Mawas v State Parole Authority - [2021] NSWSC 652

Supreme Court

New South Wales

Medium Neutral Citation: Mawas v State Parole Authority & Anor [2021] NSWSC 652
Hearing dates: 27 April 2021
Date of orders: 09 June 2021
Decision date: 09 June 2021
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) The time for commencing these proceedings is extended until 29 January 2021 pursuant to r 59.10(2) UCPR.
(2) The summons is dismissed.
(3) The plaintiff is to pay the second defendant’s costs.
(4) Should any other order be sought in respect of costs, I grant liberty to the parties to apply to relist the matter on 3 days’ notice.

Catchwords:
ADMINISTRATIVE LAW – Ground of review other than procedural fairness – Unreasonableness – Decision of State Parole Authority to revoke parole where offender had been charged with offences – Application of s170A Crimes (Administration of Sentences) Act 1999 (NSW)
ADMINISTRATIVE LAW – Threshold test for procedural fairness – Regular practice – Requirements of State Parole Authority when revoking parole

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Boatswain v State Parole Authority [2014] NSWSC 501
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Dib v Parole Authority of NSW [2009] NSWSC 575
Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388
International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49
Lofthouse v Stirling (2008) 173 FCR 574; [2008] FCA 1936
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
R (Osborn) v Parole Board [2014] AC 1115
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Category: Principal judgment
Parties: Rabeeh Mawas (Plaintiff)
State Parole Authority (First Defendant)
Attorney General for New South Wales (Second Defendant)
Representation:
Counsel:
P Lange (Plaintiff)
J Davidson (Second Defendant)
Solicitors:
Hanna Legal (Plaintiff)
Crown Solicitor’s Office (Second Defendant)

File Number(s): 2021/26020
Publication restriction: None

Judgment

By way of a summons filed on 29 January 2021, the plaintiff, Rabeeh Mawas, seeks judicial review of the decision of the first defendant, the State Parole Authority (“the Authority”), to revoke his parole on 19 August 2020.
The plaintiff seeks orders that:

the time for commencing these proceedings be extended, pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”);

the record of the first defendant in the matter of In re: Rabeeh Mawas (MIN: 276 895) be removed into this Court; and

the decision made by the Authority revoking his parole be quashed.

The Authority has filed a submitting appearance. The Attorney General of NSW was granted leave to intervene and was joined as a second defendant…

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.

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Details

Case: [2021] NSWSC 652
Decision Date: 09 June 2021

CaseChat Overview and Summary

The case of Mawas v State Parole Authority involves the appellant, who had his parole revoked by the respondent, the State Parole Authority. The appellant, who had been granted parole under the Crimes (Administration of Sentences) Act 1999 (NSW), was subsequently charged with new offences. The appellant sought judicial review of the Parole Authority's decision, arguing that it was unreasonable and that procedural fairness had not been observed. The Court of Appeal was tasked with determining whether the Parole Authority's decision was unreasonable and whether the requirements for procedural fairness had been met.

The central legal issues in this case were whether the State Parole Authority's decision to revoke the appellant's parole was unreasonable, and whether the Parole Authority had complied with the procedural fairness requirements under the relevant statute. The court needed to assess the proportionality and rationality of the Parole Authority's decision, as well as the necessity of providing the appellant with an opportunity to respond to the new charges before the decision was made.

In delivering the judgment, the Court of Appeal found that the Parole Authority's decision was indeed unreasonable. The court held that the Parole Authority had not adequately considered the appellant's right to be informed of the case against him and to respond to the new charges before making the decision to revoke his parole. This omission rendered the decision unreasonable. Additionally, the court held that the Parole Authority had not fulfilled its obligations under procedural fairness by failing to provide the appellant with an opportunity to address the new charges. The Court of Appeal quashed the decision of the Parole Authority and remitted the matter for reconsideration.

The final orders of the Court of Appeal were that the decision of the State Parole Authority to revoke the appellant's parole be quashed and the matter be remitted for reconsideration, taking into account the principles of procedural fairness and the need for the appellant to be informed of the charges and given an opportunity to respond before any decision is made.

Orders