McDonald v State Parole Authority of New South Wales

1. [1]

   By summons filed 4 August 2023, the plaintiff, Tariq McDonald, seeks a review of two decisions of the State Parole Authority (“the Authority") made in respect of him on 5 May 2023 and 21 July 2023.

2. [2]

   The orders he seeks are:

3. [3]

   The Authority filed a submitting appearance. With the consent of the parties, the Attorney General for New South Wales was granted leave to intervene in the proceedings and was joined as the second defendant, to oppose the orders sought by the plaintiff.

4. [4]

   A Court Book containing all the material relied on by the plaintiff and the Attorney General was filed, subject to some orders about limitations on the use of some evidence.

Background

1. [5]

   The following is the factual background to the plaintiff's application.

2. [6]

   The plaintiff is currently serving a sentence of five years imprisonment, imposed by Hanley SC DCJ, for 26 offences of domestic violence committed against his former wife. The sentence commenced on 15 June 2020 and expires on 14 June 2025. The non-parole period of two and half years expired on 14 December 2022.

3. [7]

   On 22 June 2021 while in prison, the plaintiff was involved in an incident, as a result of which he was charged with an offence of affray, which was later replaced by a charge of assault.

4. [8]

   On 14 October 2022 the Authority decided not to release the plaintiff to parole, the stated reason being that he had "outstanding charges".

5. [9]

   On 28 October 2022 the plaintiff applied for a review of that decision by the Authority to not release him to parole. On 11 November 2022 the Authority considered that application by the plaintiff and determined that a review hearing was not warranted, because the plaintiff had outstanding charges. The notification to the plaintiff of the Authority's determination stated in part:

6. [10]

   On 7 March 2023, the plaintiff was sentenced by Musgrave DCJ for the assault offence. Her Honour sentenced the plaintiff to 1 month 10 days imprisonment, commencing on 14 December 2022 and expiring on 23 January 2023.

7. [11]

   On 14 March 2023, the plaintiff made an application titled "Manifest Injustice Application for Review of Parole (section 137B Crimes (Sentencing Procedure) Act 1999)”. In that application the plaintiff noted that his outstanding charge had been dealt with, and the sentence for it had been served.

8. [12]

   On 20 March 2023 the Authority met, noted the plaintiff's application, stood it over to 5 May 2023 for consideration and required a report from a Community Corrections Officer. In a report dated 18 April 2023 Community Corrections recommended a parole order be made for the plaintiff.

9. [13]

   On 3 May 2023 the plaintiff was charged with six offences of sexual intercourse without consent and aggravated sexual assault, alleged to have occurred from October 2015 to June 2019. The complainant is the plaintiff's former wife, the person the subject of the offences for which the plaintiff was sentenced by Hanley SC DCJ.

10. [14]

    On 4 May 2023, through counsel, the plaintiff filed an addendum to his application.

11. [15]

    On 5 May 2023 the Authority made the decision which is the first decision sought to be impugned by the plaintiff's summons. The Notification of Determination states:

12. [16]

    On 10 May 2023 the plaintiff was granted bail in respect of the newly laid charges.

13. [17]

    On 25 May 2023 the plaintiff made a further application entitled "Manifest Injustice Application for Review of Parole (section 137B, Crimes (Administration of Sentences) Act 1999)”.

14. [18]

    On 14 July 2023 the Authority considered the case of the plaintiff and reserved its decision. On 21 July 2023 the Authority met and made the decision which is the second decision sought to be impugned by the plaintiff. The Notification of Determination states:

Grounds relied on by the plaintiff

1. [19]

   The plaintiff relies on two grounds, one each in relation to each decision. The grounds are:

Plaintiff’s submissions on Ground 1

1. [20]

   Grounds 1(a) to (c) are interrelated.

2. [21]

   In Ground 1(a) the plaintiff asserts that the Authority failed to take into account a relevant consideration. The plaintiff challenges the basis of the Authority's decision of 5 May 2023, that the "application does not seek to provide rationale as to clause of 223 for parole consideration." The plaintiff contends that he did seek to provide such a rationale in his application of 8 March 2023, referring to cl 223 in the opening paragraph of his application as the basis for it. The plaintiff submitted that the Authority was bound to take into account the circumstances in cl 223 which were relied upon by him in his application and his addendum, together, and plainly failed to do so. Thus he contends the Authority failed to take into account a relevant consideration. The plaintiff emphasised that the Authority's decision did not say "application does not provide rationale" but said "the application does not seek to provide rationale under cl 223."

3. [22]

   In Ground 1(b) the plaintiff asserts that the Authority made a material finding in its decision of 5 May for which there was no evidence, being that the plaintiff had not sought to provide a rationale under cl 223 of the Regulation for consideration of his parole. The plaintiff submits he did, in his combined application and addendum, seek to provide a rationale under cl 223(1)(b) and (c) and that the material in his application provided a compelling basis for the Authority to favourably consider his parole, notwithstanding the newly laid charges.

4. [23]

   In Ground 1(c) the plaintiff asserts the Authority's decision of 5 May was unreasonable and/or irrational, in that it is not possible to understand how the Authority arrived at the view that the plaintiff “did not seek to provide rationale as to clause of 223 for parole consideration” (per Minister for Immigration and Citizenship v Li (2013) 249 CLR 332) when the application expressly identified that rationale in its first paragraph. The plaintiff submits it was not open to the Authority, acting logically, to reach that conclusion. The plaintiff submitted that proper reasoning by the Authority in its consideration of the plaintiff's first application required, as a first step, engagement with which, if any, of the cl 223(1) circumstances were nominated by him in his application. The plaintiff submitted that the lack of intelligible justification for the Authority’s 5 May decision in its reasons leads to the conclusion the decision was unreasonable.

Attorney General’s submissions on Ground 1

1. [24]

   The Attorney’s essential submission in response to the plaintiff's submissions about the Authority's first decision is that the plaintiff has mischaracterised the decision and ignores that he again had outstanding charges, such that it was open for the Authority not to be satisfied that the plaintiff had demonstrated that circumstances of manifest injustice existed.

2. [25]

   The Attorney submitted, in response to the plaintiff's submission that the Authority failed to take into account a mandatory consideration, that that ignores that on 3 May the plaintiff was charged with further offences. The Attorney submitted that when the plaintiff made his application in March he no longer had any outstanding charges, which had been the basis of the decisions in October and November 2022, such that he could have argued then that at least clause 223(1)(b) was engaged. However, on 3 May he was charged with new charges. So, the Attorney submits, the decisive factor in the previous decisions, of outstanding charges, was again relevant, and the plaintiff's contention that cl 223 was engaged was open to doubt.

3. [26]

   The Attorney submitted that the plaintiff needed to explain how and why cl 223 was still engaged, given his position was the same as when the previous decisions were made, that is, he had outstanding charges. The Attorney submitted that in the addendum filed on his behalf on 4 May, the plaintiff did not refer to cl 223, but rather argued that the newly laid charges were oppressive and the timing suspicious. The Attorney submits that the Authority's decision "the application does not seek to provide a rationale as to cl of 223 for parole consideration" can be understood as the Authority expressing itself not to be satisfied that the plaintiff had sought to demonstrate the existence of facts to enliven a manifest injustice parole consideration under s 137B of the Act, and was correct, because the plaintiff had not explained how cl 223 was engaged when new charges had been laid.

4. [27]

   The Attorney submitted that that construction of the Authority's decision is to be preferred because it makes sense of the decision, it takes into account the whole of the material and facts before the Authority, and the Court should not consider the Authority's decision with an eye attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 at [30].

5. [28]

   In response, the plaintiff submitted that it is not this Court's role to read words into or out of the Authority's decision and that the Attorney’s submissions demonstrated that the Authority’s reasons were not clear.

6. [29]

   The Attorney also submitted that the Authority’s reasons do not provide evidence of a failure to take into account the circumstances prescribed by cl 223.

7. [30]

   In response to Ground 1(b) the Attorney repeated that in his application and addendum the plaintiff did not seek to provide a rationale as to how cl 223 of the Regulation was still engaged, notwithstanding he had new outstanding charges.

8. [31]

   As to Ground 1(c) the Attorney submitted that it could not be said that the Authority's decision was irrational or unreasonable in finding that the plaintiff did "not seek to provide a rationale as to cl of 223 for parole consideration" when in his addendum prepared after the new charges were laid, the plaintiff did not explain how cl 223 was still engaged notwithstanding the new charges, and therefore it was open to the Authority to reason as it did.

9. [32]

   The Attorney also submitted that the Authority did not exercise a discretionary power provided by s 137B, because the discretion was only enlivened in circumstances provided by cl 223 of the Regulation as constituting manifest injustice, and the Authority was not satisfied that that jurisdictional fact existed, so the authorities relied on by the plaintiff on legal unreasonableness have no bearing on this decision.

10. [33]

    In response, the plaintiff submitted that the principles of illogicality and irrationality apply to findings as to jurisdictional fact: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 per Crennan and Bell JJ, and that the Authority's decision to decline to embark on a substantive consideration of the manifest injustice circumstances or parole was an exercise, albeit preliminary, to the exercise of a power conferred by s 137B and had to be exercised reasonably.

Plaintiff’s submissions on Ground 2

1. [34]

   Grounds 2(a) to (c) are also interrelated.

2. [35]

   In Ground 2(a), asserting a failure to take into account a relevant consideration, the plaintiff contends that in its notification of its determination of 21 July 2023 to stand over to 15 September 2023 consideration of his application "for Manifest Injustice and Anniversary Consideration", there is no indication that there was any evaluation of the grounds of his application by the Authority at its meeting on 21 July 2023.

3. [36]

   The plaintiff submits that the grounds of his application of 25 May were set out in paragraph 4 of the application, and expressly relied on s 137B of the Act and cl 223(1)(b) and (c) of the Regulation, stating that the outstanding charge which formed the basis of previous parole refusal had been resolved and the sentence served, and therefore, a matter relevant to the decision to refuse parole was no longer relevant or has been addressed in a way that warrants reconsideration. The plaintiff submitted that the question of which of the cl 223(1) circumstances was nominated in his application was a mandatory relevant consideration by the Authority, that the Authority was required to consider the application to decide whether to embark on a substantive consideration of the existence of one of the circumstances of manifest injustice in cl 223, and the applicant's entitlement to parole. Because the applicant had identified a circumstance in his application, the Authority had to consider the application to enable it to determine if a cl 223 circumstance was identified. This required the Authority to engage with the considerations in an "active intellectual process": Tickner v Chapman (1995) 57 FCR 451, that is to read, identify, understand and evaluate the application. The plaintiff submitted the Authority failed to take into account his second application in that the Authority’s notification of its decision does not suggest any active intellectual engagement with the cl 223(1) circumstances identified in the second application.

4. [37]

   The plaintiff submitted that the Authority's decision did not reflect that it reviewed and understood the plaintiff's application and decided it was appropriate to obtain a Community Correction Officer’s report, that that cannot be inferred from the decision because it does not say that. Rather, the plaintiff submitted, it appears the Authority stood over consideration of the second application because it wished to combine consideration of his second application with "anniversary" consideration of his parole.

5. [38]

   In Ground 2(b) the plaintiff contends the Authority erred by taking into account an irrelevant consideration, being the provision for "anniversary" consideration of the plaintiff's eligibility for parole, which is in a distinct and separate statutory scheme under the Act.

6. [39]

   The plaintiff accepts that the Authority has a broad discretion to adjourn its proceedings for "such reasons as it thinks fit", pursuant to cl 11(2) of Sch 1 to the Act, but submitted the reason for adjourning consideration of the plaintiff's application must be a lawful reason.

7. [40]

   The plaintiff submitted that his non-parole period expired on 14 December 2022, so his "annual review date", as defined in s 137A(1A) of the Act, is 14 December 2023. The plaintiff submitted that "anniversary consideration" of his parole is not possible before 14 October 2023, since s 137A(1) and (2) specify that an offender may only apply to be released on parole 90 days before his annual review date, and the Authority must consider such an application not more than 60 days before the annual review date. Therefore, the plaintiff contends that when the Authority decided on 21 July 2023 to stand his matter over to 15 September 2023 "for Manifest Injustice and Anniversary Considerations" the Authority could not lawfully consider “anniversary considerations” on 15 September under s 137A of the Act, it was a prohibited consideration at that time, and therefore that was an irrelevant consideration.

8. [41]

   The plaintiff did not accept the Attorney General's submission, relying on obiter observations of McClellan CJ at CL in Attorney General for New South Wales v New South Wales State Parole Authority & Anor [2006] NSWSC 865, that although s 137A of the Act places time limits on annual applications by offenders for consideration of parole on their annual review date, it does not prohibit the Authority from considering an offender’s parole earlier than the 12 month anniversary.

9. [42]

   The plaintiff also submitted that the request for a further Community Corrections Officer’s report should not be regarded as an independent basis for the Authority's decision to adjourn consideration of his application, separate from the stated reason that consideration of the application was adjourned for "Manifest Injustice and Anniversary Considerations”.

10. [43]

    In Ground 2(c) the plaintiff asserts that the Authority's decision to stand over his application to 15 September was unreasonable, in that it had a duty to consider his application within a reasonable time, and the decision to adjourn lacked any “evident and intelligible justification” in circumstances where “anniversary consideration” of the plaintiff’s parole was not possible on 15 September (for the reasons relied on in support of Ground 2(b)) and because the Authority already had a “Pre-Release Manifest Injustice Report” prepared by Community Corrections, recommending the plaintiff’s release to parole, so it did not need a further report. The plaintiff submits it was unreasonable for the Authority to defer consideration of his second application for a further almost two months with a view to it occurring simultaneously with “anniversary” consideration. In so submitting, the plaintiff relied in part on the provision in s 141(2) of the Act that the question of whether an offender should be released on parole may be deferred once only and not for more than 2 months, and the time between when the application was filed in May and September, and indeed the time from when his first application was filed in March until September. The plaintiff submits that consideration of his application for parole had been significantly delayed by the Authority’s error in considering his first application, and further delay until September to consider his application had the effect of rendering nugatory his application for early consideration of his parole on manifest injustice grounds before his annual review consideration.

11. [44]

    The plaintiff submitted that the power in cl 11 of Sch 1 for the Authority to adjourn its proceedings must also be exercised reasonably, and with due regard for the purpose of s 137B, to provide for earlier consideration of parole than is available under the s 137A anniversary scheme.

The Attorney General’s submissions on Ground 2

1. [45]

   In response to Ground 2(a) the Attorney submitted that properly understood, the Authority's decision of 21 July was a procedural decision to adjourn, in order to obtain an up-to-date report to inform its consideration of the plaintiff's application, which was legally permissible for the Authority to do. The Attorney submitted that the Authority’s need for a Community Corrections Officer's report was understandable given that the previous report was dated April 2023, predating the charges laid on 3 May 2023.

2. [46]

   The Attorney submitted that it cannot be said to be unreasonable that the Authority would consider it useful to seek an updated Community Corrections report, and that such a report might be considered necessary for the Authority to consider the mandatory consideration of "the risk to the safety of members of the community of releasing the offender on parole”, in light of the new charges, so it was open to the Authority to seek such a report.

3. [47]

   The Attorney submitted that the plaintiff's assertion that the Authority failed to take into account a mandatory consideration is premature, because the only decision the Authority made was a procedural decision to adjourn and seek an up-to-date report, so the occasion for it to embark on a substantive consideration of the plaintiff's application and take into account mandatory considerations has not yet arisen.

4. [48]

   Secondly, the Attorney submitted that even if it was mandatory for the Authority to consider the matter the subject of Ground 2(a) when deciding to adjourn, there was no evidence it failed to do so; that it is conceivable the Authority read and understood the plaintiff's application and decided it was appropriate to obtain a report. The Attorney submitted that the fact of the Authority having made a decision to adjourn does not suggest it failed to have regard to the alleged mandatory consideration, and a failure to mention a consideration does not demonstrate a failure to consider it: Minister for Corrections v Cawthray and the State Parole Authority [2015] NSWSC 1188 at [30]; Al Qatani v Parole Authority of New South Wales [2007] NSWSC 1270 at [15].

5. [49]

   The Attorney submitted there is a want of evidence that the Authority had embarked on a substantive consideration of the plaintiff's second application and in deciding to adjourn it failed to have regard to the asserted mandatory consideration.

6. [50]

   In response to Ground 2(b) the Attorney submitted that the plaintiff did not identify any provision in the Act which prohibits the Authority from having regard to the allegedly prohibited consideration, and no such provision exists. The Attorney submitted that s 135(3)(j) of the Act permits the Authority, in making a decision whether to release an offender on parole, to take into account "any other matters that the Parole Authority considers to be relevant." Therefore, the Attorney submitted, in a substantive consideration of the plaintiff's application, it would be open to the Authority to consider that the plaintiff was due for his next anniversary consideration in the next month, if it considered it relevant, and therefore it must be a permissible matter for the Authority to consider when making its procedural decision to adjourn and seek more information relevant to its substantive consideration.

7. [51]

   The Attorney relied on the power in cl 11 of Sch 1 to the Act for the Authority to adjourn its proceedings for such reasons as it thinks fit, and inform itself of any matter in any such manner as it thinks appropriate, and also relied on cl 11(5) that "A decision of the Parole Authority is not vitiated merely because of any informality or want of form”.

8. [52]

   The Attorney submitted that in light of that provision, giving the Authority a broad mandate to conduct its proceedings as it sees fit, there is little room to imply from the statute a prohibited consideration, especially when the Act expressly makes reference to a small number of prohibited and mandatory considerations. So, the Attorney submitted, there is no basis in the statute to treat as a prohibited consideration what the plaintiff asserts to be such, that is, his annual review. The Attorney submitted that, given the Authority had, in November 2022, scheduled a meeting on 20 October 2023 to consider the plaintiff's annual review, it is an unlikely reading of the Authority's decision of 21 July that it stood over the application to 15 September to undertake an anniversary review on that date.

9. [53]

   So the Attorney submitted the reference in the decision of 21 July to "Manifest Injustice and Anniversary consideration” should be construed as meaning consideration of whether the plaintiff should be released under the manifest injustice provisions or whether the question of his parole should await his anniversary consideration. The Attorney submitted this reading of the decision should be preferred because it makes sense, because it takes account of the already scheduled anniversary consideration on 20 October 2023, and because the Court should not approach the Authority’s decisions with an eye attuned to the perception of error.

10. [54]

    However, the Attorney submitted, if the plaintiff's characterisation of the decision was correct, it would not involve jurisdictional error on the part of the Authority because, relying on the remarks of McClellan CJ at CL at [70] of Attorney General for New South Wales v New South Wales State Parole Authority, there is not jurisdictional error in the Authority dispensing with the time limits imposed on offenders in s 137A and considering anniversary parole ahead of the 60 day time limit in that section.

11. [55]

    The Attorney also submitted that if there was error in the Authority considering the plaintiff's anniversary review, it was not material to the decision to adjourn, because the Authority plainly considered it needed a further Community Corrections Officer's report, and that was an independent, sufficient and lawful reason for adjourning the matter. The Attorney submitted that an error is material to a decision only if compliance could realistically have resulted in a different decision: MZAPC V Minister for Immigration and Border Protection (2021) 273 CLR 506.

12. [56]

    In response to Ground 2(c) the Attorney submitted it was not legally unreasonable or irrational for the Authority to adjourn its consideration of the plaintiff's case to obtain an up-to-date Community Corrections Officer's report, particularly having regard to the power in cl 11 of Sch 1 for the Authority to adjourn its proceedings for such reasons as it thinks fit, and the power in cl 222A(3) to require a Community Corrections Officer's report.

13. [57]

    The Attorney submitted it could not be contended that the adjournment was not for a reasonable time in light of the evidence that the preparation of a Community Corrections Officer's report normally takes six weeks, and having regard to s 141, which provides that once the Authority has embarked on a substantive review of whether an offender should be released on parole, the Authority may defer the decision for not more than 2 months. The Attorney submitted that while that provision was not engaged in this case, because the Authority had not begun a substantive consideration of the plaintiff's application, it provided some guidance as to what the statute considered a reasonable time for an adjournment.

Relevant statutory provisions

1. [58]

   A consideration of the issues raised by the parties requires a consideration of the following provisions of the Act and Regulation.

2. [59]

   Section 2A of the Act provides, as relevant:

3. [60]

   Section 135 provides, as relevant:

4. [61]

   Section 137 provides, as relevant:

5. [62]

   Section 137A provides, as relevant:

6. [63]

   Section 137B provides:

7. [64]

   Clause 223 of the Regulation provides, as relevant:

8. [65]

   Clause 222A provides:

9. [66]

   Clause 11 of Sch 1 to the Act states:

10. [67]

    Section 141 of the Act provides, as relevant:

General principles

1. [68]

   The role of the Court on this application is not to review the merits of the Authority’s decisions, but to consider whether in making the decisions the Authority committed an error of law: Attorney General for New South Wales v New South Wales State Parole Authority & Anor per McClellan CJ at CL at [74].

2. [69]

   In the same decision, McClellan CJ at CL said: “It is important when considering the ‘reasons’ of a body such as the Parole Authority that the court not adopt a ‘fine tooth comb’ approach to its published reasons”, in accordance with Minister for Immigration and Ethnic Affairs v Wu Shan Liang. It is inappropriate to subject the Authority’s reason to minute examination or fine scrutiny with an eye attuned to the perception of error: Attorney General of New South Wales v George [2020] NSWSC 1621.

3. [70]

   In Minister for Corrections v Cawthray and the State [2015] NSWSC 1188, Bellew J said at [30]:

Consideration of Ground 1

1. [71]

   The plaintiff's essential challenge to the Authority's decision of 5 May is that contrary to its stated reason that "the application does not seek to provide rationale as to cl of 223 for parole consideration", he had relied on cl 223(1)(b) and (c), and that in so deciding, the Authority failed to take into account that aspect of his application, acted unreasonably in so doing, and made a decision for which there was no evidence.

2. [72]

   In his application, the plaintiff referred to cl 223(1)(b) and (c) as the basis for his Manifest Injustice grounds. That Regulation states:

3. [73]

   The relevant matter identified in his application as the matter that was no longer relevant was the outstanding charge which was the basis of the October and November 2022 refusals of parole, and which, as the application recited, had been dealt with. However, on 3 May, the plaintiff was charged with fresh offences. So, at the time of the Authority’s consideration of his application on 5 May he again had outstanding charges.

4. [74]

   In the addendum of 4 May filed on his behalf, counsel for the plaintiff expressed dissatisfaction with the timing of the fresh charges and sought to distinguish them, as offences alleged to have occurred in 2015 to 2019, from fresh offences committed by an offender while on parole.

5. [75]

   The Authority's decision was:

6. [76]

   I consider that the plaintiff's approach to this decision has been with "a fine tooth comb", focusing too narrowly and critically on the wording of the Authority’s stated reason for its decision. When examined as a whole, the decision’s meaning and sense is understandable. Although the plaintiff's application and addendum referred to cl 223(1)(b) and (c), and took issue with the nature and timing of the charges laid on 4 May, they did not really engage with how the provisions of cl 223 were applicable to the applicant's case, now that he once again had outstanding charges. It was not sufficient to simply state the clauses.

7. [77]

   It can be clearly inferred from the terms of the whole of the Authority's decision that the Authority considered the favourable Community Corrections Report, and the Manifest Injustice grounds referred to. It cannot be said that the Authority acted unreasonably, or failed to take into account a relevant consideration, or made a decision for which there was no evidence, when the plaintiff's application and addendum did not address how a matter that was relevant to the previous decisions to refuse parole, outstanding charges, was no longer relevant or had been addressed in a way that warranted reconsideration, when he again had outstanding charges.

8. [78]

   The plaintiff has not made out any of his grounds of challenge to the Authority’s first decision and his challenge to that decision must fail.

Consideration of Ground 2

1. [79]

   The plaintiff's approach to the Authority's second decision also involves a “fine tooth comb”. The powers of the Authority in cl 11 of Sch 1 to the Act to adjourn its proceedings for such reasons as it thinks fit, and cl 222A(3) of the Regulation to require a report, are fatal to the plaintiff's challenge to the decision of 21 July 2023. That decision can be fairly and sensibly read as a decision which shows that the Authority read and understood the plaintiff's application and decided to adjourn and seek a Community Corrections Officer’s report, which decision cannot be said to be unreasonable given that the previous report of April 2023 predated the charges laid in May 2023. The time period of the adjournment, given the time necessary for a report to be prepared, was not unreasonable. A reading of the whole of the decision, including a reference to the much impugned "anniversary consideration", demonstrates, in my view, that the Authority was aware of all of the relevant circumstances of the plaintiff's case.

2. [80]

   I do not consider that the reference to “anniversary consideration" demonstrates the Authority’s intention to conduct that consideration on the adjourned date of 15 September. However, if it did, I incline to the view expressed by McClellan CJ at CL in Attorney General for New South Wales v New South Wales State Parole Authority that the time limits in s 137A of the Act on applications by offenders do not prohibit the Authority from considering that matter, particularly in this case when that date was approaching. That is, it was not a prohibited consideration by the Authority in making the decision to adjourn its consideration of the plaintiff's case to 15 September for a further report and informed consideration. To the extent it was a factor in the Authority’s decision to adjourn its proceedings, it has not been demonstrated to be a sole or overriding consideration.

3. [81]

   The plaintiff has not demonstrated that any aspect of the decision of that date was unreasonable, or that it took into account an irrelevant consideration, or that it failed to properly take into account his application. Therefore, the plaintiff's challenge to the Authority’s second decision fails.

4. [82]

   The plaintiff has not succeeded in demonstrating that any error of law was made by the Authority in either decision challenged in these proceedings. Therefore the summons is dismissed.

5. [83]

   The Attorney General, if successful, did not seek a costs order. Therefore I make no order as to costs.