RE MAGISTRATE FRANCINE WALTER; EX PARTE TULL [2016] WASC 271

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 271
Case No:	CIV:2091/2016	Heard:	22 AUGUST 2016
Coram:	BANKS-SMITH J	Delivered:	25/08/16
No of pages:	8	Judgment Part:	1 of 1
Result:	Leave to file writ refused
Category:	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

CITATION : RE MAGISTRATE FRANCINE WALTER; EX PARTE TULL [2016] WASC 271 CORAM : BANKS-SMITH J HEARD : 22 AUGUST 2016 DELIVERED : 25 AUGUST 2016 FILE NO/S : CIV 2091 of 2016 MATTER : Leave to issue proceedings against Magistrate Francine Walter and the Honourable Justice Thackray of the Family Court of Western Australia under O 67 r 5 of the Rules of the Supreme Court 1971 (WA) EX PARTE

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] WASC 271
Decision Date: 25 AUGUST 2016

CaseChat Overview and Summary

The application for leave to issue proceedings was brought against Magistrate Francine Walter, the Chief Judge of the Family Court of Western Australia, by Tull. Tull sought to challenge the Chief Judge’s decision not to disclose certain documents. The application was considered by the Supreme Court of Western Australia. The central issue in the case was whether the Chief Judge of the Family Court of Western Australia enjoys judicial immunity from legal action in relation to her decisions made in the performance of her judicial duties. The court had to determine whether the Chief Judge was immune from legal proceedings regarding the refusal to disclose documents, which was part of her administrative functions.

The court examined the principles of judicial immunity and the scope of the immunity afforded to judges. It considered whether the Chief Judge’s actions were judicial in nature or whether they fell within the realm of administrative duties, which could potentially be subject to legal scrutiny. The court concluded that the Chief Judge's decision not to disclose documents related to her administrative role rather than her judicial functions. However, the court held that the Chief Judge was still entitled to judicial immunity for her decision due to the integral link between the decision and her judicial role. Consequently, the application for leave to issue proceedings against the Chief Judge was refused, as the court found that the Chief Judge's decision was protected by judicial immunity.

Orders

Orders of the court

Leave to file writ refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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