Kenneth Allan Donaldson v State of New South Wales

1. [1]

   By statement of claim filed on 4 October 2017, the Plaintiff (Mr Donaldson) commenced proceedings against the State of New South Wales (the State). He seeks damages in the sum of $70,000,000.00. The Plaintiff’s cause of action arises from a judgment of this Court [1] and is cast as an action in negligence. The liability of the State is said to arise on the basis that it is liable for the actions of judicial officers in the exercise of their judicial functions.

2. [2]

   The State filed a defence on 28 November 2017 and, by notice of motion filed 15 December 2017, sought an order for summary dismissal of the proceedings pursuant to Part 13 rule 4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). In the alternative, it sought an order that the statement of claim be struck out pursuant to Part 14 rule 28 of the UCPR. The notice of motion was supported by an affidavit of Bruce Cantrill, a solicitor in the employ of the NSW Crown Solicitor. Written submissions under the hand of counsel for the State were filed on 9 March 2018.

3. [3]

   Mr Donaldson filed an Affidavit of Evidence on 9 February 2018 and a Reply (to the State’s defence and notice of motion) on 12 January 2018.

4. [4]

   The notice of motion was heard on 5 April 2018.

5. [5]

   Since that time Mr Donaldson has provided several pieces of correspondence and on 5 October 2018 filed a document styled “Judgment of Entitlement”. The latter documents sought orders as follows:

   1. (1)

      Full total of damages claimed $110,000,000.00 to be paid by the Defendant State of New South Wales on or before 11 October 2018.

   2. (2)

      A certificate exempting the plaintiff for life from paying taxes to be issued to on or before 11th October 2018.

   3. (3)

      A copy of the tax exemption certificate to be attached to the plaintiff permeate (sic) tax file with the Australian tax office on or before 11th October 2018.

   4. (4)

      All past, present and future legal actions by the Defendants both State and Commonwealth are to be struck out and denied any new proceedings against Kenneth Allan Donaldson.

6. [6]

   The basis upon which Mr Donaldson loss has increased by $40,000,000 (from $70,000,000 to $110,000,000) is not clear but it appears to be based on the delay in publication of the judgment.

7. [7]

   The State has not responded to any of the correspondence filed since the hearing and, as far as is known, has not complied with the orders sought, or demands made, in the Judgment of Entitlement.

8. [8]

   The State submits that the proceedings represent an attempt to re-litigate matters that have previously been resolved against Mr Donaldson and contends that there are four bases upon which the current proceedings should be dismissed summarily. These are:

   1. (1)

      The proceedings are an abuse of process because they constitute an attempt to re-litigate matters finally resolved against Mr Donaldson in 2011.

   2. (2)

      There is no arguable cause of action because the doctrine of judicial immunity applies to the action as articulated in the statement of claim.

   3. (3)

      There exists no actionable duty of care against the State.

   4. (4)

      The proceedings were brought outside the period (6 years) stipulated by the Limitation Act 1969.

9. [9]

   In the course of oral argument, counsel for the State acknowledged that it is only in rare and clear cases that proceedings will be dismissed summarily on the basis that the proceedings are commenced outside of the limitation period. Further, the argument that the limitation period has expired is predicated on the assumption that the cause of action accrued on 13 May 2011, the date on which Davies J ordered that the earlier proceedings be dismissed. The present action was commenced on 4 October 1017 which is outside of that period. However, Mr Donaldson appealed to the Court of Appeal and then sought special leave to appeal to the High Court. The High Court refused special leave on 29 March 2012. It is at least arguable that the cause of action did not accrue until Mr Donaldson’s appeal rights were exhausted. That was less than six years before the statement of claim was filed. In view of the conclusion I have reached on the other bases upon which the State relies in seeking summary dismissal of the Statement of Claim, I do not propose to consider further the limitation question.

The test for summary dismissal

1. [10]

   An application for summary dismissal is not to be granted lightly. The Court’s jurisdiction to dismiss an action summarily should only be employed in a “clear case” in which the plaintiff’s claim is “manifestly groundless” and “so obviously untenable that it cannot possibly succeed”. [2] In Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 the High Court reiterated that these phrases should be given their full effect. [3]

Procedural history

1. [11]

   The factual circumstances of the case began in 2009 when Mr Donaldson brought a successful personal injury claim against Woolworths Limited. It is unnecessary to go into the detail of those proceedings save to say that Mr Donaldson was awarded damages in the sum of $76,006.85. Following the award of damages, on 30 April 2009, Centrelink gave notice to Mr Donaldson that they intended to recover $7,817.74 in disability support pension payments from the award.

2. [12]

   On 20 July 2010, Mr Donaldson commenced proceedings against the Commonwealth seeking damages in the sum of $30,000,000. I will attempt to distil his claim against the Commonwealth by saying simply that he alleged Centrelink’s proposed course of action was in breach of an employment contract between Centrelink and the Plaintiff, that there was a breach of a statutory duty of care, and that Centrelink was liable for its fraudulent and incompetent behaviour.

3. [13]

   The Commonwealth filed a defence and a notice of motion seeking summary dismissal. Mr Donaldson filed a Notice of Motion entitled “Default Judgment for unliquidated damages”. Both motions were heard on 7 February and 13 May 2011.

4. [14]

   On 13 May 2011 Davies J ordered that the Plaintiff’s notice of motion be dismissed and that judgment be entered for the Commonwealth. [4]

5. [15]

   The Plaintiff sought leave to appeal against the decision of Davies J in the New South Wales Court of Appeal. Neither party produced a copy of the judgment in relation to this application but the records of the High Court of Australia indicate that the Court of Appeal (Giles JA and Sackville AJA) “dismissed the application with costs on the grounds that the trial judge did not make any errors in his Honour’s findings, reasoning or conclusions.” [5]

6. [16]

   The Plaintiff sought special leave to appeal to the High Court. The High Court (Gummow and Kiefel JJ) refused special leave because the application did not “advance any ground that would justify a grant of special leave to appeal”. [6]

The proceedings before Davies J

1. [17]

   In the proceedings before Davies J, his Honour accepted that four possible causes of action arose from the Plaintiff’s statement of claim. [7] These were fraud, breach of contract, negligence and breach of statutory duty.

2. [18]

   His Honour ruled that there was no basis for the pleadings in contract and fraud against the Commonwealth and, conscious that Mr Donaldson was self-represented, adjourned the proceedings to allow him time to re-plead his case in negligence and breach of statutory duty. [8]

3. [19]

   Davies J found that Mr Donaldson did not establish that either Centrelink or the Commonwealth owed him a duty of care and held that the imposition of such a duty would be “likely to conflict with powers and duties in the legislation being administered”. [9] His Honour found that Mr Donaldson’s primary complaint was with the Parliament, which the Commonwealth had no liability for, and which did not owe a duty of care.

4. [20]

   Davies J entered judgment for the defendant on the basis that Mr Donaldson had no cause of action against the Commonwealth.

5. [21]

   Mr Donaldson exhausted his avenues of appeal against the decision of Davies J. Any assertion of judicial misconduct or neglect was able to be advanced as part of the appeal process.

The current proceedings

1. [22]

   The cause of action now pleaded by Mr Donaldson concerns the manner in which Davies J conducted the proceedings in 2011. The written submissions filed on behalf of the State articulate with reasonable clarity the case that Mr Donaldson is attempting to advance. Those submissions discern (correctly) four possible allegations arising from his statement of claim. These are:

   1. (1)

      In the earlier proceedings the plaintiff had material which showed a valid cause of action in fraud or he should have been awarded default judgment;

   2. (2)

      The Commonwealth had, in the earlier proceedings, “declared a plea of guilty” to the allegations made by the plaintiff;

   3. (3)

      His Honour (or perhaps the State) owed the plaintiff a duty of care which required a “professional level of due diligence” and/or a “professional level of standard of care”; and

   4. (4)

      That duty was breached, apparently by reason of the Court’s failure in the earlier proceedings to deliver a judgment in favour of the plaintiff based on the Commonwealth’s admission of guilt.

2. [23]

   It is appropriate to set out in full the cause of action asserted in the Statement of Claim:

The principle of finality

1. [24]

   In D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Gleeson CJ, Gummow, Heydon and Hayne JJ said at 17-18 ([34] - [35]):

2. [25]

   The State is correct in submitting that the plaintiff is seeking to reventilate issues that have already been resolved against him. It appears that the Plaintiff’s present complaints are made on the basis that Davies J should not have dismissed his claim against the Commonwealth in 2011. In doing so, the Plaintiff is seeking to challenge collaterally the decision of Davies J and to re-litigate matters that have previously been determined to finality.

3. [26]

   Mr Donaldson’s complaints against the Commonwealth and Centrelink were resolved in the proceedings before Davies J. He sought leave in the Court of Appeal to appeal against that decision. When he was unsuccessful in the Court of Appeal, he sought special leave to appeal to the High Court. Special Leave was refused. By asserting that Davies J misconducted himself in the hearing and was negligent in finding against him, Mr Donaldson is attempting to conduct a “quasi-appeal” in this Court by pleading the same case in a different form and against a different defendant.

4. [27]

   The same applies to the assertion that the Registrar of the Court failed in his duty by “denying the plaintiff opportunity for, or requestion direction based upon the Defendant’s omission of guilt.”

5. [28]

   On this basis alone, the present proceedings represent an abuse of process: cf Hammond v The State of New South Wales [2013] NSWSC 1930 and Hammond v the State of New South Wales [2015] NSWCA 304.

Judicial immunity

1. [29]

   Insofar as the plaintiff alleges negligence or some other civil wrong by the Judge or Registrar who heard or managed the case in 2011, the action has no prospects of success because both the actions of both officers is subject to the principle of judicial immunity.

2. [30]

   The Judicial Officers Act 1986 (NSW) relevantly provides immunity to both Supreme Court judges and registrars in the performance of their duties:

3. [31]

   The protection of judicial immunity was described by Kirby P in Rajski v Powell (1987) 11 NSWLR 522 as “a principle which appears to be fundamental to all the jurisdictions of the common law”. [10] The principle is essential in preserving the independence of the judiciary. [11]

4. [32]

   The actions of both Davies J and the Registrar that are subject to the Statement of Claim were carried out in the performance of their judicial functions and are protected by this immunity.

5. [33]

   Accordingly, the plaintiff’s action is destined to fail. It is manifestly hopeless.

Duty of care and vicarious liability

1. [34]

   In view of the conclusions I have reached in relation to the principles of finality and judicial immunity, it may not strictly be necessary to determine the State’s argument that there is no actionable duty of care. In Hammond v The State of New South Wales, Adamson J held that the state was not liable for the actions of judicial officers because the powers of the judiciary are conferred for the benefit of the public, rather than for a specific class of persons including the plaintiff. This conclusion was in conformity with the second step of the six-step test enunciated by McHugh J in Crimmins v Stevedoring Industry Finance Committee to determine whether a statutory body owes a duty of care to a plaintiff. [12]

2. [35]

   Similarly, Adamson J held (in my view correctly) that there were “overwhelming policy reasons” for denying a duty of care. This was the sixth step in McHugh J’s formulation in Crimmins. [13] As a practical matter, this sixth consideration is encompassed in the principle of finality and the fundamental reason why the present cause of action represents an abuse of the Court’s process.

3. [36]

   In either event, it is abundantly clear that Mr Donaldson has no tenable argument that the State owes him a duty of care either by virtue of vicarious liability or otherwise.

“Judgment of entitlement”

1. [37]

   I have set out in paragraph [5] the orders sought in the document filed by Mr Donaldson on 5 October 2018. The grounds upon which those orders are sought essentially concern the delay in publishing this judgment. The matter was heard on 5 April and more than six months will have passed before the Judgment is delivered. The delay leads in the notice to allegations including “dereliction of duty”, “misconduct”, “perverting the course of justice” and “pending Fraud and conspiring to defraud among several Judicial Officials”.

2. [38]

   While it is regrettable that publication of this judgment has been delayed for reasons unrelated to these proceedings, the application for “Judgment by Entitlement” is manifestly ridiculous. The State has not responded to it. It is inappropriate that I dignify the allegations with a response. No doubt the allegations, if they are maintained, can be canvassed if Mr Donaldson elects to appeal against this decision.

Conclusion

1. [39]

   For the foregoing reasons, the State has established that the proceedings brought by Mr Donaldson are destined to fail. While the test for summary dismissal is a strict one, the present case provides a clear example where the Court should exercise the power reflected in UCPR Part 13, rule 4.

2. [40]

   Accordingly, I make the following orders:

   1. (1)

      The first order sought in the defendant’s notice of motion is granted.

   2. (2)

      Proceedings 17/298829 are dismissed pursuant to Part 13, rule 4 of the Uniform Civil Procedure Rules.

   3. (3)

      The plaintiff is to pay the defendant’s costs.