Kirby v The Prisoners Review Board
[2011] WASCA 149 (S)
•8 JULY 2011
KIRBY -v- THE PRISONERS REVIEW BOARD [2011] WASCA 149 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 149 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:139/2010 | 2 & 3 MARCH 2011 & ON THE PAPERS | |
| Coram: | MARTIN CJ McLURE P MURPHY JA | 8/07/11 | |
| 20/09/11 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi discharged | ||
| B | |||
| PDF Version |
| Parties: | LENNARD MARK KIRBY THE PRISONERS REVIEW BOARD THE ATTORNEY GENERAL OF WESTERN AUSTRALIA |
Catchwords: | Consequential orders Whether declaratory relief should be granted Costs |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KIRBY -v- THE PRISONERS REVIEW BOARD [2011] WASCA 149 (S) CORAM : MARTIN CJ
- McLURE P
MURPHY JA
DECISION : 20 SEPTEMBER 2011 FILE NO/S : CACV 139 of 2010 BETWEEN : LENNARD MARK KIRBY
- Applicant
AND
THE PRISONERS REVIEW BOARD
Respondent
THE ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervener
Catchwords:
Consequential orders - Whether declaratory relief should be granted - Costs
(Page 2)
Legislation:
Nil
Result:
Order nisi discharged
Category: B
Representation:
Counsel:
Applicant : Dr J T Schoombee
Respondent : No appearance
Intervener : Mr G T W Tannin SC & Mr H D Leith
Solicitors:
Applicant : Holborn Lenhoff Massey
Respondent : No appearance
Intervener : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 JUDGMENT OF THE COURT: On 8 July 2011, this court published its reasons for the determination of the issues which had been raised by the order nisi. In short, although the applicant established that the Prisoners Review Board (the Board) had breached its statutory obligations by failing to provide him with notice of and a statement of reasons for its decision to suspend his parole as soon as practicable, and by failing to provide him with a proper statement of the reasons for its decision to suspend his parole and for one aspect of its decision to cancel his parole, he otherwise failed to establish any of the other grounds upon which the order nisi had been granted.
2 At the time of publishing its reasons, the court directed that the parties exchange written submissions with respect to the orders appropriately made to give effect to its reasons, and to advise the court whether they wished a further hearing in respect of the issues raised by those submissions. The applicant and the intervener have complied with those directions and advised the court that they do not require a further hearing in respect of those issues. Consistently with its approach to the proceedings to date, the Board has not participated in this process.
The orders sought by the applicant
3 The applicant has filed a minute of proposed orders in the following terms:
1. It be declared that the obligation of the Respondent pursuant to section 107B of the Sentence Administration Act 2003 (WA) ('the Act') to provide to a prisoner reasons for any decision referred to in section 107(B)(1) made in respect of him or her, should state the conclusion(s) reached and, subject to section 114, set out the findings on material questions of fact and refer to the evidence or other material on which those findings based and, if relevant, the criteria against which the available information was judged.
2. It be declared that the Respondent failed to comply with the obligations imposed by section 107B of the Act in the following respects, namely by failing to provide the Applicant:
(a) with written notice of its decision on 25 May 2009 to suspend his parole as soon as practicable;
(b) with an adequate statement of reasons for that decision; and
(c) with an adequate statement of reasons for its decision on 17 December 2009 to cancel his parole.
(Page 4)
- 3. It be declared that nothing in the Act or any delegated legislation made thereunder, prevents the decision-makers listed in sections 115 or 115A of the Act from affording an oral hearing (whether by video link or otherwise) to a prisoner in respect of any act, matter or thing referred to in those sections.
4. It be declared that no policy or approach put forward by the Chairperson of [the] Respondent, prevents the Respondent from affording an oral hearing (whether by video link or otherwise) to a prisoner in respect of any act, matter or thing referred to in section 115 of the Act or prevents the decision-makers referred to in section 115A from doing so in respect of any act, matter or thing under that section.
5. The order nisi be otherwise discharged.
6. Subject to paragraph 7 below, the Respondent pay the Applicant's costs, including any costs in respect of interlocutory matters, to be taxed if not agreed.
7. The Intervener pay the Applicant's costs set out in Kirby v Prisoners Review Board [2010] WASC 239 at [23], to be taxed if not agreed.
8. Alternatively to 6 and 7, Intervener pays the Applicant's costs, including any cost in respect of interlocutory matters, to be taxed if not agreed.
4 The orders sought by the applicant correspond very closely to the orders sought in the matter of Seiffert v The Prisoners Review Board which was heard at the same time as these proceedings. In those proceedings we are publishing reasons for our conclusion that the orders sought by the applicant in that case should not be granted. Those reasons apply with equal force to the orders sought by the applicant in this case save in respect of proposed order 2.
5 In relation to proposed order 2, Mr Kirby's circumstances are a little different to Mr Seiffert's in that (at least at the time of hearing) the Board has not reviewed the question of his parole. However, as with Mr Seiffert, there is no suggestion on behalf of Mr Kirby that the declaratory relief sought would have any practical utility or consequences. The decision of the Board to suspend his parole was, of course, overtaken by the decision of the Board to cancel his parole, so that the grant of declaratory relief in respect of the suspension decision lacks any practical utility. In relation to the cancellation decision, it is not suggested that the declaration as to the inadequacy of the reasons provided by the Board should be accompanied by an order directing the Board to provide a
(Page 5)
- further statement of reasons, or that such a statement might be utilised by Mr Kirby to seek a review of the Board's decision. In those circumstances, the declaration sought is devoid of any practical utility and would have no foreseeable consequences or effect for the parties. Accordingly, proposed order 2 should not be made.
6 For those reasons, the orders appropriately made in this case are:
1. Order nisi discharged; and
2. No order as to costs.
0
2
1