Forrest v Director of Corrective Services & Anor [2001] TASSC 21

Appeal and New Trial - Appeal - Practice and procedure - Tasmania - Appeal Costs Fund - Proceedings in the nature of an appeal - Indemnity certificate not to be granted "in favour of the Crown".

Appeal Costs Fund Act 1968 (Tas), ss2, 19(2).

R v Watling; ex parte Pearson (1998) 7 Tas R 404; Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491; Director-General of Fair Trading v O'Shane (unreported, Supreme Court of New South Wales, 22 August 1997); In R v Quinlan, ex parte Sampson [1884] VicLawRp 71; (1884) 10 VLR (L) 102; Bank voor Handel en Scheepvaart NV v Administrator of Hungarian Property [1954] AC 584, referred to.

Prosecutor/Applicant: Wallace, Wilkinson & Webster

Defendant/Respondent: Director of Public Prosecutions

Judgment Number: [2001] TASSC 21

1 The Director of Corrective Services has applied for two indemnity certificates under the Appeal Costs Fund Act 1968 ("the Act") in unusual circumstances. I will outline the history of the proceedings.

2 On 28 May 1999 Evans J sentenced Shaun Geoffrey Forrest ("the applicant") to 27 months' imprisonment, commencing on 25 May 1999, with nine months of that sentence suspended. The result was that, unless a cumulative sentence of imprisonment was imposed upon the applicant, he would become eligible for parole at the end of the first nine months of his sentence, on 24 August 2000.

3 On 10 September 2000, the applicant appeared before a magistrate (the second respondent to application M297/2000). The applicant pleaded guilty to a charge of possessing stolen property, and was orally sentenced by the learned magistrate to one month's imprisonment, to be served concurrently with the sentence imposed by Evans J. The magistrate's clerk prepared a "Warrant of Commitment for Sentence of Imprisonment" addressed to the gaoler at Her Majesty's Prison, Risdon, in which it was stated that the applicant had been sentenced to serve a term of one month's imprisonment "to start at completion of current sentence". The learned magistrate, apparently without noticing that the warrant was inconsistent with the concurrent sentence that he had imposed orally, signed the warrant, which was sent to the gaoler. The learned magistrate did not sign any formal order or record as to the sentence imposed by him.

4 On 24 August 2000, the applicant was apparently informed that the only impediment to his release on parole was the sentence of imprisonment imposed by the learned magistrate, which the prison authorities believed to be a cumulative sentence. He applied by originating application M263/2000, naming the Attorney-General and the Director of Prisons as respondents, for a writ of habeas corpus and for an order correcting the record of proceedings held at the court of petty sessions. I made an order absolute that morning for the issue of a writ of habeas corpus to the Director of Prisons, returnable at 2.15pm that day. At that time the Director of Prisons made a written return to the writ of habeas corpus pursuant to the Supreme Court Rules 2000, r651, stating that the applicant was detained pursuant to the sentence imposed by the learned magistrate and the warrant of commitment that I have referred to. With the consent of counsel for the Attorney-General and the Director of Prisons, I granted the applicant unconditional bail at that stage pursuant to the Justices Act 1959, s122. I adjourned the proceedings to 6 September 2000 so that the facts could be further investigated. I was told that the learned magistrate was on leave.

5 On 6 September 2000, it was conceded that the sentence imposed by the learned magistrate was a concurrent one, that there was a mistake in the warrant of commitment, and that the applicant was entitled to be at liberty. I ordered by consent that he be discharged from custody and from bail. I also ordered by consent on that day that the originating application and the writ of habeas corpus be amended by changing "Director of Prisons" to read "Director of Corrective Services".

6 On 20 September 2000, the applicant, by his solicitors, filed a second originating application, No M297/2000, naming the Director of Corrective Services and the learned magistrate as respondents, and seeking a writ of certiorari and the quashing the warrant of commitment.

7 On 25 September 2000, both originating applications came before me. By consent I made orders that the decision of the learned magistrate to issue the warrant of commitment be quashed, and that that warrant be quashed. I also ordered that the Director of Corrective Services pay the applicant's taxed costs of and incidental to both originating applications. Mr Turner then applied on behalf of the Director for indemnity certificates pursuant to the Act. Because of certain provisions in the Act that I will refer to, I would have no jurisdiction to grant indemnity certificates unless the proceedings were "in the nature of an appeal" and the grant of an indemnity certificate to the Director would not constitute the grant of one "in favour of the Crown".

8 Under the Act, s8(1)(a)(i), where an appeal to this Court from a decision of some other court succeeds, this Court may grant to the respondent to the appeal an indemnity certificate in respect of the appeal. The following definition appears in the Act, s2:

"'appeal' includes a motion to review, a case stated for the opinion or determination of a superior court on a question of law, a question of law reserved in the form of a special case for the opinion of a superior court, a motion for a new trial, and any other proceeding in the nature of an appeal".

9 Mr Turner submitted that the applicant's applications for habeas corpus and certiorari were proceedings in the nature of appeals for the purposes of that definition. There is no doubt that proceedings for prerogative writs in respect of the decisions of courts and quasi-judicial bodies are proceedings in the nature of an appeal. Wright J so held in R v Watling; ex parte Pearson (1998) 7 Tas R 404, which concerned proceedings for certiorari and mandamus in respect of a decision of the Tasmanian Industrial Commission. However, these proceedings did not seek to impeach the sentencing decision made by the learned magistrate in court at the conclusion of the adjudicative process, but the warrant for the commitment of the applicant to prison, which was no more than a message to the gaoler. There is no legislative basis for such a warrant, but the document appears to be a standard form, and I infer that such warrants are signed by magistrates as a matter of convention whenever defendants are sentenced to terms of imprisonment that are not wholly suspended. It is therefore necessary to consider whether R v Watling; ex parte Pearson (supra) should be distinguished on the basis that what was under challenge in these proceedings was the signing and creation of an administrative form after the conclusion of the sentencing process, rather than a sentencing decision made by a court.

10 The Act is beneficial legislation, and its provisions therefore ought ordinarily be given interpretations favourable to the class of persons intended to be benefited thereby, namely litigants. See Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491, a case which concerned the equivalent New South Wales statute, the Suitors' Fund Act 1951 (NSW). In Director-General of Fair Trading v O'Shane (unreported, Graham AJ, Supreme Court of New South Wales, 22 August 1997, 10578/96), a magistrate had adjourned some charges for later hearing, but by mistake marked the papers "withdrawn" and "dismissed". The informants applied to the Supreme Court of New South Wales by summons seeking an order that the magistrate correct her errors, a declaration that she was not functus officio, and alternatively an order that her errors be corrected and the matters remitted to her for hearing according to law. It was held that those proceedings were in the nature of an appeal for the purposes of the Suitors' Fund Act since they had been instituted for the purpose of correcting an error which had been made in the court below. In R v Quinlan, ex parte Sampson [1884] VicLawRp 71; (1884) 10 VLR (L) 102, a judge of the Court of Mines made an order for costs, omitted to tax the costs at the hearing as required by a legislative provision, and subsequently settled a formal decree which fixed the costs at a certain sum. Higinbotham J held that the Mining Statute 1865 (Vic), s244, which took away the remedy of certiorari and substituted a remedy by way of appeal, was applicable since the judge settled the decree, just as a judge of the Supreme Court of Victoria was able to settle a formal order if required to do so by a litigant. In the light of those authorities concerning post-hearing paperwork, and because of the beneficial nature of the legislation, I conclude that each of these proceedings was in the nature of an appeal, and thus constituted an appeal for the purposes of the Act.

11 The Act, s19(2) reads as follows:

"(2) An indemnity certificate shall not be granted in favour of the Crown."

12 Thus I cannot grant an indemnity certificate to the Director of Corrective Services if doing so would amount to granting the certificate in favour of the Crown within the meaning of the subsection. The Director is appointed by the Governor pursuant to the Corrections Act 1997, s5(1), and is required thereby to be a person employed under the Tasmanian State Service Act 1984, and to hold office in conjunction with another position or office under that Act. Under s6(1), the Director is responsible to the Secretary (ie, the secretary of the department administering the Act) for the care and direction of all prisons, prisoners and detainees and the control of all prisons, and for the order and control of all prisoners and detainees. The Director has various powers, functions and duties vested in, and conferred or imposed upon him by various statutes, particularly the Corrections Act, the Criminal Justice (Mental Impairment) Act 1999, and the Mental Health Act 1996. Despite having certain discretionary statutory powers, the Director is an agent of the Crown. As a Crown employee in the Tasmanian State Service, he is bound to comply with such instructions as he may receive from the relevant Minister and Secretary. The corrective services system over which he presides is funded from consolidated revenue. The granting of the indemnity certificates sought would not benefit anyone other than the Crown in right of the State.

13 Statutory provisions disadvantaging the Crown are somewhat rare, but there is a considerable body of case law as to what persons and entities do or do not constitute the Crown so as to gain the benefit of the Crown's immunity from being bound by statute. In the absence of any statutory provision to the contrary, the Director would no doubt be entitled to the shield of the Crown, given that he fulfils a governmental function, is generally speaking susceptible to government control of his activities, has no financial autonomy, has no assets vested in him, can have his staff appointed and removed by his superiors, and is not a corporation sole. See, for example, Bank voor Handel en Scheepvaart NV v Administrator of Hungarian Property [1954] AC 584 at 616 - 617; Metropolitan Meat Industry Board v Sheedy [1927] AC 899 at 905; Superannuation Fund Investment Trust v Commissioner of Stamps (SA) [1979] HCA 34; (1979) 145 CLR 330 at 348, 354; Skinner v Commissioner for Railways (1937) 37 SR(NSW) 261 at 269 - 270; Grain Elevators Board (Vic) v Dunmunkle Corporation [1946] HCA 13; (1946) 73 CLR 70 at 76; Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) [1955] HCA 72; (1955) 93 CLR 376 at 391; Launceston Corporation v Hydro-Electric Commission [1959] HCA 12; (1959) 100 CLR 654.

14 The Appeal Costs Fund was established by the Act, s3(1). The bulk of the moneys paid into the Fund comes from fees payable on the issue of writs in this Court and the institution of proceedings in the Civil Division of the Magistrates Court (the successor to the courts of requests), and from fees payable to clerks of petty sessions by defendants who are fined in proceedings under the Justices Act 1959. See the Act, s5(1) and (2). As the Act is not expressed to bind the Crown, the Crown pays no such fees on the institution of civil proceedings. When one considers s19(2) against this background, I think it is evident that Parliament intended to establish a system funded by litigants independent of the Crown, for the benefit of litigants independent of the Crown, and not for the benefit of the Crown.

15 As originally enacted in 1968, s19(2) continued with the words, "and no payment shall be made to the Crown out of the Fund". The subsection was amended by omitting those words by the Appeal Costs Fund Act 1978, s9. Prior to that amendment, the wording of the Act produced a problem if a Crown appeal succeeded, an order for costs was made against the respondent, the respondent was granted an indemnity certificate, and the respondent did not have sufficient funds to satisfy the order for costs in favour of the successful appellant. On one view, in that situation, a payment out of the Fund could not be made to the Crown, which otherwise might not recover any money pursuant to the order for costs. A significant effect of the 1978 amendment was to overcome that problem, and to permit payment out of the Fund directly to the Crown in such a situation. There does not seem to have been any other rational objective that Parliament might have intended to achieve by the 1978 amendment. If the submissions made by Mr Turner on behalf of the respondent are correct, Parliament must have intended in 1978 to create a situation whereby indemnity certificates could be granted to servants and agents of the Crown, for the benefit of the Crown, with the only restriction being that one could not be granted to the Sovereign herself. That situation would be absurd. I think that, consistently with the original intention that the Fund would operate for the benefit of litigants independent of the Crown at the expense of litigants independent of the Crown, s19(2), as amended, should be interpreted not just as prohibiting the granting of indemnity certificates to the Sovereign, but as prohibiting the granting of indemnity certificates for the benefit of the Crown. The use of the words "in favour of the Crown", rather than "to the Crown" lends some support to my conclusion that a wider interpretation should be preferred.

16 If I am right in my conclusion as to the scope of s19(2), there may be some scope for debate as to the status of a police prosecutor in the light of old authorities to the effect that a constable is an independent peace officer: Enever v R [1906] HCA 3; (1906) 3 CLR 969; Delacauw v Fosbery (1896) 13 WN(NSW) 49; cf Konrad v Police (Vic) [1999] FCA 988; (1999) 91 FCR 95. It is not appropriate that I comment as to that point.

17 If I am wrong in my interpretation of s19(2), and that subsection does not prohibit the granting of indemnity certificates to agents of the Crown, I would still refuse the present application in the light of what I perceive Parliament to have intended when establishing the Fund. As the Crown makes no contributions to the Fund, I would need very strong reasons to grant an indemnity certificate when only the Crown could benefit from it. In this case, the Director was a model litigant, consented to orders whenever consent was appropriate, and was positively helpful in facilitating the obtaining of appropriate relief by the applicant and the minimisation of costs. However, I see no reason why the Crown should not pay, out of one of its many pockets, the costs occasioned by a magistrate's clerk having made a mistake when filling in a form, and by a magistrate not noticing that mistake.

18 The application for indemnity certificates is refused.