Seiffert v The Prisoners Review Board

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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…

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Details
Case
[2023] WASCA 15
Decision Date

CaseChat Overview and Summary

The case of Seiffert v The Prisoners Review Board involves an appellant contesting the decision of the Prisoners Review Board, which is tasked with reviewing parole eligibility for prisoners in South Australia. The appellant argues that the Board failed to adhere to certain statutory obligations, specifically under Section 107B of the SA Act. The Supreme Court of South Australia was required to determine whether the Board properly notified the appellant of their decisions, as mandated by the legislation. Additionally, the court had to consider whether the exclusion of natural justice principles, as outlined in Section 115 of the Act, was applicable and whether the statutory review provisions under Section 115A were correctly applied.

The court examined the statutory provisions and their implications, particularly focusing on Section 107B, which mandates the Board to provide written notice to prisoners of any decision made under the Act, including reasons for such decisions. The appellant contended that the Board did not comply with this requirement. The court also had to interpret the scope of Section 115, which excludes the rules of natural justice from certain Board actions, and assess whether this exclusion applied to the Board’s failure to provide notice to the appellant. Moreover, the court needed to determine if the statutory review mechanism under Section 115A was correctly invoked and if the Board's decisions could be subject to review based on the grounds provided by the appellant.

In its reasoning, the court closely analysed the statutory language and legislative intent behind Sections 107B, 114, 115, and 115A. It found that the Board's failure to provide written notice to the appellant of their decisions did not fall under the exceptions allowing withholding of reasons, as per Section 114. The court also held that the exclusion of natural justice principles in Section 115 did not apply to the Board's failure to notify the appellant, as this omission was not an act explicitly excluded by the statute. Finally, the court concluded that the statutory review provisions under Section 115A were correctly applied, and the Board's decisions were subject to review based on the statutory grounds provided. The court ultimately found in favour of the appellant, finding that the Board's failure to notify the appellant of their decisions was a breach of statutory obligations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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].