Supreme Court of Victoria|1997-07-29|Before: Beach J, Cummins J, Gillard J

For the reasons stated the plaintiff has not established any basis for relief and accordingly I will dismiss the originating motion.

Mr Shepherd has asked for costs in accordance with the general rule, that the losing party should pay the costs of the successful party unless there is good cause which justifies a departure from the general rule. Mr Rich, for his part, opposes any such order and submits that justice in the circumstances would be well served if there is no order as to costs.

I asked Mr Rich what his costs were and he informed me that he was not obliged to pay any issue fees or any other court fees, but his only cost related to a small sum of money which was spent for the purchase of things such as paper and the like.

I have formed the view, as is apparent from the reasons that I have given, that Mr Rich was justified in coming to court. I am quite satisfied that as at 20 December, which was some days after the issue of his motion, there was still a dispute between the parties and that from then on somebody within the organization at Barwon took the common sense view that if Mr Rich had all his documents prior to 16 October it was hard to justify any decision depriving him of possession of those documents in his cell in the Cassia Unit in December 1996.

The question of costs, of course, is a matter of discretion. As I say, I am satisfied that he was justified in coming to court and he achieved what he sought to achieve by 9 January. Mr Rich has also raised a very important question of the right of prisoners in relation to access to lawyers. That brings me up to 18 February when an application was heard by Cummins J in this court in which the defendant sought to have the plaintiff's motion struck out as being an abuse of process and failing to disclose a cause of action. His Honour refused to do so.

However, I must treat Mr Rich like any other litigant in this area, and he had to thereafter make his own assessment of where he stood. I will say this in relation to Mr Rich, that he did make an offer to mediate around this time which unfortunately got nowhere. However, as Mr Shepherd points out, he thereafter, at his own peril, continued these proceedings. On the other hand, I think it is unreal to think if he had said, "I propose to withdraw my proceedings now" that he would have been able to satisfactorily conclude the matter.

I think, in fairness to both sides, justice would be best served if I make no order as to costs. I think both sides had limited success.

Accordingly, the formal order of the court is that the originating motion dated 18 December 1996 is dismissed.

Corrections Regulations 1988

Hugo Alistair Rich v John Van Groningen, Clive Trevor Williams and Paul Spadano [1997] VSC 35; [1997] VICSC 35 (29 July 1997)

The plaintiff is not a lawyer. He appears before me unrepresented. He has applied for legal aid in respect of his appeal and as at present the application has been unsuccessful. The fact that he is not a lawyer is not to say he is unfamiliar with the law and procedures. He is an intelligent, articulate and determined person. He is industrious. He has, in the past, gained notoriety in the annals of accused persons' rights. He was the successful appellant in Dietrich v R [1992] HCA 57; (1992) 177 CLR 292. He subsequently changed his name to Hugo Rich. No doubt imbued by his success in that case, he feels deeply and passionately about the rights of those caught up in the criminal legal system and seeks to agitate the rights.

What the plaintiff complains about results from what he states were decisions made in the conduct and management of the prison. The courts in the past have been reluctant to intrude into this area because to do so would mean the courts would be accepting the responsibility for the discipline and control of prisoners in a gaol. (See Flynn v. The King [1949] HCA 38; (1949) 79 CLR 1 at p.8 per Dixon J.) Today the courts will interfere in such areas at the instigation of prisoners but the jurisdiction is necessarily limited. By way of example the courts will interfere where there is a clear infringement of the controlling Act or regulations. (See Vezitis v. McGeechan supra at p.721.) Further, where the prison authority acts beyond power, where a decision is made taking into account irrelevant matters or omitting to take into account relevant matters and where a decision is unreasonable within the meaning of the Wednesbury principles, a court will intervene. See Associated Provincial Houses Ltd v. Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223 at 228; see generally the recent decision of the Court of Appeal in Binse v. Clive Williams & Anor., unreported judgment delivered 19 March 1997. In England the courts have accepted that the exercise of the judicial review jurisdiction in respect of management decisions may be appropriate in certain circumstances. See R. v. Deputy Governor of Parkhurst Prison ex parte Hague (1992) 1 AC 58.

The High Court in Coco v. R. [1994] HCA 15; (1993) 179 CLR 427 at 436 referred with apparent approval to what Lord Bridge of Harwich said in Raymond v. Money at page 14, namely:

Hugo Alistair Rich v John Van Groningen, Clive Trevor Williams and Paul Spadano [1997] VSC 35; [1997] VICSC 35

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (10)

Hugo Alistair Rich v John Van Groningen, Clive Trevor Williams and Paul Spadano [1997] VSC 35; [1997] VICSC 35 (29 July 1997)