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: (a) the Division's findings of fact; and (b) that opinion (s 29(2)). The Act contemplates that a complaint may be upheld on the basis of inability or incapacity, as distinct from misbehaviour (see ss 15(1) and 41(1)) and that such inability may be the consequence of physical or mental unfitness (see s 34). See also the Constitution Act 1902 (s 53(2)). The complaint in the present case did not involve misbehaviour. It concerned initially a single instance, latterly multiple instances, of conduct which were alleged to involve partial incapacity. The initial complaint concerned the delay in delivering judgment in a case of Kissell v McDermid & Beveridge. It was classified as minor; an expression with a technical meaning under the Act. Further complaints were added during the course of hearings which extended over seven days, between December 1997 and May 1998. Although the hearings were conducted in private, the issue of delay in delivering judgments touching the plaintiff had become a matter of some public discussion through newspaper articles that are referred to in the report. In April 1998 the Conduct Division reclassified the various complaints as serious. This is a technical expression defined in s 30(1) of the Act, as being a complaint whose grounds, if substantiated, could in the opinion of the Division, 2 UNREPORTED JUDGMENTS justify parliamentary consideration of the removal of the judicial officer complained about from office. Notwithstanding such classification, the Division decided to continue its hearing in private. It was ultimately not in dispute that the various matters of complaint were substantiated. They relate to significant delays in delivering judgments. What was in issue was the present capacity of the judicial officer, a matter which was addressed by the Conduct Division in its report and a matter which turned in part upon objective facts occurring over a period of time, and in part upon matters involving the plaintiff's reaction to those facts, and in part upon medical evidence. On 15 May 1998 the Division delivered its report to the Governor. The report has been put into evidence. It is a 49 page document, which recounts the appointment of the Division, its functions, and the facts alleged and found in relation to the various complaints. It then addresses the matter that was in issue, namely, the question whether the plaintiff is presently capable of satisfactorily performing the judicial function, including delivery of judgments, within a reasonable time. The report of the Division records (at para 64), that a major difference between the submissions on behalf of the plaintiff and counsel assisting the Division related to the question whether the plaintiff is now capable of satisfactorily performing the judicial function, including delivering of judgments within a reasonable time. It noted (in para 65), that it was contended on behalf of the Judge, that since receiving certain medical treatment commencing on 19 December 1997 and counselling, he is now cured of any disabling depressive illness. The report noted that there was considerable support for this submission. It examined and recounted this material at para 70. The report noted that the question remained whether the incapacity satisfactorily to perform the judicial function continues, notwithstanding removal or alleviation of depressive illness; and stated that there was much to support the view that it did so remain. What were clearly the opposing submissions were examined and analysed. In para 74 it was stated: We have considered whether these factors in combination provide in themselves a satisfactory explanation for the extensive delays in delivering judgments beyond the agreed scheduled times. The Division has come to the conclusion they do not. Various reasons were assigned in that and the succeeding paragraphs. In par 78 it is recorded that: The Division has given earnest consideration to the competing contentions but has ultimately come to the view that as the medical condition of Bruce J has, with treatment, now plateaud, it cannot be said that the incapacity satisfactorily to perform the judicial function has been removed. The Division is of the view that it is disputable demonstrated incapacity up to February 1998 remains, although the incapacity has been diminished to some extent by the alleviation of the depression. Going to the portion of the document entitled Report, the Division referred to the statutory framework and the substantiated complaints and (in para 81) under the heading 'Report to the Governor' it was stated: The Conduct Division reports as follows; (a) the complaint of Commander Beveridge as to incapacity is wholly substantiated; URE HONOURABLE JUSTICE BRUCE v THE HONOURABLE T.R.H. COLE Q.C., R.F.DB (Mason P) (b) other matters comprising other significant delays referred to in par 23 and Table A in that report as to whether the complaint is wholly or partly substantiated and the incapacity to satisfactorily perform judicial duty has been removed, the Conduct Division is of the opinion that the matters referred to above, could justify Parliamentary consideration of the removal of Bruce J from the office of a Judge of the Supreme Court of New South Wales.' The report is then signed by the three Members of the Division. Section 29 of the Judicial Officers Act states: REPORTS 29 (1) The Conduct Division shall, in relation to a serious complaint, present to the Governor a report setting out the Division's conclusions. (2) (3) (4) (5) (6) (7) (8) If the Conduct 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;(a) the Division's findings of fact; and (b) that opinion. 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. The Minister may present the report to the Clerks of both Houses of Parliament when Parliament is not sitting and thereupon the report shall for all purposes be deemed to have been laid before both Houses of Parliament but the Minister shall nevertheless lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after Parliament resumes. A report presented to the Clerk of a House of Parliament may be printed by authority of the Clerk of the House and shall for all purposes be deemed to be a document published by order or under the authority of the House. A copy of any report presented to the Governor shall also be furnished forthwith to the Commission. The Conduct Division shall, in relation to a minor complaint, furnish a report to the Commission setting out the action taken by the Division. A copy of any report referred to in this section shall also be furnished to the judicial officer concerned. 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. JOBNAME: No Job Name PAGE: 4 SESS: 1 OUTPUT: Mon Feb 25 18:25:44 2008 /reports/caseml]/case/urj/9808020 UNREPORTED JUDGMENTS 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. Subsection 3 stipulates that: 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 JOBNAME: No Job Name PAGE: 5 SESS: 1 OUTPUT: Mon Feb 25 18:25:44 2008 /reports/caseml]/case/urj/9808020 URE HONOURABLE JUSTICE BRUCE v THE HONOURABLE T.R.H. COLE Q.C., R.F.06 (Mason P) 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 JOBNAME: No Job Name PAGE: 6 SESS: 1 OUTPUT: Mon Feb 25 18:25:44 2008 /reports/caseml]/case/urj/9808020 UNREPORTED JUDGMENTS 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. Orders accordingly.