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Patsalis v New South Wales

Patsalis v New South Wales

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Case Copied 25 September 2012 74 min read

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Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Patsalis v State of New South Wales [2012] NSWCA 307
Hearing dates: 25 June 2012
Decision date: 25 September 2012
Before: Allsop P at [1];
Basten JA at [8];
Sackville AJA at [111]
Decision:
(A) With respect to the application for leave to appeal from the judgment of Schmidt J delivered on 26 July 2011-
(1) Grant leave to appeal and deem the draft notice of appeal in the white book to have been filed as the notice of appeal.
(2) Allow the appeal and set aside the order made by Schmidt J.
(3) In place thereof, declare that the applicant, although a person convicted of a serious indictable offence, does not require leave pursuant to the Felons (Civil Proceedings) Act 1981, s 4, to commence the proceedings in which he seeks relief pursuant to s 69 of the Supreme Court Act 1970, or a declaration or injunction as an alternative to relief under s 69, with respect to the terms and conditions of his imprisonment.
(4) Order that the respondent pay the applicant's costs of the proceeding in this Court, other than the costs associated with the constitutional issue.
(B) With respect to the application for leave to appeal from the judgment of Schmidt J delivered on 7 March 2012, refusing interlocutory relief -
Dismiss the application with no order as to costs.
(C) With respect to the application for leave to appeal from the judgment of Beech-Jones J delivered on 23 March 2012 -
(1) Grant leave to appeal and deem the draft notice of appeal in the white book to have been filed as the notice of appeal.
(2) Dismiss the appeal.
(3) Order that the applicant pay 75% of the respondent's costs of the application and appeal.
(D) In respect of the judgment of Beech-Jones J delivered on 13 April 2012 -
(1) On the basis that leave to appeal was not required, dismiss the appeal.
(2) Dismiss the application for leave to appeal.
(3) Order that the applicant pay the respondent's costs in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
ADMINISTRATIVE LAW - judicial review - challenge to validity of departmental guidelines - whether challenge only available in respect of a particular decision or exercise of statutory power

APPEAL - leave to appeal - significant issues of principle - availability of mandatory injunction for threatened negligent conduct - conditions of incarceration - whether leave to appeal should be granted

CONSTITUTIONAL LAW - jurisdiction of Supreme Court - State Act purported to require felons in custody to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWCA 307
Decision Date: 25 September 2012

CaseChat Overview and Summary

In *Patsalis v New South Wales*, the applicant, a prisoner, sought to challenge the conditions of his incarceration. The primary dispute concerned whether the applicant, as a convicted felon, was required to obtain leave from the court before commencing civil proceedings under section 4 of the *Felons (Civil Proceedings) Act 1981* (NSW). The proceedings involved seeking relief under section 69 of the *Supreme Court Act 1970* (NSW) or alternative declarations and injunctions. The matter came before the Court of Appeal of New South Wales.

The legal issues before the Court of Appeal included whether the *Felons (Civil Proceedings) Act 1981* applied to proceedings seeking relief under public law principles, such as those relating to the terms and conditions of imprisonment. The court also considered the availability of a mandatory injunction for threatened negligent conduct and whether the Supreme Court's jurisdiction was limited by the principle of attainder. Further issues related to the interpretation of the *Felons (Civil Proceedings) Act 1981*, particularly in light of amendments and repealed provisions, and the appropriate costs orders for the proceedings.

The Court of Appeal reasoned that the requirement for leave under section 4 of the *Felons (Civil Proceedings) Act 1981* did not extend to applications for relief in accordance with public law principles, such as those concerning the conditions of imprisonment. The court held that the applicant, despite being convicted of a serious indictable offence, was not required to obtain leave to commence proceedings seeking relief under section 69 of the *Supreme Court Act 1970* or alternative declarations and injunctions related to his imprisonment. The court also addressed the availability of quia timet relief, distinguishing it from judicial review of discretionary decisions.

The Court of Appeal granted leave to appeal and allowed the appeal concerning the requirement for leave to commence proceedings. It set aside the primary judge's order and declared that the applicant did not require leave under the *Felons (Civil Proceedings) Act 1981* to commence proceedings seeking relief regarding the terms and conditions of his imprisonment. The respondent was ordered to pay the applicant's costs of that proceeding, excluding costs associated with the constitutional issue. Applications for leave to appeal from other interlocutory decisions were dismissed, with varying costs orders made against the applicant.

Orders

Orders of the court

(A) With respect to the application for leave to appeal from the judgment of Schmidt J delivered on 26 July 2011-

(1) Grant leave to appeal and deem the draft notice of appeal in the white book to have been filed as the notice of appeal.

(2) Allow the appeal and set aside the order made by Schmidt J.

(3) In place thereof, declare that the applicant, although a person convicted of a serious indictable offence, does not require leave pursuant to the Felons (Civil Proceedings) Act 1981, s 4, to commence the proceedings in which he seeks relief pursuant to s 69 of the Supreme Court Act 1970, or a declaration or injunction as an alternative to relief under s 69, with respect to the terms and conditions of his imprisonment.

(4) Order that the respondent pay the applicant's costs of the proceeding in this Court, other than the costs associated with the constitutional issue.

(B) With respect to the application for leave to appeal from the judgment of Schmidt J delivered on 7 March 2012, refusing interlocutory relief -

Dismiss the application with no order as to costs.

(1) Grant leave to appeal and deem the draft notice of appeal in the white book to have been filed as the notice of appeal.

(2) Dismiss the appeal.

(3) Order that the applicant pay 75% of the respondent's costs of the application and appeal.

(D) In respect of the judgment of Beech-Jones J delivered on 13 April 2012 -

(1) On the basis that leave to appeal was not required, dismiss the appeal.

(2) Dismiss the application for leave to appeal.

(3) Order that the applicant pay the respondent's costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Patsalis v State of New South Wales [2012] NSWCA 307
Hearing dates:	25 June 2012
Decision date:	25 September 2012
Before:	Allsop P at [1]; Basten JA at [8]; Sackville AJA at [111]
Decision:	(A) With respect to the application for leave to appeal from the judgment of Schmidt J delivered on 26 July 2011- (1) Grant leave to appeal and deem the draft notice of appeal in the white book to have been filed as the notice of appeal. (2) Allow the appeal and set aside the order made by Schmidt J. (3) In place thereof, declare that the applicant, although a person convicted of a serious indictable offence, does not require leave pursuant to the Felons (Civil Proceedings) Act 1981, s 4, to commence the proceedings in which he seeks relief pursuant to s 69 of the Supreme Court Act 1970, or a declaration or injunction as an alternative to relief under s 69, with respect to the terms and conditions of his imprisonment. (4) Order that the respondent pay the applicant's costs of the proceeding in this Court, other than the costs associated with the constitutional issue. (B) With respect to the application for leave to appeal from the judgment of Schmidt J delivered on 7 March 2012, refusing interlocutory relief - Dismiss the application with no order as to costs. (C) With respect to the application for leave to appeal from the judgment of Beech-Jones J delivered on 23 March 2012 - (1) Grant leave to appeal and deem the draft notice of appeal in the white book to have been filed as the notice of appeal. (2) Dismiss the appeal. (3) Order that the applicant pay 75% of the respondent's costs of the application and appeal. (D) In respect of the judgment of Beech-Jones J delivered on 13 April 2012 - (1) On the basis that leave to appeal was not required, dismiss the appeal. (2) Dismiss the application for leave to appeal. (3) Order that the applicant pay the respondent's costs in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	ADMINISTRATIVE LAW - judicial review - challenge to validity of departmental guidelines - whether challenge only available in respect of a particular decision or exercise of statutory power APPEAL - leave to appeal - significant issues of principle - availability of mandatory injunction for threatened negligent conduct - conditions of incarceration - whether leave to appeal should be granted CONSTITUTIONAL LAW - jurisdiction of Supreme Court - State Act purported to require felons in custody to…