Eastlund (a pseudonym) v Legal Aid Act; pseudonym) v Neville; Eastlund (a pseudonym) v Haddock

[2022] ACTSC 106

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Eastlund (a pseudonym) v Legal Aid ACT; Eastlund (a pseudonym) v Neville; Eastlund (a pseudonym) v Haddock
Citation:	[2022] ACTSC 106
Hearing Date:	13 May 2022
Decision Date:	13 May 2022
Before:	Elkaim J
Decision:	See [27]
Catchwords:	PROCEDURE – Summary Judgement – claim for negligence against judicial officer – where judicial officer has immunity for judicial act within jurisdiction – claim for professional negligence against barrister – where defendant did not act for the plaintiff – claim for negligence against Legal Aid ACT – where asserted negligence occurred during court appearances – whether plaintiff’s causes of action are doomed to fail
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 1147
Cases Cited:	D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
Eastlund (a pseudonym) v Orezykowski; Eastlund (a pseudonym)
v Shavaiz [2022] ACTSC 68 Eastlund (a pseudonym) v Westlake (a pseudonym) [2022] ACTSC 52 Yeldham v Rajski (1989) 18 NSWLR 48 Zamora v Eastlund [2021] FCCA 672
Parties:	Mr Eastlund (a pseudonym) (Plaintiff/Respondent)
Legal Aid ACT (Defendant/Applicant in SC 470 of 2021) Judge Warrick J Neville (Defendant/Applicant in SC 1 of 2022)
James Haddock (Defendant/Applicant in SC 2 of 2022)
Representation:	Counsel
Mr Eastlund (a pseudonym) (Plaintiff)
A Costin (Defendant in SC 470 of 2021) P Bindon (Defendant in SC 1 of 2022)
W Sharwood (Defendant in SC 2 of 2022)
Solicitors
Self-represented (Plaintiff) Legal Aid ACT (Defendant in SC 470 of 2021) MinterEllison (Defendant in SC 1 of 2022)
DLA Piper (Defendant in SC 2 of 2022)
File Numbers:	SC 470 of 2021
SC 1 of 2022 SC 2 of 22
Elkaim J

1.       There are three applications before me today, each arising from a different proceeding, although generally having their origin in the same set of facts.

2.       Each application seeks the same relief; that there be summary judgment for the respective defendants.

3.       There have already been three similar cases arising from the same background facts. They are Eastlund (a pseudonym) v Westlake (a pseudonym) [2022] ACTSC 52 (Westlake), Eastlund (a pseudonym) v Orezykowski; Eastlund (a pseudonym) v Shavaiz [2022] ACTSC 68. The first is a decision of McCallum CJ delivered on 23 March 2022. The latter two cases form part of the same judgment, delivered by Kennett J on 6 April 2022.

4.       The background facts are set out in the above cases. For present purposes it is sufficient to say that the plaintiff was a party to proceedings in the Federal Circuit Court (Zamora v Eastlund [2021] FCCA 672). The proceedings involved the plaintiff, Ms Zamora and a child, X. Ms Zamora is the mother of X. The plaintiff is the father.

5.       The ultimate decision of the Federal Circuit Court did not favour the plaintiff.

6.       In the plethora of actions brought in this Court, the plaintiff has sued the judge who heard the case, the solicitors and barrister who acted for Ms Zamora, the court-

appointed “family consultant” who gave evidence in the family law proceedings and

Legal Aid ACT which represented the plaintiff.

7.       The decisions of McCallum CJ and Kennett J dealt with the cases against the solicitors and the family consultant. In each case summary judgment was entered.

8. I am left to deal with the applications for summary judgment, brought by the judge, the barrister and Legal Aid ACT.

9.       I will maintain the pseudonym adopted in the other decisions in respect of the plaintiff. I was informed that there was no need for a pseudonym in respect of the judge and Mr Haddock.

The judge

10.     The case pleaded against the judge can be summarised as follows: he was negligent in the conduct of the proceedings and in reaching his ultimate decision.

11.    As in Westlake, “the action faces a fundamental difficulty”. This was stated by

McCallum CJ, at [15], as follows:

A judge has immunity from suit for any judicial act done within jurisdiction: D’Orta-Ekenaike

v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [40] (Gleeson CJ, Gummow, Hayne and Heydon JJ) citing Sirros v Moore [1975] QB 118 and Rajski v Powell (1987) 11 NSWLR 522 at [99] (McHugh J).

12.     Kirby P, in Yeldham v Rajski (1989) 18 NSWLR 48 at 58, referred to jurisdiction as meaning

“…. The judicial power to hear and determine a matter. It does not mean the manner, method

or correctness of the exercise of that power”.

13.     The case alleged against the judge does not suggest any act done outside of his jurisdiction.

14. Accordingly, the action is doomed to fail. It is appropriate to enter summary judgment pursuant to r 1147 of the Court Procedures Rules 2006 (ACT).

The barrister

15.     As noted above, the barrister appeared for Ms Zamira. The allegation against him is

one of professional negligence. The barrister’s affidavit, in the words of the written

submissions, states that:

his involvement with the parenting matter was confined to the hearing of the matter over two
tranches of two days, and the preparation of written submissions.

1. The same considerations apply here as were applied by Kennett J in Eastlund (a pseudonym) v Orezykowski, commencing at [10]:

   10.    In these circumstances, it would be incongruous to hold that the defendants owed a duty of care to Mr Eastlund. The problem is, as the High Court observed in Sullivan v Moody [2001] HCA 59; 207 CLR 562 (Sullivan) at [55], one of coherence of the law. The circumstances of the present cases are strongly analogous to those of Sullivan, where the defendants were medical practitioners who were under obligations to report circumstances of suspected child abuse, and the plaintiffs were the fathers of young children who were suspected of abusing them. The High Court held that it would be

   inconsistent with the proper discharge of the defendants’ responsibilities for them to be

   subject to a legal duty to take care to protect persons in the position of the plaintiffs. Here, also, proper and effective performance by the defendants of their duties (Ms

   Orezykowski’s duty under statute and Ms Shavaiz’s duty to her client) was incompatible

   with them having a duty to protect Mr Eastlund. 11.

   11.    Secondly, the High Court in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223

   CLR 1 and Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; 259 CLR 1 affirmed the common law rule that an advocate is immune from suit in respect of any act or omission made in the conduct of legal proceedings. The first of those cases also extended the immunity to a solicitor in the conduct of court proceedings. The scope of the immunity includes advice which leads to a decision affecting the conduct of a case and work intimately connected with work in a court. The allegations advanced by Mr Eastlund, so far as one can understand them, all relate to the work done by Ms Orezykowski and Ms Shavaiz as lawyers acting in the family law proceedings. This work falls within the scope of the immunity.

17.     Once again, whether because of the absence of a duty of care or the presence of

advocates’ immunity, the action against the barrister is doomed to fail. Summary

judgment must follow.

Legal Aid ACT

18.     Unlike the other cases, this defendant was on the plaintiff’s ‘side’ during the family court

proceedings. As seen in the High Court case of D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 (D’Orta-Ekenaike), Legal Aid ACT might be regarded as a

firm of solicitors retained by the plaintiff. This status was conceded on behalf of Legal
Aid ACT.

19.     That being so, again as seen in D’Orta-Ekenaike, the solicitors will have the benefit, in

appropriate circumstances, of an immunity from suit.

20.     When I initially read the Amended Statement of Claim, filed on 6 May 2022, I thought some of the allegations might fall outside the scope of the immunity. Although the

pleading is in far from the usual form, it does sufficiently convey the plaintiff’s complaint

against Legal Aid ACT, namely that it was negligent in its representation of him.

21.     The acts of negligence are said to have occurred on seven separate occasions listed

under the title “WHY DID THIS HAPPEN”. The first two dates must be immediately

discounted because they occurred at a time when Legal Aid ACT had not yet been
granted to the plaintiff.

22.     The balance of the acts of asserted negligence all occurred, the plaintiff told me, during court appearances. That being so, the immunity would apply.

23.     Once again therefore the action is doomed to failure and summary judgment must follow.

General comments

24.     Mr Eastlund seemed to concede, as he had before the Chief Justice, that his actions could not succeed. However, he wished to have a judgment to this effect in case he decided to take the matter further. Perhaps, he contemplated, the laws relating to immunity might be changed.

25.     Mr Eastlund told me that he had not appealed from the decision of Judge Neville. He simply could not afford to do so. Accordingly, I gleaned, he had taken the actions in this Court in the hope that he could seek redress for the wrongs that he perceived had been inflicted upon him.

26.     Finally, and consistently, when I asked Mr Eastlund if he had anything further to add, he posed the question: why have he and his son been separated?

Orders

27. In each of the following matters: SC 1 of 2022 (Eastlund (a pseudonym) v Neville), SC 2 of 2022 (Eastlund (a pseudonym) v Haddock), SC 470 of 2021 (Eastlund (a pseudonym) v Legal Aid ACT), I make the following orders:

(a)	Summary judgment for the defendant.
(b)	The plaintiff is to pay the defendant’s costs of the proceedings.

I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: