Singh v Charles

Notice of Motion

1. Initially, two Notices of Motion came before me for hearing: first, that filed by the first defendant on 31 January 2022; secondly, that filed by the plaintiff on 28 March 2022.
2. The plaintiff indicated that he was not prepared to proceed on his Notice of Motion. In those circumstances, this judgment only concerns the Notice of Motion filed by the first defendant on 31 January 2022.
3. The landlords did not appear at the hearing of this motion. Nor have they filed any material in the proceedings, including, as I have noted, any Notice of Appearance.
4. By his Notice of Motion, the first defendant seeks the following orders: "1. The plaintiff's Statement of Claim filed on 18 November 2021 be dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005. 2. In the alternative, paragraphs 7 to 17 of the Statement of Claim be dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005. 3. The plaintiff's Statement of Claim filed on 18 November 2021 be struck out pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005. 4. In the alternative, paragraphs 7 to 17 of the Statement of Claim be struck out pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005. 5. The plaintiff pay the costs of this Motion. 6. The plaintiff pay the first defendant's costs of the proceedings."
5. The relief sought in Orders 3 and 4 of the Motion need only to be considered if the Court declines to grant the relief sought in Order 1.
6. The first defendant relies on the affidavit of Ms Breen, affirmed 31 January 2022 and filed 1 February 2022. Ms Breen's affidavit annexes correspondence between the plaintiff and the first defendant in relation to the plaintiff's claim and, mostly, goes to the issue of whether costs should be awarded if the first defendant succeeds.
7. The plaintiff did not object to that evidence and did not tender any evidence in reply.

Legal Principles

1. It is convenient to first set out the relevant rule.
2. Rule 13.4(1) of the Uniform Civil Procedure Rules 2005 ("UCPR") provides: "If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim."
3. In A v Dept of Communities and Justice [2021] NSWSC 937, I summarised the relevant legal principles with respect to summary dismissal, which it is convenient to reproduce here: "[19] Before a court can summarily dismiss a claim, the Court must be persuaded that the case for the dismissal is very clear. [20] The principles guiding the exercise of the Court's power to order summary dismissal of proceedings are clear and of long-standing. The ordinary course of litigation ought generally be allowed to take place. That is because a litigant with a proper cause of action is entitled to expect that they will not be denied the opportunity, after taking advantage of the usual interlocutory processes, to put their case before the Court for judicial determination on the merits. [21] But this ordinary expectation is not unconstrained. The rules of Court permit proceedings to be summarily dismissed in appropriate circumstances. The rules exist to balance the litigant's ordinary expectations on the one hand, with the right of the opposing party on the other hand, not to be vexed by litigation in which a proper cause of action cannot be reasonably identified, or if the proceedings are vexatious, oppressive, or an abuse of process. [22] In 2016, in Pi v Zhou [2016] NSWCA 24, Gleeson JA said at [9]: 'It may be accepted that the power to order summary dismissal is one that should be exercised with great care and not unless it was clear that there is no real question to be tried. The test to be applied has been variously expressed, including: 'So obviously untenable that it cannot possibly succeed'; and 'manifestly groundless', but the underlying point is that there must be a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial or a hearing in the ordinary way: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46] ; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24] -[25] (French CJ and Gummow J).'"
4. In considering whether to order summary dismissal, the Court needs to exercise caution, and to be satisfied that the certainty of the outcome of the litigation, rather than merely an assessment of prospects of success, has been demonstrated by the applicant: Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 at [30].
5. I will apply these principles in considering the disposition of the first defendant's Notice of Motion.

Factual Background

1. In his Statement of Claim, the plaintiff pleads a number of facts which provide a background to understand the claim which he makes.
2. The plaintiff pleads that he is a tenant of premises at Kingswood pursuant to a contract which is subject to the Residential Tenancies Act 2010. He pleads that the landlords breached that contract by substantially increasing the rent without notice and, on 23 June 2021, invalidly purported to issue a termination notice of the tenancy.
3. The plaintiff pleads that, on 9 November 2021, the first defendant "[held] public office in [NCAT] and pursuant to powers associated with [his] office" did those things described in [2] above.
4. During the course of oral submissions, the plaintiff made it clear that all of the allegations against the first defendant set out in paragraphs 9, 10 and 11 of the Statement of Claim arose from his conduct, including decision making, which occurred during the course of the hearing before the first defendant of the dispute between the landlords and the plaintiff. That is, the first defendant is being sued in respect of acts done in a hearing in NCAT and whilst apparently exercising his role and function as a member of NCAT to deal with the dispute between the plaintiff and his landlords.
5. The plaintiff also informed the Court (without demur from the lawyers for the first defendant) that, at the end of the hearing in NCAT on 9 November 2021, the first defendant made orders with the consent of all parties which terminated the plaintiff's residential tenancy.
6. The plaintiff indicated that he had lodged an appeal against those orders to the Appeal Panel of NCAT, and that the appeal had been argued but, as at the time of hearing, no judgment had been delivered. It appears from Caselaw that a judgment was delivered on 16 May 2022: Singh v Lekhwar [2022] NSWCATAP 158. No party has made any submission dealing with this judgment or the orders made. I do not have regard to it or the orders. The fact that it has been delivered is only noted here to ensure that the record is correct.

Submissions

1. The first defendant submits that the plaintiff's claim as against him is doomed to fail because the first defendant is entitled to judicial immunity with respect to claims of this kind and that, accordingly, the continuation of the proceedings is an abuse of the process of the Court and is vexatious.
2. The plaintiff submits that, in all of the circumstances, it is open for this Court to find that the first defendant knowingly acted outside his jurisdiction and did so in bad faith, such that the immunity should not apply. It follows, the plaintiff submitted, that this action is not doomed to fail.

Discernment

1. Schedule 2, cl 4 of the Civil and Administrative Tribunal Act 2013 ("the Act") provides: "A member has, in the exercise of functions performed as a member, the same protection and immunities as a Judge of the Supreme Court."
2. Judges of the Supreme Court are immune from civil liability for acts done in the exercise of their judicial function or capacity: Rajski v Powell (1987) 11 NSWLR 522 at 527G; Re East; Ex parte Nguyen (1998) 196 CLR 354; [1998] HCA 73 at [30]. As Gleeson CJ said in Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 at [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."
3. The NSW Court of Appeal recently articulated the relevant principles in Donaldson v State of New South Wales [2019] NSWCA 109 at [7]-[9]: "[7] … The existence of [the common law judicial immunity in respect of conduct and judgment in proceedings], at least whereas 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]). … [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).
4. Fitzgerald JA (with whom Heydon JA agreed) said in Wentworth v Wentworth (2001) 52 NSWLR 602; [2000] NSWCA 350 at [24], this: "Judicial immunity is an essential corollary of judicial independence, which requires that judges be free to administer justice free from not merely the risk of personal liability but also the burden of resisting the claims and allegations of disaffected litigants. The protection which judicial immunity is intended to provide to those who perform the controversial but essential functions of adjudicating disputes would be denied them if the ambit and operation of the doctrine were open for debate."
5. At [26], Fitzgerald JA added these remarks about Sirros v Moore [1975] 1 QB 118, a decision which he said was unlikely to have any practical utility in Australia: "What is patently clear is that the exception to judicial immunity suggested in Sirros does not exclude immunity for misconduct of any kind in the exercise of the jurisdiction of a court of which the judge who engaged in the misconduct is a member."
6. The plaintiff draws attention to the so-called "Sirros" exception to the doctrine of judicial immunity, as encapsulated in [7] in Donaldson set out at [26] above, and submits that it has the effect of denying the availability of judicial immunity to the first defendant. It is appropriate to note what Buckley LJ said at p 141 of Sirros: "If the act was, or purported to be, a judicial act and was within the judicial powers of the judge, he is immune from civil liability. Public policy requires that the judge's conduct shall not be impugned … It is perhaps arguable that a judge, though acting within his powers, might be shown to have acted so perversely or so irrationally that what he did should not be treated as a judicial act at all. In such a case the remedy of his removal from office would be available. I doubt whether it would be in the public interest that his conduct should be open to debate in a private action."
7. In the same case, the Master of the Rolls, Lord Denning, said at p 132, this: "Ever since the year 1613, if not before, it has been accepted in our law 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 was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. … Of course, … the judge … can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear …"
8. Lord Denning went on to note at p 134, with respect to the judicial immunity of judges of a "superior court", thus: "There is no case in our books where a judge of a superior court has ever been held liable in damages. Even though a judge of a superior court has gone outside his jurisdiction, nevertheless he is not liable, so long as he is acting judicially."
9. A judge of the Supreme Court of NSW would fall within the description of a judge of a superior court as that term was used by Lord Denning.
10. By operation of Sch 2, cl 4 of the Act, Members of NCAT enjoy the same common law immunity from civil liability as do judges of the Supreme Court. The above observations are therefore applicable to them.
11. It is to be observed from the allegations pleaded, as clarified by the plaintiff in his oral submissions, that the plaintiff's claims as against the first defendant relate only to the first defendant's conduct during the course of a hearing over which the first defendant presided in NCAT on 9 November 2021. There is no other conduct by the first defendant upon which the plaintiff relies to constitute his claims against the first defendant.
12. It is clear that NCAT had the jurisdiction to hear and determine the dispute between the plaintiff and his landlords: s 111(1) of the Residential Tenancies Act. As well, the landlords had applied to NCAT for orders terminating the residential tenancy agreement between the parties. They were entitled so to do: s 84(3) of the Residential Tenancies Act.
13. The plaintiff in his pleading does not allege any lack of jurisdiction in NCAT to hear the dispute between him and his landlords. He makes no such submission orally.
14. Section 27(1)(d) of the Act provides that the Tribunal hearing an application of the kind here in issue may be constituted by a single member of the Division to which the proceedings are allocated. That is what occurred for the hearing on 9 November 2021, which is the subject of these proceedings.
15. Section 38 of the Act provides that NCAT may determine its own procedure in relation to any matter for which provision is not otherwise made. NCAT is not bound by the rules of evidence and may enquire into and inform itself on any matter in such manner as it thinks fit subject to the rules of natural justice. In particular, s 38(4) provides that NCAT is to "act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms".
16. Other than the bare allegation that the first defendant exercised power without legal authority, there is no suggestion in the pleading that the first defendant's conduct was not purportedly in the exercise of his functions and jurisdiction as a Member of NCAT. It seems to me, therefore, that the plaintiff's complaints all relate to the manner in which the first defendant exercised the power which he undoubtedly had: see Rajski at 536D.
17. In those circumstances, because of the operation of the immunity from civil liability conferred by the common law on Supreme Court judges and extended to Members of NCAT by statute, even if the plaintiff's factual allegations were proved, there would be no arguable claim as against the first defendant, and the plaintiff's claim for damages against the first defendant must fail. The Statement of Claim discloses no reasonable cause of action, and the proceedings should be dismissed.
18. The plaintiff submitted that there is no evidence from the first defendant that he acted within his jurisdiction. The plaintiff's submission misconceives the nature of the inquiry on an application of this type. As I have observed, the power to summarily dismiss a claim must be exercised cautiously. That does not mean that it will be impossible for an applicant for summary dismissal to succeed, including in circumstances where no party has filed or relies on evidence to support or dispute the substantive claim. To the contrary, in this case, I have assumed that the plaintiff's allegations would be proved and having made that assumption, I am satisfied to a high degree of certainty that the action must fail because the first defendant is immune from suit.
19. Finally, it is apt to note that because the determination of the first defendant's motion does not depend upon evidence which may be made available by the landlords, there is no reason to refuse the relief sought: cf Wickstead v Browne (1992) 30 NSWLR 1.

The Plaintiff's Notice of a Constitutional Matter

1. On 17 March 2022, which was about two weeks before the hearing of the defendant's Notice of Motion, the plaintiff filed a Notice of a Constitutional Matter ("Constitutional Notice"). The Constitutional Notice had by the time of the hearing of the Motion apparently been served by the plaintiff on the Attorneys-General of the Commonwealth, the Northern Territory, South Australia, Tasmania, Victoria and Western Australia. The NSW Crown Solicitor's Office received a copy of the Constitutional Notice. I regard this as sufficient service on the Attorney-General for NSW.
2. I note that none of the Attorneys-General had intervened by the time of the hearing, nor has any Attorney-General sought to intervene in the time since. Having regard to the views I express below, that outcome is unsurprising.
3. The plaintiff says I should not proceed to determine the matter until I am satisfied that notice has been given, and a reasonable time has elapsed, in accordance with s 78B(1) of the Judiciary Act 1903 (Cth). Plainly, the Constitutional Notice has not been served on the Attorneys-General of the Australian Capital Territory and Queensland. Equally plainly, a reasonable time has elapsed for any Attorney-General who has received notice to take action as contemplated by s 78B. Nevertheless, in the circumstances, I cannot be satisfied that the requirements of s 78B(1) have been met.
4. However, for the purposes of s 78B, I need to be satisfied that there is in fact a "matter arising under the Constitution or involving its interpretation" in these proceedings before declining to proceed with the hearing of this interlocutory Notice of Motion.
5. The matter arising under the Constitution, or involving its interpretation, is set out in the Constitutional Notice in these terms: "Whether Schedule 2, Clause 4 of the Civil and Administrative Tribunal Act 2013 is incompatible with Chapter III of the Constitution? (because it undermines the constitutionally permissible investiture in that court of the separated judicial power of the Commonwealth)?"
6. The terms of the Constitutional Notice derive from that part of the judgment of Gageler J in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 at [183] in which his Honour said: "183. … To render State and Territory courts able to be vested with the separated judicial power of the Commonwealth, Ch III of the Constitution preserves the institutional integrity of State and Territory courts. A State or Territory law that undermines the actuality or appearance of a State or Territory court as an independent and impartial tribunal is incompatible with Ch III because it undermines the constitutionally permissible investiture in that court of the separated judicial power of the Commonwealth."
7. Previous decisions of the High Court and the NSW Court of Appeal make these propositions clear beyond argument: 1. NCAT is not a "court of a State" for the purposes of Ch III of the Constitution: Attorney-General of NSW v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 at [184]-[190] per Bathurst CJ; 2. NCAT exercises judicial power of the State of NSW when making orders under the Residential Tenancies Act: Gatsby at [125]-[137]; 3. NCAT is not vested with federal jurisdiction and does not have any jurisdiction to hear and determine any matter under s 75 or s 76 of the Constitution: Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15.
8. As the provision in cl 4 of Sch 2 of the Act confers on NCAT members the same judicial immunity as that of a Supreme Court judge, although the Supreme Court is a court of the State under Ch III of the Constitution, that legislation does not alter the status of, or the nature of, NCAT, thereby making it a court of a State.
9. As the extract from Pompano at [48] above shows, it is of the essence that to be included in the terms of Ch III, NCAT must be a court of a "State", which it is not, or else arguably a body exercising federal jurisdiction, which it does not. NCAT stands outside the provisions of Ch III and, accordingly, there is no basis to consider or determine the question of invalidity of any part of the Act which constitutes and empowers NCAT by reason of Ch III of the Constitution.
10. In the circumstances addressed in the Constitutional Notice, and in the proceedings generally, no matter arises or is capable of arising under the Constitution.
11. This Court is not obliged to defer the hearing and determination of these proceedings by reason of the Constitutional Notice.

Orders

1. I make the following orders: 1. Order, pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005, that the plaintiff's Statement of Claim filed on 18 November 2021 be dismissed as against the first defendant. 2. Order that the plaintiff pay the first defendant's costs of the proceedings, including the Notice of Motion filed on 31 January 2022. 3. List the balance of the proceedings before the Common Law Registrar at 9am on 20 June 2022.

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