KIRK v GOVERNOR OF THE PARRAMATTA GAOL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY AP, SHELLER and POWELL JJA 3 December 1993, 15 February 1994 [1994] NSWCA 166 Application for Prerogative Relief — District Court Order cancelling order for periodic detention because of non compliance in absence of applicant — Applicant claimed that he was prevented from attending because of illness, that the Court was notified and that a Court Officer said, "That's alright, we'll get the hearing to another date" — Not accepted that Court Officer so said — Application dismissed — Orders made on dismissal of application — Reasons for judgment now delivered. Mahoney AP, Sheller and Powell JJA On 3 December 1993 Peter John Kirk applied to the Court of Appeal for an order quashing an order made by the District Court on 20 August 1993 as the result of which he was arrested and taken to gaol. After hearing Mr Stratton for Mr Kirk and Mr Bartley for the respondents, it concluded that the application should be dismissed. As Mr Kirk was in custody it was appropriate that the Court formally determine the application and it ordered that it be dismissed with costs. It indicated that it would subsequently deliver its reasons for that order. It now does so. Mr Kirk's imprisonment resulted from his cultivation of a prohibited plant. On 7 May 1992 he was convicted for doing so at a Local Court and sentenced to 150 hours community service. He failed to comply with the community service order. On 7 January 1993 he was, because of that failure, sentenced to six months imprisonment, to be served by periodic detention. He appealed against that order, but it appears that on 19 March 1993 the sentence was confirmed by the District Court at Newcastle: he was to serve six months imprisonment by way of periodic detention, to commence on 26 March 1993. Again he failed to comply with his obligations. Notices were sent to him. On 12 July 1993 he was notified that application would be made to the District Court on 20 August 1993 for cancellation of the order for periodic detention and for his sentence to be served by imprisonment. On 20 August 1993 he did not appear. The matter was held in the list until shortly before the luncheon adjournment but, as he had not appeared, the order for periodic detention was cancelled. The result was that, in accordance with the Periodic Detention of Prisoners Act 1981, he was deemed to be sentenced to serve by way of imprisonment the statutory equivalent of the remainder of his sentence: see Periodic Detention of Prisoners Act 1981, s27, s29. He made no attempt to communicate with the Court to find what had happened. A warrant was issued for his arrest and on 16 September 1993 he was arrested and taken into custody. Mr Kirk then brought proceedings by way of habeas corpus on 20 October 1993. On 22 October 1993 they were referred to the Court of Appeal. The proceedings came before the Court on 8 and 22 November 1993. They were not in a form appropriate for hearing and the Court endeavoured to arrange for the appropriate hearing of them. 2 UNREPORTED JUDGMENTS On 3 December 1993 Mr Kirk was before this Court. He was then represented by Mr Stratton. It should be recorded that Mr Stratton, to whose attention the matter had been brought by the Court, undertook the representation of Mr Kirk and, he has informed the Court, made personal efforts to ensure that he was appropriately represented. It is proper to record the Court's appreciation of what Mr Stratton has done. When the matter was mentioned before this Court on 3 December 1993 Mr Stratton indicated that the habeas corpus proceedings would not be proceeded with. It was, on the material available, plainly a hopeless application. There had been filed in the Court a summons directed to the Court of Criminal Appeal seeking the setting aside of the order made by the District Court on 20 August 1993. That matter also was not proceeded with. With the consent of Mr Bartley, who represented the respondents, that summons was treated as a summons for prerogative relief in the Court of Appeal. Mr Stratton sought an order that the order made by the District Court be quashed on the ground that (to put the matter compendiously) the order had been made without observance of the requirements of procedural fairness, to the extent that the order should be quashed. The Court permitted affidavits to be filed in Court so that the substance of the application could be considered. The contention advanced for Mr Kirk was that on 20 August 1993 he was ill to an extent that prevented him attending the Court, that his sister informed an unidentified person at the Sydney District Court that he was not able to attend the Court on that day because he was ill, and that that person informed Mr Kirk's sister: That's alright, we'll get the hearing to another date. Those representing the respondents did not accept that Mr Kirk's failure to attend the Court was due to illness, that the Court had been so informed by his sister Miss Kirk or that the Court Officer had said what Miss Kirk deposed to. In our opinion, the evidence adduced for Mr Kirk does not establish that the reason why he did not attend the Court was illness or that a Court Officer said to Miss Kirk what, in her affidavit, she deposed to have been said. It may be assumed that for some months before 20 August 1993, Mr Kirk had claimed that he was subject to rectal bleeding and to pain because of it. He tendered a document to indicate that he had consulted medical practitioners with such a complaint and that there had been an investigation of his colon to ascertain whether a cause could be attributed to what he claimed was occurring. As far as the evidence establishes, no cause for it was found. Notwithstanding what he said, he continued during the period of many months to carry on his occupation. That occupation was apparently an onerous one, and involved him managing a business which operated some trucks, in driving his trucks, and in loading and unloading office furniture and equipment from them. There was no medical support for the claim that on 20 August 1993 he was too ill to go to Court. It is proper to record that the respondents had required that those responsible for the medical evidence to be relied on by Mr Kirk be available for cross examination: they were not available and no explanation was given for their absence. A certificate in respect of 20 August 1993 was tendered but the doctor in question was not present for cross examination and in the circumstances the tender was withdrawn. On 20 August 1993, Mr Kirk was residing temporarily with his sister in Lithgow. He knew that the application to cancel the order for periodic detention would be heard in the District Court in Sydney. He would have to be in Sydney WK v GOVERNOR OF THE PARRAMATTA GAOL (Mahoney AP, Sheller and Powell JJAB for the hearing. The case advanced for him was that on the morning of 20 August 1993, after his sister had gone to work, he telephoned her to ask her to telephone the District Court in Sydney to say he could not attend. He did not say why he himself did not telephone the District Court: he gave the telephone number of the Court to his sister and asked her to make the call. No evidence was given as to the arrangements (if any) which had been made by him, had he not been sick, to attend the Court in Sydney. His sister Miss Kirk made an affidavit on 3 December 1993. The affidavit was filed in Court. She did not say in her affidavit that on the morning of 20 August 1993 he was in fact, because of illness, not in a condition to travel to Sydney. Her oral evidence was less than precise in relation to that matter. In her affidavit she said: 5. On or about the morning of 20 August 1993 my brother called me at work and said words to the effect of, "Can you call the District Court and tell them I can't attend because I am still sick'. 6. At 9.10 am on the same day I rang Sydney District Court and spoke to a woman with a foreign accent. I said words to the effect of, 'I am Peter Kirk's sister. He is to attend your Court today but he won't be able to attend because he is still sick'. She said, "That's alright, we'll get the hearing to another date'. Miss Kirk evidenced the fact that the call had been made on that day by tendering a note on a date pad of the relevant period of the number of the Court Office. We do not find formally that Miss Kirk did not in fact make a telephone call to the number in question on that morning: it is not necessary to form a concluded view of that matter. We will for the purpose of argument assume she did. But we are not satisfied that there was a conversation with a person at the Court in the terms that Miss Kirk deposed to or to that effect. Evidence was given by the respondents as to the practice followed if telephone messages of the relevant kind were received. That evidence suggests that no such call was made. At least, it supports the view that no such conversation took place as was alleged by Miss Kirk. During her oral evidence, it was pointed out to her that it was inherently unlikely that a conversation in the form that she suggested had taken place: if told merely what Miss Kirk had told her, it seems unlikely that the Court Officer would have been able to identify the case. But it is not necessary to pursue that matter. Even if the Court Officer had been told Mr Kirk was ill and had identified his case, it is unlikely that she would have said what was deposed to. In the light of this, she was invited to consider again the terms of the conversation as it was deposed to by her. She did not suggest that the conversation was substantially different from what was deposed to. It is sufficient to say that we believe that (if a conversation did take place) the conversation was not in the form or to the effect of that deposed. We do not accept that she was told, "That's alright, we'll get the hearing to another date" or anything to that effect. As we have indicated, it is not necessary that we find in terms that there was no conversation with a Court Officer. It is sufficient that we are not satisfied there was a conversation in the form alleged or relevantly in any other form which would assist Mr Kirk's application for relief. We do not think that a Court Officer, told on the telephone simply what Miss Kirk said was said, would have spoken to her as she suggests. On this basis there is, in our opinion, no basis in fact for the present application. 4 UNREPORTED JUDGMENTS We have assumed for purposes of considering this application that an order may be quashed where, by reason of the absence of a party, that party has not had the opportunity to place relevant matters before the Court. Mere absence is not enough: it is necessary to show that the absence was in such circumstances that there was in the relevant sense a procedural unfairness. That has not been shown in the present case. As we have said, the evidence does not satisfy us that the reason Mr Kirk did not attempt to attend the Court was illness. Even if it was, it is not clear that a party who does no more than was here done can claim that the orders made against him involved unfairness such as to warrant the setting aside of an order made in his absence. We have considered carefully the significance of the fact, as counsel suggested it to be, that there is no appeal against the judge's order and that, as it has been suggested, the District Court may not set aside the order which was made, even if procedural fairness be established. It is not necessary to consider whether, in such a case, relief would be available, for example, under the Periodic Detention of Prisoners Act or by way of appeal out of time against the order for imprisonment arising by virtue of the operation of the sections in that Act. It is sufficient to conclude as we do that the factual basis for the present matter has not been established. Application dismissed with costs. Counsel for the Claimant: BT STRATTON Instructed by: TREVOR NYMAN AND CO Counsel for the Opponent: GJ BARTLEY Instructed by: HK ROBERTS