Smart v Prisoner Review Board (WA)
[2012] WASC 48
•16 FEBRUARY 2012
SMART -v- PRISONER REVIEW BOARD (WA) [2012] WASC 48
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 48 | |
| Case No: | CIV:2968/2011 | 8 FEBRUARY 2012 | |
| Coram: | PRITCHARD J | 16/02/12 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Leave to file the originating motion, amended in accordance with these reasons | ||
| B | |||
| PDF Version |
| Parties: | ANDREW JACOB SMART PRISONER REVIEW BOARD (WA) |
Catchwords: | Application for leave to file originating motion Abuse of process Litigant in person Order 67 r 5 Rules of the Supreme Court 1971 (WA) |
Legislation: | Rules of the Supreme Court 1971 (WA), O 67 r 5 Sentence Administration Act 2003 (WA), s 115A |
Case References: | Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 Miketic v Prisoners Review Board [2011] WASC 176 Smart v WA Police [2011] WASC 99 Subotic v Prisoners Review Board [2011] WASC 177 Tobin v Dodd [2004] WASCA 288 Walton v Gardiner (1993) 177 CLR 378 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
PRISONER REVIEW BOARD (WA)
Defendant
Catchwords:
Application for leave to file originating motion - Abuse of process - Litigant in person - Order 67 r 5 Rules of the Supreme Court 1971 (WA)
Legislation:
Rules of the Supreme Court 1971 (WA), O 67 r 5
Sentence Administration Act 2003 (WA), s 115A
Result:
Leave to file the originating motion, amended in accordance with these reasons
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : In person
Defendant : No appearance
Solicitors:
Plaintiff : In person
Defendant : No appearance
Case(s) referred to in judgment(s):
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Miketic v Prisoners Review Board [2011] WASC 176
Smart v WA Police [2011] WASC 99
Subotic v Prisoners Review Board [2011] WASC 177
Tobin v Dodd [2004] WASCA 288
Walton v Gardiner (1993) 177 CLR 378
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
(Page 3)
- PRITCHARD J:
Background
1 Mr Smart is currently serving a sentence of imprisonment. In September 2011 he sought to file an originating motion (the original motion), supported by a statutory declaration, in this court. In the original motion, Mr Smart sought 'an order of parole / and - or compensation'. The original motion did not set out any grounds for the application. The Principal Registrar refused to file the original motion without the leave of a judge having been first obtained, pursuant to O 67 r 5 of the Rules of the Supreme Court 1971 (WA) (RSC).
2 Mr Smart has now filed an originating motion for leave to file his original motion (the leave application). The leave application was supported by an affidavit which largely reflected the terms of the statutory declaration which accompanied the original motion.
3 On its face, the original motion failed to outline any basis from which might be discerned any grounds for the relief sought by Mr Smart. The leave application, on its face, did not make the position any clearer. The affidavit sworn by Mr Smart in support of the leave application gave some hints as to the nature of the proceedings Mr Smart sought to bring in this court, but did not annex any documents. As Mr Smart was self-represented at the hearing of the leave application, I permitted him considerable latitude to explain in more detail the nature of the proceedings which he sought to pursue in this court, and what he saw as the basis for those proceedings. I also permitted Mr Smart to provide to the court, after the hearing of the leave application, copies of documents to which he made reference in the course of the hearing.
The application for leave
4 It appears that Mr Smart is eligible for parole in respect of a sentence imposed after the commencement of the Sentence Administration Act 2003 (WA) (the SA Act): see Smart v WA Police [2011] WASC 99. A decision as to whether Mr Smart should be released on parole is a matter for the Prisoners Review Board (the Board) under the SA Act. The documents provided by Mr Smart indicate that on 27 June 2011 the Board made a decision to deny Mr Smart's release on parole. Mr Smart then sought a review of that decision pursuant to s 115A of the SA Act. On 7 July 2011 the Board denied Mr Smart's request for a review of its earlier decision.
(Page 4)
5 Mr Smart also submitted that on 22 July 2011, the Board wrote to him to advise that it would not provide him with a written response to any of his further inquiries. A copy of the Board's letter was provided to the court. In that letter the Board advised that Mr Smart could reapply for reconsideration of his parole application when he was able to present a significant change in his circumstances, and that the Board would not provide a written response to any further correspondence from Mr Smart absent a significant change in his circumstances.
6 Having regard to the submissions made by Mr Smart at the hearing of the leave application, it appears that what Mr Smart seeks to achieve by the original motion is to have this court set aside the decisions of the Board of 27 June 2011 and 7 July 2011 (the decisions to refuse parole). Insofar as the Board's letter of 22 July 2011 is concerned the position is less clear. However it appears that Mr Smart either seeks to set aside the Board's decision (if the letter in fact records a decision) to refuse to correspond with him or alternatively to compel the Board to respond to Mr Smart's correspondence and thereby to consider further the question of Mr Smart's parole.
7 Although there was some overlap in the grounds relied on by Mr Smart to have the decisions to refuse parole set aside, it appears that broadly speaking Mr Smart advances five grounds. First, Mr Smart submitted that the Board failed to comply with the requirements of the SA Act in that it failed to obtain accurate information in relation to his circumstances, and reached conclusions not supported by the information available to it. Secondly, Mr Smart submitted that the Board made an error of law in that it failed to obtain appropriate information in relation to his circumstances, in the form of an up to date and accurate Individual Management Plan (a document prepared by prison authorities in relation to a prisoner). Thirdly, Mr Smart submitted that the Board erred in that it relied on information that was incorrect in a variety of respects. Fourthly, Mr Smart submitted that the Board erred in that the terms of its decisions suggested the Board failed to take into account information supporting his release on parole. Finally, Mr Smart submitted that the Board erred in law because it had failed to take into account that his continuing incarceration was, according to Mr Smart, cruel and unusual punishment which he contended is prohibited by the Australian Constitution.
8 As for the Board's letter of 22 July 2011, Mr Smart submitted that the Board's refusal to respond in writing to further correspondence from him was contrary to the 'parole legislation', but he was unable to identify
(Page 5)
- precisely the source of any such statutory obligation. The existence and source of any such statutory obligation on the Board remains unclear.
Determination of the leave application
9 Order 67 r 5 of the RSC requires a registrar to refuse to file a motion if it appears to the registrar to be an abuse of the process of the court. What amounts to an abuse of the court's process is insusceptible of a formulation comprising closed categories: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256, 265 [9] (Gleeson CJ, Gummow, Hayne & Crennan JJ). However, it is well accepted that an abuse of process encompasses 'all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness': Walton v Gardiner (1993) 177 CLR 378, 393 (Mason CJ, Deane & Dawson JJ). The filing of the original motion would, at least on the face of that document, have constituted an abuse of the court's process - the original motion failed to set out any basis for the relief sought, and in so far as Mr Smart sought that the court make an order granting him parole, the court would not have been able to grant such relief.
10 In dealing with the leave application, I have borne in mind the fact that Mr Smart is self-represented and has no legal training, and that some flexibility is appropriate in considering the pleadings of self-represented litigants: cf Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 - 537 (Kirby P), 543 (Hope & Samuels JJA agreeing); see also Tobin v Dodd [2004] WASCA 288 [13] - [16] (EM Heenan J), [3] (Murray J agreeing), [70] (Le Miere J agreeing).
11 Having heard Mr Smart's submissions, it appears that the essence of the relief which he seeks in relation to the decisions to refuse parole is in the nature of prerogative relief in the form of a writ of certiorari to quash each of those decisions. A decision of the Board to refuse parole is amenable to judicial review in this Court: see for example Miketic v Prisoners Review Board [2011] WASC 176; Subotic v Prisoners Review Board [2011] WASC 177. As for the Board's letter of 22 July 2011, insofar as Mr Smart contends that the Board failed to meet a statutory duty to respond to his correspondence, and seeks that the Board be required to respond to him, the relief sought is in the nature of prerogative relief in the form of a writ of mandamus, or alternatively a writ of certiorari, to set aside any decision by the Board not to respond to him.
(Page 6)
12 Having considered the grounds relied on by Mr Smart in broad terms, and on the basis of the limited information presently before the court, I do not think it can be said that the intended proceedings in their entirety are clearly foredoomed to fail, so that to permit the institution of those proceedings would constitute an abuse of the Court's process: Walton v Gardiner (393) (Mason CJ, Deane & Dawson JJ). That having been said, it is far from clear how some of the grounds advanced by Mr Smart could ultimately be sustained, although I make no determination in relation to those grounds for present purposes.
13 Accordingly, were the original motion to be amended so as to seek prerogative relief in respect of the Board's decisions of 27 June 2011, 7 July 2011 and 22 July 2011, and to set out the grounds referred to by Mr Smart in his affidavit and in his submissions on the leave application, the filing of that motion would not constitute an abuse of the process of the court.
14 I make the following order:
1. The applicant has leave to file the originating motion, amended in accordance with these reasons.
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