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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2011] NSWSC 470
Decision Date: 24 May 2011

CaseChat Overview and Summary

The case of Maloney v The Honourable Michael Campbell QC involved a challenge to the decision of the Conduct Division of the Judicial Commission of New South Wales. The division had formed an opinion that the New South Wales Parliament could consider the removal of Michael Campbell QC, a magistrate, on the ground of proved incapacity. The plaintiff, Maloney, sought judicial review of the Conduct Division's decision, arguing that it was flawed. The legal issues before the court were whether the Conduct Division had applied the correct statutory test, and if it had considered irrelevant matters or refused to consider relevant matters.

The court examined the statutory duty of the Conduct Division to form an opinion on whether Parliament could consider removing a judicial officer for proved incapacity. It considered whether the Conduct Division had applied the correct statutory test and whether there had been any errors in considering relevant or irrelevant matters. The court concluded that the Conduct Division had applied the correct statutory test and had not made any errors in its consideration of the matter. The court found that the Conduct Division's opinion was not subject to judicial review and that the plaintiff's challenge was unsuccessful. Consequently, the court dismissed Maloney's application for judicial review.

The court's decision was based on the principle that the Conduct Division's opinion was a discretionary administrative decision that was not subject to judicial review unless there was a clear error in the application of the statutory test. The court found that the Conduct Division had applied the correct statutory test and had not considered any irrelevant matters or refused to consider any relevant matters. Therefore, the court dismissed Maloney's application for judicial review and upheld the Conduct Division's decision.

Orders