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Barreto v McMullan

Barreto v McMullan

Case [2013] WASC 26 31 January 2013

Administrative Decisions

Legitimate Expectation

Natural Justice & Procedural Fairness

Prisons and Prisoners

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BARRETO -v- McMULLAN [2013] WASC 26

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 26
Case No:	CIV:3421/2011	Heard:	10 SEPTEMBER 2012
Coram:	McKECHNIE J	Delivered:	31/01/13
No of pages:	41	Judgment Part:	1 of 1
Result:	Q1. Were the respondent's actions lawful? A1. Yes, except in respect of a cell confinement regime (claim 7) in which the respondent's actions were arguably unlawful Q2. Are the respondent's actions open to judicial review? A2. On the pleadings and agreed facts, no except in respect of the cell confinement regime (claim 7) in respect of which judicial review may be open
Category:	A
PDF Version

Parties:	FREDERICK MANUEL BARRETO PAUL McMULLAN
Catchwords:	Prisons and prisoners Claim for declaratory relief Actions of prison superintendent Whether authorised Whether lawful Power to govern prisons Whether power to order the cell confinement regime Whether power to activate a TOMS alert Whether power to enquire into allegations of grooming Whether power to suspend work Whether work a privilege Preliminary question of law No new principles
Legislation:	Prisons Act 1981 (WA), s 36, s 37, s 43, s 82 Prisons Regulations 1982 (WA)
Case References:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Annetts v McCann (1990) 170 CLR 596 Bartz v Chief Executive, Department of Corrective Services [2001] QSC 392; (2002) 2 Qd R 114 Dietrich v The Queen (1992) 177 CLR 292 Haoucher v The Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648 Kidd v Chief Executive, Department of Corrective Services [2000] QSC 405; (2000) 117 A Crim R 201 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Kirk v The Industrial Court of New South Wales (2010) 239 CLR 531 Leech v Deputy Governor of Parkhurst Prison [1988] AC 533 McEvoy v Lobban (1992) 2 Qd R 235 NGJF v Prisoners Review Board [2010] WASC 107 Public Service Association of South Australia Inc v Industrial Relations Commission (SA) [2012] HCA 25; (2012) 289 ALR 1 Rich v Scaife [2012] VSCA 92 Walker v The Queen (1993) 2Qd R 345

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BARRETO -v- McMULLAN [2013] WASC 26 CORAM : McKECHNIE J HEARD : 10 SEPTEMBER 2012 DELIVERED : 31 JANUARY 2013 FILE NO/S : CIV 3421 of 2011 BETWEEN : FREDERICK MANUEL BARRETO

Applicant

AND

PAUL McMULLAN

Respondent

Catchwords:

Prisons and prisoners - Claim for declaratory relief - Actions of prison superintendent - Whether authorised - Whether lawful - Power to govern prisons - Whether power to order the cell confinement regime - Whether power to activate a TOMS alert - Whether power to enquire into allegations of grooming - Whether power to suspend work - Whether work a privilege - Preliminary question of law - No new principles

Legislation:

Prisons Act 1981 (WA), s 36, s 37, s 43, s 82

Prisons Regulations 1982 (WA)

(Page 2)

Result:

Q1. Were the respondent's actions lawful?

A1. Yes, except in respect of a cell confinement regime…

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.

Continue reading Barreto v McMullan

Details

AGLC: Barreto v McMullan [2013] WASC 26
Case: [2013] WASC 26
Decision Date

CaseChat Overview and Summary

Frederick Barreto, a prisoner at Acacia Prison, brought proceedings against Paul McMullan, Director of Acacia Prison, seeking relief in respect of a number of administrative decisions. These included a cell confinement regime, activation of a TOMS alert, denial of access to his employment location, suspension from his employment as a Peer Tutor, and activation of a loss of privileges process. The proceedings were heard on the basis of agreed facts. The court was required to determine whether the respondent's actions were lawful and whether they were open to judicial review. The court found that the respondent's actions were lawful and not open to judicial review except in respect of the cell confinement regime. The cell confinement regime was arguably unlawful and so the court would not dismiss the applicant's action in respect of it.

Orders