Eastlund (a pseudonym) v Westlake (a pseudonym)
[2022] ACTSC 52
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Eastlund (a pseudonym) v Westlake (a pseudonym) |
Citation: | [2022] ACTSC 52 |
Hearing Date(s): | 18 March 2022 |
DecisionDate: | 23 March 2022 |
Before: | McCallum CJ |
Decision: | (1) Judgment for the defendant. (2) The plaintiff pay the defendant’s costs. |
Catchwords: | PROCEDURE ─ Summary Dismissal ─ Where the defendant has protection and immunity in relation to the performance of their professional functions ─ Whether the plaintiff’s cause of action is doomed to fail |
Legislation Cited: | Court Procedures Rules 2006 (ACT) Family Law Act 1975 (Cth) |
Cases Cited: | D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Zamora v Eastlund [2021] FCCA 672 |
Parties: | Mr Eastlund (a pseudonym) ( Plaintiff) Ms Westlake (a pseudonym) ( Defendant) |
Representation: | Counsel Self-represented ( Plaintiff) J Moffett ( Defendant) |
| Solicitors Self-represented ( Plaintiff) Sparke Helmore Lawyers ( Defendant) | |
File Number(s): | SC 469 of 2021 |
McCALLUM CJ:
The plaintiff in these proceedings was the respondent in family law proceedings heard in the Federal Circuit Court of Australia. Those proceedings were governed by the Family Law Act 1975 (Cth), s 121 of which protects the anonymity of parties, persons associated with parties and witnesses in such proceedings. Courts exercising jurisdiction under the Family Law Act commonly use pseudonyms to maintain that anonymity; the plaintiff was given the pseudonym “Mr Eastlund”. It is appropriate to adopt the same pseudonym here so as to preserve the protection afforded by those measures.
Mr Eastlund is the father of the child the subject of the family law proceedings. The mother of the child was referred to in those proceedings by the pseudonym “Ms Zamora”. On 15 April 2021, the Court determined an application concerning the child, largely accepting the position contended for by the mother: Zamora v Eastlund [2021] FCCA 672.
The defendant in these proceedings is a psychologist who was designated as the “family consultant” in relation to the proceedings in the Federal Circuit Court, as allowed under s 69ZS of the Family Law Act. She gave evidence in the proceedings in that capacity and so is entitled to the same protection of anonymity as the parties: s 121(1)(c) of the Act. For that reason, she is referred to here by the pseudonym “Ms Westlake”.
The present action was commenced by Statement of Claim and Originating Application each filed by Mr Eastlund on 12 November 2021. Mr Eastlund is not legally represented in the proceedings and has not pleaded his cause of action in the conventional way. However, it is clear enough that his purpose in bringing the proceedings is to obtain an award of damages against Ms Westlake for her alleged negligence in the discharge of her functions as family consultant in the family law proceedings. So much may be gleaned from the affidavit affirmed by Mr Eastlund filed in support of the application, in which he makes various assertions as to alleged incompetence and negligence on the part of Ms Westlake.
The action faces a fundamental difficulty. Section 11D of the Family Law Act confers on a “family consultant” designated under the Act the same protection and immunity in performing his or her functions in that capacity as a Judge of the Federal Circuit and Family Court of Australia (Division 1) has in performing the functions of a Judge. Ms Westlake accordingly contends that, leaving aside any defect in the pleadings which might have warranted a strike-out application, the action is doomed to fail in any event. By application filed 3 March 2022, Ms Westlake seeks summary judgment on that basis.
I have concluded that Ms Westlake’s contention is correct and that she is entitled to judgment in her favour, for the following reasons.
Ms Westlake’s application invokes r 1147 of the Court Procedures Rules 2006 (ACT). Relevantly for present purposes, r 1147(2) empowers the Court to give judgment for the defendant against the plaintiff if the Court is satisfied that there is a good defence to the plaintiff's claim for relief or that the proceeding should be finally disposed of summarily or without pleadings.
It is trite that the power to enter judgment summarily must only be exercised in the clearest of cases. The lack of a cause of action must be “clearly demonstrated”: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129.
The lack of a cause of action is beyond dispute in the present case.
First, the evidence establishes that Ms Westlake is duly appointed as a family consultant of the Federal Circuit Court under the Family Law Act. Section 11B(c) of the Act defines a family consultant to include a person appointed as a family consultant under the regulations. Regulation 7 of the Family Court Regulations 1984 (Cth) provides that, for the purposes of s 11B(c) of the Act, a family consultant may be appointed in writing by the Chief Executive Officer. Ms Westlake holds an instrument dated 1 July 2016 appointing her as a family consultant of the Federal Circuit Court in accordance with that regulation.
Secondly, it is clear that Ms Westlake’s involvement in the Zamora v Eastlund proceedings was in her capacity as a family consultant. The functions of a family law consultant are set out in s 11A of the Family Law Act and include in s 11A(d) “reporting to the court under sections 55A and 62G”. Under s 62G(2) of the Act, the Court has power, in proceedings concerning the care, welfare and development of a child, to direct a family consultant to give the Court a report on “such matters relevant to the proceedings as the court thinks desirable”.
In the Zamora v Eastlund proceedings, Mr Eastlund made an application against Ms Zamora in relation to the custody of their child. The judge hearing the matter, Judge Neville, made a series of directions requiring the production of reports by a family consultant. Ms Westlake was designated as the family consultant for the purpose of those directions and provided three reports to the Court in accordance with the Court’s directions. On 20 October 2020, Ms Westlake attended the hearing and was cross-examined. Her entire participation in the family law proceedings has been in her capacity as a duly appointed family consultant.
Thirdly, while the claim is not well pleaded, it is at least clear that it is concerned exclusively with Ms Westlake’s conduct in the preparation and provision of her reports to the Federal Circuit Court. The statement of claim asserts professional negligence in relation to the Federal Circuit Court proceedings. The Originating Application similarly asserts “incompetence through professional negligence as legal representative in family law case”. The affidavit in support of the Originating Application specifies that the claim is for “compensation - damages (professional negligence)”. The details provided in the affidavit relate exclusively to the several reports provided by Ms Westlake in the proceedings.
Finally, it is beyond dispute that s 11D of the Family Law Act confers immunity on Ms Westlake in relation to her performance of her functions as a family consultant. That section provides:
“A family consultant has, in performing his or her functions as a family consultant, the same protection and immunity as a Judge of the Federal Circuit and Family Court of Australia (Division 1) has in performing the functions of a Judge.”
Mr Moffett, who appeared for Ms Westlake, was unable to find any authority directly concerned with the operation of that section. However, its import is clear. Ms Westlake has the same immunity as a judge of the Court. 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).
At the hearing of the application, I endeavoured to explain to Mr Eastlund the difficulty faced by his action. I allowed him an opportunity to obtain legal advice and stood the matter over for further hearing. Mr Eastlund provided a short, written submission in which he acknowledged Ms Westlake’s immunity from suit and sought to have the case referred to a higher court to overrule the legislation. He appeared by telephone at the adjourned hearing. As I endeavoured to explain to him before he terminated his connection with the hearing, it is doubtful whether I have authority to refer the matter to a higher court but, in any event, to do so would be of no avail to Mr Eastlund as no higher court would have authority to overrule the legislation.
Accordingly, I am satisfied that Mr Eastlund’s claim against Ms Westlake is doomed to fail and that it is appropriate to exercise the Court’s summary jurisdiction to enter judgement in her favour
I make the following orders:
1. judgment for the defendant
2. that the plaintiff pay the defendant’s costs.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 23 March 2022 |