McKenzie v Attorney General for New South Wales [2023] NSWSC 1639

McKenzie v Attorney General for New South Wales [2023] NSWSC 1639

The State Parole Authority was lawfully entitled to revoke the plaintiff's parole under s 170(1)(a) because it was open to infer that it was subjectively satisfied that he had breached parole conditions 3 and 16 on the basis of the Community Corrections breach report and recommendations. Section 170(2) authorised revocation without calling on the plaintiff to appear and without holding an inquiry, and the statutory review process in ss 173-175 regulated the required procedural fairness. No error of law on the face of the record, apprehended bias, jurisdictional error, constructive failure to exercise jurisdiction, or legal unreasonableness was established.

Jurisdiction
Australia
Judgment Date
21 December 2023
Procedural Posture
Judicial Review of Decision to Revoke Parole / Further Amended Summons Seeking Declaration and Extension of Time Under UCPR R 59.10
Outcome
Time extended under UCPR r 59.10; proceedings dismissed; plaintiff ordered to pay the first defendant's costs.
Legal Topics
['revocation of Parole' 'subjective Jurisdictional Fact' 'error on the Face of the Record' 'procedural Fairness' 'apprehended Bias' 'legal Unreasonableness' 'extension of Time']
['administrative Law' 'parole' 'judicial Review'] ['revocation of Parole' 'subjective Jurisdictional Fact' 'error on the Face of the Record' 'procedural Fairness' 'apprehended Bias' 'legal Unreasonableness' 'extension of Time']

Case Brief

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Procedural Posture

Judicial Review of Decision to Revoke Parole / Further Amended Summons Seeking Declaration and Extension of Time Under UCPR R 59.10

Legal Issues

  1. 1 ['Whether the State Parole Authority failed to be satisfied of the pre-condition in s 170(1)(a) of the Crimes (Administration of Sentences) Act 1999 (NSW) before revoking parole.' 'Whether an error of law appeared on the face of the record.' 'Whether procedural fairness required the State Parole Authority to consult the plaintiff or conduct an inquiry before revoking parole.' 'Whether the decision to revoke parole was affected by apprehended bias.' 'Whether the decision to revoke parole was legally unreasonable or irrational.' 'Whether time should be extended under rule 59.10 Uniform Procedure Rules 2005 (NSW).']

Ratio Decidendi

The State Parole Authority was lawfully entitled to revoke the plaintiff's parole under s 170(1)(a) because it was open to infer that it was subjectively satisfied that he had breached parole conditions 3 and 16 on the basis of the Community Corrections breach report and recommendations. Section 170(2) authorised revocation without calling on the plaintiff to appear and without holding an inquiry, and the statutory review process in ss 173-175 regulated the required procedural fairness. No error of law on the face of the record, apprehended bias, jurisdictional error, constructive failure to exercise jurisdiction, or legal unreasonableness was established.

Court Disposition

Time extended under UCPR r 59.10; proceedings dismissed; plaintiff ordered to pay the first defendant's costs.

Orders

  • ['Under rule 59.10 Uniform Procedure Rules 2005 (NSW) extend the time for bringing these proceedings for judicial review to the filing of the summons on 19 September 2022.' 'Dismiss the proceedings.' "The plaintiff to pay the first defendant's costs of the proceedings."]