Maloney v The Honourable Michael Campbell QC - [2011] NSWSC 470

Supreme Court

New South Wales

Medium Neutral Citation: Maloney v The Honourable Michael Campbell QC & Ors [2011] NSWSC 470
Hearing dates: 18 May 2011
Decision date: 24 May 2011
Jurisdiction: Common Law - Administrative Law
Before: HOEBEN J
Decision:
Summons dismissed.
Plaintiff to pay the Attorney-General's costs of these proceedings

Catchwords: COURTS AND JUDGES - removal of Magistrate - report of Conduct Division of Judicial Commission of NSW - formation of opinion by Conduct Division that Parliament could consider removal on ground of proved incapacity - judicial review of administrative decision - grounds reviewed.
ADMINISTRATIVE LAW - judicial review at Common Law - statutory duty to form opinion - opinion that Parliament could remove judicial officer for incapacity - limited grounds of review - did Conduct Division apply correct statutory test - whether consideration of irrelevant matter - whether refusal to consider relevant matter - no error of Conduct Division established.
Legislation Cited: Constitution Act 1902 (NSW)
Judicial Officers Act 1986 (NSW)
Cases Cited: Allied Pastoral Holdings Pty Limited v Commissioner of Taxation (1983) 1 NSWLR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Bruce v Cole (1998) 45 NSWLR 163
Buck v Bavone (1976) 135 CLR 110 at 118-119
Browne v Dunn (1894) 6R 67
Parramatta City Council v Pestell (1972) 128 CLR 305 at 323
The Honourable Justice Bruce v The Honourable TRH Cole QC RFD (unreported) NSW Court of Appeal, 26 May 1998
Category: Principal judgment
Parties: Brian Vincent Maloney - Plaintiff
The Honourable Michael Campbell QC, a member of the Judicial Commission of New South Wales - First Defendant
Deputy Chief Magistrate, Jane Mottley, a member of the Judicial Commission of New South Wales - Second Defendant
Martha Jabour, a member of the Judicial Commission of New South Wales - Third Defendant
The Judicial Commission of New South Wales - Fourth Defendant
Attorney General of New South Wales - Fifth Defendant
Chief Magistrate Graeme Henson - Sixth Defendant
Representation: Counsel
Mr J Gleeson SC/Mr J Sheller - Plaintiff
Mr J Gormly SC/Ms K Edwards - Defendants
Solicitors
Greg Walsh & Co - Plaintiff
IV Knight, Crown Solicitor - Defendants

File Number(s): 2011/00160702

Judgment

HIS HONOUR:

Nature of proceedings

The plaintiff, Brian Vincent Maloney, is a Local Court Magistrate currently sitting at the Downing Centre, Sydney.

By way of an Amended Summons he seeks the following orders:

2. A declaration that the decision of the First, Second, Third and Fourth Defendants that the Plaintiff is currently incapacitated for the performance of the Office of Magistrate is invalid.

3. The quashing of the decision of the First, Second, Third and Fourth Defendants that the Plaintiff is currently incapacitated for the performance of the Office of Magistrate.

4. A declaration that the act of the First, Second, Third and Fourth Defendants in referring its report to the Governor of New South Wales pursuant to section 29(1) of the Judicial Officers Act , 1986 (NSW) is invalid.

5. A declaration that the decision of the Sixth Defendant to suspend the Plaintiff from the performance of the Office of Magistrate pursuant to section 40(1) of the Judicial Officers Act 1986 (NSW) will be invalid.

5A. A declaration that, in the circumstances, the Conduct Division was bound by s28(1)(b) of the Act to refer the matter back to the head of the jurisdiction.

5B. An order that the Conduct Division under s28(2) of the Act send a report to the head of jurisdiction setting out its conclusions omitting any findings which are determined to be affected by legal error.

6. In the alternative, an order remitting the proceedings to the Conduct Committee of the Judicial Commission of New South Wales to be dealt with according to law.

7. Costs.

At the hearing of the matter the plaintiff advised the Court that he was not at this time seeking the relief sought in Order 5.

The first defendant is The Honourable Mr Michael Campbell QC, a member of the Conduct Division of the Judicial Commission of New South Wales, appointed to that body pursuant to s22 of the Judicial Officers Act 1986 (NSW) ("the Act").

The second defendant is Ms Jane Mottley, a current Local Court Magistrate, and also a member of the Conduct Division of the Judicial Commission of New South Wales, appointed pursuant to s22 of the Act.

The third defendant is Ms Martha Jabour, a lay member of the Judicial Commission of New South Wales, appointed pursuant to s22 of the Act.

The fourth defendant is the Judicial Commission which, through the Conduct Division, has prepared a report concerning complaints made against Mr Maloney. At the end of the report (paragraph 438(f) and (h)) the Conduct Division states its opinion that Mr Maloney is and will remain incapacitated from being a Judicial Officer and that its findings could justify the Parliament considering the removing of Mr Maloney from his position. This means the report must be delivered to the Governor and the Attorney-General of New South Wales, pursuant to s29(1) and (2A) of the Act respectively. The report must then be laid before the Parliament pursuant to s29(3) or (4).

The report has been sent to the Attorney-General, the fifth defendant, and will be laid before the Parliament on 25 May 2011. The Attorney-General is the only contradictor to the Summons.

The sixth defendant, Judge Henson, is the Chief Magistrate of New South Wales, who has various powers and responsibilities under the Act including:

(a) Receiving a report from the Conduct Division pursuant to s28(1)(b) and;

(b) Suspending a Magistrate who is the subject of a complaint or the subject of an adverse report pursuant to s40 of the Act.

In substance, therefore, the Amended Summons seeks relief preventing the report prepared by the Conduct Division being acted upon by Parliament and the Governor on the grounds that the report is invalid. The matter has come before the Court as an urgent matter.

Legislation and factual background

The plaintiff can be removed from office only pursuant to s53 of the Constitution Act 1902 (NSW) which provides:

"53(1) No holder of a judicial office can be removed from the office, except as provided by this Part.

(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 proved misbehaviour or incapacity.

(3) Legislation may lay down additional procedures and requirements to be complied with before a judicial officer may be removed from office.

..."

Section 53 was entrenched in 1995. That means that it can only be changed by referendum. The removal can only occur, however, if there is a report from the Conduct Division containing the opinion set out in s28(1)(a). The Governor's decision to remove is one done on advice: The Honourable Justice Bruce v The Honourable TRH Cole QC RFD (unreported) NSW Court of Appeal, 26 May 1998 at 6.

The Act is the legislation envisaged by s53(3) of the Constitution Act 1902. The key sections of the Act, which are relevant to these proceedings, are summarised below.

Section 15 provides for receipt by the Judicial Commission of complaints concerning the conduct of Judicial Officers which "may concern the ability or behaviour of a Judicial Officer". The distinction between ability and behaviour is important in this case. The Conduct Division rejected a finding of misbehaviour against the plaintiff (para 337 of the report). The question became whether he had the capacity or ability to fulfil the role of a Judicial Officer (para 340 of the report).

Section 18 of the Act provides for the Judicial Commission to conduct a preliminary review of the complaint. It may then deal with the complaint in one of the following ways:

(a) Dismiss it summarily without reference to the Conduct Division (s20);

(b) Refer it to the Conduct Division (s21(1)) for consideration as to an appropriate course;

Section 22 provides for the Judicial Commission to appoint members of the Conduct Division. The members can include a Judicial Officer, a retired Judicial Officer and a lay person, such as was the case here.

Section 23 provides for the Conduct Division to review the complaint. Section 24 enables it to have a hearing.

At the conclusion of the hearing, the Conduct Division may make a determination pursuant to s28 of the Act. Section 28 provides:

"28(1) If the Conduct Division decides that a complaint is wholly or partly substantiated:

(a) it may form an opinion that the matter could justify parliamentary consideration of the removal of the judicial officer complained about from office, or

(b) it may form an opinion that the matter does not justify such consideration and should therefore be referred back to the relevant head of jurisdiction.

(2) If it forms an opinion referred to in subsection (1) (b), the Conduct Division must send a report to the relevant head of jurisdiction setting out the Division's conclusions.

(3) A report under subsection (2) may include recommendations as to what steps might be taken to deal with the complaint."

Section 29 provides the mechanism for the report being received by the Executive and Parliament:

"29(1) If the Conduct Division decides that a 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, it must present to the Governor a report setting out the Division's findings of fact and that opinion.

(2A) A copy of the report must be furnished forthwith to the Minister.

(3) 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.

(4) 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.

(5) 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.

(6) A copy of any report presented to the Governor shall also be furnished forthwith to the Commission and, after it has been laid before each House of Parliament, to the complainant.

(8) A copy of any report referred to in this section shall also be furnished to the judicial officer concerned."

Section 41 deals with removal of Judicial Officers:

"41(1) 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 ground of proved misbehaviour or incapacity.

(2) The provisions of this section are additional to those of section 53 of the Constitution Act 1902."

The Court was provided with a court book ("CB") in two volumes which (with the exception of three references relating to the performance of the plaintiff) contained the whole of the evidence upon which this application was based. The report of the Conduct Division comprised 134 pages and was set out at pp 123-256 of the CB. The history of the proceedings against the plaintiff commences at para 27 of the report. A hearing took place before the Conduct Division between 17 January - 21 January 2011 and on 28 March 2011.

There were four complaints. Three of the complaints related to events between 17 September 2008 and 23 December 2009. As a result of the initiation of the complaint from 23 December 2009 the Conduct Division found itself empowered to deal with a much older complaint which dated back to 2002.

The plaintiff first consulted a psychiatrist, Dr Olav Nielssen, in relation to his later to be diagnosed bipolar disorder on 15 February 2010, having been referred by his general practitioner, Dr John Carmody, on 9 February 2010. Since treatment began with Dr Nielssen in February 2010, there has been no further aberrant behaviour or any evidence of a hypomanic episode on the part of the plaintiff.

The initial two complaints were from individuals who appeared in proceedings before the plaintiff, Mr Tareq Altaranesi (on 9 January 2009) and Mr Oliver Banovec (on 17 September 2008). Mr Altaranesi's complaint was made on 8 May 2009 and Mr Banovec's complaint was made on 19 March 2009.

The third complaint was referred to the Conduct Division after its constitution, being from Dr Duncan Wallace concerning mental health hearings which took place before the plaintiff on 23 December 2009 at the Kiloh Centre of the Prince of Wales Hospital.

A fourth complaint concerning an image on the plaintiff's computer shown to others in 2002, being a matter that had been internally investigated and reviewed by the Chief Magistrate, was also the subject of the Conduct Division's consideration.

As part of its review of the material, the Conduct Division formed the view that the plaintiff should be the subject of a medical examination concerning his mental fitness to continue as a Judicial Officer. The Conduct Division referred the plaintiff to an examination by Dr O'Dea, psychiatrist. Since the opinions of Dr O'Dea and Dr Nielssen differed as to diagnosis, the Conduct Division found that a third examination by another doctor was required and Dr Jonathan Phillips, psychiatrist, carried out that examination.

The Conduct Division commenced its analysis of the complaints at Para 52 of the report. It noted that the plaintiff had generally admitted the inappropriate conduct arising from the four complaints, that he had apologised for his conduct and that he explained these events by reference to his mental disorder. The Conduct Division foreshadowed its ultimate finding that the substantial cause of the plaintiff's conduct was his bipolar 2 disorder (Paras 53 and 54 of the report).

The first complaint was that of Mr Altaranesi arising from the plaintiff's conduct of a mention of an apprehended violence order at Burwood Local Court on 9 January 2009. The Conduct Division described the actions of the plaintiff as constituting "a most unjudicial course of conduct". Except for some matters, the plaintiff admitted that such was the case.

In relation to the Altaranesi complaint, the Conduct Division found that the following particulars of the complaint had been made out, i.e. ridiculing Mr Altaranesi, bullying and belittling Mr Altaranesi and denying him natural justice. At para 93 of the report the Conduct Division, using the language of s28(1) of the Act, found that Mr Altaranesi's complaint had been partially substantiated. The Conduct Division also found that the substantial cause of this conduct was the plaintiff's bipolar 2 disorder.

In relation to the Banovec complaint, he was a defendant to charges brought by the Australian Securities and Investment Commission. Committal proceedings were part heard before another Magistrate. On 17 September 2008 the matter came before the plaintiff on the return of two subpoenas issued by Mr Banovec. The persons to whom the subpoenas were directed were legally represented and Mr Banovec appeared for himself. Over the objections of Mr Banovec, the plaintiff struck out the subpoenas.

The Conduct Division found that the following particulars of the complaint had been made out: a denial of natural justice, talking over Mr Banovec, making a costs order without hearing from Mr Banovec, assessing the quantum of costs without requiring evidence and engaging in inappropriate humour and loquaciousness. The Conduct Division also found that the substantial cause of this behaviour was the bipolar 2 disorder.

In relation to the Dr Wallace complaints, which arose from the mental health inquiries undertaken by the plaintiff, at the Prince of Wales Hospital on 23 December 2009, the Conduct Division found that "in part" there had been an inadequate attention to the judicial function and that there had been some inappropriate and loquacious questioning. The Conduct Division found that by reference only to the plaintiff's suggestion that the security officers present were overweight, that there had been an abuse of judicial power. The Conduct Division also found a failure to behave judicially in that there had been an inappropriate referral to personal matters.

This last issue needs to be expanded since it took on considerable importance in the submissions by both sides.

The Conduct Division found that this conduct had been substantially caused by the plaintiff's bipolar 2 disorder and that the plaintiff was suffering from a hypomanic phase of his bipolar disorder during the events at the Kiloh Centre.

The inappropriate reference to personal matters related to exchanges between the plaintiff and a female psychiatric registrar who was 29 weeks pregnant. The plaintiff made a number of remarks about her pregnancy, asked her to stand to show how pregnant she was, and referred in an over familiar fashion to various aspects of his wife's pregnancy. As to what happened thereafter, the evidence of the psychiatric registrar was:

"The Magistrate then spoke in some detail about the pain of labour. I do not recall the words he used. He then raised both hands to his mouth with each of his index fingers extended but hooked. He put one finger on each of the inside corners of his mouth. The only inference I could draw from that action was that he was stretching his mouth in the same way that a vagina would be stretched whilst giving birth so as to demonstrate how painful it would be. I thought okay, that's really stepping over the line and I said words to the effect of "How about we get back to the patient".

Because I said something at that time, the Magistrate did not complete the gesture which I was expecting. He had his fingers in his mouth but I do not think that he stretched his lips back because I jumped in. The Magistrate was not laughing at this time but I got the impression that it was all in jest." (Para 173 of the report)

The psychiatric registrar gave evidence and in cross-examination said:

"Q. You've described in your statement a gesture that the Magistrate made with his fingers in his mouth. I think what you meant was that he hooked his two fingers and stuck it in his mouth and pulled his mouth apart. Is that correct?

A. He went to do that, I think -

Q. "Went to do that" so when you say he went to do it he got part of the way there or what did he actually do?

A. As I've written in the statement, I don't have a full recollection of this. But my impression was that he was making a - an image of, basically childbirth and - yeah, going to do that with his fingers. I can't remember exactly how far into the action he got.

Q. Can I ask you whether he talked about a comedian called Joan Rivers?

A. I can't remember that.

Q. Did he say something like, Joan Rivers talks about childbirth, she says it's like getting your bottom lip and sticking it over your head?

A. I can't remember that.

Q. Could that have been said?

A. I can't answer that really no.

Q. Is that because you can't remember if it was or if it wasn't?

A. It could have been said but I can't remember exactly.

Q. And that the gesture that was made was actually a tug on the bottom lip and to pull it up?

A. I don't think so, but I couldn't say for sure.

Q. All right.

A. Either way it wasn't very relevant to what was at hand." (Report Para 196)

The plaintiff gave evidence in chief on this issue as follows:

"Q. Do you remember now if you discussed with her the pain involved in childbirth?

A. Yes.

Q. Do you have an actual memory of what you said?

A. No I don't have an actual memory of what I said.

Q. Having heard what she said about a gesture and the pain of childbirth?

A. Yes.

Q. Do you have a belief about what it was you said at that time?

A. Yes because I have an anecdote of Joan Rivers.

Q. Just pause there. When you say you have an anecdote, you mean on other occasions you have recounted a Joan Rivers' story?

A. Yes.

Q. Is that right? Well you'd better tell us who Joan Rivers is.

A. An American comedienne.

Q. And what have you said in the past about this topic that Joan Rivers has said?

A. Joan says that the pain's akin to getting your bottom lip and trying to stretch it over your head.

Q. And you just in the witness box moved your hand to your bottom lip and on?

A. Not so, but just -

Q. Yes. As I understand your position on this topic, you through reconstruction think that if you said or did anything, that it was something like what you just did?

A. Yes.

Q. Did you intend to be offensive in that way?

A. I didn't intend to be offensive but as the doctor has taken offence I regret that and I apologise." (Report Para 197))

Under cross-examination he said:

"Q. All right. What about this request that you seem to have made, and then pressed, that she physically do something herself? Can you tell us what your recollection is about that?

A. I don't recall anything about that.

Q. Did it happen?

A. I don't believe it happened." (Report Para 198)

In relation to this issue, the Conduct Division found as follows:

"176 Magistrate Maloney in his statement said that these remarks took place after the "matter was finalised". He had support on this assertion from Ms Peck [Ms Peck was the solicitor appearing for the patients].

177 However, Dr B would not accept this. She was supported by Ms McDonald and Mr Miller. Ms Peck, having indicated no opposition to the order, had no further interest and also indicated that she tended to "switch off" to discussion of pregnancy and babies.

178 We are satisfied that the remarks were made during the hearing and, in particular, note the comment, which we accept was made by Dr B, "how about we get back to the patient". We think Magistrate Maloney and Ms Peck to be mistaken on this question.

...

199 We do not find Magistrate Maloney's evidence reliable on this event. We consider that he did make a gesture at least towards his mouth with his hands to mimic childbirth. Even if his postulate is correct, that he was mimicking of the lower lip over of the head from the way he described the gesture, in circumstances, it was clearly inappropriate and sexualised."

After dealing with Dr Wallace's complaint, the Conduct Division commenced an analysis of those three complaints in the context of an undertaking by the plaintiff arising from an earlier complaint dealt with by the Conduct Division in 1999. The terms of that undertaking are set out in para 40 of the report. The plaintiff undertook "not to be too loquacious, not to interrupt solicitors, not to introduce matters reflecting his personal experiences, to be more judicial and to allow matters to run their course without interfering".

Given those parts of the three complaints, which were made out, the plaintiff accepted that the undertaking had been breached but that this breach was due to his bipolar 2 disorder.

The fourth complaint was a matter which had formerly been dealt with internally by the Local Court. It related to an allegation of an image which the plaintiff kept on his computer screen, the computer having been issued to him by the Attorney-General's Department. There was a dispute before the Conduct Division, both as to what was on the screen and what was said about it to other persons.

There does not appear to have been any formal complaint made concerning what the plaintiff is said to have done, although the event was described to a person referred to as the Chief Executive of the Judicial Division (para 16 of the report). What occurred seems to have made its way ultimately to the then Chief Magistrate (now Justice Price of the Supreme Court). The complaint is described by the Conduct Division as a complaint which Justice Price received as head of jurisdiction. It appears that the complaint was dismissed but Justice Price reprimanded the plaintiff (para 223 of the report). There is a factual dispute as to the precise image that appeared on the plaintiff's screen and whether it was shown to two female employees of the Judicial Commission, Ms RW and Ms JB. The details of this complaint also need to be set out more fully since the Conduct Division's treatment of it emerged as an important issue in the proceedings.

The complaint related to an incident which occurred in February 2002. In the course of attending a seminar held at the Judicial Commission offices in Sydney, the plaintiff drew the attention of Ms RW, an education officer of the Commission, to an image on his laptop computer of a naked woman on a beach. The plaintiff used words to the effect of "Hey R what do you think of the Canadian on my screensaver?" RW was known to the plaintiff to have a Canadian background. The evidence of Ms RW was that the image depicted a woman with her back towards the camera and the length of the back part of her body was clearly displayed. The woman had no apparent clothing and her naked buttocks were clearly visible. The woman was of Caucasian appearance with light hair.

During the same seminar in February 2002, the plaintiff drew the attention of Ms JB, a senior system officer of the Commission, to the same image on his computer. He used words to the effect of "What do you think of my wallpaper?"

There was no dispute that the plaintiff, Ms RW and Ms JB were present at the seminar in February 2002. There was a conflict as to what, if anything, was said and as to what the screensaver or wallpaper was upon the screen of the plaintiff's computer at the time.

Although Ms RW was unsure whether the figure was standing up or lying down, she would not agree that there were several women in the picture, nor that they were wearing bikini bottoms, nor that the image was one only temporarily on the screen and changing after a very short time.

Ms JB said that she was aware of one woman in the foreground and that she had no recollection of there being bikini bottoms. She confirmed that there was dialogue with the plaintiff.

The plaintiff in his statement of December 2010 said:

"There was no depiction of nudity in respect of the screensaver. I have no recollection of any conversation with RW as referred to in the statement or any discussion with JB where she indicated in any way disapproval of the screensaver."

In his supplementary statement of 12 January 2011 the plaintiff said:

"I do not recall saying to JB the words "What do you think of my wallpaper?"

In respect of RW, I agree that she speaks with a Canadian accent. I have no recollection of saying to her "Hey R, what do you think of the Canadian on my screensaver?" (Report 224-225)

In the January 2011 statement the plaintiff said that he believed that the screensavers on his computer at the time were six images, one of which was of "Three Brazilian women lying side by side, lower back and thigh". He denied that there were any nude scenes. He said the following on the issue of dialogue when he gave evidence:

"Q. Did you draw the image to the attention of RW or JB?

A. I certainly did not.

Q. You know they both contend you did?

A. Well that's their belief. I have my belief of what occurred."

In cross-examination the plaintiff said:

"Q. Can I just put this to you, Mr Maloney? JB seems to have the view that you called her over, drew her attention to the screensaver. Do you recall that?

A. No I recall Ms RW saying I called her over.

Q. Yes I'm sorry, you're quite right. Do you say that that did not happen?

A. It did not happen.

Q. Do you say that at the time RW saw an image on your screen that it could not have been a person with a naked bottom?

A. It was not as she described.

...

Q. Mr Maloney, I put to you that on 25 February 2002 RW saw on the screen of your computer an image of a woman that was naked and was described by her in her statement?

A. I deny that emphatically.

Q. Right. I put to you, as well, that when JB saw an image on your screen that it was an image of a naked woman as described by her in her statement?

A. That is incorrect.

Q. You deny that?

A. She did not - she may have seen not a totally naked woman, but as I describe it, if she saw something, it was as I have described it as being on the computer.

Q. And what you say is the correct image is the three Brazilian women, is it?

A. Yes." (Report paras 228 - 230)

When evidence and addresses had finished, there was not in evidence any images said to have appeared in the plaintiff's computer which had been in the custody of the Judicial Commission since about October 2003. Searches by officers of the Commission and the solicitors for the plaintiff who had been provided with a copy of the computer's hard disk had produced no results.

Following the hearing, the plaintiff located on the copy of the hard drive available to him, an image of the Brazilian women. An application to re-open was granted and further evidence was taken and addresses made. Before that occurred, more extensive examinations of the computer and its hard drive were made by experts. The results of those investigations were set out by the Conduct Division as follows:

"235 It is, we consider appropriate to approach the issue on the basis that there are relevantly three available wallpaper images upon Magistrate Maloney's computer.

236 One entitled "C:/Windows/webshots.bmp" is an image of the Brazilian women. It is unlikely that this image was on the computer on 25 February 2002 having been downloaded at a later date.

237 One entitled "C:/Windows/windows_internet_explorer-wallpaper.bmp" is an image of a naked woman lying on a beach. It is likely, although not certain, that that image was available for use as wallpaper on 25 February 2002.

238 One is a jpeg image of the Brazilian women which we are prepared to assume was likely, but not certainly, available for use as wallpaper on 25 February 2002.

..."

RW and JB provided statements for the further hearing but neither was required for cross-examination. The plaintiff did not give further evidence. In her statement RW strongly maintained that the Brazilian women image was not the image she had seen. She gave a number of reasons why that was so. On being shown the image of the naked woman by reference to 13 features of it, she said:

"I am reluctant to say that I am absolutely certain that this was the image that Mr Maloney showed me on 25 February 2002. The image is certainly extremely similar and may be the same." (Report Para 241)

JB said in her statement that she was "absolutely certain" that the image she was shown (the Brazilian women) was "not the same image I saw on 25 February 2002". As to the picture of the naked woman, she said "This image is much more like the image that I remember seeing in February 2002 and could be the same image. If it is not the same image, then it is one which is extremely similar to the one I was shown". (Report Paras 242-243)

The Conduct Division's decision on this issue was:

"244 Mr Boulten submitted that with one image that to an extent matched the earlier observations of RW and JB and another that matched the description by Magistrate Maloney, the Division should not be satisfied to the requisite standard that the image shown by Magistrate Maloney was the naked lady.

245 This submission, however, sets aside what we regard as overwhelming evidence on this issue. We see no reason to disbelieve RW and JB, who are well supported by the surrounding circumstances. On the other hand, Magistrate Maloney's movement from no recollection to forceful denial was less than convincing.

246 Identification almost always raises questions as to differences in perceived features. However, here the two witnesses described a fairly detailed and cohesive picture of a naked woman on a beach and it turns out that there is such an image on the computer.

247 We are satisfied that Magistrate Maloney did show RW and JB the image of the naked lady and that the dialogue they set out in their statements occurred."

The Conduct Division found that the substantial cause of this incident involving the screensaver was the plaintiff's bipolar 2 disorder.

Certain reference material was placed before Conduct Division on behalf of the plaintiff (exhibit C). That came from two senior counsel, Mr Steirn SC and Mr Greenhill SC. There was also reference evidence from Judge Syme of the District Court, who was a Deputy Chief Magistrate of the Local Court from 2001 until April 2009 when she was appointed to the District Court. It is necessary to say something about this reference material, since it was relied upon in the plaintiff's submissions as indicating error on the part of the Conduct Division.

The effect of that reference material was that the plaintiff was held in high esteem by the legal profession and that he ran a good court. In the opinion of Judge Syme, he was a very hard working Magistrate who "carried out the workload equivalent to, but certainly not less than any other experienced Magistrate, but much greater than a lot of inexperienced Magistrates ...".

The Conduct Division's conclusion in relation to this material was as follows:

"260 The "Reference" material in our view demonstrates that Magistrate Maloney is capable for much, perhaps most, of the time of performing judicial duties appropriately.

261 It is clear from the complaints dealt with above that there are times when his conduct, whatever the substantial cause, falls well below the standard expected of a Judicial Officer.

262 This unfortunate state of affairs is consistent with the views of the psychiatrists as to the episodic nature of the condition from which they all believe Magistrate Maloney suffers."

It is necessary to set out the medical evidence before the Conduct Division in some detail because of the submissions which were made by both sides in relation to it.

Doctor Nielssen initially diagnosed the plaintiff to be suffering from a major depression. This diagnosis was made on 18 February 2010. As a result of advice from Dr Nielssen, the plaintiff ceased work until 2 August 2010 when Dr Nielssen considered that he was fit to return to work as a Magistrate. His eventual diagnosis was of "a bipolar mood disorder" with at least one hypomanic episodes and several episodes of clinically significant anxiety and depression. It was common ground that the plaintiff had been seeing Dr Nielssen on a monthly basis since February 2010.

In his report of 10 January 2011 Dr Nielssen said that the plaintiff had recognised the need for treatment and had good insight regarding the nature of his condition and the need for treatment. He considered that the plaintiff would recognise the return of symptoms, including those of hypomania and:

"Would be able to take immediate and appropriate action to seek treatment, by making contact with the treating psychiatrist by mobile telephone or email. His wife is also aware of his condition and would be able to prompt him to seek care. Now that a pattern of treatment has been established, any further episodes of illness should be treated promptly and hence would be more likely to respond to treatment within a matter of weeks." (Report para 274, CB 41.4)

Dr Nielssen also wrote:

"5 The usual course of milder forms of bipolar disorder is for discrete episodes of illness followed by recovery to the previous level of function. The future course is difficult to predict. However, the late onset, the comparatively mild episodes of illness, the self-limiting nature of the hypomanic episode and the good response to treatment for depression suggests that his prognosis is good. Moreover, there were no factors that might trigger further episodes of illness, such as substance abuse, or any external stressors other than the effect of these proceedings.

6 I am unable to give a predict of the likelihood of further episodes with any accuracy, either on the basis of my clinical experience or by comparing Magistrate Maloney's condition to studies of populations of people with less severe forms of bipolar disorder. On the basis of the information that is available, in particular the observation that episodes of bipolar disorder can become more frequent in later life in some patients, I believe he is more likely than not to have another episode of mood disorder before the end of his working life. However, I would anticipate that any further episode could be treated promptly with minimal disruption to his capacity to perform his duties as a Magistrate." (CB 41.5, report para 275)

Dr O'Dea examined the plaintiff on 7 and 26 July 2010 for a total of four hours at the request of the Conduct Division. In his report of 11 August 2010 Dr O'Dea said:

"48 From Magistrate Maloney's history and presentation during our assessments, I have diagnosed him as suffering from a Bipolar Affective Disorder (Manic Depressive Illness or Bipolar Disorder) with periods of depression and mania (or hypomania, a less severe form of mania without frank psychotic symptoms or a severity requiring hospitalisation) from at least the early 1990's and possibly earlier, that has only recently been formally identified and treated.

49 It would seem that over the past twelve months, Magistrate Maloney has been suffering a depressive swing in his bipolar disorder that is now responding well to treatment. A pattern of periods of depression and periods of mania with intermittent periods of mood stability over time is well recognised in Bipolar Disorder. Indeed episodes of mixed mood states (with components of mania and depression at the same time) and so called "rapid cycling" between episodes of mania and depression over weeks, days or shorter periods are well described in this condition.

...

51 As is conjectured to have occurred in the past in relation to the complaints, significantly elevated or depressed moods are likely to adversely affect Magistrate Maloney's ability to perform his judicial functions and official duties.

52 However, Bipolar Disorder can and does respond well to specific and structured psychiatric treatment, and I would remain optimistic that with structured and successful treatment of his condition, Magistrate Maloney should be able to continue to perform his judicial functions and official duties. This structured psychiatric treatment could be provided by his general practitioner, Dr Carmody, and his private psychiatrist, Dr Nielssen.

53 Such a treatment program is likely to involve ongoing review of his medication, including consideration of the addition of mood stabilising medication and closer monitoring of the anti-depressant medication with withdrawal of the anti-depressant medication as his current depressive episode resolves (to manage the risk of a manic mood swing).

54 In addition, psychotherapy (including psycho education) aimed at assisting Magistrate Maloney to understand and manage his Bipolar Disorder, including by promoting insight and better identifying and managing stressors, would form a significant part of the ongoing and long-term treatment program. Although insight is often significantly impaired during mood disturbance, particularly a manic episode, it is important to focus on promoting insight whilst the person is euthymic (of stable and normal mood), with the aim of translating that insight into compliance with treatment over the long term and into an ability to monitor their moods accurately and to act appropriately and effectively when aware of early warning signs and relapse of their Mood Disorder." (CB 52, report para 276-279)

In his report of 2 September 2010 Dr O'Dea said in answer to specific questions:

"3 Is the condition from which the Magistrate suffers amenable to treatment?

In Magistrate Maloney's circumstances, I would consider that his psychiatric diagnosis of Bipolar Affective Disorder would be considered very amenable to psychiatric treatment and that his prognosis for full recovery and good ongoing control of his moods would be very favourable.

...

6 If periods of impairment occur after treatment, for how long and with what frequency would the Magistrate be unfit for his official duties?

As above, a core component of longer term management would be to assist Magistrate Maloney to identify and clarify early warning signs of relapse of mania or depression and to put in place structured monitoring and treatment strategies to swiftly and effectively instigate psychiatric treatment to avert such relapses developing into a full blown episode of mood disorder with resultant significant impairment and thereby preventing periods of significant incapacity.

7 To what extent would the Magistrate have sufficient insight after treatment to be aware that a period of incapacity was approaching and that he should cease work until the period had concluded?

I would be optimistic that with successful treatment, Magistrate Maloney could gain sufficient insight into his illness and the potential problems with incapacity related to his illness, that specific measures could be taken, including sick leave, to adequately and appropriately manage the risk of performing his duties as a Judicial Officer when incapacitated." (CB 54-55, report paras 280-282)

Dr Phillips in a report of 13 December 2010 said the following in relation to the plaintiff's diagnosis:

"108 The clinical evidence both in terms of Mr Maloney's history and on the basis of observation by others, suggests strongly that Mr Maloney has suffered an undiagnosed bipolar 2 disorder which began by 1996-1997 and which has taken the form at various times of a depressive disorder, a mixed mood disorder and a hypomanic disorder. There is no clinical evidence, however, that he has suffered from a bipolar 1 disorder which is characterised by manic symptoms of psychotic intensity, with a breach from reality." (CB 74, para 283)

In relation to the future Dr Phillips said:

"120 The treatment of a person with a bipolar 2 disorder is relatively specialised. The person will require a combination of medication using a modern mood stabilising agent (generally Epilim or Lamictal) and targeted psychological counselling. Medication effectively constrains the person's mood within an acceptable range. Counselling allows the person to come to understand his illness, to appreciate early warning signs and to build strategies to prevent recurrent episodes of abnormal behaviour ...

122 Given appropriate treatment, Mr Maloney should be able to achieve relatively satisfactory stability of mood. He will then be far less likely to offend in the course of his professional duty. He should be able to continue with his professional life, although the Conduct Committee might like to apply conditions: namely, that the Magistrate has to attend a psychiatrist for ongoing treatment of his emotional problems, and perhaps also to undergo review at six monthly or yearly intervals by a psychiatric expert appointed by the Judicial Commission. I state this noting the paramount importance of protecting the public.

Bipolar 2 disorder is amenable to specialised psychiatric treatment. A relatively good treatment outcome is to be expected.

...

Given proper ongoing treatment for bipolar 2 disorder, Mr Maloney is less likely to suffer further episodes of the disorder.

If Mr Maloney were to suffer further episodes of his disorder, he would need to withdraw from professional life until he again enjoyed a stable mood state. This might require absence from the workplace for between two - six weeks." (CB 76-77, report paras 287-288).

In anticipation of giving concurrent evidence before the Conduct Division, the three psychiatrists issued a joint report. That joint report took the form of a series of questions and answers. There was no qualification by any of the doctors of those answers. The following responses were relied upon in this application.

"5 Is the condition, if any, amenable to treatment and what would a suitable treatment regime involve?

Bipolar 2 Disorder is a mental illness that is amenable to treatment. In general, the treatment will usually include the prescription of a mood stabilising agent to treat acute episodes and to lower the risks of further episodes of illness and appropriate psychotherapy.

6. Does any such condition adversely affect the performance of his judicial functions and official duties?

We accept that a person who experiences symptoms of an episode of either the depressed or hypomanic phase of bipolar 2 disorder can be in a state in which their professional performance is affected adversely. However, we note that properly treated a person with bipolar 2 disorder, when asymptomatic, which is the usual case, is capable of performing professional duties at an entirely competent level.

7. Does the Magistrate currently have capacity to perform the duties of a Judicial Officer?

Dr Nielssen has made the point that Mr Maloney has not had either symptoms of depression or the return of symptoms of hypomania since responding to treatment for depression and that his mood state is currently stable. He holds that the Magistrate is fit currently to perform the duties of a Judicial Officer. Dr O'Dea and Dr Phillips have no reason to question this.

9. If periods of impairment could occur after treatment, for how long and with what frequency would the Magistrate be unfit for his official duties?

We agree that if properly treated a person with bipolar 2 disorder, including Mr Maloney, is relatively unlikely to experience further episodes of illness. If he were to experience further episodes of illness they are more likely to be mild and less incapacitating as a consequence of his ongoing management. However, it is not possible to specify how long a person may require to be absent from official duties as a consequence of an episode of illness. Dr Phillips made the point that treatment will rarely exceed six weeks.

12. Do you consider that there is or has been any impairment of the insight of Mr Maloney into his behaviour as a judicial officer, do you consider that any such impairment can be explained by reference to a psychiatric condition?

Dr Nielssen makes the point that Mr Maloney, in the course of therapy, has continued to gain understanding and insight into the link between his psychiatric disorder and his behaviour. This process is likely to continue. We agree that a person, when experiencing an episode of either the hypomanic or depressed phase of bipolar 2 disorder, is likely to have reduced insight, or at times even to lose insight. Obviously, a person who is well treated is unlikely to reach either state." (CB 323-324, Report 291-293).

The three psychiatrists gave evidence before the Conduct Division on 15 December 2010. The evidence was taken concurrently. An agreed agenda of topics was put to the doctors for comment and each topic was completed before the next was taken up. Initial questioning was by the Chairperson and then counsel examined. The doctors were free to challenge or question each other. It was agreed at the hearing before me that in relation to the concurrent evidence, in the absence of any challenge or qualification to an expression of opinion by one of the doctors, the Court could safely infer that the other two doctors agreed. To the extent that there was any difference in the opinions expressed by the doctors, this related to matters of emphasis rather than substance.

The following extracts from the concurrent evidence are relevant to the issues raised in these proceedings. All references are to the transcript of evidence given on 15 December 2010 to the Conduct Division.

"DR NIELSSEN: ... Just in summary, to confirm what I wrote in my report, was that every consultation has touched on what are the symptoms of illness, the manifestations of illness, the need for treatment, self awareness about behaviour and it's my opinion that Magistrate Maloney has acquired a good degree of insight into the presence of illness over time. (T.33.44)

...

DR O'DEA: ... and I accept Dr Nielssen's view that with his treatment since that time, his moods have stabilised and his insight has improved, as I would expect, and so I would, as we have made reference to in our joint report, accept Dr Nielssen's current view that his insight is greatly improved." (T.34.11)

...

DR PHILLIPS: ... So in summary, I support my colleagues, particularly the view that insight is something which does not come in a rush but insight is gained over a period of time in the course of therapy and the magistrate appears, in Dr Nielssen's assessment, to be gaining insight in a fairly steady manner." (T.34.27)

...

GORMLY: Now as I have understood the reports and particularly your reports, if somebody is in a hypomanic phase or a manic phase because of a bipolar condition, that will affect their insight is that so?

DR PHILLIPS: Most definitely.

GORMLY: Right. And that really affects their capacity to judge whether an action that they carry out or words they say will have the impact that other people not affected would think they would have, correct?

DR PHILLIPS: I agree." (T.35.4)

"GORMLY: As I understand the assessment of prognosis, with and without treatment, insight is a critical component to the success of future treatment, is that correct? I ask you Dr O'Dea first.

DR O'DEA: Yes my response to that is that it's not crucial. It certainly is very helpful but as I think we all have said, insight is a very complicated and multi-faceted matter. Certainly prognosis is usually much better if people have very good insight but I think that that shouldn't suggest that people with limited insight can't still engage in treatment and be benefited from treatment.

GORMLY: ... But if one looks at it from the point of view of being able to determine when the Magistrate becomes unable to carry out his duties by reason of the manic state, it's going to be heavily dependent on his insight into his own functioning to determine whether or not he should stop work. Do you agree with that?

DR O'DEA: I would agree with it but add that when people are in a structured and supervised treatment program as Magistrate Maloney is, that the significant role of the treatment psychiatrist is to assist in those particular matters and therefore enable people to pick and respond to relapses very early and quickly.

GORMLY: All right. Now Dr Phillips, on the issue of the need for insight into future management, as I understand a manic condition as described in the reports, a manic phase may well commence with a sense of wellbeing is that correct?

DR PHILLIPS: Yes that is so.

GORMLY: That of course is the time when a person who has any form of impaired insight is perhaps least able to detect when a manic phase is going to commence. Do you agree with that?

DR PHILLIPS: I accept that.

GORMLY: Doctor isn't it the case that perhaps in slight difference from Dr O'Dea that it would be exceptionally difficult to provide - to have any degree of certainty that Mr Maloney would know when to cease work because of the onset of a manic phase if it is dependent on his insight?

DR PHILLIPS: If matters are wholly dependent on insight and assuming that insight is lost very rapidly, then Magistrate Maloney or any other person would be in trouble because they would not be able to reflect adequately and contemplate for long enough to know that something has gone wrong ...

Yes. However, the treatment paradigm is more complex than that. I think it would be fair to say that I have a substantial number of people with bipolar illness in my practice. And the aim is not only to equip the person with an understanding of their early warning signs and they are largely unique to each person, even to the point of carrying them on a card in their wallet, so they can check, but the aim is to have enough supervision going on so that the treating psychiatrist or the spouse or a child or whoever, it doesn't really matter, is able to report something changing. So I think to look at the issue of insight and in total isolation is probably narrowing the paradigm excessively.

GORMLY: Rather than trying to narrow it down solely to insight and I'm perhaps putting to you that so far as the person suffering the condition is concerned, their first signs are likely to be subjective or internal signs that they will have to be the first to pick up. Do you agree with that?

DR PHILLIPS: Yes I agree with that.

GORMLY: All right. Now you just - this is the last matter. On the supervision you were referring to a moment ago do you have in mind those familiar types of supervision, such as are imposed as conditions in legal practice or medical practice, is that the sort of thing you had in mind?

DR PHILLIPS: Yes very much so. I mean the model has been well explored in other disciplines, particularly our own. The Medical Board has taken this, worked over this matter for many years and has a very powerful model for monitoring doctors who are considered to be impaired in any sense.

GORMLY: Right. If there wasn't a sense of monitoring of that type, would that cause you more concern about the management of Mr Maloney's condition?

DR PHILLIPS: Yes it does." (T.37.43-39.32)

"BOULTEN: Dr Nielssen ... what structure is there at the moment and is likely to continue between you and your patient and any other structure that you are trying to establish that is assisting and will assist in him monitoring himself or other people monitoring him to keep an eye on warning signs?

DR NIELSSEN: Yes. Well, firstly, I think I have already mentioned

in answer to the previous question that in my opinion there is a good level of insight, certainly with regards illness and in some ways you can divide insight into awareness of illness, awareness of need for treatment and then awareness of the symptoms of illness and perhaps you could even say a capacity for self-

monitoring. There is certainly no problems in my mind with regards awareness of illness and it had really only been diagnosed at the beginning of last year. All his previous incidents have occurred prior to any diagnosis or any education about perhaps how mood might be affecting behaviour.

...

But again, I have something of a private practice with a number of very long-term patients with borderline - excuse me, with bipolar disorder and again, it's an ongoing process over the course of

one's care to keep reminding them of what to look out for and the common symptoms are a reduced need for sleep, an increased feeling of wellbeing, increased pace of thoughts, tendency to be more sociable or garrulous, increased energy level and these are symptoms that people can learn about and look out for.

The second part of your earlier question was in terms of what kind of monitoring could we set up and I haven't actually met Magistrate Maloney's wife as yet because she has been very preoccupied with child care but we have discussed that he has talked to her about his condition but I would like at some stage to meet her and discuss early warning signs but also the arrangement that I would

imagine is that we would continue to meet at quite regular intervals over a long period of time because it is generally a lifelong condition, long periods of being well and perhaps short periods of exacerbation.

...

Well, I have also a number of patients - a number of doctors under my care who are under the supervision of the Medical Board and the key part of their supervision is continued treatment. But the other component is, I guess, a supervision of professional performance in some cases. That may be one element that might

be able to be introduced because I would not be in a position to comment on the actual performance of the duties of a magistrate, only on the absence of symptoms of mental illness that might affect that performance.

MR BOULTEN: I think you might be able to add some light to this Dr Phillips?

WITNESS DR PHILLIPS: Your Honour, I have a very long association with the Medical Board as an assessing doctor within the health programme. The parameters of the health programme are extremely simple and could be translated rapidly and easily to the legal profession. Essentially if a person is found to be - I'm not sure if I like the word, but impaired or potentially impaired by a mental illness of any sort, that that person be constrained by certain orders and the orders are very simple; that the person has a treating doctor and attends the treating doctor at the interval suggested by the treating doctor and accepts the treatment that the doctor prescribes and that includes both medication and talking psychotherapy, and that second condition which applies in bipolar disorder is that the use of the mood stabilising agent be properly

monitored and that means a regular blood test. The Medical Board has an additional component, there is a treating doctor and there is an assessing doctor who is looking not only in clearer view as it were, at the condition of the impaired practitioner, but also looking at the way that person is performing. I think that's a very valuable additional bit, but it's my view that that's more a safeguard than a necessity. I think the real issue is the contract that is established and mandated between the impaired practitioner of whatever

discipline and the treating doctor. ... (T.39.45 - 41.41)

GORMLY: In making use of Mr Maloney's capacity to have insight into whether or not he is developing a manic phase, it's going to be exceptionally difficult for him on his own if he is

not supervised to determine whether the episode is underway or not, agree?

DR NIELSSEN: I wouldn't think exceptionally difficult is the best way of describing it. We haven't tested this ground yet because he hasn't had a manic phase whilst under my care and so I can't really answer it, but he certainly knows intellectually what that list of symptoms to look out for is.

...

GORMLY: If treatment is entirely left up to Mr Maloney in the future, that is he cannot be externally supervised for whatever reason, and he cannot be placed under some regime of reporting or compulsory examinations or blood tests and it's entirely left to him, would you agree that that would raise a real risk as to whether he might after or during manic episodes, slide backwards?

DR NIELSSEN; I mean if the key words are real risk, yes it is a real risk that a person may have a manic episode and not notice it certainly immediately, but again amongst the many patients under my care, they do frequently make contact with me and say that they're not sleeping and they feel they're going up and "What should I do with my medication?" and that kind of thing.

GORMLY: And the last question on this, do you agree that the risk with the future for Mr Maloney's treatment is that a gap might form between the time a manic episode starts and the time he is able to become sufficiently aware of it to go and get treatment?

DR NIELSSEN: Yes, well that would exist for any patient, both in the penny dropping as to why they're not sleeping and then being able to find - you know, locate their doctor, although I can usually be contacted at any time by mobile phone. ... I could usually be contacted at any time by mobile phone but if the question was that there's a risk there might be a delay between the onset, recognition and treatment, then the answer is yes, there might be that risk.

GORMLY: The onset starts with a feeling of wellbeing that it would increase the risk that time is going to pass before the call for treatment is triggered, particularly if he is unsupervised, correct?

DR NIELSSEN; Well, it might be that the increased wellbeing is very welcome and that he didn't want treatment which is again quite a common situation with people with bipolar disorder. I've got no reason to believe that that's the case with Mr Maloney who is very anxious about becoming well.

GORMLY: So days or weeks could possibly pass before a pathway to treatment is triggered?

DR NIELSSEN: It could, or he could get treatment immediately. It's

available." (T.43.1 - 44.28)

MR CAMPBELL: The next matter that we've to some slight extent touched upon is what is the treatment plan, to what extent does it depend upon the agreement of Magistrate Maloney ...

DR NIELSSEN: Well it's a commitment to long term treatment and if for some reason I am not available for example I get another job, I would of course refer him to a senior colleague, but it's meetings at approximately four weekly intervals which seems an appropriate interval for a professional person who's generally well, treatment with a mood stabilising medication is a prophylaxis against further elevation and depressed mood to a lesser extent, and probably withdrawal of antidepressant medication over time, but the really long term monitoring and prophylactic treatment, prophylactic medication is the main part of the treatment plan.

MR CAMPBELL: Do you contemplate this as being, in effect, an indefinite program?

DR NIELSSEN: Yes, I would recommend indefinite supervision, because the risk of further episodes is lifelong but it may be less frequent supervision in time when it becomes clear that there's long periods of remaining well, but I'd still imagine meeting at least every three months if that were the case, but I'm not foreseeing reducing the frequency of meetings for some time ...

DR O'DEA: I would simply add that one other thing that is involved with the impaired medical practitioners of whom I, like Dr Phillips and Dr Nielssen have a number of patients, is that in addition to the treating psychiatrist and the psychiatrist who makes regular reassessments, that there is a further body of the Medical Board that will review the progress on a regular basis, and whilst there may not be a mechanism for that within the legal fraternity, it certainly may alleviate some concerns that other people may have if there's some external body that's regularly reviewing the progress of the treatment and the participant's engagement in that treatment.

...

DR PHILLIPS: I agree with Dr O'Dea entirely. The only additional

comment I'd like to make your Honour is to stress very strongly that the treatment of a person with a bipolar disorder is lifelong treatment. There can be no other way to look at it because it is a genetically determined disorder with episodic fluctuations in mood state and that age does not assist." (T.44.39 - 45.37)

"MR CAMPBELL: Now, the last topic, subject to a few questions that we may wish to ask is directed to the likelihood of further episodes. I think you have provided some answers to that, but Dr Nielssen, do you have a comment to ask about the likelihood of further episodes?

DR NIELSSEN; Well, I concur with Dr Phillips' comments that it's a

lifelong illness and that there is a risk of further episodes. It's very difficult to say how great the risk is, when the next episode might come, whether it will be elevated or depressed mood, depends a little bit on life events and physical health. But certainly continuous treatment would reduce that risk and also if episodes were to occur, if they were treated promptly they should not become

disabling or disruptive and should respond to treatment reasonably quickly if they're treated early.

MR CAMPBELL: You did in your report I think mention that increasing age can be a factor in the frequency of attacks. Is that something that can happen or ...

DR NIELSSEN; Well, there are some patients who become more

unstable in their bipolar disorder in later decades. It's just very hard to predict, to project from the experience of other patients and from research to a person who has really had quite a mild condition compared to perhaps to many of the patients we see admitted involuntarily to hospital for example, so really it's

difficult to predict from that experience and research to this individual.

DR O'DEA: Well, I would agree with Dr Nielssen's evidence, but I

would add in addition to that that bipolar disorder, particularly bipolar 2 or the less severe bipolar disorder that Magistrate Maloney has been diagnosed with is probably one of the most treatable psychiatric conditions and is very treatable and very responsive to treatment, and that there are many treatment options available for people that will I guess give a much greater potential for relapses to be few, far between and minor. And the other thing I would add is that often people who are bipolar have frequent relapses, are people with other, as we call it co-morbid conditions, particularly drug and alcohol problems, unemployment, unstable life patterns and of course Magistrate Maloney does

not have a history of drug and alcohol problems or of the other disadvantaged problems, and that would all point I think in his case to a great deal of optimism regarding his potential to really benefit from this treatment programme which Dr Nielssen has pointed out is really something that's only just begun for him and

so I would add that to what Dr Nielssen's evidence was.

DR PHILLIPS: Your Honour, the trajectory of illness in a person with a bipolar 2 disorder is very uncertain. I take Dr Nielssen's point that on occasions untreated, the frequency of illnesses will increase and perhaps the extent of the illness will worsen. On the other hand those of us with clinical experience in this area, and we all three of us do have, there are people whose illness improves with time, and that's a positive factor. The science literature

suggests very strongly that the moment a proper treatment programme is put in place, the risk of future illness diminishes in its frequency and even when an illness develops in terms of illness intensity. So I agree with Dr O'Dea's view that in many ways bipolar 2 disorder presents an initial challenge for treatment, that is making the diagnosis and urging the person to start treatment, but once treatment is initiated and once there is compliance, generally people with a bipolar disorder do very well and much better than the treatment of people with various other psychiatric disorders." (T.46.39 - 48.2)

"GORMLY: Let me ask it separate from the document, that the history rather suggests that there would be a number of episodes of manic relapse in the future even if at a lesser level because of treatment. Do you accept that? I ask Dr Phillips first.

DR PHILLIPS: I accept it in part only, because irrespective of the

frequency of episodes of bipolar disorder, once treatment has begun and once treatment has been stabilised, the prognosis improves very considerably and even people as you point out with a frequency of disorder which is quite worrying, can settle the -I know we've talked about insight a lot but I think it's not so much insight, it's actually the combination of a mood stabilising drug

monitored carefully in terms of its blood levels so that it is in actual fact effective, and the combination of a supportive and directive if necessary psychotherapy. Those two matters become the ingredients which allow a person to move forward.

DR O'DEA: I would respond by saying that the timeline of episodes

that you refer to, was whilst Magistrate Maloney was untreated and you referred to a pattern in which they were increasing in their frequency and arguably in their severity which may be typical of the condition untreated, but as Dr Phillips referred to earlier, with the onset of successful treatment and effective treatment, the severity and frequency of further episodes is markedly reduced.

Of course we can't say that it goes to zero but markedly reduces and therefore I think that the prognosis treated is much better than the prognosis untreated." (T.48.23 - 49.1)

"GORMLY: Now, I ask this question, with increasing age and without the discipline of some form of compulsory future supervision, and that is not available for judicial officers unlike the medical legal system, I suggest that the risk of episodes in the future is not one

about which one could confidently say there would be few. Would you agree with that Dr Phillips?

DR PHILLIPS: I do, I just need to go back to one point in your question, was the issue of treatment and treatment compliance in the question?

MR GORMLY: Yes?

DR PHILLIPS: Let me answer it in two ways. If the magistrate or

any other person in this position could not be supervised properly and remained untreated, the situation would be gloomy in the extreme, I would expect worsening in every respect. If the judicial officer could not be supervised but was in effective long-term therapy and had a good therapeutic rapport with his treating psychiatrist, then the situation would be much improved. The third proposition is the one of supervision and that's the one I think that Dr O'Dea and I favour because it adds a margin of safety and overview that cannot be achieved in any other setting.

GORMLY: Thank you. Dr Nielssen, in your report at paragraph 6, that is your second report, 10 January 2011, you appear to have formed the view as the treating doctor, that it's difficult to predict the likelihood of future episodes with accuracy that episodes are more likely to increase with age, and that more likely than not, there will be at least one more episode before the end of his working life. Do you see that?

DR NIELSSEN: Yes.

GORMLY: Doctor, can I suggest that that is in fact a correct and accurate and reasonable assessment of the likelihood of future episodes from your analysis of Mr Maloney?

NIELSSEN; Look, it's a sort of an educated guess, and certainly the risk of an episode of depression is high enough to say that it's more than a 50/50 proposition." (T.49.19 - 50.9)

"GORMLY: If Mr Maloney were practising as a solicitor or barrister say, just hypothetically, and that there were available an external supervisory system which is compulsory, would you consider that the prospect of managing his position in the future would be better?

NIELSSEN; Well, I again agree with my colleagues that if there was some additional structure, that is better for more abundant caution. But having said that, this condition is typically not disabling, people fully recover between episodes and can function perfectly well, and there's many, many professional people in all professions, not just medicine, who have this condition and work

quite well except during the periods in which they're receiving treatment - receiving treatment for an acute episode.

GORMLY: Can I suggest to you that that is an assessment that deals subjectively with the patient, that is that deals with the patient's functioning, do you agree?

DR NIELSSEN: Yes.

GORMLY: It's not an assessment that takes into account the effect of the patient's work on other people?

DR NIELSSEN: No, but you'd certainly consider that. As a doctor for example, a person's fitness to drive a car or in the case of one of my patients who was an airline pilot who really had to retire.

GORMLY: Would you be concerned about the capacity of a judicial officer with a bipolar condition to for example, impose sentences when they're in a manic phase?

NIELSSEN; I don't foresee that being a situation that's likely to arise, because I foresee that the treatment will be timely and effective.

GORMLY: But Doctor, I think however you agree that there is gap likely to occur between the onset of a manic episode and it being picked up? Do you agree?

DR NIELSSEN: Yes, well, there might be a small gap, but I still would not foresee that the illness would be so disabling that one couldn't carry out one's duties effectively." (T.50.11 - 51.3)

"MR CAMPBELL: What is the likelihood of the magistrate being affected, in Mr Maloney's position, of peer pressure from assumed sitting for three magistrates and can you leave in the middle of the day leaving other people in the lurch, would that put pressure upon him to continue working when perhaps he shouldn't. Now, I don't know that that's as clear as it might be but are you able to make a comment on those observations Dr Nielssen?

NIELSSEN; Well again it has been a feature I think of Mr Maloney's previous work patterns that he's maintained a very high work ethic, but I think really now he understands and we have to say his health comes first and also his capacity to carry out his duties at the best level also is of great importance. We've agreed in our discussions that future episodes are likely to be short-lived and hopefully any perhaps part-heard matters could be returned to before too long, but it's just a risk we have. We don't know for a fact what the future course of the illness will be and whether there will be further episodes now the treatment's undertaken. It's very hard to tell you exactly how disruptive his mental condition might be to his capacity to work.

MR CAMPBELL: Dr O'Dea?

DR O'DEA: Your Honour, I would make reference to the many

medical practitioners including medical specialists who are diagnosed with a bipolar disorder, and continuing their professional duties and make reference to Mr Gormly's concerns obviously that what we're looking at here is not only the impact upon the individual but for example in a surgeon's case or an anaesthetist's case or any other person in the medical profession's case, if they become unwell and their judgment becomes impaired, that it may threaten the life of their patients. But these things are able to be managed because of the nature of bipolar disorder and the nature of the treatment programme and the nature of any potential relapse which is that usually these are not rapid and severe relapses, that usually the first early phases of a relapse are mild and may become identifiable to the individual or their very close family members, but not impact upon their work, because that would often be seen as something that would happen further down the track when it's more severe, and that with a proper treatment programme in which people have regular access - patients have regular access to their treating psychiatrists and relatives have regular access to treating psychiatrists, these episodes are usually identified and treated in the very early phases before they get to an extent where they are impacting upon a person's professional activity, and of course I go back to the fact that we've got the model of doctors who are in these programmes who do very well, and don't end up in between visits to their psychiatrists, blowing up into an acute phase of a mania and having to for argument's sake, relieve themselves from a trial through the mid afternoon leaving their colleagues in the lurch. So I would point to that kind of model and the nature of the long-term management of this condition to address those concerns.

DR PHILLIPS: Your Honour, let me try and add some additional perspective. If a person suffers from a bipolar illness more often than not the episodes are going to be depressive in type rather than hypomanic. A person who slumps into a depressive phase usually does so reasonably slowly and will maintain insight and there are not high risks in that situation. Generally the person in an established therapy will contact their psychiatrist and say "I'm in trouble, can I see you" and an assessment will be made, an adjustment will be made to the medication or frequency of attendances and the person will work on or will be taken judiciously out of practice at an appropriate time. The situation is more worrying with hypomania and particularly with mania, where

the episodes are rarer and are likely to appear more rapidly, however, it's my experience that in my clientele, and I think my colleagues will probably support me in this, that once an established treatment rapport is there, and once a person is properly treated, and once the person has increasing insight and I

don't think there's ever such a thing as total and full insight, that person again will speak up at an appropriately early stage and. adjustments can be made again to medication, frequency of therapy and other matters. If a person needs to be taken out of their work situation, which occurs, I'd like to think that medical matters are more prominent than the professional difficulties that are caused. My view is that from time to time a person does need to be rapidly taken out of practice and we do it and it causes some disruption but it's certainly not the end of the world." (T.54.28 - 56.3)

The Conduct Division considered the question of incapacity. It determined that:

"343. Incapacity exists whenever a physical or mental impairment significantly interferes with the capacity of a judicial officer to perform judicial functions or duties.

...

344. The relevant capacity is not to be determined by the immediate present but rather with regard to a variable period into the future to be measured in years rather than days, weeks or months."

The Conduct Division also observed that:

"346. The determination of whether Magistrate Maloney is incapacitated in the relevant way is a matter to be determined by the Conduct Division taking into account not only the medical and other evidence but also the Division's knowledge of what a judicial officer is required to do and the conditions under which it must be done."

In reaching its final conclusion the Conduct Division set out its reasoning as follows:

"386. We have accepted at [18] Mr Boulten's submission that the critical issue that has emerged from the examination of the complaints and the hearings is Magistrate Maloney's capacity to perform the duties of a judicial officer in view of his bipolar 2 disorder.

...

388. Set out at [350] the doctors agreed in their joint report that Magistrate Maloney's mood state is currently stable and that he is fit currently to perform the duties of a judicial officer not being affected by symptoms that might affect his capacity to perform such duties. The emphasis is ours.

389. Judicial office is a continuing one and we are concerned not only with the present but with the reasonably foreseeable future.

390. Magistrate Maloney suffers from bipolar 2 disorder which will be lifelong. The condition will require continuous treatment and supervision.

...

392. ... If Magistrate Maloney is not correctly treated he will suffer hypomanic attacks and other changes of mood with increasing frequency and of increasing intensity.

393. We consider that in such a situation Magistrate Maloney, being subject to such a future, would be clearly incapacitated for his judicial duties. What can occur in such attacks is well illustrated by the complaints before us.

394. Magistrate Maloney is presently being duly treated. The question arises whether that state of affairs will continue.

395. Dr Nielssen, while being cross-examined by Mr Gormly as to a feeling of wellbeing at the onset of a manic episode, did say at [373] that not wanting treatment is quite a common situation with people with bipolar disorder. He added: "I've got no reason to believe that that's the case with Mr Maloney who is very anxious about becoming well".

396. We accept Mr Gormly's submission that Magistrate Maloney showed before us, particularly but not only, over the screen saver matters, a considerable capacity for denial and self-justification and, we would add, self-deception. We consider there to be a real risk that at some stage Magistrate Maloney will have feelings of wellbeing and give up the regime of treatment which he presently undergoes.

397. Even when correctly treated, Magistrate Maloney will probably suffer hypomanic attacks, however, the number of such attacks cannot be forecast. They will be less intense than they would have been were they untreated.

...

402. If Magistrate Maloney does suffer a hypomanic attack he will need to cease work for a time up to 6 weeks.

403. Ceasing work before conduct occurs, which would be misbehaviour except for the presence of the bipolar 2 disorder, depends upon Magistrate Maloney or perhaps a relative or friend, recognising the precursors of an attack and Magistrate Maloney's willingness to take appropriate action.

404. For the reasons we have discussed above at [396] we think there is a real risk that Magistrate Maloney will not take, or at least would delay, such action.

405. It was put that Mrs Maloney would be able to alert Magistrate Maloney to a pending problem. However, Dr Nielssen has not yet seen Mrs Maloney - he understood because of child minding commitments - and she was not present at the hearing - we are told for the same reason. We are unable to form a view as to how likely it is that she could successfully carry out this role and, in any event, she would not be in the Court where Magistrate Maloney presides.

406. Dr Nielssen agreed with Mr Gormly that a sense of well-being may lead to a gap between the onset of a manic attack and the seeking of treatment. During that gap it could be expected that the magistrate would still be sitting. Dr Nielssen agreed that days or weeks could possibly pass before a pathway to treatment is triggered. He added "Or he could get treatment immediately it's available". And commented "I can usually be contacted any time by mobile phone".

407. We consider that there is substance in Mr Gormly's submission in relation to the "gap". He said:

"If he falls within the gap, he falls within that period between the end of a stable period and realising or having someone tap him on the shoulder to say that he is in a manic episode, he may well have, particularly in the Local Court where the turnover is so great and it's so publicly exposed, he may have dealt with many cases before that occurred. In my submission, while ever that's the case, Mr Maloney falls within that description of a person who is not able to hold the office of a judicial officer."

408. It is to be borne in mind that if Magistrate Maloney failed to recognise or acknowledge the end of a stable period, steps to prevent him sitting are likely to be difficult and could involve significant time."

The Conduct Division then set out reasons why there would be a considerable delay in taking action against the plaintiff if he continued to sit whilst experiencing a hypomanic episode and noted that the complaints jurisdiction of the Judicial Commission was a protective jurisdiction, concerned with the protection of the public and the system of justice and that neither the Conduct Division nor the Judicial Commission had power to "apply conditions" such as those envisaged by the doctors in their evidence. Those sorts of conditions in the opinion of the Conduct Division could not be imposed on a judicial officer, not only because there was no legislative authority to do so, but because they would also impinge the principle of judicial independence.

The final conclusions of the Conduct Division were:

"425. We are of the view that if Magistrate Maloney continues as a magistrate there is a very real risk that he will suffer hypomanic attacks or other mood changes which will result in events such as those reflected in the complaints we have considered.

426. We consider that the likelihood of such attacks or changes taken together with their probable consequences constitute an unacceptable risk which would have to be taken for Magistrate Maloney to continue as a magistrate.

427. We find that Magistrate Maloney is and will remain incapacitated for the performance of the office of Magistrate. We are of the opinion that that incapacity could justify parliamentary consideration of the removal of Magistrate Maloney from office on the ground of proved incapacity."

In reaching that conclusion, the Conduct Division rejected an alternative submission that the plaintiff was unfit to be a Magistrate because of characteristics demonstrated as being continuing despite the fact that he is said to be in a stable state. Those characteristics were submitted to be sexual disinhibition, forgetting, putting forward other stories and, in particular relating to the screen saver matters at both hearings, an inability to be objective and to accurately and responsibly handle questions of fact. There was also a reference in the submission to Magistrate Maloney's lack of insight which was said to be continuing at a high level.

While the Conduct Division thought that there was some force in those submissions, it noted that there was no psychiatric evidence to support such an approach and that the psychiatric evidence was to the contrary.

Submissions

The plaintiff submitted that the decision of the Conduct Division gave rise to the following errors of law:

(i) The application of the wrong statutory test.

(ii) The inclusion of irrelevant considerations, in particular a speculative inquiry as to what might occur in terms of the plaintiff's bipolar 2 disorder.

(iii) The overlooking of relevant considerations including the reference evidence and the powers of the head of jurisdiction, the Chief Magistrate, to exercise some supervisory review of the plaintiff's conduct.

(iv) That the decision itself, given the seriousness of the consequences for the plaintiff was so unreasonable as to indicate error in circumstances where there was no finding of misbehaviour. Specific reference was made to Bruce v Cole and Ors (1998) 45 NSWLR 163 at 190E.

The submission as to applying the wrong statutory test was developed in this way. The plaintiff submitted that the Conduct Division erred in shifting the focus from whether there was demonstrated incapacity to the question of whether the disorder carried with it a real but not more probable than not risk of recurrence of aberrant behaviour at some unidentified time within the plaintiff's 12 years of anticipated service as a magistrate.

The plaintiff suggested the following as a summary of the Conduct Division's findings:

That there was a real risk which had a less than 50 percent probability, that this sequence of events might occur.

(a) There would be feelings of "well-being" at which time the plaintiff would abandon the treatment regime which he promised in the proceedings to maintain.

(b) The plaintiff would be the subject of a hypomanic episode.

(c) Neither he nor his family, nor a professional colleague would detect that a hypomanic episode was emerging in time for him to obtain treatment.

(d) He was likely at some time in the course of his judicial office to return to past behaviours.

Having set up that construct, the plaintiff submitted that it demonstrated error as follows:

(a) It replaced the statutory test for proved incapacity with a speculative inquiry as to whether there was a chance that previous incapacity currently reversed, could re-emerge within a 12 year period.

(b) It did not apply the Briginshaw standard ( Bruce v Cole at 190A-F) and instead created a test of incapacity where a less than 50 percent chance of incapacity recurring was sufficient.

(c) It relied upon a finding that the plaintiff would (or might) abandon treatment when this was never put to him and which was against the evidence of, inter alia, the treating psychiatrist.

(d) The sequence of events was not supported by the evidence of Drs O'Dea or Phillips.

The plaintiff submitted that in accordance with the evidence of the doctors, the decision of the Conduct Division was out of step with the circumstance where persons in other professions who suffer a bipolar 2 disorder and who currently and on a sustained basis take the appropriate steps to minimise the risk of future interference with professional performance, are permitted to do so, but that someone with such a condition is to be regarded as permanently incapacitated if he or she holds judicial office.

The question of applying the wrong statutory test was developed in oral submissions. The plaintiff accepted that when considering incapacity, the Conduct Division had to consider the future. By reference to s53(2) of the Constitution Act and by reference to the need to apply the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 the plaintiff submitted that it was necessary for the Conduct Division to find that, on a balance of probabilities, the plaintiff would become an untreated person in the future so that his performance of his judicial duties would be adversely affected and that a finding that a "real risk" of that occurring in the future was not sufficient (T.35.26-.43)

As a result the plaintiff took issue with the finding of the Conduct Division at para 396. He did so on that basis as indicating an error of law and because he submitted that such a finding was not open on the evidence.

In relation to there being no evidentiary basis for the para 396 finding in the report, senior counsel for the plaintiff said:

"If your Honour goes back to 396 in the report there's now some common ground on this topic. Firstly, it's accepted that Dr Nielsen's evidence from his medical perspective was that he saw no likelihood of a discontinuance of treatment. Secondly, it is accepted that the other doctors by concurrence were of the same view, so we have a unanimous medical view that they did not perceive a likelihood of discontinuance. Thirdly, so far as actual conduct is concerned we have a person who has continued treatment for at least the 10 month period, so that's the actual conduct and what can be inferred from that. Fourthly, we have his offer at paragraph 431 to communicate that he is continuing to do so, and, fifthly, we have the subjective evidence of his intent, which was pages 527-9 of exhibit B." (T.36.30 - .40)

The plaintiff added to that last submission the proposition that he had never been challenged as to his intention to follow the prescribed treatment and consequently it was not open, in the absence of any such challenge, for the Conduct Division to make such a finding.

In relation to overlooking relevant considerations, the plaintiff submitted that the Conduct Division should have had regard to the plaintiff's offer to communicate with his head of jurisdiction on a regular basis as to the steps he was taking to ensure that his present capacity continued into the future. The plaintiff submitted that this could be done voluntarily or by undertakings. He submitted that this was the approach of the Conduct Division in relation to the complaints made concerning the plaintiff in 1999. The plaintiff relied upon the Court of Appeal's implicit approval of the arrangement between Justice Bruce and the Chief Justice as to the timely writing of judgments which occurred as part of the factual background in the Bruce v Cole decision.

On that same issue, the plaintiff submitted that the failure of the Conduct Division to recognise a supervisory arrangement between the plaintiff and his head of jurisdiction, as envisaged by sections 28(1)(b), 28(3) and 40 of the Act, also gave rise to legal error.

As an alternative to the "wrong statutory test" submission, the plaintiff submitted that even if the existence of a "real risk" of a recurrence of aberrant behaviour in the future was sufficient to meet the statutory test there was no evidentiary basis upon which such a finding could be logically made (T.41.17 - .40). The plaintiff submitted that when talking in terms of "real risk", the Conduct Division needed to consider the likelihood of that risk. The plaintiff submitted that the evidence on that issue was such that the risk was so low as to not support the Conduct Division's conclusion.

In support of that proposition the plaintiff relied upon the nature of the disorder, i.e. being at the more treatable end, the fact that he had and was continuing to fully comply with the regime of treatment and that to date there had been no recurrence of the extreme symptoms. Finally, while it was a matter that needed to be watched and dealt with on a life-long basis, all three doctors gave an optimistic prognosis for the future.

Consideration

As can be seen, many of the submissions related to the fact finding of the Conduct Division and asserted errors in that process. In assessing those submissions and the plaintiff's challenge generally to the Conduct Division report, it is essential to understand clearly the function of this Court. This was carefully analysed by Spigelman CJ, with whom Mason P, Sheller JA and Powell JA agreed in Bruce v Cole. At 183F his Honour said:

"By reason of the detailed statutory scheme of the Judicial Officers Act , a Conduct Division is subject to the supervisory jurisdiction of the Court. As I have already said this is not an appeal, nor a review on the merits. This Court is not concerned to determine whether the Division made the correct decision. It is not relevant to ask whether I would have come to the same decision as the Division. This Court can intervene if, and only if, some form of legal error can be identified. The grounds of legal error are limited.

In the present case, the challenge is to the formation of an opinion. ..."

Spigelman CJ then set out by reference to Parramatta City Council v Pestell (1972) 128 CLR 305 at 323 and Buck v Bavone (1976) 135 CLR 110 at 118-119 the bases upon which the formation of an opinion could be successfully challenged. In Pestell Menzies J said:

"If the so called opinion could not be justified on any reasonable ground, then, the requisite opinion is lacking. There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible - it is right.

...

It is sufficient if the opinion expressed is one reasonably open to a council. Whether it is sound or not is not a question for decision by a Court."

In Buck v Bavone Gibbs J relevantly said :

"Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it is failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived it."

At 184E Spigelman CJ, by reference to the particular opinion which might be formed by the Conduct Division pursuant to s28(1)(a) of the Act, said:

"In this case, the statute imposes a very low threshold for the formation of the "opinion". It need only be that parliament could consider removal. Not that it should remove."

As with Bruce v Cole , the issue in this case was the capacity of the plaintiff to perform his obligations as a judicial officer. The ultimate findings of fact by the Conduct Division were:

"425. We are of the view that if Magistrate Maloney continues as a magistrate there is a very real risk that he will suffer hypomanic attacks or other mood changes which will result in events such as those reflected in the complaints we have considered.

426. We consider that the likelihood of such attacks or changes taken together with their probable consequences constitute an unacceptable risk which would have to be taken for Magistrate Maloney to continue as a magistrate.

427. We find that Magistrate Maloney is and will remain incapacitated for the performance of the office of magistrate. We are of the opinion that that incapacity could justify parliamentary consideration of the removal of Magistrate Maloney from office on the ground of proved incapacity."

At 187E Spigelman CJ said of such findings:

"If it was not open to the Conduct Division to make

that finding then, in my view, the statutory "opinion" which the Division formed" could not reasonably have been reached", to adopt the words of Gibbs J in Buck v Bavone (at 199), and the opinion was not "justifiable" to adopt the word used by Menzies J in Parramatta City Council v Pestell (at 323). I have already indicated that I accept the proposition, explicit in Mr Mahoney's reasons and implicit in the report, that if his Honour was no longer incapable of discharging his duties as at the date of the report, then no reasonable decision-maker could form the opinion that the matters "could justify parliamentary consideration of (his) removal".

Further guidance was provided by Spigelman CJ as to the function of this Court at 189D:

"In my opinion, at common law, a decision-maker who acts without probative evidence - to which conduct the word "perversely" has appropriately been attached - does not make a valid

decision. It is the equivalent of acting without evidence.

I accept that a finding of primary fact by the Conduct Division will be vitiated if there was no probative evidence to support it. Similarly an inference of fact is vitiated if it is not open on the primary facts properly so found. In this case the finding of continued incapacity was an inference.

There is also a statutory context to the Division's fact finding. The statutory opinion is to the effect that "the matter could justify parliamentary consideration of the removal of the judicial officer". Such "parliamentary consideration" of removal is now governed by s 53(2) of the Constitution Act which identifies the contents of an address as "seeking removal on the ground of proved misbehaviour or incapacity". The use of the word "proved" in

s 53(2) establishes that a Conduct Division may only form its opinion on the basis of probative evidence.

The fact that the statutory opinion relates to a process in which "proved incapacity" must be established requires a logical process of reasoning to draw an inference. There is a statutory standard by which the fact finding of the Conduct Division must be measured."

That last observation by Spigelman CJ is important in this case. His Honour was not saying that the statutory opinion must be expressed in terms of "proved incapacity" but that the formation of the statutory opinion is part of a process in which "proved incapacity" must ultimately be established if removal is to take place.

As was appreciated in argument before the Court, there is some tension between the "very low threshold for the formation of the "opinion"" by the Conduct Division under the statute and the requirement that the Conduct Division be guided by the "gravity of the consequences flowing from" its finding so as to apply the Briginshaw test to the formation of the statutory opinion ( Bruce v Cole 190A).

Further guidance was provided by Spigelman CJ at 190E:

"In this case the formation of the opinion is one of the essential pre-conditions for the dismissal of a judge of the Supreme Court of New South Wales. The gravity of the consequences for the individual judge would be sufficient to indicate that any decision-maker of fact would be restrained in forming the opinion, in accordance with the approach as set out by Sir Owen Dixon. This is reinforced by the weight which must be attributed to the public interest that is served by ensuring that the step of removal is only taken in the clearest case."

The plaintiff sought to reconcile that apparent tension by submitting that when the Conduct Division was considering the future, the likelihood of the occurrence of non-judicial behaviour had to be established on the balance of probabilities. This, it was submitted, was the way in which the Briginshaw standard could be reconciled with the very low threshold for the formation of the "opinion".

The Attorney-General accepted the existence of a tension between the two concepts but rejected the plaintiff's approach. He submitted that the plaintiff's approach ignored the "very low threshold for the formation of the "opinion"". The Attorney sought to reconcile the apparent tension by acknowledging the existence of a very low threshold but accepting that those matters necessary to establish that very low threshold had to be clearly established. In other words, if the report set out logically and with the clarity the basis upon which the Conduct Division drew the inference that the plaintiff's incapacity remained an extant condition and that basis was available on the evidence, the Briginshaw standard was satisfied.

I prefer the approach of the Attorney-General on this issue. I am not persuaded that insofar as the future is concerned, the application of the Briginshaw standard to the establishment of the "very low threshold for the formation of the "opinion"" requires that the likelihood of a hypomanic episode occurring in the future and it not being recognised for some time, must be established on the balance of probabilities. The formation of an opinion by the Conduct Division that a real risk of such an event happening in the future is sufficient provided there was a proper evidentiary basis for its formation.

The approach put forward by the Attorney-General focuses upon the statutory test, i.e. the formation of an opinion but has due regard to the standard of the evidence necessary to base that opinion. There has to be evidence available which logically leads to that opinion. The approach of the plaintiff focuses upon the standard which the evidence must reach and in doing so loses sight of the express statutory requirement, i.e. that the opinion need only be that Parliament "could consider" removal.

The Attorney's approach gives appropriate weight to the use of the word "could" in s28(1)(a) of the Act. It is in line with the guidance provided by Bruce v Cole to which reference has already been made and it is consistent with the further observations of Spigelman CJ at 202A:

"In accordance with the strict legal tests applied in this area of law, there was before the Division probative material capable of supporting the conclusion that his Honour's incapacity continued after his medical condition had been alleviated. I have concluded that this is so even on the Briginshaw test, appropriate to the gravity of the consequences which may flow from the formation of the statutory opinion. There was probative material before it to ground such a conclusion and accordingly to infer that incapacity continues.

Further assessment of the strength of the evidence - which I have found to reach the relevant standard of being capable of supporting the conclusion drawn by the Conduct Division - is a matter for parliament.

...

So here, the unconditional form of the opinion should not obscure the conditional nature of the opinion which the Conduct Division formed."

The above is sufficient to deal with the primary basis for this application. There were, however, other challenges to the opinion formed by the Conduct Division which were specifically directed to findings which, it was asserted, were not open on the evidence.

The plaintiff submitted that the Conduct Division failed to take into account a relevant consideration by not considering the reference evidence from senior counsel and Judge Syme and by not considering the fact that the plaintiff had worked for 10 months as a magistrate while under treatment without any complaint or suggestion of the recurrence of symptoms.

These submissions have not been made out. In the report at para 260 the Conduct Division appropriately summarised the effect of the reference evidence. It indicated that in the past, despite the complaints and the undiagnosed bipolar 2 condition to the observation of the persons who provided the references the plaintiff effectively and competently carried out his duties as a magistrate. Not only did the Conduct Division have regard to the references but its finding in relation to them was open.

In relation to the second matter, it was common ground before the Conduct Division that since August 2010 the plaintiff had been working as a magistrate without complaint and without any recurrence of symptoms. That was never an issue in the proceedings. It is implicit in the reasoning of the Conduct Division that they accepted that this was the situation.

The plaintiff's analysis of the Conduct Division's reasoning does not do justice to its approach. The Conduct Division's reasoning was based on unanimous medical evidence that the plaintiff had a lifelong condition requiring constant medication, regular consultation and monitoring which had, and could in the future, express itself in episodic outbursts of hypomanic or depressive behaviour.

The Conduct Division had regard to the medical evidence that it was the nature of the bipolar 2 condition that during a hypomanic episode a person's insight could be affected to such an extent that the person would not recognise the onset of the episode. The failure to recognise the episode might lead to a failure to comply with the treatment regime and even where the onset of such an episode was recognised there might be some delay between the onset of the episode and its recognition. This was referred to in the evidence as the "gap" between the onset of such an episode and treatment being received.

The evidence of Dr Nielssen, with which the other two doctors did not disagree was that on balance, the plaintiff would be the subject of at least one further hypomanic episode during his working career as a magistrate. If not detected immediately so that a gap between recognition and treatment occurred, this could lead to behaviour which was unjudicial. Such an event was likely to occur even if he fully maintained his treatment regime.

The finding in para 396 of the report that the plaintiff had shown considerable capacity for denial, self-justification and self-deception was challenged as having no evidentiary basis. I do not agree. I have set out in the factual summary some of the evidence relating to the screen saver issue and the facial gesture made at the Prince of Wales Hospital. That evidence was given at a time when the plaintiff was functioning appropriately as a magistrate and was receiving treatment. The Conduct Division rejected aspects of his evidence on those issues, not solely on the basis of an imperfect recollection on his part. The findings as to denial, self-justification and self-deception were not about medical issues but were demeanour based findings which it was open for the Conduct Division to make having observed the plaintiff give his evidence.

The Conduct Division's finding that under the influence of a hypomanic episode and because of the character traits found in para 396 of the report, the plaintiff might give up his regime of treatment was criticised on the basis that this matter was not put to the plaintiff, nor was it put to the doctors. Reliance was placed on the oft-quoted passage in Allied Pastoral Holdings Pty Limited v Commissioner of Taxation (1983) 1 NSWLR 1 at 22F-23A and a failure to apply the first rule of Browne v Dunn (1894) 6R 67.

That submission misunderstands the nature of the finding. The finding does not relate to any fault on the part of the plaintiff. It does not challenge the genuineness of the plaintiff's evidence of his firm intention to adhere to the prescribed regime of medical treatment. What it has regard to is the insidious nature of the condition, in particular when a hypomanic episode occurs so as to give the sufferer a feeling of well-being which he or she may not recognise as the onset of such an episode.

It is also incorrect for the plaintiff to submit that the effect of the Conduct Division's opinion is that a judicial officer suffering from a bipolar 2 condition will always be incapacitated for the holding of that office. As the medical opinions make clear, and as paras 396 and 404 of the report confirm, the Conduct Division's opinion was formed on the basis of their consideration of the plaintiff's particular circumstances and not on some general assessment of the condition as a whole.

The plaintiff's submission comparing the way in which persons in other professions, in particular the medical profession, are able to function effectively even though they suffer from a bipolar 2 condition highlights a problem in some of the plaintiff's submissions. These were the submissions that there was a lack of evidence to substantiate the Conduct Division's findings. The plaintiff's submissions focused almost entirely upon the medical evidence. They did not take account of that evidence in the context of how a judicial officer functions.

The medical evidence is replete with examples of the controls imposed by the Medical Board on doctors who have a bipolar 2 condition. The psychiatrists were able to speak with authority about how effective that system was since they were familiar with the functions of doctors. As the Conduct Division pointed out, it is inherent in the judicial function that the sort of supervisory constraints which the evidence identified as appropriate to those in the medical profession with a bipolar 2 condition, could not be applied to judicial officers. The principle of judicial independence would simply not allow it. Most particularly a performance assessment and oversight by other medical practitioners would not be possible in the case of a judicial officer. It was accepted by the plaintiff that because of its composition the Conduct Division was able to rely upon its own experience concerning the work of judicial officers in reaching its conclusions as to the inappropriateness of some of the control mechanisms identified by the doctors.

The Conduct Division's rejection of the plaintiff's offer to communicate with his head of jurisdiction on a regular basis as to what steps he was taking to ensure his capacity to continue as a judicial officer does not give rise to an error of law. The sort of undertakings which the plaintiff identified as supporting this submission were quite different to those which would be necessary to obviate the real risk of unjudicial behaviour which the Conduct Division found to exist. An undertaking not to engage in loquaciousness etc (the 1999 undertaking) or to provide judgments on time (Justice Bruce) are very different to a commitment to work under supervision by another judicial officer, the terms of which were never identified and which of its nature seems to be inconsistent with judicial independence.

The Conduct Division made a finding to that effect in paras 431 and 432 of the report:

"431. Mr Boulten did, however, lead evidence from Magistrate Maloney as to his willingness to take mood stabilising drugs if prescribed by Dr Nielssen something which had not yet occurred, to submit to blood tests and to authorise his doctors to communicate with the head of jurisdiction on a regular basis. Mr Boulten also established from Dr Phillips and Dr O'Dea their willingness to assist as psychiatric observers.

432. In the absence of a submission on the point, we think it sufficient to say that we do not consider that any practical scheme, consistent with the principles of judicial independence, could be devised that could properly be made the subject of such a recommendation."

The final question which I wish to address is the issue raised in oral submissions that even if it were sufficient for the formation of the necessary opinion for the Conduct Division to find the existence of a "real risk" it was not open to the Conduct Division to make such a finding on the evidence available to it. I have already indicated that the findings at paras 396 and 404 did not depend only upon the medical evidence, but upon the observations of the members of the Conduct Division. Otherwise the analysis and discussion at paras 386 - 427 of the report set out a more than adequate evidentiary basis by reference to the medical evidence and the Conduct Division's own knowledge of the functions of a judicial officer for the finding of the existence of a real risk.

Conclusion

As was set out clearly by Spigelman CJ in Bruce v Cole at 166D:

"... These proceedings are not in the nature of an appeal. Nor do they call for a review by the Court of the factual material before the Conduct Division. The Court is not called upon to decide whether the complaints concerning Justice Bruce were substantiated. Nor is it for this Court to decide whether the matter considered by the Conduct Division could justify parliamentary consideration of the removal of Justice Bruce."

This case is restricted purely to issues of law arising under administrative law principles. For the reasons set out above, I am not satisfied that the errors of law identified by the plaintiff have been made out. Accordingly, I dismiss the summons and order the plaintiff to pay the Attorney-General's costs of these proceedings.

**********

Decision last updated: 24 May 2011

Medium Neutral Citation:	Maloney v The Honourable Michael Campbell QC & Ors [2011] NSWSC 470
Hearing dates:	18 May 2011
Decision date:	24 May 2011
Jurisdiction:	Common Law - Administrative Law
Before:	HOEBEN J
Decision:	Summons dismissed. Plaintiff to pay the Attorney-General's costs of these proceedings
Catchwords:	COURTS AND JUDGES - removal of Magistrate - report of Conduct Division of Judicial Commission of NSW - formation of opinion by Conduct Division that Parliament could consider removal on ground of proved incapacity - judicial review of administrative decision - grounds reviewed. ADMINISTRATIVE LAW - judicial review at Common Law - statutory duty to form opinion - opinion that Parliament could remove judicial officer for incapacity - limited grounds of review - did Conduct Division apply correct statutory test - whether consideration of irrelevant matter - whether refusal to consider relevant matter - no error of Conduct Division established.
Legislation Cited:	Constitution Act 1902 (NSW) Judicial Officers Act 1986 (NSW)
Cases Cited:	Allied Pastoral Holdings Pty Limited v Commissioner of Taxation (1983) 1 NSWLR 1 Briginshaw v Briginshaw (1938) 60 CLR 336 Bruce v Cole (1998) 45 NSWLR 163 Buck v Bavone (1976) 135 CLR 110 at 118-119 Browne v Dunn (1894) 6R 67 Parramatta City Council v Pestell (1972) 128 CLR 305 at 323 The Honourable Justice Bruce v The Honourable TRH Cole QC RFD (unreported) NSW Court of Appeal, 26 May 1998
Category:	Principal judgment
Parties:	Brian Vincent Maloney - Plaintiff The Honourable Michael Campbell QC, a member of the Judicial Commission of New South Wales - First Defendant Deputy Chief Magistrate, Jane Mottley, a member of the Judicial Commission of New South Wales - Second Defendant Martha Jabour, a member of the Judicial Commission of New South Wales - Third Defendant The Judicial Commission of New South Wales - Fourth Defendant Attorney General of New South Wales - Fifth Defendant Chief Magistrate Graeme Henson - Sixth Defendant
Representation:	Counsel Mr J Gleeson SC/Mr J Sheller - Plaintiff Mr J Gormly SC/Ms K Edwards - Defendants Solicitors Greg Walsh & Co - Plaintiff IV Knight, Crown Solicitor - Defendants
File Number(s):	2011/00160702