Robinson v Legal Aid Commission of New South Wales

[2013] NSWCA 468

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Robinson v Legal Aid Commission of New South Wales [2013] NSWCA 468

Hearing dates:

19 December 2013

Decision date:

19 December 2013

Before:

Basten JA;
Barrett JA

Decision:

(1) Application for leave to appeal dismissed.

(2) Applicant to pay the respondent's costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - application for leave to appeal from summary dismissal of claim - claim foreclosed by High Court decisions with respect to immunity of witnesses and immunity of legal representatives from suit for conduct in the course of litigation - statement of claim revealing no arguable case - inappropriate vehicle for challenge to judgments of High Court

TORTS - negligence - alleged failure of court appointed expert in proceedings in the Family Court to disclose opinion contained in confidential letter to judge - failure of lawyers acting for children to disclose offer made by mother inconsistent with opinions expressed by expert in report - proceedings dismissed on basis of immunity of expert and lawyers with respect to such claims - matter in fact considered by trial judge in Family Court - Family Court orders subject to appeal to the Full Court of the Family Court - whether claim arguable

Legislation Cited:

Evidence Act 1995 (Cth), s 131

Cases Cited:

Cabassi v Vila [1940] HCA 41; 64 CLR 130
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398

Category:

Principal judgment

Parties:

Peter John Julian Robinson (Applicant)
Legal Aid Commission of NSW (First Respondent)
Maureen Power (Second Respondent)
Dr Brent Waters (Third Respondent)
Eva Karagiannis (Fourth Respondent)

Representation:

Counsel:

Mr Robinson in person
Ms V McWilliam (First, Second and Fourth Respondents)
Mr M G Lynch (Third Respondent)
Solicitors:

Applicant self-represented
Legal Aid NSW (First, Second and Fourth Respondents)
Avant Law Pty Ltd (Third Respondent)

File Number(s):

CA 2013/286731

 Decision under appeal 

Jurisdiction:

9111

Citation:

Robinson v State of New South Wales [2013] NSWSC 1398

Date of Decision:

2013-09-23 00:00:00

Before:

Barr AJ

File Number(s):

SC 2013/185826

Judgment

1. THE COURT: The applicant seeks leave to appeal from a judgment of Barr AJ in the Common Law Division summarily dismissing a statement of claim: Robinson v State of New South Wales [2013] NSWSC 1398. The impugned statement of claim was not before this Court but, as appears from the judgment below, the cause (or causes) of action were unclear.

1. The underlying grievance relates to the conduct of proceedings in the Family Court, particularly in relation to parenting orders made by that Court with respect to the children of the applicant and his former wife.

1. The proceedings were originally brought against five defendants, the first being the State of New South Wales. The State was, as the primary judge described it, "let out" of the proceedings prior to the summary disposal hearing. The remaining parties were a consultant psychiatrist appointed as a "single expert witness" by the Family Court to inquire into and report upon matters relating to the welfare of the children; a solicitor briefed to appear for the children and her instructing agency, Legal Aid New South Wales; and a solicitor-advocate, described by the primary judge as "effectively managing" the consulting psychiatrist, being in effect responsible for calling the psychiatrist.

1. The applicant acted for himself in the Family Court proceedings and in the Common Law Division. The outcome of the Family Court proceedings (which continued over some 11 hearing days) was that the mother was given sole parental responsibility for the children, who were to live with her. The Court further ordered that the father be restrained from spending time with or attempting to contact or approach the children and requiring him to pay Legal Aid the costs of the independent children's lawyer and the independent expert witness, being an amount in excess of $32,000.

1. The applicant has lodged an appeal against that judgment and orders, which remains pending in the Full Court of the Family Court and stood over to February 2014, for further hearing.

1. The cause of action in this Court was based upon the provision to the Family Court of a "confidential letter" prepared by the psychiatrist for the judge hearing the application for parenting orders. According to the primary judge the applicant became aware of its existence only after it had been produced "in other proceedings": at [12]. The primary judge continued at [13]:

"At the hearing in the Family Court the presiding judge was aware of the contents of the confidential letter, though it does not appear how that came about. Perhaps the [psychiatrist] sent it again after the allocation of the judge to the trial, but the evidence is silent about that. The parties were aware of its contents. The [psychiatrist] was cross-examined on the letter and submissions were made about it. The presiding judge referred to it in his published reasons for judgment."

1. The primary judge described the applicant's claim against the psychiatrist as based on an assertion that he "failed to mention in his open reports to the Family Court the concerns he had expressed in the confidential letter, that he expressed in his open reports the plaintiff's former wife's concern about the risk that the plaintiff might kill the children and himself without revealing his own concern that she might not be genuine in her expressed concern": at [15].

1. The nature of the allegation against the lawyers was that "they failed to disclose to the Family Court that the plaintiff's former wife had given instructions to settle which contradicted her evidence ... and that they failed to provide any opinion to the Family Court as to the genuineness of the plaintiff's former wife's allegations about her apprehension that the plaintiff might kill the children and himself" and "failed to inform the Family Court why the [psychiatrist] might be unable to form an opinion whether the plaintiff's former wife's allegations were genuine": at [17].

1. Assuming, as the primary judge did, that there was a claim in tort arising out of these allegations, so far as it concerned the psychiatrist, as a court appointed expert, he was immune from such an action, in accordance with the principles explained in Cabassi v Vila [1940] HCA 41; 64 CLR 130 at 140-141 (Starke J). So far as the lawyers were concerned, and indeed the expert, the proceedings fell foul of the immunity based upon the principle of finality of litigation: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1.

1. The applicant did not dispute those principles; rather he contended that they should be reconsidered in the light of current social attitudes of accountability of public office holders and the inconsistent approach adopted by the UK Supreme Court in Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398 in relation to expert witnesses.

1. The respondents all contended that the primary judge was correct in dismissing the proceedings and that, given the state of authority in the High Court, this Court would inevitably reach the same result, were leave granted.

1. Accepting that there may be a case in which the Court should deal with such submissions as a step on an applicant's path to review in the High Court, the respondents submitted that this was not such a case. So far as the psychiatrist was concerned, the fact that the contents of the confidential letter were known to the parties at the hearing in the Family Court and were the subject of cross-examination of the psychiatrist and consideration by the trial judge, renders it an implausible vehicle for reagitating Cabassi v Vila.

1. So far as the supposed obligation of the legal representatives to disclose communications made in the course of settlement negotiations, such a claim would fly in the face of the confidentiality which attends such negotiations and s 131(1) of the Evidence Act 1995 (Cth), as applicable in the Family Court.

1. Those submissions should be accepted. Not only do there appear to have been problems with the form of the pleading on which the proceedings are based, but there appear to be insuperable difficulties in formulating a claim of the kind articulated by the applicant as supporting any available cause of action.

1. In the event, the application for leave to appeal must be dismissed as being without merit. The applicant must pay the respondents' costs in this Court.

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Decision last updated: 07 January 2014