Pi v Pierce and Attorney General for NSW

Court of Appeal (NSW)|2015-05-01|Before: Ward JA, Gleeson JA, Hidden J, Commission J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

WARD JA: Mr Pi seeks leave to appeal from the summary dismissal on 27 October 2014 of proceedings commenced by him in the Common Law Division of the Supreme Court of New South Wales. Leave is required pursuant to s 101(2)(e) of the Supreme Court Act 1970 (NSW) because, even though determinative of the proceedings, the order for summary dismissal, made pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), was an interlocutory decision (AB v State of New South Wales [2014] NSWCA 243; Macatangay v State of New South Wales (No 2) [2009] NSWCA 272).

Background

The proceedings in question were commenced by Mr Pi against a Local Court Magistrate and the Attorney-General for the State of New South Wales. Mr Pi claimed relief in relation to the conduct by the first respondent, a Local Court magistrate, of earlier proceedings in which an interim apprehended violence order (AVO) was issued against Mr Pi.
The subject matter of those proceedings related to a charge against Mr Pi in 2011 of the offence of assault occasioning actual bodily harm. An AVO was also sought against Mr Pi. Both the prosecution for assault and the application for an AVO came before the first respondent at Burwood Local Court on 12 December 2011. On that occasion, the first respondent granted the interim AVO and listed both matters for hearing.
The final hearing of those matters came before another Local Court magistrate on 17 December 2012 about whom Mr Pi makes no complaint. Mr Pi was found not guilty on the assault charge but a final AVO was made against him. Mr Pi appealed to the District Court in relation to the making of the AVO. That order was set aside in the District Court on 26 March 2013 by Solomon DCJ.
Mr Pi then commenced the proceedings the subject of the present application. On 25 March 2014, he filed a statement of claim in the Supreme Court of New South Wales naming the first respondent as the sole defendant. A submitting appearance was entered by the first respondent on 1 July 2014. On 17 July 2014, by consent, the Attorney-General for New South Wales was joined as the second defendant to the proceedings to perform the role of contradictor. An amended statement of claim was duly filed on 23 July 2014 naming the Attorney-General as the second defendant. A further amended statement of claim was then filed on 4 September 2014.
In his Supreme Court proceedings Mr Pi sought declaratory and equitable relief. The former consisted of declarations sought by Mr Pi as to the "constitutionality" or "lack of constitutionality" of the first respondent's conduct. The latter seems to be a reference to the claim made by Mr Pi for unspecified injunctive relief.
Mr Pi does not have the benefit of legal representation; nor did he at the hearing before the first respondent. So far as his pleading can be understood, what Mr Pi alleges is that there was judicial misconduct or "wanton malfeasance" on the part of the first respondent. Mr Pi's complaints range from allegations that the first respondent hindered his examination of "false evidence"; admitted false photographs into evidence; and threatened him at the court hearing by referring to the possibility of an appeal or other hearing, to allegations as to rulings made by the first respondent during the course of the hearing, such as the direction given to him that he was only to give evidence as to the facts about the event and rulings as to questions that Mr Pi wished to put in cross-examination of witnesses. The reference to false evidence relates to Mr Pi's complaint that he was not able to examine the original digital files of certain mobile phone photographs copies of which were admitted in evidence before the first respondent. Mr Pi alleges that the first respondent was guilty of intentional judicial misconduct, bias and abuse of power.
By notice of motion filed 11 September 2014 the Attorney-General sought orders to the effect that the proceedings be summarily dismissed or in the alternative that the further amended statement of claim be struck out.
That application was heard by Hidden J in the Common Law Division on 27 October 2014. His Honour found that the proceedings brought by Mr Pi were misconceived and had no prospect of success. His Honour dismissed the proceedings and awarded costs against Mr Pi, which his Honour assessed at $2,000.
Mr Pi now seeks leave to appeal from that decision.

Application for leave to appeal

In considering whether leave should be granted, the Court must consider whether substantial reasons have been shown to allow appellate review of the relevant interlocutory decision (Collier v Lancer (No 2) [2013] NSWCA 186). Leave to appeal will not be granted in respect of interlocutory decisions where the appeal is doomed to fail (Young v Hones (No 2) [2014] NSWCA 338 at [63]).
To succeed in challenging the exercise of a discretion such as that which the primary judge exercised in summarily dismissing the proceedings, an error in the House v The King sense (House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505) must be established, namely, that the primary judge made a material error of principle or fact; that he failed to take into account a relevant consideration or took into account an irrelevant consideration; or that he arrived at a conclusion so unreasonable as to bespeak an error of such a kind.
The proposed grounds of appeal as articulated by Mr Pi are as follows: 1. The primary judge erred in making an order to dismiss the appellant's further amended statement of claim. 2. The primary judge misdirected himself as to the correct legal principles to be applied in the exercise of that power and discretion, and as a result the exercise of that power and discretion was incorrect and miscarried. 3. The primary judge erred in regarding that the court appearance which was the matters came before the Burwood Local Court before the Magistrate in 12 December 2011 was a mention. 4. The primary judge erred in making finding that the proceedings below have no prospect of success. 5. The primary judge erred in making finding that any declaratory or injunctive relief sought by the appellant would be of no utility. 6. The primary judge erred in his failure of making finding that the orders sought by the appellant in the proceedings below in respect with judicial misconduct of the first respondent were not statutorily bared [sic] by s 44B(1) of the Judicial Officers Act 1986.
The principal error identified on the part of the primary judge, which Mr Pi submits warrants the grant of leave, appears to be that his Honour misapprehended the nature of the proceedings that were before the first respondent. This is a reference to the fact that in the primary judge's ex tempore reasons his Honour said that it appeared that what was before the magistrate in December 2011 was "a mention presumably for the purposes of setting a hearing date". Mr Pi maintains that this misapprehension led to his Honour erroneously making the order summarily dismissing the proceedings. In oral submissions he adds that this shows that the judge refused to admit to making any mistakes.
Mr Pi submits that leave should be granted because his case raises important issues of law, including the observation of the model litigant rules by the Attorney-General in conducting litigious matters against unrepresented litigants and the scope of the application of s 44B(1) of the Judicial Officers Act 1986 (NSW).
As to the former contention, this relates to a complaint that the second respondent failed to bring to the primary judge's attention the true nature of the proceedings that were before the first respondent in December 2011. It is said that this placed Mr Pi in a position of distinct disadvantage (reference being made to Scott v Handley [1999] FCA 404 at [42]-[46] in this regard).
As to the latter contention, Mr Pi maintains that it has been recognised in this Court that the application of judicial immunity may not extend to acts of judicial misconduct (referring to Scanlan v Director General, Department of the Arts, Sport and Recreation [2007] NSWCA 204; (2007) 70 NSWLR 1 at [57] and O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315 at [183]). It is submitted that the primary judge erred in finding that the claim of judicial misconduct was precluded by s 44B of the Judicial Officers Act without first determining whether the impugned conduct constituted acts of judicial misconduct.

Determination of application

As to the complaint that the primary judge misapprehended the nature of the proceedings that were before the first respondent in December 2011, Mr Pi notes that on that occasion there was a resumption of the hearing that had been part-heard on 1 September 2011 and two prosecution witnesses gave oral testimony. The fact that evidence was taken during the course of the proceedings on 12 December 2011 must have been apparent to the primary judge, since the complaints made by Mr Pi included matters arising in the course of the cross-examination of witnesses.
It may be that what his Honour had in mind was that what was being conducted before the first respondent was an application made on the first return of the application for an AVO, that dealing with interim relief pending the matters being listed for final hearing. Whether or not that is the proper construction to be placed on his Honour's reference to a mention, the difficulty for Mr Pi is that it is impossible to conclude that any such error on the primary judge's part was determinative in the exercise of the discretion summarily to dismiss the proceedings.
Rather, it is clear from his Honour's reasons that the proceedings were dismissed because his Honour concluded that there was no cause of action maintainable in relation to Mr Pi's complaints of judicial misconduct and that the claim for injunctive relief was misconceived as there was nothing to enjoin. As submitted by the Attorney-General, there were no existing orders against Mr Pi which could have been the subject of any application for prerogative relief since Mr Pi had been acquitted in the Local Court of the assault charge and had successfully appealed the AVO made against him in the Local Court. As to the declaratory relief sought, the Attorney-General maintained that it would have no practical utility in resolving a dispute between the parties (referring to Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18; (1974) 131 CLR 286).
Whether the proceedings had come before the first respondent on a mention or otherwise on 12 December 2011 does not affect in any way the consideration as to whether on the material before the primary judge it could be concluded that there was no reasonable cause of action.
Mr Pi submits in this Court that there is practical utility in the declarations sought by him because a declaration as to the alleged acts of judicial misconduct would protect the community by deterring the Magistrate from committing such acts in the future and thus would have great utility in benefiting all who appear before him and other magistrates in the future. It is submitted that the declaration's utility is analogous to that sought in Pape v Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1. That, however, fails to take into account that the first respondent has the benefit of immunity from claims for judicial misconduct and that the appropriate way to make a complaint of the kind Mr Pi wishes to make is by reference to the Judicial Commission (as the primary judge made clear to him).
As to Mr Pi's submission that there is a public interest in considering the allegation of breach by the second respondent of the model litigant obligations, even if there was a breach by reference to the failure to draw to the primary judge's attention that the proceedings on 12 December 2011 were not a mention (and that has by no means been established), again it is difficult to see how that could have put Mr Pi in any position of disadvantage given that it could have had no bearing on the decision by the primary judge summarily to dismiss the proceedings.
There is a high test to be met on a summary dismissal application: the plaintiff's claim must be taken at its highest and must be "manifestly groundless" or "so obviously untenable that it cannot succeed". If there is an arguable issue to be tried summary dismissal should be refused. (See General Steel Industries v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at 46; Shaw v State of New South Wales [2012] NSWCA 102.)
However, his Honour was clearly apprised of the relevant legal principles on such an application and no error has been shown in the application of those principles in the present case. Mr Pi's submission that his Honour gave little or no weight to his materials and submissions put before him on the day of the hearing, based on the brevity of the ex tempore reasons and the fact that his Honour did not make an express finding that the applicant's claim was manifestly groundless or so obviously untenable that it could not succeed, cannot be accepted. His Honour made it clear that he was not purporting to give detailed reasons for his decision that the application pursuant to UCPR r 13.4 must succeed but did make clear the basis on which he had reached that conclusion and no error has been shown in that conclusion.
In Hammond v The State of New South Wales [2013] NSWSC 1930 (at [64]), it was said that proceedings instituted against judicial officers in contravention of judicial immunity ought be summarily dismissed (there citing Bar-Mordecai v Bryson [2002] NSWSC 815; Attorney General v Bar-Mordecai [2005] NSWSC 142 at [65]-[66]). That course was clearly the appropriate course to be followed in the present case.
Reference to the decisions in O'Shane and Scanlan does not assist Mr Pi. In O'Shane the Court was considering reliance by a magistrate on the immunity to preclude the operation of the defence in truth in defamation proceedings and it was in that context that it was said at [183] that it was unnecessary to identify the precise scope of the judicial officer's immunity. In Scanlan, the issue was whether judicial immunity protected a registrar from a statutory disciplinary process which included particular provisions for the investigation and removal from office of registrars.
Nor does the reference to Pape assist. It was not an analogous case. There, the question was as to the appellant's standing to seek relief with respect to a constitutional issue and the context of a challenge to the validity of taxation laws. In Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 (at p 582) it was said that a declaration ought to be refused where the Court's declaration will produce no foreseeable consequences for the parties. In the present case that must be so. There can be no utility in declaratory relief where the dispute or claim is non-justiciable (see Egan v Willis [1998] HCA 71; (1998) 195 CLR 424 at 439).

Conclusion

No error has been shown on the part of the primary judge in summarily dismissing the proceeding. An appeal would be doomed to fail. The application for leave to appeal must be refused. Mr Pi has submitted that in that event there should be no order as to costs on the basis that he has a serious physical disability and suffers from psychological trauma, is unrepresented and has serious financial difficulties. There is no evidence before the Court as to those matters and hence no basis to depart from the general rule as to costs following the event.
Leave to appeal should be refused with costs.
GLEESON JA: I agree with Ward JA.

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