Magistrates Court Act 1930, s 10G

Supreme Court Act 1933, s 7

Supreme Court Act 1970 (NSW), s 39

Federal Court of Australia Act 1976 (Cth), s 15

Judicial Commissions Act 1994,

O'Neill v Mann [1994] FCA 1522; (1994) 54 FCR 212 considered

Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204 considered

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 approved

Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 considered

Jamieson v The Queen [1993] HCA 48; (1993) 177 CLR 574 considered

Re East; ex parte Nguyen [1998] HCA 73; (1999) 73 ALJR 140 considered

Northern Territory of Australia v Mengel (1995) 185 CLR 307 followed

1. The statement of claim be struck out, with costs.

2. The application of the plaintiff that the proceedings be transferred to the Federal Court of Australia be dismissed, no order as to costs.

1. Dr Arnold Mann is suing the defendant (the Chief Magistrate of the ACT Magistrates Court) for damages arising out of matters connected with a complaint made by Dr Mann about the conduct of a special magistrate, Mr O'Neill, in litigation between Dr Mann and other parties.

2. Mr O'Neill sued Dr Mann for defamation arising out of the publication by Dr Mann of letters containing the complaint. The circumstances of the complaint and its publication are a matter almost of common knowledge in the Territory, being the subject of numerous decisions in this Court and other courts, reported and unreported. The notable reports are to be found in O'Neill v Mann [1994] FCA 1522; (1994) 54 FCR 212 and Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204. The circumstances do not bear repetition here but it should be noted that although the High Court confirmed the decision of the Full Court of the Federal Court that Dr Mann's letters were not protected by absolute privilege, Mr O'Neill filed a notice of discontinuance in his action for defamation. There is now a dispute about costs which is not the matter now before the Court, but it is likely that Dr Mann will finish up owing Mr O'Neill a substantial amount for costs.

3. The present action by Dr Mann alleges actionable conduct on the part of the Chief Magistrate in:

(a) failing to investigate or to take other appropriate steps to ensure investigation of Dr Mann's complaint;

(b) advising Dr Mann to make his complaint in writing to the Attorney-General of the Commonwealth;

(c) sending Mr O'Neill a copy of Dr Mann's subsequent letter to the Attorney-General.

4. It is a combination of those acts and omissions which Dr Mann alleges resulted in harm and loss, in particular the liability for the costs awarded against him in the High Court and the Full Court of the Federal Court.

5. The defendant moves by notice of motion to strike out the statement of claim as disclosing no reasonable cause of action. Dr Mann moves to have the proceedings transferred to the Federal Court of Australia but does not press that application.

6. The statement of claim is too long to set out here. It is obviously deficient as a pleading. But as long as it alleges facts which constitute an arguable cause of action, the proper course is not to strike it out but to order that it be re-pleaded. Moreover, as is properly conceded on behalf of the defendant, the fact that Dr Mann appears in person suggests that the Court should approach the "peremptory termination of the litigation with special care to ensure that, within the possibly ill-expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form.": Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536 per Kirby P (as he then was).

7. Dr Mann in his submission argued that just as the law provides that a member of the medical profession is held accountable for departures from standard practice by liability in damages for negligence, so should the holder of public office who does not observe proper standards in the discharge of the duties of that office where it is reasonably foreseeable that the act or omission in question will result in harm to a person who in fact suffers harm as a result of that act or omission.

8. There is abundant authority that a judicial officer cannot be sued for anything done or said in the exercise of judicial office: see eg. Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 at 139-140; Jamieson v The Queen [1993] HCA 48; (1993) 177 CLR 574 at 589. Recently in Re East; ex parte Nguyen [1998] HCA 73; (1999) 73 ALJR 140 at 145-6 in the judgment of six of the Justices of the High Court reference was made to the "well established immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial functions or capacity." The question arises in the present case whether the conduct on the part of the Chief Magistrate as alleged is properly characterised as part of the judicial function, or, in contrast, as part of an administrative or executive function, in which latter case the immunity of a judicial officer would not arise.

9. Whilst the categories of negligence and of other heads of tortious liability are never closed, they are not to be extended readily and a trial judge in particular is not free to move the boundaries. This was made clear by the High Court in Northern Territory of Australia v Mengel (1995) 185 CLR 307 in which the High Court confirmed the existence of a tort of misfeasance in public office. The High Court was of the unanimous view that it is sufficient to establish liability if the harm suffered is the result of an act done by a public officer with the intention of causing harm to the plaintiff. In the majority judgment, it was held to be sufficient, in the alternative, that the act be one which the officer knows, or ought to know, is beyond power and which involves a foreseeable risk of harm. In the minority judgment, the alternative requirement is satisfied if the officer acts with reckless indifference as to the existence of power to support the impugned conduct. The tort of misfeasance in public office is not to be equated with the tort of negligence.

10. It was submitted on behalf of the defendant that it could not be argued that, from the conduct complained of, Dr Mann suffered any harm at all, or, more precisely that there can be no causal connection between the Chief Magistrate's conduct and the proceedings launched against Dr Mann by Mr O'Neill. Those proceedings, although eventually discontinued by Mr O'Neill, resulted in costs orders against Dr Mann. I reject that submission. Causation is an issue that rarely falls to be decided before a full ventilation of the factual issues by evidence at trial. In my view, the alleged causal connection in the present case appears tenuous, but I think that it is arguable and should not be decided against the plaintiff on an application to strike out the statement of claim.

11. It was also submitted on behalf of the defendant that the tort of misfeasance in public office cannot be committed by omissions, contrasted with positive acts. I do not think that that submission is correct in principle. What is in issue is the character of human conduct, and conduct may be manifested by act or omission. Analogies with the distinction between misfeasance and non-feasance in the old cases against highway authorities are not to the point. In any event, the factual events, as I have distilled them and set out briefly above, include the positive acts of referring Dr Mann to the Attorney-General and sending a copy of Dr Mann's letter to Mr O'Neill.

12. However, the claim must, on the present allegations, fail on the issue of lack of power. On the majority view in the High Court, it is essential that a plaintiff prove in an action for misfeasance in public office either that the public officer intended harm to the plaintiff or knew or ought to have known that the conduct was beyond power and likely to cause harm. On no view of the allegations could it be concluded that the Chief Magistrate intended harm, and I think that Dr Mann conceded that. Further, however, it cannot be shown that the Chief Magistrate knew or ought to have known that he acted beyond power, because there is nothing to show that what he did went beyond his official duties. The case raises some important and interesting issues about the powers of a head of jurisdiction or chief judicial officer in relation to complaints made about fellow judicial officers, but they do not require to be decided in the present case. The only statutory power of the Chief Magistrate to which reference was made is conferred by s 10G of the Magistrates Court Act 1930, which provides as follows:

"10G. Arrangement of business of Courts

The Chief Magistrate is responsible for ensuring the orderly and expeditious discharge of the business of the Magistrates Court and the Childrens Court and accordingly may, subject to this Act and to such consultation with the Magistrates and special magistrates as is appropriate and practicable, make arrangements as to the Magistrate or special magistrate who is to constitute each of those Courts in particular matters or classes of matters."

13. This is a common legislative provision and indeed a necessary one in legislation establishing a court whose jurisdiction can be exercised by less than the totality of the members of that court: eg. Supreme Court Act 1933, s 7; Supreme Court Act 1970 (NSW), s 39; Federal Court of Australia Act 1976, s 15.

14. In Mann v O'Neill at 223, McHugh J stated that the Chief Magistrate "at the very least" had the power to ensure that cases are not heard by a magistrate against whom a complaint of corruption or incompetence is made until the allegation is determined. But the exercise of such a power here could have been of no assistance to Dr Mann since the cases over which Mr O'Neill had presided were finished.

15. I do not understand that the conduct of the Chief Magistrate in advising Dr Mann to complain in writing to the Attorney-General, and in sending a copy of the letter of complaint to Mr O'Neill, could be said to be done outside the exercise of power, or without authority, or as an abuse of office, terms which are all used in the majority judgments in Mengel. In the minority judgment of Brennan J at 357, his Honour used terminology which is not inconsistent with that in the majority judgment, and which seems, with respect, to sum-up the situation:

"It is the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office."

16. The conduct of the Chief Magistrate which Dr Mann alleges to constitute an abuse of office occurred at a time before self-government and before the Judicial Commissions Act 1994, which put in place a statutory regime for the reception and determination of complaints about the behaviour or capacity of a judicial officer of the Territory. At the time of Dr Mann's complaint, a special magistrate like Mr O'Neill could be removed "during the pleasure of the Governor-General": Magistrates Court Ordinance 1930, s 10J. There were then no statutory procedures for the removal or suspension of a special magistrate, although other magistrates could be removed after proved misbehaviour or incapacity. The Governor-General's pleasure, necessary for the removal of a special magistrate, would, in the ordinary course of events, be expected to be known after action taken by and through the Attorney-General, who would advise the Governor-General on relevant matters. On the face of it, the advice of the Chief Magistrate to Dr Mann that he should make his written complaint to the Attorney-General was perfectly proper and reasonable because the Attorney-General was charged with investigating and taking appropriate action: Mann v O'Neill at 216. There was no duty on the Chief Magistrate to make his own inquiry into the complaint before deciding whether or not to advise that the complaint be made to the Attorney-General. Furthermore, although the publication by the Chief Magistrate to Mr O'Neill of Dr Mann's letter of complaint to the Attorney-General (a fact which was not disclosed in the proceedings brought by Mr O'Neill: see Mann v O'Neill at 271) may not have been strictly necessary at the time of publication, eventually procedural fairness in the investigation of the complaint by the Attorney-General would have required that Mr O'Neill be told of at least the nature of the complaint and be given a chance to answer it. At the most, as McHugh J was prepared to assume at 237, the Chief Magistrate was not the most appropriate person to whom Dr Mann should have directed his complaint, in the sense that the Chief Magistrate did not form part of the Executive which could advise the Governor-General on the appropriate action. The conduct of the Chief Magistrate cannot support a conclusion that he acted in "the absence of an honest attempt to perform the functions of the office".

17. It follows that the statement of claim discloses no cause of action and that the facts relied on are incapable of disclosing a cause of action.

18. I order, on the defendant's motion, that the statement of claim be struck out, with costs. I dismiss Dr Mann's motion seeking an order transferring the proceedings to the Federal Court, no order as to costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the Reasons for Judgment herein of his Honour, the Chief Justice.

Solicitors for the defendant: ACT Government Solicitor