Lewis v Australian Capital Territory
[2018] ACTCA 49
•21 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Lewis v Australian Capital Territory |
Citation: | [2018] ACTCA 49 |
Hearing Date: | 31 October 2018 |
DecisionDate: | 21 November 2018 |
Before: | Burns J |
Decision: | See [22]-[23] |
Catchwords: | APPEALS - Application for Leave to Appeal Out of Time – periodic detention cancelled – sentence had expired – applicant not given opportunity to attend inquiry – special circumstance – adequate explanation for failure to lodge appeal within time prescribed – significant legal issues raised – whether applicant’s case is weak – availability of vindicatory damages is a live issue – content of right to compensation for unlawful detention – s 18(7) of the Human Rights Act 2004 (ACT) |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5405 Crimes (Sentencing) Act 2005 (ACT) s 11(2) Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT) Crimes (Sentence Administration) Act2005 (ACT) ss 58, 59, 66, 67, 79 |
Cases Cited: | Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56 Fernando v the Commonwealth [2014] FCAFC 181; 231 FCR 251 |
Texts Cited: | The Australian Concise Oxford Dictionary (Oxford University Press, 2nd ed, 1992) |
Parties: | Steven James Lewis (Appellant) The Australian Capital Territory (Respondent) |
Representation: | Counsel Mr J Maconachie QC with Mr S McMahon and Mr P Tierney (Appellant) Ms H Younan (Respondent) |
| Solicitors Ken Cush and Associates (Appellant) ACT Government Solicitor (Respondent) | |
File Number: | ACTCA 35 of 2018 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Refshauge J Date of Decision: 16 February 2018 Case Title: Lewis v Australian Capital Territory Citation: [2018] ACTSC 19 |
BURNS J:
The applicant, Steven James Lewis, was the plaintiff in proceedings before Refshauge J in which he sought damages for false imprisonment at common law, and pursuant to s 18(7) of the Human Rights Act 2004 (ACT) (the HRA). The hearing of the applicant’s claim proceeded before his Honour on 15, 16, and 17 February 2016, after which his Honour reserved his decision. Most regrettably, judgment was not delivered until 16 February 2018, at which time Refshauge J gave judgment for the plaintiff in the sum of $1.00: Lewis v Australian Capital Territory [2018] ACTSC 19.
The applicant did not appeal within the prescribed period of 28 days. On 23 July 2018 he lodged an application for leave to appeal out of time from the judgment of Refshauge J. The application came before me on 31 October 2018 at which time the respondent opposed the application. It is appropriate that I briefly set out the chronology of events relevant to the application.
In October 2007 the applicant was charged with an offence of recklessly or intentionally inflicting grievous bodily harm after a fight with another man outside a bar, in which the applicant smashed a glass into the face of the other man. He pleaded guilty to the offence in the ACT Magistrates Court and on 24 January 2008 he was sentenced to a term of 12 months’ imprisonment. The Magistrates Court ordered under s 11(2) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), as the provision then stood, that the whole of the sentence of 12 months’ imprisonment be served by way of periodic detention. Periodic detention, as a sentencing option, was abolished and replaced by intensive correction orders by the Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT).
The periodic detention order required the applicant to serve a period of custody each weekend from early Friday evening until late Sunday afternoon during the term of 12 month sentence of imprisonment. The applicant failed to attend on a number of occasions, placing him in breach of the periodic detention order. At that time, the supervision of periodic detention orders was governed by the Crimes (Sentence Administration) Act2005 (ACT) (the Administration Act). Section 58 of the Administration Act applied to an offender if an offender failed to report to perform periodic detention and had not been given approval not to perform detention for the detention period. Section 59 of the Administration Act provided that the relevant chief executive must apply to the Sentence Administration Board (the Board) for an inquiry under s 66 of that Act if s 58 applied to an offender for a second or subsequent period of the offender’s periodic detention period. Section 66 provided that the Board may, at any time, conduct an inquiry to decide whether an offender has breached any of the offender’s periodic detention obligations. Where the chief executive applied under s 59 for an inquiry, the Board was obliged to conduct the inquiry as soon as practicable: s 66(4).
Before starting an inquiry under s 66, the Board was required to give written notice of the inquiry to, inter alia, the offender: s 67(1). After conducting an inquiry, if the Board decided that s 58 applied to the offender in relation to two or more detention periods of the offender’s periodic detention period, the Board was obliged, as soon as practicable, to cancel the offender’s periodic detention. Where the Board cancelled an offender’s periodic detention, the offender was required to serve the remainder of the sentence by full-time detention until when the periodic detention period would have ended apart from the cancellation, and otherwise in accordance with the terms of the sentence: s 79(4).
As I have noted, the applicant failed to report for periodic detention on multiple occasions between February and May 2008. On or about 12 May 2008 the applicant left the ACT and did not return until early July 2008. The relevant chief executive applied to the Board for an inquiry under s 66 of the Administration Act. On 24 June 2008 the Board conducted an inquiry without giving notice of that inquiry to the applicant. On 8 July 2008 the Board cancelled the periodic detention order and a warrant was issued for the applicant’s arrest. On 5 January 2009 the plaintiff was arrested at his place of employment in the ACT, and he was detained in custody until 27 March 2009. On 25 March 2009 the applicant commenced two sets of proceedings in the Supreme Court in which he sought various orders. The history of the proceedings from that point is described by Foster J in Lewis v Australian Capital Territory [2015] ACTSC 167, at [30]-[36]:
30.On 25 March 2009, the plaintiff commenced two sets of proceedings in this Court (proceedings SCC 353 of 2009 and SCC 354 of 2009) in which he claimed orders under s 18(6) of the Human Rights Act 2004 (ACT) to have him brought before the Court to determine the lawfulness of his detention, an order for habeas corpus for his release from detention, a declaration that ss 68(2)(f), 79 and 82 of the Administration Act are all invalid and such other relief as the Court considered appropriate. He did not challenge the validity of s 58 of the Administration Act. He also claimed costs.
31.On 27 March 2009, the former Chief Justice made an habeas corpus order in respect of the plaintiff. The plaintiff was brought before the Court. The Chief Justice then released the plaintiff on bail subject to conditions in relation to residence and reporting pending determination of the two sets of proceedings which the plaintiff had commenced on 25 March 2009.
32.Those proceedings were heard in July and November 2009. Regrettably, judgment was not given until 1 October 2013 (Lewis v Chief Executive Department of Justice and Community Safety (ACT) (2013) 280 FLR 118) (Lewis No 1).
33. The judge who determined those proceedings held that:
(a) Sections 68(2)(f), 69, 79 and 82 of the Administration Act were all valid and that the Legislative Assembly of the ACT had the power to invest the Board with the jurisdiction arising from those sections; and
(b) The decision of the Board to cancel the plaintiff’s periodic detention made on 8 July 2008 should be set aside.
34.On 1 October 2013, the trial judge made a formal order giving effect to his conclusion that the decision of the Board made on 8 July 2008 should be set aside. He also granted a declaration as to the validity of the challenged sections of the Administration Act and a declaration as to the legislative power of the ACT Legislative Assembly. He reserved for further consideration whether any other orders should be made in order to give effect to his Reasons for Judgment. Notwithstanding his remarks at 183 [394], the trial judge did not remit the matter to the Board to be reconsidered in light of his Reasons.
35.Subject to one matter, as far as I am aware, no other substantive orders have subsequently been made in Lewis No 1. That one matter is this. I have been told that, on 7 November 2013, the trial judge in Lewis No 1 granted a “temporary stay” of the plaintiff’s sentence. I have not been made aware of the precise terms of that temporary stay. I will proceed upon the basis that such a stay has been granted. In light of the foregoing matters, proceedings SCC 353 of 2009 and SCC 354 of 2009 remain on foot part heard before his Honour.
36.In Lewis No 1, the trial judge held that, under the Administration Act, the plaintiff had a right to appear at any inquiry conducted by the Board (151 [194]). He then held that good practice required the Board to make every reasonable effort to have an offender appear where at issue is the question whether his periodic detention should be cancelled (151 [195]). Next, his Honour held that, as a matter of law, it was not necessary for an offender to be present at the inquiry if his non-attendance is the result of a deliberate decision on his part not to attend (151 [196]). Otherwise, so his Honour held, it is necessary for an offender to be present (151–152 [197]). His Honour then held that, in the case of the present plaintiff, he was not satisfied that the plaintiff had had the opportunity that he should have been afforded to decide whether to attend before the Board or not (152–153 [205]). Ultimately, his Honour concluded that, by proceeding in the plaintiff’s absence in circumstances where it could not have been satisfied that the plaintiff was aware of the inquiry and had decided not to attend, the Board had denied natural justice to the plaintiff (152–153 [205]–[206]).
After reviewing the then provisions of the Sentencing Act and the Administration Act, and applying the decision in Whan v McConaghy (1984) 153 CLR 631, Foster J determined that the sentence imposed on the applicant had continued to run while the applicant was on bail as granted by the former Chief Justice, with the result that his sentence had expired.
In the earlier decision of Lewis v Chief Executive Department of Justice and Community Safety and Sentence Administration Board of the Australian Capital Territory [2013] ACTSC 198 (Lewis (No 1)), Higgins CJ set aside the decision of the Board cancelling the applicant’s periodic detention on the ground that the applicant had not been given an opportunity to attend the inquiry on 24 June 2008.
As I have already noted, the first instance proceedings regarding the applicant’s claim for damages was heard by Refshauge J in mid-February 2016, and judgment was handed down on 16 February 2018.
10. By virtue of r 5405(1)(b) of the Court Procedures Rules 2006 (ACT) (the Rules), the applicant was obliged to file any notice of appeal from the orders of Refshauge J within 28 days of the orders being made. In this case, that meant that the appellant was required to file his notice of appeal no later than 16 March 2018. This he did not do.
11. The applicant applied for leave to appeal out of time. This is governed by r 5405(2), which provides that the Court of Appeal “may, at any time, and for special reasons, give leave to file a notice of appeal”. An application for leave to appeal to the Court of Appeal can be determined by a single judge: Supreme Court Act 1933 (ACT) s 37J(1)(a).
12. The principles governing such applications were set out by Refshauge J in Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56 at [21]-[23]:
21. The principles may be summarised as follows:
1. Time limits are important and must, prima facie, be obeyed.
2. In order to justify a court acceding to an application to extend time, there must be some material on which the court can exercise its discretion.
3. Such an application should only be granted if, having regard to the important value of finality in litigation and the need for time limits to be respected, it is proper to do so.
4. There should be an explanation for the delay, as to which any action (other than to appeal) that has been taken by the applicant is relevant.
5. The court must consider any prejudice to the respondent in defending the proceeding, as caused by the delay, and any such prejudice will tell against the extension.
6. The mere absence of prejudice is not enough to justify the extension of time.
7. The merits of the appeal itself must be taken into account in deciding whether an extension of time should be granted.
8. The court, on considering an application for an extension of time within which to appeal, should not decide the appeal and, in an appropriate circumstance, an arguable case may be sufficient, though in the case of long delay it may be necessary to show that the applicant has a strong case.
9. Nevertheless, the application is to be determined by the court’s view of the demands of justice in accordance with a broad judicial discretion and not by the mere application of a verbal formula.
10. In particular, the court will look, above all else, to determine whether there has not been and will not be, if the application is refused, a miscarriage of justice which will always be an overriding consideration.
22.While the terms used are not identical, this is similar to the summary of principles set out by the Full Court of the Supreme Court in Director of Public Prosecutions for the Australian Capital Territory v The Honourable Acting Justice Brian Martin [2014] ACTSC 104 at [159]. Two considerations there expressly mentioned, but not, perhaps, clearly included in my summary above, are the length of the delay and whether the interests of third parties are affected.
23.As the court there noted, one must bear in mind the caution expressed by Burchett J in Pozniak v Minister for Health (1986) 9 ALN N256 that these considerations are “signposts to guide the court’s discretion” not “fences to limit the breadth of the field”.
13. The respondent emphasised the necessity for the Court to find “special reasons” for the granting of leave to appeal. In my opinion, this should be interpreted as requiring the Court to find circumstances that are “out of the ordinary”: see The Australian Concise Oxford Dictionary, 2nd edition, definition of “special”.
14. The applicant relied upon an affidavit which he affirmed on 23 July 2018. In summary, he said:
(a) the proceedings in Lewis (No 1) had taken years to resolve, including nearly four years for judgment to be handed down;
(b) the proceedings for damages before Refshauge J had taken years to resolve (proceedings having been commenced in 2009), including two years for judgment to be handed down;
(c) on his instructions, his lawyers made submissions on costs with regard to the proceedings before Refshauge J, but these were not passed on to his Honour by the Court Registry;
(d) he has been frustrated and disillusioned by the delays in resolving his claims over the last nine years;
(e) after Refshauge J handed down his decision on 16 February 2018, the applicant was given advice by his lawyers concerning his right to appeal, but he “formed the view that an appeal would probably take more time and lead to further delay and more frustration…”;
(f) he “gave up on everything” at that stage and he “felt there was no fairness”;
(g) after “seeking justice” for almost a decade the decision of 16 February 2018 “absolutely devastated” him;
(h) he quit his job and moved to live in Griffith, NSW;
his lawyers tried to contact him on numerous occasions, but he did not respond because he could not cope with the stress of having to think about the legal process; and
(j) he is now seeing a counsellor in Griffith.
15. The applicant was cross-examined and agreed that he had been in contact with his lawyers in the period from February to July 2018.
16. That the applicant knew of his appeal rights and was in contact with his lawyers from February to July 2018 is not conclusive. I observed the applicant while he was cross‑examined by the respondent. Without meaning any disrespect to him, it is clear that he is not highly educated and is relatively unsophisticated. It is entirely understandable that the applicant would have been disillusioned and even cynical about the administration of justice based upon his experiences, and worn-out by the unconscionable delays he experienced. It is fervently to be hoped that such a well-founded disillusionment in the administration of justice by the courts of this Territory is a special circumstance, in that it is unusual or out of the ordinary.
17. I am satisfied that the applicant has given an adequate explanation for his failure to lodge his appeal within the time prescribed.
18. I also note that the delay in seeking leave to appeal was not lengthy, being the period from 16 March 2018 to 23 July 2018. There is no suggestion that the respondent has suffered any prejudice by reason of the delay.
19. The applicant identified a number of significant legal issues he submitted would be raised on appeal:
(a)the correctness of the approach taken by Refshauge J based upon the decision in R (Lumba) v Secretary State for the Home Department [2011] UKSC 12; [2012] 1 AC 245 (Lumba);
(b)whether damages for vindication for deprivation of liberty are available in tort, and when they should be awarded, and whether these questions were appropriately addressed by Refshauge J;
(c)whether s 18(7) of the HRA provides an entitlement to damages for loss of liberty separate to the cause of action in tort, and, if so, what principles apply to assessing such damages.
20. The applicant’s case based upon Refshauge J’s application of the principles in Lumba appears to be weak. Those principles were applied in Fernando v the Commonwealth [2014] FCAFC 181; 231 FCR 251. I accept, however, that the availability of vindicatory damages in the circumstances of this case is a live issue. The content of the right to compensation for unlawful detention found in s 18(7) of the HRA has been the subject of different decisions by first instances judges of the Supreme Court: see Morro v Australian Capital Territory; [2009] ACTSC 118; 4 ACTLR 78; Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; 315 FLR 305; Strano v Australian Capital Territory [2016] ACTSC 4; 11 ACTLR 134. In my opinion there would be some public benefit in the Court of Appeal providing definitive guidance on this issue.
21. I am satisfied that each of the issues identified by the applicant are arguable, albeit that I cannot say that the applicant must succeed on the appeal.
22. In the circumstances, I grant the application. The applicant is given leave to file a Notice of Appeal substantially in the form of that found at Annexure SR9 of the affidavit of Simone Richards affirmed on 8 October 2018 before 4 pm on 23 November 2018.
23. The applicant is to pay the respondent’s costs of the application.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 21 November 2018 |
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