Hoare v Lucchetti and 20 Ors

[2002] NSWSC 702

CITATION:	HOARE v LUCCHETTI & 20 Ors [2002] NSWSC 702
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 11796/02
HEARING DATE(S):	29/07/02
JUDGMENT DATE:	31 July 2002
PARTIES :	John Charles Hoare - Plaintiff Luigi Lucchetti - First Defendant Annick Lucchetti - Second Defendant Greg Stott - Third Defendant Councillor Tracie Sonda (Mayor) - Fourth Defendant Councillor Dawn Emerson (Deputy Mayor) - Fifth Defendant Councillor Kevin Schreiber - Sixth Defendant Councillor Bob Spencer - Seventh Defendant Councillor Paul Smith - Eighth Defendant Councillor Jenni Gormley - Ninth Defendant Councillor Phil Blight - Tenth Defendant Councillor Scott Docherty - Eleventh Defendant Councillor David Redmond - Twelfth Defendant Councillor George Hurley - Thirteenth Defendant Councillor Ken McDonell - Fourteenth Defendant Councillor Genevieve Rankin - Fifteenth Defendant Councillor Lorraine Rodden - Sixteenth Defendant Councillor Steve Simpson - Seventeenth Defendant Mr John Robert Dunford - Eighteenth Defendant Mr Barry O'Keefe - Nineteenth Defendant Sutherland Shire Council - Twentieth Defendant Glomill Pty Limited t/as L J Hooker Menai - Twenty-First Defendant
JUDGMENT OF:	Barr J at 1

COUNSEL :	Plaintiff: In Person First and Second Defendants: Mr T Stuart Eighteenth and Nineteenth Defendants: Mr SA Woods
SOLICITORS:	Plaintiff: In Person First and Second Defendants: Thomson Bentley & Partners Third Defendant: Ebsworth & Ebsworth Fourth to Seventeenth Defendants: Patrick John Duffy Eighteenth and Nineteenth Defendants: I V Knight Twentieth Defendant: Patrick John Duffy Twenty-First Defendant: Ebsworth & Ebsworth
LEGISLATION CITED:	Crimes Act 1900, s 18 Supreme Court Rules Pt 13 r 5, Pt 15 r 26
CASES CITED:	Bhagat v Young & Ors [2002] NSWSC 331 Rajski v Powell & Anor (1987) 11 NSWLR 523 Yeldham v Rajski (1989) 18 NSWLR 48
DECISION:	See paragraph 27.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

Wednesday, 31 July 2002

11796/02 - JOHN CHARLES HOARE v LUIGI LUCCHETTI & 20 Ors

JUDGMENT

1 BARR J: These are three motions for the summary dismissal of the proceedings commenced by summons in which the plaintiff seeks the following orders:

(1) The defendants are guilty of committing acts of negligence.

(2) The defendants are guilty of committing acts of criminal negligence.
(3) The defendants are guilty of committing acts of reckless indifference to human life.
(4) The defendants are guilty of conduct which shows disregard for the life and safety of others.

2 I assume that it is declarations which the plaintiff seeks to the effect of the paragraphs set forth in the summons.

3 Page 5 of the summons sets forth this passage:

You are liable to suffer judgment or an order against you unless the prescribed form of notice of your appearance is received in the Registry within 14 days after service of this INDICTMENT upon you, and you comply with the rules of Court relating to your defence.

4 Filed in support of the summons is an affidavit. It is in two parts. The first sets out five paragraphs in the following terms:

1) The defendants are allegedly guilty of committing acts of negligence prior to the 21st May 199 (sic), on and after the 21st May 1999 in the Municipality of the Shire of Sutherland.

2) The defendants are allegedly guilty of committing acts of criminal negligence prior to the 21st May 199 (sic), on and after the 21st May 1999 in the Municipality of the Shire of Sutherland.

3) The defendants are allegedly guilty of committing acts of reckless indifference to human life prior to the 21st May 199 (sic), on and after the 21st May 1999 in the Municipality of the Shire of Sutherland.

4) The defendants are allegedly guilty of conduct which shows disregard for the life and safety of others prior to the 21st May 199 (sic), on and after the 21st May 1999 in the Municipality of the Shire of Sutherland.

5) The 18th and 19th defendants are allegedly guilty of acts of negligence and criminal negligence which occurred in the course of their attempting to discharge their public duties as public servants in the Supreme Court of New South Wales in 2002.

5 A further affidavit comprising part of the same document contains this passage:

I John Charles Hoare of 6 Koorong Place Bangor, in the State of New South Wales hereby make oath and say;

1. I am the plaintiff in the aforesaid proceedings.

2. Based on the evidence which will be before this court and which will be before the Director of Public Prosecutions for the State of New South Wales, and in the public interest, a formal request, based on this evidence, for indictments for criminal negligence has been sent to the director's office for indictments for criminal proceedings to be instituted relating to the same cause of action against the defendants as in matter no 11796 of 2002 and matter no 30035 of 2002..

3. The orders sought by the plaintiff from Justice O'Keefe and Justice Dunford on 27th and 28th May 2002 were high priority in the public interest as the request against the background of the 1st, 2nd and 20th defendant's failure to remove immediately the risks of injury to the public posed by the large 10 tonne tree leaning dangerously over a public footpath as the evidence shows at 45 degrees.

4. Justice O'Keefe and Justice Dunford are high ranking public servants who are charged at all times whilst attempting to discharge these duties with acting in the best interests of the public they serve. I hereby allege that their deliberate refusal to remove these serious risks of injury to the public, one of which (the large 10 tonne tree leaning dangerously over a public footpath as the evidence shows at 45 degrees with, as the evidence shows, its roots as evidenced by the large mound at its base literally lifting out of the ground indicating that these roots can (sic) longer support the weight of this massive tree [the reason for the dangerous angle of lean of 45 degrees]. The other large bare dead tree [situated immediately alongside a public footpath] the qualified arborists say have (sic) been dead for at least 5 years in a highly built up residential area and poses a significant risk to public safety and should have been removed 5 years ago.

5. When confronted by all of these lethal risks [except the risk of electrocution on the premises], Mr Greg Stott the agent said quote; "The place has been like this for 15 years." end quote. He was aware of the risks of injury from these multitude sources of danger. He left children at risk.

6. Justice O'Keefe and Justice Dunford's refusal to remove the significant risks of injury to the public, left children and the public at risk.

6 The first and second defendants are, or were, the plaintiff's landlord. The third defendant was his estate agent and the twenty-first defendant the third defendant's company or firm. The defendants numbered four to seventeen respectively are or were councillors of Sutherland Shire Council, which is the twentieth defendant. The eighteenth and nineteenth defendants are judges of this Court. The former solicitor and barrister for the first and second defendants are named as defendants but it is not clear whether they have been served and they have played no practical part in the proceedings.

7 It appears that the plaintiff was involved in proceedings in the Residential Tenancies Tribunal to which some defendants were parties or in which they were involved. As a result, proceedings number 30035/02 were commenced in the Administrative Law List of this Division. An inspection of the record shows that on 27 May 2002 O'Keefe J did no more than stand the summons out of the duty list into the Administrative Law List of Dunford J on 28 May. His Honour also appears to have refused to grant interlocutory relief when the plaintiff applied to his Honour in a telephone conversation on an earlier day.

8 On 28 May Dunford J dismissed the plaintiff's motion for a jury and referred to the Master for hearing the defendant's motion for summary judgment.

9 This present summons was returnable on 15 July 2002. The plaintiff appeared in person. Other defendants were represented by counsel or solicitors. Counsel for the twentieth defendant, the Council, filed in Court a notice of motion seeking an order dismissing the summons summarily and foreshadowed that the councillor defendants would join in that motion if, as expected, instructions to that effect were received.

10 Counsel for the eighteenth and nineteenth defendants also filed a notice of motion seeking to have the proceedings summarily dismissed. Dowd J adjourned the proceedings generally to 29 July 2002 but adjourned the motion of the eighteenth and nineteenth defendants for hearing at 2pm on 19 July.

11 On 19 July the plaintiff again appeared in person. Counsel for the eighteenth and nineteenth defendants appeared. His Honour adjourned the motion to 22 July for hearing.

12 There was no appearance by or for the plaintiff on 22 July. Instead, the plaintiff sent a letter to the Court by facsimile transmission addressed to Sperling J:

Matter No: 11796 of 2002

Dear Justice Sperling,

This matter has been handed over to the Legal Aid Commission of NSW. In view of the fact that they only received the matter on 22nd July 2002, they certainly have not been given enough time to properly prepare for today.

The matter is next listed for Monday 29th July 2002 where it can be raised.

The findings of fact which the serious allegations against all defendants are based should at law go to a jury. The NSW Cabinet is also considering the request to stand the 2 Judges down.

Yours sincerely

John Hoare

13 His Honour adjourned the motion to 29 July and directed the solicitor for the eighteenth and nineteenth defendants to inform the plaintiff of the adjourned date, if that were practicable.

14 The summons and the motions came before me for hearing on 29 July. There was no appearance by the plaintiff or by anyone on his behalf. The other parties served appeared by counsel or solicitors. The plaintiff sent me a letter by facsimile transmission. It is in the following terms:

Matter No: 11796/02

For directions: 29/7/02 10 am.

Dear Justice Barr,

Due to serious illness this matter has been handed over to the Legal Aid Commission of New South Wales.

As they have only just received this matter they need time to go through the large body of evidence which has been given to them before they can file it, and serve this on the other parties in this most serious of matters.

I therefore respectfully request an adjournment to facilitate this.

Yours faithfully

John Hoare.

15 No evidence was offered to show who was ill or what the nature of the illness might be. No one appeared from or instructed by the Legal Aid Commission. All defendants opposed any further adjournment of their motions for summary dismissal. It was established that the first and second defendants had in the meantime served on the plaintiff a notice of motion returnable on 29 July seeking orders including an order that the proceedings be summarily dismissed.

16 It seemed to me that the plaintiff had failed to give any satisfactory explanation for his failure to appear on 29 July. I was satisfied that he knew that on that day he was likely if he attended to have to respond to the three motions for summary dismissal. In view of the seriousness of the allegations made by the plaintiff and his lack of satisfactory explanation for his failure to attend, it seemed to me that it would be unjust to delay further the hearing of the motions. I therefore declined to adjourn the hearing of the summons and the motions and heard argument on the motions.

17 Against the defendants generally the plaintiff first asserts that they have committed acts of negligence. However, the plaintiff cannot succeed in a suit which asserts negligence but does not also assert consequential damage, for damage is the gist of an action for negligence: see Fleming on the Law of Torts, 7th edition, pp 95, 171. In so far as it seeks the first order, therefore, the summons is an abuse of process because no cause of action has been disclosed.

18 The second order sought in the summons raises a matter of a criminal nature which cannot be commenced by summons in this Division of the Court. It is also embarrassing because it is uncertain and discloses no offence. No cause of action has been disclosed.

19 As to the third order sought, the only legal reference to reckless indifference to human life to which the Court's attention has been directed appears in s 18 Crimes Act, which deals with the crime of murder. On the face of it, this order raises a criminal matter, set out as it is in a document calling itself an indictment. Criminal proceedings cannot be commenced in this manner. The pleading is embarrassing and an abuse of process.

20 The fourth order pleads that the defendants are guilty of conduct which shows disregard for the life and safety of others. Exactly what conduct is meant is left unclear or unexplained. The pleading is embarrassing because the defendants cannot by reference to it know what cause of action is raised against them. It is an abuse of process.

21 In my opinion each defendant is entitled, if he so moves, to have the summons dismissed under either Pt 13 Rule 5 or Pt 15 Rule 26 or in the inherent jurisdiction of the Court.

22 In the affidavit to which I have referred the plaintiff complains about orders made, or perhaps refused, by O'Keefe J and Dunford J respectively on 27 and 28 May 2002. It is thus apparent, notwithstanding the erroneous assertion that their Honours are public servants, that the plaintiff sues them in their capacity as judges.

23 It is a fundamental principle of law that a judge of a superior court is immune from liability for acts done in the conduct of his or her judicial capacity: Rajski v Powell & Anor (1987) 11 NSWLR 523 at 527-530 per Kirby P and at 538-540 per Priestley JA. That immunity applies to all acts done within jurisdiction in the exercise of judicial capacity, even if done in bad faith or in circumstances constituting a criminal act.

24 In Yeldham v Rajski (1989) 18 NSWLR 48 Hope JA, with whom Priestley JA agreed, said this at 66:

… it is well established that a judge of the Supreme Court cannot be made liable in civil proceedings for anything done by him in the performance of his judicial functions and within jurisdiction, even though he acts maliciously or corruptly.

See also the judgment of Adams J in Bhagat v Young & Ors [2002] NSWSC 331.

25 For these independent reasons, therefore, the eighteenth and nineteenth defendants are, in my opinion, entitled to the orders they seek.

26 Motions for summary dismissal appear now to have been brought on behalf of all parties except the third and twenty-first defendants. In my opinion no proper purpose would be served by allowing the proceedings to continue on foot against them even though they have not formally sought leave for dismissal. It is just that the proceedings as a whole should come to an end.

27 I make the following orders:

(1) Grant leave to the first and second defendants to file a notice of motion returnable forthwith in the form of the draft which I have initialled.
(2) Grant leave to the fourth to seventeenth defendants to join in the notice of motion of the twentieth defendant. Dispense with any need for service.


(3) The summons is dismissed against all defendants.

(4) The plaintiff is to pay the costs of the defendants.

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Last Modified: 08/15/2002