Donaldson v State of New South Wales

[2019] NSWCA 109

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Donaldson v State of New South Wales [2019] NSWCA 109
Hearing dates:	26 April 2019
Decision date:	15 May 2019
Before:	Macfarlan JA; Meagher JA
Decision:	Application for leave to appeal dismissed with costs.
Catchwords:	APPEAL – leave to appeal – judicial immunity –whether State vicariously liable for conduct of a judge and registrar– proceedings dismissed as having no prospect of success
Legislation Cited:	Judicial Officers Act 1986 (NSW), s 44C Law Reform (Vicarious Liability) Act 1983 (NSW) Supreme Court Act 1970 (NSW), s 101(2)(e) Uniform Civil Procedure Rules 2005 (NSW), r 4
Cases Cited:	Anderson v Gorrie [1895] 1 QB 668 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Broom v Morgan [1953] 1 QB 597 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Donaldson v Commonwealth of Australia [2011] NSWSC 423 General Steel Industry v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 Gibbons v Duffell (1932) 47 CLR 520; [1932] HCA 26 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Mann v O’Neill (1997) 191 CLR 204; [1997] HCA 28 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; [1997] HCA 39 Sirros v Moore [1975] 1 QB 118 Sneddon v State of New South Wales [2012] NSWCA 351 Tooth & Co Ltd v Tillyer (1956) 95 CLR 605; [1956] HCA 49 Wentworth v Wentworth (2001) 52 NSWLR 602; [2000] NSWCA 350 Re East; Ex Parte Nguyen (1998) 196 CLR 354; [1998] HCA Rajski v Powell (1987) 11 NSWLR 522
Category:	Principal judgment
Parties:	Kenneth Allan Donaldson (Applicant) State of New South Wales (Respondent)
Representation:	Counsel: Kenneth Allan Donaldson (self-represented - Applicant) S. Patterson (Respondent)   Solicitors: Kenneth Allan Donaldson (self-represented - Applicant) Lee Armstrong, Crown Solicitor’s Office (Respondent)
File Number(s):	2018/335157
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2018] NSWSC 1562 Date of Decision: 17 October 2018 Before: Hamill J File Number(s): 2017/00298829

Judgment

1. THE COURT: This is an application by Mr Kenneth Donaldson for leave to appeal against a judgment of Hamill J summarily dismissing Mr Donaldson’s Common Law Division proceedings pursuant to Part 13, r 4 of the Uniform Civil Procedure Rules 2005 (NSW) (Kenneth Allan Donaldson v State of New South Wales [2018] NSWSC 1562).

2. By his statement of claim, Mr Donaldson sought damages in the amount of $70 million from the respondent (“the State”) upon the basis that the State was vicariously liable for allegedly negligent and other inappropriate conduct on the part of Davies J of the Common Law Division in hearing and dismissing earlier proceedings brought by Mr Donaldson against the Commonwealth of Australia (Donaldson v Commonwealth of Australia [2011] NSWSC 423). Mr Donaldson also made similar allegations of misconduct against a Registrar of the Court and sought to make the State vicariously liable for that conduct.

3. In dealing with the State’s application for summary dismissal the primary judge correctly proceeded on the basis that a claim should be summarily dismissed only in a “clear case” in which that claim is “manifestly groundless” in the sense that it is “so obviously untenable that it cannot possible succeed”(at [10]; citing General Steel Industry v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69; and Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27).

4. Hamill J concluded that Mr Donaldson’s proceedings against the State had no prospect of success, for at least the following reasons:

1. each of the alleged tortfeasors for whose conduct the State was sought to be made vicariously liable, Davies J and the Registrar, was entitled to the benefit of judicial immunity (at [32]-[33]);

2. the State, through its judicial officers, does not owe Mr Donaldson a “duty of care either by virtue of vicarious liability or otherwise” (at [36]).

3. the proceedings were an abuse of process because they attempted to re-litigate matters which were the subject of Mr Donaldson’s earlier proceedings against the Commonwealth, which Davies J had determined adversely to Mr Donaldson (at [25]);

5. The applicant requires the leave of this Court to appeal because the primary judge’s order was interlocutory: Supreme Court Act 1970 (NSW), s 101(2)(e); see also Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [11]-[13] (Allsop P, Tobias JA and Handley AJA).

6. We have concluded that Mr Donaldson’s application for leave to appeal should be dismissed as, like Hamill J, we consider his proceedings to have no prospect of success. Our reasons are as follows.

7. First, Davies J had the benefit of common law judicial immunity in respect of his conduct and judgment in Mr Donaldson’s proceedings against the Commonwealth. The existence of such immunity, at least where as here there is no supportable allegation that the judge knowingly acted without jurisdiction, is beyond question (Sirros v Moore [1975] 1 QB 118 at 134-6; Rajski v Powell (1987) 11 NSWLR 522 at 534-6, 538-40; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [40], [96]-[100]). The Registrar has the benefit of a similar immunity by reason of s 44C of the Judicial Officers Act 1986 (NSW).

8. That immunity is absolute and precludes liability (Mann v O’Neill (1997) 191 CLR 204; [1997] HCA 28 at 238 (Gummow J)). Absolute immunity has thus been described as “indefeasible” (Gibbons v Duffell (1932) 47 CLR 520; [1932] HCA 26 at 528 (Gavan-Duffy CJ, Rich and Dixon JJ)).

9. It is well-established that a judge of the Supreme Court is protected by this immunity (Re East; Ex Parte Nguyen (1998) 196 CLR 354; [1998] HCA 73 at [30] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Rajski v Powell at 534-6 (Kirby P) at 538 (Priestley JA, Hope JA agreeing)).

10. Secondly, the judicial immunity of Davies J and the Registrar requires the conclusion that the State is not vicariously liable to Mr Donaldson in respect of their allegedly inappropriate conduct. Adopting the language of Brennan CJ, the application of the doctrine of vicarious liability requires that there is an underlying tortious liability that can be “sheeted home” to someone other than the tortfeasor (Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 329-30; [1997] HCA 39. See also Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 at [32]).

11. By reason of statute or otherwise, a person might not be able to be sued but nevertheless might still be regarded as having committed a tort, so that another party might be vicariously liable in respect of his or her conduct (see for example Broom v Morgan [1953] 1 QB 597 at 607, 609 and 612; Tooth & Co Ltd v Tillyer (1956) 95 CLR 605; [1956] HCA 49). We do not however consider it arguable that the nature of judicial immunity is such that Davies J or the Registrar might properly be regarded as having committed a tort, notwithstanding the applicability of judicial immunity. The rationale of judicial immunity indicates otherwise.

12. The immunity is designed to ensure that judges “may be free in thought and independent in judgment” and “not … be plagued with allegations of malice or ill-will or bias or anything of the kind” (Sirros v Moore at 136 per Lord Denning MR). To similar effect, Lord Esher MR said in Anderson v Gorrie [1895] 1 QB 668 at 670-1, that if there were no immunity the “judges would lose their independence and that the absolute freedom and independence of the judges is necessary for the administration of justice” (cited with approval in Rajski v Powell at 528 per Kirby P). An immunity which protected judges against suit but allowed them to suffer the ignominy of being characterised as tortfeasors would not be consistent with these objectives, nor with the “absolute and non-qualified character” of judicial immunity to which Heydon JA referred in Wentworth v Wentworth (2001) 52 NSWLR 602; [2000] NSWCA 350 at [260].

13. In these circumstances, it is unarguably clear that the State does not have any vicarious liability as was alleged in Mr Donaldson’s proceedings.

14. In conclusion, we note that the summary dismissal of Mr Donaldson’s proceedings against the State is not able to be justified on the alternative basis that judicial officers are not subject to direction by the State in respect of their judicial activities and therefore exercise independent discretions (compare Rajski v Powell at 530-1). The Law Reform (Vicarious Liability) Act1983 (NSW) arguably prevents the State disclaiming vicarious liability on this basis. That Act renders the Crown vicariously liable in respect of torts committed by persons “in the service of the Crown”, notwithstanding that they are not subject to the Crown’s direction and therefore exercise “independent functions”. Judges clearly exercise “independent functions” for the purposes of that Act and they are, at least arguably, “in the service of the Crown” (as to which expression, see the discussion in Sneddon v State of New South Wales [2012] NSWCA 351).

15. For the reasons that we have given, Mr Donaldson’s application for leave to appeal is dismissed with costs.

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Decision last updated: 15 May 2019