Hummer v Secretary to the Department of Justice and Community Safety [2026] VSC 167

(a) 'existence of all documents and their contents, in whatever form, that are or have been in the defendant's possession, custody or control and of which the defendants are aware, and which ought to be reasonably considered as being critical to the resolution of the dispute in the proceedings relation to: the particular personal circumstances and the idiosyncratic behaviour of the plaintiff during the time that he was held in the KCSSU [Karlton Close Supervision and Support Unit] at [the] WPCC, which include by are not limited to:

(i) CCTV and body worn camera footage and audio;

(ii) Any Individual Management File entries;

(iii) Local Plan File Notes;

(iv) Incident Reports;

(v) Disciplinary matters;

(vi) Written request;

(vii) Notation of verbal requests;

(viii) Unit Diary or Day Book entries; and

(ix) All Medical Records'.

1. Mr Hummer has filed and relies upon the following materials:

(a) originating motion (Originating Motion) filed 3 June 2025;

(b) affidavits of Mr Hummer affirmed 27 May 2025 (First Hummer Affidavit);[1] and sworn 17 December 2025 (Second Hummer Affidavit);[2]

(c) summons filed 29 December 2025;

(d) amended Summons filed 13 January 2026;

(e) written submissions dated 11 February 2026; and

(f) affidavits of Mr Hummer affirmed 2 March 2026 (Third Hummer Affidavit);[3] and 15 March 2026 (Fourth Hummer Affidavit).[4]

1. The defendants have filed and rely upon the following materials:

(a) affidavit of Sarah McKellar-White affirmed 26 February 2026 (McKellar‑White Affidavit);[5] and

(b) written submissions dated 26 February 2026.

1. Mr Hummer is a prison at Barwon Prison.
2. On 12 April, Mr Hummer was transferred from the Barwon Prison to the Karlton Close Supervision and Support Unit (KCSSU) at the WPCC. He remained there until 2 May 2025 when he was transferred back to Barwon Prison.
3. Mr Hummer's application for judicial review relates to what he characterises as the decision to hold him 'in unlawful conditions of confinement' in the KCSSU at the WPCC (Decision).
4. By Originating Motion filed 3 June 2025, Mr Hummer seeks judicial review of the Decision. By way of final relief, he seeks:

(a) an order in the nature of mandamus requiring the first defendant to grant him 'between 4 and 14 days for each day that the circumstance of an unforeseen and special nature impacted upon the rights of Plaintiff and on which he was of good behaviour';

(b) declarations as follows:

(i) 'general declarations about the nature and operation of ss 47(1)(a) of the Corrections Act 1986 (Vic) [(Corrections Act)] and 22(1) of the Charter of Human Rights and Responsibilities Act 2006 [(Charter)];

(ii) declarations that the cell yards and exercise yards in the KCSSU are not compliant with s 47(1)(a) of the Corrections Act and s 22(1) of the Charter;

(iii) declarations that the defendants failed to 'ensure the equitable operation of the s 47(1)(a) right in the case of the Plaintiff' and failed 'to meet the obligation under s 22(1) of the Charter in the case of the Plaintiff' between 12 April and 2 May 2025; and

(iv) a declaration that the limitation on the plaintiff's rights under s 47(1)(a) of the Corrections Act and ss 22(1) and 38(1) of the Charter was a 'circumstance of an unforeseen and special nature' within the meaning of s 58E of the Corrections Act'.

1. The Originating Motion is in substantially the same terms as an originating motion filed by Dr Minogue in proceeding S ECI 2025 02999 (Minogue Proceeding). Dr Minogue's application that his proceeding continue as a representative proceeding was dismissed. Orders were made which noted: 'it is appropriate that the present proceeding be heard and determined prior to the related matters, as the outcome in the present application may inform the conduct of those other proceedings.' This proceeding is one of the related matters.
2. On 10 September 2025, Judicial Registrar Lorenz ordered that the proceeding be listed for further directions on 22 April 2026.
3. On 29 November 2025, Mr Hummer filed the Summons in its original form.
4. On 13 January 2026, Mr Hummer filed the amended Summons.
5. On 16 January 2025, the VGSO sent a letter to Mr Hummer which provided:[6]

(1) We refer to the above matter and your unfiled summons dated 21 November 2025 seeking disclosure via affidavit of critical documents pursuant to section 26 of the Civil Procedure Act 2010 (CPA).

(2) The defendants and their representatives are aware of their obligations under section 26 of the CPA. The defendants and their representatives are presently not aware of any documents in their possession, custody or control that are critical to the resolution of the issues in dispute.

(3) Insofar as your summons relates to Dr Minogue's proceedings, we say it is not relevant to your claim and is doomed to fail. For the avoidance of doubt, the defendants consider that CCTV footage of you, if available, is not relevant to any fact in issue in the proceeding.

(4) In circumstances where you proceed with your proposed application to have the matter listed for a directions hearing, we will seek to rely on this correspondence as to the question of costs.

(5) However, consistent with the approach taken in Dr Minogue's proceeding, the defendants will provide you with photographs of the rear yard of the cell in which you were held in the Karlton Unit and any exercise yard to which you had access.

1. On 26 February 2026, the VGSO sent a letter to Mr Hummer enclosing a number of documents including incident reports, local plan file notes and relevant extracts from Mr Hummer's individual management file which contained information from his time at the WPCC.
2. Ms McKellar-White deposes to her instructions from the Office of General Counsel in the DJCS that:

(a) there is no CCTV footage or body worn camera footage which captures Mr Hummer at the WPCC between 11 April and 5 May 2025;[7]

(b) operational staff at Barwon Prison do not have access to Mr Hummer's medical records; and

(c) Mr Hummer has been provided with relevant documents insofar as they record matters between 11 April and 5 May 2025, while Mr Hummer was at the WPCC.

(1) Subject to subsection (3), a person to whom the overarching obligations apply must disclose to each party the existence of all documents that are, or have been, in that person's possession, custody or control -

(a) of which the person is aware; and

(b) which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.

(2) Disclosure under subsection (1) must occur at -

(a) the earliest reasonable time after the person becomes aware of the existence of the document; or

(b) such other time as a court may direct.

...

(4) The overarching obligation imposed by this section -

(a) is an ongoing obligation for the duration of the civil proceeding; and

(b) does not limit or affect a party's obligations in relation to discovery.

1. Section 55(1) of the CPA provides that a court may make orders or give directions in relation to discovery that it considers appropriate.

Corrections Act

1. The Corrections Act provides that the Secretary of the DJCS (Secretary) is to have legal custody of Victorian prisoners and bear responsibility for monitoring performance in the provision of all Victorian correctional services to achieve the safe custody and welfare of prisoners.
2. Section 20 of the Corrections Act provides, relevantly:

(1) An officer in charge of a prison or part of a prison must take all reasonable steps for the security of the prison or part of the prison.

(2) An officer in charge of prisoners must take all reasonable steps for the safe custody and welfare of the prisoners.

(3) An officer must not jeopardize the security of the prison.

(4) An officer must make returns and reports in accordance with the regulations and other returns and reports required by the Secretary.

(5) An officer must keep records in accordance with the regulations and other records required by the Secretary.

(5A) An officer, when required by the Secretary, must provide oral or written information to the Secretary in relation to the security and good order of a prison or the safe custody and welfare of prisoners.

(7) At the Secretary's request an officer must make available to the Secretary a return or report prepared under subsection (4), or a record kept under subsection (5).

1. Section 21 of the Corrections Act provides, relevantly:

(1) The Governor of a prison is responsible for the management, security and good order of the prison and the safe custody and welfare of the prisoners.

(2) The Governor of a prison must take reasonable steps to ensure that officers assigned to the prison know what their powers and duties are and what provision is made by or under this Act concerning prisons and prisoners.

1. Section 47(1)(a) of the Corrections Act provides:

(1) Every prisoner has the following rights -

(a) if not ordinarily engaged in outdoor work, the right to be in the open air for at least an hour each day, if the weather permits ...

1. Section 56 of the Corrections Act provides:

The Secretary may, by instrument, direct the transfer of a prisoner or a class of prisoner from one prison to another or from one part of a prison to another part of a prison.

1. Section 58E of the Corrections Act provides:

A prisoner who fails without reasonable excuse to comply with any conditions of a custodial community permit is guilty of an offence and liable to imprisonment for a term of not more than 3 years.

Charter of Human Rights and Responsibilities Act

1. Section 7 of the Charter provides:

(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including -

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

(3) Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.

1. Section 22(1) of the Charter provides that all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
2. Section 38(1) of the Charter provides that it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

1. The principles that govern discovery and disclosure of documents in judicial review proceedings are as follows:

(a) there is no right to discovery in proceedings commenced by originating motion. In such proceedings, the Court has a power to order discovery;[8]

(b) discovery is 'rarely' or 'infrequently' ordered in judicial review proceedings because such proceedings are usually concerned with questions of law and not factual disputes. Documents evidencing the decision under review, including a statement of reasons, will generally be before the Court.[9] Material that was not before the decision maker is generally inadmissible;[10]

(c) where it is alleged that the decision was illogical, unreasonable or irrational, discovery may be ordered of the documents that were before the decision maker;[11]

(d) where the Court is required to assume a fact finding role, discovery may be ordered to assist the court in the fulfilment of that role;[12]

(e) discovery may be ordered where the plaintiff has a good, or at least arguable, 'case proof of which would be aided by discovery';[13]

(f) '[a]n allegation that a document will assist the [plaintiff] to prove its case will not, by itself, be sufficient. Still less will a document that the [plaintiff] alleges might assist it argue the merits of the [impugned] decision';[14] and

(g) discovery will not be ordered in aid of 'fishing'. Accordingly, an applicant cannot proceed by making a 'mere assertion' or 'bare allegation' and use discovery to establish if the allegation has a factual foundation.[15]

Judicial review of decisions relating to prisons and prisoners

1. In Kelleher v Commissioner, Department of Corrective Services,[16] McInerney J explained how decisions concerning transfer of prisoners between prisons have been characterised as administrative or managerial, rather than punitive and judicial and therefore not generally subject to judicial review.
2. In Fyfe v The State of South Australia,[17] (Fyfe) Martin J explained the limits on judicial review of operational decisions made by prison authorities:

There can be no question that it is the duty of this Court to conduct a careful review and to closely scrutinise the reasons advanced for the decision. Prisoners are in a position of particular disadvantage. Any abuse of power by prison authorities is unacceptable and can often have serious ramifications. At the same time, however, 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 the court surroundings.

1. In Knight v Money,[18] Cavanaugh J held that whatever had been the case in the past, a review of authorities showed that Australian courts treat administrative decisions made by correctional authorities affecting individual interests of prisoners, including decisions relating to matters such as classification, security ratings and placement, as being subject to judicial review.
2. In Moran v Secretary to the Department of Justice and Regulation,[19] a prisoner challenged the decision to transfer her from self‑catering cottage style accommodation to a cell in a different unit of the same prison. McDonald J found that the power governing the transfer of prisoners were the general powers in ss 20 and 21 of the Corrections Act. His Honour found that the decision was a decision of an administrative nature that did not impact upon legal rights and was not amendable to judicial review. He noted that none of the prescribed rights contained within s 47 of the Corrections Act dealt with the issue of accommodation within a prison or the regulation of transfer within a prison.[20]
3. In AS v Secretary, Dept of Justice and Regulation,[21] Jane Dixon J held after reviewing the authorities and the legislative scheme of the Corrections Act, that the discretion under s 43(1A) (to prohibit a person from entering the prison as a visitor) was of a kind enlivening judicial review and attracting the principles of procedural fairness. Her Honour also noted[22] more recent cases adopted a less restrictive view to the limitations on judicial review of decisions relating to the discipline, administration and internal management of prisons.
4. In Vansetten v South Australia,[23] after citing the passage from Fyfe set out above, Doyle J explained that there are some operational or management decisions made in a prison context for which there is little scope for intervention on judicial review:

Some decisions made in the prison context will be so bound up in the operational and management considerations to which Martin J referred in the above passage that there will be little scope for intervention in accordance with ordinary principles. By way of example, and depending upon the circumstances, a direction made under s 25 of the Act to transfer a prisoner between correctional institutions, or a direction under s 36 of the Act to segregate one prisoner from the other prisoners within a correctional institution, may leave little scope for intervention in accordance with the ordinary principles governing judicial review.

However, in the case of other decisions - for example, where the focus is on the rights and interests, or discipline and punishment, of individual prisoners - there may be greater scope for intervention.

1. His Honour also held that it was not necessary for the prisoner be provided with all of the documentation available to the authorities when undertaking an assessment and determination under s 23(1) of the Act (concerning the obligation to undertake initial and periodic assessments of prisoners). He held that some assessment should be undertaken as to whether relevant documents genuinely raise management or operational matters, or are otherwise of a sufficiently sensitive nature, such that they cannot be provided to the prisoner.
2. In McCabe v Westin; McCabe v Pickering,[24] Harris J explained the operation of the Charter in the context of a prisoner's challenge to a decision to refuse to restore access to an in‑cell computer that had been cut off after pornography had been found on it. Her Honour referred to the obligation of the Deputy Commissioner, as a 'public authority', to act compatibly with human rights and, when making a decision, to give proper consideration to them. She set out the process of analysis with respect to Charter rights:[25]

The first question arising when considering whether the obligations under s 38(1) of the Charter have been discharged by a public official is whether the relevant human rights have been engaged or limited by the identified conduct. If the relevant human rights are engaged, it then falls to consider:

(a) the question arising under the procedural limb of s 38(1), that is, whether the public authority has failed to give proper consideration to the relevant human right; and

(b) the question arising under the substantive limb of s 38(1), whether the public authority has placed any limitation on the right; and, if so, whether that limitation is lawful, reasonable and justified in accordance with s 7(2) of the Charter.

1. In Webb v Department for Correctional Services (SA),[26] the South Australian Court of Appeal refused leave to appeal from the dismissal of judicial review proceedings challenging a decision of the delegate of the Chief Executive of the Department for Correctional Services, determining pursuant to s 23(1) of the Correctional Services Act 1982 (SA) that the prisoner should not be transferred to an alternative prison. The court dismissed the application for leave to appeal on the ground of futility in circumstances where prior to judgment at first instance, the Chief Executive decided that the prisoner should be transferred.

1. Mr Hummer contends that there are many documents in the defendants' possession, custody or control 'in the form of paper, electronic and fixed CCTV and Body Worn CCTV that document [his] time in the KCSSU in great detail'. He contends that such documents record his 'idiosyncratic behaviour', an alleged issue in dispute in the proceedings.
2. Mr Hummer submits that s 47(1)(a) of the Corrections Act provides for the right of 'every prisoner to be in the open air for at least an hour each day'. He contends that his 'behaviour', namely involving 'incidents' with prison staff, was as a result of 'very poor conditions of confinement' by 'not being able to be in the open air for at least an hour each day' while in the KCSSU.
3. Mr Hummer contends that access to medical care and treatment while in the KCSSU was denied to him on many occasions, which imposed 'grossly unreasonable conditions' for the purposes of s 47(1)(f) of the Corrections Act. He alleges that the denial of medical care is recorded in documents held by the defendants, and that such documents 'should be identified'.
4. Mr Hummer further contends that the Minogue Proceeding is relevant to the Summons before me.

1. The defendants submit that the Summons should be dismissed as Mr Hummer has been provided with 'all the documents in [the Defendants] possession that are critical to the resolution of the issues in dispute, being whether any limitations on his rights whilst he was held in the KCSSU were reasonable and justified', including:

(a) incident reports dated between 15 April 2025 and 3 May 2025;

(b) an intensive case management plan for Mr Hummer while at the WPCC dated 6 April 2025;

(c) individual management file entries including plans, reports and memoranda in relation to Mr Hummer dated between 20 April 2025 and 3 May 2025; and

(d) local plan file notes in relation to Mr Hummer dated between 8 and 20 April 2025.

1. The defendants contend that other documents identified by Mr Hummer 'either do not exist or do not shed light on the justification for his detention in the KCSSU'.

1. The plaintiff seeks an order 'to give effect to' s 26 of the CPA by requiring the defendants to file and serve an affidavit giving that disclosure.
2. I commence by observing that the plaintiff's application is for disclosure of critical documents, and not discovery. Generally, critical documents that are required to be disclosed pursuant to s 26 of the CPA are a subset of discoverable documents.[27] Further, discovery is not usually ordered in judicial review proceedings.[28]
3. The plaintiff seeks disclosure of documents in relation to 'the particular personal circumstances and idiosyncratic behaviour of the plaintiff during the time that he was held in the KCSSU at [the] WPCC' including but not limited to documents of the type identified in paragraphs [(1)(a)] to [(i)] of the Summons.
4. The plaintiff's disclosure application cannot be considered in vacuum. It must be assessed by reference to the questions that arise in the proceeding.
5. A shortcoming in the Originating Motion, and consequently the Summons, is that it does not identify the decision(s) that the plaintiff seeks to review with precision. Many of the plaintiff's complaints with respect to his time in the KCSSU may be characterised as the features of the KCSSU or of the time he spent in the KCSSU, as opposed to specific decisions that might be amenable to judicial review.
6. Declarations 1 to 3 in the Originating Motion are expressed in general terms and without reference to the circumstances of the plaintiff's case.
7. Declarations 4 and 5 in the Originating Motion are expressed with respect to the features of parts of the KCSSU, namely the 'Cell Yards' and the 'Exercise Yards'. It is said that each of those yards is not compliant with certain statutory rights or obligations. No decisions of the defendants are identified.
8. Declarations 6 to 9 in the Originating Motion are formulated in terms that either the first or second defendant 'failed to ensure' certain statutory obligations had been satisfied during the period of the plaintiff's incarceration in the KCSSU (being between 12 April 2025 to 2 May 2025). Again, no particular decisions are identified.
9. Declaration 10 in the Originating Motion is formulated in terms of 'the failure of infrastructure' in the KCSSU at the WPCC. Again, no particular decisions are identified.
10. Neither Order 11 in the Originating Motion (seeking mandamus) nor the Grounds (12 to 18) identify any specific decisions of the defendants.
11. Similarly, Mr Hummer's affidavits do not properly identify any particular decision of the defendants. He describes his experience in the cells at the KCSSU and the physical environment there, including the lack of open air space time. The problem is exemplified by the following statement in the Second Hummer Affidavit:

The dispute in this case is centred around the conditions of confinement in the in the Karlton Unit at WPCC as that relates to the operation of s 47(1)(a) of the [Corrections Act] right of 'every prisoner to be in the open air for at least an hour each day'.

1. One possibility is that the decision sought to be reviewed is the decision to transfer Mr Hummer to the WPCC on 12 April 2025. Another possibility is that the relevant decision is one or more decision(s) not to transfer Mr Hummer within or out of the WPCC between 12 April 2025 to 2 May 2025. A further possibility is that the relevant decision is one or more decisions with respect to access to open space.
2. Each of these decisions (if reviewable decisions were made) is likely to have been prompted by a variety of circumstances. Mr Hummer advised that the initial transfer occurred in the middle of one night when it was determined part of the Barwon Prison was unsafe. It may be that some of the subsequent decisions were made by reason of necessity - noting that according to the plaintiff, the WPCC was not officially opened until after he was transferred out of it. Given the state of articulation of the claim, and the fact that this application is made before the defendants have filed substantive materials, I can only speculate about this.
3. Having regard to these matters, identification of what documents are (or ought reasonably be considered) critical to the resolution of the plaintiff's dispute is difficult. The failure to identify with precision the subject decision(s) makes it less likely that a document or class of documents is, or ought reasonably be considered, critical to the resolution of the dispute at this point in the proceeding.
4. Despite the shortcomings in the articulation of the plaintiff's claim, the defendants accept that the issues that are likely to fall for determination on the plaintiff's application for judicial review include the following:

(a) Whether the decision maker committed a jurisdictional error in making the Decision, having regard to:

(i) the obligations imposed by the Charter; and

(ii) the terms of s 47(1)(a) of the Corrections Act.

(b) Whether the plaintiff's conditions of confinement in the KCSSU were incompatible with s 22(1) of the Charter.

(c) Whether any limitation on the plaintiff's rights was reasonable and justified within the meaning of s 7(2) of the Charter.

1. I accept the defendants' submission that the plaintiff's claim concerning a limitation on his right to have access to reasonable medical care and treatment necessary for the preservation of health under s 47(1)(f) of the Corrections Act, is not a matter that is within the scope of the Originating Motion.
2. It may be, as the defendants contend, that the relevant evidence is likely to concern what in fact occurred while the plaintiff was in the KSCCU (to the extent it was known by relevant decision maker(s)), including the incidents involving him and the response to them. I am not satisfied that documents recording matters that caused him to act in the way that he did are critical documents in the context of the claim as has been articulated at this point in time.
3. In the Third Hummer Affidavit, the plaintiff sets out evidence of what he claims is the DJCS's abuse of power and disrespect of legal systems:

(a) Exhibit SH‑1 is a letter written by the plaintiff addressed to a 'detective', which sets out difficulties that he has had in preparing his legal matters, and in relation to accessing his documents.

(b) Exhibit SH‑2 is a hospital issued pain management patient referral questionnaire. The plaintiff relies on this as evidence that the transfer to the KCSSU was used as a punitive measure. I cannot see how the document supports the plaintiff's claim, particularly his claim for disclosure of documents.

(c) Exhibit SH‑3 are three incident reports involving the plaintiff in the period April to May 2025. The plaintiff claims that the reports hold 'evidence of footage containing audio retained by the second defendant'. It appears that two of the reports record 'Y' to whether 'BWC [body worn camera]' was activated at the time of the incidents. Presumably this footage is part of the further documents the defendants have agreed to disclose.

(d) Exhibits SH‑4 and SH‑5 contain documents that the plaintiff claims show that operational staff have access to his medical records. Even if I were to assume the premise to be true, it does not make those records critical documents for the purpose of s 26 of the CPA.

1. In the Fourth Hummer Affidavit, the plaintiff alleges that the defendants' denial that there was footage from body worn cameras in paragraph [10.1] of the McKellar‑White Affidavit is 'false', 'deceptive' and 'dishonest', demonstrating a propensity to tell 'lies'. The affidavit exhibits 'Incident Reports' including ones recording that body worn camera footage is available of certain incidents that occurred while he was at the KCSSU. The plaintiff alleges that the defendants have intentionally concealed the existence of such footage, in breach of their obligations under the CPA.
2. At the hearing before me, the defendants accepted that, contrary to the instructions recorded in paragraph [10.1] of the McKellar‑White Affidavit, there was limited available footage of Mr Hummer during his time in the KCSSU between 11 April and 5 May 2025. Counsel for the defendants explained that steps were being taken to ensure that the footage would be disclosed to Mr Hummer by no later than 10 April 2026. Counsel explained that instructions provided by the defendants had changed and that they had 'become aware' of such footage.
3. Despite the concession made by the defendants, the plaintiff relies on that non disclosure, and an allegedly corresponding issue in the Minogue Proceeding, as a basis for the conclusion that the defendants have failed to comply with their obligations under s 26 of the CPA generally. I am not prepared to draw that conclusion on the basis of the evidence before me.
4. The defendants contend that the Summons should be dismissed because they have provided to the plaintiff all of the documents in their possession that are critical to the resolution of the issues in dispute. Having regard to the documents provided and promised to be provided, the state of articulation of the plaintiff's claim, and the point in the proceeding at which the application is made, I am not satisfied that the plaintiff has demonstrated that the defendants have breached their obligations under s 26 of the CPA warranting the relief sought in the Summons.
5. I am not satisfied that documents sought by the plaintiff evidencing his particular personal circumstances and idiosyncratic behaviour during the time that he was held in the KCSSU, save for those already provided or agreed to be provided, are (or ought reasonably be considered) critical to the resolution of the dispute.
6. It may be that further disclosure will be required by the defendants as the proceeding progresses and the dispositive issues become more clearly defined. I make no finding about that matter. The defendants have indicated that they are cognisant of the ongoing obligations imposed on them by s 26 of the CPA. The reasons for various decisions relating to Mr Hummer's time in the KCSSU are likely to be revealed when the defendants file their evidence.
7. An assumption that would appear to underlie the relief sought in the plaintiff's Summons is that the relevant decision maker is taken to have the knowledge of each of the officers interacting with him throughout his time at the KCSSU. Given the matters that are set out above, it is unnecessary for me to consider this matter further, but it is likely to be a significant issue on the application for judicial review given the way in which the plaintiff frames his case.[29]

1. In the premises, I am not satisfied that the defendants have breached their obligations under s 26 of the CPA or, if contrary to my finding set out above, the delayed provision of footage was a breach, I am not satisfied that it is appropriate to grant the relief sought in the Summons in circumstances where the defendants have agreed to make footage available to the plaintiff by 10 April 2026.

1. I shall make orders dismissing the Summons. My preliminary view is that each party pay its own costs of and incidental to the Summons, noting the defendants' concession concerning disclosure of available footage to the plaintiff and the plaintiff's self represented status. If either party seeks a different costs order, I shall reserve costs and deal with the question when the matter is next before the Court.

[7] At the hearing before me, counsel for the defendants revised this statement with further instructions that limited body camera footage had been made available and would be disclosed to the plaintiff.

[8] Rule 29.07(2) of the Supreme Court (General Civil Procedure) Rules 2025.

[9] Australian Society for Kangaroos Inc. v Secretary, Department of Environment, Land, Water and Planning [2018] VSC 88, [21] (Ginnane J) (Australian Society for Kangaroos).

[10] Owners Corporation Plan No RP 015268 v Yarra City Council [2023] VSC 318, [52] (Ierodiaconou AsJ).

[11] Australian Securities Commission v Somerville (1994) 51 FCR 38, [42].

[12] Federal Commissioner of Taxation; Ex-parte Swiss Aluminium Australia Pty Ltd (1987) 72 ALR 247, [249].

[13] WA Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175 at 181; Moreland City Council v Minister for Planning (2014) 203 LGERA 152, [12] (Daly AsJ); Moodie v Racing Integrity Commissioner [2017] VSC 175, [35] (Ginnane J); Gardiner v Attorney-General [2020] VSC 224, [15] (Richards J).

[14] Australian Society for Kangaroos, [23] (Ginnane J).

[15] Moreland City Council v Minister for Planning (2014) 203 LGERA 152, [13]-[15] (Daly AsJ); Julani v Wilhelm [2005] FCAFC 269; (2005) 148 FCR 255, [110]-[112] (Dowsett, Jacobson and Greenwood JJ).

[16] [1999] NSWSC 86, [11].

[17] [2000] SASC 84, [18].

[18] [2015] VSC 105, [20].

[19] [2015] VSC 593; (2015) 48 VR 119 (McDonald J).

[20] [2015] VSC 593; (2015) 48 VR 119, [6] (McDonald J).

[21] [2017] VSC 310, [107].

[23] [2020] SASC 158, [79]-[80].

[24] [2024] VSC 145.

[26] [2024] SASCA 142.

[27] Mullett v Nixon [2022] VSCA 174, [86].

[28] Australian Society for Kangaroos, [21]-[23] (Ginnane J).

[29] Compare Minister for Immigration, Citizenship & Multicultural Affairs v McQueen (2024) 282 CLR 1, [17]-‍[20] (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ); Chang v Office of Chief Parliamentary Counsel [2023] VSC 516, [69] (O'Meara J_)_.