Overview of the Judicial Commission

In the case of Justice Vince Bruce three of the judge's peers were responsible for hearing the evidence and deciding whether the case was serious enough to go to Parliament. In this case, the two main issues were;

1. Was Justice Vince Bruce incapable of doing his job?
2. Was the complaint that his backlog of judgments was unsatisfactory a reasonable complaint?

Below is an extract of the transcript of the Judicial Commission of NSW hearing on May 26, 1998

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL JUDGMENT [26 May 1998]

…The plaintiff is a Judge of this Court...The function of a Conduct Division of the Commission, is to examine and deal with complaints referred to it by the Commission The Division is constituted by three persons appointed by the Commission. The three persons must be judicial officers but one may be a retired judicial officer. ... If, as in the present case, the complaint is reclassified as serious and if the Division decides that it is wholly or partly substantiated, the Division may form an opinion that the matter could justify parliamentary consideration of the removal of the judicial officer complained about from office.

In relation to a serious complaint, the Conduct Division is required to present to the Governor a report setting out the Division's conclusions. …The Act contemplates that a complaint may be upheld on the basis of inability or incapacity, as distinct from misbehaviour … and that such inability may be the consequence of physical or mental unfitness.

…the issue of delay in delivering judgments... had become a matter of some public discussion through newspaper articles that are referred to in the report.

…The Conduct Division reclassified the various complaints as serious. This is a technical expression defined as being ‘a complaint whose grounds, if substantiated, could in the opinion of the Division, justify parliamentary consideration of the removal of the judicial officer complained about from office.’

What was in issue was the present capacity of the judicial officer, a matter which was addressed by the Conduct Division in its report and a matter which turned in part upon objective facts occurring over a period of time, and in part upon matters involving the plaintiff's reaction to those facts, and in part upon medical evidence.

In para 74 it was stated:
"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."

In par 78 it is recorded that:-
"The Division has given earnest consideration to the competing contentions but has ultimately come to the view that as the medical condition J has, with treatment, now plateaued, it cannot be said that the incapacity satisfactorily to perform the judicial function has been removed.

The Division is of the view that it is disputable demonstrated incapacity up to February 1998 remains, although the incapacity has been diminished to some extent by the alleviation of the depression."

The report is then signed by the three Members of the Conduct Division.