Robinson v State of NSW and Others

[2013] NSWSC 1398

Supreme Court

New South Wales

Medium Neutral Citation:

Robinson v State of NSW & Others [2013] NSWSC 1398

Hearing dates:

2 September 2013

Decision date:

23 September 2013

Before:

Barr AJ

Decision:

1.The Statement of Claim is summarily dismissed;

2.Plaintiff to pay the costs of the second, third, fourth and fifth defendants;

3.Suppression order prohibiting the publication or other disclosure of the names of the children of the plaintiff or of any evidence or material that would enable them to be identified.

Catchwords:

PRACTICE AND PROCEDURE- application for summary dismissal - plaintiff claimed failure to disclose relevant information in Family Court proceedings - whether defendants immune from suit- suppression order

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010
Uniform Civil Procedure Rules

Cases Cited:

Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543

Category:

Principal judgment

Parties:

Peter Robinson (Plaintiff)
State of NSW (First Defendant)
Legal Aid NSW (Second Defendant)
Maureen Power (Third Defendant)
Dr Brent Waters (Fourth Defendant)

Representation:

Counsel:
V McWilliam (Second, Third, Fifth Defendants)
M Lynch (Fourth Defendant)
Solicitors:
Plaintiff in person
Legal Aid NSW (Second, Third, Fifth Defendants)
Avant Law (Fourth Defendant)

File Number(s):

2013/185826

Publication restriction:

A SUPPRESSION ORDER HAS BEEN MADE

NOTE: A SUPPRESSION ORDER HAS BEEN MADE

Judgment

1. By his Statement of Claim filed on 18 June 2013 the Plaintiff, Peter John Julian Robinson, seeks damages, exemplary damages, certain liquidated damages and certain other orders against the five defendants, namely the first defendant, State of NSW, the second defendant, Legal Aid NSW, the third defendant, Maureen Power, the fourth defendant, Dr Brent Waters, and the fifth defendant, Eva Karagiannis.

1. By their Notice filed on 21 August 2013, Legal Aid, Ms Power, and Ms Karagiannis seek the dismissal of the Statement of Claim pursuant to R13.4 Uniform Civil Procedure Rules (UCPR) and alternatively an order striking out the proceedings generally pursuant to R14.28 UCPR. They also seek costs.

1. By his Motion filed on 14 August 2013 Dr Waters seeks orders in identical terms.

1. At the commencement of the hearing the first defendant was by consent let out of the proceedings.

The Family Court Proceedings

1. There were proceedings in the Family Court of Australia (the Family Court) between the plaintiff and his former wife. In contest was the right to parental responsibility for their two young children (I shall not name them. I propose to make a suppression order concerning their names). The plaintiff's former wife was legally represented. The plaintiff acted for himself. The Family Court appointed the second defendant Independent Children's Lawyer. The third defendant, an employee of the second defendant, had the carriage of that representation. She instructed a solicitor advocate, the fifth defendant, to conduct the proceedings in court. By consent orders the Court appointed the fourth defendant Single Expert Witness to enquire into and report upon matters relating to the welfare of the children.

1. After a defended hearing a Family Court Judge made orders. They did not favour the plaintiff. He appealed against the orders to the Full Court of the Family Court. His appeal has been adjourned part heard to a date to be fixed.

The Statement of Claim

1. The plaintiff represented himself throughout the proceedings in the Family Court and has done so in this Court. He drafted the Statement of Claim himself. It lacks precision and particularity. It is tolerably clear, however, that the substance of the complaints he raises may be understood by reference to two events that took place during the trial.

A Confidential Report

1. The fourth defendant was required to provide reports for the Family Court and did so. The first was dated 4 November 2009. It was long and detailed, written after the fourth defendant had interviewed the parties and other significant persons and had inspected copious documents relevant to the parties' histories and their respective states of health. In the report the fourth defendant dealt with the attitudes of the parties to one another and with their fears and complaints about one another. One of the fears of the plaintiff's former wife on which the fourth defendant reported and commented was that the plaintiff might kill the children and himself. The parties had access to the report.

1. Also on 4 November 2009 the fourth defendant wrote a confidential letter, addressed to the presiding judge. In it he described a period of unusual behaviour of the plaintiff's former wife. The fourth defendant explained that he had not mentioned it in the open report of 4 November 2009 because the plaintiff's former wife wanted the matter to remain confidential. The fourth defendant noted in that connection that the Family Court had enjoined the parties against viewing mental health and related records produced on subpoena. Having summarised the relevant behaviour, the fourth defendant went on to conclude that the plaintiff's former wife had exercised poor judgment over a substantial period some years in the past. He reported his concern whether the plaintiff's former wife's concern that the plaintiff might kill the children and himself were another manifestation of her poor judgment.

1. As at 4 November 2009 no judge had been appointed to try the case. The confidential letter came to the attention of the third defendant, the solicitor effectively managing the fourth defendant in his capacity as witness. She wrote to the fourth defendant returning the confidential letter (it is not suggested that she read the contents of the letter), explaining that no judge had yet been appointed to hear the case but that when that happened the fourth defendant might, if he wished, send the report to that judge.

1. The fourth defendant wrote a second open report on 27 October 2011. Although it touched on the plaintiff's former wife's apprehension of the risk that the plaintiff might kill the children and himself, it did not mention the content or existence of the confidential letter.

1. The existence and content of the confidential letter came to the plaintiff's notice after it was produced in other proceedings.

1. 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 fourth defendant 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 fourth defendant was cross-examined on the letter and submissions were made about it. The presiding judge referred to it in his published reasons for judgment.

A Settlement Offer

1. The second event which the plaintiff regards as significant is that at a time when the parties were trying to settle their differences the fifth defendant made him an offer on behalf of his former wife, including a term that he might have access to the children on certain conditions. The plaintiff regarded the offer as demonstrating that his former wife's expressed concerns about him were fraudulent. He rejected the offer. The fifth defendant told him that he could not inform the Court about the offer.

The Plaintiff's Assertions in this Court.

1. The plaintiff claims to have suffered damage. As well as I can tell, his claim against the fourth defendant is 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 (Statement of Claim paras [4] - [15] generally).

1. As against the second and third defendants, the plaintiff asserts that they instructed or suggested to the fourth defendant that he should not or need not disclose the confidential letter to the Family Court (paras [16], [17]) and that they did not disclose the confidential letter to the Family Court (para [28]).

1. Also against the second, third and fifth defendants, the plaintiff asserts that they failed to disclose to the Family Court that the plaintiff's former wife had given instructions to settle which contradicted her evidence (para [41]) 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, failed to inform the Family Court why the fourth defendant might be unable to form an opinion whether the plaintiff's former wife's allegations were genuine (para [42]) and failed to inform the Court of the proper purpose for which the fourth defendant recommended that the plaintiff's former wife undertake counselling (pars [47] - [48]).

1. Finally, as against the second defendant, the plaintiff asserts that it determined that the third defendant should not take part in the plaintiff's appeal to the Full Court of the Family Court (paras [49] - [51]).

The Defendants' Motions

1. The defendants' move for an order summarily dismissing the claim. They jointly submit that, assuming everything the plaintiff says of them is true, all the work they were engaged in was of a kind that rendered them immune from suit.

The Law

The principle of immunity from suit arose for consideration in the High Court of Australia in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1. In their joint judgment Gleeson CJ, Gummow, Hayne and Heydon JJ dealt with the history of lawyers' immunity from suit at Common Law and by the law of Victoria, and particularly with the Court's own decision in Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543. Their Honours said at [31] and following: -

The judicial process as an aspect of government

[31] In Giannarelli, Mason CJ said that "the barrister's immunity, if it is to be sustained, must rest on considerations of public policy". His Honour explained that the term "immunity" was used in a sense which assumed that rights and duties might otherwise exist at common law, but the immunity is sustained on considerations of public policy and "the injury to the public interest that would arise in the absence of immunity". Of the various factors advanced to justify the immunity, "the adverse consequences for the administration of justice which would flow from the re-litigation in collateral proceedings for negligence of issues determined in the principal proceedings" (emphasis added) was held to be determinative. The significance of the reference to the administration of justice is of fundamental importance to the proper understanding of the immunity and its foundation.

[32] To adopt the language found in the cases considering Ch III of the Constitution, the central concern of the exercise of judicial power is the quelling of controversies. Judicial power is exercised as an element of the government of society and its aims are wider than, and more important than, the concerns of the particular parties to the controversy n question, be they private persons, corporations, polities, or the community as personified in the Crown or represented by a Director of Public Prosecutions. No doubt the immediate parties to a controversy are very interested in the way in which it is resolved. But the community at large has a vital interest in the final quelling of that controversy. And that is why reference to the "judicial branch of government" is more than a mere collocation of words designed to instil respect for the judiciary. It reflects a fundamental observation about the way in which this society is governed.

[33] As s 71 of the Constitution says, what is "vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction" is the judicial power of the Commonwealth, that is, the judicial power of the national polity. No matter whether the judicial branch of government is separated from the other branches of government (as it is and must be at the federal level but, at least generally, is not at the State level) it is, in Quick and Garran's words, "the third great department of government".

Finality

[34] A central and pervading tenet of the judicial system is that

controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding.

[35] The principal qualification to the general principle that

controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called fresh evidence rule") are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe : "[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial."

[36] The rules based on the need for finality of judicial determination are not confined to rules like those mentioned above. Those are rules which operate between the parties to a proceeding that has been determined. Other rules of law, which affect persons other than the parties to the original proceeding, also find their justification in considerations of the need for finality in judicial decisions. And some of those rules are rules of immunity from suit.

Other immunities from suit

[37] 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.

[38] 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 sixteenth and seventeenth centuries.

[39] From as early as the sixteenth century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in Court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The

witness is immune from suit and the immunity extends to preparatory steps. That the immunity must be pleaded as a defence makes it nonetheless an immunity from suit. As the whole Court said in Lange v Australian Broadcasting Corporation:

"The result [of the defence] is to confer upon defendants, who choose to plead and establish an appropriate defence, an immunity to action brought against them."

(Footnote omitted.)

[40] 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.

[41] Statements can be found in the cases that the immunity of witnesses serves to encourage "freedom of expression" or "freedom of speech" so that the court will have full information about the issues in the case. Statements also can be found that place the immunity of those who participate in court proceedings on the desirability of avoiding baseless actions being brought against those who were merely discharging their duty, but these considerations are advanced in answer to another kind of argument. As Fry LJ said in Munster v Lamb:

"Why is it that a judge who disgraces his office, and speaks from the bench words of defamation, falsely and maliciously, and without reasonable or probable cause, is not liable to an action? Is not such conduct of the worst description, and does it not produce great injury to the person affected by it? Why should a witness be able to avail himself of his position in the box and to make without fear of civil consequences a false statement, which in many cases is perjured, and which is malicious and affects the character of another?"

[42] In R v Skinner, Lord Mansfield said that "neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office". Of that immunity it has been said in Mann v O'Neill that it responds to two related considerations, "to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences" and "the avoidance of the re-agitation by discontented parties of decided cases after the entry of final judgment" other than by appellate processes. That view of the matter reflects the consideration that what is at stake is the public interest in "the effective performance" of its function by the judicial branch of government.

The judicial process as an aspect of government - conclusions

[43] The "unique and essential function" of the judicial branch is the quelling of controversies by the ascertainment of the facts and the application of the law. Once a controversy has been quelled, it is not to be re-litigated. Yet re-litigation of the controversy would be an inevitable and essential step in demonstrating that an advocate's negligence in the conduct of litigation had caused damage to the client.

[44] The question is not, as may be supposed, whether some special status should be accorded to advocates above that presently occupied by members of other professions. Comparisons made with other professions appear sometimes to proceed from an unstated premise that the law of negligence has been applied, or misapplied, too harshly against members of other professions, particularly in relation to factual findings about breach of duty, but that was not a matter argued in this Court and should, in any event, be put to one side. Nor does the question depend upon characterising the role which the advocate (a private practitioner) plays in the administration of justice as the performance of a public or governmental function.

[45] Rather, the central justification for the advocate's immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society. If an exception to that tenet were to be created by abolishing that immunity, a peculiar type of re-litigation would arise. There would be re-litigation of a controversy (already determined) as a result of what had happened during, or in preparation for, the hearing that had been designed to quell that controversy. Moreover, it would be re-litigation of a skewed and limited kind. No argument was advanced to this Court urging the abolition of judicial or witness immunity. If those immunities remain, it follows that the re-litigation could not and would not examine the contribution of judge or witness to the events complained of, only the contribution of the advocate. An exception to the rule against the reopening of controversies would exist, but one of an inefficient and anomalous kind.

[46] A justification based on finality has as much force today as it did when Giannarelli was decided. Given this, what changes have occurred since the decision in Giannarelli which would necessitate a reconsideration of that decision?

(Footnotes omitted)

1. Their Honours went on to decide that Giannarelli v Wraith should not be reconsidered.

1. In a separate judgment McHugh J said at [95]:-

[95] Although the inability to sue advocates for their in-court conduct is traditionally described as an immunity, that description is just another name for the conclusion that, as a matter of legal policy, advocates do not owe an actionable duty of care in respect of their conduct in court. Similarly, they owe no actionable duty of care in respect of out-of-court conduct that is intimately connected with in-court conduct. They do, however, owe actionable duties of care in respect of conduct that is not intimately connected with in-court advocacy. But in respect of their in-court conduct, they are in the same position as many other persons who owe no actionable duty of care in respect of their activities or the exercise of their professions even though the negligent performance of those activities or professions will cause damage to others. So far as the law of negligence is concerned, it does not matter whether the lack of remedy against the advocate arises because the advocate does not owe a duty of care enforceable by an action for damages or has what is described as an immunity from suit.

1. Having given example of professionals' immunities from liability for negligent statements causing damage to individuals his Honour said at [99]:-

[99] ...Judges and witnesses owe no actionable duty of care not to make careless statements that may cause loss of liberty, reputation or money. Neither a judge nor a witness nor counsel can be sued even for false and defamatory statements made maliciously in the course of judicial proceedings. A witness's immunity from suit extends even to out-of-court conduct that is intimately connected with the giving of evidence in court.

(footnotes omitted)

1. In Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130, one of the cases cited by McHugh J, Starke J said this at 140 - 141: -

No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts. Witnesses - Damport v Sympson; Eyres v Sedgewicke; Revis v Smith, Dawkins v Lord Rokeby; Seaman v Netherclift, Watson v McEwan...Actions against witnesses for defamation have failed and so have actions analogous to actions for malicious prosecution, which Brett, M.R , thought were brought "in despair" - Munster v Lamb, 11 QBD. at p 602 - and now we have an action against witnesses for conspiracy to give, adduce and procure false evidence justified by the proposition taken from Sorrell v Smith [1925] AC 700, that a combination of a set of persons or a conspiracy for the purpose of injuring another followed by actual injury is actionable.

But it does not matter whether the action is framed as an action for defamation or as an action analogous to an action for malicious prosecution or for deceit, or as in this instance, for combining or conspiring together for the purpose of injuring another; the rule of law is that no action lies against witnesses in respect of evidence prepared - Watson v McEwan [1905] AC at p 486 - given, adduced, or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice - Seaman v Netherclift (1876) 2 C.P D. at p 62; Goffin v Donnelly (1881) 6 QBD at p 308. The remedy against a witness who has given or procured false evidence is by means of the criminal law or by the punitive process of contempt of court - see Watson v McEwan [1905] AC at p 486.

(footnotes omitted)

The Plaintiff's Submissions

1. Responding, the plaintiff submitted that his claims were not a standard negligence claim in which he was suing a witness for lying in court. It was not typical of those that might give rise to the question of an advocate's immunity, as where a plaintiff sued his former lawyer. Here, he submitted, the second, third, fourth, and fifth defendants had been brought into the suit by the Court but had failed in their duty of disclosure to the Court.

1. The plaintiff pointed to the judgment of McHugh J in D'Orta-Ekenaike v Victoria Legal Aid at [111]. His Honour said this -

[111] The adversarial system of justice has its critics, many of whom claim that it hampers rather than helps the achievement of justice. But when all the consequences of the adversarial system are taken into account, the fact remains that the administration of justice, as now known, would be greatly impaired without the assistance of an independent Bar. Despite being in a relationship of confidence with a lay client, the first duty of the barrister is not to the client but to the court in which the barrister appears. The duty to the instructing solicitor or the lay client is secondary. Where the respective duties conflict, the duty to the court is paramount. That duty to the court imposes obligations on the barrister with which the barrister must comply even though to do so is contrary to the interests or wishes of the client. Thus, the barrister can do nothing that would obstruct the administration of justice by: deceiving the court; withholding information or documents that are required to be disclosed or produced under the rules concerned with discovery, interrogatories and subpoenas; abusing the process of the court by preparing or arguing unmeritorious applications; wasting the court's time by prolix or irrelevant arguments; coaching clients or their witnesses as to the evidence they should give; using dishonest or unfair means or tactics to hinder an opponent in the conduct of his or her case.

1. The plaintiff submitted that the defendants had conducted themselves in ways coming within the impermissible conduct pointed to by his Honour in the passage cited, so that conduct fell within "the few narrowly defined circumstances" referred to by the majority at [34] within which conflicts already resolved might be reopened.

1. In my opinion the plaintiff misunderstood McHugh J's judgment. His Honour was not saying that conduct of the kind pointed to at [111] would or could have the effect of removing immunity from suit. Plainly, conduct of the kind pointed to should render actors susceptible to discipline and correction but it does not follow that that is to be achieved by the removal of immunity and the reopening of decided matters. So much is clear from what McHugh J went on to say, thus-

[112] Moreover, the advocate owes a duty to the court to inform it of legal authorities that "bear one way or the other upon matters under debate". The duty applies "quite irrespective of whether or not the particular authority assists the party which is so aware of it".

[113] Thus, in many situations arising in the conduct of litigation, the common law requires an advocate to act contrary to the interests of his or her client. I doubt if there is any other profession where the common law requires a member of another profession to act contrary to the interests of that person's client. In some professions and callings, statutes now impose specific obligations on members to disclose information against the interests of the client. But advocacy is probably unique in imposing common law obligations on a professional person to act contrary to the interests of a lay client. This factor alone is probably sufficient to preclude reasoning by analogy from the liability of other professions and occupations for negligent conduct. But however that may be, two other factors show conclusively that it is in the public interest to give advocates an immunity from liability for in-court conduct and conduct intimately connected with in-court conduct...

(footnotes omitted)

1. Secondly, the plaintiff submitted that in the United Kingdom in 2001 advocates' immunity from suit was abolished. By 2005, when D'Orta-Ekenaike v Victoria Legal Aid was decided, there was insufficient empirical data available to the High Court of Australia to assess the results of abolition. The plaintiff said that he had a number of articles commenting on the recent history in England and, as I understand it, to the likelihood of the abolition of immunity of witnesses from suit. Australia, he submitted, was as far as he was aware the only Common Law country where immunity remained for advocates. He submitted that (special) leave might well be granted by the High Court of Australia so that it could reconsider the question of immunity. This, he submitted, was an ideal case, given that the acts and the evidence of expert witnesses and advocates were involved.

1. While the question raised by the plaintiff might be an interesting one to enter upon in other circumstances, this Court's authority is limited by the statements of principle made by the Justices of the High Court of Australia, notably those in D'Orta-Ekenaike v Victoria Legal Aid to which I have referred.

1. I do not accept the plaintiff's contentions.

Resolution

1. It seems to me that in each of the instances pointed to by the plaintiff, the relevant work or activity or inactivity occurred in court or in work intimately associated with work in court; see the judgment of the majority in D'Orta-Ekenaike v Victoria Legal Aid at [23]. They are and each of them is immune from suit.

1. In my opinion no maintainable cause of action is disclosed.

1. Counsel for the second, third and fifth defendants submitted in addition that -

a.   The proceedings was premature, since the plaintiff might be successful in his appeal and turn out to have suffered no loss;

b.   Proceedings based on breach of duty to the Family Court ought to be dealt with in that Court, not this Court;

c.   Assuming that the plaintiff was attempting to sue in negligence, his allegations were insufficiently pleaded;

d.   No reasonable cause of action was disclosed to support a claim in damages or in exemplary damages; and

e.   The Statement of Claim was defective in other ways.

1. In view of the conclusion I have reached on the question of immunity from suit I have not found it necessary to deal with these matters.

Orders

1. I make the following orders:

(1)   The Statement of Claim is summarily dismissed;

(2)   The plaintiff is to pay the costs of the second, third, fourth and fifth defendants;

(3)   I make a suppression order prohibiting the publication or other disclosure of the names of the children of the plaintiff or of any evidence or material that would enable them to be identified. I do so because I consider the order necessary to maintain the privacy of and thereby promote the welfare of the children. The order will stand until the children attain their majority.

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Decision last updated: 23 September 2013