Corrections Corporation of Australia Pty Ltd v Roddan
[2002] WASCA 106
•3 MAY 2002
CORRECTIONS CORPORATION OF AUSTRALIA PTY LTD -v- RODDAN [2002] WASCA 106
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 106 | |
| THE FULL COURT (WA) | 03/05/2002 | ||
| Case No: | FUL:131/2001 | 22 APRIL 2002 | |
| Coram: | ANDERSON J STEYTLER J WHEELER J | 22/04/02 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | CORRECTIONS CORPORATION OF AUSTRALIA PTY LTD LINDSAY GORDON RODDAN |
Catchwords: | Turns on own facts |
Legislation: | Bail Act 1982 Court Security and Custodial Services Act 1999 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : CORRECTIONS CORPORATION OF AUSTRALIA PTY LTD -v- RODDAN [2002] WASCA 106 CORAM : ANDERSON J
- STEYTLER J
WHEELER J
- Appellant (Defendant)
AND
LINDSAY GORDON RODDAN
Respondent (Plaintiff)
Catchwords:
Turns on own facts
Legislation:
Bail Act 1982
Court Security and Custodial Services Act 1999
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant (Defendant) : Mr P E Jarman
Respondent (Plaintiff) : In person
Solicitors:
Appellant (Defendant) : Jackson McDonald
Respondent (Plaintiff) : In person
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 ANDERSON J: I have had the advantage of reading in draft the judgment of Wheeler J which fully expresses my reasons for joining in the unanimous decision of the Court to dismiss this application for leave to appeal. I am not persuaded that Master Bredmeyer erred in dismissing the applicant's application for summary judgment. The dispute between the parties raises factual issues which cannot be disposed summarily by reading the opposing affidavits. The case also raises important questions concerning the proper construction of the Bail Act 1982. In short, I am not persuaded that there is no question which ought to be tried.
2 STEYTLER J: I have had the advantage of reading the reasons for decision of Wheeler J. They reflect my own reasons for joining in the order dismissing the application for leave to appeal. There is nothing I wish to add.
3 WHEELER J: At the hearing of this application for leave to appeal on 22 April, the court dismissed the application. These are my reasons for joining in the order dismissing that application.
4 The application related to a proposed appeal from orders made by Master Bredmeyer on 1 August 2001 dismissing the applicant's application for summary judgment. The application related to proceedings in which the respondent seeks damages, including exemplary and punitive damages, in respect of an allegation of unlawful imprisonment by the applicant on 6 November 2000 at the Central Law Courts for a period which can be variously calculated, but which may extend up to 55 minutes, following the rising of the court.
5 On 6 November 2000 the respondent was on trial at the District Court at the Central Law Courts. The applicant was a contractor pursuant to the Court Security and Custodial Services Act 1999 ("the CSCS Act") for the purpose of providing custodial services at the Central Law Courts. The respondent was on bail prior to the commencement of his trial. On the first day of that trial and immediately prior to the rising of the court, Judge Kennedy notified the respondent that the trial would resume the following day and apparently endorsed on his bail undertaking, pursuant to s 32(4) of the Bail Act 1982, a certificate showing details of the time of the resumed hearing of the trial and showing that she had so notified him. The following discussion took place between her Honour and counsel:
(Page 4)
- "KENNEDY DCJ: There is no jury so we don't need any of those normal conditions, but we need – has he got his surety here? Did he have his surety? It's a continuing – all right, you may not need it. You don't need your surety, so your bail is renewed on the same terms. Ms Boston, there has been apparently some talk about reporting and things of that nature. I know we haven't got a jury, but at this stage I'm concerned about keeping the witnesses and Mr Roddan at a distance from each other, and that's not criticising Mr Roddan. It may well be the witnesses for all I know.
All I want is peace in my courtroom and peace in the building and the best way at this – I know this is all 7 years ago, but the best way to ensure that is for them to have different entrances. Unfortunately the only way to ensure that is for Mr Roddan to come in through detention. So his bail conditions are that he reports to detention and that he remain there – and that can change as soon as we are finished with any controversial witnesses, but, until that is done, that is how it's to be.
...
KENNEDY DCJ: ... So my idea is to keep these people as far apart as possible. I'm not saying that either of them are to blame. It may well be that this far down the track nobody will be, but I just want peace in our time and that's to be achieved by keeping them as far apart as possible. She can't really be locked up, so at this stage Mr Roddan is to stay in – when he is here, he is to be in the detention area.
HOBSON, MR: Yes.
KENNEDY DCJ: Whether they can put him in the separate section or not I don't know. I wouldn't have thought he would be regarded as a risk.
HOBSON, MR: If Ms Crimmins was brought through detention, it wasn't put through the books or anything like that. It was just brought through the area.
KENNEDY DCJ: Yes.
HOBSON, MR: That's all it is.
(Page 5)
- KENNEDY DCJ: All right, yes. So long as we have that organised now and on the record and we will adjourn now until 10 o'clock in the morning."
6 The Master found that in the passage quoted above her Honour had imposed an additional bail condition which related to the respondent's reporting to detention.
7 The respondent's submissions on the hearing of this application challenged that finding, but I assume that it is correct for the purposes of this application.
8 The applicant urged that it was, or should have been, regarded as a finding that the condition was one which was to be fulfilled prior to the grant of bail; a distinction which has significance for the purpose of the procedures prescribed under the Bail Act. However, I do not accept that contention. It may be correct, but it seems to me that her Honour's observations are open to more than one view and, considering that she directed that " ... when [Mr Roddan] is here, he is to be in the detention area", which direction suggests that it was to be observed from day-to-day as the trial progressed, those remarks might be more readily understood as imposing a condition to be observed during the course of the respondent's bail. Her Honour's response to the comments of Mr Hobson, which tend to suggest that Mr Roddan may not need to be "put through the books" also give rise to a question as to whether the condition was one that he deliver himself into the custody of the applicant, or whether it was simply that he use the detention area as his entrance to the court; however this was not argued before us on the hearing of the application, and does not appear to have been raised before the Master, so that it is unnecessary to explore that issue further.
9 It appears that after these observations of her Honour were made, the dock guard gave the respondent a "pink slip" entitled "Notice to Defendant" and escorted him to the custody area. There appears to be some dispute about precisely what next occurred, but for the purposes of this application I accept the account of the order of events which is given by the deponents, whose affidavits were read before the Master by the applicant. It was not until the hearing of this application that the respondent condescended to any detail about his version of events, although he had before the Master relied upon an affidavit in which he generally indicated that he denied "many of the allegations" contained in those applicants' affidavits.
(Page 6)
10 The property officer on duty, an employee of the applicant, was one Ms Preston. She was given the pink slip but could not identify from this the bail conditions relating to the respondent's release. She said she asked the respondent for the paperwork he had been given by the court and he replied that his bail conditions were the same as before and he did not have to show her anything. She refused to release him and asked him to wait while she rang the court to confirm what he had said. She asked another officer to go back to the court and ask about the correct paperwork. A little later she counted out the respondent's property to him, including a large pile of cash, and gave it to him. He again asked to be released but she declined, saying that she must have some written proof from the court before she could release him. Another officer approached her and said words to the effect that he had just received a telephone call from the officer who had been sent to the court to enquire and that that latter officer had been told that the clerk of arraigns had said that the respondent's bail papers were in order and that he could be released. Ms Preston then telephoned the clerk of arraigns and was told words to the effect that the respondent had the correct bail form and that there were no other forms. The respondent's lawyer then spoke to officers of the applicant, requesting them to release the respondent but was advised that he would not be released until his papers were confirmed. One Ms Naylor, the "superior court co-ordinator" then telephoned the applicant's manager of the metropolitan courts and was told by him that he knew of Mr Roddan and that he was aware of the respondent's situation and that he should be released. He was then released.
11 The applicant relies on essentially four matters, three of which are interrelated. It is convenient to dispose first of the unrelated contention in the grounds of appeal that the Master erred in failing to infer from evidence as to the conduct of the respondent, which was deposed to in the applicant's affidavits, that the respondent's purpose in bringing his action was that of annoying or embarrassing the applicant, rather than the vindication of any legal right. The affidavits of the applicant, accepting them for the moment as accurate, suggest that the respondent was on the occasion in question rude, abusive and hostile. However, I am unable to see how it follows from such conduct that the respondent's purpose in bringing the action cannot be a purpose of vindicating a legal right. Indeed, it is possible to see some of the conduct, the subject of those affidavits, as a response, albeit not a measured and prudent one, to what the respondent then saw as denial or obstruction of his right to leave the detention centre. These are issues which in my view cannot be resolved upon the affidavit material.
(Page 7)
12 The applicant relies heavily upon r CSO8 of the Director General's Rules made pursuant to s 32 of the CSCS Act. It relevantly provides that:
"A person in custody who is to be discharged/released from custody, shall only be discharged/released when:
• ...
• on bail following an order authorising such release in accordance with the Bail Act 1982 after it is confirmed that the conditions relating to the release have been satisfied."
13 At the heart of the applicant's argument was the contention that only the form of certificate to authorise release from custody to be found at the duplicate of Form 6 of the Bail Act forms is capable of providing the confirmation of which the rule speaks. That proposition is not self-evident as a matter of construction of the rule. In particular, it appears to me to be at least arguable that a confirmation from the court officer, the clerk of arraigns, who was present in court at the time at which the bail conditions (if any) were set, might be capable of providing such confirmation. While the proposition advanced by the applicant is an arguable one, that view of the rule does not appear to me to be so compelling that the Master was required to accept it.
14 The written submissions dealing with ground 2 were centred upon the proposition that if at any time following the rising of the court, the respondent did have a right to be at liberty, any such right was subject to the limitation referred to in s 12 of the Bail Act. Section 11 of the Bail Act provides in subs (1) that where bail has been granted to a defendant and all conditions which are to be complied with before the release of the defendant have been complied with, and he has entered into a bail undertaking for that appearance or his bail undertaking is deemed to be amended pursuant to s 31(3), he has a "right to be at liberty". However, s 12 provides that:
"The right of a defendant ... to be at liberty as mentioned in section 11(1), and the corresponding duties created by this part, are limited so far as is reasonably necessary for the exercise or performance by any person of a statutory power or function vested in him which requires the continued custody of the defendant ... ".
(Page 8)
- However, this argument essentially comes back to the proposition that it was necessary for officers of the applicant to keep the respondent in custody until they were satisfied both that any conditions which were to be complied with before release had been complied with, and that there was a deemed amended bail undertaking pursuant to s 31. It was also suggested, although somewhat more faintly, that it was necessary for the respondent to remain in custody so that his property could be returned to him and the authority for his removal from the detention area should be recorded; it does not appear that these two matters could account for the entirety of the time in which the respondent was held in custody.
15 As is clear from its terms, s 12 directs attention to what is "reasonably necessary" for the performance of the applicant's functions. The question of what was reasonably necessary in all the circumstances of this case appears to me to be precisely the sort of issue which can only be determined after a trial establishing, inter alia, so far as possible, when and how officers of the appellant were advised of what orders had been made with respect to the respondent. It is also in this context that the observation of the learned Master, which is the subject of ground 3, appears to be relevant. The Master observed that notwithstanding that it was the applicant's argument that it was required to see the particular Form 6 before releasing the respondent, its officers had in the end released him without sighting that document. The applicant suggests that this observation was a reference to an irrelevant consideration, or that alternatively the Master placed excessive reliance on it. However, the fact that the officers of the applicant did release the respondent without viewing the form which, in its submission, was a prerequisite to his release, may be one factor which tends to suggest that it was not reasonably necessary for the exercise of the applicant's functions to keep the respondent in custody for the totality of the time prior to his release.
16 The question of s 11(2) of the Bail Act was raised by counsel for the applicant in the final minutes of his argument. It was not directly raised by any of the grounds of appeal. That subsection provides that, as soon as is practicable after a defendant becomes entitled to be at liberty as provided in subs (1), a person referred to in subs (2):
"shall, where the defendant is in custody in a lock-up or prison, forthwith deliver or cause to be delivered a certificate to that effect in the prescribed form to the person in charge of the lock-up or prison, and that person shall release the defendant from custody as soon as is practicable after he receives the certificate". (emphasis supplied)
(Page 9)
- It is argued by the applicant that this subsection demonstrates a statutory intention that a defendant in custody will be released, and will be released only, once the prescribed form has been delivered to the person in charge of the place of custody. Having regard to the scheme of the legislation, which I do not canvass in detail in these reasons, and having regard to the fact that one of the purposes of the Bail Act must be assumed to be that of ensuring that persons who are not properly able to be released remain in custody, for the protection of the community, one can see the force of this argument.
17 There is a difficulty for the applicant in the use of the term "lock-up or prison". It is common ground that the court custody centre at the Central Law Courts is not a prison. The term "lock-up" is defined in the Bail Act to include a place prescribed as a lock-up for the purposes of the CSCS Act. It is to be noted that the definition is inclusive, leaving open the possibility that some other place may be considered a lock-up. In the CSCS Act itself, a lock-up is defined to "mean" a place prescribed by the regulations to be a lock-up, and it is common ground that the relevant court custody centre was not so prescribed. However, the definition is expressed to be subject to s 6, which contains a definition of "non-prescribed lock-up", which expression simply means a lock-up other than a place prescribed by the regulations to be a lock-up. It was submitted on behalf of the applicant that the court custody centre in question might well be considered to be a non-prescribed lock-up. That is arguable, it appears to me. As a matter of ordinary meaning, my researches subsequent to the hearing of this application reveal that the Macquarie Dictionary describes a lock-up in its first sense as "a gaol, especially a local gaol to which offenders are taken before their first court hearing". The American work, Black's Law Dictionary (5th ed), rather suggests that the expression is more confined and may certainly apply to a court custody centre. It defines a lock-up as "a place of detention in a police station, court or other facility used for persons awaiting trial".
18 The argument raised by the applicant in this respect therefore seem to have merit. However, it was not specifically made the subject of any ground of appeal. It was not adverted to in the written submissions of the applicant as a matter to be relied upon, and it was apparently not argued before the Master. It appears to me that it would not be just in those circumstances to permit the applicant to rely upon this argument for the first time at the hearing of its application for leave to appeal. It is my view that a considerably more detailed examination of the place of s 11(2) in the statutory framework, together with consideration of the materials, if there be any, indicating in what sense the term "lock-up" has been used at
(Page 10)
- common law or in the statutes of this States, in the context of a hearing in which that issue was squarely raised, on notice to the respondent, would be necessary before it would be appropriate to strike out the respondent's claim based upon that point.
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