McKechnie v The Adult Parole Board of Victoria [2025] VSC 844

1 The plaintiff, Mr McKechnie, asserts that the Adult Parole Board of Victoria (Board) has erroneously refused to grant him release on parole on terms that would bring his sentence of life imprisonment for murder immediately to an end. The Board contends that it has no power to grant parole on those terms. On a proper construction of the Corrections Act 1986 (Vic) (the Act), does the Board have the power Mr McKechnie asserts it does?

2 Mr McKechnie has also sought to amend his originating motion to include new claims, including a claim for a declaration that a provision of the Act is invalid on constitutional grounds. Should I allow his application to do so?

3 I have determined these questions against Mr McKechnie.

4 An evidentiary ruling remained reserved at the hearing because its outcome depended on the outcome of Mr McKechnie's application to amend his originating motion. I have resolved that issue against him also.

5 The proceeding will be dismissed with costs, save for the Board's costs of and incidental to its informal interlocutory application heard on 5 November 2025. There will be no order as to the costs of that application.

6 The proceeding raised issues affecting Mr McKechnie's liberty, and in my view had to be determined expeditiously, leading to the delivery of judgment during the period referred to in r 3.04 of the Supreme Court (General Civil Procedure) Rules 2025 (Rules). The default position under that rule is that the time prescribed by the Rules for any application for leave to appeal will start to run on 10 January 2026.

7 On the somewhat limited evidence before the Court,[1] I am satisfied that the facts set out in this section of my reasons have been established.

8 In December 1994, Mr McKechnie was imprisoned in Queensland in relation to a pending charge of murder, of which he was later found guilty. He was sentenced on 10 May 1996, receiving the mandatory sentence for murder in Queensland of life imprisonment.[2]

9 The documentary evidence before me was unclear as to the non-parole period imposed on Mr McKechnie. On the relevant material before me, which I will address in a little more detail shortly, it is an open question whether that non-parole period was 13 years or 15 years.

10 Also on 10 May 1996, the Supreme Court of Queensland declared that Mr McKechnie had been in pre-sentence custody for a period of 498 days from 29 December 1994 to 10 May 1996, and this was declared to be time already served. This meant that if his non‑parole period was 13 years, it was to expire in December 2007.

11 In 2006, Mr McKechnie was transferred from a Queensland prison to a Victorian prison. It appears that the transfer was facilitated under the Prisoners (Interstate Transfer) Act 1982 (Qld), legislation that forms part of a co-operative scheme of complementary legislation of other States, the Territories, and the Commonwealth. Under that co-operative scheme, upon a transfer of a prisoner from Queensland to Victoria, the prisoner's sentence is transferred with the prisoner, and is deemed to be a sentence imposed in Victoria.[3] This includes a non-parole period imposed in Queensland as part of the sentencing process.[4]

12 Mr McKechnie was granted release on parole in December 2007. The parole order made at that time stated that his non-parole period (called in the order, 'NPP**'**) was 13 years. It also stated (emphases added):

You are on parole for the balance of your sentence. The Adult Parole Board may cancel your parole order at any time. Your parole supervision will expire on 28th December 2012.

13 In his submissions, which I will address in more detail shortly, Mr McKechnie attached significance to the text I have underlined, which he said suggested that the Board was purporting to end his sentence on 28 December 2012 (provided parole was not cancelled beforehand).

14 Mr McKechnie gave evidence that, in about 2011, the Board cancelled Mr McKechnie's parole, and he was returned to custody. There was no documentary evidence of this cancellation in evidence. However, the Board did not dispute Mr McKechnie's assertion that this occurred, and I treat it as an agreed fact.

15 Some time later, Mr McKechnie was again granted parole. No such parole order was included in the evidence before me. However, I infer from a reference in a later (varied) parole order that this occurred on 12 November 2012.

16 The was a varied parole order dated 17 December 2014 in evidence before me. Inconsistently with the original parole order of December 2007, the varied parole order stated that Mr McKechnie's 'NPP' was 15 years. (This assertion was later repeated in correspondence from the Board in June 2023, which I address in more detail below.)

17 With effect on 17 December 2014, the varied parole order stated that it varied an order by which the Board had ordered the release of Mr McKechnie on parole on 12 November 2012. The varied parole order referred to the possibility of cancellation on various grounds. It then stated (emphasis added):

Otherwise, if you comply with the terms and conditions of the Parole Order, your parole will expire on: 12th day of November 2017.

18 In his submissions, Mr McKechnie attached further significance to the fact that the varied parole order purportedly provided for the expiry of his parole on a fixed date - in this case, five years from the grant of parole that (I have found) occurred in November 2012.

19 In 2015, Mr McKechnie's parole was again cancelled, and he was returned to custody.[5] He has remained in prison since then.

20 On 22 May 2023, Mr McKechnie wrote to the Board a letter titled 'Parole Application', which relevantly stated as follows:

The purpose of this parole application is only to allow the Board to exercise its power, if the Board has such power, to bring a complete end to the sentence I'm currently (since 1994) being held in custody for.

Importantly, I make this application only so that an order be made that I be released from custody immediately and that the parole period for the order be fixed by the Board to expire immediately upon my release so that the sentence for which I'm being held in custody be finally and completely discharged.

21 On 26 May 2023, the Board's Secretary, Fatima Ebrahim, wrote a letter back to Mr McKechnie acknowledging receipt of two letters, one of which was the letter dated 22 May 2023.[6] Ms Ebrahim's letter dated 26 May 2023 relevantly stated as follows:

The Queensland Supreme Court sentenced you to life imprisonment, with a non-parole period of 15 years. If you were to be granted parole, your parole would not expire during your life, because a parole order does not expire until the end of a person's sentence (unless cancelled by the Board). If the Board cancels a person's parole order, that person will be returned to prison.

Please note, the Board does not have the authority to overturn a sentence handed down by the Courts, in any state or jurisdiction. You can re-apply for parole at any time if you choose to do so. If you are interested in re-applying for parole, please speak to your prison case worker.

22 On 2 June 2023, Mr McKechnie wrote another letter to the Board. It was entitled 'Re: Review of the Board's decision to refuse parole release'. It relevantly stated that Mr McKechnie was treating the Board's letter 'as a decision to refuse to grant my release in answer to my application and the comments you made in your letter, the reasons for that decision.'

23 Mr McKechnie commenced this proceeding by his originating motion filed on 13 July 2023.

24 On 10 June 2025 the Board filed an affidavit of its Secretary, Ms Ebrahim.

25 On 26 July 2025, Mr McKechnie served a notice under r 40.04(2) of the Rules, requiring Ms Ebrahim to attend the hearing for cross-examination. That sub-rule provides:

Unless the court otherwise orders, a party to a proceeding commenced by originating motion on whose behalf an affidavit is filed in the proceeding shall cause the deponent to attend at the trial of the proceeding to be examined if notice that such attendance is required is served on the party by any other party a reasonable time before the commencement of the trial.

26 If, after service of such a notice, the deponent does not attend for examination, the Court may order that the affidavit not be received into evidence.[7]

27 By an informal application in written submissions dated 29 October 2025, the Board applied for an order pursuant to r 40.04(2) of the Rules to displace the effect of r 40.04(2) and (3) and permit reliance on Ms Ebrahim's affidavit without her attending the trial to be cross-examined.

28 At that time, the trial was scheduled for 18 November 2025.

29 I listed a hearing of the Board's informal application on 5 November 2025 (5 November interlocutory hearing). On that occasion, the Board confirmed that it would rely on Ms Ebrahim's affidavit, in its entirety, including paragraph 6, which stated:

I received and considered the plaintiff's 22 May 2023 letter on behalf of the APB. I formed the view that the APB did not have the powers to take the action sought by the plaintiff in his letter, including but not limited to finally and completely discharging the plaintiff from his sentence imposed by the Supreme Court of Queensland. I am unaware of any statutory provision which would enable the APB to make such decisions.

30 Following that paragraph, Ms Ebrahim deposed that in her letter of 26 May 2023 she noted the view she 'had formed as described in paragraph 6 above'.

31 The Board supported its application on the basis that Ms Ebrahim's cross-examination would not result in admissible evidence on any relevant issue. However, given that the Board was pressing its reliance on the entirety of Ms Ebrahim's affidavit, I was unpersuaded that no admissible evidence could result.

32 At the 5 November interlocutory hearing, after considering oral and written submissions of the parties, I refused the Board's application for an order displacing the effect of r 40.04(2) and (3) of the Rules and gave oral reasons. After giving the ruling, there was discussion about related case management issues. The Board sought that the trial should commence with oral evidence from Ms Ebrahim, and Mr McKechnie did not oppose this. I noted the detailed written submissions already received from the parties and indicated that I would regard them as the parties' opening submissions. Pursuant to s 49 of the Civil Procedure Act 2010, I directed that opening addresses at the trial were dispensed with and that Ms Ebrahim be called at the commencement of the hearing.

33 At the end of the 5 November interlocutory hearing, Mr McKechnie applied for his costs of the Board's failed informal application for an order under r 40.04(2) of the Rules. Without hearing from the Board I indicated that I wished to reserve that costs issue for further hearing and consideration at the trial fixture and that, in the absence of affidavit evidence verifying Mr McKechnie's costs claim, I would be disinclined to find that he had incurred any.

34 Later in November, owing to the relocation of Mr McKechnie to a different prison, the trial was adjourned to 17 December 2025.

35 At the trial on 17 December 2025, Mr McKechnie asked Ms Ebrahim various questions by way of cross-examination, including questions directed to four noteworthy topics.

36 The first noteworthy topic, by which Mr McKechnie sought to elicit information as to the personal circumstances of another prisoner, met with a prompt objection from the Board, which (after considering the applicable legislation) I upheld, giving an oral ruling.

37 Secondly, Mr McKechnie asked Ms Ebrahim about the references in the parole order and varied parole order to parole coming to an end at the dates specified, about five years after parole was granted. Ms Ebrahim explained that these were errors, and she reiterated her belief that the Board had no power to set an end date for parole that was sooner than the end of the prisoner's sentence of imprisonment.

38 Thirdly, Mr McKechnie asked Ms Ebrahim about the references in the varied parole order and her letter of 26 May 2023 to a non-parole period of 15 years, contrasting this with the reference in the original parole order in 2007 to an 'NPP' of 13 years. Ms Ebrahim could not explain why this alteration had occurred. I am unable to make any finding as to which reference was correct.

39 The fourth topic was about paragraph 6 of Ms Ebrahim's affidavit, extracted in paragraph 29 above. Ms Ebrahim was asked questions tending to test whether there was any material difference between that paragraph and her letter of 26 May 2023. The cross-examination did not expose any material difference. Mr McKechnie then began asking questions about the correctness of the opinion or belief expressed in paragraph 6. In my view, Ms Ebrahim's opinion or belief as set out in that paragraph was arguably relevant as part of the narrative explaining what she wrote in her letter dated 26 May 2023, but it was (of course) not determinative of the legal questions before the Court regarding the limits of the Board's powers under the Act. Once it was clear that Mr McKechnie's cross-examination about that paragraph was turning to the correctness of the legal conclusions expressed in it, I disallowed any further cross‑examination along those lines.

40 At the trial, the Board sought to rely on two affidavits of the General Manager of Barwon Prison, Dale Slater, deposing to the circumstances of Mr McKechnie's relocation between prisons and matters relevant to Mr McKechnie's readiness to participate in the trial. Mr McKechnie objected to these affidavits on grounds of relevance. At the trial, Mr McKechnie did not apply for an adjournment of the trial and did not claim to be unready to participate in the trial, so it was unnecessary to receive those affidavits into evidence, and I did not do so.

41 The questions arising for hearing and consideration at and following the trial were:

(a) Are any of the claims originally included in Mr McKechnie's originating motion established? These claims turned on whether, on the proper interpretation of the relevant provisions of the Act, the Board had the power to grant Mr McKechnie's application for parole on terms that would bring his sentence of life imprisonment for murder to an end.

(b) Should Mr McKechnie be granted leave to amend his originating motion, to include new claims to the effect that ss 76 and 77B(2)(b) of the Act are invalid on constitutional grounds, and a declaration of invalidity of s 76?

(c) If so, what procedural steps should follow? (Presumably a timetable for further notices of constitutional matters under s 78B of the Judiciary Act 1903, and a further hearing of the trial, would be required.)

(d) Should Mr McKechnie be granted leave to amend his originating motion, to include a new claim to quash the Board's decision (as set out or conveyed by its letter dated 26 May 2023) on the ground that it treats Mr McKechnie differentially?

(e) If so, would this lead to the Board's global objection to admission of Mr McKechnie's affidavit of 27 November 2025 on relevance grounds being overruled, and the affidavit received into evidence?

(f) The proper disposition of the costs of the proceeding, including the costs of the Board's failed application for an order relieving Ms Ebrahim from attendance under r 40.04(2) of the Rules at the 5 November interlocutory hearing.

42 I have determined questions (a), (b), (d) and (e) against Mr McKechnie. Question (c) did not arise. As to the last issue listed above, the Board sought that the proceeding be dismissed with costs, including its costs of the 5 November interlocutory hearing. Mr McKechnie sought his costs of the Board's failed application for an order under r 40.04(2) of the Rules relating to Ms Ebrahim, and adduced evidence as to his costs, but did not otherwise reply to the Board's costs application.

Mr McKechnie's primary contention - The applicable law

43 Mr McKechnie identified the primary question arising in the proceeding (framed by his originating motion) as whether the Board had power under the Act to bring a complete end to the sentence he is currently serving.[8]

44 He drew the Court's attention to the following provisions of the Act.

45 First, he referred to s 76, entitled 'Persons on parole deemed still under sentence'. That provision is as follows:

If in relation to a prisoner the parole period elapses without the making by the Board of an order cancelling the parole or the commission by the prisoner, whether in Victoria or elsewhere, of an offence for which the prisoner is sentenced to imprisonment (whether during or after the parole period), the prisoner is to be regarded as having served a prison sentence and is to be wholly discharged from the sentence, but until the parole period so elapses or until the prisoner is otherwise discharged from the prison sentence the person released on parole is to be regarded as being still under sentence.

46 Two of the expressions referred to in s 76 are of importance to Mr McKechnie's arguments. He next drew the Court's attention to them, as follows:[9]

parole period means a period beginning on the day on which a person is released from prison on parole and ending at the end of the person's prison sentence;

prison sentence in relation to a person means the total of the following sentences or non-parole periods which have been imposed or determined in relation to the person, reduced as provided for under this or any other Act -

(a) if a non-parole period has not been fixed in relation to a sentence of imprisonment - the sentence of imprisonment;

(b) if a non-parole period has been fixed in relation to a sentence of imprisonment and the prisoner has not served the non-parole period - the non-parole period;

(c) if a non-parole period has been fixed in relation to a sentence of imprisonment and the prisoner has served the non-parole period and is not on parole - so much of the sentence as the board determines for the purposes of this definition.

47 Mr McKechnie contended that the plain and literal meaning of the words of sub‑paragraph (c) of the definition of 'prison sentence' is such as to confer on the Board the power to determine how much of a prisoner's sentence is to be taken into account for the purposes of the defined term 'prison sentence' as that term appears in s 76 of the Act. He submitted that, by a process of substitution of the defined term 'prison sentence' into the definition of 'parole period' and the substitution of the resulting text into the substantive body of s 76, s 76 in effect provides relevantly as follows:[10]

If ... the period - beginning on the day on which a person is released from prison on parole and ending after a period of so much of the [sentence of imprisonment] as the board determines - elapses ... , the prisoner ... is to be wholly discharged from the [sentence of imprisonment].

48 On that basis, Mr McKechnie contended, the legislature has conferred power on the Board to grant parole in a way that will bring a prisoner's sentence to an end before the expiry of the sentence of imprisonment imposed by the sentencing court. This is the power he was asking the Board to exercise when he sent his letter dated 22 May 2023, requesting that the Board bring his sentence to an end immediately upon the commencement of his release on parole. This is the power Mr McKechnie contends the Board has incorrectly refused to acknowledge or exercise.

49 By his originating motion, Mr McKechnie sought an order requiring the Board to properly exercise its power to make the decision he sought, taking into account all relevant information, and he sought associated declarations. The grounds he relied upon in these respects were that the decision was based on an incorrect presumption that the Board did not have the relevant power, and grounds alleging a failure to take into account relevant considerations and the taking into account of irrelevant considerations.

50 Aside from his contention summarised in paragraphs 47-49 above, Mr McKechnie did not specify any other alleged relevant or irrelevant considerations. I therefore assume that all the grounds referring to relevant and irrelevant considerations were iterations of the same contention. If that assumption is wrong, then those grounds fail in any event for lack of particularity.

51 The Board disputed Mr McKechnie's claims and his underlying contention about the construction of ss 55(1) and 76 of the Act. The Board contended that, as a matter of ordinary statutory interpretation, neither the definitions in s 55(1) nor the operative provisions of s 76 of the Act (nor any combination of them), conferred power on the Board to reduce or otherwise alter Mr McKechnie's sentence in the manner he contended.

52 The Board relied on various arguments in support of its position, one of which was that there is a traditionally recognised difference between: first, the function of the courts in imposing sentences; and secondly, the function of the executive in determining issues relating to parole.

53 In response to that argument, Mr McKechnie served notices on the Attorneys-General pursuant to s 78B of the Judiciary Act 1903 (Cth) of a matter arising under the Commonwealth Constitution. None of the Attorneys intervened.

54 Another of the Board's arguments drew attention to the combined operation of ss 77B(2)(b) and 77C, which can apply where a prisoner has been released on parole for a period but then parole has been cancelled. In those circumstances, s 77C confers a discretionary power on the Board to determine that the period the prisoner was out of prison on parole (or part of it) 'is to be regarded as time spent serving a relevant prison sentence. Those sections relevantly provided:

77B Return of prisoner to prison on cancellation of parole

(1) If a prisoner's parole is cancelled or taken to be cancelled, the Board may -

(a) authorise any police officer, by warrant signed by the Secretary or a member of the Board, to break, enter and search any place where the prisoner is reasonably believed to be and to arrest the prisoner and return the prisoner to prison; or

(b) ...

(2) If a prisoner's parole is cancelled or taken to be cancelled -

(a) the original warrant to imprison or other authority for the person's imprisonment is to be regarded as again in force; and

(b) any period during which the parole order was in force is not to be regarded as time served in respect of the prison sentence unless a direction under section 77C applies.

77C Power to direct that time on parole is time served

The Board may direct that some or all of the period during which a parole order that is cancelled or taken to be cancelled was in force is to be regarded as time served in respect of the prison sentence.

55 As already noted, Mr McKechnie sought to rely on a proposed amended originating motion that included the following additional claims: a claim to the effect that s 76 of the Act is invalid and a declaration of invalidity of that provision; a claim to the effect that s 77B(2)(b) of the Act is invalid; and a claim that the Board's decision unlawfully differentiated Mr McKechnie's treatment.

56 In my view, Mr McKechnie's approach to the interpretation of ss 55(1) and 76 is incorrect. It depends on a process of partial substitution of definitions of defined terms into the body of s 76 of the Act in a manner that pays insufficient attention to the entirety of the defined terms and their context in the Act. An approach of this kind is inconsistent with the well-established principles of statutory interpretation.

57 When proper attention is paid to the full text of the definitions of 'parole period', and of 'prison sentence', and their place in s 76 and in the Act as a whole, it is clear that Parliament has not conferred (or purported to confer) a general power on the Board to decide the length of a remaining prison sentence in the course of granting parole. On the contrary, the Board has only been given a tightly constrained power, specifically conferred by other provisions of the Act, to treat days spent on release on parole as counting toward the reduction of a prisoner's remaining sentence of imprisonment.

58 Starting with s 76 of the Act, the first point to note is that the provision is titled, and largely directed to, the topic of 'Persons on parole deemed still under sentence'. In other words, the focus of s 76 is to make clear that a grant of parole does not bring a sentence to an end. It is by way of contrast to this point that the provision states that 'If ... the parole period elapses [without prior cancellation of parole] the prisoner is to be regarded as having served a prison sentence and is to be wholly discharged from the sentence ...'.

59 What, then, is the point at which the 'parole period elapses'? As the definition of 'parole period' in s 55(1) of the Act makes clear, this occurs at the 'end of the person's prison sentence'.

60 A prison sentence is expressed in units of time, not by reference to a fixed end date. An examination of the Act as a whole indicates that various complications can arise in ascertaining or deciding whether particular periods of time spent by a person released on one or more grants of parole that were then cancelled should be regarded as counting toward reduction of the unserved portion of the person's sentence of imprisonment. Most obviously, ss 77B(2)(b) provides that such periods will not count toward serving the sentence, subject to the discretionary power conferred on the Board by s 77C to treat such a period (or part of it) as time served.

61 Another example where the Board may be called upon to find whether (and to what extent) time has been served by way of reduction of a prisoner's sentence of imprisonment is s 78E of the Act, entitled 'Time in detention is time served'. In circumstances where a person has been arrested and detained for a breach of parole under s 78B(2) or (3), or where the Board has ordered a person to be taken into custody following cancellation of parole under s 78C(1)(a), s 78E requires the Board to ascertain any time spent by the prisoner in custody, and this will be treated as time served:

(1) If a prisoner is detained under section 78B(2) or (3), the period during which the prisoner is so detained is to be regarded as time served in respect of the prison sentence for which the prisoner was released on parole.

(2) If the Board makes an order under section 78C(1)(a), the period during which a prisoner is detained under that order is to be regarded as time served in respect of the prison sentence for which the prisoner was released on parole.

62 In all such cases, whether under ss 77C or 78E, the Board has a very constrained function. It could in no way be described as a general power to reduce the prisoner's sentence.

63 The existence of such highly constrained functions - precisely defining the limited circumstances in which the Board may treat a period as time served under sentence of imprisonment - makes it extremely unlikely that Parliament intended to confer on the Board a general power to reduce a sentence when granting parole.[11] What would have been the utility of carefully prescribing these limited functions if Parliament was at the same time conferring a virtually unlimited power capable of achieving the same end?

64 Further, the definition of 'prison sentence' in s 55(1) must be considered in its entirety, and having regard to the contextual points I have just noted. When that is done, it is clear that the phrase in sub-paragraph (c) of the definition on which Mr McKechnie principally relies ('... so much of the sentence as the board determines for the purposes of this definition ...') does not confer a general power on the Board; rather, it is a reference to functions that are elsewhere conferred that contribute to the Board determining what the prisoner's prison sentence is.

65 The operative verb used in sub-paragraph (c), 'determines', is of some flexibility. In a case where s 78E is engaged, it can mean 'ascertains' or 'finds'. In a case where s 77C is engaged, it can mean 'decides'. But in no case does it confer a freestanding, general power to decide the length of the remaining sentence.

66 This conclusion is consistent with the words used in the chapeau of the definition of 'prison sentence' in s 55(1) (emphasis added):

prison sentence in relation to a person means the total of the following sentences or non-parole periods which have been imposed or determined in relation to the person, reduced as provided for under this or any other Act -

...

(c) ... - so much of the sentence as the board determines for the purposes of this definition.

67 In my view, the reference in sub-paragraph (c) to the definition of 'prison sentence' in s 55(1) of the Act extracted above is to be read in the context of the chapeau of the definition ('... reduced as provided for under this or any other Act - '): it is an instance of what is mentioned in the chapeau, not a general power to decide the length of the prisoner's remaining sentence.

68 For all these reasons, the claims in Mr McKechnie's originating motion will be dismissed.

69 As already noted, Mr McKechnie sought to rely on a proposed amended originating motion that included the following additional claims: a claim for a declaration that s 76 of the Act is invalid; a claim that the question of invalidity of that provision and s 77B(2)(b) arises; and a claim that the Board's decision unlawfully differentiated Mr McKechnie's treatment.

70 In support of his claims of invalidity, Mr McKechnie claimed:

It is repugnant to the judicial process of a chapter 3 court for the Victorian State parliament to legislate providing the State executive a power to redefine the period of a sentence of imprisonment.

71 In support of Mr McKechnie's newly proposed claim for a declaration that the decision unlawfully differentiated his treatment, he relied upon a ground that:

The decision is inconsistent with earlier decisions made under the same provisions in comparable circumstances and is therefore invalid.

72 Mr McKechnie sought to rely on an affidavit he made on 27 November 2025, filed 28 November 2025, in support of his claim of differential treatment.

73 The Board opposed the grant of any leave to Mr McKechnie to rely on his newly proposed amended originating motion and objected on grounds of relevance to his affidavit of 27 November 2025.

74 I asked the parties to conduct the proceeding on 17 December 2025 on the basis that I might decide to grant leave to Mr McKechnie to rely on his proposed amended originating motion, and for that purpose I would provisionally have regard to his affidavit of 27 November 2025. Depending on the outcome of Mr McKechnie's leave application, it might of course have become necessary for him to file a fresh notice of constitutional matter pursuant to s 78B of the Judiciary Act before the Court could take a further step in the proceeding.

75 In the end, however, I have decided not to grant Mr McKechnie leave to rely on his proposed amended originating motion. It follows that no further s 78B notice will be necessary.

76 I will now explain briefly why I have reached that conclusion.

77 The Board submitted that there would be no utility in granting Mr McKechnie leave to rely on any of the amendments to the originating motion because they had no real prospects of success. The Board also submitted that Mr McKechnie did not have standing to seek the declaration of invalidity of s 76 of the Act he had included in his proposed amended originating motion. The Board also submitted that Mr McKechnie's proposed amendments came very late and were inadequately explained. The Board did not claim any particular prejudice that could not be remedied by an order as to costs.

78 I am satisfied that Mr McKechnie provided a reasonable explanation for his late proposals to amend his claims in the proceeding. He satisfactorily explained to me that he only recently came into possession of information allowing him to propose an addition to the proceeding of a claim that he had been treated differently from another prisoner. He also explained to me that his wish to raise potential invalidity of provisions of the Act arose from his consideration of the submissions filed by the Board in August 2025.

79 For that reason, I reject the Board's submissions based on there being an inadequate explanation for delay in raising the relevant claims. I also note that the Board makes no claim of specific prejudice.

80 However, the Board's other submissions against a grant of leave to amend are of considerable weight.

81 Mr McKechnie contended that he had standing to seek a declaration of invalidity of s 76 of the Act because he was in prison and was contemplating an application for parole (or perhaps had made one) and was entitled to know whether a provision under which any grant of parole would be made was valid or not.

82 The Board pointed out that s 76 of the Act was relied upon by Mr McKechnie in his primary submissions in the proceeding. Far from it being in Mr McKechnie's interests that s 76 be declared invalid, s 76 was integral to his argument that the Board had power to make a decision of the kind he had sought in his letter of 22 May 2023.

83 The Board's submissions are convincing. The contention of Mr McKechnie that s 76 is invalid is not only apparently against his interests, but is entirely inconsistent with the letter entitled 'Application for parole' on which he has founded this proceeding. These are powerful considerations suggesting that Mr McKechnie either has no standing to seek the declaration in question or perhaps that some form of estoppel might arise preventing him from claiming such standing.

84 However that may be, I do not rely on any conclusion as to Mr McKechnie's lack of standing in the proceeding. I do not need to reach a conclusion as to Mr McKechnie's standing because it is clear that there would be no utility in granting him leave to rely on his newly proposed amended originating motion in any event.

85 That is because Mr McKechnie's claim of invalidity of s 76 depends on the statutory construction argument he advanced in support of his originating motion. In particular, Mr McKechnie's argument that s 76 is invalid could only have real prospects of success if the proper interpretation of s 76 (in combination with the relevant definitions in s 55(1)) were to be as Mr McKechnie contends. I have reached the conclusion that Mr McKechnie's construction is incorrect. For the reasons already given in the preceding section of these reasons, properly construed, s 76 and the definitions of 'parole period' and 'prison sentence' in s 55(1) of the Act do not purport to confer on the Board any power to vary a sentence of imprisonment imposed by a court.

86 I have noted that Mr McKechnie's proposed amended originating motion also stated that he wished to raise the question of whether s 77B(2)(b) is invalid, although no declaration of invalidity was sought in relation to that provision. If Mr McKechnie had any independent basis for claiming that a question of invalidity of s 77B(2)(b) arose he did not make this clear. In any event, I am not satisfied that there would be any utility in permitting leave to allow him to include an assertion that a question arose about the validity of that provision. It would not be appropriate for the Court to attempt to redraft the document Mr McKechnie submitted.

87 I am satisfied that the arguments Mr McKechnie wished to have included in the proceeding by way of leave to amend his originating motion to claim or raise questions about the invalidity of ss 76 and 77B(2)(b) have no real prospects of success. Leave to amend the originating motion to raise these matters is declined.

88 Mr McKechnie's application for leave also extended to a claim that the decision be set aside on the basis that it was an unreasonable exercise of power or was otherwise unlawful, in that it treated him differentially from another prisoner.

89 This claim too is without any real prospect of success, and it would be futile for leave to be granted for Mr McKechnie to raise it in the proceeding.

90 The factual basis on which Mr McKechnie relied in support of this claim, as set out in his affidavit of 27 November 2025, was insufficient for the Court to be satisfied that the circumstances of the other prisoner in question were materially the same as Mr McKechnie's.

91 Further, even if the circumstances of the other prisoner were materially the same, it would not necessarily follow that it was unreasonable for the Board to make the decision it did in relation to Mr McKechnie. Having regard to my conclusions as to the proper interpretation of s 76 and the definition of 'prison sentence' in s 55(1) of the Act, if indeed the Board once treated another prisoner in the same circumstances as Mr McKechnie differently and purportedly shortened his sentence when releasing him on parole, the Board would have erred in law in doing so. Doing the same in response to Mr McKechnie's request dated 23 May 2023 would merely repeat the error.

92 For all these reasons, leave to rely on Mr McKechnie's proposed amended originating motion dated 14 December 2025 is refused.

93 It follows that I will not receive Mr McKechnie's affidavit of 27 November 2025 into evidence, and I will uphold the Board's global objection to it on grounds of its irrelevance. It will be retained on the Court file as a document marked for identification but it is not admitted into evidence.

94 I have concluded that, on a proper interpretation of s 76 of the Act and the expressions 'parole period' and 'prison sentence' in s 55(1), the Board does not have the power asserted by Mr McKechnie in this proceeding and referred to in his letter dated 22 May 2023.

95 It follows that all the claims in Mr McKechnie's originating motion are unsuccessful.

96 Further, Mr McKechnie's application for leave to rely on his proposed amended originating motion dated 14 December 2025 is refused.

98 Subject to what follows, as the successful party, the Board is entitled to the usual order that Mr McKechnie pay its costs of and incidental to the proceeding, on the standard basis.

99 Mr McKechnie's only substantive argument on costs was that he should receive an order for his costs of and incidental to the 5 November interlocutory hearing at which the Board opposed his cross-examination of Ms Ebrahim.

100 Pursuant to r 40.04(2) of the Rules, Mr McKechnie was entitled to serve a notice requiring Ms Ebrahim's attendance for cross-examination unless I otherwise ordered. At the 5 November interlocutory hearing, the Board confirmed that it relied on Ms Ebrahim's affidavit, including paragraph 6 extracted above. I therefore decided not to make any order displacing the ordinary effect of r 40.04(2) and (3) of the Rules.

101 At the end of the 5 November interlocutory hearing Mr McKechnie sought his costs of the Board's failed application . Without hearing any responsive submission from the Board, I reserved that question to further hearing and consideration at the trial. In doing so, I indicated that in the absence of affidavit material verifying the costs incurred, I would probably not be satisfied that Mr McKechnie had incurred any costs.

102 In support of his renewed application at the trial for his costs of the Board's failed application for an order under r 40.04(2) relating to Ms Ebrahim, Mr McKechnie provided two unfiled affidavits, one an unsworn affidavit of his dated 28 November 2025, which I accept as if it were sworn,[12] and the other made by Samuel Cyprys on 15 December 2025. These affidavits established that Mr McKechnie had made an arrangement with Mr Cyprys for Mr Cyprys to assist Mr McKechnie in relation to this proceeding. They exhibited an invoice that stated that it complied with 'the principle held in Cachia v Hanes (1991) 23 NSWLR 304 in relation to a person who is not a legal practitioner who provides a service to assist another person who is representing him or herself in a legal proceeding', and also referred (amongst other things) to Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 and Step v Northern Territory of Australia [2007] NTCA 6.

103 The invoice (amongst other things) recorded a claim for payment by Mr Cyprys from Mr McKechnie of $1,450 of fees relating to the interlocutory application relating to Ms Ebrahim for 5 hours' work at $290 per hour, consisting of:

(a) 2 hours of 'Document handling and management';

(b) 2 hours of 'Communication management'; and

(c) 1 hour of 'General (non-legal) assistance'.

104 I have decided not to grant Mr McKechnie an order for his costs of the interlocutory application heard on 5 November 2025. The evidence that he had incurred costs in responding to the application was unsatisfactory. The items in Mr Cyprys' invoice do not amount to a record that Mr Cyprys prepared Mr McKechnie's submissions or his affidavit material in response to the Board's application. Mr Cyprys did not appear at the 5 November 2025 interlocutory hearing. It is unclear how any 'Document handling and management', 'Communication management' or 'General (non-legal) assistance' provided by Mr Cyprys could have been in any way necessary to, or reasonably incurred in, Mr McKechnie's response to the Board's application. I am not persuaded that Mr McKechnie has incurred any costs that are properly referable to the application. I therefore refuse the costs order he seeks. I have not turned my mind to any of the further issues that might have been necessary to decide, such as whether any assistance from Mr Cyprys paid for by Mr McKechnie could be recoverable by reference to the principles in the authorities referred to in the invoice.

105 Given the nature of the interlocutory application heard on 5 November 2025, the usual outcome would have been that the costs of the application be costs in the proceeding, unless otherwise ordered.[13] The Board sought its costs of the 5 November hearing on the basis that its initial resistance for making Ms Ebrahim available for cross‑examination was ultimately vindicated, in that her cross-examination was of no real assistance to the Court.[14]

106 In the end, the cross-examination of Ms Ebrahim by Mr McKechnie was of no real assistance to the Court in determining the real issues in dispute. Nevertheless, the fact remains that Mr McKechnie was successful in resisting the Board's application heard at the 5 November interlocutory hearing.

107 There is some force in the Board's submission on the costs of the 5 November interlocutory hearing, but in the end this needs to be balanced with the fact that the Board did not persuade me that Ms Ebrahim should be excused while reliance was placed on her affidavit. Part of the reason for the Board's failure to persuade me of this was that it was not explained precisely how paragraph 6 was to be relied upon by the Board.

108 In all the above circumstances, I have decided that the costs of and incidental to the interlocutory application heard on 5 November 2025 will be excluded from the costs order against Mr McKechnie. This is the outcome that strikes the fairest and most just balance.

[1] The plaintiff's evidence received by the Court was: an affidavit of Andre McKechnie affirmed 6 June 2023 and filed 13 July 2023, and an unsworn affidavit of Andre McKechnie dated 2 September 2025, filed 3 September 2025. The latter was unsworn but was admitted under Oaths and Affirmations Act 2018 (Vic) s 28A. A further unsworn affidavit of Andre McKechnie dated 27 November 2025, filed 28 November 2025 (save for contents relating to another prisoner in [1], [3], and the first sentence of [5] excluded as hearsay) was marked for identification and provisionally considered by the Court, subject to a global relevance objection by the Board. The defendant's evidence received by the Court was: an affidavit of Fatima Ebrahim affirmed and filed 10 June 2025.

[2] Criminal Code Act 1899 (Qld) sch 1 (Criminal Code) s 305.

[3] Prisoners (Interstate Transfer) Act 1982 (Qld) s 24; Prisoners (Interstate Transfer) Act 1983 (Vic) s 27.

[4] Prisoners (Interstate Transfer) Act 1983 (Vic) s 28.

[5] No documentary evidence of this event was adduced, but it was an agreed fact.

[8] Mr McKechnie's outline of submissions dated 8 July 2025 and filed 14 July 2025, [5].

[10] Plaintiff's outline of submissions filed 17 July 2025, [11].

[11] See generally Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1.

[12] Oaths and Affirmations Act 2018 s 28A.

[14] Transcript of proceedings, Supreme Court of Victoria (Gray J), 17 December 2025, 172-174 (Mr Chircop).