Robinson v Legal Aid Commission of New South Wales

The applicant, Robinson, sought leave to appeal from the summary dismissal of his claim against the Legal Aid Commission of New South Wales. The claim arose from the conduct of legal representatives and a court-appointed expert in Family Court proceedings. The primary judge had dismissed the claim on the basis that it was foreclosed by High Court decisions concerning the immunity of witnesses and legal representatives from suit for actions taken in the course of litigation.

The legal issues before the Court of Appeal were whether the applicant's statement of claim revealed an arguable case, particularly in light of established High Court authority on witness and legal professional immunity. Specifically, the court had to consider whether the alleged failure of a court-appointed expert to disclose an opinion in a confidential letter to the judge, and the alleged failure of lawyers for the children to disclose a mother's offer inconsistent with the expert's report, constituted a valid cause of action, or if these matters were properly considered and dealt with within the Family Court proceedings and were subject to its appellate processes.

Basten and Barrett JJA reasoned that the claims made by the applicant were fundamentally an attempt to challenge the correctness of decisions made by the Family Court and to circumvent the established immunities afforded to participants in litigation. They held that the High Court had definitively determined that such claims were not arguable, and that the applicant's statement of claim disclosed no reasonable cause of action. The court found that the matters raised by the applicant had been considered by the trial judge in the Family Court and were, in any event, matters that should have been pursued through the appellate mechanisms of the Family Court.

The application for leave to appeal was dismissed, and the applicant was ordered to pay the respondent's costs.