Praljak v Commonwealth of Australia

the Applicant Should not Have LeaVe to bring the application

Judicial Immunity 17 Plainly, and as the first respondent submits, at common law judges have complete immunity for any act performed within their jurisdiction: Fingleton v The Queen (2005) 227 CLR 166 at 185 [36] (Gleeson CJ). What is "within jurisdiction" for these purposes must be understood in its "broad and general sense" as the "authority conferred upon [the] court and upon [the judge] to hear and to determine issues between individuals or between individuals and the Crown": Nakhla v McCarthy [1978] 1 NZLR 291 at 300-301 (Woodhouse J), adopted in various Australian decisions including in Gallo v Dawson (1988) 63 ALJR 121 at 122 (Wilson J); Fingleton at 185 [35]; Rajski v Powell (1987) 11 NSWLR 522 at 532 (Kirby P); Yeldham v Rajski (1989) 18 NSWLR 48 at 58 (Kirby P); Wentworth v Wentworth (2001) 52 NSWLR 602; [2000] NSWCA 350 at 612 [28] (Fitzgerald JA). 18 The purpose of the doctrine of judicial immunity is to protect the independence of judicial (and quasi-judicial) officers: Fingleton at 186 [38]-[39]. This does not mean, however, that judges are unaccountable: see generally Justice Stephen Gageler, 'Just versus Quick: Constructivist and Ecological Rationality in a Common Law System' (2022) 45(2) Melbourne University Law Review 830 at 842-845. Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions. Their decisions routinely are subject to appellate review, which also is conducted openly. The ultimate sanction for judicial misconduct is removal from office by the Governor-General in Council, on an address from both Houses of Parliament: Constitution, s 72(ii); Fingleton at 186 [39]. 19 Historically, a distinction was drawn between the immunity available to superior court judges compared to that which extended to judges of inferior courts. The immunity was available for superior court judges even if they acted outside jurisdiction, provided they did not knowingly do so. On the other hand, the immunity was lost for inferior court judges if they acted outside jurisdiction whether knowingly or not, unless it was caused by an error of fact of which the judge had no knowledge nor the means of ascertaining the knowledge: Wentworth v Wentworth at 611-612 [25] - [29], 616 [44] (Fitzgerald JA); at [195] (Heydon JA). Whether or not that historical distinction remains good law in Australia is unnecessary to decide given that it is beyond doubt that the second respondent is a superior court judge and the Federal Court of Australia is a superior court of record: Federal Court of Australia Act 1976 (Cth), s 5(2). 20 The immunity extends to the Court itself. In Re East; Ex parte Nguyen (1998) 196 CLR 354, the applicant had sued the Magistrates Court, the County Court of Victoria and the Governor of Fulham Prison for contravention of the Racial Discrimination Act 1975 (Cth). The High Court referred (at 365-366 [29]-[30]) to the "fundamental problem" 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", namely the "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" (citing Rajski v Powell and Mann v O'Neill (1997) 191 CLR 204). The High Court concluded that the immunity applied to bar the applicant's claims in Re East, making no distinction between the applicability of the immunity to the court itself and to its judicial officers. 21 The first respondent submits that the applicant's allegations in the claim (in summary, failing to make a referral or make other arrangements for him to have pro bono legal representation, and otherwise presiding over the proceeding notwithstanding his other appointment as the President of the Australian Defence Force Discipline Appeal Tribunal) indicate that the issues of which he complains were all acts done by the second respondent in the exercise of his judicial functions and are plainly within jurisdiction in the "broad and general sense" in which that term is understood in the context of judicial immunity. Thus the first respondent submits that the doctrine of judicial immunity applies and is a complete answer to the claims made against the second respondent and, in turn, against the first respondent. 22 Insofar as the applicant purports to rely on the case of Gerard v Hope, the first respondent submits that the case does not assist him. It is the first respondent's position that Gerard v Hope is plainly distinguishable from the present case because the relevant judge was there found not to have any power to do what he did, whereas it is not in doubt that the second respondent had the statutory power to make the orders he made in Praljak v Department of Defence and the authority to preside over those proceedings. Moreover, Gerard v Hope concerned an inferior court judge for whom, as the first respondent submits, historically the immunity was said not to apply in respect of matters outside jurisdiction. As is apparent, the present proceedings concern a superior court and a superior court judge for whom the protection of judicial immunity is not in doubt, even for matters outside jurisdiction. 23 The first respondent's submissions in relation to judicial immunity should all be accepted. That doctrine applies to bar the applicant's claim in its entirety.

Claims not reasonably arguable 24 The first respondent otherwise submits that given the doctrine of judicial immunity operates as a complete bar, there is no need to assess the substantive merits of the applicant's claim. Nonetheless, the first respondent makes the following submissions in relation to the applicant's allegations and the facts purportedly supporting them. It is the first respondent's position that there are manifestly no factual or legal bases for the claim and as such it has no reasonable prospect of success such as to warrant the grant of leave. 25 The first respondent submits in relation to the first allegation (i.e. the failure to arrange pro bono legal advice and representation for him in proceedings QUD233/2021 because he was not on a "level playing field") that it plainly lacks substance because there is no discernible common law or statutory duty on a judge to refer a person to a lawyer for pro bono legal assistance or ensure that one is obtained. It is said that while Division 4.2 of the Federal Court Rules 2011 provides the Court with a discretion to refer a party to a lawyer for legal assistance by issuing a referral certificate, there is no obligation on the Court to exercise that discretion and, even where it does exercise it, the only obligation that flows is that the Registrar must "attempt to arrange for the provision of legal assistance in accordance with the referral certificate to a Pro Bono lawyer": r 4.12(4) of the Rules. Rule 4.13 is explicit that a party does not have the right to apply for a referral. In any event, it appears from the allegations that the second respondent did exercise his discretion to make such a referral, but the applicant was unhappy with the pro bono lawyer who agreed to accept the referral (i.e. LawRight). The first respondent submits, and I accept, that no plausible cause of action could conceivably arise from this allegation. 26 In relation to the second allegation (i.e. the asserted "bias" of the second respondent by reason of his presidency of the Australian Defence Force Discipline Appeal Tribunal), the first respondent submits that this is also plainly without substance. It is contended that judicial officers are regularly appointed to fulfil tribunal positions and that fact alone cannot be said to give rise to either actual or apprehended bias (or any other related claim). Indeed, the first respondent points out that it is a statutory requirement that the President of the Australian Defence Force Discipline Appeal Tribunal be "a Justice or Judge of a federal court or of the Supreme Court of a State or Territory": Defence Force Discipline Appeals Act 1955 (Cth) s 8(1). The first respondent submits, and I accept, that no plausible cause of action conceivably arises from this allegation. 27 In relation to the third allegation (i.e. that the respondents failed to make adjustments for the applicant's "serious health conditions" by arranging pro bono legal representation), the first respondent submits that this allegation has not ventured close to meeting the elements of either a direct or an indirect disability discrimination claim. Importantly, while the applicant refers to the condition of "acrophobia" (which is a mental health condition that may qualify as a "disability" within the meaning of the DD Act), that condition relates to the fear of heights. None of the issues about which the applicant complaints appear to be connected to any conduct or requirement interacting with or impacting on a fear of heights. It is said that the mere fact of the applicant having "acrophobia" (assuming that to be true) does not give rise to any need to make reasonable adjustments in the form of arranging pro bono legal assistance for him. The first respondent submits, and I accept, that no plausible cause of action conceivably arises from this allegation.

Further factors in favour of leave being refused 28 The first respondent submits finally that there are a series of further matters which favour leave being refused. These factors can be summarised as follows: (a) first, that much of the applicant's affidavit material concerns other claims that the applicant has commenced in other proceedings, and that to the extent the affidavit material is concerned with new or different issues from the allegations contained in the originating application, the applicant is barred from expanding the claim to encompass them by virtue of s 46PO(3) of the AHRC Act; (b) secondly, that the reasons of the delegate of the President for terminating the AHRC complaint demonstrates that the AHRC has dealt comprehensively with the AHRC complaint and, as Mortimer J put it in James at [38(3)], "thoroughly answer[ed] the alleged merits of a complaint and make it clear the complaint is not reasonably arguable"; (c) thirdly, that the applicant did not seek to address his allegations against the respondents outside of the AHRC process and did not appeal the decision of the second respondent and therefore did not avail himself of the proper means of redress; (d) fourthly, that there are no considerations of factual or legal complexity which would favour leave being granted because the applicant's allegations substantially concern his desire to have or expectation that he should have free legal representation to prosecute proceedings against other parties and his misplaced perception that it was the role of the presiding judge or of the Court to facilitate that desire or expectation; (e) fifthly and similarly, that the claim does not raise any allegations of public importance or of general application; and (f) sixthly, that a grant of leave to the applicant to pursue the claim would prejudice the respondents, or at least the first respondent, and would effectively force the first respondent into engaging with the proceedings which the doctrine of judicial immunity is designed to prevent; and furthermore that the first respondent would have to put on a substantive response to the originating application or bring an application to have the claim struck our or summarily dismissed. It is said that the first respondent should not be troubled to have to do this given that the AHRC Act has a process designed precisely to filter our such complaints. 29 I accept that each of these further matters support an order that leave be refused. 30 In all the circumstances therefore, and having regard to all the matters canvassed above, this case is not one which warrants a grant of leave. Leave will therefore be refused pursuant to s 46PO(3A) of the AHRC Act, the proceeding will be dismissed, and the costs of the first respondent, if sought, will be reserved for later determination. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.