Cox v Nelson - [2006] SASC 30

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
COX v NELSON & ORS
Judgment of The Honourable Justice Perry
7 February 2006
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS
Application by plaintiff for judicial review of Parole Board decision made pursuant to s 67 of the Correctional Services Act 1962 refusing his application for release on parole - the plaintiff's behaviour while in prison constitutes a mandatory consideration under the statute - whether Parole Board failed to consider specific matters complained of - held that there was no evidence that the Parole Board failed to consider all relevant matters - whether failure to consider such matters would in any event constitute reviewable error - held that consideration of specific matters referred to in application not mandated by the statute - application dismissed.
Correctional Services Act 1982 s 60(7), s 63(3), s 67, referred to.
Re Minister for Immigration and Multicultural Affairs; ex parte Application S20/2002 (2003) 198 ALR 59; Craig v The State of South Australia (1995) 184 CLR 163; Minister for Immigration v Yusuf (2001) 206 CLR 323; Kianfar v Minister for Immigration (Unreported) BC2001 08536 [2001] FCA 1754; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363; affirmed on appeal (1982) 42 ALR 676; Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388, considered.

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - GENERALLY
Whether evidence existed for inference by Parole Board that the plaintiff had abused prescription medication - held that incorrect inference identified by plaintiff - Parole Board drew inference that a reservation existed regarding the plaintiff's drug use - that inference drawn in part on incorrect reading of psychologist's report - nevertheless inference open on the basis of a correct reading of the report - no reviewable error demonstrated - application dismissed.
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; Control of Government Action Creyke, McMillan and Reynolds, LexisNexis Butterworths (Australia) 2005; Halsbury's Laws of England 4th ed, 2001 Reissue Vol 1(1) Administrative Law 270 [122], considered.

COX v NELSON & ORS
[2006] SASC 30
Civil

PERRY J. On 27 May 2003, the plaintiff was sentenced in the District Court following his plea of guilty to two counts of armed robbery, and a further count of breach of a good behaviour bond. The total sentence which was imposed was a sentence of imprisonment for 5 years 10 months and 4 days, with a non-parole period of 1 year 10 months and 4 days.[1]
[1] In his affidavit filed in support of the application, the plaintiff states that the sentence was 9 years 5 months and 9 days with a non-parole period of 6 years. In fact, the actual sentence is as I have indicated. The difference is explained by reference to the fact that in fixing the sentence, the sentencing judge gave credit for over 4 years already served in custody. The Parole Board in its reasons makes the same error.
The non-parole period expired on 30 March 2005.
On about 17 November 2004, the plaintiff made application to the Parole Board of South Australia (“the Board”) and the Chief Executive Officer for the Department of Correctional Services for conditional release on parole.
The first to sixth defendants constituted the Board which considered his application. They refused the application on 26 April 2005. Reasons for the Board’s decision were published on 1 May 2005.
On 24 October 2005, the plaintiff issued an inter partes summons seeking an order for judicial review in the nature of certiorari quashing the decision of the defendants, and an order in the nature of mandamus compelling the defendants to consider the application for parole according to law.
The proceedings came on for hearing before me on 20 January 2006. Dr Christopher Bleby appeared for the plaintiff. Mr Michael Wait appeared for the defendants, who opposed the application.
Background
The applicant was born on 23 August 1968. He was aged 36 years at the time his application was considered by the Board.
The plaintiff’s parents separated when he was 4 years of age, and at the age of 10 he was made a ward of the State and placed in a Boys’ Home.
The plaintiff has a lengthy criminal record, commencing at the age of about 11 years.
His record of criminal offending extends into his adult years, and was described by the Board as a “significant record”. Between the age of 18 years and May 2005 when the Board’s reasons were published, a period of approximately 19 years, he had spent about 15 years in prison.
The offences giving rise to his present sentence were committed in breach of conditions of parole upon which he had been released.
As for the plaintiff’s behaviour while in prison serving the present sentence, during the course of their reasons, the Board made the following observations:
“Regrettably, Cox has an unfortunate record of behaviour whilst in prison. He has been involved in some 30 incidents during his period of 5+ years in prison. These incidents have included threats to other prisoners, threats to staff including a social worker, intimidation of an intellectually disabled fellow prisoner, abuse of staff including nurses, stealing and other dishonesty, and unauthorised possession of medication.
Clearly, Cox has adopted an unfortunate and antagonistic attitude towards staff and others in the prison environment. When things have not gone his own way, he has retaliated with negative and inappropriate behaviour.
…
The prisoner’s institutional behaviour is regrettable, and a little surprising given the submissions made to the sentencing judge on his behalf, to the effect that he was determined to rehabilitate himself. The sentencing judge noted that his rehabilitation would require extraordinary determination on your part. The judge advised Cox that you are well aware that if you fail to rehabilitate yourself then your future is very bleak.
In the course of considering his application, the Board interviewed the plaintiff on 22 March 2005. In their reasons they observe:
He readily conceded that he had a long history of inappropriate behaviour and misconduct whilst in prison. He asserted, however, that his behaviour had improved markedly from 2000.
To assist in considering the plaintiff’s application, the Board drew together a considerable body of material.
The manager of the Prisoner Assessment Unit furnished the Board with a report in the form of a minute dated 26 August 2004. This detailed the plaintiff’s attitudes and activities while in custody, including aspects of his attempts at education and employment, medication and his general conduct.
It appears that the plaintiff was transferred from Yatala Labour Prison to Port Augusta prison in January 2004, and from there to Mount Gambier Prison in May 2004.
It is noted in the Assessment Report that “Prior to his placement at Mount Gambier prison Cox’s behaviour was appalling”. The report noted, however, that he seemed much more settled in the Mount Gambier prison, where his behaviour has been much better.
As well as the Prisoner Assessment Unit report, the Board had before it submissions from the South Australian Police, a report from the Community Corrections officer, a letter written by the plaintiff on 14 January 2005, and a lengthy psychological report, of some 15 pages, prepared by the senior clinical psychologist with the Department of Correctional Services, Dr John Cooper and Amanda White, a trainee clinical forensic psychologist.
In the course of their report, they observed:
Mr Cox’s prognosis is considered poor on the basis of his institutionalisation, having spent large portions of both his youth and adulthood imprisoned, in addition to his lack of self-reflection and subsequent inability or unwillingness to change his behaviour. While his desire to change may be credible, his attitudes and behaviours have become so ingrained as a consequence of his extensive periods of incarceration that he will require intensive intervention to reshape them. To his credit, he had apparently abstained from illegal drug use for several years, and if he can continue to do that while in the community (where the pressures to re-offend are much greater), then his risk of re-offending will possibly be reduced. Mr Cox expressed the belief that he no longer had a substance use problem. His reduction in Methadone would appear to support this. However, case notes that support evidence to the contrary exist (16/03/2005: “trying to scam medication”; 01/12/2004: “He [Mr Cox] stated that he will not stop pushing to see the doctor until he gets the medication he wants. Discussion on the medication related to a drug which relaxes you” and; 28/10/2004: “Shaun is still on a mission in regards to issues with his medication”). In addition, there is his apparent intention to resume the Methadone program. Also of concern with respect to his risk of re-offending was the increase in severity of Mr Cox’s offending and his poor supervision history.
The Board’s reasons
The Board noted the plaintiff’s prior history of offending as to which they were of the view that he displayed a “simplistic attitude”. Apparently he had suggested to the Board that because he had broken his heroin addiction, he was no longer at risk of re-offending. The Board remarked:
He has little insight into the fact that his lengthy incarcerations means that he is institutionalised to a high degree, with few skills to cope in the community.
They went on to refer to comments made by Dr Raeside, a forensic psychiatrist, who had provided a pre-sentence report to the sentencing judge in December 2002. He, too, emphasised that the period the plaintiff had spent in custody had had an adverse effect on his social skills, and that he would have significant difficulties adapting to life in the community on release. He suggested various measures which might be taken ahead of his release to assist him, particularly with respect to drugs and alcohol, once he was released into the community.
I have already quoted a passage from the report in which the Board refers to the plaintiff’s “unfortunate record of behaviour” while in prison. They go on to point out that on 9 November 2004, the plaintiff was not approved for a lowered security rating, or for transfer to the Adelaide Pre-Release Centre for three reasons, which I quote:
§2 out of 3 core programs from his IDP still to be undertaken.
§Poor history of institutional behaviour.
§A history of escapes, one from APC.
Given that on the evidence before the Board, an intensive pre-release program would need to be adopted for the plaintiff, the fact that as recently as November 2004 he was not approved for transfer to the Pre-Release Centre, is significant.
As for the interview with the plaintiff conducted by the Board on 22 March 2005, the Board stated that it was concerned that during the course of the interview the plaintiff displayed:
§little if any insight into his prior offending and potential for lapse into drug abuse; and
§barely suppressed anger and resentment at his circumstances and the uncertainty of whether his application for parole would be approved.
It was after the interview that the Board resolved to obtain a psychological assessment. In their reasons, they refer to the report furnished by Amanda White and John Cooper. They noted that the psychologists had suggested:
§referral to a cognitive-based skills program;
§psychological intervention to help Cox develop insight into his offending, and to address the underlying issues related to substance abuse, noting such intervention may need to continue for many months;
§random urine analysis to closely monitor any abuse of drugs or alcohol;
§comprehensive through-care and the involvement in an employment skills training program as close as possible to his release date.
The Board expressed its conclusion in the following terms:
On 26 April 2005 the Board determined in light of all the available material that Cox was not at the present time suitable for release. He may re-apply in 12 months time, namely after 25 April 2006.
In the meantime Cox should adopt a more co-operative attitude towards prison management and staff in order to implement the recommendations made with respect to intervention and programs.
The statutory provisions
The Parole Board is constituted pursuant to s 55 of the Correctional Services Act 1982 (“the Act”). It comprises six members. The presiding member must be a judge or a retired judge of the District Court or a person who has extensive knowledge of and experience in criminology, penology or other related science. Another member must be a legally qualified medical practitioner, experienced in psychiatry, and another must be a person who has knowledge of or experience in “criminology, sociology or other related science”. Three other members of the Board are to be nominated by the Minister.
Pursuant to s 60(7), subject to the Act, the Board may conduct its proceedings “as it thinks fit”.
The Board has extensive powers to summons any person; to require any person to furnish a report or written information in relation to any aspect of a matter before the Board; and to require any person appearing before the Board to answer questions on oath (s 63).
Pursuant to s 63(3), the Board may interview a prisoner at any time.
Provisions as to the right to apply for release on parole and the role and function of the Board in determining such applications are set out in s 67 of the Act which is, relevantly, as follows:
67(1)     Where a prisoner is serving a sentence of life imprisonment or is liable to serve a total period of imprisonment of five years or more and a non-parole period has been fixed in respect of the sentence or sentences-
(a)the prisoner; or
(b)the Chief Executive Officer, or any employee of the Department authorised by the Chief Executive Officer,
may apply in the prescribed manner to the Board for the prisoner’s release on parole.
(2)     This section does not apply to a person who is serving a sentence of indeterminate duration.
(3)     An application cannot be made under subsection (1) more than six months before the expiration of the non-parole period fixed in respect of the prisoner’s sentence.
(4)     In determining an application under this section for the release of a prisoner on parole, the Board must have regard to the following matters:
(a)any relevant remarks made by the court in passing sentence; and
(b)the likelihood of the prisoner complying with the conditions of parole; and
(c)where the prisoner was imprisoned for an offence or offences involving violence, the circumstances and gravity of the offence, or offences, for which the prisoner was sentenced to imprisonment but only insofar as it may assist the Board to determine how the prisoner is likely to behave should the prisoner be released on parole; and
(d)the behaviour of the prisoner while in prison or on home detention; and
(e)the behaviour of the prisoner during any previous release on parole; and
(f)any reports tendered to the Board on the social background, the medical, psychological or psychiatric condition of the prisoner, or any other matter relating to the prisoner; and
(g)the probable circumstances of the prisoner after release from prison or home detention; and
(h)any other matters that the Board thinks are relevant.
(5)     The Board may, on an application under this section, order that a prisoner (not being a prisoner who is serving a sentence of life imprisonment) be released from prison on parole on a day specified in the order.
(6)     …..
(7)     The Governor may, on receiving the Board’s recommendations, order that the prisoner be released from prison on parole on a day and for a period specified in the order, being not less than three years and not more than ten years.
(8)     The Board or the Governor cannot specify a release date under this section that is earlier than the day on which the prisoner’s non-parole period expires.
(9)     The Board must, not more than 30 days after refusing an application by a prisoner for release on parole, notify the prisoner in writing of-
(a)its refusal; and
(b)the reasons for its refusal and of any matters that might assist the prisoner in making any further application for parole; and
(c)a date, not less than six months or more than one year after the date on which the Board refuses the application, before which the Board will not accept any further application by the prisoner for release on parole.
(10)   …..
The grounds for the application
The grounds upon which the applicant brings the application are set out in his supporting affidavit. They are:
18.The grounds upon which I seek these orders are as follows:
18.1 That the Parole Board, constituted by the first to sixth defendants, in evaluating my institutional behaviour and attitude in the course of making its decision, failed to have regard to the following relevant considerations:
18.1.1the good behaviour reported of me in the case review reports with respect to the months leading up to my application;
18.1.2the fact that I returned a negative drug test on 1 November 2004;
18.1.3that my ability to complete the Anger Management course was affected by the fact that it was not offered at Mount Gambier Prison, but that I had engaged in one-on-one anger management work;
18.1.4that I had completed the other programs;
18.1.5that my “history of escapes” predated the present sentence and I was acquitted of escaping from the Adelaide Pre-release Centre;
18.1.6that I had not been charged with breaching prison regulations at any time during the present sentence;
18.2 That there was no evidence for the conclusion by the Parole Board, apparently drawn from references at p14 of the psychological assessment (SJC4) to my case notes, that I had engaged in “abuse of prescription medication on 28/10/04, 1/12/04 and 16/3/04.
The arguments
There is no right of appeal. The application falls to be dealt with strictly by reference to the rules relating to the scope of judicial review of administrative decisions.
Judicial review does not extend to an examination of the merits of the decision in question. Rather, it relates to the legality of the process followed in reaching the decision.
As it was put by Kirby J in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002:[2]
[113]In an application for administrative review, the focus is upon the nature and source of the power exercised by the administrative decision-maker who made the impugned decision, as well as the source of the court’s power to review that decision and the process by which it was made. The nature and source of the official’s power will usually be deduced from the enactment pursuant to which he or she has acted. By contrast, the review can be conducted pursuant to the common law, or a general judicial review statute, or pursuant to the statute that confers the power on the official, or the Constitution (in proceedings for the constitutional writs). (Footnotes omitted)
[2] (2003) 198 ALR 59 at 84 [113].
The scope of certiorari is limited to certain specific grounds of review:
… it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud, and “error of law on the face of the record”.[3]
[3] Craig v The State of South Australia (1995) 184 CLR 163 per Brennan, Deane, Toohey, Gaudron and McHugh JJ at 175 (footnotes omitted).

Dr Bleby developed his argument for the plaintiff on the basis that the asserted grounds, if made out, established jurisdictional error.
In the case of the grounds in par 18.1 of his client’s affidavit, the jurisdictional error was said to be a failure to take into account relevant considerations, being considerations mandated by the legislation.
In the case of par 18.2, the jurisdictional error was said to flow from the fact that the Board reached a conclusion in circumstances where there was no evidence to support it.
I deal first with the grounds in par 18.1.
The matters identified in par 18.1.1 to 18.1.6 (inclusive), which I have set out above, are a collation of positive features drawn from the very considerable body of material before the Board. They were matters which Dr Bleby contended had not been taken into account by the Board, as they had not been specifically mentioned in their report. He argued that they were all matters which went to the behaviour of the plaintiff while in prison, consideration of which was mandated by s 67(4)(d) of the Act.
In support of his argument, Dr Bleby referred to a passage in the joint judgment of McHugh, Gummow and Hayne JJ in Minister for Immigration v Yusuf:[4]
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error. … What is important … 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. (emphasis added)
[4] (2001) 206 CLR 323 at 351.
Dr Bleby referred also to dictum of Carr J in Kianfar v Minister for Immigration:[5]
It can be quite clearly seen from the tribunal’s reasons that when it came to decide whether the Iranian authorities might impute a political opinion to [the applicant], it completely ignored the Mujehadin material from the British television station. In those circumstances in my view it ignored relevant material and misdirected itself in such a way as to have affected the exercise of its powers and thus fell into jurisdictional error. (emphasis added)
[5] (Unreported) BC2001 08536 [2001] FCA 1754 at [12].
But even if it could be shown that the Board failed to have regard to relevant considerations of the kind referred to in para 18.1 of the applicant’s affidavit, it does not follow that it fell into jurisdictional error. The Board would do so only if the matters to which it failed to have regard were matters consideration of which was an essential pre-condition to the existence of its authority to determine the application: see Craig v The State of South Australia:[6]
[J]urisdictional error will occur where an inferior court disregards … some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that a particular matter be taken into account … as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case.
[6] Supra, per Brennan, Deane, Toohey, Gaudron and McHugh JJ at 177.
There is no reason why this dictum should not be taken to apply to a tribunal as well as to a court.
Insofar as the considerations mandated by s 67(4) of the Act include the behaviour of the prisoner while in prison, they impose an obligation on the Board to consider that aspect of the matter. If reference is made to a particular item of evidence which might be thought to shed light on the behaviour of the plaintiff while in prison, whether or not any failure to have regard to that item of evidence could properly lead to the conclusion that the Board had fallen into jurisdictional error, must depend to some extent upon the importance of the item of evidence in the context of the decision-making process.
I have some hesitation in thinking that even if it could be demonstrated that the Board did not have regard to the matters referred to in support of this ground, the omission to do so would be so serious as to justify the conclusion that they had failed to take matters into account consideration of which was a “pre-condition” of the existence of their authority to determine the application.
The very concept of jurisdictional error implies that a court or tribunal does not provide a ground for impugning its decision if it makes an error within jurisdiction, as opposed to an error which may properly be characterised as jurisdictional in nature.
Dr Bleby submitted that the alleged omissions in this case were analogous to those identified in Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[7]
[7] (1986) 162 CLR 24.
In that case the Minister relied solely on a report prepared for a previous Minister by the Aboriginal Land Commissioner for information about the potential for detriment if a land claim were to be acceded to. The Minister failed to consider more recent information that showed substantial detriment due to the fact that the area of land under consideration contained a substantial uranium deposit.
The High Court held that such a failure constituted a failure to consider “possible detriment”, which was a mandatory consideration under the statute. Mason J observed that a decision must be made on the basis of the “most current material available to the decision maker”.[8]
[8] Ibid at 45.
This submission by Dr Bleby amounts to a submission that the matters referred to in par 18.1 of the plaintiff’s affidavit constitute the most current material available to the decision maker, and as such, a failure to consider those matters constitutes a failure to consider the behaviour of the prisoner while in prison contrary to s 67(4)(d) of the Act.
The flaw in the analogy to the Peko-Wallsend case is that in that case the material that was considered by the Minister was shown to be inconsistent with the newer material. In this case, however, the new material does not invalidate or undermine the material on which the Board relied. As such it cannot be said that the Board failed entirely to consider the prisoner’s behaviour, even if the Board’s failure to refer expressly to those matters should be taken to mean that they did not take them into account. As I point out below, it does not follow that they did not have them in mind.
It remains to be considered whether the failure to consider the individual matters referred to in the plaintiff’s affidavit at par 18.1, if such a failure can be shown, constitutes jurisdictional error”.
In my view, there is some substance in the argument advanced by Mr Wait that the matters referred to by the plaintiff in par 18.1 of his affidavit constitute a “wish list” of matters which, being favourable to the application, the plaintiff would have liked the Board to have been bound to take into account.
In support of that proposition, Mr Wait referred to the dictum of Deane J in Sean Investments Pty Ltd v Mackellar:[9]
… a party affected by a decision is [not] entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account.
[9] (1981) 38 ALR 363 at 374. Affirmed on appeal by the full Federal Court (1982) 42 ALR 676.
However, even if Dr Bleby was to be right in characterising the matters referred in ground 18.1 as matters consideration of which was a pre-condition to the proper exercise of the Board’s jurisdiction, his contention, in my view, fails at a more fundamental level.
As Mr Wait for the defendants contended, the fact that the various matters listed by the plaintiff in ground 18.1 were not expressly mentioned in the reasons of the Board does not establish that those matters were not considered by the Board.
In Turner v Minister for Immigration and Ethnic Affairs,[10] Toohey J said:
But the applicant does say that the Minister failed to take into account three relevant considerations, her previous good conduct, the fact that she was on parole and so subject to supervision and the fact that she was not the prime mover in the events that gave rise to her conviction. In many cases it will be clear whether or not the decision maker has taken a relevant consideration into account. That is not to say that the mere assertion by the decision make that he has done so will conclude the matter. It may be possible to demonstrate from a consideration of all the reasons leading to the decision, or indeed from the decision itself, that a consideration has not been taken into account in any real sense. Conversely the omission of an express reference to some consideration will not lead inevitably to a conclusion that it was not taken into account. An examination of the reasons for decision and of the decision itself may justify the inference that it was.
[10] (1981) 35 ALR 388 at 392.
As Mr Wait pointed out, all of the matters referred to by the plaintiff in this context were referred to in reports which were before the Board, or in one or two instances they were discussed during the interview with the plaintiff.
I understand that each member of the Board was given a copy of all of the material that was considered by the Board in an up-dated file distributed to them in advance of the meeting.
While it is true that there is no express reference to the fact that the plaintiff had not been charged with breaching prison regulations during the time he was serving the present sentence, the contrary proposition was not put to the Board.
I accept the defendants’ proposition that in all the circumstances, the mere fact that express reference is not made in the reasons to each of the items now listed by the plaintiff is insufficient to displace the inference that the Board took account of those matters.
I turn to consider the ground referred to in par 18.2 of the plaintiff’s affidavit. For convenience, I refer again to that paragraph:
18.2That there was no evidence for the conclusion by the Parole Board, apparently drawn from references at p14 of the psychological assessment … to my case notes, that I had engaged in “abuse of prescription medication on 28/10/04, 1/12/04 and 16/3/04.
The relevant passage in the Board’s reasons is:
Reservation about cessation of substance abuse was expressed on the basis of institutional case notes referring to abuse of prescription medication on 28/10/04, 1/12/04 and 16/03/04.
That comment was apparently based upon a passage at page 14 of the psychological report. The passage reads:
To his credit, he had apparently abstained from illegal drug use for several years, … Mr Cox expressed the belief that he no longer had a substance use problem. His reduction in Methadone would appear to support this. However, case notes that support evidence to the contrary exist (16/03/2005: “trying to scam medication”; 01/12/2004: “He [Mr Cox] stated that he will not stop pushing to see the doctor until he gets the medication he wants. Discussion on the medication related to a drug which relaxes you” and; 28/10/2004: “Shaun is still on a mission in regards to issues with his medication”). In addition, there is his apparent intention to resume the Methadone program.
It must be accepted that the quotation in that passage from the case notes relating to the three dates in question does not support the conclusion that there was an abuse by the plaintiff of prescription medication on the three dates mentioned.
They do, however, support the first part of the conclusion expressed by the Board, namely that on a fair reading of the psychologist’s report, they held a “reservation about cessation of substance abuse”.
The application of the “no evidence” rule in the context of administrative law is the subject of some debate.
There seems to be no doubt that the rule only applies where there is simply no evidence, and it does not apply where there is some evidence, however inadequate or unsatisfactory the evidence may be.
However, a question arises as to whether the rule applies so as to provide a basis for impugning an administrative decision, if there is no evidence as to any relevant fact, or whether the rule only applies where there is an “absence of any foundation or factual fulfilment of the conditions upon which in point of law the existence of the power depends”.[11]
[11] See R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 per Dixon CJ, Williams, Webb and Fullagar JJ at 119. See the discussion in Control of Government Action Creyke, McMillan and Reynolds, LexisNexis Butterworths (Australia) 2005 at 665 [12.2.7] and [12.2.8].
I do not think it necessary to resolve that difficult question in this case. I say that because it is the inference drawn by the Board which, on the face of it, was an element in their decision. That inference was that, having regard to the terms of the psychological report, there was a “reservation about cessation of substance abuse”. As I have said, that was a fair inference to draw from the terms of the relevant part of the report, and if that is so, I do not see that it is fatal to the soundness of the decision if the inference was drawn on a broader base than was justified on the evidence.
Discretionary considerations
On the hearing of any application for judicial review, even if grounds justifying the making of an order were to be made out, the court has a wide discretion whether to grant relief.[12] For the reasons which I have given, in my view, none of the grounds asserted by the plaintiff are made out.
[12] See Halsbury’s Laws of England, 4^th Ed, 2001 Reissue Vol 1(1) Administrative Law 270 [122].
Even if, contrary to the conclusion which I have reached, the plaintiff had made out all or any of the grounds which he advanced, a serious question arises as to whether, in its discretion, the relief should be granted.
As to this aspect of the matter, I raised with counsel the question as to what considerations would, in the circumstances of the case, be relevant to the exercise of the discretion, should it be necessary to address that question. In particular, I pointed out that the fact that the plaintiff may renew his application to the Board after 25 April 2006 may well be a relevant consideration.
When I raised the matter in arguendo with Dr Bleby, he submitted:
When you are talking about somebody who is incarcerated, every week is important … parole is highly valued. Whether a week, two weeks, a month, it is highly significant to the plaintiff.
I accept that in matters concerning the liberty of the subject, the court should not devalue the importance of even a short confinement in custody.
But the plaintiff is being held in lawful custody, unless and until he succeeds in securing an order for his release on parole. I have already referred to the fact that, for one reason or another, he has not yet been given the benefit of a full pre-release program. His ability to resume normal life in the community must be regarded as questionable at this stage, absent adequate preparation, and given the negative effects flowing from the institutionalised existence which he has led for many years.
The Board clearly considered his suitability for release very carefully, and are in the best position to re-assess the matter if he cares to apply again.
The concern expressed by Dr Bleby as to the significance of even a relatively short period of further incarceration was evidently not shared by those responsible for instituting the proceedings. They were commenced on the very last day but one, of the six month period referred to in SCR r 98.06, which provides:
Subject to any enactment, or order of the court granting an extension of time, a summons for judicial review must be issued within six months from the date when grounds for the review first arose, and shall in all cases be made as promptly as possible.
Conclusion
I would dismiss the application.
I so order.