Webb v Department for Correctional Services - [2024] SASCA 142

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
WEBB v DEPARTMENT FOR CORRECTIONAL SERVICES
[2024] SASCA 142
Judgment of the Court of Appeal
(The Honourable Justice S Doyle and the Honourable Justice David)
12 December 2024
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - CERTIORARI - DISCRETION OF COURT AND MATTERS PRECLUDING RELIEF - FUTILITY OF WRIT OR ORDER
This is an application for leave to appeal from a decision of a single judge of the Supreme Court on 19 August 2024, dismissing an application for judicial review.
The applicant is a prisoner who was convicted of murder in 2013, and sentenced to life imprisonment with a non-parole period of 22 years.
On 11 December 2023, the applicant issued judicial review proceedings challenging a decision by a delegate of the Chief Executive of the Department for Correctional Services made on 12 September 2023. The relevant decision was a determination pursuant to s 23(1) of the Correctional Services Act 1982 (SA) that the applicant should not be transferred from Mobilong Prison to an alternative prison. On 19 August 2024, the primary judge dismissed the application for judicial review on the basis that it was futile. It was futile because, on 21 March 2024, the Chief Executive decided that the applicant should be transferred.
Held per the Court, dismissing the application for leave to appeal:
1.In circumstances where the proposed appeal is futile, and allowing the primary judge’s decision to stand would not work a substantial injustice to the applicant, it is in the interests of justice that the application for leave to appeal be dismissed.

Correctional Services Act 1982 (SA) ss 7(2), 23, 23(1), 23(2), 23(3), 23(4), 23(5), 25, referred to.
Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200; Public Service Association of SA Inc v Industrial Relations Commissioner of SA (2013) 115 SASR 413; Vansetten v South Australia [2020] SASC 158, considered.

WEBB v DEPARTMENT FOR CORRECTIONAL SERVICES
[2024] SASCA 142
Court of Appeal – Civil: S Doyle and David JJA

THE COURT: This is an application for leave to appeal from a decision of a single judge of the Supreme Court on 19 August 2024, dismissing an application for judicial review.
The applicant is a prisoner who was convicted of murder in 2013, and sentenced to life imprisonment with a non-parole period of 22 years.
On 11 December 2023, the applicant issued judicial review proceedings challenging a decision by a delegate of the Chief Executive of the Department for Correctional Services (the Department) made on 12 September 2023. The applicant sought relief in the form of certiorari, mandamus, declaration and injunction.
The relevant decision was a determination pursuant to s 23(1) of the Correctional Services Act 1982 (SA) (CSA) that the applicant should not be transferred from Mobilong Prison to an alternative prison.
On 19 August 2024, the primary judge dismissed the application for judicial review on the basis that it was futile.
The applicant seeks to appeal that decision on several grounds, generally involving complaints that the judgment below was unjust, and that the primary judge failed to consider the basis of the applicant’s originating application, took into account irrelevant information, and erred in considering that the application was futile.
The respondent opposes leave to appeal, contending that the applicant has not identified any reasonable basis for impugning the primary judge’s decision, or any real controversy between the parties given the subsequent decision to transfer the applicant to an alternative prison.
For the reasons which follow, the application for leave to appeal should be dismissed.
Legislative framework
Section 23 of the CSA requires that the Chief Executive of the Department conduct initial and periodic assessments of prisoners serving terms of imprisonment exceeding six months. It provides:
23—Initial and periodic assessment of prisoners
(1)The CE must, as soon as practicable after the initial admission to a prison of a person who has been sentenced to a term of imprisonment exceeding six months, to life imprisonment or to a sentence of indeterminate duration, and thereafter at regular intervals of not more than one year, assess the prisoner and his or her circumstances and determine whether or not the prisoner should be transferred to some other prison.
(2)The Minister may, for the purpose of assisting the CE in carrying out assessments under this section, establish such committees as the Minister thinks fit.
(3)     In carrying out an assessment under this section, the CE must have regard to—
(a)     the age, gender, gender identity, sexuality or sexual identity, and the social, medical, psychological and vocational background and history, of the prisoner; and
(b)     the needs of the prisoner in respect of education or training or medical or psychiatric treatment; and
(c)     the aptitude or suitability of the prisoner for any particular form of training or work; and
(d)     the nature of the offence, or offences, in respect of which the prisoner is imprisoned and the length of sentence; and
(e)     the information contained in any file held by a court in respect of the prisoner; and
(f)     the behaviour of the prisoner while in prison; and
(g)     the security of, and availability of accommodation in, any prison under consideration; and
(h)     the question of maintaining the prisoner's family ties; and
(i)    where relevant, any proposed plans in respect of the release of the prisoner and his or her social rehabilitation; and
(j)    such other matters as the CE thinks relevant.
(4)The CE must notify the prisoner before commencing an assessment, and must, if the prisoner so requests, grant the prisoner an opportunity to make representations in person to the CE or to a committee established pursuant to subsection (2), including a request that, if practicable, the assessment be made by a person of the same sex or gender identity as the prisoner.
(5)The prisoner may make written representations in respect of his or her assessment to the CE or to a committee established pursuant to subsection (2).
(6)After the first assessment of a prisoner has been completed, the CE must prepare a programme in relation to the prisoner that contains particulars of any proposals for the education or training or medical or psychiatric treatment of the prisoner, and may, after any subsequent assessment, add to or vary that programme.
As can be seen, s 23(1) requires that the Chief Executive conduct initial and periodic assessments of a prisoner’s circumstances and determine whether they should be transferred to an alternative prison. Section 23(2) of the CSA provides that the Minister may establish committees for the purpose of assisting the Chief Executive in carrying out the assessments under s 23(1).
In carrying out an assessment under s 23(1), the Chief Executive must have regard to the matters set out in s 23(3). Under s 23(4), the Chief Executive must also notify a prisoner before commencing an assessment and, if the prisoner requests, grant the prisoner an opportunity to make representations in person to the Chief Executive or to a committee established under s 23(2). Pursuant to s 23(5), a prisoner may also make written representations to the Chief Executive or a committee established under s 23(2).
If the Chief Executive determines that a prisoner should be transferred to an alternative prison under s 23(1), the transfer may then be effected by the Chief Executive pursuant to s 25 of the CSA.
Pursuant to s 7(2), the Chief Executive may delegate his or her functions under the CSA.
Committees established under s 23(2) of the CSA
Prior to 20 April 2023, two committees had been established under s 23(2), Case Review Panels (CRPs) and the Serious Offender Committee (the SOC).
On 20 April 2023, the Minister issued a direction to revoke all existing committees established under s 23(2). On the same day, the Minister issued a further direction to establish Case Review Committees (CRCs) as committees pursuant to s 23(2).
Multiple CRCs, constituted by different Department personnel, may convene as committees for the purpose of assisting the Chief Executive to make an assessment under s 23(1). CRCs conduct periodic case reviews of prisoners and provide reports and recommendations to the Chief Executive (or their delegate) to assist in the carrying out of assessments under s 23(1). Every prisoner is assigned to a specific CRC for these periodic reviews.
Since the Ministerial directions issued on 20 April 2023, the SOC continues to convene, but not as a body established under s 23(2). CRPs no longer convene.
The SOC continues to deal with the management of serious offenders, a category of prisoners which includes prisoners serving a sentence of life imprisonment. The SOC may be constituted by different personnel at different times, but a quorum of three members is required, and must include a chair. The chair acts as a delegate to the Chief Executive for the purpose of carrying out s 23(1) assessments and determinations.
The Standard Operating Procedure for the SOC outlines that the chair of the SOC (and delegate to the Chief Executive) makes the s 23(1) assessments and determinations in an individual capacity; the SOC ‘does not have any role in conducting the section 23(1) assessment nor assisting the Delegate to conduct the assessment’. After a determination is made, the SOC may then discuss the prisoner’s management, including the making of any order under s 25 to transfer the prisoner to an alternative prison.
On 3 March 2023, in previous judicial review proceedings regarding s 23(1) assessments and determinations with respect to the applicant, Kourakis CJ found that the SOC was a s 23(2) committee before which the applicant was entitled to appear.[1] However, this decision has limited application since the Ministerial directions on 20 April 2023, as the SOC is no longer a committee established pursuant to s 23(2).
[1] Webb v Department for Correctional Services [2023] SASC 29.
The challenged determination
On 29 June 2023, a CRC conducted a regular case review in relation to the applicant. The applicant was represented before the CRC and provided written submissions. The CRC recommended that the applicant’s security rating be reduced from a 28-point medium security rating to a 23-point low security rating, and that the applicant be transferred from Mobilong Prison to Cadell Training Centre.
On 12 September 2023, a meeting of the SOC was held. The Chair of the SOC, and delegate of the Chief Executive, considered the CRC’s recommendations, made a s 23(1) assessment of the applicant’s circumstances and determined that his security rating should be reduced from 28 points to 25 points, and that the applicant should remain at Mobilong.
The applicant was permitted to provide further written submissions to the Chief Executive’s delegate (via the CRC) in relation to his s 23(1) assessment. He had also requested that he be permitted to appear before the SOC. He was advised that the SOC was not a committee established under s 23(2) and that, because he had already appeared before the CRC, he would not be permitted to appear before the SOC or the Chief Executive’s delegate.
After the initial determination on 12 September 2023, a placement at Cadell became available. The applicant’s Case Management Coordinator conducted a special case review and, on 29 February 2024, recommended that there be a further reduction of the applicant’s security rating to 24 points, and that the applicant be transferred to Cadell. On 21 March 2024, at an SOC meeting, the Chief Executive’s delegate endorsed this reduction and determined that the applicant should be transferred to Cadell, where he is currently imprisoned. This transfer took place on 9 April 2024.
The primary judge’s decision
As mentioned, the applicant issued judicial review proceedings on 11 December 2023 challenging the delegate’s initial decision on 12 September 2023, and seeking relief in the form of certiorari, mandamus, declaration and injunction.
In her reasons, the primary judge outlined the background and statutory context relevant to the proceedings before determining that, in light of the delegate’s subsequent decision on 21 March 2024, it was appropriate to withhold relief and dismiss the application on the basis that it was futile.
Application for leave to appeal
The applicant now seeks leave to appeal the primary judge’s decision on several grounds. In deciding whether to grant leave to appeal, the Court acts in the interests of justice and by reference to three inter-related questions: whether the decision is attended by sufficient doubt to warrant its reconsideration on appeal; whether the appeal raises an issue of principle or general importance; and whether allowing the decision to stand would work a substantial injustice to the applicant.
Turning first to the merits of the proposed appeal, the applicant has largely sought to reagitate the complaints made before the primary judge. In so doing, he has not disclosed any reasonably arguable basis for challenging the primary judge’s dismissal of the application as futile. Futility is a legitimate basis upon which a court may withhold relief.[2] The subsequent assessment and determination of the delegate on 21 March 2024 has resulted in the applicant being transferred to Cadell, where he is currently imprisoned. The relief sought by the applicant at first instance is futile in light of that subsequent determination.
[2] Vansetten v South Australia [2020] SASC 158 at [114] (Doyle J); Public Service Association of SA Inc v Industrial Relations Commissioner of SA (2013) 115 SASR 413 at [4] (Kourakis CJ), [6] (Gray J), [57] (White J); Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200 at [96] (Lander J), [130]-[131] (Buchanan J), [182]-[184] (Perram J).
Neither a desire to ‘hold the respondent … accountable’, nor the potential for a determination of the issues sought to be raised on appeal to affect the applicant’s future case reviews, is a sufficient basis to challenge the primary judge’s conclusion of futility. Further, regardless of whether the applicant’s challenge is couched as one directed to the decision not to transfer him, or the decision not to let him appear in person before the Chief Executive, the futility of the challenge remains.
Whilst the applicant seeks to raise various issues on appeal, it is not necessary to address the merits of these issues when the applicant has not identified any reasonable basis for challenging the primary judge’s refusal of his complaints on the ground of futility.
The futility of the applicant’s challenge also means that there will be no substantial injustice to the applicant in leaving the primary judge’s decision to stand. He has obtained the outcome he sought from the decision under challenge. Refusing him leave to appeal will not deny him the opportunity to achieve anything of substance.
Finally, in his Notice of Appeal, the applicant seeks orders that the respondent be required to provide him with access to electronic devices to enable him to prepare for legal proceedings. This request did not form part of the applicant’s originating application and cannot be sustained on appeal.
In summary, the applicant’s proposed appeal is futile in that he has already been granted the transfer he sought. Allowing the primary judge’s decision to stand would not work a substantial injustice to the applicant. In these circumstances, it is in the interests of justice that the application for leave to appeal be dismissed.
Conclusion
For the reasons set out, the application for leave to appeal is dismissed. The applicant is to pay the respondent’s costs of the application, fixed in the amount of $1,500.