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Attorney-General (NSW) v Quin

Attorney-General (NSW) v Quin

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Case Copied 7 June 1990 74 min read

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HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson and Toohey JJ.

ATTORNEY-GENERAL (N.S.W.) v. QUIN

(1990) 170 CLR 1

7 June 1990

Administrative Law

Administrative Law—Natural justice—Appointment of judicial officers—Abolition of one set of inferior courts and substitution of another—Policy to appoint stipendiary magistrates of former courts as magistrates of new courts unless unfit for judicial office—Decision not to appoint former stipendiary magistrate set aside for failure to accord natural justice—Reconsideration of case—Change of appointment policy—Applicants to be judged on merit—Whether former stipendiary magistrate entitled to reconsideration of application on basis of former or current policy—Local Courts Act 1982 (N.S.W.), s. 12.

Decisions

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 for N.S.W. (1987) 9 NSWLR 268.

2. 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.

3. Before the Act came into operation, magistrates holding office under the Justices Act sat in Courts of Petty Sessions. The office of magistrate which they held ceased to exist when the new Act came into force. However, they were given an opportunity to apply to be appointed magistrates under the new Act. Section 12 of the Act makes provision for the appointment of new magistrates by the Governor. Appointment under the Act is by way of recommendation by the Attorney-General to Cabinet and then, on his recommendation, to the Executive Council. Schedule 1 to the Act is entitled "Savings and Transitional Provisions" and cl.5 is headed "Savings relating to stipendiary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1990] HCA 21
Decision Date: 7 June 1990

CaseChat Overview and Summary

The Attorney-General of New South Wales appealed to the High Court of Australia against a declaration made by the Court of Appeal concerning the appointment of a former stipendiary magistrate to a new judicial office. The dispute arose when the respondent, a stipendiary magistrate of abolished inferior courts, was not appointed as a magistrate of the newly established Local Courts, despite a policy that suggested such appointments would be made unless the applicant was unfit for judicial office. The respondent argued that this decision was made without affording him natural justice.

The High Court was required to determine whether the respondent was entitled to a reconsideration of his application for appointment as a magistrate. This involved considering whether the initial decision to not appoint him was vitiated by a failure to accord natural justice, and if so, on what basis his application should be reconsidered, particularly in light of a subsequent change in the appointment policy which mandated that applicants be judged on merit. The Court also had to consider the effect of the *Local Courts Act 1982* (N.S.W.) on the appointment process.

The High Court reasoned that the initial policy created an expectation that existing stipendiary magistrates would be appointed to the new courts unless specific grounds for their exclusion existed, and that the respondent was entitled to know the case against him and to be heard before a decision was made. The Court found that this procedural fairness had not been afforded. While acknowledging the subsequent change in policy to a merit-based assessment, the Court held that the respondent was entitled to have his application considered under the policy that was in effect at the time of the initial decision, or under the current policy if that was more favourable to him, but crucially, that his application must be considered.

The High Court allowed the appeal, setting aside the declaration of the Court of Appeal. In its place, the High Court declared that the appellant was bound to consider the respondent's application for appointment as a magistrate dated 12 December 1983 in accordance with the judgment of the High Court. The question of costs in the courts below was reserved.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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