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Judgment

1. By statement of claim filed in May 2016, Mr Mills, an unrepresented litigant, brought these proceedings against the State, seeking damages of $300,000,000.00 for alleged breach of contract, and in the alternative, negligence. There is no contract there pleaded, but the document does address, in detail, the alleged negligence of the Local Court Magistrate who, in 2005, had firstly dismissed a private criminal prosecution which Mr Mills had brought in the Local Court against a neighbour, for alleged breach of s 4(1) of the Lands Protection Act 1901 (NSW) and later had also made a costs order against him.
2. The State now seeks orders summarily dismissing the proceedings under Rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) and in the alternative, striking out the statement of claim under Rule 14.28.
3. For the following reasons I am satisfied that the proceedings must be dismissed.
4. Rule 13.4(1) provides that: "(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim."
5. Mr Mills' appeal against the Magistrate's decision was dismissed by Harrison AsJ in November 2005 (see Mills v Perras [2005] NSWSC 1184). He was then represented by counsel. In 2011 Mr Mills brought further proceedings against the Crown and two other defendants. He was then unrepresented. McCallum J dismissed those proceedings, concluding that neither Mr Mills' summons nor statement of claim disclosed a reasonable cause of action, his claims being taken at their highest (see Mills v John Perras & Ors [2011] NSWSC 581).
6. Then the claims advanced against the State were for monetary compensation in the amount of $100,000,000 for alleged breach of the Constitution Act 1902 (NSW) and the Supreme Court Act 1970 (NSW). Mr Mills then contended that by operation of those two statutes, the Crown was vicariously liable for the negligence of various public servants, employees and agents who had allegedly failed to adhere to the principles of fairness and justice embodied in the two statutes. Part of Mr Mills' claim was based on the conduct of the Local Court Magistrate who had dismissed his proceedings in 2005.
7. Mr Mills did not appeal either the judgment of Harrison AsJ or that of McCallum J.
8. In these proceedings, Mr Mills also seeks to advance complaints about the Magistrate's decision and his conduct of the proceedings, contending for example, that the decision was incorrect; that his Honour did not apply correct legal precedent; attacking his Honour's reasoning; his failure to accept that the defendant had committed perjury; that his Honour was negligent in the conduct of the proceedings, in various ways outlined in the statement of claim in considerable detail; that he was biased and prejudiced; that he failed to apply the law and applicable precedents; that he failed to properly appreciate the relevant evidence; and that he was incompetent and intoxicated.
9. These matters are not pleaded in compliance with the requirements of the applicable Rules, but even considering them at their highest, it is apparent that they do not disclose a reasonable cause of action.
10. In his extensive written submissions, filed before the State served its submissions, Mr Mills contended that his claims did not relate to a matter of "judicial immunity". That is in issue.
11. Mr Mills there explained his contentions that his case in the Local Court should have been heard by a jury, by reference to the English Charter of Justice of 2 April 1787, which he submitted extended the "Principle of Justice to the Eastern Coast of New South Wales"; that there had been negligence in the Local Court not using jury trials, with the result that the Parliament had breached its duty of care to him; that the Magistrate appointed by administrators at the Local Court to hear his case was an incompetent independent contractor; that justice had not been done in the Local Court; that the jury system was the foundation of justice, going as far back as Magna Carta in the 12th century; that in breach of contract the Crown had failed to protect his interests; that the Limitation Act 1969 (NSW) was irrelevant to his case; that a contract had been brought into existence when he had paid the Court filing fee; that various statutes, cases, biblical references and Roman law supported his claims that he had disposed of his financial funds by payment of a cheque under a receipt issued by the Crown for it to provide him with a service, which had not been carried out satisfactorily; and that any limitation period ran from the time that the Minister for Justice was made aware of his problems and failed to take action to correct the anomaly in the decision made.
12. In his oral submissions Mr Mills further explained why he contended that payment of his filing fee in the Local Court had given rise to a contract; why there should have been a jury trial; and why the proceedings had not been valid.
13. In his oral submissions, Mr Mills also advanced submissions as to his understanding of the involvement of other bodies, the identity of which he was not aware, but which he thought might either be the Law Reform Commission or the Judicial Commission, in the appointment of judicial officers and the consequences of such involvement. It was difficult to follow all of these submissions. They related to matters about which no evidence was led and which do not appear to be raised by the statement of claim.
14. Initially Mr Mills' explained that the point he was seeking to make rested on a belief that the Crown delegates responsibilities to a legal commission which appoints judges, looks after their education and promotes them through the legal system. When it was pointed out to him that appointment of judges was a matter for Government, not any commission, he outlined his understanding of an appointment process which involved advertising for positions; determination by a commission as to applicants' suitability for appointment; the Government then through the Governor appointing persons to a positions, which, he submitted involved the Crown delegating the duty of looking for a judicial officer to a commission, which then passed "the responsibility of administering the law to a junior judicial officer to perform that duty in the Court', which he considered to involve an invalid delegation.
15. In response to my question, Mr Mills clarified that his submissions were not directed particularly to the Magistrate who had heard his case. Nevertheless, he contended that "When my case was presented to the bloke at Burwood Court the Crown failed in its duty of care to have a jury presented to that court to hear the facts" and that the filing fee he had paid was "presumably to render a service. The services wasn't rendered by the Crown, it was rendered by a third party who is the judicial officer coming through from the delegation of the commission, which submitted that particular delegate to the Crown".
16. These submissions reveal a profound misunderstanding of the role of the judiciary in our system of government on the one hand and that of Government in the appointment of persons as members of the judiciary on the other. It is not necessary to deal with these matters at length, however, given what is and what is not raised by Mr Mills statement of claim. One matter certainly not raised is any defect in the appointment of the Magistrate who heard Mr Mills' case in 2005.
17. Hammond v State of New South Wales [2015] NSWCA 304 was concerned with an appeal from the summary dismissal of a claim brought in negligence against the Crown, based on the proposition that the Crown was vicariously liable for the acts of judicial officers who had decided matters adversely to the Hammonds in various proceedings in which they were parties (see at [3]).
18. There it was held that "the power of judicial officers to preside over legal proceedings and make decisions in the course of the administration of justice is for the benefit of the public generally" (at [27]); that there was no arguable tortious conduct by the judicial officers identified in the statement of claim (at [28]); that the Hammonds were seeking to re-litigate matters that had already been determined adversely to them and that proceedings before a court should be stayed where "their continuance would be unjustifiably vexatious and oppressive for the reason that it seeks to litigate a new case that has already been disposed of in earlier proceedings" (at [29] see also Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 at 393).
19. The claims pursued in Mr Mills' statement of claim raise similar complaints.
20. In Stankovic v State of New South Wales [2016] NSWCA 168, a claim was also brought in negligence in respect of a judge's conduct of proceedings. There it was held that "as a matter of law, neither the Court nor individual judicial officers can be liable in negligence for the exercise of judicial functions" (at [5]).
21. As discussed in Great Lakes Shire Council v Dederer & Anor; Roads & Traffic Authority of NSW v Dederer & Anor [2006] NSWCA 101, under our legal system the independent judiciary, (of which Local Court magistrates are members), is the third arm of government. The reason for its existence is to maintain the rule of law, including, at times, "as a bastion between the executive and the people" (see at [276]). The judiciary does not exist to provide the "service of justice" to litigants. Rather, in doing justice in the proceedings parties bring before it, members of the judiciary to fulfil the purpose for its existence, namely, the maintenance of the rule of law for the benefit of all members of society, not merely the parties to the proceedings in the particular case.
22. Thus, as Gleeson CJ discussed in Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 at [39]: "… the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions."
23. It is as the result of steps taken by the Parliament, which brought the relevant statutory schemes, regulations and rules into being, that litigants, like Mr Mills, who wish to exercise their right to bring other parties before a court to respond to their claims, must either pay the applicable filing fee, or obtain a waiver of such a fee. Those steps enable parties to commence their proceedings, but payment of the prescribed fee is not a payment for any "service" thereafter provided by the court, or a judicial officer or officers, to the litigants in the proceedings, as Mr Mills contended. Nor does such a payment bring into existence any contract between a litigant and either the State to whom the fee is paid, or the courts.
24. Mr Mills was legally represented in the criminal proceedings which he brought privately under the Inclosed Lands Protection Act (1901) (NSW). In accordance with s 8 of the Local Court Act 2007 (NSW), his case was heard and determined by a Magistrate, who constituted the Court. Under s 23 it was the Chief Magistrate who was responsible for ensuring the orderly and expeditious discharge of the business of the Court and who was empowered to give directions as to the Magistrate who was to exercise the Court's jurisdiction in Mr Mills' matter.
25. The penalty for an offence under s 4 of the Inclosed Lands Protection Act was 5 penalty units, 10 in the case of prescribed lands. They were summary proceedings under s 6 of the Criminal Procedure Act 1986 (NSW), as discussed in Baker v New South Wales Police [2013] NSWSC 57. As there observed at [20] there is no right to trial by jury in the Local Court. An application for leave to appeal that decision was dismissed in Baker v Attorney General for New South Wales [2013] NSWCA 329, where it was held at [11]: "As the primary judge explained, the charges were properly dealt with as summary offences pursuant to the Criminal Procedure Act 1986 (NSW), s 6(1)(c). They were to be dealt with in the Local Court: Criminal Procedure Act, s 7(1). The Local Court was properly constituted by a magistrate to hear and determine such proceedings: Local Court Act 2007 (NSW), s 8. Accordingly, the applicant had no right to a trial by jury. (It is not necessary to explore the fallacious proposition that he had a right to trial by jury under the Imperial Acts upon which he sought to rely.)"
26. Even if a trial for an alleged offence under the Inclosed Lands Protection Act could have been conducted before a jury, there is no suggestion that one was ever sought.
27. The State was not a party to those proceedings. The basis on which it might be thought to have a statutory power or duty to ensure that a jury trial was conducted in Mr Mills' case is not apparent, notwithstanding the matters on which he relied. Even if there was such a power, like in the circumstances discussed in Hammond v The State of New South Wales [2013] NSWSC 1930 at [56], there would be overwhelming policy reasons for denying the existence of a duty of care to a person such as Mr Mills, to ensure that a jury was appointed in such a case.
28. To impose such a duty where a litigant pursues a private prosecution under the Inclosed Lands Protection Act, to which the State is not even a party, would clearly facilitate dissatisfied litigants bringing actions against the State for damages, simply because they are aggrieved by decisions made in such criminal proceedings, that they have failed to make out their cases on the evidence which they led. Such a conclusion would be directly contrary to the public interest in maintaining the independence of the judiciary, discussed in Fingleton.
29. The orders made against Mr Mills in the Local Court were final, unless overturned on appeal. The grounds of appeal which he then advanced were that the evidence was not capable of supporting a finding that the defendant had a lawful excuse within the meaning of s 4(1) of the Inclosed Lands Protection Act for entering into Mr Mill's property and that his Honour had not given adequate reasons for his finding that the defendant had a lawful excuse for such entry.
30. That appeal was the opportunity given Mr Mills under the Local Court Act, to advance complaints which he had about the conduct of the trial, s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) giving him an appeal to this Court against dismissal of his summary proceedings. Having unsuccessfully pursued his appeal on grounds which he then selected, it is not open to him many years later, in these proceedings, to raise further grounds on which to attack the decision reached in the Local Court, which he could have raised in 2005.
31. Mr Mills' appeal having failed and he not having appealed Harrison AsJ's decision, as he could have done, the result is that the orders made in the Local Court bind him. He is not entitled, by bringing other proceedings such as those which he now seeks to pursue, to call into question the results of that litigation, given the principle of finality discussed in D'Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34] - [36]. That principle precludes controversies, once resolved, being reopened except in limited circumstances, the principle one of which is an appeal. Mr Mills has exhausted his rights in that regard.
32. In 2011, McCallum J summarily dismissed Mr Mills' claims as to alleged negligence on the part of the Magistrate as disclosing no reasonable cause of action. Her Honour held at [28] that such a claim has no basis in law, judicial officers not being liable in negligence for the exercise of their judicial functions and the State not being vicariously liable for such alleged negligence. Mr Mills also cannot relitigate these issues, having not appealed her Honour's judgment.
33. It must be accepted, accordingly, as the State contended, that this application is yet a further attempt to re-litigate and re-agitate issues which have already been adversely decided against Mr Mills in the earlier proceedings. Their pursuit is an abuse of process, which cannot be permitted to be pursued further.
34. Individual judicial officers like the Magistrate cannot be liable in negligence for the exercise of judicial functions, nor can the State be vicariously liable for their acts, nor does Mr Mills have any contractual basis for the claims he seeks to pursue. Mr Mills has no cause of action to which any provision made in the Limitation Act can attach and so it is unnecessary to address the submissions which he advanced as to its provisions.
35. In the result, the proceedings must be dismissed, notwithstanding the limited circumstances in which such orders will be made by the Court (see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69). This is an appropriate case for the exceptional exercise of that power, given that Mr Mills' case is plainly hopeless. In the circumstances I have discussed it must be concluded that Mr Mills has no reasonable cause of action; these proceedings are frivolous and vexatious; and that their initiation and pursuit involve an abuse of the process of the Court