THE HONOURABLE JUSTICE BRUCE v THE HONOURABLE T.R.H.

Court of Appeal (NSW)|1998-05-26|Before: Spigelman CJ, Mason P, Priestley JA, Sheller JA, Powell JA

These proceedings were commenced late yesterday. I directed that they should be made returnable at 11.30am today in the light of the matter of urgency to which I shall shortly come.

The substantive relief sought by the plaintiff is a declaration that the purported report is not a report of the Conduct Division. In addition, an orderis sought restraining the Attorney General permanently from laying or causing to be laid before both Houses of Parliament the purported report. Alternatively, an order in the nature of certiorari is sought setting aside the decision of the Members of the Conduct Division to which I have already referred.

The plaintiff's standing to seek relief could not be in issue. To understand the case sought to be brought it is necessary to refer to the statutory context in which the Conduct Division entertained the complaint and delivered its report.

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Section 53 of the Constitution Act 1902, which is contained in Pt 9 of that Act and is doubly entrenched, provides in subsection | that:

(1) No holder of a judicial office can be removed from that office except as

provided by this part. The critical section is s 53(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 proof of misbehaviour, or incapacity.

The legislation may lay down additional procedures and requirements to be complied with before a judicial officer can be removed from office.

Section 41(1) of the Judicial Officers Act 1986 represents an additional procedure, because it stipulates that:

A judicial officer may not be removed from office in the absence of a report of the Conduct Division to the Governor under this Act that sets out the Division's opinion that the matters referred to in the report could justify parliamentary consideration of the removal of the judicial officer on the grounds of proved misbehaviour or incapacity.

Senior counsel for the plaintiff outlined the grounds of challenge to the report. First it is submitted that the report wholly, or at least as to the portion containing the statement of opinion, is not the unanimous report of the Conduct Division. The submission is that, as a matter of statutory construction, the Act draws a distinction between decisions of a Conduct Division and other conduct of that Division, such as forming an opinion. It is submitted that cl 4 of Schedule 3 of the Act which provides that:

A decision supported by a majority of the votes cast at a meeting of the Conduct Division shall be the decision of the Division.

should be read restrictively and as precluding reliance upon a report, or so much of a report as expresses an opinion, that is not the unanimous opinion of the Members of the appointed Conduct Division.

The evidentiary basis of this submission is derived from the Attorney General's letter to the plaintiff's solicitor dated 22 May 1998, when the Attorney indicated his intention to lay the report before both Houses on26 May; and that he proposed at the same time, in fairness to Bruce J, to table the document prepared by the Honourable D.L. Mahoney AO, QC dated 14 May 1998, which was made available to the Governor and to Bruce J.

The last mentioned document is an unsigned document of six pages, headed 'Reasons of the Honourable D.L. Mahoney AO, QC' As indicated, it is dated 14 May 1998. Given that it bears a date one day before the report of the Conduct Division, it provides an evidentiary basis for a submission that, notwithstanding that Mr Mahoney joined in the signing of the report, he may have done so as a dissentient. In saying that, I express no opinion on this, or any other aspects of the substantive arguments that are raised in the proceedings.

The second issue foreshadowed by Mr Conti QC is a contention that the report should be declared void, because it is unreasonable, in the sense attributed to those terms by the well known Wednesbury Corporation Case ([1948] 1 KB 223) and in particular, because of the

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URE HONOURABLE JUSTICE BRUCE v THE HONOURABLE T.R.H. COLE Q.C., R.F.06

application of the doctrine of proportionality that has been discussed in some of the recent case law concerning judicial review.

Counsel for both parties represented today accepted that it was not practicable today to deal with the matter on a final basis. The Court would have beenprepared to have done so, but, as indicated, neither side wished to proceed that way. In saying that, I intend no criticism of the parties. The Court has indicated that it will hear the matter with all dispatch and it is anticipated that it will be set down for hearing on Tuesday next.

Also filed yesterday and returnable today is a Notice of Motion seeking an order until further order, restraining the Attorney General from laying, or causing to be laid before the Houses of Parliament, the document dated 15 May 1998, which purports to be the report of the Conduct Division.

The Attorney General has indicated in correspondence that he takes the view that s 29 of the Act, ss 3 in particular, which I have already set out, requires him to lay the report or cause it to be laid before both Houses of Parliament as soon as practicable. He has indicated his intention to do that today.

In my view it would not be appropriate for this Court, even on an interlocutory basis, to restrain the Attorney as the responsible Minister, from complying with his statutory duty under s 29(3).

I do not think it necessary to address the question of the weight of the plaintiff's foreshadowed arguments. I would not wish it to be thought that I have not taken them into account. However, it is my view that the balance ofconvenience weighs very strongly against any restraint of the Attorney General.

The plaintiff's argument is that the power and duty to table the report depends upon the report being valid, and that the report is wholly, or alternatively to a substantial and sufficient extent, invalid for the reasons that have been given.

The basis upon which interlocutory relief was advanced, was initially (on a reading of the plaintiff's solicitor's affidavit) that the plaintiff's legal interests were damaged, if not damaged irrevocably, by the tabling of the report. Ultimately in argument the submission was refined, or an alternative submission put, that the plaintiff's interest in his reputation was a sufficient basis to order the restraint, temporary though it is.

The law is not heedless of the reputation interests of persons, including persons who hold public office. However, the context of the present matter is one where a detailed statutory scheme, involving issues of public accountability, is in the process of being worked out. That scheme, as I have already indicated, requires a Conduct Division to make a report and requires the Minister to table it, so that the Parliament may be in a position, if it so determines, to debate the matter, or to proceed further.

As regards the legal interests of the plaintiff, I cannot see that they are in any way infringed by the tabling of the report. I say this for two reasons. The first is that what has happened today in this Court has meant that the existence of the report and its contents have come into the public domain. Nothing this Court could do, or should do, could restrain the Houses of Parliament from proceeding, as they think fit, in the

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dispatch of their own business in the light of the publication of the report through its tender in these proceedings. It will be a matter for Parliament whether it debates the report, or the issues presented by it, pending the judicial determination of these proceedings, which involve the question as to the validity of that report. But any restraint of the Attorney General from tabling the report would not preclude any such debate, in the light of the issues having come into the public domain.

The second matter of significance is that the tabling of the report has no operative effect, save as to enable either House of Parliament, if and when it thought fit, to proceed to address the issues raised in that report. Section 41(1) of the Act, which I have set out, makes it plain that the existence of a report setting out the Conduct Division's opinion that the matters referred to in the report could justify parliamentary consideration of the removal of the judicial officer on the grounds of proof of misbehaviour or incapacity, is a precondition to any step being taken to remove the judicial officer fromoffice.

It is not necessary in this case to consider the body of law dealing with the relationship between the Courts and the Parliament, as to matters taking place within a Parliament in the course of the law making or other functions of Parliament. That is because, even if both Houses considered the report and moved an address to the Governor, the power of removal from office is vested by s 53(2) in the Governor. That obviously means the Governor upon advice. In the light of these provisions, it will be clear why this Court would retain the capacity to determine the legal efficacy of the report and do so in a way that will protect the legal interests of the plaintiff.

As indicated, I have not overlooked the alternative basis, namely that of concern for the reputation of the judicial officer. But sufficient has already come into the public domain that the tabling of the report, accompanied by the additional report from Mr Mahoney which has been foreshadowed by the Attorney General, would not on any balance of convenience operate to the detriment of the plaintiff in a way that would make it appropriate for an injunction to issue.

Accordingly, I would propose that the Notice of Motion be dismissed, that the costs relating thereto be reserved and that the matter be stood over untilTuesday next for hearing. I would propose that the plaintiff be directed to file and serve written submissions by 11.00am on Monday next and the Attorney General file written submissions by 4.00pm on Monday next.

Spigelman CJ. I agree with the President and have nothing to add.

Priestley JA. I also agree and wish to say nothing further. Sheller JA. I also agree. 45 Powell JA. As do I.

[1998] NSWCA 45 Spigelman CJ. I will ask Mason P to deliver the first judgment.

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