accessorial liability claim against first, second and third respondents (VID 114 [114]-[133])
85 Section 122 of the DDA provides as follows:
A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1, 2, 2A or 3 of Part 2 is, for the purposes of this Act, taken also to have done the act.
86 At [114] of the Statement of Claim in VID 114, Ms Winters alleges that the first, second and third respondents caused, instructed, induced, aided or permitted the mediator to conduct the mediation in a manner which was unlawful under Division 2 of Part 2 of the DDA.
87 At [115] it is acknowledged that the mediator has the protection and immunity provided by s 53C of FCA Act. That provision is in the following terms:
A mediator or an arbitrator has, in mediating or arbitrating anything referred under section 53A, the same protection and immunity as a Judge has in performing the functions of a Judge.
88 Having referred to the immunity conferred upon the mediator, the pleading then asserts that the immunity does not prevent a finding that acts or omissions on the part of the mediator were unlawful for the purposes of the DDA. It is then asserted (at [117]) that unlawful acts on the part of the mediator provide a basis for liability under s 122 of the DDA on the part of the first, second and third respondents as persons involved in the unlawful acts.
89 Thereafter the pleading attempts to set out the alleged unlawful acts of the mediator relied upon. It is asserted that the mediator provided mediation services in a manner which breached s 24(c) of the DDA. That the conduct of the mediator constituted direct discrimination within the meaning of s 5(2) of the DDA is asserted at [123]. That allegation seems to be based on the content of [119]-[122]. Paragraph [119] is a conclusion that the mediator failed to ensure that reasonable adjustments were made for Ms Winters. Paragraph [120] states that the adjustments which the mediator failed to ensure were made were those particularised under [104] as follows:
The [mediator] took no steps to ensure that the Applicant was in a fit mental state to participate in the Mediation.
The [mediator] acquiesced in the First Respondent being in the same room as the Applicant during the Mediation, despite the First Respondent's history of sexual violence toward the Applicant.
The [mediator] failed to provide the Applicant with a cooling off period prior to the finalisation of any settlement at the conclusion of the Mediation.
90 Paragraph [121] seems to be an attempt to justify why the adjustments which it is said the mediator failed to make should be regarded as reasonable. Paragraph [122] asserts that the failure to make the adjustments had the effect that Ms Winters, because of her disability, was treated less favourably than a person without the disability would be treated in similar circumstances.
91 At [129] the pleading also asserts that the conduct of the mediator constituted indirect discrimination within the meaning of s 6(2) of the DDA. That assertion seems to be based upon the contents of [124]-[128]. Paragraph [124] is a conclusion that the mediator provided mediation services in a manner which involved the imposition of requirements or conditions with which Ms Winters was unable to comply because of her disability. At [125] it is stated that the requirements and conditions are those particularised at [109] as follows:
It was a requirement or condition of the manner in which the First, Second and Third Respondents provided their services that:
• there be no discussion of, enquiry into, or assessment of, the mental health or capacity of the Applicant prior to or during the Mediation;
• there be no consultation with treating medical specialists about the fitness of the client to engage in mediation, to agree to any settlement proposal, or the potential impact of any proposed settlement on the Applicant's mental health;
• the parties to the Mediation confront each other physically in the same room during the Mediation, regardless of any history of sexual violence between them;
• there be no cooling off period prior to finalising any settlement at the conclusion of the Mediation.
92 At [126] it is asserted that Ms Winters was unable to comply with those requirements and conditions because of her disability. Reliance is placed on the particulars given at [110] as follows:
The Applicant suffered from a psychiatric condition which severely affected her cognitive functioning during the Mediation. As a consequence of that psychiatric condition, the Applicant was unable to meaningfully participate in the Mediation.
93 At [127] it is pleaded that the requirements and conditions were likely to have the effect of disadvantaging persons with Ms Winter's disability. Paragraph [128] is a submission to the effect that there has been judicial recognition that persons who have a mental disability are disadvantaged in navigating court processes compared with persons without such a disability.
94 Thereafter at [130]-[132] the following allegations are made in relation to the conduct of the first, second and third respondents:
[130] The First, Second and Third Respondents were active participants in the Mediation with the ability to guide the course of the Mediation and the manner in which it was conducted.
[131] In addition to their role as providers of a service to the Applicant, the First, Second and Third Respondents also aided, induced and permitted the mediator to conduct the Mediation in the manner described above.
[132] It was in the First, Second and Third Respondents' power to prevent the Mediation from being conducted in the absence of the adjustments identified above at paragraph [104] and to prevent the imposition of the requirements and conditions identified above at paragraph [109].
95 Lastly, [133] is a submission about the extent of the common law advocate's immunity from suit and includes the assertion that it has no application to the conduct alleged against the first, second and third respondents.
96 The first, second and third respondents raised five but I think, in truth, four grounds in support of the accessorial liability claim being struck out and that no leave to re-plead it be given. First, that, by reason of the immunity conferred on the mediator, there can be no accessorial liability because the immunity has the effect that there can be no principal contravention of the DDA by the mediator. Second, the immunity prohibits the revelation and scrutiny of the conduct of the mediator and that prohibition would foreclose any capacity for accessorial liability to be established. Third, that it is not possible for a tenable allegation to be made that, in the conduct of a mediation, a Registrar of the Federal Court acting independently could be instructed, induced, aided or permitted by a party or legal representative participating in the mediation. Fourth, the pleading is in any event defective because no material facts are pleaded capable of attracting accessorial liability under s 122 of the DDA and, relatedly, that the defect is incurable because by reason of s 53B, nothing said in the course of the mediation could be admissible as evidence. It would therefore be pointless to permit an allegation to be pleaded which could never be proved.
97 Section 53B of the FCA Act provides:
Evidence of anything said, or of any admission made, at a conference conducted by a mediator in the course of mediating anything referred under section 53A is not admissible:
(a) in any court (whether exercising federal jurisdiction or not); or
(b) in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence.
98 It is convenient that I address the fourth ground of challenge first. The first, second and third respondents are, in my view, correct to contend that insufficient material facts are pleaded to sustain the allegations of accessorial liability. There are no material facts pleaded at [130]-[132] as to what it is that Ms Winters alleges the first, second and third respondents did to cause, instruct, induce, aide or permit the mediator to do anything at all. All that is asserted are the three conclusions I have listed at [94] above. The first and third conclusions address the asserted power or capacities of the first, second and third respondents. The second conclusion is the ultimate conclusion asserting accessorial liability. The pleading fails to identify what it is alleged each of the first, second and third respondents actually did or failed to do and how that conduct is said to have caused, instructed, induced, aided or permitted the mediator to conduct the mediation in contravention of the DDA. The allegations made are pitched at such a level of generality that it is not possible for the respondents to know the case they have to meet. The pleading is embarrassing and should be struck out.
99 I should add that in my view, it was also necessary for the pleading to have properly identified the material facts relied upon concerning the mediator's conduct. Insofar as the pleader has attempted to meet that requirement, what is pleaded is inappropriately buried in particulars to [104] and [109] which directly addressed the alleged conduct of persons other than the mediator and which, in any event, do so in generalised and ambiguous terms. The pleading needed to identify with specificity what the mediator should have done or not done. For instance it is inadequate to allege that steps should have been taken "to ensure that the Applicant was in a fit mental state to participate in the Mediation" without identifying the steps that it is alleged the mediator should have taken. Having identified the acts or omissions of the mediator, the pleading then needed to specify the acts or omissions of the first, second or third respondents which caused, instructed, induced, aided or permitted the mediator to do or not do the impugned actions or omissions. Ms Winter's failure to do so has resulted in the fundamental objective of a pleading not being satisfied: the first, second and third respondents have not been put in the position of knowing the case they must meet. The pleading is embarrassing. I will strike out [114]-[133] of the statement of claim in VID 114.
100 Additionally, insofar as the allegations made against the mediator are allegations directed to establishing indirect discrimination, it was acknowledged for Ms Winters that the facts pleaded are to be taken as addressing allegations of conduct of general application undertaken by the mediator at mediations generally. No tenable foundation is provided in the pleading to support a suggestion that the alleged conduct is conduct generally applied by the mediator in the conduct of mediation conducted by him. For the same reasons as expressed at [80], that part of the pleading which asserts indirect discrimination by the mediator is, in my view, scandalous. It was conceded for Ms Winters that she has no factual foundation (beyond the facts of the mediation) to support the allegations made that the conduct asserted against the mediator is conduct of general application. For the same reasons as expressed at [82], if it were necessary to decide the issue, I would have declined to grant Ms Winters leave to re-plead her claim of accessorial liability against the first, second or third respondent based upon an allegation that the conduct of the mediator at the mediation constituted indirect discrimination.
101 There is, however, another basis for striking out Ms Winters' claims of accessorial liability and refusing Ms Winter's leave to re-plead those claims. In my view, and by reason of the operation of the immunity conferred upon the mediator by s 53C of the FCA Act, the accessorial liability claims do not disclose a reasonable cause of action.
102 That conclusion addresses what I have described as the first and second challenges made by the first, second and third respondents. What is there raised is a point of law about the scope and operation of the mediator's s 53C immunity. I have given close consideration to whether it is appropriate that the point be determined now rather than left to trial. I am mindful of the principle that the strike-out power should be exercised with caution and only in a plain and obvious case. I am also mindful of the caution expressed by French and Gummow JJ in Spencer quoted at [19] above, that summary processes must not be used to stultify the development of the law. However, I also take into account the fifth principle referred to by Beaumont J in Allstate (see [11] above) and the following application of it by Kenny J in this passage from Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) (2011) 203 FCR 293, quoted (with apparent approval) by the Full Court on appeal from her Honour in Polar Aviation at [44]:
Notwithstanding the need for caution, where in a strike-out application, a point of law arises, which can appropriately be decided at the interlocutory stage, the judge is entitled to determine the point, thereby avoiding the need for and expense of a lengthy trial. For the reasons set out below, this is a case in which certain points of law should be decided at this stage, since their disposition does not depend on further evidence and findings of fact, and their resolution will limit any future trial.
103 To my mind, it is appropriate that the point of law raised by s 53C be determined at this interlocutory stage. Each of the reasons referred to by Kenny J are applicable here and there is an additional reason of great importance. If the scope of the mediator's immunity extends to prohibit the revelation and scrutiny of the mediator's conduct in curial proceedings as the first, second and third respondents contended, the immunity conferred would be largely defeated by the conduct of the trial if the question was left to be determined at trial. To avoid the possibility of the immunity being rendered nugatory, it is clearly appropriate that the point of law be determined prior to any trial. The capacity for judicial immunity to be pleaded in bar to suits at the outset was reflected upon by Heydon JA (with whom Fitzgerald JA and Davies AJA agreed) in Wentworth v Wentworth (2001) 52 NSWLR 602 at [260]. Having received full and comprehensive submissions from all of the relevant parties on the point in question, I consider that this is an appropriate juncture for the point to be decided.
104 It was common ground that accessorial liability under s 122 of the DDA is derivative, in the sense that the liability of the accessory depends upon it being established that there was a principal contravention of the DDA by "another person". The first, second and third respondents contended that the immunity provided to the mediator by s 53C of the FCA Act has the effect that there can be no principal contravener and that where there is no principal contravention there is no accessorial liability. For that contention reliance was placed upon Cain v Doyle (1946) 72 CLR 409. That was a case in which a factory manager was charged with aiding and abetting the Commission of an offence by the Commonwealth against s 18 of the Re-establishment and Employment Act 1945 (Cth).
105 It was uncontroversial and may be accepted that Cain v Doyle (and in particular the observations made by Latham CJ at 419 and Dixon J at 426) supports the proposition that where there can be no principal offence a person cannot be found guilty of being an accessory. But that concession only goes so far. The more critical issue is whether the immunity conferred upon a mediator by s 53C has the effect that a mediator cannot commit a civil wrong.
106 I addressed the principles formulated in Cain v Doyle in Construction, Forestry, Mining and Energy Union v Victoria (No 2) [2013] FCA 1034. As I sought to there explain (particularly at [12]-[25]), the approach taken by Dixon J in Cain v Doyle was to identify a "rule of interpretation" for discerning whether a clear legislative intention existed to impose a criminal sanction upon the Crown. Applying that rule of interpretation, Dixon J held that the provision in question was not intended to impose criminal liability upon the Crown (at 425-426). As I also observed at [19]-[21], Latham CJ took a different approach and identified a number of reasons as to why he considered the Crown was not amenable to a criminal sanction. One of those reasons was the application of the rule that "the King can do no wrong" and is thus not liable for a civil or criminal wrong unless made liable by statute. As I went on to observe at [20], the immunity of the Crown to which Latham CJ referred was a matter reflected upon by Weinberg J in McKellar v Container Terminal Management Services [1999] FCA 1101; 165 ALR 409. At [224], Weinberg J explained that the "King's unquestioned immunity from prosecution for crime" was based upon "the somewhat arcane legal fiction that the Sovereign was incapable of possessing the requisite mens rea". However, at [225], Weinberg J said this:
A more modern and less dubious justification for the doctrine is that the Sovereign is immune from punishment, rather than being incapable of committing a crime.
107 Those observations raise some doubt as to whether the common law immunity of the Crown from criminal liability has the effect of converting otherwise unlawful behaviour into lawful behaviour. However, even if that were the case, the rationale for Crown immunity from criminal liability, to which reference has just been made, is quite different to that which underpins the judicial immunity upon which s 53C is founded, to which I will shortly refer. There is no basis for thinking that the effect of the s 53C immunity on the characterisation of the underlying conduct was intended to parallel that of the common law immunity of the Crown in relation to criminal liability. As Kyrou J observed in Towie v Victoria (2008) 19 VR 640 at [62], the cases on judicial immunity have not "stated that the principle has the effect of converting an act which, in the absence of the immunity, would be a breach of the law, into an act that is not in breach of the law".
108 But my acceptance of Ms Winter's contention that the judicial immunity does not have the effect of converting an unlawful act into a lawful act does not answer an anterior inquiry as to whether a person to whom the judicial immunity extends can contravene the DDA. In other words, does the conduct rendered unlawful by s 24 of the DDA include conduct to which the judicial immunity attaches?
109 It is to that inquiry that the "rule of interpretation" formulated in Cain v Doyle may have more bite. A case in point is Re East; Ex parte Nguyen (1998) 196 CLR 354 in which the High Court applied the same kind of interpretative presumption based in the principle of legality (see Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 at [30] (French, Crennan and Kiefel JJ)) as was applied by Dixon J in Cain v Doyle to reject a contention that the acts or omissions of a judge and a magistrate had contravened s 9 of the Racial Discrimination Act 1975 (Cth) ("RDA"), by virtue of a failure of those judicial officers to ensure that the person dealt with in proceedings before each of them had the benefit of an interpreter. Broadly stated, s 9(1) of the DDA made it "unlawful for a person to do any act involving a distinction … based on race … descent or national or ethnic origin which has the … effect of … impairing the … exercise, on an equal footing, of any human right or fundamental freedom in the … field of public life".
110 Kirby J at [80] said this (emphasis added, footnotes omitted):
Thirdly, when the Act was enacted the Parliament would have been well aware of the importance of the independence of judicial officers and of their immunity from personal suit or other proceedings in respect of conduct performed judicially. If it had been the object of the Parliament to render such conduct, in a particular case, unlawful, well established principle would require that the Parliament should say so expressly. If independent judicial officers were to be subject to complaint of allegedly "unlawful" conduct before agencies of the Executive Government, longstanding principle would require that this be expressed in plain terms. In particular, if it had been the purpose of the Parliament to render judicial officers of State courts amenable to such federal remedies (assuming that to be possible), it might have been anticipated that the Parliament would have said so. These considerations make it unthinkable that the unlawfulness mentioned in s 9 was intended to apply to judicial officers at all and, in particular, to the judicial officers of a State, such as those against whom the applicant sought relief.
111 At [30], Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ made observations to the same effect, stating (footnotes omitted):
First, there is a 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. There is nothing in the Act which suggests that it was the intention of the Parliament to override that immunity.
112 An interpretative presumption of this kind has also been applied in the United States of America in relation to the judicial immunity: Pierson v Ray (1967) 386 US 547 at 554-555 (Warren CJ, delivering the opinion of the majority).
113 Section 24 of the DDA prohibits the discriminatory conduct of "a person". The word 'person' is there used with "perfect generality", as Kirby J said of the same word used in s 9(1) of the RDA (at [61] of Nguyen). But that does not mean, as Kirby J went on to say, that the word 'person' utilised in s 9(1) of the RDA should be taken to apply to a judicial officer acting as such. His Honour said this at [61]:
The kinds of conduct mentioned in the succeeding sections of the Act and the procedures for redress afforded by Pt III suggest that judicial officers, not least those of a State, were not intended to fall within the ambit of the section at all.
114 In my view, the very same observations may be made in relation to s 24 and the procedures for redress provided for by the DDA. There is nothing in the DDA which expressly conveys the intention of Parliament to override the judicial immunity and, in the absence of a clear indication to that effect, s 24 ought not be construed as including within its ambit the conduct of a judge in the performance of judicial functions. That conclusion is confirmed by the following holding made by Murphy, Pagone and Perry JJ in Luck v University of Southern Queensland [2014] FCAFC 135 at [41]:
… At least in the performance of judicial functions, judicial officers are not subject to the DD Act and any claim of discrimination would be precluded by the principle of judicial immunity: Fingleton v The Queen (2005) 227 CLR 166 at [36]-[39] per Gleeson CJ citing Sirros v Moore [1975] QB 118 at [132] per Lord Denning MR; Yeldham v Rajski (1989) 18 NSWLR 48. In our view a complaint in respect of actions taken or not taken in the exercise of a jurisdiction conferred on a Chapter III judge cannot found an action under the DD Act.
115 However, the interpretative presumption which supports the conclusion that s 24 of the DDA has no application to judicial conduct does not necessarily support the same conclusion in relation to the conduct of a mediator covered by s 53C. The immunity conferred upon a mediator by statute is not a fundamental common law right that can give rise to an interpretative presumption based upon the principle of legality. That a judge performing judicial functions cannot be the subject of a s 24 proceeding is, as I have sought to explain, a product of the ambit of s 24 construed by reference to the interpretative presumption. Whether the conduct of the mediator falls within the ambit of s 24 is a difference question.
116 It may be that s 24 of the DDA should be construed in the light of s 53C of the FCA Act, a provision which was enacted earlier in time. The harmonious construction of the two provisions may require the conclusion that s 24 of the DDA was not intended to include the conduct of any person who had the protection of the judicial immunity whether conferred by common law or by the Parliament. However, that proposition was not contended for by the respondents and ought not be a basis upon which I should find that no reasonable cause of action exists.
117 For those reasons, I do not accept the first challenge made by the first, second and third respondents - that there is no reasonable cause of action shown against them as accessories because s 53C has the effect that the mediator's conduct could not have constituted a contravention of the DDA.
118 The second ground raised by the respondents is more persuasive. In my view, the protection and immunity conferred upon a mediator by s 53C precludes the curial examination of the conduct of the mediator for the purpose of determining whether a finding ought to be made that the conduct constituted a civil wrong. In other words, whether a mediator engaged in civil unlawfulness in the course of mediating anything referred under s 53A is, in my view, not a justiciable issue.
119 I reject Ms Winter's contention that s 53C is merely a bar to the institution of proceedings against a mediator and provides the mediator no protection against a court holding that his or her conduct constituted a civil wrong. If the protection and immunity conferred was so confined, the rationale upon which the immunity is founded would be largely undermined. I turn then to consider the rationale for the immunity in order to explain the view I have reached.
120 The discussion must commence with the rationale for the common law judicial immunity, given that, by its terms, s 53C provides "the same protection and immunity as a Judge has in performing the functions of a Judge". Whether the scope of the s 53C immunity differs from that conferred upon a judge by reason of the different functions of a judge compared to those of the mediator, is a matter to which I will return.
121 As Beazley P (with whom McColl JA and Tobias AJA agreed) said at [72] of O'Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698:
The principle of judicial immunity is of ancient origin, extending from the time of Lord Coke. In R v Skinner (1772) 98 ER 529, Lord Mansfield (at 530) stated the principle in terms that "neither party, witness, counsel, jury, or Judge can be put to answer, civilly or criminally, for words spoken in office." The principle was applied in Scott v Stansfield (1868) 3 LR Ex 220, which involved an action for slander brought by a disgruntled litigant against a County Court judge. Kelly CB referred (at 223) to the general proposition that "no action will lie against a judge for any acts done or words spoken in his judicial capacity in a court of justice."
122 The most recent High Court authority on judicial immunity is Fingleton v The Queen (2005) 227 CLR 166. Diane Fingleton was the Chief Magistrate of Queensland. She was accused and convicted of unlawful retaliation against a witness arising out of certain administrative conduct in which the Chief Magistrate was engaged. Section 30 of the Criminal Code (Qld) provided that "judicial officers" were not criminally responsible for anything done in the exercise of judicial functions. Section 21A of the Magistrates Act 1991 (Qld) provided that a magistrate has, in performing an administrative function, the same immunity as a magistrate in a judicial proceeding. The High Court unanimously upheld the appeal on the ground that the appellant was immune from prosecution.
123 After referring (at [36]) to the general principle stated by Lord Denning MR in Sirros v Moore [1975] QB 118, Gleeson CJ (with whom McHugh J, Gummow and Heydon JJ, and Hayne J relevantly agreed) explained the policy underlying judicial immunity (emphasis added, footnotes omitted):
[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. As O'Connor J, speaking for the Supreme Court of the United States, said in Forrester v White, that Court on a number of occasions has "emphasised that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have." She said that "[i]f judges were personally liable for erroneous decisions, the resulting avalanche of suits ... would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits."
[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.
124 In a separate judgment, Kirby J emphasized that the purpose of the immunity was to forestall "curial examination" of the exercise of judicial functions (at [176]) (emphasis added, footnotes omitted):
Secondly, the purpose of the immunities provided by the cited provisions of the Queensland statute law is to forestall, in the cases to which they apply, the very kind of proceedings that occurred in this instance, involving as they did curial examinations of the exercise of functions and powers which the statutory provisions aimed to remove from such accountability, and do so for important principles of public policy supportive of judicial independence. It would defeat the expression and policy of the legislation and be wholly inappropriate to introduce an obligation in every case to examine all the facts so as to provide the characterisation of the "true nature" of what was done or omitted to be done by the judicial officer as within or outside the exercise of that officer's functions. To require this would be to undermine the achievement of the purpose of the immunity. It would render it ineffective in practice and would be contrary to the obvious object of the Queensland Parliament in enacting the provisions as it did.
125 At [188]-[189], Kirby J elaborated and said this (emphasis added, footnotes omitted):
[188] Judicial independence from external pressure from litigants and others is one of the legal immunities that can be fully justified. It is supported by reference not only to legal authority but also to legal principle and policy, including considerations of the protection of human rights and fundamental freedoms and the functions of the judiciary in securing those ends. Such immunity is an essential precondition to the rule of law. The independence of judicial officers comes at a price. It is a price that our society has long been prepared to pay. That price is the immunity provided by law. The Queensland Parliament has enacted, and also extended, that immunity. It protects the public interest, not just the interests of individual judicial officers.
[189] The Supreme Court of the United States explained the rationale for this immunity. Speaking of constitutional and common law principles akin to those which in Australia preceded the Queensland laws, that Court said in Pierson v Ray :
"Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v Fisher . This immunity applies even when the judge is accused of acting maliciously and corruptly, and it 'is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences' … [A judge's] errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation."
126 In Rajski v Powell (1987) 11 NSWLR 522, a claim for damages was made against a judge of the Supreme Court of New South Wales for allegedly wrongful acts committed in the abuse of his powers, and against the Attorney-General of New South Wales in vicarious liability. The allegedly wrongful acts of the judge related to the purported exercise of his jurisdiction as a judge of the Supreme Court. The Court of Appeal unanimously summarily dismissed the proceeding. In relation to the judicial immunity, Kirby P said at 527-528 (emphasis added):
It is a fundamental principle of our law that a judge of a superior court is immune from civil liability for acts done in the exercise of his judicial function or capacity. Such immunity rests, as it has been said, upon considerations of public policy. Its object is not to protect judges as individuals but to protect the interests of society. The purpose of the rule is to preserve the integrity, independence and resolve of the judiciary and to ensure that justice may be administered by such judges in the courts, independently and on the basis of their unbiased opinion - not influenced by any apprehension of personal consequences.
127 Wentworth concerned the taxing of costs by a Taxing Officer, in the exercise of the jurisdiction of the court. On the basis that the underlying rationale for the judicial immunity applied equally to a master or registrar exercising the court's jurisdiction or performing judicial functions, Fitzgerald JA (with whom Heydon JA and Davies AJA agreed) found (at [58]-[59]) that the immunity also so applied. Fitzgerald JA relevantly explained the rationale of the immunity as follows at [24] (emphasis added):
... 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 function of adjudicating disputes would be denied them if the ambit and operation of the doctrine were open for debate.
128 At [260] Heydon J cited the following passage from the judgment of Channell J in Bottomley v Broughan [1908] 1 KB 584 at 587-586 which is also instructive (emphasis added):
… absolute privilege … is [not] a very accurate expression, and I am sure that calling it a 'privilege' is sometimes misleading. Privilege means, in the ordinary way, a private right. Now there is no private right of a judge … to be malicious. … The real doctrine of what is called 'absolute privilege' is that in the public interest it is not desirable to inquire whether the words or acts of certain persons are malicious or not. It is not that there is any privilege to be malicious, but that, so far as it is a privilege of the individual - I should call it rather a right of the public - the privilege is to be exempt from all inquiry as to malice; that he should not be liable to have his conduct inquired into to see whether it is malicious or not - the reason being that it is desirable that persons who occupy certain positions as judges … should be perfectly free and independent, and, to secure their independence, that their acts and words should not be brought before tribunals for inquiry into them merely on the allegation that they are malicious.
129 A second rationale for the judicial immunity is the need for the finality of litigation. That rationale is expressed in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 and repeated in Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at [75] (Gummow, Hayne and Crennan JJ) as well as O'Shane at [78] (Beazley P). D'Orta-Ekenaike concerned the advocate's immunity rather than judicial immunity, however, in discussing the basis for the advocate's immunity (at [31]-[47]), Gleeson CJ, Gummow, Hayne and Heydon JJ considered the rationale for the judicial immunity, noting that it was also founded in the need for the finality of litigation (at [40]). At [42] their Honours said this (emphasis added, footnotes omitted):
In R v Skinner, Lord Mansfield said that "neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office". Of that immunity it has been said in Mann v O'Neill that it responds to two related considerations, "to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences" and "the avoidance of the re‑agitation by discontented parties of decided cases after the entry of final judgment" other than by appellate processes. That view of the matter reflects the consideration that what is at stake is the public interest in "the effective performance" of its function by the judicial branch of government.
130 Many of the cases to which I have referred are cases in which a judge was personally sued and, in those authorities, the judicial immunity is sometimes referred to as an "immunity from suit" (see for instance O'Shane at [187]). However, I do not think that "suit" was necessarily intended to be used in the narrow sense of a proceeding brought against the judge personally (but cf. Towney at [59]). In Nguyen, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, (at [30]) referred to the immunity as an "immunity from suit" but applied the judicial immunity in a case in which judicial officers were not sued personally but where their conduct was impugned in proceedings seeking prerogative relief against the courts in which those judges sat. By reference to the judicial immunity, their Honours at [29] spoke of "the notion that either a judicial officer, or a court, may be subject to legal redress" as being problematic. At [80] Kirby J spoke of the immunity as an "immunity from personal suit or other proceedings". That the operation of the judicial immunity is not confined to proceedings where the holder of the immunity is personally sued is also apparent from Herijanto v Refugee Review Tribunal [2000] HCA 16; 170 ALR 379 ("Herijanto (No 1)") and Herijanto v Refugee Review Tribunal (No 2) [2000] HCA 21; 170 ALR 575 ("Herijanto (No 2)").
131 Herijanto (No 1) concerned the claims of a number of claimants for protection visas that various members of the Refugee Review Tribunal had failed to comply with procedural fairness requirements under the Migration Act 1958 (Cth). The claimants sought relief in the High Court under s 75(v) of the Constitution. They served interrogatories upon the members of the Refugee Review Tribunal whose decisions they sought to impugn. An application was made to set aside those interrogatories. The basis for that application was that the Tribunal member enjoyed the same immunity as that of a Justice of a High Court and that the immunity precluded examination of the material read by member in reaching his or her decision. At [13]-[16] of Herijanto (No 1), Gaudron J set out the principles governing the scrutiny of the exercise of judicial power concluding that any aspect of the record that betrays a decision-maker's decision-making process is protected by the immunity (footnotes omitted):
[13] It has been settled law since Knowles' Trial that judges cannot be compelled to answer as to the manner in which they have exercised their judicial powers. In Hennessy v Broken Hill Pty Co Ltd, the immunity was said to be such that judges cannot be compelled "to testify as to matters in which they have been judicially engaged". However, it was also pointed out in that case that "their evidence has been received upon matters which did not involve the exercise of their judicial discretions and powers".
[14] In MacKeigan v Hickman, the Supreme Court of Canada held that judges could not be compelled to disclose what affidavit evidence had been received when that did not clearly appear from the record. However, Wilson J, in dissent on this point, would have held that they might be asked "what as a factual matter comprised the final record for purposes of their decision".
[15] In MacKeigan, the immunity of judges from compulsory disclosure was rested on the principle of judicial independence. In Sirros v Moore, a case concerned with immunity from civil suit, Lord Denning MR suggested that the reason underlying that immunity was to ensure that judges "may be free in thought and independent in judgment". That, in my view, is also the true basis of the immunity from compulsory disclosure. And on that basis, I see no reason why a judge might not be compelled to disclose the record upon which he or she has acted. However, that is subject to the qualification that disclosure of the record cannot be compelled if it would also reveal some aspect of the decision-making process, as may well have been the case in MacKeigan.
[16] There is no difficulty in saying that, in an appropriate case, judges may be compelled to disclose the record on which they have acted. In the context of the judicial process, "the record" bears a clear meaning. The same is not necessarily true in the context of administrative decisions. Thus, it is preferable to identify what is within the immunity, rather than that which is outside it. And in my view, the immunity is immunity from disclosing any aspect of the decision-making process. That is what is required to ensure freedom of thought and independence of judgment. And that approach is entirely consistent with what was said in Hennessy.
132 Her Honour confirmed her conclusion in Herijanto (No 2) at [10] and extended the principle to the revelation by any other means (ie evidence from a source other than the decision-maker) of the decision-maker's decision-making process. Other authorities are to the same effect. After reviewing relevant authorities from the UK (Warren v Warren [1997] QB 488, citing Duke of Buccleuch v Metropolitan Board of Works (1872) LR 5 HL 418), New Zealand, Canada (MacKeigan v Hickman [1989] 2 RCS 796) and Australia (Hennessy v Broken Hill Proprietary Company Limited (1926) 38 CLR 342; Zanetta v McClearly [1976] 1 NSWLR 230; Herijanto (No 1)), Gilbert J in Deliu v New Zealand District Court [2016] NZHC 2806 concluded (at [31]):
Although the authorities have developed in response to widely differing factual scenarios, the underlying rationale for the immunity is to preserve the independence of the judiciary. There is a consistent line of authority tracing its origins to cases decided in the seventeenth century establishing that Judges cannot be compelled to give evidence relating to their performance of their judicial functions.
133 It is not necessary for me to try and chart the outer perimeter of the judicial immunity. It is sufficient to say that many if not most of the ills, burdens, pressures, apprehensions and influences likely to afflict a judge when personally sued would also be present when a judge is faced with a curial examination of the judge's exercise of his or judicial function for the purpose of determining whether that exercise constituted civil unlawfulness. Exposure to a finding of unlawful conduct would entail a heavy burden upon a judge, irrespective of whether a financial impact was also in prospect because the judge had been sued personally. Such an exposure to curial examination of a judge's exercise of the judicial function would also provide a significant capacity for disgruntled litigants to hound the judge through collateral attacks which re-litigate the matter from which the disgruntlement arose. Exposure of that kind is sufficiently corrosive of the principled and fearless functioning of a judge as to warrant its preclusion. Whilst there is no authority to which I was referred (or that my researches have revealed) which is directly on point, the rationale for the judicial immunity, as expressed and applied by the authorities to which I have referred, strongly supports the proposition that the judicial immunity extends to prohibiting the curial examination of the conduct of a judge exercising judicial functions for the purpose of determining whether that conduct constituted civil unlawfulness.
134 There are obvious differences between the functions of a judge and that of a mediator. Those differences must have been readily apparent to the drafter of s 53C; as must have been apparent the differences between the functions of a mediator and those of an arbitrator upon whom s 53C also confers the same immunity. The provision can only be sensibly read as intending to provide the same protection and immunity in relation to the performance of the functions of an arbitrator or those of a mediator as a judge has in the performance of the functions of a judge. That the functions of a judge are different and that the reasons that may support the need for those functions to be protected may be different, does not appear to be a consideration which is accommodated by the text of s 53C. The provision seems to me to be founded upon the idea that whatever protections judges have in relation to the exercise of their functions is to be conferred upon arbitrators and upon mediators in the exercise of their respective functions.
135 If it be the case that the underlying rationale for the functions of a mediator were intended as a guiding consideration, to my mind, the need for a mediator to perform his or her functions without fear or favour is an important consideration which, of itself, provides a policy justification for conferring an immunity upon a mediator. For similar reasons as those applicable to the judicial immunity, an immunity from being personally sued would not of itself protect the principled and fearless functioning of a mediator. I would also observe that, if an immunity from being personally sued was the only protection intended to have been conferred, s 53C could readily have said so and limited protection of that kind could have been provided without reference to the judicial immunity. Parliament had more in mind and its reference to the judicial immunity has effectively said so.
136 It necessarily follows from my conclusion about the scope of the immunity conferred upon the mediator by s 53C, that the accessorial liability claims do not disclose a reasonable cause of action. If the Court is precluded from examining the conduct of the mediator and from making a finding that the mediator's conduct contravened the DDA, no finding of a contravention by the first, second and third respondents as accessories is available and the claims of accessorial liability must fail. It follows that the accessorial liability claims (VID 114 [114]-[133]) must be struck out and, in the circumstances, it would be futile to grant Ms Winters any leave to re-plead those claims.
137 In coming to this view, I have taken into account the principle, observed by Kirby J in Fingleton at [168], that immunities such as that conferred by s 53C which "derogate from an individual's ordinary legal obligations to others, and to the community, on a footing of full equality before the law" should, where possible, be confined. I consider this principle to be outweighed, however, by the countervailing principle and policy underlying the judicial immunity, as applied to mediators by virtue of s 53C, to which I have adverted.
138 If the conclusion I have just reached is wrong and the only basis for striking out the accessorial liability claims is the inadequacy of the pleading of those claims, the question of whether leave to re-plead those claims should be given would arise. For completeness I will indicate my view on that issue. To do that I need to consider the reliance placed by the first, second and third respondents upon s 53B of the FCA Act as well as the protection against disclosure which flows out of the immunity just discussed.
139 I would agree with those respondents' proposition that it would be futile to give Ms Winters leave to plead material facts that could never be proven. It may well be that s 53B and the mediator's immunity will preclude evidence being called to prove material facts upon which Ms Winters will want to rely should leave to re-plead be granted.
140 However, without knowing what material facts Ms Winters may want to rely upon if she were given leave, I am not able to come to a firm view as to whether the pleading defects in the current pleading are incurable. Much may depend upon the particular material fact in question in the light of the proper construction of s 53B.
141 In seems highly unlikely that s 53B is intended to preclude evidence being adduced of anything at all which occurred at or in connection with a mediation. If that were so, criminal conduct such as the making of a threat to kill would be precluded from curial examination. A qualification of the kind found in s 131(2)(j) of the Evidence Act 1995 (Cth) is not expressly included in s 53B. Section 131(2)(j) excepts from the prohibition upon adducing evidence of a communication made in connection with settlement negotiations, a communication made or a document prepared "in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty". Some qualification of that kind must have been intended in relation to s 53B although not expressly stated. It may be that the source of any qualificatory implication is to be found in the words "in the course of mediating". But the nature and extent of any qualification to the exclusion provided for by s 53B ought not be determined in the abstract. Nor should the impact, if any, of s 53C. It is far preferable that that be done by reference to the specific conduct which Ms Winters may seek to rely upon in any proposed re-pleading. That all suggests that, had I not come to the view that there is no reasonable cause of action, the proper course would have been to defer further consideration of the issue of whether leave should be granted until the production of a proposed pleading by Ms Winters which specified the material facts upon which she would rely should leave be granted.
142 I should also say that s 53B was relied upon more broadly by the respondents and in particular by the fourth and fifth respondents to resist the claims made by Ms Winters against them and the grant of any leave to re-plead those claims. To those contentions I take the same approach to that which I have just expressed. For reasons earlier given the claims made against the fourth and fifth respondents will be struck out on other grounds. Ms Winters' capacity to re-plead those claims or aspects of them may well be precluded by s 53B or the mediator's immunity because material facts which Ms Winters may want to rely upon could never be proved. Whether leave to re-plead should be granted should be considered upon the production by Ms Winters of a proposed re-pleading of those claims in relation to which I have indicated preparedness to consider the grant of leave.
143 Finally, and returning to the accessorial liability claims, it is not necessary that I determine the third challenge made that no tenable allegation could be made that the mediator's conduct could have been instructed, induced, aided or permitted by the first, second or third respondents.