Resolution of the problem
25 The defendant accepts that the immunity of a judicial officer from suit includes an immunity from civil suit: Re East: ex parte Nguyen (1998) 196 CLR 354. However, it is submitted, in my opinion correctly, that immunity is confined to the consequence, if any, of the exercise of the judicial function. Even if a judge was influenced to make a particular decision by a bribe, he or she could not be sued in damages for the corrupt decision, but would be amenable to prosecution under the criminal law for accepting a bribe and may be liable to be removed from office. Likewise a judge will not be liable for contempt, if in the course of reasons for judgment remarks are made which might otherwise be contemptuous: Yeldham v Rajski (1989) 18 NSWLR 48.
26 However, before a judge could be prosecuted for accepting a bribe the circumstances relating to the allegation including the nature of any decision made by the judge require investigation. The same would be true if removal from office was contemplated.
27 Part 9 of the Constitution Act 1902 provides in s 53 that:
"(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."
28 "Judicial Officer" is defined in s 52 to mean 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,
(e) Chief Judge or Judge of the Compensation Court,
(f) Chief Magistrate, Deputy Chief Magistrate or Magistrate of the Local Courts; 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."
29 These provisions make clear that a judicial officer may be removed from office or suspended. The Judicial Officers Act 1986 provides that a judicial officer may be subject to complaint, investigation, suspension and removal under Part 6 of that Act. Neither the common law nor s 44B prevent this.
30 Accordingly, the immunities conferred upon a registrar by the common law and by s 44C, could not extend to the processes which may be activated to remove or suspend such a person from office. If it were otherwise, then, although a judge of the Supreme Court may be investigated for misconduct and/or removed in the performance of his or her duties under Part 6 of the Judicial Officers Act 1986, a registrar, performing the same function, will not be amenable to any form of investigation or discipline. This would be surprising.
31 It is important to emphasise that the nature and purpose of the investigation relates to allegations of misconduct. The investigation is not for the purpose of determining the correctness or the quality of the decisions except in so far as these matters may be relevant to investigating the misconduct allegations.
32 Even if the plaintiff was correct that the common law immunity and/or s 44C could extend to protect a registrar from disciplinary action when exercising the duties of a judicial officer, the provisions of the Liquor Act 1982 and the Public Sector Employment and Management Act 2002 are such that any such immunity must be taken to be overridden or excluded. To the extent that the allegations are of misconduct the statute authorises investigation and appropriate action.
33 Section 17 of Liquor Act 1982 provides:
"(1) The Governor may, under and subject to the Public Service Act 1979 , appoint a Principal Registrar and a registrar of the court for each prescribed place other than Sydney.
(2) Until some other person is appointed as registrar of the court for a prescribed place, the registrar of the court for the prescribed place is the person for the time being holding, or discharging the functions of, the office of registrar of the Local Court at the prescribed place or, if there is no such person, at another place specified by the Minister instead of the prescribed place, by order published in the Gazette.
(3) The Principal Registrar is the registrar of the court at Sydney.
(4) The regulations may provide for the exercise by the Principal Registrar of the jurisdiction of the court in relation to a matter to which there has been no objection.
(5) A reference in this Act to the court includes, if the jurisdiction of the court is exercised by a registrar in accordance with this Act or the regulations, a reference to the registrar, except as otherwise provided by this Act.
(6) If a registrar grants a licence or exercises any other function of the court in accordance with this Act or the regulations, the registrar may impose any conditions that the court could impose in those circumstances, except as otherwise provided by this Act."
34 The reference to the Public Service Act 1979 is relevantly a reference to the Public Sector Employment and Management Act 2002. Subsection (1) deals not only with the Act under which a Principal Registrar is appointed but expressly with the topic of which Act that appointment is to be "subject to". At the same time subsection (4) deals with the possibility that the Principal Registrar may exercise some of the jurisdiction of the Court. There is no provision in s 17 of the Liquor Act 1982 or anywhere else in the Liquor Act providing for the removal from office of the Principal Registrar. Accordingly, unless his or her removal from office can be achieved under the provisions of the Public Sector Employment and Management Act 2002 there is no provision dealing with his or her removal from office at all.
35 In contrast to the position of the Principal Registrar, who is subject to the provisions of the Public Sector Employment and Management Act 2002, the position of the Licensing Magistrates is the opposite. Section 8(1) and (4) of the Liquor Act 1982 provide:
"(1) The Governor may:
(a) appoint as licensing magistrates not less than 3 persons each of whom is a Magistrate or a person eligible to be appointed as a Magistrate, and
(b) by the same or a different instrument, appoint one of those persons as Chairperson of the Licensing Court of New South Wales and another of them as Deputy Chairperson of the Licensing Court of New South Wales.
….
(4) The Public Service Act 1979 does not apply to or in respect of:
(a) the appointment of a licensing magistrate, or
(b) a licensing magistrate during his or her term of office as such,
but a licensing magistrate who, immediately before his or her appointment as a licensing magistrate, was a Magistrate does not, by reason of that appointment, cease to be a Magistrate and a licensing magistrate who, immediately before his or her appointment as a licensing magistrate, was not a Magistrate becomes, by virtue of that appointment, a Magistrate."
36 Again, the reference to the Public Service Act 1979 is taken to be a reference to the Public Sector Employment and Management Act 2002. So too, just in case there was any doubt, s 4 of the Public Sector Employment and Management Act 2002 provides:
"This Act does not apply to any of the following positions or to any person holding such a position (except to the extent that a provision of this Act otherwise expressly provides):
(a) any position of a judicial officer within the meaning of the Judicial Officers Act 1986,
(b) any position of officer of either House of Parliament or any position under the separate control of the President or Speaker, or under their joint control."
37 Section 4 of the Public Sector Employment and Management Act 2002 repeated the same exemption in s 4(1)(a) of the Public Sector Management Act 1988.
38 Accordingly, as the defendant points out the position is:
(a) s 17 of the Liquor Act 1982 provided for the appointment of the Principal Registrar under and "subject to" the current public service legislation, in this case, the Public Sector Employment and Management Act 2002.
(b) no provision of the Liquor Act 1982 provides for the removal of the Principal Registrar from office other than through the words in s 17(1) "subject to". It follows that s 17 both provides for the appointment to office, and the removal from office, of the Principal Registrar and dictates that both processes are to happen under the prevailing public service legislation.
(c) at the same time, s 17(4) expressly contemplates that the Principal Registrar may exercise judicial duties. Despite this, s 17 affords the Principal Registrar no exemption from the Public Sector Employment and Management Act 2002.
(d) by contrast, both s 8 of the Liquor Act and s 4 of the Public Sector Employment and Management Act 2002 make plain that the appointment and removal of Licensing Magistrates is not subject to that Act.
39 It must follow that any common law immunity and s 44C cannot prevail against s 17(1). Although the Parliament gave consideration to which officials under the Liquor Act 1982 should be exempted from the operation of the public service legislation it decided that the Principal Registrar was not one of them.
40 Section 17 of the Liquor Act can be characterised as an earlier statute dealing with a specific subject matter and s 44C of the Judicial Officers Act can be characterised as a later general statute. Where the provisions of a later general statute come into conflict with the provisions of an earlier specific statute the earlier will prevail: see Goodwin v Phillips (1908) 7 CLR 1 at 14. In Smith v The Queen (1994) 181 CLR 228 at 348, Mason CJ, Dawson, Gaudron and McHugh JJ said:
"In our view, an opposite conclusion is dictated by the principle that where there is conflict between general and specific provisions, the specific provision prevails (generalia specialibus non derogant). That principle is based upon the presumed intention of Parliament and has, we think, a particular application where the conflict arises from different sections in the same Act. But even if, because s132 merely amends the Constitution Act 1975, the conflict is regarded as arising between two separate Acts, the principle is just as applicable and there is no reason why regard may not be had to the common origin of the conflict, namely, the Supreme Court Act 1986… it is but common sense that Parliament having before it two apparently conflicting sections at the same time cannot have intended the general provision to have deprived the specific provision of effect. It follows, in our view, that to the extent that there is any apparent conflict between s 14(3) of the Supreme Court Act 1986, which deals specifically with restrictions on appeals, and s 85(3) of the Constitution Act 1975, which deals generally with jurisdiction, the former must prevail." (footnotes omitted)
41 Furthermore, to the extent that there existed a common law immunity prior to 7 July 2003 with the same content as s 44C, that common law immunity must give way to the specific provisions of s 17 of the Liquor Act 1982. Thus, even if the immunity extends as far as the Plaintiff contends, s 17 would exclude it.