S v Queensland Corrective Services Commission
[1999] QCA 432
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- Unreported Judgment
- S v Queensland Corrective Services Commission[1999] QCA 432
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S v Queensland Corrective Services Commission[1999] QCA 432
S v Queensland Corrective Services Commission[1999] QCA 432
COURT OF APPEAL
de JERSEY CJ
McMURDO P
JONES J
Appeal No 10836 of 1998
| S | Applicant (Defendant) |
| and | |
| QUEENSLAND CORRECTIVE SERVICES COMMISSION | Respondent (Plaintiff) |
BRISBANE
DATE 14/10/99
JUDGMENT
THE CHIEF JUSTICE: The applicant seeks leave to appeal against a learned Judge's dismissal of his application for review of a decision of the respondent on 20 May 1998 refusing to grant him remissions on a sentence of imprisonment. His application was made under the Judicial Review Act. By the time the application came before the Judge the respondent had revoked the decision and the applicant had been released from custody. The Judge dismissed the application because, as she saw the matter, there was then no longer any practical point in determining it. Leave to appeal is necessary because of section 48 subsection 5 of the Judicial Review Act.
In support of his application for leave the applicant urges now through Mr Hamlyn-Harris that there is arguable utility in having the validity of the decision of 20 May determined with relation, for example, to a possible compensation claim in respect of the applicant's detention between 20 May and 6 October 1998 when the respondent revoked the earlier decision and released him. It appears that this point was not taken before the learned primary Judge. The current application is slightly out of time but one need not, for the moment, dwell on that.
In my opinion, leave should not be granted in this case for two reasons: first, a determination of the validity of the May order at this stage is not necessary to the applicant's pursuing any ultimate claim for compensation or other relevant relief. If he takes such other proceedings the issue can be determined in those proceedings and determined in a form appropriate to those proceedings. Our determining now the validity of the May order in short may very well not be determinative of the issue of liability in any such other proceedings.
But the primary point is this: it is not necessary that such a determination now be made. The relevant point may be addressed in such other proceedings if they are commenced. The judicial review of administrative decisions is undoubtedly an important part of this Court's jurisdiction. As a matter of judicial policy, however, it should not, in my view, be exercised unless necessary.
Secondly, as I have said, the particular aspect now said to give point to the Court's making such a determination at this stage, that is to facilitate possible further proceedings, was not raised before the primary Judge. It would, again in my view, be contrary to desirable judicial policy to grant leave so that the application could be re‑argued in circumstances where the point said to justify that course was not taken at first instance.
We were referred by Mr Hamlyn-Harris to the case of Abbott and others, number 233 of 1995, where on 21 July 1995 on an application for judicial review I declared invalid two past special treatment orders made in respect of the prisoner Abbott and another such order then current. The case of Abbott is, however, distinguishable. When the Court made declarations in that case Abbott was still in custody and still subject to a special treatment order. There was possible utility in the Court's determining the validity of past orders in addition to the then current order. That was because of the real prospect that the prison authorities would again seek to subject Abbott to such a regime. Significantly, as a review of the reasons for judgment illustrates, it was not there suggested, as here, that a declaration would have no utility. That obviously was explained by Abbott's still being in custody, then subject to an order, with the likelihood of his being subjected to further such special treatment orders in the future.
For these reasons I would dismiss the application.
THE PRESIDENT: I agree with what has been said by the Chief Justice but wish to add the following matters.
The primary Judge dismissed the applicant's application for judicial review under section 48 of the Judicial Review Act 1991. The applicant wished to review a decision of the authorised delegate of the respondent dated 20 May 1998 refusing to grant the applicant remission of his sentence on the basis that he represented a risk if released unsupervised.
The applicant was convicted of one count of indecent dealing with his 10 year old daughter and one count of attempted incest when she was 12 years old following a trial on 29 March 1995. He was sentenced on 28 April 1995 to two years' imprisonment and four years' imprisonment respectively with no recommendation for early parole eligibility. His sentence management plan provided for a release to work eligibility on 28 July 1996, home detention eligibility on 29 November 1996, parole application eligibility on 29 March 1997, remission release date on 26 September 1997 and a full-time release date of 28 March 1999.
On 19 September 1997 the applicant was refused remission on his sentence and was given written reasons on 27 October. On 20 November 1997 he applied for judicial review of that decision (see 11068/97).
On 3 April 1998 Justice Derrington granted the applicant's application on the basis that the delegate had not addressed the issue of whether the applicant constituted an unacceptable risk involving concern for the need to protect members of the community against the risk of serious physical harm as required by McCasker v. Queensland Corrective Services Commission [1998] 2 QdR 261.
On 20 May 1998 remission was refused by the delegate and the applicant brought further application for judicial review of that decision. Directions were given on 29 June 1998 and on 21 September 1998. The matter was adjourned to 19 October 1998.
On 6 October 1998 an authorised delegate reconsidered the applicant's application for remission, revoked the earlier decision of 20 May 1998 and granted the application. The applicant was released absolutely from the custody of the Commission on 6 October 1998, some four and a half months earlier than the full time release date of 28 March 1999, referred to in his sentence management plan and 13 days before the judicial review application was to be heard by the Court.
The learned primary Judge correctly observed that the applicant was, in effect, seeking declaratory relief which, as the majority (Mason CJ, Dawson, Toohey and Gaudron JJ) observed in Ainsworth v. Criminal Justice Commission (1992) 175 CLR 564:
"...must be directed to the determination of legal controversies and not to seeking abstract or hypothetical questions...
The person seeking relief must have a 'real interest'... and relief will not be granted if the question is 'purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen'... or if 'the court's declaration will produce no foreseeable consequences for the parties'."
The primary Judge concluded that there were no foreseeable consequences for the applicant arising out of the revoked decision and dismissed the application.
The respondent supports that conclusion and submits that no benefit can be conferred upon the applicant as there is no longer any issue to be decided which will affect the applicant's rights; there is no utility or purpose in granting leave to appeal as the issues in dispute between the parties are now academic.
In support of that proposition the respondent relies upon R v. Secretary of State for the Home Department, ex parte Salem [1999] 2 WLR 483 and Beitseen v. Johnson (1989) 29 IR 336.
In the latter case Johnson sought to bring an appeal from orders as to the validity of the appointment of an assistant secretary of a union.
At the time of the hearing of the appeal, an election for the position of assistant secretary was in progress, and it was contended that this would render academic the issues to be argued on the appeal. The court rejected the submission that the questions to be answered were not merely academic, but had a practical consequence if litigation were instituted against the assistant secretary for the remuneration received whilst performing the duties of assistant secretary; as no litigation had commenced in respect of that matter, the court found that this suggested practical consequence remained hypothetical and that the resolution of the appeal was essentially an advisory opinion of no more than persuasive authority if litigation were to eventuate.
In Salem the applicant, a Libyan national, arrived in the UK and claimed asylum. He was granted temporary admission and social security benefits.
On 7 May the Home Office, without informing him, recorded on an internal file that asylum had been refused and that his claim had been determined.
On 5 November he was told by the benefits agency that his income support was stopped because he had been refused asylum. The judge refused leave to apply for judicial review of the Secretary of State's decision to notify the Department of Social Security that the applicant's claim to asylum had been recorded as determined.
The Court of Appeal granted leave but the majority dismissed the substantive application.
The House of Lords granted an application by the applicant for leave to appeal. On 12 December 1998, following an appeal to a special adjudicator, the applicant was granted refugee status.
When the appeal came on before the House of Lords his claim to social security benefits, including back payments and a housing benefit, had been met. The applicant believed that as a result his reputation was fully vindicated.
The applicant's barrister, nevertheless, contended the appeal should continue as it involved a question of general public importance.
In his speech, Lord Slynn of Hadley, with whom the other Lords agreed, cited with approval Sun Life Assurance Co of Canada v. Jervis [1944] AC 111, at 113-114, and Ainsbury v. Millington (Note) [1987] 1 WLR 379, 381, as to disputes between parties as to private rights.
He then noted that Reg v. Board of Visitors of Dartmoor Prison; ex parte Smith [1987] QB 106, and Reg v. Secretary of State for the Home Department; ex parte Abdi [1996] 1 WLR 298, established that where there is an issue involving public authority as to a question of public law, the courts have a discretion to hear the appeal even if, by the time the appeal reaches a court, there is no longer an issue to be decided which will directly affect the rights and obligations of the parties inter se, adding:
"The discretion to hear disputes even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."
The applicant claims that if the decision of 20 May 1998 was incorrect and not lawful, the applicant was entitled to his liberty during that period. The applicant may wish to pursue a legal claim for compensation, or some other legal claim as to his detention from 20 May 1998 until 6 October 1998.
A determination of the matter the subject of this application will not directly affect any future action the applicant may take in that respect.
Whilst the case may raise concerns as to the propriety of the Commission's actions, these can be ventilated, if the applicant wishes, in such future action. The resolution of this application would amount to a hypothetical advisory opinion nor does it come within the unusual and narrow category of public law cases referred to in Salem.
For these reasons, as well as for the reasons given by the Chief Justice, I too would refuse the application.
JONES J: Yes, I agree with the orders proposed for the reasons enunciated by the Chief Justice and the President.
THE CHIEF JUSTICE: The application is dismissed.
...
THE CHIEF JUSTICE: The application is dismissed with costs to be assessed.