Gallo v Dawson (No 2)

[1992] HCA 44

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Toohey and Gaudron JJ.

KATHLEEN GALLO v. THE HONOURABLE JUSTICE DAWSON (No. 2)

25 September 1992

Decision

MASON C.J., BRENNAN, DEANE, TOOHEY AND GAUDRON JJ. This is an appeal against an order by McHugh J. refusing an application for an extension of time in which to file a notice of appeal against an order dismissing an action brought in the original jurisdiction of this Court. In the action the appellant claimed damages against the respondent "in consequence of bias". Wilson J. dismissed the action on the ground that it must fail because the conduct of the respondent complained of by the appellant was undertaken in the course of the performance by the respondent of his judicial duties. Wilson J. also concluded that there was no justification for the appellant's apprehension of bias.

2. McHugh J. refused an extension of time on the ground that the order made by Wilson J., being based on principles of judicial immunity almost 400 years old, was unquestionably correct, so that an appeal would have no prospect of success. Without coming to a conclusion upon the question, McHugh J. doubted that he would have considered the appellant's explanation for her delay in filing a notice of appeal as being a sufficient reason for enlarging time.

3. His Honour referred also to an amendment which the appellant proposed to make to her claim by substituting for par.(1) "(d)amages for personal and financial loss suffered", the following:

"Set aside the Order made on 24 May 1985 in the Special Leave Application of No M63 of 1984; Kathleen Gallo v. The Honourable Attorney-General."

As his Honour pointed out, the purpose of the amendment was to enable the action, if reinstated, to become the vehicle for setting aside an order made in another action to which the respondent was not a party. The Attorney-General was a party to that other action but he was not, and could not properly be made, a party to the action brought against the respondent in this Court. Because no order could be made in the latter case which would affect the order made in the action against the Attorney-General and because the proposed amendment would not overcome the ground on which Wilson J. dismissed the action brought against the respondent, McHugh J. held that the proposed amendment was futile and that it would be a waste of time, money and court resources to extend the time for appeal.

4. Although his Honour did not find that the appellant had failed to provide a satisfactory explanation for her delay in filing a notice of appeal within the time prescribed by the rule, the appellant has endeavoured to provide us with such an explanation. It is not necessary to deal with her submission on that aspect of the case because we agree with McHugh J. that Wilson J. was clearly correct in concluding that the appellant's case must fail by reason of the long-established principle of judicial immunity applying to acts done by a judge in the course of the performance of judicial duties. We would add that, on the material placed before us, we can see no basis for questioning Wilson J.'s conclusion that there was no justification for the apprehension of bias on the part of the respondent.

5. In the circumstances, the proposed appeal from the order of Wilson J. dismissing the action would have no prospect of success and McHugh J. rightly refused the application for an extension of time.

6. The appeal must be dismissed.

Orders

Appeal dismissed with costs.