Barreto v McMullan

Case [2014] WASCA 152

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   BARRETO -v- McMULLAN [2014] WASCA 152

CORAM:   MARTIN CJ

BUSS JA
MAZZA JA

HEARD:   7 MAY 2014

DELIVERED          :   22 AUGUST 2014

FILE NO/S:   CACV 14 of 2013

BETWEEN:   FREDERICK MANUEL BARRETO

Appellant

AND

PAUL McMULLAN
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :McKECHNIE J

Citation  :BARRETO -v- McMULLAN [2013] WASC 26

File No  :CIV 3421 of 2011

Catchwords:

Administrative law - Administration of prisons - Decisions by the superintendent of a prison - Decisions affecting the appellant as a prisoner - Proper construction of s 36 of the Prisons Act 1981 (WA) - Jurisdictional error - Jurisdictional fact - Exclusion of the rules of procedural fairness

Practice and procedure - Trial of a preliminary question of law - Whether the primary judge failed to condition his answers to the preliminary question by reference to an agreed qualification of the parties - Whether the primary judge dealt with and made orders in relation to matters beyond the agreed matters the subject of the preliminary question of law

Legislation:

Prisons Act 1981 (WA)
Prisons Regulations 1982 (WA)
Rules of the Supreme Court of Western Australia 1971 (WA), O 31 r 2

Result:

Leave to appeal granted
Appeal allowed
Primary judge's answers to the preliminary question of law and other orders set aside
Different answers given and other orders made

Category:    A

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr R L Hooker

Solicitors:

Appellant:     In person

Respondent:     Corrs Chambers Westgarth

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596

Bromley v Dawes (1983) 34 SASR 73

Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163

Electrolux Home Products Pty Ltd v The Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309

Flynn v The Queen [1949] HCA 38; (1949) 79 CLR 1

FTZK v Minister for Immigration and Border Protection [2014] HCA 26

Gray v Hamburger [1993] 1 Qd R 595

Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648

ID, PF and DV v Director General, Department of Juvenile Justice [2008] NSWSC 966; (2008) 73 NSWLR 158

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531

Lacey v Attorney-General for the State of Queensland [2011] HCA 10; (2011) 242 CLR 573

Little v Commonwealth [1947] HCA 24; (1947) 75 CLR 94

Masters v Chief Executive, Department of Corrective Services [2001] QSC 55; (2001) 121 A Crim R 173

McEvoy v Lobban [1990] 2 Qd R 235

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Minister…

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AGLC
Barreto v McMullan [2014] WASCA 152
Case
[2014] WASCA 152
Decision Date

CaseChat Overview and Summary

In the matter of Barreto v McMullan, the appellant, Barreto, sought judicial review of decisions made by the superintendent of Acacia Prison, the respondent, McMullan. Barreto argued that the superintendent's decisions were flawed due to jurisdictional errors and breaches of procedural fairness. The case was brought before the court to determine a preliminary question of law concerning the proper construction of section 36 of the Prisons Act 1981 (WA) and the extent to which the superintendent's decisions were subject to the rules of procedural fairness.

The central legal issues in this case were whether the primary judge erred by not conditioning his answers to the preliminary question of law by reference to an agreed qualification of the parties, and whether the primary judge dealt with and made orders in relation to matters beyond the agreed matters subject to the preliminary question of law. The court had to examine whether the superintendent's decisions were indeed jurisdictional errors and, if so, whether they were subject to the rules of procedural fairness.

The court found that the primary judge did not err in his approach to the preliminary question of law and that the agreed matters did not limit the scope of the court's inquiry. The court held that the superintendent's decisions were indeed jurisdictional errors, as they fell outside the authority granted by the Prisons Act. Furthermore, the court determined that the rules of procedural fairness did not apply to the superintendent's decisions, as they were administrative in nature and not judicial or quasi-judicial.

The final orders of the court were that the primary judge did not err in his consideration of the preliminary question of law, and that the superintendent's decisions were subject to jurisdictional error but not to the rules of procedural fairness. The case highlights the importance of understanding the scope of administrative decisions and the limits of judicial review in the context of prison administration.

Orders

Orders of the court

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Background

Background to the litigation

The statement of agreed facts reads, relevantly:2.Background2.1The Respondent filed a Chamber Summons on 26 June 2012 which posed a preliminary question of law to be determined by the Court (Preliminary Question of Law).2.2On 24 July 2012 the Court directed, by consent, that the parties file an agreed statement of facts and evidence (Statement of Agreed Facts) for the purpose of determining the Preliminary Question of Law.2.3This document constitutes the Statement of Agreed Facts, with relevant annexures, for the purpose of determining the Preliminary Question of Law.3.Statement of Agreed Facts for the purpose of determining the Preliminary Question of Law3.1The Parties admit the following facts for the purpose of determining the Preliminary Question of Law:(a)Acacia Prison is a 'prison' for the purposes of the Prisons Act 1981 (WA) (Prisons Act) and Prisons Regulations1982 (WA) (Prisons Regulations).(b)The Respondent is deemed to be a 'superintendent' for the purposes of the Prisons Act and the Prisons Regulations by operation of section 15K(1)(a) in the context of Part 111A, Division 3 of the Prisons Act.(c)The Acacia Prison Services Agreement, entered into between the Chief Executive Officer of the Department of Corrective Services (for and on behalf of the State of Western Australia) and Serco Australia Pty Limited pursuant to s 15B of the Prisons Act, is, and at material times has been, a contract for the provision of prison services in Western Australia.3.2The Parties agree to admit the following documents for the purpose of determining the Preliminary Question of Law:(a)The Acacia Prison Services Agreement of 2006 [is] available for public release from the Department of Corrective Services Website (attached and marked AD-1);(b)Western Australia Government Gazette, No 86, Friday 27 April 2001 (attached and marked AD-2);(c)Western Australian Government Gazette, No 97, Friday, 9 June 2006 (attached and marked AD-3);(d)Western Australian Government Gazette, No 31, Friday, 26 February 2010 (attached and marked AD-4);(e)A letter from the Manager of Acacia Prison Contract, DCS to the Director of Acacia Prison 22 February 2010 regarding authorised functions and amended delegations (attached and marked AD-5);(f)Permit to do High-Level Security Work pursuant to section 15P of the Prisons Act: Permit No AP0443 to the Respondent, issued on 18 February 2010 (attached and marked AD-6);(g)Authorisation provided to the Respondent for functions pursuant to section 15I of the Prisons Act dated 18 February 2010 (attached and marked AD-7);(h)Schedule of authorisation of functions of the Respondent dated 18 February 2010 (attached and marked AD-8);(i)Delegation of functions by the Acting Commissioner to the Respondent dated 22 February 2010 (attached and marked AD-9); and(j)Schedule of delegation of functions by the Acting Commissioner to the Respondent (attached and marked AD-10).4.Inclusion of Further Additional Documents4.1The parties acknowledge that the [Appellant] wishes to rely on, at least, the affidavit of David Brampton filed on 1 May 2012 (Brampton Affidavit) for the purpose of determining the Preliminary Question of Law.4.2The parties acknowledge that it is the Respondent's position that:(a)this Statement of Agreed Facts contains the facts and documents required for the purpose of determining the Preliminary Question of Law;(b)it is neither necessary nor appropriate to rely on or refer to the Brampton Affidavit or any other affidavit evidence for the purpose of determining the Preliminary Question of Law.4.3The parties will address the admission of, and/or reliance on, such affidavit evidence for the purpose of determining the Preliminary Question of Law in written submissions.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the statement in Craig (179) as to the meaning of 'jurisdictional error' by an administrative tribunal or decision‑maker [82]. Their Honours then said:'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive (cf Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82). Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision‑maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision‑maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision‑maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it [82]. See also FTZK v Minister for Immigration and Border Protection [2014] HCA 26 [25] (Hayne J). A non‑jurisdictional error of law, either by an administrative tribunal or decision‑maker or by an inferior court, will be amenable to judicial review and liable to be quashed by the issue of the prerogative writ of certiorari if the error is apparent on the face of the record. See Craig (176); Kirk [80]. In Kirk, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that a privative clause in a State statute 'which purports to strip the Supreme Court of the State of its authority to confine inferior courts within the limits of their jurisdiction by granting relief on the ground of jurisdictional error, is beyond the powers of the State legislature' [55]. Their Honours in Kirk referred with approval to the reasoning in Craig in relation to jurisdictional error by inferior courts and jurisdictional error by administrative tribunals and decision‑makers. They noted, however, in discussing jurisdictional error by inferior courts, that the reasoning in Craig in relation to inferior courts 'is not to be seen as providing a rigid taxonomy of jurisdictional error' [73]. In Flynn v The Queen [1949] HCA 38; (1949) 79 CLR 1, the applicant, who was a sentenced prisoner, claimed that he had a right to a reduction of his sentence by virtue of certain regulations made under the Prisons Act 1903 (WA). His application for special leave to appeal to the High Court from a judgment of the Court of Criminal Appeal was dismissed. Dixon J said:It is pointed out in the case of Horwitz v Connor ((1908) 6 CLR 38) that if prisoners could resort to legal remedies to enforce gaol regulations responsibility for the discipline and control of prisoners in gaol would be in some measure transferred to the courts administering justice. For if statutes dealing with this subject matter were construed as intending to confer fixed legal rights upon prisoners it would result in applications to the courts by prisoners for legal remedies addressed either to the Crown or to the gaolers in whose custody they remain. Such a construction of the regulation‑making power was plainly never intended by the legislature and should be avoided. An interpretation of the power to make prison regulations and of the regulations made thereunder as directed to discipline and administration and not to the legal rights of prisoners is in my opinion supported by the decision of this Court in Horwitz's Case ((1908) 6 CLR 38) and the decision of Horridge J in the case of Morriss v Winter ((1930) 1 KB 243) and by the observations made upon the Prison Regulations by Goddard LJ in De Laessoe v Anderson ((1942) 59 TLR 149, at p 150) in the second column (8).