Seiffert v The Prisoners Review Board
[2020] WASC 370
•15 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SEIFFERT -v- THE PRISONERS REVIEW BOARD [2020] WASC 370
CORAM: MASTER SANDERSON
HEARD: 24 AUGUST 2020
DELIVERED : 15 OCTOBER 2020
PUBLISHED : 15 OCTOBER 2020
FILE NO/S: CIV 1561 of 2017
BETWEEN: JASON ANDREW SEIFFERT
Plaintiff
AND
THE PRISONERS REVIEW BOARD
First Defendant
THE STATE OF WESTERN AUSTRALIA
Second Defendant
Catchwords:
Tort - Application to strike out action for damages based on alleged breach of Sentencing Administration Act 2003 (WA) - Turns on own facts
Legislation:
Australian Human rights Commission act 1986 (Cth)
Public Sector Management Act 1994 (WA)
Sentencing Act 1995 (WA)
Sentencing Administration Act 2003 (WA)
Result:
Plaintiff's claim struck out and judgment entered for the defendants
Category: B
Representation:
Counsel:
| Plaintiff | : | G Hevey |
| First Defendant | : | C J Thatcher SC |
| Second Defendant | : | C J Thatcher SC |
Solicitors:
| Plaintiff | : | Forbes Kirby |
| First Defendant | : | State Solicitor's Office |
| Second Defendant | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Modbury Triangle Shopping Centre Pty Ltd vAnzil (2000) 205 CLR 254
Seiffert v The Prisoners Review Board [2011] WASCA 148
Sovar v Henry Lane Pty Ltd [1967] 116 CLR 397
MASTER SANDERSON:
By chamber summons filed 13 March 2020 the plaintiff sought relevantly the following orders:
…
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.
…
In the alternative, the first defendant sought an order it be removed as a party to the proceedings. In his written submissions, counsel for the plaintiff conceded the present first defendant ought be removed as a party to the action.[1] In other words, the plaintiff conceded no cause of action existed against the first defendant. Counsel also conceded that the cause of action required repleading. Ordinarily that would be enough to dispose of the chamber summons. But the second defendant maintained that no repleading could cure the fundamental defects in the plaintiff's claim. In other words, this application was to be determined as a point of principle. The question then was this - taking into account all material facts could the plaintiff plead a cause of action against the defendant which would sound in damages. The answer to that question is 'no' and the plaintiff's action should be dismissed.
[1] Plaintiff's outline of submissions in opposition to the defendants' application to strike out the substituted statement of claim and for removal of the first defendant as a party filed 29 June 2020 [2].
The brief background facts are these. On 18 December 1997, the plaintiff was sentenced to life imprisonment for murder. He was made eligible for parole after a minimum period of 10 years.[2] He was eventually released on parole in or about December of 2014.[3] The plaintiff's claim is essentially that he should have been released on parole sometime after 2007 and before 2014. The plaintiff's case was the subject of an application for judicial review: Seiffert v The Prisoners Review Board.[4] In his reasons Martin CJ summarised the nature of the application and the outcome in the following way:
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. Appropriately, the Board has filed a submitting appearance and taken no part in these proceedings other than to provide relevant documents to the court, and some evidence. The Attorney General of Western Australia has intervened to act as a contradictor and to provide the court with submissions on issues of public importance. 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.
[2] Substituted statement of claim filed 7 August 2020 [3].
[3] Substituted statement of claim filed 7 August 2020 [55].
[4] Seiffert v The Prisoners Review Board [2011] WASCA 148 [1].
In [2] to [43] of his decision the Chief Justice set out the relevant facts. His Honour then set out the legislative framework and the ground upon which the plaintiff had applied for a review. His Honour concluded:[5]
As I have indicated, understandably the focus of Mr Seiffert's claims for relief was upon orders directed to acknowledging or effecting the invalidity of the Board's decision to cancel his parole. Although he was undoubtedly denied procedural fairness, for the reasons I have given, he has not established any entitlement to relief on that ground. Further, although he has established that the no hearing rule adopted by the Board is unlawful and invalid, he has not succeeded in establishing that the Board's adoption of that rule gives rise to any entitlement to an order setting aside the Board's decision to cancel his parole. And although Mr Seiffert has established that the Board failed to comply with the obligations imposed by s 107B of the Act at the time it decided to cancel his parole, he has failed to establish that the Board's failure amounted to jurisdictional error, or to non-jurisdictional error on the face of the record which might entitle him to an order quashing the Board's decision to cancel his parole. It follows that Mr Seiffert has failed to establish grounds for the relief which he primarily sought.
If Mr Seiffert had established that the order of the Board cancelling his parole was invalid, or that he was entitled to an order of the court quashing that decision of the Board, questions would have arisen as to the effect of such conclusions under the statutory provisions to which I have referred, having regard to the fact that Mr Seiffert did not complete the term of his parole within the community. These are difficult questions, which it is unnecessary to consider because of the conclusions at which I have arrived in relation to the validity of the Board's order to cancel Mr Seiffert's parole.
However, this is not to say that Mr Seiffert may not be entitled to other forms of relief, including declaratory relief. In my view the preferable course would be to invite submissions from the parties as to the appropriate form and terms of any such relief following publication of these reasons.
[5] Seiffert v The Prisoners Review Board [199] - [201].
The plaintiff in this case has filed three versions of a statement of claim. By the original statement of claim (SOC)[6] and amended statement of claim (ASOC)[7] the plaintiff pleaded that he was falsely imprisoned. He also pleaded the Prisoners Review Board (Board) was in breach of duties under the Public Sector Management Act 1994 (PSMA) and the Australian Human Rights Commission Act 1986 (Cth) (AHRCA) and was therefore in breach of duties at common law 'to accord the plaintiff natural justice and procedural fairness in the exercise of its duty'.[8] The plaintiff also pleaded the second defendant breached the PSMA and breached duties at common law to afford natural justice and procedural fairness.[9] As counsel for the defendants noted, in substance the earlier proceedings were to the effect the Board and the Minister had breached common law 'duties of procedural fairness and natural justice' and breached statutory duties under the PSMA and the AHRCA. The plaintiff also claimed he was wrongfully arrested and imprisoned.[10]
[6] Statement of claim filed 12 September 2017.
[7] Amended statement of claim filed 9 November 2017.
[8] Amended statement of claim filed 9 November 2017 [11].
[9] Amended statement of claim filed 9 November 2017 [16].
[10] Defendants' outline of submissions in support of application for orders striking out substituted statement of claim and removing the first defendant as a party filed 9 June 2020 [10].
In their defence to the ASOC filed 7 December 2017, the defendants denied allegation of false imprisonment and unlawful arrest. They pleaded that at all times from the time the plaintiff was sentenced on 18 December 1997 until his eventual release on parole in December of 2014, he was lawfully held pursuant to a warrant of commitment issued on 18 December 1997.[11] Now by a substituted statement of claim (Substituted SOC) the plaintiff concedes the point as to false imprisonment and that claim has been deleted.
[11] Defendants' outline of submissions in support of application for orders striking out substituted statement of claim and removing the first defendant as a party filed 9 June 2020 [11].
In an amended indorsement of claim the plaintiff succinctly sets out the causes of action he is advancing. That amended indorsement reads as follows (marking up omitted):
1.The Plaintiff's claim is for damages against the defendants for:
a) Statutory Breaches of the Sentencing Act 2003 ('Act');
b) Breaches of Statutory Duty under the Act; and
c) Breaches of Common Law Duty.
2.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
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.
Turning then to the Substituted SOC, the alleged breach of statutory duty is pleaded in this way:
37.In the premises, the First Defendant breached its statutory duties to the Plaintiff in the following respects:
37.1It breached its Duty to Give the Required Notice by failing to provide the Plaintiff with written notice of its decision to issue the Parole Cancellation Order as soon as practicable after that decision was made;
37.2It breached its Duty to Give Reasons by failing to provide the Plaintiff with a written notice of its decision to make the Parole Cancellation Order, including its reasons for decision, as soon as practicable after that decision was made;
37.3It breached its Duty to Inform of the Right to a Review by failing to provide the Plaintiff with a written notice of its decision to make the Parole Cancellation Order, including the effect of section 115A, as soon as practicable after that decision was made;
37.4It breached the Duty to Review Promptly by failing to conduct a s 115A review of its decision to make the Parole Cancellation Order within the term of the First Parole Order;
37.5It breached the Duty to Review on the Facts by purporting to conduct a s 115A review on the basis of the DCS Advice without checking the accuracy of that evidence; and
37.6By reason of the breaches at paragraphs 37.1 to 37.5 herein the First Defendant failed to afford the Plaintiff a review of the Parole Cancellation Order as required by s 115A of the Act within the term of the First Parole Order or at all.
('First Defendant's Breaches of Statutory Duty')
The breach of the common law duty of care is pleaded in this way:
39.The Plaintiff says that the First Defendant's statutory obligations, the statutory duties owed to him by the First Defendant and his vulnerability as a sentenced prisoner gave rise to common law duties of care owed to him by the First Defendant, such that in the circumstances where the Plaintiff:
(a)had sought a review of the decision by the First Defendant to cancel his parole and would, were the review conducted and decided in his favour during the term of the First Parole Order, retain the benefit of that order; and
(b)the First Defendant was on notice that the Plaintiff was, or may, not be aware of the reasons it gave for the decision under review;
the First Defendant had a common law duty to the Plaintiff:
39.1To check to ensure that it had complied with its statutory obligations to the Plaintiff under the Act before purporting to determine any application for review under s 115A of the Act, and the Plaintiff repeats paragraphs 18 and 19 herein ('Duty of Care to Comply').
PARTICULARS
A.The Plaintiff as a sentenced prisoner was especially vulnerable, being held in custody, subject to the First Defendant's decision making under the Act and was unable to seek to establish relevant facts other than through agents.
B.The First Defendant knew, and it was reasonably foreseeable, that if it failed to comply with its statutory obligations in respect of the Plaintiff under the Act any purported review by it under s 115A of the Act would fail to provide such a review, and would deny the Plaintiff the benefit of a review.
C.A reasonable person in the First Defendant's position would have ensured that it met its statutory obligations before purporting to conduct any review under s 115A of the Act.
39.2To refrain, where reasonably practicable to do so, from determining, or purporting to determine such a review without first checking the accuracy of the facts presented to it, and upon which intends to, or does, rely; in this case including the DCS Advice ('Duty of Care to Act on the Facts'),
PARTICULARS
A.The Plaintiff repeats the particulars at paragraph 39.1.
B.Reviews under s 115A of the Act are intended to preclude any decision to cancel a prisoner's parole being made upon the basis of factual error (s 115A(6) of the Act).
C.The constructive or effective denial of a review under s 115A of the Act to a prisoner, such as the Plaintiff, may lead to his continuing incarceration without benefit of such a review.
D.The First Defendant was in a position where promptly checking the DCS Advice was reasonably practicable, and a reasonable person would have done so, as it merely required that a 'member' of the First Defendant (refer to s 103(1) of the Act) consult the court record to establish the fact of, the circumstances pertaining to, and the penalty for, the Assault Conviction.
E.The First Defendant knew, and it was reasonably foreseeable, that if it purported to conduct a review under s 115A of the Act in circumstances where it had not checked the facts upon which it intended to, or did, rely, and where it was reasonably practicable to do so, there was a significant risk that a prisoner may, as the Plaintiff did, lose the benefit of such a review, as any decision made on such a purported review is not on its face a reviewable decision within the meaning of S 115A(1),
and
39.3To conduct any such review according to law and in a timely way such that, where reasonably practicable, it be conducted before the expiry of any relevant parole order ('Duty of Care to Review').
PARTICULARS
A.The Plaintiff repeats the particulars at paragraph 39.1.
B.The First Defendant knew, and it was reasonably foreseeable, that if it did not conduct a review within the term of the First Parole Order the Plaintiff would, or was likely to, lose any benefit of that order.
C.In the premises, a reasonable person would have ensured that, where reasonably practicable to do so, any s 115A review was conducted during the term of the First Parole Order.
D.The First Defendant knew, or it was reasonably foreseeable, that if, having cancelled the Plaintiff's parole it were to fail:
i.to conduct a review of its decision under s 115A of the Act during the term of the First Parole order, despite it being reasonably practicable to do so, the Plaintiff would, or was likely to, lose the benefit of the First Parole Order such that he must then satisfy the First Defendant that it recommend he be re-admitted to parole, and/or
ii. to conduct such a review at all;
that would extend the Plaintiff's term of incarceration leaving the question of his future parole to annual reviews under the Act without the benefit of a parole order and, in respect of (ii), without the benefit of a s 115A review.
Dealing first with the alleged breach of statutory duty, as counsel for the defendants noted one of the elements of the tort is that parliament intended to create a private right of action for breach of duty.[12] In determining whether or not a right of action exists that is a fundamental threshold question. It is a question of statutory interpretation. In Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397, Kitto J put the position this way (at 405):
The intention that such a private right shall exist is not, as some observations made in the Supreme Court in this case may be thought to suggest, conjured up by judges to give effect to their own ideas of policy and then 'imputed' to the legislature. The legitimate endeavour of the courts 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, and the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation. … It is not a question of the actual intention of the legislators, but the proper inference to be perceived upon a consideration of the document in light of all its surrounding circumstances. Of course, as reported cases illustrate again and again, decisions given upon enactments which seem fairly comparable will not always be easy to reconcile with one another, for upon questions of inference some lack of uniformity of opinion is to be expected. But that is no justification, it seems to me, for seeing the task as other than a genuine exercise in interpretation.
[12] Defendants' outline of submissions in support of application for orders striking out substituted statement of claim and removing the first defendant as a party filed 9 June 2020 [29].
Before looking at the statute itself, it is as well to bear in mind the plaintiff, when sentenced, was made eligible for parole. He was not guaranteed parole or assured if he conducted himself in a particular way, parole would automatically follow. In other words, the order making him eligible for parole conferred upon him no right. It may have meant a privilege could be extended to him, but he did not after 10 years, have a right to parole.
It is against that background that the Sentence Administration Act 2003 (WA) (SA Act) must be considered. By s 5B the SA Act makes it plain the primary consideration of the Prisoners Review Board is the safety of the community. The inclusion of that provision in the SA Act clearly indicates the legislature had in mind what the duties of the Board should be. But the legislature did not ignore the rights of the prisoner. There is a right of judicial review, which in this case was exercised by the plaintiff. 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 plaintiff'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.
Nor can any action lie against the Governor. The plaintiff pleads that the Governor had a statutory obligation to impose a subsequent parole term that complies with s 73(2) of the SA Act. The power of the Governor to make a further parole order in respect of the plaintiff was contained in s 73(1) of the SA Act. That section provided:
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.
The plaintiff's parole period was to be calculated by reference to the 'old provisions', i.e. the provisions contained in the Sentencing Act 1995 and the SA Act as they would have been, but for the amendments to the Sentencing Act. The relevant provision is s 43(2) of the SA Act which is in terms substantially similar to s 73(2) of the SA Act. Section 71(1) and s 71(2) of the SA Act and s 43(2) of the SA Act provide that a parole period cannot exceed the term of the original parole order.
In the case of a prisoner serving a life sentence, the power to make a parole order is vested in the Governor: see SA Act, s 25. 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. There is no obligation on the Executive Council to advise the Governor to act in accordance with the Board's recommendations. Accordingly, there is necessarily an element of political discretion in the decision whether or not to make a parole order in respect of life term prisoners.
In substance, the decision whether or not to release the prisoner is the subject of the Board's report and recommendation to the Minister. While a parole order and the setting of a parole period affects the rights of the individual prisoner, it is not done solely for the benefit of the prisoner. 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.
That leaves the plaintiff's claim in negligence. In Modbury Triangle Shopping Centre Pty Ltd v Anzil,[13] Gleeson CJ had this to say about duty of care:
Most actions in tort which come before trial courts arise out of relationships in which the existence of a duty of care is well established, and the nature of the duty well understood. Cases arising out of the use of a motor vehicle, or involving employer and employee, or bailor and bailee, turn upon the application to the facts of well settled principles concerning legal responsibility. References to duty of care, breach of duty, and causation provide convenient sub-headings for a judgment, but in many cases the concepts require no further analysis. In other cases, of which the present is an example, there is a real issue as to the scope of legal responsibility. Such an issue cannot then be resolved by a detailed recitation of the facts, the repetition of the standard rubrics under which discussion of the tort of negligence is commonly organised, and an appeal to common sense. I do not suggest that is what occurred in the present case. The learned judges identified and addressed the problem that arose, although, as will appear, I disagree with the conclusion they reached. A recitation of facts may not be useful unless it distinguishes between facts essential to the cause of action, particulars, and evidence. Modern pleadings take a form which often blurs such distinctions. The rubrics under which issues are organised for discussion may do little to assist the resolution of those issues. Common sense is important, but it is not a substitute for legal analysis when that is required.
In some cases, where there is a problem as to the existence and measure of legal responsibility, it is useful to begin by identifying the nature of the harm suffered by a plaintiff, for which a defendant is said to be liable.
[13] Modbury Triangle Shopping Centre Pty Ltd vAnzil (2000) 205 CLR 254 [13] – [14].
Hayne J made comments to a similar effect:[14]
I add something on my own account about some aspects of the debate in this case about duty of care. "The concept of a duty of care, as a prerequisite of liability in negligence, is embedded in our law by compulsive pronouncements of the highest authority." It is not "an unnecessary fifth wheel on the coach". Rather, as Professor Stapleton has pointed out, it is a concept which "allows courts to signal … relevant systemic factors going to the issue of liability".
The scope of a duty of care
In almost every case in which a plaintiff suffers damage it is foreseeable that, if reasonable care is not taken, harm may follow. The conclusion that harm was foreseeable is well-nigh inevitable. As Dixon CJ said in argument in Chapman v Hearse, "I cannot understand why any event which does happen is not foreseeable by a person of sufficient imagination and intelligence." Foresight of harm is not sufficient to show that a duty of care exists.
…
In cases such as the present, where the extent of the relevant duty is not clear, it is useful to begin by considering the damage which the plaintiff suffered, and the particular want of care which is alleged against the defendant. Asking then whether that damage, caused by that want of care, resulted from the breach of a duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff's allegations of breach and damage must depend.
(citations omitted)
[14] Modbury Triangle Shopping Centre Pty Ltd vAnzil [99] – [100], [105].
The point to be drawn from Modbury is this. It may have been foreseeable that if the Prisoners Review Board did not follow the procedure mandated by the SA Act, the plaintiff might suffer loss and damage. But that is not sufficient to establish that a duty of care exists. It is necessary to look at harm suffered by the plaintiff. In this case he remained in lawful custody - the plaintiff has conceded the custody was legal. That being the case, it is not possible to identify a duty of care which has been breached by the second defendant. As a necessary adjunct to that reasoning, a claim in tort is not actionable absent damage. Here the plaintiff has suffered no damage. He was lawfully detained. There is no cause of action.
For these reasons, the plaintiff's claim will be struck out and judgment will be entered for the defendants. The plaintiff ought pay the defendants' costs of the action and this application, including reserved costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to Master Sanderson15 OCTOBER 2020
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