-Agar v Hyde

Facts assumed for the purpose of the application 5From the statement of claim and MFI 1, I assume the facts to be that on 20th October 2009 the plaintiff commenced proceedings by way of statement of claim against four defendants in the Small Claims Division of the Local Court, Downing Centre. The agreement on which it sued was the subject of a prior determination in the Local Court by the resident magistrate at Gunnedah. 6On 19th November 2009, the registrar allocated "a Gunnedah file number to the proceedings" without notice to the plaintiff and without giving it the opportunity to be heard. Over the telephone, one of the registrar's clerks informed a director of the plaintiff "the matter is being transferred to Gunnedah". 7On 20th November 2009, one of the defendants filed a notice of motion seeking the change of venue to Gunnedah. That motion was determined in chambers on 2nd December 2009 in the absence of the parties by an assessor of the Small Claims Division under Rule 8.2 UCPR. The assessor made the order for a change of venue. 8Apparently after the discussion of the 19th of November 2009, the plaintiff lodged some written submissions objecting to any change of venue, because in paragraph 14 of the statement of claim the plaintiff avers: The defendant failed to provide the plaintiff with procedural fairness in making the Orders (sic) because it: (i) Added a Gunnedah file number to the proceedings prior to it having received any application to transfer the file from any party to the proceedings. (ii) Failed to comply with practice note 1/2009 which required the defendant to give any respondent to a notice of motion which was seeking to change the venue of a matter, 14 days from the date the notice was sent to lodge any objection to the change of venue application. (iii) Denied the plaintiff the opportunity of making oral representations to the defendant's Assessor (sic) regarding why the proceedings should not be transferred from the defendant to the Local Court at Gunnedah. (iv) Did not place the plaintiff's written objections to the transfer of the proceedings, acknowledged by the defendant on 19 November 2009, before the Assessor (sic) at the time his decision to transfer the proceedings was made on 2 December 2009. 9For reasons not expressed in either the statement of claim or MFI 1 the plaintiff was apprehensive about getting a fair trial from the resident magistrate. These unstated reasons apparently somehow arose out of the prior determination. 10By letter, the plaintiff applied to the Chief Magistrate for the appointment of a different magistrate, which application was refused. In the meantime, at a pre-trial review carried out by the resident magistrate, the proceedings were transferred from the Small Claims Division to the General Division of the Court and adjourned for directions on 1st March 2010. 11Because of it's apprehension about a fair trial and it's belief that "it would be financially irresponsible for the proceedings to continue at the Local Court at Gunnedah in the General Division given it was a small claim now in the General Division (sic)", the plaintiff, as I have already stated, discontinued the proceedings against the defendants agreeing to pay the costs of some of them. 12There is no averment that the resident magistrate was asked to recuse himself and that such an application was refused.

The submissions of the parties 13Ms. Boyd, solicitor, who appeared for the defendant/applicant, pointed out that on any reading of the statement of claim, it was not possible to say which of the registrar, the assessor, the Chief Magistrate or the resident magistrate is said to have made a decision which is called into question on the ground of denial of natural justice. Even were that not so, it was not possible to say into what category of legal liability any putative tort fell. It was further submitted that were those matters not sufficient to justify summary dismissal, any discernable claim was clearly untenable because of the immunity of judicial officers from civil liability. Reference was made to s44A - s44C Judicial Officers Act 1986 (NSW), and to Najjar v Haines (1991) 25 NSWLR 224. 14Mr. T.D. Anderson of counsel who appeared for the plaintiff acknowledged the prima facie force of the defendant's first two points and indicated that leave to replead was sought. If given an opportunity to replead he said the plaintiff's case was that a decision to change venue was made by the registrar who owed the plaintiff a duty of care recognised by the law of negligence to exercise reasonable care in exercising his or her powers so as not to carelessly deny the plaintiff the right to be heard before adverse decisions were made. No other category of potential legal liability was articulated. Mr. Anderson acknowledged the "novelty" of the argument. He said that the argument would be made good at the trial by reference to the "salient features" of the relationship between the registrar and the plaintiff in accordance with the analyses in Caltex Refineries (Qld) Pty Ltd v. Stavar [2009] NSWCA 258; 75 NSWLR 649 at 675 [101] - 677 [105] per Allsop P (as he then was) and 688 [165] - 693 [181] per Basten JA. 15From the non-exhaustive considerations set out at 676 [103] by Allsop P, Mr. Anderson laid emphasis upon the foreseeability of harm, the degree and nature of control exercisable by the registrar, the plaintiff's vulnerability, the degree of the plaintiff's reliance and the consideration that the posited duty was not unduly burdensome. 16Mr. Anderson pointed out that "judicial immunity" was not pleaded. 17In reply, Ms. Boyd sought leave to amend her defence to plead "judicial immunity". If the focus of liability was on the conduct of the registrar, she argued that under s55 Local Court Act 2007 (NSW), the Court had power to order a change of venue and that this would be a power exercisable by the registrar. She later corrected this, conceding that the s55 power had not been delegated to the registrar, but by reference to Najjar, submitted that the extent of the immunity was broad enough to embrace the registrar's purported exercise of the powers of the Court.

Determination 18The high bar a defendant needs to clear to obtain an order for summary dismissal was not in question. A comparatively modern restatement of it is found in the plurality judgment in Agar v Hyde [2000] HCA 41; 201 CLR 552 at 575 [57]: It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of a court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the Court in the ordinary way, after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways (citations omitted), but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. 19Were the defendant's first and second points the only matters in play, I would allow the plaintiff leave to replead by reference to the principle discussed by Priestley JA (Meagher JA and Waddell AJA agreeing) in Penthouse Publications Limited v McWilliam (unreported, NSWCA 14/3/1991; BC910223), that is to say the statement of claim should only be dismissed if it is "beyond saving by legitimate amendment" (see also Brimson v. Rocla Concrete Pipes Limited [1982] 2 NSWLR 937 at 942C). 20However, they are not the only matters. In my view, the defendant's third point about judicial immunity is well taken and should be acceded to. During the course of oral argument, I allowed Ms. Boyd's application to amend, and directed that the amended defence be filed and served by close of business on 2nd April 2013. 21As Gleeson CJ said in Fingleton v. The Queen [2005] HCA 34; 227 CLR 166 at 186 [38]: 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. The public interest in maintaining the independence of the judiciary does not depend upon the state of the pleadings. As the immunity exists for the benefit of the public and not for the benefit of the individual judicial officer, the failure to raise the immunity in a defence does not deprive the public of the benefit of it: Fingleton at 232 [199] per Hayne J. Failure to raise the issue in a defence does not constitute waiver. 22In New South Wales, the immunity is sourced, at least in part, in Part 8A Judicial Officers Act. I set out the provisions of s. 44A - s. 44C: 44A Immunity of Supreme Court Judges The protection and immunity of a Judge of the Supreme Court (or a Judge having the same status as a Judge of the Supreme Court) performing duties as such a Judge extends to the Judge when performing ministerial duties as such a Judge. 44B Immunity of certain judicial officers (1) A judicial officer has, in the performance of his or her duties as a judicial officer (including ministerial duties), the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge. (2) This section does not apply to a Judge of the Supreme Court or to a Judge having the same status as a Judge of the Supreme Court. 44C Immunity of officers performing duties of judicial officers A registrar, an associate Judge of the Supreme Court, a Commissioner of the Land and Environment Court, a Commissioner of the Compensation Court, an authorised justice, an authorised officer (within the meaning of the Criminal Procedure Act 1986) or any other officer of a court has, when performing the duties of a judicial officer (including ministerial duties), the same protection and immunity as the judicial officer has in the performance of those duties. A registrar of the Local Court is not a judicial officer as defined by s3 Judicial Officers Act, but s44C clearly extends the immunity to such an officer, and "any other officer of a court" when performing the duties of a judicial officer (including ministerial duties): see Scanlon v. Director General, Department of the Arts, Sport and Recreation [2007] NSWCA 204; 70 NSWLR 1 at 24 [82] per Tobias JA (with whom Mason P and Beazley JA agreed). 23As I have said the statute is the source of the immunity, at least for the registrar, but it is clear from the language of s44A that the content of the immunity continues to be determined by the common law. In Fingleton at 185 [36] Gleeson CJ said: Most discussion of judicial immunity concerns the possibility of civil liability, including liability for damages, at the suit of an aggrieved litigant. The general principle is as stated by Lord Denning MR in Sirros v Moore [[1975] QB 118 at 132]: Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. An allegation of judicial misconduct by a dissatisfied litigant often, perhaps even typically, will be accompanied by an accusation of malice or want of good faith in the exercise of judicial authority. In Re McC [[1985] AC 528 at 540], Lord Bridge of Harwich said: It is, of course, clear that the holder of any judicial office who acts in bad faith, doing what he knows he has no power to do, is liable in damages. If the Lord Chief Justice himself, on the acquittal of a defendant charged before him with a criminal offence, were to say: "That is a perverse verdict", and thereupon proceed to pass a sentence of imprisonment, he could be sued for trespass. But, as Lord Esher MR said in Anderson v Gorrie [[1895] 1 QB 668 at 670]: "the question arises whether there can be an action against a judge of a court of record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie." 24As can be seen by dint of s44C Judicial Officers Act the immunity of the registrar is as broad as the immunity of "a judge of a court of record": Scanlon at 22 [76] (a). 25As Mr. Anderson refined his case, it is unnecessary for me to consider the position of magistrates or assessors. But both are clearly covered by the immunity when exercising judicial and ministerial functions. The latter because he or she will be another officer of the Local Court for the purpose of s44C, if for no other reason. 26As the plaintiff has put it's case of civil liability squarely on the basis of the law of negligence, it is unnecessary for me to consider any other possible basis such as the tort of misfeasance in public office: Rawlinson v Rice [1998] 1 NZLR 454; Cannon v Tahche [2002] VSCA 84; 5 VR 317. That tort involves "intentionally exceeding or abusing a public office": M & M Constructions (Aust.) Pty Ltd. V. Port Stephens Council [2012] NSWCA 417; 191 LGERA 292 at [210] per Basten JA. It "does not sit comfortably alongside a cause of action for careless carrying out of the functions of public office". Malice is an element of the tort: Northern Territory of Australia v Mengel [1995] HCA 65; 185 CLR 307 at 370 - 371 per Deane J. The tort "concerns conscious maladministration rather than careless maladministration": Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330 at 376 [124] per Gummow J. As Basten JA pointed out in M & M Constructions at [212] "principles of coherence" suggest that the potential causes of action cannot be interchangeable. 27In any event, neither in the statement of claim nor in the case described in oral argument has it been alleged that the registrar "[acted] in bad faith, doing what he knows he had no power to do". On the contrary, careless denial of natural justice was the only case advanced. I doubt it would be open to argue otherwise. 28Notwithstanding the plaintiff's concession about s55 Local Court Act 2007, in my view, the registrar had power to order a change of venue. Rule 8.2 Local Court Rules 2009 (NSW) empowers the registrar to perform the functions of the court, under rule 4.3. Rule 4.3(1) is in the following terms: The court may make any orders the court thinks fit for the just, efficient, effective and timely management of proceedings before the court. 29This rule is broad enough to embrace an order changing the venue on case management considerations. Quite apart from s55 Local Court Act, Rule 8.2 UCPR empowers a court to order a change of venue. Indeed it is this latter provision, according to paragraph 13 of the statement of claim, which was said to justify the order in the present case. By ordering a change of venue the registrar, if that's who actually made the order, was performing a judicial function within power. 30There is simply no basis upon which the tort of misfeasance in public office could run in the present case. 31It is unnecessary for me to consider whether the plaintiff's admittedly novel case has any prospect of success whatsoever because it is completely trumped by judicial immunity: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at 18 [37] - 20 [42] per Gleeson CJ, Gummow, Hayne and Heydon JJ. But immunity aside, for the reasons explained by Spigelman CJ in State of New South Wales v. Paige [2002] NSWCA 235; 60 NSWLR 371 at 393 [114] - 395 [131], a duty the content of which is an obligation to exercise reasonable care to afford procedural fairness has no prospect of acceptance by the modern law of negligence. 32For these reasons, I am satisfied to the requisite high degree of certainty that the plaintiff's claim must fail if it were allowed to go to trial in the ordinary way. No reasonable cause of action is disclosed in these proceedings. 33My orders are: (1) Under Rule 13.4 of the Uniform Civil Procedure Rules 2005, the proceedings are summarily dismissed; (2)The plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis after they have been agreed or assessed.

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