THE HONOURABLE JUSTICE BRUCE v THE HONOURABLE T.R.H. COLE Q.C., R.F.D. [1998] NSWCA 45

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

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SPIGELMAN CJ, MASON P, PRIESTLEY JA, SHELLER JA and POWELL JA 26 May 1998

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

Mason P. The plaintiff is a Judge of this Court. The first three defendants were the Members of a Conduct Division appointed under the Judicial Officers Act 1986 ('the Act'), to examine a complaint concerning the plaintiff, referred to the Division by the Judicial Commission. The Judicial Commission is a party to these proceedings but has taken no active role in them. The active role has been assumed by the Attorney General for New South Wales who is also a defendant.

The function of a Conduct Division of the Commission, is to examine and deal with complaints referred to it by the Commission (s 14). The Division isconstituted by three persons appointed by the Commission. The three persons must be judicial officers but one may be a retired judicial officer (s 22). The Division must conduct an examination of the complaint referred to it (s 23) and it may hold hearings (s 24). If, as in the present case, the complaint is reclassified as serious and if the Division decides that it is wholly or partly substantiated, the Division may form an opinion that the matter could justify parliamentary consideration of the removal of the judicial officer complained about from office.

In relation to a serious complaint, the Conduct Division is required to present to the Governor a report setting out the Division's conclusions (s 29(1)). If the Division decides that a serious 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, the report shall set out: