Clark v Commissioner for Corrective Services (No 2)

[2016] NSWCA 247

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Clark v Commissioner for Corrective Services (No 2) [2016] NSWCA 247
Hearing dates:	On the papers
Decision date:	07 September 2016
Before:	Basten JA, Simpson JA and Emmett AJA
Decision:	The notice of motion filed on 22 August 2016 is dismissed.
Catchwords:	PRACTICE AND PROCEDURE – whether to reopen appeal – whether error was made – whether court misapprehended facts about purported discrimination – whether costs of present application should be awarded against applicant
Cases Cited:	Clark v Commissioner for Corrective Services [2016] NSWCA 186
Category:	Procedural and other rulings
Parties:	Peter Frederick Clark (Appellant) State of New South Wales (Respondent)
Representation:	Counsel: Self-represented (Appellant)   Solicitors: Self-represented (Appellant)
File Number(s):	2014/233686
Decision under appeal	Court or tribunal: New South Wales Supreme Court Jurisdiction: Common Law Division Citation: [2014] NSWSC 801 Date of Decision: 17 June 2014 Before: Hidden J File Number(s): 2013/348662

Judgment

1. THE COURT: On 9 August 2016 the Court granted the applicant leave to appeal from a judgment of Hidden J delivered on 17 June 2014 in the Common Law Division (see Clark v Commissioner for Corrective Services [2016] NSWCA 186). However, it dismissed the appeal with costs. By a motion filed on 22 August 2016, accompanied by written submissions in affidavit form, the applicant sought to reopen that judgment.

2. The applicant relied upon two substantive assertions of error on the part of the Court. It may be assumed, without deciding, that the issue sought to be raised, if correct, would have engaged any power the Court has to reopen its own judgments, the application being made within the time permitted by the rules.

3. The first complaint related to the alleged failure of this Court to consider whether, in not allowing the applicant to purchase a 24 inch monitor to use with his laptop computer, the Court failed to appreciate that other prisoners had been permitted such facilities.

4. The Court did not misapprehend the facts. It was aware of the applicant’s statement that other prisoners had access to television monitors larger than the standard issue. However, nothing of relevance to the application turned on that fact. The applicant was seeking special treatment, as no doubt were other prisoners. There was no evidence before the Court which permitted a comparative examination of the respective positions of the applicant and other prisoners, nor would that have been an exercise which could be undertaken in proceedings for judicial review.

5. The applicant acknowledged that he did not refer to “discrimination” in his evidence or submissions, but stated that such a complaint could be inferred. However, “discrimination” is not a ground of judicial review. Discrimination is not necessarily unlawful or unreasonable conduct; it may be necessary to discriminate in order to ensure that individuals whose circumstances are not identical are not treated as if they were. Indeed, that is what the applicant seeks for himself.

6. A second complaint took issue with the statement in the principal judgment that the applicant “has not established that there has been any bad faith on the part of the Commissioner”. The complaint is no more than a disagreement as to the conclusion reached on the evidence and submissions, as set out over preceding paragraphs in the judgment. To explain why that is so would merely be to enter into a debate as to the correctness of the conclusion. That course is not appropriate.

7. The third matter related to the costs of the present application. The applicant submitted that if the application were to be dismissed, costs should not be awarded against him.

8. This submission should be accepted, not because costs should not follow the event, but because the Court did not require the Commissioner to file a response and the Commissioner will therefore not have incurred recoverable costs.

9. The notice of motion filed on 22 August 2016 is dismissed.

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Decision last updated: 07 September 2016