Sinanovic v NSW Director of Public Prosecutions

[2002] NSWSC 83

CITATION:	Sinanovic v NSW DPP [2002] NSWSC 83
CURRENT JURISDICTION:	Common Law Division Administrative Law List
FILE NUMBER(S):	SC 030037/01
HEARING DATE(S):	20 February 2002
JUDGMENT DATE:	25 February 2002
PARTIES :	Hakija Sinanovic (Plaintiff) New South Wales Commissioner of Corrective Services (Second Defendant) Leon Pfeiffer (Third Defendant) Cindy Moore (Fourth Defendant)
JUDGMENT OF:	Studdert J

COUNSEL :	Mrs M.A. Sinanovic (Plaintiff) (by leave) Mr. P. Strickland (2nd, 3rd, 4th Defendants)
SOLICITORS:	I.V. Knight (2nd, 3rd, 4th Defendants)
CATCHWORDS:	Administrative law - summons brought by prisoner seeking review of administrative decisions - principles applicable.
LEGISLATION CITED:	Felons (Civil Proceedings) Act Crimes Act Crimes (Sentencing Procedure) Act Crimes (Administration of Sentences) Regulation
CASES CITED:	Associated Provincial Picture Houses v Wednesbury Corporation (1948) 1 KB 223 Dinh v The Commissioner of Corrective Services [2000] NSWSC 969
DECISION:	See para 54

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW list

STUDDERT J

Monday 25 February 2002

030037/01 HAKIJA SINANOVIC v NSW DIRECTOR OF PUBLIC PROSECUTIONS & ORS

JUDGMENT

1 HIS HONOUR: The plaintiff, Hakija Sinanovic, filed a summons in the Administrative Law Division on 27 June 2001 seeking the following orders:

“1. An order the NSW DPP intervenes with NSW Dept of Corrective Services to ensure applicant remains at MRCC until conclusion of all pending legal matters now before the courts

2. An order to remain in Sydney MRCC to prepare pending court matters as per undertaking given to courts by NSW Dept of Corrective Services

3. An order to review classification and be re-classified from medium to minimum security classification

4. An order to be removed from Strict Protection

5. An order to be granted entitlements pursuant to NSW Correctional Centres Act 1952 and Prisons (General) Regulations 1995”

2 The plaintiff named four defendants: the New South Wales Director of Public Prosecutions was named as the first defendant, the New South Wales Commissioner of Corrective Services as second defendant, Leon Pfeiffer as third defendant and Cindy Moore as fourth defendant.

3 The proceedings against the first defendant were dismissed by order of Adams J on 10 July 2001. The third and fourth defendants were officers of the second defendant and hence it was that Mr Strickland of counsel appeared for all three defendants on the hearing of the summons.

4 In addition there were notices of motion which it will be necessary in due course to address in this judgment. Dunford J directed on 9 October 2001 that the summons and all notices of motion be heard together and he also directed that at such hearing the matters were to proceed on affidavit evidence and written submissions, together with such further oral submissions as the trial judge allowed. Dunford J noted on that occasion that the plaintiff had not sworn any affidavits himself, that he was not required for cross examination and that his personal attendance at the hearing was not required.

5 The wife of the plaintiff sought leave to appear for her husband on the hearing of the summons, as she had done in earlier proceedings, and leave was granted.

6 At the commencement of the hearing, Mrs Sinanovic sought and was granted a short adjournment to speak with her husband by telephone concerning the relief to be pursued on the summons, and following that adjournment the Court was informed that only orders 3 and 5 on the summons were being sought.

7 The hearing proceeded upon affidavit evidence. The plaintiff relied upon the following affidavits: an affidavit sworn by Maria Antoinetta Sinanovic on 4 July 2001, two further affidavits sworn on 27 July 2001, and further affidavits by the same deponent sworn on 30 July and 9 October 2001 and, finally, on an affidavit sworn by the same deponent on 7 February 2002. The defendants relied upon the following affidavits: affidavit of Frank Gaha sworn 31 July 2001, affidavit of Stephen Hogan sworn 31 July 2001 and affidavit of Kathleen Patricia Crilly sworn 20 February 2002. Mrs Sinanovic gave certain additional oral evidence and was cross examined. Kathleen Crilly was also cross examined.

8 The parties had filed lengthy written submissions and at the conclusion of the evidence further oral submissions were presented.

The plaintiff’s imprisonment

9 The plaintiff was convicted and sentences were imposed upon him for various offences by a number of judges of the District Court. Details as to the sentences and as to the various appeal processes which followed are set out in Annexure B to the affidavit of Frank Gaha abovementioned.

10 It is unnecessary for present purposes to refer to the detail of the offences which led to the plaintiff’s various terms of imprisonment. The sentences were imposed upon him by Karpin DCJ, Stewart ADCJ, Grogan DCJ, McGuire DCJ, Horler ADCJ and, lastly, by Luland DCJ. The sentence imposed by Stewart ADCJ was set aside when the conviction was quashed by the Court of Criminal Appeal and a new trial ordered. On that new trial, the plaintiff was again convicted and following his conviction Luland DCJ passed sentence upon the plaintiff. Such sentence was the last in a line of cumulative sentences.

11 When Horler ADCJ sentenced the plaintiff following his conviction on six counts involving various forms of dishonesty, his Honour imposed concurrent terms of imprisonment (which should have been penal servitude) for minimum terms of two years together with additional terms of twelve months. The plaintiff appealed to the Court of Criminal Appeal against his convictions and sentences, but his appeal was dismissed on 11 December 2000.

12 However, because of the quashing of the conviction and sentence in the earlier proceedings before Stewart ADCJ, the Court of Criminal Appeal adjusted the commencing and expiry dates for the various sentences, other than the sentence last imposed by Luland DCJ. Those sentences as adjusted are conveniently expressed in paras 5 and 6 of the orders of the Court of Criminal Appeal made on 11 December 2000:

“5. Thus the minimum term of 13 months imposed by Grogan DCJ (60624/97) will commence 3.11.97 and expire 2.12.98 with the additional term of 14 months to commence 3.12.98 and expire on 2.2.2000; the minimum terms of the sentence imposed by Horler ADCJ (60641/97) of 2 years penal servitude will commence 3.12.1998 and expire 2.12.2000 with the additional term of 12 months to commence on 3.12.2000 and expire 2.12.2001, the direction for release on parole on that date must be set aside in consequence of the sentence imposed by McGuire DCJ (60023/99) for a minimum term of 16 months imprisonment will now commence on 3.12.2000 and expire on 2.4.2002 with the additional term of 12 months to commence 3.4.2002 and expire 2.4.2003.

6. The appellant is to be released on parole on 2.4.2002.”

13 Luland DCJ then sentenced the plaintiff on 28 May 2001 following the plaintiff’s retrial on a charge of fraudulent misrepresentation and imposed a head sentence of eighteen months with a non parole period of two months, with such sentence to commence on 2 April 2002. It is to be observed that this is the date which the Court of Criminal Appeal had earlier specified to be the date for the plaintiff’s release upon parole.

14 The effect of the above sentences is that the plaintiff is due to be released upon parole on 2 June 2002.

15 There have been developments since the summons was filed which account for the plaintiff deciding to pursue only the claims for relief to which orders 3 and 5 on the summons related. Prior to the time that the summons was filed, the plaintiff was detained at the MRRC and this followed the making by judges at various times of recommendations that the plaintiff be detained at the MRRC until the conclusion of his legal matters before the courts. For instance, on 7 March 2000, Davidson DCJ made a recommendation to that effect (see Annexure M to the affidavit of Maria Antoinetta Sinanovic sworn 4 July 2001). However, the plaintiff was moved from MRRC to Junee Correctional Centre on 28 June 2001, the day after the summons was filed and he has been there ever since. He does not now complain of this placement continuing.

16 When the summons was filed the plaintiff was classified “B” with a strict protection status (see para 24 of the affidavit of Frank Gaha). However he was reclassified “C2” and the relevant Case Management Committee determined on that classification on 11 November 2001, upon reviewing the earlier recommendations of the case management team dated 2 November 2001 (see para 3 of the affidavit of Kathleen Crilly). It emerges further from Ms Crilly’s affidavit that the plaintiff’s classification and placement are due to be reviewed in May 2002. Ms Crilly has deposed in paras 4, 5 and 6 of her affidavit:

“4. A ‘C2’ classified inmate may be housed in a minimum security correctional centre. There are a number of correctional centres classified as minimum security. Junee and Silverwater Correctional Centres are two such centres.

5. The plaintiff is currently housed at Junee Correctional Centre being the plaintiff’s correctional centre of classification. Junee Correctional Centre has facilities to house strict protection inmates. Silverwater Correctional Centre does not have facilities to house strict protection inmates.

6. I refer to paragraph 3 of the affidavit of Maria Sinanovic sworn on 7 February 2002. The plaintiff may apply for a ‘C3’ security classification by completing an Inmate Application Form. The plaintiff has not completed any such application.”

The relief sought

17 I propose to consider the grounds for relief pursued on the hearing but I should advert before doing so to a preliminary issue raised by the defendants. That issue is prompted by the provisions of the Felons (Civil Proceedings) Act 1981, and in particular by ss 4 and 5 of that Act. The provisions are as follows:

“4. Leave to sue required for persons convicted of serious indictable offences

A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.
5. Grant of leave
A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.”

18 The plaintiff has been convicted of a number of offences which, by definition, are serious indictable offences. Section 4 of the Crimes Act defines “a serious indictable offence” as meaning:

“An indictable offence that is punishable by imprisonment for life or for a term of five years or more .”

19 The plaintiff has been convicted of indictable offences punishable by imprisonment for a term of imprisonment of five years or more, and hence the above sections of the Act become relevant.

20 Because of s 4 of the 1981 Act, the plaintiff “may not” institute civil proceedings without leave, unless the court is satisfied that the proceedings are not “an abuse of process and that there is prima facie ground for proceedings”.

21 The leave issue was first raised in argument upon the hearing of the summons and in these circumstances could not, in my judgment, be addressed as a preliminary issue. Section 5 requires the court to consider whether there was a prima facie ground for the proceedings presently before it, so that, inevitably, to consider the leave point the court was called upon to assess the substance of the plaintiff’s claim. As the language of s 5 contemplates, it would have been timely to consider the leave issue at the time the proceedings were instituted. In any event, the leave issue seems to me to be academic in the present circumstances. If the Court is satisfied that the plaintiff is otherwise entitled to any of the relief sought, it would follow that leave to pursue the proceedings should be granted. If the plaintiff has not proved any entitlement to relief, the summons should be dismissed.

22 Hence I now turn to consider the orders sought in paras 3 and 5 of the summons.

3. An order to review classification and be reclassified from medium to minimum security classification

23 Mrs Sinanovic asked the Court to make an order that the plaintiff be given a “C3” classification. The argument advanced was that having regard to the period that the plaintiff has already spent in custody, so much of which was with a “B” classification, the plaintiff should be afforded the benefit of a “C3” classification before his parole date, so that he is better equipped by such date to meet the demands of living outside a custodial environment. According to the affidavit of Ms Crilly, the plaintiff’s classification is not due for review until May 2002, so that if he is then given a “C3” classification that would only be in place for a few weeks before the plaintiff’s parole date, namely 2 June 2002.

24 The sentence imposed by Luland DCJ being a sentence for a term of less than three years, is one under which the plaintiff will become entitled to release upon parole at the end of the non parole period set by the sentencing judge: s 50(1) of the Crimes (Sentencing Procedure) Act 1999.

25 Mrs Sinanovic submitted that the decision to classify the plaintiff as “C2” when that classification was made was unreasonable.

26 In considering that submission, regard must be had to the limited nature of the review process available to this Court when it is being asked, as here, to review an exercise of administrative discretion.

27 Before making an order the effect of which would be to disturb the classification made in November last, this Court would have to be satisfied that the decision to classify the plaintiff as he was classified in November 2001 was “so unreasonable that no reasonable authority could ever have come to it” (see Lord Greene MR in Associated Provincial Picture Houses v Wednesbury Corporation (1948) 1 KB 223 at 234.

28 It is to be emphasised that it is not for this Court to conduct a rehearing in order to determine whether it would have regarded it as appropriate to give the plaintiff a “C2” classification when such classification was given, even if this Court was now equipped with the material necessary in order responsibly to make such an assessment.

29 This Court was referred to the decision of Kirby J in Dinh v The Commissioner of Corrective Services [2000] NSWSC 969 in which, by reference to authority, his Honour succinctly stated principles directly in point in the present case:

“36 …I should underline the nature of the evaluation which the Court must undertake. An examination of the issue of unreasonableness should not be mistaken for a rehearing on the merits. It is the Commissioner who, by the Regulation, is given the obligation of forming an opinion. It is not the Court. Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (supra) said this: (at 40/41)
"The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation [1948] 1 KB at 228."
37 Lord Hailsham LC in Re W (an Infant) [1971] AC 682, put the matter this way: (at 700)
"Not every reasonable exercise of judgment is right, and not every mistaken exercise of judgment is unreasonable. There is a band of decisions within which no court should seek to replace the individual's judgment with its own."
…………..
39 More than that, the task given to the Commissioner is that of forming a judgment. The cautionary words of Gibbs J in Buck v Bavone (1976) 135 CLR 110 are relevant. His Honour said this: (at 119)
"It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute ... The courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority would properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts."
40 Adopting these words, Gummow J in Minister for Immigration v Eshetu (1999) 197 CLR 611, made the following observation: (at 654)
"This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question."
41 His Honour added: (at 657)
"That other decision-makers may have reached a different view, and have done so reasonably, is not to the point."

30 I must approach this case with the above expressions of principle firmly in mind.

31 The evidence before this Court as to the material available to the Case Management Committee in November 2001 is incomplete, being virtually limited to the content of the affidavit of Ms Crilly. The plaintiff’s reclassification from “B” to “C2” had been deferred in September 2001 because of a then pending investigation into alleged wrongdoing by the plaintiff. Annexure B to Ms Crilly’s affidavit discloses that the investigation had by 2 November 2001 concluded favourably to the plaintiff and the committee recorded the plaintiff’s wish at that time to remain at Junee. In the same document it was recorded that the plaintiff wanted to apply for “C3” classification. However, the evidence discloses that in order to apply for a “C3” security classification the plaintiff is required to complete an Inmate Application Form, and this he has not yet done (see para 6 of the affidavit of Ms Crilly). In the classification and case plan review document of November 2001, a recommendation was recorded in these terms relevant to the plaintiff’s desire for a “C3” classification: “Will refer to psychologist for risk assessment.” That, I infer in the setting in the document, was a recommendation to be implemented before any decision was made as to whether to classify the plaintiff as “C3”.

32 Clause 22 of the Crimes (Administration of Sentences) Regulation 2001 defines categories “C2” and “C3” as follows:

“Category C2, being the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times but who need some level of supervision by a correctional officer or some other person authorised by the Commissioner.
Category C3, being the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times and who need not be supervised.”

33 I am quite unable to determine that a recommendation that an expert’s report be sought before giving the plaintiff unsupervised classification was an unreasonable recommendation. Further, I cannot be satisfied that for the responsible authority to have acted upon such a recommendation could be regarded as unreasonable.

34 This Court does not have available to it details of the plaintiff’s custodial history. Part 2 of the Regulation earlier mentioned prescribes a protocol involving the periodic preparation of case plans for inmates and the relevant content, it provides for periodic recommendations by the case management team, and periodic consideration of such recommendations by the Case Management Committee. Such protocol also addresses the role of the Commissioner. No doubt, when the plaintiff was classified “C2” the decision makers had access to all the plaintiff’s relevant records. The Court does not have this advantage.

35 I cannot conclude that the decision which was taken to classify the plaintiff as “C2” was manifestly unreasonable at the time such decision was made. It follows from this that the plaintiff has not established any basis for the Court to intervene concerning the plaintiff’s classification at this time. Indeed, the insufficiency of the evidence as presently before this Court is such that I would be quite unable to determine whether, even if these proceedings were in the nature of a rehearing on the merits (which they are not) I would have reached any different conclusion as to the appropriate classification for the plaintiff in November 2001.

36 I decline to make the order sought in para 3 of the summons.

5. An order to be granted entitlements pursuant to NSW Correctional Centres Act 1952 and Prisons (General) Regulations 1995

37 Mrs Sinanovic informed the Court that most of the plaintiff’s perceived grievances which prompted the application for this order were overcome once the plaintiff was transferred to Junee. There remain, however, two matters which it was submitted warranted the Court’s consideration. In considering those matters, the limited nature of the Court’s role in reviewing an administrative decision is again to be regarded. There is no need for me to repeat what I wrote earlier concerning this.

38 The first of the plaintiff’s grievances concerns an alleged lack of access to medical attention. On this issue the plaintiff was able to point only to an undated medical certificate from Dr Melman which was provided to the plaintiff and which stated that he required a car or bus rather than a prison van for his transportation for the following medical reason: “Migraine brought on by truck-van travel” (see Annexure R to Maria Sinanovic’s affidavit of 4 July 2001).

39 However, there is no evidence that there has been any failure to address any appropriate transport requirements for the plaintiff in his present environment. Moreover, there is no medical evidence before this Court that the plaintiff’s medical needs, if any, are not being properly addressed at Junee Correctional Centre. The submission that the plaintiff is not being afforded access to appropriate medical attention has not been substantiated.

40 The remaining grievance is that the plaintiff has property which has gone missing in the prison system, and an order should be made for its return. There are a number of documents in the affidavit of Maria Sinanovic sworn on 4 July 2001 (Annexure I) which address the grievance of missing property. This grievance was drawn to the attention of the Ombudsman and was recorded by an investigating officer for the Ombudsman:

“Hakija Sinanovic
Property missing for more than two years. Believes DCS have accepted responsibility but no compensation forthcoming.”

41 More significantly, there is a computer record of the second defendant which relates to the plaintiff and records certain objects stated as “missing”. These objects include legal papers, a toaster, sandals, a Smartcard, stationery, a can opener and a book. It is also claimed that the plaintiff failed to receive a quantity of underwear which his wife left at the MRRC for him in April 2001.

42 It may be that the plaintiff can prove that he has been deprived of property in circumstances which will afford him a right of redress. The admission procedures in chapter 2 of the Regulation earlier mentioned prescribe a protocol for property surrendered when a prisoner is received into a correctional centre. If there has been, and continues to be, a failure to account for property received, that may justify proceedings for recovery of such property or damages. However, these proceedings in the Administrative Law Division are not an appropriate vehicle for the pursuit of such a claim.

43 The plaintiff has established no ground for the making of an order concerning entitlements in these proceedings.

The plaintiff’s notice of motion

44 By notice of motion filed 10 September 2001 the plaintiff applied for:

“An order for costs and unspecified amount of damages.”

45 Mrs Sinanovic confirmed on the hearing that by this notice of motion the plaintiff sought to mount a claim for damages for negligence against the second defendant. Such a cause of action, if otherwise maintainable, cannot be instituted by notice of motion. Part 4 r 2 of the Rules of Court require that proceedings be commenced by statement of claim

“where a claim is made by the plaintiff for any relief or remedy for any tort.”

46 If the plaintiff wishes to pursue any action in tort, then subject to any limitation bar he may face by reason of when it is alleged the cause of action arose, and subject, of course, to having a maintainable claim, he must commence his action by statement of claim. The notice of motion presently under consideration must be dismissed.

The defendants’ notices of motion

47 Each of the defendants has moved this Court for orders for dismissal or stay of the summons under Pt 13 r 5 and, alternatively, for orders that the summons be struck out under Pt 15 r 26.

48 Because the Court had previously ordered that the summons and all the notices of motion be heard together, and because I have taken the view that the summons should be dismissed, it is appropriate that the notices of motion brought by the defendants should also be dismissed.

Costs

49 The parties were afforded the opportunity of addressing the Court as to what order for costs should be made, inter alia, in the event that the plaintiff’s summons was dismissed.

50 The defendants submitted that costs should follow the event. Mrs Sinanovic submitted that the Court should take into account the obvious difficulties which the plaintiff had in presenting his case when he was confined to prison. It was submitted that there were difficulties for Mrs Sinanovic because of her husband’s imprisonment at Junee in preparing affidavit evidence such as could be presented in support of the summons. Hence, Mrs Sinanovic sought to introduce hearsay evidence which, in large part, was rejected upon objection being taken to its admission into evidence.

51 Whilst it may have been difficult for the plaintiff to do so, I am by no means persuaded that it would have been impossible for him to give direct evidence by affidavit upon matters that may have been relevant to the relief sought.

52 In the past there had been a perception that the plaintiff suffered an inability to express himself in English and to read and write in English, although I observe that in an earlier decision in this Court Dunford J, on 7 October 1998, remarked:

“It is perfectly clear from the manner in which he [the plaintiff] has questioned his wife and given evidence himself here today, that he has absolutely no difficulty with spoken English.”

53 Then, more recently, a representation was made to the Minister for Corrective Services on behalf of the plaintiff by Mr Albert Privett (see Annexure D to the affidavit of Ms Crilly). Attached to that letter of representation was a document headed “Submissions on behalf of Hakija Sinanovic…Reclassification Application”. The author of that document was a Mr Ramrakha Jenkins, describing himself as lawyer and notary. The document was prepared on 17 August 2001 and the author had this to say concerning the applicant’s ability in the English language:

“(vi) However, this prisoner, who first went into prison in January 1996 with virtually limited ability in the English Language has personally made the efforts to learn and has become articulate in speaking, reading and communicating in the English language.

(vii) He has now by his own efforts acquired a sufficient level of proficiency in English language skills and requires very little assistance from interpreters or translators. This he has achieved by constant contact with his legal advisers, other professionals and the Court systems in the pursuit of his many applications.

(viii) The prisoner is now fully articulate in the use and understanding of the English Language at an advanced level and has exhibited this in his last Court appearance when he not only gave evidence but expertly cross-examined in the English language.”

54 It seems to me that the Court ought not to accept that the plaintiff could not have given relevant and admissible evidence had he decided to do so.

55 In any event, the plaintiff decided to proceed with the summons, and has done so unsuccessfully. Costs ordinarily follow the event, and no ground has been made out by the plaintiff such as would, in my opinion, justify a departure from that general rule. It seems to me in all the circumstances of this case that the plaintiff should be ordered to pay the costs of the second defendant. I do not understand there have been any additional costs incurred by the third and fourth defendants who have enjoyed the same representation as the second defendant, and I make no order for their costs.

56 It does not seem to me, as this matter was presented, that there were any additional costs incurred in relation to the notices of motion. The outcome in these proceedings was determined by the outcome on the summons, and I propose, therefore, to make no orders as to the costs of the notices of motion.

Formal orders

57 1. The summons is dismissed.

2. The notice of motion filed by the plaintiff seeking damages for negligence is dismissed.

3. The notices of motion filed by the defendants are dismissed.

4. I order the plaintiff to pay the defendants’ costs on the summons.

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Last Modified: 02/26/2002