The Honourable Justice Vince Bruce v The Honourable Terence Cole and Ors Matter No Ca 40337/98 [1998] NSWSC 260 (12 June 1998)

Last Updated: 9 September 1998

THE HONOURABLE JUSTICE VINCE BRUCE

v THE HONOURABLE TERENCE COLE & ORS

CA 40337/98

12 June 1998

Spigelman CJ, Mason P, Priestley JA, Sheller JA, Powell JA

The Supreme Court of New South Wales Court of Appeal

JUDGMENT

SPIGELMAN CJ: The Honourable Justice Vince Bruce, the Plaintiff in these proceedings, is a judge of this Court. The first three named defendants constituted a Conduct Division of the Judicial Commission of New South Wales, appointed to examine certain complaints made to the Judicial Commission concerning the conduct of the Plaintiff. The Judicial Commission is also a Defendant. The Conduct Division and the Commission have not taken a substantive part in these proceedings. The contradictor has been the Attorney General for New South Wales.

Subsequent to the presentation of the Report of the Conduct Division, which is the subject of these proceedings, I assumed Office as Chief Justice of New South Wales and, accordingly, became President of the Judicial Commission. No objection was made to my participation in these proceedings. Further, as indicated at the hearing of an interlocutory application in these proceedings on 26 May 1998, all of the judges of the Court have varying degrees of association with the Plaintiff. The Court was constituted by the five most senior judges available at the time of the hearing. No objection was taken to the participation of any member of the Court.

At the start it must be emphasised that 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 to two issues of law.

These proceedings involve legislation of the highest constitutional significance for the rule of law in New South Wales. The independence of the judiciary is, to a very substantial degree, dependent upon the maintenance of a system in which the removal of a judicial officer from office is an absolutely extraordinary occurrence. For a period of almost three hundred years, from the passage of the Act of Settlement 1700, it has been accepted that judicial officers cannot be removed except by exceptional measures involving action by both the Executive and the Legislature.

Section 53 of the Constitution Act 1902 , now 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. Section 53, as so entrenched, reflects the central significance of judicial independence in our system of government.

Upon the adoption of the Constitution (Amendments) Act 1992 , s4 of the Judicial Officers Act, which was of similar effect, was repealed. That Act did not otherwise operate as an implied repeal of any part of the Judicial Officers Act. Rather, the earlier Act constituted "additional procedures and requirements to be complied with", within the meaning of s53(3) of the Constitution Act. (See s41(2) of the Judicial Officers Act)

Section 41 of the Judicial Officers Act, which I will set out fully below, provides that a judicial officer may not be removed from office unless the Conduct Division has presented a Report in which the Division expresses an opinion that the matter referred to in the Report could justify Parliamentary consideration of the removal of the judicial officer from office. This requirement introduces a restraint on removal from officer over and above the restraints in existence at the time of the passage of the Judicial Officers Act. It reinforces the principle of judicial independence.

Although the New South Wales Constitution does not embody a formal separation of powers, there is a significant restraint upon the ability of the Parliament of New South Wales to impinge on the independence of the judiciary. This restraint derives from The Commonwealth Constitution.

In Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, the High Court enunciated an incompatibility doctrine, directed to the matter in issue in that case, namely: Was the exercise of a specific non-judicial power compatible with the exercise by the State Court of the judicial power of the Commonwealth? The reasoning of the Court involved principles of broader application.

As McHugh J said:

"...it is a necessary implication of the Constitution's plan of an Australian judicial system with State Courts invested with federal jurisdiction, that no government can act in a way that might undermine public confidence in the impartial administration of the judicial function of State Courts". (118)

His Honour emphasised the centrality of independence of the judiciary and concluded:

"In the case of State Courts, this means they must be independent and appear to be independent of their own State's legislature and executive government as well as the federal legislature and government." (106)

Justice Gaudron's reasoning was to similar effect:

"...there is nothing anywhere in the Constitution to suggest that it permits of different grades or qualities of justice, depending on whether judicial power is exercised by State Courts or Federal Courts created by the Parliament." (103)

The reasoning in Kable, in my opinion, indicates that the legislative power of the State may not be used to fundamentally alter the independence of a Supreme Court judge, or the integrity of the State judicial system. No submission has been made that any part of the Judicial Officers Act 1986 or the Constitution Act 1902 , in their present form, has any such effect.

The operation of the statutory scheme can be summarised as follows:

(1) A complaint was made to the Judicial Commission concerning the "ability or behaviour" of Justice Bruce. (s15(1))

(2) In December 1997, the members of the Judicial Commission of New South Wales appointed a panel of three persons to constitute the "Conduct Division" for purposes of exercising the functions of a Division in relation to a complaint. (s22)

(3) The Conduct Division was constituted by two judicial officers, The Honourable Terence Roderick Hudson Cole QC RFD, and The Honourable Justice David Henry Lloyd and, as is permitted, one retired judicial officer, The Honourable Dennis Leslie Mahoney AO QC. (s22(2))

(4) The functions of the Conduct Division were then "to examine and to deal with complaints referred to it by the Commission". (s14)

(5) The Conduct Division had then to conduct an examination of the complaint. (s23)) It decided to conduct a hearing. (s24(2))

(6) The Commission had power to classify a complaint as "serious" in the following circumstances:

"If the grounds of the complaint, if substantiated, could, in its opinion, justify parliamentary consideration of the removal of the judicial officer complained about from office." (s30(1))

(7) After the complaint had been referred to it, the Conduct Division had power to reclassify a complaint. (s30(3)).

(8) In the course of dealing with a complaint, the Conduct Division had power to treat it as extending to other matters, including matters arising in the course of dealing with the initial complaint (s31(1)) and matters "which might constitute grounds for a complaint". (s31(2)).

(9) In a Report dated 14 April 1998, the Conduct Division decided to extend the original complaint to 27 additional matters. It also decided to reclassify the original complaint, as so extended, together with a further complaint that had been referred to it, as "serious" in the sense identified above.

(10) Pursuant to s30(4), the Conduct Division furnished a Report to the Commission setting out its reasons for reclassifying the complaint. This decision to reclassify the complaint as "serious" has not been challenged.

(11) A document entitled "Reasons of the Honourable D.L. Mahoney AO QC Re: The Honourable Justice Bruce" is dated 14 May 1998 ("Mr Mahoney's Reasons").

(12) On 15 May the Conduct Division completed a report entitled: "Report of the Conduct Division to the Governor Regarding Complaints against The Honourable Justice Vince Bruce" ("The Report"). (s29)

The validity of the Report has been challenged on two alternative grounds:

(1) Contrary to the requirements of the Act, the expression of opinion by the Division was not unanimous.

(2) The Report is liable to be set aside on a number of administrative law grounds and should be set aside.

The Construction Argument

The factual foundation for the first submission is made out: the Report was not a unanimous one. The Minutes of the Meeting of the Conduct Division of 13 May 1998 and 14 May 1998 were tendered in evidence. They make it plain that Mr Mahoney, before signing the Report, did not resile from the opinion he expressed in his Reasons. He, and the other members took the view that a majority report was "the Report of the Division" by reason of the provision to which I will refer below.

Accordingly, the "opinion" of the Division referred to in ss28, 29(2) and 41 of the Act, which sections are set out below, was not unanimous. The first submission of the Plaintiff is that the "opinion" referred to in each of these sections must be unanimous.

It will be necessary to refer to a number of sections of the Act. The key sections are as follows:

"13(1) There shall be a Conduct Division of the Commission.

(2) The Conduct Division shall have and may exercise the functions conferred or imposed on it by or under this or any other Act.

(3) The functions of the Conduct Division may be exercised by 3 persons in accordance with Part 6, and not otherwise.

(4) Schedule 3 has effect with respect to the procedure of the Conduct Division.

..................

15(1) Any person may complain to the Commission about a matter that concerns or may concern the ability or behaviour of a judicial officer.

(2) The Commission shall not deal with a complaint (otherwise than to summarily dismiss it under section 20) unless it appears to the Commission that:

(a) the matter, if substantiated, could justify parliamentary consideration of the removal of the judicial officer from office; or

(b) although the matter, if substantiated, might not justify parliamentary consideration of the removal of the judicial officer from office, the matter warrants further examination on the ground that the matter may affect or may have affected the performance of judicial or official duties by the officer.

(3) The Commission shall not deal with a complaint (otherwise than to summarily dismiss it under section 20) about:

(a) a matter arising before the appointment of the judicial officer to the judicial office then held; or

(b) a matter arising before the commencement of this Act,

unless it appears to the Commission that the matter, if substantiated, could justify parliamentary consideration of the removal of the officer from office.

(4) A complaint may be made in relation to a judicial officer's competence in performing judicial or office duties, so long as the Commission is satisfied as to the matters mentioned in subsection (2)(a) or (b).

(5) A complaint may be made in relation to a matter, and be dealt with, even though the matter is already or has been the subject of investigation or other action by the Commission or Conduct Division or by any other body or person.

(6) Without limiting the foregoing, a complaint may be made in relation to a matter, and be dealt with, even thought he matter constitutes or may constitute a criminal offence (whether or not dealt with, or being dealt with, by a court).

(7) The Commission or Conduct Division may adjourn consideration of any matter if it is being dealt with by a court or for any other appropriate reason.

........................

26 The Conduct Division shall dismiss a complaint to the extent that the Division is of the opinion that:

(a) the complaint should be dismissed on any of the grounds on which the Commission may summarily dismiss complaints; or

(b) the complaint has not been substantiated.

27 If the Conduct Division decides that a minor complaint is wholly or partly substantiated, it shall either so inform the judicial officer complained about or decide that no action need be taken.

28 If the Conduct Division decides that a serious complaint is wholly or partly substantiated, it may form an opinion that the matter could justify parliamentary consideration of the removal of the judicial officer complained about from office.

29(1) The Conduct Division shall, in relation to a serious complaint, present to the Governor a Report setting out the Division's conclusions.

(2) If the Conduct Division decides that a serious 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, the Report shall set out:

(a) the Division's findings of fact; and

(b) that opinion.

40(1) If:

(a) a complaint is made about a judicial officer or a Report is made by the Conduct Division setting out its opinion that a matter could justify parliamentary consideration of the removal of a judicial officer from office; or

(b) a judicial officer is:

(i) charged in New South Wales with an offence that is punishable by imprisonment for 12 months or upwards or charged elsewhere than in New South Wales with an offence that if committed in New South Wales would be an offence so punishable; or

(ii) convicted in New South Wales or elsewhere of such an offence,

the appropriate authority may suspend the officer.

(2) The appropriate authority may lift the suspension at any time.

(3) * * * *

......................

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."

There is a tension between subss(3) and (4) of s13. Sub-section 13(3) emphasises, by the addition of the words "and not otherwise", that the functions of a Conduct Division are to be exercised by three persons. However, subs(4) gives effect to Schedule 3 of the Act, which, in turn, provides in cl4:

"4 A decision supported by a majority of the votes cast at a meeting of the Conduct Division shall be the decision of the Division".

The tension should be resolved in favour of this express provision (See Project Blue Sky Inc v Australian Broadcasting Authority (1998) HCA par70).

The first submission of the Plaintiff, as originally put, requires the conclusion that the word "decision" in cl4 is to be understood in a strict sense, so that majority voting applies only to such functions of the Division as are identified by use of the word "decision". There are a number of sections in which the word "decides" appears. This submission would have the consequence that it is only in these particular respects that a majority decision is open to be made. The particular provisions are as follows:

(1) A decision to hold a hearing pursuant to s24(2).

(2) A decision that a complaint is "wholly or partially substantiated" under s27, s28 or s29(2).

(3) A decision to refer a complaint to another person under s35(1).

As the Lord Chancellor, Lord Halsbury said in Ex Parte County Council of Kent and Council of the Borough of Dover 1891 1QB 725 @ 728-9, "decision" is a popular word, not a technical or legal one. In the judicial context there under consideration, the word meant the expression of the opinion of the Court about how a matter is to be decided.

In the Judicial Officers Act, the "opinion" which it is said must be unanimous, is that mentioned in s28, 29(2) and 41. The significance of the "opinion" referred to in these sections cannot be overstated. It is one of only three steps for the removal of a judge:

(1) A report of the Conduct Division setting out the "opinion that the matter referred to in the report could justify parliamentary consideration of the removal of the judicial officer". (s41 Judicial Officers Act)

(2) An address from both Houses of Parliament. (s53(2)(d)) of the Constitution Act)

(3) Removal by the Governor on the advice of the Executive Council. (s53 of the Constitution Act, ss3(6) and s41 of the Judicial Officers Act)

The consequences of the removal of a judge are of such significance that it can be assumed that Parliament did not intend that the threshold would be easy of attainment. This is the most powerful argument in favour of the unanimity requirement for which the plaintiff contends.

Nevertheless the provision for a majority "decision" in cl4 of Schedule 3 is clear. The textual indications all suggest that the word "decision" is intended to encompass all forms of deliberative process of the Conduct Division for which the Act provides, including the formation of an "opinion".

First, in s28 and s29(2) the reference to a "decision" (which on the plaintiff's submission may be by majority) and the formation of an "opinion" (which on his submission must be unanimous) occur in the same sentence. There is no separation between the two, nor any language that indicates a different decision-making process is involved. It is, in my view, most unlikely that the legislature intended any such transformation sub silentio.

Furthermore, there is another reference to the formation of an "opinion" by the Conduct Division found in s34 which is in the following terms:

"34(1) If the Conduct Division is of the opinion that a judicial officer about whom a serious complaint has been made may be physically or mentally unfit to exercise efficiently the functions of a judicial office, the Division may request the officer to undergo such a medical examination as the Division specifies."

With respect to this preliminary step of requiring a medical examination, the plaintiff's submission requires that the opinion of the Division must be unanimous as to the question whether or not the Judicial Officer "may be physically or mentally unfit to exercise efficiently the functions of a judicial office". Where the consequence of this opinion is a requirement for a medical examination, it is doubtful that the legislature required unanimity.

Of particular significance is s26 which is set out above and which contains a reference to an "opinion". It indicates that the Conduct Division shall dismiss a complaint if it forms one or other of the opinions set out in (a) or (b). This includes an "opinion" that the complaint has not been substantiated.

The Plaintiff's submission, as first advanced, had the effect that the Conduct Division cannot dismiss a complaint on the grounds that "the complaint has not been substantiated" unless it is unanimous. However, it may by majority "decide" that a serious complaint is wholly or partially substantiated, for the purposes of ss27, 28 or 29. The Plaintiff's original submission would result in an absurd situation in a case where one member of the Division believes a complaint to be substantiated. This voice is enough to prevent the Division dismissing the complaint under s26(6). At the same time, there cannot, on the above assumption, be a majority "decision" that the complaint is substantiated under s27 or s29. The complaint would remain in limbo. For these reasons, no doubt, Mr Conti QC, who appeared for the Plaintiff, conceded that "opinion" in s26 could be a majority decision.

It is also necessary to note that the submissions made in this regard could have similar consequences for the operation of the Judicial Commission itself. Schedule 2 of the Act contains a set of procedures for the conduct of the Commission, parallel to those in Schedule 3 for the Conduct Division. Clause 5 of Schedule 2 provides that "a decision" of a majority at a meeting of the Commission, is the decision of the Commission.

There is direct reference to the formation of a "opinion by the Commission" in both s20 and s30.

Section 20 refers to summary dismissal of complaints:

"20(1) The Commission shall summarily dismiss the complaint if it is of the opinion that:

(a) the complaint is one that it is required not to deal with;

(b) the complaint is frivolous, vexatious or not in good faith;

(c) the subject-matter of the complaint is trivial;

(d) the matter complained about occurred at too remote a time to justify further consideration;

(e) in relation to the matter complained about, there is or was available a satisfactory means of redress or of dealing with the complaint or the subject-matter of the complaint;

(f) without limiting paragraph (e), the complaint relates to the exercise of a judicial or other function that is or was subject to adequate appeal or review rights;

(g) the person complained about is no longer a judicial officer; or

(h) having regard to all the circumstances of the case, further consideration of the complaint would be or is unnecessary or unjustifiable.

(2) In deciding whether or not to summarily dismiss a complaint, the Commission may have regard to such matters as it thinks fit."

Section 30 refers to the classification of complaints:

"30(1) An undismissed complaint shall be classified by the Commission as serious if the grounds of the complaint, if substantiated, could, in its opinion, justify parliamentary consideration of the removal of the judicial officer complained about from office.

(2) Any other undismissed complaint shall be classified by the Commission as minor."

The effect of the Plaintiff's original submissions in this case would be that the "opinion" of the Commission under either s20 and s30 must be unanimous. Nothing in the scope and purpose of the Act suggests this conclusion. Indeed the reference in s20(1) to the formation of an "opinion", which must lead to the dismissal of a complaint, is described in s20(2) as: "In deciding whether or not to summarily dismiss a complaint ...". In this section the words "opinion" and "decision" are treated as equivalent.

Again, Mr Conti QC conceded that "opinion" in s20 could be a majority opinion. However, he maintained the proposition that "opinion" in ss28, 29(2) and 41 had consequences of such significance, that the legislature used the word in a different sense in those sections than it did in ss20, 26 and 30. This is inherently unlikely.

In the course of his submissions on this matter Mr Conti QC invoked what is described as a "rule of statutory interpretation": expressio unius est exclusio alterius. For authors of text books on statutory interpretation it is no doubt convenient to have "rules" or "maxims" or "principles". It may be time to review the status of expressio unius on such lists. Its application is subject to authoritative warnings. (See R v Australian Broadcasting Tribunal ex parte 2HD [1979] HCA 62; (1979-80) 144 CLR 45 @ 52; Houssein v Under Secretary, Department of Industrial Relations and Technology [1982] HCA 2; (1982) 148 CLR 88 @ 94; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992 175 CLR 564 @ 525; Pearce and Geddes "Statutory Interpretation in Australia 4th ed par4.22).

Contemporary practices of legislative drafting do not usually warrant an assumption that the adoption of different words for similar matters represents a deliberate intention to deal with them differently. This is at least true with popular words like "opinion" and "decision". This matter always depends on the construction of the statute as a whole in accordance with the contemporary approach to construction. (See eg Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 @ 421-4 per McHugh JA; substantially reiterated in Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 @ 21-23 per McHugh J). The maxim expressio unius hardly ever plays a useful role in this process of statutory construction. It is almost always a means of stating a conclusion.

In the Judicial Officers Act there is no warrant for the assumption that a word like "decision" is not intended to embrace numerous other words referring to the deliberations of the Conduct Division such as "initiate" (s23); "direct" (s524(4); 24(5) 36(1)); "authorise" (s24(7)) "reclassify" (s30(3)(6)) "determine" (Schedule 3 cl1) and, relevantly "form an opinion" (ss28, 29(2)).

There is one aspect of the argument in favour of the unanimity construction to which I should refer. The Conduct Division took the view that the statutory report to the Governor should not contain any indication that it was a majority report.

The reasons for this view are set out in a memorandum of the Chairman of the Conduct Division:

"5 When each decision is considered at the meeting of the Division the decision supported by a majority `shall be the decision of the Division'.

6 As the Division may present only one report (s29(1)), it should contain only the majority decision regarding each of the two matters referred to in s28 and each of the two matters referred to in s29(2), in each instance they being the decisions of the Division.

7 Implicit in s29 is that the report to the Governor should set forth the reasons for the Division's conclusions, its findings of fact and its opinion. Accordingly as each of those constitutes a decision, the report should set forth only the majority view regarding each question decided.

8 Regarding whether the report should state that any decision which is not unanimous is the decision of a majority, the competing considerations are:

(a) Section 29 contemplates that the report provided to the Governor is to be laid both houses of Parliament, and a copy given to the judicial officer concerned. In so far as Parliament may seek to take action in consequence of the report it should be provided with one finding of fact, one opinion and one expression of reasons. That is the purpose of having a Conduct Division, and of having the provision in Schedule 3, clause 4 to ensure that Parliament has before it a clear series of findings;

(b) It may be unfair to the Parliament, and to the judicial officer if each are not told that in relation to some decision on fact, decision whether a complaint was wholly or partially substantiated, or decision on the opinion of the Conduct Division was not a unanimous decision.

(c) There is nothing in the Judicial Officers Act which explicitly states that the report may not state that a decision referred to above is a majority decision. On the other hand, the import of Schedule 3, clause 4 suggests there may be only one decision in respect of any matter required to be decided and accordingly it is only that decision which should be expressed.

9 In my opinion, the better view is that the report should be a report of the Division which sets out only one decision in relation to each of the matters referred to in ss28 and 29, and it should not refer to any minority view, or the fact that a particular decision is a majority decision. That flows from Schedule 3 clause 4."

One of the functions of the Report is to inform Parliament. In my view that function is better performed if reasons for dissent, of the character prepared by Mr Mahoney in this case, are made available as part of the Report.

The statutory opinion turns on whether the matter " could " justify consideration of removal. This indicates that the process of deliberation is only beginning. The Parliament should receive as much assistance as possible in exercising its weighty task of deciding whether to address the Governor.

If I accepted that the contrary was the case, I would regard it as a significant but not necessarily determinative indication that the Act did require unanimity in the formation of the statutory opinion. I do not see anything in the text or subject matter of the Act which warrants the statement that Parliament must receive "one finding of fact, one opinion and one expression of reasons".

There is no reason why a Conduct Division, when "setting out" its "conclusions" under s29(1) or its "findings of fact" and opinion under s29(2), should be prohibited from setting out the reasons by which it reached its conclusions, including a statement of any minority position.

A Conduct Division must be constituted by three judicial officers, although one may be a retired judicial officer (s22(2)). In both s28 and s29, the relevant opinion is described as something which the Division `forms'. This involves a process of reasoning with which judges are familiar. The Minister must table the Report in Parliament (s22(3)). This is plainly intended as a step in the process of the Parliament resolving whether or not to address the Governor under s53 of the Constitution Act. (See s41(2)).

A Conduct Division is obliged to present a Report to the Governor, (s29(1)) which sets out the Division's "conclusions". The word conclusion is apt to cover any step in disposing of a matter. That Report must also set out the Division's findings of fact, as well as the opinion of the Division of the character referred to in s29(2). There is no express reference to an obligation that the Report contain the course of reasoning which led the Division to the formation of the relevant opinion. Obviously it is permissible to do so, as was done here.

This is part of the process of informing Parliament. That process, contrary to the views expressed by the Chairman of the Division, may permissibly extend to the presentation of a minority opinion, if any, and the reasons therefore.

Finally, on this aspect of the case, reliance was placed on the common law rule permitting public powers to be exercised by majority decision, considered by this Court in Bowen-James v Delegate of the Director General of the Department of Health 1992 27 NSWLR 457. In my view Parliament has made express provision in this regard in the Act and there is no room for the application of this rule.

In my opinion, the first submission fails.

The Findings of the Conduct Division

The difference between the majority of the Conduct Division and the dissentient, turned on the formation of the opinion pursuant to s28 and s29(2) of the Act. All members of the Division agreed that the complaint was substantiated with respect to the capacity, but not the behaviour, of the judge. They did not, however, agree that incapacity continued after the period in January or February 1998, when the Judge received new treatment for the medical condition of depression from which all members found, his Honour suffered until that date.

It is important to emphasise that there is no finding of misbehaviour, only of incapacity. Accordingly, there can be no proper basis for the formation of an opinion that Justice Bruce could be removed because of his past conduct, notwithstanding the serious effects his failure to deliver reserved judgments had on the litigants in these cases, or on this Court, in terms of disrupting its organisation and increasing the burden on other judges. Removal could only be a permissible option if his incapacity remained extant at the time of the Report.

The decision of the Conduct Division involved a judgment as to whether Justice Bruce's medical condition constituted the sole, or at least the predominant, cause of his incapacity and, accordingly, whether or not the change in his medical condition which all accept did occur in January and February of 1998, meant that he was no longer incapable of performing his functions as a judicial officer.

In par65 of the Report of the Conduct Division, the submission made on behalf of Justice Bruce that he "is now cured of any disabling depressive illness" is described as having "considerable support". That support is set out in pars66-69 as follows:

"66 First, when seen by Dr Gilandas, clinical psychologist, on 25 March 1998, with whom Justice Bruce undertook lengthy quantitative psychological assessment tests, Dr Gilandas found "no evidence of major psychiatric disorder". He found Justice Bruce was "no longer clinically depressed".

67 Second, Dr Dent said that: "If the Judge maintains his physical well being and continues to maintain our programmes we have got him on now with medication, counselling and otherwise and if he perhaps has acupuncture again if symptoms start to recur, he should do well, he should continue well."

Dr Dent said there had been the expected rapid recovery from the illness of severe depression to the present stage where the recovery had plateaued so that Justice Bruce was now in a position from which he would not improve and from which he would not deteriorate, assuming he continued the recommended treatment.

68 Third, Justice Bruce said that he now feels quite different from the way he felt in December 1997, and is confident of his present capacity to perform.

69 Fourth, is the fact that he has delivered all but two of the judgments shown on the schedule of 19 February 1998 (Table B)."

The Report went on to pose the following question:

"70 The question remains whether the incapacity to perform the judicial function continues notwithstanding removal or alleviation of the depressive illness. There is much to support the view that it does so remain."

The evidence on which the Conduct Division relied in this regard is as follows:

"71 First, Dr Gilandas has identified an "ingrained personality attribute of procrastination". If, at a time when it is said that his cure from depression has plateaued, he remains unable to adhere to arrangements for delivery of judgments which Justice Bruce has, after consideration and discussion with the Chief Justice, himself advanced and agreed to, that is indicative that the delay in judgment delivery contains in it a significant element of procrastination. That is particularly so when Justice Bruce appreciated that, in being given time to write judgments to be delivered in accordance with a schedule agreed with the Chief Justice, he was being given a final chance to demonstrate both organisational, decision making and judgment writing capacities all of which are a required aspect of judicial performance. Yet Justice Bruce did not adhere to that schedule. The detail of the delay from the agreed Schedule B is set forth in Exhibit Z which we reproduce."

It is not necessary to set out Schedule B. However, as referred to in this paragraph, delays from the Schedule varied from 3 days to 29 days. The Report goes on to describe these departures from the agreed Schedule as "significant both in number and extent".

The Report sets out, and comments on, the explanations made by or on behalf Justice Bruce with respect to his failure to adhere to the Schedule:

"72 The departures from the agreed schedule are significant both in number and extent. One case (Buckett) was advanced ahead of the scheduled delivery date. In every other instance where judgment has been delivered there has been a failure to adhere to the agreed schedule. Further, the length of delay has been significant. For example, Civic Transport was to be delivered 19 days after the schedule was agreed, but it was delayed a further 29 days. Maxwell was to be delivered 19 days after the agreed schedule but it was delayed a further 23 days. Jennings was to be delivered twelve days after the agreed schedule but it was delayed a further seventeen days. After the conclusion of the hearing on 11 May 1998 we were informed that the Chief Justice had agreed to the judgment in Williams v Maritime Services Board being delivered on 19 May 1998.

73 A number of reasons were advanced for these failures to adhere to the agreed schedule:

(a) First, it was said that the schedule was prepared on the mistaken premise that Justice Bruce would substantially be out of court for the early period to which the schedule related, whereas in fact he was to sit both as Duty Judge and as a Judge of the Court of Criminal Appeal for the week commencing 2 March 1998, as he had.

As previously noted, the schedule was prepared on the basis that the Judge would sit for one week commencing 9 March, on 23 March for 2 days, and on 30 March for a further two weeks. Otherwise he would not sit until 26 May.

It was thus anticipated that by 19 March, being the date when the Conduct Division reconvened to enquire into the failure to adhere to the schedule, and by which date thirteen judgments should have been delivered, but only two had been, the Judge would have sat for five days. In fact, he had sat for six. That extra sitting day alone cannot explain the failure to adhere to the schedule in the first month after it was agreed.

(b) Second, it was said that the Judge fell behind in the initial stage of the schedule due to the onset of a debilitating back complaint which occurred at the beginning of the schedule period and which significantly disabled him for five days.

The evidence was that the back injury occurred on Friday, 20 February, the second hearing date of the Conduct Division. It was said to disable the Judge on the following Saturday, Sunday and Tuesday. The Judge sat as Duty Judge on that Monday, and heard a case on the Wednesday. Although it seems the Judge did not come in to Chambers on the Thursday, that was not attributed to the back disability. Justice Bruce's evidence was:

`On the morning of before the hearing here, I bent forward and hurt my back and my back hurt in my chambers. By eleven o'clock it was extremely painful and I had to go and lie down. I did that for the balance of Friday, on Saturday and Sunday. I came in on Monday because I was the Duty Judge. I was unable to come in on Tuesday. I came in on Wednesday and heard a case which was in the list on the Monday. I should say the Wednesday I did that. On the Thursday I don't believe I came in, and the Beveridge judgment was delivered on the Friday, because that was a day which apparently for some reason or another suited Mr Beveridge. My back was sore but not incapacitating, just inconveniently painful until after 12 March 1998.'

Thus the back injury disabled him on two working days (February and Tuesday 24 February) and two days of the weekend of 21-22 February.

The back injury also does not explain the failure to adhere to the schedule during the first month up to 19 March 1998.

(c) Third, it was said the schedule was further compromised by a significant migraine attack which occurred on 12 March 1998 and disabled him for five days.

Plainly the migraine was not a factor in the failure to deliver judgments prior to 12 March, when the Conduct Division decided to reconvene. As is now known only two of the schedule twelve judgments had then been delivered.

The migraine was said to disable Justice Bruce from judgment writing on Thursday, Friday, Saturday, Monday and Tuesday, 12, 13, 14, 16 and 17 March. Apparently it did not disable him on Sunday 16 March, when he was able to attend, as chairman, a meeting of the Asthma Council Foundation.

It is accepted that this affected compliance with the schedule to some extent. We find it surprising that the disability lifted for a day when Justice Bruce had another external activity, but he was not questioned regarding this matter and we accept his evidence."

The Division concluded:

"74 We have considered whether these factors, in combination, provide in themselves a satisfactory explanation for the extensive delays in delivering judgments beyond the agreed scheduled times. The Division has come to the conclusion they do not. The Division thinks that there was also operating as a significant factor what Dr Gilandas called "procrastination". Of course, the explanations advanced do not attempt to explain the failure to advise the Chief Justice of the failure to adhere to the schedule or the reasons therefor."

Having dealt with the first basis for its conclusion that incapacity was a continuing condition in pars71-73, the Division went on:

"75 Second, it is not without significance that the arrangement made with the Chief Justice was that Justice Bruce would notify him of the delivery of the judgments contemplated by the schedule. When the schedule was not adhered to by the delivery of the first twelve judgments in accordance with it Justice Bruce did not regard it as appropriate to inform the Chief Justice of that fact or of any reasons for it. The matter was simply ignored until the Conduct Division reassembled when a new schedule was provided.

76 Third, the Crown Solicitor wrote to Justice Bruce's solicitor on many occasions in late February and up until 17 March noting failures to adhere to the schedules and seeking an explanation. Justice Bruce's solicitors sought to obtain instructions from him but were unable to do so prior to 18 March 1998. They could not obtain instructions because they could not contact Justice Bruce. It is difficult to accept that a judicial officer who is capable of performing to a reasonable standard his judicial duties would not recognise the seriousness of failing to adhere to a schedule agreed with the Chief Justice, or not promptly communicating to the Chief Justice reasons for his inability to so adhere, and for a period of some three weeks isolating himself so as to deny his solicitors the opportunity to convey explanations for the default.

Failure to confront departures from the schedule agreed with the Chief Justice or to respond his solicitor's requests for instructions seems to us to be not dissimilar to the failure to confront the expected unpleasantness anticipated in the letters from the Judicial Commission to Justice Bruce in late 1997 which he felt unable to open.

77 Fourth, Dr Dent recognised that procrastination was "an issue". We did not understand him to dissent from Dr Gilandas in that respect: rather his view was that the onset of depression may render more powerful the effect of the pre-existing character trait of procrastination. It must follow that removal or diminution of that depression would reduce the aspect of procrastination. Notwithstanding the very significant improvement in the depressive illness from which Justice Bruce suffered in December 1997, which improvement resulted from the treatment given by Dr Dent, the failure to adhere to the schedule agreed with the Chief Justice, and the failure or inability to confront and give a timely explanation for that departure is strongly indicative of the continuation of an incapacity to perform the judicial function to an agreed level which cannot be attributed to the previous severe depression.

78 The Division has given earnest consideration to these competing contentions. Ultimately the Division has come to the view that as the medical condition of Justice Bruce has, with treatment, now plateaued, it cannot be said that the incapacity satisfactorily to perform the judicial function has been removed. That is so whatever may have been the cause of that incapacity prior to treatment by Dr Dent.

The Division is of the view that the indisputably demonstrated incapacity has been diminished to some extent by the relieving of the severe depression."

The dissenting Report came to a different conclusion. Mr Mahoney referred to the medical condition in the following terms:

"It is not contested that there is a long recognised condition described in this inquiry as depression. It is not contested that depression, if sufficiently severe, can impede or prevent the discharge of judicial duties. ... depression of this kind is not a mere emotional condition. It is a psychiatric condition which has been long recognised." (p3)

Mr Mahoney went on to analyse the position under the heading:

" Did the Conditions Cause What Happened?

It is necessary to determine whether those conditions brought about what happened. The evidence does not compel a conclusion on this issue. It shows that from time to time not long after he became a Judge (July 1994), the judge accumulated a list of unfinished matters in which the delay was unacceptable, unacceptable in the absence of an acceptable excuse. The Judge's evidence was to the effect that his mental and physical condition produced an inability to cope with what was before him for determination. Mr McAlary QC for the Judicial Commission suggested in his cross-examination and otherwise that this did not accord with the expert evidence. He suggested that the evidence of the treating psychiatrists Dr Dent was that until 1997 there was no depression or none such as would explain what happened. Dr Gilandas, a psychologist who saw the Judge, suggested that the reason for delay could range from what he delicately described as "procrastination" through personality traits to a genuine and severe depression. Initially he suggested that the failure of the Judge to maintain the schedule for the delivery of judgments in early 1998 at a time when the depression had been alleviated showed that the first rather than the last was the cause of what happened. Mr Conti QC for Judge suggested that Dr Gilandas had misunderstood the evidence in this regard and in my opinion the doctor retreated significantly from what initially he had been inclined to think.

The views of both doctors were not elicited with absolute clarity but in the end I am satisfied that each of them was of the opinion that the conditions from which the Judge suffered did cause or substantially cause what had happened. The details which are set forth in the reasons of the other members of the Division make it unnecessary to pursue the detail of the matter further. I do not mean by this that the evidence indicates that these conditions and the conditions alone were operative in this regard. Both doctors recognised that the conditions, when they existed, could operate upon personality traits and even upon a disposition to procrastinate and that in the present case the position was not clear. However, I am satisfied that the evidence from each of them was such that it would not be proper to come to the conclusion that what the Judge said as to the cause of what happened should be rejected." (pp3-4)

The majority and the dissentient diverged as to whether or not the Conduct Division should form an opinion "that the matter could justify parliamentary consideration of the removal of the judicial officer from office" in accordance with s28 and s29(2). A Report containing an opinion to that effect is an essential pre-condition to the exercise of the power by the Governor to remove the officer from office following an address of both Houses of Parliament. (See s41 of the Act). The Governor's power must be exercised only upon the advice of the Executive Council (See s3(6))

The reasoning of the Conduct Division in this regard is set out in par80 of its Report to the Governor:

"80 It is the Division's view these substantiated complaints against Justice Bruce could justify Parliamentary consideration of his removal from office. The reason for that opinion is that, having taken into account pursuant to s31 the 27 additional matters together with the complaints of Commander Beveridge and Mr Bradley, there has been proved an incapacity to perform judicial duties judged by any reasonable standard. The number of instances of delay is great. The extent of individual delays is unacceptable by any reasonable standard. The failure to adhere to assurances of performance which Justice Bruce knew or suspected would be conveyed to litigants has been shown to result in both distress and hardship to litigants. Incapacity to perform judicial duties has been proven to have been present from, at least, early 1995 and continues."

The crucial words are the last two: "and continues". Nothing in the reasoning of the Report suggests that the Division would have reached the statutory "opinion", if it did not believe that incapacity was continuing.

It is in this respect that Mr Mahoney dissented.

Mr Mahoney in his Reasons concluded as follows:

" Parliamentary Consideration of Removal

... As I have indicated, incapacity has been substantiated up to January - February 1998. This covers the period during which the failure of the Judge to do what he should took place. The Judge contends that after that time his condition changed and that he became capable of discharging his judicial duties. If that contention be true, then in my opinion, the matter could not justify parliamentary consideration of his removal. Prima facie the fact that a judge has been incapable of doing what he should in the past could not justify the parliament removing him from office if he is able to discharge his judicial duties. Removal is not a punishment but a protection of the public and the system of justice. I do not exclude the possibility of special cases, but his is not suggested to be such.

But the Judge's contention has been contested: it has been claimed that he is still incapable if discharging his judicial duties. It is this which, as the matter has been presented and developed, is the crux of the matter.

I shall not rehearse the factual material: it is sufficiently detailed in the reasons of the other members of the Division. I shall state my own conclusions shortly. The Judge claims that he is now capable of discharging his duties. The thrust of the evidence of the two witnesses before the Division is to the same effect. The treating psychiatrist Dr Dent, supports his contention; the doctor stated in terms that he was able to do what he should and that, in effect his condition would not improve or deteriorate. Dr Gilandas was confident that he showed no sign of depression.

The case to the contrary of this depends upon inferences which it is said should be drawn from the failure of the Judge to do what he said he would do in relation to the schedule of judgments that he was to deal with. The statement of the matter in the reasons of the other members of the Division relieve me of the need to detail facts. It is accepted that the Judge told the Chief Justice that he would deal with the outstanding judgments, and would do so by the times that he then specified in the schedule. He did not do so. He disposed of the matters but in a number of cases, comprising the majority of the matters, he delayed disposing of them for substantial periods. The Judge gave reasons which he said justified the failure to abide by the schedule. Those reasons do not dispose fully of the complaint against what he did. In the end the main point made against him is that he did not do what he said he would do, that he did not face up to the significance of his failure and that he failed to meet the inquiries that were attempted to be made of him at the time. The contention made is that these and the other things to which reference has been made in the material show that he is still incapable of carrying out his judicial duties. The complaint is not that what he did constituted misconduct which itself would or could justify consideration of his removal: it is that it shows incapacity. It is to be emphasised that it is incapacity alone which is in question.

The suggestion is, in effect, that the inferences to be drawn from the material relating to the schedule warrant putting aside the evidence of the Judge that he can do what he is required to do and the evidence of the doctors that he can do so. In my opinion that is a course that on the evidence as it is before the Division is not justified." (pp5-6)

It can be seen that the divergence between the majority and the minority in the Conduct Division turned on two specific matters:

(1) A difference in the understanding of the professional evidence.

(2) A different assessment of the conduct of the judge, subsequent to February 1998, with respect to satisfying the Schedule of delivery of judgments.

On the first matter, the Report said that Dr Gilandas had "identified" an "ingrained personality attribute of procrastination". (par71)

Dr Dent is said to have "recognised that procrastination was `an issue'". The Report went on to say:

"We did not understand him to dissent from Dr Gilandas in that respect: rather his view was that the onset of depression may render more powerful the effect of the a (sic) pre-existing character trait of procrastination." (par77)

In that regard, the Report refers to "the very significant improvement in the depressive illness from which Justice Bruce suffered". (par77); At another point in the Report this improvement is referred to in these terms: "the medical condition of Justice Bruce has, with treatment, now plateaued ....". (par78)

The majority concluded that the "incapacity has been diminished to some extent by the relieving of the severe depression". (par78)

In contrast, Mr Mahoney, said that the "thrust" of the evidence of both witnesses was "to the same effect" namely, that Justice Bruce was not now suffering from depression. (See last paragraph on p5). Mr Mahoney went on in the passage fully quoted above, to indicate that the medical evidence was not "elicited with absolute clarity" and that the impact of the medical conditions upon personality traits, including "upon a disposition to procrastinate" was, in its application to the present case, "not clear". As he had earlier put it, with respect to the effect on the Judge's conduct of his medical condition: "the evidence does not compel a conclusion on this issue".

With respect to the second matter, namely the failure to comply with a Schedule for delivery of judgments, the Report gave this significant weight. The failure occurred after the medical treatment was said to have relieved the Judge from his depression.

As indicated in par71 of the Report quoted above, this failure was said to be "indicative" that the prior delay contained in it "a significant element of procrastination" namely, that the judge's failures in this regard were not wholly, or perhaps even preponderantly, attributable to the medical condition. This is reaffirmed in par74 where, after rejecting the Judge's explanation for these further delays as "unsatisfactory", the Report referred to the identified "procrastination" as continuing to operate. Accordingly, the Report concluded that the failure to adhere to the Schedule, and the failure or inability to confront and give a timely explanation for the departure from the Schedule was "strongly indicative of the continuation of an incapacity to perform the judicial function to an agreed level which cannot be attributed to the previous severe depression". (par77)

Mr Mahoney's Reasons state that this conclusion was based entirely on inferences available from the failure of the judge with respect to the Schedule of judgments. Mr Mahoney found that this conduct did not compel a conclusion contrary to the evidence of the judge, and of the doctors, that he was now able to perform his functions as a judicial officer. (p6 of the Reasons).

It is important to recognise that there is no suggestion of a finding that the Plaintiff's failure to adhere to the Schedule, or his other conduct with respect to that failure, itself constitutes a form of incapacity or misbehaviour.

Rather, the Report concludes that this conduct, occurring as it did at a time when the effects of the medical condition of depression had been resolved, or at least, substantially attenuated, helps establish that the prior conduct with respect to the delay of judgments could not be substantially attributed to that medical condition, but rather that it was caused to such a degree by the personality trait referred to as "procrastination", that the Judge's hitherto demonstrated incapacity must be seen as continuing to exist.

There is no statement of such a finding in terms. However, the reference to "indicative" of "a significant element of procrastination" (par71) and to "strongly indicative" of a continuation of an incapacity "which cannot be attributed to the previous severe depression", satisfies me that that is what the majority concluded.

The critical ultimate finding of fact by the Conduct Division was:

"The Division is of the view that the indisputably demonstrated incapacity up to February 1998 remains ..." (Par48)

This is reiterated in par80, in which the Division outlines its reasons for forming the statutory "opinion":

"Incapacity to perform judicial duties has been proven to have been present from, at least, early 1995 and continues ".

It is this finding which the Plaintiff challenged on administrative law grounds. Absent this finding, Mr Mahoney was clearly correct when he said, in a proposition which, as I read the Report, the majority would also accept:

"The Judge contends that after that time his condition changed and that he became capable of discharging his judicial duties. If that contention be true, then in my opinion, the matter could not justify parliamentary consideration of his removal."

The Administrative Law Challenge

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. It was once thought that, by reason of the element of subjectivity, such a decision was not examinable by the courts. That is no longer the case.

As Menzies J noted in Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305 @ 323:

"The definition of land that may be subject to a local rate is determined by the Council's justifiable opinion of special benefit so that 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. The validity of a local rule does not depend upon the soundness of a council's opinion; 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."

Contemporary Australian doctrine on matters of this character is now as stated by Gibbs J in Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 @ 118-9:

"It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. 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 has 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 at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts."

This dictum was first authoritatively applied in Minister for Immigration v Teo (1995) 57 FCR 194 @ 198-9. It has subsequently been endorsed in majority judgments of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 @ 275-6 and Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; (1997) 187 CLR 297 @ 301 and referred to in other judgments.

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.

Mr R Conti QC Senior Counsel for the Plaintiff put the administrative law challenge in a number of different ways. Every one of them involved a challenge to the Division's finding of fact that Justice Bruce's unquestioned prior incapacity, continues to exist. Even in a case where a full appeal is available, there are significant restrictions on the ability of an appellate court to interfere with a finding of this character. In the exercise of the supervisory jurisdiction, the restrictions are even greater.

In cases which engage the sense of compassion of a judge such as this, it is necessary to avoid the temptation to express a conclusion in terms of one of the recognised grounds for judicial review, whilst in truth making a decision based on the merits. In a democratic society such conduct transgresses the proper limits of judicial intervention. It will, if often repeated, undermine the basis for judicial independence and the fundamental role which judicial impartiality plays in the social stability of the nation and the maintenance of personal freedom of its citizens.

Where, as here, the case directly involves the independence of the judiciary, it is particularly important that this Court be, and be seen to be, punctilious in this regard.

I mean no disrespect to the submissions of Mr Conti when I note that his submissions involved a tour of obiter dicta and judgments at the boundaries of accepted administrative law, each of which invokes language of indefinite application and, accordingly, permits a decision in truth based on the merits to be more readily disguised.

Mr Conti invoked the concept of `proportionality', as explicating the well known ground of unreasonableness based on the formulation of Lord Greene MR in Associated Provincial Practice Houses Ltd v Wednesbury Corporation [1948] 1KB 223 @ 229-230. It can be accepted that a complete lack of proportion between the consequences of a decision and the conduct upon which it operates may manifest unreasonableness in that sense. However, the Plaintiff also invoked `proportionality' as a new and separate ground of review.

The concept has proven to be useful in the Constitutional context for purposive powers and, for not dissimilar reasons, in the context of judicial review of subordinate legislation. (See Leask v Commonwealth [1996] HCA 29; (1996-7) 187 CLR 579 @ 593-5; 600; 612-5; 624; South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 @ 165, 178; Minister for Urban Affairs and Planning v Rosemount Estates Pty Limited [1996] NSWSC 348; (1996) 91 LGERA 31 pp37-8, 45-6, 81-4; Bayne "Reasonableness Proportionality and Delegated Legislation" (1993) 67 ALJ 448.

Proportionality has not been adopted as a separate ground for review in the context of judicial review of administrative action, notwithstanding a considerable body of advocacy that it be adopted. See State of New South Wales v Macquarie Bank Ltd (1991) 30 NSWLR 302 p321-5; Minister of State for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 43 FCR 565 @ 575-8; R v Secretary of State for the Housing Department ex parte Brind [1991] 1 AC 896 pp762, 766-7, 756, 769, 750; New South Wales v Law (1992) 45 IR 62 @ 63; Craig Administrative Law 4th ed 1994 pp411-421; Aronson & Dyer Judicial Review of Administrative Action 1996 @ 375-9.

The concept of proportionality is plainly more susceptible of permitting a court to trammel upon the merits of a decision than Wednesbury unreasonableness. This is not the occasion to take such a step in the development at administrative law, if it is to be taken at all.

There is no disproportion between the consequences of the expression of the statutory opinion by the Conduct Division and the inordinate delays in the delivery of judgments. It is those delays, as par80 of the Report makes clear, that formed the basis for that aspect of the Report. Even if it is accepted to be a separate ground for review, "proportionality" would not impinge upon the process by which the majority of the Division in this case concluded that the uncontested prior incapacity was continuing.

Mr Conti also invoked the well known ground of taking into account irrelevant considerations, and failing to take into account irrelevant considerations. In this regard, he invoked a formulation which finds its origin in an unreported judgment of Gummow J then of the Federal Court of Australia: Kahn v Minister for Immigration & Ethnic Affairs, unreported, 11 December 1987, in which his Honour said that a decision must give "proper, genuine and realistic consideration to the merits of the case". This particular formulation of words has been applied in a number of subsequent judgments of the Federal Court, including Hindi v The Minister for Immigration (1988) 20 FCR 1 @ 13 per Sheppard J, Surinokova v Minister for Immigration [1991] FCA 596; (1991) 33 FCR 87 @ 96 per Hill J; Pattanasri v Minister for Immigration Local Government and Ethnic Affairs 1993 34 ALD 169 @ 178-9 per Burchett J.

The special characteristics of the applicable statutory framework in the Administrative Decisions (Judicial Review) Act 1977 , require particular care before applying the administrative law jurisprudence of the Federal Court to the common law . There is specific provision in s5(2)(f) of the ADJR Act that a finding of improper exercise of power may be based on:

"5(2)(f) An exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case."

The Federal Court cases involved the alleged application of a policy in this sense, as is made clear by the words "to the merits of the case", in the formulation of Gummow J in Kahn.

Nevertheless, a similar proposition may be appropriate in the context of the relevant/irrelevant considerations ground at common law. See eg "any real sense" Turner v Minister for Immigration [1981] FCA 65; (1981) 55 FLR 180 @ 184 per Toohey J; "genuinely and realistically" Howells v Nagrad Nominees Pty Limited (1982) 66 FLR 169 @ 195 per Fox and Franki JJ; "proper consideration" Kioa v West [1985] HCA 81; (1985) 159 CLR 550 @ 604 per Wilson J; and in this court, the formulation " no real opportunity ...to give consideration to" in Parramatta City Council v Hale (1982) 47 LGRA 319 @ 331 per Street CJ, see also 335-6.

These particular formulations must be treated with care, so that the relevant/irrelevant considerations ground is not expanded to permit review of the merits. That ground is restricted in accordance with the now classic judgment of Mason J in Minister for Aboriginal Affairs v Peko Wallsend Limited [1986] HCA 40; 1986 162 CLR 24 @ 39-42, to matters which the decision maker was obliged to take into account.

In the present case, the Division was relevantly limited to the issue of the capacity - referred to as "ability" in s15(1) of the Judicial Officers Act - of his Honour to perform his obligations as a judicial officer. The parts of the Report to which the Plaintiff made reference in its submissions in this regard, involved the Division's consideration of an alleged character trait of "procrastination" and of Justice Bruce's failure to comply with a Schedule of Judgments agreed with the then Chief Justice. I will deal with these issues fully below. However, neither of these matters suggests any failure to take into account relevant considerations which the Division was bound to take into account. Nor does either suggest that it took into account any irrelevant considerations. It can scarcely be contended that if the finding of fact that his Honour's prior incapacity was continuing could be justified on the evidence, that that was in any way an irrelevant consideration. On the contrary, it would plainly be determinative.

Mr Conti also urged the adoption of a doctrine developed by Lord Diplock to the effect that a logically probative decision was a requirement of natural justice. (See R v Criminal Injuries Compensation Board ex parte Moire [1965] 1QB 456 @488; Mahon v Air New Zealand [1984] AC 808 @ 821. Mr Conti relied on a passage in the judgment of Justice Deane in Australia Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 @ 367). However, in Bond, Mason CJ expressly left open the issue of whether this third limb should be added to the doctrine of natural justice. Indeed, it may not be consistent with the orthodox position set out in Mason CJ's judgment in Bond to which I will refer below. (See also Bowen James v Delegate Department of Health (1992) 27 NSWLR 452 @ 475; Aronson and Dyer supra @ 275-7, 286-7; Bayne "The Court, the Parliament and the Government - Reflections on the Scope of Judicial Review" [1991] FedLawRw 1; 1991 20 Federal Law Review 1 @ 20-21; McMillan "Recent Themes in Judicial Review of Federal Executive Action" 1996 24 Federal Law Review 367 esp @ 380). The Diplock doctrine has been accepted in the Federal Court, most recently by Finkelstein J in Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397.

This doctrine must be confined in order to avoid impermissible merits review. For the reasons outlined below, it will become clear that in my opinion, if the critical findings of fact were open to the Conduct Division, no logical defect in the reasoning is suggested.

The Finding of Continued Incapacity

The only aspect of the Plaintiff's challenge to the Report on administrative law grounds which is capable of constituting a relevant error is the submission - expressed in various ways - that there was no proper basis for a finding that matters other than the medical condition played a sufficiently significant part in causing the incapacity during the period in which such incontestably prevailed, and that this other factor continued to cause a sufficient degree of incapacity subsequent to the alleviation of the medical condition.

This is a finding of fact. 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 (supra) @ 199, and the opinion was not "justifiable" to adopt the word used by Menzies J in Parramatta City Council v Pestell (supra) @ 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".

Restrictions on judicial review of findings of fact have long been acknowledged. The present state of the law is not entirely clear. In Bond supra @ 355-7 Mason CJ sought to summarise the relevant principles. The matter remains one of some difficulty. (See Aronson and Dyer supra @ 281-9, Bayne "The Court, the Parliament and the Government" supra @ 19-26). The principles I apply are as follows:

(1) There is no error of law in making a wrong finding of fact. (See eg Waterford v The Commonwealth [1987] HCA 25; (1986-7) 163 CLR 54 @ 77; Bond (supra) @ 356;

(2) An inference of fact must be open to be drawn. (Bond, supra, @ 356 per Mason CJ: See also Minister for Immigration v Teo supra @ 199; S v Crimes Compensation Tribunal [1998] 1 VR 83 esp @ 90-1).

(3) The making of findings and the drawing of inferences without any evidence to support them is an error of law. (See eg Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473 @ 481, 483; Bond supra @ 355-6).

(4) Acting without probative evidence is the equivalent of no evidence. This point requires some elaboration.

It is convenient to begin with what Lord Brightman said in Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484 @ 518:

"Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."

In this Court there is a well established body of jurisprudence that even a perverse finding of fact does not constitute an error of law. In Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 @ 156, Glass JA with whom Samuels JA agreed said:

"To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers Compensation Commission Judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the Court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law.

..................

A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie as defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury or on a particular date. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made. Hope v Bathurst City Council [1980] HCA 16; (1981) 144 CLR 1 at 10; Australian Gas Light Co v Valuer General (1940) SR(NSW) 126 at 138. The decision here is not of that character."

His Honour went on to further rely on Hope v Bathurst City Council and AGL v Valuer General for the following general proposition:

"It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open."

His Honour concluded:

Accordingly, this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found. (p157).

It may be that the word "perverse" is used in different senses in the line of authority in this Court stemming from Azzopardi (note also Edelsten v Ward (No 1) (1988) 63 ALJR 345) and the line of authority in the Federal Court stemming from the passage of Lord Brightman in Pulhlhofer. (See eg Broadbridge v Stammers (1987) 16 FCR 296; Australian Conservation Foundation v Forestry Commission (1986) 19 FCR 125 @ 132, 133; Teo, supra, @ 199). The latter is to be explained as Sir Anthony Mason did in Bond namely, the word "perversely" signifies "acting without probative evidence". (Bond p359; also Teo supra @ 149). On this basis there is no necessary conflict between the two lines of authority.

Azzopardi and subsequent cases involved the proper construction of a statutory formula which limits appeals to "errors of law". The issue turned on the intention of Parliament. Different considerations arise in the development and application of common law principles identifying the proper basis for judicial review of administrative action. 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 S53(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 s53(2) establishes that a Conduct Division may only form its opinion on the basis of probative evidence.

Furthermore, the statutory context suggests that the common law principle, that an illogical inference does not in itself constitute an error of law, does not apply. As Chief Justice Mason put it in Bond supra @ 356:

"So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."

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.

In the formation of the statutory opinion, a Conduct Division must be guided by the "gravity of the consequences flowing from" its finding that the incapacity continued to exist in a relevant degree. As Dixon J put it in a frequently cited passage in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 @ 361-2:

"The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exist may be held accordingly to indefinite gradations of certainty; and this is led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the Prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters `reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency...This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained."

In this case the formation of the opinion is one of the essential preconditions 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 Report set out with clarity the basis upon which the majority drew the inference that his Honour's the incapacity remained an extant condition to a relevant extent. There were four grounds upon which the Division relied, as I understand the Report, alternatively and cumulatively. These are set out respectively in pars71-73, 75, 76 and 77, with the conclusion set out in 78. The findings of primary fact on which the inference of continued incapacity is based are set out in these paragraphs.

I mention one other submission in order to dismiss it. Mr Conti attacked the suggestion made by Counsel assisting the Division that as at April and May 1997 the depression was only a "light depression" (Report pars34, 56). Although the Report indicated that "there is some substance in the thrust of the submission" (par57), the Report went on to conclude that it was not necessary to decide this issue. It does not avail the Plaintiff to now attack a submission made to the Division, when that submission was not adopted as part of the reasoning of the Division in its Report.

Nothing in the reasoning of the Report suggests that the Division proceeded on any basis other than that Justice Bruce had had a significant and longstanding incapacitating medical condition. The issue was whether or not that was the only factor which caused his inability to deliver judgments within an acceptable time.

The findings of primary fact, on which the inference of continued incapacity was based can be conveniently discussed under two sub-headings: "The Procrastination Issue" and "The Schedule of Judgments".

The "Procrastination Issue"

The first finding was that Justice Bruce has what the Division called in par71 an "ingrained personality attribute of procrastination". This it said was what Dr Gilandas, a consulting psychologist, to whom Justice Bruce was referred at the instance of the Crown Solicitor, had "identified".

It is clear from reading the Report as a whole, as submitted by Ms R McColl SC on behalf of the Attorney General of New South Wales, that the Division proceeded on the basis that Dr Gilandas had made a diagnosis of Justice Bruce as having such an "ingrained personality attribute". It is not suggested that Dr Dent did anything which can be described as a "diagnosis" of such a character trait. Rather, he proceeded to give evidence in a form which is accurately described in par77 of the Report, relating to the interaction of the medical condition of depression and a pre-existing character trait of procrastination.

One of the submissions made by Mr Conti QC was to the effect that the character trait of procrastination could not constitute a relevant form of incapacity. I reject this submission. The relevant manifestation of incapacity is an inability to write judgments within an acceptable time. There can be no doubt that Justice Bruce demonstrated such an inability. A personality trait described as "procrastination", of itself and without the intervention of a medical condition of depression, could entail such inability.

The real issue in my mind is whether or not Dr Gilandas' views can be appropriately described as a diagnosis, rather than as a mere hypothesis, and, accordingly, whether it was open to the Division to find that his Honour suffered from the character trait of procrastination to a relevant degree.

The first occasion on which the word "procrastination" appears in Dr Gilandas' report is at p5 of his first report dated 25 March 1998. Under the heading "Psychological Assessment" and the sub-heading "Clinical Assessment", which deals with the examination of Justice Bruce by Dr Gilandas, this paragraph appears:

"Judgment and insight also appear to be generally in tact. However, he may be over optimistic regarding the amount of behaviour change and self-discipline that will be required to change his alleged habits of procrastination. There was no evidence of major psychiatric disorder at the time of assessment."

It is not clear what Dr Gilandas was referring to by the use of the words "alleged" and "habit". No letter of instructions to Dr Gilandas prior to his first consultation with Justice Bruce was tendered before the Division. The most likely explanation is that the "alleged habit" is a reference to a passage appearing at p3 of the first report under the heading "History of the Present Problem" to the following effect:

"Complaints have been received about Justice Bruce's failure to write judgments, some of which have been outstanding since 1995.

Justice Bruce has reputedly assured authorities that the outstanding judgments would be completed, however such promises were not kept."

As I read Dr Gilandas' report, he was intending to say no more than he accepted as an instruction, without verification by himself, that Justice Bruce had failed to write judgments and that his assurances to deliver outstanding judgments had not been kept. It is in that sense that procrastination was "alleged" and the suggestion of frequency implied that this conduct was `habitual'.

The second, and only other, occasion in the first report on which reference is made to the word "procrastination" is on the last page where Dr Gilandas makes some "recommendations" on the basis that he has accepted that the prior medical condition of depression is no longer extant. In par2(e), in the context of making a recommendation to Justice Bruce's treating psychiatrist to take steps to "counteract perfectionism", Dr Gilandas said:

"There are also suggestions of perfectionism which can paradoxically create procrastination".

In my opinion, although it is not absolutely clear, the use of the word "procrastination" in this first report did occur as part of a process which can appropriately be described as "diagnosis". The contents of the Report under the heading "Personality Organisation" pp7-8 clearly indicate such a process. In this respect, the first report establishes a context for the second..

It was Dr Gilandas' second report of 4 May 1998, to which the Plaintiff's submissions were primarily directed. This stated (emphasis added):

"Thank you for asking me to comment upon the additional materials referred to in your letter of 1st May, 1998.

I was surprised that recent promises to deliver judgements have not been met by Justice Bruce. ......

If it is correct that Justice Bruce is no longer clinically depressed then the most plausible explanation for lack of progress in delivery of judgements is no longer medical. Rather, it appears to be that most common problem of everyday life ... ingrained habits of procrastination . Procrastination has been recently more technically defined as "learned helplessness". Perhaps Justice Bruce has been demoralised by a number of traumatic life experiences (severe motor vehicle accident compounded by migraine, backache and relationship problems). Such experiences may have compromised his drive for achievement. There is also the possibility that there may be an organic contribution (frontal lobe damage). Frontal lobe damage is known to impair planning functions and drive. However, I note that he has been able to function successfully as a QC following his frontal lobe injury.

"Learned helplessness" is relatively reversible via cognitive behaviour therapy but does require a high degree of motivation and commitment to change. I have formulated a plan of action in my previous report (25.3.98). Justice Bruce retains the capacity to perform his duties. Unless he shows significant improvement in his work capacity within a reasonable amount of time, I can only conclude that he lacks the motivation and time management and planning skills to take the required action to resolve his ingrained procrastination. These are problems of everyday living and not strictly medical, if it is correct that he no longer has major depression .

It is difficult to answer you question, "if delays are still occurring, were the delays in the past for reasons other than depression?" It is probable that the answer is multifactorial depression and procrastination might have interacted with each other and it is difficult to isolate the relative contributions of such factors .

The "Matters for Consideration" raise equally difficult questions of isolating the multifactorial contributions to poor work output. For example, Justice Bruce may have believed in good faith that he could meet the deadlines he himself nominated. However, his lack of motivation, poor time management and planning skills may have let himself and others down .

I realise the above hypotheses may lack precision but as stated above we may be dealing not only medical problems (depression) but also with the common problems of everyday living (procrastination and the promise of more than one actually delivers )."

As indicated, this report was based on a letter of instructions from the Crown Solicitor of 1 May. That letter included the following:

"... I enclose a Schedule of Judgments indicating that recent promises to deliver judgments have not been met. If his Honour has "recovered" what is the reason for current delays? If delays are still occurring, were the delays in the past for reasons other than depression?".

After cross-examination of Dr Gilandas before the Division, it was common ground that he did not, prior to delivering his report, have the Schedule of Judgments to which reference was made in the letter of instructions. Page 2 of that document had been forwarded to him, but it was of no assistance and he ignored it.

Accordingly, Dr Gilandas did not have before him any information about the extent and nature of the failure to deliver judgments in accordance with what was described in the letter of instructions as "recent promises". Furthermore, it was common ground that he did not have before him any information concerning matters such as the occurrence of back pain and migraine, which Justice Bruce had proffered as explanations of his failure to abide by the dates in the Schedule. Although, subsequently, the Conduct Division dealt with and rejected these matters as satisfactory explanations, they were not put before Dr Gilandas at all.

In the report of 4 May, the first reference to "procrastination" appears in a context which seems to constitute a definitive statement: "the most plausible explanation" and "it appears to be". Thereafter, the report uses the word "may" to qualify most of the propositions it contains. The concluding paragraph uses the word "hypothesis", and goes on to say that "we may be dealing not only medical problems (depression) but also with the common problems of everyday living (procrastination and the promise of more than one actually delivers)". It is this last use of the word "may" which gives me considerable pause, because it refers expressly to the two matters which had earlier been stated in language that was not so qualified ie the reference to "the most plausible explanation ...is no longer medical", and "it appears to be that most common problem of everyday life."

Nevertheless, there is also the passage in which there is a further reference to "ingrained procrastination" as something which Justice Bruce needs to "take the required action to resolve". This does suggest an element of diagnosis. The statement appears in a context where a conclusion would be reached as to "lack of motivation and time management and planning skills" to overcome the personality attribute referred to in terms of "procrastination":

"Unless he shows significant improvement in his work capacity within a reasonable amount of time".

On balance, I accept that this is an indication that Dr Gilandas was accepting as instructions that Justice Bruce was not acting in accordance with the requirements of judicial office but, because it was outside his field of technical expertise, was not able to say whether or not this was so. It is in that context that his use of the word "may" in the last paragraph of the report should be understood. It is only if it be the case that the judge's failure to produce judgments was in breach of some standard of judicial conduct, which breach Dr Gilandas could not himself confirm, that the diagnosis of an actual habit of procrastination would have a relevant consequence for the matters on which Dr Gilandas was asked to advise.

This interpretation is confirmed by a review of the course of cross-examination of Dr Gilandas. The deficiencies of the information which had been provided to him by reason of the failure to attach relevant documents, was drawn to his attention. He was asked, over objection, to proffer an opinion as to the future prognosis for Justice Bruce, on the basis of the clinical examination conducted some months before, and any additional matter that had been brought to his attention, including in the course of his cross-examination.

He indicated in answer to this that he "would have to qualify my statement", which I understand to be a reference to his second report. He indicated that he would need to "measure degree of progress", by which I understand him to mean the progress made since the success of the treatment for his Honour's medical condition. He said:

"The greater the degree of improvement the better the prognosis. If treatment is started and there is no progress, then prognosis is poor. If treatment is started and there is moderate, in terms of improvement, in speed of judgment, may be not quite up to speed, then the prognosis is moderate." (p88 lines 5-15)

Dr Gilandas then went on to say:

"It would require somebody beyond myself who could look at these, what has been happening over the last four weeks and say, "things are better" and the prognosis would hinge on how much better it is." (p88 lines 15-20)

The "person beyond myself" to whom Dr Gilandas referred is a person who is capable of assessing the improved performance of a judge in complying with his duties to produce judgments within an acceptable time. This is a matter which a clinical psychologist would accept on instructions, without having the expertise to assess the degree of improvement against such a standard.

In view of the higher standard of satisfaction required on the Briginshaw test, my mind has fluctuated on this matter. In the event, I am satisfied that it was proper for the Conduct Division to accept that Dr Gilandas provided them with a diagnosis to the effect that Justice Bruce did have a personality trait of "procrastination".

Dr Gilandas did not, and could not, assess whether this trait affected his Honour in the performance of his judicial functions to an unacceptable degree. This was beyond his area of expertise. It is not unusual for an expert to give an opinion on the basis of factual assumptions. This is what happened in this case.

There was no challenge before us to the ability of the Conduct Division to draw upon its own knowledge and experience in order to provide the element which Dr Gilandas indicated he could not provide. Nor could such a challenge be made. The structure and purpose of the Judicial Officers Act and the requirement that the Conduct Division consist of other judicial officers and at most, one former judicial officer, indicates a Parliamentary intention that the members of such a Division can draw on their own knowledge and expertise of judicial conduct. This Division did so in the instant case and was entitled to do so. The way in which it chose to do so was the subject of the Plaintiff's other line of attack.

The Judgments Schedule

Having determined that an unacceptable degree of delay occurred in delivery of judgments up to February 1998, the Conduct Division did not focus its attention on any further delay beyond that time, being the time at which Justice Bruce's medical condition was accepted to have been alleviated. Indeed, the period of further delay for these reserved judgments was measured in weeks. This came after delays of many months, even more than a year.

The logical structure of the issue before the Commission can be described in the following way. Fact A and fact B were each capable of being - either alone or in combination - the substantial cause of conduct C. The issue was whether fact B (procrastination) would have been of sufficient significance to cause C in the absence of fact A (depression). Where, as here, fact A is no longer operative, the obvious way in which to determine the significance of fact B, is to wait to see whether, under ordinary conditions, Conduct C manifests itself in the absence of fact A.

The Division chose to approach the matter in a different way. In March, April, May 1998, the position of Justice Bruce cannot be described as ordinary conditions. The number of reserved judgments was large and his Honour was still not undertaking the normal burdens of office pending their delivery.

The Conduct Division focused on the arrangements made between Justice Bruce and Chief Justice Gleeson for the delivery of judgments in accordance with a Schedule, and the failure of Justice Bruce to comply with that Schedule. It was this failure which, the Conduct Division concluded, established that Justice Bruce's prior failure to deliver reserved judgments within acceptable times, was to such a measure attributable to a personality characteristic of "procrastination", that the Division could conclude that the prior incapacity to perform the functions of judicial office continued to a relevant degree.

The Schedule of Judgments reflected an arrangement between Chief Justice Gleeson and Justice Bruce, in which the Chief Justice acted on the basis of his authority, indeed his responsibility, to ensure the effective operation of the Court. The exercise of this role is well set out in Canada (Minister of Citizenship and Immigration) v Tobiass (1997) 142 DLR (4th) 270.

In the Federal Court of Appeal Marceau JA said:

"In my judgment, a Chief Justice cannot entirely disinterest himself or herself from the pace of progress of a timeliness of disposition of the cases the 