Supreme Court New South Wales Medium Neutral Citation: Stankovic v State of NSW [2016] NSWSC 18 Hearing dates: 29 January 2016 Date of orders: 08 February 2016 Decision date: 08 February 2016 Jurisdiction: Common Law Before: Davies J Decision: (1) The two Notices of Motion filed by the Plaintiff on 16 November 2015 are dismissed. (2) The proceedings are dismissed. (3) The Plaintiff should pay the Defendants' costs. Catchwords: PROCEDURE – summary dismissal – whether arguable case demonstrated – claim alleging negligence of a judicial officer in making orders – allegation that the State of New South Wales is vicariously liable for the judge's negligence – abuse of process – attempt to re-litigate matters previously determined adversely to plaintiff - form of pleading – proceedings dismissed COURTS AND JUDGES – judicial immunity – whether orders and reasons of a judge can give rise to tortious liability – whether the State is vicariously liable for acts of judicial officers Legislation Cited: Judicial Officers Act 1986 (NSW) Land and Environment Court Act 1979 (NSW) Land and Environment Court Rules 1996 (NSW) Law Reform (Vicarious Liability) Act 1983 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Cameron v Qantas Airways Ltd and Anor [2010] NSWSC 899 Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 Dare v Pulham (1982) 148 CLR 658 Hammond v State of New South Wales [2013] NSWSC 1930 Hammond v State of New South Wales [2015] NSWCA 304 McGuirk v The University of New South Wales [2009] NSWSC 1424 Rajski v Powell (187) 11 NSWLR 522 Rippon v Chilcotin [2001] NSWCA 142; (2001) 53 NSWLR 198 Stankovic v Hills Shire Council (No 3) [2012] FCA 523 Stankovic v The Hills Shire Council [2015] NSWCA 279 Wentworth v Wentworth [2000] NSWCA 350; (2001) 52 NSWLR 602 Yeldhem v Rajski (1989) 18 NSWLR 48 Category: Procedural and other rulings Parties: Milovan Stankovic (Plaintiff) State of New South Wales (First Defendant) Land and Environment Court of New South Wales (Second Defendant) Representation: Counsel: In person (Plaintiff) G Sarginson (Defendants) Solicitors: Self-represented (Plaintiff) Crown Solicitors Office (Defendants) File Number(s): 2015/326568 Judgment 1. On 6 November 2015 Milovan Stankovic (the Plaintiff) commenced proceedings naming as Defendants the State of New South Wales (First Defendant) and the Land and Environment Court of New South Wales (Second Defendant). In it he claimed $35 million from the Second Defendant which he asserted was vicariously liable for a tort committed by the First Defendant. It seems clear, however, from a reading of the whole of the Statement of Claim that the Plaintiff meant to say that the First Defendant was vicariously liable for a tort committed by the Second Defendant. 2. The Defendants by Motion filed 26 November 2015 seek to have the Statement of Claim dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW). The Plaintiff filed two separate Motions on 16 November 2015. In one he seeks directions in relation to a Notice to Produce he served on the Crown Solicitor, and a declaration that in a case in the Land and Environment Court the proceedings were dismissed and not reinstated. In the other Motion he seeks that filing fees he paid to commence the present proceedings and an application for leave to the Court of Appeal should be refunded to him. Background 1. So that the present proceedings can be properly understood it is necessary to set out some background. This material is taken largely from two judgments, Stankovic v Hills Shire Council (No 3) [2012] FCA 523 (Emmett J in the Federal Court) and Stankovic v The Hills Shire Council [2015] NSWCA 279 (the NSW Court of Appeal). 2. The Plaintiff and Baulkham Hills Shire Council had been in dispute for some time about the use that the Plaintiff was making of his land. That use appears to have included the keeping of a hundred pigs on the property as well as the use of the property as a junk yard which was a prohibited use under the Local Environment Plan. 3. Proceedings were commenced by the Council in the Land and Environment Court and were fixed for hearing on 19 January 2005. On that day McClelland CJ (as his Honour then was) ordered that the hearing date be vacated and that the proceedings be stood over to 16 February 2005 at 9:15am before a class 4 judge of the Court. On 16 February 2005 the matter was called on before Lloyd J. The Plaintiff appeared in person but there was no appearance for the Council. In the circumstances, Lloyd J made an order that the proceedings be dismissed for want of prosecution. 4. The court file noted on 22 February 2005 that a Motion was to be listed on 4 March 2005. The Motion appeared to be by the Council. On 4 March 2005 the Court record notes that an order was made and that the parties were directed to approach the Registrar for a hearing date. 5. The matter came before Pain J on 14 March 2005. During the course of that hearing before Pain J her Honour explained to the present Plaintiff that although the proceedings had been dismissed the Council was entitled to have them reinstated under the Land and Environment Court Rules 1996 (NSW) Pt 15 rules 3 and 9, and that a timely application had been made to that effect. 6. Justice Pain made a number of orders restraining the present Plaintiff from keeping the pigs and using the property as a junk yard and made ancillary orders. She also ordered that he pay the Council's costs of the proceedings. 7. The Court of Appeal noted at [9] in the judgment referred to above that when the present Plaintiff was before Pain J he acknowledged the Council's right to have the matter reinstated. 8. The costs ordered to be paid were assessed, and judgment was entered for the Council in the Local Court for the amount of those assessed costs. The Plaintiff did not pay them because at least from that time onwards he maintained that there had been no proper reinstatement of the proceedings that had been dismissed by Lloyd J. His failure to pay the judgment led to his estate being sequestrated in the Federal Magistrates Court on 12 May 2009. 9. On 19 May 2011 the Plaintiff filed in the Federal Court an application for an extension of time to appeal against the sequestration order. In his judgment Emmett J dismissed the application. 10. It seems that at some stage after proceedings in the Family Court the trustee in bankruptcy sold the property that the Plaintiff jointly owned in Kellyville. 11. It was in those circumstances that the present Statement of Claim came to be filed. The Statement of Claim 1. It is not necessary to set out all of the Statement of Claim. It is sufficient to set out the relief claimed which is as follows: 1. THAT the State of New South Wales is vicariously liable for the misdeeds by The Hon. Justice Margaret Pain in the Land & Environment Court in violating correct legal procedures, pursuant to section 5 of the Crown Proceedings Act 1988 and section 8 of the Law Reform (Vicarious Liability) Act 1983. 2. THAT the Court adjudges the Defendant is guilty of Professional Negligence and neglect of its Duty of Care to ensure the compliance with proper legal procedure whereby recognition is given to a specific POINT OF LAW that, when a case is DISMISSED it is "removed for the court with no further hearings", and conducted a hearing on 14 March 2005 of Case No: 41243 of 2004 which had been DISMISSED on 16 February 2005 by the Hon Justice David Henry Lloyd. (3) THAT the Court amends the Court Records to show that all the entries into the Court Records pertaining to Case No: 41243 of 2004 of the matter of Baulkham Hills Shire Council v Milovan Stankovic and Milka Stankovic after the entry of the dismissal of the case on 16th February 2005 are permanently blotted out to signify their nullity. (4) THAT the Court especially acknowledges that the Judgment in the Land & Environment Court on 14 of March 2005 made by Her Honour Justice Margaret Pain is void and set it aside. (5) THAT the Court adjudge the Second Defendant to be vicariously liable for the Tort committed by the First Defendant and pay to the Plaintiff the Damages of thirty-five million Australian dollars ($AUD35,000,000-00). 1. The remainder of the Statement of Claim containing the pleadings and particulars may be summarised in this way: (a) the Plaintiff relies on the fact that Lloyd J dismissed the proceedings and asserts that thereafter the proceedings could not continue – all that could happen is that the Council could have appealed against the dismissal; (b) reference is made to s 58 of the Land and Environment Court Act 1979 (NSW) and Rules of Court for setting aside judgments entered irregularly, illegally or against good faith; (c) there is a statement that a court has an inherent jurisdiction to declare void an irregular judgment; (d) reference is made to the ability to sue the Crown under the Crown Proceedings Act 1988 (NSW) and the vicarious liability of the Crown in s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW). 1. The Statement of Claim does not in relation to the pleading of the claim comply with UCPR Part 14 nor with what has been said in such cases as Dare v Pulham (1982) 148 CLR 658 at 664, McGuirk v The University of New South Wales [2009] NSWSC 1424 at [21] – [35] and Cameron v Qantas Airways Ltd and Anor [2010] NSWSC 899 at [17] – [18]. However, in general terms one can discern from the relief claimed what the Plaintiff is asserting. The complaint in the present case by the Defendants is not so much the form of the pleading as the substance of the claim being made. The submissions 1. The Defendants submitted that judges have immunity from suit under sections 44A and 44C of the Judicial Officers Act 1986 (NSW). They submitted that when a judicial officer is making a decision in Court they are not acting as a servant of the Crown to enable the Crown to have any vicarious liability. They submitted that in any event there could be no vicarious liability unless some tortious conduct was established. In that regard the law does not recognise the tort of negligence in respect of decisions of judicial officers in court proceedings. Finally, the Defendants submitted that the present proceedings were an attempt to re-litigate or re-argue issues which have been previously heard and determined adversely to the Plaintiff with the result that the present proceedings are an abuse of process. 2. The Plaintiff's submissions focused entirely on his desire to have the Land and Environment Court produce its record of the proceedings in accordance with a Notice to Produce that he had served on the Crown solicitor on 6 November 2015. He said on a number of occasions that if the Land and Environment Court would produce its records to show that the case before it had been reinstated he, the Plaintiff, would walk away from the case. I attempted on a number of occasions to direct the Plaintiff back to the principal issue to be determined, namely, whether his proceedings demonstrated an arguable course of action. The Plaintiff said nothing about that matter. His sole submission was based on the claim that the Land and Environment Court proceedings had been dismissed and Pain J could not have made the orders that she did. Relevant principles for summary dismissal 1. Proceedings are to be summarily dismissed if they disclose no arguable course of action, are clearly untenable and are doomed to fail, if they are an abuse of process or if they frivolous and vexatious. Proceedings commenced for a collateral purpose such as seeking to re-litigate issues determined finally are an abuse of process: Hammond v State of NSW [2013] NSWSC 1930 at [23]; Hammond v State of NSW [2015] NSWCA 304 at [25]. Judicial immunity 1. The immunity of judicial officers is a common law principle fundamental to common law jurisdictions. The matter was discussed extensively by Kirby P in Rajski v Powell (187) 11 NSWLR 522 at 534-537 and by Priestley JA (with whom Hope JA agreed) at 538-539. The matter was further discussed in Yeldham v Rajski (1989) 18 NSWLR 48 at 61-64 and 66; and see also Wentworth v Wentworth [2000] NSWCA 350; (2001) 52 NSWLR 602 at [24]. 2. The immunity does not derive from the Judicial Officers Act. Sections 44A to 44C merely clarify and extend the common law principle. 3. The essence of the Statement of Claim is that Pain J has a tortious liability for the orders that her Honour made on 14 March 2005. From her Honour's liability the vicarious liability of the State of NSW is said to flow. 4. In the first instance, Pain J has no liability in respect of the orders she made. Even if they had been incorrectly made (and the evidence is to the contrary) neither she nor the State of NSW has any liability for what she did. 5. In any event, no duty of care is owed by the Defendants to the Plaintiff. A similar argument was put forward in Hammond v State of NSW [2013] NSWSC 1930 and rejected on the basis that the duty alleged did not satisfy the six step test identified by McHugh J in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 at [93]: see Adamson J in Hammond at [51]-[52] and [55]-[57]; upheld by the Court of Appeal in Hammond at [27]. Vicarious liability 1. In Hammond, before Adamson J, the plaintiffs submitted that the State was vicariously liable for the acts of judicial officers who in that case made various findings against the plaintiffs. Reliance was placed by those plaintiffs on ss 7, 8 and 10 of the Law Reform (Vicarious Liability) Act. Those sections provide: 7 Vicarious liability of masters Notwithstanding any law to the contrary, a master is vicariously liable in respect of a tort committed by the master's servant in the performance or purported performance by the servant of an independent function where the performance or purported performance of the function: (a) is in the course of the servant's service for his or her master or is an incident of the servant's service (whether or not it was a term of his or her contract of service that the servant perform the function), or (b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the servant's master. 8 Further vicarious liability of the Crown (1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function: (a) is in the course of the person's service with the Crown or is an incident of the person's service (whether or not it was a term of the person's appointment to the service of the Crown that the person perform the function), or (b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown. (2) Subsection (1) does not apply to or in respect of a tort committed by a person in the conduct of any business, enterprise, undertaking or activity which is: (a) carried on by the person on the person's own account, or (b) carried on by any partnership, of which the person is a member, on account of the partnership. … 10 Effect of statutory exemptions (1) In this section: person includes the Crown. statutory exemption means a provision made by or under an Act which excludes or limits the liability of a person. (2) For the purposes of determining whether or not a person is vicariously liable in respect of a tort committed by another person, any statutory exemption conferred on that other person is to be disregarded. (3) Except as provided by this section, nothing in this Act affects a statutory exemption conferred on a person. 1. The term "independent function" is defined by s 5 as follows: independent function, in relation to a servant or a person in the service of the Crown, means a function conferred or imposed upon the servant or person, whether or not as the holder of an office, by the common law or statute independently of the will of the servant's master or the Crown, as the case may require. 1. Justice Adamson said: [68] The conduct by judges that is alleged to give rise to the causes of action occurred in the course of exercising judicial functions in open court in proceedings in which the plaintiffs were parties (or where Mr Hammond was appearing for Mrs Hammond in proceedings in which she was a party). Judicial immunity applies. It cannot, in my view, be regarded as a mere "statutory exemption" for the purposes of s 10. [69] Further, notwithstanding the breadth of the statutory language ss 7, 8 and 10 of the Law Reform (Vicarious Liability) Act I do not consider these provisions ought properly be construed to render the State vicariously liable for the conduct of judges while exercising judicial power. The construction for which the plaintiffs contended is wholly at odds with fundamental principle. The "irresistible clearness" said to be required by O'Connor J at 304 in the following passage from Potter v Minahan [1908] HCA 63; 7 CLR 277 is lacking: "It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness (United States v Fisher 6 US 358 at 390 (1805)); and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used." [70] Further, I am not persuaded that the State is vicariously liable for the acts of a judicial officer which fall within the immunity because, in carrying out those functions, judicial officers are neither acting as servants of the Crown nor in its service, but as independent judicial officers: Towie v State of Victoria (2008) 19 VR 640 at [60]; see also Rajski v Powell at 530-531 per Kirby P. 1. The Court of Appeal said that Adamson J was correct to determine that there was no tort demonstrated in that case and went on to say at [28]: It follows from that conclusion also that there could be no vicarious liability on the part of the State under the Vicarious Liability Act. The Court of Appeal did not otherwise deal with whether the State could be vicariously liable for the acts of a judicial officer. 1. I accept the reasons of Adamson J paragraphs [68] – [70] of her judgment in Hammond. They seem to me, with respect, to be entirely correct and in accordance with principle. 2. The result is that there no vicarious liability on either of the Defendants in the present case. Abuse of process 1. On 5 June 2015 the Plaintiff filed an application dated 21 May 2015 in the Court of Appeal seeking leave to appeal from the judgment of Pain J in the Land and Environment Court on 14 March 2005. 2. The Court of Appeal, having noted that the Land and Environment Court proceedings had been reinstated by Lloyd J in the way set out earlier in the Court of Appeal's judgment, went on to say: [12] …The argument then depended on the fact that there was no order in evidence before this Court evidencing a reinstatement of the proceedings, but there is no reason to doubt that an order was made. Pain J referred to it, as did Mr Galasso [appearing for the Council]. Further, the orders of the Land and Environment Court and in particular those made by Pain J are not a nullity because there is some prior step which should have been taken but which has not. They are the orders of a superior Court of record, that is the Land and Environment Court, and are effective and binding on the parties until set aside. [13] Counsel appearing today on a pro bono basis for Mr Stankovic submitted that it was appropriate for the Court to adjourn today's hearing to see if there were records in the Land and Environment Court file of the reinstatement order on which it was submitted the validity of the proceedings before Pain J depended. [14] There is, however, no basis for the belief that no such order existed. Indeed, there is nothing beyond unsupportable speculation for the proposition that no order was made. Counsel appearing in the proceedings said that an order had been made. The Judge accepted that it had been made. Indeed, Mr Stankovic, who appeared in the proceedings, appeared to accept in the course of the discussion that there was a power to make such an order, and said nothing more about it not having been made. In addition, as I have noted, at least in 2007 the issue could have been raised by the applicant at the hearing of the motion in which he sought the setting aside of some of the orders which had been made by Pain J. That was not done. No doubt, as counsel submitted, allowance should properly be made for the fact that the applicant was then appearing for himself, but the fact that he was conscious of the issue as to the dismissal of the proceedings is not in doubt. He had written the letter to the Chief Judge noting that fact prior to the hearing before Pain J. That was the issue which was discussed at the end of the proceedings before Pain J. [15] On the material before this Court there is no hint of any irregularity in the proceedings in the Land and Environment Court being reinstated in the manner described above. There is, accordingly, no basis for adjourning these proceedings so that some enquiry may be made as to the content of any file that might still be held in the Land and Environment Court. [16] The submissions made seeking to challenge the validity of the proceedings before Pain J are misconceived. Quite apart from the lapse of time, the application for leave to challenge the costs order made on 22 March 2005 is unarguable. The application should be dismissed on that basis. However the application and indeed the further application for an adjournment of the proceedings today should also be dismissed on the basis that it is now far too late to raise any issue of the kind referred to above. 1. The basic premise of the present proceedings is that the Land and Environment Court proceedings had been dismissed by Lloyd J and that any subsequent order made by Pain J was a nullity or was void or should be set aside. The judgment of the Court of Appeal makes it perfectly clear that the order of Pain J was not a nullity. Rather, the orders were effective and binding on the parties until set aside because they were orders of a superior court of record. Further, the Court of Appeal held that there was no irregularity in the proceedings in the Land and Environment Court. The Plaintiff's challenge to the validity of those proceedings was said to be misconceived and the challenge to the costs orders was unarguable and should be dismissed. 2. In those circumstances, the present proceedings can only be seen as an attempt to reargue and re-litigate matters which have been decided adversely to the Plaintiff. 3. The matter falls within the principle, sometimes described as the doctrine of extended estoppel, discussed in Rippon v Chilcotin [2001] NSWCA 142; (2001) 53 NSWLR 198 at [16]-[28] and [31]. The proceedings are an attempt to re-litigate issues and are an abuse of process. They amount to a collateral attack on the judgment of the Court of Appeal. Conclusion on the Defendants' Motion 1. The claim in the Statement of Claim is unarguable and is doomed to fail. In any event it is an abuse of process. For those reasons the proceedings should be dismissed. The Plaintiff's Motions (a) Motion concerning the Land and Environment Court proceedings 1. The Defendants sought to read on this Motion an affidavit of Bruce Cantrill sworn and filed 28 January 2016. The affidavit was said to have been served by email on the Plaintiff on the evening of 28 January. The Plaintiff denied having seen the affidavit before it was handed to him in Court. The affidavit simply annexed copies of Notices to Produce served by the Plaintiff on the Crown Solicitor and correspondence from the Crown Solicitor to the Plaintiff. The last such document served by the Plaintiff was said to be 25 January 2016. No explanation was provided for why the affidavit was served on the Plaintiff as late as it was. In the circumstances I did not have regard to it when considering the Plaintiff's Motion. 2. The Motion sought two orders. The first was that the matter be expedited to deal with the Notice to Produce served on 6 November 2015. The second order was a declaration that the proceedings in the Land and Environment Court were dismissed by Lloyd J on 16 February 2005 and not reinstated before 14 March 2005. 3. The second order falls within the determination I have made in relation to the Plaintiff's proceedings generally, namely, that they are an abuse of process for attempting to re-litigate matters already determined adversely to the Plaintiff. The Notice to Produce was merely ancillary to the principal claim of the Plaintiff. A copy of the record of the Land and Environment Court was already annexed to the affidavit of the Plaintiff sworn 20 October 2015 and filed 6 November 2015. Whether or not there was anything else to produce could not be relevant because of the determination of the substance of the matter by the Court of Appeal in its judgment of 9 September 2015. 4. This Notice of Motion filed 16 November 2015 should be dismissed. (b) Motion regarding filing fees 1. The Plaintiff sought by this Motion to have filing fees in relation to the present proceedings refunded to him and filing fees for the application to the Court of Appeal dated 5 June 2015 refunded. 2. The Plaintiff filed an affidavit saying that he was a sick and disabled pensioner and a homeless person who has lived on the streets for the last five years because his Kellyville property was sold. In addition, he appeared to relate the request for the repayment of the filing fee in the Court of Appeal to what was said to be the error that the Court of Appeal made in its judgment that the proceedings in the Land and Environment Court had been reinstated. 3. The Plaintiff made a number of inconsistent statements in his oral submissions about the filing fee for the present proceedings. He said at one point that some "new" principal Registrar called Chris (presumably, the Chief Executive Officer) had said that he would waive the fee. At another time he said that the fee had been waived but he also said that he wanted to get the fee back from the Court. In addition, he said that the filing fee had been postponed. 4. On the assumption that the Plaintiff has paid a filing fee in each case, I do not consider that there is any basis for waiving the payment of fees or ordering that those fees be refunded to the Plaintiff. The Court of Appeal found that the application that was made to it many years out of time with no explanation for the late filing (see at [17] of the Court of Appeal's judgment) was unarguable and ought to be dismissed. I have similarly found that the present proceedings are unarguable and, in any event, constitute an abuse of process. I have no real evidence about the Plaintiff's financial position other than that he says he is a disabled pensioner and a homeless person. 5. In the circumstances, the Plaintiff's Notice of Motion filed 16 November 2015 should be dismissed. Conclusion 1. I make the following orders: 1. The two Notices of Motion filed by the Plaintiff on 16 November 2015 are dismissed. 2. The proceedings are dismissed. 3. The Plaintiff should pay the Defendants' costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 February 2016