Potier v Director-General, Department of Justice & Attorney General

REASONS FOR Judgment 1Malcolm Huntley Potier, who is currently serving a long term of imprisonment, has applied by summons, number 2010/336498, to which the Director-General, Department of Justice and Attorney General NSW is the sole respondent for leave to appeal from a decision of the Appeal Panel of the Administrative Decisions Tribunal, and for leave to commence the proceedings under the Felons (Civil Proceedings) Act 1981. His amended summons, number 2010/336562, added a claim for prerogative relief against the Tribunal. The applicant has also sought leave to appear at the hearing of this application pursuant to s 7 of the 1981 Act. 2Following a directions hearing before the President both summonses have been referred to me for determination. I have not heard the parties but have had the benefit of their written submissions. These dealt with the scope of the expression "civil proceedings" in s 4 of the 1981 Act and whether it covers an application to this Court for leave to appeal and judicial review of a decision of the Appeal Panel of the Administrative Decisions Tribunal. The written submissions were filed pursuant to directions given by the President. 3On 15 February 2010 the President of the Administrative Decisions Tribunal, his Honour Judge O'Connor, sitting as the Appeal Panel under s 24A(2) of Administrative Decisions Tribunal Act 1997, dismissed the applicants' application for leave to appeal from interlocutory orders of a Judicial Member of the Tribunal (Tribunal Act s 113(2A). 4The proposed appeal challenged three decisions of Judicial Member S. Montgomery who had determined proceedings by the applicant under the Freedom of Information Act 1989. The first was the Member's refusal to make an order for costs in favour of the applicant as a self represented litigant. The second was his refusal to exercise the power under s 58 of the Freedom of Information Act to report officers of the Department of Corrective Services to the Minister because they had "failed to exercise in good faith" functions conferred or imposed on them under that Act. The third was his refusal to exercise the power under s 131 of the Tribunal Act to report officers of the Department to the Supreme Court for contempt of the Tribunal on one or more of the grounds specified in s 131(1). 5Under s 119(1) of the Tribunal Act an appeal lies on a question of law from a decision of the Appeal Panel, but subs (1A) requires the leave of the Court of Appeal where the decision of the Panel was interlocutory, or dealt with costs. The decision of the President to refuse leave to appeal was clearly interlocutory: Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423. The applicant accepts that he requires leave to appeal and this has been sought in both summonses. 6Sections 3 and 4 of the 1981 Act, as originally enacted, provided: "3. Subject to this Act, a person shall not, by reason of his having been convicted of, or found to have committed, a felony, be incapable of instituting and maintaining any civil proceedings in any court. 4. A person who is in custody as a result of his having been convicted of, or found to have committed, a felony may not institute any civil proceedings in any court except by the leave of that court granted on his application." 7Section 3 was repealed in 1999, and s 4 was amended to substitute "serious indictable offence" for "felony". It now reads: "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." 8Section 7 provides that an applicant for leave under s 4 and the proposed respondent are not entitled to appear in person on the application, except by the leave of the court. I have had the benefit of the written submissions of the applicant on all issues and the benefit of the respondent's on the competency question. Having read the papers in both files I consider that the applicant cannot be of further assistance to the Court and I refuse leave under s 7. 9The applicant's argument in his written submissions is that the meaning of civil proceedings in s 4 is limited to actions for damages and the like, and does not extend to appellate or judicial review proceedings. 10Nothing 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. 11Moreover acceptance of the applicant's argument would put him out of Court. At common law, as confirmed by Dugan v Mirror Newspapers Ltd [1978] HCA 54; (1978) 142 CLR 583, 586 a convicted felon was incapable of suing in the courts: Schneidas v Jackson [1982] 2 NSWLR 969. Section 3 of the 1981 Act abolished the common law rule in respect of "civil proceedings in any Court". If the application was not a civil proceeding within s 3, then between 1981 and 1999 a person in the position of the applicant would have remained bound by the common law rule, and the Court would have no power to grant leave. In my judgment the history of the legislation confirms the natural meaning of civil proceedings. Reasoning based on the Act in its original form is not affected by the repeal of s 3 which did not alter the existing construction of s 4. 12I hold therefore that the application for leave to institute proceedings in this Court under s 4 was competent. 13Section 5 of the 1981 Act provides that the Court shall not grant leave under s 4 "unless it is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings." I must therefore consider whether the applicant's challenge to the President's decision meets this requirement in respect of any of the decisions of the Judicial Member. 14The Tribunal has power under s 88 of the Tribunal Act to award costs in the limited circumstances identified in subs (2), but the general rule is that each party bears his own costs. The Judicial Member was not satisfied that any of the matters in subs (2) had been established and refused to make the order. The President refused leave to appeal from this decision because the costs involved "could only be minimal". 15The Panel's power to grant leave is discretionary and it cannot be said that the amount at stake was irrelevant. The applicant has not established a prima facie ground for concluding that the decision of the President was effected by legal error so that an appeal to this Court would be within its jurisdiction under s 119. 16The decisions of the Judicial Member refusing to exercise his powers under s 58 of the Freedom of Information Act and s 131 of the Tribunal Act were ministerial and not judicial. The right of appeal to the Panel conferred by s 112 is limited to appealable decisions. The decisions were not reviews of reviewable decisions appealable under s 112(1)(b). Nor were they appealable under s 112(1)(a) because the relevant Acts did not "expressly provide that the decision may be appealed to an Appeal Panel". 17In Killen v Lane [1983] 1 NSWLR 171 this Court held that the power of the Supreme Court to direct the Registrar to commence proceedings for criminal contempt was ministerial in nature. Moffitt P said at p179: "The order directing the Registrar to commence proceedings is executive and not judicial in character. It is not subject to the appellate process". 18Earlier, at p 177, he said: "The right of the Court [is] to act on the allegation of some person ... so that the province of any person is to do no more than inform or allege, so as to leave the commencement of proceedings entirely a matter for the Court as a ministerial decision taken of its own motion". 19There is no relevant distinction between the role of an informant and the power of the Court considered in that case, and the role of the applicant and the powers of the Tribunal being considered in this. The applicant has no personal right in either case, and therefore no standing to challenge the decision of the President, or the decisions of the Judicial Member. 20In my judgment therefore there is no prima facie ground for the proposed challenge to the President's decision or the decisions of the Judicial Member. The proposed proceedings to challenge those decisions would be an abuse of process. The application under s 4 of the 1981 Act is therefore refused and both summonses are dismissed.