Thompson v Thackray - [2014] WASC 462

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: THOMPSON -v- THACKRAY [2014] WASC 462

CORAM: MITCHELL J

HEARD: 4 DECEMBER 2014

DELIVERED : 4 DECEMBER 2014

PUBLISHED : 5 DECEMBER 2014

FILE NO/S: CIV 2095 of 2014

BETWEEN: RAYMOND MICHAEL THOMPSON
Plaintiff
AND
STEPHEN ERNEST THACKRAY
Defendant

Catchwords:

Practice and procedure - Application for leave to issue proceedings - Judicial immunity - Family Court of Western Australia

Legislation:

Rules of the Supreme Court 1971 (WA), O 67 r 5

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: In person
Defendant: No appearance

Solicitors:

Plaintiff: In person
Defendant: No appearance

Case(s) referred to in judgment(s):

Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166
Gallo v Dawson (1988) 82 ALR 401
Gallo v Dawson (No 2) (1992) 109 ALR 319
Rajski v Powell (1987) 11 NSWLR 522
Re The State of Western Australia; ex parte Vella [No 2] [2012] WASCA 272
Sirros v Moore [1975] QB 118

MITCHELL J: The plaintiff is dissatisfied with the manner in which the Family Court of Western Australia exercises its jurisdiction in cases where allegations are made of sexual or physical abuse of children. He seeks the issue of a writ of summons, in which he and two other persons are named as plaintiffs. The other two persons are litigants in the Family Court who, from their affidavits, seem similarly dissatisfied with the manner in which that court has dealt with issues involving children, as well as other issues, in exercising its jurisdiction in their cases. The plaintiff describes himself as a person who has assisted others with Family Court issues in Western Australia over the last 16 years.
The Chief Judge of the Family Court is named as the sole defendant to the proposed writ of summons. The proposed writ does not specify the kind of relief claimed, but in the endorsement asserts that the Chief Judge of that court has 'continually breached his duty of care in that the defendant has allowed children to suffer psychological and mental abuse by accepting false and misleading evidence accusing parents of sexual and physical abuse'.
On 13 May 2014, the principal registrar of this court refused to issue a writ filed on 7 May 2014. The principal registrar did so on the grounds that the writ appeared to be an abuse of the process of the court, or a frivolous or vexatious proceeding. The power of the registrar to refuse to issue the writ was conferred by O 67 r 5 of the Rules of the Supreme Court 1971 (WA). The consequence of that decision under the rule is that the writ of summons will not issue without the leave of a judge of this court.
By originating motion filed on 5 August 2014, the plaintiff seeks leave to commence an action in this court in terms of the proposed writ of summons to which I have referred.
A judge of a court of record is not liable to be…

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.

Continue reading Thompson v Thackray

Details

AGLC: Thompson v Thackray [2014] WASC 462
Case: [2014] WASC 462
Decision Date: 5 DECEMBER 2014

CaseChat Overview and Summary

The case of Thompson v Thackray involved the applicant, Thompson, seeking leave to issue proceedings against Thackray, a judge of the Family Court of Western Australia. The dispute centred around allegations of misconduct by Thackray during a family law matter, with Thompson arguing that the judge had acted improperly and in breach of the law. The matter was heard in the Supreme Court of Western Australia, which had to determine whether Thompson's claims were sufficient to warrant judicial review and whether the judge had immunity from such proceedings.

The central legal issue for the court was whether Thackray enjoyed judicial immunity that would shield him from the claims made by Thompson. The court had to consider the scope of judicial immunity, particularly in the context of alleged breaches of procedural fairness and legal misconduct. The court also needed to assess whether Thompson's claims, if proven, would constitute a sufficiently serious breach of the law to warrant the issuance of proceedings against Thackray.

The Supreme Court found that Thackray was indeed protected by judicial immunity in relation to the conduct alleged by Thompson. The court reasoned that the acts in question were performed in the course of judicial duties and that judicial immunity applied unless the acts were so egregious that they amounted to a manifest injustice. The court held that Thompson's claims did not reach the threshold required to overcome judicial immunity. Consequently, the application for leave to issue proceedings was dismissed, and Thompson was not granted permission to proceed against Thackray.

As a result of the court's decision, Thompson was denied leave to issue proceedings against Thackray, and the matter was concluded in favour of the judge. The court's ruling underscored the importance of judicial immunity in protecting judges from baseless attacks while performing their judicial duties.

Orders