Onea v Chief Executive, Department of Corrective Services - [2002] QSC 420

SUPREME COURT OF QUEENSLAND

CITATION:

Onea v Chief Executive, Department of Corrective Services [2002] QSC 420

PARTIES:

CONSTANTIN FRANCISC ONEA
(applicant)
v
THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES
(first respondent)
GAVIN A WRIGHT, EXECUTIVE DIRECTOR, OPERATIONAL SUPPORT SERVICES
(second respondent)

FILE NO:

S9873 of 2002

DIVISION:

Trial Division

PROCEEDING:

Application for a statutory order of review

DELIVERED ON:

13 December 2002

DELIVERED AT:

Brisbane

HEARING DATE:

6 December 2002

JUDGE:

Mullins J

ORDER:

1. The decision made by the second respondent on behalf of the first respondent on 2 October 2002 pursuant to s 53(6) of the Corrective Services Act 2000 to confirm a transfer of the applicant from Blackall to the Arthur Gorrie Correctional Centre be set aside.
2. The first respondent and/or the second respondent forthwith give to the applicant additional information about the allegation in the intelligence information dated 19 September 2002 addressed to the Director Community Custody which will enable the applicant to make a response that is responsive to that allegation.
3. The matter be referred to the first and/or second respondents for further consideration in the light of these reasons.

CATCHWORDS:

ADMINISTRATIVE LAW – PRISONS – transfer order confirmed pursuant to s 53(6) Corrective Services Act 2000 (Q) – application for statutory order of review in respect of order – construction of ss 53 (1) and (6) – whether the decision made under s 53(6) was authorised given effect of transfer on participation of applicant in the WORC program – nothing in Act to require s 53(1) to be read down

ADMINISTRATIVE LAW – PRISONS – whether respondent’s failure to disclose detail of intelligence information other than saying that it disclosed applicant had an intention to abscond denied applicant procedural fairness – sufficient notice of allegation in intelligence information must be given to a person likely to be affected by decision to allow for a meaningful response – substance of allegation not put to applicant – procedural fairness requires additional disclosure of information to allow applicant to give a meaningful response

Corrective Services Act 2000
Judicial Review Act 1991

Kidd v Chief Executive, Department of Corrective Services [2000] QSC 405
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193

COUNSEL:

JG Crowley QC for the applicant
JA Logan SC for the respondents

SOLICITORS:

Delaney & Delaney for the applicant
CW Lohe, Crown Solicitor for the respondents

MULLINS J: This is an application for a statutory order of review in respect of the decision made by the second respondent on behalf of the first respondent on 2 October 2002 pursuant to s 53(6) of the Corrective Services Act 2000 (“the Act”) to confirm a transfer of the applicant from Blackall where the applicant was participating in a WORC program to the Arthur Gorrie Correctional Centre.

Background

On 17 February 1994 the applicant was convicted of 2 counts of drug trafficking and 5 counts of drug possession and sentenced to imprisonment for 20 years. A declaration was made in respect…

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 Onea v Chief Executive, Department of Corrective Services

Details

AGLC: Onea v Chief Executive, Department of Corrective Services [2002] QSC 420
Case: [2002] QSC 420
Decision Date: 13 December 2002

CaseChat Overview and Summary

The case of Onea v Chief Executive, Department of Corrective Services involved a dispute regarding a transfer order issued under the Corrective Services Act 2000 (Q). The applicant, Onea, sought a statutory order of review in respect of the transfer order, which was confirmed by the Chief Executive of the Department of Corrective Services. The applicant argued that the transfer order was invalid because it was not authorised by the Act and that the failure to disclose specific intelligence information regarding his intention to abscond denied him procedural fairness.

The court had to determine whether the decision to confirm the transfer order was authorised under section 53(6) of the Act, and whether the applicant's right to procedural fairness was breached due to the insufficient disclosure of intelligence information. The court also had to consider the proper construction of sections 53(1) and 53(6) of the Act in light of the applicant's participation in the WORC program.

The court held that the decision to confirm the transfer order was not authorised because it had an effect on the applicant's participation in the WORC program. The court found that nothing in the Act required section 53(1) to be read down. Additionally, the court held that the applicant's right to procedural fairness was breached because he was not given sufficient notice of the allegation in the intelligence information, which prevented him from making a meaningful response. The court held that the substance of the allegation must be put to the applicant to allow for a meaningful response.

The court set aside the decision made by the Chief Executive to confirm the transfer order and ordered that the Chief Executive provide the applicant with additional information about the allegation in the intelligence information. The court also referred the matter to the Chief Executive for further consideration in light of these reasons.

Orders

Orders of the court

1. The decision made by the second respondent on behalf of the first respondent on 2 October 2002 pursuant to s 53(6) of the Corrective Services Act 2000 to confirm a transfer of the applicant from Blackall to the Arthur Gorrie Correctional Centre be set aside.

2. The first respondent and/or the second respondent forthwith give to the applicant additional information about the allegation in the intelligence information dated 19 September 2002 addressed to the Director Community Custody which will enable the applicant to make a response that is responsive to that allegation.

3. The matter be referred to the first and/or second respondents for further consideration in the light of these reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Onea v Chief Executive, Department of Corrective Services [2002] QSC 420
PARTIES:	CONSTANTIN FRANCISC ONEA (applicant) v THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES (first respondent) GAVIN A WRIGHT, EXECUTIVE DIRECTOR, OPERATIONAL SUPPORT SERVICES (second respondent)
FILE NO:	S9873 of 2002
DIVISION:	Trial Division
PROCEEDING:	Application for a statutory order of review
DELIVERED ON:	13 December 2002
DELIVERED AT:	Brisbane
HEARING DATE:	6 December 2002
JUDGE:	Mullins J
ORDER:	1. The decision made by the second respondent on behalf of the first respondent on 2 October 2002 pursuant to s 53(6) of the Corrective Services Act 2000 to confirm a transfer of the applicant from Blackall to the Arthur Gorrie Correctional Centre be set aside. 2. The first respondent and/or the second respondent forthwith give to the applicant additional information about the allegation in the intelligence information dated 19 September 2002 addressed to the Director Community Custody which will enable the applicant to make a response that is responsive to that allegation. 3. The matter be referred to the first and/or second respondents for further consideration in the light of these reasons.
CATCHWORDS:	ADMINISTRATIVE LAW – PRISONS – transfer order confirmed pursuant to s 53(6) Corrective Services Act 2000 (Q) – application for statutory order of review in respect of order – construction of ss 53 (1) and (6) – whether the decision made under s 53(6) was authorised given effect of transfer on participation of applicant in the WORC program – nothing in Act to require s 53(1) to be read down ADMINISTRATIVE LAW – PRISONS – whether respondent’s failure to disclose detail of intelligence information other than saying that it disclosed applicant had an intention to abscond denied applicant procedural fairness – sufficient notice of allegation in intelligence information must be given to a person likely to be affected by decision to allow for a meaningful response – substance of allegation not put to applicant – procedural fairness requires additional disclosure of information to allow applicant to give a meaningful response Corrective Services Act 2000 Judicial Review Act 1991 Kidd v Chief Executive, Department of Corrective Services [2000] QSC 405 Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
COUNSEL:	JG Crowley QC for the applicant JA Logan SC for the respondents
SOLICITORS:	Delaney & Delaney for the applicant CW Lohe, Crown Solicitor for the respondents