Thompson v Thackray
[2014] WASC 462
•5 DECEMBER 2014
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 sued in respect of judicial acts performed in the exercise of his or her jurisdiction.[1] The rationale for the rule was explained by Gleeson CJ in Fingleton v The Queen[2] in the following terms:
This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. As O'Connor J, speaking for the Supreme Court of the United States, said in Forrester v White,[3] that Court on a number of occasions has 'emphasised that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have'. She said that '[i]f judges were personally liable for erroneous decisions, the resulting avalanche of suits … would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits'.
This does not mean that judges are unaccountable. Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions. Their decisions routinely are subject to appellate review, which also is conducted openly. The ultimate sanction for judicial misconduct is removal from office upon an address of Parliament. However, the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions.
[1] See, for example, Gallo v Dawson (1988) 82 ALR 401 and Gallo v Dawson (No 2) (1992) 109 ALR 319; Sirros v Moore [1975] QB 118; Rajski v Powell (1987) 11 NSWLR 522; and the other cases cited in Re The State of Western Australia; ex parte Vella [No 2] [2012] WASCA 272 [4].
[2] [2005] HCA 34; (2005) 227 CLR 166 [38] ‑ [39].
[3] (1988) 484 US 219, 226 ‑ 227.
The Family Court of Western Australia is continued as a court of record by s 9 of the Family Court Act 1997 (WA). Judges of that court are appointed by the Governor by commission under s 11 of the Family Court Act, and are given many of the same entitlements as a puisne judge of the Supreme Court by s 14 ‑ s 16 of that Act. The independence of judges of the Family Court from the executive government is secured, in part, by the security of tenure provided for by s 18 of the Family Court Act. I have no doubt that, in other respects, the independence of that court is provided for by the common law immunity from suit which judges of that court enjoy in respect of the performance of their judicial functions.
The claim sought to be advanced by the plaintiff's proposed writ of summons is concerned with the manner in which the Chief Judge of the Family Court performs his judicial functions, and the manner in which that court exercises its jurisdiction. The Chief Judge's judicial immunity from suit is an insurmountable obstacle to the proposed action. As the plaintiff and the other persons proposed to be joined as plaintiffs in the writ clearly have no tenable cause of action, I refuse leave to the plaintiff to institute the proposed proceedings.
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