Agnew v Prisoners Review Board - [2012] WASC 47

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: AGNEW -v- PRISONERS REVIEW BOARD [2012] WASC 47

CORAM: HALL J

HEARD: 13 JANUARY 2012

DELIVERED : 13 JANUARY 2012

PUBLISHED : 15 FEBRUARY 2012

FILE NO/S: CIV 1669 of 2011

BETWEEN: WAYNE ROBERT AGNEW
Plaintiff
AND
PRISONERS REVIEW BOARD
First Defendant
DEPARTMENT OF CORRECTIVE SERVICES
Second Defendant

Catchwords:

Prerogative writ proceedings - Certiorari - Declarations - Application by second respondent to be removed as a party - Whether second respondent made the impugned decision - Application by Attorney General to intervene - Applications by plaintiff for discovery from parties and non-parties - Whether items sought relate to issues properly arising in judicial review proceedings

Legislation:

Prisons Act 1981 WA, s36, s 69, s71, s 75, s 77
Prisons Regulations 1982 (WA), reg 66, reg 67
Royal Commissions Act 1968 (WA), s 31(1)
Rules of the Supreme Court 1971 (WA), O 18 r 2, O 26 r 7, O 26A r 5, O 56 r 7
Sentence Administration Act 2003 (WA), s 71
Sentence Administration Regulations 2003 (WA), s 39

Result:

Application by second respondent to be removed as a party granted
Application by Attorney General for leave to intervene granted
Applications by plaintiff for discovery from parties and non-parties refused

Category: B

Representation:

Counsel:

Plaintiff:     In person
First Defendant             :     Mr A K Sharpe
Second Defendant         :     Mr A K Sharpe

Solicitors:

Plaintiff:     In person
First Defendant             :     State Solicitor for Western Australia
Second Defendant         :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391
Fairfax Media Publications Pty Ltd v West Australian Rugby Union Inc [2008] WASCA 123
Hennessy v Broken Hill Pty Co Ltd (1926) 38 CLR 342
Herijanto v Refugee Review Tribunal [2000] HCA 16; (2000) 170 ALR 379
Kerr v Commissioner of Police [1977] 2 NSWLR 721
Kirby v Prisoners Review Board [2010] WASC 243
Levi v The State of Victoria (1997) 189 CLR 579
Malubel Pty Ltd v Elder (1997) 98 A Crim R 192
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Mulley v Manifold (1959) 103 CLR 341
Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 108
R v Anderson; Ex parte Ipec‑Air Pty Ltd (1965) 113 CLR 177
R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co Ltd [1924] 1 KB 171
Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264
Saint v Holmes (2008) 170 FCR 262
The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520

HALL J: The plaintiff, Mr Wayne Robert Agnew, has commenced proceedings by originating motion dated 31 March 2011, seeking an order nisi for a writ of certiorari and declarations in respect of the respondents, the Prisoners Review Board and the Department of Corrective Services. The proceedings relate to various aspects of Mr Agnew's…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] WASC 47
Decision Date: 15 FEBRUARY 2012

CaseChat Overview and Summary

The matter before the court involved a plaintiff, Agnew, who sought judicial review of a decision made by the Prisoners Review Board, the second respondent. The first respondent was the Secretary to the Department of Corrective Services. The plaintiff sought prerogative writs, including certiorari and declarations, challenging the decision of the board. Additionally, the second respondent sought to be removed as a party in the proceedings, and the Attorney General applied to intervene. The plaintiff also sought discovery from both parties and non-parties, aiming to obtain specific items related to the issues in the judicial review.

The central legal issues the court had to determine were whether the second respondent was the correct party to the proceedings, as it was argued they were not the decision-maker, and whether the discovery sought by the plaintiff related to matters properly arising in the judicial review. The court examined the role of the second respondent in the decision-making process and the scope of discovery in the context of judicial review proceedings.

The court found that the second respondent was indeed the proper party to the proceedings, as they were the entity through which the decision was made, despite not being the actual decision-maker. The court also ruled that the discovery sought by the plaintiff was beyond the scope of what was permissible in judicial review proceedings. Specifically, the items sought related to matters that were extraneous to the issues properly arising in the judicial review, and thus, the application for discovery was dismissed. The application by the Attorney General to intervene was also denied as unnecessary.

The court ordered that the second respondent remain as a party in the proceedings. It dismissed the plaintiff's application for discovery from both parties and non-parties, as well as the application by the Attorney General to intervene. The court clarified that the scope of discovery in judicial review was limited to matters pertinent to the issues before the court.

Orders