Court of Appeal (Qld)|2010-07-27|Before: Fraser, Chesterman and White JJASeparate reasons, for judgment of each member of the Court, each concurring as to the order, made
Fraser, Chesterman and White JJASeparate reasons, for judgment of each member of the Court, each concurring as to the order, made
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER
JUDICIAL REVIEW LEGISLATION – DECLARATIONS –
where applicant was
subject to a supervision order under the Dangerous Prisoners (Sexual
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDERJUDICIAL REVIEW LEGISLATION – DECLARATIONS –where applicant wassubject to a supervision order under the Dangerous Prisoners (SexualOffenders) Act 2003 (Qld) (the Act) – where corrective services sentsix letters to applicant advising of his failure to abide by certain termsofthe order and warning him future failures may result in Supreme Courtproceedings – where four letters were headed “formalcensure”and two headed “notice of contravention of supervision order”– where applicant sought a statutoryorder of review of the“decisions” evidenced in the letters – where applicant was outof time and trial judge refusedto extend time – whether the letters gaverise to a legal controversy or affected the applicant’s rights –whetherthe writing of the letters was within the respondents’ powersunder the Act – whether the applicant was entitled to declarations
that
the letters were unlawful or infringed some right of the applicant
s 8(2)(b)(i), s 13, s 15, s 16, s 20, s 21, s 22, s 43BJudicial
Review Act 1991 (Qld), s 4, s 26(2), s 43
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
[1992]
HCA 10, distinguishedAnthony Hordern & Sons Ltd v Amalgamated
Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
[1932] HCA 9,
citedBass v Permanent Trustee Co Ltd (1999) 198 CLR 334
[1999] HCA
9, appliedGouriet v Union of Post Office Workers [1978] AC 435
[1977] UKHL 5, citedGuaranty Trust Company of New York v
Hannay & Company [1915] 2 KB 536, cited
Judgment (99 paragraphs)
[1]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION - DECLARATIONS - where applicant was subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act2003 (Qld) (the Act) - where corrective services sent six letters to applicant advising of his failure to abide by certain terms of the order and warning him future failures may result in Supreme Court proceedings - where four letters were headed "formal censure" and two headed "notice of contravention of supervision order" - where applicant sought a statutory order of review of the "decisions" evidenced in the letters - where applicant was out of time and trial judge refused to extend time - whether the letters gave rise to a legal controversy or affected the applicant's rights - whether the writing of the letters was within the respondents' powers under the Act - whether the applicant was entitled to declarations that the letters were unlawful or infringed some right of the applicant
GuarantyTrust Company of New York v Hannay & Company[1915] 2 KB 536, cited
[9]
**[1] FRASER JA: I have had the advantage of reading the reasons for judgment of Chesterman JA. I agree with those reasons and with the order proposed by his Honour.
[10]
[2] CHESTERMAN JA: On 28 March 2008 Martin J made an interim supervision order pursuant to s 8(2)(b)(i) of the Dangerous Prisoners (Sexual Offenders) Act 2003 ("the Act") subjecting the applicant to the requirements of a supervision order. Relevantly his Honour ordered that the applicant, when released from custody, be supervised until an application for a Div 3 order under the Act be finally determined. Some of the requirements were:**
[11]
1. He be under the supervision of an authorised corrective services officer for the duration of the order;
[12]
14. He comply with every reasonable direction of an authorised corrective services officer.
[13]
**[3] The applicant was released from custody on 5 May 2008 having served six years' imprisonment for a number of sexual offences, mostly against children.
[14]
[4] On 21 August 2008 Daubney J declared himself satisfied that the applicant was a serious danger to the community in the absence of an order pursuant to Div 3 of the Act. His Honour then made a supervision order in terms which inter alia required the applicant, for a period of 20 years, to:**
[15]
1. Be under the supervision of an authorised corrective services officer;
[16]
14. Comply with every reasonable direction of an authorised corrective services officer.
[17]
**[5] Section 13 of the Act is the only section within Div 3. It provides that if the court were satisfied, as his Honour was, that the applicant was a serious danger to the community in the absence of an order under the section, it was obliged to order that the applicant be detained in custody for an indefinite term for control, care or treatment; or that he be released subject to appropriate requirements set out in the supervision order.
[18]
[6] Section 15 of the Act provides that a supervision order has effect in accordance with its terms for the duration specified in the order.
[19]
[7] Section 16 obliges the judge making a supervision order to include as some of its requirements that the person subject to the order:**
[20]
(d) be under the supervision of a corrective services officer;
[21]
(da) comply with a curfew direction or monitoring direction;
[22]
(db) comply with every reasonable direction of a corrective services officer.
[23]
**[8] A curfew direction is (s 16A(2)(a)) a direction given by a corrective services officer to a released prisoner to remain at a stated place for stated periods.
[24]
[9] Division 5 of the Act deals with contraventions of a supervision order. Section 20 applies if a corrective services officer reasonably suspects a released prisoner is likely to contravene, is contravening, or has contravened a requirement of the supervision order. The officer may apply to a Magistrate for a warrant directing police officers to apprehend the prisoner and bring him before the Supreme Court. By s 21, when the prisoner is brought before the Supreme Court, the court must order that the prisoner be detained in custody until a final decision is made under s 22, or that he be released: "only if the prisoner satisfies the court ... that his ... detention in custody pending the final decision is not justified because exceptional circumstances exist."
[25]
[10] By Section 22 if the court is satisfied that the prisoner is likely to, has contravened or is contravening a term of the supervision order it must rescind the order and make a continuing detention order unless the prisoner satisfies the court that the community can be adequately protected by continuing the supervision order, with or without further requirements.
[26]
[11] The last section to notice is s 43B which provides that a person subject to a supervision order who, without reasonable excuse, contravenes one of its requirements commits an offence punishable by up to two years' imprisonment. The offence may be prosecuted summarily under the Justices Act 1886.
[27]
[12] The applicant seems to have had some difficulty settling into the constraints of the supervision order on his discharge from prison. On 21 July 2008 Ms O'Beirne, a District Manager of Queensland Corrective Services, wrote three letters to the applicant. Each was headed "FORMAL CENSURE", referred to the supervision order made by Martin J on 20 (sic) May 2008, and summarised the offences which had led to the making of the order.
[28]
[13] The first letter of 21 July 2008 referred to conditions 5 and 14 of the order and repeated their terms. It went on:**
[29]
"It is noted that on 11 July 2008, you deviated from your approved travel direction without reasonable excuse.
[30]
A decision on contravention has been made and it was decided not to proceed with formal contravention action at this time, but to issue you with a formal warning. A copy of this formal warning will be held on your file.
[31]
This is a warning. Any further failure to abide by the conditions of your order without reasonable excuse may result in the Supervision Order being returned to the Supreme Court for contravention action."
[32]
[14] The second letter of 21 July 2008 referred only to condition 14 of the supervision order, that the applicant "comply with every reasonable direction of a corrective services officer", and went on:
[33]
"It is noted on 17 July 2008, you displayed ongoing inappropriate and aggressive behaviours (sic) towards your supervising officer during the scheduled report.
[34]
A decision on contravention has been made and it was decided not to proceed with formal contravention action at this time, but to issue you with a formal warning. A copy of this formal warning will be held on your file.
[35]
This is a warning. Any further failure to abide by the conditions of your order without reasonable excuse may result in the Supervision Order being returned to the Supreme Court for contravention action."
[36]
[15] The third letter of 21 July 2008 referred to conditions 5 and 14 of the order and then said:
[37]
"It is noted that on 23 July 2008, you deviated from your approved travel direction without reasonable excuse."
[38]
**The letter concluded in identical terms to the others.
[39]
[16] On 25 July Ms O'Beirne wrote to the applicant for a fourth time in similar terms. On this occasion Ms O'Beirne:**
[40]
"noted that on 23 July 2008, you deviated from your approved travel direction without reasonable excuse."
[41]
[17] On 15 September 2008 Mr Wildin who had apparently replaced Ms O'Beirne as District Manager wrote to the applicant. His letter was headed "NOTICE OF CONTRAVENTION OF SUPERVISION ORDER". It also referred to the supervision order made by Martin J though it had expired on 21 August when Daubney J made the final decision under s 13 of the Act. The letter said:**
[42]
"It is noted that on 12 September 2008, you failed to return to your approved residence by 3pm, thus breaching your curfew requirements.
[43]
Your contravention is noted and has been recorded on file. Failure to abide to (sic) the conditions of your order without reasonable excuse may result in your supervision order being returned to the Supreme Court for contravention action."
[44]
[18] On 24 September 2008 Ms York wrote to the applicant. Her letter, too, was headed "NOTICE OF CONTRAVENTION OF SUPERVISION ORDER" and referred to the order of 20 (sic) May 2008 despite its expiration in August. She too referred to condition 5 of the order and wrote:
[45]
"It is noted that on 23 September 2008, you left your approved residence prior to the approved time without reasonable excuse."
[46]
**That letter concluded in the same terms as Mr Wildin's.
[47]
[19] On 20 May 2009 the applicant commenced proceedings seeking a statutory order of review with respect to what was described as the "decisions" made by, or evidenced in, the six letters which were categorised as four "Formal Censures" and two "Notices of Contravention of Supervision Order". Each was said to "purport to find" that the applicant had committed, on the various dates, a contravention of the supervision order. The applicant sought orders setting aside each of the "decisions" and a declaration that the respondents had no power to make them.
[48]
[20] It should perhaps be noted that the application regarded the four letters written in July 2008 as deciding there had been contraventions of the interim order made by Martin J in March 2008, and the letters of September as deciding there had been contraventions of the order made by Daubney J in August. In fact the September letters also took as their reference the interim order made in March. The explanation is no doubt that Mr Wildin and Ms York failed to appreciate that Daubney J's order had superseded the interim one. No mention of this was made in the course of the hearing and nothing turns on it. Had the September communications in fact amounted to some adjudication or affected rights the fact that they were made by reference to an order that had ceased to have effect might have affected their validity. As I hope to demonstrate that is not the case.
[49]
[21] Section 26(2) of the Judicial Review Act 1991 ("JR Act") requires an application for a statutory order for review to be made within 28 days of the decision complained about. The applicant was months out of time and necessarily sought an extension. On 4 December 2009 Ann Lyons J refused to extend time. Her Honour concluded that the application for review could not succeed because there had been no "decision ... made ... under an enactment", as defined by s 4 of the JR Act, so that Div 3 of that Act had no application. Her Honour said:**
[50]
"[36] The six letters have common features and all contain the following:
[51]
(i) the letters commence by informing the applicant of the content of two conditions of his supervision order, namely conditions (5) and (14), which require him to comply with reasonable directions of a CSO and with curfew directions.
[52]
(ii) The letters then give notice to the applicant that there has been a failure to comply with a direction of a CSO.
[53]
(iii) The nature of the direction is set out, ie a travel direction, a curfew direction or behaviour.
[54]
(v) The letters all indicate contravention action for a breach of a supervision order has not been taken.
[55]
(vi) All the letters indicate that the letter is a warning(.)
[56]
(vii) All the letters clearly indicate that contravention action for breach of a supervision order may be taken if there is failure to abide by conditions of an order without reasonable excuse.
[57]
(viii) The letters indicate that contravention action occurs in the Supreme Court.
[58]
[37] It is also clear that none of the letters in any way involve a consideration as to the reasonableness of the direction as required by s 16 (db). None of the letters embark upon a consideration by the officer as to whether he has a "reasonable suspicion" that there had been a "contravention of a requirement of the supervision order(") which is the necessary basis for the application to a magistrate for the issuing of a warrant. The main focus of all of the letters is the need for the applicant to comply with directions of a CSO and the fact that the applicant has not done so on a specific occasion. Construed objectively I consider that all the letters have the elements of a formal notice of a breach of a direction together with a warning as to the possible consequences of such a breach.
[59]
[38] The application identifies the decisions conveyed by the six letters, as either a formal censure or a notice of contravention of a supervision order, in each case accompanied by a finding of a contravention of an interim supervision order or a supervision order.
[60]
[39] The DPSOA makes no provision for a formal censure or a notice of contravention of a supervision order. In writing a letter conveying such a censure or giving a notice of a contravention or in otherwise administering a censure or giving such a notice, a CSO is not making a decision under an enactment. The question as to whether a decision is made under the Act, involves two criteria. The first is that the decision must be expressly or impliedly required or authorised by the enactment and second, the decision must itself "confer, alter or otherwise affect legal rights or obligations, and in that sense must derive from the enactment. A decision will only be 'made ... under an enactment' if both criteria are met". It is doubtful that a censure or a notice of a contravention satisfies the first requirement. However, it seems to me to be clear that neither a censure nor a notice of contravention satisfies the second requirement. Neither will affect any legal right or obligation; much less will either depend on a statute for doing so." (footnote omitted)
[61]
[22] Sensing this difficulty the applicant sought to reply upon UCPR 569 which allows the court, on an application for judicial review, to give relief pursuant to s 43 of the JR Act if an entitlement to relief is made out but not with respect to a decision under an enactment. The applicant sought declarations that the respondents "had no power to make the ... decisions", presumably those to be found in the terms of the six letters. Her Honour declined to make the order, saying:
[62]
"[56] This basis for relief was raised late in the applicant's argument and I do not consider, given my analysis of the nature of the decisions being made, that the circumstances here would give rise to the declaratory relief sought. As I have indicated, the decisions were more in the nature of warnings, they were not final and determinative and they did not impose a penalty or affect legal rights. I do not consider that the applicant has established a basis for the granting of declaratory relief. As the High Court indicated in Ainsworth, declaratory relief should be directed to the determination of legal controversies."
[63]
**[23] The applicant appealed against the rejection of his application for an extension of time and initially sought to argue that he was entitled to relief under both Part 3 and Part 5 of the JR Act. The former claim was, however, abandoned when the appeal was called on. The appeal is thus limited to the question whether time should have been extended because the applicant demonstrated an entitlement to declarations that each "FORMAL CENSURE" and "NOTICE OF CONTRAVENTION" was in some way unlawful, or infringed some right in the applicant.
[64]
[24] It may be accepted that the court's powers to grant declaratory relief allows it "to make declarations about any sort of legal relationship, whether or not a cause of action in the traditional sense exists", The Declaratory Judgment by Zamir & Woolf para 2.24 citing Guaranty Trust Co of New York v Hannay and Co [1915] 2 KB 536, and that the "remarkable growth in the scope of the declaratory jurisdiction ... is now so extensive that it can best be defined in negative terms ..."; The Declaratory Judgment at 3.001. Nevertheless there are limits. Lord Diplock in Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435 explained (501):**
[65]
"The power to grant a declaration is discretionary; it is a useful power and over the course of the last hundred years it has become more and more extensively used ... . Nothing that I have to say is intended to discourage the exercise of judicial discretion in favour of making declarations of right in cases where the jurisdiction to do so exists. But that there are limits to the jurisdiction is inherent in the nature of the relief: a declaration of rights."
[66]
[25] In Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 Mason CJ, Dawson, Toohey and Gaudron JJ said (581-2):
[67]
"It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which '[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.' However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies ... ". (footnote omitted)
[68]
**This is the passage the primary judge had in mind.
[69]
[26] In Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ amplified the point. Their Honours said (355-6):**
[70]
"The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd, Kitto J said:
[71]
'[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons ... [T]he process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which ... entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations for the application of law to facts has shown to exist.'" (footnote omitted)
[72]
[27] Their Honours then quoted with approval what Professor Borchard had written in his "pioneering work", Declaratory Judgments:
[73]
"A judgment of a court is an affirmation, by the authorized societal agent of the state ... of the legal consequences attending a proved or admitted state of facts. It is a conclusive adjudication that a legal relation does or does not exist. The power to render judgments ... is the power to adjudicate upon contested or adverse legal rights or claims, to interpret the law, and to declare what the law is or has been. It is the final determination of the rights of the parties in an action which distinguishes the judgment from all other public procedural devices to give effect to legal rights."
[74]
"It is true that some have seen the use of the declaratory judgment as little more than the giving of an advisory opinion. However, one crucial difference between an advisory opinion and a declaratory judgment is the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties." (footnote omitted)
[75]
**[28] It may therefore be accepted that the jurisdiction to grant declaratory relief is wide. It may also be accepted that no narrow view should be taken of what constitutes a right which may appropriately be the subject of a declaration. Nevertheless declaratory relief, being a judgment of a court of law, can only be given by way of the judicial determination of a legal controversy, settling the dispute once and for all in such a manner as to give rise to a res judicata, or issue estoppel. The declaration identifies and vindicates legal (or equitable) rights.
[76]
[29] One then turns to the letters to examine their effect to see whether they give rise to a legal controversy, or affect the applicant's rights. What is their effect? The immediate answer is: "none". Those written by Ms O'Beirne were expressly said to be warnings. They conveyed the caution that contraventions by the applicant of the terms of his supervision order may lead to action being taken against him pursuant to s 20 of the Act and/or perhaps s 43B. The letters expressly identified that to be their function. They did not impose any obligation upon the applicant, nor subject him to any restriction, nor deprive him of any right. They did not create, or evidence, any legal controversy between the applicant and Ms O'Beirne.
[77]
[30] The letters written by Mr Wilden and Ms York do not proclaim themselves to be warnings but are otherwise in the same format as the July letters. They conclude by advising the applicant that a "failure to abide to the conditions of (the supervision) order without reasonable excuse may result in (the) ... order being returned to the Supreme Court for contravention action." Given the terms of the earlier letters this can only be understood as a warning to the same effect as that given by Ms O'Beirne.
[78]
[31] The applicant's case was that (i) the six letters each constituted a decision by a corrective services officer that the applicant had contravened the order; and (ii) the decisions were unauthorised. The decisions were said to be unauthorised by reference to the principle identified by the High Court in Anthony Hordern & Sons Limited v The Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1, that when Parliament explicitly gives a power to a court or tribunal by a particular provision which prescribes the mode of its exercise it excludes any other exercise of the same power. In other words s 20 and s 43B of the Act are the only means by which a released prisoner, such as the applicant, may be dealt with for a contravention of a supervision order made pursuant to the Act. A corrective services officer has no such power. The argument developed that the officers had usurped the function of the Supreme Court, or the Magistrates Court, in finding a contravention of the order in each letter.
[79]
[32] The applicant's particular submission was that:**
[80]
"...nothing in the supervision order, nor the ... Act ... empowers a corrective services officer to hear and determine whether a contravention of a supervision order has occurred.
[81]
The role of corrective services officers ... is limited to gathering evidence and deciding whether to bring the matter before the Magistrates or Supreme Court. The (Act) does not contain power for corrective services officers to hear and determine contraventions of supervision orders."
[82]
**[33] The submission may be accepted. It seems plainly right. For it to have any application it must appear that the respondents, by one or more of their communications to the applicant, purported to deal with him for a contravention of the order. The letters plainly did not do that. They were to the contrary effect. Each warned the applicant that future contraventions may lead to action being taken against him in the Supreme Court. The letters were explicit in their intimation that no action was being taken against the applicant notwithstanding the alleged contraventions. The respondents did not do that which it is submitted they cannot do. Indeed the letters show that the respondents fully understood their limited role, as described in the applicant's submission. They did not purport to act against the applicant by reason of his contraventions of the order and expressly said they were not taking the action against him which the Act authorised them to take.
[83]
[34] The point is however that the respondents' "decisions" that there had been contraventions, had no consequence in fact or law for the applicant. They were not binding on the applicant. Had contravention proceedings been commenced he was free to contest the facts and demonstrate to the satisfaction of the court that he did not do what was alleged against him, or had a reasonable excuse for his conduct.
[84]
[35] The writing of the letters was clearly part of the supervision which the orders mandated and without which the applicant could not have been released from prison. It should be noted that the corrective services officers charged with the responsibility of supervising released prisoners have only the powers, express and necessarily implicit, in the order. They are given effect by s 15 of the Act. To emphasise the need for compliance with orders, to point out the consequences of non-compliance and to issue warnings as to the consequences of misbehaviour all fall within the designation of supervision. The writing of the letters was clearly within the powers conferred on the respondents by the terms of the orders and s 15. The respondents did not have to consult the applicant before writing to him.
[85]
[36] The applicant's argument depended upon the correctness of his categorisation of the letters as "decisions". If they did not have that character then it is, I think, obvious they could not be the subject of a declaration. The applicant contended that each of the letters had decided that, in the respect identified, he had contravened the supervision order. The letters are not capable of that construction. They are not "decisions" in any ordinary sense of the word. They did not determine anything nor did they have any practical effect.
[86]
[37] It is true that the factual basis for the issue of the warning was the asserted fact that the applicant had contravened the order. The assertion of fact depends upon each of the respondents having formed the opinion that there had been the contravention. To that extent there was a "decision", or a finding of fact, as to the existence of the contravention. (The finding was probably one of mixed fact and law because the conduct, incivility in dealing with the supervisor, being absent from home and not travelling home directly, were themselves contraventions unless there was no reasonable excuse for the conduct. Whether there was such an excuse called for a value judgment).
[87]
[38] It should also be noted that there was evidence of the conduct the subject of each of the letters. It was observed by the applicant's supervisors and recorded in the official diary they kept of their supervision. It was for the respondents to decide what use to make of that evidence in the discharge of the duty imposed upon them by the supervision order. The letters are but one aspect of that supervision. It is apparent that the respondents thought from the evidence that the applicant was not complying with the order and that steps were necessary to ensure compliance. To draw attention to the conduct that amounted to a contravention, and to the consequences of further contravention, obviously falls within supervision. It was part of the respondents' role notwithstanding that before writing the letters the respondents first concluded that there was conduct which deserved admonition.
[88]
[39] In order to find a right which had been infringed by the letters, and so provide a proper subject matter for a declaration, the applicant's counsel advanced reputation. The argument did not descend to detail or analysis. I confess I did not understand it. The premise appeared to be that the retention of copies of the letters on the applicant's file maintained by Corrective Services might have adverse future consequences, or would constitute imputations, damaging to his reputation, that he had contravened the supervision order. The imputations were not particularised but presumably would characterise the applicant as unreliable, engaging in criminal activity, and perhaps as constituting a danger to children.
[89]
[40] The first concern is based upon nothing but conjecture. One cannot know what relevance the existence of the letters on the file will have for the applicant. It is, however, entirely appropriate that the letters remain on the file. Efficient administration depends upon proper record keeping. The supervision order is to last for 20 years. Those corrective services officers who deal with the applicant in the future must know what has happened in the past. The letters themselves do not appear capable of damaging the applicant. They do not go beyond evidence otherwise contained in the file that there had been contraventions. They record the fact that the contraventions were not thought serious enough to warrant taking action under s 20 and/or s 43B of the Act. They contain evidence that the applicant was warned of the consequences of future contraventions. The retention of the letters on the file is, as I say, entirely consistent with good administration.
[90]
[41] As far as the applicant relies upon damage to his reputation as being a right infringed by the letters it must be remembered that any such defamatory imputation would exist in the context of a file created for the purposes of implementing the supervision order. The file must necessarily contain details of the applicant's numerous convictions for sexual mistreatment of children and the fact that a judge of the Supreme Court declared him to be a serious danger to the community in the absence of a supervision order. Against that incontrovertible reputation the fact that his supervisors alleged he had contravened the order in the respects described does not seem of any significance.
[91]
[42] Assuming, however, the letters were defamatory the applicant had his remedy: an action for damages, which would of course be defeated if the imputations were substantially true or if the publication attracted qualified privilege. If the applicant could overcome those obstacles he could recover such damages as the court, judge or jury, thought appropriate. In that event a declaration that he had been defamed would be unnecessary. In the event that the action failed it is not apparent why administrative law should give the applicant a remedy which the law of defamation did not.
[92]
[43] Ainsworth, to which reference was made without discussion, was a different case. There the Criminal Justice Commission produced a report pursuant to its express statutory powers sharply critical of Mr Ainsworth who was given no opportunity to dispute the things said against him before the report was concluded and tabled in Parliament. There the Commission was conducting an inquiry, for the purposes of reporting to Parliament, which obliged it to afford procedural fairness to those reported on. The respondents here were not exercising any such power. There, there was no prospect of an action for defamation. The report was the subject of absolute privilege. The declaration made in Ainsworth was that in compiling its report the Commission had failed to observe the requirements of procedural fairness. The case is no authority for making a declaration that the applicant had been defamed. There is likewise no basis for a declaration that the respondents should have heard from the applicant before writing the letters.
[93]
[44] The applicant has no legitimate complaint about any of the letters or their contents. It may, however, be worth pointing out that some parts of their expression may have been unnecessarily combatative. I do not intend to criticise the respondents who were charged with the difficult task of closely supervising the applicant. The demands of supervision orders is, no doubt, difficult for released prisoners and supervisors alike. One can well understand that a released prisoner, having served every day of a sentence, would chafe under the restrictions. Such orders are made for the protection of the public and corrective services officers must, as best they can, insist upon strict compliance with them. The orders however did not extend to issuing "notices of contravention" or delivering "formal censures". The applicant may not have reacted with such hostility had those officious titles been omitted. As well, to describe the facts understood by the respondents as amounting to a proved contravention may have overstated things. The power of a soft answer to turn away wrath is not to be underestimated.
[94]
[45] The court cannot make declarations against the writing of letters which a recipient finds irritating, or even aggressive. There is in this case no legal controversy nor question of rights requiring vindication. The letters were warnings the giving of which was within the respondents' supervisory powers. The applicant's case has no substance.
[95]
[46] The primary judge correctly refused to extend time. The appeal should be dismissed with costs.
[96]
[47] WHITE JA: I have read the reason of Chesterman JA and agree with his Honour that the application should be dismissed for those reasons. I would merely add some further observations to those of his Honour in para 44. The language used in the impugned letters was such as to lead the applicant, perhaps not unreasonably, to believe that a decision had already been made that he had contravened his supervision order in the manner set out. The Integrated Offender Management System Contract Summary records that these alleged failures to comply with certain of the conditions had been discussed with the applicant and he was given an opportunity to explain the circumstances.[1] The concluding sentence, for example, in the letter of 15 September 2008, would not readily have conveyed to the applicant that this was not the case. Mr Wildin wrote:**
[97]
"Your contravention is noted and has been recorded on file. Failure to abide to the conditions of your order without reasonable excuse may result in your supervision order being returned to the Supreme Court for contravention action."
[98]
**That letter and the others about which the applicant complains do convey the impression that the relevant corrections officers had made a decision about contravention even though they recognised that it was for the Supreme Court to make an order.
[99]
[48] As Chesterman JA has observed, the applicant may not have been so indignant had the assertions of contravention not been made and had he merely been warned that he was placing himself at risk of an application to the court for a contravention order and the possible consequences.**