Stephenson v Qld Corrective Serv Com - [1999] QSC 103

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane  No. 11360 of 1998
Before the Hon. Mr Justice Shepherdson
[Stephenson v Qld Corrective Serv. Com. & Ors]
BETWEEN:
  GLENN THOMAS STEPHENSON
  Plaintiff
AND:
  QUEENSLAND CORRECTIVE SERVICES
  COMMISSION
  First Defendant
AND:
  QUEENSLAND COMMUNITY CORRECTIONS
  BOARD
  Second Defendant
AND:
  QUEENSLAND CORRECTIONS (QCORR)
  Third Defendant
JUDGMENT - SHEPHERDSON J.

Judgment delivered 21 May 1999
CATCHWORDS: PRACTICE - striking out statement of claim and action - plaintiff not legally represented drew writ and statement of claim

Munnings v Australian Government Solicitor (1994) 68 ALJR 169 applied
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 applied

Counsel: Mr G Koppenol for the first applicant/defendants
Respondent/plaintiff appeared on his own behalf

Solicitors:Mr BT Dunphy for the Crown Solicitors for the applicant
Respondent/plaintiff appeared on his own behalf

Hearing date: 8 April 1999

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane  No. 11360 of 1998
Before the Hon. Mr Justice Shepherdson
[Stephenson v Qld Corrective Serv. Com. & Ors]
BETWEEN:
  GLENN THOMAS STEPHENSON
  Plaintiff
AND:
  QUEENSLAND CORRECTIVE SERVICES
  COMMISSION
  First Defendant
AND:
  QUEENSLAND COMMUNITY CORRECTIONS
  BOARD
  Second Defendant
AND:
  QUEENSLAND CORRECTIONS (QCORR)
  Third Defendant
JUDGMENT - SHEPHERDSON J.

Judgment delivered 21 May 1999

The above named first and third defendants have applied for the following orders:
1.That the plaintiff's entire statement of claim be struck out on the grounds that:
(a)it discloses no reasonable cause of action; or
(b)further and/or in the alternative the action is frivolous or vexatious;
2.That the action be dismissed or in the alternative stayed or permanently stayed as may be just.
3.Further and/or in the alternative that in so far as the writ in this action purports to be specially endorsed, the endorsement be struck out in its entirety on the ground that such endorsement is not within O6 r 7 of the Rules of the Supreme Court of Queensland.
4.That the respondent plaintiff pay the applicants' party and party costs of and incidental to the action, and their costs of and incidental to the application.
The respondent plaintiff has appeared in person and it appears that all documents filed on his behalf in this action including the writ of summons were prepared by him. He is not a lawyer, and he is presently serving a term of imprisonment.
Mr Koppenol appeared for the two applicants, and the respondent plaintiff did not oppose an order that the statement of claim be struck out.
Mr Koppenol pressed the second limb of the application namely that the action be dismissed.
However, the jurisdiction to terminate an action summarily must be exercised with great caution. In Munnings v Australian Government Solicitor (1994) 68 ALJR 169 at p 171, Dawson J said:
"It must be quite clear that the plaintiff does lack a cause of action before he is denied access to the court upon that ground."
See also General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128 - 130.
In the present case although the writ of summons purports to be specially endorsed a statement of claim has been delivered and it is that to which I now turn.
It is a 35 page document containing 161 paragraphs printed in single line spacing with a quarter margin. It is I think fair to describe it as a chronology of events in the plaintiff's life since 30 November 1989 - events which the plaintiff regards as significant. It is a mixture of fact, opinion and evidence and concludes with a claim for substantial damages.
The statement of claim does not contain any prayer for relief naming a cause of action. Paragraphs 155 to 160 (both inclusive) assert that the plaintiff will be seeking interpretation of certain documents and statutes. The facts on which he will rely in seeking such relief are not stated with any precision or not stated at all. Paragraph 1 of the statement of claim begins with the allegation that on 30 November 1989 the plaintiff was sentenced to four years imprisonment for armed robbery. The statement continues through his life thereafter. If his allegations are correct, he was paroled on 30 November 1991, and spent 1 year 3 months and 7 days on parole before being returned to secure custody on 8 March 1993. Paragraph 3 of the statement of claim alleges that in June 1993 in the Brisbane District Court he was sentenced to a 10 year cumulative term of imprisonment for armed robbery. He alleges the court further recommended that he be eligible for parole after serving 4 years from the date of sentence, and that the first defendant recorded his sentence as being 14 years from 30 November 1989 and gave him a discharge date of 30 November 2003. He alleges a successful appeal against the sentence. It appears, that the Court of Appeal did not interfere with the 10 years sentence but ordered that he be eligible for parole at some earlier date. The pleading is unclear on this point but it does not need to be now resolved.
One gleans from the statement of claim that he was later paroled and released to work - work at which he said he was successful.
In August 1997 when he was living in Maryborough on home detention he had a small parcel of marihuana and his parole officer found out about this fact. His home detention was revoked. He surrendered himself into custody on 11 August 1997, and was charged with having possession of a dangerous drug. He was returned to custody and since then has remained in custody at least up to the time of the hearing of the present application.
It is rather difficult to isolate exactly what the plaintiff's claims are. They appear to be:
1.An alleged breach of procedural fairness (see para 151 of statement of claim).
2.An alleged breach of statutory duty (see para 152 of statement of claim).
3.An alleged wrongful detention (see para 153 of statement of claim).
As to the first of these claims it has been held by the Honourable Mr Justice Derrington in Fritz v Queensland Corrective Services Commission (writ no. 556 of 1993) - judgment delivered 24 April 1995 - that no general cause of action exists under which public authorities are liable in damages for breach of procedural fairness.
As to the second of these claims the plaintiff appears to allege that the defendants breached a statutory duty said to be imposed by s 86 (7) of the Corrective Services Act 1988. This subsection deals with amending or revoking conditions applicable to home detention. It does not appear to be a section which imposes a statutory duty of the kind for a breach of which compensation may be awarded (see Fritz at p 6).
As to the wrongful detention claim, the plaintiff has alleged in para 153 that by not deciding whether or not to grant him remission the first defendant has caused him to be unlawfully detained. Mr Koppenol has submitted that prior to the exercise of the first defendant's discretion no remissions operate and thus it cannot be said that the plaintiff has been unlawfully or wrongfully detained.
Mr Koppenol has referred to a decision of the late the Honourable Mr Justice Kneipp in the Supreme Court at Townsville on 2 March 1990 - McSweeny & Queensland Corrective Services Commission (No. 11 of 1990). This decision was made on an application for an order nisi for a writ of habeas corpus by a person imprisoned in the Townsville Correctional Centre.
In the course of that judgment His Honour referred to reg 21 (1) of the regulations made under the Corrective Services Act concerning remissions. That regulation read:
"A prisoner serving a sentence of imprisonment of 2 months or longer and who is of good conduct and industry may, at the discretion of the commission, and subject to the following provisions of the Part, be granted remission of one-third of his sentence together with such other remission as is provided for in this Part."
His Honour said:
"It is clear from that provision and from further provisions to which I need not specifically refer that remissions do not accrue as of right. There must be a grant of a remission. It must be granted by the Commission and the Commission has an overriding discretion as to whether or not it will make a grant."
I respectfully adopt His Honour's words.
It thus appears to me that as pleaded the above three claims are untenable.
However, in para 149 of the statement of claim the plaintiff said this:
"This decision to deny him access [to] a low classification, and ultimately release, was a turning point for the plaintiff. He feels that [he] can no longer condone the treatment he has been receiving at the hands of the defendants. As a result [he] has chosen this said legal action to see relief and redress for the incompetent and malicious mismanagement of his sentence and the associated psychological abuse he has endured as a result."
The opening words of para 149 "this decision" refer to the following sentence which appears at the end of para 148:
"The committee in refusing the plaintiff's later submission, recommended that the plaintiff transfer to Borallon for a three (3) month period and after demonstrating stable behaviour for that time the Serious Offenders Committee will reconsider an application for low classification and a transfer to Darling Downs Correctional Centre."
Although the plaintiff does not specifically say so, the injection into the pleading of the word "malicious" in describing the quality of the alleged mismanagement of his sentence, leaves alive the possibility that the plaintiff is also seeking relief based on allegations that the first and third defendants or one of them has failed to perform its statutory duties and not made a decision honestly and in good faith.
In "Judicial Review of Administrative Action" (3rd ed) S.A. de Smith says, (at p 295) under the heading "Liability in Tort for Exercise of Powers in Bad Faith":
"It has been said that 'if a man is required in the discharge of a public duty to make a decision which affects, by its legal consequences, the liberty or property of others and he performs that duty and makes that decision honestly and in good faith, it is ... a fundamental principle of our law that he is protected' [citing Everett v Griffiths (1921) 1AC 631, 695 per Lord Moulton (dictum)] against civil liability in respect to the consequences of that decision."
A little later de Smith, after referring to various cases, says (at pp 295 - 6):
"The common thread running through these cases is the erroneous exercise of judgment on matters immediately affecting the legal rights of individuals. It would appear justifiable to infer that members of administrative bodies which exercise functions of a broadly judicial character are not liable in tort for the consequences of erroneous or unreasonable decisions or procedural irregularities within the scope of their jurisdiction, provided that they have not acted in bad faith. Bad faith is here understood to mean intentional usurpation of power or wilful partiality or discrimination motivated by considerations that are incompatible with the discharge of public responsibilities."
The present is not the occasion to analyse closely the claim made by the plaintiff and more particularly whether or not the allegation that the first and third defendants or one of them has failed to perform duties honestly and in good faith. An allegation of malice has been made and it relates to the performance or non-performance by the defendants of duties allegedly cast upon them. The allegation may support a cause of action. For that reason I am reluctant to dismiss the action. The power to summarily terminate the action must, as the cases show, be exercised with great caution.
One very real problem for me has been an inability to ascertain from all the verbiage in the statement of claim exactly what facts are relied on by the plaintiff to support the allegation in para 149.
Of course it may fairly be said that the plaintiff had the right to apply for review of the particular decision under the Judicial Review Act 1992.
It is the allegation of malice that has caused me concern. In "Review of Administrative Action (Whitmore and Aronson) (1978) - ch 6 "Going Beyond Power: Jurisdictional Error and Ultra Vires", the authors say (at p 213 under the sub-heading "Motives - bad faith":
"In a multitude of cases it has been suggested that an administrative decision may be set aside if it has been reached mala fide or in bad faith, or if it has been reached on the basis of improper motives. The two concepts run together and indeed the courts fully recognised this; further they have recognised that bad faith and improper motives involve dishonesty and perhaps fraud. This is not necessarily so in relation to the exercise of a power for an improper purpose; in that case there may merely be a mistaken conception of rights, duty or power."
A little later the authors say (also at p 213):
"The most noticeable thing about allegations of bad faith is that they have almost always failed."
I have come to the conclusion that I should not strike out the plaintiff's action. Instead, I order that the statement of claim dated 12 January 1999 and Exhibit E to the affidavit of Sherman Gee Mun Oh sworn 6 March 1999 be struck out.
I give the plaintiff leave to replead his statement of claim and I order that he deliver his further statement of claim within 42 days from today. I have urged the plaintiff to obtain legal assistance to prepare the statement of claim.
As for the naming of the second defendant, it appears clear that Queensland Community Corrections Board is not a separate legal entity and therefore should not have been joined as a party to this action. I therefore strike out the name of the second defendant as a defendant in this action.
Item 3 of the application before me refers to the special endorsement of the writ of summons. To specially endorse this writ was plainly incorrect but the writ is not a nullity. The statement of claim was subsequently delivered. A new statement of claim is to be delivered and it is that pleading on which the plaintiff will rely to pursue his claim.
This leaves the matter of costs and I propose to hear from the parties on this matter.