Jacka v Australian Capital Territory and the Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory [2009] ACTSC 140 (6 October 2009)

Last Updated: 26 October 2009

MITCHELL JACKA V THE AUSTRALIAN CAPITAL TERRITORY AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY OF THE AUSTRALIAN CAPITAL TERRITORY
[2009] ACTSC 140 (6 October 2009)

PRACTICE AND PROCEDURE – application for joinder, Court Procedures Rules 2006 (ACT), r 270 – duty of the court to facilitate just, efficient and frugal resolution of disputes, Court Procedures Rules 2006 (ACT), r 21 – pleadings identical, issues substantially similar, no prejudice to parties.
CRIMINAL LAW – suspended sentences as sentences of imprisonment under the common law and structure of the Crimes (Sentencing) Act 2005 (ACT), ss 12, 29.

Judiciary Act 1903 (Cth), s 78B
Crimes (Sentence Administration) Act 2005 (ACT), ss 68(2)(f), 79, 82
Human Rights Act 2004 (ACT)
Crimes (Sentencing) Act 2005 (ACT), Pt 3.2, ss 12, 29

Court Procedures Rules 2006 (ACT), rr 21, 270, 509

Jacka v The Australian Capital Territory and Anor [2009] HCATrans 151
Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591
R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629
Lewis v The Chief Executive of the Department of Justice and Community Safety & Anor (SC 353 of 2009)
Elliott v Harris (No 2) (1976) 13 SASR 516
R v Gillan [1991] FCA 184; (1991) 100 ALR 66
R v P [1992] FCA 626; (1992) 39 FCR 276

EX TEMPORE JUDGMENT

No. SC 834 of 2009

Judge: Refshauge J
Supreme Court of the ACT
Date: 6 October 2009

IN THE SUPREME COURT OF THE )

) No. SC 834 of 2009

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MITCHELL JACKA

Plaintiff

AND: THE AUSTRALIAN CAPITAL TERRITORY

First Defendant

AND: THE CHIEF EXECUTIVE OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY OF THE AUSTRALIAN CAPITAL TERRITORY

Second Defendant

ORDER

Judge: Refshauge J

Date: 6 October 2009

Place: Canberra

THE COURT ORDERS THAT:

1. Under r 270(2)(b) of the Court Procedures Rules 2006 (ACT) this matter is to be heard together with the matter of Lewis v The Chief Executive of the Department of Community Safety & Anor (SC 353 of 2009) on 16 and 17 November 2009.
2. The plaintiff is to amend his statement of claim on or before 8 October 2009.
3. The plaintiff is to file and serve a notice under section 78B of the Judiciary Act 1903 (Cth) on or before 9 October 2009.
4. The defendants are to file and serve a defence on or before 20 October 2009.
5. The parties are to cooperate in preparing an agreed statement of facts to be filed on or before 22 October 2009.
6. The plaintiff is to file and serve written submissions on or before 22 October 2009.
7. The defendants are to file any written submissions on or before 30 October 2009.
8. The plaintiff is to file any written submissions in reply on or before 6 November 2009.
9. The proceedings are to be listed for directions before Refshauge J on 21 October 2009 at 9.30 am.
10. Each party has liberty to apply on two days notice.
1. Mr Mitchell Jacka, the plaintiff, commenced proceedings in the High Court of Australia, Jacka v The Australian Capital Territory and Anor [2009] HCATrans 151 (C4/09), seeking declarations that certain provisions of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act), namely ss 68(2)(f), 79 and 82 are invalid under the Commonwealth of Australia Constitution as they undermine the independence and authority of the courts of this Territory. He also seeks consequential orders which may or may not be moot.
2. The action came before Heydon J in the High Court on 24 June 2009 for the hearing of an application for bail in associated proceedings (Jacka v The Australian Capital Territory and Anor [2009] HCATrans 151 (C5/09)) in which Mr Jacka sought a writ of habeas corpus and an order for his release on bail until the hearing of the proceedings. His Honour dismissed those proceedings and remitted the other matter, C4/09, to this Court to be heard, notwithstanding that there is potentially a decision of the High Court which would have to be overruled before Mr Jacka could succeed, namely Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591, and also a dicta of longstanding which may have to be held to have been incorrect, namely by Griffith CJ with whom Given, Duffy and Rich JJ agreed in R v Bernasconi (1915) 19 CLR 629 (at 635).
3. The proceedings now come before me for directions. The principal direction sought by Mr Jacka is that the proceedings be listed for hearing on 16 and 17 November 2009. That date is sought because I will then be hearing the balance of the proceedings in Lewis v The Chief Executive of the Department of Justice and Community Safety & Anor (SC 353 of 2009). In that matter Mr Lewis, who is also represented by the same lawyers who represent Mr Jacka, also seeks a declaration that ss 68(2)(f), 79 and 82 of the Sentence Administration Act are invalid. The grounds set out in the amended originating application issued in Mr Lewis’ matter are identical to those set out in Mr Jacka’s statement of claim.
4. In the proceedings brought by Mr Lewis there were other challenges made to the decision by which the sentence of imprisonment to be served by way of periodic detention by Mr Lewis was cancelled. Those related to issues as to the validity of the meeting of the Sentence Administration Board (the Board) and whether it was functus officio when it made the cancellation order, that the procedures followed by the Board were not those required by law and that the Sentence Administration Act was enacted contrary to the Human Rights Act 2004 (ACT). These matters, termed in the proceedings as “the administrative law matters”, were heard by me separately on 3 July 2009. The balance of the hearing on 16 and 17 November 2009 is for what has been called in those proceedings “the constitutional matters”, namely the identical claims to those which Mr Jacka makes.
5. The defendants initially opposed the joint hearing. The argument of the defendants is that there is said to be a fundamental difference in the factual matrix between the proceedings. The sentence imposed on Mr Lewis was for the offence of recklessly inflicting actual bodily harm on Daniel Wynd on 21 September 2009, for which he was sentenced to 12 months imprisonment to be served by periodic detention.
6. In the case of Mr Jacka there are two sentences. The first related to offences of driving whilst disqualified and stating a false name, for which he was sentenced to three months imprisonment to be served by periodic detention. There appears to be no relevant difference in this sentence to that imposed on Mr Lewis. The second was in respect of a charge of causing grievous bodily harm by a negligent act for which he was sentenced to imprisonment for 10 months, the first four of which were to be served by periodic detention, and at the conclusion of which the balance of the sentence was to be suspended and Mr Jacka released on a good behaviour order. It is said that Mr Jacka’s liability to serve a sentence by full-time detention could have arisen from the very terms of the sentence imposed. I find it difficult to follow how that could be so.
7. The sentence was clearly what is called in the Crimes (Sentencing) Act 2005 (ACT) a combination sentence (see s 29) which permits the court to impose a combination of sentence orders. It is interesting to note that while a suspended sentence order is made under s 12 of that Act which is in Pt 3.2 (“Sentences of Imprisonment”), s 29(1)(a) refers to “an order sentencing the offender to imprisonment (whether as full-time detention, periodic detention or a combination of these kinds of imprisonment)” and s 29(1)(b) refers to “a suspended sentence order” as though, contrary to the structure of the Act, and indeed the common law, a suspended sentence order is not a sentence of imprisonment: see Elliott v Harris (No 2) (1976) 13 SASR 516 (at 527), R v Gillan [1991] FCA 184; (1991) 100 ALR 66 (at 71), and R v P (1992) 39 FCR 276 (at 285-6).
8. The breach of the obligations during the periodic detention period could not breach any of the good behaviour obligations imposed upon Mr Jacka, for the good behaviour order was not operative until after the imprisonment to be served by periodic detention had been completed. It was suggested that even were the decision of the Board cancelling the periodic detention invalid, Mr Jacka would still liable to serve the suspended sentence. That can be admitted but does not seem to be in contest or to affect the hearing in any way.
9. It was also submitted that the joinder of the proceedings would be odd because the proceedings involving Mr Lewis are part-heard and might affect the timetable already set. In my opinion, while there is an oddity, the imposition on the court through r 21 of the Court Procedures Rules 2006 (ACT) of the need to act with minimum delay and expense means that one might make rather odd orders from time to time in order to achieve that objective, so long as prejudice or injustice is not caused to any party.
10. I note that Mr Lewis was required to file and serve written submissions on the constitutional issues on or before 14 September 2009 and has already done so. The defendants are to file and serve their responses by 12 October 2009. I agree that the joinder should not affect the proceedings in the matter involving Mr Lewis. It has been suggested, however, that the arguments already submitted in the matter involving Mr Lewis will be adopted by Mr Jacka. In those circumstances it seems to me that I can create a structure which would not prevent the proceedings involving Mr Lewis from being heard to conclusion, and which would also potentially involve the same issues involving Mr Jacka. In that event, a shortened timetable in this matter would be appropriate. It needs to be such that the defendants are not thereby prejudiced.
11. The statement of claim endorsed on the writ of summons has a small defect which, while not critical, should be corrected before the defendants file their defence. The pleading refers in paragraph 5 to “The Administration Act” apparently as a defined term to avoid the necessity of referring to the full title of the Act every time it is mentioned. It is in fact mentioned, after that reference, a total of nine times, so the utility of such a device is apparent. Unfortunately, however, the correct title of the Act is not used anywhere in the pleading.
12. From my own knowledge I can apprehend that the plaintiff presumably intended to refer to the Crimes (Sentence Administration) Act 2005 (ACT). My local knowledge however may not be accessible to everyone. That is presumably why Heydon J in his Honour’s reasons for remitting the proceedings to this Court referred incorrectly to the Crimes (Sentencing) Act 2005 (ACT) (Jacka v The Australian Capital Territory and Anor (at 6)) instead of to the Crimes (Sentence Administration) Act 2005 (ACT).
13. Accordingly, I will direct that the plaintiff amend their statement of claim, either by manuscript on the file document under r 509(2) of the Court Procedures Rules 2006 (ACT) or, if he or his legal representatives prefer, by filing an amended statement of claim under r 509(4) and do either of those things on or before 8 October 2009. A copy of the amended document is to be served within that time on the defendants. I give the defendants leave to file and serve a defence on or before 20 October 2009.
14. I order that:
    1. Under r 270(2)(b) of the Court Procedures Rules 2006 (ACT) this matter is to be heard together with the matter of Lewis v The Chief Executive of the Department of Justice and Community Safety & Anor (SC 353 of 2009) on 16 and 17 November 2009.

2. The plaintiff is to amend his statement of claim on or before 8 October 2009.

3. The plaintiff is to file and serve a notice under section 78B of the Judiciary Act 1903 (Cth) on or before 9 October 2009.

4. The defendants are to file and serve a defence on or before 20 October 2009.

5. The parties are to cooperate in preparing an agreed statement of facts to be filed on or before 22 October 2009.
6. The plaintiff is to file and serve written submissions on or before 22 October 2009.
7. The defendants are to file any written submissions on or before 30 October 2009.
8. The plaintiff is to file any written submissions in reply on or before 6 November 2009.
9. The proceedings are to be listed for directions before Refshauge J on 21 October 2009 at 9.30 am.

10. Each party has liberty to apply on two days notice.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 20 October 2009

Counsel for the Applicant: Mr M W Kukulies-Smith

Solicitor for the Applicant: Ken Cush & Associates

Counsel for the Applicant: Mr P Garrisson

Solicitor for the Applicant: ACT Government Solicitor

Date of hearing: 6 October 2009

Date of judgment: 6 October 2009