Re Magistrate Francine Walter; Ex Parte Tull
[2016] WASC 271
•25 AUGUST 2016
RE MAGISTRATE FRANCINE WALTER; EX PARTE TULL [2016] WASC 271
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 271 | |
| Case No: | CIV:2091/2016 | 22 AUGUST 2016 | |
| Coram: | BANKS-SMITH J | 25/08/16 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to file writ refused | ||
| B | |||
| PDF Version |
| Parties: | ROGER WILLIAM TULL |
Catchwords: | Practice and procedure Application for leave to issue proceedings Judicial immunity Chief Judge Family Court of Western Australia Family law magistrate |
Legislation: | Family Court Act 1975 (WA) Family Court Act 1997 (WA), s 5, s 10 Family Law Act 1975 (Cth), s 4(1)(ca), s 39(6), s 39(7), s 41(3), s 69J, s 79A Jurisdiction of Courts (Family Law) Act 2006 (Cth) Magistrates Court Act 2004 (WA), s 6, s 37 Rules of the Supreme Court 1971 (WA), O 67 r 5 |
Case References: | Barkla v Justice David Wallace Newnes [2015] WASCA 120 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Eckett & Eckett [2010] FamCAFC 39 Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303 Lamond v Southgate [2013] FCWA 77 Ninan v Judge Newnes & Judge Murphy [2015] WASC 98 Re City of Stirling; Ex parte Tallott [2012] WASC 33 Thompson v Thackray [2014] WASC 462 Walton v Gardiner (1993) 177 CLR 378 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
ROGER WILLIAM TULL
Applicant
Catchwords:
Practice and procedure - Application for leave to issue proceedings - Judicial immunity - Chief Judge Family Court of Western Australia - Family law magistrate
Legislation:
Family Court Act 1975 (WA)
Family Court Act 1997 (WA), s 5, s 10
Family Law Act 1975 (Cth), s 4(1)(ca), s 39(6), s 39(7), s 41(3), s 69J, s 79A
Jurisdiction of Courts (Family Law) Act 2006 (Cth)
Magistrates Court Act 2004 (WA), s 6, s 37
Rules of the Supreme Court 1971 (WA), O 67 r 5
Result:
Leave to file writ refused
Category: B
Representation:
Counsel:
Applicant : In person
Solicitors:
Applicant : In person
Case(s) referred to in judgment(s):
Barkla v Justice David Wallace Newnes [2015] WASCA 120
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Eckett & Eckett [2010] FamCAFC 39
Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166
Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303
Lamond v Southgate [2013] FCWA 77
Ninan v Judge Newnes & Judge Murphy [2015] WASC 98
Re City of Stirling; Ex parte Tallott [2012] WASC 33
Thompson v Thackray [2014] WASC 462
Walton v Gardiner (1993) 177 CLR 378
- BANKS-SMITH J:
Introduction
1 The applicant in these proceedings, Mr Tull, seeks to institute proceedings in this court against the Chief Judge of the Family Court of Western Australia, family law magistrate Francine Walter (Magistrate) and the Family Court of Western Australia. He seeks leave of the Court to do so under O 67 r 5 of the Rules of the Supreme Court1971 (WA) and has filed an application and supportingaffidavit sworn 27 June 2016.
2 Order 67 r 5 provides:
(1) If any writ, process, motion, application or commission, which is presented for filing, issue or sealing appears to the registrar to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the registrar shall refuse to file or issue such writ, process, motion, application or commission without the leave of a judge or a master first had and obtained by the party seeking to file or issue it.
(2) In the case of a motion or an application ordinarily returnable before a master in chambers, an application for leave to file or issue such motion or application shall be made to a master in chambers.
(3) In all other cases, an application or commission shall be made to a judge in chambers.
(4) Applications for leave under subrules (2) and (3) shall be made ex parte and shall be supported by affidavit.
3 That rule reinforces the inherent power of the court to protect itself from unwarranted wastage of time and resources and to avoid the loss caused to those who have to face actions which lack any substance: Jones v Skyring.1
4 Proceedings will constitute an abuse of process if they are clearly foredoomed to fail: Walton v Gardiner; 2Re City of Stirling; Ex parte Tallott.3
The proceedings in the Family Court of Western Australia
5 It is apparent from Mr Tull's affidavit that from approximately 2011 he was involved in property settlement proceedings with his former wife, instituted in the Perth Registry of the Family Court of Western Australia. Mr Tull was not represented in those proceedings. His former wife was represented by lawyers.
6 Relevantly, Mr Tull said that various orders were made by the Magistrate relating to the sale of real property, access to that property to retrieve personal property and the distribution of the proceeds of sale.
7 Orders were also made by the Chief Judge with respect to the property settlement.
8 At the hearing of this application I was shown copies of certain orders made by the Family Court and those orders confirmed that there were property settlement proceedings before the Family Court and that the nature of the orders is largely consistent with Mr Tull's summary (other orders were made but they are not central to his contentions).
Mr Tull's complaints
9 Mr Tull's allegations against the Magistrate according to the proposed writ can be summarised as follows. It is said that the Magistrate wrongly took into account evidence put before the court; wrongly took into account allegedly false statements made in court; wrongly tolerated alleged breaches of court orders by his former wife; failed to deal with his evidence or his concerns as to the distribution of property; failed to join a third party to the proceedings who had allegedly received certain funds; failed to permit Mr Tull to have proper notice or to speak at certain hearings; and as a result of the Magistrate's errors he was thrown out of his home, lost his home and was punished. He wishes to seek orders against the Magistrate for replacement of his property and other 'punishment' (he also seeks copies of transcripts and evidence on his court file).
10 Mr Tull's primary complaints against the Chief Judge are that he wrongly ordered that Mr Tull's car be transferred to his former wife and that he deferred a trial and then finalised the property settlement without hearing further from Mr Tull. Mr Tull contends that he was not properly notified of proceedings in the Family Court and that the Chief Judge proceeded to make orders without ensuring Mr Tull was given notice of them. Mr Tull wishes to seek orders against the Chief Judge for replacement of the car and other relief.
11 Mr Tull also makes generalised complaints against the Family Court and says that his rights have been violated, and seeks (according to his affidavit) unspecified damages. Those complaints in effect are based on the alleged conduct of the Magistrate and Chief Judge referred to above.
Judicial immunity
12 A judge of a court of record is not liable to be sued in respect of judicial acts performed in the exercise of their jurisdiction. A threshold question then is whether the conduct of the Chief Judge and Magistrate the subject of the proposed writ was conduct in the exercise of their jurisdiction.
Matters within jurisdiction
13 Both the Chief Judge and Magistrate were exercising powers in proceedings as to the division of property of the parties to a marriage. Such proceedings are a matrimonial cause as defined in s 4(1) of the Family Law Act1975 (Cth).
14 Relevantly, s 4(1)(ca) provides that 'matrimonial cause' includes:
proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:
(i) arising out of the marital relationship;
(ii) in relation to concurrent, pending or completed divorce or validity of marriage proceedings…
15 Understanding the respective jurisdiction and roles of a judge of the Family Court of Western Australia and a family law magistrate involves considering various legislation that confers on them federal jurisdiction under the Family Law Act. Those legislative provisions are usefully summarised in Eckett & Eckett 4 and Lamond v Southgate.5
16 In summary, as to a judge of the Family Court of Western Australia:
(a) the Family Court of Western Australia was established by the Family Court Act 1975 (WA) and continued by the Family Court Act 1997 (WA). The Family Court of Western Australia is constituted by the Chief Judge and its judges;6 and
(b) by s 41(3) of the Family Law Act, the Family Court of Western Australia is invested with the same federal jurisdiction as that conferred on the Family Court of Australia with respect to matrimonial causes.
17 The position as to a family law magistrate is more complex. In summary:
(a) courts of summary jurisdiction in Western Australia (including the Magistrates Court) have limited family law jurisdiction conferred on them by s 39(6) and s 69J of the Family Law Act. Section 39(6) provides that courts of summary jurisdiction are invested with federal jurisdiction with respect to certain matrimonial causes, including the division of property. Section 39(6) must be read subject to (relevantly) s 39(7) (see below);
(b) by the Family Court Act, registrars of the Family Court of Western Australia who are concurrently appointed as magistrates under the Magistrates Court Act2004 (WA) are conferred with the title 'family law magistrate';7
(c) by the Jurisdiction of Courts (Family Law) Act2006 (Cth), the Family Law Act was amended to (relevantly) include a definition of 'family law magistrate of Western Australia' and make other changes, such that the family law magistrates were treated differently from other magistrates sitting in courts of summary jurisdiction;
(d) by s 39(7) of the Family Law Act, the Governor-General may, by proclamation, fix a day after which proceedings (including certain matrimonial causes) may not be instituted in, or transferred to, a court of summary jurisdiction in a specified State or Territory;
(e) there have been relevant proclamations. By the Jurisdiction of Courts of Summary Jurisdiction (Matrimonial Causes) Proclamation 2006, the jurisdiction conferred on courts of summary jurisdiction under s 39(6) with respect to matrimonial causes was proscribed such that proceedings in the Perth metropolitan area could not be dealt with by a court of summary jurisdiction other than by the Magistrates Court constituted by a family law magistrate; and
(f) accordingly, with respect to proceedings instituted in the Perth metropolitan area, a family law magistrate in Western Australia may exercise federal jurisdiction as to property division proceedings between parties to a marriage.
18 As noted in both Eckett & Eckett8 and Lamond v Southgate,9 it is routine for the one set of relevant proceedings to be transferred between a Family Court judge and a family law magistrate, both jurisdictions operating from the Family Court of Western Australia premises.
19 It follows that both the Chief Judge and the Magistrate, as a family law magistrate, were acting within jurisdiction in dealing with the property division proceedings that are at the centre of Mr Tull's complaints.
Chief Judge and Magistrate have immunity from suit
20 The rationale for the common law immunity from suit is the preservation of judicial independence. Its history and application are set out in numerous authorities: see in particular Fingleton v The Queen;10D'Orta-Ekenaike v Victoria Legal Aid;11Ninan v Judge Newnes & Judge Murphy.12
21 In Thompson v Thackray13 Mitchell J considered a claim sought to be advanced in a proposed writ concerned with the manner in which the Chief Judge performs his judicial functions and the manner in which the Family Court of Western Australia exercises it jurisdiction. His Honour held that the common law immunity from suit is enjoyed by a judge of the Family Court of Western Australia, being a court of record.14 The Chief Judge had the benefit of that judicial immunity and it was an insurmountable obstacle to the proposed proceeding in that case.15
22 Mr Tull is faced with the same insurmountable obstacle in seeking to sue the Chief Judge.
23 As to the Magistrate, judicial immunity is again an insurmountable obstacle for Mr Tull.
24 By s 37 of the Magistrates Court Act, a magistrate, when performing the functions of a magistrate, has the same protection and immunity as a judge of the Supreme Court in the performance of their duties as a judge.
25 By s 6of the Magistrates Court Act, a magistrate has the functions conferred on a magistrate by laws that apply in Western Australia, including by the Magistrates Court Act and other written laws. For the reasons set out above, the Magistrate was exercising powers as a family law magistrate in accordance with jurisdiction vested in her by the Family Law Act and the Family Court Act.
26 A judge of the Supreme Court has judicial immunity with respect to the performance of their judicial functions: see Ninan v Judge Newnes & Judge Murphy; Barkla v Justice David Wallace Newnes.16
27 Accordingly, judicial immunity against suit also applies to the Magistrate.
Abuse of process
28 The proposed writ is in any event an abuse of process in that it fails to enunciate any legitimate cause of action against the Chief Judge and Magistrate. There is no legitimate cause of action pleaded against the Family Court as a purported separate defendant: the court is in any event comprised by its judges and the conduct complained of is for all intents and purposes the conduct of the Chief Judge and the Magistrate in carrying out their respective judicial functions.
29 Mr Tull is clearly an aggrieved litigant. He considers the outcome and the processes of the property proceedings to be unjust. However, issuing suit against judges or magistrates in such circumstances is not tenable. It is precluded by judicial immunity. There are rights of appeal under the Family Court Act. Further, without suggesting Mr Tull has any grounds, on application by a person affected, orders altering property interests may be varied or set aside by the Family Court in certain circumstances.17
Outcome
30 Mr Tull has no tenable cause of action in the circumstances and I refuse leave to institute the proposed proceedings.
1Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303, 312.
2Walton v Gardiner (1993) 177 CLR 378, 393.
3Re City of Stirling;Ex parte Tallott [2012] WASC 33.
4Eckett & Eckett [2010] FamCAFC 39 [5] - [22].
5Lamond v Southgate [2013] FCWA 77 [33], [81] - [83], [137] - [146].
6 Section 10 Family Court Act.
7 Section 5 Family Court Act.
8Eckett & Eckett [13] - [14], [20].
9Lamond v Southgate [31].
10Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 [38] - [39].
11D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 [37] - [40].
12Ninan v Judge Newnes & Judge Murphy [2015] WASC 98 [22]-[27].
13Thompson v Thackray [2014] WASC 462.
14Thompson v Thackray [6].
15Thompson v Thackray [7].
16Barkla v Justice David Wallace Newnes [2015] WASCA 120 [7], [17].
17 Section 79A Family Law Act.
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