Christensen v Pennington

[2009] QSC 69

SUPREME COURT OF QUEENSLAND

CITATION:	Christensen v Pennington & Anor [2009] QSC 69
PARTIES:	KIM CHRISTENSEN (applicant) v LIDIA PENNINGTON (first respondent) CHIEF EXECUTIVE QUEENSLAND CORRECTIVE SERVICES (second respondent)
FILE NO/S:	1617 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application for review
ORIGINATING  COURT:	Supreme Court at Brisbane
DELIVERED ON:	3 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	1 April 2009
JUDGE:	Martin J
ORDER:	The application for costs is dismissed. I make no other order about costs.
CATCHWORDS:	Corrective Services Act 2006, s 15 Uniform Civil Procedure Rules r 685
COUNSEL:	C.J. Rebetzke for the applicant R.G. Marsh for the respondents
SOLICITORS:	Prisoners’ Legal Service for the applicant Crown Law for the respondents

1. The Corrective Services Act 2006 (“CSA”) requires that the security classification of prisoners be assessed on an annual basis. On 28 October 2008 the applicant, a prisoner at Walston Correctional Centre, was assessed as “high security”.

2. On 29 October 2008 the applicant was provided with a copy of the documents relating to his assessment as “high” security classification. On 10 November 2008 the applicant’s solicitors wrote to the first respondent asserting non-compliance with the requirement to give an “information notice”[1] as that term is used in the CSA. It was conceded on behalf of the respondents at the hearing of this application that, for the purposes of the argument about costs, the document provided to the applicant did not comply with the requirements of the CSA.

   [1] s 15 CSA.

3. On 31 October 2008 the applicant requested the appropriate authority to reconsider the classification decision. On 23 December 2008 his request was upheld and his classification was changed to “low”. After consideration of the correspondence, which was entered into on his behalf, I find that he did not inform his instructing solicitors of his request for review and that those solicitors first became aware of his request and the subsequent reclassification as a result of correspondence from the Crown Solicitor on behalf of the respondents.

4. One of the issues which arose at the hearing of this application was when the applicant was first informed of his reclassification. The respondents relied upon an affidavit of Kymberlee Perks, an Acting Advisor employed in the office of sentence management at the Walston Correctional Centre. She deposed to having spoken to the applicant on 28 January 2009 and advising him of the decision to reduce him to a low classification and to maintain his placement at the Walston Correctional Centre. A note which she entered in the “Integrated Offender Management System” electronic file system was in the following terms:

   “Offender Christensen was today provided with a copy of his SPA, outlining his classo reduction to low and that he remain at Walston CC. He has enquired as to how he gets the statement of reasons that he asked for approximately 10 weeks ago, and is also wondering how he goes about getting “proper” answers for his placement consideration. He advised he will be fighting the placement, however is happy with the classo outcome. Kym Perks – Sentence Management.”

5. The SPA to which Ms Perks referred is the “security placement assessment” which records the outcome of a classification and placement decision. Ms Perks deposed that she would usually request a prisoner to sign and date a copy of the SPA but on this occasion she departed from her usual practice and instead made the file note set out above. Ms Perks was cross-examined about this matter and the tenor of the questioning was to suggest that the note had been created at a later time and she had not, in fact, provided the applicant with either the information or the document about his reclassification until much later. She denied this. The applicant provided an affidavit in which he said that he believed that he did not receive the SPA until on or about 17 February 2009 but that he was given it by Ms Perks. The applicant was not required for cross-examination and, so, his account was unchallenged.

6. I will return to this question later.

7. On or about 27 January 2009 the applicant instructed his solicitors to file the substantive application for prerogative relief. On 13 February 2009 that application was filed.

8. The applicant seeks the following relief:

   “In the inherent jurisdiction of the Court:

   1. A declaration that the document provided to the Applicant following the First Respondent's purported decision of 14 October 2008 to classify the Applicant as high security did not comply with the requirement in section 15(1) of the Corrective Services Act 2006 to provide to the Applicant an ‘information notice’ which included the First Respondent's reasons for the decision.

   2. A declaration that the First Respondent has not complied with the requirements of section 15(1) of the Corrective Services Act 2006.

   3.            A declaration that the First Respondent's purported decision of 14 October 2008 to classify the Applicant as high security:

(a)	was affected by jurisdictional error;
(b)	is unlawful and invalid;
(c)	is of no effect;
(d)	is not a decision at all; and
(e)	did not discharge the duty imposed upon the Second Respondent to review the Applicant's security classification.

AND pursuant to the Judicial Review Act 1991:

4. An order in the nature of mandamus requiring the Second Respondent to perform the statutory duty imposed upon the Second Respondent by section 13 (1)(b) of the Corrective Services Act 2006 to review the Applicant's security classification according to law.”

1. Notwithstanding that the applicant, and his instructing solicitors, were aware that the applicant’s classification had been changed, this matter was the subject of an appearance in the applications jurisdiction on 5 March 2009 and was set down for hearing for 1 and 2 April.

2. The applicant has decided not to proceed with the substantive relief. No evidence was given as to the precise date on which that decision was made and conveyed to the respondents. Nevertheless, counsel for the applicant informed me that the application for costs was being made pursuant to r 685 of the Uniform Civil Procedure Rules:

“(1)	If, for any reason, it becomes unnecessary to continue a proceeding other than for deciding who is to pay the costs of the proceeding, any party to the proceeding may apply to the court for an order for the costs.
(2)	The court may make the order the court considers just.”

1. The applicant argued that he should have his costs, on an indemnity basis, because offers had been made to settle the litigation on the basis that he would consent to the application being dismissed if the respondents paid the applicant’s reasonable costs on a standard basis. That offer was made on 9 March 2009. The response by the respondents to that suggestion was that the matter be discontinued by consent with both parties bearing their own costs.

2. The relief sought until recently by the applicant was discretionary. He sought declaratory relief and orders in the nature of mandamus. When dealing with applications for discretionary relief, it is open to the court to consider the conduct of parties leading up to the application and after the application is filed. In this case, the applicant knew that he had sought a review of the initial decision. He did not tell his solicitors of that. Had he done so, then I have no doubt that his solicitors would have made further inquiry before initiating any proceedings in this court. As it was, the decision to reclassify was made some weeks before the application was filed.

3. On the other hand, the respondents have not been without fault. The correspondence from the applicant’s solicitors was answered late and, incredibly, when it was answered, no reference was made to the fact that the author of the letter had decided to reclassify the applicant. Had that simple step been taken, then none of these proceedings would have been commenced or continued. The failure by the applicant to tell his solicitors of his application for review resulted in the commencement of these proceedings. The failure by the respondents to reply to correspondence in a timely fashion and to inform the applicant’s solicitors of the reclassification contributed to the continuation of these proceedings. The debate about when the applicant was first informed of his reclassification is not, in my view, the decisive issue in this case.

4. The applicant argued that the relief sought in the application would, had he wished to continue, been available to him. I disagree. No detriment could be established by the admitted failure of the respondents to provide an appropriate information notice. There is a policy of the relevant authority relating to the period of time a prisoner must serve as a low security classification before being eligible for parole consideration. These events have not endangered the applicant so far as that is concerned. He will have held his low security classification for the appropriate period before he first becomes entitled to seek parole.

5. This is a case where failures of communication between party and solicitor and between parties has resulted in unnecessary expenditure by both sides. An award of costs is to compensate a party for the reasonable costs expended in bringing and pursuing an action. Costs are not awarded on the basis of punishing a party for conduct. It is not appropriate for costs to be awarded when parties, through their own fault, have pursued actions which were unnecessary. Likewise, it is not appropriate to award costs where a respondent could have, but did not, communicate in such a way that the action would either have not commenced or have been quickly truncated. The circumstances of this case are such that neither party should have an order against the other for costs.

6. The application for costs is dismissed. I make no other order about costs.