SMART -v- PRISONER REVIEW BOARD (WA) [2012] WASC 48 (16 February 2012)

Supreme Court of WA|2012-02-16|Before: Pritchard J

The applicant has leave to file the originating motion, amended in accordance with these reasons.

Administration Act 2003

4 It appears that Mr Smart is eligible for parole in respect of a sentence imposed after the commencement of the Sentence Administration Act 2003 (WA) (the SA Act): see Smart v WA Police [2011] WASC 99. A decision as to whether Mr Smart should be released on parole is a matter for the Prisoners Review Board (the Board) under the SA Act. The documents provided by Mr Smart indicate that on 27 June 2011 the Board made a decision to deny Mr Smart's release on parole. Mr Smart then sought a review of that decision pursuant to s 115A of the SA Act. On 7 July 2011 the Board denied Mr Smart's request for a review of its earlier decision.

9 Order 67 r 5 of the RSC requires a registrar to refuse to file a motion if it appears to the registrar to be an abuse of the process of the court. What amounts to an abuse of the court's process is insusceptible of a formulation comprising closed categories: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256, 265 [9] (Gleeson CJ, Gummow, Hayne & Crennan JJ). However, it is well accepted that an abuse of process encompasses 'all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness': Walton v Gardiner (1993) 177 CLR 378, 393 (Mason CJ, Deane & Dawson JJ). The filing of the original motion would, at least on the face of that document, have constituted an abuse of the court's process - the original motion failed to set out any basis for the relief sought, and in so far as Mr Smart sought that the court make an order granting him parole, the court would not have been able to grant such relief.

10 In dealing with the leave application, I have borne in mind the fact that Mr Smart is selfrepresented and has no legal training, and that some flexibility is appropriate in considering the pleadings of self-represented litigants: cf Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 537 (Kirby P), 543 (Hope & Samuels JJA agreeing); see also Tobin v Dodd [2004] WASCA 288 [13] [16] (EM Heenan J), [3] (Murray J agreeing), [70] (Le Miere J agreeing).

11 Having heard Mr Smart's submissions, it appears that the essence of the relief which he seeks in relation to the decisions to refuse parole is in the nature of prerogative relief in the form of a writ of certiorari to quash each of those decisions. A decision of the Board to refuse parole is amenable to judicial review in this Court: see for example Miketic v Prisoners Review Board [2011] WASC 176; Subotic v Prisoners Review Board [2011] WASC 177. As for the Board's letter of 22 July 2011, insofar as Mr Smart contends that the Board failed to meet a statutory duty to respond to his correspondence, and seeks that the Board be required to respond to him, the relief sought is in the nature of prerogative relief in the form of a writ of mandamus, or alternatively a writ of certiorari, to set aside any decision by the Board not to respond to him.

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