Kotzmann v Adult Parole Board of Victoria

[2011] VSCA 339

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2008 3865

THOMAS SAMUEL KOTZMANN

 Appellant

v

ADULT PAROLE BOARD OF VICTORIA   

and

First Respondent

SECRETARY OF THE DEPARTMENT OF JUSTICE

Second Respondent

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JUDGES:	ASHLEY, MANDIE and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 November 2011
DATE OF JUDGMENT:	7 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 339
JUDGMENT APPEALED FROM:	Kotzmann v Adult Parole Board Victoria & Anor [2008] VSC 356 (Judd J)

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ADMINISTRATIVE LAW – Appellant sought judicial review of decision cancelling his parole on administrative law grounds and on constitutional grounds – Appellant’s application dismissed at trial – Since notice of appeal filed, appellant had served relevant sentences and been released – Issues now moot and hypothetical – Appellant no longer had standing to challenge the validity of the Corrections Act and the Parole Board – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
The Appellant appeared in person
For the First and Second Respondent	Mr P Hanks QC with Mr T P Mitchell	Corrections Victoria
For the Attorney General for the State of Victoria	Mr S McLeish SC with Ms J Davidson	Victorian Government Solicitor’s Office

MANDIE JA (for the COURT):

1. The appellant brought a proceeding in the Trial Division, by originating motion dated 10 June 2008, in which he applied for judicial review of a decision made by the Adult Parole Board of Victoria (the first respondent) cancelling his parole.  The primary relief sought by him was an order in the nature of certiorari quashing the decision of the Parole Board which had been made on 16 January 2008.  The proceeding was dismissed by the learned trial judge on 15 September 2008.[1]  No order was made as to costs.

   [1]Kotzmann v Adult Parole Board Victoria & Anor [2008] VSC 356.

1. The arguments advanced by the appellant at trial involved not only an attack, by way of judicial review based on administrative law grounds, on the decision of the Parole Board cancelling his parole, but also a challenge to the validity of that part of the Corrections Act1986 which set up the Parole Board.  This challenge was based on constitutional grounds and raised arguments, inter alia, based on the Boilermakers case and on Kable v Director of Public Prosecutions (NSW).[2]  Questions considered by the trial judge included whether a judge appointed to the Parole Board was appointed as a persona designata and, even if so, whether the provisions covering appointment of a judge to the Parole Board were incompatible with the integrity of the relevant state courts that might be invested with federal jurisdiction.

   [2](1996) 189 CLR 51.

1. Since the filing by the appellant of his notice of appeal dated 26 September 2008, the appellant has completed all relevant sentences and been released.  The second respondent (the Secretary of the Department of Justice) submits that the issues in the appeal are now moot and that the appeal should be dismissed for that reason. 

1. It is clear that the issues raised in the appeal are now moot and hypothetical.  The application for judicial review and for quashing of the cancellation of the appellant’s parole order no longer serves any useful purpose and is futile, as Mr Kotzmann in substance conceded, accepting that it was no longer a live issue.  The challenge to the validity of the Parole Board and the relevant parts of the Corrections Act is in a like position.  Further, we consider that Mr Kotzmann has no standing or concrete interest now to agitate these questions.  Insofar as Mr Kotzmann may subsequently seek credit with regard to some future sentence yet unpassed, as Mr Kotzmann argued, this is hypothetical and a matter of mere speculation.  In the circumstances, we can find no legitimate basis for the appeal to proceed and be dealt with on the merits.  To his credit, Mr Kotzmann did not strenuously argue to the contrary.

1. For those reasons, the appeal is dismissed.

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