Stankovic v State of NSW - [2016] NSWSC 18

Supreme Court

New South Wales

Medium Neutral Citation: Stankovic v State of NSW [2016] NSWSC 18
Hearing dates: 29 January 2016
Date of orders: 08 February 2016
Decision date: 08 February 2016
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) The two Notices of Motion filed by the Plaintiff on 16 November 2015 are dismissed.
(2) The proceedings are dismissed.
(3) The Plaintiff should pay the Defendants’ costs.

Catchwords: PROCEDURE – summary dismissal – whether arguable case demonstrated – claim alleging negligence of a judicial officer in making orders – allegation that the State of New South Wales is vicariously liable for the judge’s negligence – abuse of process – attempt to re-litigate matters previously determined adversely to plaintiff - form of pleading – proceedings dismissed
COURTS AND JUDGES – judicial immunity – whether orders and reasons of a judge can give rise to tortious liability – whether the State is vicariously liable for acts of judicial officers
Legislation Cited: Judicial Officers Act 1986 (NSW)
Land and Environment Court Act 1979 (NSW)
Land and Environment Court Rules 1996 (NSW)
Law Reform (Vicarious Liability) Act 1983 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Cameron v Qantas Airways Ltd and Anor [2010] NSWSC 899
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1
Dare v Pulham (1982) 148 CLR 658
Hammond v State of New South Wales [2013] NSWSC 1930
Hammond v State of New South Wales [2015] NSWCA 304
McGuirk v The University of New South Wales [2009] NSWSC 1424
Rajski v Powell (187) 11 NSWLR 522
Rippon v Chilcotin [2001] NSWCA 142; (2001) 53 NSWLR 198
Stankovic v Hills Shire Council (No 3) [2012] FCA 523
Stankovic v The Hills Shire Council [2015] NSWCA 279
Wentworth v Wentworth [2000] NSWCA 350; (2001) 52 NSWLR 602
Yeldhem v Rajski (1989) 18 NSWLR 48
Category: Procedural and other rulings
Parties: Milovan Stankovic (Plaintiff)
State of New South Wales (First Defendant)
Land and Environment Court of New South Wales (Second Defendant)
Representation:
Counsel:
In person (Plaintiff)
G Sarginson (Defendants)
Solicitors:
Self-represented (Plaintiff)
Crown Solicitors Office (Defendants)

File Number(s): 2015/326568

Judgment

On 6 November 2015 Milovan Stankovic (the Plaintiff) commenced proceedings naming as Defendants the State of New South Wales (First Defendant) and the Land and Environment Court of New South Wales (Second Defendant). In it he claimed $35 million from the Second Defendant which he asserted was vicariously liable for a tort committed by the First Defendant. It seems clear, however, from a reading of the whole of the Statement of Claim that the Plaintiff meant to say that the First Defendant was vicariously liable for a tort committed by the Second Defendant.
The Defendants by Motion filed 26 November 2015 seek to have the Statement of Claim dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW). The Plaintiff filed two separate Motions on 16 November 2015. In one he seeks directions in relation to a Notice to Produce he served on…

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.

Keep reading for free

Create a free CaseChat account to read Stankovic v State of NSW and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWSC 18
Decision Date: 08 February 2016

CaseChat Overview and Summary

In the case of Stankovic v State of New South Wales, the plaintiff sought to hold the State vicariously liable for the alleged negligence of a judicial officer. The plaintiff's claim centred around a series of orders made by a judge, which the plaintiff argued were negligent and resulted in significant harm. The plaintiff also sought to hold the State vicariously liable for the actions of the judge. The court was required to determine whether the plaintiff had established an arguable case and whether the proceeding was an abuse of process. The plaintiff's case involved a complex interplay of judicial immunity, vicarious liability, and the form of pleadings.

The court examined the legal issues, including whether the orders and reasons of a judge could give rise to tortious liability, and whether the State could be held vicariously liable for the actions of a judicial officer. The court noted that judicial officers generally enjoy immunity from tortious liability for their judicial acts, but considered whether the plaintiff's claims fell outside the scope of this immunity. Additionally, the court considered whether the plaintiff's pleadings were sufficient to establish an arguable case and whether the proceeding amounted to an abuse of process by attempting to re-litigate matters previously determined adversely to the plaintiff.

The court held that the plaintiff had not demonstrated an arguable case, as the claims were essentially an attempt to challenge the judge's decision through the back door of tort law, which was impermissible. The court found that the plaintiff's claims were barred by judicial immunity and that the State could not be held vicariously liable for the actions of a judicial officer. The court also found that the proceeding was an abuse of process, as the plaintiff was attempting to re-litigate matters that had already been determined against them. Consequently, the court dismissed the proceeding.

The court ordered that the proceeding be dismissed with costs to be paid by the plaintiff. The court emphasised that judicial decisions are immune from tortious liability, and that the State cannot be held vicariously liable for the actions of a judicial officer. The court also noted that the plaintiff's attempt to re-litigate matters already determined was an abuse of process.

Orders