Kruck v Queensland Regional Parole Board [2008] QCA 399

SUPREME COURT OF QUEENSLAND

CITATION: Kruck v Qld Regional Parole Board [2008] QCA 399

PARTIES: MICHAEL CHRISTIAN KRUCK (applicant/appellant) v QUEENSLAND REGIONAL PAROLE BOARD (respondent)

FILE NO/S: Appeal No 6543 of 2008 / SC No 3800 of 2008

DIVISION: Court of Appeal

PROCEEDING: Application for Extension of Time / General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: Orders delivered ex tempore 3 December 2008 / Reasons delivered 9 December 2008

DELIVERED AT: Brisbane

HEARING DATE: 3 December 2008

JUDGES: Keane, Holmes and Fraser JJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – where the applicant applied to the respondent for parole – where the respondent failed to make a decision on the parole application within the statutorily designated time period – where under the relevant Act failure by the respondent to make a decision within the designated time period gives rise to a deemed refusal of the parole application – where the applicant sought judicial review of the refusal – whether the learned primary judge erred in refusing to review the refusal of parole in accordance with the jurisdiction conferred under the Judicial Review Act 1991 (Qld) / Corrective Services Act 2006 (Qld), s 193(5) / Judicial Review Act 1991 (Qld), s 20(2)(e), s 22, s 23(e), s 23(g), s 30(1)(b), s 30(1)(d) / Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, cited

COUNSEL: D C Rangiah SC, with K A Mellifont and M J Ballans, for the applicant (pro bono) / P J Flanagan SC, with S A McLeod, for the respondent

SOLICITORS: No appearance for the applicant / Crown Law for the respondent

1. KEANE JA: This matter was heard by the Court on 3 December 2008. At the conclusion of the hearing, the Court made orders granting the applicant an extension of time within which to appeal and allowing the appeal on the basis that the reasons for the Court's decision would be published at a later date. What follows are my reasons in this regard.

2. The applicant is presently in custody in the Wolston Correctional Centre, having been duly sentenced on 7 December 2006 to a term of imprisonment of four years and six months with a parole eligibility date of 14 March 2008.

3. In December 2007 the applicant applied to the respondent for parole. The respondent failed to decide this application within 120 days after its receipt on 17 December. In consequence, by virtue of s 193(5) of the Corrective Services Act 2006 (Qld) ("the CSA"), the respondent was "taken to have decided to refuse to grant the application."

4. On 28 April 2008 the applicant filed an application for a statutory order of review pursuant to the Judicial Review Act 1991 (Qld) ("the JRA") in respect of the deemed refusal of his application for parole. This application was heard by the learned primary judge on 16 May 2008.

The decision of the learned primary judge

5. The respondent did not actually consider the application for parole at all before the 120 day period expired. The learned primary judge found that the application for parole, when received by the respondent, was "sent off in other directions for consideration by other people instead of remaining with the [respondent] for its consideration."

6. At the hearing before the learned primary judge, the respondent conceded that the applicant had established a ground of review, either under s 22(1) of the JRA by reason of its unreasonable delay in making a decision, or under s 22(2) of the JRA by reason of its failure to make a decision within the period fixed by law. The learned primary judge referred to the respondent's concessions, and went on to conclude:

"Either way, there is a ground which is established for an order for review. The question is then is [sic] one of the appropriate relief.

If the Court was to order that the deemed refusal of the application be set aside, the effect of that order would be at least open to doubt. It could well be seen as simply an attempt by the Court to negate the operation of subsection 193 (5).

In other words, the Court can’t, by the purported exercise of its jurisdiction under the Judicial Review Act, affect the operation of the deeming provision in section 193.

The result would be, as I presently view the problem, that the Board would still be deemed to have refused that application by the operation of subsection 193(5).

Accordingly, the better way forward is for the applicant to make a fresh application which I understand to involve the completion of a form, which I hope will not cause any particular inconvenience. It seems that that could be done almost immediately by the applicant.

The question then is what should happen by way of any order as to the Board’s consideration of that application. In the circumstances, it is appropriate that the Board be ordered to consider that fresh application as soon as practicable.

The Board, through its counsel, again has fairly conceded that such an order would be appropriate in this case. It is then a matter for the board to consider that application according to law, but as soon as practicable.

The applicant, however, has the benefit of the Court’s order that the board do so. The applicant sought an order for costs, but as I have said, he is self-represented and has not shown that he has incurred costs in relation to these proceedings.

Accordingly, the order will be that the respondent consider any further application by the applicant as soon as practicable and that there be no order as to costs."

A further application for parole

7. On 16 May 2008, consequent upon the order made earlier that day by the learned primary judge, the respondent received a further application for parole from the applicant. On 21 July 2008, the respondent informed the applicant that the respondent was minded to refuse his application on the basis that the respondent "was not satisfied that [the applicant's] release on a parole order does not pose an unacceptable risk to the community." He was invited to make further submissions within 14 days as to why the respondent should not decline his application. The applicant made further submissions in August 2008.

8. Ultimately, on 20 August 2008, the application of May 2008 was refused by the respondent. The applicant filed an application for a statutory order to review this refusal. This application was heard by a judge of the Trial Division on 28 November 2008, and judgment is reserved.

Extension of time

9. The applicant sought to appeal to this Court against the decision to refuse relief in respect of the deemed refusal of the application for parole which he made in December 2007. Because of some delay in commencing the appeal, an extension of time was necessary to allow the appeal to proceed.

10. The application for an extension of time first came on for hearing before this Court on 13 October 2008. On that occasion, the applicant was unrepresented, as indeed he had been in the proceedings at first instance. The matter was adjourned to enable the applicant to seek legal representation under the Court's pro bono scheme.

11. When the matter came on for hearing in this Court on 3 December 2008, the applicant was represented by Mr Rangiah SC, Ms Mellifont of Counsel and Mr Ballans of Counsel who had provided the Court with written submissions on the applicant's behalf. The applicant himself had also filed a document described as a "Written Case". This document was difficult to understand and was not focused upon the legal issues which arise on the appeal. If the grant of an extension of time had been dependent upon the extent to which this document demonstrated a case for relief by way of appeal to this Court, I would not have been disposed to grant the applicant the indulgence of an extension of time. On the other hand, the written submissions by the applicant's Counsel have been of great assistance in elucidating the material aspects of the relationship between the CSA and the JRA.

12. Because of the importance of this issue, as elucidated by the arguments presented by the applicant's Counsel, I concluded that the case was an appropriate one for the grant of an extension of time.

The arguments on the appeal

13. The applicant's Counsel submitted that the learned primary judge erred in holding that the deemed refusal of the application for parole under s 193(5) of the CSA was not a decision amenable to an order for review under the JRA. It was submitted that s 193(5) does not operate as a barrier to judicial review; rather, it was said that s 193(5) establishes an occasion for such an application. Counsel for the respondent were not disposed to dispute the correctness of this submission.

14. The applicant's Counsel also submitted that his Honour erred in failing to set aside the respondent's deemed decision and to refer the matter back to the respondent for a prompt decision.

The relationship between s 193(5) of the CSA and the JRA

15. The focus of the applicant's attack on the decision of the learned primary judge was upon the view that the jurisdiction conferred on the Supreme Court by the JRA cannot affect the operation of s 193(5) of the CSA. It is convenient to refer now to the terms of s 193 of the CSA. It provides:

"(1) A parole board required to consider a prisoner’s application for a parole order must decide–

(a) to grant the application; or

(b) to refuse to grant the application.

(2) However, the parole board may defer making a decision until it obtains any additional information it considers necessary to make the decision.

(3) The parole board may grant the application even though a parole order for the same period of imprisonment was previously cancelled.

(4) If the parole board refuses to grant the application, the board must–

(a) give the prisoner written reasons for the refusal; and

(b)if the application is for a parole order other than an exceptional circumstances parole order–decide a period of time, of not more than 6 months after the refusal, within which a further application for a parole order (other than an exceptional circumstances parole order) by the prisoner must not be made without the board’s consent.

(5) If the parole board fails to decide the application within 120 days after its receipt, the board is taken to have decided to refuse to grant the application."

16. The evident intent of s 193(5) of the CSA is to create the statutory fiction that a decision to refuse an application for parole has been made by the parole board. According to Mr Rangiah, neither s 193(5) nor any other provision of the CSA exhibits any hint of an intention to clothe that deemed decision with immunity from challenge in the courts.

17. The respondent, which was ably represented by Mr Flanagan SC and Mr McLeod of Counsel, fairly acknowledged that a deemed refusal under s 193(5) of the CSA is indeed an administrative decision, being a decision deemed as a matter of law to have been made by a parole board, and a decision made under an enactment, in that it is a decision "for the purposes of" and "in accordance with" the CSA.¹ Further, it is a decision which affects the applicant's legal rights in a way that is derived from the CSA. Accordingly, it is, for the purposes of the JRA, a decision of an administrative character made under an enactment.²

18. It was also common ground that an actual decision by a parole board to refuse an application for parole is susceptible to review under the JRA. The decision which s 193(5) of the CSA deems to have been made is not said by the CSA to exist only for the purposes of the CSA. There is, therefore, no good reason to conclude that the decision which is taken to have been made is not a decision for the purposes of the JRA. It would be extraordinary if, for example, an indisputably unreasonable deemed "decision" by a parole board was beyond the scope of judicial review. A parole board could, by the simple expedient of not considering an application at all, produce an unchallengeable deemed refusal of an application which any reasonable parole board would have granted. The court should be slow to attribute to the legislature an intention to produce such a manifestly unjust result. Nothing in the CSA suggests that the legislature had such an intention. In these circumstances, it is difficult to see what purpose is intended to be served by s 193(5) of the CSA if it is not to create a decision which is amenable to challenge under the JRA by the person who is seeking parole.

19. It may be, of course, that the grounds upon which the decision deemed to have been made by s 193(5) of the CSA may be challenged in any particular case do not include the full panoply of grounds provided by the JRA. But to say that is simply to recognise that some of the grounds on which a decision of an administrative character made under an enactment may be challenged under the JRA will not be available in the particular circumstances of the deemed decision; it is not to say that the decision is immune from challenge on such grounds as are applicable in the circumstances. There may be, for example, cases where no parole board could reasonably conclude that a parole order should not be made; in such cases the deemed decision will be reviewable on that basis pursuant to s 20(2)(e) and s 23(g) of the JRA. Similarly, if the parole board were to look to some other person to decide an application for parole, rather than determining the application itself, the deemed decision would be reviewable under s 20(2)(e) and s 23(e) of the JRA.

"Application in relation to failure to make decision

(1) If–

(a) a person has a duty to make a decision to which this Act applies; and

(b) there is no law that fixes a period within which the person is required to make the decision; and

(c) the person has failed to make the decision;

a person who is aggrieved by the failure of the person to make the decision may apply to the court for a statutory order of review in relation to the failure to make the decision on the ground that there has been unreasonable delay in making the decision.

(2) If–

(a) a person has a duty to make a decision to which this Act applies; and

(b) a law fixes a period within which the person is required to make the decision; and

(c) the person failed to make the decision before the end of the period;

a person who is aggrieved by the failure of the person to make the decision within the period may apply to the court for a statutory order of review in relation to the failure to make the decision within the period on the ground that the person has a duty to make the decision despite the end of the period.

(3) This section applies only to a decision required to be made after the commencement of this Act."

22. When one observes that the applications for a statutory order of review contemplated by s 22 of the JRA are predicated upon the absence of a relevant decision, one can appreciate the point being made by the learned primary judge. Section 193(5) of the CSA operates, in the events which happened in this case, to create, as a matter of law, a decision by the respondent. Relief grounded upon s 22 of the JRA is not available because, in the eye of the law, a decision had been made by the respondent: the postulate upon which s 22 proceeds is expressly denied by s 193(5) of the CSA.

23. In my respectful opinion, his Honour was correct in his appreciation that s 22 of the JRA cannot sustain an order to review a decision "taken to have been made by" the respondent by virtue of s 193(5) of the CSA. But, no doubt because of the way the argument proceeded before him, the learned primary judge did not consider whether relief might have been available to the applicant under some other provision of the JRA.

24. The respondent now concedes that the Board's failure to consider the December 2007 application within the 120 day period gave rise to a ground of review under s 20(2)(e) and s 23(g) of the JRA. It may also be said that the finding by the learned primary judge referred to in paragraph [5] of these reasons is sufficient to establish a ground of review under s 20(2)(b) of the JRA. That provision grounds a statutory order of review where "the procedures that were required by law to be observed in relation to the making of the decision were not observed." In this case, the procedures required by law to be observed in relation to the making of the decision were not observed in the fundamental sense that the respondent failed to consider the December 2007 application at all. As a result, it seems to be clear that the respondent did not observe the requirements of s 193(1) of the CSA in relation to the making of the decision which it is deemed to have made; and the ground of review under s 20(2)(b) of the JRA was made out.

25. For these reasons, in my respectful opinion, the applicant had good grounds for a statutory order for review under the JRA.

Relief

26. On the hearing in this Court, the respondent very fairly conceded that the applicant is entitled to have the deemed refusal of the respondent of his application of December 2007 for parole set aside in order that his record should not include, quite wrongly, the note that his application for parole of December 2007 had been refused.

27. Counsel for the respondent, once again very properly, did not dispute that it is open to this Court to make orders under s 30(1)(b) or (d) of the JRA. These provisions contemplate that, on an application for a statutory order of review in relation to a decision, an order may be made, either "referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions (including the setting of time limits for the further consideration, and for preparatory steps in the further consideration) as the court determines", or "directing any of the parties to do, or to refrain from doing, anything that the court considers necessary to do justice between the parties."

28. During the course of argument, I was at one time concerned that an obstacle to this Court's making an order to the effect that the respondent promptly consider and determine the application for parole of December 2007 was that, after the decision of the learned primary judge the subject of this appeal, the applicant made his further application of 16 May 2008 for parole to the respondent, and sought judicial review of the respondent's decision in that regard. As I have noted above, a decision upon that application is presently reserved in the Trial Division of the Supreme Court. My concern was that there would be no utility in this Court now making an order that the respondent decide the application of December 2007 or that such an order would be futile. In the course of argument, Mr Rangiah persuaded me that it would be wrong to refuse the applicant relief on either of these bases.

29. The terms of s 193(1) of the CSA require that an application for parole should be decided by the parole board either granting or refusing the application. Once the deemed decision is set aside, the position is that the December 2007 application has not been decided. On the face of things, this is an unsatisfactory state of affairs which should be remedied. The applicant wishes to place before the respondent further material which may be apt to improve the prospects of success of his application relative to the merits of his May 2008 application. This further material concerns a number of matters relating to, inter alia, the applicant's preparation of a more comprehensive relapse prevention plan, his good conduct and industry since August 2008, and the circumstance that he is now several months closer to his full-time release date. It is not this Court's function to comment upon the merits of this further material: it is sufficient to say that these matters appear to be relevant to the exercise of the respondent's discretion.

Orders

31. The orders of the Court were:

32. The time for commencing the appeal be extended until 9 July 2008;

33. The appeal be allowed; and

34. The decision of the learned primary judge be set aside, and in lieu thereof it is ordered that the refusal of the application for parole of December 2007 be set aside and that the matter to which that decision relates be referred to the respondent for decision at its meeting on 17 December 2008 subject to compliance by the applicant with the Court's direction that any fresh material upon which he seeks to rely in support of his application be provided to the respondent by close of business on Monday 8 December 2008.

35. HOLMES JA: I agree with the reasons of Keane JA.

36. FRASER JA: I have had the advantage of reading the reasons for judgment of Keane JA. I agree with the orders proposed by his Honour, and with his reasons for those orders.

Footnotes

1. Cf the definition of "under, for an Act, or a provision of an Act" in s 36 of the Acts Interpretation Act 1954 (Qld). ↩

2. Cf Griffith University v Tang (2005) 221 CLR 99 at 130 [89]. ↩