Patsalis v State of New South Wales

Judgment 1BASTEN JA : The applicant is presently a prisoner held in Junee Correctional Centre, serving a sentence of imprisonment for murder, having been convicted on 24 September 1999. The application before the Court seeks leave to appeal from a judgment of Schmidt J in the Common Law Division pursuant to which her Honour granted leave to the applicant to commence proceedings under the Felons (Civil Proceedings) Act 1981 (NSW) ("the 1981 Act") in respect of one claim, but declined leave in respect of another: unreported decision of 26 July 2011. 2The claim in respect of which leave to proceed was granted sought relief in the nature of prerogative writs, pursuant to s 69 of the Supreme Court Act 1970 (NSW), with respect to the conditions of his incarceration. The claim with respect to which leave was refused sought relief of a similar nature in respect of the applicant's access to legal documents, which he said he required for the preparation of a petition to the Governor for review of his conviction and sentence, pursuant to s 76 of the Crimes (Appeal and Review) Act 2001 (NSW). In respect of the second claim, her Honour stated at [9]: "As to the orders sought in relation to decisions made as to access given Mr Patsalis to his legal documents, there is binding authority that the proper remedy is for relief to be sought from the judge or court hearing the criminal proceeding in question, and not by way of relief such as that here proposed to be sought from a civil court." 3In support of that conclusion, her Honour cited a lengthy passage from a judgment of this Court in Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 at 320-322. As explained by Moffitt P in Smith , there are two important principles to be borne in mind in respect of a criminal trial; the first was identified at 320: "To ensure that the trial is fair to the accused, it is necessary that he be given a fair and reasonable opportunity to consult with, and instruct, his legal advisors, and to obtain their legal advice in relation to the charges against him. It is to be expected that, when an accused is confined prior to the trial, the authorities responsible for his custody will accord him this opportunity without the need for intervention by the judge or magistrate. If, however, they fail to do so, or if the accused or his legal advisers consider they have so failed, there are ample opportunities for them to seek the intervention of the criminal courts in exercise of the various powers of those courts. If the court intervenes and gives the direction as to what is to occur prior to the trial, there are ample sanctions, if those charged with the custody were minded to disregard or neglect to obey the directions. When the accused is arraigned, he is in charge of the Court, which can directly give orders which will facilitate the preparation of, and conduct of, the defence of the accused, if earlier frustrated." 4The second point made by the President was that a superior court should be loathe to intervene in the course of committal proceedings or criminal trials: at 322D. In respect of the first point, Hutley JA made similar remarks at 326-327. Glass JA agreed with both of their Honours. 5Schmidt J ended her extract from the judgment of Moffitt P with his Honour's comment that it must be "a very exceptional case where the criminal courts are not left to determine questions which arise before them in accordance with their own procedures". Her Honour said that this was not such an exceptional case. 6However, the applicant submitted that Smith's case was far removed from his circumstances. There were in July of this year, and still are, no relevant proceedings pending in any criminal court. There is no alternative forum in which the applicant can pursue his claim for relief. The foreshadowed proceedings cannot be an abuse of process for that reason. 7These submissions are correct. It follows that her Honour was at least arguably in error in refusing leave to proceed. The question is what course this Court should take in respect of the present application. 8The summons, seeking leave to appeal from her Honour's judgment and order, was filed out of time. The explanation given by the applicant (in written submissions) is not entirely clear, but relates to his impecuniosity. The reasons for the delay are not critical; no-one has been prejudiced (except the applicant). The error he has identified would warrant an extension of time, to permit this Court to consider whether it should grant leave to appeal, pursuant to s 6 of the 1981 Act. 9The applicant also sought to have the leave application heard concurrently with the hearing of the proposed appeal, pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 51.14. Before giving such a direction it is appropriate to consider whether the application for leave under the 1981 Act is necessary. 10The primary judge cannot be criticised for dealing with the application on its merits: that which came before her was a notice of motion for leave to proceed under the 1981 Act. Her Honour dealt with the application on the papers, without an appearance by either party. 11Neither the applicant, nor the putative respondent, has any right of appearance on an application for leave under the 1981 Act: see s 7. That constraint was no doubt imposed because "[a]n unrestricted right to appear in person to make an application for such leave would permit the very abuse which s 5 was designed to prevent": Schneidas v Jackson [1982] 2 NSWLR 969 at 972G (Hunt J). A similar concern was expressed by Moffitt P in Smith, at 322C-D. Nevertheless, proceedings on the papers without argument is not a step required by law and its desirability in a particular case should be considered by a judge invited to grant such leave. Concerns about abuse expressed 30 years ago can be dealt with in other ways, particularly, as occurred in relation to this application, by use of videolink facilities. The ready availability of the putative respondent, the State of New South Wales, is also a factor to be taken into account. 12The relevant issue, which was not addressed below, was whether the 1981 Act was engaged in the present circumstances. Section 4 provides: " 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." 13Apart from one case earlier this year, the application of that provision to public law remedies appears not to have been the subject of determination by an appellate court, or indeed any court. The history of the legislation indicates that it was a response to the decision of the High Court in Dugan v Mirror Newspapers Ltd [1978] HCA 54; 142 CLR 583 that the common law principle of attainder, following from a judgment of death or outlawry, continued to operate in Australia. Whether the incapacity extended to other felonies remained uncertain; with the abolition of forfeiture for felony, the right of a convicted person to assert ownership rights in property in civil proceedings appeared to have been restored: see Crimes Act 1900 (NSW), s 465 (now repealed, but see Interpretation Act 1987 (NSW), s 30). The history is set out by Sheller JA in Jol v State of New South Wales (1998) 45 NSWLR 283 at 284-285 (Beazley JA and Sheppard AJA agreeing). At least on one view, the common law civil disability was limited to private law civil actions. If so, it may be arguable that the statutory requirement for leave was intended to be similarly limited. 14For example, it seems unlikely that the 1981 Act was intended to apply to habeas corpus, nor does such an application appear to have been thought necessary by this Court in Kelleher v Corrective Services Commission (NSW) (1987) 8 NSWLR 423. Nor does any requirement for leave under the 1981 Act appear to have arisen in numerous cases in this Court dealing with applications by prisoners for orders in the nature of certiorari: see, eg, Baba v Parole Board (NSW) (1986) 5 NSWLR 338; Johns v Release on Licence Board (1987) 9 NSWLR 103; Rendell v Release on Licence Board (1987) 10 NSWLR 499. Similar examples may be found in reported judgments of single judges of the Court: Anderson, Dunn and Alister v Release on Licence Board [1984] 2 NSWLR 312; Johns v Release on Licence Board (1986) 7 NSWLR 133; Clarke v Minister for Corrective Services (1988) 18 NSWLR 553. 15There are, however, judgments of single judges dealing with applications for leave under the 1981 Act in respect of relief under s 69 of the Supreme Court Act , mainly from prisoners acting in person, where the issue appears not to have been raised: the first application believed to have been brought under the 1981 Act was such a case: see Schneidas v Jackson and see G Zdenkowski "NSW Prisoner Denied Court Access" (1983) 8 Legal Service Bulletin 88. However, in a recent case, a prisoner applying for leave expressly challenged the requirement in respect of judicial review proceedings: Potier v Director-General, Department of Justice [2011] NSWCA 105 at [9]. Handley AJA dismissed the submission stating at [10] : "Nothing in the statutory text or in the background to its enactment restricts the meaning of civil proceedings in the manner suggested. The implication is that proceedings are either civil or criminal, and proceedings which are not criminal are civil." 16His Honour held that, under the common law, the applicant would have been unable to commence judicial review proceedings: at [11]. However, as indicated above, the precise scope of the common law doctrine may be less certain. 17There are also decisions of single judges granting leave in respect of applications made by represented prisoners, but where the need for leave appears to have been conceded: see, eg, Hamzy v Commissioner of Corrective Services [2007] NSWSC 1469 (Bell J); Sleiman v Commissioner, New South Wales Department of Corrective Services [2008] NSWSC 617 (Hall J);. 18This limited survey of the case law suggests that different practices have been adopted (if not considered views held) in relation to the operation of legislation which may impose a significant constraint on the ability of prisoners to enforce rights and immunities, for example, with respect to their liability to remain in custody and the conditions of their custody, in public law proceedings. Whether the 1981 Act requires leave of the court to commence such proceedings is an issue of some public importance which needs to be resolved. There being a reasonable basis for leave to appeal from the judgment of the primary judge, it is desirable that the broader issue be addressed in proceedings in which the issues are exposed and, if possible with the assistance of counsel. 19The following orders and directions are given: (1) Extend time within which to seek leave to appeal from the judgment of Schmidt J, to the extent that it refused leave to proceed under the Felons (Civil Proceedings) Act, until 10 October 2011. (2) Direct that the application for leave to appeal and the appeal be heard together. (3) Direct the Registrar to refer the applicant for assistance, either to the Prisoners Legal Service of the Legal Aid Commission, or for assistance under Uniform Civil Procedure Rules 2005 (NSW), r 7.36(1), with a copy of these reasons. (4) In the event that the applicant does not wish to have legal assistance or is unable to obtain assistance, grant leave to the applicant to appear in person at any further hearing by videolink. (5) Grant leave to the State of New South Wales to appear and be represented on any further hearing, pursuant to s 7(b) of the Felons (Civil Proceedings) Act , if applicable. (6) Stand the matter over to the Registrar's list on 12 December 2011 for further directions as to the filing of submissions and fixing a date for hearing.

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