Attorney-General (NSW) v Quin [1990] HCA 21

High Court of Australia Mason C.J. Brennan, Deane, Dawson and Toohey JJ. Attorney-General (NSW) v Quin [1990] HCA 21

ORDER Appeal allowed with costs. Set aside the declaration of the Court of Appeal and in lieu thereof declare that the appellant is bound to consider the respondent's application for appointment as a magistrate dated 12 December 1983 in accordance with the judgment of this Court. Reserve the question what order should be made with respect to costs in the courts below.

Cur. adv. vult.

The following written judgments were delivered: —

1990, June 7 Mason C.J.

This is an appeal by the Attorney-General for New South Wales against a declaration made on 23 December 1988 by the New South Wales Court of Appeal (Kirby P. and Hope J.A., Mahoney J.A. dissenting) requiring him to consider according to law an application dated 12 December 1983 by the respondent, Mr. Quin, for appointment as a magistrate. The effect of that declaration was to require the Attorney-General to consider the respondent's application for appointment on its own merits and not in competition with applications from other applicants. The declaration was made in proceedings brought by the respondent which were a sequel to an earlier decision of the Court of Appeal (Kirby P., Mahoney and Priestley JJ.A.) given on 24 June 1987 whereby the Court declared void a decision of the Attorney-General on or before 12 December 1984 not to recommend the appointment of the respondent and four other persons as magistrates under the Local Courts Act 1982 N.S.W. ("the Act"): Macrae v. Attorney-General (N.S.W.) [1] .

1. (1987) 9 N.S.W.L.R. 268.

In order to identify the issues which arise for decision in the present appeal, it is necessary to state in some detail the complex history of this matter. The proceedings which gave rise to the two decisions of the Court of Appeal have their genesis in the reorganization of the magistracy in New South Wales in 1985. At that time, six persons, including Mr. Quin, who formerly held office as stipendiary magistrates under the Justices Act 1902 N.S.W. were not appointed magistrates under the new Act, which came into operation on 1 January 1985. Ninety-five magistrates who had held office under the Justices Act were reappointed under the new Act.