Commissioner of Corrective Services of New South Wales & 1 Ors v Middleton [2004] NSWCA 156

New South Wales Court of Appeal

CITATION : Commissioner of Corrective Services of New South Wales & 1 Ors v Middleton [2004] NSWCA 156 HEARING DATE(S) : 10 May 2004 JUDGMENT DATE : 10 May 2004

JUDGMENT OF : Santow JA at 1 DECISION : Orders at page 8.

CATCHWORDS : PROCEDURE - Review of decision of Registrar on Motion seeking extension of time to file appeal (as distinct from leave to appeal) - Discontinuance of appeal - Twenty-eight day rule -Lower court written judgment delayed for three months after oral judgment given - Holding summons filed - Use of personal computer by prisoner for educational purposes. LEGISLATION CITED : Supreme Court Rules Pt 51 r5; Pt 61 r3 COMMISSIONER OF CORRECTIVE SERVICES OF NEW SOUTH WALES (Applicant/First Appellant) PARTIES : Governor David Russell TAWHARA (Second Appellant) Mark Anthony MIDDLETON (Respondent) FILE NUMBER(S) : CA 40292/04 COUNSEL : N PERRAM (Applicant/First Appellant) C ADAMSON, SC/ K M RICHARDSON (Respondent) SOLICITORS : I V Knight, Crown Solicitor (Applicant/First Appellant) Susan Winfield, Kingsford Legal Centre (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40292/04

SANTOW JA

10 MAY 2004 COMMISSIONER OF CORRECTIVE SERVICES OF NEW SOUTH WALES & 1 Ors v Mark Anthony MIDDLETON Judgment 1 SANTOW JA: This application is by the Commissioner for Corrective Services for a review of a decision made by Registrar Schell on 3 May 2004, dismissing the Commissioner's notice of motion with costs. The motion seeking the review was brought pursuant to Part 61 r3 of the Supreme Court Rules. The motion before the Registrar sought orders extending the time by which the Commissioner must file what was at that point envisaged as his appeal, as distinct from leave to appeal, by ten days under Part 51 r5 of Supreme Court Rules. 2 Since then a further issue has been raised by the respondent in opposition to the Commissioner's application. It is that leave to appeal should also have been sought. It is a matter upon which the parties are at issue and which it is not necessary that I resolve, because the orders sought would now encompass leave. 3 In one sense the Commissioner's notice of appeal, which should have been filed no later than 6 April 2004, was filed six business days late on 16 April 2004. In another sense, although written reasons were not provided until 10 March 2004 (some three months after the oral judgment that the judge at first instance, Dowd J, had then given), the applicant, knowing beforehand the tenor of the judgment, then had a further twenty-eight days to put on a notice of appeal and failed to do so. The applicant was aware of the time limit and is a most experienced litigator. 4 Accordingly, once the twenty-eight days passed, it could be said that on 6 April 2004 the appeal was taken as having been discontinued, so that the applicant requires an extension of time of some months. 5 I should expand on the events that happened. The applicant had filed a holding summons (appeal without appointment). This was done on 6 January 2004, four weeks after Dowd J's ex tempore judgment had been settled on 10 December. 2003. It was delivered in the presence of a representative of the applicant and its solicitor and counsel. Thus, as I have said the tenor of the judgment was already known to the applicant though one can understand that, until written reasons in what had been a complex matter were made available, there was understandable reluctance to embark upon a notice of appeal. 6 The applicant did not actually apply for a stay until he filed a notice of motion in the common law division on 21 April 2004, some four months after the original judgment. This notice of motion was filed after the respondent by his counsel drew the applicant's attention to the omission of the return date to the respondent's notice of motion in the Common Law Division that the orders made by Dowd J be complied with. 7 I agree with the respondent's submission that the whole procedure was designed to ensure parties had ample time to give consideration to whether or not to appeal. The three months period is generous and takes account of difficulties often encountered in obtaining transcript and written reasons, particularly though not exclusively in lower courts. It is not a procedure to condone delay. The twenty eight day rule remains of continuing relevance in that twenty eight days is regarded as sufficient to enable a party to determine whether to appeal and if so, to file an appeal. 8 Counsel for the applicant was utterly frank in explaining the reason for the tardiness. It was forgetfulness on the part of counsel in allowing the relevant date to pass. Thus it could not be said, and counsel properly asked for this to be emphasised, that the fault was that of the client even in the sense that it could be attributed to the Crown by reason of the Crown Solicitor's office allowing the date to pass. Such candour is appreciated by this Court. It does weigh in the discretionary determination of the course now to be taken in permitting an extension of time, as required for this appeal. I say, "as required" in order to encompass the possibility, without deciding, that leave to appeal is included in what is required. 9 I need now to explain the substance of issues bearing upon the application. Quoting from the applicant's written submissions (paragraph 5), the position is put in these terms: "The judgment below was a judgment given by Dowd J. By that judgment Dowd J concluded that the Commissioner committed reviewable error if he based a decision as to whether a prisoner was to have access to a chattel in his cell solely on the prisoner's security classification. His Honour required each such application to be dealt with on its merits. The implications of this decision in the NSW prison system are far reaching and fundamentally alter the manner in which the prison system is to be run. A very significant expense will be involved in implementing Dowd J's decision if it be correct." 10 The respondent at paragraphs 8 and 9 sets out what is submitted to be the prejudice that would be suffered by the respondent from the effect of further delay entailed by an appeal were an extension of time granted. That prejudice presupposes that the prisoner would continue to be denied access to the computer, notwithstanding judgment in his favour, upon which he has so far successfully completed four years of study from prison at University level in mechanical engineering, recognised as meritorious in itself as well as important to his rehabilitation. I should add that this was not disputed by the applicant whose concerns relate to security and prison governor's authority, as I will describe shortly. I quote now from the respondent's submissions. "8. Because it is not known how long the appellant will take to make a new decision, if the extension is not granted, or if it is granted and the appeal is dismissed, it is difficult to estimate the precise effect of the delay on the respondent. It is sufficient to say that his time in gaol is, while he is unable to study, wholly unproductive. If the decision is re-made in his favour, of which there must be some chance, he will be able to continue his studies which have been substantially interrupted. He is presently in limbo because the decision has been held to be flawed, but the appellant apparently does not propose to remake the decision according to law, until the appeal (if the extension is granted) is heard and determined.