Matthews v Qld Community Corrections Board

[2000] QSC 278

SUPREME COURT OF QUEENSLAND

CITATION:	Matthews v Qld Community Corrections Board & anor [2000] QSC 278
PARTIES:	BERNARD THOMAS MATTHEWS (Applicant) and QUEENSLAND COMMUNITY CORRECTIONS BOARD (First Respondent) and THE STATE OF QUEENSLAND AS THE EMPLOYER OF THE QUEENSLAND DEPARTMENT OF CORRECTIVE SERVICES (Second Respondent)
FILE NO/S:	S 11104/99
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	1 August 2000
DELIVERED AT:	Brisbane
HEARING DATE:	28 July 2000
JUDGE:	Wilson J
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – DECLARATION – Applicant prisoner seeking judicial review of decisions affecting determination of parole – application made outside prescribed statutory time limit – second respondent’s interlocutory application to stay or dismiss applicant’s substantive application based on delay and futility of review proceedings – whether applicant’s delay justified – whether the judicial review, if conducted would be futile
CASES:	Hoffmann v The Queensland Local Government Superannuation Board [1994] 1 Qd R 369, cons Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, cons Jamieson v Timms [1999] QSC No 3436 of 1999, 25 November 1999, cons Jurd v Commissioner of Stamp Duties (1995) 95 ATC 4675, cons Re Jobson and Queensland Corrective Services Commission (1994) 2 QAR 20, cons Kuku Aboriginal Corporation v Christensen [1993] 2 Qd R 663, cons Lucic v Nolan (1982) 45 ALR 411, cons Pitman v State of Queensland [1999] 2 Qd R 71, foll
STATUTES:	Judicial Review Act 1991 s 4, 20, 26 Corrective Services Regulation 1989 s 13
COUNSEL:	The applicant appeared on his own behalf. Mr S A McLeod for the second respondent
SOLICITORS:	The applicant appeared on his own behalf. Crown Solicitor for the second respondent

1. On 15 December 1999 Mr Matthews (“the Applicant”), who is a self-represented litigant, made an application to review a decision of the Queensland Community Corrections Board (“the First Respondent”) not to grant him parole.  The Queensland Department of Corrective Services was named as second respondent to the application.  That application was amended in January 2000 to encompass 13 decisions of officers of the Department of Corrective Services and to substitute the State of Queensland (“the Second Respondent”) as second respondent.  The relief sought by the Applicant is declaratory in character.

1. The substantive application relies on paragraphs (a), (b), (d), (e), (f), (h) and (i) of s 20(2) of the Judicial Review Act 1991. In response to a request by the Second Respondent, the Applicant supplied further and better particulars in a discursive document which runs to 33 pages (and was filed by leave on 28 July 2000).

1. This is an interlocutory application by the Second Respondent to stay or dismiss the substantive application, at least insofar as it relates to the 13 decisions of officers of the First Respondent. Originally the interlocutory application was based on two grounds – that the decisions were not reviewable decisions under s 4 of the Judicial Review Act and that, with respect to each of the 13 decisions, the application was out of time.  The Second Respondent chose not to pursue the first ground, and the interlocutory application was amended accordingly.

1. The Applicant is a prisoner.  On 3 April 1997 Wylie QC DCJ sentenced him to 10 years’ imprisonment for armed robbery in company.  His Honour recommended that he be considered for release on parole after 3 years.  After taking into account presentence custody, the sentence was effectively backdated to 19 October 1996.  Thus, if he served his full term, he would be released on 19 October 2006, and if he were granted parole in accordance with the sentencing judge’s recommendation, he would be released on 19 October 1999.

1. On 16 June 1999 the Applicant made an application for parole, home detention and release to work. At the time he had a medium security classification. On 16 August 1999 he was notified that his application had been rejected. He sought a review, and was informed on 20 September 1999 that his case would be reviewed when he had attained a low security classification and spent 6 months in an open security environment. On 4 October 1999 he requested a statement of reasons for the decision of 20 September 1999 pursuant to s 32 of the Judicial Review Act.  The reasons were supplied on 15 November 1999 and he filed his application for review on 15 December 1999.

1. Shortly afterwards he was transferred to a low security classification.  The First Respondent informed him by letter dated 30 June 2000 that it would approve the grant of leave of absence for 6 months to allow him to engage in employment, to seek employment to be undertaken while a prisoner, to attend any place for educational or training purposes and to prepare him for community resettlement, that the actual decision to grant the leave of absence was for the Department of Corrective Services, and that consideration of release on home detention and/or parole would be given after satisfactory completion of 6 months on release to work.  He was in fact granted work release.  The Applicant declined to amend his application to include this decision of 30 June 2000.

1. The 13 decisions the subject of this interlocutory application having been made between 23 February 1998 and 4 October 1999, the application was clearly brought outside the 28 day time period prescribed in s 26 of the Judicial Review Act, and so prima facie it ought to be dismissed.  However, I am prepared to treat the Applicant’s submissions in response to the Second Respondent’s interlocutory application as including an oral application for an extension of time.  The Second Respondent submitted that an extension ought not to be granted, principally because there was no explanation for the delays and because of futility – the Court would refuse the Applicant relief on the substantive application in light of the subsequent decision of 30 June 2000.[1]

   [1]He referred to Lucic v Nolan (1982) 45 ALR 411 at 415; Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663 at 665;  Re Jobson and Queensland Corrective Services Commission (1994) 2 QAR 20 AT 22;  Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-50; Jamieson v Timms [1999] QSC No 3436 of 1999, 25 November 1999 and Hoffmann v The Queensland Local Government Superannuation Board [1994] 1 Qd R 369 at 372.

1. In practical terms a successful application for parole depends on satisfactory and timely progression through the prison classification system prescribed in s 13 of the Corrective Services Regulations 1989.  This is a reflection of concern for the rehabilitation of the prisoner and for the protection of the public against the risk of his reoffending.  The Applicant submitted that the cumulative effect of the 13 decisions was to delay his progression through the system, so that when the time came for him to apply for parole in accordance with the sentencing judge’s recommendation, his security classification was still medium – too high a level to be a basis for the grant of parole.  He submitted that this cumulative effect did not become apparent until his application for parole was refused.  When it was refused, he sought a statement of reasons, and on receiving the reasons, he made his application relatively promptly.  I regard this as an adequate explanation for the delays.

1. Both sides addressed me on a decision made by Frank Peach on 19 April 1999 as illustrative of their respective positions.  According to the Applicant if the sentence progress dates recommended under various policy and procedure documents had been applied, he would have been transferred to low security classification in July 1998.  In fact he was not transferred to low security classification until December 1999.  He conceded, however, that an outstanding charge of another armed robbery warranted his being kept in maximum security until 12 January 1999.  On that date the Crown entered a nolle prosequi in relation to the further charge.  He submitted that he ought to have been reclassified within 21 days of the entering of the nolle in accordance with a policy and procedures manual.  However, he was not reclassified until 19 April (almost 11 weeks later) – the decision of Frank Peachey of that date which is one of those he wants reviewed.  This caused a delay of approximately 3 months in his being classified as medium security.

1. The Applicant addressed me also on two sentence management decisions in relation to which he alleged documents had been falsified – those of 10 May 1999 and 23 June 1999 (exhibits BTM 88 and BTM 19(a)).

1. The applicant’s prospects of success on the substantive application are a relevant factor on an application to extend time, although it is often not possible to form more than a limited view of those prospects.  On the hearing of the interlocutory application the only argument advanced against the success of the substantive application was that of futility.  (This is not to preclude other arguments on a final hearing.)  The Applicant described this as a fallacious argument;  as a result of the decision of 30 June 2000 he is still a prisoner at a time when, according to him, he should be out on parole.

1. I am not persuaded that the Applicant will necessarily fail on his substantive application because it would be futile to grant the relief sought.  As Thomas J observed in Pitman v State of Queensland[2] -

“There may well be cases where a genuine benefit may be seen in setting aside a wrong decision even when its effect has ended, or in eliminating an unfair matter of public record.  If the intrinsic nature of the allegations is such that in the interests of justice they ought to be reviewed, then no doubt the Court would proceed (cf. Jurd v Commissioner of Stamp Duties[3]).”

The decisions which have been impugned were links in a chain leading to a decision about the Applicant’s personal liberty. It is not for this Court to review the merits of the various decisions, but if they were tainted by any error of a kind specified in s 20 of the Judicial Review Act it may well grant declaratory relief in order to correct the Applicant’s prison record, even though he has now been progressed to the point of being granted work release.

[2][1999] 2 Qd R 71 at 74-75.

[3](1995) 95 ATC 4675.

1. Despite the quite lengthy delays in applying to review the 13 decisions, in all the circumstances, I am not prepared to strike out or stay the substantive application.  I dismiss the Second Respondent’s interlocutory application, and I order that the time for making application to review each of the 13 decisions in question be extended to 15 December 1999.[4]

   [4]The application filed on 15 December 1999 was amended on 7 January 2000.  In accordance with well established principle, the amended application is to be construed as if the amendments were contained within it when it was originally filed.