Woods v Prison Officers' Appeal Tribunal
[2002] WASC 294
WOODS -v- PRISON OFFICERS' APPEAL TRIBUNAL [2002] WASC 294
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 294 | |
| Case No: | CIV:2432/2002 | 19 NOVEMBER 2002 | |
| Coram: | EM HEENAN J | 19/11/02 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi for certiorari refused | ||
| B | |||
| PDF Version |
| Parties: | PHILLIP BARRY WOODS PRISON OFFICERS' APPEAL TRIBUNAL |
Catchwords: | Certiorari Application for order nisi Time for appeal to Prison Officers' Appeal Tribunal Prison officer to be informed of findings and penalty Form of notice of appeal Necessity to state concisely grounds of appeal Ineffective notice of appeal |
Legislation: | Prisons Act (1981), s 100, s 108(1), (2) and (3), s 109(3) and (8), s 116 (2), (3) and (4) |
Case References: | Re New Callao, [1882] 22 Ch D 484 Craig v South Australia (1995) 184 CLR 163 Re Minister for Immigration and Multicultural Affairs; Examination Parte Cohen [2001] HCA 10 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
PRISON OFFICERS' APPEAL TRIBUNAL
Respondent
Catchwords:
Certiorari - Application for order nisi - Time for appeal to Prison Officers' Appeal Tribunal - Prison officer to be informed of findings and penalty - Form of notice of appeal - Necessity to state concisely grounds of appeal - Ineffective notice of appeal
Legislation:
Prisons Act (1981), s 100, s 108(1), (2) and (3), s 109(3) and (8), s 116 (2), (3) and (4)
Result:
Order nisi for certiorari refused
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr P R Momber
Respondent : Mr R J Andretich
Solicitors:
Applicant : Peter Momber
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Re New Callao, [1882] 22 Ch D 484
Case(s) also cited:
Craig v South Australia (1995) 184 CLR 163
Re Minister for Immigration and Multicultural Affairs; Examination Parte Cohen [2001] HCA 10
(Page 3)
1 EM HEENAN J: Phillip Woods has applied to this Court for an order of certiorari to quash a decision of the Prison Officers' Appeal Tribunal which decided, on 28 May 2002, that he had not appealed within time or in due form against adverse findings made against him resulting in an order for his dismissal.
2 The application for an order nisi for certiorari came before Miller J in this Court on 31 October and by order of that date his Honour directed that there should be a final determination of the matter before a single Judge in this Court today and that the grounds of the application should be those as amended by a minute of amended originating motion dated 31 October. Accordingly, this matter has come before me as an application for final relief and has been fully argued this morning.
3 The background circumstances are that Mr Phillip Barry Woods, the applicant, was at the material times a senior prison officer. He was charged with a disciplinary offence under the provisions of the Prisons Act(1981) alleging that, on 6 January 2000, he committed an act of misconduct relating to his fitness to hold office as a prison officer. Pursuant to the provisions of s 106 of the Prisons Act the Chief Executive Officer appointed another person to hold an inquiry into this charge in accordance with the terms of s 100 of the Act. That inquiry was conducted by the Chief Executive Officer's delegated inquiry officer, Mr Gary Thompson, and the complainant was represented by an officer of the Department of Justice and a person, Mr Giblett, entitled to represent the charged officer, appeared on his behalf. That hearing proceeded and the decision was, at the end of the hearing, reserved.
4 Sometime later, on a date which does not appear from the papers before me, Mr Thompson reported on his inquiry to the Chief Executive Officer and, as a result of that report, the Director-General of the Department of Justice acting on behalf of the Chief Executive Officer wrote to Mr Woods by letter dated 18 January. The material provisions of that letter are:
"DISCIPLINARY HEARING - CHARGE NO 44/2001.
As you are aware, Mr Gary Thompson conducted the hearing of the abovementioned disciplinary charge on 16 January 2001. I have now received Mr Thompson's findings. Mr Thompson recommends dismissal in accordance with Section 106(2)(g) of the Prisons Act 1981 be imposed on you in relation to this charge.
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- I advise, that upon reviewing Mr Thompson's findings, that I accept the comments and findings he has made concerning your actions.
In accordance with Section 106(4) of the Prisons Act 1981, I advise that as of the date of this letter that I have validated the penalty of dismissal recommended by Mr Thompson.
Should you wish to appeal the [sic] either the findings or the penalty imposed concerning this matter you have 14 days to do so in accordance with Section 108 of the Prisons Act 1981.
Arrangements will be made for the penalty to be processed in accordance with Section 109 of the Prisons Act 1981. This means you are suspended from duty without pay or other entitlements from the date of this letter until the expiration of 14 days or until the determination of an appeal under Section 108 of the Prisons Act 1981."
- The letter then proceeds to deal briefly with other matters which need not be mentioned.
5 No other materials accompanied that letter from the Director-General to Mr Woods. In particular, the formal findings of Mr Thompson were not included although obviously they had, by then, been reduced to writing and reviewed by the Director-General. That process of review and ultimate validation by the Director-General is the process contemplated by s 116(4) of the Act which provides that a penalty imposed under subs 116(3) by a person appointed by the Chief Executive Officer - referring to Mr Thompson's inquiry - shall take effect only upon validation by the Chief Executive Officer and that the Chief Executive Officer may, instead of validating that penalty, impose a different penalty of a kind referred to in subs (2), but that the Chief Executive Officer shall not impose a greater penalty than that imposed under subs (3) unless he has provided the prison officer with an opportunity of making representations in relation to his intention to impose a greater penalty and has considered any representations made by the prison officer.
6 The next step in the history is that, by letter dated 30 January 2002 from the Co-ordinator, Discipline, Labour Relations of the Ministry of Justice to Mr Steve Smith, secretary of the Western Australia Prison Officers Union of Workers, the applicant's union, a copy of the transcript and findings of the disciplinary hearing conducted by Mr Gary Thompson was dispatched. The letter simply reads:
(Page 5)
- "Dear Mr Smith,
Prison Officer Phillip Woods, transcript and findings.
Please find enclosed copy of the transcript and findings for the disciplinary hearing conducted by Mr Gary Thompson, executive director, court services in relation to Mr Phillip Woods. Should you require any further information please contact me on [and the telephone number was given].
Yours sincerely,
Coordinator, Discipline, Labour Relations."
- Accompanying that letter were, as indicated, a copy of the transcript and of the findings of the disciplinary inquiry.
7 Those findings, which are in writing and comprise some six pages of typed script by Mr Thompson, are exhibit A to the affidavit of the applicant in these proceedings sworn 22 October. They detail the charge which was facing Mr Woods, the background and noncontentious facts, the evidence before the inquiry, a full summary of the testimony of the principal witness, the results of a video record of interview, a record of investigation followed by a summation and a series of findings. The actual findings run from the foot of page 4 to the first quarter of page 6. They are quite detailed findings and they relate to consequences which followed the alleged offence and include consideration of coronial findings made at the inquest into the death of the prisoner to whom it is alleged the applicant had misconducted himself. They are important findings and they condition both the conclusion of the disciplinary inquiry and the penalties to be imposed.
8 Having received that communication the union, presumably, notified Mr Woods. By letter of 6 February 2002 Mr Woods purported to appeal against the findings and penalty determined in respect of this charge. The details of his notice of appeal and its content are set out in exhibit C to the affidavit of Mr Woods sworn 22 October, already mentioned, and the letter runs to some two pages.
9 When the appeal came on for hearing before the Prison Officers' Appeal Tribunal on 28 May 2002 objections were made as to the competency of the appeal in regard to the time at which it was commenced and the content of the notice of appeal. It was submitted to the Appeal Tribunal that the institution of the appeal had occurred more than 14 days after the decision and, therefore, was outside the 14-day time
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- limit, provided by s 108(2) of the Prisons Act. It is accepted by both sides that that is a fixed time limit which cannot be extended. The Appeal Tribunal upheld that submission concluding that Mr Woods had been informed of the findings and the penalty by the letter from the Director-General of 18 January 2002 and, consequently, his notice of appeal was well out of time.
10 The Appeal Tribunal went further and found that the notice of appeal did not comply with the provisions of s 108 of the Act because it failed to detail a concise statement of the grounds upon which the appeal is based and consequently did not constitute a notice of appeal within the meaning of the section. For both those reasons the appeal was dismissed. It is in respect of those findings, as I have already mentioned, that this application for certiorari has been brought.
11 To appreciate the reasons urged in support of the application, it is necessary to consider the requirements of s 108(1). That provides that a prison officer, who is aggrieved by what in effect are any of the possible decisions which may be made adversely to him in relation to a disciplinary hearing, may appeal in accordance with this section to the Appeal Tribunal against such suspension, finding or penalty or any or all of them. Subsection (2) is important and I quote it in full:
"An appeal to the Appeal Tribunal under this section shall be instituted by notice in writing forwarded by the aggrieved prison officer to the chief executive officer within 14 days of being informed of the relevant suspension, finding or penalty."
12 Accordingly, time runs from the date upon which the prison officer is informed of the relevant suspension, finding or penalty. Subsection (3) provides:
"A notice of appeal under this section shall be signed by the appellant and shall contain a statement of the decision being appealed against and a concise statement of the grounds upon which the appeal is based."
13 Counsel for Mr Woods attaches significance to s 108(3) as implying some minimum content in the information which must be related to the prison officer about the relevant suspension, finding or penalty in order for time to commence to run because otherwise, so it is submitted, how could the aggrieved prison officer formulate a notice of appeal which would satisfy the mandatory requirements of s 109(8)?
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14 It is therefore necessary to return to the communication by letter from the Director-General of the Department of Justice of 18 January 2002 which is relied upon by the Appeal Tribunal to constitute the avenue by which this officer was informed of the relevant suspension, finding or penalty. I have already set out the terms of that letter. It is plain that, although it refers to findings by Mr Thompson, it does not at any stage identify those findings or even summarise their consequence or effect. It is true that the letter proceeds to inform Mr Woods that a penalty of dismissal has been recommended and validated and is then being acted upon, thus implying an adverse conclusion to the inquiry, but in my view that does not establish what the findings are or put them in any meaningful sense which would allow their gravity and significance to be evaluated or a notice of appeal to be formulated. This conclusion is only the more obvious when one examines exhibit A to the affidavit of Mr Woods and the actual findings made by Mr Thompson. Accordingly, I conclude that the letter of 18 January 2002 does not constitute any process by which the aggrieved prison officer has been informed of the relevant findings. By contrast, the letter of 18 January 2002 makes clear, in express terms, that a penalty of dismissal has been recommended, validated and acted upon. I therefore accept that the letter of 18 January satisfies the provisions of s 108(2) which require the aggrieved officer to be informed of the relevant penalty.
15 The odd and in many ways unsatisfactory consequence of this is that the time for appealing against the penalty began to run against Mr Woods from the date of receipt of the letter of 18 January, but the time for appealing against the findings did not begin to run. It is my conclusion that the time for appealing against the findings did not begin to run until Mr Woods received a copy of the letter of 30 January 2002 and its enclosures. It is acknowledged that that did not occur more than 14 days before the institution of the attempted appeal by letter of 6 February 2002.
16 In view of these conclusions it appears to me that Mr Woods was in time to appeal against the findings made by Mr Thompson and confirmed by the Executive Director at the time he lodged the notice of appeal of 6 February but was out of time in relation to any appeal against the penalty. It is therefore my conclusion that the Prison Officers Appeals Tribunal erred in law in its decision of 28 May in deciding that the appeal against the findings was out of time.
17 Were that the end of the matter, it would be simple to quash the decision of the Appeal Tribunal and direct that an appeal limited to the findings should proceed to a determination according to law, but there is
(Page 8)
- the second issue relied upon by the Tribunal, namely the adequacy of the content of the notice of appeal.
18 I have already mentioned that the notice of appeal of 6 February is exhibit C to the affidavit of Mr Woods of 22 October. It recites that, pursuant to s 108, he wishes to appeal against the findings and penalty determined in respect of charge number 44 of 2001. It gives full particulars of the charges against him. He states correctly that he denied the charges and pleaded not guilty. He says that the Director-General delegated the charge to be heard and determined by Mr Gary Thompson and says that the matter was heard on 16 January 2002. "Mr Thompson found the charges proved and recommended my dismissal in accordance with section 106(2)(g) of the Prisons Act," and this penalty was validated by the Director-General. The remainder of the notice is the last paragraph containing only one sentence. It says: "Following receipt of the findings and transcript of proceedings on 31 January 2001, I now respectfully request that the matter be referred to the Appeal Tribunal."
19 In my opinion that bald statement does not contain a concise statement of the grounds upon which the appeal is based as required by s 108(3) of the Act. That is not a conclusion which admits of any detailed analysis. It is self-evident from the language used. The question then becomes: what is the significance and status of a notice of appeal purporting to be lodged under section 108 which fails to contain a concise statement of the grounds upon which the appeal is based? This is, undoubtedly, a technical question. It is unfortunate that a case of this kind should have to turn on such a refined point but the formulation of the notice of appeal is the responsibility of the appellant and I must treat the section as applying in its terms.
20 Despite my invitation, there have been no submissions from counsel citing authority dealing with the consequences of a non-complying notice of appeal. Consequently, there has been little opportunity for the court to consider whether such a consequence results in an irregularity which may be cured by the provision of particulars later or by amendment of the notice of appeal, or whether it results in invalidity. It is not always appropriate to take as determinative decisions from other jurisdictions on other legislation but the issue as to the significance of the contents and form of a notice of appeal is a much litigated subject. For example, in the standard practice books dealing with appeals such as the Supreme Court Practice (the "White Book"), there is a collection of authorities dealing with these issues. In par 59/3/2 of the White Book dealing with the
(Page 9)
- general provisions for appeal to the English Court of Appeal there is the passage:
"An informal notice of appeal, if it otherwise complies with the rule, is sufficient, Parrish v Birch Bros Dover Ltd [1955] 1 WLR 357 but the mere communication of an intention to appeal is not enough, Re West Jewell Tin Mining Co, Little's case, (1878) 8 Ch D 806, Court of Appeal, and Collins v The Vestry of Paddington [1880] 5 QBD 368 at page 374."
and other authorities are cited as well. In one of these cases it was held that an ineffective notice was not even a ground for an extension of time for appealing. But a notice in terms, "Take notice that it is the intention of X to prosecute an appeal from the order made on such and such a date," was held to be a good notice. That is the Re West Jewell Tin Mining (1878) 8 Ch D 806 case. By contrast, a letter stating, "We are advised and intend to give notice of appeal," was not sufficient: Re New Callao, [1882] 22 Ch D 484. The learned authors of this work state that, the present practice is to accept an informal notice of appeal only if it identifies the order against which the appellant wishes to appeal, indicates what order he is asking the Court of Appeal to make, and states, at least in general terms the grounds of the appeal.
21 I consider that this particular notice unmistakably makes it plain that it is the intention of Mr Woods to exercise his right of appeal under s 108 but the question is whether that is sufficient. Elsewhere, in the "White Book", dealing with a provision in the English rules that states that every notice shall specify the grounds of the appeal and the precise form of the order which the appellant proposes to ask is a commentary in these terms:
"A notice of appeal which simply alleges misdirection is insufficient. The notice must state in what manner the judge misdirected himself or the jury, Murfett v Smith (1887) 12 PD 166 ... , and if improper admission or rejection of evidence is alleged the evidence must be specified but the notice of appeal should not be lengthy nor elaborate nor contain detailed reasons, Sansom v Sansom [1956] 1 WLR 945."
22 There is undoubtedly merit in the submission made by Mr Momber that a prison officer who is denied legal representation in a disciplinary inquiry by virtue of the provisions of s 101 is at a disadvantage when it comes to formulating the steps which he can take, the procedures available to him and the minimum content necessary to comply with a notice of appeal contemplated by s 108 of the Act. I also accept that in
(Page 10)
- circumstances where there is doubt a Court should lean in favour of the preservation of the right of appeal and excuse omissions or inadequacies which do not go to its essential validity but I cannot escape the conclusion that subs 108(3) requires a concise statement of the grounds upon which the appeal is based. I am afraid that this drives me to the conclusion that the notice of appeal of 6 February 2002 is simply entirely deficient in this respect. No grounds of any kind are specified. The letter does not identify any alleged error or misdirection or want of jurisdiction, denial of natural justice or other ground for a review of the decision and does nothing more than request that the matter be referred to the Appeal Tribunal.
23 In my view therefore this notice of appeal does not comply with s 108(3) and its non-compliance exceeds any status of mere irregularity. It is simply not a notice which the legislation contemplates. This produces what may well be regarded as an unsatisfactory result, in that Mr Woods has simply failed to institute a valid appeal of any kind within time. That is the decision which I am bound to reach after considering the authorities which I have discussed. Accordingly the application for certiorari will be refused.
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