Re the Attorney General Of Western Australia the Hon Mr Jim McGINTY Or His Delegates - [2003] WASC 149

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE THE ATTORNEY GENERAL OF WESTERN AUSTRALIA THE HON MR JIM McGINTY OR HIS DELEGATES; EX PARTE HUNTER [2003] WASC 149

CORAM: EM HEENAN J

HEARD: 31 JULY 2003

DELIVERED : 31 JULY 2003

FILE NO/S: CIV 1733 of 2003

MATTER :Application for Writs of Prohibition, Mandamus and Certiorari

EX PARTE
LINDSAY HUNTER
Applicant
AND
THE ATTORNEY GENERAL OF WESTERN AUSTRALIA THE HONOURABLE MR JIM McGINTY OR HIS DELEGATES
First Respondent
THE MINISTER FOR THE MINISTRY OF JUSTICE THE HONOURABLE MR JIM McGINTY OR HIS DELEGATES
Second Respondent
THE DIRECTOR OF COMMUNITY CORRECTIONS MR ALAN PIPER OR HIS DELEGATES
Third Respondent
THE SUPERVISOR OF COMMUNITY CORRECTIONS MIRRABOOKA MR JOHN SAWLE OR HIS DELEGATES
Fourth Respondent
THE COMMUNITY CORRECTIONS OFFICER MIRRABOOKA MS PAULA HYDE OR HER DELEGATES
Fifth Respondent
THE SUPERINTENDENT OF HAKEA PRISON MR R JENNINGS OR HIS DELEGATES
Sixth Respondent

Catchwords:

Vexatious Proceedings Restrictions Act - Application by declared vexatious litigant for leave to commence proceedings - No prima facie ground for proceedings - Leave refused

Legislation:

Fines, Penalties and Infringement Notices Enforcement Act (1994)

Sentence Administration Act (1995)

Vexatious Proceedings Restrictions Act (2002)

Result:

Leave to commence proceedings refused

Category: B

Representation:

Counsel:

Applicant:     In person
First Respondent           :     Mr C P Wayte
Second Respondent       :     Mr C P Wayte
Third Respondent         :     Mr C P Wayte
Fourth Respondent        :     Mr C P Wayte
Fifth Respondent          :     Mr C P Wayte
Sixth Respondent          :     Mr C P Wayte

Solicitors:

Applicant:     In person
First Respondent           :     State Crown Solicitor
Second Respondent       :     State Crown Solicitor
Third Respondent         :     State Crown Solicitor
Fourth Respondent        :     State Crown Solicitor
Fifth Respondent          :     State Crown Solicitor
Sixth Respondent          :     State Crown Solicitor

Case(s) referred to in judgment(s):

Hunter v Commissioner of Police [2003] WASC 10

Case(s) also cited:

Nil

EM HEENAN J: This is an application brought by Lindsay Hunter under the provisions of the Vexatious Proceedings Restrictions Act 2002 seeking leave to commence proposed proceedings in this Court. Leave is necessary because he is a declared vexatious litigant. He has made previous applications for leave to commence other proceedings and that has been refused.
The applicable principles of law are contained in the decision of Hunter v Commissioner of Police [2003] WASC 10 delivered by Pullin J on 17 January 2003. In that judgment his Honour said at [5]:
"Section 4 of the 2002 Act authorises the court to make an order prohibiting a person from instituting proceedings without the leave of a court. Section 5 of the 2002 Act provides that proceedings are not to be instituted in contravention of an order under s 4(1)(d), and by reason of the transitional provision, that section has to be read as stating that proceedings are not to be instituted in contravention of the order of Hasluck J."
Under the 2002 Act an application for leave to institute proceedings is to be made to this Court and is to be accompanied by an affidavit in support of the application. Among other things, s 6 contains subs (5) which directs the Court to dismiss the application for leave if it considers that:
(a)the affidavit does not disclose everything required by subs (3) to be disclosed;
(b)the proceedings are vexatious proceedings; or
(c)there is no prima facie ground for the proceedings.
In the present case, by a notice of originating motion filed in this court on 15 June 2003, the applicant Mr Hunter seeks leave to commence proceedings for writs of prohibition, mandamus and certiorari. The proposed respondents are, first, the Attorney-General for Western Australia or his delegates; secondly, the Minister of Justice or his delegates; thirdly, the director of community corrections or his delegates; fourthly, the supervisor of community corrections, Mirrabooka, Mr Sawle, or his delegates; fifthly, the communication corrections officer, Mirrabooka, Ms Paula Hyde or her delegates; and, sixthly, the superintendent of Hakea Prison, Mr Jennings, or his delegates.
It is necessary to say something about the background in order to understand why it is contended that an arguable case for prerogative relief by way of prohibition, mandamus or certiorari exists against any of the respondents. The situation is that the applicant, Mr Hunter, was arrested and confined to prison under the provisions of the Fines, Penalties and Infringement Notices Enforcement Act (1994) in default of payments of fines. He was serving a period of imprisonment when he was released on a home detention order granted under Pt V of the Sentence Administration Act (1995) on 24 December 2002.
That home detention order was initially suspended on 10 February 2003 and later cancelled on 18 March 2003 and, as a result, the applicant was taken back into custody and continues in prison under the Fines, Penalties and Infringement Notices Enforcement Act. He is due for release in about a month's time. The original home detention order is Exhibit RJS 4 to the affidavit of Mr Sawle in these proceedings.
It is contended by Mr Hunter that, firstly, the suspension and, secondly, the cancellation, of his home detention order and consequently his rearrest and imprisonment are unlawful and invalid for a variety of reasons. Some of those reasons go back to the grounds for the imposition of a period of imprisonment under the Fines, Penalties and Infringement Notices Enforcement Act. These grounds challenge the constitutional validity of that Act, the role and authority of the Magistrates in the Courts of Petty Sessions where the fines and penalties were originally imposed, and a number of other kindred matters.
These proposed grounds of challenge were the subject of other proceedings brought simultaneously by Mr Hunter by which he sought leave to commence an application for a writ of habeas corpus challenging the lawfulness of his detention. Those proceedings were dismissed for reasons which we need not go into, so there are no arguable grounds in the present case to challenge the validity of the order for his imprisonment.
These proposed proceedings do not provide any basis to challenge the validity of the order for imprisonment under the Fines, Penalties and Infringement Notices Enforcement Act. However, what is the proposed subject of challenge is the validity of the decisions, firstly, to suspend and, secondly, to cancel the home detention order.
Mr Hunter argues that he was not in breach of the home detention order and that the alleged basis given for its suspension and cancellation was never established. He also argues that, contrary to the provisions of the Act, he was not given written notice of the reasons for the cancellation of the home detention order as soon as practicable, not having received any written notice until 29 July 2003. He contends that for this reason the suspension and the cancellation of the home detention order was invalid.
That does not appear to me to be a tenable argument because, as has been pointed out in submissions made on behalf of the Community Corrections Department, a failure or delay in giving reasons for the suspension or cancellation of home detention order does not affect the validity of the revocation of any such order.
I do not consider that there is an arguable case made out to the contrary so as to warrant the grant of leave on that point. However, that does not mean that any person who is the subject of a home detention order and who is aggrieved at some decision to revoke, suspend or vary its terms is without access to any legal review or remedy. It appears to me that in certain circumstances there may be access to prerogative relief, declaratory orders or other forms of judicial review. This is not the occasion to examine the extent of those potentialities but I certainly acknowledge that a person who is subject to legal confinement or whose liberties are restricted by the terms of such an order is able to have access to the Courts to review alleged errors or injustices in the revocation or variation of rights of conditional release.
However, in the present case it does not seem to me that anything has been shown which would demonstrate that the suspension of the home detention order in February, or its cancellation in March, was unauthorised or made in error. An account of what had happened has been provided by the affidavit of Mr Sawle sworn on 28 July and I read from some passages of that affidavit.
On 8 February 2003 a community justice officer received a telephone call from the Wembley police reporting that Mr Hunter had been located in bushes at Perry Lakes. There is a telephone note of that call outlining the circumstances in which Mr Hunter was found by the police.
Mr Hunter then rang an officer of the department on 10 February 2003 to arrange for a change of his accommodation within the terms of the home detention order. Ms Hyde, the officer speaking to Hunter, then discussed with him the contents of a letter which she had sent to him on 4 February 2003 which he claimed he had never received. In particular, this contained a report of him being absent from the approved home‑site on 31 January without permission.
The applicant asserted to Ms Hyde that he had not received the letter and stated that he had been on work business to purchase a motherboard for his employer's computer. He was reminded by Ms Hyde that he did not have permission to be off‑site and he responded that he thought he could go out and about on work business. He was advised that his situation was to be reviewed that day.
Ms Hyde, the officer concerned, then discussed the matter with the senior case work supervisor, Mr Cullen, and with Mr Sawle, the manager of Community Justice Services at Mirrabooka. Mr Sawle decided that as the off‑site incident on 8 February was the second time Hunter had been found off-site his home detention order would be suspended and a warrant issued to return him to custody. The suspension order and arrest warrant were respectively made and issued on 10 February 2003 and are in evidence.
The case officer, Ms Hyde, received a further telephone call from Mr Hunter on 10 February. She told him during this call that his home detention order had been suspended. He stated that he considered that the decision was unconstitutional and believed it to be part of a larger conspiracy against him. Mr Hunter proffered a number of excuses but was told of his obligations and the supervising role of Community Justice Services. It is said that he then threatened Ms Hyde.
I will not go further into the conversation on that occasion but Hunter was informed that at that point his home detention order was not cancelled but simply suspended and that he should hand himself in at the nearest police station. Mr Sawle then received a telephone call from Mr Hunter later in February, protesting about the decision to suspend his home detention order. Mr Sawle reiterated the conditions of the home detention order, the warnings that had been given, and his continued failure to comply culminating in the recent off‑site issue.
Mr Hunter presented a series of protests and explanations for the reasons why he was found at Perry Lakes on 8 February 2003 but these were not accepted by Mr Sawle and in his opinion did not provide any reasonable excuse for him not being at home or at work. Again Mr Hunter alleged that he was the subject of a conspiracy and of unconstitutional action. Further attempts to explain the matter by Mr Sawle were unsuccessful and the conversation on Mr Hunter's side deteriorated into abuse and he hung up.
Despite being informed of the suspension of his home detention order Mr Hunter did not surrender to the police and he was not found until 8 May 2003, when he was returned to custody. Because he was missing during this period and because, for the reasons which emerge from my recounting of these telephone conversations he was aware of the suspension of the order, an order cancelling the home detention order was made by Mr Sawle on 18 March 2003. The reasons were that his whereabouts were unknown.
Ordinarily such an order should be served on a person such as the applicant as soon as practicable but, obviously, with Mr Hunter's whereabouts being unknown that could not be done. It could, however, have been done some time soon after his apprehension on 8 May 2003. It was not done until 29 July 2003, apparently by oversight, but I am satisfied that that oversight, even though it did not have any direct legal significance, has not resulted in prejudice for Mr Hunter because since he has been returned to custody he has commenced these proceedings for leave and the proceedings for leave to apply for habeas corpus and, by that process, has had the formalities of his detention examined and scrutinised. It does not seem to me that there is anything which has emerged from this omission which could be regarded as inconsistent with the enforcement by the authorities of the home detention order conditions involving, as this has, the suspension of the order and then its cancellation.
In short, I am not satisfied that there are any reasonably arguable prospects for obtaining prerogative relief by way of injunction, certiorari, prohibition or mandamus and I refuse leave to commence proceedings. That concludes the matter.