Mawas v State Parole Authority & Anor

Background

1. On 29 August 2002 the plaintiff was sentenced for the offence of murder to 25 years imprisonment with a non-parole period of 19 years to date from 17 September 1999. The plaintiff's non-parole period expired on 16 September 2018. The balance of his term will expire on 16 September 2024.
2. On 29 August 2019 the Authority directed that the plaintiff be released to parole on 16 September 2019 subject to conditions. The plaintiff was so released.
3. Then on 6 July 2020 the plaintiff was charged with the offences of stalk/intimidate with intent to cause fear of physical or mental harm contrary to s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW) and common assault contrary to s 61 Crimes Act 1900 (NSW) in respect of an incident that occurred on 4 July 2020.
4. Consistent with the approach of the parties, those charges will be referred to as the "Bankstown matters".
5. On 7 July 2020 a breach of parole report was prepared and submitted to the Authority. Community Corrections recommended that no action be taken, particularly having regard to its conclusion as the plaintiff's overall satisfactory response to supervision.
6. On 13 August 2020 the plaintiff was further charged with 12 counts of stalk/intimidate with intent to cause fear of physical or mental harm. I will refer to these charges as "the Burwood matters".
7. On 17 August 2020 a breach of parole report was prepared by a Community Corrections Officer which included a recommendation that parole be revoked.
8. On 19 August 2020 the Authority made an order revoking parole, including as the reason for the revocation as follows: "The reason for the revocation is breach of Conditions 1 - you must be of good behaviour (outstanding charge/s) and 15 - you must not contact, communicate or associate with your co-offender/s, without the express prior approval of your Officer. The parole order shall be treated as having been revoked on 14 July 2020."
9. Shortly after the parole order was revoked, the plaintiff sought a review of the order.
10. The plaintiff's matter came before the Authority on 22 September 2020 at which time it was stood over until 17 November 2020. On that day, it was again adjourned until 27 April 2021.
11. The hearing of the Bankstown matters was due to take place on 12 April 2021. On the application of the plaintiff the hearing was adjourned until 9 November 2021 on the basis that he did not have legal representation.
12. The plaintiff was granted bail in respect of each of the Bankstown and Burwood matters. He remains in custody only on the basis that his parole has been revoked.
13. The plaintiff seeks judicial review only of the decision of 19 August to revoke his parole.
14. It is important to emphasise that the plaintiff does not seek any order in respect of the review, the determination of which the Authority has deferred over objection of the plaintiff.

The plaintiff's submissions

1. The plaintiff submits that the decision to revoke his parole could only have been made under s 170A(2)(e) of the Act.
2. The power to make an order revoking the parole order under s 170A(2)(e) is dependent upon the Authority being satisfied that the plaintiff had failed to comply with his obligations under a parole order as required by s 170A(1).
3. The plaintiff submits that having regard to the breach of parole report dated 17 August 2020 and the order revoking parole of 19 August 2020, the only information available to the Authority on which it could have relied to be satisfied that he had failed to comply with his obligations under the parole order was the fact of the Bankstown and Burwood charges.
4. The plaintiff is defending and disputing the charges. The essential proposition put forward by the plaintiff is that the Authority could not form a state of satisfaction as required under s 170A(1) based merely on unproven allegations which were disputed by the plaintiff.
5. The plaintiff submits that the existence of the Police facts sheets was not capable of establishing a breach. They are said to have been merely a hearsay summary of the allegations against the plaintiff as they were understood by the officers preparing the documents.
6. The plaintiff says that in finding that he was in breach of the conditions of parole, based merely on the fact of the charges, the Authority acted unreasonably, such that the decision of the Authority to revoke parole should be quashed.
7. The plaintiff submits that the Authority could only have been satisfied based on adequate evidence sufficient to justify the making of an order of such seriousness (and that there was no adequate evidence). In particular, the plaintiff referred to the observations of Santow JA in Greyhound Racing Authority (NSW) v Bragg [1] as set out below: "…what is properly required for an administrative body, in order that it be, in a proper sense, 'comfortably satisfied' does not call for the full rigor of that stricture. But equally clearly it does call for adequate evidence, informally obtained as it might be, of sufficient cogency to justify the Tribunal being comfortably satisfied in relation to the serious charge before it, with its grave consequences."
8. Alternatively, the plaintiff submits that he was denied procedural fairness by the Authority in that the Authority failed to conduct an inquiry in accordance with s 169 of the Act. The plaintiff submits that there could be no dispute that the Authority was required to afford him procedural fairness and one aspect of procedural fairness is that a party has an opportunity to be heard. [2] That opportunity includes the right to test and rebut evidence relied upon and make submissions on matters of fact and law. [3]
9. The plaintiff referred to the United Kingdom Supreme Court case of R (Osborn) v Parole Board [4] in which the Court considered the circumstances in which the requirement of procedural fairness dictates that a parole authority provide an oral hearing. In particular, the plaintiff submits that there was a duty to afford procedural fairness by conducting an oral hearing, suggesting that the observations of Lord Reed JSC provide substantial guidance.
10. The plaintiff submits that, given the importance of the revocation, it was incumbent upon the Authority to allow the plaintiff to make representations in the context of an inquiry, particularly in circumstances in which the Authority proposed to act on wholly uncorroborated evidence from a Police Officer.
11. Further, although the plaintiff does not seek judicial review of the decision of the Authority to defer a review, the plaintiff emphasises that, in circumstances in which it is the practice of the Authority not to conduct a review until the results of outstanding matters before the Court are known, it must be that the failure of the Authority to hold an inquiry in the first place under s 169 represents a denial of procedural fairness.

Submissions of the Attorney General

1. The Attorney General emphasises that the test of unreasonableness remains a necessarily stringent one. [5] As Allsop CJ explained in Minister for Immigration and Border Protection v Stretton [6] , the Court's task on judicial review is not to assess what it thinks is reasonable and thereby conclude error, but rather to evaluate the quality of the decision by reference to the statutory source of the power and thus from its scope, purpose and objects as to whether it is lawful.
2. The Attorney General submits that the content of the Police facts sheets and the breach of parole reports before the Authority were capable of having been regarded by the Authority as weighing in favour of revocation of parole. The state of satisfaction was a matter for it to assess and the fact that the plaintiff disagrees with the Authority's weighing of the evidence does not establish unreasonableness.
3. Further, the Attorney General emphasises that the plaintiff alleges unreasonableness rather than a complete absence of evidence.
4. The Attorney General submits that an inquiry is not mandatory. It is discretionary.
5. In any event, the Attorney General submits that procedural fairness is provided to the plaintiff by means of the plaintiff's ability to seek an immediate review of the decision to revoke parole. This is what occurred in this matter. The plaintiff was afforded an opportunity to be heard and make submissions and adduce evidence at that review.

Consideration

1. The premise behind the plaintiff's case is that the Authority made a decision based only on the fact that the plaintiff had been charged with the Bankstown and Burwood matters. That is not entirely correct in that the Authority had before it the breach of parole reports and all of the comments made therein as to the nature and extent of the alleged offending and its significance and relevance to the original offence. However, it is correct to say that the conduct which was the source of the charges (which was disputed) formed the basis of the breach reports.
2. The first breach of parole report dated 7 July 2020 stated: "Details of alleged breach Mr Mawas appears to be in breach of his parole order due to failure to comply with the following conditions: You must not commit any further offences On 6 July 2020, Mr Mawas was arrested and charged with Common assault and Stalk/intimidate intend fear physical etc harm (personal). The offences are alleged to have occurred on 4 July 2020. He has been granted conditional bail and is due before Bankstown Local Court on 22 July 2020."
3. Community Corrections recommended that no action be taken having regard to the plaintiff's overall satisfactory response to supervision. This report was prepared following the charges in relation to the Bankstown matters.
4. Then on 17 August 2020, Community Corrections prepared a further breach of parole report following the charges in respect of the Burwood matters. Community Corrections detailed the alleged breach as follows: "Details of alleged breach Mr Mawas appears to be in breach of his parole order due to failure to comply with the following conditions: You must not commit any offences. On 13 August 2020, Mr Mawas was arrested and charged with twelve counts of Stalk/intimidate intend fear physical etc harm (domestic). The offences are alleged to have occurred on multiple occasions between 29 May 2020 and 14 July 2020. He is currently bail refused and due to appear before Burwood Local Court on 19 August 2020. You must not contact, communicate or associate with your co-offender/s, without the express prior approval of your Officer. According to police facts provided in relation to the above offences, it is alleged that on 30 May 2020 Mr Mawas was in the company of one of the co-offenders involved in the indexed historical serious violent offence. At no stage of supervision was Mr Mawas given officer approval to contact, communicate or associate with his co-offender, nor did he disclose any instances of this to Community Corrections."
5. Community Corrections also noted that the plaintiff's response to supervision was originally deemed satisfactory but that, having regard to the most recent Police facts sheet relating to threats of serious violence and association with his co-offender, his response has been superficial.
6. Community Corrections considered that the conduct leading to the charges indicated a resurgence of his history of violent behaviour and represented an increase in the level of risk to community safety. It recommended that the parole order be revoked. The reasons for that recommendation were as follows: "Reasons for recommendation Community Corrections recommends immediate revocation with consideration given to the serious nature of Mr Mawas' historical and current offending, as well as the fact that he appears to have re-connected with an associate with whom he was convicted of historical serious violent offending. As such, the combined impact of Mr Mawas' capacity for serious violence, his consistent reoffending over the last several months and reconnection with his associate suggests escalated risk to community safety."
7. Plainly, on both occasions, Community Corrections made its recommendations in the context of the allegations arising out of the charges in the Bankstown and then the Burwood matters. The recommendation contained in the second breach of parole report was reflective of a combination of the allegations arising out of the Bankstown and Burwood matters.
8. It is also notable that, although the Community Corrections officer referred to the breach as relating to condition 2 (you must not commit any offences), the reason for revocation of parole as identified in the order revoking parole was not a breach of condition 2 but a breach of condition 1 (to be of good behaviour) and condition 15 (not being in contact with co-offenders). The reason for the revocation was thus not a finding that he had committed any further offences but that he had not been of good behaviour and had been in contact with co-offenders.
9. The Authority thus must have been satisfied that the plaintiff had been in breach of condition 1 (good behaviour) because of the material before it being the breach of parole reports and the material relating to the charges. It must have been satisfied of the breach of condition 15 because according to the Police facts sheet, the plaintiff had attended the victim's residence with one of his co-offenders for the original murder conviction. He had not received approval to do so. No submission was made that such conduct, if established, would not be a breach of condition 15.
10. The order revoking parole does not specify under which section of the Act the order was made. The power to revoke a parole order is found in s 170A and s 170B.
11. Section 170A is in the following terms (relevantly): 170A Actions by Parole Authority on non-compliance with parole order (1) This section applies if the Parole Authority is satisfied that an offender has failed to comply with the offender's obligations under a parole order. (2) The Parole Authority may take any of the following actions - (a) record the breach and take no further action, (b) give a formal warning to the offender, (c) impose additional conditions on the parole order, (d) vary or revoke conditions of the parole order, (e) make an order revoking the parole order. (3) Without affecting the generality of subsection (2), the Parole Authority may impose a condition on the parole order of the following kind - (a) a condition imposing a requirement that the offender remain at the offender's place of residence for a period of home detention of up to 30 days, (b) a condition that the offender must submit to the use of an electronic monitoring device, (c) ancillary conditions relating to any condition imposed under this section. (4) In deciding whether and what action should be taken in respect of the offender's breach of the parole order, the Parole Authority may have regard to any action previously taken in respect of the breach or any earlier breaches of the order…
12. Section 170B provides that the Parole Authority may make an order revoking a parole order under a number of different circumstances as follows: 170B Circumstances for revocation in addition to non-compliance with parole order (1) The Parole Authority may make an order revoking a parole order after the release of the offender under the order or a re-integration home detention order - (a) if it is satisfied that the offender poses a serious and immediate risk to the safety of the community and that the risk cannot be sufficiently mitigated by directions from a community corrections officer or by changing the conditions of parole, or (b) if it is satisfied that there is a serious and immediate risk that the offender will leave New South Wales in contravention of the conditions of the parole order and that the risk cannot be sufficiently mitigated by directions from a community corrections officer or by changing the conditions of parole….
13. I agree with the plaintiff that the revocation order must have been made under s 170A. Section 170A requires that the Parole Authority be satisfied that the plaintiff has failed to comply with the offender's obligations under the parole order.
14. "Satisfaction" is a word of ordinary English meaning. It is hardly necessary to describe it through other words of ordinary English meaning. The plaintiff refers to the definition in the Macquarie Dictionary (as noted in Lofthouse v Stirling [7] ) as "to give assurance to; convince: to satisfy oneself by investigation" or in the Shorter Oxford Dictionary, being "to furnish with sufficient proof or information".
15. In Briginshaw v Briginshaw [8] , Dixon J observed: "But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences"
16. What might be considered legally unreasonable in the context of a decision of the type under challenge in this matter is not capable of precise definition or delineation.
17. In Minister for Immigration and Border Protection v SZVFW, Kiefel CJ stated: "10. In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal's decision in the present case. 11. Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies."
18. Gageler J observed: "53. … The requirement that a statutory power be exercised within the bounds of reasonableness is an implied condition of the statutory conferral of the power. The implication arises through operation of a common law presumption of statutory interpretation that a statutory power is conferred on condition that the power can be exercised only within those bounds. The presumption prevails to condition the exercise of the power on the repository complying with the standard of legal reasonableness absent statutory indication that the repository must meet some higher standard (an example of which is where the repository is restricted to exercising the power only on reasonable grounds) or will sufficiently comply with the statute by meeting some lower standard (an example of which is where the statute requires no more than that the repository exercise the power in good faith and for a purpose permitted by the statute)…"
19. As his Honour went on to say [9] , the question of whether the decision made in the purported exercise of statutory power is legally unreasonable is a question directed to whether the decision is within the scope of the statutory authority conferred on the repository of the statutory power.
20. The question of legal unreasonableness thus must involve a consideration of the scope, purpose and object of the provisions and the Act as a whole.
21. The power to revoke parole and the means by which it may be done is set out in Part 7 Division 3 of the Act.
22. Prior to taking any action (as referred to in s 170A(2)) and in circumstances in which it has reason to suspect that the offender has failed to comply with his or her obligations under a parole order, the Authority may conduct an inquiry (s 169(1)). However, the absence of an inquiry or the absence of any appearance of the offender before the Authority does not preclude, restrict or limit the power of the Authority to revoke parole (s 171(1)).
23. Further, it is necessary to consider the decision not just in the context of the pre-revocation process but also the post-revocation order process. Part 7 Division 4 of the Act specifies the post-revocation procedures and rights of appeal. Firstly, as set out in s 173, the Authority must cause a notice to be served on the offender if the Authority revokes the parole order. The notice must be served as soon as practicable after the revocation of the order unless the Authority issues a warrant under s 181 (s 173(1A)(a) and (b)).
24. The notice must be in the form prescribed by the regulations and set a date on which the Authority is to meet for the purpose of reconsidering the revocation of the parole order. The revocation notice must also require the offender to notify the Authority not later than seven days before the date set if the offender intends to make submissions to the Authority in relation to reconsideration.
25. As set out in s 174, if the offender notifies the Authority that he or she intends to make submissions to the Authority, the chairperson must convene a meeting to conduct a hearing for the purposes of either or both of: 1. reconsidering the revocation of the parole order; or 2. reconsidering the date on which the revocation order takes effect, if that date is an earlier date than the date on which the revocation order was made.
26. As set out in s 174(2), the offender has a right to make submissions at any review hearing.
27. As set out in s 175 after conducting that review the Authority must then decide whether or not to rescind the revocation of the parole order or rescind or vary the specification of the earlier day.
28. Significantly, s 175(2) specifies that: 175 Decision after review (2) In determining a review of the revocation of a parole order, and without limiting subsection (1), the Parole Authority may take into account any behaviour of the offender, including whether the offender is alleged to have committed any offences while released on parole or after the revocation of the parole order.
29. Finally, it is also appropriate to note that Schedule 1 to the Act contains provisions in respect of the constitution and operation of the Authority. Clause 11(3) is as follows: 11 General Procedure (3) The Parole Authority is not bound by the rules of evidence, but may inform itself of any matter in such manner as it thinks appropriate.
30. Proceedings before the Authority are not to be conducted in an adversarial manner (clause 11(4)(b)) and are to be conducted with as little formality and technicality and with as much expedition as fairness to any affected person and the requirements of the Act permit (clause 11(4)(c)).
31. It is in the context of all of those provisions that the decision of the Authority to revoke the plaintiff's parole should be reviewed for the purposes of determining whether it was unreasonable and might be set aside.
32. The proposition that a decision to revoke parole (thereby resulting in a person being returned to custody) without hearing from the person and on the basis of unproven assertions would be legally unreasonable has some attraction, particularly if viewed in isolation.
33. In a sense, this is what the plaintiff is urging upon the Court by specifically not seeking to challenge any aspect of the post-decision review process (which involved a review in which the plaintiff did make submissions and was heard). The plaintiff seeks to isolate the decision to revoke parole from the rest of the process.
34. The plaintiff complains that the Authority relied on hearsay information prepared by a Police Officer (that is, the fact sheet) in circumstances in which the plaintiff denied the matters set out in the fact sheet. However, it is plain from Schedule 1 of the Act that the Authority may inform itself in any manner it sees fit and is not bound by the rules of evidence in so informing itself.
35. Further, there may be good reason for permitting such a procedure being that the Authority may in some circumstances be required to make urgent decisions in the interests of the safety of the community. Even though its decisions may have grave consequences for the person affected, the fact that there is a power to make such decisions in such a manner and that the circumstances may exist where it is necessary for the safety of the community to make a decision in such a manner tends to detract from the proposition that it would be unreasonable for the Authority to make a decision to revoke parole based on hearsay information that is not accepted by an offender.
36. Although the Authority may make a decision to revoke a parole order without an inquiry and without hearing from the offender, the provisions of Part 7 Division 4 establish a procedure through which the Authority must meet for the purposes of reconsidering the revocation of the parole order and conducting a review of the decision at which the offender has a right to be heard.
37. In circumstances in which the Act (s 175(2)) expressly permits the Authority in determining that review to take into account whether the offender is alleged to have committed any offences whilst released on parole, it is perhaps difficult to accept that it would be legally unreasonable to take account of any offences alleged to have been committed whilst released on parole in coming to its original decision (in this case to revoke parole).
38. Whilst I raised with Mr Lange whether his client was seeking judicial review of the review decision of the Authority (or refusal to make any decision on review), Mr Lange said that this matter does not involve any challenge to the process undertaken by the Authority subsequent to the making of a revocation order. I am not asked to make any finding about whether the review permitted by s 174 (which may be conducted on the basis of allegations of offending whilst on parole) should be concluded prior to finalisation of the charges.
39. This claim for judicial review is thus limited to the original decision to revoke parole. It may be readily apparent why the plaintiff seeks to so limit the nature of his challenge. If the decision is considered in the context of the legislative provisions as a whole, particularly the obligation on the Authority to conduct a review and inform itself as it sees fit, the proposition that the decision was unreasonable falls away.
40. Indeed, that is the view that I have come to. Having regard to the surrounding provisions and the scope and purpose of the Act as a whole, the decision of the Authority to revoke parole was not unreasonable.
41. The Act mandates a process whereby the Authority may satisfy itself that an offender has not complied with the conditions of parole based on such information as is presented to it and without regard to the rules of evidence. Once that decision is made, the Authority must inform the offender and must convene a meeting so as to reconsider its decision. The offender has a right to be heard at that review meeting.
42. In this matter, the plaintiff was properly notified of the revocation order, was given an opportunity to be heard, a meeting was held and the plaintiff was heard. The plaintiff does not complain about the outcome of that process.
43. In my view, the approach of the plaintiff is somewhat inconsistent. He disavows any complaint in these proceedings about the way in which the Authority conducted its review or declined to conduct its review but submits the decision to revoke parole should be set aside on the basis that he was not given an opportunity to be heard. In fact, he was given an opportunity to be heard as part of the mandatory review but, having heard him, the Authority declined to revoke its decision (that is, it declined to make any decision to rescind its decision).
44. In my view, the method by which the Authority satisfied itself that the plaintiff had failed to comply with his obligations under the parole order was permissible in the context of the parole provisions in the Act considered as a whole and the scope and purpose of those provisions. I do not consider that the decision lacks an evident and intelligible justification.
45. Having regard to s 175 of the Act, it would seem somewhat incongruous that the Authority might take into account whether the plaintiff is alleged to have committed offences whilst released on parole only in the process of review of the revocation order (which is intended to take place very shortly after the revocation order) but not take into account those same matters in the original decision.
46. In the circumstances I am not satisfied that it was unreasonable for the Authority to revoke parole having regard to the information available to it at the time of revocation.

Ground 2

1. For much the same reasons, Ground 2 fails.
2. The plaintiff asserts that the Authority denied him procedural fairness by failing to conduct an inquiry in accordance with s 169 of the Act.
3. I accept that the Authority is required to afford the plaintiff procedural fairness. [10] I also accept that one aspect of procedural fairness is that a party have an appropriate opportunity of being heard. [11]
4. Yet, what procedural fairness requires may vary depending on the nature of the decision and the circumstances in which it is made. In this matter the decision not to hold an inquiry must be viewed in the context of the legislative scheme as a whole, including that: 1. section 169 does not mandate the holding of an inquiry. The decision whether to hold an inquiry is discretionary; 2. the Act expressly permits the making of a revocation order even though an inquiry has not been held the right to a review and to be heard immediately following notification of the decision; and 3. there was a right of review which the plaintiff sought immediately.
5. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam Gleeson CJ observed: [12] "A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations … Whether one talks in terms of procedural unfairness or natural justice, the concern of the law is to avoid practical injustice."
6. The plaintiff places particular reliance on the decision of the United Kingdom Supreme Court in R (Osborn) v Parole Board. [13] In particular, the plaintiff submits that the observations of Lord Reed JSC are instructive: [14] "Generally, the board should hold an oral hearing whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and, as was said in West, the importance of what is at stake. The board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide. It is presumably because of the possibility of such assistance that the board must hold an oral hearing under rule 11(2)(a) in any case where an indeterminate sentence prisoner appears to the single member panel to be potentially suitable for release or for a transfer to open conditions. The assumption must be that an oral hearing has the potential to make a difference. But that potential may also exist in other cases… The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoner's legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. An oral hearing should therefore be allowed where it is maintained on tenable grounds that a face-to-face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him."
7. The difficulty for the plaintiff in relying on those observations is that the process of revoking parole in NSW provides for a mechanism whereby the offender can be heard. Lord Reed's observations relate to the importance of the offender being heard in the context of a decision whether to grant parole. The necessity to sometimes make an urgent decision in respect of a person already in the community in the interests of the safety of the community must be a factor in considering whether procedural fairness to an offender mandates the holding of an inquiry prior to a decision being made.
8. Again, it is not my function to set out the circumstances in which the Authority might or should hold an inquiry as provided for by s 169. I am only considering whether the particular decision should be set aside on the basis that the Authority failed to afford procedural fairness to the plaintiff in not holding an inquiry in this matter.
9. The concern of the law is to avoid practical injustice. Certainly, the absence of an inquiry under s 169 deprived the plaintiff of an opportunity to be heard prior to the parole revocation order being made but the procedure set out in the Act mandated a reconsideration of the decision (through a meeting at which the plaintiff did have an opportunity to be heard).
10. The plaintiff may feel aggrieved that the review process has not been concluded but he does not seek to challenge it, presumably because of the express provision (s 175(2)) that in conducting the review, the Authority may have regard to any allegations that an offender has committed any further offences whist on parole.
11. Perhaps there may be some circumstances in which the failure to hold an inquiry may demonstrate a lack of procedural fairness but I am not satisfied that in the circumstances of this matter the plaintiff has established a lack of procedural fairness.
12. In my view, the plaintiff's submissions on the significance of the availability of a review mechanism rather highlight the essential problem with the plaintiff's case. The plaintiff submits: "Nor is the requirement to afford procedural fairness satisfied by the availability of the review mechanism under Division 4, Part 7 of the Act. Firstly, any review axiomatically only takes place after revocation has occurred, and, therefore the offender has been returned to custody. Secondly, and importantly in the present case, the first defendant has adopted a practice of delaying review decisions until resolution of any criminal charges, thereby delaying potentially for months or years the exercise of the right to be heard. As is made plain by the transcripts of the review hearings, the first defendant does not appear, in the intervening period, to engage with the question of whether the breach, in fact, occurred."
13. On one view, the plaintiff is caught between a rock and a hard place in the sense that the Authority determined not to have an inquiry prior to making its decision and has then determined not to conclude the review until after the determination of the charges against the plaintiff. The plaintiff may have some cause for grievance in circumstances in which the review process is intended to provide an offender with an immediate right to be heard and a prompt reconsideration of the original decision.
14. However, the procedure and decision-making process set out in the Act provided the Authority with a discretion whether to have an inquiry. It has not been shown that it denied the plaintiff procedural fairness in exercising its discretion not to have an inquiry. In the circumstances, Ground 2 fails.
15. As the plaintiff has not succeeded on any Grounds on which he seeks review, then the Summons must be dismissed.
16. The second defendant did not really dispute that leave should be granted to commence the proceedings out of time. I grant leave but dismiss the Summons.
17. I order the plaintiff to pay the second defendant's costs.
18. Should any other order be sought in respect of costs, I grant liberty to the parties to apply to relist the matter on 3 days' notice.

Endnotes

1. [2003] NSWCA 388 at [74].
2. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367; [1990] HCA 33 (Deane J).
3. International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319 at 348; [2009] HCA 49 (French CJ).
4. [2014] AC 1115.
5. Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 551; [2018] HCA 30 (Kiefel CJ).
6. (2016) 237 FCR 1 at 6; [2016] FCAFC 11.
7. (2008) 173 FCR 574 at 579; [2008] FCA 1936 (Heerey J).
8. (1938) 60 CLR 336 at 362; [1938] HCA 34.
9. SZVFW at 565.
10. Dib v Parole Authority of NSW [2009] NSWSC 575 at [16] (Patten AJ); Boatswain v State Parole Authority [2014] NSWSC 501 at [58]-[59] (RA Hulme J).
11. Bond at 367 (Deane J).
12. (2003) 214 CLR 1 at 13-14; [2003] HCA 6.
13. [2014] AC 1115.
14. Osborn at 1152 -1153. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 June 2021