Kamm v State of New South Wales (No 3)

[2017] NSWCA 68

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Kamm v State of New South Wales (No 3) [2017] NSWCA 68
Hearing dates:	31 March 2017
Date of orders:	31 March 2017
Decision date:	31 March 2017
Before:	Payne JA
Decision:	(1)   Applicant granted leave to file motion dated 29 March 2017 in court and to move on it instanter. (2)   Leave granted to amend the existing filed Summons Seeking Leave to appeal (3)   Leave granted to file Draft notice of appeal (4)   Vary Order 1 made on 3 February 2017 to provide that: (a)   the applicant will file written submissions by 5pm 10 April 2017. (b)   Vacate Order 1(b). (c)   Order 1(c) made on 3 February 2017 confirmed. (5)   Vacate Order 2 made on 3 February 2017. (6)   Vacate Order 7 made on 3 February 2017. (7)   Otherwise confirm the orders made on 3 and 6 February 2017. (8)   Reserve costs of the motion and today. (9)   List matter for directions on 12 April 2017 at 9.30am, such to be vacated if notified by the parties that it is no longer required.
Catchwords:	PROCEDURAL – application to amend Summons Seeking Leave to Appeal – constitutional law issue raised – where prosecution of appeal not delayed
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) Judiciary Act 1903 (Cth) ss 40, 78B
Cases Cited:	Kamm v State of NSW [2016] NSWCA 339 Kamm v State of NSW (No 2) [2017] NSWCA 14
Category:	Procedural and other rulings
Parties:	William Kamm (applicant) State of New South Wales (respondent)
Representation:	Counsel: Mr M Robinson SC / Mr C Waterstreet (applicant) Mr B Thomson (solicitor for the respondent)   Solicitors: Aquila Lawyers (applicant) Crown Solicitors Office (respondent)
File Number(s):	2016/32698
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law division Citation: [2016] NSWSC 1 Date of Decision: 8 January 2016 Before: Harrison J File Number(s): 2014/195850

Judgment – ex tempore

[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]]

1. PAYNE JA: Mr Kamm seeks leave to appeal from a decision of Harrison J on 8 January 2016 made under the Crimes (High Risk Offenders) Act 2006 (NSW). As I have earlier remarked, the history of this matter is an unhappy one. It has twice come before me to deal with procedural issues regarding the delays in the prosecution of this application: see [2016] NSWCA 339 and [2017] NSWCA 14. These reasons presume familiarity with my earlier judgments.

2. On the last occasion before me, I made orders in the nature of “guillotine” orders to endure that this matter was ready for hearing by early May 2017 in the following terms:

Orders of 3 February 2017:

(1)   Grant leave to applicant to file on or before 4pm 31 March 2017

(a)   any additional submissions;

(b)   any proposed fresh evidence on the appeal, being the proposed statement of Dr Roberts and/or additional documents;

(c) the White Books, as required under Uniform Civil Procedure Rules 2005 (NSW) r 51.39 .

(2)   In the event of non-compliance with Order 1 these proceedings will be dismissed, the applicant to pay respondent’s costs.

(3)   Liberty to apply to Payne JA’s associate on 48 hours’ notice.

(4)   Any disputes concerning document production including any subpoena returnable before Payne JA.

(5)   Grant leave to the respondent to communicate by email to the Associate to Payne JA, copied to applicant’s solicitors:

(a)   what day they propose to file response (assuming compliance with Order 1); and

(b)   Whether a day in the period of 8 -11 May is suitable for hearing the matter.

(6)   Grant leave to applicant to file in Court document titled “outline of submissions on behalf of the applicant” (undated)

(7)   Matter listed for directions at 9.30am Thursday 6 April 2017, such listing to be vacated if Order 2 comes into effect.

Orders of 6 February 2017:

(1)   The matter is listed for hearing for one day on 8 May 2017.

(2)   The respondent to serve and file its written submissions and any evidence in response by 4pm on 28 April 2017.

(3)   The applicant to serve and file any written submissions strictly in reply by 4pm on 5 May 2017.

3. Order 1 of my order of 3 February 2017 has not been complied with as regards the applicant’s written submissions. Mr Robinson SC submits, and I accept, that he did not understand the existing order 1(a) to require him to file written submissions today.

4. On 29 May 2017, a notice of motion was filed by Mr Kamm, who seeks leave to amend his Summons Seeking Leave to Appeal. The notice of motion was supported by an affidavit sworn by the applicant’s solicitor, John Omar Juweinat, on 29 March 2017.

5. I accept that the applicant has made some effort towards complying with the orders made, although regrettably Mr Robinson SC was only briefed very recently.

6. Submissions made on behalf of the applicant today made clear that the applicant seeks to challenge the constitutional validity of the Crimes (High Risk Offenders) Act 2006. Mr Robinson SC also indicated to me that he would likely be applying to have the constitutional issue removed under s 40 of the Judiciary Act 1903 (Cth) to the High Court for determination. The following submissions were made:

[3] The motion seeks to substantially re-cast the appeal that is made pursuant to section 22 of the Crimes (High Risk Offenders) Act 2006 (NSW).

[4] Annexed to the motion is a form of draft Summons Seeking Leave to Appeal.

[5] Also, the applicant has produced a draft Notice of Appeal which he seeks to rely on for the appeal.

[6] The draft Notice of Appeal sets out the detailed proposed new grounds of appeal and raises a Constitutional ground of invalidity.

[7] Section 64 of the Civil Procedure Act 2005 (NSW) provides the Court with power to order leave to a party to amend any document in the proceedings at any stage. Subsection (2) provides that all “necessary” amendments are to be made for the purpose of, inter alia, determining “the real questions raised by or otherwise depending on the proceedings”. Subsection (3) expressly permits amendment that has the effect of adding a cause of action that has arisen after the commencement of the proceedings.

[8] These amendments require no further or additional evidence to be called by the parties. It only requires legal submissions. Leave is sought because, regrettably, the plaintiff’s legal representatives did not pick up the points until recently.

[9] The Constitutional argument is new and it was not argued below.

[10] Leave is sought to argue the point.

[11] It is appreciated that the application is made in the context of the appeal having been on foot for a long time and the Court having to make tight directions in Kamm v State of New South Wales (No 2) [2017] NSWCA 14 (3 February 2017).

[12] However, since that date, new counsel has been briefed and a new eye has been cast.

[13] If leave to file the amended summons is granted, it is expected that the applicant will seek to:

Issue section 78B Notices to the Commonwealth and State Attorneys General pursuant to section 78B of the Judiciary Act 1901 (Cth); and

Make an urgent application for removal of the Constitutional issue to the High Court of Australia pursuant to section 40 of the Judiciary Act 1901 (Cth).

[14] It is appropriate for the Constitutional issues to be removed as the findings of fact have already been made (by Harrison J in State of New South Wales v Kamm (Final) [2016] NSWSC 1) and it concerns the institutional integrity of the Supreme Court of NSW as should be determined by the High Court of Australia.

[15] The principles contained in Wainohu v New South Wales (2011) 243 CLR 181 apply and, while Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575 appears to the contrary (concerning the continuing detention of a serious sexual offender), it is distinguishable since the legislation concerned there, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) contained a provision for the judge to set out “detailed” reasons in making a determination (section 17).

[16] On this appeal, the subject Crimes (High Risk Offenders) Act 2006 (NSW) does not contain any provision for the sitting judge to record reasons for his or her decision.

[17] Accordingly, the decision in Wainohu applies and the Act is invalid.

7. Mr Thomson, who appeared on behalf of the State of New South Wales, did not oppose the making of the orders giving effect to the amendments sought by the applicant, subject to existing orders bringing the matter on for hearing being confirmed.

8. For reasons I have already expressed (see [2017] NSWCA 14 at [18]), there has been serious and sustained non-compliance by Mr Kamm and his representatives with the Court’s procedural directions. Nonetheless, I am persuaded by Mr Robinson SC that this is a case where Mr Kamm should be permitted to amend the application to this Court for the purpose of determining what he submits are the real questions raised by or otherwise to be determined in the proceedings. In particular, I am persuaded by the submission that the amendments require no further or additional evidence to be called by the parties.

9. While I am persuaded to vary order 1 of the orders made on 3 February 2017 and vacate order 2 of the orders made on 3 February 2017, no application is made to vacate the hearing on 8 May 2017. Mr Robinson SC has undertaken to file the White Book by 5pm today. He can file his written submissions by 5pm on 10 April 2017. It is common ground now (which was not the position before me earlier) that no further evidence will sought to be adduced by Mr Kamm at the hearing in this Court. On that basis Mr Thomson believes that the State can meet its obligation under the existing timetable for its submissions, the matter having been significantly refined by the amendments.

10. I will not make any order for the service of s78B notices. Mr Robinson SC informed me that he will personally draft those notices and I accept his assurance that he is well aware of his obligations to ensure prompt service of such notices.

11. I propose to make the orders sought in the applicant’s notice of motion and to vary the orders earlier made to permit the matter to be readied for hearing on 8 May. I will vacate the guillotine order earlier made.

12. Mr Thomson submitted that I should reserve the costs of the motion and today and I propose to make that order.

Orders

13. Accordingly, I make the following orders:

1. Applicant granted leave to file motion dated 29 March 2017 in court and to move on it instanter.

2. Leave granted to amend the existing filed Summons Seeking Leave to appeal

3. Leave granted to file Draft notice of appeal

4. Vary Order 1 made on 3 February 2017 to provide that:

1. the applicant will file written submissions by 5pm 10 April 2017.

2. Vacate Order 1(b).

3. Order 1(c) made on 3 February 2017 confirmed.

5. Vacate Order 2 made on 3 February 2017.

6. Vacate Order 7 made on 3 February 2017.

7. Otherwise confirm the orders made on 3 and 6 February 2017.

8. Reserve costs of the motion and today.

9. List matter for directions on 12 April 2017 at 9.30am, such to be vacated if notified by the parties that it is no longer required.

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Decision last updated: 31 March 2017