Littlefair v The Prisoners Review Board - [2011] WASCA 150

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LITTLEFAIR -v- THE PRISONERS REVIEW BOARD [2011] WASCA 150

CORAM: MARTIN CJ
McLURE P
MURPHY JA

HEARD: 2 & 3 MARCH 2011

DELIVERED : 8 JULY 2011

FILE NO/S: CACV 137 of 2010

BETWEEN: MICHAEL LANCE LITTLEFAIR
Applicant
AND
THE PRISONERS REVIEW BOARD
Respondent
THE ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervener

Catchwords:

Administrative law - Judicial review of decisions by the Prisoners Review Board to suspend and then to cancel the applicant's parole order

Turns on own facts

Legislation:

Criminal Code (WA)
Sentence Administration Act 2003 (WA), s 107B

Result:

Reasons published

Category: A

Representation:

Counsel:

Applicant:     Dr J T Schoombee
Respondent:     No appearance
Intervener:     Mr G T W Tannin SC & Mr H G Leith

Solicitors:

Applicant:     Amidzic Lawyers
Respondent:     No appearance
Intervener:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Hiron v The State of Western Australia [2010] WASC 236
King v Piper [2004] WASCA 218; (2004) 147 A Crim R 394
Kirby v The Prisoners Review Board [2011] WASCA 149
Seiffert v The Prisoners Review Board [2011] WASCA 148

MARTIN CJ:

Summary

The applicant, Michael Lance Littlefair, seeks orders quashing a decision of the Prisoners Review Board (the Board) made on 4 June 2009 suspending a parole order which had taken effect on 18 May 2008, and further seeks orders quashing a decision of the Board made on 17 December 2009 cancelling that parole order together with associated relief. Appropriately, the Board has filed a submitting appearance and taken no part in these proceedings other than to provide relevant documents to the court, and some evidence. The Attorney General of Western Australia has intervened to act as contradictor and to provide the court with submissions on issues of public importance.
For the reasons which follow, although Mr Littlefair has established that the Board breached its statutory obligations by: (a) failing to provide him with notice of, and a statement of reasons for, its decision to suspend his parole as soon as practicable; (b) failing to provide him with a proper statement of the reasons for one aspect of its decision to cancel his parole; and (c) adopting an inflexible policy with respect to the provision of an opportunity for a prisoner to appear before the Board, Mr Littlefair has failed to establish that the decisions of the Board to suspend and later to cancel his parole were invalid, or that either decision should be set aside by the court. The court should provide an opportunity to Mr Littlefair and the intervenor to present submissions as to the precise terms of the relief appropriately granted to give effect to these conclusions.

The facts

The facts relevant to the relief sought by Mr Littlefair were not in contention. They were established by affidavits and documentary evidence tendered without objection.
Mr Littlefair is 46 years of age. He has an extensive criminal record involving mostly minor offences until his conviction on 12 counts of robbery in 2003. Those offences were all committed between 5 ‑ 15 January 2003. He was arrested on those charges on 17 January 2003. After his pleas of guilty to all charges, on 27 June 2003 he was sentenced to a total term of imprisonment of 11 years, backdated to the time of his arrest on 17 January 2003. Orders were made making him eligible for parole.
Accordingly, after the remission of one‑third of the sentences imposed, under the sentencing regime then applicable (reducing the term of imprisonment to a term of 7 years and 4 months), Mr Littlefair was eligible for parole two years earlier than the expiry of that term - namely, after serving 5 years and 4 months, calculated from 17 January 2003. The earliest date upon which he was eligible for release on parole was therefore 17 May 2008. The Board made a parole order to take effect from 18 May 2008. The term of Mr Littlefair's parole was a period of two years, with the result that if he had successfully completed his term of parole, on 18 May 2010 he would have been discharged from the sentences to which I have referred.
One year after he had been released on parole, on 18 May 2009, Mr Littlefair attended residential premises situated in Jandakot occupied by a Mr Zuideveld. Mr Zuideveld and others, including Mr Lennard Mark Kirby, were present. Two brothers, Steven and Khai Vo, attended the premises. There was then an altercation in the course of which Mr Kirby was shot three times. Mr Littlefair was involved in a scuffle with one of the Vo brothers. Parts of the altercation were recorded by a closed circuit television camera (CCTV). Another person present, Mr Scilio, was also shot. Mr Zuideveld returned fire as each of Mr Vo and their companions left the premises.
As a result of these events, on a date not clearly established by the evidence but most probably in early June 2009, Mr Littlefair was charged with two counts of committing an unlawful act with intent to harm by endangering life, health or safety, contrary to s 304 of the Criminal Code (WA).
On 4 June 2009 the Board resolved to suspend Mr Littlefair's parole. A letter bearing that date was prepared addressed to Mr Littlefair at 'Unknown Facility Unknown Address', and bearing a notation at the foot of the page 'cc: Superintendent/General Manager, Unknown Facility SIU'. The letter purported to advise Mr Littlefair that:
The Prisoners Review Board today considered your request to review its previous decision and made the following decision based upon the reports and information presented to it:
•Suspend order - Warrant issued
For the following reason(s):
•(a) Alleged reoffending in a serious manner (GAB 28).
Mr Littlefair was taken into custody on the same date - namely, 4 June 2009. The evidence does not establish whether he was taken into custody pursuant to the warrant issued by the Board, or as a result of his arrest on the charges brought under s 304 of the Criminal Code, although nothing turns on it.
It seems clear that no written notice was given to Mr Littlefair as soon as practical following the Board's decision to suspend his parole, notwithstanding the obligations imposed on the Board by s 107B of the Sentence Administration Act 2003 (WA) (the Act), and further notwithstanding that Mr Littlefair was in custody, and his whereabouts therefore easily ascertained.
On 25 June 2009 solicitors acting on behalf of Mr Littlefair wrote to the Board requesting a copy of the notice of the decision and information concerning the grounds upon which the Board had suspended his parole.
On 6 July 2009, while he was at Casuarina Prison, Mr Littlefair was provided with a copy of the letter prepared by the Board dated 4 June 2009. The letter was not signed, and as I have noted, erroneously referred to a request to review a previous decision of the Board. Not surprisingly, Mr Littlefair was confused by the terms of the letter. He provided a facsimile copy of it to his solicitors. The following day, his solicitors contacted the representative of the Board by telephone and were advised that 'the template for the document had been improperly accessed' and that the letter should not have been sent to Mr Littlefair in the form in which he received it. The solicitors understood that a revised notice of decision would be sent to Mr Littlefair.
However, that did not occur, and on 22 July 2009 solicitors acting on Mr Littlefair's behalf wrote again to the Board requesting a copy of the notice of decision. At about 8.00 am on 28 July 2009 the solicitor was advised by an officer of the Board that a copy of the notice of decision had been provided to Mr Littlefair at Casuarina Prison. When the solicitor advised that officer that Mr Littlefair had not received the notice, she was advised that a copy of the notice would be faxed to her office forthwith. However, that did not occur, and on 28 July 2009 the solicitor wrote again to the Board requesting a copy of the notice of decision. By facsimile of that date, the Board provided to Mr Littlefair's solicitor another version of the letter dated 4 June 2009. This letter was signed, and had a strike through the words 'considered your request to review its previous decision and'.
Following receipt of that letter, on 29 July 2009 the solicitor acting on behalf of Mr Littlefair wrote again to the Board indicating Mr Littlefair's desire to seek review of the decision to suspend his parole, and asserting that without knowing the Board's reasons for suspending parole, it was difficult to assess what material the Board might find helpful in reconsidering its decision. Accordingly, the solicitor requested advice as to the reports and information before the Board at the time it made its decision to suspend parole, and of the reasoning process that had been adopted in determining that suspension was appropriate.
On 5 August 2009 the registrar of the Board responded to that letter confirming that the Board's decision to suspend parole was because 'of alleged reoffending in a serious manner'. The letter went on to advise the solicitor of the effect of s 115A of the Act, relating to review of the Board's decisions. The letter also advised of other information which the Board was gathering in relation to Mr Littlefair.
Mr Littlefair did not exercise his right to seek a review of the Board's decision to suspend his parole until 23 November 2009. In the meantime, he had been committed to the District Court in relation to the charges that had been brought against him under s 304 of the Criminal Code. On 23 November 2009, solicitors acting on Mr Littlefair's behalf wrote to the Board requesting review of the decision to suspend his parole. The letter relied primarily upon a decision which had been made by the office of the Director of Public Prosecutions to discontinue the charges which had been brought against Mr Littlefair under s 304 of the Criminal Code, and instead to bring a single charge of common assault. The letter also made various representations concerning Mr Littlefair's involvement in the incident at Jandakot on 18 May 2009, and the conclusions properly drawn from the video record of part of that incident. The letter also advanced other reasons why Mr Littlefair's parole should be restored, including his positive response to parole and good behaviour prior to its suspension.
By letter dated 3 December 2009 the Chairperson of the Board advised Mr Littlefair's solicitors that because the charges upon which the Board had relied at the time of its decision to suspend Mr Littlefair's parole had been downgraded, it was her view that Mr Littlefair's case should be referred to the Board under s 115A(8)(c) of the Act. The letter advised:
It will be a matter for the Board to determine whether, based on all the information available to it, including the material identified in your correspondence with respect to Mr Littlefair, it is appropriate to re‑release your client on parole.
Rest assured that the Board will be provided with copies of your correspondence (GAB 48).
On 17 December 2009 the Board considered Mr Littlefair's case. It decided to cancel his parole. No notice had been given to Mr Littlefair or his solicitors to the effect that the Board would consider the cancellation of his parole. A letter to Mr Littlefair dated 17 December 2009 was prepared and signed by the registrar of the Board. The letter advised Mr Littlefair that his parole had been cancelled for reasons expressed in the following terms:
1.Association with known offenders increases your risk of reoffending a risk to the personal safety of the community.
2.The Board has viewed video of the incident on 18 May 2009 which demonstrates your instigation of violence (GAB 49).
The letter went on to advise Mr Littlefair of his right to seek review of the Board's decision under s 115A of the Act, and of the grounds upon which review could be sought.
On the same day the Board prepared and executed a document entitled 'Order Suspending or Cancelling an Early Release Order' which recorded the cancellation of Mr Littlefair's parole order. No reference is made in that document to the letter of 17 December 2009, or to any reasons for the decision to cancel Mr Littlefair's parole.
The solicitor acting on behalf of Mr Littlefair wrote again to the Board on 19 December 2009. In that letter she confirmed that the charge of common assault that had been brought against Mr Littlefair had been dismissed on 18 December 2009, with the result that there were no outstanding charges pending against him.
In the letter, particulars of the reasons for the Board's decision to cancel Mr Littlefair's parole were sought in the following terms:
What particular relationships and associations are said to give rise to an increased risk of reoffending? With whom? What nexus is said to exist between the relevant relationships and social associations and the possible commission of offences by the prisoner? (GAB 52)
The letter concluded by advising that Mr Littlefair sought review of the decision to cancel his parole, but requested the provision of particulars in order that further instructions could be obtained, and relevant submissions formulated for the Board's consideration.
Mr Littlefair also wrote to the Board, by a letter dated 20 December 2009. The letter made representations as to his involvement in the incident which had taken place at Jandakot on 18 May 2009.
The solicitor acting on behalf of Mr Littlefair wrote again to the Board by letter dated 22 December 2009. This letter was written on behalf of both Mr Kirby and Mr Littlefair. In this letter revised particulars of the decision to cancel parole were sought. In the case of Mr Littlefair, the relevant particulars sought were:
1.What are the 'reports' and 'information' that the Board considered before making the decision to cancel the parole order in each case, that is, apart from the submissions forwarded to the Board by Mr Massey on behalf of Mr Kirby and myself on behalf of Mr Littlefair?
2.Who are the known offenders referred to in the Board's reasons?
3.In respect of each such person what is the nature of the relevant 'relationship' understood to be?
4.In respect of each such person, on what basis is it said that the 'relationship' increases the parolees risk of reoffending or risk to community safety?
...
8.Is the Board's view that Mr Littlefair 'instigated violence' during the incident of 18 May 2009 based solely on the fisticuffs and grappling Mr Littlefair is seen to engage in with Asian male #2 in the video footage? If not, what other conduct is said to comprise the relevant 'violence'?
9.It was submitted to the Board on behalf of each of Mr Kirby and Mr Littlefair that their respective physical contact with the said Asian males was prompted by an apprehension that one or both of the Asian males was armed with a 'gun' which arose from the circumstances and what was said just prior to the altercations taking place. Other than the submissions made on behalf of the parolees, what other information (if any) did the Board consider in relation to this issue? Did the Board regard this factor as relevant and material? If not, why not? (GAB 59)
The letter concluded by reiterating that each of Mr Kirby and Mr Littlefair intended to seek review of the decision to cancel their respective parole orders, but requested the provision of particulars in order that they might be 'in a position to make relevant and meaningful submissions in support of their review applications'.
By email dated 23 December 2009, the registrar of the Board advised the solicitor acting on behalf of Mr Littlefair that the Board's operations had closed for the Christmas/New Year period, and that Board meetings would not recommence until 4 January 2010. The letter further advised that requests for a review could only be determined by a Chairperson or Deputy Chairperson, and would therefore have to await the return of those persons from holidays.
On 4 January 2010 the solicitor acting on behalf of Mr Littlefair wrote again to the Board, on his behalf and also on behalf of Mr Kirby. The letter proposed additional conditions which the Board might impose upon each person in the event that the Board decided to reinstate parole.
The solicitor acting on behalf of Mr Littlefair received no response to any of her requests for particulars or further information. During February 2010 she received an undated letter from the Chairperson of the Board advising that the matters which had been raised in support of the application for review did not fall within the grounds specified by s 115A(6) of the Act, with the result that the request for review had been denied. The letter further advised that pursuant to s 115A(4) of the Act, that decision could not be reviewed.
On 3 June 2010 Mr Littlefair was convicted by McKechnie J of contempt of court. Although there is little or no evidence on this aspect of Mr Littlefair's case before the court, from the submissions that have been provided, and from the manner in which the case has been conducted, it seems clear that Mr Littlefair was convicted of contempt in similar circumstances as those which gave rise to Mr Kirby's conviction for contempt, and which I have set out in my reasons in Kirby v The Prisoners Review Board [2011] WASCA 149 (CACV 139 of 2010), which was heard simultaneously with this matter.
On 2 September 2010 Mr Littlefair was sentenced to 18 months' imprisonment for contempt of court. Because the Act does not apply to sentences imposed for contempt of court, there is no question of parole eligibility in relation to that term of imprisonment. Accordingly, whatever the outcome of these proceedings, Mr Littlefair must be imprisoned under that sentence until 2 March 2012, unless the appeal which he has brought from his conviction is successful.
On behalf of Mr Littlefair it is said that the cancellation of his parole has caused him to forfeit his remission of one‑third of his sentence to which he was entitled under the previous sentencing regime: see s 69(1) of the Act; King v Piper [2004] WASCA 218; (2004) 147 A Crim R 394; and Hiron v The State of Western Australia [2010] WASC 236. No contrary submission was put by the intervenor. It is further put on behalf of Mr Littlefair that if the order of the Board cancelling his parole was invalid, or is quashed by the court, Mr Littlefair's entitlement to parole will be reinstated, as would his entitlement to the remission of one‑third of his sentence. It is also submitted that because the term of his parole order has now expired, he would be taken to have completed the service of the sentences imposed upon him in 2003, with the result that he would be released from custody upon the expiry of the sentence imposed upon him for contempt of court. Because of my conclusion that the decision of the Board to cancel Mr Littlefair's parole was valid, and that Mr Littlefair is not entitled to orders quashing that decision, it is unnecessary to analyse or determine the correctness of those assertions. However, it is appropriate to note that they do not face the same apparently insuperable obstacle as the similar submissions put on behalf of Mr Kirby faced, as the offence of contempt of court was not committed by Mr Littlefair until after the term of his parole period would have expired, had his parole not been cancelled. Of course this is not to say that there are not other substantial obstacles in the path of the success of these submissions.
The submissions which have been put in this respect on behalf of Mr Littlefair explain why the focus of the relief which he seeks is directed towards orders to the effect that the Board's decision to cancel his parole was invalid, or quashing that decision, rather than upon other forms of relief that might arise from the circumstances which I have set out.

The grounds

The grounds upon which relief was sought by Mr Littlefair are contained in the order nisi. They are set out in 16 numbered paragraphs, some containing a number of subparagraphs. For some reason in the submissions filed in support of the grounds, they have been reordered and renumbered so as to comprise 19 distinct grounds. The arguments advanced in support of those grounds correspond closely with the arguments which were advanced in support of Mr Kirby's case which was heard simultaneously with these, and correspond also with the arguments which were advanced in another matter heard simultaneously with this matter - namely, Seiffert v The Prisoners Review Board [2011] WASCA 148 (CACV 138 of 2010). As in the reasons which I am publishing in those cases, it is in my view more appropriate to group and address the grounds by reference to the subjects which they address, rather than by either of the numbering systems chosen in the order nisi or the submissions filed on behalf of Mr Littlefair. The subjects addressed by the grounds are the same as in the other two cases to which I have referred, namely:
(1)procedural fairness;
(2)the Board's policy of not allowing prisoners to appear before it;
(3)the alleged failure of the Board to give written notice of its decision to suspend parole as soon as practicable after that decision was made, and the alleged failure of the Board to give adequate reasons for its decisions to suspend parole and to cancel parole;
(4)taking their relevant considerations into account, failing to take relevant considerations into account, and unreasonableness; and
(5)relief.
These reasons will be published at the same time as my reasons in each of the Kirby and Seiffert cases. Because the arguments advanced on behalf of Mr Littlefair correspond in large measure with the arguments advanced in those two cases, it is unnecessary to repeat the reasoning which I have adopted in relation to those arguments in these reasons. My reasons in both of those cases should therefore be read with, and taken to be incorporated into my reasons for decision in this case, which will only address matters which are specific to Mr Littlefair's case.

Procedural fairness

It is clear beyond argument that Mr Littlefair was denied procedural fairness by the Board when it suspended his parole and when it cancelled his parole. Dealing firstly with the Board's decision to suspend his parole, he was not given any notice of the Board's intention to consider suspension, or of the matters which the Board proposed to take into account in that regard, nor was he given any opportunity to respond to the propositions that had been put against him, or to put any matters before the Board for its consideration. And as there was no review of the decision to suspend his parole, it could not be asserted that any such review overcame the denial of procedural fairness in connection with the decision to suspend.
Turning now to the decision to cancel Mr Littlefair's parole, he was not given any notice of the Board's intention to consider cancellation of his parole - on the contrary, he was induced by the terms of the letter from the Chairperson to his solicitor to believe that the Board was to review the decision which it had made to suspend his parole. Nor was Mr Littlefair given any opportunity to respond to the propositions that were put against him with respect to cancellation, nor to put any matters before the Board for its consideration in respect of those matters.
Although Mr Littlefair exercised his right to seek a review of the Board's decision to cancel his parole, it could not be said that the review conducted by the Chairperson pursuant to s 115A of the Act overcame the denial of procedural fairness in connection with the cancellation decision because:
(a)the review procedure provided by s 115A is not a rehearing, but is a review on specified grounds by only the Chairperson of the Board (s 115A(6));
(b)in fact, the Chairperson did not review the Board's decision but determined that the grounds upon which review were sought did not fall within s 115A of the Act;
(c)the inadequacy of the reasons given to Mr Littlefair for the cancellation of his parole (a matter which I will address below), and the Board's failure to respond to any of the requests made on his behalf for the provision of further information and particulars prior to dismissing his application for review, denied him the opportunity to bring an application for review within the grounds specified by s 115A of the Act.
It follows that unless s 115 of the Act has the effect that the Board was not obliged to comply with the rules of procedural fairness at the time it suspended Mr Littlefair's parole, or at the time it cancelled his parole, Mr Littlefair is entitled to the relief which he seeks. However, for the reasons I have expressed in Seiffert, s 115 does have the effect of excluding the obligations of procedural fairness from decisions to suspend or cancel parole, with the result that the various grounds relied upon by Mr Littlefair which assert denial of procedural fairness must be dismissed.

The Board's 'no hearing' rule

Mr Littlefair asserts that he is entitled to a remedy because the Board has adopted an inflexible and arbitrary rule of denying him and all other persons whose cases are considered by the Board of the opportunity of an oral hearing. He asserts that the rule is invalid and unlawful for the same reasons as asserted by Mr Seiffert and Mr Kirby. For the reasons I have given in Seiffert, I conclude that the Board has adopted an inflexible and arbitrary rule which fetters its discretionary power to provide an oral hearing to those affected by its decision and has misconstrued the Act in adopting that rule. However, also for the reasons I have given in Seiffert, the assertions made with respect to the process by which the Board arrived at its no hearing rule, including the assertion that it took account of their relevant considerations, failed to take relevant considerations into account, and acted unreasonably in the Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), have no bearing upon the question of whether Mr Littlefair is entitled to the remedy which he seeks as a consequence of the Board's adoption of the no hearing rule. That issue turns upon the question of whether the Board was under a duty to consider providing Mr Littlefair with the opportunity of an oral hearing. That is a question of statutory construction, and for the reasons I have given in Seiffert I conclude that the Act properly construed does not require the Board to consider providing the opportunity of an oral hearing as a condition of the valid exercise of its powers either generally or as a consequence of the particular circumstances of an individual case.
However, if, contrary to my view, the Act properly construed obliges the Board to give consideration to providing the opportunity of an oral hearing if the circumstances of the case warrant such a consideration, there would be much to be said for the view that Mr Littlefair's circumstances warranted such consideration prior to the decision to cancel his parole. Before that decision was taken Mr Littlefair had been in custody for more than six months, following the decision to suspend his parole on 4 June 2009. The representations that had been made to the Board by solicitors acting on his behalf made it clear that he had vigorously disputed the proposition that any conclusions adverse to him should be drawn from his involvement in the incident at Jandakot on 18 May 2009. In those circumstances, the provision of notice to Mr Littlefair that the Board was considering cancelling his parole, and of the matters it was proposing to take into account in the course of that consideration, followed by the provision of an opportunity for Mr Littlefair to address the Board in relation to those matters would very likely have enhanced both the fairness and the quality of the Board's subsequent decision. However, the Board gave no notice to Mr Littlefair that it was considering cancelling his parole, nor of the matters it was proposing to take into account in that regard, nor was any opportunity provided to him to respond to those matters. Accordingly, if, contrary to my view, the Act properly construed does require the Board to consider the provision of an opportunity for an oral hearing if the circumstances of the case warrant that course, this would appear to be such a case.
In summary, Mr Littlefair, like Mr Seiffert and Mr Kirby, has established the unlawfulness and invalidity of the no hearing rule adopted by the Board, but he has failed to establish that the Board's adoption of that rule resulted in the invalidity of the decision of the Board to suspend his parole, or of the decision to cancel his parole. It follows that the only relief to which he may be entitled in respect of this aspect of his case is declaratory relief of a generic nature.

The failure of the Board to give notice in accordance with s 107B

In relation to the decision to suspend his parole, Mr Littlefair complains that the Board failed to comply with the obligations imposed by s 107B of the Act to give him written notice as soon as practicable after the decision was made, and to give him a statement of reasons for that decision. In relation to the decision to cancel his parole, Mr Littlefair complains that the Board failed to give him an adequate statement of the reasons for its decision.
Dealing firstly with the obligation to give him written notice of its decision to suspend his parole as soon as practicable after that decision was made, it is clear that this obligation was breached. Mr Littlefair was taken into custody on 4 June 2009, after which his whereabouts could have been easily ascertained. Notwithstanding that fact, no written notice of the decision to suspend his parole was provided to him until more than a month later. Further, that notice was not signed on behalf of the Board, and was to some extent incoherent, in that it referred to his request for a review of any earlier decision of the Board. Written notice apparently signed on behalf of the Board in coherent form was not provided to Mr Littlefair until it was sent by facsimile to his solicitors on 28 July 2009. This was more than seven weeks after the Board had decided to suspend his parole. Plainly that notice was not given 'as soon as practicable'.
Turning now to the adequacy of the reasons given for the suspension of Mr Littlefair's parole, I have set out my views as to the required content of a statement of reasons provided under s 107B of the Act in Seiffert's case. The question is whether the Board's advice to Mr Littlefair that the reason his parole had been suspended was 'alleged reoffending in a serious manner' provided an adequate statement of those reasons.
A statement of reasons provided by the Board to a person effected by its decision is of course to be construed in the context of the information known to both the Board and that person. In the present case, both the Board and Mr Littlefair were well aware that he had been charged with two offences contrary to s 304 of the Criminal Code. The Board was also entitled to proceed upon the reasonable assumption that Mr Littlefair would have been aware that if he was convicted of one or both of those offences, and sentenced to a term of imprisonment, his parole would be cancelled pursuant to the provisions of the Act, with effect from the date upon which the offence or offences was (or were) committed - namely, 18 May 2009.
In those circumstances it should have been readily apparent to anybody in Mr Littlefair's position that the reason the Board suspended his parole was because of the charges that had been brought against him, and because of the prospect that in the event that he was convicted of one or both of those offences and sentenced to a term of imprisonment, his parole would be cancelled. In those circumstances, in my opinion the Board discharged its obligation to provide Mr Littlefair with a statement of the reasons for its decision to suspend his parole.
It remains to assess the adequacy of the reasons given by the Board for cancelling Mr Littlefair's parole. Those reasons are very similar to the reasons given by the Board to Mr Kirby for the cancellation of his parole. The only difference between the two statements of reasons is that in Mr Littlefair's case, no reference is made to any alleged association with members of outlaw motor cycle gangs.
The reasons I have given in Kirby adequately explain the reasons for my conclusion that the statement of reasons given to Mr Littlefair for the cancellation of his parole was inadequate, and did not discharge the obligation imposed upon the Board by s 107B of the Act, in respect of the first of the reasons given relating to association with known offenders, but was adequate in relation to the second reason given, concerning the conclusion drawn from the DVD recording of the incident at Jandakot. As I observe in Mr Kirby's case, while different inferences might be drawn from a viewing of the DVD, the recorded actions of Mr Littlefair provide an evidentiary basis for a finding that he instigated violence through a rational and logical process of reasoning. Whether or not that finding should have been made was a question of fact for the Board, not for this court.
In summary, I have concluded that Mr Littlefair has succeeded in establishing that the Board breached the obligations imposed upon it by s 107B of the Act, in that:
(a)it did not provide Mr Littlefair with written notice of its decision to suspend his parole as soon as practicable after that decision was made; and
(b)it did not provide Mr Littlefair with an adequate statement of the reasons for its decision to cancel his parole in respect of that part of its reasons which concerned his association with known offenders.
However, for the reasons I have given in each of Seiffert and Kirby, I have also concluded that the Board's failure to discharge the obligations imposed by s 107B of the Act did not take it outside the jurisdiction conferred by the Act with respect to the suspension and cancellation of Mr Littlefair's parole, nor does it give rise to non‑jurisdictional error on the face of the record so as to enliven the grant of certiorari. Accordingly, as in the other cases, the breaches of obligation which Mr Littlefair has established do not entitle him to the relief which he primarily seeks. However, he and the intervenor should be given the opportunity to put submissions in relation to any other form of relief that might appropriately arise from the conclusions of the court.

Taking account of irrelevant considerations, failing to take account of relevant considerations, and unreasonableness

Because the reasons given by the Board for the cancellation of Mr Littlefair's parole correspond closely with the reasons given for the cancellation of Mr Kirby's parole (save for the reference, in Mr Kirby's case, to associations with members of outlaw motor cycle gangs), the arguments advanced on behalf of Mr Littlefair in relation to taking account of irrelevant considerations, failing to take account of relevant considerations, and unreasonableness are a subset of the arguments advanced in Mr Kirby's case. For the reasons I have given in Kirby, these arguments are, in substance, challenges to findings of fact made by the Board masqueraded as allegations of error of law. They should be dismissed.

Relief

As in the other cases, the focus of Mr Littlefair's claims for relief is upon orders directed to acknowledging or effecting the invalidity of the

Board's decision to cancel his parole. Although he was undoubtedly denied procedural fairness, for the reasons I have given, he has not established any entitlement to relief on that ground. Further, although he has established that the no hearing rule adopted by the Board is unlawful and invalid, he has not succeeded in establishing that the Board's adoption of that rule gives rise to any entitlement to an order setting aside the Board's decision to cancel his parole. And although Mr Littlefair has established that the Board failed to comply with the obligations imposed by s 107B of the Act, he has failed to establish that the Board's failure to discharge those obligations amounted to jurisdictional error, or to non‑jurisdictional error on the face of the record which might entitle him to an order quashing the Board's decision to cancel his parole. It follows that Mr Littlefair has failed to establish grounds for the relief which he primarily sought.

However, this is not to say that Mr Littlefair may not be entitled to other forms of relief, including declaratory relief. As in the other two cases, in my view the preferable course would be to invite submissions from the parties as to the appropriate form and terms of any such relief following publication of these reasons.
McLURE P: I have had the advantage of reading the reasons for judgment of the Chief Justice. I am in general agreement with his reasons save on the grounds of appeal relating to the 'no oral hearing' policy. I would dismiss those grounds of appeal for the reasons I give in Seiffert v The Prisoners Review Board [2011] WASCA 148.
MURPHY JA: I have had the advantage of reading the reasons for judgment of the Chief Justice. I am in general agreement with his reasons, save on the grounds of appeal relating to the 'no hearing' policy. I would dismiss those grounds of appeal for the reasons I give in Seiffert v The Prisoners Review Board [2011] WASCA 148.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LITTLEFAIR -v- THE PRISONERS REVIEW BOARD [2011] WASCA 150 (S)

CORAM: MARTIN CJ
McLURE P
MURPHY JA

HEARD: 2 & 3 MARCH 2011 & ON THE PAPERS

DELIVERED : 8 JULY 2011

SUPPLEMENTARY
DECISION :20 SEPTEMBER 2011

FILE NO/S: CACV 137 of 2010

BETWEEN: MICHAEL LANCE LITTLEFAIR
Applicant
AND
THE PRISONERS REVIEW BOARD
Respondent
THE ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervener

Catchwords:

Consequential orders - Whether declaratory relief should be granted - Costs

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:     Amidzic Lawyers
Respondent:     No appearance
Intervener:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Nil

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 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.
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 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

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 4 June 2009 to suspend his parole as soon as practicable;
(b) with an adequate statement of reasons for its decision on 17 December 2009 to cancel his parole.
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 Littlefair 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.
The orders sought by the applicant correspond very closely to the orders sought in the matter of Seiffert v The Prisoners Review Board and in Kirby v The Prisoners Review Board which were 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 those cases should not be granted. The reasons given in Seiffert apply with equal force to the orders sought by the applicant in this case save that in respect of proposed order 2, the reasons given in Kirby correspond with Mr Littlefair's circumstance, and explain why proposed order 2 should not be made in this case.
For those reasons, the orders appropriately made in this case are:
1.Order nisi discharged; and
2.No order as to costs.