Seiffert v Prisoners Review Board [No 2]
[2010] WASC 244
•7 SEPTEMBER 2010
SEIFFERT -v- PRISONERS REVIEW BOARD [No 2] [2010] WASC 244
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASC 244 | |
| Case No: | CIV:1872/2010 | 18 AUGUST 2010 & ON THE PAPERS | |
| Coram: | MARTIN CJ | 7/09/10 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed in part | ||
| B | |||
| PDF Version |
| Parties: | JASON ANDREW SEIFFERT PRISONERS REVIEW BOARD ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Practice and procedure Application to inspect documents which have been produced to the court |
Legislation: | Constitution of the Commonwealth of Australia Sentence Administration Act 2003 (WA), s 109, s 115 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
PRISONERS REVIEW BOARD
Respondent
ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA
Intervenor
Catchwords:
Practice and procedure - Application to inspect documents which have been produced to the court
Legislation:
Constitution of the Commonwealth of Australia
Sentence Administration Act 2003 (WA), s 109, s 115
(Page 2)
Result:
Application allowed in part
Category: B
Representation:
Counsel:
Applicant : Dr J T Schoombee
Respondent : No appearance
Intervenor : Mr G T W Tannin SC & Ms S J Keighery
Solicitors:
Applicant : Thames Legal
Respondent : No appearance
Intervenor : State Solicitor's Office
Case(s) referred to in judgment(s):
Nil
(Page 3)
- MARTIN CJ:
Introduction
1 These are the reasons for my determination of an application to inspect documents which have been produced to the court.
Background
2 In these proceedings, the applicant seeks certiorari and related relief quashing a decision made by the Prisoners Review Board on or about 6 May 2009 to cancel his parole. The respondent, the Prisoners Review Board (the Board), has filed a submitting appearance and has indicated that it will take no substantive part in these proceedings. The Attorney General of Western Australia has intervened.
3 The applicant sought inspection and/or discovery of a wide category of documents. The Board indicated that it opposed the provision of inspection of any of the documents it possessed by the applicant, or solicitors and counsel acting on his behalf, on a variety of policy grounds. However, no evidence has been placed before the court by the Board in relation to those matters, and the Board has advised that it does not propose to appear through counsel in order to pursue that opposition.
4 The intervenor also opposed the inspection sought by the applicant. That is a little surprising, given that the intervenor does not represent the Board, and would not appear to have a direct interest in the issue of inspection. At one point the intervenor suggested that it would be inappropriate to deal with these issues prior to the grant of the order nisi. However, all parties had previously proposed that the question of the grant of the order nisi should be referred to the Court of Appeal to be heard at the same time as argument on the substantive proceedings. When I pointed out the obvious impracticality of deferring issues with respect to inspection of documents which the applicants sought for the purposes of that hearing until the hearing itself, the intervenor expressly withdrew the submission which had been put with respect to the time at which these matters should be determined.
5 In those circumstances, for reasons which I gave at the time, I concluded that the appropriate course was to require the Board to produce the documents sought to the court, and to provide the intervenor with the opportunity to inspect the documents in order to advise the court whether any claim was made for immunity from inspection on public interest grounds. I set out a timetable for that process to occur. In the meantime, I
(Page 4)
- have reviewed all the documents produced by the Board other than those in respect of which the intervenor claims immunity from inspection on public interest grounds. These reasons deal with the extent to which the applicant should be provided with the opportunity to inspect those documents.
The grounds of review
6 The applicant challenges the decision of the Board on a number of grounds. In very general terms, he asserts that he was denied procedural fairness, because he was not notified of the grounds upon which the Board was considering cancelling his parole, or given any opportunity to place material before the Board. He further asserts that the Board erred in refusing to exercise the power to permit him to appear before the Board (conferred by s 109 of the Sentence Administration Act 2003 (WA) (the Act), because the Board's failure to exercise that power denied him procedural fairness, and also because it was pursuant to a fixed policy which does not comply with the Act. The applicant also asserts that the Board failed to comply with an obligation to provide him with adequate reasons for its decision. He also asserts that the Board's decision is invalid because an irrelevant consideration was taken into account, being allegations relating to the applicant's participation in a programme provided by Relationships Australia, and that there was no evidence to support the matter taken into account by the Board in this regard. The applicant further asserts that if and to the extent that s 115 of the Act would validate the impugned conduct of the Board or preclude judicial review of the Board's actions and decisions, that section is void because it is inconsistent with ch III of the Constitution of the Commonwealth of Australia.
7 The applicant has filed an affidavit in support of his application. As I have indicated, the Board does not propose to take any substantive part in these proceedings. It therefore seems unlikely that any evidence will be adduced on behalf of the Board.
8 It is trite to observe that proceedings of this kind do not give the court jurisdiction to review the merits of the decision taken by the Board. Nor do they confer upon the applicant an unbridled opportunity to challenge any and all aspects of the Board's processes. Rather, the onus is upon the applicant to show that the Board erred in one or more of the particular ways he asserts, with the result that it exceeded its jurisdiction. In these circumstances, it would be quite wrong to permit an application for inspection of documents maintained by the Board to become a fishing
(Page 5)
- expedition, allowing the applicant or his advisors to trawl through the documents to ascertain whether or not they might reveal some other point not currently enunciated in the grounds of review.
9 I ordered the Board to produce the documents to the court in the exercise of the powers conferred upon the court to ensure that there is a fair trial of these proceedings. Ordinarily that will require that the parties to proceedings be given access to information and evidentiary materials relevant to the case which they advance, or to the case against them, subject, of course, to the constraints imposed by other legitimate considerations, such as the intervenor's claim that some of the documents produced by the Board should be privileged from inspection on public interest grounds.
10 Having regard to the nature of the Board's functions, the fact that these proceedings do not constitute review of the Board's decision on its merits, and the undesirability of allowing the processes of the court to be subverted by a 'fishing expedition', I have taken the approach that the applicant should only be permitted to inspect documents produced to the court that are directly relevant to the factual issues raised by the grounds of review.
11 When regard is had to those grounds, it will be seen that the factual issues which they raise are narrow in compass. There is, I would assume, no dispute that the applicant was not provided with notice of the grounds upon which cancellation of his parole was under consideration, or given the opportunity to place material before the Board, or to appear before it. Further, the issues which the applicant seeks to raise in relation to the assertion that the Board has a fixed rule of not allowing persons to appear before it are not illuminated by any materials or documents peculiar to this applicant. The reasons given by the Board for the decision speak for themselves, and the issue raised with respect to the constitutional invalidity of s 115 of the Act is, of course, purely a question of law.
12 From this analysis of the grounds of review, it seems that the only contentious areas of fact concern the question of whether the Board took into account issues and allegations of which the applicant should have been given notice, and the opportunity to respond to, and the question of whether there was no evidence before the Board to sustain its reliance upon allegations made in respect of the applicant's conduct in connection with the programme offered by Relationships Australia.
(Page 6)
13 Having reviewed all the documents produced to the court by the Board for the purpose of ascertaining which, if any, documents had been produced were relevant to these issues, other than the documents in respect of which immunity from inspection is claimed on public interest grounds, I have concluded that only one of the documents is relevant to the issues enunciated in the grounds, and should be made available to the applicant. That is the document numbered 120 in the list provided by the Board, being a copy of a letter directed to the applicant giving him notice of the revocation of his parole, and the reason for that revocation. The applicant asserts that he never received that document, and the reason given in it is relevant to the grounds of review to which I have referred.
14 Many of the documents produced by the Board involve correspondence between the Board and the applicant. I have undertaken my analysis on the assumption that these documents are available to the applicant, and indeed a number of them are annexed to his affidavit. For that reason, with the exception of the document to which I have just referred, which the applicant asserts he never received, I have assumed that ordering inspection of correspondence between the applicant and the Board would serve no forensic purpose, as the applicant already has access to those documents anyway. If that assumption is not correct, the applicant's legal advisors will be in a position to advise the court of any documents in this category which they do not have, as they have a list of the documents produced by the Board to the court.
15 For these reasons I direct that the applicant be provided with the opportunity to inspect the document to which I have referred. As it is a document addressed to, and intended for, the applicant, I see no reason why that inspection should be constrained by any undertakings as to confidentiality or otherwise.
16 Following the determination of the issues raised with respect to public interest immunity, it will be necessary to revisit the issue of the relevance of any documents in respect of which that claim is rejected.
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