Johnson v Eastman - [2009] ACTCA 8

ANTHONY JAMES JOHNSTON, THE SUPERINTENDENT OF THE BELCONNEN REMAND CENTRE v DAVID HAROLD EASTMAN;
ANTHONY JAMES JOHNSTON, THE SUPERINTENDENT OF THE BELCONNEN REMAND CENTRE v THE HONOURABLE TERENCE JOHN HIGGINS and DAVID HAROLD EASTMAN
[2009] ACTCA 8 (22 May 2009)

SUPREME COURT – making of non-removal orders – whether there is power in Supreme Court to make orders directing a convicted prisoner to be held in Belconnen Remand Centre pending an imminent hearing of a criminal proceedings in the Court of Appeal – whether there is similar power in respect of imminent hearing of civil proceedings in Supreme Court or in the Court of Appeal - whether the making of the non-removal order was necessary for the administration of justice - whether the power to make a non-removal order can be exercised only when not to exercise it would result in the destruction of the subject matter of the proceeding – held that the Court does have power to make a non-removal order – held that the sufficiency of evidence to establish the need for the making of a non-removal order was not the subject of any ground of appeal – appeals dismissed.

ADMINISTRATIVE LAW – orders made by a single judge exercising the jurisdiction of the Court of Appeal – application to Court of Appeal to discharge those orders – basis of application for discharge is that the Court constituted by the single judge lacked power to make the non-removal orders – application for discharge of orders is in reality an appeal - held that any appeal to the Court from an order of a single judge exercising the jurisdiction of the Court of Appeal is incompetent.

Administrative Decisions (Judicial Review) Act 1989 (ACT)
Australian Capital Territory (Self-Government Act) 1988 (Cth) s 48A
Corrections Management Act 2007 (ACT)
Crimes Act 1900 (ACT) s 424
Crimes (Sentence Administration) Act 2005 (ACT)
Remand Centres Act 1976 (ACT) (repealed)
Removal of Prisoners Act 1968 (ACT) (repealed)
Sentencing Legislation Amendment Act 2006 (ACT) ss 604, 605
Supreme Court Act 1933 (ACT) s 20

Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Eastman v Minister for Corrective Services (2004) 181 FLR 447
John Fairfax and Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465
Masoud v The Queen [2000] FCA 435
Mastipour v Secretary, Department of Immigration and Multicultural and Indigenous Affairs & Ors (2004) 140 FCR 137
Tait v The Queen (1962) 108 CLR 620
The Mardina Merchant [1975] 1 WLR 147

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 34-2007
No. SC 316 of 2007

No. ACTCA 41-2007
No. SC 316 of 2007

No. ACTCA 44-2007
No. SC 754 of 2007

No. ACTCA 45-2007
No. SC 664 of 2007

Judges: Spender, Ryan and Stone JJ
Court of Appeal of the Australian Capital Territory
Date: 22 May 2009

IN THE SUPREME COURT OF THE     )          No. ACTCA 34 of 2007
  )          No ACTCA 41 of 2007
AUSTRALIAN CAPITAL TERRITORY           )          No SC 316 of 2007
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ANTHONY JAMES JOHNSTON, THE SUPERINTENDENT OF BELCONNEN REMAND CENTRE
Appellant

AND:DAVID HAROLD EASTMAN
Respondent

IN THE SUPREME COURT OF THE     )          No. ACTCA 44 of 2007
  )          No. SC 754 of 2007
AUSTRALIAN CAPITAL TERRITORY           )          No ACTCA 45 of 2007
  )          No SC 664 of 2007

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ANTHONY JAMES JOHNSTON, THE SUPERINTENDENT OF BELCONNEN REMAND CENTRE
Appellant

AND:THE HONOURABLE TERENCE JOHN HIGGINS
First Respondent

AND: DAVID HAROLD EASTMAN Second Respondent

ORDER

Judges:  Spender, Ryan and Stone JJ
Date:  22 May 2009
Place:  Melbourne (Heard in Canberra)

THE COURT ORDERS THAT:

The appeals in ACTCA 34 of 2007, ACTCA 41 of 2007, ACTCA 44 of 2007, and ACTCA 45 of 2007 be dismissed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 34 of 2007
  )          No ACTCA 41 of 2007
AUSTRALIAN CAPITAL TERRITORY           )          No SC 316 of 2007
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ANTHONY JAMES JOHNSTON, THE SUPERINTENDENT OF BELCONNEN REMAND CENTRE
Appellant

AND:DAVID HAROLD EASTMAN
Respondent

IN THE SUPREME COURT OF THE     )          No ACTCA 44 of 2007
  )          No SC 754 of 2007
AUSTRALIAN CAPITAL TERRITORY           )          No ACTCA 45 of 2007
  )          No SC 664 of 2007

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ANTHONY JAMES JOHNSTON, THE SUPERINTENDENT OF BELCONNEN REMAND CENTRE
Appellant

AND:THE HONOURABLE TERENCE JOHN HIGGINS
First Respondent

AND: DAVID HAROLD EASTMAN Second Respondent

Judges:  Spender, Ryan and Stone JJ
Date:  22 May 2009
Place:  Melbourne (Heard in Canberra)

REASONS FOR JUDGMENT

THE COURT:

In the various proceedings before this Court, the Superintendent of the Belconnen Remand Centre seeks an adjudication (as formulated by Dr M Perry QC, his senior counsel, in her final submissions), “upon whether he was lawfully restrained from returning Mr Eastman to New South Wales”.

That simple formulation of the question is bedevilled by the fact that over a period from June 2007 to November 2007, in various proceedings in the Supreme Court of the Australian Capital Territory, in the Court of Appeal of the Australian Capital Territory, and in the Federal Court of Australia, a series of “non-removal orders” were made by Higgins CJ, in the context of pending hearings in those various courts, ordering Mr Eastman, a convicted and sentenced prisoner by the ACT Supreme Court, to be held in the Belconnen Remand Centre.

As Dr Perry informed the Court:

“During the time that the non-removal orders were being made Mr Eastman had some seven different proceedings spread across three different courts. Non-removal orders were made in each of these at various times, as well as in appeal and review proceedings brought by the Superintendent, and rarely with notice that the matter in which the order was to be made was even to be listed. Non-removal orders were ultimately made on a total of seven different occasions and in total 17 orders were made.”

Because of the nature of the material before the Court, it is difficult to identify:

(i) what orders in what matters are in fact the subject of challenge in this Court;
(ii) whether the challenge is based on an absence of power, or a misapplication of power;
(iii)what were the reasons for making the orders the subject of challenge, because no reasons were given or sought, with the consequence that the argument for the Superintendent was based on observations and discussions in the various transcripts of proceedings. Each proceeding, on its face, was related to a particular matter, but the orders made frequently extended beyond that matter to other matters; and

(iv) what relief the Superintendent seeks.

It is thus necessary to trawl at length through extensive and quite disparate material in an attempt to get a coherent view of what precisely is being sought, and on what basis.

At the outset, it has to be said that any attempt by a judge sitting alone to deal concurrently with proceedings in multiple courts, such as the Supreme Court of the Australian Capital Territory (the ACT), the Court of Appeal of the ACT, and the Federal Court of Australia is pregnant with difficulty and a substantial risk of confusion and uncertainty, as these proceedings amply demonstrate.

Further, the same difficulties attend an appellate court which is asked to sit as a Court of Appeal of the ACT in some matters, and as a Full Court of the Supreme Court of the ACT in others.

Proceedings in the Court of Appeal on 5 December 2007

The starting point in seeking to identify what matters are the subject of the present proceedings is a transcript of proceedings in the Court of Appeal of the ACT on 5 December 2007. The transcript bears the numbers CA No 34 and 41 of 2007. The Court of Appeal was constituted by Madgwick, Gyles and Marshall JJ. The transcript records that Dr Perry announced her appearance with Mr DJC Mossop for the Superintendent of the Belconnen Remand Centre. The matters in which Dr Perry appeared were not identified. Mr Eastman announced that he was appearing for himself, and Mr Glover announced that he was appearing in “matters No 44 and 45 and the related matters SC 664 and SC 754” and said that “the first defendant” submits in relation to all of those matters except as to costs. The presiding judge, Madgwick J, asked Mr Eastman whether he intended taking an active role in the proceedings. Mr Eastman responded that his initial application was that he be removed as a respondent and, that, alternatively, he would submit to the jurisdiction of the Court save as to costs and seek leave of the Court to withdraw. He acknowledged that he was the subject or beneficiary of one of the directions, which was still in force until the following day, 6 December 2007. Madgwick J indicated that “… you’ve been given leave to withdraw and … there’ll be no question of you paying any costs”. Mr Eastman then received permission to withdraw, which he did.

Madgwick J then raised with Dr Perry the Court’s concern:

“…that this is an important case concerning the powers of the court and, as your detailed submissions suggest, not free of some possible complexity.”

His Honour continued:

“It’s clearly an important matter and clearly you seem to have done everything you can to get the matter on quickly and we would not be inclined to refuse leave on any technical basis where the orders might be met or anything of the kind, it could not be determined but we think it’s very unsatisfactory that the matter should be determined without the court having the advantage of capable argument in contradiction of your submissions.”

After an adjournment, Dr Perry announced that the Australian Government Solicitor would be happy to cover the reasonable costs of senior and junior counsel to appear as amici curiae. Madgwick J then said:

“Ms Perry, on the way down here, Gyles J suggested perhaps we ought not grant you the leave formally because submissions might be made that ultimately that it’s inappropriate but in order to try and progress the matter to some extent, the order we should probably make is that insofar as leave is necessary for any of these appeals or other proceedings to proceed, leave will be granted but that grant might be revisited in the light of any submissions made urging a revisitation. Yes, that’s the order of the Court.” (Emphasis added).

Dr Perry then said:

“… there are a couple of other matters that it might be well perhaps to address as well in orders. The first is that perhaps an order that all of the appeals and the applications for judicial review be heard together by this court also constituted as a full court of the Supreme Court … and the second order we’d seek is that the three affidavits sworn by Peter Garrison be taken together as the appeal books in each appeal. The orders have been made that the first two affidavits sworn by him be taken as the appeal books and it seemed to be a convenient way to proceed.” (Emphasis added).

Madgwick J said:

“Yes, all right. We’ll so order.”

The Orders of the Court of Appeal

On the first day of the hearing of the present matters, the Court was handed copies of orders of the Court of Appeal of 5 December 2007, in ACTCA 34 of 2007, ACTCA 41 of 2007, and ACTCA 44 of 2007. Those orders (and presumably the orders made in ACTCA 45 of 277) reflected the orders orally pronounced by Madgwick J. There was no direction by the Court of Appeal that any Draft Notices of Appeal exhibited to the affidavits of Mr Garrisson stand as the Notice of Appeal in respect of which leave had been granted.

The copy of the perfected orders of the Court of Appeal of 5 December 2007 in proceedings ACTCA 34 recited:

“No. ACTCA 34 of 2007
Appeal from Chief Justice Higgins
ANTHONY JAMES JOHNSTON, THE SUPERINTENDENT OF THE BELCONNEN REMAND CENTRE
Applicant
DAVID HAROLD EASTMAN
Respondent
Date of order:            5 December 2007
Judge:The Honourable Justices Madgwick, Gyles and Marshall
Originating process:    Application for leave to appeal dated 24 September 2007
How obtained:            Hearing of application for leave to appeal on 5 December 2007
Attendance:                 Dr M Perry of Queen’s counsel [sic] and with her Mr DJC Mossop of counsel for the applicant
Mr Eastman the respondent in person

The Court orders that:
1.         Insofar as leave is necessary, leave to appeal against the orders of Chief Justice Higgins made on 17 September 2007 is granted, but this leave may be re-visited following any submissions regarding such re-visitation.
2.         All appeals and Applications for judicial review be heard [together].
3.         The 3 affidavits of Peter Garrison be taken as the appeal books in each appeal
4.         The matter be listed for directions before the Honourable Justice Gyles at 10.00 am on 13 December 2007.”

The copy of the perfected orders of the Court of Appeal of 5 December 2007 in proceedings ACTCA 41 of 2007 indicates that ACTCA 41 of 2007 was between the same parties, and with the same attendances, and was in similar terms, except that the originating process was referred to as “application for leave to appeal dated 25 October 2007” and the first of the Court orders referred to “orders of Chief Justice Higgins made on 18 October 2007”.

The copy of the perfected orders of the Court of Appeal of 5 December 2007 in proceedings ACTCA 44 of 2007 was in these terms:

“No. ACTCA 44 of 2007
Appeal from Chief Justice Higgins
(SC 754 of 2007)
ANTHONY JAMES JOHNSTON, THE SUPERINTENDENT OF THE BELCONNEN REMAND CENTRE
Applicant
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
First Respondent
DAVID HAROLD EASTMAN
Second Respondent
Date of order:             5 December 2007
Judge:The Honourable Justices Madgwick, Gyles and Marshall
Originating process:    Application for leave to appeal dated 20 November 2007
How obtained:            Hearing of application for leave to appeal on 5 December 2007
Attendance:                 Dr M Perry of Queen’s counsel [sic] and with her Mr DJC Mossop of counsel for the applicant
Mr Eastman the respondent in person
Mr T Glover for the Registrar of the Supreme Court

The Court orders that:
1. Insofar as leave is necessary, leave to appeal against the orders of Chief Justice Higgins made on 17 November 2007 [sic, should be 13 November 2007] is granted, but this leave may be re-visited following any submissions regarding such re-visitation.
2. …”

The orders of the Court of Appeal in ACTCA 45 of 2007 was not put before this Court, but the assumption we have to make is that it was between the same parties as in ACTCA 44 of 2007, was in terms similar to the orders in ACTCA 44 of 2007, but related to proceedings SC 664 of 2007, and was directed to “the Orders of Chief Justice Higgins made on 13 November 2007”.

The Notices of Appeal

On 13 February 2008, on the second day of the hearing in this Court, the Superintendent was granted leave to file in the Court, Notices of Appeal in ACTCA 34 of 2007, ACTCA 41 of 2007, ACTCA 44 of 2007, and ACTCA 45 of 2007.

The Notice of Appeal in ACTCA 34 of 2007, filed by leave on 13 February 2008, is as follows:

“No ACTCA 34 of 2007
Appeal from Chief Justice Higgins (SC316 of 2007)
ANTHONY JAMES JOHNSTON, SUPERINTENDENT OF BELCONNEN REMAND CENTRE
Appellant
DAVID HAROLD EASTMAN
Respondent
1. On 17 September 2007, Chief Justice Higgins made the following order:
(a) That David Harold Eastman is to be held in the Belconnen Remand Centre until 29 October 2007.

2. The appellant appeals from the order.
3.The appellant will not seek to put further evidence before the Court of Appeal.

4.         The grounds of the appeal are:
(a)       His Honour erred in making an order that the Court did not have power to make.
(b)       His Honour erred in acting on the basis that an interlocutory application did not need to be made in the context of any particular proceedings in the Court (Transcript of hearing before Higgins CJ on 17 September 2007 (“T”), 41 lines 12-35).
(c)       His Honour erred in acting on the basis that the Court had an “unlimited jurisdiction with respect to matters before it” (T42 line 29), subject to the matters referred to at T45 lines 11-13.
(d)       His Honour erred in holding that the Court had power, in aid of any case before it, to make any order which could be logically related to the case (T44 lines 2-4).
(e)       His Honour erred in acting on the basis that the respondent was “a prisoner who is in the custody of the court” (T45 lines 14-15).
(f)        His Honour erred in acting on the basis that the Court had a general power to regulate, by interlocutory orders, the custody of convicted prisoners because they were litigating before the Court (T50 lines 3-9).
(g)       His Honour erred in acting on the basis that the existence of rule 5535 indicated that the Court had power to make a orders of that kind pursuant to its inherent powers (T57 lines 1-3).

5.         The orders sought are:
(a)       The Appeal be allowed with costs:
(b)       His Honour’s order that David Harold Eastman be held at the Belconnen Remand Centre until 29 October 2007 be set aside;
(c)       A declaration that the said Order is invalid, or, in the alternative, void and of no legal effect.
…”

It is to be noted that the Notice of Appeal indicates that Appeal No ACTCA 34 of 2007 is an appeal from the order of Higgins CJ in SC 316 of 2007 made on 17 September 2007 that Mr Eastman be held in the Belconnen Remand Centre until 29 October 2007. It is also to be noted that the Grounds of Appeal are based on what is said to be inferred from statements made by the Chief Justice as recorded in the transcript of the hearing before him on 17 September 2007.

The Notice of Appeal in ACTCA 41 of 2007 refers to “SC 316 of 2007” (the orders of the Court of Appeal of 5 December 2007 in those proceeding are silent as to the proceeding before the primary judge to which the orders relate), and is between the same parties as, and is in similar terms to, the Notice of Appeal in ACTCA 34 of 2007, except that it commences:

“1. On 18 October 2007, the Chief Justice Higgins made the following order:
(a) That David Harold Eastman is to be held in the Belconnen Remand Centre until 23 November 2007 or further order.”

And the Grounds of Appeal commence:

“4.      The grounds of appeal are:
(a)       His Honour erred in making an order that the Court did not have power to make.
(b)       In making the order his Honour acted on the same basis as he had in making his order on 17 September 2007 and in doing so erred as follows: …”

The grounds of appeal then set out are labelled grounds (i) to (vi), which are exactly the same grounds labelled (b) to (g) in the Notice of Appeal in ACTCA 34 of 2007. The order 5(b) sought in ACTCA 41 is:
“(b) His Honour’s order that David Harold Eastman be held at the Belconnen Remand Centre until 23 November 2007 be set aside;”
The Notice of Appeal in ACTCA 44 of 2007, which refers to “SC 754 of 2007” (like the orders of the Court of Appeal of 5 December 2007 in those proceedings), is between Anthony James Johnston, the Superintendent of the Belconnen Remand Centre as Appellant, Supreme Court of the Australian Capital Territory, First Respondent, and David Eastman as Second Respondent, and the Grounds of Appeal are in similar terms to the Notice of Appeal in ACTCA 41 of 2007, except that it commences:

“1. On 13 November 2007, Chief Justice Higgins made the following order:
(a) That David Harold Eastman is to be held in the Belconnen Remand Centre until 6 December 2007 or further order.”

And the Grounds of Appeal commence:
“4.      The grounds of appeal are:
(a)       His Honour erred in making an order that the Court did not have power to make.
(b)       In making the order his Honour acted on the same basis as he had in making his order on 17 September 2007 and 18 October 2007 and in doing so erred as follows:
…”

And then set out are grounds (i) to (vi) as contained in the Notice of Appeal in ACTCA 41 of 2007. The order 5(b) that is sought in ACTCA 44 of 2007 is:
“(b) His Honour’s order that David Harold Eastman be held at the Belconnen Remand Centre until 6 December 2007 be set aside;”
The Notice of Appeal in ACTCA 45 of 2007 refers to proceeding SC 664 of 2007 and is in the same terms as the Notice of Appeal in ACTCA 44 of 2007, except that it commences:

“1. On 13 November 2007, Chief Justice Higgins made the following order:
(a) That David Harold Eastman is to be held in the Belconnen Remand Centre until 6 December 2007.

The order 5(b) of the orders sought is:
“(b) His Honour’s order that David Harold Eastman be held at the Belconnen Remand Centre until 6 December 2007 be set aside;”

“Appeal Books”

Each of the orders of the Court of Appeal in proceedings ACTCA 34, 41, 44 and 45 of 2007 ordered “The 3 affidavits of Peter Garrison be taken as the appeal books in each appeal”. There was no reference to what was to constitute the “appeal books” on any application for judicial review, or on any application to discharge orders made by the Chief Justice.

The first of those affidavits was sworn by Peter John Fawckner Garrisson, the Chief Solicitor of the ACT Government Solicitor, on 22 September 2007. The affidavit was in support of an application for leave to appeal, and says:

“2. I swear this affidavit in support of the application for leave to appeal from the order made by Chief Justice Higgins on 17 September 2007 that David Harold Eastman be detained at the Belconnen Remand Centre until 29 October 2007 and an application for directions that the application for leave to appeal be expedited.”

That affidavit is blank as to the ACTCA proceedings in which it was filed, but the “Appeal Book” it constitutes refers to ACTCA 34 of 2007. There is no material to indicate when it was filed.

Mr Garrisson said, under the heading “Nature of the case and question involved”:
“3. The application arises from an interlocutory order of Chief Justice Higgins made on 17 September 2007 that the respondent be detained in the Belconnen Remand Centre in the ACT until 29 October 2007.
4. The order was made, inter alia, in a matter being an application, by Mr Eastman under s 424 of the Crimes Act 1900. Section 424 allows for the Supreme Court to make an order directing an inquiry into a conviction in certain specified circumstances. Proceedings on such an application are not judicial proceedings: Crimes Act 1900 s 424(4). The question that would be involved in an appeal is whether, or to what extent, the Court has power in such proceedings to make interlocutory orders pursuant to its inherent powers determining where a prisoner is detained for the purpose of facilitating the conduct of proceedings by the prisoner in the Court.” (Emphasis added).
It is important to note that the contemplated appeal (ACTCA 34 of 2007) is whether, in proceedings for a s 424 inquiry, the Court had inherent power to make the order on 17 September 2007 that Mr Eastman be detained at the Belconnen Remand Centre until 29 October 2007.

The Draft Notice of Appeal which was exhibit PG1 to Mr Garrisson’s affidavit of 22 September 2007 is in the same terms as a Notice of Appeal in ACTCA 34 filed in this Court by leave on 13 February 2008.

The first affidavit of Mr Garrisson exhibits various transcripts of proceedings:

(i) Transcript of proceedings on 28 June 2007. Mr Garrisson says in respect of this transcript:

“17. On 28 June 2007, Mr Eastman’s Report Appeals ACTCA 13 and 14 of 2007 and ACTCA 14 of 2006 were listed before Chief Justice Higgins for directions. Mr Eastman made an application seeking an order that he be kept at the Belconnen Remand Centre at least until the hearings of the Housing Appeal SCA 40 of 2007 and the Report Appeals ACTCA 13 and 14 of 2007 and ACTCA 14 of 2006.
18. At the conclusion of the hearing on that day Chief Justice Higgins directed that Mr Eastman be held at the Belconnen Remand Centre in the ACT up to and including 1 August 2007. Leave was given to the Superintendent of the Belconnen Remand Centre to intervene should the Superintendent think it appropriate to do so.…”

(ii) Transcript of proceedings on 1 August 2007. Mr Garrisson says concerning this transcript:

“22. On 1 August 2007, the Housing Appeal SCA 40 of 2007 was also listed before Chief Justice Higgins. The Chief Justice extended the direction (that had been made in the Report Appeals ACTCA 13 and 14 of 2007 and ACTCA 14 of 2006 on 28 June 2007) that Mr Eastman be held at the Belconnen Remand Centre until 10 August 2007. …”

(iii) Transcript of proceedings on 9 August 2007. Mr Garrisson says concerning this transcript:

“24. On 9 August 2007, I received notice that the Supreme Court wished to list the Housing Appeal SCA 40 of 2007 for directions before Chief Justice Higgins that day.
25. When the Housing Appeal came on before Chief Justice Higgins on 9 August 2007, Mr Mossop appeared on behalf of the ACT Commissioner for Housing and Mr Eastman appeared in person. As appears from the transcript, the Conviction Appeal ACTCA 26 of 2007 was the matter that was called upon. Mr Mossop then appeared for the Superintendent and I took steps to notify the DPP that the matter was before the Court. Orders were made by the Chief Justice in the Conviction Appeal ACTCA 26 of 2007 proceedings that Mr Eastman be held at the Belconnen Remand Centre until 31 August 2007. Directions were also made regarding the filing of submissions on behalf of the Superintendent who sought to intervene and be heard on the question of Mr Eastman’s continuing custody at the Belconnen Remand Centre. …”

(iv) Transcript of Proceedings on 23 August 2007. Mr Garrisson says, in relation to this transcript:

“26.     On 21 August 2007, submissions were filed in the Conviction Appeal ACTCA 26 of 2007 proceedings on behalf of the Superintendent pursuant to the direction made on 9 August 2007.
27.       On Monday 20 August 2007, I received notice from the Listing Clerk of the Supreme Court that the Court had received an affidavit from Mr Eastman relating to conduct of officers at the Belconnen Remand Centre.
28.       The Supreme Court listed the Conviction Appeal ACTCA 26 of 2007 proceedings before Chief Justice Higgins on 23 August 2007. Dr M Perry QC with Mr D Mossop appeared in person. Mr Refshauge SC appeared as the ACT Director of Public Prosecutions. At the conclusion of the hearing the Chief Justice made [orders] …”

The orders made by the Chief Justice on 23 August 2007 are:

“The Court orders that:
1          Mr Eastman is not to be transported in the same compartment as any other prisoner or detainee other than a prisoner to whom he consents to be so transported
2          The following officers be prevented from interacting with Mr Eastman save in an emergency: Officers Wickham, Kemp, Pedlingham and Baineham except in an emergency.
3          The special filming of Mr Eastman be suspended.
And the Court directs that:
4          Liberty to apply at 48 hours notice (excluding weekends) for further directions.
5          On the question of contempt – allow directions for that complaint to be heard on 31 August 2007.
6          The video documents in the list handed up by Mr Eastman copy of which is annexed be preserved
7          A copy of this order be provided to Mr Eastman.”

Those orders were made in proceedings ACTCA 26 of 2007.

(v) Transcript of Proceedings on 17 September 2007. In relation to this transcript, Mr Garrisson says:

“30. On 17 September 2007 Mr Eastman applied to Chief Justice Higgins for directions seeking an extension of the order detaining him at the Belconnen Remand Centre.”

Mr Eastman’s written application for directions on 17 September 2007 is dated 12 September 2007, and headed “Directions Hearing before Chief Justice Higgins 4.00 pm 17-9-07”, and the body of the letter says:

“2.      This is to confirm my request for a directions hearing before Chief Justice Higgins to enable me to raise the following matters:-
(a)       Extension of the primary and ancillary orders previously made by His Honour.
(b)       Clarification of the outcome of His Honour’s consultation with Justice Besanko pursuant to sect. 7 of the A.C.T. Supreme Court Act 1933.”

The letter does not identify the proceedings in which the directions hearing was sought.

The second affidavit of Mr Garrisson was sworn on 24 October 2007. It bears the number ACTCA 41 of 2007, and a filing date stamp of the ACT Court of Appeal of 25 October 2007. Paragraphs 3, 4, 5 and 6 of that affidavit state:

“3.I swear this affidavit in support of the application for leave to appeal from the order made by Chief Justice Higgins on 18 October 2007 that David Harold Eastman be detained at the Belconnen Remand Centre until 23 November 2007 and an application for the leave to appeal to be expedited and heard at the same time or immediately following the appeal in matter ACTCA 34 of 2007.
4.The nature of and issues involved in this case relate to the extent of the inherent powers of the Supreme Court and whether those powers include the power to make orders in relation to which correctional facility a prisoner who is litigating in the Court should be detained.
5.Leave to appeal should be given as the decision and order made by Chief Justice Higgins raises significant issues as to the extent of the inherent powers of the Supreme Court and whether those powers include making orders in relation to the place of detention of prisoners.
6.The grounds for expediting the appeal so that it is heard on 5 December 2007 at the same time or immediately following the appeal in ACTCA 34 of 2007 are that the appeal and application for leave to appeal raise the same issues as are raised in matter ACTCA 34 of 2007.” (Emphasis added).

Paragraph 4 of that affidavit indicates that that proposed appeal, ACTCA 41 of 2007, relates to whether the inherent powers of the Supreme Court include the power “to make orders in relation to which correctional facility a prisoner who is litigating in the Court should be detained” (Emphasis added). There is no specification of the litigation to which the order is said to relate.

In that second affidavit, Mr Garrisson deposes:
“7.On 18 October 2007 Mr Eastman applied to Chief Justice Higgins for directions seeking an extension of the order detaining him at the Belconnen Remand Centre. …”
Mr Eastman’s letter of application is exhibited to that affidavit:
“No. ACTCA 26/07
CONTEMPT OF COURT ORDER NO. 2
1.         I refer to Order No. 2 made in the above case by His Honour Chief Justice Higgins on 17-9-07, and to the attached affidavit.
2.         Since that order was made, some officers have engaged in conduct clearly designed to interfere with my legal preparations. As such, this conduct constitutes an attempt to undermine the evident purpose of Order No. 2, and amounts, in my submission, to contempt of court. I request to raise this issue on 19-10-07 before His Honour please.
3.         On the same day, I intend to apply for the Order to be extended to 23-11-07, to cover the hearing of my appeal in the Federal Court in No. ACT G66/95 please.” (Emphasis added).
That letter identifies the proceedings as ACTCA 26 of 2007, and also seeks an extension “to cover the hearing of the appeal” in the Federal Court.

The second affidavit records that on 18 October 2007, “… Chief Justice Higgins made an order that Mr Eastman be held at the Belconnen Remand Centre until 23 November 2007”, which was Mr Eastman’s requested date for “the hearing of my appeal in the Federal Court in No ACT G66/95”.

The third affidavit of Mr Garrisson was sworn on 20 November 2007. The affidavit is headed “No ACTCA 45 of 2007, Appeals from Chief Justice Higgins (SC 664 of 2007)”. That affidavit bears an ACT Court of Appeal filing date of 20 November 2007.

Paragraphs 2 to 6 of that affidavit state:
“2.I refer to my earlier affidavits sworn on 22 September 2007 in proceedings ACTCA 34 of 2007 and sworn on 24 October 2007 in proceedings ACTCA 41 of 2007. This affidavit is supplementary to my earlier affidavits and I seek leave to rely upon those affidavits in support of these applications.
3.I swear this affidavit in support of the applications for leave to appeal from the orders made by Chief Justice Higgins on 13 November 2007 in matters SC 664 of 2007 and SC 754 of 2007 that David Harold Eastman be detained at the Belconnen Remand Centre until 6 December 2007 and the applications for the leave to appeal to be expedited and heard at the same time or immediately following the appeal in matters ACTCA 34 of 2007 and ACTCA 41 of 2007.
4.The issue involved in these cases relates to the extent of the inherent powers of the Supreme Court and, in particular, whether those powers include the power to make orders in relation to which correctional facility a prisoner who is litigating in the Court should be detained.
5.Leave to appeal should be given as the decision and order made by Chief Justice Higgins raises a significant issue as to the extent of the inherent powers of the Supreme Court and whether those powers include making orders in relation to the place of detention of prisoners.
6.The ground for expediting the appeals so that they are heard on 5 December 2007 at the same time or immediately following the appeals in ACTCA 34 of 2007 and ACTCA 41 of 2007 are that the appeals and applications for leave to appeal raise the same issue as is raised in matters ACTCA 34 of 2007 and ACTCA 41 of 2007.” (Emphasis added).
That affidavit again describes the issue as “the extent of the inherent powers of the Supreme Court and, in particular, whether those powers include the power to make orders in relation to which correctional facility a prisoner who is litigating in the Court should be detained”, although par 3 of that third affidavit refers to the orders on 13 November 2007 as having been made “in matters SC 664 of 2007 and SC 754 of 2007”.

The various non-removal orders of the Chief Justice

The affidavit of 22 September 2007 of Mr Garrisson, the first affidavit, exhibits only one order, being an order dated 23 August 2007, earlier referred to in [36 (iv)].

That order bears proceeding number ACTCA 26 of 2007, the parties being David Harold Eastman as appellant and the Director of Public Prosecutions as respondent. ACTCA 26 of 2007 is the application for leave to appeal to the ACT Court of Appeal against Mr Eastman’s original conviction for murder.

The proceedings are said to be “an application for leave to appeal out of time on 27 July 2007”, and refers to an application hearing on 9 August 2007.

Mr Garrisson’s third affidavit of 20 November 2007 exhibits a number of orders.

The first of them is in proceedings ACTCA 26 of 2007, between David Harold Eastman, appellant, and the Queen, respondent. The order bears the date 17 September 2007, and is entered on that date, and bears the seal of the Supreme Court of Australian Capital Territory.

That order recites:

“The Court orders that:
1.The Superintendent’s oral application that the Chief Justice recuse himself from hearing this directions matter be refused.
2.The direction, initially made on 28 June 2007, that Mr Eastman be held in the ACT Remand Centre, be extended to 29 October 2007, subject to the right of the superintendent to make application should it prove to be administratively impractical or any other reason that would seem sufficient to make application to vary the direction.
3.Orders 1, 2 and 3 made herein on 23 August 2007, copy of which is attached, are vacated, and restated as recommendations under the Remand Centres Act 1976 Section 14A.

4. The parties are granted liberty to apply.
5.Order 2 above is made also in respect of the matter of the appellant’s application for an inquiry under section 424 of the Crimes Act and Federal Court proceedings ACT G 66/1995.

And the Court notes that:
6.Order 2 made herein on 23 August 2007 which is now a recommendation pursuant to Order 3 above, was, and is, intended to be directed to the superintendent of the ACT Remand Centre.”

The application by Mr Eastman for an inquiry under s 424 of the Crimes Act 1900 (ACT) (Crimes Act) is ACT Supreme Court proceeding 316 of 2007.

This order is important, because it is the subject of appeal ACTCA 34 of 2007.

The order by Chief Justice Higgins on 17 September 2007, that his order that Mr Eastman be held in the ACT Remand Centre be extended to 29 October 2007, was made in three proceedings. First, ACTCA 26 of 2007, Mr Eastman’s application for leave to appeal to the ACT Court of Appeal against his conviction for murder; secondly, in SC 316 of 2007, which is Mr Eastman’s application for an inquiry under s 424 of the Crimes Act; and thirdly, in Federal Court proceedings ACT G66/1995, which is Mr Eastman’s original appeal to the Full Court of the Federal Court from his conviction for murder.

The orders made and entered on 18 October 2007 in proceedings ACTCA 26 of 2007, also exhibited to Mr Garrisson’s third affidavit, were:

“The Court orders that:
1The direction, initially made on 28 June 2007, that Mr Eastman be held in the ACT Remand Centre, be extended to 23 November 2007, subject to the right of the superintendent to make application should it prove to be administratively impractical or any other reason that would seem sufficient to make application to vary the directions.

2 The parties are granted liberty to apply; and
3Order 1 above is made also in respect of ACT Supreme Court proceedings 316/07 and Federal Court proceedings ACTG66/1995.

And the Court directs that:
4A transcript of today’s hearing be provided by the Court to Mr Eastman.”

As noted above, the ACT Supreme Court proceeding 316 of 2007 there referred to is the application by Mr Eastman for an inquiry pursuant to s 424 of the Crimes Act.

The third affidavit of Mr Garrisson exhibits five perfected orders of the Court made on 13 November 2007.

Four of those orders were filed for the appellant by the ACT Government Solicitor. The first of those orders dated 13 November 2007 is in ACTCA 34 of 2007, the originating process of which is said to be, “Application for leave to appeal dated 24 September 2007”, said to have been obtained by an oral application in proceedings made on 9 November 2007. The attendances are said have been by Mr D Mossop of counsel for the applicant and David Harold Eastman, the respondent in person. The order the subject of that application is “The order, made on 18 October 2007, that Mr Eastman be held at the Belconnen Remand Centre in the Australian Capital Territory be extended to 6 December 2007”.

The second perfected order is in ACTCA 41 of 2007, and is in identical terms to the order in ACTCA 34 of 2007, except that it relates to orders made by the Chief Justice on 13 November 2007.

The next perfected order filed for the appellant by the ACT Government Solicitor is entitled “No. SC 664 of 2007”, with the parties being Anthony James Johnston, Superintendent of Belconnen Remand Centre as Plaintiff; Supreme Court of the Australian Capital Territory, First Defendant; and David Harold Eastman as Second Defendant. The details of the order are exactly the same as in the two preceding orders, as are those of the order entered by the Australian Government Solicitor for the plaintiff on 15 November 2007.

The next perfected order is exactly the same as that entitled “No. SC 664 of 2007” save that it is entitled “SC 754 of 2007”.

The fifth order, dated 13 November 2007, which is exhibited to Mr Garrisson’s third affidavit is one which bears “Date entered: 13 November 2007” and has a signature of the Deputy Registrar and a notation “Prepared in the Registry”. That order is headed “ACTCA 26 of 2007” between David Harold Eastman, appellant, and The Queen, respondent. The “Date of the Order” is said to be 13 November 2007. The “Originating Process” is said to be “an application for leave to appeal out of time on 27 July 2007”. “How Obtained” states “Application hearing on 13 November 2007”. The Attendance records “Mr D Eastman the appellant in person, Mr DJ Mossop counsel for the Director of Public Prosecutions”. “The Affidavits Read” are “David Harold Eastman dated 9 November 2007, Charles E Stark dated 12 November 2007, Anthony J Johnson dated 13 November 2007, and Anthony J Johnson dated 14 September 2007.

The orders recorded in the entered order are:

“The Court orders that:
1 The direction, initially made on 28 June 2007, that Mr Eastman be held in an ACT Remand Centre, be extended to 6 December 2007 subject to the right of the superintendent to make application should it prove to be administratively impractical or for any other reason that would seem sufficient to make application to vary the direction.
2 The application that a recommendation under the Remand Centres Act be made in relation to Mr C Starke be refused.”

The Chronology of the non-removal orders made by the Chief Justice

On 28 June 2007, Higgins CJ was concerned with three proceedings, namely ACTCA 14 of 2006, ACTCA 13 of 2007, and ACTCA 14 of 2007. The Superintendent did not appear on that day.

ACTCA 14 of 2006 was an application by Mr Eastman for leave to appeal from proceedings ACTSC 32 of 2004, in which Gray J had dismissed Mr Eastman’s challenge to the limited scope of an inquiry directed by Miles AJ under s 424 of the Crimes Act into the matter of Mr Eastman’s fitness to plead during his trial, at which he was convicted of the murder of Assistant Commissioner Colin Winchester and sentenced to life imprisonment.

ACTCA 13 of 2007 was an application by Mr Eastman for leave to appeal in proceedings ACTSC 27 of 2007, in which Lander J had dismissed Mr Eastman’s proceedings seeking judicial review of the decision of Miles AJ.

ACTCA 14 of 2007 was an appeal in ACTSC 28 of 2007 in which Lander J had dismissed Mr Eastman’s proceedings challenging the decision of the Executive Government of the Australian Capital Territory consequent upon the report of Miles AJ.

Higgins CJ, on 28 June 2007, ordered that:

“1. Mr David Harold Eastman be held in ACT remand centre until 1 August 2007 (hearing for his ‘housing matter’ before Master Harper[)].
2. Superintendent of prisons be given leave to intervene on that question if he feels it necessary, and to make an application.”

The “housing matter” referred to was an appeal by Mr Eastman against an eviction notice granted to the Commissioner of Housing, in proceedings SCA 40 of 2007.

As the transcript of 28 June 2007 makes plain (particularly at pages 3, 4, and 5), the broad question being canvassed on that day was whether there was power to order that Mr Eastman remain in the ACT for the purpose of preparing the matters presently before the Supreme Court, or whether, in all the circumstances, the provisions of the Removal of Prisoners Act 1968 (ACT) (repealed) prevented that occurring. The transcript suggests that the Chief Justice was of the view that there was a power to direct that Mr Eastman remain in the Territory if it was essential “in the interests of the administration of justice”. The transcript suggests that the Chief Justice was of the view that the power to so order would only be used if it was “necessary to exercise it”.

The submission by counsel for the Attorney-General of the Territory was:

“ … the only power that your Honour has is a power under section 14A of the Remand Centres Act to make a direction which must be had regard to by the superintendent and that your Honour doesn’t have power to make directions generally direct [as] to the performance of the superintendent’s functions at the remand centre.”

The Chief Justice said (at 23 of the transcript of 28 June 2007):

“… there’s still a residual power to deal with a question of the administration of justice, both under the Human Rights Act and under the inherent power of the court. I appreciate it’s always difficult to define an inherent power of the court, but nevertheless there is one. And I’m quite sure that if one had to turn one’s mind to it there’d be ample ways of enforcing what would seem to be a necessary requirement for the administration of justice. I am not saying that this is such a case, all I’m saying is that I’m sure that that can be done.” (Emphasis added).

On 13 July 2007, the Court of Appeal (Moore, Dowsett, and Stone JJ) reserved judgment in ACTCA 13 and 14 of 2007 and ACTCA 14 of 2006.

On 1 August 2007, the Chief Justice made an order in SCA 40 of 2007 (the proceedings by Mr Eastman against the Commissioner for Housing) extending order 1 of 28 June 2007, extending the time of the non-removal of Mr Eastman to 10 August 2007.

On 9 August 2007, in proceedings ACTCA 26 of 2007, the Chief Justice extended until 31 August 2007 the period during which Mr Eastman was to be held in the Remand Centre. Page 5 of the transcript of 9 August 2007 indicated that there was an oral application by Mr Eastman that there was a substantive reason why he “should remain in the ACT between now [9 August 2007] and then [6 September 2007]”.

On 31 August 2007, in proceedings ACTCA 26 of 2007, Dr Perry (at p 26 of the transcript), said to the Chief Justice:

“…it’s now accepted that a single judge who’s dealing with the application for leave to appeal against conviction may appropriately and validly make an order to determine an application related to a convicted prisoner’s place of detention as an ancillary order under rule 55.35, and that such orders may be [made] where the stringent test set out in Masoud’s case … is met.”

Dr Perry indicated (at p 31 of the transcript of 31 August 2007) that the position of Mr Eastman had now materially changed.

“… the position has now materially changed ... the orders … were originally made on the grounds that they were necessary in order to enable Mr Eastman to prepare, as a litigant in person, for the hearing then set down.” (Emphasis added).

Mr Eastman, by 31 August 2007 was no longer self-represented, having secured the assistance of Mr D Grace of counsel.

Dr Perry referred to par [14] of the judgment of Miles J in Masoudv The Queen [2000] FCA 435, being proceedings in the Federal Court. Miles J there said, at [13]-[15]:

“13.     … The Director [of Public Prosecutions] submitted that whilst on a literal construction the rule [O 52 r 40 of the Federal Court Rules] might have the wide operation contended for, nevertheless the power to interfere in the functioning of the custodial institutions of the Territory should not be exercised lightly, and, indeed, should be restricted to making orders only for the purpose of protecting the processes of the Federal Court.
14.       It is to be remembered that both applicants are in custody as a result of the decision of the lawfully constituted tribunal of the Territory. The laws of the Territory as to their continuing custody deserve respect, as does the lawful functioning of the institutions of the Territory that are charged with the responsibility of implementing those laws. In my view, it is not the function of this Court under o 52 r 40 to interfere in the processes of those institutions except so far as may be necessary for the administration of justice in or by this Court. Thus if it were shown that an appeal to this Court from a judgment of a Territory court were to be frustrated or, in a real sense, impeded by the conditions in which a party to the appeal was held in custody, then it may well be that an order as to the custody of that party might be made so that the source of frustration or the impediment might be removed. In other words,    O 52 r 40 might be called in aid to ensure that what is sometimes called “due process” is observed.
15.       However, the evidence presented on behalf of both applicants falls well short of showing any real risk of the denial of due process to either applicants or any threat to the administration of justice. …” (Emphasis added).

Dr Perry continued, (at p 34 of the transcript):

“… we say this is the relevant test:
… if it were to be shown that an appeal to this court from a judgment of a Territory court were to be frustrated or, in a real sense, impeded by the conditions in which a party to the appeal was held in custody then it may well be that an order as to the custody of that party might be made, so that the source of frustration or impediment might be removed.”

The Chief Justice, it seems to us, indicated his agreement with this formulation by his answer: “Yes, quite.”

The transcript reveals that Dr Perry took the point that it was necessary to identify the proceedings requiring the non-removal order, and for evidence to be adduced establishing that the presence of Mr Eastman was necessary in those proceedings. The Chief Justice took a more robust view of that requirement, saying:

“I don’t consider that to be important at all. If the evidence is evidence I can apply it in any proceedings I choose.”

It is to be noted that there is no ground of appeal to the effect that the various orders made by the Chief Justice were unsupported by evidence, or that the evidence was insufficient to justify the making of the orders.

On 31 August 2007, the Chief Justice observed:

“… Mr Eastman, I’m satisfied that I have power to make the order that I made if good cause is shown, and that fundamentally is a question as to whether, if the order were not made, or orders of that kind were not made, leaving aside the precise form for the present time, the hearing of the appeal is likely to be at least impeded. Now, I have to say that despite Ms Perry’s eloquent urgings, I am satisfied that that could well be the case and is the case in this particular circumstance, as far as the application for leave to appeal is concerned.” (Emphasis added).

The detention of Mr Eastman in the remand centre was continued until 18 September 2007.

On 17 September 2007, a directions hearing before Higgins CJ was heard in ACTCA 26 of 2007. The entered order indicates that it was made in those proceedings, as well as in the s 424 application, and in Federal Court proceedings, ACT G66 of 1995, and its effect was to continue the non-removal of Mr Eastman until 29 October 2007. The Chief Justice vacated ancillary orders made on 23 August 2007, and substituted for those orders, a recommendation under the Remand Centres Act 1976 (ACT) (repealed).

The transcript of the proceedings before the Chief Justice on 17 September records (at p 13) an application by Mr Eastman “to continue … the orders that were previously made”. The Chief Justice said of that application:

“It depends on the course of proceedings that are currently pending in this court. And if there were none immediately pending, for instance, there would be no need for me to make any order about his custody.” (Emphasis added).

In the course of that directions hearing, the Chief Justice said (at p 16 of the transcript):

“The most obvious [aspect of whether there should be an extension of the detention orders] is the question of whether the objective circumstances, and I mean by that those matters which are pending in this court involving you, require your continued presence in the Territory … for effectively the efficient administration of justice.” (Emphasis added).

His Honour ruled that:

“I’ve received nothing to the contrary of the proposition that for you adequately to prepare a case in this court, you need to be able to access certain facilities which would not be available in New South Wales but are available here.”

Dr Perry, on 17 September 2007, said in a comment that truly reflected the conflation of the various proceedings, (at p 32 of transcript):

“I’m not sure … what proceedings we’re in.”

Again Higgins CJ adopted a rather broad-brush approach, (at p 33 of the transcript ):

“I don’t think it matters, Ms Perry, really. We’re not hidebound by what number is on the file, all right? … Please don’t try and bring procedural difficulties into this. It is a substantive question, not a mere procedural one. … I need to make sure that justice is done.”

Dr Perry continued determinedly:

“… We would say that any application for interlocutory relief has to be made within the context of particular proceedings.”

And the Chief Justice replied:

“No, it doesn’t”.

Later, after further determined submissions from Dr Perry, the Chief Justice said, (at pp 45 and 46 of transcript):

“… The fact is I can order, as you’ve already conceded, in support of a case that Mr Eastman has before this court, I can direct that he be held here in order to enable that case to proceed according to law and according to justice.”

Dr Perry submitted, (at p 50 of transcript):

“… superior courts of record do not, we would say, have a general power to regulate …”

To which his Honour replied:

“I’m sorry, they do and even in cases where they are merely witnesses.”

On 18 October 2007, in ACTCA 26 of 2007, in the application under s 424 for an inquiry and in Federal Court proceedings ACT G66 of 1995, the non-removal order was extended to 23 November 2007.

The transcript of those proceedings, which bears No ACTCA 26 of 2007, indicates that Mr Eastman asked for an extension of the order, and also raised questions of grievances concerning the conduct of correctional officers. Mr Eastman said, (at p 20):

“The last time your Honour made the order which was on 17 September it was hoped that by the time of the expiry of the order which now goes to 29 October, speaking of order number 2, it was hoped by that stage that the proceedings in this court which are SC316/07 and those in the Federal Court would hopefully be over.”

The transcript makes it plain that SC 316 of 2007 is the application by Mr Eastman for an inquiry under s 424, which was before Besanko J.

Mr Eastman said that an extension to 23 November would be necessary “in relation to the Federal Court matter”, because a Full Court of the Federal Court had been convened to sit on 21 and 22 November 2007.

Mr Bayliss appeared on 18 October 2007 on behalf of the Superintendent. Mr Bayliss told the Chief Justice (at p 31 of the transcript):

“…if you were to make the order in the Federal Court proceedings I’d ask you to also make the order in the Territory Supreme Court proceedings.”

Mr Eastman requested that the extension be in all three proceedings.

Mr Bayliss asked for clarification as to “all three proceedings”.

It was made plain by the Chief Justice that the extension order was made in proceedings ACTCA 26 of 2007 (which is the application for leave to appeal out of time to the ACT Court of Appeal); in the Federal Court proceedings, ACT G66 of 1995 (which was the application by Mr Eastman to reopen his original appeal to the Full Court of the Federal Court against his conviction for murder), and in proceedings SC 316 of 2007 (the application by Mr Eastman for an inquiry pursuant to s 424 of the Crimes Act).

The orders made by the Chief Justice on 18 October 2007 are important, because that order is the subject of appeal ACTCA 41 of 2007.

On 13 November 2007, the transcript of proceedings is entitled, “ACTCA 26 of 2007”. Mr Mossop appeared for the Superintendent, and Mr Eastman appeared in person. Apart from applications for recommendations, Mr Eastman sought (at p 35 of the transcript of 13 November 2007):

“…an extension of the order in relation to being kept at the Belconnen Remand Centre to cover the forthcoming Court of Appeal appeal that the superintendent is undertaking against your Honour’s power to make orders of that nature, which have been listed before the Full Court on 5 December [2007]”.

Mr Eastman indicated that he wanted an extension of the order made by the Chief Justice on 18 October 2007. Mr Eastman said:

“[that order] runs out on 23 November. Since then that is the day after the Federal Court application is heard. It is to be heard on 21 and 22 November. Since then a date has been fixed, namely 5 December, for the hearing of a ADJR and concurrent applications.”

The Chief Justice asked (at p 36 of the transcript):

“… so do I take it you are asking for an extension into 6 December?”

The Chief Justice asked Mr Mossop, (at p 42 of the transcript):

“The question of extending the orders to effectively take account of the hearing on 5 December, is that okay?”

Mr Mossop submitted that it was not appropriate for the Chief Justice to hear the application for an extension, in circumstances where an appeal was pending in which the power of the Chief Justice to make such an order was disputed.

Mr Mossop said, (at p 42 of the transcript):

“I won’t attempt to repeat the argument. Ms Perry put the arguments to your Honour on 17 September … about whether or not your Honour has power to make an order.”

The Chief Justice said:

“I thought she’d basically conceded that I did. … I think there was an issue as to whether I ought to, but I think she conceded that I had the power.”

The Chief Justice said, (at p 45 of the transcript):

“… it does seem to me … ample reason for extending the order to 6 December. I mean it can only be on the basis that Mr Eastman has matters pending. Well he does, and that was the basis on which the previous orders were made. So there’s no reason I can think of not to extend it to 6 December.”

Mr Mossop asked, (at p 46 of the transcript):

“… which are the proceedings in relation to which your Honour is making that order?”

His Honour said:

“Well, that is specifically in relation to the Court of Appeal matter …"

Mr Mossop said:

“On 5 December there are four sets of proceedings. There’s two Court of Appeal matters which are matters 34 and 41 of 2007…
And there are also two matters relating to the same orders which are proceedings before the Full Court of the Supreme Court in matters 754 of 07 and 664 of [07].”

The Chief Justice said:

“It may be taken then that the order which I have made is to extend to each of those proceedings …”

The “two matters relating to the same orders” before the Full Court of the Supreme Court to which Mr Mossop referred were applications for judicial review of the decisions of the Chief Justice made on 17 September 2007 that Mr Eastman be held at the Belconnen Remand Centre until 29 October 2007, and judicial review of the decision made on 18 October 2007 that Mr Eastman be held at the Belconnen Remand Centre until 23 November 2007. Those decisions were made on each occasion in SC 316 of 2007, being the application for an inquiry pursuant to s 424 of the Crimes Act.

Copies of Applications for Leave to Appeal, Applications to Discharge, and Applications for Review

A document, called “Appeal Book” containing applications for leave to appeal, applications to discharge, and applications for review was filed in the Court of Appeal on 23 November 2007.

The index to those documents was as follows:

“APPLICATIONS FOR LEAVE TO APPEAL AND DRAFT NOTICES OF APPEAL
1.Application for leave to appeal and Draft Notice of Appeal in ACTCA 45 of 2007 dated 20 November 2007
2.Application for leave to appeal and Draft Notice of Appeal in ACTCA 44 of 2007 dated 20 November 2007
3.Application for leave to appeal and Draft Notice of Appeal in ACTCA 41 of 2007 dated 25 October 2007
4.Application for leave to appeal and Draft Notice of Appeal in ACTCA 34 of 2007
APPLICATIONS TO DISCHARGE ORDERS MADE ON 13 NOVEMBER 2007

5.Application in matter ACTCA 34 of 2007 to discharge order made on 13 November 2007 dated 20 November 2007
6.Application in matter ACTCA 41 of 2007 to discharge order made on 13 November 2007 dated 20 November 2007
APPLICATIONS FOR JUDICIAL REVIEW

7Originating Application – Judicial Review in matter SC 754 of 2007 dated 25 October 2007
8Originating Application – Judicial Review in matter SC 664 of 2007 dated 24 September 2007”

An analysis of the eight documents referred to in that index indicates that the proceeding ACTCA 45 of 2007 is an application to the ACT Court of Appeal for leave to appeal from orders made on the 13 November 2007 in proceeding SC 664 of 2007. Document 1 refers.

Proceeding ACTCA 44 of 2007 is an application to the ACT Court of Appeal for leave to appeal from orders made on 13 November 2007 in proceeding SC 754 of 2007. Document 2 refers.

Notwithstanding an error in the pagination in the “Appeal Book” of Document 7 and Document 8 in the index, Document 7 relates to an application to the Full Court of the Supreme Court of the ACT pursuant to the Administrative Decisions (Judicial Review) Act 1989 (ACT) (the ADJR Act) for judicial review in proceeding SC 754 of 2007 of the decision of Higgins CJ on 18 October 2007, that Mr Eastman be held at the Belconnen Remand Centre on 23 November 2007. The grounds of the application were:

“The review and prerogative relief is sought on the following grounds:
(a)The person who purported to make the Decision did not have jurisdiction to make the decision
(i)The first defendant did not have jurisdiction to make the Decision.

(b)The Decision was not authorised by the enactment under which it was purported to be made
(i)Neither the Supreme Court Act 1933 or the Crimes Act 1900 Part 20 authorised the making of the Decision.

(c) The Decision involved an error of law
(i)The first defendant made an order that the Court did not have power to make.
(ii)In making the order his Honour acted on the same basis as he had in making his order on 17 September 2007 and in doing so erred as follows:

…”

And then is set out exactly the same six grounds asserted in the various Notices of Appeal.

Document 8 relates to an application to the Full Court of the Supreme Court of the ACT pursuant to the ADJR Act for judicial review of a decision in SC 664 of 2007 of a decision of Higgins CJ on 17 September 2007 that Mr Eastman be held at the Belconnen Remand Centre until 29 October 2007. The grounds of the application are the same as those in the ADJR Act application to which Document 7 relates.

Document 3 relates to an application to the ACT Court of Appeal for leave to appeal from orders made on 18 October 2007 in proceedings SC 316 of 2007. The application is dated 25 October 2007.

Document 4 relates to an application to the ACT Court of Appeal for leave to appeal from orders made on 17 September 2007 in SC 316 of 2007. The application is dated 24 September 2007.

Document 5 relates to an application to discharge orders by the Chief Justice made in ACTCA 34 of 2007 on 13 November 2007 that Mr Eastman be held at the Belconnen Remand Centre until 6 December 2006. The application asks “that the jurisdiction of the Court in the matter be exercised by a Full Court”.

Document 6 relates to an application to discharge orders made by the Chief Justice in ACTCA 41 of 2007 that Mr Eastman be held at the Belconnen Remand Centre until 6 December 2006. The application asks that “the jurisdiction of the Court in the matter be exercised by a Full Court”.

The difficulties which the analysis of the documents in that appeal book reveals, in relation to which orders in which matters are the subject of challenge, is exacerbated when one has regard to the written submissions filed on behalf of the Superintendent and by the amici curiae, and by the Superintendent in reply.

Written Submissions of the Appellant/Applicant

The applicant’s summary of argument is headed “proceedings ACTCA 34 of 2007”. The summary, of some 21 pages, by M.A. Perry QC, and D.J.C. Mossop, bears the date 25 October 2007. The first two paragraphs of that summary are:

“1. This is an application for leave to appeal against an order of Higgins CJ made on 17 September 2007 requiring that the appellant (“the Superintendent”) hold the respondent, Mr Eastman, at the Belconnen Remand Centre (“the Detention Order”).
2. Leave to appeal is required because the Detention Order is an interlocutory order. The submissions in support of the grant of leave to appeal are found at the end of these submissions.”

The perfected orders of the Chief Justice made on 17 September 2007 are exhibited to the summary of argument.

The summary says:

“The perfected order purports to be made in proceedings ACTCA 26 of 2007, notwithstanding that it was not clear that his Honour intended to make the Detention Order in those proceedings.”

Paragraph 5 of the order, earlier set out, states in the following terms, that it was also made in other proceedings:

“Order 2 above is made also in respect of the matter of the appellant’s application for an inquiry under section 424 of the Crimes Act and Federal Court proceedings ACT G66/1995.”

Paragraph 9 of the applicant’s summary states:

Paragraph 5 clearly accords with his Honour’s intentions as expressed at the hearing on 17 September 2007, in stating that the Detention Order is made in the proceedings involving Mr Eastman’s application under Part 20 of the Crimes Act 1900 (ACT) for an inquiry into his conviction (“the s424 proceedings”) and in the Federal Court proceedings.

Importantly, the Superintendent’s summary of argument says, in par 10:

10. This appeal is against the order made in so far as it is made in the s 424 proceedings. (Emphasis added).

The appeal referred to in par 10 of the summary of argument is ACTCA 34, which is an appeal against the order made on 17 September 2007 insofar as it is made in the s 424 proceedings. That is to say, in SC 316 of 2007.

The summary continues:

“11. On 18 October 2007 the Detention Order was extended until 23 November 2007. A separate appeal has been lodged in relation to this order.”

The appeal in relation to the orders made by the Chief Justice on 18 October 2007, (also made in respect of SC 316 of 2007), is a separate appeal, ACTCA 41 of 2007.

Concerning the application for judicial review, par 12 of the Superintendent’s summary of argument recites:

“An application for judicial review has also been filed in relation to the decision in the s 424 proceedings. Directions were made on 28 September 2007 that the jurisdiction of the Supreme Court on that application be exercised by a Full Court, and that these proceedings be heard at the same time, or immediately following, this appeal. The reason for seeking judicial review of the Detention Order as well as seeking leave to appeal from that order, is that proceedings under s 424 of the Crimes Act are administrative, and not judicial, proceedings. As a result, this Court has previously held that Mr Eastman’s s 424 application did not constitute “proceedings” for the purposes of the Supreme Court Rules 1937 (now repealed) and that the Rules did not apply to them. Accordingly, the judicial review proceedings have been instituted in case there is any doubt about whether or not the order appealed from is appellable under s 37E of the Supreme Court Act in order to ensure that the point of substance may be determined. The grounds for judicial review are, in substance, the same as those contained in the Draft Notice of Appeal filed in these proceedings.” (Emphasis added).

In case there is any argument as to what appeal ACTCA 34 is, it is removed by par 13 of the Superintendent’s summary of argument. Under the heading, “The Issue for Determination” appears the following:

“13. The issue in this appeal is whether the Supreme Court has “inherent power” to make orders against the Superintendent preventing him from removing a sentenced prisoner to New South Wales in order to facilitate that prisoner’s preparation for an application under s 424 of the Crimes Act in this Court.”

The perfected orders of 17 September 2007 relate to proceeding ACTCA 26 of 2007, the s 424 proceedings, and the Federal Court proceedings. The Superintendent’s summary of argument points out that, as at 17 September 2007, the proceedings in the ACT Court of Appeal for leave to appeal against Mr Eastman’s original conviction (ACT 26 of 2007) had been adjourned until 3 December 2007.

The transcript of 17 September 2007 records that Dr Perry, just before the conclusion of the hearing on that day, said:

“Is your Honour also making detention order in 424 proceedings, or just the Federal Court proceedings?
HIS HONOUR: Both.
MS PERRY: In both. Thank you.”

The Superintendent’s summary of argument makes it plain that the statutory context created by the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act), the Removal of Prisoners Act 1968 (ACT) (ROP Act), the Remand Centres Act 1976 (ACT) (RC Act), and the Crimes Act is such that for a sentenced prisoner (and also for a person on remand), there is a clear division of functions between the Court and the Chief Executive.

Sections 10 and 11 of the CSA Act make it clear that, once committed to prison, a prisoner is in the custody of the Chief Executive. The Chief Executive is responsible for allocating the prisoner to an appropriate correctional centre, but, if a Court makes a direction requiring a offender to appear before a Court, then the Chief Executive is obliged to arrange for the offender to be brought to Court. The Explanatory Memorandum for the Bill which became the CSA Act contains the statement:

“Consistent with part 3.1 above, the Bill creates a clear division of power between sentencing authorities and the chief executive responsible for administering sentences. A court or other sentencing authority will have the power to sentence a person to imprisonment, but not the power to determine where that person must serve the sentence. The chief executive will have the power to allocate a person to an appropriate prison, whether the prison is in NSW or the ACT.”

The submissions on behalf of the Superintendent were that the same division of functions applies in relation to remandees. The Chief Executive is responsible for determining where a remandee is detained. The Supreme Court may identify considerations that must be taken into account by the Chief Executive, but cannot determine the issue for itself, and the remandee must be kept in detention at the place determined by the Chief Executive.

The submission for the Superintendent is that the statutory regime requires that the place of custody for both a remandee and a convicted prisoner be the place determined by the Chief Executive. Where, however, a Court requires that a remandee or prisoner before it, then the Chief Executive is required to arrange for that attendance but is otherwise able to determine where the remandee or prisoner is detained.

Both the ROP Act and the RC Act were repealed by s 6 of the Sentencing Legislation Amendment Act 2006 (ACT). Notwithstanding that repeal, the operation of both Acts is maintained by ss 604 and 605 of the CSA Act, pending commencement of Part 3 of the Corrections Management Act 2007 (ACT).

There are two observations by Gray J in Eastman v Minister for Corrective Services (2004) 181 FLR 447 which are relevant, when considering where convicted prisoners are to be detained. Gray J held, at 449:

“It is clear that there is no power given to a court to direct the prison authorities to return a prisoner under sentence for the purpose of preparing for a court hearing …” (Emphasis added).

And, at 453, his Honour said:

“Where this court considers that it is necessary in the interests of the administration of justice for a prisoner to be returned to the ACT for the purposes of a proceeding before it, the court may direct the Sheriff or Registrar of the Court to issue a warrant [under the ROP Act] for that action, but the direction should be limited to that purpose.” (Emphasis added).

Concerning the Crimes Act, the Superintendent’s written summary said:

“32. … the issues in this appeal arise in the context of an application under s 424 of the Crimes Act.
…
34. The role of the Court on a s 424 application is a limited one, and plainly nothing in the terms of s 424 or Part 20 of the Crimes Act confers power on the Court to make the Detention Order.”

These submissions contend that there is an absence of power in the Court to make the order. It was argued that neither s 20 of the Supreme Court Act 1933 (ACT) nor s 48A of the Australian Capital Territory (Self-Government Act) 1988 (Cth) applies to a s 424 application, and therefore those statutory provisions cannot support the making of the detention orders. The contention, shortly stated, was that there was no inherent or other power to make the detention order, and the Superintendent’s summary of argument ended by contending that the leave to appeal should be granted, the appeal should be allowed with costs, the detention order should be set aside, and, further that:

“63. … it would be appropriate to make a declaration that the Detention Order was beyond the power of the Supreme Court.”

The outline of submissions for the Superintendent says, in relation to an application for judicial review of “an order in an application under s 424 of the Crimes Act 1900 that the second defendant be detained at the ACT Remand Centre until 29 October 2007”, that the application has been made “because proceedings under s 424 of the Crimes Act are administrative and not judicial proceedings”.

That outline says:

“The grounds upon which judicial review is sought are set out in the application. They are substantially identical to the grounds of appeal in ACTCA 34 of 2007.”

Written Submissions by the Amici Curiae

The written submissions by the amici are dated 31 January 2008, and assert that the first non-removal order made by his Honour on 28 June 2006 was not made simply “to facilitate” Mr Eastman’s preparation for court proceedings, but that the non-removal order was “necessary” in terms of fairness and the administration of justice, and that that “necessity” was never at any stage contested by the Superintendent. It was submitted that the objections on behalf of the Superintendent asserted a complete absence of power rather than relying on evidentiary or discretionary considerations.

The burden of the submissions of the amici was:

“The issue in this appeal is whether the Supreme Court has “inherent power” to make an order against the Superintendent preventing him from removing a sentenced prisoner to New South Wales in circumstances where non-removal is necessary to enable the prisoner to participate effectively in proceedings before the Court under s 424 of the Crimes Act.”

This formulation of the issue makes two important points: first, it is directed, in answer to the Superintendent’s summary of argument, at the making of a non-removal order in the context of the s 424 inquiry; the second point is that the Supreme Court has inherent power where non-removal is necessary to enable a prisoner to participate effectively in proceedings before the Court.

It was submitted by Mr T Howe QC, who appeared as senior counsel as amicus with Mr T Glover on the proceedings in this Court, that the non-removal orders in ACTCA 26 of 2007 and Federal Court proceeding ACT G66 of 1995 had not been appealed, and so there would be no practical effect if the Court were to rule upon an issue only in the context of the identical non-removal order made in the s 424 proceedings. An “appeal” from the order of the Chief Justice in ACTCA 26 of 2007, being an order in exercise of the jurisdiction of the Court of Appeal, could only be by special leave to appeal to the High Court, which had not been sought. An appeal from the non-removal order relating to the Federal Court proceedings could only be pursued in the Full Court of the Federal Court (or perhaps only by an application for special leave to appeal to the High Court), neither of which had been instituted.

It was submitted that the test for the identification or existence of an inherent or implied power is whether it is “really necessary to secure the proper administration of justice in the proceedings”, citing John Fairfax and Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 at 476-477 per McHugh JA.

The amici submitted that an example of an exercise of inherent power by granting an injunction to restrain government officials from removing a person from a place in order to ensure that a court’s processes are not frustrated is to be found in the judgment of Mansfield J in Mastipour v Secretary, Department of Immigration and Multicultural and Indigenous Affairs & Ors (2004) 140 FCR 137 (Mastipour).

Mansfield J held, at 146, that the power of the Court to ensure that its processes were not frustrated enabled the grant of an injunction preventing the applicant’s removal from Australia.

Mansfield J quoted with approval, at 143, this passage from the article “The Inherent Jurisdiction of the Court” by Mason P, the President of the New South Wales Court of Appeal, in (1983) 57 ALJ 449 at 449:

“Faced with the limitless ways in which the due administration of justice can be delayed, impeded or frustrated, judges have responded with a vast armoury of remedies claimed to be part of their inherent jurisdiction. This unwritten source of power is said to arise from the very nature of a court … The mere fact that some statute or rule of court enables a court to deal with the particular problem in a particular way will not usually exclude inherent powers to deal with it in other ways.”

It was submitted by the amici that the non-removal order made in the present case was analogous to the injunction granted in Mastipour and orders made in cases such as Tait v The Queen (1962) 108 CLR 620 and in The Mardina Merchant [1975] 1 WLR 147.

Written Submissions by the Superintendent in reply

The written submissions on behalf of the Superintendent, in reply to the submissions of the amici, are dated 12 February 2008. Those submissions essentially join issue with whether Mr Eastman had demonstrated that his detention in New South Wales “would deny him the capacity to participate effectively in proceedings in the Court”.

For the Superintendent, it was said that “the matters raised by Mr Eastman demonstrated matters of preference or convenience which are insufficient to engage any inherent power of the Court to protect its own processes from being frustrated”.

The submissions in reply address the quality and extent of the evidence going to whether the detention of Mr Eastman in New South Wales would have denied him the ability to participate effectively in the proceedings or whether the evidence simply disclosed that Mr Eastman considered the remand centre “a much better location” than a New South Wales prison in which to prepare to represent himself, rather than whether the Supreme Court had power to make a non-removal order at all.

These submissions, directed as they are to whether the non-removal orders were based on considerations of convenience, efficiency or preference, or whether, in the view of the Chief Justice, they were necessary to the administration of justice, involve a dramatic change from the earlier written submissions dated 25 October 2007, which assert an absence of power in the court to make the relevant “non-removal” orders.

It was said that the mere facilitation of Mr Eastman’s preparation was not sufficient and “the factual circumstances were never such that there was any threat to the administration of justice by reason of his detention in New South Wales”.

The submissions in reply acknowledge that in relation to the orders made on 17 September and 18 October 2007, which had been made in more than one set of proceedings, the s 424 proceedings are the only proceedings that can be the subject of appeal or review in the ACT Court of Appeal or the ACT Supreme Court. This is because, insofar as it had been made in proceeding ACTCA 26 of 2007, an order made by a single judge sitting as the Court of Appeal in ACTCA 26 of 2007 could only be appealed to the High Court by special leave; and insofar as the order had been made in the Federal Court proceeding G66 of 1995, the decision is clearly only appellable in the Federal Court.

The High Court in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 recognised, at 401 [42], that the doctrinal basis for interlocutory relief against third parties has to be the administration of justice.

It is correct, as the submissions for the Superintendent in reply assert, that:

“Cardile does not support the existence of any general power to grant interlocutory orders against third parties to facilitate the conduct of litigation. (Emphasis added).

The submissions in reply do not resile from the original contention that it was the s 424 proceedings in which the question of power, or the proper application of power to make a non-removal order, was to be considered. However, they do resile from the contention that there was no power to make the non-removal order. Rather, they contend that Mr Eastman had not demonstrated that the circumstances were such that his detention in New South Wales would deny him the capacity to participate effectively in proceedings in the Court.

General Observations

It is apparent that there are real difficulties in attempting to glean the reasons for judgment from observations made in the course of the hearing. As each of the Notices of Appeal makes plain, the alleged errors by the Chief Justice are said to be manifested by observations or comments made during the course of the various hearings.

In our view, the various transcripts reflect a consciousness in the Chief Justice that a non-removal order should be made only if it were necessary for the administration of justice to enable the prisoner, Mr Eastman, to participate effectively in proceedings before the Court, (whichever Court that happened to be). It would not be sufficient for the making of a non-removal order, that such an order would merely facilitate Mr Eastman’s preparation for those proceedings, or would be more convenient to him.

The competing considerations reflected in the various submissions to this Court were aptly summarised by Miles J in Masoud v The Queen [2000] FCA 435, where his Honour was concerned with a Notice of Motion in which Mr Masoud sought an order “That the Appellant is to remain at Belconnen Remand Centre and not be moved interstate pending the hearing of his appeal in the Federal Court”. Those observations have been earlier set out at [80] above.

Oral Submissions in the hearing by this Court, of the various appeals and applications

On the hearing of the appeal it was eventually made plain that the Superintendent was not relying on any of the applications for judicial review, and did not seek to challenge the non-removal orders made on 17 September 2007 and 18 October 2007 which had relevantly been made in Mr Eastman’s application for an inquiry under s 424 of the Crimes Act, being proceedings SC 316 of 2007. There could, of course, be no challenge in this Court to the non-removal orders made on 17 September and 18 October 2007 in Federal Court proceedings, ACT G66 of 1995.

In the course of her oral submissions to this Court, Dr Perry said (at pp 12-13 of the transcript of 13 February 2008):

“… it may be that the more convenient approach for the court is if we were to confine our appeals and our applications, because there are applications, for reasons I’ll explain in a moment, to discharge the orders of 13 November as well, rather than dealing with the historic orders, which were made on 17 September and 18 October.”

Dr Perry then said:

“… the section 424 proceedings had no relevance in relation to the orders made on 13 November 2007.”

Later, Dr Perry said:

“… one way to circumvent the possible difficulties … would be for us to focus on the orders made on 13 November which did not relate to the proceedings under section 424 of the Crimes Act and thereby avoid the particular and very specific complexities that attend the section 424 proceedings and just look at the question in the context of the orders made on 13 November.”

Dr Perry stated that:

“… none of the proceedings that were subject of the orders made on 13 November involved appeal from a conviction or an application for appeal from a conviction.”

Dr Perry made it plain that the Superintendent was not challenging any order made on 13 November 2007 in relation to proceeding ACTCA 26 of 2007, asserting that “it was clearly taken out in error, there is no question of general principle which arises in relation to it”.

The four appeals or applications to which Dr Perry referred concerned: first, the non-removal order made on 13 November 2007 in SC 644 of 2008, the proceeding seeking judicial review of the orders made by the Chief Justice on 17 September 2007 in SC 316 of 2007, which was the application for an inquiry pursuant to s 424 of the Crimes Act. The proceeding challenging that order constitutes the appeal ACTCA 45 of 2007.

The second proceeding concerned the non-removal order made by the Chief Justice on 13 November 2007 in proceeding SC 754 of 2007, in which judicial review was sought of the orders made on 18 October 2007 in SC 316 of 2007, which was the application for an inquiry pursuant to s 424 of the Crimes Act.

The appeal ACTCA 34 of 2007, which is an appeal from the order made by the Chief Justice on 17 September 2007 in proceeding SC 316 of 2007, was abandoned.

The appeal ACTCA 41 of 2007, which is an appeal from the order made by the Chief Justice on 18 October 2007 in proceeding SC 316 of 2007, was also abandoned.

Mr Howe responded to the suggestion that the proceedings continue on the basis that they embody a challenge to orders made by the Chief Justice on 13 November 2007, in respect of the then pending appeal and judicial review proceedings by saying, (at p 16 transcript of 13 February 2008):

“… we prepared our submissions as amicus on the basis of what was put by the superintendent in paragraph 10 of his submissions, namely the appeal is against the order made insofar as it is made in a section 424 proceedings.”

No appeal lies to the Court of Appeal in proceeding ACTCA 34 of 2007 or ACTCA 41 of 2007. As Dr Perry acknowledged, if, as the Chief Justice must have been, he was sitting as the Court of Appeal in those matters, the only right of appeal would have been to the High Court. It was said, however:

“… the Court of Appeal clearly has power to discharge an earlier order [of the Court of Appeal]”

Dr Perry continued:

“So, unfortunately that rendered it necessary to bring an application to discharge the order in those proceedings.”

Dr Perry explained that that difficulty was not present in relation to the applications for judicial review, so the Superintendent has sought leave to appeal from the orders made by his Honour in matters SC 754 of 2007 and SC 664 of 2007. It appears from the oral submissions of Dr Perry that the Superintendent was seeking to challenge in the Full Court of the Supreme Court, the non-removal orders made on 13 November 2007 in the application for judicial review of the decisions the subject of SC 754 of 2007 and SC 664 of 2007.

Proceeding SC 664 of 2007 was commenced by an Originating Application dated 24 September 2007, being an “Application under Administrative Decision (Judicial Review) Act 1989 (the ADJR Act) ss 5 and 17(1)(c), and Court Procedures Rules 2006 r 3554, 3556, and 3358” seeking review of “the decision of Chief Justice Higgins of the Supreme Court of the Australian Capital Territory on 17 September 2007 that David Harold Eastman be held at the Belconnen Remand Centre until 29 October 2007.”

Proceeding SC 754 of 2007 had been commenced by an Originating Application dated 25 October 2007, the application being again under the same provisions of the ADJR Act, and the Court Procedure Rules 2006 as proceeding SC 664 of 2007 but was seeking review of “the decision of Chief Justice Higgins of the Supreme Court of the Australian Capital Territory on 18 October 2007 that David Harold Eastman be held at the Belconnen Remand Centre until 23 November 2007”.

Insofar as there are applications to this Full Court to discharge the orders made on 13 November 2007 in ACTCA 34 of 2007 and ACTCA 41 of 2007 by the Chief Justice sitting as a single judge exercising the jurisdiction of the Court of Appeal, no argument was developed as to any principled basis on which a Court of Appeal should discharge the orders made by the Chief Justice. The only contention seems to be that the Chief Justice lacked the power to order as he did, or the evidence was insufficient to justify the making of the order. While either limb of the contention might support an application for special leave to appeal to the High Court, no argument, other than lack of power to make the non-removal orders, was advanced as to why this Court should discharge the orders made by the Chief Justice.

It is therefore plain that the applications for discharge truly are camouflaged appeals, and any appeal to this Court is incompetent.

Notwithstanding the confusion as to the proceedings, civil or criminal, in which the various orders had been made, it appears after a painstaking analysis of the various applications and appeals filed, the orders themselves and Notices of Appeal before this Court, the real issue remaining is whether, in relation to the application for judicial review, initiated by the originating process in SC 664 of 2007 on 24 September 2007, and in relation to the application for judicial review initiated by the originating process in SC 754 of 2007 on 25 October 2007, there was power in a judge of the Supreme Court to order that Mr Eastman remain in the Belconnen Remand Centre because such continued custody was necessary for the applications for judicial review that were to be heard by a Full Court of the Supreme Court on 5 December 2007.

It is ironic, in the light of the statements of Dr Perry set out in 179 and 180 above, that the only orders that remain the subject of challenge are the non-removal orders made on 13 November 2007, in respect of applications for judicial review of non-removal decisions made in the proceeding for a s 424 inquiry.

The relevant inquiry was put squarely to Dr Perry in the course of her oral submissions:

[SPENDER J]: “ If a person is legitimately and validly in the remand centre and that person has matters pending in the Court of Appeal or in the Supreme Court, there is no power in the Supreme Court to order that that custody in the remand centre continue if the judge is of the view that that continued custody in the remand centre is necessary for the just administration of that proceeding?
MS PERRY: We do contend that, but we do not contend, for example, that the court could not intervene if the conditions were such as to constitute a contempt of court.”

The contention on behalf of the Superintendent is that it is only in circumstances that would constitute contempt, or the destruction of the subject matter of the litigation, that non-removal orders might be made. In particular, an order simply to facilitate the conduct of proceedings, or the preparation by a person of his case, could not support an exercise of power of this kind.

It was put to Dr Perry by Ryan J that:

“… Dr Perry, you’re now seeking effectively a declaration because whether we set aside the orders or not, in order to prevent the matter being moot, you seek a declaration which will resolve the question of whether a power exists and the extent of it.”

The concluding submissions by Dr Perry were in these terms:

“The terms in which the declaratory relief is presently sought is clearly not appropriate and we consider on balance that it’s not possible to formulate a declaration given what has now occurred in sufficiently certain terms …”

The fact that the orders sought to be challenged have expired would not necessarily prevent the making of orders setting them aside, or the making of appropriate declarations. The fact that the orders have ceased by effluxion of time to have any practical effect, is, nonetheless, a relevant factor as to whether any utility would be served by making any order or declaration.

There can be no doubt that any superior court has the power to ensure that the processes for the administration of justice are not fatally imperilled. The principles on which it would be appropriate to make orders of the kind made in the various proceedings by the Chief Justice canvassed in these proceedings have the subject of authoritative exposition by the High Court in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380.

Criticism of the exercise of such a power by reference to the fact-specific circumstances of any particular case is quite a different matter. The sufficiency of evidence to establish the need for the detention of Mr Eastman in the Belconnen Remand Centre for the purpose of ACTCA 44 of 2007 and ACTCA 45 of 2007 in the Court of Appeal on 5 December 2007 has not been the subject of any ground of appeal in any Notice of Appeal, nor in any application for judicial review.

In all of those circumstances, and particularly having regard to the uncertainty and confusion in relation to the context in which various orders were made, and the significant shifts in position by the Superintendent as to (i) the proceedings in which the Chief Justice’s orders are challenged and (ii) whether there was an absence of power in the Supreme Court (or indeed in the Court of Appeal) to make a non-removal order at all, or whether that power could be exercised only when to decline to exercise it would result in the destruction of the subject matter of the proceeding, or would condone contempt of court, it is sufficient to order that the appeals in ACTCA 34 of 2007, ACTCA 41 of 2007, ACTCA 44 of 2007, and ACTCA 45 of 2007 be dismissed.

There should be no order as to costs.

I certify that the preceding two hundred and five (205) numbered paragraphs

are a true copy of the Reasons for Judgment herein of the Court.

Associate:
Date: 22 May 2009

Counsel for the Appellant:  Dr M Perry QC with Mr D J C Mossop
Solicitor for the Appellant:  ACT Government Solicitor
Counsel as Amicus:  Mr T M Howe QC with Mr T M Glover
Solicitor as Amicus:  Australian Government Solicitor
Dates of hearing:  13 and 14 February 2008
Date of judgment:  22 May 2009