an initial assessment of a complaint. Following the assessment, the HCCC might decide to discontinue dealing with the complaint for one or more of the reasons set out in s 27(1) of the HCC Act.
On 28 November 2016, Mr Hastwell was given notice, as required by s 28(1) of the HCC Act, that it had been decided that no further action would be taken on his complaint and that a copy of the complaint had been sent to the psychiatrist, whose response had been taken into account in the Commission's assessment. Section 28(8) required a complainant to be informed that he or she may ask the HCCC to review the decision, and under s 28(9) the HCCC was required to review the decision if requested to do so within 28 days.
Mr Hastwell exercised his right of review, as part of which he maintained that he should have been permitted to see the psychiatrist's response, a summary of which had been provided to him in the HCCC's notice of its decision to discontinue. Mr Hastwell was able to make submissions on the psychiatrist's response as part of the review process. On review, the HCCC maintained its position that no further action was required in respect of the complaint. Thereupon, Mr Hastwell commenced proceedings seeking judicial review of both decisions of the HCCC. At first instance, he was unsuccessful and he sought leave to appeal to the Court of Appeal, which was refused.
Leeming JA (with whom White JA agreed) held that leave to appeal should be refused for reasons which relevantly included the following in relation to the statutory complaints mechanism established by the HCC Act and procedural fairness: 1. Insofar as the HCCC's decision on the s 28(9) review affected Mr Hastwell's rights, it being the operative decision determining his complaint, "it may in principle be amenable to judicial review", but the earlier decision no longer affected his rights and was not so amenable: [60]. 2. In exercising its complaint-handling functions under the HCC Act, the HCCC was subject to a duty to accord procedural fairness to persons affected, including Mr Hastwell: [62]. 3. The judge at first instance considered that any procedural unfairness in Mr Hastwell not seeing the psychiatrist's response was overcome by his capacity to respond to the issues raised by the psychiatrist as part of the review process and nothing had been advanced by Mr Hastwell to cast doubt upon that conclusion: [78].
Basten JA agreed that leave to appeal should be refused but his Honour's reasoning raised significant issues in relation to the existence and content of any duty to accord procedural fairness to a complainant in such a case. Relevantly, it was observed as follows: 1. A complainant whose complaint was discontinued by the HCCC was denied no "right" to pursue the matter further: [8]. 2. Although there was a statutory obligation on the HCCC to act within a specified time, the question whether a complainant could bring proceedings to ensure compliance with that obligation did not arise in that case: [10]. 3. Although the HCCC conceded that it owed a duty of procedural fairness to the complainant, the basis of the duty was not identified. The complainant was not the object of the exercise of the functions performed by the HCCC. It was the health practitioner against whom the complaint was made who was the object of possible sanctions and who would usually be entitled to procedural fairness during the complaint‑handling process. While it remained a question of statutory construction, it was not certain that a duty of procedural fairness was owed to a complainant, as opposed to the health practitioner against whom the complaint was made, in relation to the handling of the complaint by the HCCC: [11] and [12]. 4. If the HCC Act conferred any legally enforceable rights on the complainant in that case, they were limited to receiving an acknowledgement that a "complaint" complying with the HCC Act had been lodged and notification of the steps taken to deal with it: [19].
Basten JA's judgment also included observations on whether orders in the nature of certiorari were available in such a case and whether some or all of the HCCC's decisions were amenable to judicial review, but, as noted above, those issues did not arise in the present case.
The Commission's submissions acknowledged that Basten JA's judgment did not establish any ratio decidendi that was binding on this Court not least because: (a) that case involved only the dismissal of an application for leave to appeal; (b) Basten JA noted at [11] that it was conceded in that case, and thus not in dispute, that the HCCC owed a relevant duty of procedural fairness; and (c) Leeming JA (with whom White JA agreed) did not specifically address the issues considered by Basten JA. These acknowledgements were appropriate: see Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [23] to [31] (Bell P) in relation to decisions on applications for leave to appeal and Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [79] (McHugh J) in relation to the principle that if a point is not in dispute in a case, the decision lays down no legal rule concerning that issue.
The reasoning of the members of the Court of Appeal in Hastwell, in my view, reflects the principles referred to in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31 at [97] (Gummow, Hayne, Crennan and Bell JJ) that any requirement on an executive or administrative body such as the Judicial Commission or the HCCC to accord procedural fairness arises out of the principles and presumptions of statutory construction which are part of the common law applied by Australian courts, to the extent to which they are not qualified or displaced by an applicable Act. As Basten JA said in Hastwell at [12], "it remains a question of statutory construction as to whether the precondition to the obligation [to afford procedural fairness] arises in a particular case", while expressing doubt that such an obligation was owed to a complainant in the context of the HCCC's complaint-handling process under the HCC Act. The significance of Basten JA's observations in Hastwell for the present case is that they emphasise that it is essential to consider precisely how the exercise of the complaint‑handling body's powers could affect the rights or interests of the person to whom it is said that the duty to accord procedural fairness is owed in order to determine: (a) whether any such duty is owed; and, if so, (b) the content of that duty in the circumstances.
The operative common law principle of statutory interpretation was stated by the High Court in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 in the following terms, at [16] (Kiefel CJ and Gageler J): "observance of procedural fairness is an implied condition of the exercise of jurisdiction by 'every one who decides anything' pursuant to statute to affect the interests of an individual by force of the statute, unless and to the extent that procedural fairness is clearly excluded by the statutory scheme". (Footnotes omitted.)
The proper construction of the statute will determine not only whether the rules of natural justice or procedural fairness apply, but also what those rules require: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [53] (Gleeson CJ and Hayne J).
In relation to what procedural fairness might require in a particular case, Gleeson CJ observed in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1: [2003] HCA 6 (Lam) at [37]: "A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. … Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."
Furthermore, since the proper concern of procedural fairness is to "avoid practical injustice", there will be no denial of procedural fairness where no practical injustice has been shown: Lam at [38].
The nature of the interests which are apt to be affected by decisions made in exercise of a statutory power and which attract the presumption that the principles of natural justice or procedural fairness condition the exercise of that power was considered by Brennan J in Kioa v West (1985) 159 CLR 550; [1985] HCA 81 (Kioa). It was held that it was not necessary that the interest amount to a legal right, or be a proprietary or financial interest, or relate to reputation: Kioa at 619. His Honour continued in Kioa at 619 as follows: "If a power is apt to affect the interests of an individual in a way that is substantially different from the way in which it is apt to affect the interests of the public at large, the repository of the power will ordinarily be bound or entitled to have regard to the interests of the individual before he exercises the power. No doubt the matters to which the repository is bound or is entitled to have regard depend on the terms of the particular statute and, if there be no positive indications in its text, the subject matter, scope and purpose of the statute must be looked at to determine whether the repository is bound or is entitled to have regard to individual interests (Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 CLR 492, at p 505). When the repository is bound or is entitled to have regard to the interests of an individual, it may be presumed that observance of the principles of natural justice conditions the exercise of the power, for the legislature can be presumed to intend that an individual whose interests are to be regarded should be heard before the power is exercised. Therefore the presumption applies to any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public. Of course, the presumption may be displaced by the text of the statute, the nature of the power and the administrative framework created by the statute within which the power is to be exercised."
The Judicial Officers Act, under which the Judicial Commission is constituted and exercises its functions, does not make express provision for procedural fairness to be accorded to any persons at the preliminary examination stage or when considering summary dismissal under s 20. Nor does the Act expressly or by implication remove or limit any requirement on the Commission to accord procedural fairness when performing those functions. There does not appear to be any other legislation which would relevantly qualify or displace a construction of the Judicial Officers Act that required the Judicial Commission to accord procedural fairness in relation to complaints to the Commission under s 15 about a matter that concerns the behaviour of a judicial officer.
The rights or interests of a person against whom a complaint is made under the Judicial Officers Act may certainly be affected, and potentially prejudiced or destroyed, as a result of the complaint and its investigation, and any further action taken as a consequence including the possible imposition of sanctions. Consequently, the Judicial Commission will owe a duty to accord procedural fairness to such persons, but it is not necessary to address the specific content of that obligation in this case because the plaintiff is not the person against whom the complaint is made.
A person such as the plaintiff who lodges a complaint under the Judicial Officers Act is in a different position from that of the person against whom the complaint is made. A complainant's rights and interests affected by any decision of the Commission are limited at best. A complainant has no right to a particular outcome as a result of making a complaint. Nor is it the purpose of the complaint process under the Judicial Officers Act to confer on a complainant any interest or benefit as a result of making a complaint that is in addition to the interest or benefit that every member of the public has in having complaints investigated and action taken that is appropriate having regard to the result of proper consideration and investigation of a complaint. Indeed, it is difficult to perceive how the rights or interests of a complainant which could be affected by any decision of the Commission could extend beyond having a complaint made under the Judicial Officers Act dealt with in accordance with any relevant requirements of that Act with which the Commission must comply in the particular instance.
The decision in the present case which the plaintiff sought to challenge was a decision to dismiss the complaint summarily under s 20(1)(h). In this regard, the Judicial Officers Act effectively required the Commission: 1. to conduct a preliminary examination under s 18 in relation to the plaintiff's complaint; and 2. only to dismiss the complaint summarily if the Commission was of the opinion in s 20(1)(h) that, whether or not it appeared to be substantiated, "having regard to all the circumstances of the case, further consideration of the complaint would be or is unnecessary or unjustifiable".
Limiting consideration of the matter to the particular circumstances of the present case, the proper construction of the Judicial Officers Act relevantly included the implied condition that in carrying out the steps identified above, the Commission would accord procedural fairness to the plaintiff in considering his complaint. The concern of procedural fairness, which operates here as a condition of the exercise by the Commission of its statutory power, is with procedures rather than with outcomes. A failure on the part of the Commission to give the opportunity, which ought fairly to be given in the totality of the circumstances, to a complainant to put his or her complaint fully to the Commission may constitute a denial of procedural fairness in breach of the implied condition: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [55] (Gageler and Gordon JJ).
The specific content of such a duty will vary according to the circumstances of the particular case. As Gageler J explained in CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1 at [367]: "Procedural fairness as implied in some contexts can have a flexible, chameleon-like, content capable of varying according to the exigencies of the exercise of power between nothingness at one extreme and a full-blown trial at the other. To imply procedural fairness as a condition of the lawful exercise of a statutory power is therefore not necessarily to require a hearing in every case in which the power might be exercised. Ordinarily, procedural fairness does not require providing a person whose interests are likely to be affected by an exercise of statutory power any greater opportunity to be heard than is reasonable in all the circumstances." (Footnotes omitted.)
In my view, the specific content of the duty to accord procedural fairness to the plaintiff in his capacity as a complainant would, in a case such as this, be limited. A reasonable opportunity for a complainant to put his or her complaint would extend, but be limited, to allowing the complainant the opportunity to put before the Commission all of the material upon which the complainant relied to support his complaint. This is because, absent a duty of procedural fairness with such content, a complainant's right to make a complaint could be rendered effectively worthless and, in that way, the complainant's right could be relevantly adversely affected. More specifically, in a case such as the present for example, if the Commission proceeded without allowing the complainant to put all of his material before it, it would not be in a position legitimately to determine whether it should form the opinion that "having regard to all the circumstances of the case, further consideration of the complaint would be or is unnecessary or unjustifiable" (emphasis added).
The substantially confined content of the duty to accord procedural fairness to a complainant reflects the limited nature of the rights of a complainant which the duty serves to protect. The content of the duty does not, in my view, include informing the complainant of any information obtained by the Commission from a source other than the complainant and allowing the complainant to provide further information or make submissions in that regard. This is because, unlike the person against whom the complaint is made, the complainant's only right or interest affected by the Commission's decision is the right to make a complaint and have that complaint properly considered in accordance with the Judicial Officers Act. In other respects, a complainant is in essentially the same position as any member of the public.
There appear to be few authorities dealing with the content of a duty to accord procedural fairness to complainants. Hastwell has already been considered but the particular statutory scheme and the factual circumstances in that case were quite different from the present. Hidden J considered a contractual grievance or complaint mechanism in Elias Karigiannis v Football Federation Australia Ltd [2010] NSWSC 1454 and held, in relation to the position of a complainant who made a complaint under such a mechanism, at [47]: "Mr Karis made a complaint to FFA which put in train an investigation by the Licensing Committee. The regulations did not require the Committee to conduct that investigation, but it elected to do so. Mr Karis was entitled to put before the Committee any material which he considered relevant, and he did. However, the conduct of the investigation was a matter for the Committee. It was not obliged to keep him informed of its progress and to acquaint him with any additional material it received, so that he might respond to it. There is no substance in Mr Karis's complaint that a burden of proof was placed upon him. The Committee arrived at findings of fact upon the material it had, after the appropriate pursuit of an inquisitorial process."
This statement of the extent of the obligation of the Committee to accord Mr Karis, in his capacity as a complainant, procedural fairness is consistent with the position I have outlined above, namely that a complainant is to be given a reasonable opportunity to put before the decision‑maker any material considered relevant in support of the complaint, but the decision‑maker is not required to inform the complainant of the progress of its investigation or to disclose to the complainant any additional material received so that the complainant might respond to it.
In respect of complaints lodged with the Judicial Commission under the Judicial Officers Act, it would ordinarily be expected that the Judicial Commission would discharge its duty to accord procedural fairness to complainants by requiring them to provide all the information, including documentation and submissions they wished to rely on, in or with the complaint form. It would assist in ensuring that the duty was discharged in this way if the Commission's complaint form expressly warned a complainant that if any information, documentation or submission was not included in the complaint form or the material provided with that form, it may not be taken into account by the Commission.
Unfortunately, in the present case, the plaintiff's complaint form dated 29 March 2021 did not comply with the Judicial Commission's approved form in the respects identified above. It was obviously incomplete. The Commission could have refused to accept the complaint in that form and requested the plaintiff to resubmit a complete form together with all the supporting information, documentation and submissions. It did not do so. In my view, having accepted the incomplete form as a valid complaint, the Commission potentially breached its limited obligation of procedural fairness to the plaintiff by proceeding to consider his complaint without giving him the opportunity to provide all of the supporting information, documentation and submissions upon which he wished to rely.
Contrary to the Commission's submission, in my view the Commission was not "entitled" to proceed on the basis that there was, in fact, nothing by way of further information, documentation and submissions which the plaintiff could put to support his complaint. A review of the plaintiff's complaint form as submitted showed that it only contained a bare assertion of a breach of the reserved judgements protocol in February 2020 by disclosure of his identity to the second judicial officer and did not include pages 1, 2 and 4 of the approved form. The plaintiff was not warned that his complaint would be considered only on the basis of the material or information provided in his incomplete complaint form. In the circumstances, it was not reasonable to conclude that the plaintiff had no information or documentation supporting the asserted breach and it was unfair of the Commission to proceed on that basis.
In the present case, all that the Commission was required to do in order to discharge its duty of procedural fairness to the plaintiff in his capacity as a complainant was either: 1. to refuse to accept the complaint until the approved form was completed and all information, documentation and submissions relied upon were provided; or 2. if the incomplete complaint was accepted, to request that the plaintiff provide all his supporting information, documentation and submissions before it determined whether or not to dismiss his complaint summarily under s 20(1) of the Judicial Officers Act.
As noted above, however, there will be no denial of procedural fairness where no practical injustice has been shown. Absence of practical injustice in a case such as the present may be established if the person seeking judicial review did not lose an opportunity to advance his or her complaint or if it was not shown that the person lost an opportunity to put any information or argument to the decision-maker or otherwise suffered any detriment: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [57] (Gageler and Gordon JJ).
In the present case, the plaintiff was not warned prior to the Commission deciding summarily to dismiss his complaint that if he did not include all his information in his complaint form and attach all supporting documentation, he would not be given another opportunity to provide material or make submissions. The Commission accepted his obviously incomplete complaint form and did not provide him any further opportunity to provide information, documentation or submissions in support of his complaint. If he had been given that opportunity, he could have provided to the Commission information and documentation relevant to his complaint including: a copy of the ex tempore judgment which indicated that by 20 February 2020 the plaintiff's identity as the enquirer had been disclosed to the second judicial officer; and the plaintiff's email correspondence with the registrar which tended to confirm that his identity had been communicated and that there might have been a breach of the protocol.
In summary, having accepted his incomplete complaint form, the Commission did not give the plaintiff a reasonable opportunity to advance the basis of his complaint by putting the material relevant to his complaint before the Commission. As a result, he suffered material, practical injustice because he had relevant material which could have been provided. There was, thus, a denial of procedural fairness. Consequently and subject to any discretionary considerations, the Commission's decision is liable to be set aside.

Unreasonableness

Having reached these conclusions on the basis of a failure to accord procedural fairness, it is not necessary to consider the ground of perversity or unreasonableness also relied upon by the plaintiff.

Discretion

In deciding whether to grant relief in the nature of certiorari under s 69 of the Supreme Court Act setting aside the decision, the Court has a discretion: Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [121] (Sackville AJA, Leeming JA and Adamson J agreeing) citing Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; [2002] HCA 16 at [95] (McHugh J); Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [33] (Gummow and Callinan JJ).
The Judicial Commission did not identify any other significant discretionary considerations which rendered it inappropriate to set aside its decision if that decision was found to have been made without affording the plaintiff procedural fairness. I could not discern any considerations sufficient to justify refusing relief on a discretionary basis in the peculiar circumstances of this case.
For these reasons, the Judicial Commission's decision dismissing the plaintiff's complaint dated 29 March 2021 should be set aside. In this situation, it will be necessary for the Commission to consider the plaintiff's complaint afresh and, accordingly, it will be appropriate also to order that the plaintiff's complaint be remitted to the Judicial Commission to be dealt with according to law.

Additional comments

Although I have reached the conclusion that the Commission's decision should be set aside, it is important to note that this Court has not determined the merits of the plaintiff's complaint. There may well be an explanation of how the second judicial officer became aware that it was the plaintiff who made the enquiry concerning the reserved judgment which did not involve any judicial officer or any breach of the reserved judgments protocol. This Court is not required to reach, and has not reached, any conclusion in that regard.
Furthermore, this Court is not required to reach, and has not reached, any conclusion as to whether or not it should have appeared to the Commission that the plaintiff's complaint involved a matter within s 15(2)(a) or (b) of the Judicial Officers Act or whether or not the Commission should have been of any of the opinions set out in s 20(1)(a) to (h). Consideration of those questions and any related issues is a matter for the Judicial Commission when the matter is remitted to it as a result of the Court's orders.
I also note here that the Judicial Commission's letter of 11 May 2021 appears to use somewhat unhelpful language in explaining the decision to dismiss the plaintiff's complaint. In two places, the letter refers to behaviour or conduct which may or would amount to "judicial misconduct" or "judicial misconduct within the meaning of the Judicial Officers Act" and potentially suggests that the relevant test under the legislation is whether the judicial officer engaged in "judicial misconduct". The expression "judicial misconduct" is not, however, one which is given any specific meaning in, or even one which appears in, the Judicial Officers Act.
While that expression might be a shorthand way of referring to conduct of the type referred to in various provisions of the Judicial Officers Act, using that expression in a letter notifying a complainant of the dismissal of a complaint may be confusing. This may be especially so where the complaint is summarily dismissed on the ground in s 20(1)(h) which applies, even if the complaint appears to be substantiated but the Commission is of the opinion, having regard to all the circumstances of the case, that further consideration of the complaint would be or is unnecessary or unjustifiable.

Costs

There do not appear to me to be any reasons in the present case why costs should not follow the event. Neither party has submitted to the contrary.

Orders

Accordingly, the orders of the Court are: 1. Under s 14 of the Civil Procedure Act 2005 (NSW), compliance with r 59.4 of the Uniform Civil Procedure Rules 2005 (NSW) in respect of the amended summons filed on 26 November 2021 is dispensed with. 2. The decision of the Judicial Commission of New South Wales dismissing the complaint of James Bowers dated 29 March 2021 (the Complaint) is set aside. 3. The Complaint is remitted to the Judicial Commission of New South Wales to be dealt with according to law. 4. The Judicial Commission of New South Wales is to pay Mr Bowers' costs of and incidental to these proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 December 2021

Judicial Officers Regulation 2017(NSW)

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