AB v Judicial Commission of New South Wales (Conduct Division)

The applicant sought judicial review of a decision made by the Conduct Division of the Judicial Commission of New South Wales to conduct a hearing in public. The dispute concerned the interpretation of the term "hearing" within the relevant legislation and the application of the open justice principle. The matter was heard by Basten, Meagher and Gleeson JJA in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the Conduct Division had erred in its decision to hold the hearing in public, and whether the criteria set out in guidelines promulgated by the Judicial Commission created legally binding obligations. The Court was required to consider the meaning of "hearing" in the context of the *Judicial Officers Act 1986* (NSW) and the extent to which the principle of open justice applied to such proceedings.

The Court reasoned that the term "hearing" in the *Judicial Officers Act* encompassed the entire process of the Conduct Division’s consideration of a complaint, not merely the final determination. It was held that the open justice principle, which favours public access to court proceedings, was a significant consideration in determining whether a hearing should be conducted in public. The Court found that the guidelines issued by the Judicial Commission were not intended to create legally enforceable obligations but rather to inform the exercise of discretion. Ultimately, the Court concluded that the Conduct Division had acted within its powers in deciding to hold the hearing in public, giving due weight to the principle of open justice.

The summons seeking judicial review was dismissed, and the applicant was ordered to pay the Attorney’s costs of the proceedings in the Court of Appeal.