AB v Judicial Commission of New South Wales (Conduct Division) [2018] NSWCA 264

AB v Judicial Commission of New South Wales (Conduct Division) [2018] NSWCA 264

The Conduct Division did not misconstrue s 24(2) of the Judicial Officers Act 1986 (NSW): a hearing under s 24 concerns the conduct of proceedings and access to them, not later public availability of transcript or documents, and the public/private determination must operate prospectively for practical effect. The Conduct Division was entitled to treat open justice as a relevant consideration while recognising that it was not a court. The Guidelines under s 10 did not create mandatory legal obligations, and in any event the challenged criteria were considered. No ground of jurisdictional error or other reviewable error was established, so the summons was dismissed.

Jurisdiction
Australia
Judgment Date
09 November 2018
Procedural Posture
Judicial Review / Summons Seeking Judicial Review of the Conduct Division's Decision to Hold a Hearing in Public
Outcome
Summons dismissed.
Legal Topics
['conduct Division Hearings' 'public or Private Hearings' 'open Justice' 'guidelines for Examination of Complaints' 'jurisdictional Error' 'meaning of Hearing']
['administrative Law' 'judicial Review' 'judicial Officers' 'statutory Interpretation'] ['conduct Division Hearings' 'public or Private Hearings' 'open Justice' 'guidelines for Examination of Complaints' 'jurisdictional Error' 'meaning of Hearing']

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Procedural Posture

Judicial Review / Summons Seeking Judicial Review of the Conduct Division's Decision to Hold a Hearing in Public

Legal Issues

  1. 1 ['Whether the Conduct Division misconstrued the meaning of "hearing" in s 24(2) of the Judicial Officers Act 1986 (NSW) by treating the power as prospective and distinct from publication of records or transcript.' 'Whether the Conduct Division incorrectly applied the principle of open justice to its function.' 'Whether criteria in Guidelines formulated under s 10 of the Judicial Officers Act 1986 (NSW) created mandatory legal obligations or mandatory considerations.' 'Whether the Conduct Division failed to consider relevant criteria concerning public interest, suspected mental impairment, personal safety and public confidence in the judiciary.' 'Whether any error amounted to jurisdictional error warranting relief.']

Ratio Decidendi

The Conduct Division did not misconstrue s 24(2) of the Judicial Officers Act 1986 (NSW): a hearing under s 24 concerns the conduct of proceedings and access to them, not later public availability of transcript or documents, and the public/private determination must operate prospectively for practical effect. The Conduct Division was entitled to treat open justice as a relevant consideration while recognising that it was not a court. The Guidelines under s 10 did not create mandatory legal obligations, and in any event the challenged criteria were considered. No ground of jurisdictional error or other reviewable error was established, so the summons was dismissed.

Court Disposition

Summons dismissed.

Orders

  • ['Dismiss the summons seeking judicial review of the decision of the Conduct Division to hold a hearing in public.' "Order that the applicant pay the Attorney's costs of the proceedings in this Court."]