Opinion Number. 1032

Subject

COURTS AND JUDGES REMOVAL OF JUDGE: CIRCUMSTANCES IN WHICH DEPUTY JUDGE AND SPECIAL MAGISTRATE OF NORTHERN TERRITORY MAY BE REMOVED: MISBEHAVIOUR DURING PREVIOUS PERIOD OF APPOINTMENT

Key Legislation

LOCAL COURTS ACT 1886 (S.A.), s. 14: SUPREME COURT ORDINANCE 1911 (NT.), ss. 8 (1), 10B: PUBLIC SERVICE ORDINANCE 1913 (NT.)

Date
Client
The Secretary, Department of Home and Territories

The Secretary to the Department of Home and Territories has forwarded a file relating to the appointment of Mr Gerald Hogan as Special Magistrate and Deputy Judge of the Northern Territory and to the request by three legal practitioners of Darwin for his removal from the ofiices of Deputy Judge and Special Magistrate and requests advice as to-

  1. what action (if any) should be taken on the complaint of legal practitioners of Darwin; and
  2. whether, assuming that the Minister desires to terminate Mr Hogan's employment, there is any bar under the Public Service Ordinance 1913 to his doing so.

Section 10B of the Supreme Court Ordinance 1911-1919 provides that the Governor-General may, by Commission, appoint a person to be a Deputy Judge of the Supreme Court during such period and for such purposes as are specified in the Commission.

No provision is made in the Ordinance for the removal of the Deputy Judge or specifying the grounds on which the Deputy Judge may be removed from office before the expiration of the period for which he is appointed. Sub-section (1) of section 8 of the Ordinance provides that the Judge of the Northern Territory may only be removed from office, before the due date of his retirement, on the ground of misbehaviour or incapacity.

In the absence of any other provision, the removal of a Deputy Judge should, I think, only be effected on the same grounds as would warrant the removal of the Judge.

The question then arises whether the facts set forth in the letter of Messrs McCay & Thwaites of 26 August 1920 constitute such misbehaviour or incapacity as would justify the removal of Mr Hogan from the office of Deputy Judge.

I am not prepared, without full knowledge of the facts, to express a definite opinion with respect to the question, but in view of the fact that the letter referred to above mentions only one specific case, it is, I think, doubtful whether investigation would be justified.

Further, Mr Hogan has been reappointed for a further period of three months from 15 October 1920-a date subsequent to that on which the complaint as to his conduct was made-and the conduct of Mr Hogan during the period of his appointment commencing on 15 July 1920 could not, I think, be made the ground of terminating his appointment commencing on 15 October 1920-practically a new appointment.

As regards the question whether there is any bar under the Public Service Ordinance 1913 to the Minister terminating Mr Hogan's employment if he thinks fit, I am clearly of opinion that there is no such bar, either as regards Mr Hogan's appointment as Magistrate or Deputy Judge, although in the latter case Mr Hogan might, under certain circumstances, have a claim for compensation against the Government.

Mr Hogan's appointment as Special Magistrate is made under section 14 of the Local Courts Act 1886 of the State of South Australia in pursuance of which he holds his appointment 'during His Majesty's pleasure', and may, therefore, be removed at any time.

[Vol. 17, p. 149]