Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl

The Court held: (1) It was not in the interests of justice to grant leave to the applicant or the proposed defendants to appear on the appeal, there being no utility in doing so. [16] (2) An inquiry into the applicant's convictions under the Crimes (Appeal and Review) Act 2001 was not a matter before his Honour and there was no error in his failure to conduct it. [22] (3) Contrary to the applicant's submission, his Honour was not restricted solely to the material relied upon by the applicant. Rather, he correctly and appropriately considered the relevant principles of law and the case law. There was nothing in his Honour's reasons that indicated that he conducted his own factual inquiries. [28] (4) None of the applicant's submissions gave cause to doubt the correctness of his Honour's approach or his conclusions. The applicant failed to demonstrate that he had prima facie grounds for any of the causes of action he proposed to bring. [38]-[40]

Judgment

1. THE COURT: The applicant is in custody, having been convicted of a number of serious indictable offences. A person in custody having been convicted of a serious indictable offence may not institute civil proceedings in any court except with the leave of that court: Felons (Civil Proceedings) Act 1981 (NSW) (the Act), s 4. An appeal from a refusal of leave lies pursuant to s 6(1) as if the decision to refuse leave was on a point of law. An appeal does not lie to the Court of Appeal except by leave: s 6(2).
2. The applicant sought leave to commence proceedings seeking damages for false imprisonment, malicious prosecution, deceit, abuse of process and negligence against the State of New South Wales and the Director of Public Prosecutions. Leave was refused by Fagan J on 15 October 2015: PFC v State of New South Wales & Anor [2015] NSWSC 1507. The applicant now seeks leave to appeal against that decision.

Relevant background facts

1. The background to the proceedings the applicant seeks leave to institute derives from the circumstances of his present imprisonment.
2. The applicant was convicted, following a trial before Norrish DCJ and a jury, of 23 counts of sexual offences against a number of juvenile complainants, child pornography offences and offences of acting with intent to pervert the course of justice. One of the charges in respect of which he was convicted involved a person identified as SB. That charge comprised count 12 on the indictment. We return to the details of that charge below. On 21 December 2009, the applicant was sentenced in respect of those convictions to a term of imprisonment comprising a non-parole period of 10 years and 9 months and a balance of term of 3 years and 8 months.
3. On 15 September 2011, the applicant was sentenced, following a trial before Freeman DCJ and a jury, to a further term of imprisonment of 2 years and 8 months with a non-parole period of 2 years, to commence following the completion of his current term, in respect of an additional count of perverting the course of justice.
4. Appeals against conviction were dismissed by the Court of Criminal Appeal. The Court of Criminal Appeal has also dismissed three applications, pursuant to r 50C of the Criminal Appeal Rules, to set aside the orders made by the Court of Criminal Appeal dismissing the applicant's appeal against his convictions: see below.

Count 12

1. The substance of the applicant's proposed proceedings relates to count 12 of the indictment on which the applicant was convicted in the trial before Norrish DCJ, which the applicant contends was unsustainable under law. That count, recorded in Clark v R [2015] NSWCCA 265 at [37], read as follows: "Between 1 August 2003 and 30 November 2003 at [city] in the State of New South Wales, [the applicant] did have sexual intercourse with SB, he being a person of the age of 14 years and under the age of 16 years, in circumstances of aggravation, namely that SB was under the authority of [the applicant]."
2. The applicant contends that it was not possible for this offence to have been committed, because SB was not under his authority during the relevant period. That contention founds his claims in false imprisonment, malicious prosecution, deceit, abuse of process and negligence.
3. The contention relating to SB has been heavily litigated in the past. The dates on which SB was under the applicant's authority were in issue at the trial before Norrish DCJ. The issue was again considered in the applicant's appeal against conviction: PFC v R [2011] NSWCCA 275 at [200]-[202] and [359] ff. It was reconsidered in the following r 50C applications: PFC v R (No 2) [2014] NSWCCA 241 at [125]; Clark v R [2015] NSWCCA 265 at [35]-[46]; and Clark v R (No 2) [2015] NSWCCA 271. In each of those proceedings, the identical contention to that which now forms the factual basis of the applicant's proposed proceedings was rejected.

Legislative scheme

1. The Act provides for a scheme whereby certain persons serving custodial sentences may commence civil proceedings only following a grant of leave by a court. Section 4 provides as follows: "4 Leave to sue required for persons convicted of serious indictable offences A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application."
2. A "serious indictable offence" as referred to in s 4 means an indictable offence "punishable by imprisonment for life or for a term of 5 years or more": Interpretation Act 1987 (NSW), s 21. The offences of which the applicant was convicted were against the following sections of the Crimes Act 1900 (NSW): ss 61M(1); 66C(1), (3) and (4); 91G(1) and 319. Each of those offences carries sentences of imprisonment for a term of 5 years or more.
3. Section 5 of the Act provides: "5 Grant of leave A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings."
4. The Act, in s 6, provides for a system of appellate review, again by leave, of decisions to refuse to grant leave to bring proceedings, as follows: "6 Refusal of leave - appeal (1) Subject to subsection (2), a person to whom leave referred to in section 4 has been refused may appeal against the refusal as if the decision to refuse the leave were a decision on a point of law. (2) An appeal shall not lie to the Court of Appeal (within the meaning of the Supreme Court Act 1970) from an order refusing leave referred to in section 4 except by the leave of the Court of Appeal."
5. A further feature of proceedings under the Act is that no party may appear in them except by leave. Section 7 provides: "7 Right of appearance At the hearing or determination of an application or appeal under this Act, except by the leave of the court to which the application or appeal is made: (a) the applicant or appellant, as the case may be, is not entitled to appear in person, and (b) the person who would, if the proceedings to the institution of which the application or appeal relates were instituted, be the defendant in those proceedings, is not entitled to appear or be represented."
6. Leave was granted pursuant to s 7 of the Act for the applicant and the proposed defendants to appear in the proceedings before Fagan J.
7. The effect of s 7 is that further leave is required for the applicant or the proposed defendants to appear on the appeal. It is not in the interests of justice to grant such leave. For the reasons given below, the Court considers that the applicant's proposed grounds of appeal are misconceived or have no prospects of success. There is no utility in placing the burden of further oral or written submissions on the Court or the proposed defendants.
8. The applicant, having thus been convicted of a serious indictable offence and being presently in custody, falls within s 4 of the Act and is a person who requires leave of the court to institute proceedings.
9. The grant or refusal of leave to appeal is in the discretion of the Court. It is ordinarily only appropriate to grant leave where the appeal would raise a question of principle, or a matter of public importance is involved, or it is reasonably clear that there has been an injustice in the sense of going beyond it being reasonably arguable that the primary judge was in error: Lee v New South Wales Crime Commission [2012] NSWCA 262 at [12] per Bathurst CJ (Macfarlan and Barrett JJA agreeing); Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 at 3 per Kirby P.

The proposed appeal

1. The applicant raised three proposed grounds of appeal. He also sought an order referring him to the New South Wales Bar Association for pro bono assistance. Having regard to the conclusion we have reached that the appeal has no prospects of success, there is also no utility in making a referral for pro bono assistance.

Ground 1

1. The applicant's first proposed ground of appeal was as follows: "The primary judge erred in not conducting an inquiry under Div 3, Pt 7 Crimes (Appeal and Review) Act 2001 after the Appellant had made application(s) at the hearing for such an inquiry to be conducted by his Honour and/or the Supreme Court this led to a miscarriage of justice."
2. The application before his Honour was for leave to institute civil proceedings in tort. An application under Div 3, Pt 7 Crimes (Appeal and Review) Act 2001 (NSW) is entirely different and it involves a very different process from that proposed to be brought by the applicant by leave under the Act. It is not necessary to deal in detail with the process entailed in an application under the Crimes (Appeal and Review) Act other than to point out that pursuant to s 75, the jurisdiction of the Supreme Court is to be exercised by the Chief Justice or a Judge of the Supreme Court authorised by the Chief Justice and, under s 78(2), a copy of any such application must be provided by the Registrar of the Criminal Division of the Supreme Court to the Minister. In circumstances where the application for a review was made orally before his Honour, it can be inferred that neither of these steps had occurred.
3. It follows that the only matter before his Honour was the application for leave to bring civil proceedings against the State and the Director of Public Prosecutions. This was so notwithstanding that the applicant sought to base his oral application for an inquiry on the same matters upon which he relied in seeking leave to bring the civil proceedings. His Honour therefore did not err by failing to deal with the application for an inquiry. Proposed ground 1 has no prospect of success.

Ground 2

1. By proposed ground 2, the applicant contended that: "The primary judge erred by conducting his own private inquiry ex parte after the hearing had concluded into the conviction that was the subject of the proposed Statement of Claim this led to a miscarriage of justice."
2. It appears that, by this ground, the applicant contends that the only permissible approach to applications under the Act is for the court to make a determination on the basis only of the materials provided in the application and the submissions of the active parties, if any, who are granted leave to appear. Thus, the applicant contended that: "The primary judge going outside the hearing did exactly what juries are told not to do, namely, not to make or enter into their own private investigations outside the evidence that had been put before them."
3. The overall submission appears to be that the applicant's materials, in isolation, demonstrated that he had prima facie grounds showing that his conviction in respect of count 12 was wrong and that his application should therefore have been allowed.
4. The issue before his Honour, pursuant to ss 4-5 of the Act, was not the merits of a prior conviction. Rather, it was whether the applicant had prima facie grounds in respect of any of his proposed causes of action, and whether they would constitute abuses of process.
5. The particular challenge raised by this proposed ground was directed to [15]-[17] of his Honour's reasons. In [15]-[16], his Honour considered what the applicant needed to prove to establish the tort of false imprisonment, having regard to the facts that the applicant asserted and to what the Crown had asserted for the purposes of proof of the offence charge under s 66C. At [17], his Honour observed that for the applicant to advance a case of false imprisonment, it would be necessary to call into question his conviction of that offence. To do so would constitute an abuse of process: Rogers v The Queen [1994] HCA 42; 181 CLR 251 at 255 and 274.
6. There was no error in his Honour's approach in these paragraphs. His Honour considered the material advanced by the applicant; what was required for proof of the tort of false imprisonment and why that case could not be advanced given the applicant's conviction. In doing so his Honour, correctly and appropriately, in accordance with his judicial task, considered the relevant principles of law and the case law. In this respect, his Honour was not restricted, as the applicant contended, solely to the material relied upon by the applicant. Further, so that the matter is clear, his Honour did not transgress the principle that fact finding, either by a judicial officer or a jury, is to be based upon the material properly adduced in evidence. There is nothing in his Honour's reasons that indicated that his Honour conducted his own factual enquiries.
7. We are of the opinion that this ground of appeal has no prospects of success.

Ground 3

1. The applicant's third proposed ground of appeal was as follows: "The primary judge erred in dismissing the Appellant's application under the Felons (Civil Proceedings) Act 1981 summarily this led to a miscarriage of justice."
2. His Honour did not dismiss the applicant's application summarily, but rather gave full reasons for doing so. Putting that to one side, in the context of the applicant's written submissions this proposed ground of appeal should be understood as a more generalised attack on his Honour's reasoning.
3. The core of the applicant's complaint was reflected in the following submission: "… his Honour's only duty under [the Act] was simply to decide whether my claim on it's [sic] face disclosed a possible cause(s) of action for the defendants to answer. Not whether my case as pleaded had to be at the highest end of the scale to be a successful claim." (emphasis in original)
4. Fagan J's approach was to consider the elements of the applicant's proposed causes of action in order to determine whether any cause of action had prima facie grounds of success or would necessarily amount to an abuse of process. As noted above, that is the exercise required by ss 4-5 of the Act.
5. His Honour considered the proposed action in false imprisonment at [14]-[17]. A necessary element of such an action, in relation to count 12, would be that the police had no lawful justification for arresting the applicant in relation to that count. As noted above, proof of that would require calling into question a conviction entered in a court of appropriate jurisdiction following trial, which would amount to an abuse of process.
6. In respect of the tort of malicious prosecution, his Honour found at [18]-[19], that the claim could not be made out as proceedings in relation to count 12 did not terminate in the applicant's favour. The claim thereby had no prima facie grounds. His Honour considered the applicant's claim framed as "abuse of process" was effectively the same as the claim of malicious prosecution: at [23]-[24].
7. The applicant's case in deceit was founded on a claim that investigating police officers "wilfully and deliberately" concealed from the Crown and the court exculpatory evidence relating to count 12. At [21], his Honour noted that such a claim, which would necessarily call into question the applicant's conviction on count 12, would again be an abuse of process. Further, his Honour noted that the tort of deceit was not applicable, as it would require proof that the applicant, not a third party, had been deceived and had thereby acted to his detriment.
8. Finally, in relation to the applicant's claim of negligence, his Honour noted that no relevant duty of care was owed by officers of the proposed defendants to the applicant, such that there was no prima facie basis for the claim. Further, the applicant could not prove damages absent the assertion that the applicant was wrongly convicted of count 12, making the claim an abuse of process: see at [28].
9. None of the applicant's submissions give cause to doubt the correctness of his Honour's approach or his conclusions. There is no indication that his Honour considered whether the applicant's case was at the "highest end of the scale". Rather, his Honour determined that it was at the lowest end of the scale, that is, that it had no foundation at all.
10. The applicant, in his submissions on the application for leave to appeal, does not engage with the judgment below in terms of the elements of the causes of action which he seeks leave to bring. Rather, he focuses solely on his contentions regarding count 12 in what appears to be a further attempt to challenge his conviction. In his submissions, the applicant notes that his: "… application to [Fagan J] under this section was for his Honour to give me … a simple direction as to how I could succeed with my claim more importantly on how to have the conviction overturned." That approach was misconceived. As noted above, the count 12 contentions have been litigated in the past on a number of occasions and an attempt to call into question the applicant's conviction in civil proceedings would amount to an abuse of process.
11. In order to demonstrate that he has prima facie grounds for any of the causes of action he proposes to bring, the applicant was required to demonstrate that there was some cause of action the elements of which he might be able to satisfy. He failed to do so.
12. Proposed ground 3 has no prospects of success.

Conclusion

1. The applicant's proposed appeal has no prospects of success and raises no question of principle. Leave to bring the appeal should be refused. In the absence of any active parties, no order for costs should be made.
2. There is no utility in making the order for pro bono assistance sought by the applicant. Such an order would be a waste of a barrister's donated time and of limited pro bono resources.

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: 11 May 2016