Gallo v The Honourable Justice Dawson

[1988] HCATrans 232

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M55 of 1988

B e t w e e n -

KATHLEEN GALLO

Respondent/Plaintiff

and

THE HONOURABLE JUSTICE DAWSON

Applicant/Defendant

Application to strike out

statement of claim

WILSON J

( In	Chambers)
Gallo(2)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 OCTOBER 1988, AT 12.07 PM

Copyright in the High Court of Australia

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MRS K. GALLO:	Your Honour, I appear in person.
MR M.E.J. BLACK, QC:	May it please Your Honour, I appear

with my learned friend, MR C.M. MAXWELL, for the

applicant in this summons. (instructed

by the Australian Government Solicitor)

HIS HONOUR:	Yes, Mr Black.
MR BLACK:	If Your Honour pleases, proceedings have been

brought against the honourable Justice Dawson
of this Court in respect of his alleged conduct
as a Judge of this Court. It will be our submission
that those proceedings cannot possibly succeed,
however regarded, and whatever amendments to the

proceedings might be sought and we say this for two

reasons; that no cause of action known to the law

is alleged against His Honour and, even more

fundamentally, the law provides, in our submission,

total immunity for all acts done as a judge and

the acts alleged in respect of His Honour are acts

of that character.

If I can take Your Honour to the procedural

foundation of that application, a summons was taken
out on 21 September seeking orders under the

Rules of the Court and the summons will be on

Your Honour's file, and the first two orders

sought are based upon the contention that there

is in existence a pleading that ought to be

struck out and those applications are made under

Order 26 rule 18(1) and Order 26 rule 18( 2)

respectively. I also have, Your Honour, in our

submission, applications that are supportable

under the inherent jurisdiction of the Court to prevent frivolous actions and thus abuse of its

process.

There is also an application that the action

be perpetually stayed on the grounds that there is

no reasonable or probable cause of action, that the

action is vexatious and oppressive and an abuse

of the process, and that application is made under

Order 63 rule 2 of the Rules of the Court.

Might I take Your Honour then to the material

before the Court and first to the writ and the

document attached to it headed General Endorsement.

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MR BLACK (continuing): But, Your Honour, before I even

do that, it may be of assistance to the Court if I hand to the Court, with a copy.of course

to Mrs Gallo, an outline of the argument that

we desire to put to Your Honour.

HIS HONQlJR:	Thank you.
MR BLACK:	Your Honour, might I take Your Honour to the

initiating process: it is a writ issued by

Mrs Gallo and on the second page of it there

for damages in con sequence of bias .11 And then,	is a statement tnat, "the plaintiff's ctaiin .is
attached to the document is a much more detailed
document headed "General Endorsement". It reads,
in substance, as follows:

The plaintiff is and was, to all material

times, a business woman, a widow and litigant

in person. The defendant is, at all material

times, a Justice of the High Court of Australia.

And then it proceeds:

From the time of the defendant's appointment to the High Court -

and I am deliberately, Your Honour, I should

make this plain to Mrs Gallo, paraphrasing from

time to time -

orders made in the plaintiff's appeal cases

showed notable discrimination against her

contrary to previous experiences in those

matters.

Then, it is alle~ed:

The defendant failed in his duty as a Justice of the High Court by hearing any application of the plaintiff by reasons that -

and some reasons are alleged. It is alleged

that the defendant had knowledge of her affairs,
that he had been Solicitor-General with free

access to the Attorney-General of Victoria's

files, that the Attorney-General obtained an

order in the Supreme Court of Victoria under

the SUPREME COURT ACT.	That section relates
to vexatious litgants.	The order was made upon

application without grounds, misleading information,

misrepresentation and so forth.

The plaintiff had no opportunity to prove

her case, ,in the supreme court nor in the
High Court is the last resort by reason
of the defendant's attitude to the plaintiff's

case on 24 May 1985.

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Further allegations of a breach of an alleged

failure of duty as a Justice of this Court, relying

on the Attorney-General's file, allowing his

professional ethics to influence judgment. There

is then an allegation that the matter is within

the original jurisdiction of the Court and, finally,

--there is an allegation of loss and damage in

consequence of the defendant's conduct and the

prayer for relief is for damages and there is

an ancillary claim for such other orders as

may to the Court seem fit.

Your Honour, there has been prepared, and

served upon Mrs Gallo, an affidavit setting out
to the best of the deponent's ability for non-
information what are the matters that His Honour
dealt with affecting Mrs Gallo. Your Honour,
I should say at the outset that the affidavit
would not be relevant in relation to striking
out the pleadings because that has to be determined,

of course, on the face of the pleadings. It

would be relevant to the inherent jurisdiction

of the Court and under Order 63 and it would

be relevant, Your Honour, should Mrs Gallo desire

to ask Your Honour for leave to replead.

But, Your Honour, it must be said that the

affidavit is technically he-ar.s_ay and these are

technically final proceedings. However, Your Honour,
the relevant files of the Court have been transmitted

to its principal registry and Mrs Gallo has filed

herself an affidavit taking issue with certain

matters. Having made it plain to the Court that

technically the affidavit could be objected to,

I would nevertheless seek to use it, Your Honour,

simply as a convenient way of showing what the

matters that Mrs Gallo complains of, in truth,

are.

HIS HONOUR:  And the source materials are available 1n

the registry?

MR BLACK: It is, Your Honour, yes. I have spoken to the

Registrar. The affidavit is, in fact, based

on a search of the file. So I would seek to

rely on the affidavit in those circumstances,

Your Honour. Your Honour, the affidavit is of

Dr Rumble, he affirmes that he is an officer

of the Attorney-General's Department, he affirms

that the defendant has held office as a Justice

of this Court since 30 July 1982, which is, of

course, a matter of public record.

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MR BLACK (continuing): And then, on the basis of the

information supplied to him by another officer

as a result of the search of files, he sets
out the various proceedings in which Mrs Gallo

has been involved in this Court and in which

His Honour took part.

Your Honour, I will read those, if Your Honour

desires me to do so, but it may be sufficient if I

say, in substance, that they were various proceedings
allowed for by the Rules of this Court in relation

to extensions of time. There was a special leave application and they are all matters in which the

Court, in our submission, plainly has jurisdiction.

Indeed, we have prepared for Your Honour's,

assistance and I have a copy for Mrs Gallo, the

various sources of jurisdiction in relation to

each of the matters within which His Honour has

sat.

HIS HONOUR:	Thank you.
MR BLACK:	The matter, Your Honour, of which Hrs Gallo would seem

to particularly complain in her documents is an

application for special leave to appeal and that

is dealt with in paragraph 11 of Dr Rumble's

affidavit at the foot of the third page. It was

an application for special leave to appeal in

relation to the vexatious litigant proceedings.

It was hea:rdby the former Chief Justice and by

Justices Brennan and Dawson and special leave

was refused and, Your Honour, Dr Rumble's

affidavit exhibits the transcript of those

proceedings. It is a matter to which Mrs Gallo,

herself, refers in her affidavit and so might I

just take Your Honour very briefly to that

transcript.

Your Honour, on page 2 the nature of the application - this is at point 2 of the page - is outlined by counsel retained by Mrs Gallo and

it is, in substance, as stated in Dr Rumble's

affidavit and then, at page 6, there is an
exchange between His Honour and counsel for

Mrs Gallo which is set out. It is, we would

submit, the ordinary sort of exchange that takes

place between counsel and the bench in such matters

and, then, as far as we can tell, Your Honour, there

is no further discussion although the Chief.Justice

and Justice Brennan ask questions. Then, on page 11,

the Chief Justice dismisses the application for
special leave having noted that Mr Larkin had said
everything that could possibly have been said on
behalf of the applicant in the case and appreciating

the various reasons and so forth but the special

leave was refused.

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The next document in Your Honour's file

will be - the Court's file - an affidavit of

service which it is unnecessary for me to

read since Mrs Gallo is present and the other

document, Your Honour, is an affidavit sworn

by Mrs Gallo herself on 10 October 1988 and I

should indicate to Your Honour the nature of

that affidavit. She swears that she is the

plaintiff and conducts her action in person

and she makes the affidavit in objection to

the summons and the relief sought in the summons

but she says it:

Was served on 6 October 1988 contrary

to the Rules of the Court.

I might interpose by saying, Your Honour, that that would not, in our submission, seem to be correct,

but if Mrs Gallo develops some argument about that, we would counter it by saying that she has obviously

had sufficient time to answer any allegations in

the affidavit. Then she says in paragraph 4 that

the summons itself and the affidavit reflect a

prejudiced attitude and again refers to the
hearing on 24 May 1985 and sets out some of the

matters already referred to in the transcript.

(Continued on page 7)

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MR BLACK (continuing):  She complains in paragraph 5 of

the deponent's affirmation. In paragraph 6 she

raises a point about which we will address

Your Honour. She says in substance -and I will

not go through the details of it unless it is

desired, but she says in substance and says it

_by reference to the Rules, that her document	entitled 11 G1::neral ,Endorsement", which we seek
to strike out.is, in truth,not a statement of claim and thus not a pleading, and she further
says, "Well, in those circumstances I should
have liberty to serve a statement of claim within the time allowed by the Rules", and she has not
done so. Your Honour, I will come to that in
a moment. Our submission will bei:that if she
is right, which we would contest, it does not
affect the power of the Court to deal with this matter finally in these circumstances, but I
will develop that in a moment, Your Honour.

HIS HONOUR:  It may affect the ground on which your

application would proceed.

MR BLACK:  Indeed it would, Your Honour, and I will

develop an argument about that.

In paragraph 7, Your Honour, it says that:

The Defendant is a Justice of the High Court, which is a public office -

and she asserts that there is an obligation to

act judicially, and so forth. She says:

by upholding the right to a "fair hearing"

and the right to be judged by an unbiased··

Court or Justice -

and she says -

Under no circumstances could or would a

reasonable person not suspect that the decisions made or influenced were biased?

She says her.action relies on documentary evidence and she asserts, in paragraph k,that:

seeking justice cannot be called "an abuse of

the process of the Court" -

I can pass by paragraph 8, I think. In paragraph 9,

Mrs Gallo takes issue with the completeness of

the summary of matters that His Honour has dealt

with and in paragraph 9a she refers to two applications

dealt with by His Honour on 30 September 1982 and

indeed, an order made by His Honour on that date

is exhibited. That was an order in·which His Honour

granted time to file requests to set down an objection

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to competency of the appeal that those times

be enlarged.

Your Honour, in our submission, there is

not really a dispute between the parties on this

matter since Dr Rumble's affidavit, although

-hot explicitly referring to those matters, does

implicitly. Then, Your Honour, she takes issue

with various, we would characterize them as,

details as to what happened. But, Your Honour,

our submission is that whichever way one looks

at it, and ultimately, of course, the Court file

can determine the correctness or otherwise of

these matters, it is plain that Mrs Gallo's complaint

is about what happened in Court when the Court

was sitting to hear applications and, in our submission,

that is the critical fact that emerges from

both affidavits and ultimately from the Court's

file.

In paragraph 10, on the last page of her

affidavit, she says that the general endorsement was

not annexed to the writ and objects to Dr Rumble
having said that he believed that certain proceedings

were the ones about which Mrs Gallo particularly

complained. She refers to some consequences of one

of the orders in paragraph 11 and in paragraph 12

makes an assertion that the sunnnons does not

disclose any proper grounds. In paragarph 13

she respectfully seeks an order that the sunnnons be set aside, and wishes to serve a statement of claim.

(Continued on page 9)

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MR BLACK (continuing): Now, Your Honour, against that

background it is our respectful submission that

the application must succeed because the proceedings
brought by Mrs Gallo are simply incurably bad.
Before I develop that argument which is summarized
in the outline, might I, Your Honour, deal briefly
with Mrs Gallo's contention that in so far as

we seek to strike out her pleading, there is

no pleading.

Your Honour, I can deal with that briefly.

I believe Your Honour has an outline of the

submissions relating to that.and Mrs Gallo also.

Your Honour, what we say in substance is that

although Mrs Gallo has headed her document "General

Endorsement", nevertheless its true character

is that of a statement of claim and is therefore

that of a pleading for the purposes of Order 26

rule 18. And we say so for these reasons: the

first reason is that the plaintiff has endorsed

a general or a concise statement of the nature

of her claim on the writ where she says:

The plaintiff's claim is for damages 1n

consequence of bias.

And that is a traditional, although very concise,

form of general endorsement.	And then, we say,
11 G	that what she then does in the document headed

enera En orsement 1s to, 1n su stance, 1 d " . . b

indeed, in fact~ to set out a statment

of her claim and of the relief or remedy to which

she claims to be entitled such as to come within

the scope of Order 20 rule 2(1) which provides

that:

The plaintiff shall, in accordance with

the provisions of Order 21, and at such
time and manner ..... deliver to the ~efendant

a statement of his claim and of the relief

or remedy to which he claims to be entitled.

And we say that if one looks at this document,

although we say it is defective, nevertheless
it bears the hallmarks, indeed, of a statement

of claim. It was delivered with the writ. It

was apparent endorsed upon the writ and it purports

to comply with the requirements of Order. 21

reule (2), namely that it has to allege and does

allege that the matter is one within the original

jurisdiction of the Court. That is not a requirement,

of course, for a general endorsement. And then,

in paragraph 5 of this part of the outline we

submit to the Court that it pleads material

facts, it pleads various capacities, it sets

out the claim in sequential paragrap~s and it

purports to be a complete statement of the relevant

allegations, albeit without particulars, and

it has the conventional prayer for relief.

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Also, it is submitted that the document

does, as statements of claim may do under the
rules, arguably at least, modify or extend the

claim beyond that which is contained in the brief

"General Endorsement". So that what we say in

substance is that although the document is headed

--"General Endorsement" its essential character

is that of a statement of claim and it may be
treated as a statement of claim.

If, Your Honour, we are wrong about that,

then we would concede on authority that it is

not a pleading and therefore cannot be struck

out under Order 26.- if it is a mere endorsement,

if that is what it, in truth, is then the striking

out of pleadings rules do not apply to it because
it is not a pleading. But, Your Honour, we
go on to submit in that separate outline that
it really does not matter because if the document
is not a pleading then that is irrelevant to

the exercise of the Court's power under Order 63

rule 2 which provides that:

An application to stay proceedings

on the ground that there is not a reasonable

or probable cause of action or suit, or

that the proceeding is vexatious and

oppressive or is an abuse of the process

of the Court, may be made at any time and

whether the plaintiff does or does not admit
the allegations of fact, if any, on which

the application is founded.

And, in our submission, Your Honour, it really

does not matter which way one looks at it.

(Continued on page 11)

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MR BLACK (continuing): Further, we would say that if the

matter appears, as we submit it does appear, to be

totally untenable, then the Court has inherent

jurisdiction to dispose of it and can dispose of

it in such a way that it thinks appropriate

including by dismissing the action and striking out

the endorsement. So, Your Honour, those are

-procedural matters, but I would not, Your Honour,

intend to develop the argument any further, because

in our submission, it really does not matter

in the end. It is for us, of course, to demonstrate

that the action is hopeless and cannot be cured

and we will now seek to do that.

Your Honour, the law in this respect, in our submission, is very clear and there really are two

aspects to it. The first is that there is no

known cause of action known as a claim for damages

for bias, discrimination, breach of natural justice
or breach of judicial duty. There are cases,
unsuccessful cases, but cases in which the holders

of judicial office have been sued or sought to be

sued, but they are cases based upon known causes

of action such as false imprisonment as where

a judge might say, "Take that man away", trespass,

in similar circumstances, negligence, or even in

the custodial situation, assault. Now, here it is

submitted ~hat the papers disclose, on their face,

no cause of action known to the law. But even if,

somehow, in a way that we would not concede to be

even possible a cause of action could be fashioned.

The complete answer to the plaintiff's claim is

that by authorities that stretch back, indeed for

centuries and that are rooted in high consideration

to public policy a judge of the superior court

of record has complete innnunity for acts done in
the performance of his judicial duties, no matter

how those acts might be allegedly tainted.

No matter what is said, and I emphasize "said",

no matter what is said about the way in which a

judge of a superior court has exercised his

or her powers, that cannot found a cause of action.

There is a possible exception, If it can be

shown that a judge has knowingly acted beyond

jurisdiction, in a very limited sense, such as if

in a situation impossible to contemplate, a judge

acting in a play purported to imprison somebody
and the sheriff took the person into custody, well

then obviously public policy would not point to

innnunity, nor would any innnunity be granted.	But
we submit, Your Honour, that the principle was

given its clearest modern enunciation by the Master

of the Rolls, Lord Denning in the case of

SIRROS V MOORE, (1975) 1 QB 118, but particularly

at pages 132 and 136. Your Honour, I believe

may have a bound volume of the photostats. If

Your Honour has, I should indicate that that is

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case No 5 in that and it is case No 5 in the list

of authorities. Now, Your Honour, in that case,

which concerned a claim striking out of a claim

against a judicial officer and in that event a

member of the Crown court, His Lordship examined

the history of judicial immunity and made various

-Dbservations which have been acted upon

as authority since. And he did so principally
at page 132, in the middle of the page, under the
heading, "Acts within jurisdiction" and the language
is strong and unmistakeable in my submission.

His Lordship said:

Ever since the year 1613, if

not before, it has been accepted in our

law that no action is maintainable

against a judge for anything said or

done by him in the exercise of a

jurisdiction which belongs to him.

(Continued on page 13)

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MR BLACK (continuing):

The words which he speaks are protected

by an absolute privilege. The orders

which he gives, and the sentences which

he imposes, cannot be made the subject of

civil proceedings against him .. No matter

that the judge was under some gross error

or ignorance, or was actuated by envy, hatred

and malice, and all uncharitableness, he

is not liable to an action. The remedy

of the party aggrieved is to appeal to a

Court of Appeal or to apply for -

writs, paraphrasing -

or take some such step to reverse his

ruling. Of course, if the judge has accepted

bribes or been in the least degree corrupt,

or has perverted the course of justice,

he can be punished in the criminal courts.

That apart, however, a judge is not liable

to an action for damages.	The reason is
not because the judge has	any privilege

to make mistakes or to do wrong. It is

so that he should be able to do his duty

with complete independence and free from

fear. It was well stated by Lord Tenterden CJ,

in GARNETT V FERRAND (1827):

"This freedom from action and question

at the suit of an individual is given by

the law to the judges, not so much for their
own sake as for the sake of the public,
and for the advancement of justice, that

being free from actions, they may be free

as all who administer justice ought to be. 11	in thought and independent in judgment,
Those words apply not only to judges of
the superior courts, but to judges of all rank, high or low.

His Lordship then considered the matter further	and at page 136 of the report in a passage that
was later cited with apparent approval by
Justice Aickin in this Court said, at about
point 2 of the page:

Every judge of the courts of this land - from the highest to the lowest - should

be protected to the same degree, and liable

to the same degree. If the reason underlying
this immunity is to ensure "that they may

be free in thought and independent in judgment,"

it applies to every judge, whatever his

rank.

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And at about point 6 of the page, His Lordship

said:

What he does may be outside his jurisdiction -

in fact or in law - but so long as he honestly

believes it to be within his jurisdiction,

he should not be liable. Once he honestly

entertains this belief, nothing else will

make him liable. He is not to be plagued

with allegations of malice or ill-will or

bias or anything of the kind. Actions based

on such allegations have been struck out

and will continue to be struck out. Nothing

will make him liable except it be shown

that he was not acting judicially, knowing
that he had no jurisdiction to do it.

Then, in this Court, in a decision of a single Justice, Justice Aickin, in April 1981, in the case of DURACK V GASSIOR, it is unreported but the transcript is available. It is case No 7

in the bound volume with which the Court has

been provided. His Honour Justice Aickin was

considering an application to strike out proceedings

brought against the Attorney-General for the

alleged cause that one of the judges of the

Family Court had acted in a way about which complaint

was made. The precise nature of the application

and the cause for it is at page 5 of the transcript

in the middle of the page.

Part of the argument involved the contention

that a judge could not be sued anxway and the

second part of the argument was, 'We 11, the

Attorney-General could not vicariously liable	in any event for anything a judge did. 11
His Honour dealt with this point at page 15 of
the transcribed reasons for decision and he did so in these terms, reading from point 2 of the
page:

(Continued on page 15)

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MR BLACK (continuing):

It is however, clearly established by the

authorities to which I have been referred that

no action may be brought under our legal system

against judges for acts done in the course of
hearing or deciding cases which come before

them. I do not need to discuss the authorities.

The first in the series to which I was referred

was the well known case of SCOTT V STANSFIELD,

in 1868 ..... and, omitting an intervening case,

I would also add a reference to the third case

which was cited, the recent decision in the

Court of Appeal in England of SIRROS V MOORE in

1975 ..... and particularly the passage in the

reasons of Lord Denning M.R. at 136.

Although those are cases decided in England,

they are decided in respect of the connnon law

which is the basis of the law in this country

including all the States. I do not entertain

any doubt that that rule is applicable in the

original jurisdiction of the High Court as it is

in the jursdiction of the supreme courts of the

States. In my opinion, that rule makes it clear

that no action could have been brought against -

the judge -

himself.

Then, Your Honour, I should indicate that at page 16,

Justice Aickin went on to consider whether the plaintiff

in that case should be allowed to replead and indeed,
in those particular circumstances, said that she should

be so allowed, but that was not an action against the

judge himself. Now, Your Honour, there are many

authorities in which the same view has been taken

throughout the connnon law world, including,relevantly,

this part of the connnon law world. In MOLL V BUTLER

(1985) 4 NSWLR 231, Mr Justice Wood of the New South Wales

Supreme Court acted according to similar principles.

cases - - - So too in the New South Wales Court of Appeal in two

HIS HONOUR:	Yes, Mr Black, the authorities are set out there.
MR BLACK:	They are indeed, Your Honour.
WILSON J:	I wonder if it is necessary for you to - - -

MR BLACK: Well, we would have submitted not, Your Honour.

They all are squarely to the same effect and they go-

throughout the world, New Zealand, Canada and, indeed,

a similar view was taken in the United States of

America. The statements are consistent with other

statements made in this Court, in a case to which we

refer, GIBBONS V DUFFELL in 1932 and a statement

by Mr Justice Starke, admittedly in different context;

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in CABASSI V VILLA in 1940. Now, Your Honour, the

important part of the argument is that the authorities,

in our submission, show that the word "jurisdiction"

in relation to judicial immunity is used in the narrow
sense of the power to hear and determine the matter,

not in the broad sense exemplified in some of the

-administrative law cases. So that, although for

administrative law purposes it might be said that

if there an allegation of natural justice, there is in fact

implicit in it an allegation of lack of jurisdiction

that is not the sense in which the rules as to

judicial immunity are to be construed. Indeed, we would submit

Your Honour, were it otherwise, the rules would not

mean anything, because any application in the ordinary

course of the Court's business might conceivably

transgress jurisdictional limits in the administrative

law or prerogative writ sense and that would mean that

judicial immunity which, as the cases show, is

absolute whilst the judge is acting as a judge, that

would be whittled down in a way which the law does not

countenance.

Now, Your Honour, there are express statements to that

effect, although we say it is implicit in the rule

anyway, but the most direct of them is by

Justice Woodhouse of the New Zealand Court of Appeal

in NAKHLA V McCARTHY, in the case that we cite there,

(1978) 1 NZLR 291 and the passage to which we would

refer is at page 301. There is a similar statement

by Mr President Kirby in the New South Wales Court of

Appeal in-RAJSKI's case. Would Your Honour be assisted

if I took Your Honour to Mr Justice Woodhouse's - - -

(Continued on page 17)

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HIS HONOUR:	I do not think it is necessary, Mr Black.
MR BLACK:	Your Honour, it is there set out, in our

respectful submission.

HIS HONOUR:  Subject to what Mrs Gallo has to say about it.

MR BLACK:  Indeed. Your Honour, that really is the beginning

and end of the argument, in our submission. What

is alleged against His Honour here - and we are,

of course, dealing with mere allegations for

these purposes - what is alleged against His Honour

are matters in the exercise of His Honour's undoubted

jurisdiction, in our submission, as a Judge

and whatever complaint is made it is a complaint

which cannot, as a matter of law, for reasons

founded in the highest public policy, it cannot
give rise to a cause of action against His Honour,

or in other circumstances against any judicial

officer, at least of a superior court of record,

and probably of all courts, in our submission,

in this Commonwealth.

Your Honour, finally we would say that whatever

amendment may be made or may be sought to be made,

or whatever statement of claim may be sought to be

filed, the defect is so fundamental as to be

incurable and for those reasons the action should

be struck out. I should, Your Honour, before

concluding draw Your Honour's attention to a·

decision of Mr Justice Mason, as he then was, in

McCAULEY V HAMILTON ISLAND ENTERPRISES LIMITED,

69 ALR 270. It is not on the list, Your Honour,

but I will hand Your Honour a copy in which

His Honour expressed views as to the appropriate

procedure in a case where an - it is sought to

stri.ls:a. out an action for abuse of process

and His Honour said at page 271 of the report at

about line 30, as follows:

It is to be noted, however, that

setting aside the writ here under

0 11, r 5 of the High Court Rules is

only appropriate if there is want of

jurisdiction -

then His Honour made this observation -

The proper proceeding in the case of

abuse of process is for a perpetual stay

pursuant to O 63, r 2.

I draw that to Your Honour's attention. In our

submission any appropriate procedure may be used

and since, in our submission, the action is hopeless,

then, as a matter of form, it should simply be

struck out.

C3Tl2/l/HS	17	12/10/88
Gallo (2)

HIS HONOUR:  Your argument has been based on want of

jurisdiction as well, I think, when you speak

of no cause of action, no - - -

MR BLACK:	Well, in a sense it is, Your Honour, yes.
HIS HONOUR:	Yes, but you see Order 63 as the

fundamental - - -

MR BLACK:  Yes, Your Honour, or the inherent jurisdiction

of the Court, or, if it mattered, and we say it

does not, the pleading rules.

HIS HONOUR:	Yes.
MR BLACK:	But, Your Honour, there is an argument about that,

but whichever way one looks at it, in our submission,

this is a matter which ought not to proceed any

further. An instance, Your Honour, of the exercise

of the Court's inherent jurisdiction in, in fact,

staying an action, is the early case of

BURTON V SHIRE OF BAIRNSDALE, 7 CLR 76.

(Continued on page 19)

C3T12/2/HS	18	12/10/88
Gallo(2)

MR BLACK (continuing):  I am reminded by my learned junior,

Your Honour, that that is referred to in the separate outline that we handed to Your Honour

about the characterization of the document headed

"Endorsement".

Your Honour, it is true that the power that

we invoke is a power to be sparingly exercised

and only in very clear cases. The leading authority

for that proposition is the observations of

Chief Justice Barwick in GENERAL STEEL INDUSTRIES,

which is the final case we refer to. But,

accepting that, in our respectful submission,

this is plainly a case which, on any vie~ falls

within that stringent test.	May it please
the Court.

HIS HONOUR:  Thank you, Mr Black. Yes, Mrs Gallo.

MRS GALLO: If Your Honour agrees, I would like to start

with my statement of claim taken by learned

counsel. It was intended to be just an endorsement,

Your Honour,and a statement of claim was going

to be accordingly served in due time. However,

since the notice of the summons was served

on 21 September, Your Honour, that cut short

the time, the 21 days which is given to serve

a statement of claim.

HIS HONOUR:  So, you say that you did not intend this

general endorsementto be a statement of claim?

MRS GALLO:  No, I would have put at the bottom of the

page, Your Honour, to be considered as a statement
to stand in place of a statement of claim,

but I did not intend it to be, Your Honour.

HIS HONOUR:  And you intended to file a statement _of

claim and had 21 days to do it from the date

of appearance.

MRS GALLO:	To deliver a statement of claim. Now, I did not want to be unproper, or incorrectly acting
according to the Supreme Court Rules. When a
summons is served, the summons stays matters
which are in proceeding and I thought I wait
until the decision in this hearing will be made
and if I obtain additional time to serve the
statement of claim I will do so, and if not,
Your Honour, well, it is no point to serve one.

According to that summons

the whole statement that is .....

should be struck out and stayed and forget all

about it. Your Honour, I believe anyapplic8tion

C3Tl3/l/JM	19	12/10/88
Gallo(2)

which is made should be at least made according

to the correct date and correct facts of the

case and if we go through the affidavit

supporting the summons which was served upon me,
Your Honour, I would say that it was made with
a great - no consideration to the facts,

Your Honour, because if somebody reads this

affidavit would think that whatever I am

complaining about is a ridiculously stupid statement

altogether.

Now, those arguments what I have just put

in paragraph 5, 7, 9 and 8 repeat facts which

are not correct facts, Your Honou~ and I do not know

wherever could they ever take them from the file

because the exhibits what I put under number 1

and number 2 clearly states that the only

extension of time His Honour granted to me on

application was seven days, and my second
application was dismissed.

Your Honour, also to be noted that the

three first cases mentioned in that affidavit

were ex parte application. I had no intention

to serve the Attorney-General's Department

with the appeal documentation because I made
the original application in person and without

inviting the opposition, which was not necessary.

(Continuing on page 21)

C3Tl3/2/JM	20	12/10/88
Gallo(2)

MRS GALLO (continuing):  So, it was not necessary to

serve the documentation on the Attorney-General's

Department. Now, what made them change their

mind and after a considerable time because the

different dates I have listed in my affidavit,

-- the appeal that had been filed, some of them have been one year overdue. Your Honour, 14 days are

given according to the Rules to file an objection

to an appeal application. Now, it done nothing

and all of a sudden four cases have been put

together, all of them appealed out of time, all

of them appealed for extension of time and the

time was granted.

I was in the difficult situation, Your Honour,

that I was waiting for certain matters in the

supreme court to come through and I did not want

to make more case in the High Court than absolutely

necessary and I did not want to bring any further

matters to the High Court - only those which were

not overcomeable. I needed time but I was not

granted time so I had no other choice than I have

to appeal against His Honour's decision concerning

the refusal of the extension.

Those cases only give probably an idea,

Your Honour, what was the attitude - His Honour's

attitude toward me. They were not meant to be

put into the particulars as cases to be referred

to. So, to have them on the supposition of the

different representative, it was rather a premature

step, I would think, because they should have read

it first to have my particulars and list of cases

where I referred to and on what basis and after

to make the complaint that it is not correct.

This is their supposition, not my particulars,

referred to the cases.

(Continued on page 22)

C3Tl4/l/SH	21	12/10/88
Gallo(2)

MRS GALLO (continuing): Goming further, Your _Honour,. I uut out and set

out, in my affidvit step by step what I found	'
rather contrary to the facts and I do not want to
go over it, Your Honour probably has already read
it and it is no need.	I would like to - - -

HIS HONOUR~ No, I see that. This is the affidavit you

swore on 10 October?

MRS GALLO:  Yes, Your Honour. I would like to mention only

the fact what the learned counsel debated for a

long time, that there does not seem to be

sufficient ground and it is contrary to the law

to bring an action against a .Justice under the

circumstances. Your Honour, in my humble

opinion and believe,His Honour had his free will.

He had to have knowledge of my cases because

of his previous position and because it was a

Victorian matter, Your Honour, and it is a very

complicated matter and it is running over 10 years,

which is a very long time. It involved

Attorney-General's Department, so it is very

difficult even to suppose that His Honour had no

knowledge of it. He had his free decision to

say, "That I don't want to sit on the bench to

hear this case because it might implicate me for

bias". His Honour did not do it.

Now if the transcript is perused, Your Honour,

nobody else has spoken so strongly against the

application as His Honour did. I think it was

very, very wrong in his case because if the

decision would have been saying1 and His Honour never

said - a word., nobody could have even mentioned

or bring up a single argument that the decision

was unfair.

HIS HONOUR:  Are you speaking of the application for

special leave now

MRS GALLO:  Yes, Your Honour, at the present I am speaking

on that case. (Continued on page 23)

C3Tl5/l/SR	22	12/10/88
Gallo(2)

HIS HONOUR:  When Mr Larkin represented you.

MRS GALLO:  Yes. Now, this matter meant a tremendous lot.

Today, Your Honour, when men were walking on the

moon, when people are fighting for animal rights;

I am that one that mo has not got the right, it was

-taken away from me. His Honour's decision by,

we say, influencing the decision and the publication

cut me altogether forever off, Your Honour,

because I have been told that there is no place,

nowhere I can go. That was the very end of it,

and this is it.

Now, Your Honour, it has a tremendous lot of

consequence which I only know how tremendous

it is and I am sure that all those people

who have been involved took very great advantage

of it. As I put it in my affidavit, it did not

take 10 days. They, in that bank, made its move.

I have absolutely no right whatsoever, Your Honour.

Whatever is happening I am a vexatious litigant,

pleaded as such.	My application is dismissed,
not heard.	Well, I believe this is all the

consequence that,as a last resort, when I came

to the High Court, with respect, that whole -

and they believe that whatever is done in

Victoria, it surely will be looked at and looked

into. See if it is right, Your Honour, if it is

correct what was done, but ..... I was refused.

I believe, Your Honour, a Justice of the

High Court has the highest of judicial acting.

Maybe I am wrong but I believe that is what it

should be. Now, if he has to, Your Honour,

he has to act accordingly. If he acts accordingly
he has to act judicially, give a fair trial
to a poor person even like me, listen and try to

find out what is that fact to make justice. In

my case it was not done, Your Honour, and I blame

altogether the attitude. I am not claiming

decisions, Your Honour, because this was not

His Honour's decision, it was a Full Court decision,

but the influence, what he quoted, excerpts, in

the court, as far as my case has been concerned

I feel it was damaging and unfair and unjust.

I have a case, Your Honour, I believe, despite

the learned counsel's argument that in several

cases it has been refused and whatever justice

says, not what he says. But I am arguing that very

point, that by his free will he could have any time

to say,. that I do not want to hear this person's

application because I know too much of her affairs

and that much,which is very, very difficult to

i:magine,that if a person breathed, Your Honour, and

his decision, I would not be able to even suppose.	breathed ..... that this breathing would not influence order to give me time to serve a statement of claim
and to carry on with the action.

C3T16/l/MB	23	12/10/88
Gallo(2)

MRS GALLO (continuing):  I cannot argue, Your Honour, on

the basis of references because I did not think
that the affidavit would not be sufficient showing

that whatever cases to be prepared for the Court.

at least the factual ..... ,because th-ey have been

taken from the file and it is not imagination, supposition or anything - that just plain copy

from the action which would show. Not mentioning

that it is very, very difficult for me, Your Honour,

because I do not know the secrets of looking up

cases so that makes it hard.	If Your Honour pleases,
if I could have the order.	-

HIS HONOUR: Well, thank you, Mrs Gallo. Yes, Mr Black.

MR BLACK:  Your Honour, I want to approach this matter with

some delicacy because Mrs Gallo is a litigant in

person but, Your Honour, having said that, it is

now as, indeed, always was, apparent that the matters

about which Mrs Gallo complains are the matters that

fall squarely and unarguably within the concept of

judicial immunity and there is no suggestion,

Your Honour, that they do not and, therefore, in

our submission, the application must be succeed.

Your Honour, the only other matter is this:

that we, as counsel of course, are aware that the legal issues in this application are very narrow.

It is not for us to contest the factual basis upon

which Mrs Gallo's complaints are made. By making

this application, of course, it cannot be suggested
that there is any concession about those factual

matters but beyond that, Your Honour, consideration's

propriety require me to remain silent. It is a

narrow legal point and we make a narrow legal

submission, if the Court pleases.

HIS HONOUR:  Thank you, Mr Black. Mrs Gallo, I want to take

time to reflect on what is in your affidavit and what you have said and to consider what Mr Black

has said and so I will reserve my decision and

issue it in writing., I hope, during next week.

MR BLACK:	May it please Your Honour.
HIS HONOUR:	The Court will adjourn now until 2.15 pm.

AT 1.07 PM THE MATTER WAS ADJOURNED SINE DIE

C3Tl7/l/SH	24	12/10/88
Gallo(2)