Barreto v McMullan

Case [2013] WASC 26


BARRETO -v- McMULLAN [2013] WASC 26



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2013] WASC 26
Case No:CIV:3421/201110 SEPTEMBER 2012
Coram:McKECHNIE J31/01/13
41Judgment 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
A
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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…

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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.

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Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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