Seiffert v The Prisoners Review Board
[2011] WASCA 148 (S)
•8 JULY 2011
SEIFFERT -v- THE PRISONERS REVIEW BOARD [2011] WASCA 148 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 148 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:138/2010 | 2 & 3 MARCH 2011 & ON THE PAPERS | |
| Coram: | MARTIN CJ McLURE P MURPHY JA | 8/07/11 | |
| 20/09/11 | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi discharged | ||
| B | |||
| PDF Version |
| Parties: | JASON ANDREW SEIFFERT THE PRISONERS REVIEW BOARD THE ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Consequential orders Whether declaratory relief should be granted Costs |
Legislation: | Rules of the Supreme Court 1971, O 66 r 1 |
Case References: | Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SEIFFERT -v- THE PRISONERS REVIEW BOARD [2011] WASCA 148 (S) CORAM : MARTIN CJ
- McLURE P
MURPHY JA
DECISION : 20 SEPTEMBER 2011 FILE NO/S : CACV 138 of 2010 BETWEEN : JASON ANDREW SEIFFERT
- Applicant
AND
THE PRISONERS REVIEW BOARD
Respondent
THE ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA
Intervener
Catchwords:
Consequential orders - Whether declaratory relief should be granted - Costs
(Page 2)
Legislation:
Rules of the Supreme Court 1971, O 66 r 1
Result:
Order nisi discharged
Category: B
Representation:
Counsel:
Applicant : Dr J T Schoombee
Respondent : No appearance
Intervener : Mr G T W Tannin SC & Mr H D Leith
Solicitors:
Applicant : Thames Legal
Respondent : No appearance
Intervener : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
(Page 3)
1 JUDGMENT OF THE COURT: On 8 July 2011, the court published its reasons with respect to the determination of the various issues raised by the order nisi granted in this matter ([2011] WASCA 148). In short, although the court concluded that the applicant had established that the Prisoners Review Board (the Board) had breached certain statutory obligations relating to the provision of notice of, and reasons for, its decision to cancel his parole, and of his right to seek a review of that decision, Mr Seiffert had 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. At the time those reasons were published, the court made directions for the exchange of submissions with respect to the orders appropriately made to give effect to those reasons, and further directed the parties to advise the court whether they were content for the issues raised by those submissions to be resolved without further hearing. The applicant and the intervener have each advised the court that they do not seek a further hearing in respect of any of the issues relating to the final orders to be made. Consistently with its prior approach to these proceedings, the Board has not participated in this process.
2 These reasons deal with the competing submissions of the parties and provide our reasons for the final orders which will be made.
The orders proposed by the applicant
3 On behalf of the applicant it is proposed that orders be made in the following terms:
1. It be declared that the obligation of the Respondent pursuant to section 107B of the Sentence Administration Act 2003 (WA) ('the Act') to provide to a prisoner reasons for any decision referred to in section 107(B)(1) made in respect of him or her, should state the conclusion(s) reached and, subject to section 114, set out the findings on material questions of fact and refer to the evidence or other material on which those findings based and, if relevant, the criteria against which the available information was judged.
2. It be declared that the Respondent failed to comply with the obligations imposed by section 107B of the Act in three respects, namely by failing to provide the Applicant:
(a) with written notice of its decision on 6 May 2009 to cancel his parole as soon as practicable;
(b) with an adequate statement of reasons for that decision; and
- (c) with notice informing him of the effect of section 115A of the Act.
- 3. It be declared that nothing in the Act or any delegated legislation made thereunder, prevents the decision-makers listed in sections 115 or l15A of the Act from affording an oral hearing (whether by video link or otherwise) to a prisoner in respect of any act, matter or thing referred to in those sections.
4. It be declared that no policy or approach put forward by the Chairperson of [the] Respondent, prevents the Respondent from affording an oral hearing (whether by video link or otherwise) to a prisoner in respect of any act, matter or thing referred to in section 115 of the Act or prevents the decision-makers referred to in section 115A from doing so in respect of any act, matter or thing under that section.
5. The order nisi be otherwise discharged.
6. Subject to paragraph 7 below, the Respondent pay the Applicant's costs, including any costs in respect of interlocutory matters, to be taxed if not agreed.
7. The Intervener pay the Applicant's costs set out in Seiffert v Prisoners Review Board [2010] WASC 239 at [23], to be taxed if not agreed.
8. Alternatively to 6 and 7, Intervener pays the Applicant's costs, including any cost in respect of interlocutory matters, to be taxed if not agreed.
4 We will deal with the orders proposed in turn.
Proposed order 1
5 The applicant submits that proposed order 1 appropriately declares the content of the obligation imposed upon the Board with respect to the provision of reasons for certain of its decisions. On behalf of the intervener, it is submitted that it is well established that declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions, or which might pertain to circumstances that have not occurred and might never happen - see Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581 - 582. This submission should be accepted. Proposed order 1 is in the nature of an answer to an abstract or hypothetical question. The proposed order makes no particular reference to the applicant or to his rights in the circumstances that gave rise to the proceedings.
(Page 5)
Proposed order 2
6 The applicant submits that these orders accurately reflect the court's conclusions and that the Board's breaches of its statutory obligations 'had important flow-on effects for the applicant … they in effect thwarted his section 115A internal review rights'. The intervener submits that proposed order 2 should not be made because it is futile and would produce no foreseeable consequences for the parties. The intervener's submission should be accepted.
7 The applicant does not contend that the grant of declaratory relief in the form sought in proposed order 2 would have any practical consequences. In particular, he does not contend that he would now seek to exercise any right to seek internal review of the Board's decision to cancel his parole under s 115A of the Act. As we noted in our reasons, once it is concluded that the Board's decision to cancel the applicant's parole was valid and should not be set aside, it is difficult to see how any other relief sought by the applicant could have any practical utility given that the Board has reviewed the question of whether the applicant should be recommended for parole, in the light of his then current circumstances. Accordingly, a declaration that the Board failed to provide the applicant with an adequate statement of reasons for its decision to cancel his parole more than two years ago will not have any practical consequence or utility for the applicant. Similarly, the applicant was in due course given written notice of the Board's decision to cancel his parole, and is now aware of the effect of s 115A of the Act with the result that an order declaring that the Board had breached its obligations in those respects will be of no practical utility.
Proposed orders 3 and 4
8 The applicant submits that proposed orders 3 and 4 accurately reflect views expressed by the court in its reasons. Whether or not that is so, the proposed orders plainly suffer the same basic defect as proposed order 1, in that they purport to answer abstract or hypothetical questions, and make no reference whatever to the rights of the applicant in the circumstances which gave rise to these proceedings. Proposed orders 3 and 4 should not be made.
Proposed order 5
9 As we have concluded that the declaratory relief sought by the applicant should not be granted, the order should simply record the discharge of the order nisi.
(Page 6)
Proposed orders 6 - 8
10 The applicant contends that he should be awarded the costs of the proceedings because:
(a) the Board failed to comply with its statutory obligations with respect to the provision of reasons for its decision to cancel the applicant's parole;
(b) it was reasonable for the applicant to challenge the 'no hearing' rule which he asserted the Board had adopted;
(c) it was necessary for the applicant to pursue a number of contested interlocutory applications upon which he was successful;
(d) an affidavit dated 10 December 2010 was filed on behalf of the Board which went well beyond that which had been requested by the court.
11 Significantly, the applicant does not and could not submit that he was substantially successful in these proceedings. Accordingly, the general rule is that, as an unsuccessful party, he should not recover his costs (see O 66 r 1, Rules of the Supreme Court 1971). None of the matters advanced by the applicant provide any justification for departing from that general rule.
12 While the court did conclude that the Board had failed to comply with its obligation to provide reasons for its decision to cancel the applicant's parole, the applicant failed to establish grounds for any of the substantive relief which he sought. Accordingly, his partial success on the grounds relating to breach of the Board's statutory obligations following its decision to cancel his parole, are offset by his substantial failure on the various other grounds which he raised. The applicant's submissions with respect to the 'no hearing rule' were rejected by a majority of the court. In relation to the contested interlocutory applications, in one instance, an order was made against the intervener and in favour of the applicant (which requires no further order to give it effect). In other instances orders were made to the effect that the costs be in the cause, and in other instances, costs orders have not yet been made. In relation to the orders made with respect to costs in the cause, as the applicant has failed to establish an entitlement to any substantive relief, it should be concluded that the cause has been determined against him. Similarly, in relation to those matters where costs orders were not specifically made, they should be regarded as part of the cost of preparation for the substantive hearing
(Page 7)
- which was determined adversely to the applicant. The assertion made with respect to the affidavit dated 10 December 2010 is not justified. The affidavit was filed in response to a direction by the court and sufficiently complied with that direction.
13 For these reasons, no costs orders should be made in the applicant's favour. Neither the Board nor the intervener seeks any order for costs against the applicant. Accordingly, there should be no order as to costs.
14 For these reasons, the orders of the court will be:
(1) Order nisi discharged; and
(2) No order as to costs.
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