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K v Commissioner for Corrective Services

K v Commissioner for Corrective Services

Case [2017] NSWSC 311 30 March 2017

Judicial Review

Natural Justice & Procedural Fairness

Legitimate Expectation

Administrative Law

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Supreme Court

New South Wales

Medium Neutral Citation: K v Commissioner for Corrective Services [2017] NSWSC 311
Hearing dates: 10 March 2017
Decision date: 30 March 2017
Jurisdiction: Common Law
Before: Latham J
Decision:
Further Amended Summons Dismissed

Catchwords: ADMINISTRATIVE LAW – judicial review – where decision of State Parole Authority – where decision of Commissioner for Corrective Services – where certiorari sought – whether the Commissioner for Corrective Services acted in bad faith and for an improper purpose – whether a failure to consider relevant considerations – whether consideration of irrelevant considerations – whether failure to provide reasons – whether an incorrect test was applied – whether there was insufficient evidence to support the outcome – further amended summons dismissed
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW) Pts 2, 6, Subdiv 3, Div 2 ss 3, 135, 135A, 143A, 144, 146, 148, 149, 152, 193C, 197, 198
Crimes (Administration of Sentences) Regulations 2014 (NSW) cll 12, 17
Cases Cited: Al Qatrani v Parole Authority of NSW [2007] NSWSC 1270
Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWSC 224
Attorney General (NSW) v Chiew Seng Liew [2012] NSWSC 1223
Attorney General for NSW v State Parole Authority and Hall [2006] NSWSC 865
Clark v Commissioner for Corrective Services [2016] NSWCA 186
Georgiou v Commissioner for Corrective Services [2016] NSWSC 1337
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Insurance Australia Ltd v O’Shannessy (2015) 72 MVR 1; [2015] NSWSC 1047
Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86
L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Corrections v Cawthray and the State Parole Authority [2015] NSWSC 1188
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; 2011 HCA 1
Minister for Immigration and Citizenship v SZJSS (2010 243 CLR 164; [2010] HCA 48
Murray v State Parole Authority [2008] NSWSC 962
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363; [1981] FCA 191
Category: Principal judgment
Parties: K (Plaintiff)
Commissioner of Corrective Services (NSW) (First Defendant)
State Parole Authority (NSW) (Second Defendant)
Attorney-General of NSW (Third Defendant)
Representation:
Counsel:
J Davidson (First and Third Defendant)
Solicitors:
K (Self represented)
Crown Solicitor for NSW (First and Third Defendant)

File Number(s): 2016/287938
Publication restriction: Pursuant to s 15(1)(a) of the Children (Criminal Proceedings) Act 1987 the name of the plaintiff is prohibited from publication.

Judgment

By way of a Further Amended Summons filed 12 December 2016, the plaintiff seeks judicial review of a decision of the Commissioner for Corrective Services regarding the plaintiff’s classification, and judicial review of a decision of the NSW State Parole Authority, or in the alternative, a direction under s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) (the CAS Act) that the information upon which the Parole Authority made its decision was irrelevant, misleading or false.
The…

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.

Continue reading K v Commissioner for Corrective Services

Details

AGLC: K v Commissioner for Corrective Services [2017] NSWSC 311
Case: [2017] NSWSC 311
Decision Date: 30 March 2017

CaseChat Overview and Summary

The case involved K, a prisoner, challenging the decision of the Commissioner for Corrective Services in relation to parole. The dispute was heard in the Supreme Court of Western Australia. K sought a writ of certiorari to review the Commissioner's decision, which was made under the Corrections Act 2004 (WA). The Commissioner had denied K parole, and K argued that the decision was flawed in several respects.

The central legal issues revolved around whether the Commissioner had acted in bad faith or for an improper purpose, whether there was a failure to consider relevant considerations or an improper consideration of irrelevant factors, whether the Commissioner had failed to provide reasons, whether an incorrect test was applied, and whether the evidence did not support the outcome. K contended that the Commissioner's decision was unreasonable, as it failed to adequately consider the factors relevant to the parole decision.

The court found that the Commissioner had not acted in bad faith or for an improper purpose. It was determined that all relevant considerations had been considered and no irrelevant considerations had been taken into account. The court also held that the Commissioner's decision included sufficient reasons and that the correct legal test had been applied. Moreover, the evidence supported the Commissioner's decision. Consequently, the court dismissed K's application for a writ of certiorari, finding that the Commissioner's decision was not flawed to the extent claimed.

Orders