Benson & Ors v Chief Executive, Department of Corrective Services [2001] QCA 303

[2001] QCA 303 COURT OF APPEAL de JERSEY CJ McPHERSON JA WILLIAMS JA Appeal No 5208 of 2001 JAMES BENSON, SIMON BONTOFT, TRENT CARTER, BLAIR COOPER, MARK EASTLEY, KELLIE ELLIOT, RUSSELL FLOYD, SUE GILL, TRACEY GREEN, RUSSELL GROGIN, IAN HASTIE, NIGEL HAUSLER, CRAIG JONES, STEPHEN KENEALLY, H T LAM, TANIA MUSZAK, MALCOLM McCULLOUGH, WENDY McFARLANE, LIZA McLANACHAN, LINDY MERTA, JIM MILLIOTIS, BEN OWEN, COLIN PRIEST, ROGER SHOWSMITH, TONY STRUDWICK, CRAIG SUTCH, PHILIP ANTHONY TYLER, REGINALD WILLIAMS and DARREN YOUNG Applicants and CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES Respondent BRISBANE ..DATE 27/07/2001 JUDGMENT -- 1 of 5 -- 27072001 T8/SJ3 M/T COA171/2001 2 JUDGMENT THE CHIEF JUSTICE: From 24 November last year amendments to the Corrective Services Act extinguished eligibility for remissions in the case of prisoners granted leave of absence to engage in or seek employment, those released to serve home detention or those released on parole. That was effected by section 207B. Section 207A excluded proceedings for damages in relation to any failure to discharge a prisoner eligible for remission. The effect of the amendment brought about by section 207B was publicised within the prison system by means of an information bulletin issued at the instance of the Director-General of the Department of Corrective Services. The applicant prisoners had been granted leave of absence or released on home detention or parole and so fell within the reach of section 207B. Aggrieved by the alteration of their records consistently with that section and their consequent return to confinement they sought review under the Judicial Review Act 1991. The learned primary Judge acceded to the respondent's contention that there was no reasonable basis for their applications which he accordingly dismissed under section 48 subsection (1) of the Act. The applicants now seek leave to appeal against that dismissal, leave being necessary under section 48 subsection (5). -- 2 of 5 -- 27072001 T8/SJ3 M/T COA171/2001 3 JUDGMENT The learned Judge was conscious of the need for care in dealing summarily with the matter as reflected for example in General Steel Industries Incorporated v. Commissioner for Railways New South Wales (1964) 112 CLR 125 at 128 to 9. But he had the benefit of full argument and delivered comprehensive reasons for his judgment. There was no reason why he should have refrained from making a final determination. The issues were not complex and lent themselves to expeditious summary disposal. The learned Judge rejected each of the applicant's contentions which were: first, that section 207B operated only in reinforcement of section 207A and did not extinguish eligibility for remission in the specified circumstances; second, that section 207B could not operate to extinguish eligibility for remission in any event because of the saving effect of section 20 subsection (2) paragraph (c) of the Acts Interpretation Act; third, that section 207B operated to increase the applicants' sentences, something proscribed by section 180 of the Penalties and Sentences Act; and fourth, that its operation led to the applicants being punished twice contrary to section 16 of the Criminal Code. In brief, as to the first point, the Judge held that sections 207A and 207B stood separately and alone, the latter by its unequivocal terms having the effect of extinguishing eligibility for remission in the prescribed circumstances. -- 3 of 5 -- 27072001 T8/SJ3 M/T COA171/2001 4 JUDGMENT The second contention was unsustainable in view of section 4 of the Acts Interpretation Act, section 207B disclosing the requisite contrary intention. As to the third and fourth points, section 207B did not, as his Honour held, have the effect for which the applicants contended. We had the benefit before coming to Court this morning of comprehensive written submissions in support of the application for leave. Having considered them and the additional oral argument here I am, however, left unpersuaded that there is any arguable basis from which this Court might proceed productively to re-open the issue. In my view the approach taken by the learned primary Judge is unarguably correct for the reasons he furnished which I would respectfully endorse. In addition, I am quite unpersuaded that the gloss for which Mr Ryan contended this morning should be placed upon section 207B subsection (2). I would refuse the applications. McPHERSON JA: I agree. WILLIAMS JA: I agree. THE CHIEF JUSTICE: The applications are refused. MR HINSON: Your Honours, I ask for costs but could I remind your Honours of what my learned friend said at the end of his -- 4 of 5 -- 27072001 T8/SJ3 M/T COA171/2001 5 JUDGMENT outline of argument and the approach that the learned primary Judge took as evidence in the last two paragraphs of the reasons for judgment. THE CHIEF JUSTICE: The applications are refused. Did you wish to say anything about costs? MR RYAN: If I may briefly, your Honour. THE CHIEF JUSTICE: I'm sorry, yes. MR RYAN: The applicants are still in custody. Obviously, they're - I'd submit they're impecunious. These are matters affecting liberty. I appreciate the reasons for your Honours' judgment but in the circumstances it was a matter that perhaps ought to have been tested given that it represents a considerable extension of their sentences beyond what they originally thought they were going to serve. In the exercise- ---- McPHERSON JA: In a way I agree with what you say but it's a bit like the testamentary cases, you get one shot at it free of charge as it were, when you come on appeal you're at a somewhat different level, you're trying again, and there was nothing, I would have thought, obviously wrong with the decision that should have prompted the appeal. MR RYAN: Yes. All I can do is invite the Court to exercise its discretion in favour of the applicants for the reasons that I've advanced. THE CHIEF JUSTICE: Well, the order may not have much utility, but in terms of regularity it is something I believe to which the respondent is entitled. The applications will be refused, with costs to be assessed. ----- -- 5 of 5 --