Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Ors

[2005] NSWSC 926

CITATION:	Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Ors [2005] NSWSC 926
HEARING DATE(S):	22 July 2005
JUDGMENT DATE :	14 September 2005
JUDGMENT OF:	Johnson J at 1
DECISION:	Refer to paragraph 68 of the Judgment.

CATCHWORDS:	PRACTICE AND PROCEDURE - Appeal from decision of Master undertaking review of decision of Registrar - summary dismissal of claim for misfeasance in public office against District Court - doctrine of judicial immunity - claims against other defendants for malicious prosecution, false imprisonment, wrongful arrest, trespass to the person and trespass to goods - balance of statement of claim struck out - purposes of pleadings - embarrassing pleadings - leave to replead granted against remaining defendants
LEGISLATION CITED:	Civil Procedure Act 2005 Uniform Civil Procedure Rules Supreme Court Act 1970 Supreme Court Rules Prevention of Cruelty to Animals Act 1979 Crimes Act 1900 Judicial Officers Act 1986 Justices Act 1902 District Court Act 1973 Interpretation Act 1987
CASES CITED:	McDowell v Fox [2003] NSWSC 324 In the Will of Sheppard (1972) 2 NSWLR 714 RT & YE Falls Investments Pty Limited v State of New South Wales (Santow J, 14 May 1998, BC9802115) Wentworth v Graham [2002] NSWCA 397 Application of Eubanks [2003] NSWSC 386 QBE Workers Compensation (NSW) Pty Ltd v The Sports Pit Pty Ltd (Young J, 12 October 1995, unreported, BC9501739) Johnstone v Deutsche Australia Ltd [2003] NSWSC 933 Fleet v RSPCA [2005] NSWSC 318 Warren v Coombes (1979) 142 CLR 531 Do Carmo v Ford Excavations Pty Limited [1981] 1 NSWLR 409 Morrison v Judd (CA(NSW), 10 October 1995, BC9507158) House v The King (1936) 55 CLR 499 Fleet v District Court of NSW and Ors [1999] NSWCA 363 Fleet v District Court of NSW and Ors [2002] NSWCA 25 General Steel Industries Inc v Commissioner of Railways (NSW) and Ors (1964) 112 CLR 125 Gallo v Dawson (1988) 63 ALJR 121 Rajski v Powell (1987) 11 NSWLR 522 Yeldham v Rajski (1989) 18 NSWLR 48 Bar-Mordecai v Bryson and Ors [2002] NSWSC 815 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Webster v Lampard (1993) 177 CLR 598 R v Mosely (1992) 28 NSWLR 735 United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 Pelechowski v Registrar, Court of Appeal (NSW) [1999] 198 CLR 435 Wentworth v Wentworth (2001) 52 NSWLR 602 D'Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755; [2005] HCA 12 Fingleton v The Queen (2005) 79 ALJR 1250; [2005] HCA 34 Sirros v Moore (1975) QB 118 In re McC (A Minor) (1985) AC 528 Cannon v Tahche (2002) 5 VR 317 Rajski v Bainton (1990) 22 NSWLR 125 Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 Australian Competition and Consumer Commission v Fox Symes & Associates Pty Limited [2005] FCA 1071 Gunns Ltd v Marr [2005] VSC 251 Shelton v National Roads & Motorists Association Limited [2004] FCA 1393 Northam v Favelle Favco Holdings Pty Limited (Bryson J, 7 March 1995, BC9504276) Turner v Bulletin Newspapers Co Pty Ltd (1974) 131 CLR 69 Cashin v Cradock (1876) 3 ChD 376
PARTIES:	Robert Fleet (Plaintiff) Royal Society for the Prevention of Cruelty to Animals NSW (First Defendant) Louise Mary Parker (Second Defendant) Graeme Dymond (Third Defendant) State of New South Wales (Fourth Defendant) District Court of New South Wales (Fifth Defendant)
FILE NUMBER(S):	SC 20215/03
COUNSEL:	Dr R Fleet (Litigant in Person) Mr D Kelly (First, Second and Third Defendants) Mr A Foel (Fourth and Fifth Defendants)
SOLICITORS:	Moray & Agnew (First, Second and Third Defendants) I V Knight (Fourth and Fifth Defendants)

LOWER COURT JURISDICTION:
LOWER COURT JUDICIAL OFFICER :	Master Malpass

OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

Johnson J

14 September 2005

20215/03 Robert Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Ors

JUDGMENT

1 JOHNSON J: These proceedings involve a claim for damages by Dr Robert Fleet arising from events in March 1997 concerning his German Shepherd dog. Action was taken against Dr Fleet by officers of the Royal Society for the Prevention of Cruelty to Animals NSW and members of the New South Wales Police. Prosecutions were brought against Dr Fleet arising from these events.

2 Dr Fleet commenced civil proceedings alleging a variety of causes of action. He sued the RSPCA (the First Defendant), two RSPCA officers (the Second and Third Defendants), the State of New South Wales (the Fourth Defendant) arising from the actions of police officers and the District Court of New South Wales (the Fifth Defendant) with respect to the hearing of criminal proceedings before that Court.

3 The causes of action alleged by Dr Fleet included malicious prosecution, false imprisonment, wrongful arrest, trespass to the person, trespass to goods, illegal search and seizure and misfeasance in public office.

4 A Registrar summarily dismissed Dr Fleet’s claim against the District Court of New South Wales for misfeasance in public office. The Registrar struck out the balance of Dr Fleet’s claim upon the basis that the pleadings were embarrassing and did not comply with the requirements for proper pleadings. The Registrar granted Dr Fleet leave to file a further pleading on the condition that he first satisfied the costs orders made against him by the Registrar in favour of the Defendants. Dr Fleet sought a review of the Registrar’s orders by a Master. The Master confirmed the decisions and orders of the Registrar. Dr Fleet now appeals against the decision of the Master.

Nature of Proceedings

5 The appeal by Dr Fleet from the decision of a Master is brought pursuant to Part 60 r 10 Supreme Court Rules. It follows a review by the Master of a decision of the Registrar pursuant to Part 61 r 3 Supreme Court Rules.

6 The hearing of the appeal before me took place before the commencement of the Civil Procedure Act 2005 (“CP Act”) and Uniform Civil Procedure Rules (“UCPR”) on 15 August 2005. No material change has been made by those statutory reforms to the provisions which are relevant to this case. I will refer to the previous provisions and equivalent provisions under the CP Act and UCPR, where appropriate.

7 The decision of the Registrar involved summary dismissal of the proceedings against the District Court of New South Wales pursuant to Part 13 r 5 Supreme Court Rules (see now s.67 CP Act and Part 13.4 UCPR) and the striking out of the balance of Dr Fleet’s claim on pleading grounds pursuant to Part 15 r 26 Supreme Court Rules (see now Part 14.28 UCPR).

8 A Registrar is not empowered under Schedule E of the Supreme Court Rules to make orders of the type made in this case. However, on 29 September 2004, Master Malpass (as his Honour then was) referred the motions to a Registrar for determination pursuant to paragraph 11 of Part 2 of Schedule E. Accordingly, the Registrar was exercising delegated powers in making these orders.

9 Thereafter, the Plaintiff sought a review of the Registrar’s orders pursuant to Part 61 r 3 Supreme Court Rules. On 11 April 2005, Master Malpass undertook the review. Having determined that there was no basis disclosed for disturbing the orders made by the Registrar, the decisions and orders of the Registrar were confirmed.

10 I am presently determining an appeal from the decision of the Master made on 11 April 2005. That appeal is by way of rehearing: s.75A Supreme Court Act 1970.

Nature of Review under Part 61 r 3 Supreme Court Rules

11 The Master was undertaking a review of the Registrar’s orders under Part 61 r 3 Supreme Court Rules (which remains in force). In carrying out this function, the Registrar was exercising powers delegated by the Master. It was not suggested that there was an impediment to the Master reviewing the decision of the Registrar made under delegation from the Master: cf McDowell v Fox [2003] NSWSC 324 at paragraphs 25-28.

12 A review of an order made by a Registrar pursuant to Part 61 r 3 is not an appeal. It is not necessary for the applicant to demonstrate that the decision of the Registrar was affected by error: In the Will of Sheppard (1972) 2 NSWLR 714 at 716-7; RT & YE Falls Investments Pty Limited v State of New South Wales (Santow J, 14 May 1998, BC9802115 at page 2); Wentworth v Graham [2002] NSWCA 397 at paragraphs 8-9; Application of Eubanks [2003] NSWSC 386 at paragraph 8. It is customary on such a review for the parties to be restricted to the material before the Registrar, although extra evidence may be called: QBE Workers Compensation (NSW) Pty Ltd v The Sports Pit Pty Ltd (Young J, 12 October 1995, unreported, BC9501739 at page 2). The Court is not bound by the material before the Registrar at the time when the decision under review was made and evidence of subsequent events, where appropriate, is admissible: Johnstone v Deutsche Australia Ltd [2003] NSWSC 933 at paragraph 18. Where the Registrar’s decision involves a matter of practice and procedure, the reviewing court should properly exhibit a natural inhibition against the unrestrained substitution of that court’s views for those of the Registrar: Falls at page 2; Wentworth v Graham at paragraph 9. However, such inhibition is, in terms of degree, of a lesser order than that applying to a court in an appeal from a decision of the reviewing Master where matters of practice and procedure are concerned: Falls at page 2. The Court on review is entitled to make any order that is thought to be just in the circumstances of the case: QBE Workers Compensation (NSW) Pty Limited v The Sports Pit Pty Limited at page 2.

13 Following the review in this case, the Master gave short reasons confirming the Registrar’s decision: Fleet v RSPCA [2005] NSWSC 318. The Master said at paragraphs 6-7:

“6. In conducting the review the court perused, inter alia, the reasons for the decision of the Registrar, the material he had before him (including the plaintiff’s pleading) and the submissions made by the parties during the conduct of the review.

7. Following that review, I have come to the decision that no basis has been disclosed for disturbing the orders made by the Registrar.”

14 The Master did not elaborate upon his reasons for confirming the Registrar’s decision and orders. I approach the present appeal upon the basis that the Master has accepted and adopted the Registrar’s reasons. On this appeal, the question is whether grounds have been demonstrated for interfering with the decision and orders of the Registrar which were confirmed in their entirety by the Master.

Nature of Appeal under Part 60 r 10 Supreme Court Rules

15 The appeal from the decision of the Master was brought under Part 60 r 10 Supreme Court Rules (see now Part 45.4 UCPR).

16 An appeal from a Master to a single Judge is subject to the same principles as those governing an appeal from a Judge to the Court of Appeal. Subject to the impact of any fresh evidence admitted under Part 60 r 15 Supreme Court Rules, the Master’s findings of fact are to be followed by the Judge unless the facts found, or the inferences drawn, by the Master are so flawed as to attract review by an appellate court under the principles in Warren v Coombes (1979) 142 CLR 531 at 553: Do Carmo v Ford Excavations Pty Limited [1981] 1 NSWLR 409 at 420-421; Morrison v Judd (CA(NSW), 10 October 1995, BC9507158) at pages 7-8. Any exercise of discretion by the Master may be reversed in accordance with the principles in House v The King (1936) 55 CLR 499 at 505.

17 Dr Fleet relied upon a notice of appeal which contained 59 “grounds”. As indicated to Dr Fleet during the hearing, I have approached that document as a form of written submission elaborating upon the three real areas of complaint:

(a) the summary dismissal of the claim against the District Court of New South Wales;

(b) the order striking out the balance of the Amended Statement of Claim;

(c) the imposition of a condition upon the grant of leave to replead.

Dr Fleet made oral submissions with respect to these areas at the hearing of the appeal before me.

Dr Fleet’s Claim

18 Dr Fleet has sought damages from the RSPCA, two of its officers, the State of New South Wales and the District Court of New South Wales. Following various amendments, Dr Fleet filed an Amended Statement of Claim on 13 April 2004 and it was that pleading which was the subject of the hearings before the Registrar and the Master.

19 By the Amended Statement of Claim, Dr Fleet sues for malicious prosecution, misfeasance in public office, trespass to goods, wrongful arrest, false imprisonment, illegal search and seizure and trespass to the person.

20 The events giving rise to these proceedings occurred in March 1997 when officers of the RSPCA and police officers took action and prosecutions were commenced against Dr Fleet under s.6(1) and s.27A Prevention of Cruelty to Animals Act 1979 (“PCA Act”). For present purposes, it is not necessary to recite the history of proceedings brought by and against Dr Fleet arising from these events. The criminal proceedings have twice reached the Court of Appeal: Fleet v District Court of NSW and Ors [1999] NSWCA 363 and Fleet v District Court of NSW and Ors [2002] NSWCA 25.

21 It is sufficient to note, for present purposes, that the Court of Appeal in the 1999 proceedings quashed the findings of guilt of Dr Fleet made in the District Court for offences under s.6(1) and s.27A PCA Act and made orders remitting the proceedings relating to the s.6(1) charge to the District Court for hearing and staying further proceedings on the s.27A charge. Following those orders, the hearing of the s.6(1) charge commenced before Nield DCJ in the District Court and proceeded over several days between June 2000 and June 2001. Eventually, Dr Fleet did not appear and Nield DCJ dismissed the appeal and confirmed the finding of guilt and the recognisance under s.556A Crimes Act 1900, and ordered Dr Fleet to pay the costs of the RSPCA amounting to $25,341.00. In the 2002 proceedings, the Court of Appeal dismissed a claim for prerogative relief arising from these orders of Nield DCJ.

Summary Dismissal of Claim Against the District Court

22 The Registrar determined that the claim for misfeasance in public office against the District Court of New South Wales should be summarily dismissed under Part 13 r 5 Supreme Court Rules. In ordering summary dismissal of this claim, the Registrar was well aware of the seriousness and significance of such a step and applied, correctly, the principles in General Steel Industries Inc v Commissioner of Railways (NSW) and Ors (1964) 112 CLR 125 at 129. The Master confirmed the decision of the Registrar.

23 Before the Registrar and the Master, Counsel for the District Court relied upon the doctrine of judicial immunity: Gallo v Dawson (1988) 63 ALJR 121; Rajski v Powell (1987) 11 NSWLR 522; Yeldham v Rajski (1989) 18 NSWLR 48; Bar-Mordecai v Bryson and Ors [2002] NSWSC 815 at paragraph 34. Reliance was also placed on s.44B Judicial Officers Act 1986, to which reference will be made shortly.

24 Dr Fleet pleaded his cause of action for misfeasance in public office against the District Court in the following terms in paragraph 78 of the Amended Statement of Claim:

“The tort of ‘Misfeasance in public office’ was committed by the District Court of New South Wales (comprising His Honour Judge JR Nield) against the Plaintiff. (a) there was a misuse or abuse by the District Court of New South Wales of a relevant power which is an incident of the office. (b) This wrongful conduct by the District Court of New South Wales was actuated by malice in the sense that the power was used, not for the public benefit, but for an ulterior purpose with the intent that harm be caused to the Plaintiff (or in reckless disregard of such a likely consequence) or that there was a purported exercise of this power with knowledge that it did not exist (or in reckless disregard as to its existence). (c) The duty to exercise the above-mentioned relevant power properly by the District Court of New South Wales was owed to the Plaintiff as a member of the public.”

25 The Registrar said at paragraphs 9 and 12 of his reasons:

“Judicial immunity ensures that no action may be brought against a judge for acts done in the course of hearing or deciding cases. The reason for the existence of the immunity is to allow judges to decide litigation without pressure of the knowledge that a disappointed litigant may sue them personally for any damages which may flow from their decisions. It exists to preserve the integrity, independence and resolve of the judiciary to ensure that justice may be administered fairly, without fear or favour.
…
It is clear from a reading of paragraph 78 of the amended statement of claim that the plaintiff seeks damages arising from the actions of Judge Nield in respect of acts done by the judge while exercising his judicial capacity. Since judicial immunity is conferred on judges of all jurisdictions: Bar-Mordecai v Bryson [2002] NSWSC 815 at paragraph 34 then the proceedings against the fifth defendant become subject to Part 13, rule 5 because no cause of action [is] disclosed. It is inevitable the Court may comfortably conclude that this is a cause which cannot succeed because there is no cause. Accordingly, the proceedings against the fifth defendant will be dismissed.”

26 The Master held that no basis had been disclosed for disturbing the orders made by the Registrar: Fleet v RSPCA and Ors at paragraph 7.

27 Before me, Dr Fleet stressed the exceptional nature of the summary dismissal power and relied upon the principles in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 and Webster v Lampard (1993) 177 CLR 598 at 602 in this regard. He submitted that there were real questions to be tried with respect to the claim for misfeasance in public office and that the claim should not be summarily dismissed by application of the doctrine of judicial immunity.

28 Nield DCJ was presiding as a District Court Judge hearing an appeal to that Court under the Justices Act 1902 with respect to Dr Fleet’s conviction in the Local Court for an offence under s.6(1) PCA Act. The District Court is a statutory court of record: s.8(2) District Court Act 1973. The District Court is not a superior court and is a court of limited statutory jurisdiction: R v Mosely (1992) 28 NSWLR 735 at 739F. It is an inferior court of record: United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 332D-E; Pelechowski v Registrar, Court of Appeal (NSW) [1999] 198 CLR 435 at 445, 456. The criminal jurisdiction of the District Court includes jurisdiction conferred under other Acts, in this case, the Justices Act 1902: s.9(2), s.166 District Court Act 1973.

29 It is clear that Nield DCJ was performing judicial functions in hearing the appeal under the Justices Act 1902.

30 By operation of s.44B Judicial Officers Act 1986 which commenced on 7 July 2003, a District Court Judge has the same protection and immunity as a Judge of the Supreme Court in the performance of his or her duties as a Judge. Section 44B provides as follows:

“44B Immunity of certain judicial officers

(1) A judicial officer has, in the performance of his or her duties as a judicial officer (including ministerial duties), the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge.
(2) This section does not apply to a Judge of the Supreme Court or to a Judge having the same status as a Judge of the Supreme Court.”

“Judicial officer” is defined in s.3(1) Judicial Officers Act 1986 as including a Judge of the District Court.

31 The hearing took place before Nield DCJ in the District Court on days between June 2000 and June 2001. Section 44B Judicial Officers Act 1986 did not commence until 7 July 2003. On 5 August 2003, Dr Fleet commenced proceedings in this Court by filing a Statement of Claim. It was not until 20 February 2004 that Dr Fleet filed an Amended Statement of Claim which, for the first time, sued the District Court of New South Wales. Accordingly, s.44B was not in force at the time of the hearing before Nield DCJ in the District Court but was in force by the time that Dr Fleet commenced civil proceedings for damages in this Court. Dr Fleet submitted that s.44B could have no application to this case because the section was not in force at the time of the hearing in the District Court. Submissions before me did not touch upon the relevance of s.44B being in force at the time when civil proceedings were instituted or the possible application of s.30 Interpretation Act 1987 to the present case. I will assume, for the purpose of this case, that the question ought be determined by reference to common law principles surrounding the doctrine of judicial immunity with respect to judges of an inferior court of record.

32 The doctrine of judicial immunity is a fundamental doctrine which extends to acts done in the discharge of judicial office. In Wentworth v Wentworth (2001) 52 NSWLR 602, Fitzgerald JA said at 616 (paragraph 43):

“In summary, it is conclusively established by authority that judicial immunity extends to whatever a judge who is a member of a court does in the exercise of ‘the broad and general authority conferred upon a court to hear and determine a matter’: Gallo v Dawson (1988) 63 ALJR 121 at 122; 82 ALR 401 at 402; cited in Yeldham (at 70).”

33 In D’Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755; [2005] HCA 12, Gleeson CJ, Gummow, Hayne and Heydon JJ, at paragraph 40, described the historical development of judicial immunity including the distinction drawn between inferior and superior courts:

“The development of judicial immunity … was bound up with the development of the law relating to excess of jurisdiction, and thus with the development of the principles governing when a judicial decision was open to collateral attack. Its history has been traced by Holdsworth: “ Immunity for Judicial Acts ”, (1924) Journal of the Society of Public Teachers of Law 17. It is not necessary to examine that history in any detail, beyond noticing that the decisions of courts of record were conclusive, but those of inferior courts were open to collateral attack alleging excess of jurisdiction. Hence, while action might lie at common law for acts done in an inferior court in excess of jurisdiction, the decisions of supreme courts were final. And there was an immunity from suit for any judicial act done within jurisdiction: Sirros v Moore [1975] QB 118; Rajski v Powell (1987) 11 NSWLR 522. What is important to notice for present purposes is not the history of development of this immunity, but that both judicial immunity and the immunity of witnesses were, and are, ultimately, although not solely, founded in considerations of the finality of judgments.”

34 In Re East and Ors; Ex parte Nguyen [1998] 196 CLR 354, the doctrine of judicial immunity was applied with respect to proceedings brought against the Magistrate’s Court and the County Court of Victoria, both inferior courts of record. Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said at 365-6 (paragraphs 29-30):

“However, apart from the particular facts of this case, there are more fundamental problems with the notion that either a judicial officer, or a court, may be subject to legal redress, on the ground of an alleged contravention of s 9 of the [Racial Discrimination] Act.

First, there is a well established immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity: Rajski v Powell (1987) 11 NSWLR 522; Mann v O’Neill (1997) 191 CLR 204. There is nothing in the Act which suggests that it was the intention of the Parliament to override that immunity.”

35 In East, Kirby J said at 377 (paragraph 59):

“The applicant did not contest the proposition that the Act was written against the background of the established principles of the Australian legal system by which judicial officers are personally immune for their conduct in the course of performing their judicial duty: Rajski v Powell (1987) 11 NSWLR 522 at 534-536; cf Mann v O’Neill (1997) 191 CLR 204; Yates v Lansing (1809) 5 Johnson’s Rep 282; Pierson v Ray (1967) 386 US 547 at 553-554.”

36 The concept of an act done without jurisdiction or in excess of jurisdiction involves acts clearly outside the exercise of the judicial function. It is not enough to assert that the judicial officer acted in a biased fashion or in bad faith or maliciously towards a person. In Fingleton v The Queen (2005) 79 ALJR 1250; [2005] HCA 34, Gleeson CJ confirmed the broad sense in which the term “jurisdiction” is understood by the common law in the context of the doctrine of judicial immunity (paragraphs 35-36):

“The [Queensland Criminal] Code's use of the words ‘excess of authority’ reflects what courts applying the common law have held to be the sense in which ‘jurisdiction’ is used in the context of judicial immunity, that is to say, ‘the broad and general authority conferred upon [a judicial officer's] court and upon [the judicial officer] to hear and to determine issues between individuals or between individuals and the Crown’ ( Nakhla v McCarthy [1978] 1 NZLR 291 at 301).

We are concerned with the application of the Code, not the common law. Even so, it is material to note the policy of the common law, reflected also in the Code. Most discussion of judicial immunity concerns the possibility of civil liability, including liability for damages, at the suit of an aggrieved litigant.”

After referring to Sirros v Moore (1975) QB 118 at 132 and In re McC (A Minor) (1985) AC 528 at 540, Gleeson CJ said at paragraphs 38-39:


“This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. As O'Connor J, speaking for the Supreme Court of the United States, said in Forrester v White (484 US 219 at 226-227 (1988)), that Court on a number of occasions has ‘emphasized that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have.’ She said that ‘[i]f judges were personally liable for erroneous decisions, the resulting avalanche of suits ... would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits’.

This does not mean that judges are unaccountable. Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions. Their decisions routinely are subject to appellate review, which also is conducted openly. The ultimate sanction for judicial misconduct is removal from office upon an address of Parliament. However, the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions.”

37 Dr Fleet relied upon Cannon v Tahche (2002) 5 VR 317 where the Victorian Court of Appeal (Winneke P, Charles and Chernov JJA) said at paragraph 44:

“That a judge may be liable for misfeasance in public office where he had acted without jurisdiction and with malice was recognised in Anderson v Gorrie [1895] QB 668 at 671, although their Lordships also acknowledged (at 670) that a judge of a court of record cannot be made liable in respect of something done by him or her within jurisdiction albeit maliciously and contrary to good faith.”

The Victorian Court of Appeal concluded (at paragraph 48) that, in light of the authorities referred to, it would seem that the operation of the tort of misfeasance in public office may extend to the wrongful exercise by a holder of a public office of a judicial power where that power is sought to be exercised without jurisdiction and in bad faith. Dr Fleet relies upon this statement in support of his claim against the District Court of New South Wales.

38 Cannon was not a case involving civil proceedings brought against a judicial officer. The relevant principles appear to have been considered in the context of civil proceedings brought against prosecutors who had appeared in Court. In any event, Cannon does not assist Dr Fleet as it is made clear that a judge of a court of record cannot be made liable in respect of something done by him or her within jurisdiction albeit maliciously and contrary to good faith (paragraph 44).

39 Dr Fleet emphasised that he was asserting here that Nield DCJ had acted without jurisdiction and in bad faith. It should be noted that the Amended Statement of Claim does not include such an assertion. Dr Fleet was asked, during submissions before me, to provide examples of Nield DCJ acting without jurisdiction in this case. The examples provided by him asserted forms of unfairness which, he asserted, had manifested themselves in the judge involving, for example, an issue about subpoenas to witnesses (transcript, 22 July 2005, pp.41-44). In my view, no matter was raised by Dr Fleet which can fall within the term “without jurisdiction” as it is understood in the context of the doctrine of judicial immunity. Dr Fleet’s claim relates to what Nield DCJ did in the exercise of the broad and general authority conferred on the District Court to hear and determine appeals from the Local Court under the Justices Act 1902. The common law doctrine of judicial immunity applies to such a claim against a Judge of the District Court.

40 An argument was advanced by Dr Fleet based upon Part 13 r 1 Supreme Court Rules and s.88 Supreme Court Act 1970. Dr Fleet submitted that he wished to have a jury trial and that, although s.88 had been repealed in 2001, a reference to it remained in Part 13 r 1 of the Rules. In this way, he submitted that the availability of a jury trial was an impediment to summary dismissal under Part 13 of the Rules. Dr Fleet’s argument is misconceived. It is s.85 of the Supreme Court Act 1970 which governs jury trials in civil matters. There is no right to a jury trial: s.85(1). Where the requirements of s.85(2)(a) are met (filing of a requisition for a jury and payment of the prescribed fee), then a plaintiff may apply to the court for trial by jury, which the court may order if it is “in the interests of justice” to do so.

41 In any event, even if reference to s.88 was somehow relevant, there was no mention in that section to proceedings upon a cause of action for misfeasance in public office as being a matter which attracted trial by jury before the repeal of s.88.

42 No basis has been demonstrated by Dr Fleet for interfering with the order of the Registrar, confirmed by the Master, dismissing the claim for misfeasance in public office under Part 13 r 5 Supreme Court Rules.

43 The appeal against the order dismissing the proceedings against the District Court of New South Wales ought be dismissed.

The Strike-Out Order

44 The Registrar relied upon Part 15 r 26 Supreme Court Rules (see now Part 14.28 UCPR) in determining to strike out the balance of the Amended Statement of Claim. The Registrar determined that the pleading was defective in form and could not be allowed to continue (paragraph 14). Citing Part 15 r 7 Supreme Court Rules (see now Part 14.7 UCPR), the Registrar observed that it was incumbent on a pleader to plead facts and to do so with precision (paragraph 19). He concluded that the Amended Statement of Claim failed to meet this requirement, observing that the document contained an “abundance of extraneous material” and “can be confusing at times and lacks clarity”. The Registrar noted that the pleading was “set in anecdotal form, rather than in legal, technical language” and that the pleading included “conversations quoted verbatim; some [paragraphs] cite legal cases and quote passages of reasoning therein, while in others, the plaintiff claims to have suffered a ‘detriment’”. He concluded that the pleading was an embarrassment. The Registrar provided illustrations to support this conclusion.

45 The Registrar observed that the Amended Statement of Claim alleged fraud. He cited Rajski v Bainton (1990) 22 NSWLR 125 at 135-6 where Mahoney JA said that a case based upon fraud is required to be pleaded precisely. The Registrar concluded that the Amended Statement of Claim failed in this respect.

46 The Master concluded that no basis had been disclosed for disturbing this order and confirmed the Registrar’s decision (paragraphs 7-8).

47 The function of pleadings is to state with sufficient clarity the case that must be met by a defendant. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and to define the issues for decision: Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286, 296, 302-3. The issues defined in the pleadings provide the basis upon which evidence may be ruled admissible or inadmissible upon the ground of relevance: Banque Commerciale at 296.

48 For a statement of claim to comply with the rules of court, a party should plead, in a summary form, a statement of the material facts upon which the party relies, but not the evidence by which those facts are to be proved: Part 15 r 7 Supreme Court Rules (see now Part 14.7 UCPR). In doing so, the pleadings should be as brief as the nature of the case admits: Part 15 r 8 Supreme Court Rules (see now Part 14.8 UCPR).

49 Pleadings also provide the structure upon which interlocutory processes, such as discovery, are governed and they constitute the record of the matters which the court has resolved and become relevant if, in any subsequent proceedings, any party claims issue estoppel or res judicata: Australian Competition and Consumer Commission v Fox Symes & Associates Pty Limited [2005] FCA 1071 at paragraphs 100-103.

50 Fraud must be pleaded specifically and with particularity: Part 15 r 3 Supreme Court Rules (Pt 14.14 UCPR); Banque Commerciale at 285.

51 A pleading is embarrassing where it is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him: Gunns Ltd v Marr [2005] VSC 251 at paragraphs 14-15.

52 In Shelton v National Roads & Motorists Association Limited [2004] FCA 1393, Tamberlin J explained the concept of “embarrassment” with respect to pleadings at paragraph 18:

“’Embarrassment’ in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleading may be embarrassing: see Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434.”

53 A pleading may be embarrassing even though it does contain allegations of material facts sufficient to constitute a cause of action if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to: Northam v Favelle Favco Holdings Pty Limited (Bryson J, 7 March 1995, BC9504276 at pages 5-6).

54 I agree with the conclusion of the Registrar, confirmed by the Master, that the balance of the Amended Statement of Claim was embarrassing and ought be struck out.

55 In my view, the Amended Statement of Claim failed to comply, in a variety of ways, with the functions of pleadings and with rules as to substance and form of pleadings. It is not the function of the Court to draw or settle a party’s pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. Objectionable matter is so mingled with other matter that the pleading as a whole would tend to embarrass the fair trial of the action and ought be struck out: Turner v Bulletin Newspapers Co Pty Ltd (1974) 131 CLR 69 at 72, 87-88, 97-98; Gunns Limited v Marr at paragraphs 57-58.

56 The Registrar was correct to strike out the balance of the Amended Statement of Claim. No error has been demonstrated on the part of the Master in confirming this decision.

Conditional Leave to Replead

57 The Registrar ordered that Dr Fleet pay the costs of the First, Second, Third and Fourth Defendants of the proceedings (Order 4) and granted leave to Dr Fleet to file and serve a Further Amended Statement of Claim after the costs of the First, Second, Third and Fourth Defendants of the proceedings and the applications had been paid by Dr Fleet (Order 6).

58 The Registrar said at paragraph 26:

“As stated earlier, the document the subject of these applications is the fourth version of the statement of claim and, no doubt, the defendants have incurred costs which have been thrown away by reason of those amendments. It is not apparent from a perusal of the court file that the plaintiff has been ordered to pay costs thrown away by reason of the amendments. Accordingly, it would be appropriate, in order to do justice between the parties, for the costs of the proceedings to date to be paid by the plaintiff, prior to any further statement of claim being filed. In this manner, the litigation will start afresh. The orders will therefore encompass terms concerning the payment of costs.”

59 Counsel for the Defendants informed me that the Defendants’ notices of motion before the Registrar had not sought that such a condition be imposed upon any grant of leave to replead extended to Dr Fleet. Nor was such an order sought by the Defendants at the hearing before the Registrar. The Registrar did not raise the possibility of such an order being made during the hearing. The conditional order manifested itself for the first time in the Judgment of the Registrar, delivered one week after the hearing.

60 It is apparent that Dr Fleet complained about this conditional grant of leave during the hearing before Master Malpass on 11 April 2005 (Transcript, page 15). His application for review to the Master challenged all orders made by the Registrar. He submitted that it was unfair to place such a condition upon him because it was tantamount to stopping him from bringing proceedings at all. He repeated that submission before me.

61 This was the first application by the Defendants to strike out Dr Fleet’s Statement of Claim. Although Dr Fleet himself had amended the Statement of Claim on occasions before the hearing of the present application by the Registrar, he had not been the subject of a strike-out order nor a costs order by the Court. To impose such a condition upon a grant of leave to replead, without application by the Defendants nor prior notice to Dr Fleet was not, in my view, just in the circumstances of the case. I do not consider that the Registrar ought to have imposed such a condition. Nor, in my view, should the Master have confirmed that order. Error has been established in accordance with the principles in House v The King at 505 so as to justify appellate intervention.

62 The Registrar observed, correctly, that Dr Fleet may well have an arguable case and a cause of action, properly pleaded, against one or more of the remaining Defendants (paragraph 24). In my view, it was not just in the circumstances of this case to impose such a condition on the grant of leave to replead. Dr Fleet ought have an opportunity to plead properly his causes of action against the remaining Defendants. I propose to allow the appeal to the limited extent of quashing the condition upon the grant of leave to replead imposed by the Registrar and confirmed by the Master.

Other Issues Raised on the Appeal

63 Dr Fleet sought to raise at the hearing of the appeal a variety of matters which were not properly the subject of an appeal from the decision of the Master. These included a costs order made by the Registrar on 14 February 2005 (which was not part of the orders reviewed by the Master), applications for discovery and interrogatories and trial by jury. As I indicated to Dr Fleet during the hearing of the appeal (transcript, 22 July 2005, pp.35-36, 44-45), these matters did not form part of the appeal and, accordingly, I put them to one side.

Conclusion

64 In summary, I consider that the Registrar:

(a) was correct in summarily dismissing the claim for misfeasance in public office against the District Court of New South Wales;

(b) was correct in striking out the balance of the Amended Statement of Claim under Part 15 r 26 Supreme Court Rules ;

(c) was correct to order that Dr Fleet pay the costs of the District Court of New South Wales of the proceedings;

(d) was correct to order Dr Fleet to pay the costs of the First, Second, Third and Fourth Defendants of the proceedings and of the applications before the Registrar;

(e) was correct to have granted Dr Fleet leave to file and serve a Further Amended Statement of Claim;

(f) was not correct to have made such grant of leave conditional upon Dr Fleet first paying the costs of the proceedings and the applications of the First, Second, Third and Fourth Defendants.

65 At paragraph 24 of his Reasons, the Registrar observed that Dr Fleet was unrepresented and “has, perhaps unwisely, undertaken the difficult task of attempting to draft a complex legal document”. In the course of confirming the orders of the Registrar, Master Malpass said at paragraph 9 of his judgment:

“If the leave granted by the Registrar is to be exercised, it seems to me that it would be wise to do so with the benefit of legal advice and consideration should be given to the matter being transferred to the District Court.”

66 As the Registrar, observed Dr Fleet may well have an arguable case and a cause of action against one or more of the First, Second, Third and Fourth Defendants. He has, up to this point in time, failed to plead his causes of action in accordance with the requirements for proper pleadings.

67 I inquired of Dr Fleet during the hearing whether he had sought pro bono assistance from the New South Wales Bar Association and he indicated that different avenues had been tried including the Bar Association (transcript, 22 July 2005, pp.38-39). The interests of the administration of justice may be facilitated by the provision of legal assistance to Dr Fleet for the purpose of drawing a pleading in proper form. I am prepared to consider a court-appointed referral for legal assistance pursuant to Part 66A Supreme Court Rules (which remains in force). A referral may be made under those provisions for the purpose, inter alia, of drafting or settling documents to be filed or used in proceedings: Part 66A r 5(c). I propose to raise such a course with Dr Fleet when judgment is handed down in this matter. I will give Dr Fleet an opportunity to consider whether he desires such a referral. If Dr Fleet proceeds to file a further pleading which is beset by the pleading deficiencies of the Amended Statement of Claim, he faces the prospect that his ability to further litigate this matter may be restricted. In Turner, Jacobs J at 97-98 referred to a statement of Bacon VC in Cashin v Cradock (1876) 3 ChD 376 at 377, which has application to this case:

“It is not for me to point out to the plaintiff how he might frame his statement of claim if he has any cause of complaint against the defendants. If he does not take advice, he must run the risk of acting upon his own judgment.”

68 I make the following orders:

(a) I extend time for instituting this appeal to 27 June 2005;

(b) I allow the appeal from the decision of Master Malpass of 11 April 2005 to the extent that the Master confirmed Order 6 made by Assistant Registrar Howe on 26 October 2004 whereby the grant of leave to Dr Fleet to file and serve a further pleading was conditional upon the costs of the First, Second, Third and Fourth Defendants of the proceedings and of the applications before the Registrar being first paid;

(c) I quash Order 6 made by Assistant Registrar Howe, and confirmed by Master Malpass, and, in its place, grant Dr Fleet leave to file and serve a Further Amended Statement of Claim within 28 days hereof;

(d) otherwise, the appeal against the decision of Master Malpass made on 11 April 2005 is dismissed.

69 With respect to the costs of this appeal, Dr Fleet has failed upon the principal grounds which were argued on the appeal. However, he has succeeded upon the limited, but important, basis which imposed a condition upon the grant of leave to replead. In all the circumstances, I have in mind an order that Dr Fleet pay two-thirds of the Defendants’ costs of the appeal. However, I will give the parties an opportunity to make submissions with respect to costs before I make any order.

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