Collins v State of SA & Ors No. Scgrg-97-1510 Judgment No. S6960

COLLINS v THE STATE OF SOUTH AUSTRALIA & ORS
[1998] SASC 6960

Civil

OLSSON J These two originally separate, but now consolidated, proceedings have been prosecuted by Robert Wayne Collins, a prisoner held at the Yatala Prison.
The first action was initiated by a summons dated 28 October 1997, in which he seeks declaratory and interpretive relief pursuant to s31 of the Supreme Court Act 1935 and/or SCR 63.02. By that summons he also seeks to invoke powers vested in the court by SCR 3.04(f), SCR 84.12 and s9A of the Criminal Law (Sentencing) Act 1988, (“the CLSA”).
After I had virtually completed hearing the first action he initiated separate proceedings, which were served by leave of a Master, given on 3 June 1998, seeking orders by way of judicial review. These proceedings were not commenced within the time stipulated by SCR 98.06. A threshold issue arises as to whether that time ought to be extended.
In essence the plaintiff prisoner contends that certain determinations made by the Parole Board in 1992 were made without jurisdiction and were, in any event, wrong in law, with the consequence that this has resulted in later sentences being imposed on him, or being required to be served, on an incorrect basis. He asserts that he is now entitled to be released.
For that purpose, inter alia, he claims, pursuant to SCR 3.04(f), to be entitled to an order correcting, revoking or varying various orders made in the criminal jurisdiction of this court, including, as necessary for the purpose, orders of the Court of Criminal Appeal. There is an alternative claim, pursuant to SCR 84.12, to vary or set aside those orders.
He separately claims, by way of judicial review, orders of the nature of prerogative relief in relation to what he says was the initial erroneous decision of the Parole Board in 1992.
I propose, as a matter of convenience, to deal with the issues raised in the two separate proceedings in the order in which they were prosecuted.
I first turn to the action commenced in 1997.
The plaintiff has filed a statement of claim which has been responded to by the filing of a defence by all three nominated defendants, The State of South Australia, the Director of Public Prosecutions and the Parole Board of South Australia.
During the interlocutory stages of the proceedings a Master was confronted with two separate applications.
On the one hand the plaintiff made application for an order that SCR 50 be applicable to the proceedings and that they be ‘fast tracked’.
On the other the defendant, the State of South Australia, made application that:-

. the plaintiff’s summons and statement of claim be struck out;

.the defendant Director of Public Prosecutions be disjoined as a party to the proceedings; and

.so much of those proceedings as seek to invoke s9A of the CLSA be struck out.

Each of the above applications was referred by the Master for hearing and determination by a Judge.
The relevant factual history is both lengthy and complicated. It is set out in some detail in the judgment of Lander J in R v Collins (Court of Criminal Appeal, 4 April 1997, S6096, unreported). There is a need to re-traverse some of that detail in order to render these reasons comprehensible. Most it appears to be common ground.
The plaintiff has, since 1986, spent much of his time in prison serving custodial sentences in respect of a series of offences committed by him.
As of April 1990 he was serving a total head sentence of 10 years imprisonment, commencing 13 May 1986. The non parole period in respect of that sentence was 6 years, which also ran from the same date.
Having been credited with good conduct remissions of the order of about 2 years, the plaintiff was released on parole on 12 April 1990. His head sentence nominally expired on 12 May 1996.
However, on 23 March 1992, he was arrested pursuant to a warrant issued by the Parole Board, consequent upon receipt by it of an allegation that the plaintiff had breached designated conditions of parole.
On 20 May 1992 the Parole Board formally sat to consider the allegations of breach.
At the conclusion of its hearing the Board determined that the plaintiff had in fact breached the relevant conditions, as of 30 November 1991. It cancelled the plaintiff’s parole. He was, thereupon, required to serve a balance of unexpired parole, said, by the Board, to amount to 4 years, 3 months and 14 days, to run from 20 May 1992.
The documentation before me in the 1997 action did not, initially, reveal any real detail concerning the alleged breach of parole conditions. The affidavit of Mr Mancini, of counsel for the plaintiff, merely made the cryptic statement that it related to money management. The same affidavit also contained the bald assertion that the determination of the Parole Board was wrong in fact and law and that the plaintiff was not in breach of the relevant designated conditions of parole.
As I initially understood him at the bar table, Mr Mancini indicated, at that stage, that the plaintiff wished to impugn the determination of the Parole Board on two distinct bases, namely:-
It was never properly established before the Parole Board that there had been a breach of a designated condition of parole - either as a matter of fact or law; and

In any event, the Board’s calculation of the unexpired period of parole did not correctly reflect the relevant legislative provisions applicable at the time. It was, therefore, erroneous.

Documentation filed in the judicial review proceedings, complemented by material filed in the 1997 action after submissions had been virtually concluded in the latter action, revealed that the two designated conditions of parole imposed on the plaintiff were as under:-
“10. That you do not practice [sic] or hold yourself out to the public as practicing as a management consultant or as a financial advisor, either personally or on behalf of any company, partnership or business.”
“12. That you do not, personally or through a servant or agent, nor as an employee of any company, or as a servant or agent of any other person, receive, hold, manage or disburse any monies or negotiable securities not belonging to you.”

In arriving at its determination the Parole Board acted on the basis of a lengthy Record of Interview conducted by Detectives Ryan and Gibbs with the plaintiff on 5 March 1992. The plaintiff was represented by counsel before the Board. He elected not to seek to cross examine Detective Gibbs, who was in attendance. He also elected not to give, or place, evidence before the Board. Counsel merely contended before the Board that the Record of Interview did not establish a breach of either of the specific parole conditions.
No steps were taken in 1992, by or on behalf of the plaintiff, to challenge the propriety of the determination of the Parole Board, nor has any explanation ever been proffered as to why the above issues were not ventilated before the court until now. (Although no appeal lay from the decision of the Board, it was certainly amenable to judicial review or, possibly, other processes at the time when it was made.) On the contrary, following the determination of the Parole Board, the plaintiff made application, pursuant to s32(c) of the CLSA for fixation of a new non parole period.
On 6 July 1992 a single Judge fixed a new non parole period of 1 month. The plaintiff was, accordingly, released on parole on 28 July 1992.
It must be said that, prima facie, the foregoing course of events plainly evidenced a deliberate election on the part of the plaintiff to accept the validity of what had been done by the Parole Board. There was never any overt suggestion by him, at that time, that the Board had acted without jurisdiction or erred in law, or at all. This was so, notwithstanding his representation before the Board of experienced counsel, who raised various issues now sought to be re-ventilated. The subsequent process initiated by him was dependent, for its efficacy, on an acceptance of the proposition that what had been done by the Parole Board was valid - at least as to the alleged breach of parole.
That situation was not altered by the fact that, on 21 August 1992, the non parole period fixed by the single judge was revoked by the Court of Criminal Appeal, which substituted a period of 2 years and 9 months in lieu, operative from 20 May 1992. The plaintiff was, therefore, returned to custody and again released on parole on 12 January 1994. The new period was plainly referable to the unexpired period of parole of just over 4 years, earlier recited.
When the matter came before the Court of Criminal Appeal, no point was taken either as to the propriety of the original parole cancellation or the determination of the Board of the period of unexpired parole still to be served. The order of that court stood as the authority for the action which followed it. Such order has never been impugned. There was no attempt to appeal from the order; and the plaintiff was held in custody on the authority of it.
The plaintiff’s parole, in accordance with the order of the Court of Criminal Appeal, was due to expire on 11 August 1995.
On 22 April 1994 the plaintiff was arrested on other charges and remanded in custody. His release on parole was suspended by virtue of s74a of the Correctional Services Act 1982. The plaintiff actually pleads that the s74a suspension was the consequence of a determination of the Parole Board made on 22 April 1994. This plainly cannot be correct. Any suspension was brought about by the direct operation of the section itself. The Parole Board had no power to make such a determination. It was merely required, by the statute, to give effect to it.
However, on 14 October 1994, the plaintiff was convicted of 13 counts of fraudulent conversion, in respect of transactions said to have occurred in 1990‑1991, which led to the Record of Interview placed before the Parole Board on 20 May 1992. On 18 January 1995 he was sentenced by Taylor DCJ to 7 years’ imprisonment, with a non parole period fixed at 5 years, both periods to run from 22 April 1994.
As Lander J has pointed out, an express agreement was made between the Crown and the plaintiff at the time, that, as an act of mercy, Taylor DCJ would be invited to impose a custodial sentence to operate from the above date, on the footing that the 1986 sentence should then be taken to have expired - despite the fact that, technically, this may not have been so. Apparently Taylor DCJ was content to adopt that course, at the request of the parties before him, without further inquiry. It is beyond dispute that this approach conferred a very positive practical advantage on the plaintiff.
On 11 September 1995 the plaintiff was further sentenced to 10 months imprisonment for other offences, to be served concurrently with the sentence imposed by Taylor DCJ. (The judgment of Lander J indicates that these were offences charged under the Corporations Law).
On 29 March 1996, having pleaded guilty to one count of attempted false pretences and one count of actual false pretences, the plaintiff was sentenced to 2 years and 3 months’ imprisonment, cumulative on the sentences then being served by him. As at the last mentioned date the unexpired portion of the sentences which preceded the 1996 convictions was 1 year, 4 months and 16 days. Lunn DCJ reviewed the existing 4 year non parole period and extended it by thirty five months. In the result the plaintiff became subject to a new non parole period of 7 years and 10 months, commencing on 22 April 1994.
It was this sentence which was challenged before the Court of Criminal Appeal in March 1997. By its judgment of 4 April 1997 that court confirmed the propriety of the orders made by Lunn DCJ and dismissed the plaintiff’s appeal against them.
As has already emerged, the foregoing detailed history of the matter was before the Court of Criminal Appeal when it reviewed what had been done by Lunn DCJ.
It follows that the plaintiff is currently in custody pursuant to the sentence of Lunn DCJ, as confirmed by the Court of Criminal Appeal.
Save for one aspect, to which I will shortly come, the issues now sought to be ventilated by Mr Mancini were not debated by him, or even indirectly canvassed, before the Court of Criminal Appeal, notwithstanding that such court was taken through the whole custodial history of the plaintiff since 1983. At best it can be noted that the transcript of proceedings before the Court of Criminal Appeal reveals that, at the outset of his submissions, Mr Mancini made an oblique reference to seeking to reserve “any rights to have a look at questions of remissions and the like ...”. When Cox J, who was presiding over the Court of Criminal Appeal, expressed surprise at the concept of someone purporting to reserve rights of appeal, Mr Mancini said that, more accurately, he sought to reserve “rights to review or invoke provisions of section 9A of the Sentencing Act”.
As I understand the contentions currently sought to be advanced by the plaintiff, in the 1997 action, they are:-
There was no basis of fact or law to justify the determination of the Parole Board made on 20 May 1992;

The correct balance of his unexpired parole, as at 30 November 1991, under the relevant legislative provisions, was 2 years 4 months and 12 days; and not 4 years 3 months and 14 days, as computed by the Parole Board;

That fact rendered the fixation, on the 21 August 1992, by the Court of Criminal Appeal of a new parole period and the fixation of all subsequent non parole periods erroneous;

The suspension, on 22 April 1994, (allegedly, but not in fact, by the Parole Board) of the plaintiff’s release on parole, pursuant to s74a of the Correctional Services Act, pending his sentencing by Taylor DCJ on 18 January 1995, had the effect of postponing the operation of the parole so suspended - with the result that it commenced (or re-commenced) to operate from the plaintiff’s then next release on parole;

The effect of the orders made has been to achieve a potential release on parole on 21 February 2002, with a completion of head sentence on 21 July 2003; and

As a consequence of the original wrongful determination of the Parole Board concerning the alleged breach of a designated conditions of parole and subsequent erroneous calculation thereafter of the unexpired period of parole, the plaintiff is being required to serve two years in custody beyond that which is appropriate.

As appears from the judgment of Lander J, the plaintiff expressly pleaded, as a ground of appeal to the Court of Criminal Appeal, the issue said to arise in relation to the s74a suspension of his parole. This was debated before the Court of Criminal Appeal and, for reasons expressed by Lander J, was summarily rejected.
In his submissions before me Mr Mancini, somewhat ingenuously sought to declaim that the judgment did not contain a “definite pronouncement” on this point and that, although there was a dismissal of the ground “there has not been an express and conclusive determination” in relation to it. He went on to assert that the decision of Lander J on this aspect was, at best, “inconclusive and not of sufficient force and effect to be arguable at this stage of the proceedings as to have been finally determined”.
All that need be said concerning this remarkable contention is that nothing in it can possibly gainsay the simple facts that:-
the ground was pleaded and argued;

it was considered by the Court of Criminal Appeal and rejected; and

the appeal was dismissed, inter alia, as to that ground.

Against the foregoing background the plaintiff originally claimed, in his statement of claim, to be entitled to the following relief:-

.Pursuant to SCR 3.04(f) an order to correct, revoke or vary the orders of the Court referred to in paragraphs 20, 22, 26, 29 and 30 of the statement of claim (i.e. the various orders fixing parole periods made after 20 May 1992, including that of the Court of Criminal Appeal in 1992);
.Pursuant to SCR 63.02 a determination of the balance of unexpired parole as at November 1991 upon the proper interpretation of Part VII of the Correctional Services Act;
.A declaration and consequential relief and orders upon that determination;
.Pursuant to SCR 63.02, a determination upon the proper interpretation of s74a of the Correctional Services Act in the circumstances above referred to;
.A declaration and consequential relief and orders upon the determination referred to in the last mentioned determination;
.Further, or in the alternative, an order pursuant to SCR 84.12 to vary or set aside the orders referred to above; and
.A declaration [presumably pursuant to s31 of the Supreme Court Act 1935] that the determinations of the Parole Board made on 20 May 1992 were wrong and an order setting aside those determinations and consequential relief and orders.

By amendment on the hearing of the present application, Mr Mancini added the following further prayers for relief:-

.A declaration that the plaintiff did not breach any condition of his parole on the 30 November 1991.
.A declaration that the balance of unexpired parole from the 30 November 1991 required to be served by the plaintiff pursuant to s73 of the Correctional Services Act was 2 years 4 months and 12 days or such other period as is determined by the Court.

I take it that these declarations are sought pursuant to s31 of the Supreme Court Act.
The interlocutory application of the first defendant presently before me seeks to invoke both SCR 3.01 and SCR 55, as well as the inherent jurisdiction of this Court.
The initial point taken by Ms Bradsen, of counsel for the defendants, is that, in so far as the plaintiff seeks any relief pursuant to s9A of the CLSA, these proceedings are misconceived and inappropriate. Accordingly, any plea related to that section must be struck out. The second defendant ought also to be disjoined, as he has no proper interest, as a party, in any other aspect of the proceedings.
Section 9A is expressed as under:-
“Rectification of sentencing errors
9A     (1)     A court that imposes a sentence on a defendant, or a court of co-ordinate jurisdiction, may, on application by the Director of Public Prosecutions or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order.
(2)     The Director of Public Prosecutions and the defendant are both parties to an application under this section.”
It falls to be read in light of the definition of the word “court” contained in section 3 of the statute. Such definition stipulates that:-
“      ‘court’
(a)     means any court of criminal jurisdiction; and
(b)     in relation to the exercise of powers under this Act with respect to the variation, revocation or enforcement of an order of court or other related matters, means the court that made the order or a court of co-ordinate jurisdiction;...”
As is readily apparent from both the context of the section and also a consideration of Question of Law Reserved on Sentence (No 1 of 1996) (1996) 67 SASR 90 (“QOL No.1/1996”), applications pursuant to s9A are intended to be made in and to enliven the criminal jurisdiction of the relevant court. They are not a civil process at all. Moreover, it is trite to say that the definition of the word ‘court’ does not empower a single judge of this court to intermeddle with the outcome of proceedings before a Court of Criminal Appeal.
Furthermore, s9A is expressed in a manner which renders it abundantly clear that the power conferred by it may only be exercised for quite limited purposes, namely -

.to rectify what is a plain error of a technical nature which has arisen in the sentencing process;

.to ‘supply’ some deficiency in a sentence imposed; or
.to remove some ambiguity which exists in a sentencing order.

In QOL No.1/1996 the Court of Criminal Appeal had resort to s9A to rectify what was characterised by it as an error of a technical nature and also to supply a deficiency. It did so in circumstances in which a prisoner had, successively, been sentenced to two periods of imprisonment by two separate judges. The second sentence had been rendered ineffective by reason of the fact that, in the particular circumstances, a gap had arisen between the two head sentences, whilst the non parole period continued to run. A hiatus had arisen, by reason of selection of a nominated commencement date for the second sentence. This had, in practice, achieved an unintended result. The consequence was that the second sentencing order had been rendered ineffective by the events which had transpired.
In the course of his leading judgment in that case Doyle CJ commented that s9A is not a means of rectifying any and every problem that might occur. Specifically, it does not set out to enable the passing of a completely new sentence, as distinct from the making of an order which affects the operation of a sentence already passed.
In the instant case, not only is the present claim prosecuted in the civil jurisdiction of this court, but it, somehow, also seeks to invoke s9A of the CLSA - although, oddly enough, none of the specific prayers for relief make reference to it. There is, therefore, no direct, positive claim at all under the section. Additionally, any application which seeks to impugn the validity of an order pursuant to which the plaintiff is currently held in custody must plainly be made to the Court of Criminal Appeal.
It follows that the second defendant has improperly been joined as a party to these proceedings. There must be an order for his disjoinder.
I next turn to the prayers for relief which are based on SCR 63.02 and s31 of the Supreme Court Act.
There can be no question that the power to grant declaratory relief is very wide, provided that the factors prerequisite to its invocation are satisfied (Oil Basins Ltd v The Commonwealth & Ors (1993) 178 CLR 643).
Equally, it is beyond question that the power extends, in appropriate circumstances, to the making of declarations in relation to issues arising in the criminal jurisdiction (Sankey v Whitlam (1978) 142 CLR 1).
However, that power will only be exercised sparingly, in special or exceptional circumstances (Anderson & Ors v Attorney-General for New South Wales & Ors (1987) 10 NSWLR 198, The Attorney-General v Smith (1985) 39 SASR 311 at 313 (“Smith”) and Biggs v Director of Public Prosecutions (1997) 17 WAR 534).
It is to be noted that, so far as I can determine, the reported authorities illustrating the exercise of that power all bear upon questions which have arisen during the pendency or currency of a criminal trial. Typically, the power has been exercised so as to resolve some legal issue in a manner which might obviate the possibility of an otherwise abortive, lengthy trial. As in Smith, it has also been employed to resolve an impasse, when a judicial officer has declined jurisdiction in a criminal matter.
My attention has not been drawn to any case in which the power has been exercised so as to agitate an issue in relation to concluded criminal proceedings, with a view to re-opening or reviewing the propriety of those proceedings.
Moreover, the approach adopted by the Full Court in Workers’ Rehabilitation and Compensation Corporation v Commercial Motor Industries Pty Ltd (1994) 178 LSJS 231 ought also to be borne in mind. The Court there pointed out the undesirability of permitting resort to the SCR 63.02 procedure in a situation in which other, more appropriate, processes are available. It is not, for example, to be used to bypass a relevant appellate procedure. As Prior J pointed out, the attitude of the Court with respect to the judicial review procedure is no less applicable to construction summonses. Relief will not, in any event, be granted - even if nominally available - if there is another “equally effective and convenient remedy”. (See Weinel v Judge Parsons & Anor (1994) 62 SASR 501, Boral Gas (NSW) Pty Ltd v Magill & Anor (1993) 32 NSWLR 501 at 508 and the authorities there referred to.)
Finally, there is a need to consider the reasoning expressed by the High Court in Toowoomba Foundry Proprietary Limited v The Commonwealth and Others (1945) 71 CLR 545. (“Toowoomba”).
It was there said that the decision of an independent tribunal acting under a statute or a regulation cannot be challenged in an action claiming only that the decision is invalid.
It was argued by Mr Mancini that this statement of principle has since been watered down and is no longer good law - at least in the absolute terms in which it was expressed. He referred me to the later decision of the High Court in Forster v Jododex Australia Pty Ltd & Anor (1972) 127 CLR 421 (“Forster”) as authority for that proposition. He contended that resort may now freely be had to the declaratory order approach, at the option of a plaintiff, to avoid the practical restrictions attaching to judicial review.
In Forster the High Court was prepared to accept the propriety of granting a declaration concerning the validity of an exploration licence, even though an application was pending before a tribunal which was, itself, empowered to decide the issue of the validity of the licence. However, it is to be noted that the declaration asked for did not seek to challenge the validity of any concluded decision already made by the tribunal on the matter.
As is pointed out by the learned authors of Sykes, Lanham, Tracey and Esser General Principles of Administrative Law, 4th Edn, the situation, nevertheless, is that, although, despite the reasoning in Toowoomba, it may be proper to make declarations where a tribunal has acted without jurisdiction, the tide of authority runs strongly against such a process where what is in issue is an alleged error within jurisdiction. (Healey v Minister of Health [1955] 1 QB 221, Punton & Anor v Ministry of Pensions and National Insurance (No.1) [1963] 1 All ER 275, Punton & Anor v Ministry of Pensions and National Insurance (No.2) [1964] 1 All ER 448 (“Punton No.2”).
It seems to me that one important rationale for the difference in approach is that commented on by Gibbs J (as he then was) in Forster. Where an important question of law arises during the pendency of proceedings before a tribunal (which could lead to a subsequent challenge of its decision before a supervisory court), “every consideration of convenience indicates the appropriateness of deciding that question and, if appropriate, the making of a declaration”. Such a consideration is irrelevant to an already concluded matter.
In my opinion the decision of the Court of Appeal in Barnard and Others v National Dock Labour Board and Others [1953] 2 QB 18, (“Barnard”), strongly relied on by Mr Mancini, does not open the floodgates in the manner which he suggested. Quite the contrary.
The Court of Appeal there reiterated what is accepted in all of the authorities above adverted to. There is no doubt that the power vested in the court to make declarations is expressed in unlimited terms. But the critical issue is as to the circumstances in which, as a proper exercise of discretion, it is appropriate to exercise that power.
As is illustrated by the reasoning in Ridgeway v The State of South Australia (Legoe J, 21 August 1987, Judgment No 112, unreported), and Weinel v Judge Parsons & Anor (supra), remedies by way of both declaratory relief and judicial review are essentially discretionary. That discretion may properly be exercised to discourage the relevant procedure from inappropriately being resorted to (cf R v Ross Jones: ex parte Green (1984) 156 CLR 185 at 214-215).
In Barnard Denning LJ (as he then was) was content to accept the force of a submission that, if the power was exercised on an unrestricted basis, it followed that anyone who was dissatisfied with the decision of a tribunal could initiate proceedings to seek a declaration that it was bad, and thus, by a side wind, exercise an appellate right in cases in which Parliament intended there should be none.
His Lordship commented at page 41 “I think that there is much force in ... [this] ... contention; so much so that I am sure that in the vast majority of cases the courts will not seek to interfere with the decisions of statutory tribunals.”.
Singleton LT at page 35 adopted a similar stance. He expressed the view that “it cannot be right to say that whenever a tribunal makes a mistake the court can grant a declaration concerning it - that would lead to endless confusion”.
He went on to demonstrate, as did Denning LJ, that the most common situations in which courts exercised their declaratory jurisdiction vis a vis tribunals was in relation to issues of jurisdiction (including natural justice aspects), or issues “closely akin” to it.
A very similar approach was adopted by the Victorian Court of Appeal in Director of Public Prosecutions v His Honour Judge G B Lewis & Anor [1997] 1 VR 391 (“Lewis”).
In the judgment of the Court Tadgell JA at pages 401-2 made these points:-
“A court will be slow to make a declaration which impinges directly upon the course of proceedings in a criminal matter: e.g. Sankey v Whitlam (1978) 142 CLR 1 at 23-6. A principal reason, no doubt, is that it is generally desirable in the public interest that criminal proceedings should be allowed to pursue their usual course, without punctuation by applications for interlocutory relief in relation to them. Plainly, however, Sankey v Whitlam authorises a grant of declaratory relief in an appropriate case, even though it be directed to pending criminal proceedings; and there is other authority to like effect apart from the two Rozenes cases cited above. Various epithets have been used to label circumstances in which such a declaration might be appropriate: “most exceptional”, “very exceptional”, “special” and “unusual”, and expressions similar in effect, are to be found in the decided cases: e.g. Cain v Glass (No.2) (1985) 3 NSWLR 230 at 235; Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198. These expressions of themselves do not assist very much in the recognition of a given case as fit for a declaration. It can at least be said, however, that declaration which is designed to regulate criminal proceedings is very much the exception and not the rule, and will ordinarily be refused unless there is special justification for making it. A case such as Craig, in which an order for a stay had been made by reference essentially to the circumstances of the accused, and in the exercise of a wide discretion, could scarcely meet that criterion. I think the present case is very different. As against the undesirability of a superior court’s undue intervention by way of declaration in a criminal proceeding, there is to be weighed the undesirability of recognising yet not heeding an inferior court’s improper refusal to try an accused person upon a presentment that is duly before it: cf. Jago v District Court of New South Wales (1989) 168 CLR 23 at 38-9 and 49-54, per Brennan J; 76-8 per Gaudron J. It is one thing to decline to interfere by declaration when a trial judge has ordered a stay in the exercise of a discretion after an assessment by him of the surrounding facts. It would be another altogether to decline to act in the present case, when the stay order depended not on matters of fact or discretion but entirely, or almost entirely, on an erroneous application of principles of law.
There is simply no warrant for the much broader proposition sought to be espoused by Mr Mancini.
The authorities render it quite clear that each situation needs to be viewed in its own context. However, in the instant case, perhaps the most relevant distinction to be drawn is that adverted to in the unanimous decision of the Court of Appeal in Punton No.2. Sellers LJ there commenced with this general proposition :-
“ It is true that the Court of Queen’s Bench has an inherent jurisdiction to control inferior tribunals in a supervisory capacity and to do so by certiorari (which would be the relevant procedure in this case) which enables the court to quash the decision if the inferior court can be shown to have exceeded its jurisdiction or to have erred in law. Neither certiorari nor mandamus usurp the function of a tribunal but require it, having quashed its decision, to hear the case and determine it correctly. There may be many cases where a summons for a declaration is at least an adequate substitute for certiorari proceedings and where it may have advantages over it with no defects.”
Apropos the situation then before the court, he went on to make these points:-
“ Apart from certiorari there is no machinery for getting rid of the decision of the National Insurance Commissioner and, what is more important, no way of substituting an effective award on which the claims could be paid. It would be out of harmony with all authority to have two contrary decisions between the same parties on the same issues obtained by different procedures, as it were on parallel courses which never met or could meet, and where the effective decision would remain with the inferior tribunal and not that of the High Court. I conceive that to be the case here, and it seems to me to lead to a conclusion against the jurisdiction of the High Court in this particular matter. The tribunal is wholly independent and the commissioner or a deputy commissioner has to be a barrister or advocate of not less than ten years’ standing and an appeal may be heard if thought desirable by more than one member of the tribunal and we were told that the tribunal does sometimes sit in banc. It is a statutory judicial tribunal to deal with a special subject-matter where the decisions will frequently be on mixed law and fact and where finality and the minimum of delay are sought to be achieved. There is much to lead to the implication that the jurisdiction of the courts was intended to be excluded and very little to be set against such a conclusion. If the court has jurisdiction as claimed, counsel for the plaintiffs conceded that an insurance officer as well as an insured person could proceed by summons for a declaration in respect of any decision with which he was dissatisfied. This would be opening up a new field of litigation before the court, which in my view seems quite contrary to the intention of the statute and in no way envisaged by it.” [my emphasis.]
The applicability of that reasoning to the activities of the Parole Board is obvious.
Sellers LJ went on to express the view that it was no answer to suggest that the problem identified by him was capable of being resolved by an amendment of regulations, or other administrative action which is dependent on the will of some party to take steps to give effect to one of two conflicting decisions, in preference to the other.
In the present proceedings the plaintiff seeks to rely on SCR 63.02 for two purposes, namely:-
to review the conclusion of the Parole Board as to the question of the proper balance of the plaintiff’s unexpired parole as at 30 November 1991, upon a correct interpretation of Part VII of the Correctional Services Act, as it stood at the relevant time; and

to review the issue of the proper interpretation of s74a of the Correctional Services Act.

He further invokes s31 of the Supreme Court Act to seek declarations that:-
the determination of the Parole Board that he had committed a breach of a designated condition of parole was wrong;

he did not in fact breach any condition of his parole on 30 November 1981;

the balance of unexpired parole, as at 30 November 1991, required to be served pursuant to s73 of the Correctional Services Act, was 2 years 4 months and 12 days.

The prayer for relief seeks not only relevant declarations, but also what are described as “consequential relief and orders” - which I take to mean orders giving effect, in some practical manner, to any declarations made. It is stating the obvious to say that, if that could not be done, any declaration made would be a mere “brutum fulmen” (cf The Queen v Olsson: ex parte Amalgamated Wireless (Australasia) Ltd (1971) 1 SASR 453). It would give rise to the very type of situation adverted to by Sellers LJ in Punton No.2.
The clear purpose of these prayers for relief is, of course, to attempt to impugn relevant determinations of the Parole Board and also to achieve a reopening of the sentencing processes based on them. In practical terms that implies:-
A recall of the order of the Court of Criminal Appeal made on 4 April 1997 and that of Lunn DCJ to which it relates;

a reopening and adjustment of the sentence imposed by Taylor DCJ on 14 October 1994;

a reopening and adjustment of the non parole period fixed by the Court of Criminal Appeal on 21 August 1992; and

the reopening and setting aside of the determinations made of the Parole Board on 20 May 1992.

It seems to me that the prayers for relief based on SCR 63.02 and s31 of the Supreme Court Act must be viewed in the context of the parallel prayers for relief made pursuant to SCR 3.04(f) and/or SCR 84.12 - which also seek to impugn all of the orders referred to in (1) to (3) inclusive above - although those prayers for relief advert to the fixation of a non parole period which was superseded by that fixed by the Court of Criminal Appeal on 21 August 1992.
Ms Bradsen contends that the declaratory relief sought by the plaintiff both pursuant to s31 of the Supreme Court Act and SCR 63.02 is not available to the plaintiff in the circumstances presently before the court. That rule is expressed as under:-
“Summons for the determination of questions on a statute, statutory instrument, by-law or rule.
Where any person claims to be entitled to any right, and the question whether he is so entitled depends upon the proper interpretation or validity of a Statute, a statutory instrument or by-law or a Rule made or purporting to have been made under a Statute or statutory instrument, he may apply by summons for the determination of the question, and for a declaration as to the right claimed and consequential relief.”
As is pointed out by the learned author of Lunn, Civil Procedure, South Australia (in note R63.02.1 to SCR 63.02), it is unclear exactly what is meant by ‘consequential relief’. He expresses the view that presumably it includes that which is necessary to give effect to a declaration such as an injunction, damages, accounts and the like.
What is clear, however, is that the process envisaged by SCR 63.02 is not intended to be and is not co extensive, in nature and scope, with that erected by SCR 84. It is clear, on the authorities, that the process of judicial review is the only means by which, relevant error having been established, a decision in question can be brought up, quashed and a process of rectification initiated. (See Craig v State of South Australia (1995) 131 ALR 595 at 599 et seq.) Whatever may be the proper scope of the declaratory power under SCR 63.02, it has never been suggested that the ability to grant consequential relief extends to and includes power to make orders such as those which derive from the former prerogative writs.
In so far as the prayers for relief purport to seek a “determination upon the proper interpretation of s74a of the Correctional Services Act in the circumstances referred to in paragraph 25” of the statement of claim, they are misconceived for two quite separate reasons.
As already emerges, that paragraph asserts that the plaintiff’s release on parole was suspended pursuant to s74a of the Correctional Services Act by determination of the Parole Board. I have pointed out that this is patently incorrect, because s74a operates automatically and directly, on the occurrence of a factual situation falling within its purview. No determination of the Board is required, nor could it have any separate, legal effect.

Even more importantly, any declaratory pronouncement would, indeed, be a brutum fulmen. It would, if the assertions of the plaintiff are correct, stand in conflict with the relevant pronouncement of the Court of Criminal Appeal on the same topic.
As to the Board determination concerning the breach of designated condition and the issue as to the correct computation of unexpired period of parole, the last mentioned type of situation is no less applicable. The best possible outcome from the plaintiff’s point of view, bearing in mind what has since transpired, would be yet another brutum fulmen.
These are the very situations deprecated in Punton No.2.
Additionally, and perhaps even more importantly, this is simply not a situation which remotely falls within the purview of permissible civil intervention in a criminal process adumbrated by Tadgell JA in Lewis.
At best from the plaintiff’s perspective, what is in issue is an error within the proper exercise of jurisdictional function of the Board. It does not go to jurisdiction or any matter akin to jurisdiction or a denial of exercise of, or access to, it. Moreover, it was an error - if error there was - which was capable of remedy at the time by judicial review, or could have been raised in the later, sentencing related, proceedings before the courts. The plaintiff elected to accept what had been done by the Board and based his application for fixation of a new non parole period, as well as later submissions to single judges and two Courts of Criminal Appeal, on the validity of what was done. When the plaintiff came before Taylor DCJ in 1995 for sentencing, it was on the agreed basis that, for sentencing purposes, he then had “a clean slate”, i.e. what had gone before had no practical impact on the subsequent sentencing processes.
The situation is thus a far cry from that which would fall within the conceptual ambit of the authorities to which I have referred.
But these are by no means the only considerations.
The first defendant argues that, in all of the relevant circumstances, the applications for declarations in any event constitute an abuse of process. They ought to be struck out accordingly.
In my opinion that contention is unassailable.
It must be borne in mind that not only has the plaintiff failed to agitate this issue over a long period of time and has not, until now, attempted to provide any explanation of the delay, but he has also sought to approbate and reprobate. As I have earlier recited:-

.he did not challenge the original decision of the Board. On the contrary, he initiated steps to have a new non parole period fixed by the court on the basis of an implicit acceptance of the propriety of it;
.on the hearing of that application he did not seek to raise the issues which he now desires to agitate, nor did he take steps either to appeal from the decision of the Court of Criminal Appeal or have the propriety of the Board decision examined by it;
.when he appeared before Taylor DCJ for sentence he willingly embraced a specific agreement as to the basis on which that learned judge ought to proceed; and joined in urging him to accept and act upon that basis. This basis was adopted by Taylor DCJ, on the implicit assumption that all that had gone before was valid and correct and that the plaintiff had no outstanding balance of sentence to serve at that point. As has already been pointed out this gave rise to a practical situation very favourable to the plaintiff;
.he has not sought to raise the question of the initial alleged invalidity of the 1992 Parole Board determination on any subsequent occasion when he has appeared before a court of criminal jurisdiction, even when it formed part of the history necessarily considered by the Court of Criminal Appeal in March and April 1997. He was content to argue the matter at that time on the implicit basis that such determination was valid;
.despite the above situation he now seeks to proceed on a basis utterly inconsistent with the manner in which he earlier and consistently elected to proceed at all times.
.he also now seeks to re-litigate an issue as to s74a of the Correctional Services Act which has already been passed on by the Court of Criminal Appeal adversely to him.

This then is a classic situation in which the plaintiff ought not to be permitted to play fast and loose with the processes of the court in a desperate attempt to re-open the whole sequence of events ab initio. To permit him to do so would set a most unfortunate precedent of encouraging others to attempt to manipulate court processes in an utterly vexatious manner. His present stance is nothing short of an affront to the proper administration of the law and patently constitutes a misuse of the legal process.
This aspect alone attracts the inherent jurisdiction of the court preserved by SCR 3.01 and which is, in essence, restated in SCR 3.04(e). What is sought to be done is a clear abuse of process.
On all of the above grounds so much of the plaintiff’s claim as seeks declaratory relief must be struck out.
I move on to a consideration of those heads of claim based on SCR 3.04(f) and SCR 84.12.
The former rule stipulates that:-
“[R 3.04] General powers of the Court
The Court shall have power to act at any time to give effect to the purpose of these Rules and, without limiting the generality of this power, it may in any case in which it thinks it just to do so
..............
Correct or revoke any order
(f) correct, revoke or vary any order by a subsequent order;
..............”
The latter is expressed as under:-
“[R 84.12] Court may vary or set aside a judgment or order
The Court may vary or set aside a judgment or order at any time if the justice of the case so requires.”
It will, at once, be noted that the two rules are expressed in different terms. One fundamental difference is that, whereas SCR 84.12 confers power to actually set aside a judgment or order, the focus of SCR 3.04 is somewhat narrower. The latter is essentially pitched at correcting some manifest error, although it certainly does extend to the potential revocation of an order.
In Ballantyne & Sullivan v ETSA (1993) 173 LSJS 355 at 360 Perry J made the point that SCR 3.04(f) does not confer a jurisdiction which should be exercised simply by reviewing the merits of an order previously made. It is to be resorted to only where there has been some mistake or oversight, or when there has been a significant change of circumstances since the relevant order was made. He also stressed that it is not intended as an alternative procedure designed to circumvent normal appeal processes. Copping v ANZ McCaughan Ltd (1995) 67 SASR 525 stands as authority for the proposition that SCR 84.12 can apply to a judgment regularly entered after trial in rare and exceptional cases.
In the course of his judgment in Mohtar v Mohtar and Seputis (1988) 146 LSJS 377 von Doussa J was disposed to consider the two rules as acting in concert with one another.
Having emphasised that an important distinction needed to be made between the existence of the powers conferred and the occasion for their proper exercise, he accepted that it was important that the court ought not to lose sight of the general rule that public interest requires that litigation ought not to proceed interminably.
Accepting that it was not practical to evolve specific, all embracing rules governing the proper application of the powers conferred, he concluded that some guiding principles were:-
the rules obviated the need to institute a fresh, separate action to set aside a judgment, where setting aside was justified in law;

the fundamental question was what course was just in the particular circumstances, including (but not limited to) consideration of the existence of equitable or other fraud;

the factors of public interest, delay and rights of third parties were relevant for consideration;

the rules are not intended to override contractual arrangements entered into by the parties.

Finally, it is necessary to advert to the judgment of White J in R v Caruso (1988) 49 SASR 465 at 477, in which it was held that the power conferred by SCR 84.12 was a general rule designed to cater for civil proceedings. It had no relevance to criminal proceedings duly processed in accordance with the specific rules of court related to those proceedings.
It is to be noted that the prayers for relief which set out to invoke these rules specifically seek to reopen the processes determined by:-

.orders of both a single judge and also the Court of Criminal Appeal made in 1992, fixing a new non parole period for the plaintiff;
.the two sentences imposed by Taylor DCJ and Lunn DCJ respectively; and, by implication,
.the order of the Court of Criminal Appeal confirming the order of Lunn DCJ, by dismissing the appeal against it.

It is immediately apparent that the present claims to correct, vary, revoke or set aside the orders to which I have referred are, in the relevant circumstances, patently untenable.
The same features of abuse of process to which I have already referred in relation to the claims for declaratory relief are no less applicable, as appropriate, to these claims.
Additionally, within the relevant principles extracted from the authorities related to SCR 3.04(f) and SCR 84.12, it must be said that:-

.the plaintiff has been guilty of inordinate delay in seeking to attack all of the orders now sought to be impugned and there is no satisfactory explanation for such delay;
.the present action has clearly been instituted for the purpose of mounting a collateral attack on final decisions made by courts of competent jurisdiction in previous proceedings in which the plaintiff had adequate opportunity of ventilating the issues now sought to be canvassed, one of which was actually debated and decided adversely to him. (cf Hunter v Chief Constable of West Midlands Police & Ors [1982] AC 529 at 541, Saffron v Commissioner of Taxation (1991) 30 FCR 578 at 583, R v Balfour & Anor; ex parte Parkes Rural Distribution Pty Ltd (1987) 17 FCR 26 at 34); and
.the plaintiff is patently seeking, in part at least, impermissibly to invoke a civil process to address a criminal issue to which it is not applicable (R v Caruso (supra) ). It is fair to say that it was the reasoning in R v Caruso supra which probably prompted the legislature to enact s9A of the CLSA in 1994. The very presence of that section is the clearest possible indication on the part of the legislature that it accepted what fell from White J in R v Caruso (supra) and confirmed its intention that s9A ought to be the only mechanism by means of which final orders made in the criminal jurisdiction and not susceptible of appeal (or further appeal) can be varied.

It follows that the claims in question must also be rejected as unsustainable.
In the event the whole of the proceedings constituting action no 1510 of 1997 are untenable. There must be an order striking them out.
It is therefore unnecessary to address the merits of the plaintiff’s application that SCR 50 be applicable to them. That application must also be dismissed.
The plaintiff must pay the defendants’ costs in the action no 1510 of 1997 to be taxed, save and except any costs related to the amendment of the defendants’ application to amend. The defendants must pay to the plaintiff any costs thrown away by virtue of that amendment, to be taxed.
It only remains, then, to consider the application for judicial review which, as already emerges, is limited in its scope to an attempt to impugn the decision of the parole Board made on 20 May 1992.
In essence the relief sought is of the nature of certiorari to bring up and quash the relevant determination; and by way of mandamus to require the Parole Board to reconsider the matter according to law.
In prosecuting the proceedings the plaintiff needs to surmount two hurdles.
First, SCR 98.06 stipulates that, unless an extension of time is obtained, a summons for judicial review must be issued within six months from the date when grounds for the review first arose and shall, in all cases, be made as promptly as possible. The rationale for that rule is obvious. Where by reason of delay the resolution of the issue raised is academic or no longer of any real practical significance an extension will not normally be granted (La Roche & v Cormack & Ors (1991) 33 FCR 414).
In the instant case the delay is gross and, for reasons which have already emerged, the grant of relief would, in fact, avail the plaintiff nothing. The agreement made and accepted by Taylor DCJ in 1995, the new sentence imposed by him and what has followed since that time could not possibly be affected by any declared invalidity of the Parole Board determination.
Second, as earlier demonstrated, the grant of relief on an application for judicial review is discretionary. Particularly where there has been gross delay of the type here apparent, it would be unthinkable to grant the relief sought unless there was a proper and reasonable explanation for the delay in seeking the relief sought; a compelling basis for the grant of it; and it would produce some practical end result.
In my opinion none of these factors has been satisfied in the instant case.
In an affidavit sworn by the plaintiff at the eleventh hour, he seeks to explain his delay, in effect, by asserting that he has at all times insisted that his legal advisors take steps to impugn the Parole Board determination on the basis which he now propounds, but his instructions were ignored until he instructed his present counsel, Mr Mancini.
In my opinion these assertions ring hollow.
He was represented by experienced and competent counsel before the Board (who then raised some of the issues now relied upon) and he has, over time, been represented by other competent and experienced legal advisors. None of them initiated any steps to ventilate the matters now raised and they were not pursued at the time when Taylor DCJ accepted the express arrangement come to by the parties when he sentenced the plaintiff in 1995. Even more remarkable is the fact that, when he was before the Court of Criminal Appeal in 1997, Mr Mancini himself canvassed the detailed history of the situation and, despite the opportunity to do so, did not ventilate any of the concerns now sought to be litigated.
In all of the circumstances as I have earlier discussed them, it seems to me that the proceedings for judicial review are no less an abuse of process than the proceedings for declaratory relief.
Much of what I have already said is equally referable to this application as to its merits. Quite apart from the reasoning of Sellers LJ in Punton No 2, the fact is that the present application is belated in the extreme, it constitutes a classic case akin to approbation and reprobation, and it would achieve nothing by reason of the orders of successive Courts of Criminal Appeal which have succeeded the implementation of the Parole Board decision and were not dependant on it. I repeat, in practical terms, the plaintiff has acquiesced in the propriety of what was done by the Parole Board and has been content to allow all subsequent proceedings to go forward on that basis (cf Wormald Australia Pty Ltd v Industrial Commission of South Australia & Ors (1992) 58 SASR 447 and the authorities therein cited).
But, even if I am incorrect in that conclusion, it seems to me that the application is foredoomed to failure in any event. An order in the nature of certiorari will rarely be made in relation to concluded criminal processes (cf Clayton v Manos and Ralphs (1987) 45 SASR 347). It may only properly be made if the applicant can demonstrate one of the grounds adverted to by Wells J in R v O’Loughlin; ex parte Ralphs (1971) 1 SASR 219 at 289. (See also Dimitropolous v District Court of South Australia (Bleby J, 21 August 1998, S6836, unreported.)
In the instant case no real jurisdictional issue arose. If error was made, it occurred within jurisdiction. Moreover, the plaintiff has not demonstrated error on the face of the record, which is normally a pre-requisite to relief at the type here sought. In the instant case the record was the published decision of the Parole Board and not the transcript of proceedings before it. (Craig v State of South Australia (supra) at 603.) Certainly no issue of natural justice arose.
In essence the plaintiff impermissibly seeks what is tantamount to a right of appeal (which is denied by the relevant legislation) in relation to what are said to be erroneous inferences drawn by the Board from the relevant record of interview. These were inferences drawn against the background that the plaintiff had every opportunity to give additional exculpatory evidence and declined to do so. It was a classic situation in which reasoning of the nature of that adverted to in Weissensteiner v The Queen (1993) 178 CLR 217 was applicable.
I consider that, on any view, obvious inferences were open to the Board which could fairly found a conclusion that the relevant parole conditions had been breached.
Furthermore, even if that view be considered erroneous, I, once again, stress that any review of the decision would be profitless. By virtue of the agreement of the parties, the slate was wiped clean as of 22 April 1994. Any sentences imposed to run from or after that date were unaffected by what had gone before.
In the course of his submissions Mr Mancini sought to develop a veritable litany of criticisms of the processes and reasoning of the Parole Board.
In view of the conclusions to which I have come it is profitless to discuss all of these in detail. Suffice to say that I do not consider that there is sufficient substance in any of them to affect those conclusions.
I would only seek to refer, in a little more detail, to one aspect.
That relates to the issue of the alleged miscalculation by the Board of the unexpired period of the Board of the unexpired period of the plaintiff’s parole.
As I understand the plaintiff’s contention it is to this effect:-
At all material times from 1 February 1983 until 1 August 1994 and pursuant to Part VII of the Correctional Services Act, he was entitled to be credited with remissions and was so credited;

Contrary to the provisions of Part VII the remissions in question were not properly taken into account in relation to the non parole period and head sentence when the Board made its determination on 20 May 1992;

On applying the remissions in question the correct balance of unexpired parole should have been determined at 2 years, 4 months and 12 days; and, accordingly,

the plaintiff would have been entitled to be released on parole well prior to 12 January 1994.

I agree with Ms Bradsen that the critical provisions of the Correctional Services Act in force at the time of the Parole Board determination were in pari materia with those of the former Prisons Act 1936.
The correct construction and practical effect of those provisions was discussed by King CJ in The Queen v Harris (1984) 36 SASR 302. His judgment was concurred in by the other members of the court. In Hoare v The Queen (1989) 167 CLR 348 at 353 the High Court was content to proceed on the basis that Harris was correctly decided and also referable to the Correctional Services Act. Millhouse J was content to apply it in Summers v The State of South Australia (Millhouse J, 10 March 1998, S6576, unreported).
Mr Mancini made the bold submission that the views expressed by King CJ were mere obiter and incorrect, that I was not bound by them and that I ought to reject his reasoning. To state the proposition against the above background, regardless of whether the dicta of King CJ it were or were not obiter, is to reveal how untenable it is. In any event, with respect, I entirely agree with what fell from King CJ. It is the only rational and logical construction to be placed on the legislation.

The many New South Wales authorities referred to by Mr Mancini are not of assistance. They are the product of New South Wales legislation which is differently expressed.
Thus the fundamental plank of the plaintiff’s complaint falls to the ground.
There is simply no basis of merit or principle upon which I could grant an extension of time in relation to the application for judicial review, much less contemplate granting the relief claimed.
The application for an extension of time is refused.

[1998] SASC 6960

20 November 1998