Knight v Australian Capital Territory
[2016] ACTCA 3
•15 February 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Knight v Australian Capital Territory |
Citation: | [2016] ACTCA 3 |
Hearing Date(s): | 20 May, 27 October 2015 |
DecisionDate: | 15 February 2016 |
Before: | Burns J |
Decision: | The application for leave to appeal is dismissed. |
Catchwords: | PRACTICE AND PROCEDURE – leave to appeal – whether decision is final or interlocutory – legal character rather than practical effect – decision interlocutory – no prospects of success – application dismissed. JURISDICTION OF COURTS – criminal injuries compensation –meaning of undetermined application under Criminal Injuries Compensation Act 1983 (ACT) – transitional provisions – application of decision in Australian Capital Territory v Pinter (2002) 121 FCR 509. |
Legislation Cited: | Australian Capital Territory (Self Government) Act 1988 (Cth) s 23 Criminal Injuries Compensation Act 1983 (ACT) Victims of Crime (Financial Assistance) (Amendment) Act 1999 (ACT) ss 14, 16 |
Cases Cited: | Australian Capital Territory v Pinter (2002) 121 FCR 509 Brouwer v Titan Corporation Ltd (1997) 73 FCR 241 SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 |
Parties: | Julian Knight (Applicant) Australian Capital Territory (Respondent) |
Representation: | Counsel Self-represented (Applicant) Mr McCarthy (Respondent) |
| Solicitors Self-represented (Applicant) ACT Government Solicitor (Respondent) | |
File Number(s): | ACTCA 21 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Master Mossop Date of Decision: 19 December 2014 Case Title: In the matter of an application by Knight Citation: [2014] ACTSC 337 |
BURNS J:
By an application dated 11 May 2015 the applicant, Julian Knight, seeks leave to appeal out of time from a decision of Master Mossop, as his Honour was then titled. The decision, given on 19 December 2014, dismissed an application for an extension of time for the applicant to apply for compensation under the Criminal Injuries Compensation Act 1983 (ACT) (the CIC Act) for injuries alleged to have occurred in February, March and May 1987, and also dismissing the application for compensation itself, which had been filed without the grant of an extension of time.
The applicant has filed a Draft Notice of Appeal indicating that he intends appealing from “that part of the order where his Honour found”:
(a)that he was not bound to follow the decision of the Full Court of the Federal Court in Australian Capital Territory v Pinter (2002) 121 FCR 509 (Pinter).
(b)that the appellant’s application for criminal injuries compensation was not a right which constitutes property for the purposes of s 23 (1) (a) of the Australian Capital Territory (Self Government) Act 1988 (Cth) (the Self Government Act).
Background
By an application dated 10 June 2014 in proceedings SC 262 of 2014 the applicant applied for compensation under the CIC Act for injuries said to have been sustained by him in 1987. By a further application dated 10 June 2014 in the same proceedings, he applied for an extension of time within which to file his application for compensation. On 19 December 2014, Master Mossop found that the Supreme Court did not have jurisdiction to determine the applicant’s application for compensation, and that the Registrar of the Supreme Court did not have power to accept or determine either application filed by the applicant. He therefore ordered that the proceedings be dismissed for want of jurisdiction.
The applicant is currently serving a sentence of life imprisonment in Victoria. The incidents that are said to give rise to his application for compensation are alleged to have occurred when he was a junior staff cadet at the Royal Military College, Duntroon. The applicant alleges that he was subjected to “various and constant acts of bastardization by Senior Staff Cadets”. He alleges that he was physically injured on three occasions by actions of senior staff cadets, in February, March and May 1987.
The present application first came before me on 20 May 2015, at which time the respondent raised as a preliminary issue whether the decision of Master Mossop was final or interlocutory. I directed the respondent to file and serve written submissions on those issues it intended agitating on the hearing of the application by 10 June 2015, with the applicant to file and serve his submissions by 1 July 2015. I did so out so out of fairness to the applicant, who is not represented by a legal practitioner.
On 13 July 2015 the matter was listed for further directions, at which time the applicant informed the Court that he had been unable to prepare his submissions due to the conditions in which he was being held in prison in Victoria. Thereafter, the matter was adjourned to a further directions hearing on 4 August 2015, but the applicant had again not filed submissions as directed, again citing difficulties caused by his imprisonment. The matter was then adjourned until 10 September 2015, with the applicant being informed that this would be his last opportunity to file written submissions. On 9 September 2015 the respondent emailed my associate indicating that the applicant was in solitary confinement and had limited access to his legal materials. The parties requested that I vacate the directions hearing listed on 10 September and adjourn the matter for a further month. I made orders in chambers on 9 September vacating the directions hearing listed on 10 September, and relisted the matter for further directions on 13 October 2015. On that date, I was advised that there had been no change to the circumstances of the applicant’s imprisonment, and I accepted that it was unlikely that he would be able to prepare written submissions within a reasonable time. I adjourned the matter to 27 October 2015 for the applicant to make oral submissions. Having heard the applicant and respondent on 27 October 2015 I reserved my decision.
The decision of Master Mossop
At [5] – [6], Master Mossop set out the legislative background to criminal injuries compensation in the ACT:
5. The Criminal Injuries Compensation Ordinance 1983 (ACT) came into effect on 30 June 1983. Upon self-government it became an Act: Australian Capital Territory (Self- Government) Act 1988 (Cth) (“Self-Government Act”) s 34. I will refer to it as the “CIC Act”. The Victims of Crime (Financial Assistance) (Amendment) Act 1999 (ACT) substantially amended the CIC Act and also changed its name to the Victims of Crime (Financial Assistance) (Amendment) Act 1983 (ACT). I will refer to the Victims of Crime (Financial Assistance) (Amendment) Act 1999 (ACT) as the ‘Amending Act’. I will refer to the Act post-1999 as the ‘VOC Act’.
6. The VOC Act gives jurisdiction to the Magistrates Court to deal with applications for compensation under the Act: s 26. The CIC Act gave jurisdiction to the Supreme Court, the Magistrates Court or the Registrar of the Supreme Court to determine applications under the Act. In the circumstances of this case, namely, where no proceedings were instituted in relation to the relevant offences, the CIC Act gave power to the Registrar of the Supreme Court to determine the application. The Territory contends that the VOC Act applies and hence only the Magistrates Court could have jurisdiction to consider an application by Mr Knight.
For convenience I will adopt the same abbreviations as Master Mossop.
Before Master Mossop, the respondent submitted that the VOC Act applied and neither the relevant transitional provisions in the Amending Act (in particular, s 16) nor any other provision preserved the applicant’s entitlement to make an application under the CIC Act.
Section 16 of the Amending Act provided that the CIC Act was to continue to apply to any “undetermined applications for compensation” lodged after 23 June 1998. The term “undetermined application for compensation” is defined in s 14 of the Amending Act, for the purposes of Part VI of that Act, which includes s 16, as:
“an application for compensation under the [CIC] Act where, immediately before the commencement day –
(a)no award had been made in relation to the application;
(b)an interim award had been made in relation to the application, but no final award had been made; or
(c)if a final award had been made –
(i)an appeal in relation to the final award had been made but not finally disposed of; or
(ii)the period for making any such appeal had not expired.
Section 16 of the Amending Act provided that the CIC Act “continues to apply in relation to an undermined application for compensation made after 23 June 1998 as if the amendment to the [CIC] Act affected by the [Amending Act] had not been made”. This was subject to the terms of s 16 (2), which precluded the award of compensation for pain and suffering in relation to an “undetermined application for compensation”. The respondent pointed to the definition of “undetermined application for compensation”, and submitted that because the applicant’s application for compensation was not in existence at the time that the Amending Act commenced it was not an “undetermined application for compensation” as defined, and s 16 did not apply to it. As a consequence, the respondent submitted that the applicant’s application was governed by the VOC Act, which gave jurisdiction to the Magistrates Court. The respondent submitted that the decision in Pinter did not affect the issue.
The applicant submitted that the reference to “undermined application for compensation” in the Amending Act should be read as including applications not yet lodged at the time the Amending Act commenced. In support of this submission he pointed to the heading of s 16 of the Amending Act and to portions of the explanatory memorandum for the Bill which became the Amending Act. He further submitted that the decision in Pinter applies so as to entitle him to claim compensation for pain and suffering.
Master Mossop decided that the definition of “undetermined application for compensation” in the Amending Act made it clear that such an application must have been on foot immediately before the commencement day, which was 24 December 1999. I interpolate at this point to observe that even if there had been some ambiguity in the text of the Amending Act, the contents of the explanatory memorandum to the Bill which became the Amending Act makes it clear beyond question that the interpretation adopted by Master Mossop corresponds with the legislative intention. The relevant part of the explanatory memorandum is set out below:
Transitional Provisions
Part VI of the Bill contains transitional provisions which set out the way in which applications that were made under the current Criminal Inquiries Compensation Act 1993 and which have not been finalised when the amendments commence are to proceed after the amendments commence. These applications are known as undetermined applications; this term includes applications which are subject to appeal.
Applications which were made before 23 June 1998 are to continue as though the amendments had not been made.
The existing legislation will also apply to undermined applications made after 23 June 1998 except that no component of compensation for pain and suffering can be included or increased in relation to those applications either at first instance, on appeal or following an application to vary an award of compensation.
However, applicants who cannot be awarded compensation for pain and suffering because of the transitional provisions will be given an additional 12 months in which to apply for an award of special assistance. These applicants will need to satisfy all the eligibility criteria for awards of special assistance which are set out in the Act as amended by this Bill.
The significance of 23 June 1998 is that it is the date on which the Government announced that assistance to victims would no longer include a component for pain and suffering.
Master Mossop then considered, and rejected, the proposition that s 41 of the Interpretation Act 1967 (ACT) applied so that the CIC Act still applied to the applicant’s application for compensation. It is unnecessary to say anything further about this issue, as the Draft Notice of Appeal does not seek to challenge this finding.
Finally, Master Mossop addressed the decision in Pinter. After considering the reasons of both the majority and minority in Pinter, Master Mossop expressed dissatisfaction with the reasoning of the majority. I will interpolate at this point to observe that I share his dissatisfaction, and personally consider the decision of the minority to be correct (although I would personally adopt the reasoning of Dowsett J over that of Finn J). Neither my, nor Master Mossop’s dissatisfaction with the decision and reasoning of the majority in Pinter is, however, to the point. The question is whether the decision bound Master Mossop to find that the applicant’s application for compensation was governed by the CIC Act. In that regard, Master Mossop said two things. First, that as the Full Court of the Federal Court was no longer in the Territory’s appellate hierarchy, he was technically not bound to follow the decision in Pinter. His Honour immediately followed that statement by the observation that he nevertheless should generally follow a decision of the Full Court of the Federal Court on an appeal from the Territory. Secondly, he said that the decision in Pinter could be distinguished as the judges in Pinter “were dealing with the matter on the basis that [the] “property in question was a right that arose upon an application being made to enliven the statutory process and there was, at the least, an entitlement to have a determination made”: at [65]. He continued:
65...Sections 5 and 6 of the CIC Act do not, in their terms, create any right to compensation or any liability on the part of the Territory. They merely empower the making of an award by the “court” to the person in accordance with the statute. That contrasts, for example, with Attorney-General v Chaffey where the parties accepted that compensation rights accrued when the worker sustained injury: see (2007) 231 CLR 651 at [6]. Therefore, the mere existence of a statute allowing an application to be made did not create any liability in the Territory. Rather the provisions empowered the making of an application which could then lead to an award of compensation by the Supreme Court, the Registrar of the Supreme Court or the Magistrates Court. It was only upon the making of an award that any liability of the Territory arose: s 27. In the absence of an award, there was no “right to receive a payment of money”: cf Australian Tape Manufacturers v Commonwealth (1993) 176 CLR 480 at 509. There could not be even any expectancy until an application was made to the Registrar because the essential ingredient in generating that expectancy, an application to the Registrar, had not occurred: cf National Trustees Executors & Agency Co of Australasia Pty Ltd v Commissioner of Taxation (Cth) (1954) 91 CLR 540 at 557, 571. It is the making of the application that was relied upon by the majority judges in the Supreme Court to take the matter out of the category of “a power to take the advantage of an enactment” and characterise it instead as a substantive right to have the application for an award of compensation heard and determined: Frank at [27]. Because of the absence of any statutory entitlement or liability existing in the absence of an application, the situation is different from the “cause of action cases’ such as: Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297; Commonwealth v Mewett (1997) 191 CLR 471; and Smith v ANL Ltd (2000) 204 CLR 493. Further, it is different from the situation in Peverill where the claimant had already submitted claims to the Health Insurance Commission and argued that a chose in action in the nature of a speciality debt existed by reason of there being a debt owed to him under a statute: Peverill at 227, 231; Starke, Assignments of Choses in Action in Australia (Butterworths, 1972) at [112].
66. In those circumstances I find that the mere right to take advantage of the enactment is not a right which constitutes property for the purposes of s 23(1)(a). As a consequence, the decision in Pinter does not compel the conclusion that the provisions of the Amending Act which removed the plaintiff’s entitlement to compensation are invalid in their application to him. Therefore, there is no basis upon which the balance of the Amending Act, in particular those provisions which removed the jurisdiction of the Supreme Court and invested the jurisdiction wholly in the Magistrates Court could be found to be invalid.
Submissions in the present proceedings
The applicant made oral submissions to the effect that Master Mossop was bound to follow the decision in Pinter, and that the decision in Pinter went beyond those cases where an application for compensation had been lodged before the commencement date of the Amending Act, and also applied to “anyone who had suffered a relevant criminal injury in the ACT during the period 1983 to 1999”. This meant that anyone who had suffered a relevant injury during that period was entitled to claim compensation for pain and suffering no matter when they commenced proceedings for compensation.
With respect to the question whether the decision of Master Mossop was interlocutory or final, he submitted:
There is somewhat of a contradiction, with respect, in his Honour’s findings in that whilst his Honour found that the changes to the Criminal Injuries Compensation Act had removed the entitlement to claim for pain and suffering, his Honour also found, on the question of jurisdiction, that the Supreme Court of the ACT or a registrar of the ACT was not able to determine my application but the ACT Magistrates Court was.
Now, on that basis, your Honour, his Honour’s decision was interlocutory in that it didn’t finally dispose of the question of what entitlements, if any, I had to claim for pain and suffering in relation to a criminal injury but if we return to his Honour’s first finding, your Honour, that with respect to whether an application for pain and suffering in relation to an injury that had happened prior to the amendment was still able to be made, and his Honour found that it wasn’t, then that essentially finally determines the question of any right of entitlement to claim for pain and suffering and therefore, your Honour, his Honour’s judgment would be final.
The respondent submitted that, in law, the decision of Master Mossop was interlocutory. It further submitted that there was no sufficient explanation for the applicant’s delay in seeking to appeal the decision of Master Mossop, and that there were no prospects of success on any appeal as proposed by the applicant.
Consideration
I am satisfied that the decision of Master Mossop was, in law, not a final decision but an interlocutory one. As French J (as his Honour then was) said in SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410, at [18], the classification of a decision as final rather than interlocutory depends on its legal character rather than its practical effect. His Honour then went on to cite with approval the decision of the Full Court of the Federal Court in Brouwer v Titan Corporation Ltd (1997) 73 FCR 241, that in applying the test whether a judgment finally disposed of rights “the court must have regard to the legal rather than the practical effect of the judgment, so that the question is whether the judgment finally determines, in a legal sense, all the rights of the parties that are in issue in the proceedings’. Later, at [23], he said:
Where a court holds that it lacks jurisdiction to entertain an application and that the application is to be dismissed as incompetent, the dismissal order effectively disposes of the proceedings in the court in which the application in brought. The order does not “finally dispose of the rights of the parties” in the sense necessary to characterise it as a final judgment. It simply means that the court in which the proceedings is brought lacks the authority to deal with it. It says nothing about the rights which the party seeks to vindicate. It may be that an application has been brought in the wrong court. So an application may be brought in the Federal Magistrates Court which exceeds the subject matter value by which the relevant jurisdiction of that court is defined. An order dismissing the application as incompetent would not finally dispose of the rights of the parties to it. They would simply have to go somewhere else. Similarly, an application brought before the Federal Court may be dismissed as incompetent on the basis that it lies outside the jurisdiction conferred by statute upon this Court. In the case of judicial review proceedings it may be that the matter could be entertained in the High Court in the exercise of the original jurisdiction conferred upon it by s 75(v) of the Constitution. The character of the order does not for that reason alone decide the rights or liabilities in issue. There may be a case like Zoya Kosmodemyanskaya 79 FCR 71 where the finding of want of jurisdiction flows from a finding on the merits. So if the finding of want of jurisdiction depends upon findings of jurisdictional fact fatal to the merits of the claim, then it may be said to be a final judgment.
Both Allsop J (as his Honour then was) and Tracey J agreed with French J on this issue.
It is, in my opinion, very clear that the decision of Master Mossop was, in a legal sense, interlocutory rather than final. Master Mossop concluded:
(a)that the applicant’s claim for compensation did not fall to be determined under the CIC Act, but was to be determined under the VOC Act;
(b)the provisions of the VOC Act vested jurisdiction in the Magistrate Court; and
(c)as a consequence, the Supreme Court lacked jurisdiction to hear the applicant’s application.
As the respondent observed, the applicant’s application for compensation was not decided on the merits by Master Mossop. The fact that the relief available to the applicant under the VOC Act differed from that available under the CIC Act does not affect whether Master Mossop’s decision was final or interlocutory. It was open to the applicant, if he wanted to pursue his submission that his claim fell to be determined under the CIC Act, and as a result he was entitled to compensation for pain and suffering, to seek leave to appeal from the decision of Master Mossop, as an interlocutory decision, to a single judge of the Supreme Court, rather than pursuing his application in the Magistrates Court and seeking to persuade that Court that the application should be heard under the provisions of the CIC Act.
Even if I am wrong in my characterisation of the judgment of Master Mossop as interlocutory, I would nevertheless refuse leave to appeal on the basis that there are no prospects of success in any appeal as proposed by the applicant. In my opinion, Master Mossop was plainly correct in determining that the ratio in Pinter is confined to the circumstances of those applicants for compensation who had lodged an application prior to the commencement of the Amending Act. He was also correct to find that a “mere right to take advantage of the enactment is not a right which constitutes property for the purposes of s 23(1)(a)” of the Self Government Act: See Frank v Australian Capital Territory (2001) 146 ACTR 15.
In the light of the facts that the applicant is a prisoner serving a lengthy term of imprisonment, that he is not a legal practitioner and he has not been represented by a legal practitioner in these proceedings, I would not have dismissed his present application on the basis of delay if there had been an arguable basis for the proposed appeal, but I am satisfied that any appeal as proposed by the applicant has no prospects of success.
The application for leave to appeal is dismissed.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 15 February 2016 |
3
5