Cutts v The Board of the Queensland Regional Parole Board
[2010] QCA 60
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- Unreported Judgment
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 19 March 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 March 2010 |
JUDGES: | Holmes, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Appeal dismissed with costs |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where appellant unsuccessfully sought judicial review of a decision to refuse parole – where appellant not permitted to appear personally before the decision-maker – where appellant not permitted to appear personally to hear delivery of judgment – where decision-maker’s meeting conducted by telephone – where decision-maker relied on a report prepared for a fee by a psychologist previously employed by Qld Corrective Services – where decision-maker relied on a report whose factual accuracy the appellant challenged – where appellant maintained innocence and refused to complete relevant course – where appellant did not furnish decision-maker with information as to how he would manage risk factors for re-offending – whether refusal to allow appellant to appear before the decision-maker and to appear for delivery of judgment amounted to breaches of natural justice – whether decision-maker’s meeting by telephone within jurisdiction – whether psychologist disqualified from giving opinion and whether decision infected by bias – whether decision-maker’s reliance on a report said to be factually inaccurate invalidated the decision-making process – whether decision-maker’s reliance on appellant’s failure to complete course blind application of policy – whether decision-maker’s reliance on the failure to furnish information regarding risk factors involved any error of law Corrective Services Act 2006 (Qld), s 238(5), s 238(13) Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14, cited Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21, considered Kioa v West (1985) 159 CLR 550; [1985] HCA 81, considered Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21, cited |
COUNSEL: | The appellant appeared on his own behalf A A J Horneman-Wren SC for the respondent |
SOLICITORS: | The appellant appeared on his own behalf Crown Law for the respondent |
[1] HOLMES JA: The appellant appeals a decision dismissing his application for judicial review of the respondent Board’s refusal of his parole. The grounds of appeal are not easy to understand, but he has made written and oral submissions which identify his complaints more clearly.
[2] The appellant is serving a sentence of six years imprisonment for a number of offences, including rape, committed against a single complainant. His parole eligibility date was 17 April 2008. In October 2008, his application for parole was rejected by the Board and he sought judicial review of that decision; by consent order, the decision was set aside and his application for parole was remitted to the Board for reconsideration. On 16 February 2009, the Board wrote to the appellant, advising him that it was considering refusing the application and inviting further submissions on specific matters, a request to which the appellant responded. On 27 February 2009, the Board reconsidered all the material which the appellant had placed before it and rejected the application. It provided its reasons to the appellant on 13 March 2009.
[3] The appellant then made an “application for re-directions hearing” to the Supreme Court, which was treated as an application for judicial review of the dismissal of his parole application. It contained no grounds, but the appellant filed an outline of argument in which he contended that there was a breach of natural justice in his not being permitted to attend personally before the Board to make his submissions; that the Board’s decision was infected by bias because it had relied on the report of a psychologist, Mr Palk, who had previously worked for Corrective Services and been paid for providing reports on offenders; that the Board’s insistence on his completing a sex offender’s course, although he maintained his innocence of the charges, was contrary to law; and that the Board had wrongly acted on information provided to it by a Corrective Services internal review panel. To those grounds he added, in oral argument before the learned primary judge, that the Board lacked jurisdiction because the meeting was held by means of the Board’s secretary contacting the members by telephone. The primary judge considered and rejected each of those grounds.
[4] Here, the appellant’s first complaint was that there had been a breach of the rules of natural justice because he was not brought in to hear the primary judge’s judgment delivered on 3 August 2009 and was not informed of the outcome for nearly two months. However, he clearly became aware that his application was dismissed, because he signed his notice of appeal on 21 August 2009. If there were a delay in providing him with the reasons, that is regrettable, but it is irrelevant to the correctness of the judgment below.
[5] The next complaint was that the learned judge made what is described as “an error of law” as to when the consent order made as a result of the appellant’s first application for judicial review was signed. If his Honour did make any such error, it was one of fact and had no bearing on the issues for his decision. Similarly, the appellant said that the learned primary judge made another “error of law” in not recognising that the Board had not paid the appellant’s costs in relation to the earlier consent order. Again, whatever the truth of the assertion of default may be, it had nothing to do with what his Honour had to decide.
[6] Next, the appellant asserted error on the judge’s part as to his power under the Judicial Review Act: his Honour said that it was not the court’s function on an application for judicial review to review the merits of the decision or to substitute its decision for that Board. The appellant contended that that was wrong; the learned judge should have decided the matter for himself and granted parole. But the distinction between review of an administrative decision’s legality and review of its merits is well entrenched in High Court decisions dealing with the scope of judicial review. Thus, in Attorney-General (NSW) v Quin,[1] Brennan J observed:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”[2]
Observations to similar effect may be found in Abebe v Commonwealth[3] and Minister for Immigration and Multicultural Affairs v Eshetu[4]. The learned primary judge’s articulation of his role is unimpeachable.
[7] The appellant said that the learned judge was wrong in rejecting his argument that the refusal to allow him to appear before the Board constituted a breach of the rules of natural justice. In this regard, his Honour observed that, in the context of the case, natural justice required an opportunity to address the matters thought to be adverse to the appellant, which had been afforded. He went on to observe that the Corrective Services Act 2006 (Qld) permitted an appearance before the Board only with leave, upon an application made in the approved form.
[8] The content of what natural justice requires depends largely on construction of the statute under which the decision is being made; the obligation is a flexible one, to
“adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.”[5]
His Honour was right to have regard to the statutory limitation on appearance in person and to conclude in the circumstances of the case that the obligation of fairness was met by the giving of the opportunity to make submissions. The rules of natural justice did not mandate a personal appearance.
[9] The appellant contended that the Board lacked jurisdiction because it had proceeded by telephone at the meeting which declined his parole application. That contention was advanced for the first time at the hearing of the application for judicial review. It was based on a discovered minute for the meeting of 27 February 2009, which said that on that date “a ring around was conducted”, involving named members of the Board who were contacted to consider the appellant’s further submissions. The learned judge rejected the appellant’s argument that the Board had no jurisdiction to proceed by means of telephone in reaching the decision to reject his parole application. His Honour observed that the Corrective Services Act permits a meeting to be held by “using a contemporaneous communication link” (s 238(5)), and gives a broader power to the Board to conduct its meetings in the “way it considers appropriate” (s 238(13)).
[10] “Contemporaneous communication link” is defined in schedule 4 of the Act as meaning
“a link using technology that allows persons using the link to hear and take part in discussions as they happen.”