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. 9. Although the special considerations which apply to appeals against sentence do not apply here, there is an analogy. The respondent is incarcerated, but while the decision remains set aside, and not remade, he cannot even escape the prison in his mind, through further education. Further, as Deane J observed in Bishop v The Queen (1982) 58 FLR 233 at 236, "the fears, apprehensions and expectations of ordinary men are prone to be exaggerated rather than lessened by confinement." 11 It is upon that basis as well as what is said by the respondent to be a cavalier approach to the court's orders and the rules, that it is submitted by the respondent that the extension of time ought to be refused. 12 The applicant does not take issue with the stated matters of prejudice to the respondent and that is important. The applicant does, however, take issue with a condition that I conclude ought to be imposed upon granting the extension of time sought. I quote first that condition: "4. Orders the appellants/claimants to permit the respondent/ opponent to use his computer inside his cell from 11 May 2004 until: (a) the final determination of these proceedings; or (b) the conclusion of the semester in which the proceedings are finally determined, whichever is the later, or until (c) inspection of the computer reveals that there is a use of it other than for purposes of his continued study." 13 The applicant firstly submits that such a condition could not be consented to by it as it does not wish to in any way to weaken the position it takes in seeking to appeal and in its appeal grounds. The applicant submits that access to a computer for a prisoner with a lower security classification than the level at which access would be allowed, creates a security risk and that to allow that access would undermine the authority of the Governor. 14 When pressed as to the nature of the security risk all counsel for the applicant could indicate was that it was concerned that a computer might be used to track movements of warders and of the rosters of warders from a database on that computer. However, no evidence at all was submitted to indicate any basis for that concern in the case of this particular prisoner. Nor was it explained how a prisoner with this prisoner's security classification would be otherwise prevented from keeping track of such movements simply by pencil and paper. It was accepted that the computer, though belonging to the respondent, could be made available to be inspected when required and that a further condition should in any event be imposed upon its use, namely that its use would cease if inspection of the computer revealed that there was a use of it other than for purposes of continued study. 15 I should also note that it has been accepted by the respondent that this security classification is amenable to change by reference to the respondent's own behaviour. It also stands to be affected by reason of the recent trial of additional offences committed by the respondent before his incarceration some seven years ago, in circumstances where he is now awaiting sentence. Counsel for the respondent frankly conceded that it was unlikely that his security classification would change in the short term. 16 Finally I should note that amongst the grounds of appeal is one that was not before Dowd J. It is to the effect that "His Honour erred in considering that the decisions challenged were judicially reviewable". That particular matter of principle is a strong reason for permitting, along with the other grants, the extension of time sought by the applicant. This is because there are implications for the present system generally given the circumstances of this case, a matter which may also ultimately bear upon costs should leave to appeal be granted. However, costs in that regard are a matter for the Appeal Court to consider at the time. 17 I have concluded that the condition for granting the indulgence of an extension of time to the applicant is that which I have quoted under [12] above. This is so, though in one sense it may give a more favourable outcome than had there been no appeal at all from the decision of Dowd J. That depends upon what a decision on the merits would have produced as required by Dowd J. The educational position of the prisoner and his prospect of rehabilitation would then have been a matter of direct relevance, to be balanced against any genuine security concerns. One could not assume that the outcome of such a decision, made according to law, would necessarily favour the respondent or the applicant. We simply do not know what the outcome would be. But it could be fairly said that the respondent had some prospect of being thereby allowed access to the computer. 18 However the answer to that contention is that the Crown has elected not to take that course of accepting the outcome of Dowd J's decision. It has elected, as it is entitled to do (subject to any necessary extension of time and leave) to proceed with an appeal, thereby subjecting the successful respondent to the prejudice earlier identified were the application for extension of time to be granted and, if leave to appeal were required, that leave given. The only way in which that prejudice can be mitigated, there having already been prejudice from the denial of a computer in the interim, is by imposing the condition that I have described. It could not be said that a court imposed condition against the applicant, to which the applicant does not consent, would undermine the authority of the Governor of the prison. This is when his authority must be exercised according to law. Here the imposition of a condition arises from the Crown's own failure to lodge an appeal, and if necessary, leave to appeal, in a timely fashion. In other words such prejudice to the Governor's authority, if it exists, really stems from that failure. The condition necessary in the interests of justice to enable the applicant now to be in a position to press its appeal if it obtains the necessary orders is imposed because the balance of justice requires this. 19 It is not a farfetched analogy to compare the position of an illegal immigrant wanting a stay of a deportation order pending an appeal under the ADJR legislation. Likewise the alleged illegal immigrant is potentially advantaged by that stay as compared to the position in which he or she would have been placed had no review been sought and instead a decision to depart or not made according to law. The analogy is not, of course, a perfect one. But it reflects the fact that in determining where the balance of justice lies, the court necessarily cannot replicate the position that would have been obtained had there been no appeal in the first place. Rather, the court must do what it can to mitigate unfair prejudice in the interests of justice. 20 Accordingly I have made the orders attached to this judgment. As to costs, I consider that the party seeking the indulgence should bear such costs as are described in those orders. ********* ORDERS CA 40292/04 commissioner of corrective services of nsw & anor v middleton THE COURT: I note that the applicant will seek expedition at the time of the hearing of the application for leave to appeal or earlier before the Registrar. 1. Extends time for the filing of the claimants' summons for leave to appeal to 11 May 2004 on the conditions set out in paragraph 4. below. 2. Sets aside the decision of Registrar Schell made on 3 May 2004 to refuse the claimants' application for an extension of time to file a notice of appeal, but does not disturb the costs order made on 3 May 2004. 3. Extends time for the filing of the appellants' notice of appeal to 16 April 2004, on the conditions set out in paragraph 4 below. 4. Orders the appellants/claimants to permit the respondent/opponent to use his computer inside his cell from 11 May 2004 until: (a) the final determination of these proceedings; or (b) the conclusion of the semester in which the proceedings are finally determined, whichever is the later, or until (c) inspection of the computer reveals that there is a use of it other than for purposes of his continued study. 5. Orders the claimants/appellants to pay the respondent's/opponent's costs of their notices of motion heard on 10 May 2004. 6. Liberty to apply on 3 days' notice. 10 May 2004 Last Modified: 05/19/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.