Mallet v Chief Executive, Department of Corrective Services
[2001] QCA 114
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- Mallet v Chief Executive, Department of Corrective Services[2001] QCA 114
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Mallet v Chief Executive, Department of Corrective Services[2001] QCA 114
Mallet v Chief Executive, Department of Corrective Services[2001] QCA 114
SUPREME COURT OF QUEENSLAND
CITATION: | Mallet v Chief Executive, Dept of Corrective Services [2001] QCA 114 |
PARTIES: | IAN PHILLIP MALLET (appellant/applicant) v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES (respondent/applicant) |
FILE NO/S: | Appeal No 3743 of 2000 SC No 10893 of 1999 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 15 December 2000 Further orders 30 March 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 31 October 2000 Further written submissions |
JUDGES: | McMurdo P, Mackenzie and Byrne JJ Further reasons for judgment of each member of the Court, each concurring as to the orders made. |
FURTHER ORDERS: | 1.Both applications, dismissed. 2.Order that the respondent pay the appellant's costs of and incidental to both applications to be assessed. |
CATCHWORDS: | CRIMINAL LAW – PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS – QUEENSLAND – whether legislation enacted after appeal was argued is applicable – whether court can alter its own judgment after it has been formally entered – whether current circumstances warrant amendment of a perfected judgment Corrective Services Act 1988 (Qld), s 207B Judicial Review Act 1991 (Qld) DJL v Central Authority (2000) 74 ALJR 706; applied Stubberfield v Paradise Grove Pty Ltd [2000] QCA 299 Appeal No 4796 of 2000 and Appeal No 38 of 1993, 28 July 2000; considered T M Burke Estates Pty Ltd v Council of the Shire of Noosa [2001] QCA 42 Appeal No 3926 of 2000 and Appeal No 6759 of 2000, 20 February 2001; considered |
COUNSEL: | J C Davidson for the applicant M D Hinson SC for the respondent |
SOLICITORS: | Poteri Woods for the applicant Crown Solicitor for the respondent |
- McMURDO P: Judgment in this case was delivered on 15 December 2000. The appeal was allowed, the order made below set aside and instead it was ordered that the issues of whether the prisoner should forfeit the whole or any part of the remission which he might otherwise have enjoyed on the sentence of seven years imprisonment and whether the prisoner is entitled to remission be remitted to the authorised delegate to be considered according to law. The respondent was ordered to pay the appellant's costs of the proceeding in the Trial Division and of the appeal to be assessed.
- This is an application by the respondent and a cross-application by the appellant to amend that order which has issued from the Registry.
- On 18 January 2001, the respondent wrote to the Deputy Registrar (Appeals) requesting that this Court reconsider its orders in the light of s 207B Corrective Services Act 1988 ("the Act") which came into force between the time the case was argued and the day when judgment was given.
- On 24 January 2001 the respondent lodged an application in the Court of Appeal requesting a variation to the Court's order by adding at the end of the words "according to law" the words "and in accordance with s 207B of the Corrective Services Act 1988" and a direction that in considering the issues remitted for the delegate's consideration, the delegate was bound to apply s 207B of the Act.
- The appellant lodged a cross-application on 9 February 2001 for a declaration that the term "according to law" in the Court's order means "according to the law applying at the time of the respondent's original decision on 20 October 1999 and accordingly s 207B of the Corrective Services Act 1988 does not affect the order of the Court".
- Section 207B did not feature in argument before this Court.
- Both parties have filed written submissions. The appellant and the respondent have different contentions as to the effect of s 207B and the effect, if any, it will have on any future application of the appellant for remission. The appellant also questions this Court's jurisdiction to entertain either application.
- The circumstances in which a court of record may alter its own judgment after it has been formally entered are very limited and were recently reviewed by the High Court in DJL v Central Authority.[1] The application of those principles to the Queensland Court of Appeal was recently considered in Stubberfield v Paradise Grove Pty Ltd:[2]
"Familiar examples where alterations may be made after recording of judgment are the correction of an accidental slip or omission, the rectification of the record of the court to ensure that the order truly represents what the court had intended to pronounce, orders by consent, and the setting aside of judgments fraudulently obtained (usually by the institution of a separate proceeding). However, these qualifications apart, the rule that is regarded as applicable for a Court of Appeal such as the New South Wales Court of Appeal is:
'Once an order disposing of a proceeding has been perfected by being drawn up as the record of the court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in our opinion, beyond recall by that court. It would, in our opinion, not promote the due administration of the law or the promotion of justice for a court to have power to reinstate a proceeding of which it has finally disposed.' (per Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529, 530).
This was cited with approval by the court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) in DJL v The Central Authority at para [38]."[3]
- DJL v The Central Authority demonstrates that the High Court would only vacate its own order in exceptional circumstances. The circumstances in which this Court can amend a perfected judgment cannot be less stringent than those that would apply in the High Court, this country's ultimate appellate court. There are some recognised situations where alterations to orders can be made and there may be cases where the interests of justice would require the court to reopen an order: see T M Burke Estates Pty Ltd v Council of the Shire of Noosa.[4] This case is not amongst them.
- The order in its present form requires the Chief Executive to reconsider its decision according to law. If the appellant is not satisfied that the respondent has made a subsequent decision according to law, his remedy is to make a further application under the Judicial Review Act 1991.
- I would dismiss both applications. As the appellant's application was only lodged as a cross-application to the respondent's application, the respondent should pay the costs of and incidental to both applications to be assessed.
- MACKENZIE J: The chronology of this matter is set out in the President's reasons. The order of the Court of Appeal of 15 December 2000, which has been perfected, obliged the authorised delegate to reconsider the question of the appellant's entitlement according to law.
- The issue now raised is whether s 207B of the Corrective Services Act 1988, which was enacted after the appeal was argued, applies to the appellant's case or whether he is entitled to have his entitlement considered without reference to it.
- This issue was not raised before judgment was delivered, and a means exists under the Judicial Review Act 1991 to test whether the delegate's decision upon reconsidering the appellant's case is based on a correct view of the law.
- I agree that the case is not in a category where the decision of the Court of Appeal should be re-opened. Since the respondent's fresh application is misconceived and the appellant's merely asserts the contrary in response to it, the applications should be dismissed with the order as to costs proposed by the President.
- BYRNE J: As Mackenzie J explains,[5] the question whether the appellant is entitled to have his claim to remission assessed without regard to s 207B is susceptible of judicial resolution by proceedings for review of the delegate’s decision once made.[6] In those circumstances, in my opinion, there is no sufficient reason for this Court now to determine the point.
- Accordingly, the applications should be dismissed, with the cost consequences the President proposes.
Footnotes
[1](2000) 74 ALJR 706, 714-715.
[2][2000] QCA 299, [15]-[20].
[3]Stubberfield v Paradise Grove Pty Ltd, above, [15].
[4][2001] QCA 42, [38]-[49], especially [45]-[46].
[5]See para [14] of his Honour’s reasons.
[6]Or, if the delegate is already committed to a decision yet formally to be made, for declaratory relief.