Dobbs v Parole Board Queensland - [2024] QSC 268

SUPREME COURT OF QUEENSLAND

CITATION:

Dobbs v Parole Board Queensland [2024] QSC 268

PARTIES:

GEOFFREY ROBERT DOBBS

(applicant)

v
PAROLE BOARD QUEENSLAND

(respondent)

FILE NO:

BS 10118 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application for judicial review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

28 October 2024

JUDGE:

Hindman J

ORDERS:

1. Pursuant to s. 30 of the Judicial Review Act 1991 (Qld) the respondent’s decisions under review of 13 May 2024 and 22 August 2024 are set aside.

2.   The respondent reconsider the applicant’s 2023 application for a parole order with appropriate expedition.

3.   Liberty to apply.

4.   There be no order as to costs, save that the respondent pay the applicant’s costs of filing the application for a statutory order of review fixed in the amount of $144.70.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – PROCEDURAL FAIRNESS – GENERALLY – where the applicant seeks a statutory order of review of the respondent’s decision to refuse his application for a parole order – where the applicant is serving a life sentence of imprisonment – where the applicant became eligible for parole on 27 March 2015 – where the applicant made an application for a parole order under the Corrective Services Act 2006 - where the applicant has had previous applications for a parole order refused - whether the respondent did not have or consider parts of applicant’s previous application – whether the respondent’s omission to consider parts of the applicant’s previous application amounts to a failure to take into account a relevant consideration or a material denial of procedural fairness

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10, cited
Harrod v Parole Board Queensland [2022] QSC 084, cited
Hickson v Parole Board Queensland [2024] QSC 133, cited

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) CLR 24; [1986] HCA 40, cited
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590, cited
Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26, cited
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, cited

South Australia v O’Shea (1987) 163 CLR 378; [1987] HCA 39, cited

Corrective Services Act 2006 (Qld) s. 193
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)

Judicial Review Act 1991 (Qld) ss. 20, 23, 30, 31

COUNSEL:

The applicant appeared on his own behalf
K McGree for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Parole Board Queensland Legal Services for the respondent

Introduction

The applicant makes a judicial review application under the Judicial Review Act 1991 (Qld) (JRA) in relation to decisions of the respondent (Parole Board / Board):
(a)on 13 May 2024 (made pursuant to s. 193(1)…

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: [2024] QSC 268
Decision Date: 8 November 2024

CaseChat Overview and Summary

In the case of Dobbs v Parole Board Queensland, the applicant, serving a life sentence of imprisonment, sought a statutory order of review of the respondent's decision to refuse his application for a parole order. The applicant had previously applied for parole on 29 August 2017 and had made an application for a parole order under the Corrective Services Act 2006 on 5 September 2023, requesting that his previous application be used as part of the new application with some amendments. The Parole Board Queensland considered the application on 13 November 2023 and, on 13 May 2024, made a decision to refuse the application and set a non-reapply period of three years. The applicant argued that the Board had failed to take into account relevant considerations and had materially denied procedural fairness by not considering parts of the 2017 application.

The court needed to decide whether the Board's failure to have or consider parts of the 2017 application amounted to a failure to take into account a relevant consideration or a material denial of procedural fairness. The court found that, although some parts of the 2017 application may have been considered by the Board, there was sufficient evidence to conclude that at least part of the 2017 application was not before and not considered by the Board when it considered the 2023 application. This was because the Board could not produce express evidence that it had before it and considered certain parts of the 2017 application when considering the 2023 application. The court also noted that the 'missing' material included substantial content, such as the 'missing' part identified at [24](a)(ii) above.

The court concluded that the Board's decisions were set aside, and the Board was ordered to reconsider the applicant's 2023 application for a parole order with appropriate expedition. The court also ordered that there be no order as to costs, except that the respondent pay the applicant's costs of filing the application for a statutory order of review fixed in the amount of $144.70.

Orders

Orders of the court

1. Pursuant to s. 30 of the Judicial Review Act 1991 (Qld) the respondent’s decisions under review of 13 May 2024 and 22 August 2024 are set aside.

2. The respondent reconsider the applicant’s 2023 application for a parole order with appropriate expedition.

3. Liberty to apply.

4. There be no order as to costs, save that the respondent pay the applicant’s costs of filing the application for a statutory order of review fixed in the amount of $144.70.

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

The applicant seeks a wide range of relief, if those grounds are made out, on pages 11 to 12 of his outline of submissions. Summary of relevant decision history The applicant applied for a parole order on 5 September 2023 (2023 Application). The 2023 Application comprised only 4 pages. In the 2023 Application the applicant specifically requested that the Board use his previous application dated 29 August 2017 (2017 Application) as part of the 2023 Application with some amendments.[2] His letter forming part of the 2023 Application commenced: My last parole application (submitted on 29 August 2017) was very comprehensive. Sentence management have advised me that you would still have access to it, and that I could use it as my new application – I just had to advise you of any changes or updates. I therefore request that you use that application and all the information in it as my new application with the following changes: …[3][2] Vassilakos affidavit, ex MV-10 at MV-AL (see vol 3, pp. 224-227 at 227).[3] Vassilakos affidavit, ex MV-10 at MV-AL (vol 3, p. 227). At other places within the 2023 Application,[4] the applicant made cross-references back to the 2017 Application. [4] Vassilakos affidavit, ex MV-10 at MV-AL (vol 3, pp. 224-227 at 225, 226). On 15 December 2023, the Board sent the applicant correspondence stating that the Board had considered his application (on 13 November 2023) and had formed a preliminary view that the application should be refused and that a non-reapply period would be decided. The correspondence invited the applicant to make further written submissions before the Board made its final decision. The applicant did so. The Board initially made decisions about a parole order and a non-reapply period in February 2024, but those decisions were not communicated to the applicant, and so are not decisions for the purposes of the JRA. The review application made in this proceeding does not relate to the February decisions, and no argument is advanced that what occurred in February 2024 precluded the Board from making the decisions that are the subject of this proceeding. Therefore, I do not need to consider that further. On 13 May 2024, the Board met and considered the applicant’s application for a parole order and made (1) the May Refusal Decision, and (2) a decision that the non-reapply period was 3 years.[5] The applicant was informed of those decisions by a letter dated 14 June 2024.[6] [5] Vassilakos affidavit, ex MV-10 at MV-D (vol 2, pp. 18-19).[6] Vassilakos affidavit, ex MV-10 at MV-I (vol 2, pp. 28-32); also at ex MV-3 (vol 1, pp. 29-33). There was then a fatal issue identified by the Board with respect to the May decision about the non-reapply period and the Board accepts that decision was not validly made by it (because the Board’s process of decision-making was legally unreasonable). Therefore the Board sought to remake that decision only. There is no complaint about that process by the applicant. This proceeding was commenced on 31 July 2024.

Ratio Decidendi

Legal Principle Established

The parties both generally proceeded on the basis of the August Statement of Reasons as representing the reasons for the relevant decisions, and I will do the same. Ground 1: May Refusal Decision - improper exercise of power: failure to take into account relevant consideration / material denial of procedural fairness The crux of this ground of review is that the applicant alleges that the Board failed to take in take into account his 2017 Application in full. In that respect, note [9] and [10] above concerning how the applicant incorporated the 2017 Application into the 2023 Application. Further, even in subsequent submissions made by the applicant in response to the Board’s preliminary view letter, the applicant continued to refer back to the 2017 Application.[14][14]Vassilakos affidavit, ex MV-10 at MV-L (vol 2, p. 64 – referring to updating Appendix J to the 2017 Application which was apparently not before the Board in its assessment of the 2023 Application; p. 66 referring to pp. 21 to 38 of the 2017 Application). Counsel for the Board candidly explained to the Court that the Board is unable to produce express evidence that the Board had before it and considered the following parts of the 2017 Application when considering the 2023 Application: (a)the part of the 2017 Application proper from page 21 which covered the following topics – (i)at pages 21 to 39: Relapse prevention & management plan (covering the following sub-topics: Risk assessments, Risk factors, My strategies for managing my risk factors, My support network, Motivations, Protective factors, Environmental factors); (ii)pages 39 to 44: Other reasons for the Board to consider, (b)appendix A: Form 176 – Home assessment request; (c)appendix B: Effects of my offending; (d)appendix C: Courses; (e)appendix J: Chapter 11 – My Good Life Plans; (f)appendix K: Chapter 12 – In the Community. Despite the state of the evidence as above, I was invited by the Board to infer that at least some of this ‘missing’ material must have been before and considered by the Board when it was considering the 2023 Application. That is because the 15 December 2023 preliminary view letter from the Board makes reference to: The parole board has reviewed your current application and, at your request, your previous application submitted 29 August 2017, including Relapse Prevention and Release Plans and New Future Planand the “Relapse Prevention and Release Plans and New Future Plan” would have been part of the ‘missing’ part of the 2017 Application identified at [24](a)(i) above. Whilst I would be prepared to make an inference that some of the ‘missing’ material was in fact not missing and was considered by the Board, I am not prepared to infer that all of the ‘missing’ material was before the Board. The ‘missing’ material does appear to include material of real substance (for example, the ‘missing’ part identified at [24](a)(ii) above). The weight of the evidence supports a finding, that I make, that at least part of the 2017 Application was in fact not before and not considered by the Board in 2023/2024.

CITATION:	Dobbs v Parole Board Queensland [2024] QSC 268
PARTIES:	GEOFFREY ROBERT DOBBS (applicant) v PAROLE BOARD QUEENSLAND (respondent)
FILE NO:	BS 10118 of 2024
DIVISION:	Trial Division
PROCEEDING:	Application for judicial review
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	8 November 2024
DELIVERED AT:	Brisbane
HEARING DATE:	28 October 2024
JUDGE:	Hindman J
ORDERS:	1. Pursuant to s. 30 of the *Judicial Review Act 1991* (Qld) the respondent’s decisions under review of 13 May 2024 and 22 August 2024 are set aside. 2. The respondent reconsider the applicant’s 2023 application for a parole order with appropriate expedition. 3. Liberty to apply. 4. There be no order as to costs, save that the respondent pay the applicant’s costs of filing the application for a statutory order of review fixed in the amount of $144.70.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – PROCEDURAL FAIRNESS – GENERALLY – where the applicant seeks a statutory order of review of the respondent’s decision to refuse his application for a parole order – where the applicant is serving a life sentence of imprisonment – where the applicant became eligible for parole on 27 March 2015 – where the applicant made an application for a parole order under the Corrective Services Act 2006 - where the applicant has had previous applications for a parole order refused - whether the respondent did not have or consider parts of applicant’s previous application – whether the respondent’s omission to consider parts of the applicant’s previous application amounts to a failure to take into account a relevant consideration or a material denial of procedural fairness Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10, cited Harrod v Parole Board Queensland [2022] QSC 084, cited Hickson v Parole Board Queensland [2024] QSC 133, cited LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) CLR 24; [1986] HCA 40, cited MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590, cited Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26, cited Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, cited South Australia v O’Shea (1987) 163 CLR 378; [1987] HCA 39, cited Corrective Services Act 2006 (Qld) s. 193 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) Judicial Review Act 1991 (Qld) ss. 20, 23, 30, 31
COUNSEL:	The applicant appeared on his own behalf K McGree for the respondent
SOLICITORS:	The applicant appeared on his own behalf Parole Board Queensland Legal Services for the respondent