Re The Hon J McGinty MLA; Ex Parte Duff

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RE THE HON J McGINTY MLA; EX PARTE DUFF [2007] WASC 210

CORAM:   JENKINS J

HEARD:   4 JULY, 2 AUGUST 2007

DELIVERED          :   2 AUGUST 2007

FILE NO/S:   CIV 1598 of 2007

MATTER                :A Writ of Certiorari against The Hon J McGinty, MLA Mr Raymond Warnes, DCJ O'Sullivan

EX PARTE

COLIN LEE DUFF
Applicant
 

Catchwords:

Prerogative writs - Application for order nisi for writ of certiorari - Determination of earliest date for release on parole - Applicant serving two parole terms ordered to be served cumulatively

Legislation:

Sentencing Act 1995 (WA), s 93(1), s 94(1), s 94(3)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     In person

Mr Raymond Warnes     :     Ms C J Thatcher

(2 August)

Solicitors:

Applicant:     In person

Mr Raymond Warnes     :     State Solicitor for Western Australia

(2 August)

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

Cummins v The State of Western Australia [2006] WASCA 201

GHS v State of Western Australia [2006] WASCA 42

McKay v Commissioner of Police [2006] WASC 189

1. JENKINS J:  This is an application for the grant of an order nisi for the issue of a writ of certiorari against the Hon J McGinty and Mr Raymond Warnes.  The application has been brought in respect to the respondents on the basis that it is assumed that they are responsible for the determination of the release dates of Mr Duff from prison.  It is unnecessary for me to consider whether this assumption is correct.  I will assume that it is.  On 4 July 2007 I dismissed the application in respect to O'Sullivan DCJ.

2. The test to be applied in deciding whether an order nisi ought to be granted was considered in McKay v Commissioner of Police[2006] WASC 189. Martin CJ said:

   There is perhaps some discrepancy of language in the earlier authorities pertaining to the test that must be applied.  For my part, I favour the view that the test that must be satisfied before a Judge, such as myself, is justified in granting an order nisi for the issue of prerogative relief, it should be expressed in terms that the applicant must discharge the onus of showing that there is an arguable case which has some prospect of success.

   Indeed, I would go further perhaps than some of the earlier authorities and suggest that it would be an inappropriate exercise of the powers conferred upon such a Judge to issue an order nisi unless he or she were satisfied that the arguable case had some reasonable prospect of success.  I have a firm view that the public interest requires that the limited resources of the judicial system of this State be deployed only in respect of the resolution of arguments that have at least a reasonable prospect of success, but as I say, that is a view that may not be sanctioned by prior authority and it is not a view which I bring to bear in this particular case.…