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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- Barreto v McMullan [2014] WASCA 152
- Case
- [2014] WASCA 152
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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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).