Hammond v The State of New South Wales
[2013] NSWSC 1930
•19 December 2013
Supreme Court
New South Wales
Medium Neutral Citation: Hammond v The State of New South Wales [2013] NSWSC 1930 Hearing dates: 16 December 2013 Decision date: 19 December 2013 Jurisdiction: Common Law Before: Adamson J Decision: (1) Order, pursuant to s 6(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), that the proceedings be determined by this Court.
(2) Dismiss the proceedings.
(3) Order the plaintiffs to pay the defendants' costs of the proceedings and of the notices of motion, including any reserved costs.
Catchwords: PRACTICE AND PROCEDURE -application for summary dismissal -no arguable cause of action disclosed -abuse of process -constitutional writs impermissibly sought for review of determination of superior judicial court -impermissible collateral attack on final decisions
JURISDICTION -special federal matter - cross-vesting -special reasons for Supreme Court to determine proceedings
TORTS -no actionable duty of care owed by State or Commonwealth in respect of judicial decisions -'judicial oppression' not a tort known to law -Law Reform (Vicarious Liability) Act 1983 -no intention to derogate from judicial immunity or render Crown liable for conduct of judges in courtLegislation Cited: Administrative Decisions (Judicial Review) Act 1977 (Cth), s 6, s 9, s 9(1), s 9(1)(d)
Civil Procedure Act 2005, s 13
Civil Procedure Regulation 2012, cl 4, cl 8, cl 11(1), sch 1 pt 1
Commonwealth of Australia Constitution Act 1900 (Cth), s 72, s 75(v)
Law Reform (Vicarious Liability) Act 1983, s 5, s 7, s 8, s 10,s 10(2)
Judicial Officers Act 1986, s 44A, s 44B, s 44C
Judiciary Act 1903 (Cth), s 39B
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 3, s 4(1), s 4(1)(b), s 6(1), s6(3), s 6(4)
Supreme Court Act 1970, s 46(4)
Uniform Civil Procedure Rules 2005, r 13.4Cases Cited: ASIC v Edensor Nominees Pty Ltd [2001] HCA 1; 204 CLR 559
Attorney General v Bar-Mordecai [2005] NSWSC 142
Bar-Mordecai v Bryson and Ors [2002] NSWSC 815
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
Fingleton v The Queen [2005] HCA 34; 227 CLR 166
Hopkins v Governor-General of Australia [2013] NSWCA 365
Northern Territory of Australia v Mengel [1995] HCA 65; 185 CLR 307
Potter v Minahan [1908] HCA 63; 7 CLR 277
R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; 94 CLR 254
Rajski v Powell (1987) 11 NSWLR 522
Rippon v Chilcotin Pty Limited [2001] NSWCA 142; 53 NSWLR 198
Scanlon v Director-General Department of the Arts Sport and Recreation [2007] NSWCA 204; 70 NSWLR 1
Sneddon v State of New South Wales [2012] NSWCA 351
Viro v The Queen [1978] HCA 9; 141 CLR 88
The King v Murray and Cormie; ex parte the Commonwealth [1916] HCA 58; 22 CLR 437
Towie v State of Victoria [2008] VSC 177; 19 VR 640
Walton v Gardiner [1993] HCA 77; 177 CLR 378
Wentworth v Wentworth [2001] NSWCA 350; 52 NSWLR 602Category: Principal judgment Parties: Patrick Hammond (First Plaintiff)
Tracie Lynn Hammond (Second Plaintiff)
State of New South Wales (First Defendant)
Commonwealth of Australia (Second Defendant)Representation: Counsel:
In Person (First Plaintiff)
G Sarginson (First Defendant)
A Markus (solicitor advocate) (Second Defendant)
Solicitors:
Crown Solicitor's Office (First Defendant)
Australian Government Solicitors (Second Defendant)
File Number(s): 2013/259832 Publication restriction: None
Judgment
Introduction
The first defendant (the State) and the second defendant (the Commonwealth) applied for summary dismissal of the proceedings brought against them by Mr and Mrs Hammond on the ground that the amended statement of claim filed on 23 September 2013 (the pleading) discloses no cause of action and is an abuse of process.
The plaintiffs' claims against the State and the Commonwealth are principally based on the proposition that each defendant is vicariously liable for the acts of the judicial officers who decided matters adversely to the plaintiffs in various proceedings to which the plaintiffs were parties. The plaintiffs' claims against the Commonwealth are also based on an alleged duty to uphold the law, monitor judges and correct errors of law made by them.
The defendants contend that these two propositions are wrong as a matter of law and that they owe no actionable duty to the plaintiffs in the circumstances. They also rely on judicial immunity and the principle of finality.
Leave was granted to Mr Hammond, on the basis of Mrs Hammond's written authorisation and a medical certificate concerning her health, to appear on her behalf. Accordingly, Mr Hammond appeared on his own behalf and on behalf of his wife.
The various proceedings that are said to give rise to the plaintiffs' causes of action
The possession proceedings
The pleading and Mr Hammond's affidavit affirmed 1 November 2013 narrate a long standing dispute between Mrs Hammond and JP Morgan Trust Australia Pty Limited (JP Morgan) relating to a loan secured by a mortgage over property owned by Mrs Hammond at Faulconbrige. On 22 April 2008, JP Morgan commenced proceedings for possession of land against Mrs Hammond on the basis of alleged default in the payment of the loan (the possession proceedings).
The possession proceedings were case managed by Davies J of this Court. In February 2012, they were allocated to Johnson J. On 9 March 2012, Johnson J refused Mr Hammond's application to appear as lay advocate for Mrs Hammond. On 3 April 2012, Johnson J gave judgment in the possession proceedings in favour of JP Morgan. On 19 April 2012, Mr Hammond filed, on behalf of his wife, a notice of appeal from the judgment of Johnson J. On 7 August 2012, Mr Hammond filed a notice of motion seeking to be joined as a party to the appeal. On 23 August 2013, Beazley JA dismissed Mr Hammond's notice of motion.
Mr Hammond applied, pursuant to s 46(4) of the Supreme Court Act 1970 (NSW), for review of this decision. By judgment delivered on 18 September 2013, the Court of Appeal (Basten and Meagher JJA and Bergin CJ in Eq) dismissed Mrs Hammond's appeal and Mr Hammond's application for review, which were heard together. Heydon and Gageler JJ dismissed Mr and Mrs Hammond's applications for special leave to appeal on 16 November 2012.
The professional negligence proceedings
The pleading, and Mr Hammond's affidavit, refer to proceedings between Mrs Hammond and Mark Thompson. Mr Thompson was Mrs Hammond's barrister in proceedings she brought for damages for personal injury, which were resolved at an informal settlement conference. After the settlement, Mrs Hammond commenced proceedings against her solicitors and Mr Thompson. In July 2011, Mrs Hammond obtained default judgment against Mr Thompson.
By motion filed on 9 March 2012, Mr Thompson applied to have the default judgment set aside. On 19 June 2012 Hislop J set aside the default judgment (and the consequent assessment in the sum of $5,135.35). On 14 December 2012, Hislop J transferred the matter to the Local Court.
Mr Thompson subsequently issued various notices to produce to Mrs Hammond and a subpoena to the solicitors in the personal injury proceedings. Mrs Hammond applied, by way of notices of motion, to have these notices and subpoenas set aside. By judgment dated 27 March 2013, Magistrate Corry declined to set aside the notices to produce and the subpoena.
On 25 July 2013, Simpson J refused Mrs Hammond's application for leave to appeal against the interlocutory judgment of Magistrate Corry with costs.
The Kemp Strang proceedings
The pleading also makes allegations concerning proceedings for preliminary discovery brought by Mr and Mrs Hammond against 13 persons trading as Kemp Strang. On 14 June 2013 Registrar Musgrave dismissed the application. On 13 September 2013, Slattery J dismissed the plaintiffs' application for review of the Registrar's decision.
The pleaded causes of action
The alleged cause of action against the State
The allegations against the State commence at [11] of the pleading. Paragraph [12] identifies certain Supreme Court and Court of Appeal judges who have heard proceedings involving the plaintiffs, as well as Magistrate Corry of the Local Court and two Supreme Court Registrars, Registrars Musgrave and Kenna.
At [13] of the pleading, the plaintiffs allege that the conduct of Davies J in the possession proceedings amounted, inter alia, to an "intentional tort" and "negligence". The plaintiffs make further allegations against Davies J at paragraphs 13E and 13F of the pleading, and allege the first defendant is vicariously liable for the acts of Davies J pursuant to s 7 and s 8 of the Law Reform (Vicarious Liability) Act 1983.
Similar allegations are made against Johnson J ([15]-[18]), for whose conduct the State is alleged to be vicariously liable ([19]) pursuant to s 7 and s 8 of the Law Reform (Vicarious Liability) Act. At [21] of the pleading, the plaintiffs allege the State "was aware" of the "intentional tort" or "negligence" of Johnson J, and "failed to take any action".
In the main, the particulars provided in support of the various claims relate to orders (whether interlocutory or final) adverse to the plaintiffs. These orders and rulings are all alleged to be wrong, and to amount, variously, to a failure to administer justice according to law, a contravention of the law, a breaking of the judicial officers' oath of office, an exercise of power which is inconsistent with the law, unjust, negligent, incompetent or dishonest, and/or a failure to observe the rules of natural justice and the doctrine of precedent.
On 6 August 2013, the first plaintiff sought to file the statement of claim in these proceedings. He attended the Registry and submitted an application for waiver or postponement of the filing fee. Registrar Kenna, the Duty Registrar, declined to waive or postpone the filing fee. The decision was made in chambers. Registrar Kenna gave a written reason for declining the application to waive or postpone the filing fee, being that the proceedings were "misconceived and had no prospects of success". At [47]-[49] the plaintiffs allege that the decision of Registrar Kenna amounts to a "denial of natural justice" and "negligence" for which the State is vicariously liable.
The plaintiffs claim damages, including aggravated and exemplary damages, against the first defendant, based upon the alleged conduct of the judicial officers, in the total sum of $10M.
The alleged cause of action against the Commonwealth
In essence, the pleaded claim against the Commonwealth is based on the allegation that the Commonwealth owes a duty of care "to all citizens ... to uphold the rule of law" ([5]) to monitor the conduct and exercise of power by persons appointed as judges to Federal courts and, where appropriate, to "make applications" to the Governor General under s 72 of the Constitution to have persons removed as judges and, where the exercise of power conferred upon judges miscarries, to correct it ([8]). The plaintiffs allege that, in breach of these duties, the Commonwealth failed to ensure that the rule of law was upheld, failed to monitor the exercise of power by persons appointed as judges and/or failed to take steps to correct miscarriages of power ([6] and [9]) and they suffered loss and damage as a result.
The plaintiffs seek damages against the Commonwealth, including aggravated and exemplary damages. There is also an assertion of a conflict of interest by Justices of the High Court of Australia in what is described as an exercise of power "to grant immunity from suit to legal practitioners" in D'orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; 223 CLR 1 (D'orta-Ekenaike), to which the plaintiffs are strangers. The plaintiffs allege that D'orta-Ekenaike involved a "miscarriage of (judicial) power" and was "inconsistent with existing law, the law in other jurisdictions, public policy, the public interest in the administration of justice and the foundational purpose for which the courts exist".
The plaintiffs also seek a declaration to the effect that the Commonwealth is:
"liable in respect of any losses ... which Tracie Hammond may incur as a result of the defence of immunity in the matter of Tracey Hammond v Mark Thompson, matter number 2010/265523 in the Local Court at Penrith".
This claim for relief does not fall into the same category as the challenges to earlier rulings in proceedings involving one or both of the plaintiffs. As I understand it, the plaintiffs at least apprehend that Mr Thompson will rely on a defence of advocate's immunity based on D'orta-Ekenaike in the professional negligence proceeding and claim to be entitled to an indemnity from the Commonwealth for the legal consequences of the decision.
Relevant principles for summary dismissal of proceedings
The relevant principles for summary dismissal under Uniform Civil Procedure Rule 13.4 are well established. Proceedings are to be summarily dismissed if they disclose no arguable cause of action, are clearly untenable and are doomed to fail. They are to be summarily dismissed if they are an abuse of process, or frivolous and vexatious. Proceedings which have been commenced for a collateral purpose, such as seeking to re-litigate issues which have been determined by the court to finality (through the appeal process), or which are ongoing in parallel proceedings, are an abuse of process. If there is an arguable issue to be tried, summary dismissal ought be refused.
The parties' submissions
The State's submissions
The State submitted that the proceedings disclose no cause of action against it because:
(1) There is no actionable duty of care owed by the State for the conduct of judicial officers of State Courts.
(2) The doctrine of judicial immunity and the Judicial Officers Act 1986 apply.
(3) The State is not vicariously liable for the conduct of judicial officers under the Law Reform (Vicarious Liability) Act since judges, Registrars and Magistrates are not servants, or in the service, of the State.
(4) There is no basis for the allegation of misfeasance in public office, which is the only arguably relevant intentional tort.
The Commonwealth's submissions
The Commonwealth submitted that the proceedings disclose no cause of action against it or are otherwise an abuse of process because:
(1) The proceedings are an abuse of process because they seek to re-litigate matters that have already been determined and offend the principle of finality.
(2) A court that is inferior in the judicial hierarchy to the High Court cannot challenge the lawfulness of the High Court's decision in D'orta-Ekenaike.
(3) The duty alleged to be owed by the Commonwealth is not an actionable duty. In so far as a duty of care is alleged, it does not pass the six-step test posited by McHugh J in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 (Crimmins). In so far as other duties are alleged, they are not known to the law as actionable.
The plaintiffs'/ respondents' submissions
The plaintiffs submitted that they had an arguable claim against the State on the following bases:
(1) The categories of negligence, and indeed tort, are not closed. Accordingly, the duty alleged in the instant case ought not be determined to be unarguable merely because it is unprecedented. Nor is it appropriate to determine that "judicial oppression" is unarguable as an intentional tort;
(2) Sections 7 and 8 of the Law Reform (Vicarious Liability) Act are expressed to apply "notwithstanding any law to the contrary";
(3) Judges, Registrars and Magistrates are "in the service of the Crown" within the meaning of s 8 since they are appointed by the Crown and are paid from consolidated revenue. The reference to "independent function" in ss 7 and 8 makes it plain that these provisions cover such persons notwithstanding the doctrine of judicial independence;
(4) There is no ground for exempting Judges, Registrars or Magistrates from the vicarious liability imposed on the Crown by the Law Reform (Vicarious Liability) Act, in circumstances where s 10 requires the statutory exemption for judicial officers to be disregarded;
(5) Although a judicial officer is personally immune from suit, the State is nonetheless liable for his or her tortious conduct by reason of s 10 of the Law Reform (Vicarious Liability) Act.
Mr Hammond relied on the following dicta in Sneddon v State of New South Wales [2012] NSWCA 351 at [60] in which Basten JA adverted to the Crown's liability for the acts of a judicial officer:
It would follow from the analysis so far that a tortious act of a member of the legislature in the course of carrying out parliamentary functions, as a result of which a member of his or her staff was injured, would give rise to liability on the part of the State. It would also follow that a judicial officer, exercising the judicial power of government, would be carrying on a governmental function or activity of the Crown and that the State would be liable for his or her tortious conduct towards staff: cf Troughton v McIntosh (1896) 17 NSWR(L) 334 at 338 (Stephen J); see also McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; 165 ALR 409 at [209], where Weinberg J noted that judges hold "office under the Crown". That conclusion is consistent with the understanding that federal judges are officers of the Commonwealth for the purposes of s 75(v) of the Constitution: see The Queen v The Judges of the Federal Court of Australia; Ex parte The Western Australian National Football League (Inc) [1979] HCA 6; 143 CLR 190. The question is not whether or not the judicial officer is immune, but whether the State is liable for his or her tortious conduct.
Mr Hammond submitted that the plaintiffs had an arguable claim against the Commonwealth on the following bases:
(1) The first duty of a court is to administer justice according to law: Viro v The Queen [1978] HCA 9; 141 CLR 88.
(2) The first four tests in Crimmins are satisfied, although it is not necessary that they be satisfied in light of the first duty identified in (1) above.
(3) The claim against the Commonwealth is arguable and therefore ought not be summarily dismissed.
Reasons
Before considering whether the proceedings ought be summarily dismissed, it is necessary to determine an antecedent jurisdictional question raised by the Commonwealth.
Whether the proceedings concern a 'special federal matter'
As part of their case against the Commonwealth, the plaintiffs seek to challenge:
(1) the refusal by the High Court of two special leave applications, brought by Mr and Mrs Hammond, respectively;
(2) what is said to be a refusal by a Deputy Registrar of the High Court to permit the filing of a summons challenging the retainer of solicitors purporting to appear for a respondent in each of the special leave applications; and
(3) the authority of the judgment of the High Court in D'orta-Ekenaike.
Section 9 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) provides as follows:
Limitation of jurisdiction of State courts
(1) Notwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review:
(a) a decision to which this section applies that is made after the commencement of this Act;
(b) conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision to which this section applies;
(c) a failure to make a decision to which this section applies; or
(d) any other decision given, or any order made, by an officer of the Commonwealth or any other conduct that has been, is being, or is proposed to be, engaged in by an officer of the Commonwealth, including a decision, order or conduct given, made or engaged in, as the case may be, in the exercise of judicial power.
Note: This subsection has effect subject to the Jurisdiction of Courts (Cross-vesting) Act 1987 and to subsection 1337B(3) of the Corporations Act 2001.
(2) In this section:
decision to which this section applies means:
(a) a decision that is a decision to which this Act applies; or
(b) a decision of an administrative character that is included in any of the classes of decisions set out in Schedule 1.
review means review by way of:
(a) the grant of an injunction;
(b) the grant of a prerogative or statutory writ (other than a writ of habeas corpus) or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ; or (c) the making of a declaratory order.
(4) This section does not affect:
. . .
(b) the jurisdiction conferred on the Supreme Court of a State by section 32A of the Federal Court of Australia Act 1976; or
(c) the jurisdiction of a court of a State in respect of any matter that is pending before it at the commencement of this Act.
The evident purpose of s 9 of the ADJR Act is to ensure that, subject to some exceptions, including (if the "Note" is effective) the operation of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (the Cross-vesting Act), the governmental and judicial conduct of the affairs of the Commonwealth are placed beyond the reach of State courts.
In my view, the decisions in respect of which a "review" is sought fall within s 9(1)(d) since the relief sought against the Commonwealth has the same, or similar, effect as the grant of a prerogative or statutory writ or the making of a declaratory order. It therefore amounts to a "review" within the meaning of s 9(2) of the ADJR Act.
Section 3 of the Cross-vesting Act defines "special federal matter" in the following terms:
"special federal matter" means:
...
(e) a matter that is within the original jurisdiction of the Federal Court by virtue of section 39B of the Judiciary Act 1903;
being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction.
The matter is within the original jurisdiction of the Federal Court by reason of s 39B of the Judiciary Act 1903. The justices of the High Court are officers of the Commonwealth within the meaning of s 75(v) of the Constitution. Unless the plaintiffs can establish that the relevant officers exceeded their jurisdiction I do not consider that the plaintiffs could establish any breach of any duty owed by the Commonwealth. The matter is not one in respect of which this Court would, apart from the Cross-vesting Act, have jurisdiction: see the analysis in Hopkins v Governor-General of Australia [2013] NSWCA 365 (Hopkins) at [8]-[11]. I accept the Commonwealth's submission that it is at least arguable that each of the orders, decisions and actions of officers of the Commonwealth that are subject to a collateral challenge in these proceedings fall within the definition of a "special federal matter" in s 3 of the Cross-vesting Act.
s 4(1) of the Cross-vesting Act relevantly provides:
Additional jurisdiction of certain courts
(1) Where:
(a) the Federal Court or the Family Court has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and
(b) the Supreme Court of a State or Territory would not, apart from this section, have jurisdiction with respect to that matter;
then:
(c) in the case of the Supreme Court of a State (other than the Supreme Court of the Australian Capital Territory and the Supreme Court of the Northern Territory)-that court is invested with federal jurisdiction with respect to that matter.
The word "matter" in s 4(1)(b) is the justiciable controversy between the parties comprised of the substratum of facts and claims between them: ASIC v Edensor Nominees PtyLtd [2001] HCA 1; 204 CLR 559 at [54] per Gleeson CJ, Gaudron and Gummow JJ.
Section 6(1) of the Cross-vesting Act requires the Court to transfer proceedings to the Federal Court of Australia where the matter for determination is a special federal matter, unless an order is made by the Court under s 6(3) which provides:
(3) The Supreme Court may order that the proceeding be determined by that court if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties.
I am also required by s 6(4), before making an order under s 6(3), to be satisfied that written notice has been given to the Attorney-General of the Commonwealth and of New South Wales, being the State where the proceeding is pending.
The direct inconsistency between s 9 of the ADJR Act (which purports to deprive this Court of jurisdiction with respect to such reviews) and s 4 of the Cross-vesting Act (which permits this Court to exercise jurisdiction over a special federal matter if it finds special reasons) was resolved in Hopkins. The Court of Appeal decided, at [24], that the Cross-vesting Act impliedly repealed s9 of the ADJR Act to the extent necessary to invest jurisdiction in State Supreme Courts.
I accept the Commonwealth's submission that, in view of the nature of the proceedings, the fact that the State of New South Wales is also a party to the proceedings, and the additional costs that may be incurred by having the proceedings transferred to the Federal Court, there are special reasons for the proceedings to be determined by the Supreme Court of New South Wales. I also accept that the notice requirements in s 6(4) are met by the appearances on behalf of the Commonwealth and the State in these proceedings. Neither the plaintiffs nor the State sought to be heard against my finding of special reasons or against my regarding the notice requirements as having been met.
Accordingly, my orders include an order pursuant to s 6(3) of the Cross-vesting Act that this Court determine the proceedings.
Proceedings are an abuse of process
The pleading is fundamentally flawed. The plaintiffs' claims involve collateral challenges to exercises of judicial power. An essential element of the plaintiffs' case is that judgments of superior courts, most of which have been upheld on appeal or were undisturbed following an attempt to challenge them through the conventional avenues of review and appeal, are wrong and involve so-called miscarriages of judicial power.
That the allegations in the pleading are made against persons who were not parties to the original proceedings may be sufficient to bring the matter outside the principles of res judicata and issue estoppel. However, in my view, the public policy considerations that underlie those principles are nonetheless apposite. I accept the defendants' submissions that the plaintiffs are, in substance, endeavouring in these proceedings to re-litigate matters that have already been determined adversely to them. This amounts to an abuse of process: Walton v Gardiner [1993] HCA 77; 177 CLR 378, at 393 per Mason CJ, Deane and Dawson JJ; see also Rippon v ChilcotinPty Limited [2001] NSWCA 142; 53 NSWLR 198.
The pleading offends the principle of finality that was described by the plurality in D'orta-Ekenaike in the following terms:
Finality
[34] A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding.
[35] The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called "fresh evidence rule") are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: "[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial".
[36] The rules based on the need for finality of judicial determination are not confined to rules like those mentioned above. Those are rules which operate between the parties to a proceeding that has been determined. Other rules of law, which affect persons other than the parties to the original proceeding, also find their justification in considerations of the need for finality in judicial decisions.
[Footnotes omitted]
The claim for declaratory relief against the Commonwealth amounts to an abuse of process for different reasons. If Mrs Hammond is unsuccessful in the professional negligence proceedings as a result of the defence of immunity, she will have a right to appeal, and, if her appeal is dismissed, a right to seek special leave to appeal with a view to persuading the High Court to revisit D'orta-Ekenaike. The law does not permit her to seek a remedy for the legal consequences of the decision by making a collateral challenge against the Commonwealth.
However, there is a further fundamental reason for striking out the proceedings for declaratory relief against the Commonwealth. Prohibition and mandamus require that the officer whose conduct is challenged be someone who is neither a member of the tribunal to which the application is made, nor superior to it: The King v Murray and Cormie; ex parte the Commonwealth [1916] HCA 58; 22 CLR 437 at 453 per Isaacs J. This Court is inferior to the High Court in the judicial hierarchy and cannot determine a dispute which challenges the lawfulness of a judgment of the Full Court of the High Court of Australia by reference to a dispute presently pending in another court. To seek such relief amounts to an abuse of process.
No arguable cause of action is disclosed: no actionable duty of care
The actionable duty said by the plaintiffs to be owed to them by the State is pleaded as follows:
"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. Further, the State has a duty to monitor the conduct and exercise of power by persons appointed as judges and where appropriate, pursuant to s 53 Constitution Act 1902, make applications to the Governor to have persons removed as judges."
The actionable duty said by the plaintiffs to be owed to them by the Commonwealth is pleaded as follows:
"[the] Commonwealth owe[s] a duty of care to all citizens, being a class of persons that includes the plaintiffs, 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"
In general, public authorities, including 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, the plaintiffs must have an arguable claim that the defendants owe them a duty of care.
All parties referred me to the following six-step test identified by McHugh J in Crimmins at [93] and accepted that it was the correct test to apply to determine when the Commonwealth, States, Territories and other public bodies owe a duty of care in circumstances where it is alleged there has been a failure to exercise statutory powers:
Step 1: Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.
Step 2: By reason of the defendant's statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.
Step 3: Was the plaintiff or were the plaintiff's interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.
Step 4: Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.
Step 5: Would such a duty impose liability with respect to the defendant's exercise of core policy-making or quasi-legislative functions? If yes, then there is no duty.
Step 6: Are there any other supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty.
The powers of the State, and those conferred upon the Commonwealth under the Constitution, insofar as they are relevant, are conferred for the benefit of the public generally. They are not conferred for the protection of a specific class of persons. It follows that, independently of issues that may arise under other steps, the plaintiffs fail step 2 of the Crimmins test.
The Commonwealth owes no duty, whether legally enforceable or otherwise, to 'review' decisions made by judicial officers of the Commonwealth. To impose any such duty to engage in processes of the type contemplated at [6], [8] and [9] of the pleading would be inimical to the separation of powers required by Chapter III of the Constitution: R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; 94 CLR 254 at 270 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.
Although the so-called Boilermakers principle does not apply to State courts, the imposition of an actionable duty as pleaded would be wholly inconsistent with the independence of the judiciary.
Accordingly, step 6 of the Crimmins test results in there being no duty of care as alleged being owed by the Commonwealth or the State to the plaintiffs.
There are further overwhelming policy reasons for denying the existence of a duty of care. To impose such a duty would facilitate dissatisfied litigants bringing actions against the Crown for damages because they are aggrieved by the decision. As Gleeson CJ said in Fingleton v The Queen [2005] HCA 34; 227 CLR 166 at [39]:
". . . 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."
I am satisfied that there is no arguable actionable duty of care owed by the State or the Commonwealth to the plaintiffs as alleged.
No arguable cause of action is disclosed: no tort of judicial oppression known to the law
The State has identified the tort of misfeasance in public office as being the only relevant intentional tort. It submitted, correctly, that there is no allegation that the alleged breaches were done with the intention of harming the plaintiff or that the judicial officers had actual knowledge (or were recklessly indifferent) that their actions were beyond power and would be likely to cause injury. These are ingredients of the tort: Northern Territory of Australia v Mengel [1995] HCA 65; 185 CLR 307 at 345-347.
Mr Hammond submitted that the reference to "intentional tort" in the pleading was a reference to the tort of "judicial oppression". This tort is unknown to the law. The pleading does not disclose an arguable cause of action.
No arguable cause of action: judicial immunity
Given my finding that there is no actionable duty as alleged owed by the Commonwealth or the State, it is not necessary to address the question of judicial immunity. Nonetheless, having regard to the emphasis placed by Mr Hammond on the limits of the doctrine I propose, for completeness, to address the submissions.
In respect of the proceedings against the State, the Judicial Officers Act 1986 applies. The relevant provisions are as follows:
44A Immunity of Supreme Court Judges
The protection and immunity of a Supreme Court judge (or a judge having the same status as a judge of the Supreme Court) performing duties as such a judge extends to the Judge when performing ministerial duties as such a Judge."
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.
44C Immunity of officers performing duties of judicial officers
A registrar, an associate Judge of the Supreme Court, a Commissioner of the Land and Environment Court, a Commissioner of the Compensation Court, an authorised justice, an authorised officer (within the meaning of the Criminal Procedure Act 1986) or any other officer of the court has, when performing the duties of a judicial officer (including ministerial duties) the same protection and immunity as the judicial officer has in the performance of those duties.
Section 3 of the Judicial Officers Act 1986 defines "judicial officer" as meaning, relevantly, a Judge of the Supreme Court and a Magistrate.
It is well established that no action or suit for damages is maintainable against a judicial officer for anything said or done by him or her in the exercise of his or her judicial functions: Kirby P in Rajski v Powell (1987) 11 NSWLR 522 at 535-537. Judicial immunity is regarded as an "essential corollary of judicial independence": Wentworth v Wentworth [2000] NSWCA 350; 52 NSWLR 602 at 609 per Fitzgerald JA. The doctrine of judicial immunity extends to Registrars performing judicial functions in the exercise of the court's jurisdiction and powers: Wentworth v Wentworth; Scanlon v Director-General Department of the Arts Sport and Recreation [2007] NSWCA 204; 70 NSWLR 1 at 25. It also extends to judicial officers performing "administrative functions intimately associated with judicial duties": Towie v State of Victoria [2008] VSC 177; 19 VR 640 at [59].
Proceedings instituted against judicial officers in contravention of judicial immunity ought be summarily dismissed, whether on the ground that they amount to an attempt to re-litigate issues that have already been heard and determined to finality (Bar-Mordecai v Bryson and Ors [2002] NSWSC 815; Attorney General v Bar-Mordecai [2005] NSWSC 142 at [65]-[66]) or because they are otherwise an abuse of process.
Whether the State is vicariously liable for the acts of a judicial officer
Mr Hammond submitted that, notwithstanding the immunity enjoyed by judicial officers, the State is liable for their tortious conduct. He emphasised the opening words of ss 7 and 8 of the Law Reform (Vicarious Liability) Act, "notwithstanding any law to the contrary" and the words of s 10(2) which, on their plain meaning, require statutory exemptions to be disregarded. Mr Hammond submitted that judicial immunity was a form of statutory exemption and therefore ought be disregarded.
The Law Reform (Vicarious Liability) Act relevantly provides:
7 Vicarious liability of masters
Notwithstanding any law to the contrary, a master is vicariously liable in respect of a tort committed by the master's servant in the performance or purported performance by the servant of an independent function where the performance or purported performance of the function:
(a) is in the course of the servant's service for his or her master or is an incident of the servant's service (whether or not it was a term of his or her contract of service that the servant perform the function), or
(b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the servant's master.
Part 3 Vicarious liability of Crown for persons in its service
8 Further vicarious liability of the Crown
(1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function:
(a) is in the course of the person's service with the Crown or is an incident of the person's service (whether or not it was a term of the person's appointment to the service of the Crown that the person perform the function), or
(b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown.
...
10 Effect of statutory exemptions
(1) In this section:
person includes the Crown.
statutory exemption means a provision made by or under an Act which excludes or limits the liability of a person.
(2) For the purposes of determining whether or not a person is vicariously liable in respect of a tort committed by another person, any statutory exemption conferred on that other person is to be disregarded.
(3) Except as provided by this section, nothing in this Act affects a statutory exemption conferred on a person.
...
The term "independent function" is defined by s 5 as follows:
independent function, in relation to a servant or a person in the service of the Crown, means a function conferred or imposed upon the servant or person, whether or not as the holder of an office, by the common law or statute independently of the will of the servant's master or the Crown, as the case may require.
The conduct by judges that is alleged to give rise to the causes of action occurred in the course of exercising judicial functions in open court in proceedings in which the plaintiffs were parties (or where Mr Hammond was appearing for Mrs Hammond in proceedings in which she was a party). Judicial immunity applies. It cannot, in my view, be regarded as a mere "statutory exemption" for the purposes of s 10.
Further, notwithstanding the breadth of the statutory language ss 7, 8 and 10 of the Law Reform (Vicarious Liability) Act I do not consider these provisions ought properly be construed to render the State vicariously liable for the conduct of judges while exercising judicial power. The construction for which the plaintiffs contended is wholly at odds with fundamental principle. The "irresistible clearness" said to be required by O'Connor J at 304 in the following passage from Potter v Minahan [1908] HCA 63; 7 CLR 277 is lacking:
"It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness (United States v Fisher 6 US 358 at 390 (1805)); and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used."
Further, I am not persuaded that the State is vicariously liable for the acts of a judicial officer which fall within the immunity because, in carrying out those functions, judicial officers are neither acting as servants of the Crown nor in its service, but as independent judicial officers: Towie v State of Victoria (2008) 19 VR 640 at [60]; see also Rajski v Powell at 530-531 per Kirby P.
Nothing said by the Court of Appeal in Sneddon v State of New South Wales [2012] NSWCA 351 (Sneddon) in respect of the operation of s 8 of the Law Reform (Vicarious Liability) Act affects this principle. The example given by Basten JA at [60] of the Crown's vicarious liability for the conduct of a judge who behaves in a tortious manner towards his or her staff cannot, in my view, be extended by analogy to the conduct of a judge, as a judge, as distinct from the conduct of a judge in his or her capacity as a person who is in a position to exercise control over staff who are employed by the Crown. Indeed, his Honour appears to have used the analogy to amplify the central issue in Sneddon: whether an electoral office staff member who was employed by the Speaker could sue for the psychological damage said to have been caused by the conduct of the member of Parliament. Justice Basten found that the Member of Parliament was acting in the service of the Crown within the meaning of s 8.
However, Macfarlan JA found that the Member of Parliament was acting as a delegate of the Speaker, who was the employer, because there was a relationship between the office of the Speaker and members of Parliament in terms of the manner in which they were to supervise staff members. Justice Meagher held that the Member of Parliament was not acting in the service of the Crown. There was, accordingly, no concurrence by the other two judges, either with Basten JA's analysis, or with the analogy his Honour drew between a Member of Parliament and a judicial officer.
In my view, for the following reasons, the allegations based on the conduct of Registrars are similarly doomed to fail.
Registrar Musgrave was presiding over proceedings in open court, and exercising judicial functions. By reason of Section 44C of the Judicial Officers Act, the Registrar has the same judicial immunity in such circumstances as if he was a judge. Accordingly, there is no arguable cause of action. The same principles apply to the alleged conduct of Magistrate Corry.
The decision by Registrar Kenna to decline to waive or postpone the payment of a filing fee should also be summarily dismissed as disclosing no arguable cause of action. Part 4.10(5) of the Uniform Civil Procedure Rules 2005 provides:
. . .
4) The court may refuse to accept a document for filing whether or not an officer of the court has accepted the document for filing.
(5) An officer of the court may refuse to accept a document for filing in the following circumstances:
...
(b) in the case of a document for which a filing fee is payable, if the fee has not been paid or arrangements satisfactory to the officer of the court have not been made for its payment.
Under s 13 of the Civil Procedure Act 2005, the senior judicial officer of any court may, by instrument in writing, direct any function of the court in respect of which the court has jurisdiction to be exercised by a Registrar. Under Delegation 10 (Delegation to Registrars under the Civil Procedure Act) dated 9 April 2009, a Registrar has the delegated function of the court to reject documents for filing.
Part 2 Clause 4 of the Civil Procedure Regulation 2012 stipulates that filing fees, including for the filing of an originating process in this Court, are payable as set out in Schedule 1 Part 1. Clause 8(1) stipulates that the filing fee is due when the document is filed. Part 4 Clause 11(1) stipulates that the Registrar may direct in writing:
"the whole or any part of any fee payable to the registrar be waived, postponed or remitted, subject to such conditions (if any) as the registrar thinks fit to impose."
The decision of Registrar Kenna not to waive or postpone the filing fee was in the performance of a judicial function in the exercise of the Court's jurisdiction and powers, or at the very least the performance of an administrative function intimately associated with judicial duties. In these circumstances, the decision of the Registrar to refuse to waive the filing fee comes within the ambit of the doctrine of judicial immunity. It is irrelevant that the decision was made in chambers rather than in open court: Wentworth v Wentworth.
For the foregoing reasons I am satisfied that the pleading discloses no arguable cause of action either against the State or the Commonwealth and that the whole of the proceedings are an abuse of process. Accordingly, they ought be summarily dismissed.
Orders
I make the following orders:
(1) Order, pursuant to s 6(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), that the proceedings be determined by this Court.
(2) Dismiss the proceedings.
(3) Order the plaintiffs to pay the defendants' costs of the proceedings and of the notices of motion, including any reserved costs.
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Decision last updated: 08 January 2014
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