Corliss v Director of Public Prosecutions

HCA 3; (2023) 97 ALJR 107 The Ombudsman v Laughton (2005) 64 NSWLR 114; [2005] NSWCA 339 The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation (1981) 147 CLR 471; [1981] HCA 33 Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8 Texts Cited: KR Handley, Spencer Bower and Handley: Res Judicata (5th ed, LexisNexis, 2019) Category: Principal judgment Parties: Patrick Joseph Corliss (Applicant) Director of Public Prosecutions (NSW) (First Respondent) District Court of NSW (Second Respondent) Representation: Counsel: Self-represented (Applicant) J Davidson (First Respondent)

Solicitors: Office of the Director of Public Prosecutions (First Respondent) File Number(s): 2023/205312 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: 15 December 2022 Before: Herbert DCJ File Number(s): 2016/324737

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] In 2018 the applicant, Mr Corliss, was sentenced in the District Court to 7 years imprisonment with a non-parole period of 4 years and 4 months after pleading guilty in the Local Court to five sexual offences against the same complainant. One further charge of indecent assault was taken into account on sentence as a "form 1 offence". As was common ground on the application before this Court, for the purpose of the sentencing proceedings the prosecutor did not file a certificate in relation to the form 1 offence as was required by s 35A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Mr Corliss appealed unsuccessfully against his sentence to the Court of Criminal Appeal. He then unsuccessfully sought to have the judgment and orders of the Court of Criminal Appeal set aside relying upon r 50C of the Criminal Appeal Rules (as then in force). On 20 January 2021 Mr Corliss filed a notice of motion in the District Court seeking that his sentence be set aside on the ground that the prosecutor had not filed a certificate as required by s 35A(2) of the Crimes (Sentencing Procedure) Act. In his motion he made no mention of, and did not rely upon, s 43 of the Crimes (Sentencing Procedure) Act. On 3 March 2021 Judge Hanley SC decided that the District Court did not have jurisdiction in relation to that motion. On 22 November 2022 Mr Corliss made a further application to the District Court seeking orders that the sentencing proceedings be re-opened and the sentence set aside pursuant to s 43 of the Crimes (Sentencing Procedure) Act. Mr Corliss contended that his sentence was a penalty that was imposed contrary to law, within the meaning of s 43, because the form 1 offence was taken into account on sentence without a certificate being filed as required by s 35A(2) of the Crimes (Sentencing Procedure) Act. On 15 December 2022 Herbert DCJ dismissed the motion on the basis that, having regard to the error relied upon by Mr Corliss, the Court did not have jurisdiction under s 43 of the Crimes (Sentencing Procedure) Act to make the orders sought by Mr Corliss. By an amended summons, Mr Corliss sought judicial review of that decision. The grounds of review raised the following issues, namely whether Herbert DCJ fell into jurisdictional error by: (i) determining that the Court did not have jurisdiction under s 43 of the Crimes (Sentencing Procedure) Act; (ii) failing to give adequate reasons for decision; and (ii) denying Mr Corliss procedural fairness. The Court (Adamson JA, Stern JA, Basten AJA) dismissing the amended summons: As to issue (i) By Stern JA (Adamson JA and Basten AJA agreeing): (1) Section 43 of the Crimes (Sentencing Procedure) Act did not confer the power to re-open Mr Corliss' sentencing proceedings on account of the fact that the sentencing judge had regard to the form 1 offence notwithstanding the failure of the prosecutor to comply with s 35A(2) of the Crimes (Sentencing Procedure) Act. Despite that error, the sentence imposed upon Mr Corliss, being the relevant "penalty" for the purposes of s 43, was not itself contrary to law within the meaning of s 43: [1], [34], [72]. Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10, applied. (2) In this case, the question whether the error relied upon by Mr Corliss is jurisdictional coincides precisely with the question of whether that error leads to the penalty being "contrary to law". The terms of s 35A, construed in the context of the Crimes (Sentencing Procedure) Act as a whole, does not evince a legislative intention to invalidate a sentence imposed in breach of s 35A of the Act: [4], [35], [36], [72]. Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 97 ALJR 107, applied. By Basten AJA (giving additional reasons): (3) Judge Herbert had no jurisdiction to entertain a motion to reopen the sentencing orders which had been the subject of an appeal to the Court of Criminal Appeal. There is no second right of appeal, nor may an application be made to reopen the original appeal, even where it was suggested that material facts had become known after the appeal had been disposed of. There is no reason to suppose that the principle of finality does not apply with respect to an appeal against sentence: [74], [76], [82], [84]. Grierson v The King (1938) 69 CLR 431; [1938] HCA 45, applied. As to issue (ii) By Stern JA (Adamson JA and Basten AJA agreeing): (4) The reasons adequately conveyed the essential ground upon which the decision rested. There was no failure to give reasons sufficient to constitute an error of law: [1], [47], [84]. (5) Where, as here, there was no statutory duty upon the Court to give reasons as a condition of the exercise of the power, even if there had been a failure to give adequate reasons that would not have constituted jurisdictional error: [1]; [48]; [84]. Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209, applied. As to issue (iii) By Stern JA (Adamson JA and Basten AJA agreeing): (6) It is unnecessary to decide whether there was any denial of procedural fairness as no practical injustice was caused to Mr Corliss. Even if there was a denial of procedural fairness, it was not material. Any failure to give Mr Corliss an opportunity to make oral submissions on the motion could not have given rise to a realistic possibility of a different decision having been made: [1], [55], [84].

JUDGMENT

1. ADAMSON JA: I have had the benefit of reading the reasons of Stern JA in draft. I agree with Stern JA's reasons and the orders proposed. I wish to add the following reasons to my agreement with Stern JA.
2. In substance, the fundamental question raised by Patrick Corliss, the applicant, is whether non-compliance by the Director of Public Prosecutions (the DPP) with the requirements in s 35A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) to file a certificate invalidates a sentence which takes into account an offence or offences on a Form 1 pursuant to s 32 of the Act.
3. The evident purpose of the certification requirements is to involve the victim of the offences and the officer in charge of the investigation in the process of charge negotiations by consulting with them. This process may be particularly important where, in the course of charge negotiations, separate charges are relegated to a Form 1 with the consequence that no separate sentence is imposed, or indicated, in respect of them. The only effect on sentencing of charges on a Form 1 is to (potentially) increase the sentence for the offences for which such charges are to be taken into account and is, accordingly, limited by the maximum penalty for the offence for which the sentence is imposed: see Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]-[43].
4. When one has regard to the statutory purpose of the certificate, the conclusion is, in my view, compelling that the Act does not evince a legislative intention to invalidate a sentence imposed in breach of s 35A of the Act: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91]-[93] (McHugh, Gummow, Kirby and Hayne JJ). It follows from this conclusion that none of the grounds for review pursuant to s 69 of the Supreme Court Act 1970 (NSW) has been made out.
5. STERN JA: On 12 April 2018 the applicant, Patrick Corliss, was sentenced by Herbert DCJ to an aggregate sentence of 7 years imprisonment with a non-parole period of 4 years and 4 months. Mr Corliss was released on parole on 11 August 2022. Mr Corliss had pleaded guilty in the Local Court to five sexual offences against the same complainant when she was aged 12 or 13 years. One further charge of indecent assault was taken into account on sentence in accordance with the procedure provided by s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (such a charge is described in this judgment as a "form 1 offence"). Mr Corliss was sentenced on the basis of an agreed statement of facts, which he had signed. Mr Corliss appealed unsuccessfully against his sentence to the Court of Criminal Appeal: Corliss v R [2020] NSWCCA 65. He then unsuccessfully sought to have that judgment and orders set aside relying upon r 50C of the Criminal Appeal Rules (as then in force): Corliss v R (No 2) [2020] NSWCCA 180.

The sentencing proceedings

1. Mr Corliss was sentenced to 7 years imprisonment with a non-parole period of 4 years and 4 months. He was eligible for release on parole (and was released on parole) on 11 August 2022. The sentencing judge was asked to, and did, take the form 1 offence into account when sentencing Mr Corliss.

The motion before Herbert DCJ on 15 December 2022

1. The orders sought by Mr Corliss in his notice of motion filed on 21 November 2022 are set out at [6] above. In his affidavit affirmed 21 November 2022, which was filed in support of that motion, Mr Corliss identified as the "Purpose of notice of motion": "15. This notice of motion relates to an application to have the sentence imposed in the District Court by Herbert DCJ on 12 April 2018 re-listed. The brief submission states: 1. As the respondent failed to file a mandatory certificate pursuant to s 35A of the Crimes (Sentencing Procedure) Act 1999, the Form 1 sentence was contrary to law. 2. In consequence, the whole sentence pronounced by her Honour was ultra vires, a nullity. As such the applicant has not been sentenced as the Act envisaged. 16. This application arises as her Honour, Judge Herbert, erred in law by taking into account an offence, and a statement of agreed facts, for which the prosecutor had not filed a certificate with the court as required by s 35A of the Crimes (Sentencing Procedure) Act 1999."
2. Mr Corliss further contended in this affidavit that: "(a) Section 35A of the Crimes (Sentencing Procedure) Act 1999 mandates that a court "must not" take into account offences other than the principal offence, or any statement of agreed facts, that was the subject of charge negotiations unless the prosecutor has filed a certificate of verification with the section. (b) Legal authority makes it clear that one of the fundamental duties of judicial officers is to comply with legislation. Moreover, there is an obligation of judicial officers to properly apply relevant legislation. Failure to comply with a legislative instrument is an error of law. (b) As the respondent failed to file a mandatory s.35A certificate pursuant, the learned District Court Judge Herbert did not have the power to take into account the offence, and the statement of agreed facts, when sentencing the applicant. (c) The sentencing judge, Herbert DCJ, took into account an offence, known as Sequence 2, and a statement of agreed facts, both of which were subject to charge negotiations as described. In so doing, the sentencing judge failed to comply with a mandatory legislative requirement. (d) As a result, her Honour, the sentencing judge, was not lawfully empowered to commence sentencing proceedings without the mandatory s 35A certificate in hand. (e) In consequence, the whole sentence pronounced by her Honour was contrary to law, ultra vires, a nullity. As such the applicant has not been sentenced as the Act envisaged."

The hearing before Herbert DCJ on 15 December 2022

1. The hearing before Herbert DCJ on 15 December 2022 was short. The transcript, set out in full below, clearly discloses why Herbert DCJ dismissed Mr Corliss' motion: "HER HONOUR: Mr Corliss, you seek to move on your notice of motion in this matter. OFFENDER: Yes, your Honour. CROWN PROSECUTOR: The Crown's position is that the Court has no jurisdiction under s 43 to reopen the proceedings. That is the Crown's overall position. I can go into more detail if your Honour required it. HER HONOUR: No. Mr Corliss, you have sought for the Court to reopen the proceedings pursuant to s 43 of the Crimes (Sentencing Procedure) Act. This matter has already been the subject of an appeal to the Court of Criminal Appeal and a determination in relation to the sentence imposed. The section that you are seeking to rely upon, would not allow this Court to take the action that you're seeking the Court to take. I am not able to quash your sentence and to effectively have the matter recommence on the basis of the errors that you say have been demonstrated in this matter. I do not pass any view as to whether or not there have been any errors, but on the basis of the errors alleged, s 43 would not allow this Court to make the orders that you have sought in your notice of motion. I refuse to make the orders on the basis that the Court has no jurisdiction to do so. OFFENDER: If your Honour pleases, the Court may reopen the proceedings if there is an error of law. Are you suggesting that there is not an error of law or that the Court under the section where it says may reopen is deciding not to reopen because it's been before - HER HONOUR: I have given my judgment, Mr Corliss. This matter is dismissed."

Relevant legislation

1. Section 35A of the Crimes (Sentencing Procedure) Act provides that: 35A Consultation with victim and police in relation to charge negotiations (1) In this section - charge negotiations means negotiations between the prosecution and an offender with respect to a plea of guilty in relation to an offence other than the principal offence concerned. prosecution guidelines means prosecution guidelines in relation to charge negotiations issued by the Director of Public Prosecutions. requisite consultation means consultation with the victim and the police officer in charge of investigating an offence that complies with the applicable prosecution guidelines. victim has the same meaning as it has in section 26. (2) A court must not take into account offences other than the principal offence, or any statement of agreed facts, that was the subject of charge negotiations unless the prosecutor has filed a certificate with the court verifying that - (a) the requisite consultation has taken place or, if consultation has not taken place, the reasons why it has not occurred, and (b) any statement of agreed facts arising from the negotiations tendered to the court constitutes a fair and accurate account of the objective criminality of the offender having regard to the relevant and provable facts or has otherwise been settled in accordance with the applicable prosecution guidelines. (3) The certificate must be signed by or on behalf of the Director of Public Prosecutions or by a person, or a person belonging to a class of persons, prescribed by the regulations. (4) A certificate is taken to be signed on behalf of the Director of Public Prosecutions if it is signed by a person who is authorised to do so by means of a written order signed by the Director of Public Prosecutions or who belongs to a class of persons so authorised. (5) The court may require the prosecution to explain the reason for a failure to file a certificate when it is required by this section to do so.
2. Section 35A is in Pt 3 Div 3 of the Act, headed "Taking further offences into account". This Division sets out the procedure for taking a form 1 offence into account, and the permissible consequences of doing so.
3. Sections 32-33, also within Div 3, provide that: 32 Prosecutor may file list of additional charges (1) In any proceedings for an offence (the principal offence), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence. (2) A list of additional charges may be filed at any time - (a) after the court finds the offender guilty of the principal offence, and (b) before the court deals with the offender for the principal offence. (3) A copy of the list of additional charges, as filed in the court, is to be given to the offender. (4) A list of additional charges - (a) (Repealed) (b) must be signed by the offender, and (c) must be signed by or on behalf of the Director of Public Prosecutions or by a person, or a person belonging to a class of persons, prescribed by the regulations. (5) A list of additional charges is taken to be signed on behalf of the Director of Public Prosecutions if it is signed by a person who is authorised to do so by means of a written order signed by the Director of Public Prosecutions or who belongs to a class of persons so authorised. (6) A failure to comply with the requirements of this section does not invalidate any sentence imposed by the court for the principal offence. 33 Outstanding charges may be taken into account (1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence. (2) The court may take a further offence into account in dealing with the offender for the principal offence - (a) if the offender - (i) admits guilt to the further offence, and (ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and (b) if, in all of the circumstances, the court considers it appropriate to do so. (3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.

Achurch v the Queen (2014) 253 CLR 141; [2014] HCA 10

1. The leading authority on the proper ambit of s 43 of the Crimes (Sentencing Procedure) Act is Achurch v the Queen (2014) 253 CLR 141; [2014] HCA 10 ("Achurch"). In Achurch at [32], French CJ, Crennan, Kiefel and Bell JJ held: "Section 43 confers upon courts exercising jurisdiction in criminal proceedings a power to reopen those proceedings and to impose a penalty that is in accordance with law. The section only applies to criminal proceedings in which one of two conditions is fulfilled. The condition directly relevant to this appeal is that "a court has … imposed a penalty that is contrary to law". On the ordinary meaning of that collocation, what must be contrary to law is the "penalty". That condition is not satisfied merely by demonstrating that the court has erred in law or fact. Notwithstanding such error, the penalty imposed may not be contrary to law. It may fall within the range of penalties permitted or required by the relevant statutory provisions and may also be consistent with the reasonable exercise of a discretion applicable to the particular offence and offender. Examples of circumstances in which a penalty may be said to be contrary to law include: • A penalty which exceeds the maximum penalty prescribed for the offence. • A penalty which it is beyond the power of the court to impose because some precondition for its imposition is not satisfied - eg the existence of an aggravating factor or the existence of prior convictions for the same kind of offence. A penalty which lies outside the range of penalties that could have been imposed in a reasonable exercise of discretion is not, thereby, contrary to law in the sense required by s 43, not least because reconsideration of such would involve an evaluative exercise which must be dealt with by way of appeal." (footnotes omitted).
2. At [36], their Honours added: "The text of s 43 is clear enough. The relevant power is conditioned upon the penalty being "contrary to law". A construction encompassing error in the imposition of a lawful penalty would allow the power to be applied to any penalty, however appropriate, that is imposed under the influence of an error of law or fact. That construction does not fit with the text. Nor does it accord with the limited purpose of the section. The principle of finality should not be taken to have been qualified except by clear statutory language and only to the extent that the language clearly permits. The construction for which the appellant contended, and which is reflected in some earlier decisions of the Court of Criminal Appeal, can only be supported by attributing to the provision a purpose which, whatever its practical benefits, leaves the boundaries between correction and appeal porous and protected only by the exercise of the sentencing court's discretion. The importance of the distinction between original and appellate jurisdiction in the application of s 43 to courts of first instance militates against such a result. The appellant's construction should not be accepted. A penalty is not "contrary to law" only because it is reached by a process of erroneous reasoning or factual error."

Ground 1: that Herbert DCJ fell into jurisdictional error

1. Mr Corliss' contention on ground 1 is, in essence, that Herbert DCJ had jurisdiction: 1. to consider and determine whether to make an order under s 43 of the Crimes (Sentencing Procedure) Act; and 2. to make the orders he sought, under s 43.
2. Mr Corliss contends that Herbert DCJ erred in finding to the contrary. By reason of that error, he contends, Herbert DCJ did not rule on the merits of his notice of motion filed on 22 November 2022. He submits further that, in any event, her Honour's decision not to make orders under s 43 is tainted by jurisdictional error. In support of his overarching contention as to jurisdictional error, he contends that, contrary to her Honour's decision, Herbert DCJ had jurisdiction under s 43 to make the orders sought on his motion because the sentencing decision was "contrary to law" within the meaning of s 43(1)(a). This was because Herbert DCJ took the form 1 offence into account when sentencing him on 12 April 2018 notwithstanding that the prosecutor had not filed the certificate required under s 35A(2). He contends that: 1. compliance with the requirements of s 35A(2) was a condition of the sentencing court having jurisdiction to take the form 1 offence into account. In this regard, Mr Corliss relies, by analogy, upon the judgment of the majority in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 97 ALJR 107 ("Stanley (HC)") at [88] that a failure by an inferior court to take into account a matter which it is required by statute to consider can involve jurisdictional error; and/or 2. a certificate having been filed, as required by s 35A(2), was a jurisdictional fact, in the sense that it was a matter which had to be established before the court had jurisdiction to take the form 1 offence into account on sentence. As to this Mr Corliss relies upon the judgment of O'Connor J in Baxter v New South Wales Clickers' Association (1909) 10 CLR 114; [1909] HCA 90 in support of the proposition that where the jurisdiction of a court is founded upon and can be exercised solely with respect to a certain subject matter, the existence or non-existence of that subject matter is in every case a jurisdictional fact which the court must determine.
3. In contending that the sentencing judge fell into jurisdictional error, Mr Corliss also relies on the judgment of the High Court in Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 ("Craig") at 176-178, in particular at 177: "Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case."

Ground 2: that Herbert DCJ fell into jurisdictional error on account of a failure to give proper reasons

1. Mr Corliss contends that that Herbert DCJ fell into jurisdictional error by failing to give reasons as to why the District Court lacked jurisdiction, particularly when this "complex area of law is subject to judicial review".
2. As Mr Corliss submits, the obligation upon a court to provide reasons after trials and in important interlocutory decisions is "well established": see eg AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [89] (Heydon J); Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 ("Wainohu") at [54]-[56] (French CJ and Kiefel J). However, as held by French CJ and Kiefel J in Wainohu at [56]: "the content and detail of the reasons to be provided … will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision."
3. As held by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280, what is necessary is that: "the essential ground on which the decision rests should be articulated".
4. A duty to give reasons arises in cases which are not subject to a right of appeal: see eg Wainohu at [57] (French CJ and Kiefel J). In such cases, the duty to give reasons serves the purpose of promoting good decision making, the acceptability of judicial decisions and accountability: AK v Western Australia at [89] citing Gleeson, "Judicial Accountability", The Judicial Review, vol 2 (1995) 117 at 122; cited with approval by French CJ and Kiefel J in Wainohu at [56]. It is also an incident of the "open court principle"; Wainohu at [58].
5. In Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 ("Alexandria Landfill") at [29], Basten JA considered the purpose of the duty to give reasons in a case where an appeal was only available on questions of law: "Where the process of fact finding is unreviewable except to the extent that it reveals an error of law, the reasons required must be sufficient to demonstrate that the legal limits of the process have not been contravened. Having regard to the purpose of giving reasons, the standard is properly identified negatively: it must be shown that the decision has not been reached capriciously or arbitrarily, but rationally. The reasons must thus reveal that all material factors have been identified and addressed, and that no prohibited considerations have been operative. If there is an available process of reasoning from the evidence to the outcome which has been adopted, either expressly or by implication, the appellate court should be slow to reach the conclusion that the function of the trial court has not been exercised according to law."

Ground 3: denial of procedural fairness

1. By ground 3 of the amended summons before the Court Mr Corliss contends that: "By refusing to allow the DPP's representative to elucidate the Crown's position and by interrupting and dismissing the applicant, her Honour Herbert DCJ failed to ensure the Court proceedings were conducted according to the rules of procedural fairness."
2. Mr Corliss' real complaint is that he claims that he was denied an opportunity to deal with a material issue at the hearing before Herbert DCJ on 15 December 2022. In particular, he contends that he was denied the opportunity at the hearing to make oral submissions as to why Herbert DCJ should exercise power under s 43 to set aside his sentence. To the extent that Mr Corliss complains that the Crown was not given an opportunity to make oral submissions, as the Director makes no complaint about this it is not a matter that properly falls to Mr Corliss to raise in an application for review under s 69 of the Supreme Court Act.
3. Mr Corliss submits that Herbert DCJ had an obligation "to pay greater attention to the principles of natural justice" given the fact that he is a self-represented litigant.
4. It is unnecessary to decide whether, in this case, there was any denial of procedural fairness as I am satisfied that no practical injustice was caused to Mr Corliss in any event. In MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [32], the majority (Kiefel CJ, Gageler, Keane and Gleeson JJ) explained: "The principle [of statutory construction] accommodates determination of the limits of decision-making authority conferred by statute to the reality that "[d]ecision-making is a function of the real world" by distinguishing the express and implied statutory conditions of the conferral from the statutory consequences of breach and by recognising that the legislature is not likely to have intended that a breach that occasions no "practical injustice" will deprive a decision of statutory force." (footnotes omitted)
5. Consistent with this, in Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 the High Court held that a failure to afford procedural fairness involves jurisdictional error only where that failure was material to the relevant decision, which requires that the person affected show that the failure deprived them of a realistic possibility of a different outcome. Kiefel CJ, Keane and Gleeson JJ held, at [32]: "The burden falls on the plaintiff to prove "on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition"." (footnotes omitted).

Conclusion

1. In light of my conclusions set out above, the amended summons should be dismissed.
2. In the event of such an outcome, the Director seeks an order that Mr Corliss pay her costs of the application.
3. Mr Corliss, in his submissions in reply (in his affidavit affirmed 14 September 2023) submits that there are four reasons why he should not be ordered to pay the costs of the motion. These are, in essence: 1. That the matter being litigated is essentially criminal in nature; 2. That the matter only arises because the Director acted in bad faith or did not fulfil their obligations to the sentencing judge in not filing the certificate required by s 35A(2), in not informing Judge Hanley SC of the Court's power under s 43 at the hearing on 3 March 2021 and in refusing "to admit their failure [to] comply with the law" for at least 18 months; 3. Mr Corliss is a pensioner with limited assets and his application for fee waiver is pending the outcome of the proceedings; and 4. The application is in the public interest as there is a divergence of opinion as regards the issue before the Court. In this regard Mr Corliss refers to Achurch and Stanley (HC).
4. As to (1), these are unquestionably civil proceedings albeit that the decision under review was made in the exercise of the criminal jurisdiction of the District Court. The jurisdiction as to costs does not depend upon the character of the decision under review, and this is not a factor which, in my judgment, should lead to anything other than an order that costs should follow the event in this case. As to (2) the fact that the "error" complained of by Mr Corliss was a failure of the Director to these proceedings provides the context for this application but does not provide a basis not to order Mr Corliss to pay the costs of the proceedings. The other matters relied upon similarly do not provide such a basis. There was no obligation upon counsel for the Director to inform the Court of s 43 at the hearing on 3 March 2021 as s 43 did not confer a power to make the orders that Mr Corliss was then seeking. There is no evidence before this Court to support a contention that the Director refused to admit that no certificate was filed under s 35A(2) at the time of Mr Corliss' sentencing proceedings.
5. As to (3), Mr Corliss' impecuniosity is not relevant: Sassoon v Rose [2013] NSWCA 220 at [10] (Meagher JA, Gleeson JA agreeing). As to (4), this was not an application which clarified uncertainty in the law. Contrary to Mr Corliss' contention, there is no confusion or uncertainty afflicting the issue of the proper ambit of s 43. In any event, even if there were such confusion or uncertainty, there is no doubt that the error relied upon by Mr Corliss does not enliven the Court's power under s 43.

Endnotes

1. Corliss v R [2020] NSWCCA 65.
2. Corliss v R [2020] NSWCCA 180.
3. (1938) 60 CLR 431; [1938] HCA 45.
4. See now, Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 5.4.
5. Appeal and Review Act, s 79(2).
6. (1979) 53 ALJR 471.
7. (1979) 41 FLR 338 at p 366 (Bowen CJ); [1979] FCA 21. See also Meyers v Casey (1913) 17 CLR 90 at 114-116 (Isaacs J); [1913] HCA 50.
8. (2005) 64 NSWLR 114; [2005] NSWCA 339 at [47].
9. (1981) 147 CLR 471; [1981] HCA 33 ("Marks").
10. Marks at 476 (Mason J).
11. (1942) 64 CLR 470; [1941] HCA 8.
12. KR Handley, Spencer Bower and Handley: Res Judicata (5th ed, LexisNexis, 2019) p 73.
13. Affidavit of Patrick Corliss, 23 December 2022, pars 32, 33.
14. Affidavit at par 34. 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 June 2024