Markisic & Anor v Commonwealth of Australia

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20369/01 MARKISIC & Anor v COMMONWEALTH OF AUSTRALIA

JUDGMENT 1 BELL J: This is an appeal from a decision of Master Harrison [2001] NSWSC 533 made on 28 June 2001 summarily dismissing proceedings on the amended statement of claim of the first and second plaintiffs filed on 5 June 2001 ("the SOC"). 2 An appeal from the Master's order lies to the Court constituted by a judge under Pt 60 r 10 of the Supreme Court Rules 1970 ("the SCR"). Section 75A(5) of the Supreme Court Act 1970 ("the Act") provides that the appeal is by way of rehearing. 3 By their SOC the plaintiffs seek damages, aggravated damages and exemplary damages from the defendant for injuries sustained by the plaintiffs as a result of the actions of three groups of persons for whom it is said that the defendant ("the Commonwealth") is vicariously liable; (i) the then Director-General of the Department of Community Services of New South Wales ("DOCs"), employees of DOCs and persons acting upon the instructions of the Director-General or her delegates in connection with certain proceedings before the Family Court of Australia ("the Family Court"); (ii) three judges of the Family Court; and (iii) three members of the Australian Police ("the AFP"). 4 The plaintiffs claim that these injuries were sustained on 29 September 1998. On that date the first plaintiff was attending the Family Court to support the appeal of his brother to the Full Court against a decision of Rowlands J affirming the order of Judicial Registrar Johnston that the brother's child, Elena Markisic, be returned to the Former Yugoslav Republic of Macedonia ("FYRM") in accordance with Australia's obligations under the Hague Convention on the Civil Aspects of Child Abduction ("the Hague Convention") (SOC [3] - [5]) ("the Family Court proceedings"). 5 Pursuant to the Commonwealth's obligations under the Hague Convention the Family Law (Child Abduction Convention) Regulations ("the Regulations") provide that certain officers of the Australian Public Service may be appointed as the "Commonwealth Central Authority" and certain State officers as the "State Central Authority" to perform the functions and duties required by the Hague Convention. In New South Wales, the State Central Authority is the Director-General of DOCs ("the Director-General"). The then Director-General delegated her authority under the Hague Convention to other named officers of DOCs who are to "take all appropriate steps to secure the return of children to whom the Convention applies" (Instrument of Delegation, Exhibit B to the Affidavit of Doreen Muirhead affirmed 2 March 2001 itself Exhibit A to the Affidavit of Roshana Wikramanayake sworn 14 June 2001). 6 It was at the request of the FYRM that the Commonwealth Central Authority required the State Central Authority take proceedings in the Family Court to have the child returned to her mother in the FYRM. The orders of Judicial Registrar Johnston were for the child to be returned. 7 During the course of the hearing of the appeal before the Full Court of the Family Court, Nicholson CJ invited counsel for the State Central Authority (the respondent in the appeal) to make an application for a warrant to have the child delivered to the Manager of the St George Community Services Centre in Hurstville (SOC [10] - [12]). The Full Court also ordered that the child remain in the interim in the care of the Director-General (SOC [15]). The orders of the Full Court are exhibited in the Affidavit of Ms Wikramanayake and relevantly state as follows: IT IS ORDERED

That until further order a warrant issue authorising and directing the Marshal and Deputy Marshal of the Family Court of Australia and all officers of the Australian Federal Police and all offices of the Police Forces in the Commonwealth of Australia take possession of the child ELENA MARKISIC born 3 May 1997 and deliver such child to TIM McDONALD, MANAGER ST GEORGE CSC DEPARTMENT OF COMMUNITY SERVICES, 390 FORRECT ROAD HURSTVILLE and that for the purposes of the exercise the foregoing powers and with such assistance as is necessary and reasonable by force to: (i) stop, enter and search any vehicle, vessel or aircraft; or (ii) enter and search any premises or place

if the person executing the warrant reasonably believes that:

(iii) the child is in or on the vehicle, vessel, aircraft or premises; and (iv) the entry and search is made in circumstances of such seriousness or urgency as to justify search and entry under the warrant where the said child may be or where there is any reasonable cause to believe the said child may be. 8 The second plaintiff, the grandmother of the child, was at her home ("the family home") with the child on 29 September 1998. The plaintiffs allege that three AFP officers attended at the family home, presented the second plaintiff with a warrant for the child, and entered the house (SOC [19]). 9 The second plaintiff attempted to call the father of the child when one of the AFP officers is alleged to have pulled the handset from her hands and the cord from the wall, causing the second plaintiff to lose her balance. The same officer is then alleged to have attempted to remove the child from the second plaintiff by force (SOC [23]). 10 The first plaintiff is alleged to have suffered shock at hearing of the removal of the child (SOC [31] - [32]). 11 Master Harrison, in her judgment Markisic and Anor v Commonwealth [2001] NSWSC 533, made findings as follows (at [24]): "It is my view that the plaintiff's claims are hopeless and are an abuse of the process of this court. The pleadings are doomed to failure so it is futile to grant leave to replead the claim. Hence the amended statement of claim and these proceedings should be dismissed." 12 These findings were based upon an acceptance of the Master that:

(i) The officers of DOCs were officers of the State of New South Wales and not the Commonwealth although delegated authority to act pursuant to Australia's obligations under the Hague Convention;

(ii) The judges of the Family Court were immune from liability for tortious acts committed whilst acting in their judicial capacity and with an honest belief of acting within jurisdiction (relying upon Sirros v Moore [1974] 3 All ER 776);

(iii) The AFP officers were acting in execution of judicial process that was "valid on its face" and had a similar immunity from tortious liability (relying upon Maharaj v Attorney General of Trinidad & Tobago (No 2) [1979] AC 385);

(iv) That there were no facts pleaded to give rise to any claim for assault (relying upon s 64B of the Australian Federal Police Force Act 1979).

13 In their grounds of appeal and in written submissions the plaintiffs assert that the Master erred by taking into account facts from the Family Court proceedings not pleaded in the SOC and in dispute between the plaintiffs and the defendant. In [2] of her judgment the Master refers to family law proceedings between the Director-General and Dragan Markisic as being finalised in October 1998. The plaintiffs contend that this is not the fact. Also in [2] of her judgment the Master states that "In October 1998 by virtue of the Federal of Australia (sic) orders, Elena and her mother returned to Macedonia." The plaintiffs complain that there was no evidence of that fact before the Master. The plaintiffs also assert that there was no evidence to support the Master's finding at [22] that, "Dragan Markisic has pursued all avenues to appeal the decisions of the Family Court and failed." None of these matters were material to the Master's reasons for her decision and it is not necessary for me to address this aspect of the plaintiffs' challenge in order to determine this appeal. 14 In oral submissions the plaintiffs asserted that there was in fact no warrant issued by the Family Court to remove the child and that the officers of the AFP acted upon the order for a warrant to issue directed by the Full Court. Though the plaintiffs' pleadings proceed upon the basis that the warrant to remove the child was valid, the plaintiffs now assert that those officers were not acting pursuant to judicial process valid upon its face. 15 The plaintiffs also claim that the Master misapplied the law stated in the decisions of General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, Webster v Lampard (1993) 177 CLR 598 and Air Services Australia v Zarb (Unreported, Rolfe AJA, NSWSC, 26 August 1998). The plaintiffs assert that the Master committed error by setting herself the wrong test at law for the dismissal of the proceedings. 16 In [5] to [9] of her judgment the Master referred to a number of authorities stating the principles to be applied with respect to the summary dismissal of proceedings. She quoted from the judgment of Barwick CJ in General Steel Industries v Commissioner for Railways (1964) 112 CLR 125 at 129: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; be manifest that to allow them' (the pleadings) 'to stand would involve useless expense.'" 17 To the extent that the plaintiffs contend in (2) - (6) of their grounds of appeal that the Master erred with respect to the principles governing applications for summary dismissal, issue is taken with the conclusions that she reached and not with her statement of the law.

18 The first plaintiff, who appeared on his own behalf and on behalf of the second plaintiff, submitted that the Master had erred in concluding that the Commonwealth could not be held to be vicariously liable for the actions of the Director-General (and officers of DOCs and others acting on the instructions of the Director-General) in the Family Court proceedings. In the plaintiffs' submission the individuals named in that section of the SOC headed "Particulars 1" were agents of the Commonwealth.

19 The plaintiffs contend that the Director-General of DOCs and the other persons named in the SOC under the heading "Particulars 1" committed the tort of misfeasance in public office and/or were in breach of their statutory duties imposed by the Regulations. The conduct giving rise to the claims relates to the carriage of proceedings on behalf of the respondent in the Family Court proceedings. 20 When the Commonwealth Central Authority receives an application in accordance with the Hague Convention it forwards the same to the State Central Authority for the State in which it appears the child is residing. The State Central Authority then files an application under the Regulations in the Family Court (Affidavit of Doreen Muirhead [6]). The Director-General as the State Central Authority commenced the Family Court proceedings by the filing of an application in the Family Court pursuant to the Regulations on 20 July 1998.

21 The plaintiffs contend that by referring the original Hague Convention application to the State Central Authority the Commonwealth became vicariously liable for the tortious conduct of the State Central Authority (and those acting on its behalf) in connection with the prosecution of proceedings before the Family Court brought by the State Central Authority. This is misconceived. I am not persuaded that the plaintiffs have established that the Master erred in dealing with this aspect of their claim. I consider the claim to be manifestly groundless. 22 The plaintiffs maintained that the Master erred in concluding that their claim against the Commonwealth for the actions of judges of the Family Court was hopeless. In the plaintiffs' submission the Master did not take into account, as an exception to the doctrine of judicial immunity, that it does not avail in cases where a judge acts knowingly without jurisdiction and therefore unlawfully. In support of this submission the plaintiffs rely on Rajski v Powell (1987) 11 NSWLR 522. In that case Kirby P observed, at 529-530: "[L]ike Wood J in Moll v Butler ((1985) 4 NSWLR 231), I would be prepared to countenance the "minor reduction in immunity where a judge knowingly acts without jurisdiction" (at 242).

In Rajski Priestley JA (in a judgment with which Hope JA agreed) said at 538: "The rule for which the defendants contend in the present case has in past decisions been stated very shortly. Typical is what was said by Aickin J in an unreported decision, Durack v Gassior (High Court of Australia, 13 April 1981); '…No action may be brought under our legal system against judges for acts done in the course of hearing or deciding cases which come before them.' References to the numerous authorities can be found in a recent New South Wales case; Moll v Butler at 238-244, Halsbury's Laws of England , 2nd ed, vol 26 pars 592-593 at 267-279; 4th ed, vol 1, par 210 at 199-200 and Sirros v Moore [1975] QB 118. The many authorities all support the way the matter was put by Aickin J in Durack in regard to cases where no question of the judge's jurisdiction arises. There is some room for argument about the way in which the test should be stated when there is a supportable allegation that the judge was without jurisdiction to do the act complained of: the different ways by which the members of the English Court of Appeal in Sirros dealt with this latter question in all reaching the same result in that case illustrate the different views. … Thus care needs to be taken in using the statement of the rule in this Court by Kirby P in Attorney-General for New South Wales v Agarsky . In that case he said that 'Action is not maintainable where judicial officers act in good faith in the performance of their judicial duties' (at 40). That statement appears to be based upon what was said by Lord Denning MR in Sirros (at 135), which was said with particular reference to a judge acting without jurisdiction. In cases however where there is no question of lack of jurisdiction the statement by Kirby P should be read as if the words 'in good faith' were taken out of it. No question of good faith can arise in such cases." 23 It is to be noted that the Master approached the determination of this issue by reference to the judgment of Denning MR in Sirros. I do not accept that in so doing she adopted a test of judicial immunity which failed to acknowledge the suggested exception upon which the plaintiffs' rely. 24 The claim advanced by the plaintiffs in the SOC relates to the conduct of the judges of the Family Court in the disposition of the Family Court proceedings. The facts pleaded in the SOC relate to things said and done by Chief Justice Nicholson in the course of the conduct of the hearing. No matter is pleaded which gives rise to a tenable claim that the judges (or any one of them) acted knowingly without jurisdiction.

25 There exists a further difficulty with respect to this aspect of the plaintiffs' claim. The plaintiffs seek to make the Commonwealth vicariously liable for the actions of the judges of the Family Court. In Rajski Kirby P observed (at 530): "It is fundamental to our constitutional arrangement that judges (and now magistrates) are completely independent of the executive government, including the Attorney-General. In the statement of claim, it is asserted that the first claimant was 'The judicial officer of the second' claimant. That assertion represents a serious misunderstanding of the relationship between them. … [T]he independence of the judiciary, which is such an abiding feature of our constitutional arrangements, is fundamentally inconsistent with the relationship between the claimants asserted by the opponent in his statement of claim." 26 I consider that the Master was correct in her view that any claim seeking to make the Commonwealth vicariously liable for the conduct of the judges of the Family Court was hopeless. 27 I now turn to that aspect of the SOC which seeks to plead claims against the Commonwealth as being vicariously liable for the tortious conduct of members of the AFP. 28 Section 64B of the Australian Federal Police Act 1979, to which the Master referred, relevantly provides: "(1) The Commonwealth is liable in respect of a tort committed by a member in the performance or purported performance of his duties as such a member in like manner as a person is liable in respect of a tort committed by his employee in the course of his employment, and shall, in respect of such a tort, be treated for all purposes as a joint tort feasor with the member."

It is to be noted that s 4 of the Australian Federal Police Act 1979 provides that, "member" means a member of the Australian Federal Police.

29 The matter proceeded before the Master upon the basis that at the time of entering the family home and taking possession of the child there was a warrant in existence. The evidence before the Master included the order of the Full Court of the Family Court directing the issue of a warrant to possession of the child. It did not include evidence of the warrant. 30 On the hearing of the appeal the first plaintiff contended that no valid warrant was in existence at the time the child was removed from the family home. Mr Robinson informed me during the appeal that the Commonwealth had made such investigations as were open to it (the Commonwealth not being a party to the proceedings in the Family Court) to determine if a warrant had issued. This investigation was undertaken after the conclusion of the hearing before the Master. I was informed by Mr Robinson that the Commonwealth's inquiries had not led to the production (or confirmation of the existence) of a warrant. In Mr Robinson's submission this circumstance had no bearing on the proper determination of this appeal. As he observed, the SOC pleaded the existence of a warrant (SOC [18] and following). 31 In Mr Robinson's submission leave ought not to be given to the plaintiffs to replead that aspect of their claim which relates to the Commonwealth's vicarious liability for the acts of members of the AFP. The only claims pleaded are for damages for nervous shock. The SOC pleads that the first plaintiff was present at the Family Court on 29.9.1998 when members of the AFP took possession of the child and that the first plaintiff received a phone call explaining what had happened to the child while he and the father of the child were in court (SOC [31]). He is said to have suffered shock in consequence of learning of this development. Mr Robinson submits in reliance upon Jaensch v Coffey (1984-85) 155 CLR at 549 that such an injury is not compensable at law.

32 As to the second plaintiff's claim, Mr Robinson drew my attention to Morgan v Tame [2000] NSWCA 121; 49 NSWLR 21 noting that the duty of care is one which requires the taking of reasonable care to avoid psychiatric injury to persons of normal fortitude. In his submission the claim by the second plaintiff if properly pleaded was "minimal" and the proper exercise of discretion was against latitude being extended to her by the grant of leave to replead. 33 It is apparent from the Master's judgment that on the hearing of the motion before her the plaintiffs asserted that they were propounding claims against the Commonwealth for false imprisonment, assault and trespass in addition to their claim for nervous shock. The SOC pleads under the heading "Particulars 3" that the AFP officers wrongfully trespassed upon the family home and that they both falsely imprisoned and assaulted the second plaintiff. In Rajski Kirby P noted at p 524: "[W]here, as in the present case, the pleader is a layman, not legally qualified, courts will normally extend a degree of latitude in the repleading of defective claims which might not so readily be extended where the litigant is legally represented. This approach represents nothing more than the recognition of the difficulties and technicalities of legal pleading, the obstacles which an untrained layman will have in negotiating the technical rules and the undesirability of excluding from consideration in the courts, the claim of persons who are unable or unwilling to retain qualified lawyers and who act on their own behalf: cf Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534 at 536-537." 34 It was the Master's view that the claims in trespass and for false imprisonment and assault were hopeless. She found that, "There are no facts which give rise to any action for assault pleaded". While the SOC did not plead a claim in assault, in [23] of the SOC the plaintiffs recite as a material fact: "One of the AFP officers stormed towards the second plaintiff, pulled out the phone handset from her hands, thrust her and the second plaintiff lost her balance still holding the child in the other hand."

An assault upon the second plaintiff is particularised in the SOC under the hearing "Particulars 3" (1)(d).

35 In concluding that no action in trespass or false imprisonment might lie against officers of the AFP executing a warrant the Master had regard to the judgment of Lord Diplock (delivering the judgment of the majority) in Maharaj v Attorney-General of Trinidad and Tobago (No.2) [1979] AC 385 at 397: "No action in tort would have lain against the police or prison officers who had arrested or detained him since they would have acted in execution of judicial process that was valid on its face." 36 In Maharaj v Attorney-General of Trinidad and Tobago a barrister appearing before the High Court of Trinidad and Tobago was committed to prison for seven days upon the order of the trial judge for contempt of court. That order was subsequently found to have been unlawful. This did not expose the police who arrested and detained the barrister, pursuant to the process duly issued, to liability in an action in tort. 37 I am persuaded that the Master erred in concluding that as a matter of law there could not be a claim brought by the second plaintiff for false imprisonment in circumstances where the members of the AFP were executing valid judicial process. In Trobridge v Hardy (1995) 94 CLR 147 Fullagar J at 152 observed: "The mere interference with the plaintiff's person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights. It was for the defendant to justify, if he could, by reference to his office or otherwise." 38 In Myer Stores Ltd v Soo [1991] 2 VR 597 Murphy J observed at 599: "Even more recently, in this Court, in the case of Carnegie v State of Victoria (unreported, Supreme Court of Victoria, Full Court, 14 September 1989) it was reaffirmed that: The gist of the action of false imprisonment is the mere imprisonment. As a result the plaintiff carries the burden of establishing no more than imprisonment. He need not prove it was unlawful. If imprisonment is proved it is for the defendant if he is to escape liability to prove a lawful justification for the imprisonment either at common law or by statute." 39 The Master proceeded upon the footing that there was in existence a warrant valid on its face. This reflected the way the matter was conducted before her. In the light of Mr Robinson's frank indication as to the results of the Commonwealth's inquiries it may be that the assumption that there was a warrant which was valid on its face is not correct. Be that as it may, it seems to me to put the proposition too broadly to assert, "There cannot be a trespass or false imprisonment where the police are executing valid judicial process" (judgment at [17]). It is necessary to determine the scope of that which is authorised by the warrant. 40 On the hearing of the appeal Mr Robinson accepted that on their face [17] and [18] of the Master's judgment were expressed in terms which are too absolute. Mr Robinson submitted that the proper proposition of law would be in terms, "That if there was a valid warrant and the police complied entirely with it, then they would in effect have a defence to a tort in respect of matters contemplated by the warrant." That seems to me to be a fair concession. 41 By its motion the Commonwealth sought orders staying or dismissing the proceedings generally pursuant to Pt 13 r 5 of the SCR or, alternatively, striking out the SOC as having a tendency to cause prejudice, embarrassment or delay in the proceedings (or being otherwise an abuse of the process of the Court) pursuant to Pt 15 r 26(1) of the SCR. It was not in issue on the hearing of the appeal that the SOC in its present form is defective and susceptible to causing prejudice, embarrassment and delay. The plaintiffs took issue with the Master's refusal to allow them to replead their claim.

42 For the reasons set out above, I am of the view that the plaintiffs have not succeeded in showing that the Master erred in dismissing so much of their claims as contended that the Commonwealth is vicariously liable for the actions of the persons named under "Particulars 1" of the SOC and in respect of the claim propounded against the Commonwealth arising out of the actions of judges of the Family Court. 43 I am persuaded that claims against the Commonwealth arising out of the actions of members of the AFP said to constitute (i) trespass, (ii) false imprisonment (with respect to the second plaintiff) & (iii) assault (with respect to the second plaintiff) and (iv) negligence (with respect to the second plaintiff's claim for psychiatric injury) are not so obviously untenable that they may not possibly succeed.

44 For these reasons I propose to allow the appeal and to grant the plaintiffs leave to replead these claims. 45 Each of the parties has had some measure of success with respect to this appeal. In my view it is appropriate to make no order for costs.

(1) Allow the appeal and set aside the orders made by Master Harrison on 28 June 2001;

(2) Pursuant to Pt 15 r 26(1) of the SCR strike out the plaintiff's amended statement of claim filed on 5 June 2001;

(3) Grant the plaintiffs leave to file a further amended statement of claim within twenty-eight days of today's date limited to their claims arising out of the actions of members of the AFP in trespass and, with respect to the second plaintiff, in false imprisonment, assault and negligence.

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