Applicant v Respondent

1 Mr Julian Knight is a prisoner at Port Phillip Prison ('the prison'). On 20 January 2014, he sought leave to issue a writ of habeas corpus against the Governor of the prison. The matter came before me in the Practice Court on 23 January 2014.

2 Mr Knight has been declared a vexatious litigant, thus he requires leave of the Court to continue these proceedings.[1]

3 Mr Knight, at the time of making the application to the Court and since 16 January 2014, had been separated, initially to his own cell, pending investigation into an alleged assault of a prisoner on Wednesday 15 January 2014. Mr Knight was, on 17 January 2014, separated from his own cell to the Charlotte Management Unit and a high security cell.

4 Mr Knight's application to the Court was supported by an unsworn affidavit dated 20 January 2014. Mr Knight stated it was unsworn because of an inability to see a Legal Aid lawyer until 28 January 2014. For the purposes of the application, Ms Nunnink, who appeared for the prison Governor, and Ms Coombs, who with leave appeared on the application for the Secretary of the Department of Justice, took no point as to the unsworn nature of the affidavit. There was no concession that the 'Governor of Port Phillip Prison' was the correct defendant. Mr Knight filed a second affidavit dated 28 January 2014.

5 Mr Knight made a number of submissions concerning his present status:

(a) that the statutory framework governing the separation of prisoners enlivens the Court's jurisdiction to hear an application for habeas corpus in circumstances where such separation is illegal;

(b) that provisions of the Corrections Act 1986 and the Corrections Regulations 2009 prevent removal of privileges pending investigation and such removal can only occur after a finding of guilt at a disciplinary hearing;

(c) that the denial of access to hard copy Court documents and the prison library computer mean he is unable to prepare for Court and Court imposed deadlines for provision of submissions in a number of imminent Court proceedings.

6 The formal separation order, 'authority to separate a prisoner', was provided to the Court by Mr Knight. The Acting Manager of the prison, Mr John Nesci, signed the order. The reason for the separation 'in his own cell' was given as the security of the prison. The separation was endorsed (pursuant to delegation of the Secretary to the Department of Justice) by the Sentencing Management Branch. On 16 January 2014, Ms M. Hosking, Acting Manager of the Major Offenders Unit, endorsed the separation decision of Mr Nesci, but the location of separation was changed to 'own cell pending Charlotte Management Unit' for a period of a further seven days. The Court was informed on 23 January 2014 that the investigation was continuing and the period of separation had been extended for another seven days as of that day.

7 I was informed during the hearing that the prisoner the subject of the alleged assault remained in hospital and there was a police investigation of the incident leading to his injuries.

8 Because of the constraints of the regime imposed by his current separation in a high security cell of Charlotte Management Unit, Mr Knight was hampered in the preparation of his pleadings and presentation of submissions. I have made allowance for this. Nevertheless, I have difficulty in understanding the nature of the relief he seeks from the Court, apart from saying he wanted relief of some nature from the circumstances in which he now finds himself.

9 Regulation 27 of the Corrections Regulations 2009 ('Regulations') permits the separation of a prisoner for 'the security, good order or management of the prison'. Corrections Victoria published, in November 2013, an explanation of what are termed 'Separation Regimes'. The publication provided to the Court details that Corrections Victoria, within the framework of the Corrections Act 1986 ('the Act') and the Regulations, has instituted a number of different practices and regimes for the separation of prisoners, depending on individual circumstances. One practice for separation of a prisoner detailed is removal of a prisoner to a high security unit pending investigation of alleged involvement in an incident. Regulation 27(6) requires that a prisoner must be advised of the reasons for the separation and given a copy of the order for separation. It appears, in the materials provided to the Court, these provisions have been complied with upon the provision of the separation order to Mr Knight. I am also satisfied, after being provided with copies of relevant instruments of delegation of powers by Ms Harris at the hearing of 31 January 2014, that the decisions in question were made by persons to whom delegation was validly made.[2]

10 Regulation 42 requires the submission, annually, of a list of privileges for the approval of the Secretary. I was provided with the list of privileges for 2014. The provision of privileges is discretionary and, as noted on the approved annual list by the Assistant Secretary, 'The full list of privileges for prisoners classified to a management or high security unit may not apply, given the regime under which the prisoner is accommodated'. The regime under which Mr Knight is currently accommodated does not provide for such privileges.

11 In Prisoners A-XX Inclusive v New South Wales,[3] Sheller JA (with whom Meagher and Powell JJA agreed) in obiter stated that there were 'formidable' difficulties in the proposition that habeas corpus runs where a person is (allegedly) illegally held in a prison within a prison.

12 In Prisoners A-XX Inclusive, Sheller JA referred to R v Deputy Governor of Parkhurst Prison; ex parte Hague.[4] In that appeal, the House of Lords rejected propositions that a prisoner enjoyed some form of residual liberty or that intolerable prison conditions made the detention unlawful. Lord Bridge stated:[5]

I sympathise entirely with the view that the person lawfully held in custody who is subjected to intolerable conditions ought not be left without a remedy against his custodian, but the proposition that the conditions of detention may render the detention itself unlawful raises formidable difficulties. If the proposition be sound, the corollary must be that when the conditions of detention deteriorate to the point of intolerability, the detainee is entitled immediately to go free. It is impossible.

To say that detention becomes unlawful when the conditions thereof become intolerable is to confuse conditions of confinement with nature of confinement ... If, as I believe to be the case, a prisoner at any time has no liberty to be in any place other than where the regime permits, he has no liberty capable of deprivation so as to constitute the tort of false imprisonment. An alteration of conditions therefore deprives him of no liberty because he has none already.

14 Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs[7] was a case concerning conditions of immigration detention. In their judgment, McHugh, Gummow and Heydon JJ[8] referred by way of analogy to the reasoning of Sheller JA in Prisoners A-XX Inclusive. Gleeson CJ[9] and Callinan J[10] referred with approval to the passage of Lord Bridge set out above. Whilst not directly referable to habeas corpus, the underlying reasoning of the Court in Behrooz that conditions of detention were not relevant to the legality of detention, in my view, undermines the use of the prerogative writ of habeas corpus in the present circumstances.

15 In Potier v Ruddock, Hidden J[11] considered a motion seeking the issue of the writ of habeas corpus by the prisoner, Mr Potier, so that he might be temporarily released from his imprisonment to enable preparation and filing of a special leave application in the High Court. His Honour ruled that in the light of the New South Wales Court of Appeal authority of Prisoners A-XX Inclusive, the application for habeas corpus was 'unsustainable'.

16 Mr Potier made application to the High Court for a writ of habeas corpus for similar reasons to those relied upon before Hidden J. The matter was dealt with by Heydon J 'on the papers', who stated, in part:

Thirdly, the remedy of habeas corpus is available in order to secure the liberty of the person not properly detained. The plaintiff is not in the category of persons not properly detained. The plaintiff has been lawfully imprisoned by the order of a court of competent jurisdiction, against which appeals were brought but which were rejected by another court of competent jurisdiction.

17 As stated, as a vexatious litigant, Mr Knight requires leave to commence the proposed proceedings. Section 21(4) of the Supreme Court Act 1986 provides that 'leave must not be given unless the court ... is satisfied that the proceedings are not or will not be an abuse of process of the court'.

18 The grant of leave is discretionary, and the power to exercise the discretion cannot be exercised unless the applicant for leave satisfies the Court the proceeding in respect of which leave is sought is not or will not be an abuse of process.[12]

19 In Knight v Corrections Victoria, Vickery J stated:[13]

In considering whether a proceeding would be an abuse of process, it is sometimes relevant to consider its prospects of success, but in a strictly limited respect. The issue is whether the proceeding is foredoomed to fail, not whether it has reasonable grounds.

20 The complaint of Mr Knight concerns an administrative decision within the prison. The consequences of that decision, ie. removal to a high security unit and loss of privileges, do not provide a basis for the issuing of a writ of habeas corpus. The constraints of imprisonment should not be confused with the nature of imprisonment. Based on the authorities I have referred to it can be said the writ of habeas corpus cannot apply to a prisoner lawfully detained. Thus, I am of the view that Mr Knight's action is an abuse of process, foredoomed to fail, and should be dismissed.

21 There is a further reason why I would refuse leave in this matter. Whilst it is recognised that prisoners are in a position of particular disadvantage:[14]

The limits of the court's jurisdiction must be carefully observed and the court must avoid becoming enmeshed in the merits of particular decisions. The management of prisons is a particularly difficult and sensitive task, involving complex practical considerations and security implications with which the court is not familiar and which it is difficult for the court to understand or fully appreciate from the comfort of court surroundings.

22 The Court should not become involved in the rights and wrongs of a decision of prison authorities concerning a prisoner that complies with the relevant Act and regulations.

23 During the course of submissions, I asked why Mr Knight could not be provided with at least some materials relating to a forthcoming court case. After obtaining instructions, I was informed by Ms Nunnink that hard copy folders of documents would be provided to Mr Knight. Whilst this did not meet the entire requirements of Mr Knight, particularly his request for the use of the prison library computer, it provided some ability to organise his legal affairs.[15]

[1] Supreme Court Act 1986 s 21(3).

[2] Pursuant to s 8 of the Corrections Act 1986.

[3] (1995) 38 NSWLR 622, 633.

[7] [2004] HCA 36; (2004) 219 CLR 486.

[11] [2008] NSWSC 153.

[12] Phillip Morris Ltd v Attorney-General (Vic) [2006] VSCA 21; (2006) 14 VR 538, 541 per Maxwell P (with whom Ormiston and Eames JJA agreed).

[13] [2009] VSC 607, [5].

[14] Fyfe v South Australia [2000] SASC 84, [18] (Martin J).

[15] Rich v Groningen [1997] VSC 35; (1997) 95 A Crim R 272, 288 (Gillard J).