Hammond v State of New South Wales

[2015] NSWCA 304

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Hammond v State of New South Wales [2015] NSWCA 304
Hearing dates:	17 September 2015
Date of orders:	30 September 2015
Decision date:	30 September 2015
Before:	Emmett JA; Gleeson JA
Decision:	Summons seeking an extension of time and leave to appeal be dismissed with costs.
Catchwords:	PROCEDURE – summary dismissal – whether an arguable cause of action is disclosed – whether a collateral attack is sought to be made on exercises of judicial power, contrary to the principles of res judicata and issue estoppel
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 13 Law Reform (Vicarious Liability) Act 1983 (NSW), ss 7, 8 Supreme Court Act 1970 (NSW), s 101(2)(c), (e) Civil Procedure Regulation 2012 (NSW), cll 4, 8, 11 Uniform Civil Procedure Rules 2005 (NSW), rr 4.10, 51.9
Cases Cited:	Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; 223 CLR 1 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 19; 112 CLR 125 R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; 94 CLR 254 Walton v Gardiner [1993] HCA 77; 177 CLR 378
Category:	Principal judgment
Parties:	Patrick Hammond (First Applicant) Tracie Hammond (Second Applicant) State of New South Wales (First Respondent) Commonwealth of Australia (Second Respondent)
Representation:	Counsel: In person (First Applicant) No appearance (Second Applicant) G Sarginson (First Respondent) A Markus (solicitor) (Second Respondent)   Solicitors: Crown Solicitor’s Office (NSW) (First Respondent) Australian Government Solicitor (Second Respondent)
File Number(s):	2014/13764
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Date of Decision: 19 December 2013 Before: Adamson J File Number(s): 2013/259832

Judgment

1. THE COURT: Mr Patrick Hammond and Mrs Tracie Hammond (the Hammonds) have applied by summons filed on 7 May 2014 for leave to appeal from orders made by a judge of the Common Law Division (the primary judge) on 19 December 2013. On that day, for reasons published at that time, the primary judge, relevantly for present purposes, ordered that proceedings commenced by the Hammonds against the State of New South Wales (the State) and the Commonwealth of Australia (the Commonwealth) be dismissed summarily. [1] Her Honour ordered the Hammonds to pay the costs of the State and of the Commonwealth.

   1. See Hammond v The State of New South Wales [2013] NSWSC 1930.

2. The State and the Commonwealth successfully contended before the primary judge that the amended statement of claim filed by the Hammonds on 23 September 2013 (the Statement of Claim) disclosed no arguable cause of action against either the State or the Commonwealth and that the whole of the proceedings were an abuse of process. Since the order dismissing the proceedings was interlocutory, the Hammonds need leave to appeal from that order and from the orders for costs made by the primary judge. [2]

   2. Supreme Court Act 1970 (NSW), s 101(2)(c), (e).

3. The claims by the Hammonds against the State and the Commonwealth are based principally on the proposition that each is vicariously liable for the acts of judicial officers who decided matters adversely to the Hammonds in various proceedings in which they were parties. The claims against the Commonwealth are also based on an alleged duty to uphold the law, monitor judges and correct errors of law made by judges.

4. The Hammonds made complaints concerning decisions made by various judicial officers in relation to four separate disputes as follows:

• A claim made in the Common Law Division by JP Morgan Trust Australia Pty Ltd (JP Morgan) for possession of a property at Faulconbridge owned by Mrs Hammond (the Faulconbridge property) (the Possession Proceedings);

• A claim by Mrs Hammond against Mr Mark Thompson, barrister, in connection with proceedings brought by Mrs Hammond for personal injury (the Professional Negligence Proceedings);

• Proceedings for preliminary discovery brought by the Hammonds against Kemp Strang, a firm of solicitors (the Preliminary Discovery Proceedings);

• Waiver of fees in connection with the commencement of these proceedings in the Common Law Division against the State and the Commonwealth.

The Possession Proceedings

5. JP Morgan commenced proceedings for possession of the Faulconbridge property against Mrs Hammond on the basis of alleged default in the payment of moneys secured by a mortgage over the property. Those proceedings were case managed by Davies J and were subsequently allocated to Johnson J. Johnson J gave judgment for possession in favour of JP Morgan. Mr Hammond, on behalf of Mrs Hammond, filed a notice of appeal from the orders of Johnson J and filed a notice of motion seeking to be joined as a party to the appeal. Beazley JA, as her Honour then was, dismissed Mr Hammond’s notice of motion. Mr Hammond applied for review of that decision. Subsequently, Basten JA, Meagher JA and Bergin CJ in Eq dismissed Mrs Hammond’s appeal from the orders of Johnson J and dismissed Mr Hammond’s application for review of the order of Beazley JA. Mr Hammond and Mrs Hammond then sought special leave to appeal to the High Court from the orders of Basten JA, Meagher JA and Bergin CJ in Eq. Heydon and Gageler JJ dismissed their applications for special leave to appeal.

The Professional Negligence Proceedings

6. Mr Thompson was Mrs Hammond’s barrister in proceedings brought by her for damages for personal injury. The proceedings were resolved at an informal settlement conference. Following the settlement, Mrs Hammond commenced proceedings against her solicitors and Mr Thompson. Mrs Hammond obtained default judgment against Mr Thompson. However, Hislop J subsequently ordered that the default judgment be set aside. His Honour then transferred the matter to the Local Court.

7. Mr Thompson issued various notices to produce and a subpoena in connection with the proceedings in the Local Court. Mrs Hammond applied to have those notices and the subpoena set aside. Corry LCM declined to set them aside. Mrs Hammond then applied to the Common Law Division for leave to appeal from the interlocutory orders of Corry LCM. Simpson J, as her Honour then was, refused that application.

The Preliminary Discovery Proceedings

8. The Hammonds commenced proceedings for preliminary discovery against the partners of Kemp Strang. Registrar Musgrave dismissed the application. Slattery J dismissed an application by the Hammonds for review of Registrar Musgrave’s decision.

Waiver of Fees

9. Rule 4.10(5)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides that an officer of the Court may refuse to accept for filing a document for which a filing fee is payable if the fee has not been paid or arrangements satisfactory to an officer of the Court have not been made for its payment. Under s 13 of the Civil Procedure Act 2005 (NSW), any function of the Court in respect of which the Court has jurisdiction may be the subject of a direction that it be exercised by a registrar. Registrars of the Supreme Court have a delegated function of the Court to reject documents for filing.

10. Part 2 cl 4 of the Civil Procedure Regulation 2012 (NSW) stipulates that filing fees, including for the filing of an originating process in the Supreme Court, are payable as set out in Sch 1. The filing fee is due when the document is filed (Pt 2 cl 8(1)). However, Pt 4 cl 11(1) relevantly provides that the Registrar may direct in writing that the whole or any part of any fee payable be waived, postponed or remitted, subject to such conditions, if any, as the Registrar thinks fit to impose. On 6 August 2013, Mr Hammond applied to Registrar Kenna for the waiver or postponement of the filing fee in respect of the statement of claim filed in the present proceedings. Registrar Kenna refused the application.

Claims against the State

11. In the Statement of Claim, the Hammonds allege that the State has “a duty to ensure that the administration of justice in New South Wales is fair and efficient, observes the rules of natural justice, and preserves civil liberties”. They also allege that the State has “a duty to monitor the conduct and exercise of power by persons appointed as judges and, where appropriate … make applications to the Governor to have persons removed as judges”. They then allege that, in breach of those duties, the State failed to ensure that the administration of justice is fair and efficient and observes the rules of natural justice and failed to monitor the conduct and exercise of power by persons appointed as judges of the Supreme Court of New South Wales and the Court of Appeal. They allege that Davies J, Johnson J, Simpson J, Hislop J, Slattery J, Beazley JA, Basten JA, Meagher JA, Bergin CJ in Eq, and Corry LCM failed to observe the rules of natural justice and the doctrine of precedent, thereby wrongfully causing harm to them.

12. The Hammonds also assert that each of those judicial officers committed an “intentional tort” against them in the course of service with the State, in exercising power in a manner inconsistent with the law and failing to observe the rules of natural justice. They assert that the State is therefore vicariously liable for that intentional tort of those judicial officers under ss 7 and 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW) (the Vicarious Liability Act).

13. Mr and Mrs Hammond also allege that Registrar Musgrave committed an intentional tort against them in exercising power in a manner inconsistent with the law in failing to observe the rules of natural justice. They assert that the State is vicariously liable for that intentional tort pursuant to the Vicarious Liability Act.

14. Finally, the Hammonds allege that Registrar Kenna owed a duty to them to determine their application for waiver or postponement of filing fees according to information contained in the application and the applicable guidelines. They allege that, in breach of that duty, Registrar Kenna failed to determine the application on its merit and according to the guidelines and denied them natural justice. They assert that the State is vicariously liable for the conduct of Registrar Kenna under the Vicarious Liability Act.

Claim against the Commonwealth

15. The Hammonds allege in the Statement of Claim that the Commonwealth owes a duty of care to all citizens, being a class of persons that includes them, “to uphold the rule of law and ensure that all manner of persons, including citizens and government[,] are bound by and enjoy the benefit of the law”. They assert that, in breach of that duty, the Commonwealth failed to ensure that the rule of law was upheld in the courts or to ensure that they had the benefit of the law.

16. The Hammonds allege that, in hearing their application for special leave to appeal, Heydon and Gageler JJ refused to be bound by principles laid down by the Full Court of the High Court, did not administer justice according to law, contravened the law and broke their oath of office in order to defeat the Hammonds’ applications and to deny them justice according to law. They also assert that Deputy Registrar Griffin of the High Court prevented them from filing a summons challenging the retainer of the solicitors purporting to appear for the first respondent in each of the special leave applications and that Deputy Registrar Griffin refused to be bound by High Court precedent and contravened the law and denied them justice.

17. Finally, Mr and Mrs Hammond allege that the Commonwealth has put no process in place for citizens to seek redress where persons appointed as judges or registrars of the High Court exercise power in a manner that is inconsistent with the law, unjust, negligent, incompetent or dishonest. They also allege that the Commonwealth has failed to put any process in place to ensure that those persons appointed as judges administer justice according to the law.

The Reasons of the Primary Judge

18. The primary judge concluded that the Statement of Claim was fundamentally flawed because the claims by the Hammonds involved collateral challenges to exercises of judicial power. [3] While the fact that the allegations in the Statement of Claim are made against persons who were not parties to the earlier proceedings may be sufficient to bring the matter outside the principles of res judicata and issue estoppel, her Honour considered that the public policy considerations that underlie those principles were nonetheless apposite. Her Honour found that the Hammonds were, in substance, endeavouring to re-litigate matters that have already been determined adversely to them and that that amounted to an abuse of process. [4]

    3. [2013] NSWSC 1930 at [43].

    4. [2013] NSWSC 1930 at [44].

19. In addition, the primary judge considered that, if Mrs Hammond was unsuccessful in the Professional Negligence Proceedings as a result of the defence of advocate’s immunity, she would have a right to appeal and, if her appeal were dismissed, a right to seek special leave to appeal to the High Court with a view to persuading the High Court to revisit its decision in D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; 223 CLR 1. [5] Further, her Honour held, in so far as the Supreme Court is inferior to the High Court in the judicial hierarchy, it cannot determine a dispute that challenges the lawfulness of a judgment of the full High Court by reference to a dispute presently pending in another court. Her Honour considered that to seek such relief amounted to an abuse of process. [6]

    5. [2013] NSWSC 1930 at [46].

    6. [2013] NSWSC 1930 at [47].

20. In dealing with the allegation in the Statement of Claim that the State and the Commonwealth owed certain duties of care, the primary judge observed that, in general, public authorities, such as the Commonwealth and the State, may be liable for any damage caused by negligent conduct, including negligent exercise or performance of a statutory power or duty. However, in order to resist summary dismissal of the proceedings, a plaintiff must have an arguable claim that the defendants owe them a duty of care. [7]

    7. [2013] NSWSC 1930 at [50].

21. All parties accepted that the test to apply in determining whether the Commonwealth or the State owed a duty of care was that laid down in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 (Crimmins) at [93]. The primary judge concluded that the application of that test resulted in there being no duty of care owed by the Commonwealth or the State to the Hammonds as alleged in the Statement of Claim. [8] Her Honour considered that there were overwhelming policy reasons for denying the existence of a duty of care, since to impose such a duty would facilitate dissatisfied litigants bringing actions against the Crown for damages because they were aggrieved by decisions of judicial officers. [9]

    8. [2013] NSWSC 1930 at [55].

    9. [2013] NSWSC 1930 at [56].

22. The primary judge was not persuaded that the State is vicariously liable for the acts of a judicial officer that fall within judicial immunity since, in carrying out the functions of a judicial officer, such officers are neither acting as servants of the Crown, nor in its service. Rather, they are independent judicial officers. [10] Her Honour also considered that the actions of Registrar Musgrave and Registrar Kenna were within the same principle. [11]

    10. [2013] NSWSC 1930 at [70].

    11. [2013] NSWSC 1930 at [74].

Proposed Grounds of Appeal

23. In their draft notice of appeal, the Hammonds rely on 17 grounds, which may be summarised as follows:

1. The primary judge had a conflict of interest because the majority of judicial officers referred to in the Statement of Claim are her colleagues and may be her friends, and consequently, a fair-minded lay observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the questions to be decided;

2. The primary judge erred in law in interpreting the provisions of the Vicarious Liability Act;

3. The primary judge exceeded her authority in failing to apply correctly principles of law relevant to the summary dismissal applications by the State and the Commonwealth and determined questions of fact and law upon which the Hammonds’ rights depended, rather than make a determination as to whether such questions existed;

4. The primary judge erred in not finding that matters of law raised by the State were rendered nugatory by force of the Vicarious Liability Act and should have found that the State was vicariously liable regardless of any other law that might prevent the State from being held vicariously liable;

5. The primary judge denied the Hammonds procedural fairness by failing to give an impartial evaluation of submissions made by Mr Hammond;

6. The primary judge erred in law in finding that the pleadings were fundamentally flawed as involving a collateral attack on the exercise of judicial power;

7. The primary judge erred in finding that the proceedings were an abuse of process by relying on considerations that undermine the common law principle of judicial immunity in circumstances where no judicial officers were parties to the proceedings;

8. The primary judge erred by finding that the pleadings offend the principle of finality, which is reflected in the doctrines of res judicata and issue estoppel, in circumstances where those principles did not apply because neither the State nor the Commonwealth was a party to any of the earlier proceedings;

9. The primary judge erred in determining whether a duty of care was owed by the State and the Commonwealth as alleged in the Statement of Claim;

10. The primary judge erred in denying the existence of a duty of care on the part of the State and the Commonwealth as alleged in the Statement of Claim;

11. The primary judge erred in finding that there was no arguable actionable duty of care on the part of the State or of the Commonwealth;

12. The primary judge erred in finding that the Statement of Claim did not disclose an arguable cause of action simply because the tort alleged was unknown to the law and was novel;

13. The primary judge erred in finding that judicial immunity applied in the circumstances;

14. The primary judge erred in concluding that the Vicarious Liability Act should not be construed as overthrowing fundamental principles, infringing rights or departing from the general system of law unless that intention was expressed with irresistible clearness;

15. The primary judge erred in finding that judicial officers are not servants of the Crown or persons in the service of the Crown within the meaning of the Vicarious Liability Act, but are independent judicial officers;

16. The primary judge erred in failing to find that the judicial officers referred to in the Statement of Claim had a duty to administer justice according to law and a duty to do justice between the parties;

17. The primary judge erred in ordering the Hammonds to pay more than 25 per cent of the Commonwealth’s costs.

No Error by the Primary Judge

24. There was nothing before the primary judge to support a contention that a fair-minded reasonable person would apprehend that her Honour had not brought an impartial mind to the proceedings. In the course of the hearing, Mr Hammond raised the issue of apprehended bias. However, he said that that was not directed at the primary judge personally. His contention was that “we have repeatedly been run over by judicial officers”. The essence of the complaint appears to be that the primary judge and most of the other judicial officers whose decisions are the subject of the Statement of Claim are members of the same court. That is not a basis for any apprehension of bias.

25. It is clear that the primary judge applied the correct test for determining whether or not the proceedings should be summarily dismissed. The written submissions and oral submissions of the parties addressed the well-established principles laid down in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 19; 112 CLR 125. There is nothing in her Honour’s decision to suggest that she failed to apply the correct test.

24. The contention by the Hammonds that there was no abuse of process because there was no issue estoppel or res judicata is misconceived. Their contention appears, erroneously, to confine abuse of process to issue estoppel and res judicata. The analysis of the primary judge in respect of the issue of abuse of process is clearly correct in so far as the Hammonds seek to re-agitate and re-litigate issues in respect of which they were previously unsuccessful.

25. The primary judge correctly identified that the power of judicial officers to preside over legal proceedings and make decisions in the course of the administration of justice is for the benefit of the public generally. There was no error in her Honour’s analysis in relation to the operation of the test in Crimmins.

26. While the power of the Court to dismiss proceedings summarily is predicated on the public policy that resources of the courts and litigants ought not be expended in dealing with alleged causes of action that are clearly untenable and have no prospects of success, there was no arguable tortious conduct by the judicial officers identified in the Statement of Claim. The “intentional tort” on the part of the relevant judicial officers that is alleged in the Statement of Claim does not exist. Her Honour’s reasons for rejecting the claims made in the Statement of Claim in that regard contain no error. It follows from that conclusion also that there could be no vicarious liability on the part of the State under the Vicarious Liability Act.

27. In essence, the Hammonds seek to re-litigate matters that have already been determined adversely to them. They seek to do so by directing their challenge to parties other than those involved in the earlier proceedings. While that approach may avoid the direct application of the principles of res judicata and issue estoppel, it does not overcome the public policy considerations that underlie those principles. Proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it seeks to litigate a new case that has already been disposed of in earlier proceedings. [12]

    12. Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 393.

28. The powers conferred on the Commonwealth by the Constitution, insofar as they are relevant, are conferred for the benefit of the public generally and not for the protection of a specific class of persons. The claim by the Hammonds founders on the test posed in Crimmins in that there is no allegation that the Commonwealth had the power to protect a specific class that included them, rather than the public at large, from a risk of harm. The primary judge was correct in holding that the test in Crimmins was not satisfied. There is no legally enforceable duty on the Commonwealth to review decisions made by judicial officers of the Commonwealth. A process aimed at such a review, outside the ordinary appeal processes of the judicial system, would be inconsistent with the separation of powers effected by the Constitution. [13] The primary judge was correct in holding to that effect.

    13. See R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; 94 CLR 254.

Conclusion

31. A notice of intention to appeal was filed on 15 January 2014, but was not served on the State until 20 January 2014. The summons seeking an extension of time to appeal and leave to appeal from the decision of the primary judge was not filed until 7 May 2014. Accordingly, the Hammonds are outside the period limited for the filing of a summons seeking leave to appeal. [14] However, neither the State nor the Commonwealth would oppose the extension of time for filing the summons if the Court were disposed to grant leave to appeal. However, they oppose the grant of leave to appeal on the basis that to do so would be futile because there was no error on the part of the primary judge.

    14. UCPR, r 51.9.

32. For the reasons outlined above, the primary judge made no error in concluding that the Statement of Claim discloses no arguable cause of action against either the State or the Commonwealth. It follows that, even if there were no timing difficulties, leave to appeal from the summary dismissal of the proceedings would not be granted. Accordingly, the present summons seeking an extension of time and leave to appeal should be dismissed with costs.

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Endnotes

Decision last updated: 30 September 2015