Robinson v State of New South Wales

Supreme Court of NSW|2021-12-16|Before: Davies J, Pembroke J

Stankovic v State of New South Wales [2016] NSWCA 168 Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 Towie v State of Victoria (2008) 19 VR 640 Texts Cited: Nil Category: Principal judgment Parties: Sarah Robinson (Plaintiff) State of New South Wales (First Defendant) Justice Pembroke (Second Defendant) The Attorney General Mark Raymond Speakman (Third Defendant) The Chief Justice of NSW Tom Bathurst (Fourth Defendant) Judges in the Court of Appeal (Fifth Defendants) Commonwealth of Australia (Sixth Defendant) Representation: Counsel: Jessica Robinson granted leave to appear for plaintiff on 7 December 2021. Plaintiff excused from appearing on 16 December 2021 I Harvey (First to Fifth Defendants) C Trahanas (Sixth Defendant)

Solicitors: Self-represented (Plaintiff) Crown Solicitor's Office (First to Fifth Defendants) Australian Government Solicitor (Sixth Defendant) File Number(s): 2020/249662 Publication restriction: Nil

The equity proceedings

On 1 July 2016 the plaintiff's father, Ron Robinson, died, having made a will dated 25 September 2015 in which he left the whole of his estate to his wife, Dr Portia Robinson, the plaintiff's mother. The estate consisted only of a property located at Kincumber, some Westpac shares worth approximately $47,000, and cash held in a bank account. All of this property was held jointly by the deceased and his wife, and no grant of probate was sought.
On 6 December 2016 a Notice of Death was registered. On the same day, Dr Portia Robinson transferred half of the Kincumber property to the plaintiff's brother Leigh. He then entered into a 50 year lease of the property with Dr Portia Robinson as the tenant.
This appears to have led to the plaintiff and one of her daughters, Jessica Robinson-Murray bringing a family provision claim under the Succession Act 2006 (NSW) on 21 April 2017. Leigh Robinson was appointed pursuant to r 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) to represent the estate in those proceedings.
The proceedings were ultimately settled, and on 17 April 2018 Pembroke J approved releases given by the plaintiff under s 95 of the Succession Act in respect of rights she had or may have had against the property of the deceased and of her mother.
On 20 July 2018 the plaintiff filed a summons for leave to appeal to the Court of Appeal against the approval of the releases by Pembroke J. On 12 November 2018 the Court of Appeal granted leave to appeal. The appeal was heard on 2 December 2019.
The grant of leave to appeal was expressly limited to leave to appeal from two of Pembroke J's orders only on the ground that Pembroke J did not take into account each of the circumstances in s 95(4) of the Succession Act in determining the application for approval of the releases.
On 10 February 2020 the Court of Appeal dismissed the plaintiff's appeal: Robinson v Robinson [2020] NSWCA 4 ("Robinson CA").
On 20 March 2020 the plaintiff filed an application for special leave to appeal to the High Court. On 24 April 2020 the High Court (Bell and Gageler JJ) dismissed the application: Robinson v Robinson [2020] HCASL 116. In doing so, the Court said: The application for special leave to appeal raises no reason to doubt the decision of the Court of Appeal of the Supreme Court of New South Wales.

The present proceedings

On 27 August 2020 the plaintiff filed a statement of claim in this Court naming the following defendants: 1. State of NSW 2. Justice Pembroke. 3. The attorney General Mark Raymond Speakman 4. The Chief Justice NSW Tom Bathurst 5. Judges in The Court Appeal, 6. The High Court judges.
The statement of claim sought compensation pursuant to the Civil Liability Act 2002 (NSW) on the basis, it would appear, that the plaintiff had suffered mental harm either from negligence or an intentional or reckless act.
On 23 July 2021 the plaintiff filed an amended statement of claim where the only defendants were the State of NSW and High Court. The plaintiff claimed $1,000,000 together with interest and costs. Paragraph 1 in the section headed "Pleadings and particulars" said: The original statement of claim to still stand.
It is difficult to discern from the statement of claim and the amended statement of claim the cause of action, or causes of action, on which the plaintiff relies. It seems, however, that it is likely that the plaintiff seeks to bring a claim in negligence which has resulted in mental harm to the plaintiff. The negligence appears to derive in the first instance from the fact that the plaintiff was unsuccessful in her claim to have the Deed of Release set aside in the Court of Appeal and, subsequently, on the special leave application to the High Court. There was a suggestion in the original statement of claim of an intentional or reckless act, said to be a "reckless disregard for the likelihood of causing emotional distress".
It is clear that the plaintiff considers that her brother acted fraudulently and committed perjury. The claim made against the defendants appears to be that they did not uncover the fraud and perjury or, at least in the case of the Chief Justice and the Attorney-General, that they did not cause an investigation to be made into all of the matters now sought to be raised by the plaintiff. However, in her affidavit of 24 June 2021 the plaintiff makes allegations which suggest that Pembroke J and the defendant in the proceedings under the Succession Act conspired together to bring about the lies, the fraud and the perjury.
A further complaint made against the Court of Appeal appears to be that that Court did not permit the plaintiff's daughter to argue the case for the plaintiff but, rather, allowed a pro bono barrister to appear, who never spent more than 15 minutes with the plaintiff and knew nothing about the case (amended statement of claim paragraph 15). Contrary to that assertion, the submissions made by the plaintiff's counsel in the Court of Appeal are recorded at [111] to [129] of the judgment in Robinson CA, the detail of which leads to the clear inference that counsel for the plaintiff could not be properly said to have been ill-prepared for the appeal or that they (two counsel appeared) knew nothing about the case.
The complaint about the High Court in both the affidavit of the plaintiff sworn 25 June 2021 and the amended statement of claim is that the High Court did not permit the plaintiff to file evidence, nor did it allow the plaintiff to present her actual case. The result is, the plaintiff asserts, that the High Court is protecting the defendant in the original case brought by the plaintiff.

The notices of motion

By a notice of motion filed 24 June 2021 the first to fifth defendants seek summary dismissal of the proceedings, in the alternative, that the pleading in the statement of claim filed 27 August 2020 be struck out pursuant to r 14.28 of the UCPR. On 22 November 2021 the sixth defendant filed a notice of motion seeking summary dismissal of the claim against it, in the alternative, that the pleadings be struck out pursuant to r 14.28 UCPR. It is those notices of motion with which this judgment is concerned.
At the hearing of the notices of motion, the plaintiff's daughter Jessica Robinson sought leave to appear for her mother, and provided a signed authority from her mother to that end. A medical report was provided from a Dr Kenneth Mackun which simply said: Ms Sarah Robinson has a history of anxiety and depression, currently triggered by stress from her court case.
There was no opposition to Ms Jessica Robinson being given leave to appear for the plaintiff by counsel for the defendants. Although there was no medical evidence to suggest that the plaintiff herself could not appear, and despite the extent of material filed by the plaintiff concerning how unwell Ms Jessica Robinson was, I granted leave to her to appear for the plaintiff.
Shortly before the morning tea adjournment, during her oral submissions, Ms Robinson asked for a short break. When I returned to Court after taking the adjournment, the plaintiff was on the Audio-Visual link, telephoning for an ambulance for Ms Robinson. Accordingly, I adjourned the matter until 2.00pm, and my associate informed the plaintiff of the adjournment by email. My associate then received a number of emails from the plaintiff, making various allegations against me, and against the Court generally. The emails said that Ms Jessica Robinson had been taken by ambulance to her doctor, and that the "medical emergency" necessitating her treatment had been caused by the appearance at the hearing. Neither the plaintiff nor Ms Robinson appeared at 2.00pm.
In the circumstances, and with the agreement of counsel for each of the State of New South Wales and the Commonwealth, I adjourned the motions part-heard until 16 December 2021. At my direction, my associate informed the plaintiff by email that the matter had been adjourned to that date but, if the plaintiff would prefer, I would be content to receive any further submissions in writing to avoid the need for her or Ms Robinson to appear.
The plaintiff was subsequently informed that leave for Ms Robinson to appear on behalf of the plaintiff was withdrawn. I withdrew that leave because of the need for Ms Robinson to be taken by ambulance to the doctor, said to have been caused by her appearance at the hearing, and because of what had already been sent to the Court about Ms Robinson's ill-health. Although there was no medical opinion that the plaintiff herself was unable to conduct proceedings which she had commenced, my associate informed the plaintiff that she had the option to appear on the adjourned date or to make a further submission in writing.
Ultimately, the plaintiff did not appear on 16 December 2021, but Ms Robinson lodged a further submission on 15 December 2021 which I read and took into account, notwithstanding that leave for Ms Robinson to represent the plaintiff had been withdrawn.

Submissions

The first to fifth defendants put forward four bases upon which they say summary dismissal of the claim should be ordered: (1) The proceedings are an abuse of process because they constitute an attempt to re-litigate matters finally resolved against the plaintiff in 2020; (2) There is no arguable cause of action against the judicial officers because the doctrine of judicial immunity applies to any action discernible from the plaintiff's claims as pleaded; (3) To the extent that civil proceedings may be brought against the Crown under the title the "State of New South Wales" under the provisions of the Crown Proceedings Act 1998 (NSW), there exists no actionable duty of care against the State; and (4) The Attorney General owes no statutory or common law duty to a private person to cause an investigation to be made into allegations that crimes have been committed.
The Commonwealth of Australia, which now appears for the sixth defendant, the High Court and the High Court judges (see s 45 of the High Court of Australia Act 1979 (Cth)), also seeks that the proceedings be summarily dismissed on the bases outlined in (1) and (2) above, and also on the ground that no reasonable cause of action is discernible in the plaintiff's material.
The plaintiff filed two sets of submissions dated 22 October 2021, further submissions on 4 November and 19 November 2021, and the submissions already mentioned on 15 December 2021. The plaintiff also relied on a bundle of documents consisting principally of emails and letters in connection with the equity proceedings.
There was a great deal of repetitive material in the plaintiff's submissions. Those submissions show that the plaintiff was not satisfied with the outcome of the equity proceedings, and that she had sought to obtain the assistance of the Chief Justice and the Attorney-General to remedy matters about which she complained, chiefly, fraud and perjury which she alleged had been engaged in by her brother. The allegations broadened over time to assert that fraud, perjury and wrongdoing had been engaged in by the Court.
The clearest statement of what the plaintiff is endeavouring to claim in the proceedings is found in the submissions of 15 December 2021 where, under the heading "Issues", the following three questions are posed: 1. Do the defendants have a duty of care over the plaintiffs (sic)? 2. Have the defendants' actions had a negative impact on the plaintiff's life? 3. Can the defendant's (sic) be held responsible for their action?
In the subsequent section of those submissions headed "Arguments", the plaintiff submitted that the Attorney-General has an obligation to ensure that the justice system is fair and efficient, and that he may become involved in ongoing civil proceedings where there is a public interest that would not be otherwise protected by the Court. She similarly submitted that the Chief Justice has the responsibility to ensure procedural fairness within the courts. In those ways, she submitted, the judicial system has a duty of care over the people of New South Wales to ensure that justice is served fairly.
The plaintiff also pointed to the powers in the Contracts Review Act 1980 (NSW), seemingly, for the purpose of challenging the agreement reached between her and her brother, the release terms of which were approved by Pembroke J. The plaintiff also pointed to s 43A of the Civil Liability Act 2002 (NSW), which was said to be relevant to the failure of the defendants to implement their own rules and regulations.
During the course of the oral hearing I attempted to have Ms Robinson focus attention on the principles of finality in litigation and judicial immunity from suit, having briefly explained those matters to her. No submissions were made about those principles.

Summary judgment

Proceedings may be summarily dismissed if they disclose no arguable cause of action, are clearly untenable and are doomed to fail, if they are an abuse of process or if they are frivolous and vexatious: General Steel Industries Inc. v Commissioner for Railways (1964) 112 CLR 125 at 128-129; [1964] HCA 69; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [15]; see also Shaw v State of New South Wales [2012] NSWCA 102 at [30]-[33].
In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, the plurality said at [57]: It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
In Spencer v the Commonwealth (2010) 241 CLR 118; [2010] HCA 28, a case concerned with s 31A of the Federal Court of Australia Act 1976 (Cth), French CJ and Gummow J quoted with approval what the High Court had earlier said in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99: The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.
In Paul Ernest Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455, Hammerschlag J said at [62]: Whilst UCPR Pt 13 r 13.4 does not expressly provide (as does s 31A of the Federal Court of Australia Act 1976 (Cth)) that a proceeding need not be hopeless or bound to fail to have no reasonable prospects of success, the combination of the inclusion of the word reasonable and the operation of s 56(2) sufficiently clearly indicates, in my view, that the approach to exercising the power to dismiss under the rule is the same as that elucidated by the High Court in relation to the federal enactment.
The provisions of the Civil Procedure Act 2005 (NSW) do not warrant any result different from that indicated by the General Steel test; Shaw at [134].

(1) The finality principle

It is apparent from the plaintiff's pleadings and her submissions that she was not satisfied with the outcome of the proceedings she brought under the Succession Act. It is clear that she does not accept the outcome, and asserts (although without either particulars or evidence to justify the assertions) that the result was achieved by fraud and perjury.
It is apparent, however, that the fraud alleged formed part of the claim brought by the plaintiff and her daughter Jessica against Leigh Robinson in the amended summons, at a time when they were acting for themselves: Robinson at [14], [15] and [18]. However, the fraud allegations were abandoned when a further amended summons was filed by the plaintiff alone, at a time when the plaintiff had a barrister acting for her: Robinson CA at [20].
It also seems clear that allegations that the plaintiff's brother committed perjury were extant at the time of the original proceedings, because the perjury was said to arise from the affidavits he filed and served in those proceedings: Robinson CA at [60]. Nevertheless, the plaintiff agreed to settle those proceedings by the Deed of Release executed on or around 6 April 2018. When the matter came before Pembroke J on 16 April 2018, the plaintiff sought to "withdraw" her consent to the Deed: Robinson CA at [54].
Although the plaintiff was legally represented, Pembroke J invited the plaintiff to address him, which she did. Ms Robinson submitted at the present hearing that, "My mother was never, she never even had the chance to speak for herself". On the contrary, as the judgment in Robinson makes clear, the plaintiff spoke of her medical condition, and made a number of allegations including fraud against her brother which had been abandoned on the filing of the further amended summons. She also made allegations of making false affidavits by the brother. The judge adjourned the proceedings for one month to give the plaintiff the opportunity to amend her summons "yet again" to raise the matters the plaintiff had outlined: Robinson CA at [56] to [61].
However, after a further conference with her barrister and the head of the barrister's chambers, the plaintiff agreed to go ahead with the settlement contained in the Deed of Release: Robinson CA at [68]. The orders were made by Pembroke J on 17 April 2018: Robinson CA at [75]. As Ward JA noted, the plaintiff appeared to repent of her decision to enter into the settlement shortly after the consent orders were made: Robinson CA at [78].
In D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ said: [34] A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding. [35] The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called "fresh evidence rule") are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: "[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial". [36] The rules based on the need for finality of judicial determination are not confined to rules like those mentioned above. Those are rules which operate between the parties to a proceeding that has been determined. Other rules of law, which affect persons other than the parties to the original proceeding, also find their justification in considerations of the need for finality in judicial decisions. And some of those rules are rules of immunity from suit. [37] Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. Seldom will a party have contested litigation without believing, or at least hoping, that it will be resolved in that party's favour. If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others - the judge, the witnesses, advocates - anyone other than the party whose case has been rejected. [38] This is no new phenomenon. It is a problem with which the common law has had to grapple for centuries. Its response has been the development of immunities from suit for witnesses, judges and advocates. The origin of these rules can be traced to decisions of the 16th and 17th centuries.
As Adamson J made clear in Hammond v The State of New South Wales [2013] NSWSC 1930 ("Hammond No 1"), proceedings instituted against judicial officers in contravention of judicial immunity ought be summarily dismissed at least on the ground that they amount to an attempt to re-litigate issues that have already been heard and determined to finality: see also Bar-Mordecai v Bryson and Ors [2002] NSWSC 815 at [37].
An attempt to re-litigate issues that have been finally determined is likely to constitute an abuse of process. In Batistatos the plurality said: [14] In Ridgeway v R, Gaudron J explained: The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are 'frivolous, vexatious or oppressive'. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to 'defined and closed categories' because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of 'abuse of process' is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment'. [15] Earlier, in Rogers v R, McHugh J observed: Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. His Honour added: Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process. To that it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious. … (citations omitted)
If the plaintiff had brought fresh proceedings against Leigh Robinson arising out of their father's estate, such proceedings would have constituted an abuse of process. It is no less an abuse of process when the present proceedings amount to a collateral attack on the final judgment of Pembroke J, upheld in the Court of Appeal, and with special leave to appeal to the High Court refused. In Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404, Hunt CJ at CL said (at 410): [A] party's attempt to relitigate against another party an issue which he has already lost may amount to an abuse of process.
Such proceedings are an attempt to go behind the settlement of the original proceedings, and the approval of the Deed of Release, and to re-litigate matters (including fraud and perjury) which had been abandoned by the plaintiff in her further amended summons. Justice Pembroke gave the plaintiff time to reconsider her position, when she raised with him issues of fraud and perjury, and to file a further amended summons if she wished to do so. After receiving advice she chose to settle the claim. The Court of Appeal in Robinson examined the way the Deed had been approved by Pembroke J, and dismissed the plaintiff's appeal from it.
The principle of finality does not permit a party to change his or her mind after proceedings have been determined, whether by settlement or judgment. That is what the plaintiff seeks to do here, albeit, by bringing fresh proceedings against parties who were not involved in the earlier proceedings except as the courts and judges before whom the proceedings were heard and determined.
The power in the Contracts Review Act, which the plaintiff relies on, is only relevant in proceedings between the parties to the impugned contract. The other party to the contract, constituted by the agreement approved by the Court, was the plaintiff's brother. It has no relevance to proceedings brought against third parties such as the defendants in the present case. In a case such as the present, where the agreement made between the plaintiff and her brother was one which needed essential aspects approved by the Court, it is difficult to see how the Contracts Review Act could have been invoked in those proceedings in any event.

(2) Judicial immunity

In Fingleton v R (2005) 227 CLR 166; [2005] HCA 34, Gleeson CJ said at [38]: [38] This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. … [39] This does not mean that judges are unaccountable. 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 upon an address of Parliament. However, 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.
In Donaldson v State of New South Wales [2019] NSWCA 109 ("Donaldson CA"), the plaintiff had sued the State of New South Wales as a result of a judgment I had given against him: Donaldson v Commonwealth of Australia [2011] NSWSC 423. Justice Hamill struck out the claim, and the plaintiff sought leave to appeal to the Court of Appeal. In its judgment, the Court of Appeal (Macfarlan and Meagher JJA) said: [7] First, Davies J had the benefit of common law judicial immunity in respect of his conduct and judgment in Mr Donaldson's proceedings against the Commonwealth. The existence of such immunity, at least where as here there is no supportable allegation that the judge knowingly acted without jurisdiction, is beyond question (Sirros v Moore [1975] 1 QB 118 at 134-6; Rajski v Powell (1987) 11 NSWLR 522 at 534-6, 538-40; D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [40], [96]-[100]). The Registrar has the benefit of a similar immunity by reason of s 44C of the Judicial Officers Act 1986 (NSW). [8] That immunity is absolute and precludes liability (Mann v O'Neill (1997) 191 CLR 204; [1997] HCA 28 at 238 (Gummow J)). Absolute immunity has thus been described as "indefeasible" (Gibbons v Duffell (1932) 47 CLR 520; [1932] HCA 26 at 528 (Gavan-Duffy CJ, Rich and Dixon JJ)). [9] It is well-established that a judge of the Supreme Court is protected by this immunity (Re East; Ex Parte Nguyen (1998) 196 CLR 354; [1998] HCA 73 at [30] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Rajski v Powell at 534-6 (Kirby P) at 538 (Priestley JA, Hope JA agreeing)).
In Stankovic v State of NSW [2016] NSWSC 18, the plaintiff brought proceedings against the State of New South Wales and the Land and Environment Court claiming damages as a result of what was said to be a tortious liability of one of the judges of that Court. In my judgment I said: [20] The immunity of judicial officers is a common law principle fundamental to common law jurisdictions. The matter was discussed extensively by Kirby P in Rajski v Powell (187) 11 NSWLR 522 at 534-537 and by Priestley JA (with whom Hope JA agreed) at 538-539. The matter was further discussed in Yeldham v Rajski (1989) 18 NSWLR 48 at 61-64 and 66; and see also Wentworth v Wentworth [2000] NSWCA 350; (2001) 52 NSWLR 602 at [24]. [21] The immunity does not derive from the Judicial Officers Act. Sections 44A to 44C merely clarify and extend the common law principle. [22] The essence of the Statement of Claim is that Pain J has a tortious liability for the orders that her Honour made on 14 March 2005. From her Honour's liability the vicarious liability of the State of NSW is said to flow. [23] In the first instance, Pain J has no liability in respect of the orders she made. Even if they had been incorrectly made (and the evidence is to the contrary) neither she nor the State of NSW has any liability for what she did. [24] In any event, no duty of care is owed by the Defendants to the Plaintiff. A similar argument was put forward in Hammond v State of NSW [2013] NSWSC 1930 and rejected on the basis that the duty alleged did not satisfy the six step test identified by McHugh J in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 at [93]: see Adamson J in Hammond at [51]-[52] and [55]-[57]; upheld by the Court of Appeal in Hammond at [27].
The Court of Appeal dismissed a summons for leave to appeal against that decision: Stankovic v State of New South Wales [2016] NSWCA 168.
The Judicial Officers Act 1986 (NSW) relevantly provides: 44A Immunity of Supreme Court Judges The protection and immunity of a Judge of the Supreme Court (or a Judge having the same status as a Judge of the Supreme Court) performing duties as such a Judge extends to the Judge when performing ministerial duties as such a Judge. 44C Immunity of officers performing duties of judicial officers A registrar, an associate Judge of the Supreme Court, a Commissioner of the Land and Environment Court, an authorised justice, an authorised officer (within the meaning of the Criminal Procedure Act 1986) or any other officer of a court has, when performing the duties of a judicial officer (including ministerial duties), the same protection and immunity as the judicial officer has in the performance of those duties.
Two things are apparent from s 44A. First, that section is not the source of judicial immunity; rather, the position is, as Gleeson CJ said in Fingelton at [38], the immunity is conferred by the common law. Secondly, the section acknowledges the existence of the common law doctrine.
In Hammond No 1 the plaintiffs brought proceedings against both the State of NSW and the Commonwealth principally based on the proposition that each of the defendants was vicariously liable for the acts of judicial officers who decided matters adversely to the plaintiffs in various proceedings to which the plaintiffs were parties. The claim against the Commonwealth was also based on an alleged duty to uphold the law, monitor judges, and correct errors of law made by them.
The plaintiffs had been defendants in proceedings brought by the mortgagee of their land. A judge of this Court made an order for possession by the mortgagee. An appeal was brought unsuccessfully to the Court of Appeal, and subsequently special leave applications were made to the High Court which were unsuccessful. As in the present proceedings, both the State and the Commonwealth were said to owe a duty of care to the plaintiffs.
Justice Adamson considered that the proper approach to identifying whether a duty of care existed was by following the six-step test identified by McHugh J in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 at [93]. Justice Adamson found, that applying that test, no duty of care was owed by either the Commonwealth or the State to the plaintiffs.
Her Honour also held that the principle of judicial immunity applied, and that the proceedings brought by the plaintiffs amounted to an attempt to re-litigate issues that had already been heard and determined. Finally, her Honour held that the State of NSW was not vicariously liable for the acts of a judicial officer, because judicial officers were neither acting as servants of the Crown, nor in the Crown's service, but as independent judicial officers, relying on Towie v State of Victoria (2008) 19 VR 640 at [60].
On appeal to the Court of Appeal, the Court of Appeal held that there was no error in her Honour's analysis in relation to the operation of the test in Crimmins, and that the claim by the plaintiffs was an attempt to re-litigate matters that had already been determined adversely to them: Hammond v State of New South Wales [2015] NSWCA 304 at [27] and [29].
There is no difference in principle between the claims seemingly made in the present proceedings, and the claims made in both Hammond No 1 and Stankovic. Not only are the claims an attempt to re-litigate matters decided against the plaintiff, but they also run up against the barrier of judicial immunity, and the fact that the State of New South Wales is not vicariously liable for acts and omissions of judicial officers.

(3) No reasonable cause of action

It follows from the two matters already discussed, that the plaintiff has no reasonable cause of action against the courts or judges of the courts. In the same way, neither the State nor the Commonwealth can have any vicarious liability for the acts or omissions of the courts and judges.
In Donaldson CA, the Court of Appeal said: [10] Secondly, the judicial immunity of Davies J and the Registrar requires the conclusion that the State is not vicariously liable to Mr Donaldson in respect of their allegedly inappropriate conduct. Adopting the language of Brennan CJ, the application of the doctrine of vicarious liability requires that there is an underlying tortious liability that can be "sheeted home" to someone other than the tortfeasor (Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 329-30; [1997] HCA 39. See also Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 at [32]). [11] By reason of statute or otherwise, a person might not be able to be sued but nevertheless might still be regarded as having committed a tort, so that another party might be vicariously liable in respect of his or her conduct (see for example Broom v Morgan [1953] 1 QB 597 at 607, 609 and 612; Tooth & Co Ltd v Tillyer (1956) 95 CLR 605; [1956] HCA 49). We do not however consider it arguable that the nature of judicial immunity is such that Davies J or the Registrar might properly be regarded as having committed a tort, notwithstanding the applicability of judicial immunity. The rationale of judicial immunity indicates otherwise. [12] The immunity is designed to ensure that judges "may be free in thought and independent in judgment" and "not … be plagued with allegations of malice or ill-will or bias or anything of the kind" (Sirros v Moore at 136 per Lord Denning MR). To similar effect, Lord Esher MR said in Anderson v Gorrie [1895] 1 QB 668 at 670-1, that if there were no immunity the "judges would lose their independence and that the absolute freedom and independence of the judges is necessary for the administration of justice" (cited with approval in Rajski v Powell at 528 per Kirby P). An immunity which protected judges against suit but allowed them to suffer the ignominy of being characterised as tortfeasors would not be consistent with these objectives, nor with the "absolute and non-qualified character" of judicial immunity to which Heydon JA referred in Wentworth v Wentworth (2001) 52 NSWLR 602; [2000] NSWCA 350 at [260]. [13] In these circumstances, it is unarguably clear that the State does not have any vicarious liability as was alleged in Mr Donaldson's proceedings.
Reliance on s 43A of the Civil Liability Act to assert a direct liability on the State of New South Wales is misconceived. Section 43A provides: 43A Proceedings against public or other authorities for the exercise of special statutory powers (1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority. (2) A special statutory power is a power - (a) that is conferred by or under a statute, and (b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority. (3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. (4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.
The pre-requisite to liability is the exercise of, or failure to exercise, a special statutory power conferred on a public or other authority. To the extent that the Supreme Court is asserted to be a public or other authority (which may be doubted), no power of the type asserted by the plaintiff has been conferred on it under a statute, as subs (2) requires. Accordingly, the issue of unreasonableness (upon which the plaintiff places some emphasis) does not arise.
Certainly, s 43A would have no application to the High Court of Australia in any event.
Accordingly, the claims against the State of New South Wales and the Commonwealth are doomed to fail.

(4) Claim against the Attorney-General

The Attorney-General has no responsibility to investigate criminal conduct. That is the responsibility of the police. The police do not owe a duty to members of the public who might suffer injury as a result of the carelessness of the investigation: Hill v Chief Constable of West Yorkshire [1989] AC 53 at 63; Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [60].
In Gouriet v Attorney-General [1978] AC 435 Viscount Dilhorne said (at 487): The Attorney-General has many powers and duties. He may stop any prosecution on indictment by entering a nolle prosequi. He merely has to sign a piece of paper saying that he does not wish the prosecution to continue. He need not given any reasons. He can direct the institution of a prosecution and direct the Director of Public Prosecutions to take over the conduct of any criminal proceedings and he may tell him to offer no evidence. In the exercise of these powers he is not subject to direction by his ministerial colleagues or to control and supervision by the courts.
Similarly, in Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48, Gibbs ACJ and Mason J said (at 91 and 96): [T]he courts cannot review the Attorney-General's exercise of the prerogative power to enter or refuse a nolle prosequi… The courts exercise no control over the Attorney-General's decision to commence criminal proceedings, but once he does so, the court will control those proceedings so as to ensure that the accused receives a fair trial.
If decisions to prosecute or to end a prosecution are not reviewable by the courts, it follows, that if the Attorney-General had the power to investigate wrongdoing with a view to instituting criminal proceedings, any decisions by him in that regard would not be reviewable.
There is the further matter that no duty of care is owed by the Atorney-General to do anything concerned with an investigation or the institution of criminal proceedings, because the test in Crimmins is not satisfied.
The plaintiff submitted that because the Attorney-General had, as she asserted, sent police out to her place on a number of occasions, he must owe her a duty to make the investigations she seeks. The plaintiff submitted that the Attorney-General can't have it both ways. If he did not have a duty of care, he should not have sent the police out.
Although this assertion was made, there was no evidence that the Attorney-General had done any such thing. The plaintiff pointed to what appeared on Discharge Summary from North Sydney Area Community Health which said: Sarah ROBINSON who was referred to Ryde ACT by Eastwood Police - Constable Pledge. 05/11/21 - Police attended property after email was sent to Attorney General. Email was scrambled (possibly voice to text), did not make sense and vaguely alluded to SH and SI presented as reasonably well and did not meet the criteria for being scheduled.
I have assumed that SH and SI refers to self-harm and either self-injury or suicidal ideation. Even if some contact was made from the Attorney-General's office to the police (and there is no direct evidence of that), the concern seems to have arisen about the well-being of the plaintiff. That does not give rise to any duty of care, and certainly not to any alleged duty of care to investigate or prosecute. The fact that the Attorney-General may have a power to do something does not mean he has a duty to do it.
In my opinion the claim made against the Attorney-General is manifestly groundless and so obviously untenable that it cannot possibly succeed.

Pleading

Neither the statement of claim, nor the amended statement of claim, complies with UCPR Pt 14, nor with what has been said in such cases as Dare v Pulham (1982) 148 CLR 658 at 664; McGuirk v The University of New South Wales [2009] NSWSC 1424 at [21]-[35]; and Cameron v Qantas Airways Ltd and Anor [2010] NSWSC 899 at [17]-[18].
However, in the light of my conclusion on the issue of summary dismissal of the claim, it is not necessary to consider the issue of pleading further.

Conclusion

In a letter from the Crown Solicitor in respect of the claims against the first to fifth defendants in the first Statement of Claim, the plaintiff was informed that the proceedings were likely to be dismissed because of the principles of finality and judicial immunity. She was given the opportunity to discontinue the proceedings in circumstances where those defendants would bear their own legal costs. She was also warned that if the proceedings were not discontinued, the defendants would seek to have the proceedings dismissed together with an order that the plaintiff pay their costs.
Accordingly, I make the following orders: 1. The proceedings are dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). 2. The plaintiff is to pay the defendants' costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2021

Crown Proceedings Act 1998(NSW)

Uniform Civil Procedure Rules 2005(NSW)rr 7.10, 13.4, 14.28

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