Stankovic v State of New South Wales [2016] NSWCA 168 | Case summary | Zoe

/

/

Stankovic v State of New South Wales [2016] NSWCA 168 | Case summary | Zoe

Judgment

JUDGMENT of THE COURT delivered by BASTEN JA: On 6 November 2015 the applicant, Milovan Stankovic, commenced proceedings in the Common Law Division claiming $35 million in damages against the State of New South Wales and the Land and Environment Court. On 8 February 2016, Davies J dismissed two notices of motion filed by Mr Stankovic, and, on a motion brought by the defendants, dismissed the proceedings and ordered that Mr Stankovic should pay the defendants' costs. [1] No notice of intention to appeal was filed or served in relation to that judgment. However, on 29 April 2016, a summons seeking leave to appeal was filed in this Court, and apparently served, with a white folder, a few days later on 2 May 2016.
The summons should have been filed by 7 March 2016 and was, therefore, some seven weeks out of time. The State opposes an extension of time. It does so on the basis that the application for leave to appeal is hopeless and should be dismissed in any event.
There are factors which militate against that approach, namely: (a) the applicant is unrepresented; (b) the summons was filed and served within the three month period allowed in the event that a notice of intention to appeal is served within 28 days of the judgment sought to be challenged; (c) the State does not assert any prejudice, and (d) the basis for refusing an extension requires consideration of the same matters which would need to be addressed in considering the leave application. In those circumstances, the applicant should have an extension of time within which to seek leave to appeal, up to and including 2 May 2016, being the date on which the State says it was served with the summons and the white folder.
There is, however, substance to the State's submissions that the proceedings were hopeless and properly struck out by Davies J.
The proceedings are brought against the Land and Environment Court in tort, alleging that the Court was "guilty of professional negligence and neglect of its duty of care to ensure the compliance with proper legal procedure". There is a false factual assumption underlying that claim. Further, as a matter of law, neither the Court nor individual judicial officers can be liable in negligence for the exercise of judicial functions.
The State is said to be vicariously liable for the negligence of the Court, or the judges of the Court. Liability is said to arise pursuant to the Law Reform (Vicarious Liability) Act 1983 (NSW) ("Vicarious Liability Act"), s 8(1) of which provides that the State's liability extends to torts committed by persons "in the service of the Crown in the performance or purported performance by the person of a function (including an independent function)".
Whatever the potential scope of the liability of the State, no liability will arise, subject to one qualification, if the negligent officer has committed no tort. The qualification depends upon the effect of s 10 of the Vicarious Liability Act, which would impose liability even if the officer were not liable because of a "statutory exemption" which excluded or limited the liability of the officer. The immunity of judicial officers does not depend upon a statutory exemption, but on the fact that, under the general law, no liability can arise.
Some further explanation of these conclusions is warranted, commencing with the factual issue. In 2005 there were proceedings on foot in the Land and Environment Court between the Baulkham Hills Shire Council (since renamed) and Milovan and Milka Stankovic. The Council sought orders against Mr and Mrs Stankovic on the basis that their property, situated within the Shire Council's local government area, was being used otherwise than for a permitted purpose. The history of the proceedings is to be found in the judgment of this Court in Stankovic v The Hills Shire Council, delivered on 9 September 2015. [2]
The critical procedural events were as follows. First, the matter was fixed for hearing on 19 January 2005. On the application of Mr Stankovic, the hearing on that day was vacated and the matter stood over to 16 February 2005, though it was not listed for hearing on that day. Secondly, the Council failed to attend before the judge on 16 February and an order was made striking out the proceedings "for want of prosecution." Thirdly, by notice of motion dated 21 February 2005, the Council sought to have the order dismissing the proceedings vacated. It appears from the Court file that the motion was heard (Mr Stankovic being present) on 4 March 2005 and the orders sought by the Council were made. The parties were directed to approach the Registrar for a hearing date. (The motion was originally listed for hearing on 25 February, as acknowledged by Mr Stankovic in a letter to the Chief Judge of the Court dated 9 March 2005.) Fourthly, a hearing was conducted before Pain J on 14 March 2005 and, on 22 March 2005, orders made in favour of the Council, including an order that Mr Stankovic pay the Council's costs.
The factual premise underlying the present proceedings is that the order dismissing the proceedings for want of prosecution was "final" and, the proceedings having been "dismissed", no further steps could be taken in those proceedings until they were reinstated (the power to reinstate not being in doubt in the light of the timely application), which reinstatement Mr Stankovic claimed had not in fact occurred.
In 2007, Mr Stankovic sought to challenge the substantive orders made in March 2005, though not the costs order.
On 5 June 2015, Mr Stankovic sought leave to appeal from the judgment of Pain J of 14 March 2005. The summons seeking leave was dismissed. [3] In the judgment of 9 September 2015, this Court pointed out that, even if there had been no formal order reinstating the proceedings, the judgment and orders of Pain J were not a nullity, being orders of a superior court of record and being effective and binding on the parties until set aside. [4] The current proceedings appeared to accept that proposition and, indeed rely upon the effectiveness of the orders made, as causative of financial harm to Mr Stankovic. But Mr Stankovic continued in oral submissions this morning to stand by his point which has been finally determined against him, namely that no order was ever made reinstating the proceedings.
This reasoning is patently misconceived. Superior courts of record make orders on a daily basis which cause adverse financial consequences to one party or another. If they are not set aside on appeal, they are valid and effective. To hypothesise a cause of action for harm caused by such an order is to contradict the basic premise on which the exercise of judicial power depends. No question is raised of immunity from suit; the basic premise that there could be a cause of action is contradicted. The caselaw is unqualified in support of this proposition, much of which is phrased in terms of "judicial immunity". Nevertheless, as explained by Fitzgerald JA in a case in which a qualification based on judicial misconduct was alleged, Wentworth v Wentworth, [5] any such exception to judicial immunity would be "incompatible with the necessity on which the doctrine is founded".
It follows that no claim in negligence can be maintained against the Land and Environment Court because (a) the factual basis for such a claim is absent and, more importantly, (b) because no such cause of action exists. Accordingly, it is unnecessary to consider whether if a particular cause of action existed, the State would be vicariously liable for tortious conduct of a judicial officer. [6] However, it may be noted that the reasoning accepted by the primary judge that the Vicarious Liability Act was not engaged rested on cases not dealing with that legislation. [7]
The Court should make the following orders: 1. Extend the time within which the summons seeking leave to appeal should be filed to 2 May 2016. 2. Dismiss the summons seeking leave to appeal from the judgment of Davies J given in the Common Law Division on 8 February 2016. 3. Order that the applicant pay the costs of the respondent State of New South Wales.