M v Chief Executive Officer of the Department of Corrective Services
[2016] WASC 185
•21 JUNE 2016
M -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CORRECTIVE SERVICES [2016] WASC 185
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 185 | |
| 21/06/2016 | |||
| Case No: | CIV:1681/2016 | 16 JUNE 2016 | |
| Coram: | BEECH J | 16/06/16 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Declarations refused | ||
| B | |||
| PDF Version |
| Parties: | M CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CORRECTIVE SERVICES |
Catchwords: | Remedies Declaration Concession made by respondent meant no legal controversy remained between the parties Whether utility in declarations Turns on own facts |
Legislation: | Nil |
Case References: | Australian Competition and Consumer Commission v MSY Technologies Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378 Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CORRECTIVE SERVICES
Respondent
Catchwords:
Remedies - Declaration - Concession made by respondent meant no legal controversy remained between the parties - Whether utility in declarations - Turns on own facts
Legislation:
Nil
Result:
Declarations refused
Category: B
Representation:
Counsel:
Applicant : Mr A J Robson
Respondent : Ms R Young
Solicitors:
Applicant : Legal Aid (WA)
Respondent : State Solicitor's Office
Case(s) referred to in judgment(s):
Australian Competition and Consumer Commission v MSY Technologies Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378
Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421
Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1
1 BEECH J: The applicant seeks declarations relating to the binding effect of a leave of absence order issued by the Mentally Impaired Accused Review Board (the Board).
2 The respondent resists the declarations on the grounds that formal concessions he has made mean that there is no utility in the declarations, or that for other discretionary reasons no declaration should be made.
3 At the hearing I declined to make the declarations and gave brief reasons, with fuller reasons to follow. These are those reasons. In summary, I accept the respondent's contention that in light of his concessions there is no utility in making the declarations.
The facts
4 As at April 2016, the applicant was in custody.
5 On 8 April 2016 the Board made a leave of absence order.
6 At that time, the applicant was being held in Hakea Prison. On 19 April 2016 the Director of Sentence Management told the applicant's solicitor that the applicant would not be permitted to access his leave of absence from Hakea Prison and would not be transferred to a minimum security prison.
7 On 13 May 2016, the Board cancelled the previous leave of absence order and replaced it with a new leave of absence order of 1 June 2016. The new order included conditions, one of which was that leave of absence for the purpose of community integration be supported by at least one employee of Outcare from the hours of 8.00 am to 10.00 am daily and otherwise unsupported for 13 days of every fortnight, with the applicant returning to a prison on the 14th day and night.
8 On 27 May 2016 officers of the Department of Corrective Services planned a meeting for 3 June 2016 in respect of the applicant's leave of absence, which was said to be due to start on 1 June 2016.
9 On 31 May 2016, the applicant filed an application for an injunction to require the respondent to comply with the Board's leave of absence order of 1 June 2016.
10 As a result, Mr Hosie, an officer of the Department of Corrective Services, swore an affidavit on 1 June 2016 stating that he had become aware that the applicant's access to leave needed to be acted upon earlier than 3 June 2016. The affidavit stated that the Department would comply with a leave of absence order as long as the conditions of the leave of absence were able to be met.
11 At the hearing on 2 June 2016, the applicant did not pursue the application for an injunction.
12 On 2 June 2016, the applicant went on his leave of absence.
13 On 10 June 2016, the Board granted a new leave of absence order.
Declarations sought
14 The applicant seeks the following declarations:
(a) The respondent and the Department of Corrective Services must comply with a leave of absence order made in accordance with s 28 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act), consistent with and subject to any conditions imposed by the Board.
(b) Once the conditions of the applicant's leave of absence are satisfied, the applicant shall be released on the leave of absence irrespective of the security rating assigned to him or the prison the applicant is in.
(c) The Department of Corrective Services failed to act in accordance with its obligations under the leave of absence order, which was effective as from 1 June 2016, by:
(i) not facilitating the release of the applicant on 1 June 2016 in accordance with the leave of absence order; and
(ii) instead planning a meeting for 3 June 2016 'to make the appropriate recommendation' for the applicant's leave of absence.
15 On 3 June 2016, the respondent filed concessions in which he conceded that:
(1) a mentally impaired accused in respect of whom a leave of absence order has been made in accordance with s 28 of the Act is entitled to access that leave of absence irrespective of the security rating assigned to them, provided the conditions in the leave of absence order are met; and
(2) the respondent and the Department of Corrective Services must apply a leave of absence order made in accordance with s 28 of the Act consistent with and subject to any conditions imposed by the Board in the leave of absence order.
16 On 13 June 2016, in response to the applicant's submissions, the respondent filed amended concessions. These included additional concessions that:
(3) if the Governor has made an order under s 27(2) of the Act and that order has not been cancelled, the Board has the power under s 28 of the Act to order leaves of absence for a mentally impaired accused; and
(4) a leave of absence order issued by the Board under s 28 of the Act has legal effect.
17 Concession (1) above was also amended, so that the following concession was made:
a mentally impaired accused in respect of whom a leave of absence order has been made in accordance with the Act is entitled to access that leave of absence irrespective of the security rating assigned to him or her in accordance with the Department of Corrective Services' policies and procedures, or the prison in which the mentally impaired accused is in, provided the conditions in the leave of absence order are met.
Should a declaration be made?
18 The applicant submits that the factual background demonstrates that there is a real legal controversy between the parties as to whether the release of the applicant on a leave of absence is a matter determined by the Board or by the respondent, and in particular as to whether the respondent must release the applicant in accordance with a leave of absence order if the applicant is not in a minimum security prison.1
19 In my view, while there may have once been a controversy, in light of the concessions made by the respondent there is now no legal controversy between the parties. The respondent has made formal concessions to the same effect as the first two declarations sought by the applicant. I will return to the third declaration shortly.
20 The fact that there is now no legal controversy does not deny the jurisdiction of the court to make a declaration. However, it bears upon whether a declaration has utility, and whether as a matter of discretion a declaration should be made.
21 A declaration can only be made if there is a proper contradictor in the proceedings.2 The respondent was a proper contradictor at the time the proceedings were commenced notwithstanding that, subsequently, it has conceded all of the applicant's contentions. At the time the proceedings were instituted there was a controversy between the parties. The respondent's subsequent concessions do not mean that the claim for declarations fails for want of a contradictor.3
22 However, a declaration should only be made if it has a utility. The question is whether the declarations sought by the applicant would have utility in light of the respondent's concessions.
23 The thrust of the applicant's submissions as to the utility of a declaration is his contention that the respondent's concessions did not extend to a concession that a leave of absence order must be given effect according to its terms regardless of the prison in which the mentally impaired accused is held.4 Whatever the position may have been prior to the respondent's amended concessions, the position is now clear. The respondent has conceded, in a formal and binding way, that a leave of absence order takes effect according to its terms, and must be given effect to by the respondent, regardless of the prison in which the mentally impaired accused is held and regardless of the security rating assigned to them.
24 The third declaration sought by the applicant relates to events in the past, namely the respondent's conduct from 30 May 2016 to 1 June 2016. It is often inappropriate to make a declaration that is not declaratory of any present right but simply acknowledges a past infringement.5 In this case, in circumstances where the applicant is now on a leave of absence and where the respondent has made the concessions to which I have already referred, I do not think there is any utility in the third declaration sought. Consequently, I decline to make it.
25 Further, I am not persuaded that there is a need to have a declaration which is publicly available, or available to others involved in supporting the leave of absence.6 To the extent that third parties need to be made aware of the respondent's obligations, the formal written concessions can be provided to them.
Conclusion
26 For these reasons, as a matter of discretion, I would not make the declarations sought by the applicant.
1 Applicant's submissions dated 7 June 2016 [19].
2Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, 437 - 438.
3Australian Competition and Consumer Commission v MSY Technologies Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378 [30] - [33].
4 Applicant's submissions [23], [24], [28], [29], [34], [38] and [42].
5Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1, 30 - 33; Heydon JD, Leeming MJ and Turner PG, Meagher, Gummow & Lehane'sEquityDoctrines & Remedies (5th ed, 2015) [19-300].
6 Applicant's submissions [25].