Piotto v Adult Parole Board of Victoria M118/2000 [2001] HCATrans 354 (10 August 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne Nos M118 and M119 of 2000

B e t w e e n -

LUIGI PIOTTO

Applicant

and

ADULT PAROLE BOARD OF VICTORIA

Respondent

Applications for special leave to appeal

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 AUGUST 2001, AT 2.50 PM

Copyright in the High Court of Australia

MR I. PIOTTO appeared in person.

MR G.J. MAGUIRE: If the Court pleases, I appear on behalf of the respondent. (instructed by the Victorian Government Solicitor)

KIRBY J: Mr Piotto, you can assume that we have read the application book.

MR PIOTTO: Yes. I just wanted to address a couple of additional arguments. I handed up to the Registrar some four pages, three letters and a quote from legislation. I am hoping you have them. The second page is actually a copy of my bail order. I actually argued before the Supreme Court and the County Court that.....saw no reason to deny access to Debbie Matthews and the police saw no reason and the actual trial judge did, and in the event Mr Wotherspoon denied that that was the case, so I thought I would actually have a bail order to demonstrate that. In fact they did not consider my access to Debbie Matthews to be appropriate on my bail.

That goes to my points that the Adult Parole Board overturned the facts on file and substituted its own answers to any suppositions and I thought that was an act not in good faith. That first page concerns that - I originally issued two writs in the County Court, one against the Minister and one against the Adult Parole Board. In the first instance the County Court refused to seal both writs. I asked the registrar to reconsider and in the end he in fact sealed the writs, which allowed me to proceed with the case in the County Court, which was then appealed in the Supreme Court and then up to here.

It seemed strange to me that.....due process of law that the Supreme Court refused to act on my application for judicial review in the Adult Parole Board and it seemed bizarre that the County Court would also refuse in the first instance to act on the writs. It seems to me a fluke of chance that I could get to the High Court at all because the courts seemed to find it expedient not to proceed with the writs, so the matters are not heard.

My final point is in quoting - in the respondent's defence he quotes Jones v Department of Employment and on page 22, if I may read:

Indeed, in my view, it is a general principle that, if a government department or officer, charged with the making of decisions . . . is subject to a statutory right of appeal against his decisions, he owes no duty of care in private law. Misfeasance apart, he is only susceptible in public law to judicial review or to the right of appeal provided by the statute -

It is very interesting, because of course there is no statutory right of appeal for the Adult Parole Board. I tried getting judicial review and the Supreme Court said judicial review with the Adult Parole Board is not possible. Mr Wotherspoon, who is not here today, suggested to the court that I should get a generally endorsed writ and serve it on the Registrar and the Chief Justice of the High Court to ensure that they actually hear a judicial review. I am not entirely certain of that process and I think there may be grounds to actually lay charges against the Registrar for perverting the course of justice because, if in fact that is what should have happened, then not doing so is in fact an attempt to pervert the course of justice. I think there is an arguable case.

That is the only additional points that I wish to raise, that if there is a statutory right of appeal in the Corrections Act against the Adult Parole Board, then I should only use that statutory right of appeal. In fact there is none and in the case of Jones v Department of Employment they are saying that if there is a duty of care and there is no statutory right of appeal in the Act, then the private law of suing for breach of duty of care is in fact appropriate. That is the only additional arguments I wish to make. Thank you.

KIRBY J: Yes, thank you, Mr Piotto. The Court does not need your assistance, Mr Maguire.

The Court has considered the record in this matter, the written submissions of the parties and the oral submissions of Mr Piotto, which he has put with admirable succinctness. However, like the Court of Appeal of Victoria, we can find no error in the decision of Judge Anderson refusing relief to the applicant against the respondent. Accordingly, the application for special leave to appeal must be refused.

There is no request for costs in this case?

MR MAGUIRE: There is a request for costs. It was inelegantly framed in the materials, your Honour, but Mr Piotto has been advised that in the event that the application is not successful, costs would be sought.

KIRBY J: Would this not fall within the general remit of criminal matters?

MR MAGUIRE: No, your Honour. It is a civil proceeding for damages.

KIRBY J: You say it was seeking prerogative relief or damages?

MR MAGUIRE: That is the failing, as it were - the central failing of the claim. In fact, they were claims in negligence seeking, in one instance, $8,000 by way of damages.

CALLINAN J: They are civil proceedings.

KIRBY J: They arise indirectly out of a criminal matter but their nature was as civil proceedings brought by Mr Piotto against your client.

MR MAGUIRE: Yes.

KIRBY J: Yes, I think that is right, Mr Piotto. In criminal matters you do not pay costs but in civil matters you do. Did the Court of Appeal dismiss the matter with costs?

MR MAGUIRE: They did, your Honour, yes.

KIRBY J: I think you will have to pay the costs in this Court, too, I am afraid, Mr Piotto.

Very well, the order of the Court is application dismissed with costs.

The Court will now adjourn until next Monday in Adelaide.

AT 2.57 PM THE MATTER WAS CONCLUDED