Abdulrahim v Adult Parole Board

[2023] VSC 101

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2021 02509

SULEIMAN ABDULRAHIM	Plaintiff
v
THE ADULT PAROLE BOARD OF VICTORIA	First Defendant
SECRETARY OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY	Second Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2023
DATE OF JUDGMENT:	7 March 2023
CASE MAY BE CITED AS:	Abdulrahim v Adult Parole Board
MEDIUM NEUTRAL CITATION:	[2023] VSC 101

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PRACTICE AND PROCEDURE – Trial of preliminary question – Whether appropriate – Pure question of law – Application refused – No point of principle – Civil Procedure Act 2010 (Vic) s 49;  Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 47.04 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Petrie	Robinson Gill
For the Defendant	Mr A McBeth	Victorian Government Solicitor

HIS HONOUR:

1. The plaintiff sought the trial of a separate question before the trial of the proceeding pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules2015 (Vic). The question is:

Is the Adult Parole Board of Victoria capable of being sued?

1. For the reasons that follow, I decline to order that there be a preliminary trial of this question.

1. The plaintiff claims damages for false imprisonment against the Adult Parole Board and the Secretary to the Department of Justice and Community Safety. The defendants, who are jointly represented, in a single defence, pleaded that ‘the Parole Board is not a juristic entity and is not capable of being sued’.

1. There is very little by way of factual dispute in the proceeding. Relevantly, the following facts are agreed:

(a)   On 19 July 2018, the plaintiff was sentenced to a total effective sentence of 3 years and 3 months’ imprisonment, with a non-parole period of 2 years, pre-sentence detention of 519 days.

(b)  The plaintiff was deemed to be in the custody of the Secretary at the relevant times.

(c)   On 23 January 2019, the Parole Board ordered that the plaintiff be released on parole with conditions on 5 March 2019.

(d)  On 5 March 2019, the Secretary released the plaintiff from custody on parole pursuant to the parole order dated 23 January 2019.

(e)   On 12 June 2019, the Parole Board cancelled the plaintiff’s parole (cancellation order) and issued a warrant for his arrest (APB warrant), which was executed that same day. The Parole Board’s notes of its decision stated:

The Board has concluded that there is sufficient information linking you as a likely target of recent shootings, including 10/3/19 and 7/6/2019, to require cancellation of your parole having regard to the Board’s paramount consideration of the safety and protection of the community and the absence of a capacity to mitigate the risks to you and other members of the community if you were to remain on parole.

(f)    On 13 June 2019, by reason of the cancellation order and pursuant to the APB warrant, the police arrested the plaintiff who was taken into the custody of the Secretary.

(g)  On 23 July 2019, the plaintiff sought judicial review of the Parole Board’s decision to cancel his parole.

(h)  On 23 August 2019, Coghlan JA found that the Parole Board had acted beyond its powers in cancelling the plaintiff’s parole. The court quashed the cancellation order made on 12 June 2019 and ordered that the plaintiff be released from custody to continue his parole in the community.[1]

[1]Abdulrahim v Adult Parole Board [2019] VSC 570.

(i)     The defendants accepted that on the evidence that was before the Court in that proceeding, the Parole Board did not have a lawful basis to cancel the plaintiff’s parole, and the cancellation order was made ultra vires.

(j)     On 23 August 2019, the Secretary released the plaintiff from custody.

(k)  The plaintiff completed his parole without further incident on 17 May 2020.

1. The preliminary question is exposed by the pleadings in the following way.

1. The plaintiff alleges in paragraph 2 of his statement of claim that the Parole Board:

(a) is and was at all material times an independent statutory body established by s 61 of the Corrections Act 1986 (Vic) (the Act) and is able to be sued;

(b) is liable for the acts and omissions of its Board members pursuant to s 69(4) of the Act.

(c) has powers and functions as conferred by the Act, including, relevantly:

(i)     to order that a prisoner serving a prison sentence be released on parole after the expiry of any fixed non parole period: s 74.

(ii)  where a prisoner is released on parole, to cancel the parole before the end of the parole period: s 77(1), subject to the remaining provisions of s 77.

1. The defendants pleaded in response:

(a) They admit that the Parole Board is an independent statutory body established by s 61 of the Act but otherwise deny the allegations in paragraph 2(a) and say further that:

(iii)             the Parole Board is not a juristic entity and is not capable of being sued; alternatively

(iv) the members of the Parole Board are immune from civil liability by virtue of s 71K(1) of the Act and so the Parole Board cannot be liable, vicariously or otherwise, for the actions of its members.

(b)  They deny the allegation in paragraph 2(b);

(c)   They admit paragraph 2(c).

1. The parties agreed that the principles applicable on this application were settled and conveniently summarised in Vale v Daumeke.[2] Not all of those principles are relevant in the current proceeding.

   [2][2015] VSC 342, [8] (citations omitted). See also Hine v Macquarie Bank Limited [2019] VSC 287, [7]; Taylor v McLachlan [2018] VSC 298, [10]; Jafari v 23 Developments Ltd [2017] VSC 201, [22]. See also a shorter summary of the principles in Murphy v Victoria (2014) 45 VR 119, 126 [28], followed or cited with approval in Maclaren v Australia and New Zealand Banking Group Ltd [2022] VSC 662, [17]; Harding v Sutton [2021] VSC 741, [205]; Vicinity Funds RE Ltd v Commissioner of State Revenue [2021] VSC 200, [10]; Hoh v Ying Mui Pty Ltd [2019] VSCA 203, [393].

(a)The discretion must be exercised with great caution, and only in a clear case;

(b)An order for the determination of a separate question before trial is generally only appropriate where the determination of the question will be likely to end the litigation or substantially narrow the issues in dispute, or where there is a clear demarcation between that issue and the other issues in the case;

…

(f)Care must be taken in utilising the procedure provided for in r 47.04 of the Rules to avoid the determination of issues not ‘ripe’ for separate and preliminary determination—for example, where it is simply one of two or more alternative ways in which an applicant frames its case, and determination of the issue would leave significant other issues unresolved;

…

(h)Whether a question should be determined separately involves a two-stage process – the first stage requires that the questions for determination be identified clearly and with precision, while the second stage is the actual determination of the question―and the two stages should not be run together;

…

(k)Factors that tend to support the making of an order include that the separate determination of the question may:

(x)Contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or

(xi)      Contribute to the settlement of the litigation; and

(l)Factors that tell against the making of an order include that the separate determination of the question may:

(i)Give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial;

(ii)Result in significant overlap between the evidence adduced on the hearing of the separate question and at trial―possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding―which will be of particular significance if the Court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; or

(iii)      Prolong rather than shorten the litigation.

1. Sections 7-9 of the Civil Procedure Act 2010 (Vic) directs that the court seek to give effect to the overarching purpose in civil litigation, being to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute, when interpreting and giving effect to the power under the rule by having regards to the objects specified in s 9(1) and the matters specified in s 9(2) of that Act.

1. The plaintiff submitted that a preliminary determination of the posited question was appropriate since:

(a)   the question posed for the preliminary hearing is a question of pure law. No recourse to facts in the proceeding will be needed for the court to answer the question. No witnesses will need to be called. No evidence should need to be filed.

(b)  there is a clear demarcation between the proposed preliminary and the other issues in the proceeding. The question posed is a discrete legal matter which can be answered without analysis of any other legal issues or the evidence that will be led at trial.

(c)   the preliminary hearing will save time and cost by narrowing the issues for trial.

(d)  answering the question posed will significantly contribute to the likelihood of settlement prior to trial.

(e)   a preliminary hearing will advance the overarching purpose.

(f)    there should be no prejudice to any party in the preliminary hearing, which will not duplicate any part of the trial and should not take more than half a day.

(g)  Although the trial is set down for 15 May 2023, the plaintiff has not been dilatory in seeking the preliminary determination of a separate question.

1. The submission that the preliminary question would narrow the issues was based on the distinctive nature of the claims against each defendant. The plaintiff pursues two different pathways to a judgment. The claim against the Parole Board arises from its active promotion of the detention while the claim against the Secretary arises from her implementation of the detention. The plaintiff cited Lewis v Australian Capital Territory to explain this contention. In Lewis, Gageler J observed:[3]

Both pathways to tortious liability for the wrongful imprisonment of Mr Lewis having been visited on the Territory arrive at the completed tort of wrongful imprisonment by aggregating the conduct of the Board in conducting the inquiry that it did and in making the order that it did with the conduct of the Chief Executive in imprisoning Mr Lewis in full-time detention as the Chief Executive did on the strength of that order. On each pathway, liability for the completed tort of wrongful imprisonment arises from the contribution each actor in fact made to how the wrongful imprisonment in fact occurred. The contribution of the Board was that of active promotion of detention. The contribution of the Chief Executive was that of implementing the detention.

[3](2020) 271 CLR 192, 207 [28].

1. Transposed, these observations might apply to a claim against the State of Victoria, but the plaintiff was successfully discouraged from pursuing the State as a single defendant for reasons that I did not find convincing. Although Gageler J speaks of aggregating the contribution of each tortfeasor, the plaintiff submitted that should he be unsuccessful in maintaining his claim against the Parole Board, one of the alternative ways which the plaintiff pleads his case will fall away, with the likely result being the substantial reduction of the length and complexity of the trial. On the other hand, should he succeed, one of the alternate defences put by the defendants will fall away and the remaining defence will be that the actions of the Parole Board did not cause the plaintiff to be imprisoned without lawful cause or authority.

1. I pause to observe that, to the extent that I was able to follow this submission, I cannot accept it. Determining whether a claim against the Parole Board is justiciable is discrete and will not reduce the time or cost of the trial of the claim against the Secretary because the factual interrelationship between her conduct and that of the Parole Board will remain. I am satisfied that any time saved at trial will be time expended on the trial of the preliminary question. Overall, there would be no saving and separation of the issues into distinct hearings is only likely to increase cost and delay, particularly as it opens the possibility of delay before a reserved judgment is delivered and of an appeal of the ruling.

1. The plaintiff submitted that the application was analogous to, and even stronger than, the application granted in Wadley v Ron Finemore Bulk Haulage Pty Ltd,[4]  and its strength was also demonstrable by reference to the application refused in Schneider v Caesarstone Australia Pty Ltd.[5]

   [4][2013] VSC 5.

   [5][2011] VSC 106.

1. However, that form of argument by analogy with other single instance decisions should not be preferred to the application of the principles to the circumstances of the present proceeding.

1. Although the plaintiff submitted he would likely succeed on the proposed separate question, that is not a central factor for the court to consider in exercising its discretion. Without rehearsing arguments that will be determined on another occasion, I accept that the plaintiff has respectable arguments that the Parole Board is, on the proper construction of the Act, a statutory entity to which liability for tortious conduct may attach.

1. There are many respects in which the circumstances of this proceeding emphasised by the plaintiff correspond with considerations drawn from the authorities that favour the separate preliminary determination of a question. However, the defendant put countervailing considerations that have merit. Taking care to exercise the discretion appropriately and with due regard to the overarching purpose of civil litigation, I consider that the following factors require the conclusion that I have reached.

1. First, the trial of the separate question, no matter what the answer, will not dispose of the proceeding.

1. Secondly, such a hearing cannot make any material difference to the matters of proof at the trial or the matters for submissions on which the court must rule. In this sense, the preliminary question is not determinative of the proceeding or clearly distinguishable in a meaningful way from other issues. The claims against the two defendants do not expose alternative ways for the plaintiff to recover his loss. It is necessary, as Gageler J explained in Lewis, that the contributions of each defendant be aggregated to complete the cause of action alleged. It is a common part of the plaintiff’s claim that he was detained by the Secretary, not the Parole Board. It is also a common part of his case that the unlawfulness of that detention depends on assessment of the conduct of the Parole Board. As the defendant submitted, there is no part of the plaintiff’s case that would not still need to be argued and determined at trial if the separate question were to be determined in the defendants’ favour.

1. Thirdly, there is the real prospect that the preliminary question may cause greater expense and take more time. Trial processes, particularly written submissions, oral argument and the preparation of reasons for a  judgment would be duplicated. As I have already noted the time and expense saved from the trial by the preliminary determination will be matched by the time and expense of the preliminary determination. The expense is likely to be greater than what would be incurred if the preliminary question was part of the issues in the trial.

1. Fourthly, a preliminary determination introduces the possibility of an application for leave to appeal, with attendant delay and costs.

1. Fifthly, the impact on the prospects of settlement of the dispute of the determination of the preliminary question cannot be realistically assessed. The contention has not been tested as the parties are yet to mediate the dispute but no basis was identified for believing that the prospects of a successful mediation have been improved. The Parole Board is not separately represented. There is no basis to assume that any liability of the Parole Board to compensate the plaintiff would be met other than from State funds, like the position of the Secretary. The issue would not affect any assessment of quantum or recovery prospects.

1. Sixthly, it is not relevant to focus on the nature of the preliminary question as one of law and particularly suited to preliminary determination because the trial will focus on and be resolved by determination of questions of law that are not narrowed by resolution of the preliminary question.

1. Finally, the application of ss 8 and 9 of the Civil Procedure Act tells against the use of the preliminary question process in this proceeding contributing to the overarching purpose of civil litigation.