Im
[2006] FamCA 503
•13 June 2006
[2006] FamCA 503
JFIMEXPA
FAMILY LAW ACT 1975
IN THE FULL COURT OF
THE FAMILY COURT OF AUSTRALIA
AT MELBOURNE
Appeal No. SA 3 of 2006
File No. DGF 2894 of 2002
IN THE MATTER OF:
IM
Appellant/Father
EX PARTE
REASONS FOR JUDGMENT
BEFORE: Faulks DCJ, Kay & Coleman JJ
DATE OF HEARING: 31st day of May 2006
DATE OF JUDGMENT: 13th day of June 2006
APPEARANCES: The appellant father, appeared on his own behalf.
Name of Appeal IM
Appeal Number SA 3/2006
Date of Appeal hearing 31st day of May 2006
Date of Judgment 13th day of June 2006
Coram Faulks DCJ, Kay & Coleman JJ
Catchwords: Appeal against orders dismissing appellant’s application for leave to file an application (required due to an order in force and effect pursuant to s 118(1)(c) of Family Law Act 1975) for contempt against judge of the Family Court and to join the Attorney-General as a party to the proceedings.
Appellant’s challenge to trial Judge’s conclusions with respect to “the doctrine of judicial immunity” unsuccessful – doctrine not limited in ways asserted by appellant – doctrine does not preclude litigants from pursuing appropriate challenges to orders in reliance upon judge’s conduct, nor does it prevent judges from being accountable for extra-judicial actions – Fingleton v The Queen (2005) 216 ALR 474, followed.
Application to adduce further evidence refused.
Appeal dismissed
By Notice of Appeal filed 13 January 2006 the appellant appealed against orders made by Bryant CJ on 19 December 2005 dismissing an application filed by the appellant on 24 August 2005. That application sought orders in the following terms:
1. That on first inspection:
a.This Family Court does have the jurisdiction and authority to hear any issue/question of Contempt of this Court.
b.The evidence is such that there is merit for a Form 19 to be filed with this Court to answer an application for Contempt of Court by a Judicial Officer.
c.It would be unfair for a single Judge of the Family Court to hear this Form 19 in regard to a Judicial Officer of the Family Court and therefore we grant leave and transfer the hearing of this Form 19 application to the hearing of the Full Court of the Family Court.
2. That the father is hereby granted leave to file a single Form 19 with the Full Court of the Family Court at the Melbourne Registry
a.To be listed pursuant to Rule 21.05 of the Rules.
b.Each issue/question of Contempt shall be listed in this single application and any further issues/questions of Contempt, affidavits and evidence the father wishes to add.
3. That the rules of service are dispensed with and the Family Court of Australia will inform Mushin J in its own way of His Honours [sic] interest in this case.
4. That the bar Association is granted leave to assist the father directly and without the add [sic] of a solicitor.
a.The father is the holder of a Health Care Card and therefore we seek Legal Add [sic] of Australia assist the father in all his cost incurred by use of the Bar Association.
5. That the Attorney General is hereby requested to be a party in this case;
a.To address the question of s72.ii. of the Constitution in particular.
b.To address the question of possible compensation to any person affected by the issues of this case.
c.To afford the Attorney General an opportunity and knowledge for a possible “Writ of Mandamus”
6. That the Orders of Mushin J made 27/01/2004 are hereby discharged;
a.That Orders sort [sic] by the father in his submissions, by his affidavit sworn 17/05/2005, pursuant to an Order of Mushin J made 6/5/2005 be hereby granted.
b.The Orders sort [sic] by the father in his submissions, to be made as Orders separate from these Orders and placed on the file of DGF2894/02 today by ourselves.
7. That the Orders of Mushin J made 27/01/2004 shall be in force until 7 clear days after service of these Orders on the mother other than telephone contact.
a.Or, until an application to appeal these Orders is heard if such notice of intention to appeal is filed and served within 7 clear days after service of these Orders on the mother.
b.The mother, of the case DGF2894/02, shall initiate the telephone contact between the father and the children of the case DGF 2894/02 to the telephone number of XX at 7:00pm on the day of service of these Orders on the mother and/or her solicitor.
c.Such telephone contact, after the first telephone contact, shall be as per the Orders sort [sic] by the father and made by this Court this day.
d.That service on the father can be by way of fax, the fax number being XX.
e.That service on the mother can be by the father on the solicitor Ms FM.
f.This Court will serve a copy of the Child Contact Orders and these Orders on the Child Rep by post.
8. Any other orders this Honourable Court believes need to be made other than a transfer of this case to the High Court of Australia.
The application was heard ex parte by the Chief Justice who concluded that the appellant required the leave of the Court to file his application as an order under s 118(1)(c) of the Family Law Act 1975 (Cth) (“the Act”) made on 27 January 2004 continued to be in force and effect at the time of hearing his application. No part of this appeal relates to the appellant’s need to apply for leave by virtue of such order.
The appellant seeks that, in the event of his appeal succeeding, the Court make orders in the following terms:
1. I seek an order that the “Statute of Westminster” Clause 2(2) gives the Criminal Code preference over the Immunity Law of Lord Edward Coke’.
2. I seek an order that the Criminal Code creates the Law and demonstrates a Judicial Officer can be pursued for crimes committed at the Bench. Only when it is arguable that the conduct of a Judge could lead to claims pursuant to s22 of the Act and s72(ii) of the Constitution.
3. I seek an order that there is merit in the application for Contempt sort [sic] by I, the father on the 24/08/2005 against Mushin J. The conduct of Mushin J while hearing the case DGF2894/02 between 19th – 23rd /01/2004 has raised a question pursuant to s22 of the Act and s 72 (ii) of the Constitution, therefore leave be granted for my application of 24/08/2005 against Mushin J, to be filed, served and heard by this Court.
4. If Order 3 sought is granted, I seek this Court inform Mushin J in it’s [sic] own way of His Honour being named as a respondent to this application.
5. I seek an order that it be determined that the Orders made by Mushin J on the 27/01/2004 be dismissed as per Part 1 of the Rules, namely r 1.10 & r1.11 but not forgetting r1.04, 1.06(a)(b)(c)(g)(h)(i)(j) & r1.07. Due to judicial errors at the hearing.
6. I seek an order that that [sic] the Children & I, the father of the case DGF 2894/02 be granted leave for a costs application for the injustice inflicted on us by the making of the Orders by Mushin J on the 27/01/2004.
7. I seek an order that the affidavit evidence before this Court is such that the children of the case DGF 2894 being, KDM born 1994 and AAR born 1997 reside from this day forth with the Father.
8. I seek an order that the issue of Childs Contact be reserved other than contact agreed to by the Father in writing.
9. I seek an order that the Mother be ordered to hand over to the Father all the children’s belongings, toys and incidentals at the request of the Father.
10. I seek an order that the evidence of the Contravention & Contempt applications of the Father sought against the Mother & solicitor Ms FM have merit. The reserving of Judgement was in error by Bryant CJ. These applications although held up by Judicial process should have been granted leave to be served and heard long ago and that leave be granted on an urgent basis.
11. I seek an order that a certificate of costs be granted to all parties for a retrial of the case DGF 2894/02 if or when an application is brought before this Court for the case DGF 2894/02 to be retried.
12. I seek an order that the Division 11 order (IO) against the father be revoked and this Court immediately informs the Melbourne Magistrates Court of this fact.
In his Notice of Appeal, the appellant raised thirty grounds, in support of which, on 28 April 2006, he filed an “Amended Summary of Argument” comprising eleven pages of submissions. The appellant appeared unrepresented on the hearing of his appeal. There was of course no respondent to the appeal.
THE JUDGMENT OF THE CHIEF JUSTICE
Having identified the appellant’s application of 24 August 2005, and the affidavit supporting it, her Honour identified the issues before her. The appellant asserts that her Honour erred in her conclusions with respect to them. There is no suggestion that the Chief Justice inaccurately identified the relief which the appellant was seeking. Her Honour recorded as part of the relief being sought by the appellant “the joinder of the Attorney-General as a party to the proceedings and the provision of legal aid for the father to cover the costs of the proceedings”, and noted that the “main issue” was that leave be granted “to file an application for contempt against Justice Mushin, a Judge of the Family Court of Australia” (Judgment, paragraph 2).
The “five contempts said to have been committed by his Honour in the course of proceedings between the father and mother” were then referred to by her Honour. It is not suggested that her Honour recorded such claims other than accurately.
The first contempt asserted by the appellant was identified by her Honour as an allegation that “on 21 January 2005 Mushin J made statements that belittled the evidence of police officers and prevented a police officer from giving proper evidence” (Judgment, paragraph 7).
The second contempt relied upon by the appellant was identified by her Honour as “an allegation that Mushin J intimidated a witness and threatened a witness while that person was giving evidence”, the “witness” being the appellant. A number of particular complaints referable to “Contempt number 2” were also referred to by her Honour (Judgment, paragraph 10).
The third contempt was identified by her Honour as an allegation “that Mushin J tampered with the mother’s evidence about the relationship between the father and his ex-partner” (Judgment, paragraph 11).
10. The fourth contempt, which her Honour considered to be “less than clear”, she concluded “appears” to be a contention “that in reserving judgment at the conclusion of the trial Mushin J was expressing an intention not to make any orders” (Judgment, paragraph 12).
11. The fifth contempt was identified by her Honour as an allegation of “further abuses of the applicant by Mushin J by ordering him to produce financial records”, it being further alleged that “Mushin J conspired with the child representative … to make ‘false claim to judicial right’ to order the production of certain documents” and that Mushin J “threatened” the appellant and “placed him under duress, which was the ultimate reason for his withdrawal from the hearing” (Judgment, paragraph 13).
12. The “long history of litigation” between the appellant and the mother of their two children, who are aged eleven and eight, was traversed by the Chief Justice (Judgment, pages 17 & 18). It is not suggested that the “Background” recorded by her Honour was other than factually accurate. Nor has it been suggested that her Honour’s references to orders under s 118(1)(c) of the Act against the appellant made on 10 February 2003 and 27 January 2004 were other than accurate.
13. Reference was made by the Chief Justice to the dismissal on 15 October 2004 of an application by the appellant for leave to appeal out of time against Mushin J’s orders of 27 January 2004. Her Honour also referred to a variety of applications filed by the appellant during 2005, all of which Mushin J stayed on 24 August 2005 “upon learning of the applicant’s intention to seek leave to file a contempt application” against him (Judgment, paragraph 23).
14. Before considering the appellant’s application, the Chief Justice referred to the “Relevant law”, including the provisions of s 118 and their effect. No part of this appeal turns upon the accuracy of anything said by her Honour in that regard.
15. The Chief Justice recorded, accurately there is no doubt, that the appellant “understands and acknowledges that the case must be determined upon the provisions of Rule 11.05(4), namely, that he must establish to the satisfaction of the Court that the case has a reasonable likelihood of success” and that:
28. … He also understands, as he has acknowledged to me in his oral submissions and his written material, that he must overcome the doctrine of judicial immunity to be able to satisfy me that there is a reasonable likelihood of success.
16. Her Honour then considered the law relating to “the doctrine of judicial immunity”, which she stated in the following terms:
The actions of any Judge of a superior court … are immune from suit by operation of the doctrine of judicial immunity.
Her Honour amplified:
29. … A Judge is not liable to be sued or prosecuted in the performance of his or her judicial duties provided they have acted within their jurisdiction and with good faith.
17. The “two purposes” which the “judicial immunity” serves were discussed by the Chief Justice by reference to the decision of the High Court in Mann v O'Neill (1997) 191 CLR 204.
18. Her Honour then referred to the judgment of Hope JA of the Supreme Court of NSW in Yeldham v Rajski (1989) 18 NSWLR 48 in which “[t]he basis of the immunity of judges from civil proceedings in respect of their judicial acts” was explained.
19. Reference was also made to the decision of the NSW Court of Appeal in Wentworth v Wentworth (2000) 52 NSWLR 602 and the approval by the Court of a judgment of Kirby J, when President of the NSW Court of Appeal, in Attorney‑General of New South Wales v Kennedy Miller Television Pty Ltd (Unreported, [1999] NSWCA 158, delivered 31 May 1999) explaining the reasons why “judicial immunity” is “accorded to judicial officers”.
20. The Chief Justice recorded that:
32. The applicant acknowledges the doctrine of judicial immunity but contends that such immunity is only to be available during what he describes as “the tenure of good behaviour” I take this submission to mean that he contends the Judge must be acting in good faith during the relevant proceedings. He contends that Mushin J has demonstrably, by virtue of the matters he raises, not acted in good faith, breached his judicial powers in ways that offend the Crimes Act or create criminal offences and therefore the immunity is not available.
21. Her Honour concluded that:
34. … the doctrine of judicial immunity applies to criminal as well as civil actions and involves immunity, even in cases of alleged malice and/or bias. It is now well settled that there is no exception to the application of judicial immunity in such cases.
22. That conclusion was supported by reference to the judgment of the NSW Court of Appeal in Wentworth v Wenworth. The Chief Justice thus concluded in reliance upon the authority to which she had referred, that:
35. … the contempt proceedings must fail notwithstanding the allegations by the application of malice or bias. It is not alleged that Mushin J was performing extrajudicial or administrative functions that may not attract the protection of the immunity. I am therefore bound to conclude that the father’s proposed application to issue contempt proceedings against Mushin J has no reasonable likelihood of success.
23. The balance of the appellant’s application was then considered by her Honour, who concluded that the order “that the court grant leave to the Bar Association to assist” the appellant was not “an order that I believe is appropriate” (Judgment, paragraph 36). She then dealt with the application “that the Attorney-General be requested to be party in the case to address the question of section 72(2) of the Constitution”, concluding that “[t]his issue does not arise in this case and there is no constitutional issue that arises”.
24. The remaining orders sought by the appellant were refused by the Chief Justice, who concluded that “[n]one of them have any merit, for the reasons expressed”. The appellant’s application was thus dismissed.
THE GROUNDS OF APPEAL
25. The grounds of appeal are numerous, as earlier recorded, and many of the paragraphs set out in the Notice of Appeal under that heading do not constitute grounds of appeal. Not surprisingly, the “Amended Summary of Argument” of the appellant is not readily referable to identifiable “grounds” appearing in the Notice of Appeal. The nature of the appellant’s challenges to the Chief Justice’s decision is reasonably clear from his written material and not in doubt in the light of his oral submissions on the hearing of the appeal.
26. It is apparent that the major thrust of the appellant’s complaints relate to the Chief Justice’s conclusion with respect to “the doctrine of judicial immunity” and, as the appellant appeared to concede during the hearing of the appeal, the other challenges raised by him cannot be successful unless his appeal in that regard finds favour with this Court.
27. Even if the ancillary challenges could succeed in isolation, nothing to which the appellant has referred this Court, either in his written Amended Summary of Argument or his oral submissions, persuades us that any error was involved in the Chief Justice’s refusal to make the orders sought by the appellant with respect to the Bar Association (order 4 of Application filed 24 August 2005) or the Attorney-General (order 5). To the extent that the Chief Justice could have had jurisdiction to entertain orders 6, 7 and 8, of which we are unconvinced, nothing to which the appellant has referred us establishes error by her Honour. For the reasons given by her, the Chief Justice was entitled to conclude as she did in relation to each of the matters to which we have referred.
28. It remains to consider the appellant’s primary challenge to the trial Judge’s conclusions with respect to “the doctrine of judicial immunity”.
THE DOCTRINE OF JUDICIAL IMMUNITY
29. In the course of his oral submissions, the appellant emphasised that the doctrine of judicial immunity was subject to the provisions of statutes. He asserted that the doctrine was over-ruled by the provisions of the “Statute of Westminster Adoption Act 1942” and/or the Commonwealth Constitution. When invited to do so, the appellant was unable to refer the Court to any authority in support of his proposition that the Statute of Westminster and/or the Commonwealth Constitution over-ruled or diminished the operation of the doctrine of judicial immunity.
30. With due respect to the appellant, nothing raised by him in the course of his oral submissions advanced the arguments which he comprehensively presented in his written Amended Summary of Argument. It is appropriate in those circumstances to consider the submissions there made.
31. In his Amended Summary of Argument the appellant raised a number of matters in defence of his actions in bringing the application of 24 August 2005. Nothing relevant to the appeal was there raised (Amended Summary of Argument, paragraph 1). A series of rhetorical questions and/or submissions unsupported by authority or specific statutory provisions were then raised in support of the contention that “the Family Court has the jurisdiction to hear any application for Contempt of this Court which is committed” (Amended Summary of Argument, paragraph 3).
32. The appellant made extensive references to the Statute of Westminster Adoption Act 1942 (Cth) (Amended Summary of Argument, paragraph 4) and to provisions of the Commonwealth Criminal Code Act 1995. The relevance of the latter statute is not apparent to us unless the appellant contends that the Family Court has jurisdiction to apply the provisions of the Criminal Code Act 1995, a proposition for which no statutory support or authority has been advanced. Moreover, as the appellant stated in oral submissions, he was not seeking to have Mushin J dealt with pursuant to the provisions of the criminal law. Beyond recording that these references do not assist the appellant’s case, it is unnecessary for us to say more.
33. In his Amended Summary of Argument, the appellant asserted that:
… the Statute of Westminster Adoption Act 1942, clearly, states;
No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England. Or to the provisions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule or negotiation made under any such Act. (Amended Summary of Argument, paragraph 4)
A series of submissions followed, the intent of which is not entirely clear to us, although it is necessarily asserted that the statute over-rules or diminishes the doctrine of judicial immunity.
34. In case, despite the oblique manner in which the appellant has agitated his claim, some substance for his contentions might be gleaned from it, we have directed our attention to the entirety of the Statute of Westminster Adoption Act 1942. The pre-amble to the statute, and the year in which it was enacted, give some indication of the reasons for its enactment. The nature and effect of the provisions contained within it is consistent with the purpose of the statute. Section 2(2) of the Act is in substantially the terms asserted by the appellant. Nothing in the statute refers, expressly or impliedly, to the doctrine of judicial immunity. A reading of the statute in its entirety renders that reality unsurprising. We find nothing in the statute which could conceivably impact in any way upon the doctrine of judicial immunity. We are reassured in that conclusion by the complete absence of any reference to the statute in any of the numerous authorities decided since it was enacted to which the Chief Justice referred in her judgment, or to which we shall refer later in our judgment. The submissions of the appellant in reliance upon the Statute of Westminster Adoption Act 1942 are without merit.
35. It was then submitted (Amended Summary of Argument, paragraph 5) that “the Family Court has the jurisdiction to hear any application for Contempt of Court of which behaviour in contradiction to an Oath sworn to this Court”. Reference was made to “s35 of the Family Law Act 1997 [sic] and s24 of the JUDICIARY ACT 1903” as identifying “that power and authority as is possessed by the Supreme Court of Judicature in England”. References were then made to the “Common Law” and to the Acts Interpretation Act 1901, neither of which we consider advances the appellant’s case.
36. Reference was then made to the “Constitution of Australia” and to the provisions of s 22 and s 72(ii) of “the Act”. The appellant’s submissions suggest that he intended to refer to s 22 of the Family Law Act. Section 22 of the Commonwealth of Australia Constitution Act clearly has no possible relevance to the present appeal. In the interests of understanding the appellant’s submission in relation to them, we set out hereunder the relevant parts of s 22 of the Family Law Act and s 72(ii) of the Commonwealth of Australia Constitution Act:
Section 22
(1) A Judge:
(a) shall be appointed by the Governor‑General; and
(b) shall not be removed except by the Governor‑General, on an address from both Houses of the Parliament in the same session praying for the Judge’s removal on the grounds of proved misbehaviour or incapacity.
Section 72(ii)
The Justices of the High Court and of the other courts created by the Parliament:
…
(ii) shall not be removed except by the Governor‑General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;
37. It was submitted that:
Both clearly use the words proved misbehaviour and nether [sic] sections limit where or when that misbehaviour could have occurred, only that it must be proved. (Amended Summary of Argument, paragraph 6a)
It was submitted that “[t]he High Court, to interpret the Constitution uses 5 basic rules” and that such rules:
… determine the applicability to any given situation/question and/or Law in regards to compliance with the meaning, purpose and intention of that section of the Constitution”. (Amended Summary of Argument, paragraph 6b)
What was submitted to be the “rules” were then set forth.
38. There followed a series of submissions in relation to the operation of s 72 of the Constitution. We do not propose referring in detail to those submissions. With great respect to him, the appellant labours under a misapprehension as to the nature and effect of the section. It is clear from its terms that the section deals with the powers of the Commonwealth Parliament to remove a judge from office. There is no basis for concluding, in reliance upon the section, that this Court has the power to deal with one of its own judges for contempt. Similar observations apply to s 22 of the Family Law Act. The appellant conceded that “[t]o the best of my knowledge, there is no Case Law for Immunity v Statute of Westminster & the Criminal Code 1995” (Amended Summary of Argument, paragraph 7). The absence of such “Case Law” is not without significance.
39. Reference was then made to extra-judicial pronouncements, including those of Justice Kirby, none of which advances the appellant’s case before us.
40. A number of submissions under the heading “Proposals” (Amended Summary of Argument, paragraph 8) were made as to the future course of the appellant’s complaints with respect to Justice Mushin and the mother of his children, none of which are relevant to, or advance the present appeal. Similar observations apply to the submissions under the heading “Reasons” (Amended Summary of Argument, paragraph 9).
41. The appellant submitted:
I have presented in this “Summary of Argument” the case to prove beyond doubt the Criminal Code does cause the Immunity of Judges to be mute pursuant to the Criminal Code due to the Statute of Westminster Adoption Act 1942, 2(2). (Amended Summary of Argument, paragraph 12)
If, by this contention, the appellant asserts that the doctrine of immunity does not prevent judges from prosecution under the “Criminal Code”, he is undoubtedly correct, as cases such as The Queen v Murphy (1985) 158 CLR 596 confirm. As we have noted earlier however, nothing to which the appellant has referred us establishes that the Family Court has jurisdiction in relation to provisions of a State or Federal criminal law, quite apart from the fact that the appellant was not suggesting that Mushin J should be dealt with by the Court pursuant to such laws.
42. The only other matter raised by the appellant’s Amended Summary of Argument, to which it is necessary to refer, is his application that the Court:
… seize Jurisdiction of my Form 19 sighting [sic] Bryant CJ for Contempt of Court by way of continuing the behaviour of Mushin J in regards to my s118 leave to file Form 18 and 19’s against the mother and a Form 19 against her solicitor Ms FM”. (Amended Summary of Argument, paragraph 16)
We are not entirely clear to what that relates, given that the application of the appellant filed 24 August 2005 sought no relief of that kind in relation to either the mother or Ms FM. Whilst this submission does not advance the appellant’s case, his oral application to adduce “additional evidence”, to which we will in due course refer, does raise issues with respect to his proposed “Form 19 sighting [sic] Bryant CJ for Contempt of Court”.
43. The Chief Justice referred, in her reasons for judgment on 19 December 2005, to the authorities confirming the continuing existence of the doctrine of judicial immunity, its nature and the scope of its operation. Significantly, in none of those authorities have the limitations on the doctrine for which the appellant contends been accepted.
44. The High Court has had occasion to consider the doctrine in more recent times. In Fingleton v The Queen (2005) 216 ALR 474 at paragraph 36, Gleeson CJ approved the following passage from the judgment of Lord Denning MR in Sirros v Moore (1975) QB 118 at 132:
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. 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.
45. Gleeson CJ observed at paragraph 37 that:
An allegation of judicial misconduct by a dissatisfied litigant often, perhaps even typically, will be accompanied by an accusation of malice or want of good faith in the exercise of judicial authority.
46. His Honour further said at paragraph 38:
This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. As O’Connor J, speaking for the Supreme Court of the United States, said in Forrester v White, that court on a number of occasions has “emphasized that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have”. She said that “[i]f judges were personally liable for erroneous decisions, the resulting avalanche of suits … would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits”. (footnote omitted)
47. Gleeson CJ added at paragraphs 39 and 40:
This does not mean that judges are unaccountable. Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions. Their decisions routinely are subject to appellate review, which also is conducted openly. The ultimate sanction for judicial misconduct is removal from office upon an address of Parliament. However, 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.
The same considerations lie behind immunity from criminal responsibility, of the kind and to the extent conferred by s 30 of the Code. At common law, judicial officers enjoy no immunity or protection from criminal responsibility for their extra-judicial conduct, and even in respect of their judicial conduct there are well-established limits to their immunity. Judicial corruption of the kind dealt with in s 120 of the Code is an obvious example. Subject to those limitations, however, the public policy which supports immunity from civil liability even in respect of conduct alleged to be malicious and lacking in good faith extends to immunity from criminal responsibility.
48. The judgment of Hope JA in Yeldham v Rajski, which Bryant CJ quoted in her judgment in this case, was then cited by Gleeson CJ with approval.
49. The authorities to which her Honour referred and to which we have referred, leave no room for doubt that her Honour was correct in dismissing the appellant’s application of 24 August 2005. It is unnecessary for present purposes to consider whether the application relating to Mushin J, which the appellant sought to bring, was more correctly characterised as a “civil” or “criminal” proceeding, the authorities clearly confirming that, subject to the exception with respect to “extra-judicial conduct” which was not enlivened in this case, the immunity applies equally to civil and criminal proceedings against a judge.
50. As the authorities make clear, the doctrine of judicial immunity does not preclude a litigant who is unjustly dealt with by a judge from successfully relying upon the judge’s conduct in challenging the substantive orders made by that judge through the appeal process. Nor does the doctrine prevent judges from being accountable for their “extra-judicial” actions in terms of the criminal, or civil law, disciplinary codes or the provisions of s 72 of the Constitution. We find no incongruity in that state of affairs, nor the slightest support for the appellant’s variously expressed complaints that judges lack “accountability”.
51. Nothing to which we have been referred establishes error on the part of the Chief Justice. The appellant’s appeal should thus be dismissed.
52. It remains however to consider the appellant’s application to rely upon “additional evidence” in the appeal. The appellant made clear that he sought to file an application for leave to proceed against the Chief Justice “for contempt”. We earlier referred to a portion of the appellant’s Amended Summary of Argument wherein he referred to a “Form 19 sighting [sic] Bryant CJ for Contempt of Court by way of continuing the behaviour of Mushin J” in the respects there identified.
53. Though not so expressed by the appellant, the request to “place additional evidence” before this Court, must fall within s 93A of the Act. The decision of the High Court in CDJ v VAJ (1998) 197 CLR 172 is relevant in that regard. The majority (McHugh, Gummow and Callinan JJ) there said at 200:
Other features of the statutory regime laid down by Pt X also distinguish the power to admit evidence under s 93A(2) from that existing at common law. Unlike courts in banc hearing applications for new trials, the Full Court of the Family Court can evaluate the facts of the appeal for itself and in many cases is in a position to evaluate the further evidence and take it into account in considering the appeal without the necessity to have the proceedings re-heard.
Their Honours also said at 201-2:
The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
54. It is difficult to imagine what “further evidence” the appellant could adduce in relation to the hearing before the Chief Justice on 19 December 2005, and nothing asserted by the appellant provides any assistance in that regard. The transcript of the proceedings of 19 December 2005 is before this Court. There has been no suggestion in the appeal that the appellant was precluded from adducing any relevant evidence in the trial, or that he otherwise failed to adduce any evidence which could have impacted upon its outcome. Nothing to which the appellant now refers could be so regarded.
55. Whilst it is not before us, we observe that, having heard the appeal against the Chief Justice’s orders of 19 December 2005, and read the transcript of the proceedings of that day, we cannot imagine on what basis leave to bring that application could be granted, there being no rational basis for suggesting that her Honour was acting “extra-judicially” at any time during the course of the proceedings before her. To the extent necessary, as it would appear to be to protect the processes of the Court from abuse, any Judge dealing with the foreshadowed application may well be disposed to amplify the order currently in force against the appellant pursuant to s 118 to refrain him from filing or seeking to file any applications “sighting” or seeking to have a judge of the Court dealt with for contempt.
56. No ground of appeal having been made out, and the application for leave to adduce further evidence having been refused, the appellant’s appeal will be dismissed.
ORDERS
1. That the Notice of Appeal filed 13 January 2006 be dismissed.
I certify that the preceding
56 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A.C.
Associate
Date: 13/06/2006
Key Legal Topics
Areas of Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Natural Justice
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