Rennardson v The State of Western Australia - [2011] WASC 15

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RENNARDSON -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 15

CORAM: EM HEENAN J

HEARD: 13 DECEMBER 2010

DELIVERED : 13 DECEMBER 2010

PUBLISHED : 18 JANUARY 2011

FILE NO/S: CIV 1952 of 2010

BETWEEN: DAVID PAUL RENNARDSON
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
First Defendant
PRISONERS REVIEW BOARD WESTERN AUSTRALIA
Second Defendant
THE COMMISSIONER DEPARTMENT OF CORRECTIVE SERVICES WESTERN AUSTRALIA
Third Defendant

Catchwords:

Application for judicial review - Refusal to grant parole - No merits review - No arguable basis to establish error of law or want of jurisdiction

Legislation:

Freedom of Information Act 1992 (WA)
Rules of the Supreme Court 1971 (WA), s 25
Sentence Administration Act 2003 (WA), s 4, s 115A
Supreme Court Act 1935 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     In person
First Defendant             :     Mr H D Leith
Second Defendant         :     Mr H D Leith
Third Defendant           :     Mr H D Leith

Solicitors:

Plaintiff:     In person
First Defendant             :     State Solicitor for Western Australia
Second Defendant         :     State Solicitor for Western Australia
Third Defendant           :     State Solicitor for Western Australia

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

Annetts v McCann (1990) 170 CLR 596
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 233
Attorney‑General v Quin (1990) 170 CLR 1
Coe v Commonwealth (1979) 24 ALR 118; (1979) 53 ALJR 403
Craig v South Australia (1995) 184 CLR 163
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Hart‑Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998)
Kioa v West (1985) 159 CLR 550
Kirby v Prisoners Review Board [2010] WASC 243
Kirby v Prisoners Review Board [No 2] [2010] WASC 280
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Prisoners Review Board v Freeman [2010] WASCA 166
R v Minister for Immigration; Ex parte Applicant 520/2003 (2003) 198 ALR 59
Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372
Re Metropolitan Health Service Board; Ex parte Reed [2003] WASCA 123
Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252

EM HEENAN J: This is an application by the plaintiff for judicial review and a binding declaration of right against the State of Western Australia, the Prisoners Review Board of Western Australia (the PRB) and the Commissioner for the Department of Corrective Services of Western Australia in connection with decisions taken by one or more of the defendants to decline to allow the applicant to be released on parole.
Mr Rennardson is a serving prisoner under a sentence imposed by the District Court of Western Australia on 21 July 2008. The record shows that on 21 July 2008, before his Honour Judge Wisbey, Mr Rennardson pleaded guilty to two crimes. His first conviction is that on a date unknown between 1 July 2003 and 31 December 2003 at Derby, he sexually penetrated a named girl, a child of or over the age of 13 years and under the age of 16 years, by penetrating her mouth with his penis. His second conviction was that on a date unknown between 1 July 2003 and 31 December 2003 at Derby, he sexually penetrated the same person, a girl, then a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his penis.
After hearing submissions, Judge Wisbey imposed immediate terms of imprisonment, saying:
In my view, a term of immediate imprisonment is the only appropriate disposition in respect of count 1. The starting point would be one of two years, which I reduce by 30 per cent for your plea of guilty and then a further third to give effect to the transitional sentencing requirements, which brings that sentence down to a period of 10 months' imprisonment (ts 18).
In respect of the second conviction his Honour said that the starting point would have been one of 4 years, which after the reductions under the then applicable legislation reduced to 20 months. As there were two separate incidents, in his Honour's view it was necessary, according to normal sentencing principles, that the terms should be cumulative. The result was that an effective head term of 30 months' imprisonment was imposed with a declaration that the offender be eligible for parole, which means that he would be eligible for parole consideration at the expiration of 50% of that time.
Since then, Mr Rennardson has been serving the sentences and has been in custody for more than 50% of the time. After that, he has made various applications for parole which have been refused. It is in respect of those refusals that he brings this application for relief.
By a minute of amended proposed orders dated 25 June 2010, he seeks the following relief: that the defendants show cause before a single judge of this court why a judicial review and a binding declaration of right should not issue against him, and to the extent that the court thinks fit, the grant of judicial review and a binding declaration of right pursuant to O 58 r 10 and r 11 of the Rulesof the Supreme Court 1971 (WA). As relief he seeks orders that he be granted immediate parole subject to continual supervision by an adult at all times and that he have leave to insert transcripts, references and letters which may comprise evidence and facts relating to the hearing of this matter as needed or directed by the court, and he seeks an order for costs. As an alternative, he seeks an order remitting to the Full Court the hearing of the matter if the court so thinks fit.
There has been a series of directions applications before me which have led to affidavits being filed by Mr Rennardson and an affidavit of Sharon‑Lee Holland sworn 18 November 2010, filed on behalf of the PRB. There have also been written submissions.
I have examined all of the affidavits relied upon by Mr Rennardson and it is apparent from these that he is aggrieved because he considers that the PRB has reached conclusions which are not justified by the various reports and that on the merits he deserves, and should be granted, parole. I am afraid that I have to explain what many people have already said to Mr Rennardson about this matter; that this court has no power to review a decision to grant or withhold parole simply on the merits. The role of this court is to review on specified grounds any decision to consider whether there has been a want or excess of jurisdiction or any error of law. Only then, if that is demonstrated, does this court have any power to intervene. Even then, the relief likely to be granted would be to direct that the decision of the PRB be set aside and then be remade according to law. This is because it is the province of the PRB and not of this court to approve or withhold parole.
At the end of the hearing, I announced that I would in due course give fuller reasons for my decision because the materials were voluminous and I was referred to many authorities which I could not then cover in shorter reasons then given, but I observed then that it was sufficient to say that nothing raised by Mr Rennardson demonstrates or suggests that there has been any error of law by the PRB or by the Commissioner of the Department of Corrective Services or for which the State is responsible, leading to any want or excess of jurisdiction. It followed that I had no alternative but to reject his application.

Evidence

Two affidavits were filed and relied upon by the plaintiff in support of this application. The first is an affidavit of Mr Rennardson sworn 18 March 2010, together with annexures, and the second is another affidavit of the plaintiff sworn 4 November 2010, with annexures.
In his November affidavit Mr Rennardson deposes that he was then a serving prisoner at Acacia Prison, Wooroloo. In this affidavit there is much irrelevant material but, in substance, the plaintiff asserts that his delay of more than six months from the decision refusing him parole before commencing these proceedings was due to difficulties he experienced in preparing papers because of his circumstances, depression and a number of personal factors, which need not be more fully described. He referred to correspondence with the State Solicitor over the refusal to grant him parole. He protests that he was not given any, or any sufficient, reasons for that decision and then proceeds to speculate about potential causes, which he then sets out to refute. Among the annexures to this affidavit are letters or submissions in which there are references by the plaintiff to his asserted concern to protect young people of the Aboriginal community where he had been living from exposure to risk of sexual abuse. These assertions are accompanied by frequent reference to religious considerations and to his own elaborate religious beliefs. The annexures include an assertion that he is in need of parole to access desensitisation therapy for acquired brain injury which has been worsened by incarceration resulting in debilitating vertigo and other handicaps.
Mr Rennardson claims that because of his continued detention the children at the Derby indigenous community are suffering psychological damage as a result of being denied access to him, the only parent they have known since October 2004. He also says that his 87‑year‑old mother, who is suffering from senile dementia, is in an advanced stage of a fatal illness at Royal Perth Hospital at Shenton Park and that he needs to see her. Further, he disputes the PRB conclusions that he is a high risk to the personal safety of members of the community because of the asserted high level of minimisation and justification for his offences and canvasses reasons why he advances that view. The plaintiff claims to be dissatisfied with the results of the sex offender treatment completion report prepared upon him by officers of the third defendant while he has been in custody. He annexes to this affidavit medical reports from Royal Perth Hospital Medical Imaging and from the Aboriginal Health Service Council and from other doctors. These record a chronic illness and dizziness associated with a closed head injury suffered in a motor vehicle accident in 2004 and refer to a documented past history of alcohol dependency, benzodiazepine dependency, secondary depressive episode and mild frontal lobe syndrome. The Medical Imaging report prepared at Royal Perth Hospital in January 2010 concluded that he had extensive areas of encephalomalacia representing the sequelae of previous trauma.
In his March affidavit Mr Rennardson refers to an application for parole which he lodged with the PRB in August 2009 after he had completed a sex offenders treatment programme in March 2009 and seven weeks of the Breaking Out Programme for substance abuse. He indicated that he proposed to run an indigenous culture centre at Derby and to commence a foetal alcohol class action to support the Aboriginal community whilst caring for his youngest children.
In this March affidavit the plaintiff went on to describe lodging a supplementary application to his parole application in September 2009, raising additional matters, including his mother's senile dementia and his own disability. He asserted that his acquired brain injury disability needs were not being met while incarcerated, and claims that he highlighted his remorse for his offence.
Also in this affidavit the plaintiff described that on 12 October 2009 the second defendant denied him parole on the basis that he was at a high risk of reoffending in view of limited treatment gains which had been identified despite completion of the sex offender treatment programme and that he represented a high risk to the personal safety of the community in view of the high level of his minimisation and justification of offending. He then set out to dispute these conclusions and to assert reasons why, in his view, the Parole Board had failed to recognise his eligibility for parole. In doing so, he made references to several review requests under the Sentence Administration Act 2003 (WA) (the Act), all of which were denied. He then went on to assert that a number of conclusions reached in the parole review checklist were false and that the sexual offenders treatment programme report was unduly negative. In par 34 of that affidavit he asserts:
In conclusion I believe the only content of value in the SOTP Report at annexure 18 is the Static 99 rating of me as a low risk of reoffending. The rest of the report is prepared by a person unwilling to accept my Culture and disability and consequently ignores relevant information and seeks to crucify me based on the prejudiced views held in respect of me.
Then, again, at par 37:
In July 2008 a court sentenced me to 30 months' incarceration with eligibility for Parole after 15 months. It is criminal my eligibility for Parole is denied by an individual(s) based on false information. I am effectively denied Parole by what a cynic would call a kangaroo court. Sadly the denial not only impacts upon me and my acquired brain injury disability. It impacts significantly on [RL (6)] and [D (5)], my mother incapacitated by senile dementia, and my Community denied their Culture Centre.
This is then followed by a further series of assertions advancing benefits which the plaintiff claims would follow if he were to be granted parole.
One affidavit was filed and relied upon by the respondents. This is the affidavit of Sharon‑Lee Holland, sworn 18 November 2010, with annexures. Ms Holland is the registrar of the PRB and of the Mentally Impaired Accused Review Board. In these notes she exercises administrative and statutory powers as determined by the Sentence Administration Act 2003 in relation to the parole of prisoners in this State. In this capacity, she has access to the records of the second defendant and to a number of associated government and non‑government agencies, including those of the Department of the Attorney General, the Department of Police, the Department of Corrective Services and other similar bodies, including Community Mental Health Services and Graylands Hospital among others. From the records to which she has access and her own information, Ms Holland outlined the following history.
On 12 October 2009 the Prisoners Review Board, the second defendant, considered the plaintiff's case and based upon the reports and information presented to it denied him release on parole because of a perceived high risk of reoffending in view of limited treatment gains which had been identified despite completion of the sex offenders treatment programme and high risk to the personal safety of the community in view of his high level of minimisation and justification of offending.
On that date an officer of the PRB wrote to the plaintiff informing him of the decision to deny him parole and the reasons for it. In this correspondence the plaintiff was invited to apply for a review of the second defendant's decision under s 115A of the Act on the specified grounds and advised of how to apply for a review.
On 16 October 2009 the PRB received a request for a review from the plaintiff under s 115A of the Act and thereupon acknowledged receipt and advised the plaintiff that he would be informed of the outcome of the review in due course. This review was conducted on 29 October 2009 by the deputy chairperson of the PRB, who denied the review as it did not fall within any of the grounds of the review identified in s 115A(6) of the Act. The plaintiff was notified of that decision by a letter of the same date, which also informed him that by reason of s 115A(4) of the Act that decision could not itself be reviewed. By that letter the PRB also refused the plaintiff's request for copies of psychological and other reports used by the board in making its decision to deny his release on parole.
Between 7 November 2009 and 2 July 2010 the plaintiff repeatedly requested that the PRB undertake further review of his denial of parole. On 10 December 2009 Ms Holland wrote to the plaintiff, referring to his correspondence and explaining that his case had been reviewed on 29 October 2009 and that this request had been denied. Again, he was advised that as the decision was not reviewable under s 115A(4) the second defendant could not assist him further unless there were a change in circumstances.
This was followed on 11 December 2009 by the plaintiff writing to the PRB asserting that there had been a change in circumstances and that natural justice should be afforded to him. By letter of 23 December 2009 an officer of the second defendant wrote to the plaintiff informing him that all relevant information had been considered by the second defendant and that natural justice was excluded by the terms of the Act. This letter informed the plaintiff that he had been provided with all relevant information which the Board was required to provide under the Act.
There was further correspondence from the PRB to the plaintiff on 2 and 8 February 2010 which, in substance, again confirmed that the decision of the second defendant was not reviewable in the light of s 115A(4) of the Act. Further correspondence to similar effect followed on 16 July and 26 August 2010.
Ms Holland then addresses an assertion by the plaintiff that the sex offender treatment programme report referred to in par 18 of the plaintiff's affidavit of 18 March 2010 had not been referred to the PRB. This assertion was advanced by the plaintiff because that report had not been specifically included in the response to a Freedom of Information Act 1992 (WA) request which he had lodged in relation to the reports which had been considered by the PRB. Ms Holland deposes that she has examined the second defendant's file on the plaintiff and has confirmed that it does contain a signed copy of the sex offender treatment programme report referred to in par 18 of the plaintiff's affidavit and that the PRB considered that report in reaching its decision to deny him parole.
In the course of his written submissions the plaintiff asserts that he can have access to desensitisation therapy for his acquired brain injury if released on parole and that he can care for his two children, aged respectively six years and five years, as well as attend to his elderly mother who is suffering deteriorating health. In particular, he asserts that if released on parole he will be able to provide valuable care to the Derby Aboriginal Cultural Centre, specifically targeting alcohol and sexual abuse in relation to young children and to revive spiritual awareness. He concludes by submitting that if this court is not disposed to grant him the judicial review sought, his application should be referred to the Full Court for hearing.
This resumé of the evidence advanced by the plaintiff and his submissions has excluded a great deal of irrelevant material and gratuitous assertions advanced by the plaintiff which seek to invoke a number of obscure and irrelevant matters. The existence of such material and assertions resulted in submissions by the defendants that they do not know the case which they have to meet and are left to guess at the relevant issues because the documents filed by the plaintiff are embarrassing in the legal sense. The defendants' submission is that the plaintiff's materials obscure any real questions in controversy, are ambiguous, are not reasonably intelligible, and raise immaterial or irrelevant issues. The defendants further submit that the documents fail to confine the issues or to state the case of the plaintiff in question with reasonable particularity, or raise a case in terms which are simply too general and should be dismissed on the grounds that they are embarrassing or constitute an abuse of process: Hart‑Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998) and Coe v Commonwealth (1979) 24 ALR 118; (1979) 53 ALJR 403.

I have no hesitation in accepting that there is much irrelevant material in the plaintiff's affidavits and in his submissions and that the application is unfocused and, in many areas, tendentious. Nevertheless, disregarding the irrelevant material, it is clear that the plaintiff is seeking to advance a case that he was wrongfully refused parole and that, as a consequence, he is entitled to judicial review and appropriate relief. Immediately, I record that the defendants submit that no form of judicial review is available to the plaintiff in the circumstances of this case. Nevertheless, he is entitled to bring this application and to have it determined according to law, even if that determination reveals that he is mistaken in believing that judicial review is available in these circumstances. For this reason, I consider that the application can and should be determined upon the merits rather than be dismissed for procedural reasons.
The defendants submit that this court has no jurisdiction to undertake the proposed review sought by the plaintiff in relation to the PRB's decision to refuse him parole. It is the function of the second defendant to decide whether or not it is appropriate to release prisoners serving a parole term on parole ‑ Sentence Administration Act 2003 (WA) pt 3 div 3 s 20. Further, the second defendant submits that, pursuant to s 115A(5) of that Act, a prisoner about whom a reviewable decision is made may request the PRB to review the decision. A reviewable decision is defined by s 115A(2) of that Act and includes a decision made by the Board not to make an early release order. An early release order is a parole order or a re‑entry release order ‑ see s 4 of the Sentence Administration Act.
As the evidence shows, the plaintiff's case was reviewed by the second defendant on 29 October 2009 and the request for review was denied on the basis that it did not fall within the grounds of review specified in s 115A(6). That subsection provides:
A request may only be made on the grounds that the person who made the decision ‑
(a)did not comply with the Act or the regulations;
(b)made an error of law; or
(c)used incorrect or irrelevant information or was not provided with relevant information.
A decision made upon a request for review is not subject to further requests for review under s 115A pursuant to s 115A(4) and is not a reviewable decision.
On this occasion it is not necessary to consider or to accept the full extent of the defendants' submissions that a review decision by the second defendant under s 115A, whether under subsection (4), (5), (6) or (8) is entirely unreviewable by this court. One would hesitate long before concluding that a decision made under any of those sections, if made in bad faith, or without any relevant information, or without jurisdiction or involving some patent error of law, is not reviewable by this court merely by virtue of s 115A(4) but as no issues of that nature arise in the present case, it is unnecessary and undesirable to embark upon a consideration of what may be the position in such a postulate. If and when it is necessary for this court to consider such a matter, it can be done in the light of known facts and with the benefit of considered argument which was not available on this occasion. I prefer, therefore, to deal with this case on the more limited basis that, on the facts of this case, there are no grounds to warrant the grant of judicial review as sought by the plaintiff or at all.
Although this court has the power to undertake judicial review and grant remedies by way of prerogative writs in the form of mandamus, certiorari and prohibition, under RSC O 56 and also by way of injunction or declaration ‑ RSC O 18 r 16 and RSC O 58 r 11 and s 25(6) of the Supreme Court Act 1935 (WA) ‑ the availability of judicial review does not amount to a general right to have reviewed upon the merits a decision or decisions which are entrusted by statute to another tribunal, whether statutory or private. So it is said that judicial review does not encompass merits review: Attorney‑General v Quin (1990) 170 CLR 1, 37 ‑ 38 (Brennan J).
The obligations to afford natural justice involve an obligation to afford a variety of forms of procedural fairness and not merely to allow the person concerned an opportunity to be heard. That obligation includes an opportunity being given to a person to deal with adverse information that is credible, relevant and significant to the decision to be made: Kioa v West (1985) 159 CLR 550, 629 (Brennan J); and Saeed v Minister for Immigration and Citizenship [2010] HCA 23 [2]; (2010) 241 CLR 252, 256. In the latter case their Honours reiterated the decision in Annetts v McCann (1990) 170 CLR 596 where it had been decided that it could now be taken as settled that when a statute confers power to destroy or prejudice a person's rights or interests, principles of natural justice regulate the exercise of that power.
These considerations led, in Saeed v Minister for Immigration and Citizenship, to the conclusion that neither the context nor s 51A of the Migration Act 1958 (Cth) nor the provisions with which it interacted warranted the exclusion of the natural justice hearing rule from the consideration of an application by a visa applicant who was not in the migration zone. Unmistakeable and unambiguous language was required to displace fundamental principles of common law such as natural justice. In that decision the High Court held that the statutory limitation on the application of the rules of natural justice was restricted in relation to the matters specifically dealt with by the specified provisions in the legislation but that this still left other scope for the application of the rule. Any submissions that the rules of natural justice do not apply to applications before the PRB for the hearing of an application for parole, or to the reconsideration of such a hearing because of s 115 would, therefore, need to be considered closely in regard to the essential, and possibly limited, scope of the restriction of those principles consistent with the decision in Saeed v Minister. Just how and to what extent these principles may affect the proper interpretation of s 115 of the Sentence Administration Act will need to await determination on some later occasion.
This is a subject which has been the subject of extra curial reference by French J in the Chief Justice's recent paper 'Procedural Fairness ‑ Indispensable To Justice?' (Speech delivered at the Sir Anthony Lecture, University of Melbourne Law School, 7 October 2010) 2, 3.
The realisation that judicial review does not of itself encompass merits review except to the extent that judicial review may entail a consideration of whether or not the decision was so unreasonable as to be beyond the scope of any proper exercise of the discretionary power or statutory power (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 233, 229 ‑ 230 but subject to the reservations expressed in R v Minister for Immigration; Ex parte Applicant 520/2003 (2003) 198 ALR 59 - see generally Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, 2009)) entails acceptance of the proposition that a court cannot, in the course of judicial review, review the merits of the decision under consideration or give weight to various factors which may have been regarded, or potentially regarded, by the decision maker as relevant considerations: Re Metropolitan Health Service Board; Ex parte Reed [2003] WASCA 123 [105]; Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286; and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 ‑ 41.
Consequently, submissions or assertions by the plaintiff that the PRB was in error in concluding that he would be a risk to the community if released on parole or that he had achieved only limited benefit from the sexual offender treatment programmes which he had undertaken are not issues which can be canvassed in the circumstances of this case. Similarly, the plaintiff's attempts to refute the conclusions of the PRB in reaching its decision to refuse parole, or to introduce other facts or circumstances which, in his submission, should lead to a contrary conclusion being drawn on the merits are, for the same reasons, misunderstand the limited scope of judicial review.
There is no suggestion by the plaintiff, nor any basis for concluding, that there has been any jurisdictional error by the second defendant in reaching its decisions and, consequently, prerogative relief in the form of a writ of certiorari will not issue: Craig v South Australia (1995) 184 CLR 163, 176.
Counsel for the defendants also submitted that relief in the form of judicial review, whether prerogative relief or declaratory relief, is a discretionary remedy and will not be ordered if it would be futile: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; and Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372. This proposition must, of course, be accepted but the defendants then proceeded to submit that any remedy in this case would be futile because the plaintiff is due for release from prison on 20 January 2011. According to that submission, any decision to quash the decision refusing parole or to require the application for parole to be reconsidered by the second respondent would inevitably mean that the matter could not be determined before 20 January 2011 and that, therefore, would not result in any practical advantage. It is not necessary to examine this submission in any greater detail because I am satisfied that there is no basis to grant any form of relief and, that being the case, it is unnecessary to consider whether or not relief should be declined in the exercise of discretion.
There has been no attempt made by the plaintiff to obtain or seek access to any other documents obtained by or relied upon by the PRB for the purposes of determining his application for parole or on the review of that decision. It is apparent from his affidavit that the plaintiff made an application under the Freedom of Information Act 1992 (WA) for a list of materials relied upon by the second defendant for the purposes of determining his application for parole. Having obtained such a list, he has not suggested that it was inadequate or that he is entitled to access any particular document or documents or further documents. The only significance attached to the information emerging from the Freedom of Information Act request made by the plaintiff is his contention that the PRB did not have the report of his sexual offenders treatment programme which had been referred to at par 18 of his first affidavit when making its decision ‑ an inference which Mr Rennardson drew from the absence of any reference to that report in the list of materials supplied to him as a result of the FOI request. In fact, however, as the affidavit of Ms Holland has since established, the second defendant did have that report and did consider it at the time it made its decisions. Consequently, none of the issues referred to by Martin CJ in Kirby v Prisoners Review Board [2010] WASC 243, or in the sequel to that decision, Kirby v Prisoners Review Board [No 2] [2010] WASC 280, arise in the present case. Nor do the factors considered by the Court of Appeal in Prisoners Review Board v Freeman [2010] WASCA 166 arise in this case.
Accordingly, the determination of the applicant's claim for judicial review can be dealt with on a simple and uncontroversial basis. A decision was made by the PRB to refuse his application for parole and a subsequent application by the plaintiff for a reconsideration of that decision was undertaken but refused. The only bases upon which it is contended that the first of those decisions was wrong or reviewable were that the plaintiff submitted that errors of fact or erroneous conclusions had been drawn by the PRB on the merits of his case, yet it is clear that there was evidence before the second defendant which was capable of supporting its decisions. There being no scope for any successful contention that there was any error of law or error of jurisdiction by the PRB in reaching either of the decisions under challenge, there is no scope for the grant of any form of judicial review. Likewise, there is no occasion to refer this case or any point arising from it to the Court of Appeal under s 43 of the Supreme Court Act or otherwise.
It is for these reasons that I dismissed the plaintiff's application at the end of the hearing, indicating that I would amplify my reasons for doing so, as I now have done by these reasons.