Carberry v Australian Capital Territory

[2022] ACTCA 55

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Carberry v Australian Capital Territory

Citation:

[2022] ACTCA 55

Hearing Date:

19 October 2022

DecisionDate:

19 October 2022

Before:

Elkaim J

Decision:

(i)     The application in proceeding filed on 21 September 2022 is dismissed.

(ii)     Each party is to pay its own costs of the application.

Catchwords:

COURT OF APPEAL – APPLICATION – Application for leave to appeal against interlocutory judgment

Legislation Cited:

Human Rights Act 2004 (ACT)

Cases Cited:

Arrow International Australia Ltd v Group Konstrukt Pty Ltd [2012] ACTCA 37; 7 ACTLR 48

Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83; 18 ACTLR 1

Featherstone v Australian Capital Territory [2022] ACTSC 250

Parties:

Keith Ernest Frank Carberry (Applicant)

Australian Capital Territory (Respondent)

Representation:

Counsel

P Tierney (Applicant)

C Ernst (Respondent)

Solicitors

Ken Cush & Associates (Applicant)

ACT Government Solicitor (Respondent)

File Number:

ACTCA 49 of 2022

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:  Kennett J

Date of Decision:          15 September 2022

Case Title:  Featherstone v Australian Capital Territory

Citation: [2022] ACTSC 250

Elkaim J:

1. On 21 September 2022 the applicant filed an application for leave to appeal from an interlocutory judgment.

1. The relevant judgment is that of Kennett J in the matter of Featherstone v Australian Capital Territory [2022] ACTSC 250 (Featherstone).

1. The background is as follows. The plaintiff is in custody at the Alexander Maconochie Centre. He has been there since 11 January 2021. He alleges that his rights, as enunciated in the Human Rights Act 2004 (ACT), have been infringed. He seeks compensation in the form of damages.

1. In order to obtain damages he commenced proceedings against the Australian Capital Territory (ACT) with the filing of a Statement of Claim. An Amended Statement of Claim was filed on 6 May 2022.

1. The ACT filed a Defence to meet the claim. An Amended Defence was filed on 24 May 2022.

1. In order to advance his claim the plaintiff wishes to rely upon a decision of Loukas-Karlsson J in Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83; 18 ACTLR 1 (Davidson). Her Honour made a number of declarations in this matter, but in particular Declaration 2 which states:

Clause 4.3 of the 2019 Operating Procedure is invalid by reason of it being inconsistent with s 45 of the Corrections Management Act 2007.

1. The plaintiff took the view that the above declaration was inconsistent with portions of the Defence that had been filed in his action. Accordingly, he filed an application in proceeding seeking that portions of the defence be struck out on the basis of this inconsistency.

1. This application was heard by Kennett J and is the subject of the decision in Featherstone. His Honour refused to strike out the portions of the Defence that were under attack.

1. Central to the decision in Featherstone was a finding that the declarations made in Davidson did not “have the status of a judgment in rem” and therefore were not “binding regardless of any question of identity of parties or privity”.

1. It is important to note here that the plaintiff in this matter was not a party in Davidson.

1. The plaintiff, concerned that his action for damages would be prejudiced by the decision in Featherstone, filed the application in proceeding seeking leave to appeal. Leave is required because Featherstone is an interlocutory judgment.

1. The application is restricted to the concise question of whether or not the declarations made by Loukas-Karlsson J had the effect of being in rem or, as found by Kennett J, were confined to the litigation in Davidson.

1. The principles relating to the granting of leave are set out in the decision of Refshauge J in Arrow International Australia Ltd v Group Konstrukt Pty Ltd [2012] ACTCA 37; 7 ACTLR 48, at [58]:

58.The principles on which a court will grant leave to appeal have been dealt with by the courts.  The principles, which I set out in Capital Property Projects (ACT) Pty Ltd and Anor v Planning and Land Authority (ACT) (2008) 2 ACTLR 44, may be summarised as follows:

(a)leave will be granted sparingly to avoid delaying and fragmenting the hearing of cases;

(b)a Court will be particularly hesitant to grant leave where the decision is one in respect of practice and procedure or is made in the exercise of a discretion; 

(c)decisions which, though interlocutory, determine substantive rights will more readily be the subject of the grant of leave;

(d)the party seeking leave bears the onus of satisfying the court of the necessary criteria to justify the grant of leave;

(e)the court will ordinarily grant leave where the decision is wrong and prejudice will be suffered by the appellant;

(f)leave may also be granted where the decision is attended with sufficient doubt to warrant its reconsideration or, to put it another way, where the decision is ‘attended with difficulty and [its] correctness is open to dispute’ (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400) and, if it is wrong, significant consequences will be suffered by the applicants; and

(g)it may be a factor favouring the grant of leave that:

(i)     the decision involves a matter of public importance;  or

(ii) the decision may affect the fairness of the trial, a consideration under s 21 of the Human Rights Act 2004 (ACT), though this can also weigh against the decision if the appeal results in unfair delay or fragmentation of the trial.

1. The plaintiff submitted that the status of the declarations made by Loukas-Karlsson J was of primary importance to his action because they would have the ‘carry on’ effect of determining the invalidity of certain actions of corrections officers in the prison. Consequently, it was important to resolve the apparent divergences of opinion between Loukas-Karlsson J and Kennett J.

1. My initial reading of the decision of Kennett J is that it is not “attended with sufficient doubt to warrant its reconsideration”, however I stress this is no more than a preliminary impression. The decision certainly does not rise to the level of demanding reconsideration.

1. I think the most influential factor in this application is whether or not the plaintiff’s action for damages will be adversely affected by the decision in Featherstone. To this end I enquired of counsel for the defendant whether or not the defendant proposed to take any point of issue estoppel arising from Featherstone. After taking instructions counsel told me that no such submission would be made.

1. The effect of this concession is that the plaintiff, in his damages claim, will not be precluded from submitting that the decision in Davidson is to his benefit. The claim may be prolonged to the extent of submissions on this point. However, any detriment in time will be countered by the significant advantage of a judge of this Court having the seemingly opposing decisions ventilated in one argument.

1. This in turn, if necessary, will place a reasoned decision before the Court of Appeal for resolution. I think this is the preferable way for the matter to proceed. It also has the advantage to the plaintiff of his case not being fragmented and being likely to come on for hearing much sooner than if a decision of the Court of Appeal was being waited upon. An appeal is not inevitable.

1. The concession made by the defendant relating to a possible issue estoppel will prevent any unfairness arising against the plaintiff in his damages claim. This will enable the claim to be decided upon the factual dispute between the parties, but without preventing the plaintiff from drawing support from the decision in Davidson.

1. The result is that the application should be dismissed.

1. In relation to costs there is an element of success by both sides. The defendant has resisted the application but this resistance has only succeeded as a product of the concession made by the defendant in respect of issue estoppel. I therefore think that each party should pay its own costs of the application.

1. I make the following orders:

(i)The application in proceeding filed on 21 September 2022 is dismissed.

(ii)Each party is to pay its own costs of the application.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date:

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Amendments

1 November 2022        Replace “counted” with “countered”      Paragraph: [17]