Seiffert v Prisoners Review Board [No 4]
[2011] WASC 24
•3 FEBRUARY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SEIFFERT -v- PRISONERS REVIEW BOARD [No 4] [2011] WASC 24
CORAM: MARTIN CJ
HEARD: ON THE PAPERS
DELIVERED : 3 FEBRUARY 2011
FILE NO/S: CIV 1872 of 2010
BETWEEN: JASON ANDREW SEIFFERT
Applicant
AND
PRISONERS REVIEW BOARD
RespondentATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA
Intervenor
FILE NO/S :CIV 1910 of 2010
BETWEEN :LENNARD MARK KIRBY
Applicant
AND
PRISONERS REVIEW BOARD
RespondentATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA
Intervenor
FILE NO/S :CIV 1912 of 2010
BETWEEN :MICHAEL LANCE LITTLEFAIR
Applicant
AND
PRISONERS REVIEW BOARD
RespondentATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA
Intervenor
Catchwords:
Applications to amend orders nisi to insert new grounds for relief
Legislation:
Public Sector Management Act 1994 (WA), s 7(h)
Sentence Administration Act 2003 (WA), s 107B(4), s107B(5), s 115A(6), s 115A(7)
Result:
Applications dismissed
Category: B
Representation:
CIV 1872 of 2010
Counsel:
Applicant: No appearance
Respondent: No appearance
Intervenor: No appearance
Solicitors:
Applicant: Thames Legal
Respondent: No appearance
Intervenor: State Solicitor's Office
CIV 1910 of 2010
Counsel:
Applicant: No Appearance
Respondent: No appearance
Intervenor: No appearance
Solicitors:
Applicant: Holborn Lenhoff Massey
Respondent: No appearance
Intervenor: State Solicitor's Office
CIV 1912 of 2010
Counsel:
Applicant: No appearance
Respondent: No appearance
Intervenor: No appearance
Solicitors:
Applicant: Amidzic Lawyers
Respondent: No appearance
Intervenor: State Solicitor's Office
Case(s) referred to in judgment(s):
Cazaly Iron Pty Ltd v Bowler [2006] WASCA 282
MARTIN CJ:
Introduction
In each of these cases, the applicant seeks to amend the grounds upon which he seeks relief.
The parties have agreed that I can deal with the applications to amend on the basis of the written submissions they have filed, without the need for a hearing.
Each applicant seeks prerogative and other associated relief against the Prisoners Review Board (the Board) in respect of decisions made by that Board under the Sentence Administration Act 2003 (WA) relating, generally speaking, to the revocation of their parole. As these reasons are concerned only with an application to amend the grounds upon which relief is sought, it is unnecessary to catalogue the decisions of the Board that are attacked, or the various grounds upon which relief is sought. Because the terms of the amendment sought in each case are substantively identical, and the issues which arise in respect of each amendment are exactly identical, it is convenient to provide joint reasons for my decision to disallow the amendments.
The proposed amendments
Each applicant seeks to amend the grounds upon which relief is sought to assert that the Board was under a duty to record the reasons for the impugned decision accurately in minutes of the relevant meeting of the Board, and also to record in those minutes the members of the Board who had voted in favour of the impugned decision. The amendment sought alleges that the duties asserted were breached by the Board's failure to record accurately, in minutes of the relevant meeting, the reasons for the impugned decision or the members of the Board who had voted in favour of that decision.
The test to be applied to the proposed amendment
In written submissions filed on behalf of the intervenor in these proceedings (the Attorney General of Western Australia), a number of case management issues are raised concerning the time at which the amendments are sought, and their possible impact upon the efficient preparation of these matters for a hearing which has been listed in the Court of Appeal commencing on 2 March 2011. However, it seems to me that those issues are essentially subsidiary to the primary question which I have to determine, which is whether the proposed amendments give rise to an arguable ground upon which relief might be granted: Cazaly Iron Pty Ltd v Bowler [2006] WASCA 282 [52] ‑ [55] It is that issue which I will address in these reasons.
The asserted duty to record reasons
Particulars of the source of the asserted duty to record reasons in minutes of the meeting are given in each proposed amendment. No reliance is placed upon any duty at common law. Rather, the duty is said to arise entirely from particularised statutory sources. Those sources are said to be a number of provisions of the Sentence Administration Act, and one section of the Public Sector Management Act 1994 (WA).
The sections of the Sentence Administration Act which are relied upon are s 107B(4) and (5), and s 115A(6) and (7). Section 107B(1) imposes a statutory duty upon the Board to give written notice of decisions. Subsections 107B(4) and (5) then require that this notice include reasons for the decision and, if the decision is a reviewable decision as defined in s 115A, notice of the right of review. In each case, the existing grounds assert breach of the duty to give reasons to the applicant. Each proposed amendment asserts that, by reason of the duty to give reasons, there is a separate and distinct duty to record reasons in the minutes. I am unable to see any basis for importing that duty into the statutory provisions to which I have referred. The duty to give reasons is adequately discharged by the provision of a notice which provides the reasons of the Board for making a relevant decision, irrespective of whether or not those reasons were recorded in minutes maintained by the Board.
The provisions of s 115A of the Sentence Administration Act that are also relied upon to provide a basis for the asserted duty specify the grounds upon which a review may be sought of a decision of the Board, and the formal requirements of a request for a review. I am, with respect, quite unable to see any basis upon which those statutory provisions, either read in isolation or in combination with the other provisions of the Act considered above, could arguably give rise to the asserted duty to record reasons for the Board's decision in its minutes. Whether or not the requirements for a valid request for review are met will depend upon whether or not the statutory provisions are satisfied, irrespective of whether or not there are minutes of the Board's meeting in a particular form.
The provision of the Public Sector Management Act which is relied upon to give rise to the asserted duty is s 7(h). That section provides relevantly:
The principles of public administration and management to be observed in and in relation to the Public Sector are that:
…
(h)proper standards are to be maintained at all times in the creation, management, maintenance and retention of records.
The section establishes principles of public administration. It does not establish enforceable duties or corresponding rights. The function performed by the general principles enunciated in s 7, within the Public Sector Management Act as a whole, is to identify matters with which various persons engaged in that Act, such as Chief Executive Officers, are to comply (s 30) and which the Commissioner must promote (s 21A). There is no provision in the Act which purports to specifically impose any duties upon a statutory entity such as the Board, albeit that the Act creates mechanisms by which those serving the Board might be encouraged to comply with the principles enunciated in the Act. Nor is there any provision in the Act capable of supporting an argument that it creates rights enforceable by those who might be affected by public administration, such as these applicants.
Turning now to the asserted obligation to record which members of the Board had voted for the impugned decision, the statutory provision relied upon in support of that asserted duty is cl 5(4)(b) of sch 1 to the Sentence Administration Act. However, that clause simply provides that at meetings of the Board, questions arising are to be determined by a majority of the members present and voting. There is no provision of that clause which requires the identity of the members voting for the impugned decision to be recorded in minutes maintained by the Board.
For these reasons, I have concluded that there is no arguable basis for the existence of either of the duties asserted in the proposed amendments, which should be disallowed.
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