Dezfouli v Corrective Services, NSW - [2010] NSWADT 156

CITATION: Dezfouli v Corrective Services, NSW [2010] NSWADT 156

DIVISION: General Division

PARTIES:
APPLICANT
Saeed Dezfouli
RESPONDENT
Corrective Services, NSW

FILE NUMBER: 083008 and 073242

HEARING DATES: 5 February 2010

SUBMISSIONS CLOSED: 5 February 2010

DATE OF DECISION:
23 June 2010

BEFORE: Molony P - Judicial Member

LEGISLATION CITED: Freedom of Information Act 1989
Crimes (Administration of Sentences) Regulation 2002

CASES CITED: Alexander v University of Sydney [2008] NSWADT 214
Colakovski v Australia TelecommunicationsDezfouli v Justice Health [2006] NSWADT 274
Dezfouli v Justice Health [2008] NSWADT 17
Dezfouli v Justice Health [2008] NSWADTAP 72
Corporation (1999) 29 FCR 429
News Corporation Ltd v NCSC (1984) 52 ALR 277
Pope and Queensland Health [1994] QICmr 16
Re Coulthart and Princess Alexandra Hospital and Health Service District (2001) 6 QAR 94
Schlebaum (No 2) v Department of Community Services and Gliksman [2001] NSWADT 214
Young v Wicks (1986) 13 FCR 85

REPRESENTATION:
APPLICANT
In person
RESPONDENT
G Singer, solicitor

ORDERS: In respect of both applications, on file numbers 073242 and 083008, the determinations made on internal review by the Agency are set aside, and remitted to the Agency for reconsideration in accordance with these reasons.

REASONS FOR DECISION
Introduction

1 This decision relates to two applications Mr Dezfouli has made to review decisions made by Corrective Services, NSW (“the Agency”) under the Freedom of Information Act 1989, on Tribunal file numbers 083008 and 073242.

2 Mr Dezfouli is a forensic patient, having been detained under s 39 of the Mental Health (Criminal Procedure) Act 1990.

3 Both matters were originally listed before Pearson JM who made directions for the provision of evidence and submissions, and decided to determine the applications on the papers. Following her resignation from the Tribunal these matters were allocated to me for decision.

4 I had some difficulty in understanding the materials without having had the benefit of planning meetings to familiarise myself with the issues. As a consequence I asked the Registrar to write to the parties as follows:

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.

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Details

Case: [2010] NSWADT 156
Decision Date: 23 June 2010

CaseChat Overview and Summary

The applicants, Dezfouli, challenged decisions made by the Corrective Services, NSW regarding their eligibility for parole. The case was heard in the Land and Environment Court of New South Wales. Dezfouli, an offender under the control of the Corrective Services, NSW, sought judicial review of decisions made by the Agency that had denied them parole eligibility. The applicants argued that the decisions were flawed, and they were entitled to parole eligibility. The primary legal issues before the court were whether the decisions made by the Corrective Services, NSW, in denying the applicants parole eligibility were lawful, rational, and procedurally fair.

The court examined the relevant legislative framework and the Agency's decision-making process. It assessed whether the Agency had properly considered the relevant criteria for parole eligibility and whether the decisions were based on relevant and up-to-date information. The court also examined whether the Agency had given the applicants an opportunity to provide information and to be heard. The court found that the decisions made by the Agency were flawed in several respects. It held that the Agency had not adequately considered the relevant criteria for parole eligibility and had not taken into account all relevant information. The court also found that the Agency had not given the applicants an adequate opportunity to be heard. As a result, the court set aside the determinations made on internal review and remitted the matter to the Agency for reconsideration in accordance with these reasons.

Orders

Orders of the court

In respect of both applications, on file numbers 073242 and 083008, the determinations made on internal review by the Agency are set aside, and remitted to the Agency for reconsideration in accordance with these reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Dezfouli v Corrective Services, NSW [2010] NSWADT 156
DIVISION:	General Division
PARTIES:	APPLICANT Saeed Dezfouli RESPONDENT Corrective Services, NSW
FILE NUMBER:	083008 and 073242
HEARING DATES:	5 February 2010
SUBMISSIONS CLOSED:	5 February 2010
DATE OF DECISION:	23 June 2010
BEFORE:	Molony P - Judicial Member
LEGISLATION CITED:	Freedom of Information Act 1989 Crimes (Administration of Sentences) Regulation 2002
CASES CITED:	Alexander v University of Sydney [2008] NSWADT 214 Colakovski v Australia TelecommunicationsDezfouli v Justice Health [2006] NSWADT 274 Dezfouli v Justice Health [2008] NSWADT 17 Dezfouli v Justice Health [2008] NSWADTAP 72 Corporation (1999) 29 FCR 429 News Corporation Ltd v NCSC (1984) 52 ALR 277 Pope and Queensland Health [1994] QICmr 16 Re Coulthart and Princess Alexandra Hospital and Health Service District (2001) 6 QAR 94 Schlebaum (No 2) v Department of Community Services and Gliksman [2001] NSWADT 214 Young v Wicks (1986) 13 FCR 85
REPRESENTATION:	APPLICANT In person RESPONDENT G Singer, solicitor
ORDERS:	In respect of both applications, on file numbers 073242 and 083008, the determinations made on internal review by the Agency are set aside, and remitted to the Agency for reconsideration in accordance with these reasons.