Eastman v Chief Executive of the Department of Justice and Community Safety [2010] ACTSC 14 (26 February 2010)

Last Updated: 15 April 2010

DAVID HAROLD EASTMAN v CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY

[2010] ACTSC 14 (26 FEBRUARY 2010)

PROCEDURE – Commencing proceedings – withdrawal of proceedings – re commencing proceedings – “Judge shopping” - abuse of process

PROCEDURE – Commencing proceedings – withdrawal of proceedings – re commencing proceedings – rule 270, consolidation of proceedings

BIAS – Disqualification of judicial officers – apprehended bias

Corrections Management Act 2007 (ACT) ss78(2)(d), 78(2)(b), 171, 175, 176, 80, 178

Court Procedure Rules 2006 (ACT) r 270

Eastman v Chief Executive Officer of the Department of Justice and Community Safety [2010] ACTSC 4

Spincer v Watts (1889) 23 QBD 350

Eastman v Chief Executive Officer of the Department of Justice and Community Safety (No 2) [2010] ACTSC 13

No. SC 68 of 2010

Judge: Refshauge J

Supreme Court of the ACT

Date: 26 February 2010

IN THE SUPREME COURT OF THE )

) No. SC 68 of 2010

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DAVID HAROLD EASTMAN

Plaintiff

AND: CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY

Defendant

ORDER

Judge: Refshauge J

Date: 2 February 2010

Place: Canberra

THE COURT ORDERS THAT:

1. The Honourable Justice Refshauge be and is disqualified from hearing these proceedings.

2. These proceedings be listed before the Master at 9.30 am on 5 February 2010 for case management.

1. This matter was commenced on 20 December 2009 apparently, concurrently, with proceedings identically entitled and numbered SC 1034 of 2009 (the earlier proceedings). In these proceedings, the following orders are sought:

1. Prohibiting C.O.3 Starkey and C.O.3 Frame from any contact with the Plaintiff, or any involvement in his management, except in an emergency.

2. That the Plaintiff’s case management plan be immediately amended to comply with s78(2)(d) of the Corrections Management Act 2007.

3. That the Plaintiff be immediately given full-time work of a kind that complies with s78(2)(b) and (d) of the Corrections Management Act 2007.

4. That the Plaintiff be paid damages for the Defendant’s failure to give him work of the kind referred to in Order 3 above in the past.

5. That all decisions in relation to the Plaintiff, taken under s 171 Corrections Management Act 2007 since 22 September 2009, be immediately reviewed in accordance with s 175 of that Act, and that when that review has been completed, the Plaintiff be given written notices of the decisions, as required by s176 of that Act.

6. Declaring invalid any decision by the Defendant, under s80 Corrections Management Act 2007, purporting to remove the Plaintiff’s minimum security classification on the grounds of decisions made under s171 of that Act, until Order 5 above has been complied with, and until the Plaintiff has had an opportunity to review those decisions under s178 of that Act.

7. Prohibiting officers from allowing prisoners to smoke in areas where smoking is prohibited.

8. That the Plaintiff be paid damages for passive smoking inflicted on him by the Defendant in the past, due to officers allowing prisoners to smoke in areas where smoking is prohibited.

2. The commencement of these proceedings is explained by the fact that Mr Eastman wished me to disqualify myself from the earlier proceedings after I had delivered an interlocutory decision against him (see Eastman v The Chief Executive Officer of the Department of Justice and Community Safety [2010] ACTSC 4). Mr Eastman indicated in communication with the Registrar that he intended to discontinue the earlier proceedings and commence these proceedings. At least in Order 3 the relief sought is relevantly identical to the relief sought in the earlier proceedings though additional relief is also sought.

3. That process, no doubt, has an element of “judge-shopping” about it but, in the event, both the earlier proceeding and this action were listed before me on 1 February 2010.

4. In the earlier proceedings, (see Eastman v Chief Executive Officer of the Department of Justice and Community Safety (No 2) [2010] ACTSC 13 (at [7]-[11]) I explained certain possible consequences of his actions to Mr Eastman. He is, after all, a litigant in person, although he is well experienced in litigation generally, having appeared in dozens of proceedings, many of which have been reported. I explained that the discontinuance would, under our present rules of court, inevitably require him to pay the costs of the defendant and that he may be met with an argument that discontinuance in these circumstances was an abuse of process.

5. As a result, I determined, as I have set out in those other reasons, that his correspondence should not be taken as a decision to discontinue the earlier proceedings until he had an opportunity to consider his position. It is true that a proceeding can be informally discontinued, including by letter: Spincer v Watts (1889) 23 QBD 350 (at 352, 353). I considered that Mr Eastman should not be taken to have discontinued the earlier proceedings until he had time to consider his position, informed by what I had told him.

6. There were, for example, other means of dealing with the issues, such as, consolidation of the two proceedings under r 270 of the Court Procedures Rules 2006 (ACT).

7. Mr Eastman accepted this and submitted that he wished first to apply for me to disqualify myself from hearing the earlier proceedings.

8. While the challenges made by Mr Eastman in this case include what might be called daily issues, whether certain custodial officers should have contact with Mr Eastman, whether other prisoners may be allowed to smoke in his presence, and the like, they are in general terms of a similar nature to those in other proceedings.

9. Accordingly, Mr Eastman applied for me to disqualify myself from hearing these proceedings also. The application was heard at the same time as that for the other proceedings and raised the same issues.

10. In my decision in respect of those other proceedings, (Eastman v Chief Executive Officer of the Department of Justice and Community Safety (No 2) [2010] ACTSC 13), I have set out in detail the law relating to when a judicial officer might disqualify himself or herself on the grounds of apprehended bias and the facts and circumstances of my involvement with Mr Eastman, his conviction and attempts to overturn that conviction.

11. I concluded that it would be prudent for me not to sit and, accordingly, disqualified myself from further hearing those proceedings.

12. That argument applies with equal force to these proceedings and, accordingly, I also disqualified myself in relation to these proceedings.

13. In doing so, I said I would deliver my reasons later and these are my reasons. To the extent that it is appropriate, I incorporate my reasons given in the earlier proceedings, (Eastman v Chief Executive Officer of the Department of Justice and Community Safety (No 2) [2010] ACTSC 13) in these reasons and for the same reasons, direct that these proceedings not be heard by me.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 26 February 2010

Solicitor for the plaintiff: Self represented

Counsel for the plaintiff: Self represented

Counsel for the defendant: Mr D Hancock

Solicitor for the defendant: Mr P Garrisson, ACT Government Solicitor

Date of hearing: 18 December 2009

Date of judgment: 26 February 2010