Racial Discrimination Act 1975 (C'th), s.9

Judicial Officers Act 1986 (NSW), s.44B

Federal Magistrates Court Rules 2001, r 13.10

Inclosed Lands Protection Act 1901 (NSW), s.4

Crimes (Sentencing Procedures) Act 1999 (NSW), s.11

Administrative Decisions Judicial Review Act 1977 (C'th)

Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573

Travers v New South Wales [2000] FCA 1565

Ho v Regulator Australia Pty Ltd [2004] FMCA 62

Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721

Foodco Group Pty Ltd & Nelson v Northgan Pty Ltd & Macrae (1998) 83 FCR 356

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

McKellar & Anor v Container Terminal Management Services Ltd and Others [1999] FCA 1101; (1999) 165 ALR 409

Sandcourt v Mercantile Credits Ltd [1983] HCA 25; (1963) 154 CLR 87

Ogle v Strickland (1986) 11 FCR 462

Orison Pty Ltd v Strategic Minerals Corp N/L (1988) 81 ALR 183

Webster v Lampard (1993) 177 ALR 598

Chung v University of Sydney [2001] FMCA 94

Vintila v Federal Attorney-General [2001] FMCA 110

Barnes v Northern Land Council and Ors [2002] FMCA 54

Firew v Busways Trust (No 2) [2003] FMCA 317

Drury v Andreco-Hurll Refractory Services Pty Ltd [2004] FMCA 398

Gallo v Dawson (1988) 82 ALR 401

Rajski v Powell (1987) 11 NSWLR 522

Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458

Gallo v Dawson [1992] HCA 44; (1992) 66 ALJR 859

Wentworth v Wentworth & Ors [2000] NSWCA 350; (2001) 52 NSWLR 602

Najjar v Haines (1991) 25 NSWLR 224

Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354

Fingleton v R [2005] HCA 34

Yeldham v Rajski (1989) 18 NSWLR 48

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

P v P (1994) 181 CLR 582

Nakhla v McCarthy [1978] 1 NZLR 291

Paramasivam v Randwick City Council [2005] FCA 369

Paramasivam v Randwick City Council (No 2) [2005] FCA 508

(1)

The application filed on 30 June 2005 be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001.

O'SHANE & ATTORNEY-GENERAL OF NEW SOUTH WALES & STATE OF NEW SOUTH WALES

By application filed on 12 August 2005 the respondents seek an order that the proceedings commenced by the applicant by application filed in the Federal Court on 30 June 2005 and transferred to this Court be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001.

The background to these proceedings is that on 2 February 2005 the applicant lodged a complaint with the Human Rights and Equal Opportunity Commission (the Commission) pursuant to s.46P of the Human Rights and Equal Opportunity Commission Act 1986 (C'th) (the HREOC Act). The applicant alleged racial discrimination on the part of Ms O'Shane, a Magistrate of the New South Wales Local Court (the Magistrate) and Downing Centre Local Court under the terms of the Racial Discrimination Act 1975 (C'th) (the RDA). The Commission responded to this letter. The applicant also wrote to the Commission on 11, 15 and 17 March 2005. A delegate of the Commission decided to accept the applicant's correspondence as a complaint on 13 April 2005. The applicant provided further information in support of her claims by letters of 30 April 2005 and 2, 5, 11 and 14 May 2005. The Commission considered the complaint as a complaint against Magistrate O'Shane and Downing Centre Local Court.

By notice of termination dated 22 June 2005 the applicant's complaint of racial discrimination was terminated by a delegate of the President of the Commission pursuant to s.46PH(1)(a) of the HREOC Act on the ground that the delegate was satisfied that the unlawful discrimination alleged was not unlawful discrimination.

The reasons for the decision summarised the complaint of racial discrimination as follows:

"In an email letter dated 2 February 2005, you claim that during a hearing concerning a trespass charge against you by the University of New South Wales at Downing Centre Local Court ('the Court') on 28 January 2005, you were denied due process by Magistrate O'Shane and the Court because of your Sri Lankan ethnic origin. In particular, you claim that:

• You were prevented from asking questions on the statements made by the witnesses,

• The Magistrate did not consider the proof that you provided to the Court and

• You were not allowed to read your statements and also question the Vice Chancellor of the UNSW."

The Commission was of the view that the issues pertaining to the Magistrate's conduct as described in the applicant's complaint and subsequent letters were essentially related to the performance of her functions as a judicial officer of the Court and that such acts were covered by the statutory provision of judicial immunity pursuant to s.44B of the Judicial Officers Act 1986 (NSW). The reasons for decision also noted that the information provided by the applicant did not disclose any causal link, apart from the applicant's belief and or assertion, to establish that the applicant was treated less favourably by the Magistrate and/or the Court because of her Sri Lankan ethnic origin (although the delegate stated that she was not required to consider this issue as she had decided to terminate the complaint under s.46PH(1)(a) of the HREOC Act).

On 30 June 2005 the applicant commenced proceedings in the Federal Court under the HREOC Act with respect to a complaint of race discrimination. The respondents to these proceedings were Magistrate O'Shane and Downing Centre Local Court. On 19 July 2005 Stone J transferred the proceedings to this Court. On 12 August 2005 the respondents filed an application seeking various orders, including that the proceedings be dismissed generally pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 and costs.

On 15 August 2005 Federal Magistrate Raphael removed the Downing Centre Local Court as a respondent, added the State of New South Wales and the Attorney-General for New South Wales as respondents, noted Ms O'Shane's submitting appearance and fixed a date for the hearing before me of the summary dismissal application.

Summary dismissal is sought on the basis that judicial immunity operates to protect the Magistrate from the legal redress sought by the applicant on the ground of an alleged unlawful discrimination.

The material and evidence relied on in support of the respondents' application for summary dismissal consists of the application filed by the applicant in the Federal Court on 30 June 2005; an affidavit of the applicant sworn 29 June 2005, the Notice of Termination (with attachments A and B) issued by the Commission on 22 June 2005 and an affidavit of Robin Bhalla (the solicitor with carriage of the matter for the respondents) sworn 4 October 2005. The respondents also filed an outline of written submissions on 28 September 2005.

In addition to her application and affidavit sworn 29 June 2005, the applicant has filed and relies on a Federal Court Form 167 application alleging unlawful discrimination, an affidavit sworn by her on 18 October 2005 and a response to the respondents' written submissions filed on 18 October 2005.

The applicant's complaint concerned proceedings before the Local Court which related to two charges that the applicant had breached s.4(1)(a) of the Inclosed Lands Protection Act 1901 (NSW) on 22 and 29 October 2004 in that she did, without lawful excuse, enter into and remain upon the inclosed lands of the University of New South Wales.

The matter was first before the Local Court at Waverley in November 2004 and again in December 2004. It was adjourned to the Downing Centre Local Court and then listed for hearing before Magistrate O'Shane on 28 January 2005. It is apparent from the extract from the Local Court file annexed to the affidavit of Robin Bhalla that the applicant pleaded not guilty. The Local Court case enquiry records state that on 28 January 2005 the matter was adjourned part-heard to 29 April 2005 for sentence. A notice of continuance of bail records that the court ordered that bail be continued but that the conditions of the bail were varied to require the applicant to be under the supervision of the probate and parole service and to undertake a comprehensive psychological assessment (in addition to being subject to existing requirements). It appears that on 29 April 2005 the proceedings were adjourned to 28 April 2006 and the applicant was placed on 'remand' under s.11 of the Crimes (Sentencing Procedures) Act 1999 (NSW) which allows the court to defer sentencing a person found guilty of an offence for a period not exceeding 12 months for specified 'rehabilitation, intervention or other purposes.'

The applicant lodged her complaint with the Commission in an email letter dated 2 February 2005. It is expressed to relate to the hearing of 'trespass charges' on 28 January 2005. The applicant alleged that in the proceedings before the Magistrate at the Downing Centre Local Court on 28 January 2005 she was denied 'due process' by the Downing Centre Local Court in that:

I was not allowed to prove in Court that I had lawful excuse to enter the University of New South Wales, on these two occasions;

1. I was prevented from asking questions on the statements made by the witnesses - even though the Magistrate and the Police Prosecutor asked those questions and went into detailed demonstration of what happened when the Police dragged me out. For example, the Police Prosecutor was trying to establish that I had resisted arrest and questioned the two UNSW witnesses present on the scene, at length towards establishing this and towards establishing that I had acted violently. Towards this they used the 22 October 2004 arrest - during which I was dragged out by officers who did not even ask me why I was there. Later during cross examination when I referred to the same scene, the Magistrate ruled me out.

2. The Magistrate did not take into consideration that I had established that the Chancellor as the Head of Council was the person apparently in charge of the UNSW. The Magistrate asked for proof, but when I gave the proof - the Magistrate did not even look at it.

3. I was not allowed to read out my statement or even make my statement as others were allowed to. Instead the Magistrate led me through her questions and even during that session, stopped me from giving the responses of my own free will. The Magistrate was cutting me short and said that it would be much faster 'her way'.

4. I was not allowed to ask questions of the Vice Chancellor on the basis of the letter he had given, but the Magistrate herself gave asked the Vice Chancellor questions on the basis of that letter.

5. The Magistrate asked me to remain standing as I walked back to the bar table from the witness box, indicating that the Magistrate had NOT considered the information I had given in arriving at her decision.

6. The Magistrate read out that I was guilty of both charges - entering without lawful excuse and remaining on the premises after being asked by the person apparently in charge to leave. The Magistrate said that I had to leave when asked by ANY UNSW staff.

7. The Magistrate read out that the penalty was about $1,000 for prescribed premises - which I had established UNSW was NOT. Then the Magistrate said that I had to pay a fine of about $500. I said I refused to pay the fine and then the Magistrate said that I had to undertake a psychiatric assessment.

When I said that one was already done by Prince of Wales hospital, at the request of Magistrate Gilmour of Waverley Local Court, the Magistrate said that I had to undertake a Clinical Psychology assessment. When I said I could not afford that, the Magistrate said that I was to contact Probation and Parole Services. I was given this before 'order' before I left the courtroom.

8. I did see the Probation and Parole Officer on Monday, 31 January 2005. It was the birthday of my uncle who was killed by the Japanese when he was caught as a spy for the British and the Americans. In the past, I have had some kind of physical ailment attacking me on that day. This had stopped for a while - but on Monday, I felt it was happening again - when I went through the Probation and Parole Counselling services.

The Officer was doing his duty and was probing my personal life on the basis of the Court Order. What I reveal of my own free will is up to me. But when someone in authority extracts it from me, it is in breach of my Basic Human Right to privacy.

The applicant elaborated on her concern about her treatment by the University (for which she had once worked). She sought to add the Downing Centre Local Court as a party to earlier complaints that she had made to the Commission about the NSW Police and UNSW. She claimed that after the Magistrate had found her guilty she had read out in Court a letter the applicant had written to a Registrar of the Local Court and to the Public Prosecutor. She also complained that the Magistrate had varied her bail conditions. The applicant contended that she believed the events complained of had happened "because of [her] ethnic origins - about which the Magistrate knew from that letter to the Registrar as well as later when I questioned the Police Officer regarding the description that I am of Sri Lankan Nationality". She also suggested there was some confusion as to whether or not she had been found guilty or whether the matter was only part heard on 28 January 2005.

The applicant attached to her letter of 2 February 2005 copies of letters she had written to various people, including the Vice Chancellor of UNSW, members of the UNSW Governing Council, the NSW Attorney-General and the Federal Attorney-General regarding the hearing of the trespass charges in which she further explained that she believed she had been denied 'due process' and complained about the conduct of the hearing on 28 January 2005 (as well as addressing other matters relating to the particular recipient).

The applicant's subsequent letter to the Commission of 11 March 2005 was headed 'Race Discrimination Complaint against the Magistrate at Downing Centre Local Court'. It attached a copy of the email of 2 February 2005 which had been sent to the Commission officer dealing with other complaints. It also addressed proceedings in the Federal Court. The letter of 15 March 2005 bore the same heading. In relation to the complaint in issue it stated:

The Magistrate against whom I have complained has combined forces with the UNSW officers. The Magistrate seeks to 'impress' by putting me down and that she failed to apply due process at the basic level.

The applicant claimed that the Magistrate of the Downing Centre Local Court did not allow her the enjoyment of her position in court and that the evidence as to whether she was given the same opportunity as any other defendant was in the transcript and the Rules of Court. She suggested that the Commission should seek confirmation from the administration of the Local Court about "what happened on that day."

Finally, in her letter of 17 March 2005, the applicant advised the Commission that she had been advised by the Probation and Parole Service that she had not yet been found guilty and that they were therefore not sure whether it was appropriate for them to supervise her. The applicant stated that it was obvious to her that "the Magistrate did not think I was important enough to follow Due Process which would have enabled all parties to get the same message from the records."

It is apparent from a consideration of this correspondence that the applicant's complaint was concerned with the way she was allegedly treated during the course of proceedings on 28 January 2005 before Magistrate O'Shane. It was so considered by the Commission. The applicant raised no separate or distinct allegations of race discrimination against the 'Local Court' or the State of New South Wales.

Under s.46PO(3) of the HREOC Act the unlawful discrimination alleged in an application to the Court must be "the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint" or "must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint".

As a preliminary point, it was contended for the respondents that as the complaint was lodged on 2 February 2005, events which post-dated 2 February 2005 did not form part of the matters before the Court for determination (see Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573 at [37] - [45]). However an applicant may, in the course of bringing a matter before the Commission, elaborate on an initial complaint in subsequent correspondence. The scope of the proceedings before the Court will be determined by a consideration of the complaint as terminated by the Commission, including any amendments which may have been made to the complaint while the matter was before the Commission, rather than the original terms of the complaint to HREOC (see Travers v New South Wales [2000] FCA 1565 at [8] per Lehane J; Ho v Regulator Australia Pty Ltd [2004] FMCA 62 at [4] per Driver FM; Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721at [10] per Driver FM and see s.46PA of the HREOC Act which permits amendment of a complaint).

In this instance, as the summary of complaint in the reasons attached to the notice of termination indicates, as well as the letter of 2 February 2005, the applicant wrote to the Commission on 11, 15 and 17 March 2005 to provide further information in support of her claims. The Commission then decided to accept the applicant's correspondence as a complaint on 13 April 2005. Relevantly these letters addressed the conduct of the hearing and what occurred in court on 28 January 2005. This was the complaint dealt with in the Commission decision of 22 June 2005. Insofar as the applicant raised other matters with the Commission they do not form part of the complaint as terminated by the Commission. The letters of 30 April 2005, 2, 5, 11 and 14 May 2005 provide some background about the applicant's circumstances and address her ongoing and broader concerns.

I am satisfied on the material before the Court that the acts, omissions or practices that were the subject of the terminated complaint of unlawful discrimination are those which are said to have occurred during the hearing on 28 January 2005. In this particular case matters arising out of or being events after 2 February 2005 were not the subject of the complaint as terminated by the Commission and are not the subject of these proceedings. That this is the scope of the applicant's complaint, the subject of the decision of the Commission and of the application to this Court is consistent with the Form 5 and Form 167 applications filed in the Federal Court by the applicant on 30 June 2005 and her supporting affidavit sworn on 29 June 2005 and filed on 30 June 2005. Her claims of unlawful discrimination address the conduct of the Magistrate and, in that sense, Downing Centre Local Court. In Form 167 she described the discrimination she complained of as being that she was "denied the facility to due process of the Court which I believe was due to my race and ethnic origins". In her supporting affidavit she explained that she believed "that Magistrate Pat O'Shane is part of the administration of the Downing Centre Local Court, discriminated against me and unlawfully imposed bail conditions to damage my reputation as a sane and law abiding citizen". In other words, the substance of her complaint of unlawful discrimination relates to the characterisation of the conduct of the Magistrate.

Insofar as the applicant now seeks to raise matters such as "negligence of the Attorney-General and the government of New South Wales" these are not matters which are or can be the subject of the application presently before this the Court. Under s.46PO of the HREOC Act the application to this Court must allege unlawful discrimination by one or more of the respondents to the terminated complaint. The only respondents to the terminated complaint were the Magistrate and the Downing Centre Local Court. It has not been suggested that the Downing Centre Local Court is a legal entity. It is no longer a respondent to these proceedings. The fact that the Attorney-General and the State of New South Wales were added as respondents to the proceedings does not mean that the scope of the application to the Court has been or can be expanded.

The power of the Court to dismiss an application summarily

The respondents seek that the applicant's application be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 as disclosing no reasonable cause of action on the basis that the complaint against the Magistrate in relation to the conduct of the proceedings in the Local Court is not justiciable because of the operation of the principle of judicial immunity.

It is a well-settled principle that the power to order summary dismissal should be exercised with exceptional caution (Foodco Group Pty Ltd & Nelson v Northgan Pty Ltd & Macrae (1998) 83 FCR 356) and should never be exercised unless it is clear that there is no real question to be tried (see General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129 - 130). The absence of a cause of action must be clearly demonstrated (General Steel per Barwick CJ at 129 - 130 and McKellar & Anor v Container Terminal Management Services Ltd and Others [1999] FCA 1101; (1999) 165 ALR 409 at 415 - 417 per Weinberg J). A claim for relief will be summarily dismissed as disclosing no reasonable cause of action only "where it is so obviously untenable that it cannot possibly succeed" (see the discussion by Barwick CJ in General Steel at 129 as to the ways in which the applicable test has been expressed and also see Sandcourt v Mercantile Credits Ltd [1983] HCA 25; (1963) 154 CLR 87 at 99). Argument, even of an extensive kind, may be necessary to determine whether the case has the degree of untenability required (see General Steel, Ogle v Strickland (1986) 11 FCR 462 and Orison Pty Ltd v Strategic Minerals Corp N/L (1988) 81 ALR 183). The High Court in Webster v Lampard (1993) 177 ALR 598 at 602 per Mason CJ, Deane and Dawson JJ made it clear that the question that the Court must decide under a provision such as Rule 13.10(a) of the Federal Magistrates Court Rules 2001 is not whether the applicant would probably succeed in his or her action, but whether the material now before the Court is such that the action should not be permitted to go to trial in the ordinary way because it is apparent it must fail.

The principles applicable to summary dismissal have been discussed and applied by this Court in a number of cases arising in the context of an allegation of unlawful discrimination by one or more of the respondents to a terminated complaint. (See Chung v University of Sydney [2001] FMCA 94, Vintila v Federal Attorney-General [2001] FMCA 110, Barnes v Northern Land Council and Ors [2002] FMCA 54, Firew v Busways Trust (No 2) [2003] FMCA 317 and Drury v Andreco-Hurll Refractory Services Pty Ltd [2004] FMCA 398). I have borne in mind that, as suggested by Driver FM in Barnes at [30], great caution needs to be taken in respect of an application for summary dismissal against a self-represented litigant and that the Court should satisfy itself that there is no arguable case to be put forward by the applicant before acceding to an application to dismiss the proceedings summarily. (See Barnes at [38]). The Court may take into account not only the material put forward by the applicant but also the decision of the President of the Human Rights and Equal Opportunity Commission and the reasons for the decision to terminate the applicant's complaint.

The respondents do not concede or accept that the applicant's allegations are correct, or that, even if they are correct, the Magistrate's conduct occurred because of the applicant's race. However summary dismissal is sought not on the basis that there is no evidentiary foundation for a claim that the Magistrate discriminated against the applicant on the basis of her race, but rather on the basis that, taking the applicant's contentions about what occurred in the hearing on 28 January 2005 at their highest, the doctrine of judicial immunity operates to protect the Magistrate from the legal redress sought by the applicant on the ground of an alleged unlawful discrimination. Hence it is said that the applicant's case is "so clearly untenable that it cannot possibly succeed" (General Steel per Barwick CJ at 130). The submissions do not address the applicant's prospects of success on any appeal from the decision of the Local Court. That is not a matter for this Court.

Counsel for the respondents relied on a number of authorities in relation to the doctrine of judicial immunity. As explained by Lord Denning MR in Sirros v Moore (1975) 1 QB 118 at 132, it has long been accepted:

... 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 actuated by envy, hatred and malice, and/or uncharitableness, he is not liable to an action.

A party aggrieved in such circumstances may have a remedy in an appeal. However the judicial officer is not liable to be sued in respect of acts done in the performance of his judicial duties. In Sirros v Moore an application seeking damages against a Justice of the High Court was summarily dismissed. The Court considered that the actions of the judge in dealing with cases in which the applicant had been involved were undertaken in the performance of his judicial duties. It was suggested that the judge lacked jurisdiction to perform the acts alleged against him. As Wilson J pointed out in Gallo v Dawson (1988) 82 ALR 401 at 402, 'jurisdiction' in this context means "the broad and general authority conferred upon a court to hear and determine a matter. It is authority to decide that is the test, not the mode of decision nor the manner in which the power has been exercised: see Nakhla v McCarthy [1978] 1 NZLR 291 at 301".

31.

Gallo v Dawson involved an application for summary dismissal of an action seeking damages from a justice of the High Court in consequence of alleged bias in cases in which the applicant had been involved. Wilson J accepted (at 402) that it was a fundamental principle of law of long-standing that a judge of a superior court was not liable to be sued in respect of acts done in the performance of his judicial duties. (Also see Rajski v Powell (1987) 11 NSWLR 522). Hence the action was incurably defective. It could not possibly succeed and was dismissed.

In Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 McHugh J refused to extend the time for appeal from this decision and stated that the order made by Wilson J, based as it was on principles of judicial immunity almost 400 years old, was unquestionably correct. In Gallo v Dawson [1992] HCA 44; (1992) 66 ALJR 859 an appeal against the decision of McHugh J was dismissed. Mason CJ, Brennan, Deane, Toohey and Gaudron JJ agreed that Wilson J was correct in concluding that the appellant's case must fail by reason of the long-established principle of judicial immunity "applying to acts done by a judge in the course of the performance of judicial duties" (at 859).

In Wentworth v Wentworth and Others [2000] NSWCA 350; [2001] 52 NSWLR 602 Fitzgerald JA stated at [58] that:

If judicial immunity is afforded to a judge in respect of his or her exercise of the Court's power and jurisdiction, there is no rational justification for denying the same immunity to a Master or a Registrar when he or she performs judicial functions in the exercise of the Court's jurisdiction and powers. The rationale behind the doctrine of judicial immunity is equally applicable to Judges and Court Officers: (See 4 Halsbury's Laws of England, vol 1, para 206; Najjar v Haines (1991) 25 NSWLR 224, 249 (Clarke JA.) It is the nature of the function being performed and the connection of that function with the judicial process which determines whether or not immunity attaches.

Fitzgerald JA held that the same immunity applied to a court officer taxing costs in proceedings in the Supreme Court pursuant to a court order as applied to Judges and Masters of the Supreme Court. His Honour also referred to the scope of the doctrine of judicial immunity as considered by the High Court in Re East and Others Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 which is discussed further below (See Wentworth v Wentworth at [18] - [23]). Heydon J held that the conduct of a taxing officer did not fall outside the immunity traditionally afforded a non-superior court judge as he had not acted in excess of jurisdiction. (See in particular [183] - [195]). Hence it was not necessary for his Honour to determine whether the taxing officer's immunity corresponded with that of judges in superior courts. Davies AJA agreed with Heydon JA and held that taxing officers were entitled to the benefit of the common law immunity that attached to judicial officers. (Also see Fingleton v R [2005] HCA 34 at [34] - [41] per Gleeson CJ. That case turned on the operation of statutory provisions relating to judicial immunity of Queensland Magistrates but in the course of his judgment Gleeson CJ discussed the policy of the common law immunity from civil liability for the protection of judicial independence in the public interest). In this case there is no suggestion that the Magistrate was acting outside the jurisdiction conferred on her as a magistrate of the Local Court of New South Wales to hear and determine charges under the Inclosed Lands Act.

The question of what conduct is undertaken in the performance of judicial duties was considered by the Court of Appeal in Yeldham v Rajski (1989) 18 NSWLR 48. That case involved proceedings against a judge of the Supreme Court charging him with contempt of court. The judge sought an order that the proceedings be dismissed on the ground (inter alia) that no reasonable cause of action was disclosed. The opponent had taken issue with the judge's refusal to authorise the prosecution of a person for perjury and his remarks concerning the opponent in the course of refusing that application. These events had occurred in open court after an oral hearing. It was acknowledged (at 51 per Kirby P) that it was necessary for the purposes of such a motion that the Court approach the facts stated by the opponent on the basis that he or she could, at a trial, prove each and every one of such facts. It was also recognised that there was authority that a judge of the Supreme Court was immune from civil liability for acts done in the exercise of his judicial function or capacity (see Rajski v Powell (1987) 11 NSWLR 522). Relevantly for present purposes, it was contended by the opponent in Yeldham v Rajski that judicial immunity did not apply to the particular acts complained of because they were not performed in the exercise of the judge's judicial function or capacity. It was contended that they were "purely ministerial or administrative" and that, so classified, in the absence of express legislative immunity, they did not attract the immunity conferred on judges in respect of their judicial functions. A similar contention is made by the applicant in this case.

In Yeldham v Rajski the New South Wales Court of Appeal held that the actions in question attracted judicial immunity on the basis that, while a decision to refuse leave to prosecute a witness for perjury was an administrative or ministerial one, for the purposes of the law of judicial immunity, having regard to the nature of the proceedings for leave to prosecute and the powers exercisable, such decision was one so intimately or immediately associated with the judicial function as to attract the same immunity from suit as extended to acts or statements of judges in the course of exercising their judicial functions.

Kirby P acknowledged that a judge 'like any other citizen' is liable for a breach of the criminal law or a civil wrong where the acts or omissions occurred otherwise than in the performance of the judge's judicial functions (at 58). His Honour also referred to the public policy interest in protecting the integrity of the administration of justice and emphasised the need to have regard to the nature of the act complained of and the expectation of the parties. It was noted that it was not in dispute that the giving of leave was ministerial in character but also that it was a function long-performed by judges. Kirby P held that the post-trial exercise of the power to give leave was so intimately connected with the trial functions as to attract the same immunity that protected the judge in respect of judicial acts during the trial (at 62). Hope AJA, with whom Priestley JA agreed, considered that the exercise of jurisdiction in question, whatever its technical nature, was ancillary to the proceedings. Hope AJA pointed out that it was only necessary for the purposes of the case to consider the position of judges of superior courts, although he would have thought that the same conclusion should be reached in relation to the exercise of such powers by judges of inferior courts and by magistrates (at 73).

The applicant contended generally that the conduct complained of was part of the administrative aspect of a judicial officer's functions. However her complaints clearly relate to the conduct of the hearing and the exercise of judicial functions. The applicant feels aggrieved by what was said and done by the Magistrate in the course of proceedings on 28 January 2005 in which charges against the applicant were heard. The actions complained of are said to have occurred during the hearing, in the course of addressing a possible penalty and in setting bail conditions. The applicant complained that she was prevented from asking questions in the hearing, that the Magistrate did not take certain matters into consideration, that the applicant was not allowed to read out her statement, that she was not allowed to ask certain questions of the Vice Chancellor of UNSW and that the Magistrate asked her to remain standing at the bar table. She also complained that the Magistrate read out that she was guilty and discussed the penalty and ordered a psychological assessment and that the applicant was to contact the Probation and Parole Service. The alleged conduct during the hearing involved the exercise of the Magistrate's judicial function. There is no transcript of the Local Court hearing before this Court but it is not disputed that the Magistrate had the power to impose a penalty and to set bail conditions. Having regard to the nature of these functions and their connection with the judicial process, judicial immunity would be afforded in relation to the exercise of such powers. Insofar as the complaints relate to the manner in which the Magistrate is said to have dealt with matters after she found the offences proved, such as setting bail conditions or, as was alleged, referring to a Police facts sheet which was said to describe the applicant as of Sri Lankan nationality, the nature of the conduct complained of is nonetheless central to the exercise of the Magistrate's judicial function. Whatever the technical nature of the exercise of jurisdiction in question, it was ancillary to the proceedings and intimately connected with the trial function as considered in Yeldham v Rajski.

The conduct in question is, however, the conduct of a state magistrate and not of a superior judge. In Yeldham v Rajski Hope AJA suggested, but did not decide, that the principles of judicial immunity applicable to superior court judges should apply in relation to the exercise of powers by magistrates. However, judicial immunity of a state magistrate in relation to proceedings of the nature presently before this Court was in issue and was addressed by the High Court in Re East & Others; Ex parte Nguyen. The Court held that doctrine of judicial immunity applied in proceedings brought against the Victorian Magistrate's Court and also the County Court of Victoria. The applicant in that case had contended that by reason of his lack of ability in speaking and understanding English and the absence of an interpreter while giving instructions to his lawyers and at his Court appearances, there was a miscarriage of justice because he was a victim of racial discrimination of a kind rendered unlawful by s.9 of the Racial Discrimination Act 1975 (C'th). The acts or omissions allegedly in contravention of s.9 were said to have been those of the state magistrate who had remanded the applicant on bail to appear before the County Court and the Chief Judge of the County Court who sentenced him. The Court considered not only whether the proceedings came within the original jurisdiction of the High Court but also whether the Racial Discrimination Act 1975 (C'th) could apply to the Magistrate and to the Chief Judge of the County Court. After referring to the difficulty of bringing the circumstances within the language of s.9 of the Racial Discrimination Act 1975 (C'th) (where what was complained of was the failure by each judicial officer to insist that the applicant have an interpreter when he and his lawyers had never asked for one) Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ continued at [29]:

_However, apart from the particular facts of this case, there are more fundamental problems with the notion that either a judicial officer, or a court, may be subject to legal redress, on the ground of an alleged contravention of s.9 of the Act. First, there is a well established immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity (_Rajski v Powell (1987) 11 NSWLR 522; Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204). There is nothing in the Act which suggests that it was the intention of the Parliament to override that immunity.

The actions complained of in this case are also said to amount to racial discrimination of a kind rendered unlawful by s.9 of the Racial Discrimination Act 1975. Their Honours continued:

Secondly, as was noted above, the scheme of the Act demonstrates that, in cases where there is a remedy for a contravention of s.9, it is to be found in Part III of the Act. The procedures under Part III have not been invoked by the applicant. Senior counsel for the applicant observed, correctly, that in some respects such as, for example, the requirement of conciliation, the provisions of Part III would be incongruous in their application to judicial officers of courts. That is true, but the circumstance that Parliament did not intend those procedures of Pt III to apply to judicial officers and courts, (consistently with well established common law principles of immunity from suit), does not deny the exclusiveness of those procedures to the extent to which they are operative.

The remedies in Part III of the Racial Discrimination Act are now to be found in the HREOC Act and the applicant in this case did invoke the procedures under the HREOC Act. However as Kirby J stated at [80]:

... when the [Racial Discrimination] Act was enacted, the Parliament would have been well aware of the importance of the independence of judicial officers and of their immunity from personal suit or other proceedings in respect of conduct performed judicially. If it had been the object of the Parliament to render such conduct, in a particular case, unlawful, well established principle would require that the Parliament should say so expressly (cf P v P (1994) 181 CLR 582 at 602). If independent judicial officers were to be subject to complaint of allegedly "unlawful" conduct before agencies of the Executive Government, long-standing principle would require that this be expressed in plain terms ... In particular, if it had been the purpose of the Parliament to render judicial officers of State courts amenable to such federal remedies (assuming that to be possible), it might have been anticipated that Parliament would have said so. These considerations make it unthinkable that the unlawfulness mentioned in s.9 was intended to apply to judicial officers at all and, in particular, to the judicial officers of a State such as those against whom the applicant sought relief.

Needless to say if there was some aspect of the way in which a hearing was conducted by a judicial officer that was thought to reveal error or actual or apprehended bias (as appears to be suggested in this case) a litigant could raise such a matter in an appeal in relation to the decision of the court. However this is not an appeal. The proceedings before this Court relate to the right to pursue a complaint of a statutory kind provided by the Commonwealth Racial Discrimination Act 1975 and the HREOC Act 1986 which can be investigated by a non-judicial body (the Human Rights and Equal Opportunity Commission) before finding its way into a Court such as this Court or the Federal Court where a sanction may be imposed upon a person either by way of compensation or other orders available under s.46PO(4) of the HREOC Act. There is nothing in this legislation that manifests an intention on the part of the Federal Parliament to render the conduct of a State magistrate subject to a complaint of 'unlawful' discrimination before HREOC or to suggest that such conduct is amenable to the remedies provided for by this legislation notwithstanding the doctrine of judicial immunity.

I note that s.44B of the Judicial Officers Act 1986 (NSW) confirms in statutory form the immunity of New South Wales judicial officers (defined in s.3 to include a magistrate). It provides:

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.

Counsel for the respondents did not rely on s.44B other than to suggest that it confirmed the relevant common law principle. It was suggested, however, that it would be an 'odd' consequence if this court did not recognise such immunity. In any event, there is no suggestion that the Magistrate in this case purported to adjudicate in a dispute which she knew was not within her court's jurisdiction or to make orders which she knew her court had no authority to make (see Wentworth v Wentworth at [25]). For the relevant federal legislation to invalidate the provisions of s.44B or the underlying common law protection there would have to be a very clear and express intent to do so. Re East; Ex parte Nguyen makes it clear that the doctrine of judicial immunity in this context applies not only to judges of superior courts but also to state magistrates (see Wentworth v Wentworth [2000] NSWCA 350; (2001) 52 NSWLR 602 at [26] and cf Sirros v Moore (1975) QB 118). There is not manifest in the Racial Discrimination Act 1975 and/or the HREOC Act 1986 an intention on the part of the Federal Parliament to remove judicial immunity of judicial officers including State magistrates in relation to complaints of unlawful discrimination. There is nothing in either the RDA or HREOC Act to suggest that Parliament intended to override the principle of immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity such as the alleged acts complained of in this case.

Insofar as a distinction can be drawn between the immunity applicable to conduct that is judicial in nature or intimately connected with such conduct on the one hand and conduct that is purely administrative in nature on the other hand, such distinction does not assist the applicant in this instance. As discussed, the conduct complained of and dealt with by the Commission falls within the first category. The applicant sought to rely on the decisions of Sackville J in unrelated proceedings brought by the applicant against the Deputy District Registrar of the Federal Court and a Judge of the Federal Court (Paramasivam v Randwick City Council [2005] FCA 369 and Paramasivam v Randwick City Council (No 2) [2005] FCA 508). However these cases do not assist the applicant as contended. In those proceedings the applicant had sought to commence proceedings in the Federal Court following a complaint she had made about race discrimination by the Randwick City Council being terminated by the President of the Commission. The Deputy District Registrar of the Federal Court refused to accept her application, in part based on a direction given by a Judge of the Federal Court that the registry not receive the documents. The Registry's refusal to accept the documents itself became a cause for complaint to the Human Rights Commission. That complaint was terminated.

The applicant had then initiated proceedings in the Federal Court pursuant to the Administrative Decisions Judicial Review Act 1977 for judicial review of the Federal Court's decision to refuse to accept her complaint against the Randwick City Council. On 7 April 2005 Sackville J refused to dismiss that application summarily on the basis that it was at least arguable that the Registrar's decision to seek a direction of the Judge was amenable to judicial review under the ADJR Act 1977. On 28 April 2005 Sackville J observed that it was also arguable that a direction given by a Judge not to accept a document was liable to be set aside if the Registrar's decision to refer the matter to the Judge was set aside. It was arguable the Deputy District Registrar had taken into account irrelevant considerations when deciding to seek a direction. The solicitor for Randwick City Council told the Court that the Council proposed to play no further part in the proceedings and did not oppose the grant of relief to the applicant in respect of the Deputy District Registrar's decision. As no party wished to put arguments, his Honour considered it appropriate to make an order setting aside the decision of the Deputy District Registrar to seek the direction of a Judge and the direction made by the Judge that the Deputy District Registrar not accept the discrimination application and supporting affidavit. It followed that the Registrar's decision not to accept the discrimination application was also set aside.

While Sackville J was of the view that it was 'arguable' that a direction given by a judge not to accept a document was liable to be set aside if the Registrar's decision to refer the matter to the Judge was liable to be set aside, this proposition does not involve a consideration of the scope of the doctrine of judicial immunity and whether and when such immunity would apply. Further, the proceedings before Sackville J were proceedings for judicial review, not proceedings under the Human Rights and Equal Opportunity Act 1986. The reasoning of the High Court in Re East; Ex parte Nguyen did not arise for consideration. In any event, the direction in question in the Randwick City Council litigation was a direction made by a judge in chambers without a hearing. This case does not assist the applicant in relation to the claim that she wishes to litigate in these proceedings. Nor does it establish in any way that she has a case that can be characterised as other than hopeless and bound to fail. The reliance that the applicant places on the decision of Sackville J does not overcome or address the fact that the conduct that the magistrate was engaged in in determining the charges that the applicant had breached the Inclosed Lands Protection Act 1901 was conduct wholly of a judicial nature.

Further contrary to the applicant's contention, the fact that the Attorney-General and the State of New South Wales became respondents is not an admission by the respondents that the conduct complained of involved an exercise of administrative functions as contended by the applicant. As discussed above, the complaints that the applicant now makes in relation to events which followed the acceptance of the complaint on 13 April 2005 are not relevant to a determination of these proceedings. Nor is there anything to indicate that the conduct of the Local Court or the administration of the Local Court (as opposed to the Magistrate) was a matter the subject of the complaint of alleged unlawful discrimination as terminated by the Commission.

I am satisfied that, taking the applicant's complaint at its highest for the purposes of considering the application for summary dismissal, the conduct complained of on the part of the Magistrate is conduct that, if it occurred, occurred in the exercise of her judicial function or capacity. It was within the jurisdiction of the Magistrate in the sense of the broad and general authority conferred upon her court and upon herself to hear and determine issues. (See Nakhla v McCarthy [1978] 1 NZLR 291 per Woodhouse J at 301, Gallo v Dawson per Wilson J at 402 and Rajski v Powell (1987) 11 NSWLR 522.) The Magistrate is protected from the allegation that she is subject to legal redress on the ground of an alleged contravention of s.9 of the Racial Discrimination Act 1975 by reason of the operation of the doctrine of judicial immunity.

In these circumstances I am satisfied that it has been established that the applicant's case is hopeless and is bound to fail because of the operation of the doctrine of judicial immunity and, in particular, the principles in Re East; Ex parte Nguyen. The application discloses no reasonable cause of action and should be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules (2001).

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Barnes FM