Kruck v Queensland Regional Parole Board

[2008] QSC 137

[2008] QSC 137

THE SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MCMURDO J

No 3800 of 2008

MICHAEL CHRISTIAN KRUCK	Applicant
and
QUEENSLAND REGIONAL PAROLE BOARD	Respondent

BRISBANE

..DATE 16/05/2008

ORDER

HIS HONOUR:  This is an application by a prisoner for judicial review in relation to an application for parole.  The application was made to the respondent board on 19 December 2007.

Unfortunately, it was not then considered by the Board as it should have been according to section 193 of the Corrective Services Act.

The Parole Board failed to decide that application within 120 days of its receipt and accordingly, by subsection 193(5), the Board is taken to have decided to refuse to grant the application.

The failure to decide the application within that period is through no fault of the applicant.  It seems that the application, when received by the Board, was then sent off in other directions for consideration by other people instead of remaining with the Board for its consideration.

The applicant, who appears to argue his own case today, wishes to have the Board ordered to consider his application and in particular to consider it and decide it within the next 28 days.

There is an understandable frustration felt by the applicant about the delay. The Board's failure to determine the application engages section 22 of the Judicial Review Act. This is a case within subsection 22(1): it seems clear that there has been unreasonable delay in making the decision and that was fairly conceded by counsel appearing for the board. The mistake, as I have said, is in the application being sent somewhere else for a while.

Alternatively, if this is a case within subsection 22(2), in that section 193, by its reference to the deadline of 120 days is to be understood as requiring the making of a decision within a period, namely, that period, then again, section 22 is engaged because there has been a failure to decide within that period.

Either way, there is a ground which is established for an order for review.  The question is then is 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.

-----