AGNEW -v- PRISONERS REVIEW BOARD [2012] WASC 47 (15 February 2012)

3 After hearing argument, I ordered that the second respondent be removed as a party to the proceedings. I also ordered that leave be granted to the Attorney General to intervene. I reserved my decision in respect of the discovery applications. I indicated that I would publish my decision on the discovery applications, together with my reasons for decision on the other preliminary issues, prior to the substantive hearing of the matter which has been set down for 1 March 2012.

Application by the second respondent to be removed as a party

4 Mr Agnew seeks an order nisi for a writ of certiorari in respect of the second respondent 'for the purpose of being quashed, their decision (by the Superintendent of Wooroloo Prison Farm) to convict the applicant of one offence pursuant to section 69(i) Prisons Act 1981 (WA), made on or around 24 June 2009'. Mr Agnew also seeks an order nisi in respect of the first respondent and also a number of declarations, all of which relate to other decisions or actions of the first respondent. Accordingly, the proceedings against the second respondent relate solely to one identified decision and depend critically upon whether it made that decision.

5 The second respondent contended that it was not a proper party to the proceedings because it did not make the impugned decision. It was said that the Superintendent of Wooroloo Prison Farm made the decision. It was submitted that a prison superintendent has power to determine charges for minor prison offences and, in doing so, acts independently and not as a delegate or agent of the department.

6 Section 36(1) of the Prisons Act provides:

The chief executive officer shall designate a superintendent for each prison and an officer so designated as superintendent of a prison shall have the charge and superintendence of the prison for which he is designated and shall be responsible to the chief executive officer for the good government, good order, and security of that prison.

7 Part VII of the Prisons Act deals with prison offences. Section 69, which appears in pt VII, sets out a list of minor prison offences. Section 69(i) provides that a prisoner who:

[D]oes any act or omission of insubordination or misconduct subversive of the order and good government of the prison;

...

is guilty of a minor prison offence.

8 Section 71(1)(d) of the Prisons Act provides that:

[I]f the prisoner so requests and the superintendent agrees to the request, [the superintendent shall] inquire into and determine a charge of a minor prison offence in accordance with section 75.

9 Section 75(1) of the Prisons Act provides that:

Where a minor prison offence is alleged to have been committed by a prisoner and the prisoner does not admit the charge, the charge shall be determined by the superintendent or the visiting justice, as the case may be, in accordance with the procedure prescribed by regulations.

10 Section 77(1) of the Prisons Act provides that:

Where a minor prison offence is determined by a superintendent and either the prisoner admits the charge or the superintendent finds the charge proved, the superintendent may impose one or more of the following penalties -

(a) a caution;

(b) a reprimand;

[(c) deleted]

(d) cancellation of gratuities for a period not exceeding 14 days;

(e) confinement in the prisoner's sleeping quarters for not more than 72 hours.

11 The procedure to be followed in determining prison offences is provided for in the Prisons Regulations 1982 (WA). Regulation 66 and reg 67 provide as follows:

Where a prison offence is dealt with before the superintendent or a visiting justice and the prisoner charged denies the truth of the charge, the procedure subject to section 76 of the Act shall be as follows -

(a) the prosecuting prison officer shall state the case against the prisoner and call any witnesses in support of the charge;

(b) the superintendent or visiting justice may take evidence on oath, affirmation or otherwise at his discretion;

(c) the prosecuting prison officer shall conduct the examination in chief of each witness and the prisoner may crossexamine each witness;

(d) the prosecuting prison officer shall be permitted to reexamine each witness on matters arising out of crossexamination;

(e) the prosecuting prison officer shall then close his case; and

(f) the prisoner shall then give evidence on his own behalf or call his witnesses and paragraphs (c), (d) and (e) shall apply subject to necessary modification.

(1) The superintendent or the visiting justice -

(a) shall conduct proceedings expeditiously and without undue adjournment or delay;

(b) shall keep or cause to be kept an adequate record of proceedings;

(c) may question a witness called; and

(d) may direct that a particular witness be called or call and question a witness.

(2) The prosecuting prison officer and the prisoner charged shall be permitted to question any witness called and questioned under subregulation (1)(d).

12 In material provided under cover of an affidavit sworn on 31 March 2011 Mr Agnew states that the charge in question related to the finding of ten antiinflammatory tablets in his cell on 18 June 2009. It was alleged that the tablets had not been lawfully issued to Mr Agnew. He states that on 24 June 2009 he was found guilty of possession of the tablets by the prison superintendent and received a caution. Whilst he denies knowledge of the tablets or how they came to be in his cell, Mr Agnew does not dispute that the decision to convict him of the minor prison offence was one made by the prison superintendent (see affidavit page 45).

13 It is evident from s 71, s 75 and s 77 of the Prisons Act that in circumstances where a superintendent determines a minor prison offence, such a determination is a decision made in his or her capacity as the person holding that office. The procedure to be followed is the same whether the charge is dealt with by a visiting justice or by a superintendent. The decision is not one made by the Department of Corrective Services or by its delegate. In these circumstances, it is apparent that it is the superintendent who is the decisionmaker and not the second respondent.

14 An application for judicial review should be brought against the body 'having legal authority to determine questions effecting the rights of subjects': R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co Ltd [1924] 1 KB 171, 205 (Aitken LJ). The superintendent would therefore be the proper respondent in judicial review proceedings challenging the decision to convict Mr Agnew of the prison offence on 24 June 2009 for it was he who made the decision. See Malubel Pty Ltd v Elder (1997) 98 A Crim R 192, 199 200 (Moore J); Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, 529 [31] (McHugh J) and 552 [111] (Kirby J); Kerr v Commissioner of Police [1977] 2 NSWLR 721, 724 (Moffatt P).

15 Order 18 rule 6(2) of the Rules of the Supreme Court 1971 (WA) provides that the court may order that a person cease to be a party to proceedings where they have improperly or unnecessarily been named as a party. As the Department of Corrective Services did not make the impugned decision, there was no proper basis for it to be named as a party to these proceedings. It is for those reasons that I made the order that the second respondent cease to be a party.

16 By chamber summons dated 14 December 2011 the Attorney General sought leave to intervene in these proceedings. The reason given for that application was to provide an appropriate contradictor. It was submitted that, given that the first respondent has filed a notice of intention to abide and that the second respondent was not properly a party to these proceedings, the court would not have the benefit of opposing arguments if the Attorney General was not given leave to intervene.

17 Mr Agnew opposed the application by the Attorney General. He submitted that intervention was unnecessary because it was open to the Prisoners Review Board, as the first respondent, to appear and make submissions in respect of the matter.

18 On behalf of the Attorney General it was submitted that it was inappropriate for the Prisoners Review Board to appear in support of its own decision since doing so would endanger the impartiality which it would be expected to maintain in any subsequent proceedings which may take place if relief is granted: The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35 36. That justifies the Board's decision to file a notice of intention to abide.

19 In the context of proceedings for a prerogative writ O 56 r 7 of the Supreme Court Rules provides that:

Right to be heard in opposition

(1) On the hearing of the application the Court shall hear any person who desires to oppose it, and appears to the Court to be a proper person to be heard, notwithstanding that he has not been served with the order nisi or notice of motion.

(2) A person who is served with the order nisi or notice of motion or who is heard under this rule, may, in the discretion of the Court, be ordered to pay costs.

20 In Levi v The State of Victoria (1997) 189 CLR 579, 601 Brennan CJ said that leave could be granted to an interested party to intervene to protect an interest which is liable to be affected, and to ensure that all matters of relevance to the consideration of the issues are canvassed before the court.

21 Counsel for the Attorney General did not refer to O 56 r 7. Rather, he submitted that the power to grant leave to the Attorney General for a stay to intervene may be exercised where the decision of the court can, or may, have a bearing upon the legislative or executive powers or other direct interests of the State: R v Anderson; Ex parte IpecAir Pty Ltd [1965] HCA 27; (1965) 113 CLR 177, 183 (Kitto J) and Levi v The State of Victoria (602 603) (Brennan CJ). Whilst those cases relate to the practice and procedure of the High Court the underlying principles are of broader application.

22 In the circumstances of this case, I am satisfied that the proper determination of these proceedings require that there be a contradictor who will respond to the allegations and submissions made by Mr Agnew. I am also satisfied that the Attorney General has the necessary legal interest and adequate resources to perform that role. For those reasons I granted the Attorney General leave to intervene in these proceedings. Whether that leave is properly founded upon the inherent jurisdiction of the court or on O 56 r 7 is immaterial.

23 Mr Agnew has filed three notices seeking discovery of documents. The first notice is an application for discovery by the first and second respondents pursuant to O 26 r 1 of the Rules of the Supreme Court. The second notice is an application for discovery by a nonparty, namely the Attorney General, pursuant to O 26A r 5 of the Rules of the Supreme Court. The third notice is an application for discovery by a nonparty, namely the Commissioner of the Western Australian Police Service, pursuant to O 26A r 5.

24 By virtue of my orders removing the second respondent as a party to these proceedings and giving leave to the Attorney General to intervene, their status as a party and nonparty respectively has changed. Nothing turns on this. As regards the Attorney General, it was accepted that once intervention is granted it follows that an intervener becomes a party to the proceedings with all the benefits and burdens of that status: United States Tobacco Co v Minister for Consumer Affairs [1988] FCA 213; (1988) 20 FCR 520, 534. See also Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391, 396. Counsel for the Attorney General accepted that if leave to intervene was granted, the Attorney General would be liable to an order for discovery under O 26 r 1 of the Rules.

25 In appropriate circumstances this court has discretion to require discovery and inspection of documents on an application for a prerogative writ: Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264 [134] (McLure J). However, orders for discovery in prerogative writ proceedings are unusual and such orders should only be made where the appellant can demonstrate that there exist 'compelling circumstances': Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 108 [3] (Owen J).

26 Whether under O 26 r 7 or under O 26A r 5, an order for discovery can only be for documents 'relating to any matter in question' in the proceedings. The nature of the matters in question in an action is to be determined by reference to the pleadings. It is sufficient if a document would either advance a party's own case or damage that of the other party: Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341, 345. A document which goes exclusively to the credit of a party does not relate to a matter in question: Fairfax Media Publications Pty Ltd v West Australian Rugby Union Inc [2008] WASCA 123 [30].

27 Before an order under O 26A can be made the court must be satisfied as to what the documents sought contain, or what they might reasonably be expected to contain, and that they relate sufficiently to a matter or matters in question in the action; it is not sufficient that the documents might merely, as a matter of speculation provide some evidence for the applicant at trial: Fairfax Media Publications Pty Ltd v West Australian Rugby Union Inc [32].

28 An order will not be made for discovery of documents on an application which is in the nature of 'fishing'; that is, where the appellant does not know whether or not a nonparty has relevant documents in its possession, but wishes to cast a net to see what turns up in it: Fairfax Media Publications Pty Ltd v West Australian Rugby Union Inc [33].

29 In Kirby v Prisoners Review Board [2010] WASC 243 an application was made to inspect documents in the context of proceedings similar to the present. In that case, Martin CJ said:

It is trite to observe that proceedings of this kind do not give the court jurisdiction to review the merits of the decision taken by the Board. Nor do they confer upon the applicant an unbridled opportunity to challenge any and all aspects of the Board's processes. Rather, the onus is upon the applicant to show that the Board erred in one or more of the particular ways he asserts, with the result that it exceeded its jurisdiction. In these circumstances, it would be quite wrong to permit an application for inspection of documents maintained by the Board to become a fishing expedition, allowing the applicant or his advisors to trawl through the documents to ascertain whether or not they might reveal some other point not currently enunciated in the grounds of review [11].

30 In the present case it is worth noting that Mr Agnew has not sought general discovery, rather he has listed a number of specific documents. Nonetheless, it remains necessary for him to demonstrate both that the documents he seeks relate to issues in the proceedings, and that there are compelling circumstances which justify the granting of an order for discovery in these prerogative writ proceedings.

Discovery application - First and second respondents

31 The application for discovery from the first and second respondents, refers to five items sought by the appellant. The first item is the complete employment history of a named prison officer. The appellant contends that the relevance of the prison officer concerned is that Mr Agnew seeks to challenge the accuracy of reports made by that officer, reports on which, he says, the Board has relied in making relevant decisions. Mr Agnew alleges that the officer was biased against him and that the complaints were not true. He says that these employment records would enable him to determine where the officer was stationed at relevant times. This is necessary, he says, because he believes that the records could be inconsistent with the adverse incident reports made against him in that they may show that the officer was not stationed at the same prison as Mr Agnew at times when adverse incidents were alleged to have occurred. In other words, it would seem that Mr Agnew seeks the employment records in order to challenge the credibility of the officer's records or diminish the weight that should be given to them. It is clear from the foregoing that granting of discovery of documents for this purpose would not be permissible on general principles. In any event, the issue which Mr Agnew is seeking to raise clearly goes to the merits of a decision of the first respondent which is not amenable to review in these proceedings and so discovery cannot be ordered in furtherance of that purpose.

32 The second to fifth items can be dealt with together. The second item seeks all correspondence between the Board and Community Corrections Officers concerning Mr Agnew. The third item refers to all minutes and/or notes of the Board's deliberations concerning Mr Agnew. The fourth item concerns any progress reports made by the Chief Executive Officer of the Department pursuant to s 3G(1) of the Sentence Administration Regulations 2003 (WA). The fifth item refers to any reports or correspondence from the Board to the Attorney General concerning Mr Agnew.

33 Mr Agnew seeks documents in these categories because he believes that the Board has acted in a biased way. He says that his purpose in seeking these documents is to determine what material the Board had upon which it based decisions relating to him. He says that he believes the Board was not objective nor was it making reasonable enquiries. Rather, he says, it went out of its way to find subjective material on which it placed undue weight. It would appear from this contention that Mr Agnew is seeking to search for documents that might assist him, and that he lacks any reasonable basis for a belief that such documents exist. Furthermore, it is evident that his purpose in seeking these documents is to challenge the merits of decisions made by the Board. Again, that is an issue that is not properly raised in these proceedings, and it would be inappropriate to grant discovery in respect of it.

34 Counsel for the Attorney General also submitted that evidence of the means by which a decisionmaker reached its decision is irrelevant and is inadmissible in judicial review proceedings which concern a challenge to a decision where the decisionmaker holds the same immunities as a judge: Saint v Holmes [2008] FCA 987; (2008) 170 FCR 262, 275 [58] (Siopis J); Herijanto v Refugee Review Tribunal [2000] HCA 16; (2000) 170 ALR 379, 383 [16] (Gaudron J) and Hennessy v Broken Hill Pty Co Ltd [1926] HCA 32; (1926) 38 CLR 342, 349 (Knox CJ, Gavin Duffy and Stark JJ).

35 By virtue of s 107 of the Sentence Administration Act the Board and its Chairperson and members have, and may exercise, the powers of a Royal Commission under the Royal Commissions Act 1968 (WA). By virtue of s 31(1) of the Royal Commissions Act, a commissioner under that Act has, in the exercise of his duty as a commissioner, the same protection and immunity as a judge has in the exercise of his duties as a judge. That is, the Board by virtue of statute may have the same immunities as a judge, and it follows that this may found another basis for refusing discovery in respect of the second to fifth items. However, in light of my decision in regard to those items it is unnecessary to decide this issue and I make no further comment on it.

36 As regards the notice seeking discovery from the Attorney General, the notice refers to one item; that is, a letter relating to Mr Agnew which is said to have been authored by a prison officer, dated late 2009 or early 2010, and sent to the Attorney General.

37 In oral submissions Mr Agnew said that the basis for his belief that such a letter existed was a visit by the Attorney General to Wooroloo Prison Farm in 2009. Whilst he was there a prison officer allegedly put to the Attorney an issue relating to Mr Agnew and was told to 'put it in writing'. Mr Agnew said he was not present on this occasion but was told about it subsequently. Mr Agnew did not know what the letter contained or even if it was sent. He said in this regard that he was 'surmising that it was a positive reflection on my time at the farm'.

38 It is impossible to see how a letter of the type described, even if it exists, can be relevant to any fact in issue in these proceedings. It is not said to be a letter that was sent to the Board. It is not said that the Board ought to have taken it into account. It is speculative whether such a letter exists, let alone what it might contain. In these circumstances, it would be improper to grant discovery in respect of it.

39 As regards the notice seeking discovery of documents from the Commissioner of Police, three items are referred to. The first item is complete copies of original, unedited video records of interview conducted by the police with Mr Agnew on 17 and 18 December 1999. Mr Agnew said that in 2008 he had made applications to obtain copies of the video records of interview. He did so because he believed that relevant material had been edited from those interviews and not shown to the jury at his trial. In 2009 the Board cancelled a resocialisation programme in which Mr Agnew was participating. One of the reasons for that decision was said to be that Mr Agnew had 'difficulty accepting responsibility for the commission of the offence' for which he had originally been imprisoned: (affidavit page 36). Mr Agnew submitted that the Board had wrongly assumed that because he had made enquiries to obtain copies of the unedited videos he was in denial as to his responsibility for the original offence. It is difficult to understand how now obtaining a copy of the original unedited video record of interview could advance a claim that the Board had made an error in regard to Mr Agnew's state of mind in 2009. Whether or not the Board relied upon his actions in 2008 in seeking a copy of those videos is, in fact, unclear. In any event, these videos could not assist in the resolution of any issue that properly arises in these proceedings, and no discovery can be ordered.

40 The second item sought in the notice to the Commissioner of Police is a complete copy of the final report of the Royal Commission into Police Corruption in Western Australia. Mr Agnew's explanation for the relevance of this document is that he believes that a police officer who was a witness at his original criminal trial was the subject of adverse findings at the Royal Commission. He believes that such adverse findings would reflect upon the credibility of the evidence that the officer gave at the original trial. It is not at all apparent what this has to do with the decisions made by the Board. It would seem that through these proceedings Mr Agnew is seeking to mount a further challenge against his original conviction. He has already exercised his rights of appeal in regard to that conviction; the purpose of the present proceedings is not to challenge the conviction but to challenge the decisionmaking process of the Board. The report of the Royal Commission could not assist in that regard and discovery of it must be refused.

41 The third item in the notice to the Commissioner of Police is a copy of the criminal record of the prison officer referred to in the notice to the first and second respondents. Mr Agnew submitted that he believed that that officer had a criminal record and that such a record would be relevant in determining whether the adverse reports made by that prison officer were credible. It is not clear that such a document exists. Even supposing that it does, it is apparent that the relevance of it is confined entirely to the merits of the decision made by the Board. Furthermore, disclosure of a document that relates entirely to the credibility of a source of information could not assist in determining the issues which can properly arise in proceedings of this nature.

42 For those reasons Mr Agnew's applications for orders for discovery are refused.