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

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

The plaintiff did not establish administrative law error. The Conduct Division applied the correct statutory test by forming an opinion under s28(1)(a) that the matter could justify parliamentary consideration of removal, and it was not required to find on the balance of probabilities that the plaintiff would suffer an untreated future hypomanic episode. Its opinion that a real risk of future incapacity existed was supported by probative psychiatric evidence, findings about the plaintiff's particular conduct and insight, and the Conduct Division's knowledge of the work and constraints of judicial office. The alleged failures to consider reference evidence, recent symptom-free work, and...

Jurisdiction
Australia
Judgment Date
24 May 2011
Procedural Posture
Common Law Administrative Law Judicial Review of Decision and Report of Conduct Division of the Judicial Commission of New South Wales / Final Determination of Amended Summons Seeking Declarations, Quashing and Remittal Relief
Outcome
Summons dismissed.
Legal Topics
['removal of Magistrate' 'conduct Division of Judicial Commission of New South Wales' 'proved Incapacity' 'formation of Statutory Opinion' 'irrelevant and Relevant Considerations' 'unreasonableness' 'judicial Independence']
['administrative Law' 'courts and Judges' 'judicial Review'] ['removal of Magistrate' 'conduct Division of Judicial Commission of New South Wales' 'proved Incapacity' 'formation of Statutory Opinion' 'irrelevant and Relevant Considerations' 'unreasonableness' 'judicial Independence']

Case Brief

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Procedural Posture

Common Law Administrative Law Judicial Review of Decision and Report of Conduct Division of the Judicial Commission of New South Wales / Final Determination of Amended Summons Seeking Declarations, Quashing and Remittal Relief

Legal Issues

  1. 1 ['Whether the Conduct Division applied the wrong statutory test in forming the opinion that the matter could justify parliamentary consideration of removal on the ground of incapacity.' "Whether the Conduct Division took irrelevant considerations into account by considering future risk arising from the plaintiff's bipolar 2 disorder." "Whether the Conduct Division failed to consider relevant matters, including reference evidence, the plaintiff's recent work without complaint, and possible supervision by the head of jurisdiction." "Whether the Conduct Division's findings, including findings about denial, self-justification, self-deception and risk of future hypomanic episodes, lacked probative evidence or were unreasonable." 'Whether the plaintiff established legal error sufficient for the Supreme Court to intervene on judicial review.']

Ratio Decidendi

The plaintiff did not establish administrative law error. The Conduct Division applied the correct statutory test by forming an opinion under s28(1)(a) that the matter could justify parliamentary consideration of removal, and it was not required to find on the balance of probabilities that the plaintiff would suffer an untreated future hypomanic episode. Its opinion that a real risk of future incapacity existed was supported by probative psychiatric evidence, findings about the plaintiff's particular conduct and insight, and the Conduct Division's knowledge of the work and constraints of judicial office. The alleged failures to consider reference evidence, recent symptom-free work, and...

Court Disposition

Summons dismissed.

Orders

  • ['Summons dismissed.' "Plaintiff to pay the Attorney-General's costs of these proceedings."]