HOARE v LUCCHETTI & 20 Ors

Due to serious illness this matter has been handed over to the Legal Aid Commission of New South Wales.

As they have only just received this matter they need time to go through the large body of evidence which has been given to them before they can file it, and serve this on the other parties in this most serious of matters.

I therefore respectfully request an adjournment to facilitate this.

John Hoare. 15 No evidence was offered to show who was ill or what the nature of the illness might be. No one appeared from or instructed by the Legal Aid Commission. All defendants opposed any further adjournment of their motions for summary dismissal. It was established that the first and second defendants had in the meantime served on the plaintiff a notice of motion returnable on 29 July seeking orders including an order that the proceedings be summarily dismissed. 16 It seemed to me that the plaintiff had failed to give any satisfactory explanation for his failure to appear on 29 July. I was satisfied that he knew that on that day he was likely if he attended to have to respond to the three motions for summary dismissal. In view of the seriousness of the allegations made by the plaintiff and his lack of satisfactory explanation for his failure to attend, it seemed to me that it would be unjust to delay further the hearing of the motions. I therefore declined to adjourn the hearing of the summons and the motions and heard argument on the motions. 17 Against the defendants generally the plaintiff first asserts that they have committed acts of negligence. However, the plaintiff cannot succeed in a suit which asserts negligence but does not also assert consequential damage, for damage is the gist of an action for negligence: see Fleming on the Law of Torts, 7th edition, pp 95, 171. In so far as it seeks the first order, therefore, the summons is an abuse of process because no cause of action has been disclosed. 18 The second order sought in the summons raises a matter of a criminal nature which cannot be commenced by summons in this Division of the Court. It is also embarrassing because it is uncertain and discloses no offence. No cause of action has been disclosed. 19 As to the third order sought, the only legal reference to reckless indifference to human life to which the Court's attention has been directed appears in s 18 Crimes Act, which deals with the crime of murder. On the face of it, this order raises a criminal matter, set out as it is in a document calling itself an indictment. Criminal proceedings cannot be commenced in this manner. The pleading is embarrassing and an abuse of process. 20 The fourth order pleads that the defendants are guilty of conduct which shows disregard for the life and safety of others. Exactly what conduct is meant is left unclear or unexplained. The pleading is embarrassing because the defendants cannot by reference to it know what cause of action is raised against them. It is an abuse of process. 21 In my opinion each defendant is entitled, if he so moves, to have the summons dismissed under either Pt 13 Rule 5 or Pt 15 Rule 26 or in the inherent jurisdiction of the Court. 22 In the affidavit to which I have referred the plaintiff complains about orders made, or perhaps refused, by O'Keefe J and Dunford J respectively on 27 and 28 May 2002. It is thus apparent, notwithstanding the erroneous assertion that their Honours are public servants, that the plaintiff sues them in their capacity as judges. 23 It is a fundamental principle of law that a judge of a superior court is immune from liability for acts done in the conduct of his or her judicial capacity: Rajski v Powell & Anor (1987) 11 NSWLR 523 at 527-530 per Kirby P and at 538-540 per Priestley JA. That immunity applies to all acts done within jurisdiction in the exercise of judicial capacity, even if done in bad faith or in circumstances constituting a criminal act. 24 In Yeldham v Rajski (1989) 18 NSWLR 48 Hope JA, with whom Priestley JA agreed, said this at 66: … it is well established that a judge of the Supreme Court cannot be made liable in civil proceedings for anything done by him in the performance of his judicial functions and within jurisdiction, even though he acts maliciously or corruptly.

See also the judgment of Adams J in Bhagat v Young & Ors [2002] NSWSC 331. 25 For these independent reasons, therefore, the eighteenth and nineteenth defendants are, in my opinion, entitled to the orders they seek. 26 Motions for summary dismissal appear now to have been brought on behalf of all parties except the third and twenty-first defendants. In my opinion no proper purpose would be served by allowing the proceedings to continue on foot against them even though they have not formally sought leave for dismissal. It is just that the proceedings as a whole should come to an end. 27 I make the following orders: (1) Grant leave to the first and second defendants to file a notice of motion returnable forthwith in the form of the draft which I have initialled. (2) Grant leave to the fourth to seventeenth defendants to join in the notice of motion of the twentieth defendant. Dispense with any need for service.

(3) The summons is dismissed against all defendants.

(4) The plaintiff is to pay the costs of the defendants. **********

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