Scanlon v Director-General, Department of the Arts, Sport and Recreation

[2006] NSWSC 785

Reported Decision: 66 NSWLR 292

New South Wales

Supreme Court

CITATION:	Scanlon v Director-General, Department of the Arts, Sport and Recreation [2006] NSWSC 785
HEARING DATE(S):	21 July 2006
JUDGMENT DATE :	8 August 2006
JURISDICTION:	Civil
JUDGMENT OF:	McClellan CJatCL
CATCHWORDS:	ADMINISTRATIVE LAW – immunity of judicial officers - whether Principal Registrar of the Licensing Court attracts common law immunity when exercising jurisdiction of Licensing Court – whether Principal Registrar attracts immunity under Judicial Officers Act 1986 – whether immunities extend to disciplinary processes under the Public Sector Employment and Management Act 2002.
LEGISLATION CITED:	Public Sector Employment and Management Act 2002 Public Sector Management Act 1988 Public Service Act 1902 (NSW) Public Service Act 1979 Judicial Officers Act 1986 Justices Legislation Repeal and Amendment Act 2001 Interpretation Act 1987 Constitution Act 1902 Liquor Act 1982 Liquor Regulation 1982 Liquor Regulation 1996
CASES CITED:	Allan v New South Wales [2001] NSWSC 780 Goodwin v Phillips (1908) 7 CLR 1 Re East: ex parte Nguyen (1998) 196 CLR 354 Smith v The Queen (1994) 181 CLR 228 Wentworth v Wentworth (2000) 52 NSWLR 602 Yeldham v Rajski (1989) 18 NSWLR 48
PARTIES:	Peter John Scanlon (Pltf) Director-General, Department of the Arts, Sport and Recreation (Def)
FILE NUMBER(S):	SC 30026/06
COUNSEL:	S J Gageler SC/R I Bellamy (Pltf) N Perram/F Salama (Def)
SOLICITORS:	Robinson Legal (Pltf) Crown Solicitor (Def)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LIST

McCLELLAN CJ at CL

TUESDAY 8 AUGUST 2006

30026/2006 SCANLON v DIRECTOR-GENERAL, DEPARTMENT OF THE ARTS, SPORT AND RECREATION

JUDGMENT

1 HIS HONOUR: The plaintiff was the Principal Registrar of the Licensing Court of New South Wales. In October 2005, he was stood aside from that position whilst a disciplinary investigation was carried out for the purposes of the Public Sector Employment and Management Act 2002. On 23 February 2005, a largely negative investigation report by Mr John Heagney was furnished to the defendant. Mr Heagney had conducted, as the defendant’s delegate, an investigation into some fifty-three allegations against the plaintiff. The Director-General has not yet acted upon the report and will not do so until the determination of these proceedings.

2 Most of the allegations investigated by Mr Heagney involve the work of the plaintiff whilst performing his functions as the Principal Registrar of the Licensing Court. Section 44C of the Judicial Officers Act 1986 provides:

“A registrar, an associate Judge of the Supreme Court, an assessor of the Land and Environment Court, a Commissioner of the Compensation Court, an authorised justice, an authorised officer (within the meaning of the Criminal Procedure Act 1986) or any other officer of a court has, when performing the duties of a judicial officer (including ministerial duties), the same protection and immunity as the judicial officer has in the performance of those duties.”

3 The plaintiff contends that the immunity extended by this provision exempts him from investigation under the provisions of the Public Sector Employment and Management Act 2002. The defendant denies this.

Facts and legislative background

4 The plaintiff was appointed to the New South Wales public service on 5 February 1968 under the provisions of the then Public Service Act 1902 (NSW) as a clerk in the petty sessions branch of the department of the Attorney-General. In the following years he worked extensively in that department in positions including those of coroner and chamber magistrate. On 12 December 1990, the plaintiff was appointed to the position of Principal Registrar of the Licensing Court of New South Wales. Although the plaintiff was employed under the Public Service Act 1902, it is common ground that the effect of a series of statutes is that he is taken to be employed under the provisions of the Public Sector Employment and Management Act 2002.

5 The Licensing Court of New South Wales (“the Court”) was established as a court of record by s 7 of the Liquor Act 1982. It is comprised of licensing magistrates who are appointed under s 8 or by magistrates acting under delegation from a licensing magistrate: s 9. A licensing magistrate holds office for 7 years (s 8(3)(a)) and is a “judicial officer” within the meaning of s 3 of the Judicial Officers Act 1986 and s 52(1)(f) of the Constitution Act 1902. The Court has both original jurisdiction (s 9) and appellate jurisdiction (s 10). The appellate jurisdiction is exercised by three or more licensing magistrates or two licensing magistrates and a magistrate: s 10. The Court is presided over by a Chairperson and a Deputy Chairperson: s 10(1). Section 17 provides for the position of registrars and a Principal Registrar in these terms:

“(1) The Governor may, under and subject to the Public Service Act 1979 , appoint a Principal Registrar and a registrar of the court for each prescribed place other than Sydney.
(2) Until some other person is appointed as registrar of the court for a prescribed place, the registrar of the court for the prescribed place is the person for the time being holding, or discharging the functions of, the office of registrar of the Local Court at the prescribed place or, if there is no such person, at another place specified by the Minister instead of the prescribed place, by order published in the Gazette.
(3) The Principal Registrar is the registrar of the court at Sydney.
(4) The regulations may provide for the exercise by the Principal Registrar of the jurisdiction of the court in relation to a matter to which there has been no objection.
(5) A reference in this Act to the court includes, if the jurisdiction of the court is exercised by a registrar in accordance with this Act or the regulations, a reference to the registrar, except as otherwise provided by this Act.
(6) If a registrar grants a licence or exercises any other function of the court in accordance with this Act or the regulations, the registrar may impose any conditions that the court could impose in those circumstances, except as otherwise provided by this Act.”

6 The reference to the Public Service Act 1979 was, by the time of the plaintiff’s appointment in 1990, required to be read as a reference to the Public Sector Management Act 1988. The plaintiff’s appointment as Principal Registrar meant that he was the registrar sitting at Sydney. Subsection (4) provided for the making of regulations allowing the jurisdiction of the Court to be exercised by the Principal Registrar in cases in which there was “no objection”. “Objections” to applications for various types of licence are provided for in Division 5 of Part 3. The original Liquor Regulation 1982 did not provide for the Principal Registrar to exercise the jurisdiction of the Court. That Regulation was replaced by the Liquor Regulation 1996 which also did not contain such a conferral. However, on 30 June 2000 the Liquor Regulation 1996 was amended by the insertion of a new clause 81A in the following terms:

“81A Matters that may be dealt with by Principal Registrar (section 17 (4) of the Act)
For the purposes of section 17 (4) of the Act, the Principal Registrar may exercise the jurisdiction of the court in relation to the following matters, being matters to which there has been no objection:
(a) the jurisdiction of the court under section 32 of the Act with respect to an application to vary the trading hours for licensed premises to which an on-licence (restaurant) relates,
(b) the jurisdiction of the court under section 33 (b) of the Act with respect to an application for an order that fixes the trading hours in respect of licensed premises to which an on-licence (theatre) relates,
(c) the jurisdiction of the court under section 34 of the Act with respect to an application for an order that fixes the trading hours in respect of licensed premises to which an on-licence (university) relates,
(d) the jurisdiction of the court under section 35A of the Act with respect to an application for a variation of the trading hours for licensed premises to which an on-licence (vessel) relates,
(e) the jurisdiction of the court under section 51 of the Act with respect to an application for a permanent on-licence (function),
(f) the jurisdiction of the court under section 61 of the Act with respect to an application for the transfer of a licence, including the jurisdiction of the court under that section to make a provisional grant of the application, but only if:
(i) the proposed transferee has completed a course of training approved by the Board that promotes the responsible sale, supply and service of liquor, and
(ii) the proposed transferee has completed any course of training or instruction required by or under the Act or the court has determined that the proposed transferee is not required to complete such a course of training,
(g) the jurisdiction of the court to allow additional periods in which the provisional grant of an application for the transfer of a licence has effect (as referred to in section 61 (4) (b) of the Act),
(h) the jurisdiction of the court under section 69D of the Act with respect to an application for the approval of a person’s appointment as the manager of licensed premises, including the jurisdiction of the court under that section to grant a provisional approval.”

7 Apart from these provisions, three further matters relating to the power of registrars (and hence of the Principal Registrar) are relevant. Section 25(4) of the Liquor Act provides:

“The court may, on application, vary the trading hours to permit the sale or supply of liquor for consumption on the licensed premises on a special occasion on a stated date and, if there is no objection to the variation, the jurisdiction of the court under this subsection may be exercised by the registrar.”

8 Through the combined operation of s 14(1) and s 17(5) the Principal Registrar also has a power to adjourn applications he or she is otherwise seized of. Section 14(1) provides:

“The court may at any stage of proceedings adjourn the proceedings in an application or matter generally or to a specified time or place.”

9 Section 17(5) provides:

“A reference in this Act to the court includes, if the jurisdiction of the court is exercised by a registrar in accordance with this Act or the regulations, a reference to the registrar, except as otherwise provided by this Act.”

10 Finally, s 111B(3)(a) expressly confers on the Principal Registrar the power to deal with an unopposed application for a “minors functions authority” (that is an authority permitting minors to be on parts of licensed premises at certain times).

11 It follows that the Principal Registrar can exercise the power of the Court, in relation to unopposed applications, under the following provisions: ss 14(1), 25(4), 32, 33(b), 34, 35A, 51, 61 and 111B(3)(a). Section 12(6)(a) provides that the business of the Court may be conducted in the absence of the public “in the case of an application to which no objection has been taken” so that each of the unopposed applications which the Principal Registrar may deal with may be dealt with in private.

12 On 14 October 2005, the Director-General of the Department received a protected disclosure alleging that the plaintiff had dealt with certain applications to the Court in a way which may have constituted corrupt conduct or may have been in breach of the Department’s Code of Conduct. On 26 October 2005, the Director-General retained Mr Heagney to undertake an investigation and prepare an investigation report into the allegations. On the same day he notified the plaintiff of the allegations. The process which was initiated is described as a disciplinary process and is provided by Part 2.7 Division 2 of the Public Sector Employment and Management Act 2002 which is headed “Dealing with misconduct”. Section 46(1)-(3) provides:

“(1) If an allegation is made to the appropriate Department Head that an officer may have engaged in any misconduct, the appropriate Department Head may:
(a) decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, or
(b) decide that it is appropriate to take remedial action with respect to the officer.
(2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the appropriate Department Head may, if the Department Head is of the opinion that the officer has engaged in any misconduct, decide to take disciplinary action with respect to the officer.
(3) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking.”

13 “Procedural guidelines” are defined in s 44(1):

“(1) The Director of Public Employment may, from time to time, issue guidelines for the purposes of:
(a) dealing with allegations of misconduct as a disciplinary matter, and
(b) the taking of disciplinary action with respect to officers under this Division.”

14 Guidelines under s 44(1) have been produced. Item 9 of those Guidelines requires the disciplinary process to be conducted in 4 stages:

“(1) Initial Determination of an appropriate course of action regarding an allegation of misconduct;
(2) Investigation
(3) Initial Decision; and
(4) Implementation of Final Decision.”

15 By item 11 of the Guidelines, the Departmental Head is required to appoint a suitably qualified person to prepare an investigation report. Mr Heagney’s investigation and subsequent report occurred under this regime. The report was delivered by Mr Heagney to the Director-General in February 2006. The report makes a number of findings of misconduct by the plaintiff and finds a number of allegations not proved. On 23 February 2006, the Director-General wrote to the plaintiff enclosing the report and seeking his submissions on them. Before making his submissions, the plaintiff commenced these proceedings.

16 The plaintiff now contends that the matters investigated in allegations 1-5 and 8-48 of the report were beyond jurisdiction because of an immunity said to be associated with his position as Principal Registrar. The allegations and the report’s conclusions have been grouped by the defendant into five categories. This categorisation is appropriate for present purposes:

I. Allegations that “temporary on-licences (function)” were inappropriately granted by him under s 51 of the Liquor Act : Allegations 1-3, 9-18.

II. Allegations that terms of “on-licences (function)” were varied by altering the dates on which they could be carried out. No power exists under the Liquor Act to perform this function : Allegations 4-5.

III. An allegation that a matter was improperly adjourned (the power of adjournment being inferentially the powers in s 14(1) and s 17(5)): Allegation 8.

IV. Allegations that applications for variations in trading hours were acceded to under s 32 or s 25(4) which should not have been: Allegations 19-30.

V. Allegations that a minors functions authority was issued under s 111B(3)(a) which should not have been: Allegations 31-48.

The plaintiff’s argument

17 Division 8A of the Judicial Officers Act 1986 consists of ss 44A-44C which are as follows:

“44A.
The protection and immunity of a Judge of the Supreme Court (or a Judge having the same status as a Judge of the Supreme Court) performing duties as such a Judge extends to the Judge when performing ministerial duties as such a Judge.
44B
(1) A judicial officer has, in the performance of his or her duties as a judicial officer (including ministerial duties), the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge.
(2) This section does not apply to a Judge of the Supreme Court or to a Judge having the same status as a Judge of the Supreme Court.
44C.
A registrar, an associate Judge of the Supreme Court, an assessor of the Land and Environment Court, a Commissioner of the Compensation Court, an authorised justice, an authorised officer (within the meaning of the Criminal Procedure Act 1986) or any other officer of a court has, when performing the duties of a judicial officer (including ministerial duties), the same protection and immunity as the judicial officer has in the performance of those duties.”

18 “Judicial officer” is defined in s 3 to mean:

“(a) a Judge or associate Judge of the Supreme Court,
(b) a member (including a judicial member) of the Industrial Relations Commission,
(c) a Judge of the Land and Environment Court,
(d) a Judge of the District Court,
(f) a Magistrate, or
(g) the President of the Administrative Decisions Tribunal.”

19 In turn “Magistrate” is defined in the same provision to mean:

“a Children’s Magistrate, a licensing magistrate and an industrial magistrate.”

20 It is accepted that a Licensing Magistrate of the Court is a “judicial officer” but the Principal Registrar of the Court is not. However, it is submitted that that does not matter for the application of s 44C. It is submitted that the immunity conferred by this provision will be attracted where a registrar can be said to be “performing the duties of a judicial officer.” In this case, the plaintiff contends that he was exercising the jurisdiction of Court in relation to the relevant powers, that these powers were powers which could be exercised by a “judicial officer” (in this case, a licensing magistrate) and, hence, that s 44C operated to confer upon him the same immunity that a licensing magistrate would have had under s 44B had the acts done been performed by such a magistrate.

21 It is submitted that that immunity extends to investigation of complaints of “corrupt conduct” in the decision making process and that he is not amenable to the disciplinary process in the making of those decisions.

The problem

22 Sections 44A-44C were inserted into the Judicial Officers Act 1986 by item 230 to Schedule 2 to the Justices Legislation Repeal and Amendment Act 2001. These amendments took effect on 7 July 2003. The conduct the subject of the complaints ranges across the period 1997 to 2005. I do not think that s 44C operates to confer an immunity on the Plaintiff at times prior to its passage. Section 30(1) of the Interpretation Act 1987 provides:

“The amendment or repeal of an Act or statutory rule does not:
(a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or
(b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or
(d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty,
and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.”

23 The effect of s 30 is that s 44C had no operation prior to 7 July 2003 with the consequence that all of the conduct which relates to times anterior to that is not subject to the statutory immunity. However, that would not be an end of the matter. An immunity with similar content may have existed at common law. I accept that there is no rational justification for denying the immunity of judges to a registrar when performing a judicial function: see Wentworth v Wentworth (2000) 52 NSWLR 602 at 624 [58] per Fitzgerald JA. This view was applied by Newman AJ in Allan v New South Wales [2001] NSWSC 780 at [25]-[27] to strike out claims brought against a registrar of the Family Court, albeit in relation to a taxation.

24 It follows that, although s 44C was not in force immediately prior to 7 July 2003, nevertheless, there existed an immunity at common law whenever the Principal Registrar performed the duties of a judicial officer. The plaintiff’s contention is that the immunity extends to the process provided under Part 2.7 of the Public Sector Employment and Management Act 2002. The relevant question is whether the common law immunity of the plaintiff, or his statutory immunity under s 44C on and after 7 July 2003, mean that he cannot be subjected to the process set out in Part 2.7.

Resolution of the problem

25 The defendant accepts that the immunity of a judicial officer from suit includes an immunity from civil suit: ReEast: ex parte Nguyen (1998) 196 CLR 354. However, it is submitted, in my opinion correctly, that immunity is confined to the consequence, if any, of the exercise of the judicial function. Even if a judge was influenced to make a particular decision by a bribe, he or she could not be sued in damages for the corrupt decision, but would be amenable to prosecution under the criminal law for accepting a bribe and may be liable to be removed from office. Likewise a judge will not be liable for contempt, if in the course of reasons for judgment remarks are made which might otherwise be contemptuous: Yeldham v Rajski (1989) 18 NSWLR 48.

26 However, before a judge could be prosecuted for accepting a bribe the circumstances relating to the allegation including the nature of any decision made by the judge require investigation. The same would be true if removal from office was contemplated.

27 Part 9 of the Constitution Act 1902 provides in s 53 that:

“(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.
(4) This section extends to term appointments to a judicial office, but does not apply to the holder of the office at the expiry of such a term.
(5) This section extends to acting appointments to a judicial office, whether made with or without a specific term.”

28 “Judicial Officer” is defined in s 52 to mean the office of any of the following:

“(a) Chief Justice, President of the Court of Appeal, Judge of Appeal, Judge, Associate Judge or Master of the Supreme Court,
(b) Chief Judge, Deputy Chief Judge or Judge of the Industrial Court or member of the Industrial Relations Commission in Court Session,
(c) Chief Judge or Judge of the Land and Environment Court,
(d) Chief Judge or Judge of the District Court,
(e) Chief Judge or Judge of the Compensation Court,
(f) Chief Magistrate, Deputy Chief Magistrate or Magistrate of the Local Courts; Senior Children’s Magistrate or Children’s Magistrate of the Children’s Court; Chief Industrial Magistrate or Industrial Magistrate; Chairman, Deputy Chairman or Licensing Magistrate of the Licensing Court.”

29 These provisions make clear that a judicial officer may be removed from office or suspended. The Judicial Officers Act 1986 provides that a judicial officer may be subject to complaint, investigation, suspension and removal under Part 6 of that Act. Neither the common law nor s 44B prevent this.

30 Accordingly, the immunities conferred upon a registrar by the common law and by s 44C, could not extend to the processes which may be activated to remove or suspend such a person from office. If it were otherwise, then, although a judge of the Supreme Court may be investigated for misconduct and/or removed in the performance of his or her duties under Part 6 of the Judicial Officers Act 1986, a registrar, performing the same function, will not be amenable to any form of investigation or discipline. This would be surprising.

31 It is important to emphasise that the nature and purpose of the investigation relates to allegations of misconduct. The investigation is not for the purpose of determining the correctness or the quality of the decisions except in so far as these matters may be relevant to investigating the misconduct allegations.

32 Even if the plaintiff was correct that the common law immunity and/or s 44C could extend to protect a registrar from disciplinary action when exercising the duties of a judicial officer, the provisions of the Liquor Act 1982 and the Public Sector Employment and Management Act 2002 are such that any such immunity must be taken to be overridden or excluded. To the extent that the allegations are of misconduct the statute authorises investigation and appropriate action.

33 Section 17 of Liquor Act 1982 provides:

“(1) The Governor may, under and subject to the Public Service Act 1979 , appoint a Principal Registrar and a registrar of the court for each prescribed place other than Sydney.
(2) Until some other person is appointed as registrar of the court for a prescribed place, the registrar of the court for the prescribed place is the person for the time being holding, or discharging the functions of, the office of registrar of the Local Court at the prescribed place or, if there is no such person, at another place specified by the Minister instead of the prescribed place, by order published in the Gazette.
(3) The Principal Registrar is the registrar of the court at Sydney.
(4) The regulations may provide for the exercise by the Principal Registrar of the jurisdiction of the court in relation to a matter to which there has been no objection.
(5) A reference in this Act to the court includes, if the jurisdiction of the court is exercised by a registrar in accordance with this Act or the regulations, a reference to the registrar, except as otherwise provided by this Act.
(6) If a registrar grants a licence or exercises any other function of the court in accordance with this Act or the regulations, the registrar may impose any conditions that the court could impose in those circumstances, except as otherwise provided by this Act.”

34 The reference to the Public Service Act 1979 is relevantly a reference to the Public Sector Employment and Management Act 2002. Subsection (1) deals not only with the Act under which a Principal Registrar is appointed but expressly with the topic of which Act that appointment is to be “subject to”. At the same time subsection (4) deals with the possibility that the Principal Registrar may exercise some of the jurisdiction of the Court. There is no provision in s 17 of the Liquor Act 1982 or anywhere else in the Liquor Act providing for the removal from office of the Principal Registrar. Accordingly, unless his or her removal from office can be achieved under the provisions of the Public Sector Employment and Management Act 2002 there is no provision dealing with his or her removal from office at all.

35 In contrast to the position of the Principal Registrar, who is subject to the provisions of the Public Sector Employment and Management Act 2002, the position of the Licensing Magistrates is the opposite. Section 8(1) and (4) of the Liquor Act 1982 provide:

“(1) The Governor may:
(a) appoint as licensing magistrates not less than 3 persons each of whom is a Magistrate or a person eligible to be appointed as a Magistrate, and
(b) by the same or a different instrument, appoint one of those persons as Chairperson of the Licensing Court of New South Wales and another of them as Deputy Chairperson of the Licensing Court of New South Wales.
….
(4) The Public Service Act 1979 does not apply to or in respect of:
(a) the appointment of a licensing magistrate, or
(b) a licensing magistrate during his or her term of office as such,
but a licensing magistrate who, immediately before his or her appointment as a licensing magistrate, was a Magistrate does not, by reason of that appointment, cease to be a Magistrate and a licensing magistrate who, immediately before his or her appointment as a licensing magistrate, was not a Magistrate becomes, by virtue of that appointment, a Magistrate.”

36 Again, the reference to the Public Service Act 1979 is taken to be a reference to the Public Sector Employment and Management Act 2002. So too, just in case there was any doubt, s 4 of the Public Sector Employment and Management Act 2002 provides:

“This Act does not apply to any of the following positions or to any person holding such a position (except to the extent that a provision of this Act otherwise expressly provides):
(a) any position of a judicial officer within the meaning of the Judicial Officers Act 1986,
(b) any position of officer of either House of Parliament or any position under the separate control of the President or Speaker, or under their joint control.”

37 Section 4 of the Public Sector Employment and Management Act 2002 repeated the same exemption in s 4(1)(a) of the Public Sector Management Act 1988.

38 Accordingly, as the defendant points out the position is:

(a) s 17 of the Liquor Act 1982 provided for the appointment of the Principal Registrar under and “subject to” the current public service legislation, in this case, the Public Sector Employment and Management Act 2002.
(b) no provision of the Liquor Act 1982 provides for the removal of the Principal Registrar from office other than through the words in s 17(1) “subject to”. It follows that s 17 both provides for the appointment to office, and the removal from office, of the Principal Registrar and dictates that both processes are to happen under the prevailing public service legislation.
(c) at the same time, s 17(4) expressly contemplates that the Principal Registrar may exercise judicial duties. Despite this, s 17 affords the Principal Registrar no exemption from the Public Sector Employment and Management Act 2002.
(d) by contrast, both s 8 of the Liquor Act and s 4 of the Public Sector Employment and Management Act 2002 make plain that the appointment and removal of Licensing Magistrates is not subject to that Act.

39 It must follow that any common law immunity and s 44C cannot prevail against s 17(1). Although the Parliament gave consideration to which officials under the Liquor Act 1982 should be exempted from the operation of the public service legislation it decided that the Principal Registrar was not one of them.

40 Section 17 of the Liquor Act can be characterised as an earlier statute dealing with a specific subject matter and s 44C of the Judicial Officers Act can be characterised as a later general statute. Where the provisions of a later general statute come into conflict with the provisions of an earlier specific statute the earlier will prevail: see Goodwin v Phillips (1908) 7 CLR 1 at 14. In Smith v The Queen (1994) 181 CLR 228 at 348, Mason CJ, Dawson, Gaudron and McHugh JJ said:

“In our view, an opposite conclusion is dictated by the principle that where there is conflict between general and specific provisions, the specific provision prevails (generalia specialibus non derogant). That principle is based upon the presumed intention of Parliament and has, we think, a particular application where the conflict arises from different sections in the same Act. But even if, because s132 merely amends the Constitution Act 1975, the conflict is regarded as arising between two separate Acts, the principle is just as applicable and there is no reason why regard may not be had to the common origin of the conflict, namely, the Supreme Court Act 1986… it is but common sense that Parliament having before it two apparently conflicting sections at the same time cannot have intended the general provision to have deprived the specific provision of effect. It follows, in our view, that to the extent that there is any apparent conflict between s 14(3) of the Supreme Court Act 1986, which deals specifically with restrictions on appeals, and s 85(3) of the Constitution Act 1975, which deals generally with jurisdiction, the former must prevail.” (footnotes omitted)

41 Furthermore, to the extent that there existed a common law immunity prior to 7 July 2003 with the same content as s 44C, that common law immunity must give way to the specific provisions of s 17 of the Liquor Act 1982. Thus, even if the immunity extends as far as the Plaintiff contends, s 17 would exclude it.

Orders

42 I make the following orders:

1. Summons dismissed.
2. The plaintiff is to pay the defendant’s costs.