Seiffert v The Prisoners Review Board - [2023] WASCA 15

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SEIFFERT -v- THE PRISONERS REVIEW BOARD [2023] WASCA 15
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   1 NOVEMBER 2022
FINAL WRITTEN
SUBMISSIONS      :   6 DECEMBER 2022
DELIVERED          :   1 FEBRUARY 2023
FILE NO/S:   CACV 111 of 2020
BETWEEN:   JASON ANDREW SEIFFERT
Appellant
AND
THE PRISONERS REVIEW BOARD
THE STATE OF WESTERN AUSTRALIA
Respondents

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MASTER SANDERSON
Citation: SEIFFERT -v- THE PRISONERS REVIEW BOARD [2020] WASC 370
File Number            :   CIV 1561 of 2017

Catchwords:

Practice and procedure - Strike–out application - Where master struck out pleading and refused leave to replead - Whether it could be said that appellant could not plead an arguable claim - Whether master erred in refusing leave to replead

Tort - Duty of care - Prisoners Review Board invested with statutory powers to grant, suspend and cancel parole - Where statutory provisions requiring the Board to give reasons for cancelling parole and to give notice of the statutory right of review - Where appellant sentenced to life imprisonment - Where Prisoners Review Board granted parole to appellant and subsequently cancelled his parole - Whether the Board or its members owed to a prisoner a duty of care in negligence in exercising the power to cancel parole - Whether the State of Western Australia vicariously or directly liable for any negligence of the Board or its members - Whether appellant had any arguable claim against the State of Western Australia

Legislation:

Sentence Administration Act 2003 (WA), s 5B, s 25, s 73, s 107B, s 115A

Result:

Appeal allowed
Orders 2, 3 and 4 of the master's orders set aside
Appellant granted leave to file and serve substituted statement of claim

Category: A

Representation:

Counsel:

Appellant	:	N Lucarelli KC, B L Nugawela & M Tolcon
Respondents	:	CJ Thatcher SC & JN Harman

Solicitors:

Appellant	:	Forbes Kirby
Respondents	:	State Solicitor's Office

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

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209; (2012) 6 ARLR 120
Apache Energy Ltd v Alcoa of Australia Ltd [No 2] [2013] WASCA 213; (2013) 45 WAR 379
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202
Caltex Refineries (Queensland) Pty Limited v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 64
Casella v Hewitt [2008] WASCA 13; (2008) 36 WAR 1
Construction Industry Training Board v Transfield Services (Australia) Pty Ltd [2017] SASCFC 103; (2017) 128 SASR 475
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1
Ea v Diaconu [2020] NSWCA 127; (2020) 102 NSWLR 351
Electricity Networks Corporation t/as Western Power v Herridge Parties [2022] HCA 37
Gardiner v The State of Victoria [1999] VSCA 100; [1999] 2 VR 461
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Herridge Parties v Electricity Networks Corporation t/as Western Power [2021] WASCA 111
Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365
Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334
Jane Doe v Fairfax Media Publications [2018] NSWSC 1996
Matthews v SPI Electricity Pty Ltd (No 2) [2011] VSC 168; (2011) 34 VR 584
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; (2016) 315 FLR 305
Neilson v City of Swan [2006] WASCA 94
NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107
NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; (2004) 219 CLR 90
O'Connor v S P Bray Ltd (1937) 56 CLR 464
Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330
Queanbeyan City Council v ACTEW Corporation Ltd [2011] HCA 40; (2011) 244 CLR 530
R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58
Schulz v Schmauser [2000] QCA 17; [2001] 1 Qd R 540
Seiffert v The Prisoners Review Board [2011] WASCA 148
Seiffert v The Prisoners Review Board [2020] WASC 370
SGH Ltd v Commissioner of Taxation [2002] HCA 18; (2002) 210 CLR 51
Slivak v Lurgy (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304
Smith v Iffla (1881) 7 VLR 435
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79; (2012) 42 WAR 287
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 161 CLR 639
Stuart v Kirkland‑Veenstra [2009] HCA 15; (2009) 237 CLR 215
Sue v Hill [1999] HCA 30; (1999) 199 CLR 462
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562
Superannuation Fund Investment Trust v Commissioner of Stamps of the State of South Australia (1979) 145 CLR 330
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
The Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424
The State of South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331
The State of South Australia v O'Shea (1987) 163 CLR 378
Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 282
TransAdelaide v Evans [2005] SASC 175; (2005) 98 SASR 394
Trevorrow v The State of South Australia (No 5) [2007] SASC 285; (2007) 98 SASR 136
Tulloh v The State of Western Australia [2020] WASCA 10
Vickery v The Owners - Strata Plan No 80412 [2020] NSWCA 284; (2020) 386 ALR 153
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1
X (Minors) v Bedfordshire County Council [1995] 2 AC 633
X v The State of South Australia (No 3) [2007] SASC 125; (2007) 97 SASR 180

TABLE OF CONTENTS

Introduction

Statutory provisions

SA Act: relevant provisions

The appellant's application for judicial review in 2010

Background facts relevant to the first claim

The earlier pleadings

The pleadings and amended indorsement of claim

The Substituted SOC

The respondents' application to strike out the Substituted SOC

The primary reasons

Grounds of appeal

The PSSSOC

Functions of the Board

The Board as an emanation of the Crown

The appellant's first claim, arising from the cancellation order

The Board's statutory duties to the appellant

The State's duty of care

Breach of duty of care

Causation and damage

Breach of statutory duty as to the cancellation order

The appellant's second claim: unreasonable delay in the making of the second parole order

Pleaded facts

Duty of care

Breach

Causation

Loss and damage

The appellant's third claim: the excessive parole term

Duty of care

Breach

Causation

Loss

Breach of statutory duty as to excessive parole term

Appellant's submissions

The first claim: common law duty of care relating to s 107B and s 115A

Existence of the duty

Identifying loss

Causation

Breach of statutory duty relating to s 107B and s 115A

The second claim: common law duty - the unreasonable delay claim

The third claim: common law duty - excessive parole term claim

Breach of statutory duty - 'Excessive Parole Term Claim'

Ground 1

Respondents' submissions

Overview

Ground 2

Cause of action for breach of statutory duty

Cause of action in negligence

Summary dismissal: legal principles

The substance of the appellant's first claim

The negligence claim: is the master's reasoning erroneous?

Is the pleaded duty of care arguable?

Incoherence or inconsistency?

The importance of statutory context in evaluating an alleged duty of care

Is the propounded duty inconsistent with the statutory regime?

Other matters emphasised by the respondents

Is the State arguably liable for any negligence of the Board or its members?

Vicarious liability?

Direct liability - emanation of the Crown?

Conclusion on negligence claim

Action for breach of statutory duty?

The appellant's second claim: unreasonable delay in the making of the second parole order

The appellant's third claim: excessive parole term claim

Conclusion

JUDGMENT OF THE COURT:

Introduction

In 1997, the appellant was convicted of murder and sentenced to life imprisonment with a non‑parole period of 10 years. He was released on parole in 2007 for a parole period of 2 years. In 2009, not long before his parole period was due to end, the Prisoners Review Board (the Board) cancelled the appellant's parole and he was returned to custody. His requests for a statutory review of the decision by the Board were unsuccessful.
In December 2014, he was placed on 3 years' parole.
The appellant commenced the primary proceedings against the first respondent, the Board, and the second respondent, the State of Western Australia (the State).
He appeals against the master's decision striking out his pleading, refusing leave to replead and entering judgment.
In response to orders made by this court, the appellant has filed the proposed second substituted statement of claim (PSSSOC), pleading the claims (as amended in the appeal hearing) which he contends he should be permitted to advance by the grant of leave to replead.
He now pursues his claim only against the State, having abandoned the claim against the Board, which is not a legal entity capable of being sued.
Broadly summarised, the appellant's case as pleaded in the pleading most recently struck out, namely the substituted statement of claim (Substituted SOC),[1] and in the PSSSOC, is that he is entitled to damages for breach of statutory duty and breach of a duty of care because of: (a) the Board's failure to (i) give him written notice as soon as practicable of its decision to cancel his parole, (ii) provide reasons for that decision, (iii) advise him of his statutory right of review in respect of that decision and (iv) review its decision to cancel his parole in a timely manner and upon accurate facts; (b) the State's failure to act with reasonable expedition in responding to the Board's parole recommendation in April 2013; and (c) the Board and the Minister's decision to recommend a parole term of 3 years, contrary to the Sentence Administration Act 2003 (WA) (SA Act).
[1] Substituted statement of claim filed 7 August 2019.
The respondents applied to strike out the Substituted SOC. The master struck out the pleading and entered judgment, finding that, taking into account all the material facts, the appellant could not plead a cause of action against the respondents that would sound in damages.[2]
[2] Seiffert v The Prisoners Review Board [2020] WASC 370 [2] (primary reasons).
The appellant advances two grounds of appeal. Ground 1 contends that the master erred in striking out the Substituted SOC without granting leave to replead. Ground 2 contends that the master erred in law in finding that on all the material facts the appellant could not plead a cause of action that would sound in damages.
For the reasons that follow, we would uphold the appeal, set aside the master’s orders dismissing the action and grant leave to the appellant to replead his case so as to advance his first and third claims described in [7] above.
It is convenient to begin by outlining the applicable statutory provisions, because those provisions are integral to understanding the course of events and to the claims sought to be advanced by the appellant.

Statutory provisions

At the time of his sentencing in 1997, the appellant's imprisonment was governed by the provisions of the Sentencing Act 1995 (WA) and the Sentence Administration Act1995 (WA). On 31 August 2003, the SA Act came into operation. The SA Act applied to the granting and cancellation of the appellant's parole.[3] We set out below the provisions of that Act applicable at the time the appellant’s causes of action accrued.

SA Act: relevant provisions

[3] Sentencing Legislation Amendment and Repeal Act 2003 (WA) s 29(1), sch 1 cl 5(3).

Section 5B of the SA Act is entitled '[c]ommunity safety paramount'. It says that '[t]he Board or any other person performing functions under this Act must regard the safety of the community as the paramount consideration'.
Part 3 of the SA Act is headed 'Parole'. By s 25 of the SA Act, contained in div 5 of pt 3, the power to make a parole order in the case of a prisoner serving a life sentence is vested in the Governor:
25. Life imprisonment, Governor may parole prisoner
(1)The Governor may make a parole order in respect of a prisoner serving life imprisonment for murder but only if —
(a)a minimum period has been set under section 90(1)(a) of the Sentencing Act 1995; and
(b)the prisoner has served the minimum period; and
(c)a report has been given by the Board to the Minister under section 12 or 12A.
(1A) The Governor may make a parole order in respect of a prisoner serving life imprisonment for an offence other than murder but only if -
(a)the prisoner has served the period required by section 96(1) of the Sentencing Act 1995; and
(b)a report has been given by the Board to the Minister under section 12 or 12A.
(2)The release date in the order is that set by the Governor.
(3) The parole period in the order is to be set by the Governor and must be at least 6 months and not more than 5 years.

Division 6 of pt 3 of the SA Act is headed 'Parole orders' and comprises s 28 to s 31. Section 28 provides for the nature of a parole order, s 29 and s 30 deal with obligations on parolees, and s 31 deals with supervision of the prisoner while on parole.
Division 9 of pt 3 concerns suspension of parole orders.
Division 10 concerns cancellation of parole orders. By s 44, the Board may cancel a parole order made by the Board or the Governor at any time during the parole period.
By s 48(1), if, in respect of a prisoner subject to a parole order made by the Governor, the order is cancelled under div 10, the Board must give the Minister, as soon as practicable, written notice of, and reasons for, the decision, a summary of the grounds and any submissions in an application for review made by the prisoner under s 115A, and a report containing a recommendation as to whether or not the Governor should be advised to again exercise the power to release the prisoner on parole. By s 48(2), the Governor may cancel a decision referred to in subsection (1), relevantly, a decision to cancel a parole order.
Section 73 of the SA Act provides:
73.Re‑release after cancellation of parole order made by Governor
(1)If a parole order made by the Governor is cancelled under section 43 or 44 or by virtue of section 67, the Governor may subsequently make another parole order in respect of the prisoner.
(2)The parole period in the subsequent parole order is to be set by the Governor and must be at least 6 months, not more than 5 years, and not longer than the parole period of the cancelled parole order.
Section 102 of the SA Act establishes the Board and s 103 provides for its membership. Section 103 of the SA Act provides as follows:
103. Membership
(1)The members of the Board are -
(a)a chairperson, to be nominated by the Minister and appointed by the Governor;
(b)at least 2 deputy chairpersons, to be nominated by the Minister and appointed by the Governor;
(c)as many community members as are necessary to deal with the workload of the Board, to be nominated by the Minister and appointed by the Governor;
(d)as many officers of the Public Sector agency of which the CEO is the chief executive officer as are necessary to deal with the workload of the Board, to be appointed by the CEO; and
(e)as many police officers as are necessary to deal with the workload of the Board, to be appointed by the Commissioner of Police.
(2)The Minister must not nominate a person as the chairperson unless -
(a)the person -
(i)is a judge of the Supreme Court or the District Court; or
(ii)is a retired judge of one of those courts;
and
(b)if paragraph (a)(i) applies to the person, the Minister has consulted the Chief Justice or the Chief Judge of the District Court (as the case may be) about the nomination.
(3)The Minister must not nominate a person as a deputy chairperson unless the person has, in the Minister’s opinion, extensive or special knowledge of matters involved in the performance of the Board’s functions.
(4)The Minister must not nominate a person as a community member unless the Minister is satisfied -
(a)that the person is able to make an objective and reasonable assessment of the degree of risk that the release of a prisoner would appear to present to the personal safety of people in the community or of any individual in the community; and
(b)that the person has one or more of the following attributes -
(i)the person has a knowledge and understanding of the impact of offences on victims;
(ii)the person has a knowledge and understanding of Aboriginal culture local to this State;
(iii)the person has a knowledge and understanding of a range of cultures among Australians;
(iv)the person has a knowledge and understanding of the criminal justice system;
(v)the person has a broad experience in a range of community issues such as issues relating to employment, substance abuse, physical or mental illness or disability, or lack of housing, education or training.
(5)In nominating persons as community members the Minister is to ensure that at all times at least one community member has the attribute mentioned in subsection (4)(b)(i) and at least one community member is an Aboriginal person who has the attribute mentioned in subsection (4)(b)(ii).
(6)On appointing a member of the Board under subsection (1)(d) or (e), the CEO or the Commissioner of Police, as the case may be, must give written notice of the appointment to —
(a)the person appointed; and
(b)the registrar of the Board.
Section 105 provides that sch 1 has effect in relation to the Board. Schedule 1 sets out a number of detailed provisions concerning, among other things, the term of office of members of the Board, resignation, the termination of appointments to the Board, the conduct of meetings, the conditions of service of members of the Board and leave of absence.
By s 106(3), a member of the Board, other than the Chairperson, must comply with any relevant public sector standard or code of ethics established under s 21 of the Public Sector Management Act 1994 (WA) when performing functions as a member of the Board.
Section 107 provides that, for the purpose of carrying out its functions, the Board and its Chairperson and members have and may exercise the powers that a Royal Commission and its Chairman and Commissioners have under the Royal Commissions Act 1968 (WA).
Section 107B of the SA Act sets out requirements of the Board which, on the appellant's case, it failed to fulfil. The section is in the following terms:
107B.Notification of Board’s decisions
(1)The Board must give a prisoner written notice of any decision made under this Act in respect of the person as soon as practicable after the decision is made.
(2)The Board must give the CEO written notice of any decision made under this Act in respect of a prisoner as soon as practicable after the decision is made.
(3)Without limiting subsections (1) and (2), they apply -
(a)to a decision, whether by the Board or the Governor, not to make an early release order in respect of a prisoner;
(b)to a decision to make a parole order in which the release date is not the day when, under section 23(2) or section 93(1) of the Sentencing Act 1995, the prisoner is eligible to be released on parole;
(c)to a decision, whether by the Governor or the Board, to amend, suspend or cancel an early release order; and
(d)to a decision by the Board not to make a request under section 13(4) after receiving a report under section 13(3) or not to endorse, with or without variations, a re-socialisation programme received under section 13(4),
and, in the case of subsection (1) -
(e)to a decision by the CEO to suspend an early release order.
(4)Subject to section 114, a notice under subsection (1) or (2) must include the reasons for the decision.
(5)If the decision is a reviewable decision, as that term is defined in section 115A, a notice under subsection (1) must inform the prisoner of the effect of section 115A.

Section 114, to which s 107B(4) is subject, empowers, relevantly, the Board to decide that it would be in the interest of the prisoner or any other person, or the public, to withhold from the prisoner any or all of the reasons, and to so withhold. There is no suggestion that the Board invoked s 114 in the present case.
Section 115 excludes the rules of natural justice from the doing or omission of any act under pts 2 ‑ 6 by, among others, the Governor or the Board. Parts 2 - 6 encompass s 5 to s 82.
Section 115A provides for a statutory review of decisions about release in the following terms:
115A. Board may review decisions about release
(1)In this section -
reviewable decision has a meaning in accordance with subsections (2), (3) and (4).
(2)Subject to subsection (4), a decision made -
(a)by the Board not to make an early release order;
(b)by the Board to make a parole order in which the release date is not the day when, under section 23(2) or section 93(1) of the Sentencing Act 1995, the prisoner is eligible to be released on parole;
(c)by the Board to suspend or cancel an early release order;
(d)by the CEO to suspend an early release order;
(e)by the Board not to make a request under section 13(4) after receiving a report under section 13(3) or not to endorse, with or without variations, a re‑socialisation programme received under section 13(4); or
(f)by the Board as to the nature or content of a re‑socialisation programme endorsed under section 13(5) or approved under section 14(5),
is a reviewable decision.
(3)The regulations may provide that a decision of a prescribed kind made under the regulations is a reviewable decision.
(4)A decision under subsection (8), or by the Board on further considering a matter pursuant to a decision under subsection (8), is not a reviewable decision.
(5)A prisoner about whom a reviewable decision is made may request the Board to review the decision.
(6)A request may only be made on the grounds that the person who made the decision -
(a)did not comply with this Act or the regulations;
(b)made an error of law; or
(c)used incorrect or irrelevant information or was not provided with relevant information.
(7)A request must -
(a)be in writing;
(b)state the grounds for it; and
(c)include any submissions that the applicant wants to make to the Board about the decision concerned and the reasons for it.
(8)When a request is made, the chairperson of the Board must consider any submissions included in it and review the decision concerned and may -
(a)confirm, amend or cancel the decision;
(b)make another decision; or
(c)refer the decision to the Board for further consideration.
(9)The chairperson may delegate the functions in subsection (8) to a deputy chairperson.
(10)A deputy chairperson to whom the functions in subsection (8) are delegated must not decide any question of law but must refer it to the chairperson to decide.
(11)The Board must give the applicant written notice of any decision on a review requested under this section.

By s 4 of the SA Act, 'early release order' means a parole order or a re‑entry release order. A parole order is defined in s 4 to mean an order under pt 3 that a prisoner be released on parole, thus encompassing an order for parole made by the Governor under s 25.
Section 120, on which the appellant relies, provides:
120.Protection from liability for wrongdoing
(1)An action in tort does not lie against a person for anything that the person has done, in good faith, in the performance or purported performance of a function under this Act or the Sentencing Act 1995.
(2)The protection given by subsection (1) applies even though the thing done as described in that subsection may have been capable of being done whether or not this Act or the Sentencing Act 1995 had been enacted.
(3)Despite subsection (1), the Crown is not relieved of any liability that it might have for another person having done anything as described in that subsection.
(4)In this section, a reference to the doing of anything includes a reference to an omission to do anything.

The appellant's application for judicial review in 2010

The primary proceedings, which are the subject matter of this appeal, were not the first legal proceedings instituted by the appellant concerning the cancellation of his parole order.
In June 2010, the appellant commenced an application for a judicial review of the cancellation of his parole order, seeking orders quashing that decision.
The Court of Appeal dismissed the appellant's application for judicial review.[4] Martin CJ summarised the result of the application in the following terms:[5]
The applicant, Jason Andrew Seiffert, seeks orders quashing a decision of the Prisoners Review Board (the Board) made on 6 May 2009 cancelling a parole order which had been made on 6 June 2007, and associated relief. … For the reasons which follow, although Mr Seiffert has established that the Board breached statutory obligations by: (a) failing to provide him with notice of, and reasons for, its decision to cancel his parole and of his right to seek a review of its decision; (b) failing to provide him with an adequate statement of the reasons for its decision; and (c) adopting an inflexible policy with respect to the provision of an opportunity to a prisoner to appear before the Board, Mr Seiffert has failed to establish that the decision of the Board to cancel his parole was invalid or that it should be set aside by the court. The court should provide an opportunity to Mr Seiffert and the intervenor to present submissions as to the precise terms of the relief appropriately granted to give effect to these conclusions.
[4] Seiffert v The Prisoners Review Board [2011] WASCA 148.
[5] Seiffert v The Prisoners Review Board [1].
In the judicial review proceedings, the facts were not in contention. Martin CJ detailed the facts in terms consistent with the background facts referred to below.
Martin CJ found that the Board failed to comply with the obligations invoked by s 107B of the SA Act in three respects:[6]
(a)it failed to provide him with written notice of its decision to cancel his parole as soon as practicable;
(b)it failed to provide him with an adequate statement of the reasons for its decision; and
(c)it failed to provide him with notice informing him of the effect of s 115A of the Act.
[6] Seiffert v The Prisoners Review Board [155].
In so finding, Martin CJ concluded that the required content of the statement of reasons under s 107B is informed by the scope of the express right of review conferred by s 115A. Because the grounds upon which review may be sought extend to non‑compliance with the SA Act or regulations, errors of law, the use of incorrect or irrelevant information or the Board not having been provided with relevant information, the statement of reasons must be adequate to enable the person affected by the decision to bring his or her request for review on one or more of those grounds. In order to exercise the power of review conferred by s 115A, the person affected by the decision must be made aware of the information that was before the Board at the time it made its decision in order that he or she can assess whether that information was incorrect or irrelevant or omitted relevant information.[7] His Honour found that the statement of reasons provided to the appellant fell manifestly short of the content required by the SA Act, the appellant having been provided with nothing more than a bald conclusion expressed in the most general of terms.[8]
[7] Seiffert v The Prisoners Review Board [150].
[8] Seiffert v The Prisoners Review Board [153].
Martin CJ went on to observe that the consequence of this manifest failure to comply with the Board's statutory obligation was to induce the appellant to seek a review of the Board's decision based upon a misapprehension as to the reasons for that decision. While that misapprehension was evidently apparent to the Deputy Chairperson at the time he purported to determine the appellant's application for review, no step was taken to correct that misapprehension prior to the purported determination.[9]
[9] Seiffert v The Prisoners Review Board [153].
However, this court found that the appellant had failed to establish that the Board's failure to comply with the obligations under s 107B amounted to jurisdictional error or to non‑jurisdictional error on the face of the record. Consequently, the appellant did not establish the invalidity of the cancellation of his parole.

Background facts relevant to the first claim

The PSSSOC pleads background facts which were substantially mirrored in the previous version of the pleading. Because the facts relevant to the appellant's first claim are quite distinct from the facts relevant to his other claims, it is convenient to begin by outlining the facts relevant to the first claim.
The appellant was sentenced to life imprisonment for murder on 18 December 1997 and made eligible for parole after a period of 10 years' imprisonment.[10]
[10] PSSSOC [1] - [2].
On or about 5 June 2007, the appellant was released on parole for a period of two years pursuant to a parole order made on 22 May 2007.[11]
[11] PSSSOC [4], [5], [8].
From 13 November 2008, the appellant participated in the Relationships Australia Domestic Violence Group Program (the Relationships Australia Program).[12] Mr Wolterman was the appellant's administrator for that program and, in that capacity, was aware of the appellant's participation and progress.[13]
[12] PSSSOC [9].
[13] PSSSOC [10].
On 5 May 2009, the Department of Corrective Services (DCS) reported to the Board (DCS Report) that:[14]
(1)The appellant was attending the Relationships Australia Program on a weekly basis.
(2)Concerns had been raised by group facilitators as to the appellant's progress.
(3)The appellant had the potential to make some gains with the Relationships Australia Program.
(4)The appellant should be permitted to remain in the Relationships Australia Program and to undertake five further sessions prior to his completion of parole.
[14] PSSSOC [12].
The DCS Report recommended the Board cancel the appellant's parole (DCS Recommendation).[15]
[15] PSSSOC [13].
On 6 May 2009, the Board, in reliance on the DCS Recommendation, cancelled the appellant's parole under s 44(1) of the SA Act,[16] and issued an arrest warrant for the appellant.[17] The cancellation occurred one month before the appellant's parole order was scheduled to expire, at which point the appellant would have been discharged from his term of life imprisonment.[18]
[16] PSSSOC [14].
[17] PSSSOC [16].
[18] PSSSOC [6], [15] citing Sentence Administration Act 1995 (WA) s 74, Sentencing Legislation Amendment and Repeal Act 2003 (WA) sch 1 cl 5(2)(a).
On 6 May 2009, the appellant was arrested by police pursuant to the arrest warrant and immediately taken to Hakea Prison. He was informed orally by the arresting police officers that his parole had been cancelled but was not given any reasons for the cancellation.[19]
[19] PSSSOC [17].
At the time of his arrest and detention, despite it being practicable to do so, the appellant was not provided reasons for the cancellation of his parole, nor information required by s 107B of the SA Act.[20]
[20] PSSSOC [41] - [43].
On 7 May 2009, the appellant wrote to the Board requesting a review of the decision to cancel his parole and that his parole be reinstated. That correspondence revealed that he believed the cancellation was due to his partner having 'applied for a[n] [I]VRO on myself'.[21] On 14 May 2009, the appellant again wrote to the Board seeking a review and reinstatement of his parole and seeking reasons for the Board's decision.[22]
[21] PSSSOC [44].
[22] PSSSOC [46].
The appellant pleads that these communications reveal that the appellant was, at the relevant times, still seeking to identify what the Board's reasons were for cancelling his parole.[23]
[23] PSSSOC [45] - [47].
On 28 May 2009, solicitors acting for the appellant wrote to the Board seeking reasons for the Board's decision and restating the appellant's belief that the IVRO was the reason for the Board's decision.[24] On 2 June 2009, the appellant again wrote to the Board, inquiring as to when it would review its decision to cancel his parole.[25]
[24] PSSSOC [48].
[25] PSSSOC [49].
By letter dated 2 June 2009, the Board provided its first response. The Board stated that the appellant had requested a review of the decision to cancel his parole, and he would be notified of the outcome of that review in due course. Further, the Board asserted, incorrectly, that the appellant had been notified on 6 May 2009 that the parole cancellation was 'for the following reason: [i]mminent risk of violent re-offending'.[26] The appellant pleads that this letter constituted the Board reporting that it had commenced a review under s 115A of the SA Act.[27]
[26] PSSSOC [50].
[27] PSSSOC [51].
The Board's letter of 2 June 2009 was communicated to the appellant by his solicitors on 5 June 2009.[28] Thus, by the time the Board's communication of the commencement of its review under s 115A of the SA Act was communicated to the appellant, his parole period had expired.[29]
[28] PSSSOC [52].
[29] PSSSOC [53].
By letter dated 17 June 2009, the Board informed the appellant that:[30]
[30] PSSSOC [55].
(a)by the letters received from him between 7 May 2009 and 2 June 2009, he had requested a review of the Parole Cancellation Order '...due to your risk to the safety of the community';
(b)under s 115A of the Act, a request for review could only be made on the grounds specified in s 115A(6)(a) to (c) thereof;
(c)the Appellant's application for review expressed the belief that his parole 'was cancelled as your partner had applied for a Violence Restraining Order against you';
(d)the Board's decision (to cancel the Appellant's parole) was not based on the fact that his partner had applied for a VRO against him;
(e)on 6 May 2009, 'when reviewing your case...' it was noted by the Board that your 'participation with the Relationships Australia program had been of a less than satisfactory level and therefore your risk to the community safety remains elevated. As such your parole was cancelled';
(f)the Deputy Chairperson of the Board (the Deputy Chairperson) had considered the matters raised by the Appellant and had formed the view that none of those matters fell 'within the grounds of review referred to above' (i.e. under s 115A(6)(a) to (c));
(g) the Appellant's request for review was denied;
(h)under s 115A(4) of the Act, 'this decision cannot be reviewed'; and
(i)no date had been set under s 12A of the Act for the further consideration of parole for the Appellant.
The grounds of review, which the appellant concedes did not engage with the Board's reasons for cancelling his parole, failed to do so because, first, the appellant was not given the s 107B(5) information, and second, the appellant was not given the Board's reasons.[31]
[31] PSSSOC [54].
The appellant pleads that the first time he became aware that the Board had relied on information relating to his participation in the Relationships Australia Group Program was upon receiving the Board's letter dated 17 June 2009.[32]
[32] PSSSOC [56].
The appellant then sought information from his facilitator in the Relationships Australia Group Program as to his participation in that program.[33] On 2 July 2009, the appellant's facilitator responded to the appellant, stating that the information relied on by the Board was 'incorrect'. On 8 July 2009, the Board received a letter containing statements to that effect.[34]
[33] PSSSOC [57].
[34] PSSSOC [60].
The appellant pleads that, as at that date, the Board became aware that the DCS Recommendation and the information in the DCS Report was contradicted by the evidence of the facilitator, and that it had relied upon incorrect information in cancelling the appellant's parole.[35]
[35] PSSSOC [60].
The appellant pleads other correspondence in September 2009, including a response from the Board's registrar to the effect that the appellant's request for a review had been denied on 17 June 2009, and that denial was not a 'reviewable decision'.[36]
[36] PSSSOC [64].
As will be seen, the PSSSOC pleads three claims. The appellant's first claim relates to the events detailed above.
On 30 April 2013, the Board recommended to the Minister that the appellant be released on parole for a period of two years. On 9 December 2014, the Governor ordered that the appellant be released on parole for a period of 3 years.[37]
[37] PSSSOC [92] - [93], [101].
The appellant's second claim concerns the delay from 30 April 2013 until 9 December 2014. His third claim complains that the order for release on parole was for a term of 3 years, when under s 73 of the SA Act the order was required not to exceed the term of the cancelled parole order, which was two years. We will outline the facts relevant to these claims in the course of considering the viability of them.
We turn to the earlier pleadings.

The earlier pleadings

The pleadings and amended indorsement of claim

Prior to this appeal, the appellant had filed three versions of a statement of claim in the primary proceedings and then, as already noted, he filed the PSSSOC in this appeal.
By his statement of claim filed 12 September 2017 (SOC)[38] and amended statement of claim filed 9 November 2017 (Amended SOC),[39] he pleaded that: (a) he was falsely imprisoned; (b) that the Board breached duties under the Public Sector Management Act 1994 (WA) and the Australian Human Rights Commission Act 1986 (Cth) and that the State also breached duties under the former Act; and (c) that the Board and the State breached duties at common law to afford him procedural fairness and natural justice.[40]
[38] Statement of claim filed 12 September 2017, BAB 20.
[39] Amended statement of claim filed 9 November 2017, BAB 44.
[40] See primary reasons [5].
By their defence to the Amended SOC, the respondents denied that the appellant was falsely imprisoned and pleaded that he was, at all times, imprisoned pursuant to a valid warrant of commitment.
The appellant then filed his Substituted SOC on 7 August 2019. His Substituted SOC no longer asserted that he was falsely imprisoned.
The appellant was granted leave on 14 February 2020 to amend his writ in the form of his minute of proposed amended writ of summons dated 10 February 2020.[41] The amended indorsement of claim is in the following terms (marking up omitted):[42]
[41] Order of Registrar Whitby dated 14 February 2020.
[42] Minute of proposed amended writ of summons dated 10 February 2020, as quoted at primary reasons [7].
AMENDED INDORSEMENT OF CLAIM
The Plaintiff's claim is for damages against the defendants for:
a)Statutory Breaches of the Sentencing Administration Act 2003 ('Act');
b)Breaches of Statutory Duty under the Act; and
c)Breaches of Common Law Duty.
The claim arises out of the actions of the defendants between about 6 May 2009 and 17 December 2015 in:
a)Wrongfully cancelling the Plaintiff's Parole ('Parole Cancellation') on or about 6 May 2009;
b)Refusing to review the Parole Cancellation in breach of section 115A of the Act between May 2009 and September 2015;
c)Failing to exercise the degree of skill and care in the performance of their statutory duty between 2009 and 2015 in relation to cancelling the Plaintiff's parole order, refusing to review the Parole Cancellation and imposing a subsequent parole order.
Failing to provide the Plaintiff with reasons for the Parole Cancellation and advising him of his right to review as soon as practicable after the decision was made, contrary to Section 107B of the Act.
Imposing a subsequent parole period of 3 years, a term longer than the 2‑year first parole period, in breach of section 73(2) of the Act.
PARTICULARS OF LOSS AND DAMAGE
1.Loss of liberty.
2.Loss of income.
3.Loss of opportunity to train and qualify.
4.Loss of enjoyment of life.
5.Psychiatric harm.
THE PLAINTIFFS CLAIM FROM THE DEFENDANT[S]
1.Damages to be assessed;
1A.A declaration that the Second Parole Order was invalid[;]
2.Costs; and
3.Such further or other order as the Court deems fit.

The Substituted SOC

After pleading background facts substantially to the effect set out in [39] ‑ [59] above, the appellant pleaded that the Board breached the SA Act and advanced claims of breach of statutory duty and negligence arising from or relating to those breaches. As there is no challenge to the master's decision to strike out the Substituted SOC, it is not necessary to outline the manner in which those claims were pleaded.

The respondents' application to strike out the Substituted SOC

By chamber summons, filed 13 March 2020, the respondents applied to strike out the appellant's Substituted SOC. The respondents (relevantly) sought the following orders:[43]
2.The Plaintiff's Substituted Statement of Claim filed on 7 August 2019 be struck out in part, or alternatively in its entirety, on the basis that it discloses no reasonable cause of action and is an abuse of process pursuant to Order 20 r 19(1)(a) and (d) of the Rules of the Supreme Court 1971;
3.The action against the Defendants be dismissed[.]
[43] Primary reasons [1].
The chamber summons also sought, in the alternative, that the Board be removed as a party to the proceedings. The appellant conceded before the master that this should occur. That is, the appellant conceded that no cause of action existed against the Board.[44]
[44] Primary reasons [2].
The appellant also conceded that the cause of action required amendment. The master noted that this would ordinarily be sufficient to dispose of the chamber summons. However, the State contended that there was no amendment that could cure the fundamental defects in the appellant's claims.
Accordingly, the master said that the question for resolution was as follows:
[T]aking into account all material facts could the plaintiff plead a cause of action against the defendant which would sound in damages.
The master answered that question 'no'.

The primary reasons

The master's reasons for so deciding were succinctly expressed.
The master noted that one of the elements of the breach of statutory duty claims is whether Parliament intended to create a private right of action for breach of duty. He described this as a fundamental threshold question. The master observed that the appellant was not guaranteed parole after 10 years; the order making him eligible for parole conferred upon him no right. Further, by s 5B of the SA Act, the primary consideration of the Board is the safety of the community. However, the master confirmed, the legislature did not ignore the rights of prisoners. They are entitled to judicial review, a right the appellant had exercised.[45] The master concluded:[46]
In my view, it simply cannot be said that the SA Act creates some sort of right in the prisoner which is actionable in the way pleaded by the plaintiff. The clear thrust of the SA Act taken in its entirety, is to set up a framework to allow for release of a prisoner into the community. If the proper process is not followed then judicial review is available. But that is the extent of the right of a person in the [appellant's] position. The legislature did not set up a duty on the part of the Prisoners Review Board or any other body. No action for breach of statutory duty can lie.
[45] Primary reasons [10] ‑ [12].
[46] Primary reasons [12].
The master also concluded that no action for breach of statutory duty could lie against the Governor for breach of s 43(2) of the Sentence Administration Act 1995 (the equivalent of s 73 of the SA Act). The Governor must act on the advice and recommendation of the Executive Council and the Attorney General must have received a report from the Board before the Governor makes a parole order.[47] However, the Executive Council is not obliged to advise the Governor to act on the Board's recommendation. Further, a parole order and the setting of a parole period is not done solely for the benefit of the prisoner.[48] The master said as follows:[49]
The political and discretionary nature of the Governor's power set against the relevant legislative scheme, strongly indicated that parliament did not intend a breach of s 43(2) of the SA Act to give rise to a private right to damages. Accordingly, this is not a basis for any claim by the plaintiff.
[47] SA Act s 25.
[48] Primary reasons [13] ‑ [16].
[49] Primary reasons [16].
As to the appellant's negligence claim, the master quoted an authority that indicates that, in cases where it is unclear whether the defendant owed the plaintiff a duty of care (and the scope of the duty owed, if any), it may assist to identify the nature of the harm said to have been suffered by the plaintiff.[50] In the present case, the master said that the appellant's imprisonment was, as the appellant had conceded, lawful. Accordingly, he said, it is not possible to identify a duty of care which has been breached by the State. The master added that negligence is not actionable unless the appellant suffered damage, which did not occur because the appellant's detention was lawful.[51]
[50] Primary reasons [17] ‑ [18], referring to Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 [13] ‑ [14], [99] - [100], [105].
[51] Primary reasons [19].

Grounds of appeal

The appellant appeals the primary decision on the following grounds:
1.The learned Master erred in law in striking out the Appellant's Substituted Statement of Claim without granting leave to re‑plead.
2.The learned Master erred in law in finding that on all material facts the Appellant could not plead a cause of action that would sound in damages.
PARTICULARS
2.1The learned Master erred in holding that the Sentence Administration Act 2003 (the Act) did not set up a duty on the part of the Prisoners Review Board (the Board) that gave a private right of action to the Appellant so that no action for breach of statutory duty can lie (Reasons [10] ‑ [12], [16]).
2.2The learned Master erred in holding that the Appellant has suffered no damage on the basis that he was lawfully detained and that there is no cause of action in negligence (an error of fact and of law at paragraph [Reasons 19]). (marking up omitted)
On 16 September 2021, this court ordered that the appellant file and serve a minute of proposed substituted statement of claim setting out the claim which the appellant contends he should be given leave to replead. After several extensions of time, the appellant filed the PSSSOC in late February 2022.
It is convenient to outline it before turning to the parties' submissions. The appellant proposed some revisions to the PSSSOC in the course of the hearing of the appeal, the effect of which is detailed below.

The PSSSOC

Functions of the Board

The PSSSOC pleads matters relevant to the powers, functions and duties of the Board under the SA Act.[52] Relevantly, this included:
(1) The Board had the power to grant, suspend and cancel parole.[53]
(2) The Board had the power to issue arrest warrants.[54]
(3)With the exception of the Chairperson, the members of the Board were required to comply with any relevant public sector standard or code of ethics.[55]
(4)The Board, its Chairperson and members could exercise all of the powers of a Royal Commission for the purposes of carrying out their functions.[56]
(5)The Board, or any person performing its functions, had to have regard to the safety of the community as a paramount consideration in performing its functions.[57]
(6)The Board had a duty, pursuant to s 12A, to provide the Minister (being the Attorney General)[58] a report about a prisoner sentenced to life imprisonment under s 90(1)(a) of the Sentencing Act.[59]

The Board as an emanation of the Crown

[52] PSSSOC [18] - [32].

[53] PSSSOC [21].

[54] PSSSOC [29].

[55] PSSSOC [24].

[56] PSSSOC [27].

[57] PSSSOC [28].

[58] PSSSOC [22].

[59] PSSSOC [32].

The appellant pleads as follows regarding the liability of the State for the acts and omissions of the Board.
By virtue of s 120(1), members of the Board are protected from actions in tort against them for anything done in good faith in the performance of their duties under the SA Act.[60]
[60] PSSSOC [33].
The Board is an emanation of the Crown in right of the State.[61]
[61] PSSSOC [34]. This is pleaded as being by virtue of the matters in PSSSOC [20] - [33], summarised in [79] above.
By virtue of s 120(3), the Crown is not relieved from liability for anything done as described in s 120(1).[62]
[62] PSSSOC [35].
Section 120(4) provides that the doing of an act includes an act or omission.[63]
[63] PSSSOC [36].
By reason of the matters in [79] ‑ [84] above, the Crown is liable at law for any tort of the Board or member of the Board in relation to the appellant.[64]
[64] PSSSOC [37].
The Crown is capable of being sued by virtue of s 5 of the Crown Suits Act 1947 (WA).[65]
[65] PSSSOC [38].
Broadly summarised, the PSSSOC pleads three claims. We outline them in turn, following the structure of the PSSSOC.

The appellant's first claim, arising from the cancellation order

The Board's statutory duties to the appellant

The Board's decision to cancel the appellant's parole was a 'reviewable decision' within the meaning of s 115A(2)(c).[66]
[66] PSSSOC [39].
Upon cancelling the appellant's parole, the Board was required to:
(1) Give the appellant written notice of the cancellation (s 107B(1) notice) 'as soon as practicable after the decision is made' pursuant to s 107B(1) and s 107B(3)(c).[67]
(2)Give the appellant its reasons for that decision as soon as practicable after the order is made and to include those reasons with the s 107B(1) notice.[68]
(3)Inform the appellant, in the s 107B(1) notice, of the effect of s 115A (the s 107B(5) information).[69]
[67] PSSSOC [40(a)(i)].
[68] PSSSOC [40(a)(ii)].
[69] PSSSOC [40(a)(iii)].
The Chairperson (or their delegate) was then required to conduct a review of the parole cancellation under s 115A.[70]
[70] PSSSOC [40(b)].
It was 'practicable' within the meaning of s 107B(1) for the Board to give the information required by the duties laid out in [89] above at the time of his arrest, or, further or alternatively, at the time he was incarcerated.[71] The Board failed to give the appellant the information required by the duties set out in [89] above.[72]

The State's duty of care

[71] PSSSOC [41] - [42].

[72] PSSSOC [43].

The appellant pleads that:
(1) It was foreseeable that if the Crown, through the Board failed, in effect, to do the things referred to in [95] below, then 'the Plaintiff would not be able to properly advance his arguments on the s 115A Review of the Parole Cancellation Order Decision and the Plaintiff's application for review of that decision was bound to fail, resulting in his continued incarceration', which in turn would result in 'consequent economic loss and emotional and psychological damage or harm';[73]
(2) the appellant was highly vulnerable to harm arising from his continued incarceration if the Crown failed to, in effect, do the things referred to in [95] below;[74]
(3) the Crown and the appellant were in a position of 'close proximity in a relational sense' as the Board solely had the power to 'either continue the Plaintiff's incarceration or to re-instate his parole',[75] or to conduct a review of the cancellation.[76]
[73] PSSSOC [65] - [66], [73].
[74] PSSSOC [68].
[75] PSSSOC [71].
[76] PSSSOC [72].
The appellant further pleads that:
(1) it was within the control of the Crown;[77]
(2) the appellant reasonably relied upon the Crown;[78] and
(3) the Crown assumed a responsibility, and had a statutory duty,[79]
to, in effect, do the things referred to in [95] below.
[77] PSSSOC [67].
[78] PSSSOC [69]
[79] PSSSOC [70].
Shortly before the hearing, the appellant filed a new minute that materially reformulated the alleged duty of care. The appellant pleads, in this minute as amended during the hearing, that the Crown (through the Board or its members) owed a duty of care to him to take reasonable care to exercise its statutory functions, powers and duties according to law in respect of the appellant's parole.

Breach of duty of care

The appellant pleads that, in breach of the duty of care pleaded in [94] above, the Crown refused or neglected to:[80]
[80] PSSSOC [75].
(a)provide to the Plaintiff the s 107B(1) Notice containing the s 107B(5) information;
(b)provide to the Plaintiff the Reasons for Parole Cancellation;
(c)provide to the Plaintiff its Reasons for Parole Cancellation before any purported s 115A Review of the Parole Cancellation Order Decision was conducted;
(d)ensure that it provided an adequate statement of reasons for parole cancellation to enable the Plaintiff to understand:
(i)the criteria the Board had relied on;
(ii)the information the Board had used; or
(iii)what factual findings the Board had made -
when making the Parole Cancellation Order Decision;
(e)ensure that the Plaintiff was aware of the Reasons for Parole Cancellation;
(f)ensure that the s 115A Review was conducted not using incorrect information;
(g)ensure that the s 115A Review was conducted using all correct and relevant information;
(h)ensure that the Plaintiff was heard as to all of the relevant matters concerning the decision on the s 115A Review;
(i)ensure that a proper review of the Parole Cancellation Order Decision was conducted under s 115A of the Act; and
(j)conduct a further s 115A Review upon the receipt of fresh information contained in the 2 July 2009 letter. (particulars omitted)

Causation and damage

The appellant pleads that, absent the Crown's breach of its duty of care, the appellant would have: first, obtained the s 107B(1) notice and s 107B(5) information (which included the Board's reasons);[81] second, identified the incorrect information relied on by the Board (being his participation in the Relationships Australia Program);[82] and third, adduced evidence in the s 115A review, including the evidence from Mr Wolterman.[83] If the appellant had been able to take the above steps, or if the Chairperson had had regard to the evidence from Mr Wolterman, it is likely the parole cancellation order would have itself been cancelled.[84]
[81] PSSSOC [76(a)(i)].
[82] PSSSOC [76(a)(ii)].
[83] PSSSOC [76(a)(iii) - (iv)].
[84] PSSSOC [76(b)], [77] - [78].
The appellant identifies the following loss and damage from his incarceration during the period when, but for the pleaded breaches, he would likely have been rereleased on parole:[85]
[85] PSSSOC [79].
Particulars
(1)The Plaintiff suffered a loss of liberty, including loss of enjoyment of life and autonomy during the period from when he likely would have been released from prison, following a properly conducted s 115A Review and the time that he was released from prison (additional incarceration period).
(2)As a result of his loss of liberty and autonomy, the Plaintiff suffered economic loss in the form of:
(a)loss of income during the additional incarceration period; and
(b)loss of income after he was released from custody arising from the fact that he had not:
(i)gained experience in the workforce; or
(ii)increased his skill level or training for the workforce -
during the additional incarceration period.
(3)Further, the Plaintiff suffered psychological or psychiatric damage due to the breaches of the Duties and his incarceration during the additional incarceration period.
(4)Further particulars of the Plaintiff's loss and damage will be provided prior to trial.

Breach of statutory duty as to the cancellation order

The appellant pleads that the SA Act conferred private rights of action in relation to the below duties which the Crown owed to the appellant (Statutory Duties),[86] and which the Crown subsequently breached:[87]
[86] PSSSOC [84] - [85].
[87] As to breach, see PSSSOC [86]. The appellant refers to PSSSOC [75(a)], [75(d), (d), (e)], [75(a)] and [75(c), (g) - (j)] respectively and the particulars therein in pleading the breach of each of the Statutory Duties.
80.By reason of:
(a)the Duty to Give Required Notice (see paragraph 40(a)(i));
(b)the Duty to Give Reasons (see paragraph 40(a)(ii) above);
(c)the Duty to inform of the Right to Review (see paragraph 40(a)(iii) above); and
(d)the Duty to Review (see paragraph 40(b) above) -
(collectively the Statutory Duties), the Act conferred private rights on the classes of persons referred to in paragraph 81 below.
81.The Statutory Duties imposed obligations on the Board and the Chairperson for the protection of persons whom:
(a)had been sentenced to a term of imprisonment under the Sentencing Act 1995 (WA) (Sentencing Act) and remained under sentence pursuant to s 66 of the Act
(b)had been subjected to a decision by the Board relating to matters affecting their sentence, including, relevantly, matters affecting the discharge of their sentence; and
(c)might be affected by a decision of the Board, including as to the cancellation of that person's parole (if any).
The cancellation of the appellant's parole brought him within the class of persons referred to in PSSSOC [81] as a person for whose protection the Statutory Duties were imposed, thereby creating a private right for the appellant to sue for any breach of those duties.[88]
[88] PSSSOC [81] - [82], [85].
The appellant repeats his earlier pleas that the Crown breached the Statutory Duties.[89]
[89] PSSSOC [86].
The appellant pleads that, absent the Crown's breach of its Statutory Duties, the appellant would have acted in the manner pleaded in [96] above with the result there pleaded.
As to loss and damage, the appellant pleads the matters set out in [97] above.[90]

The appellant's second claim: unreasonable delay in the making of the second parole order

Pleaded facts

[90] PSSSOC [90].

On 5 April 2013, the Board informed the appellant that it had decided to recommend to the Minister that he be released on parole for a term of two years.[91] That recommendation was conveyed to the Minister on 30 April 2013 (Board's April 2013 parole recommendation).[92]
[91] PSSSOC [91].
[92] PSSSOC [92] - [93].
On 27 August 2013 and 8 October 2013 respectively, the appellant and Mr Peter Abetz MLA wrote to the Minister requesting an update as to the status of the appellant's parole.[93] The Minister, responding only to the later enquiry, stated in a letter dated 23 October 2013 that he had received the Board's report and that the appellant would be notified of the decision once it had been made.[94]
[93] PSSSOC [94], [96].
[94] PSSSOC [95], [97].
On 23 April 2014, the Minister's office sent the Board an email which stated that the Minister was prepared to recommend a release period of three, rather than two, years and that if the Chairperson agreed, the Board should so amend its report. Further, the amended report should include 'more information as to the circumstances of the offence' for which the appellant was incarcerated.[95]
[95] PSSSOC [98].
On 20 June 2014, the Board wrote to the appellant stating that, following correspondence with the Minister, the Board had determined to recommend he be released on a parole period of 3 years.[96]
[96] PSSSOC [99].
On 24 July 2014, the Board sent its updated report to the Minister containing a recommendation of a 3‑year parole period.[97]
[97] PSSSOC [100].
On 29 December 2014, the Governor made a parole order, specifying a period from 19 December 2014 to 18 December 2017.[98] This parole order imposed various conditions on the appellant.[99]

Duty of care

[98] PSSSOC [101].

[99] PSSSOC [102].

The appellant pleads, following amendments to the minute made during the hearing, that the Crown (through the Minister) owed a duty to him to take reasonable care to exercise its statutory functions, powers and duties according to law in respect of the appellant's parole.

The duty is said to arise from the matters referred to in [103] to [112] of the PSSSOC, which may be summarised as follows. Each reference to the Crown is a reference to the Crown through the Minister.[100]
[100] With the exception of the pleadings summarised in [111] of these reasons.
The appellant pleads that it was reasonably foreseeable, and the Crown knew or ought to have known, that if the Minister did not 'act with reasonable expedition in connection with a recommendation from the Board that the Plaintiff be released to parole he would remain incarcerated for a period longer than was reasonably necessary', and that his continued incarceration would result in the deprivation of his liberty and autonomy and consequent economic and psychological loss.[101]
[101] PSSSOC [103] - [104], [111]. PSSSOC [111] specifically refers to the Board's April 2013 parole recommendation.
It was within the control of the Crown to avoid that harm.[102]
[102] PSSSOC [105].
The appellant was, by virtue of his incarceration, highly vulnerable to that harm.[103]
[103] PSSSOC [106].
The appellant reasonably relied on the Crown to act on the Board's April 2013 parole recommendation.[104]
[104] PSSSOC [107].
The Crown assumed a responsibility and had a duty to the appellant to ensure the Minister acted with reasonable expedition in advising the Governor of the Board's April 2013 parole recommendation.[105]
[105] PSSSOC [108].
From the time the Board's April 2013 parole recommendation was made, the appellant and the Crown were in a 'position of close proximity in a relational sense', in that the Minister alone could relevantly advise the Governor.[106]
[106] PSSSOC [109] - [110].
It was within the Crown's power to avoid the harm to the appellant by acting with reasonable expedition in advising the Governor of the Board's April 2013 parole recommendation.[107]

Breach

[107] PSSSOC [112].

The appellant asserts that the Crown failed to act with reasonable expedition in advising the Governor to make an order for parole based on the Board's April 2013 parole recommendation.[108] The appellant pleads the following particulars:
[108] PSSSOC [114].
Particulars
The Plaintiff relies on the following:
(a)the Board's April 2013 parole recommendation was communicated to the Minister on 30 April 2013;
(b)the fact that the Minister did not address the Board's April 2013 parole recommendation until 23 April 2014 (a period of almost one year) when the Minister sent the Attorney-General's 23 April 2014 email;
(c)the Second Parole Order was not made until 9 December 2014;
(d)the period from 30 April 2013, when the Board notified the Minister of the Board's April 2013 parole recommendation to the date of the making of the Second Parole Order on 9 December 2014 was 588 days (i.e. 19 months and nine days); and
(e)the fact that a period of 588 days of continued incarceration is excessive in all circumstances including that;
(i)the Plaintiff requested an update from the Minister on 27 August 2013 which the Minister did not respond to (see paragraphs 94 to 95 above); and
(ii)Mr Abetz MLA had requested information from the Minister as to the Plaintiff's parole on 8 October 2013 (more than 6 months after the Board's April 2013 parole recommendation) (see paragraphs 96 to 97 above).

Causation

The appellant pleads that if the Crown had not breached the above duty, the Governor would have made an order for the appellant's release on parole within two months; or alternatively, three months; or alternatively, four months, after the Board provided the Board's April 2013 parole recommendation to the Minister.[109] In fact, the appellant was not released from incarceration until 19 December 2014.[110]

Loss and damage

[109] PSSSOC [115] - [116].

[110] PSSSOC [117].

By reason of the matters summarised at [118] ‑ [119] above, the appellant suffered loss and damage in that he remained incarcerated from 'early July 2013' (or, alternatively, early August or September 2013) until 11 December 2014.[111] The appellant particularises its loss in a broadly similar way to that in [97] above.

The appellant's third claim: the excessive parole term

[111] PSSSOC [118].

The appellant pleads that the term of the second parole order, being 3 years, was in contravention of s 73(2) of the SA Act as it was for a period longer than the original parole order. To that extent, it was invalid.[112]
[112] PSSSOC [120] - [121].
Section 73 provides:[113]
Re-release after cancellation of parole order made by Governor
(1)If a parole order made by the Governor is cancelled under section 43 or 44 or by virtue of section 67, the Governor may subsequently make another parole order in respect of the prisoner.
(2)The parole period in the subsequent parole order is to be set by the Governor and must be at least 6 months, not more than 5 years, and not longer than the parole period of the cancelled parole order.

Duty of care

[113] PSSSOC [119].

The appellant pleads, as per [109] as amended during the hearing, that the Crown (through the Board and the Minister) owed him a duty of care, when recommending to the Governor that a parole order be made for the appellant, to take reasonable care to exercise its statutory functions, powers and duties according to law in respect of the appellant's parole.
This duty is said to arise from the following matters:
(1)It was reasonably foreseeable that if the Crown recommended a parole term contrary to s 73(2), then the appellant would be subject to a longer period of parole and consequently have his liberty and autonomy infringed.[114]
(2)It was within the control of the Crown to avoid that foreseeable harm by recommending a subsequent parole term that complied with s 73.[115]
(3)The appellant was entirely reliant upon the Board, and vulnerable to any harm arising from a parole order which failed to comply with s 73(2).[116]
(4)It was within the power of the Crown, and the Crown assumed a responsibility and had a statutory duty to the appellant, to ensure compliance with s 73(2).[117]
(5)The appellant and the Board were in a 'position of close proximity in a relational sense' once the Board decided to recommend a subsequent parole order.[118]
Each reference to the Crown was a reference to the Crown through the Board and the Minister.

Breach

[114] PSSSOC [122].

[115] PSSSOC [123].

[116] PSSSOC [124].

[117] PSSSOC [125], [127].

[118] PSSSOC [126].

The appellant pleads that the Crown breached its duty of care by recommending a subsequent parole period of 3 years, contrary to s 73(2).[119]

Causation

[119] PSSSOC [129].

Had the second parole order been in accordance with s 73(2), the appellant's parole would have ended on 18 December 2016.[120]
[120] PSSSOC [130].
On 11 October 2017, the Board sent the appellant a letter stating that the second parole order was inconsistent with s 73, which it had overlooked. As a result, the appellant 'should have been discharged from [his] sentence on 19 December 2016'.[121]
[121] PSSSOC [131].
Between 19 December 2016 and 13 October 2017, the appellant was subject to various parole conditions which required his detention against his will at various times. Further, breach of those conditions would have resulted in his incarceration.[122]

Loss

[122] PSSSOC [132] - [133].

As a result of the Crown's breach of the above duty, the appellant suffered loss of liberty and 'psychiatric harm in the form of a mood disorder, being a recognised psychiatric illness'.[123]

Breach of statutory duty as to excessive parole term

[123] PSSSOC [134].

The appellant pleads the following duty (s 73(2) Statutory Duty) by virtue of the matters summarised at [121] ‑ [129] above:
135.By reason of the matters pleaded in paragraphs 119 to 134 above, the Crown (through the Board and the Minister) owed a statutory duty to the Plaintiff (in the terms pleaded in paragraph 128), namely to ensure that any recommendation it made to the Governor in respect of the length of the Plaintiff's Second Parole Term complied with s 73(2) of the Act (s 73(2) Statutory Duty).
The appellant pleads that by reason of that duty, the SA Act conferred private rights on the following class of persons in which the appellant was a member:[124]
137.The s 73(2) Statutory Duty imposed an obligation on the Crown (through the Board and the Minister) to protect persons whom:
(a)had been sentenced to a term of imprisonment under the Sentencing Act and remained under sentence pursuant to s 66 of the Act;
(b)were imprisoned pursuant to the sentence under the Sentencing Act;
(c)had become eligible to be released to parole;
(d)relied on the Board to prepare a report containing a recommendation to the Governor as to whether the person should be released to parole; and
(e)relied on the Minister to communicate the Board's recommendation for parole to the Governor, as a pre-condition to being released to parole.
[124] PSSSOC [136] - [138].
The s 73(2) Statutory Duty was a specific obligation imposed on the Crown (through the Board or its members as an emanation of the Crown) for the protection of the appellant.[125] A private right was thus 'created' for the appellant to sue the Crown for breach of the s 73(2) Statutory Duty.[126]
[125] PSSSOC [139] - [140].
[126] PSSSOC [141].
The appellant pleads that the s 73(2) Statutory Duty was breached by both the Board and the Minister recommending, to the Minister and Governor respectively, a subsequent parole period of 3 years.[127]
[127] PSSSOC [142].
If the Crown had not breached the s 73(2) Statutory Duty, the Governor would have set a parole term of two years, and the appellant's parole would have been discharged on 19 December 2016.[128]
[128] PSSSOC [143].
As a result of the matters summarised in [130] ‑ [134] above, the appellant suffered the loss and damage referred to in [129] above.[129]

Appellant's submissions

The first claim: common law duty of care relating to s 107B and s 115A

Existence of the duty

[129] PSSSOC [145].

The appellant concedes that the duty of care that he pleads is 'novel'.[130] He submits that the appropriate test to determine whether a novel duty of care arises is the 'salient features' test propounded by Allsop P in Caltex Refineries (Queensland) Pty Ltd vStavar[131] and adopted in Western Australia in Apache Energy Ltd v Alcoa of Australia Ltd [No 2].[132]
[130] Appellant's substituted submissions [18].
[131] Caltex Refineries (Queensland) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649 [103].
[132] Apache Energy Ltd v Alcoa of Australia Ltd [No 2] [2013] WASCA 213; (2013) 45 WAR 379 [267] - [269].
The appellant submits that the following 'salient features' establish a duty of care owed by the second respondent to the appellant:[133]
[133] Appellant's substituted submissions [19].
(a)the harm suffered by the Appellant by his continued incarceration (resulting in deprivation of liberty and autonomy) as a result of the second Respondent's conduct (failing to give reasons and information and to conduct a proper s 115A Review, etc.) was foreseeable ([65] and [66]; Stavar [103(a) and (b)]);
(b)it was in the control of the second Respondent (by the Board or its members) to prevent the foreseeable harm to the Appellant ([67]; Stavar [103(c)]);
(c)upon the PCO being made, the Appellant was highly vulnerable, alternatively vulnerable to his continued incarceration if conduct of the second Respondent (by the Board or its members) contravened s 107B and 115A of the Act ([68]; Stavar [103(d)]);
(d)the Appellant reasonably relied on the second Respondent to comply with s 107B and s 115A of the Act ([69]; Stavar [103(e)]);
(e)the second Respondent assumed a responsibility to the Appellant to comply with s 107B of the Act (in giving reasons and providing information) and in conducting a proper s 115A Review ([70]; Stavar [103(f)]);
(f)the Appellant and the second Respondent were in a position of close proximity in a relational sense ([71]; Stavar [103(f) and (g)]);
(g)the second Respondent alone had the power and statutory obligation to provide reasons and information and to conduct a proper s 115A Review ([72]; Stavar [103(h)]);
(h)the second Respondent (by the Board or its members) had knowledge that if it did not comply with its statutory obligations to provide information and reasons and to conduct a proper review under s 115A of the Act, it would cause harm to the Appellant ([73]; Stavar [103(j) and (k)]); and
(i)it was within the power of the second Respondent (by the Board or its members) to provide information and reasons and to conduct a proper review under s 115A of the Act to avoid harm to the Appellant ([67]; Stavar [103(1)]).
The appellant submits that he has at least established an arguable case for the existence of a novel duty.[134]

Identifying loss

[134] Appellant's substituted submissions [21].

The appellant submits the master erred in failing to consider the appellant's submission that where a person is lawfully taken into custody, the deprivation of liberty, if brought about by a breach of statutory duty or a breach of common law duty by those depriving that person of their liberty, gives rise to an arguable claim for damages.[135]
[135] Appellant's substituted submissions [22].
The appellant submits that the master failed to consider two relevant cases, Monaghan v Australian Capital Territory (No 2)[136] and Smith v Iffla,[137] in which plaintiffs were awarded damages for unlawful detainment as a result of the negligence of others notwithstanding their incarceration was lawful.

Causation

[136] Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; (2016) 315 FLR 305.

[137] Smith v Iffla (1881) 7 VLR 435.

The appellant submits that the master failed to consider the basic question of factual causation, namely 'whether the Appellant's continued incarceration (harm) would have been suffered but for the negligence of the Board (or its members)'. The counterfactual identified by the appellant is that he would have been released from custody and discharged from his sentence on 5 June 2009 or shortly thereafter. The appellant submits that the assessment of loss or damage flowing from the alleged breaches is not a difficult exercise.[138]

Breach of statutory duty relating to s 107B and s 115A

[138] Appellant's substituted submissions [26].

The appellant begins by identifying the elements of the tort of breach of statutory duty, being those stated in Jane Doe v Fairfax Media Publications:[139]
(1)A statutory duty imposed on the defendant;
(2)A legislative intention that the statute imposing the duty confers a private civil cause of action for breach of that duty;
(3)The plaintiff is within the class of persons for whose benefit the duty was imposed;
(4)Breach of the duty;
(5)Damage caused by the breach of the duty of a kind which the duty was designed to prevent.
[139] Appellant's substituted submissions [27] citing Jane Doe v Fairfax Media Publications [2018] NSWSC 1996.
The appellant also relies on the observations of Le Miere J, identifying as relevant to legislative intent:[140]
(a)[whether] there [is] an alternative satisfactory remedy in the statute [82], [100]; and
(b)[whether] the obligation concerned [is] specific and confined, or more general and ill-defined [82], [106] - [108].
[140] Appellant's substituted submissions [26] citing Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209; (2012) 6 ARLR 120 [80].
The appellant then addresses each of the elements in [142] above in turn.
As to the first element, the appellant submits that the SA Act imposed a duty on the second Respondent, 'by the Board and its members', to comply with s 107B and s 115A of the SA Act. Those sections are said to be specifically for the benefit of a class of persons of which the appellant is a member.[141]
[141] Appellant's substituted submissions [28].
As to the second element, the appellant submits that the threshold question for the establishment of a breach of statutory duty is whether Parliament intended to create a private right of action, which in turn is a question of statutory construction. The appellant cites the comments of the majority in Byrne v Australian Airlines Ltd that while the question is one of construction of the statute, an examination of the statute will 'rarely yield a necessary implication positively giving a civil remedy',[142] as well as the comments of Dixon J in O'Connor v SP Bray Ltd that:[143]
In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others seems to be regarded as involving a correlative private right, although the sanction is penal, because it protects an interest recognized by the general principles of the common law.
[142] Appellant's substituted submissions [30] citing Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 424 citing O'Connor v S P Bray Ltd (1937) 56 CLR 464, 477 - 478.
[143] Appellant's substituted submissions [31] citing O'Connor (478).
The appellant concedes that the existence of another statutory remedy is a factor, albeit not a decisive one, pointing against a legislative intention to confer a private right of action.[144] Here, the appellant notes that judicial review and prerogative relief are available remedies. However, the appellant submits that neither 'satisfactorily compensate a person for the "profound consequences"' of the cancellation of a parole order.[145]
[144] Appellant's substituted submissions [32].
[145] Appellant's substituted submissions [33].
The appellant submits that the duties in s 107B and s 115A are 'specific, able to be easily discerned, and very narrowly confined'. Those duties are specifically for the protection of persons in the appellant's position, and directly imposed upon the second respondent (through the Board or its members).[146]
[146] Appellant's substituted submissions [34] - [35].
As to the third element, the appellant submits that s 107B and s 115A are for the benefit of prisoners who have had their parole cancelled. The appellant points to both sections being 'carefully carved out' from the section abrogating natural justice (namely, s 115), as well as several other sections said to demonstrate that the duties in s 107B and s 115A are for the benefit of offenders in custody awaiting release: namely, s 20 (which provides that the Board must consider the 'release considerations' before a prisoner may become eligible for parole), s 33 (which provides that a prisoner may elect not to be paroled), and s 115A.
As to the fourth element, the appellant refers to the allegation in the PSSSOC that the second respondent (by the Board or its members) breached its statutory duties in: (1) failing to give the notice required by s 107B(1); (2) failing to give the information required by s 107B(5); (3) failing to give reasons for the cancellation of the appellant's parole; and (4) failing to conduct a proper review under s 115A.[147]
[147] Appellant's substituted submissions [40] citing PSSSOC [80].
As to the fifth element, the appellant submits that s 107B and s 115A were designed to prevent continued incarceration; the precise harm the appellant has suffered as a result of the breach of statutory duty.[148]

The second claim: common law duty - the unreasonable delay claim

[148] Appellant's substituted submissions [39], [41] citing PSSSOC [90].

The appellant refers to the principles establishing the duty as those identified in the first claim relating to s 107B and s 115A.[149]
[149] Appellant's substituted submissions [42].
The appellant submits that the Minister's 12-month period of 'inaction' is 'plainly negligent'. The appellant notes that reports by the Board to the Minister pursuant to s 12A are required to be produced every three years. The imposition of a specific time frame is said to imply that the Minister cannot fail to act on a report produced pursuant to s 12A either indefinitely or for an 'unreasonable period', being a period greater than between two and four months.[150]
[150] Appellant's substituted submissions [43] - [45]. In PSSSOC [116], the appellant pleads that a reasonable time is two months, alternatively three months, alternatively four months.

This general statement of the question has been adopted in many cases. See, for example, State Bank of New South Wales v Commonwealth Savings Bank of Australia[246] and SGH.[247]
[246] State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 161 CLR 639, 644.
[247] SGH [96], [128] - [129].
In SGH, the question before the High Court was whether a building society formed under the general building societies legislation was the State for the purposes of s 114 of the Constitution, which prohibits the imposition of tax on property belonging to a State. The court held that the fact that the corporation was formed under the general building societies legislation did not preclude it from being the State, but found that SGH was not the State because control of the corporation was shared between the State and the depositors.
In SGH, Gleeson CJ, Gaudron, McHugh and Hayne JJ held that in determining whether a statutory entity falls within the description 'the State' in s 114 of the Constitution, it was relevant to consider the activities undertaken by that entity. It was also relevant, and usually very important, to identify the legal relationship between the entity and the executive government of the State and to identify whether the entity was discharging governmental functions for the State or, to put it another way, whether the State was carrying on the relevant business through the entity.[248] Their Honours observed that attention was required to the circumstances and purposes of the entity's creation, but also to every feature of the entity which bears upon its relationship with the polity.[249] Features of ownership and management of the entity, as well as the purposes the entity is required to pursue, will often reveal the relationship between the entity and the polity. Where the entity is wholly owned and controlled by the polity, and must act solely in its interest, a conclusion that the entity is the State will readily follow.[250]
[248] SGH [16].
[249] SCH [22].
[250] SGH [22].
The plurality found that, while it was right to say that a statutory corporation representing the Crown controlled the relevant entity, the control was not absolute because the statutory corporation could not lawfully require the entity or its Board to act in disregard of the interests of A class shareholders who were depositors.
Gummow J said that the State could not be carrying on the activities of government through the medium of the entity as its agent or instrument if the State did not control the conduct of the affairs of the entity.[251]
[251] SGH [65].
Kirby J characterised the decisive question as whether the instrumentality, with its history, purposes, manner of organisation, governance, functions and systems of control, represents an instrument or agency by which the Commonwealth was to operate in a particular field through a corporation created for the purpose. That was to be contrasted with a corporation created with that purpose that it should perform its functions independently of the polity, that is to say, otherwise than as a Commonwealth instrument.[252]
[252] SGH [96].
Having cited the observations of Kitto J in Inglis v Commonwealth Trading Bank of Australia to which we have referred, Callinan J identified, as among the relevant factors to which the cases have given attention, the following:[253]
[T]he absence or otherwise of corporators; an explicit obligation of the corporation to conduct its affairs to the greatest advantage of the relevant polity; the participation of the executive government in the process of formulating policy and making decisions; the right or otherwise of the government to appoint directors, and the source of, and responsibility for their remuneration; the destination of profits; and, the obligation or otherwise of the Auditor-General to audit the accounts of the corporation.
[253] SGH [131].
In NT Power Generation v Power and Water Authority, the question before the High Court was whether Gasgo Pty Ltd, a company in which the Power and Water Authority (PAWA) beneficially owned all shares was an emanation of the Crown in right of the Northern Territory. Critical to that holding was that there was nothing in the evidence to indicate that the directors of Gasgo, who were appointed by the Minister, were under a duty to obey directions from PAWA or from the government of the Northern Territory.[254]
[254] NT Power Generation [164]; Queanbeyan City Council v ACTEW Corporation [27].
In Queanbeyan City Council v ACTEW Corporation, the question before the High Court was whether water licence fees and a utility network tax imposed by the government of the Australian Capital Territory on its water authority, ACTEW, were excise duties. After close examination of the provisions of the relevant legislation, the court held that ACTEW was so closely identified with the Territory, having regard to the extensive control exercised by the Territory executive and particularly the Chief Minister over the conduct of ACTEW's affairs, that it could not be treated as being distinct from the Territory government.[255]
[255] Queanbeyan City Council v ACTEW Corporation [20], [37].
Relevant considerations in the determination of whether an entity was an emanation of the State were identified by Gray J in Trevorrow in the passage set out at [239(2)] above. Applying those factors, Gray J held that the Aboriginal Protection Board and the Children's Welfare and Public Relief Board, each constituted under South Australian legislation, were emanations of the State of South Australia.
The respondents submit that the decision of Gray J in Trevorrow should be 'treated with caution' because his Honour 'was the only judge'. We take the reference to Gray J being the only judge as conveying that his Honour was the trial judge. His Honour's decision was the subject of an appeal. Nothing said on appeal undermines the approach taken by his Honour. In the context of the more limited issues that arose on appeal, the Full Court (Doyle CJ, Duggan & White JJ) said as follows:[256]
Having regard to the constitution of the APB by the 1934 Act, its membership, its funding, its reporting obligations and its powers, the APB and its Secretary were each clearly an agency or instrumentality of the Crown. Accordingly, each of them could be sued in the name of the State as a nominal defendant: TransAdelaide v Evans [2005] SASC 175; (2005) 98 SASR 394 at [27] ‑ [33] Doyle CJ.
[256] The State of South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331 [269].
In Construction Industry Training Board v Transfield Services (Australia) Pty Ltd,[257] Stanley J (with whom Kourakis CJ & Nicholson J agreed) described the test to be applied as multifactorial. His Honour observed that the test involved identifying the purpose for which the corporation was formed, having regard to all relevant circumstances, the nature of the functions performed by the entity, whether the activities of the polity are carried out through the corporation, the level of oversight and scrutiny, both in reporting requirements and auditing and, importantly, the degree of governmental control over the entity, including in relation to the appointment and removal of directors and influence over policy and decision‑making. His Honour emphasised that the list of relevant indicia is not closed. Stanley J also emphasised that control does not mean operational control in the sense of day‑to‑day management of the affairs of the corporation. Rather, the question of control is directed to the forming of the policies and directions of the entity.[258]
[257] Construction Industry Training Board v Transfield Services (Australia) Pty Ltd [2017] SASCFC 103; (2017) 128 SASR 475.
[258] Construction Industry Training Board v Transfield Services [109].
It can be seen from the above discussion that, while the element of control, in the broad sense explained by Stanley J in Transfield, is important, it cannot confidently be said that any one factor is decisive.
In X v South Australia (No 3), Gray J characterised the Parole Board as an emanation of the State.[259] While, as the respondents emphasise,[260] Gray J was in dissent as to the result, on the point of relevance for present purposes, his Honour was not in the minority. As already noted, Duggan J found that no duty of care arose, given the terms of the statute. His Honour did not deal with the question of whether any liability on the part of the Parole Board gave rise to a liability on the part of the State, or could be attributed to it. Debelle J held that, by reason of s 60A of the Correctional Services Act 1982 (SA),[261] if the Parole Board or any member of it were held to be liable, such liability would be a liability of the Crown.[262]
[259] X v South Australia [224], [242], [427].
[260] Respondents' supplementary submissions [18].
[261] Which is in materially different terms from the terms of s 120 of the SA Act.
[262] X v South Australia [77].
As the respondents emphasise, the SA Act invests the Board with a discretionary power of decision‑making. Neither the Minister nor any other part of the State government controls the Board's exercise of discretion concerning the grant or cancellation of parole in a particular case. That counts, perhaps strongly, against a conclusion that, in exercising its powers and duties, the Board is an emanation of the State. However, while control is an important indicator, it is at least readily arguable that, as observed by Stanley J in Transfield, a multifactorial approach is to be taken.
The respondents' submissions do not persuade us that this element of the appellant's case is so clearly doomed to fail at trial that it should be summarily determined. To the contrary, in our view, the matters to which the appellant points - set out at [240] above - are sufficient to support a viable case that should be permitted to go forward for determination at trial. In any event, given the respondents' concession as to vicarious liability a contrary conclusion would not be fatal to the viability of the appellant's negligence strand of his first claim.

Conclusion on negligence claim

Consequently, we conclude that the appellant has a viable negligence claim. That, in itself, sustains the upholding of the appeal and the setting aside of the master’s orders.

Action for breach of statutory duty?

We turn to the second strand of the appellant's first claim: his action for breach of statutory duty arising from the Board's failure to comply with s 107B.
The critical question is, as the parties accept, whether the relevant provisions of the SA Act give rise to an action for breach of statutory duty in favour of a prisoner.
The action for breach of statutory duty was described in Byrne v Australian Airlines in the following terms:[263]
A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection.
[263] Byrne v Australian Airlines (424).
Thus, the question is one of the proper construction of the statute. However, the difficulties of discerning, by a process of construction, the legislative intention have often been observed. In O'Connor, Dixon J said as follows:[264]
The difficulty is that in such a case the legislature has in fact expressed no intention upon the subject, and an interpretation of the statute, according to ordinary canons of construction, will rarely yield a necessary implication positively giving a civil remedy. As an examination of the decided cases will show, an intention to give, or not to give, a private right has more often than not been ascribed to the legislature as a result of presumptions or by reference to matters governing the policy of the provision rather than the meaning of the instrument. Sometimes it almost appears that a complexion is given to the statute upon very general considerations without either the authority of any general rule of law or the application of any definite rule of construction.
See also Byrne v Australian Airlines,[265] Sovar v Henry Lane[266] and Stuart v Kirkland‑Veenstra.[267]
[264] O'Connor (477 ‑ 478).
[265] Byrne v Australian Airlines (459 - 461).
[266] Sovar v Henry Lane (405).
[267] Stuart v Kirkland‑Veenstra [2009] HCA 15; (2009) 237 CLR 215 [142].
In Sovar v Henry Lane,[268] Kitto J emphasised that whether an action for breach of statutory duty lies is not 'conjured up by judges to give effect to their own ideas of policy and then "imputed" to the legislature'. Rather, the role of the court is to:
determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre‑existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory construction.
This statement has been cited with approval many times.[269]
[268] Sovar v Henry Lane (405).
[269] See, for example, Byrne v Australian Airlines (460 - 461); Stuart v Kirkland‑Veenstra [142]; Gardiner v The State of Victoria [23].
In Byrne v Australian Airlines, Brennan CJ and Dawson and Toohey JJ identified one generalisation that can be made. Where the persons on whom the statutory obligations are imposed are under an existing common law duty of care towards the person whom the statute is intended to benefit or protect, the statutory prescription of a higher or more specific standard of care may, in the absence of an indication of a contrary intention, properly be construed as creating a private right.[270]
[270] Byrne v Australian Airlines (424), referring to O'Connor (478). See also Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 [27] ‑ [29], [49] - [50].
The provision in a statute of a means of enforcing the statutory duty it creates tends to indicate that the duty is intended to be enforced by those means and not by a private right of action. However, the existence of another statutory remedy is not decisive.[271]
[271] Sovar v Henry Lane (405 - 406); X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 731; Gardiner v The State of Victoria [25].
Because the question of the availability of an action for breach of statutory duty involves a question of construction of the legislation, that question tends to be more conducive to summary determination than questions that are fact intensive.[272]
[272] Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209; (2012) 6 ARLR 120 [114] ‑ [116]; Matthews v SPI Electricity Pty Ltd (No 2) [2011] VSC 168; (2011) 34 VR 584 [64].
On the other hand, the question of whether a statute imposing a duty gives rise to a tortious cause of action for a breach of statutory duty is, as Leeming JA has recently observed, often highly contestable.[273]
[273] Vickery v The Owners - Strata Plan No 80412 [2020] NSWCA 284; (2020) 386 ALR 153 [88].
Generally speaking, an application for summary judgment is not the occasion to determine difficult or substantial questions of law, although the court may decide that in the circumstances of the case it is appropriate to do so.[274] The same is true of other forms of summary dismissal of an action.
[274] Casella v Hewitt [2008] WASCA 13; (2008) 36 WAR 1 [36], [92]; NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [130].
In the present case, we have decided that the appellant has a viable claim in negligence, arising from the Board's failure to comply with s 107B of the SA Act in cancelling the appellant's parole. The appellant's claim for breach of statutory duty arising from the Board's failure to comply with s 107B will not add anything to the facts necessary to be proved and found at trial in order to determine the appellant's negligence claim. Further, determination of the merits of the appellant's negligence claim will itself require close attention to the provisions of the SA Act.
Consequently, the presence or absence of the claim for breach of statutory duty will make relatively little difference to the scope, length and expense of a trial of the appellant's claim.
While the matters raised by the respondents, as summarised in [166] ‑ [170] above, indicate that the appellant’s claim for breach of statutory duty faces significant challenges, neither the respondents' submissions nor the principles outlined in [270] ‑ [274] above reveal a patent, or readily demonstrable, fatal flaw in the case.
In the circumstances, having regard to O 1 r 4B of the Rules of the Supreme Court, we do not consider it appropriate, or an efficient use of judicial resources, to embark upon the exercise of determining whether the claim for breach of statutory duty is or is not sufficiently viable to survive a strike‑out application. Rather, the merits of the claim should be determined in the course of the trial, along with the appellant's claim in negligence.

The appellant's second claim: unreasonable delay in the making of the second parole order

The appellant pleads that the Crown owed a duty of care to him to take reasonable care to exercise its statutory functions, powers and duties according to law in respect of the appellant's parole and, in substance, that it breached the duty in failing to act with reasonable expedition to advise the Governor of the Board's April 2013 parole recommendation.
Fundamental problems with this alleged duty of care are immediately apparent upon examination of the statutory framework: the Crown can have no obligation to act with reasonable expedition to do something which the Crown is not obliged to do at all. As explained below, neither the Minister nor the Cabinet has any duty to advise the Governor of a recommendation concerning parole made by the Board.
By s 12A of the SA Act, the Board must give a written report about a person, such as the appellant, who is serving a sentence of life imprisonment for murder where a minimum period has been set. The Board must give the Minister such a report at the end of the minimum period and every 3 years after that, unless the Minister has given the Board a direction under s 14C.[275]
[275] SA Act s 12A(2) and (2A), see also item 2 of the table in div 1 of sch 3.
Section 25 of the SA Act provides, relevantly, that the Governor may make a parole order in respect of a prisoner serving life imprisonment for murder where a minimum period has been set and the prisoner has served that minimum period, but only if a report about the prisoner has been given by the Board to the Minister under s 12 or s 12A.[276]
[276] SA Act s 25(1A).
The reference in s 25(1A) to the Governor is a reference to the Governor in Council.[277] In other words, the power to make a parole order is conferred on the Governor acting with the advice and consent of the Executive Council.
[277] Interpretation Act 1984 (WA) s 60.
Whether advice to the Governor in Council is based on a decision of the responsible Minister or a decision of the Cabinet is a matter of practice.[278]
[278] The State of South Australia v O'Shea (1987) 163 CLR 378, 387.
The duty of care advanced by the appellant, and the appellant's submissions in support of it, assume that the Crown, by the Minister, was obliged to advise the Governor of the Board's recommendation. That assumption is unfounded. Nothing in s 25 or any provision of the SA Act obliges the Minister to convey the Board's recommendation to the Governor. Once the Board provides a report to the Minister, in deciding whether the Governor should be advised to make a parole order, the Minister (or Cabinet) is not bound to follow, or to advise the Governor of, the recommendation of the Board. That is so whether the recommendation is a recommendation to grant or not to grant parole.

In this respect, the language of s 25(1A) should be noticed. The power to make a parole order is conferred in unqualified terms upon the Governor, subject only to the requirement that a report has been given by the Board to the Minister. Nothing is said in s 25(1A) as to the content of the Board's report. Moreover, the Governor's power is not expressed as a power to accept (or reject) a recommendation of the Board. Rather, the Governor simply has the power to make a parole order.
For these reasons, the Minister or the Cabinet (as the case may be) exercise their own discretion in deciding whether to advise the Governor to make a parole order; they are not bound by the Board's recommendation. That discretion is, by implication, to be exercised in the public interest. The Minister or the Cabinet may legitimately take into account political considerations in the discretionary judgment as to whether making a parole order is in the public interest. As Wilson and Toohey JJ observed in South Australia v O'Shea,[279] the operative decision is reserved to a political institution, namely the Governor in Council.
[279] South Australia v O'Shea (401 - 402).
In this respect, the position under the SA Act has some parallels with the position in South Australia v O'Shea, although the legislation in that case was different in a material respect. In O'Shea, the relevant legislation empowered the Governor to release a prisoner on the recommendation of the Parole Board. The Governor's power to order release thus arose only upon a recommendation for release by the Parole Board. As explained in [288] ‑ [290] above, the same is not true of the Governor's power under the SA Act. The issue in O'Shea was one of procedural fairness. The question was whether procedural fairness required the provision of a hearing before the Governor in Council, submissions having been made to the Parole Board, in circumstances where the Governor in Council did not accept the Parole Board's recommendation. For present purposes, the point of significance is that all judges treated as axiomatic the existence of an independent discretion on the part of the Governor in Council to determine whether to grant parole.[280]
[280] South Australia v O'Shea (388, 401 - 403, 409, 418 ‑ 420).
The conclusions in [288] ‑ [290] above are a fatal obstacle to a duty of care of the kind advanced by the appellant in support of the second claim.
There is a further fundamental obstacle to a duty of care of the kind advanced by the appellant in support of the second claim. Whether the Minister, or Cabinet, has acted with reasonable diligence in relation to a Parole Board report will, by its nature, require consideration of all of the competing calls upon the time of the Minister or Cabinet. The wide‑ranging and political nature of the activities undertaken by a Minister, and by Cabinet,[281] means that a court is not well placed to determine whether the Minister or Cabinet acted with reasonable diligence. Further, to do so would require the court to inquire into the internal deliberative processes of executive government. Cabinet's deliberations are confidential. As Mason CJ observed in O'Shea, that makes it extremely difficult, if not impossible, for the courts to dictate to Cabinet the mode in which it should consider a matter coming before it. Likewise, the courts cannot properly adjudicate upon whether Cabinet acted with reasonable diligence in considering a recommendation by the Board.
[281] South Australia v O'Shea (387).
Section 5W of the Civil Liability Act 2002 (WA) prescribes principles that apply in determining whether a public body such as Cabinet and a public officer such as a Minister have breached a duty of care. One of those principles is that the general allocation of the financial and other resources reasonably available to the public body or public officer for the purpose of exercising their functions is not open to challenge. One such resource is the time available to Cabinet or to the Minister. A claim that Cabinet or the Minister did not consider a particular matter with reasonable diligence runs headlong into this principle because, applying this principle, it would not seem open to hold Cabinet or a Minister in breach in circumstances where they gave other matters greater priority.
In our view, the need for the court to become involved in questions of the speed with which the executive government considers a Parole Board recommendation and decides whether parole should be granted counts firmly against the posited duty of care.
For these reasons, the appellant's second claim, said to arise from unreasonable delay in the making of the second parole order, is not viable. The appellant should not be permitted to proceed with this claim.

The appellant's third claim: excessive parole term claim

Like the first claim, the appellant's third claim has two strands: negligence and breach of statutory duty.
In their submissions as to the viability of both strands of the third claim, the parties simply repeated their submissions as to the first claim.
In the context of the third claim, the power to grant parole is vested in the Governor. In exercising that power, the Governor will have a report from the Board under s 12A. By s 12A(4), if the Board recommends the release of a prisoner it must also recommend a parole period. In effect, the appellant contends that in exercising its statutory powers under s 12A, if the Board decides, in its discretion, to recommend the release of a prisoner, it thereby was obliged to recommend a parole period and in so recommending owes a duty to take reasonable care to act in accordance with the law, namely within the limits of the Governor's power in s 73(2).
It can be seen, therefore, that the third claim does not complain of the Board's exercise of its broad power to report to the Minister on the question of whether parole should be granted. Nor does it complain of the Governor's broad discretionary decision in which political considerations may enter. Rather, the complaint concerns the Board's and Minister's failure to observe the limits circumscribed by s 73(2) as to the length of the parole term. Nothing in s 5B, on which the respondents rely so heavily, could permit, much less require, the making of an order exceeding those limits.
For reasons corresponding to those we have given in relation to the appellant's first claim, in our view, the appellant's negligence claim has not been shown to be doomed to fail. For the reasons in [281] above, we would permit the merits of the claim for breach of statutory duty to be determined at the trial.

Conclusion

For the above reasons, we would make orders to the following effect:
(1)The appeal is upheld.
(2)Orders 2, 3 and 4 of the master's orders of 15 October 2020 be set aside.
(3)In substitution for those orders, the appellant be granted leave to file and serve a substituted statement of claim by 28 February 2023.
We would hear from the parties as to the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AE
Associate to the Honourable Justice Beech
1 FEBRUARY 2023