New South Wales Supreme Court CITATION : BHAGAT v YOUNG & ORS; BHAGAT v MURPHY & ORS; BHAGAT v GLOBAL CUSTODIANS LTD & ORS [2002] NSWSC 331 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20095/02; 20816/01; 20817/01 HEARING DATE(S) : 25 March 2002, 26 March 2002 JUDGMENT DATE : 24 April 2002 Hari Bhagat (Plaintiff) v Peter Young (First Defendant) Global Custodians Ltd (ACN 003 588 378) (Second Defendant) John Healey Speight and Jessee Barrie Marr Speight (Third Defendant) Archie Greenlees and Norma Patricia Greenlees (Fourth Defendant) David O'Bryen (Fifth Defendant) Michael Wilkins (Sixth Defendant) Robin Margo (Seventh Defendant) Holding Redlich (Eighth Defendant) Harold Werksman (Ninth Defendant) Jeffrey Flick (Tenth Defendant) Anthony Spencer (Eleventh Defendant) (In matter No 20095/02) PARTIES : Hari Bhagat (Plaintiff) v John William Murphy (First Defendant) Michael Wilkins (Second Defendant) Tyndall Funds Management (NSW) Ltd (ACN 003 326 654) (Third Defendant) Tyndall Australia Ltd (ACN 000 015 949) (Fourth Defendant) Guiness Peat Group plc (ACN 003 209 836) (Fifth Defendant) David O'Bryen (Sixth Defendant) Gary Weiss (Seventh Defendant) Sir Ron Brierley (Eighth Defendant) Global Custodians Ltd (ACN 003 588 378) (Ninth Defendant) Westpac Custodian Nominees Ltd (ACN 002 861 565) (Tenth Defendant) Dennis Fox (Eleventh Defendant) Joe Bracher (Twelfth Defendant) Michael Good (Thirteenth Defendant) Elizabeth Grimston (Fourteenth Defendant) Leo Tutt (Fifteenth Defendant) John Mallick (Sixteenth Defendant) Harold Bentley (Seventeenth Defendant) John English (Eighteenth Defendant) Brian Preston (Nineteenth Defendant) Robyn Ann Chalmers (Twentieth Defendant) Tania Noonan (Twenty-First Defendant) Peter Young (Twenty-Second Defendant) Nicholas Cowdery (Twenty-Third Defendant) Baker & McKenzie (Twenty-Fourth Defendant) UBS Warburg (Twenty-Fifth Defendant) (In matter No 20816/01) Hari Bhagat (Plaintiff) v Global Custodians Ltd (ACN 003 588 378) (First Defendant) John Healey Speight and Jessee Barrie Marr Speight (Second Defendant) Archie Greenlees and Norma Patricia Greenlees (Third Defendant) David O'Bryen (Fourth Defendant) Michael Wilkins (Fifth Defendant) Robin Margo (Sixth Defendant) Harold Werksman (Seventh Defendant) Holding Redlich (Eighth Defendant) Jeffrey Flick (Ninth Defendant) Anthony Spencer (Tenth Defendant) Peter Young (Eleventh Defendant) Nicholas Cowdery (Twelfth Defendant) (In matter No 20817/01) JUDGMENT OF : Adams J at 1 Plaintiff in person Mr T H Barrett (First Defendant) Mr R F Margo SC (Second to Fourth Defendants, Eighth to Tenth Defendants) Mr B J Preston SC (Fifth & Sixth Defendants) (Matter No 20095/02) Plaintiff in person Mr B J Preston SC (First to Fourth Defendants, Sixth to Ninth Defendants, Eleventh to Eighteenth Defendants and Twenteth and Twenty-first Defendants) COUNSEL : Mr S Knight (Fifth Defendant) Mr T H Barrett (Twenty-second and Twenty-third Defendants) (In Matter No 20816/01) Plaintiff in person Mr R F Margo SC (First to Third Defendants, and Seventh to Ninth Defendants) Mr T H Barrett (Eleventh and Twelfth Defendants) Mr B J Preston SC (Fourth and Fifth Defendants) (In Matter No 20817/01) Plaintiff in person I V Knight (First Defendant) Holding Redlich (Second, Third, Fourth, Eighth, Ninth and Tenth Defendants) Mallesons Stephen Jaques (Fifth and Sixth Defendants) (In matter No 20095/02) Plaintiff in person SOLICITORS : Mallesons Stephen Jaques (First, Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Twentieth and Twenty-first Defendants) Coudert Brothers (Fifth Defendant) (In matter No 20816/01) Plaintiff in person Holding Redlich (First, Second, Third, Seventh, Eighth and Ninth Defendants) Mallesons Stephen Jaques (Fourth and Fifth Defendants) I V Knight (Eleventh and Twelfth Defendants) ((n Matter No 20817/01) CATCHWORDS : Judicial immunity from suit - whether can sue for alleged prior impropriety - extent of immunity - action for leave to prosecute criminal information - whether available - statements of claim dismissed. Rajski v Powell (19087) 11 NSWLR 523 Moll v Flander (1985) 4 NSWLR 231 CASES CITED : Wentworth v Wentworth & ors [2001] NSWCA 350 Yeldham v Rajski (1980) 18 NSWLR 48 Sparkes v Duval County Co Inc, 604 FD 976 (1979) DECISION : See paragraphs 12 and 13; Plaintiff to pay the costs of the motions. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J WEDNESDAY 24 APRIL 2002 20095/02 - BHAGAT v PETER YOUNG & ORS 20816/01 - BHAGAT v MURPHY & ORS 20817/01 - BHAGAT v GLOBAL CUSTODIANS LTD & ORS JUDGMENT 1 HIS HONOUR: The plaintiff, Mr Hari Bhagat, has commenced a number of actions in this Court against persons involved or connected with, in some cases quite remotely, the affairs of what was once called the Estate Mortgage Trusts. Some actions have been the subject of judgments by Young CJ in Eq where His Honour ruled against the plaintiff. The plaintiff has commenced three actions against the Chief Judge. Notices of motion were filed in Court on 25 March 2002 on the Chief Judge's behalf seeking orders that the proceedings be struck out, dismissed or stayed on the ground of judicial immunity from suit. These motions were heard by me on the following day. After argument I ordered that the Statements of Claim, so far as they affected the Chief Judge should be dismissed and indicated that I would publish my reasons at a later date. These are those reasons. 2 Given the essential similarity of the causes of action (if that be a correct description) alleged in each Statement of Claim, it is sufficient for present purposes to refer to matter number 20095 of 2002, in which the Chief Judge is the First Defendant. 3 The Statement of Claim, after alleging, amongst other things, that the plaintiff had undertaken proceedings, in substance, which were determined by the First Defendant, alleges that he was - "(m) entitled when as a litigant appearing before the First Defendant in his capacity as a Judge of the Supreme Court of NSW to rely on the First Defendant to act in good faith and not to knowingly act unlawfully, including not to knowingly act unlawfully in wilfully lying when on the Bench and not to knowingly act with Judicial Misconduct, not condone the fraudulent activities of litigants appearing before him in any proceedings and not to intend to pervert the course of justice pursuant to s.319 of the Crimes Act 1900, or conceal a serious offence pursuant to s.316(2) of the Crimes Act 1900 and not to act corruptly;" 4 The plaintiff added the following - "2. The First Defendant was at all material times a Judge of the Supreme Court of NSW Equity Division and at all material times owed a duty to all litigants represented or unrepresented including the Plaintiff as an unrepresented litigant appearing before him in any Supreme Court Proceedings Equity Division, to act Judicially and in good faith, knowingly not act unlawfully including not to knowingly act unlawfully in wilfully lying when on the Bench and not to knowingly act with Judicial Misconduct, not to knowingly act unlawfully in condoning the fraudulent activities of litigants appearing before him in any proceedings, not to knowingly act unlawfully in delivering fraudulent judgements and not to knowingly act unlawfully in intending to pervert the course of justice pursuant to s.319 of the Crimes Act 1900, or conceal a serious offence pursuant to s.316(2) of the Crimes Act 1900 and not act corruptly, in any proceedings that the Plaintiff appeared before the First Defendant in the Equity Division of the Supreme Court of NSW, including Supreme Court Proceedings Equity Division No 2892/1997, No. 3841/1997, No. 2539/1998, No. 3398/1998, No.3156/1999, No. 3354/1999 No. 1848/1999 and No.3406/2001. 13. The Plaintiff alleges that the First Defendant knowingly acting unlawfully in wilfully lying when on the Bench at the commencement of the hearing on 3 December 2001 in Supreme Court Proceedings No 2539/1998 in that the First Defendant with full and proper knowledge that Supreme Court Proceedings No CLD 20816/2001 and No CLD 20817 and been commenced by the Plaintiff against the First Defendant as the Twenty Second defendant and the Eleventh Defendant respectively claimed no knowledge that Supreme Court Proceedings No CLD 20816/2001 and Supreme Court Proceedings No CLD 20817/2001 had been commenced against him: (a) in order to persuade the Plaintiff, to agree to the hearing, before the First Defendant, of the Plaintiff's Motion as the Third Defendant in Supreme Court Proceedings No 2539/1998, set down for a hearing on 3, 4 and 5 December 2001; (b) with the intention of perverting the courts of justice, in taking revenge on the Plaintiff, even if it meant knowingly acting unlawfully in delivering a fraudulent judgement in Supreme Court Proceedings No 2539/1998. Particulars of Fraud 1. The Plaintiff refers to the transcript of the hearing on 3 December 2001 in Supreme Court Proceedings No 2539/1998. 2. The First Defendant refused to examine the Affidavits of service on the Attorney General's Office, accepting service on 14 November 2001, on behalf of the First Defendant proffered by the Plaintiff to the First Defendant in both Supreme Court Proceedings No. CLD 20816/2001 and No CLD 20817/2001 in Court on 3 December 2001, prior to the commencement of the hearing of Supreme Court Proceedings No 2539/1998; 3. The First Defendant has no credibility as the First Defendant has previously lied on several occasions by reasons of the facts as set out in paragraphs 32, 33, 34, 35 and 36 in Supreme Court Proceedings No. CLD 20817/2001; 4. The Plaintiff refers to the Judgement of the First Defendant delivered on 14 February 2002 in Supreme Court Proceedings No. 2539/1998 which is a travesty of justice as set out in paragraph 14 below. 14. The First Defendant knowingly acted unlawfully with Judicial Misconduct in the First defendant fraudulently concealing with the intention of perverting the course of justice in his Judgement delivered on 14 February 2002 in Supreme Court Proceedings No. 2539/1998 in that: (a) in paragraph 15 of the First Defendant's aforesaid Judgement… (b) in paragraph 21 of the First Defendant's aforesaid Judgement … (c) in paragraphs 22, 23 and 24 of the First Defendant's aforesaid Judgment …" 5 There follow over fifty paragraphs taking up various parts of the First Defendant's judgment, asserting what the plaintiff claimed was the true position and alleging that the parts of the judgment referred to amounted, in substance, to perverting the course of justice. 6 Although damages are not sought against the First Defendant, the plaintiff seeks an order that "the plaintiff may commence criminal proceedings against…[him] for perverting the course of justice and acting corruptly." 7 The substance of the plaintiff's claim is that the First Defendant's judgment was affected by unlawful behaviour, variously described. There can be no doubt that this is an attempt to sue for an act done in the exercise of his judicial function or capacity. 8 In Rajski v Powell (1987) 11 NSWLR 523 at 527, Kirby P said - " … it being plain that [the judge] is sued in respect of acts purportedly done whilst in Court and whilst apparently exercising his judicial capacity, simply to assert that he abused his power and thereby caused harm to the opponent has pleaded it. 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." 9 Although Kirby P added that he "would be prepared to countenance the 'minor reduction in immunity where a judge knowingly acts without jurisdiction'" (quoting Wood J in Moll v Butler (1985) 4 NSWLR 231 at 242), the exception "is unlikely to have any practical utility" (Wentworth v Wentworth & ors [2000] NSWCA 350 at [24]. At all events, there is nothing in the Statement of Claim here that requires consideration of this possible exception. The wide reach of the immunity may be illustrated by pointing out that, even if a judge were to take a bribe and enter judgment in favour of the corrupt party, that judge would nevertheless be immune from civil action for doing so: Yeldham v Rajski (1980) 18 NSWLR 48 per Kirby P at 58, citing Sparkes v Duval County Co Inc, 604 F 2D 976 (1979). Of course, there is no immunity from the criminal law. 10 It was submitted by the plaintiff that he could replead his allegations to place his case outside the immunity. The proposed change (in substance) was to sue the First Defendant, not for his judgment, but for the alleged conspiracy and other crimes that led to the judgment, thus for his Honour's alleged out-of-court behaviour. However, merely to concentrate on or even isolate that alleged behaviour, in the circumstances, would not alter the true character of the case. There is, of course, a distinction between a conspiracy and its object and the overt acts (here, I assume, the First Defendant's in-court actions). But the rule as to judicial immunity is not a mere pleading point and its purpose of protecting the administration of justice is not to be frustrated by artificial distinctions. Otherwise, every in-court act which caused a grievance would be indirectly attacked and judicial independence undermined by simply alleging out-of-court behaviour which affected (or, perhaps, infected) a judge's in-court act. The mode of repleading proposed by the plaintiff would (to adopt the language of Kirby P (11 NSWLR at 536) be pointless and vexatious, and is no more than a device to frustrate a fundamental rule essential to the administration of justice. 11 As I have noted above, the order sought by the plaintiff against the First Defendant is leave to commence a criminal prosecution against him. However, immunity conferred by the policy applies equally to such proceedings at the hand of a private citizen as civil proceedings, and for the same reason, namely that, otherwise, the very purpose of the rule would be subverted: Yeldham v Rajski (1980) NSWLR 48 per Hope AJA at 69. The plaintiff submitted that, as the crimes alleged occurred outside the court, the judicial immunity from suit did not apply. Leaving aside the problems associated with an action in the Supreme Court for leave to prosecute a criminal information, as to which it is difficult indeed to see there is any jurisdiction to grant, the allegations are so inextricably connected with and part of the exercise by the First Defendant of his undoubted jurisdiction as to bring the rule as to immunity into play despite this pleading tactic. 12 Thus, I ordered that the Statement of Claim against the First Defendant be dismissed. 13 The Statements of Claim against the Chief Judge in matters numbers 10816/01 and 20817/01 do not differ in any material way from the Statement of Claim in matter number 20095/02. Accordingly, so far as they are concerned, the actions against the Chief Judge are also dismissed. 14 The plaintiff must pay the costs of the motions. ********** Last Modified: 05/06/2002 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.