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.