Ninan v Judge Newnes and Judge Murphy
[2015] WASC 98
•20 MARCH 2015
NINAN -v- JUDGE NEWNES & JUDGE MURPHY [2015] WASC 98
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 98 | |
| Case No: | CIV:1323/2015 | 18 MARCH 2015 | |
| Coram: | McKECHNIE J | 20/03/15 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to commence proceedings refused | ||
| B | |||
| PDF Version |
| Parties: | GEORGE NINAN MOLLY GEORGE JUDGE NEWNES & JUDGE MURPHY |
Catchwords: | Courts and judges Proposed writ of certiorari Whether available Superior court of record Doctrine of judicial immunity Whether any exceptions |
Legislation: | Nil |
Case References: | Craig v State South Australia (1995) 184 CLR 163 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 Mann v O'Neill (1997) 191 CLR 204 Nakhla v McCarthy (1978) 1 NZLR 291 Ninan v National Australia Bank [2014] WADC 128 Ninan v National Australia Bank [2015] WASCA 10 R v Gray; ex parte Marsh (1985) 157 CLR 351 R v Metal Trades & Employers Association; ex parte Amalgamated Engineering Union (1951) 82 CLR 208 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- MOLLY GEORGE
Applicants
AND
JUDGE NEWNES & JUDGE MURPHY
Respondent
Catchwords:
Courts and judges - Proposed writ of certiorari - Whether available - Superior court of record - Doctrine of judicial immunity - Whether any exceptions
Legislation:
Nil
Result:
Application for leave to commence proceedings refused
Category: B
Representation:
Counsel:
Applicants : In person
Respondent : Not applicable
Solicitors:
Applicants : In person
Respondent : Not applicable
Case(s) referred to in judgment(s):
Craig v State South Australia (1995) 184 CLR 163
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166
Mann v O'Neill (1997) 191 CLR 204
Nakhla v McCarthy (1978) 1 NZLR 291
Ninan v National Australia Bank [2014] WADC 128
Ninan v National Australia Bank [2015] WASCA 10
R v Gray; ex parte Marsh (1985) 157 CLR 351
R v Metal Trades & Employers Association; ex parte Amalgamated Engineering Union (1951) 82 CLR 208
1 McKECHNIE J: Mr Ninan applies for leave to issue proceedings for an order of certiorari naming Newnes and Murphy JJA as respondents. Leave is necessary because on 4 March 2015 the Principal Registrar refused to file or issue the proceedings without the leave of a judge first had and obtained: Rules of the Supreme Court 1971 O 67 r 5.
2 The background to the application lies in litigation which commenced in the Magistrates Court. Mr Ninan issued proceedings in that court's minor claims jurisdiction against the National Australia Bank (NAB). Mr Ninan's claim against NAB was dismissed. He appealed from that decision to the District Court and his appeal was dismissed: Ninan v National Australia Bank [2014] WADC 128.
3 He appealed from that decision to the Court of Appeal and that appeal was dismissed: Ninan v National Australia Bank [2015] WASCA 10.
4 Mr Ninan then purported to institute these proceedings claiming:
An ex-parte order for an order that leave to file an order for Certiorari be issued also exparte so that WASCA 10 of 2015 is dismantled and instead an order for NAB to take possession in Supreme Court for the two properties immediately (a basic routine) after paying us damages so caused for the offences committed by NAB.
AND that the costs of and incidental to this application may be paid by NAB or by Court or is waived due to our financial hardship.
5 There are extensive grounds to the application which, in summary, claim that immunity for a claim for damages against a judge does not apply unless the decision is made in good faith. Most of the other grounds seek to traverse either the decision of the magistrate, the Chief Judge in the District Court, or the Court of Appeal by re-arguing matters which did not find favour in any of those courts.
The hearing of the application
6 An application for leave is an interlocutory proceeding and as the applicant apparently lives in Thailand, I directed that it could be dealt with by telephone: RSC O 4A 2(g)(ii).
7 The applicant filed submissions and appeared by telephone at the hearing making further oral submissions. He asked that the matter be heard separately from his application for prerogative relief against the registrars and made separate submissions on that matter.
The affidavit in support of the application
8 The applicant supported the application for leave with an affidavit sworn by him on 27 February 2015. It is entitled 'Killing justice in Australia by the Registrars & the Judges', not perhaps the most promising start to an exercise in persuasion.
9 The affidavit does not contain relevant facts justifying leave but instead contains assertions, arguments or irrelevant details about federal court proceedings.
10 The affidavit also contains extensive and irrelevant details about the applicant's transactions with the National Australia Bank and Westpac.
The submissions
11 The applicant's written submissions dated 17 March 2015 do not address the substantive issue of judicial immunity from suit. However, the notice of originating motion seeking leave does plead grounds which raise the applicant's argument in relation to judicial immunity. The applicant made similar points in the course of his oral submissions.
12 In essence, the applicant asserts that judges are not immune in respect of a legal action from fraudulent as opposed to 'good faith' decisions.
13 'This is simple common law', concluded the applicant, 'that judges cannot and should not make bad faith decisions. If they do they should be dismissed by appeal or if not by other orders including an order for certiorari'.
14 There is no evidence whatsoever of bad faith on the part of either judicial officer. The applicants simply say in effect their judgment is wrong and therefore must be fraudulent.
15 That is no basis for the serious assertion that two senior judges of appeal have acted fraudulently. Bringing such a scandalous allegation requires hard and persuasive evidence, not simply the posturing of a losing litigant.
16 The grounds of the application conclude:
Therefore leave should be allowed and order a proper Hearing by a honest judge if there is one in Supreme Court of WA.
17 This may be why the applicant asked me at the hearing if I was going to judge his case fairly.
18 Putting that to one side however, there are two reasons why leave is refused.
19 Firstly the applicant is correct in his assertion that a wrong decision can be subject to appeal. Judges of appeal can and occasionally do make errors. The remedy of an application for special leave to appeal to the High Court of Australia is available.
20 The Supreme Court is a superior court of record: Supreme Court Act s 6(12). A prerogative writ of certiorari cannot be issued to call into question a decision of the Supreme Court: R v Metal Trades & Employers Association; ex parte Amalgamated Engineering Union (1951) 82 CLR 208; R v Gray; ex parte Marsh (1985) 157 CLR 351; Craig v State South Australia (1995) 184 CLR 163.
21 As prerogative relief of the type sought by the applicant is unavailable, the application must be dismissed.
22 The second reason why the application must be dismissed is that judicial immunity against suit is not limited in the way asserted by the applicant. The long standing doctrine of judicial immunity covers all decisions by a judicial officer made within jurisdiction as reference to just a few of the many authorities on the subject, stretching back to antiquity will demonstrate.
23 Mr Ninan's position as an applicant is effectively described in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1:
Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. Seldom will a party have contested litigation without believing, or at least hoping, that it will be resolved in that party's favour. If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others - the judge, the witnesses, advocates - anyone other than the party whose case has been rejected.
This is no new phenomenon. It is a problem with which the common law has had to grapple for centuries. Its response has been the development of immunities from suit for witnesses, judges and advocates. The origin of these rules can be traced to decisions of the 16th and 17th centuries [37] - [38].
24 In explaining the doctrine of judicial immunity the court went on:
The development of judicial immunity was more complex. It was bound up with the development of the law relating to excess of jurisdiction, and thus with the development of the principles governing when a judicial decision was open to collateral attack. Its history has been traced by Holdsworth. It is not necessary to examine that history in any detail, beyond noticing that the decisions of courts of record were conclusive, but those of inferior courts were open to collateral attack alleging excess of jurisdiction. Hence, while action might lie at common law for acts done in an inferior court in excess of jurisdiction, the decisions of supreme courts were final. And there was an immunity from suit for any judicial act done within jurisdiction. What is important to notice for present purposes is not the history of development of this immunity, but that both judicial immunity and the immunity of witnesses were, and are, ultimately, although not solely, founded in considerations of the finality of judgments [40].
25 In Mann v O'Neill (1997) 191 CLR 204 Gummow J said:
The head of immunity concerned with the effective performance of judicial functions operates to protect individuals in the classes specified by Lord Mansfield in the above passage. This immunity responds to two general considerations. The first is to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences. The second is related to the first and involves the avoidance of the re-agitation by discontented parties of decided cases after the entry of final judgment, other than by pursuit of any available avenue of appeal and the invocation of the special equity jurisdiction to set aside judgments, in a suit constituted for that purpose. In the present case, the immunity is asserted by a party to litigation. Where the reliance is by a judicial officer, the immunity also gives effect to the particular public interest in securing the utmost freedom to those who preside over judicial proceedings, subject only to the constitutional or other remedies for removal from office (241 - 242).
26 In Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 Gleeson CJ explained the doctrine:
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. In In re McC (A Minor), Lord Bridge of Harwich said:
'It is, of course, clear that the holder of any judicial office who acts in bad faith, doing what he knows he has no power to do, is liable in damages. If the Lord Chief Justice himself, on the acquittal of a defendant charged before him with a criminal offence, were to say: "That is a perverse verdict", and thereupon proceed to pass a sentence of imprisonment, he could be sued for trespass. But, as Lord Esher MR said in Anderson v Gorrie:
"the question arises whether there can be an action against a judge of a court of record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie."'
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 (37 - 39).
27 In Nakhla v McCarthy (1978) 1 NZLR 291 Woodhouse J stated:
An action complaining of the judicial work of a superior court judge is probably unique in New Zealand. In the United Kingdom the number of recorded attempts to bring a similar action during the past 150 years or more can be counted on the fingers of one hand. None have succeeded.
It is not necessary to search for the reasons. It lies in the right of men and women to feel that when discharging his judicial responsibilities as a judge will have no more reason to be affected by fear and he will allow himself to be subjected to influences of favour. Thus he is surrounded with an absolute immunity from civil proceedings for acts done or words spoken in the exercise of his judicial office. But that immunity is in no sense a private right which might be regarded as having been conferred upon him and which he then might be said to enjoy. He is merely the repository of a public right which is designed to ensure that the administration of justice will be untrammelled by the collateral attacks of disappointed or disaffected litigants. That simple concept is gladly accepted, we believe, by the citizen and lawyer alike. And its strength extends to preventing civil proceedings against the judge in respect of his exercise of jurisdiction even though he may act with gross carelessness or be moved by reasons of actual malice or even hatred.
28 This brief review of some of the many authorities on judicial immunity is sufficient to explain why the proposed action by Mr Ninan is misconceived, against legal principle, and doomed to fail. The doctrine of judicial immunity prevents this claim.
29 Leave to issue proceedings is refused.
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