Hart v Parole Board - [2017] SASC 184

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
HART v PAROLE BOARD
[2017] SASC 184
Judgment of The Honourable Justice Stanley
14 December 2017
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - EXTENSION OF TIME - PARTICULAR CASES
Application for permission to proceed with an action for judicial review pursuant to rule 200 of the Supreme Court Civil Rules 2006 (SA).
The action for judicial review seeks to review a decision of the Parole Board made on 7 February 2017 refusing the plaintiff parole and precluding her from applying again until after 17 January 2018. The action was commenced on 6 October 2017, meaning that it is two months out of time by virtue of SCR 200(1). Accordingly, pursuant to SCR 200(2), the action cannot proceed without the Court’s permission.
The defendant opposes the grant of permission firstly, because of a lack of utility and secondly, because it argues the application has no reasonable prospect of success.
Held: Application for permission and extension of time refused. Given the delay in this action, even if permission and an extension of time were granted, it is unlikely that a decision on the action for judicial review would be delivered before 17 January 2018. Even if the action succeeded, the Court could do no more than quash the decision of the Board of 7 February 2017 and order that it forthwith consider whether the plaintiff should be granted parole. Before that time, the plaintiff will have become eligible to apply again for parole. In the circumstances the action is no longer of any real practical significance (at [12] and [13]).
Supreme Court Civil Rules 2006 (SA) r 200, r 200C, referred to.
Spencer v Commonwealth of Australia (2010) 241 CLR 118; Ferdinands v District Court of SA [2010] SASC 265; La Roche v Cormack & Ors (1991) 33 FCR; Collins v The State of South Australia (unreported judgment of Olsson J) No. S 6960, 20 November 1998, considered.

HART v PAROLE BOARD
[2017] SASC 184
Civil: Application
STANLEY J.
Introduction

This is an application for permission to proceed with an action for judicial review pursuant to rule 200 of the Supreme Court Civil Rules 2006 (SA) (SCR). The action for judicial review seeks to review a decision of the Parole Board (the Board) made on 7 February 2017 refusing parole for the plaintiff and precluding her from applying again for parole until after 17 January 2018. The Board gave written reasons for its decision.
The action was commenced on 6 October 2017. SCR 200(1) requires that an action for judicial review be commenced as soon as practicable after the date when the grounds for the review arose and, in any event, within six months after that date. Consequently, the action is out of time. Pursuant to SCR 200(2), in these circumstances the action cannot proceed without the Court’s permission.
The Board opposes the grant of permission on two bases. First, that there is a lack of utility and, second, that the application has no reasonable prospect of success.
The application for judicial review
The action for judicial review seeks orders that the Board forthwith consider the plaintiff’s release from prison on parole and a declaration quashing the decision of the Board, together with ancillary relief. The plaintiff relies on the following grounds:
3.     Grounds of review
3.1    The decision was in breach of the rules of natural justice.
The Parole Board did not disclose to the plaintiff the information or materials it sought to rely upon for the purposes of the hearing of the plaintiff’s application for release on parole, including but not limited to:
3.1.1the plaintiff’s response to the decision dated 15 November 2015;
3.1.2that it believed Rohypnol is not prescribed for depression or anxiety;
3.1.3materials from the Sentencing Management Unit;
3.1.4the assessment of the Senior Psychologist from the Sentence Management Unit as referred to in the reasons dated 7 February 2017;
3.1.5the Parole Board’s considerations concerning the relationship between the plaintiff and Mr Chandra;
3.1.6the plaintiff’s risk of re-offending; and
3.1.7the 2015 application for permission to appeal against conviction.
3.2    The decision was unlawful.
3.3    The decision was unreasonable:
3.3.1the refusal of the application for parole was unreasonable;
3.3.2the Parole Board had granted Mr Chandra parole notwithstanding various factors including the relationship between the plaintiff and Mr Chandra;
3.3.3conditions of parole that could be imposed in respect of Mr Chandra;
3.3.4the duration of the sentence and the time already served; and
3.3.5the structure of the sentence imposed by the District Court.
3.4    The decision was an abuse of power and not authorised.
3.5    The decision was not supported by any or sufficient evidence:
3.5.1that the plaintiff was unsuitable for release on parole;
3.5.2about the plaintiff’s work with the social worker;
3.5.3about the plaintiff’s work with the psychologist;
3.5.4about the nature and extent of victim awareness;
3.5.5about what was required for greater victim awareness or what further work was required to be done in respect thereof;
3.5.6about the plaintiff’s relationship with Mr Chandra; and
3.5.7the plaintiff’s risk of re-offending.
3.6    The decision was an improper exercise of power as it involved irrelevant considerations and failure to take into account relevant considerations:
3.6.1the nature and purpose of parole;
3.6.2the extent of the sentence served;
3.6.3that rehabilitation was available on parole;
3.6.4that the plaintiff was determined to preserve the relationship with Mr Chandra at all costs;
3.6.5the parole conditions for Mr Chandra;
3.6.6the matters referred to above in respect of the decision;
3.6.7the offending in Victoria;
3.6.8the offending by Mr Chandra in respect of attempting to pervert the course of justice;
3.6.9the application for leave to appeal convictions to the Court of Appeal in 2015 and the grounds of the appeal;
3.6.10that the plaintiff’s relationship with Mr Chandra may well cause her to re-offend if released in parole;
3.6.11the benefits of release on parole;
3.6.12the plaintiff’s other issues that need to be addressed in terms of her own background and unfortunate experiences; and
3.6.13the plaintiff’s view about Mr Chandra’s offending.
In relation to sub-ground 3.6, the plaintiff identifies sub‑grounds 3.6.4, 3.6.5, 3.6.7, 3.6.8, 3.6.9, 3.6.10, 3.6.12 and 3.6.13 as being irrelevant considerations to which the Board had regard. The plaintiff submits that the remaining matters in sub-ground 3.6 are relevant considerations which the Board failed to take into account.
Grant of permission
An application for permission is to be made by interlocutory application seeking an extension of time in which to commence the action and permission to proceed.[1] On the hearing of that interlocutory application, the Court may grant or refuse the application for an extension of time in which to commence the action and permission to proceed, or may order that either or both be determined at trial.[2]
[1] SCR 200(3).
[2] SCR 200(4).
The factors to be weighed by the Court in considering an extension are the length of the delay, the reasons for the delay, the prospects of success and any prejudice suffered by the respondent.[3]
[3] Ferdinands v District Court of SA [2010] SASC 265.
Pursuant to SCR 200C(2), where the plaintiff applies for permission under SCR 200(2), the Court must dismiss or strike out the action or statement of grounds unless satisfied there is a reasonable basis for an order for judicial review. Whether there is a reasonable basis for an order for judicial review can be decided on a similar basis to an application for summary dismissal pursuant to SCR 232, save and except that, unlike an application for summary dismissal, the onus is on the plaintiff, pursuant to SCR 200C(2), to satisfy the Court that there is a reasonable basis for an order for judicial review. In Spencer v Commonwealth of Australia,[4] the High Court considered a provision not materially different from SCR 232.[5] The plurality emphasised that analysis of such provisions should concentrate on the express words of the provision. In this case, the rule provides a test of reasonableness in determining the prospects of success of a plaintiff’s action for judicial review.
[4] [2010] HCA 28, (2010) 241 CLR 118.
[5] See the discussion of the comparison between the relevant provisions in Proude v Visic (No. 4) (2013) 117 SASR 560 at 565 and in Collins v Djunaedi [2016] SASCFC 48 at [14]-[17].
Extension of time
The action has been brought two months out of time. There is evidence before the Court which seeks to explain the delay. It appears that the plaintiff had some dealings with a Mr Glanville of Prison Fellowship about the decision of the Board to refuse parole. The nature and timing of that contact is not clear from the affidavit evidence. Mr Glanville contacted Mr George Mancini about the plaintiff in April 2017. Mr Mancini suggested to Mr Glanville that he prepare a draft of court documents and that a solicitor would need to be instructed. It appears that papers were drafted by Mr Glanville and delivered to a solicitor, Ms Lennon, some time in mid to late June 2017. Ms Lennon had been instructed to act at about that time. Mr Mancini was retained as counsel to settle the papers. He received the papers on or soon after 30 June 2017. He gave consideration to the draft documents, the Board’s letters to the plaintiff, the reasons for judgment of the Court of Criminal Appeal on appeals brought by the plaintiff and undertook research into the matter. Mr Mancini deposes to being conscious of the six-month time limit and had been planning to have the documents filed by 7 August 2017. However, he overlooked doing so in the circumstances where had a number of other personal and professional exigencies. He settled the papers and returned them to Ms Lennon in late August 2017. Ms Lennon was ill during September and unable to work as a result. She attended the Court Registry around 22 September 2017. The Registry refused to accept the plaintiff’s affidavit, as it had not been properly sworn. She arranged for Mr Glanville to attend at the Women’s Prison to have the plaintiff swear the affidavit. Some time during the week commencing 25 September 2017, Mr Glanville left the affidavit at Ms Lennon’s office when she was not present. When she viewed the papers he had left at her office, she realised he had not provided the original affidavit but only copies. Ms Lennon deposes to advice received from the Registry on 3 October 2017 that the plaintiff’s application for a fee waiver had been granted by the Deputy Registrar. She says that, having received this advice, she filed the documents on 5 October 2017, although I note that the documents are stamped as being filed on 6 October 2017.
The Board accepts that there is no evidence of any default on the part of the plaintiff in failing to institute proceedings within time. The Board does not submit that it has been prejudiced by the failure to commence the action within time. In such circumstances the Board would not ordinarily oppose the grant of permission and an extension of time, however, in this case, it submits there is no reasonable basis for an order for judicial review.
A reasonable basis for an order for judicial review?
The grant of judicial review is a discretionary remedy. In La Roche v Cormack & Ors,[6] the Federal Court held that on an application for judicial review, where the passage of time has, in the circumstances of the case, deprived the issues in controversy of any real practical significance, the court has power not to proceed with the application. In Collins v The State of South Australia & Ors,[7] Olsson J applied the reasons in La Roche and held that where, by reason of delay, the resolution of the issue raised by an action for judicial review is academic or no longer of any real practical significance, an extension of time will not normally be granted.
[6] (1991) 33 FCR 414.
[7] Unreported judgment of Olsson J, No. S 6960 delivered 20 November 1998.
Given the delay in this action, even if permission and an extension of time were granted, it is unlikely that a decision on the action for judicial review would be delivered before 17 January 2018. Even if the action succeeded, the Court could do no more than quash the decision of the Board of 7 February 2017 and order that the Board forthwith consider whether the plaintiff should be granted parole. Before that time, the plaintiff will have become eligible to apply again for parole. In any event, I note that, pursuant to s 67(10) of the Correctional Services Act 1982 (SA), the plaintiff could apply for parole prior to 17 January 2018. In these circumstances, I am satisfied that the action is no longer of any real practical significance. That conclusion is not to deny the proposition that some of the plaintiff’s grounds may be reasonably arguable but, given the delay, the plaintiff will shortly have available to her the remedy of bringing a fresh application for parole. In my view, she should pursue that remedy rather than occupying the time and resources of the Court whose orders could not provide her with any better or more effective remedy than could be obtained by making a further application for parole.
Accordingly, I accept the Board’s submission that the action now lacks utility and refuse permission and an extension of time.
Conclusion
I would not grant an extension of time. I would refuse permission, pursuant to SCR 200(2).