Dobie v Chief Executive Department of Corrective Services [2008] QDC 120

DISTRICT COURT OF QUEENSLAND CITATION: Dobie v Chief Executive Department of Corrective Services [2008] QDC 120 PARTIES: KEITH WILLIAM DOBIE Respondent/Plaintiff v CHIEF EXECUTIVE DEPARTMENT OF CORRECTIVE SERVICES Applicant/Defendant FILE NO/S: BD 4096/04 DIVISION: Civil PROCEEDING: An application for summary judgment pursuant to UCPR r 293 alternatively application to strike out Statement of Claim pursuant to UCPR r 171(2) ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 30 May 2008 DELIVERED AT: District Court, Brisbane HEARING DATE: 22 April 2008 JUDGE: Andrews SC DCJ ORDER: Order that the State of Queensland be substituted for Chief Executive Department Of Corrective Services as first defendant. Judgment for the first defendant the State of Queensland against the plaintiff. Claim dismissed. CATCHWORDS: PROCEDURE – DISTRICT COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – where the applicant defendant seeks judgment under r 293 Uniform Civil Procedure Rules – where the respondent plaintiff seeks damages for breach of statutory duty – where the respondent plaintiff was sentenced for Commonwealth offences in the District Court – where the respondent plaintiff contends that s 19(1)(b) Crimes Act 1914 (Cth) applied in the circumstances – where the appeal against the sentence imposed was dismissed – where the respondent plaintiff applied to re-open sentence – where the application to re-open sentence was dismissed – where the appeal against the refusal of the application to re-open sentence was dismissed – whether summary judgment appropriate in the -- 1 of 9 -- 2 circumstances PROCEDURE – DISTRICT COURT PROCEDURE – QUEENSLAND – PLEADING – STATEMENT OF CLAIM – where alternatively the applicant defendant seeks to have the claim, statement of claim and amended statement of claim of the respondent plaintiff struck out pursuant to r 171(2) Uniform Civil Procedure Rules with no leave to re-plead – whether appropriate Crimes Act 1914 (Cth), s 19 (1)(b) Uniform Civil Procedure Rules 1999 (Qld), r 69(1), r 171(2), r 293 R v Dobie [2004] 2 Qd R 537; [2004] QCA 140, considered COUNSEL: K Mellifont for the Applicant/Defendant and the State of Queensland J M Horton for the Commonwealth Director of Public Prosecutions Plaintiff/Respondent appears for himself SOLICITORS: C W Lohe Crown Solicitor for Applicant/Defendant and the State of Queensland Commonwealth Director of Public Prosecutions for the Commonwealth Director of Public Prosecutions [1] This is an application by the defendant pursuant to UCPR r 293 for summary judgment for the defendant. The defendant brings a claim in the alternative that the claim and statement of claim of the respondent plaintiff, Mr Dobie, filed on 15 November 2004 be struck out pursuant to UCPR r 171(2) and applies that there be no leave to re-plead. The applicant applies further that the amended statement of claim filed by Mr Dobie on 4 February 2008 be struck out pursuant to UCPR r 171(2) with no leave to re-plead. [2] The applicant made oral application pursuant to UCPR r 69(1) to include the State of Queensland as a necessary party instead of the Chief Executive, Department of Corrective Service. Ms Mellifont appears for the State of Queensland and consents to the substitution of that party for the named defendant. -- 2 of 9 -- 3 [3] Mr Dobie does not oppose the substitution of the State of Queensland for the Chief Executive Department of Corrective Service. Mr Dobie, by his amended statement of claim deleted reference to the Chief Executive and inserted instead the State of Queensland. [4] There is an appearance for the Commonwealth Director of Public Prosecutions which is identified in an amended statement of claim filed on 4 February 2008 as a second defendant. The proposed second defendant has not been served with proceedings. Mr Dobie has not sought leave to include the second defendant as a party pursuant to UCPR r 69. The proposed second defendant appeared before me to adopt the submissions of the State of Queensland. [5] By his amended statement of claim Mr Dobie claims against the State of Queensland as first defendant and against the Commonwealth Director of Public Prosecutions as second defendant damages for breach of statutory duty. The pleading does not identify the statute which is breached. [6] The amended statement of claim alleges that Mr Dobie suffered injuries as a result of the negligence of the State of Queensland and the Commonwealth Director of Public Prosecutions. The injuries alleged are, in précis, incarceration for 14 months too long, psychological injury and harm, 60 weeks of lost earnings being $51,000 and some other matters. I infer that each of the matters relates to the 14 months of excess incarceration alleged. [7] Despite criticisms which may be made as to the adequacy of the amended statement of claim a clearer picture of Mr Dobie’s allegations and arguments emerged during his oral submissions and from reading his affidavit. Mr Dobie’s pleaded case for losses as explained in submissions and implied in his affidavit arises as a result of -- 3 of 9 -- 4 the events of 7 February 2001 and the failure of authorities to accept his later protestations that an error was made in the sentence ordered on that day. [8] On 7 February 2001 Mr Dobie was sentenced by His Honour Judge O’Brien in the District Court of Queensland at Brisbane in respect of federal offences of defrauding and of attempting to defraud the Australian Tax Office. It was ordered that Mr Dobie be sentenced to a term of three years imprisonment in respect of each matter and that the sentences of imprisonment were to be served concurrently with each other. The order, so far as seems relevant for understanding the argument, was that the sentences “commence at the expiration of your current sentence… I further order that you are to be released after serving nine months of the three year sentence that I have imposed on you today …” [9] The “current sentence” to which his Honour referred was a State sentence due to expire on 22 January 2002. I received no submissions as to when “a non-parole period” expired under the State sentence but have calculated that a non-parole period expired on about 12 December 2000 when half of Mr Dobie’s State sentence would have expired. If I am mistaken in this calculation I find that the non-parole period had expired well before 7 February 2001. For this calculation and its basis I refer to R v Dobie [2004] QCA 140 [20]. Mr Dobie’s oral submissions seemed to imply that his non-parole period expired on 27 October 2000 which was the date he submitted to be his “parole eligibility date”. If Mr Dobie is correct in that implied submission the important conclusion which must follow is that on Mr Dobie’s submission or on my calculation the non-parole period of his State sentence had expired before 7 February 2001. [10] The critical part of the sentence imposed on 7 February 2001, from Mr Dobie’s point of view, was that the nine month period he was to spend in custody was to -- 4 of 9 -- 5 commence “at the expiration of your current sentence”. Mr Dobie had anticipated that the nine month custodial period of his sentence that day would be backdated to commence on 27 October 2000 and he submits that the sentencing judge had no choice but to backdate the sentence because of the provisions of s 19(1)(b) of the Crimes Act 1914 (Cth). On 7 February 2001 when Mr Dobie was sentenced he had been expecting an order that he be released nine months after 27 October 2000, that is, on 26 July 2001. Instead, the effect of the order was that he be released nine months after 10 January 2002, being 9 October 2002. This meant that he would be incarcerated for 15½ months longer than Mr Dobie had expected. [11] The basis of Mr Dobie’s expectation and the basis of his case lies with his belief and his submission that on the proper interpretation of s 19(1)(b) of the Crimes Act 1914 it applied to his circumstances. It provides, so far as is relevant to this matter: “(1) Where a person who is convicted of … federal offences is at the time of … those convictions, serving, or subject to … State … sentences, the court must, when imposing a federal sentence for … those federal offences, by order direct when the federal sentence commences, but so that: … (b) If a non-parole period applies in respect of any State … sentences – the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period.” [12] The critical fact for the sentencing judge to determine on 7 February 2001 in determining whether the statute applied to Mr Dobie’s circumstances was whether a “non-parole period applies” to Mr Dobie. [13] For the purposes of an application for summary judgment I am not able to determine the facts as I might determine them after a trial. However, Mr Dobie has satisfied -- 5 of 9 -- 6 me that at trial he has real prospects of establishing that as a result of the events of 7 February 2001 when the order made: (a) Mr Dobie believed an error was made as to the date his sentence was to commence; (b) Mr Dobie believed that on the proper interpretation of s 19(1)(b) of the Crimes Act 1914 (Cth) his period of nine months in custody should have commenced on 27 October 2000 and seen him released on 26 July 2001; (c) Mr Dobie believes and submits that a “non-parole period” was then applicable to him under his earlier State sentence; (d) The prosecutor on 7 February 2001, Ms Smith, told the sentencing judge that Mr Dobie’s “eligibility for parole was…cancelled” and Mr Dobie believed that she was thereby representing to the sentencing judge that a “non-parole period” once applying to Mr Dobie was cancelled and he believed that the representation by her was false; (e) Mr Dobie believes the prosecutor’s representation caused the sentencing judge to believe that no “non-parole period” was then applicable to Mr Dobie and that the sentencing judge was mistaken; (f) Mr Dobie came to believe that officers of Corrective Services realised a mistake had been made but did nothing to rectify it and eventually were avoiding him because of this error; (g) These beliefs led to enormous frustration in Mr Dobie; (h) Mr Dobie developed a depressive illness as a result of his frustration and as a result of the matters he believed; (i) Mr Dobie believes these things still. -- 6 of 9 -- 7 [14] Mr Dobie was released from custody on 13 September 2002 being slightly less than 14 months later than he believes he would have been released if the nine month period of actual imprisonment had commenced on 27 October 2000. [15] Mr Dobie’s primary argument is one which I must piece together from his oral submissions, from the amended statement of claim and from his affidavit. I gathered from these sources that Mr Dobie would submit that to have had a parole eligibility date and therefore a “non-parole period”, even if the non-parole period had expired by 7 February 2001, is enough to make s 19(1)(b) of the Crimes Act applicable and to bind the sentencing judge. [16] The Court of Appeal has considered the operation of s 19(1)(b) of the Crimes Act in an earlier appeal by Mr Dobie relating to the sentence in R v Dobie [2004] QCA 140. It was held, in effect, that only in cases where a non-parole period was continuing when a federal sentence is imposed would the sentencing judge be obliged to order that the new sentence commence after the end of the non-parole period and that where a non-parole period had ended prior to the date when a federal sentence was imposed, s 19(1)(b) of the Crimes Act has no application. R v Dobie [19]-[21]. [17] Mr Dobie has misunderstood the effect of the submission by the prosecutor on 7 February that “his eligibility for parole was … cancelled”. That submission did not have any effect on the application of s 19(1) (b) of the Crimes Act. [18] The submission by the prosecutor could not have misled the sentencing judge. The statute did not apply to Mr Dobie’s sentence for a different reason which Mr Dobie seems not to have understood. His “non-parole period” had expired because, before 7 February 2001, he had served more than half the period of his sentence. The -- 7 of 9 -- 8 expiry of his non-parole period did not occur as a result of his parole eligibility date being cancelled or allegedly cancelled. His non-parole period would have expired before 7 February 2001 whether or not his parole eligibility date was cancelled. The sentencing judge did not apply s 19(1)(b) of the Crimes Act. His Honour would have been in error had he applied it. R v Dobie [19]-[21]. [19] Mr Dobie, by his affidavit and oral submissions made clear that he believes and submits that the Court of Appeal was mistakenly deciding his appeal in R v Dobie on the basis of a false belief by the Court of Appeal that his parole eligibility date was cancelled. A review of the reasons confirms that Mr Dobie is mistaken. [20] Mr Dobie’s primary argument must fail. [21] He has another argument that the sentencing judge erred for failing to provide for parity principles in the sentence imposed on Mr Dobie. This argument is again based on Mr Dobie’s misinterpretation of the application of s 19(1)(b) of the Crimes Act. [22] For another reason this argument cannot succeed. The error, if there was one, was not an error which can be attributed to either defendant. The allegation that the defendants knew or ought to have known of this error is unsupported by particulars or evidence and has no real prospect of succeeding. [23] I am satisfied that the plaintiff has no real prospect of succeeding on any part of his claim and that there is no need for a trial of the claim. [24] I order that the State of Queensland be substituted for Chief Executive, Department Of Corrective Services as first defendant. -- 8 of 9 -- 9 [25] I give judgment for that first defendant, the State of Queensland against the plaintiff. The claim is dismissed. [26] I will hear the parties’ arguments as to costs and as to the first defendant’s application for indemnity costs against the plaintiff. -- 9 of 9 --