JUDGMENT
1 HIS HONOUR : In these proceedings a number of grounds have been argued aimed at the prevention of the movement of JMR from Worimi Juvenile Justice Centre to Mt Penang Juvenile Justice Centre.
2 To a consideration of those grounds I shall turn presently.
3 JMR pleaded guilty in the Supreme Court at Newcastle on 13 November 1996 to the manslaughter of his mother and his sister twelve months before. Both victims died of stab wounds inflicted by JMR.
4 The charges in both cases were reduced from murder to manslaughter by reason of the availability of the defence of diminished responsibility. JMR was only fourteen years of age at the time of sentence and the background to the offences was indeed a tragic one. From a very tender age JMR had been sexually abused by his father on many occasions and the father was eventually imprisoned for these offences and for offences against other victims. The learned sentencing judge, the former Chief Judge at Common Law, when dealing with JMR, observed in his sentencing remarks:
"These killings were the horrible conclusion to a chain of circumstances which - for the human tragedy which they disclose - are frankly outside my long experience in the law, which includes now almost eighteen years of trial and appellate work in the Supreme Court and the Court of Criminal Appeal."
5 It was common ground on the medical evidence placed before the sentencing judge that the abnormality of mind from which JMR was suffering resulted from the sexual abuse inflicted by his father.
6 At the time of being sentenced, and indeed from the time he had been taken into custody immediately after the offences, JMR was at Worimi where he has remained until the present time.
7 In passing sentence Hunt CJ at CL addressed the issue of eventual rehabilitation and said (at pp 11-12):
"The prospects of eventual rehabilitation here are reasonable, but it is going to take a long time. Since being at Worimi, the prisoner has improved his educational standard considerably, and he has shown improvement in his social skills. The helpful background report provided by the Department of Juvenile Justice is rightly proud of its assistance, which has enabled the prisoner to excel in his studies. It is not without significance, of course, that the improvement in the prisoner's behaviour has occurred in the relative safety and predictable nature of the structure provided at that Centre. The continuing support from his maternal grandparents has also played a significant part. The prisoner has enrolled in the Duke of Edinburgh Award Scheme, and he has already participated in community service work. All of this good news must nevertheless be tempered by a recognition of the prisoner's continued vulnerability to extreme reactions, and his continuing difficulties in forming any relationships with others of his age. He has formed close relations with the staff at the Centre, who should be commended for their support and for the degree of success which has been achieved.
Dr Miller (the psychiatrist) expresses concern for the prisoner's state of mind in the future. He says that there will undoubtedly be significant problems in the future. Other psychiatrists agree. Dr Jurek says that the prisoner will remain vulnerable to every kind of psychiatric disorder and to drug and alcohol abuse. She said that his prognosis is poor. Dr Nielssen thought that the prognosis must be guarded. I am impressed by the view expressed by Dr Miller.
I also accept the opinion expressed by Dr Miller that the main focus for the prisoner's rehabilitation must be the maintenance for some time of the secure environment in which he presently feels safe and is able to develop self confidence and awareness, and I share the doctor's anxiety should the prisoner be transferred to another centre where the trusting links with the staff which he now has will have to be established once more. The prisoner himself wishes to stay at Worimi. He told Dr Miller (whose report was tendered on his behalf) that he is particularly anxious that he be given a custodial sentence of at least five years, so that he can spend a further four years at Worimi -
'… safe from what he perceives to be a revengeful world. He is fully aware that he will be branded a killer in the community, and feels that this will be a continuation of the teasing he has received at school.'
This statement has been accepted by Dr Miller without qualification. Given his experience, I have assumed that he is satisfied that a child not yet fifteen has the maturity to understand the significance of that concession. The period nominated by the prisoner is a realistic one.
It is obvious that the prisoner should stay at Worimi for the whole of the custodial part of his sentence. The order pursuant to s 19 of the Act that the prisoner serve the whole of the custodial portion of his sentence in a detention centre will therefore be accompanied by a recommendation that it be served at Worimi."
8 His Honour then went on to sentence JMR on each charge of manslaughter to penal servitude for ten years with a minimum term of five years and an additional term of five years, with such sentences to be served concurrently. His Honour ordered that the whole of the custodial period of the sentence be served in a detention centre and recommended that the sentence be served at Worimi Detention Centre.
9 JMR has now been at Worimi for more than three years. He will become eligible for release upon parole on 12 November 2000. It is his wish that he remain where he is, and he is accordingly resistant to the intended transfer to Mt Penang.
10 The following evidence was introduced in these proceedings presently before the Court:
(i) several affidavits sworn by JMR's maternal grandmother (who I shall not name in the interests of preserving JMR's anonymity);
(ii) several affidavits sworn by Dr Bruce Chenoweth, JMR's treating psychiatrist. Dr Chenoweth also gave oral evidence;
(iii) Dr Kenneth Nunn gave oral evidence, his report of 21 October 1996 having been an annexure to one of Dr Chenoweth's affidavits;
(iv) an affidavit by Dr John Miller, a psychiatrist who assessed the plaintiff in 1996;
(v) an affidavit of Mr Chandler, JMR's class teacher since his detention at Worimi;
(vi) an affidavit of Mr Jack, the principal of Wallis Plains School, which is attached to Worimi and where JMR could finish his secondary schooling if he stays at Worimi;
(vii) an affidavit of Ms Hussain, a nurse at Worimi;
(viii) an affidavit of Ms Conlon, another nurse at Worimi;
(ix) an affidavit of Mr Johns, the key youth worker attached to JMR since his detention.
11 In the case for the defendants the following affidavits were introduced:
(x) an affidavit sworn by the second defendant, Ms Johnston;
(xi) an affidavit sworn by Mr Gould, superintendent of Mt Penang.
12 Ms Johnston and Mr Gould both gave oral evidence.
13 The evidence establishes that the plaintiff has progressed well at Worimi. Academically he has made what Mr Chandler has described as "amazing progress". He has completed Year 10 and Mr Jack thinks he is capable of doing Years 11 and 12. Mr Jack thinks he will require substantial supervision and educational support however to complete his schooling. Both Mr Chandler and Mr Jack considered Worimi to be a better location than Mt Penang for JMR's further education. Having heard Mr Gould's evidence about study facilities at Mt Penang, I accept the assessment made by Mr Chandler and Mr Jack.
14 JMR appears to have formed good relationships with staff members, in particular with Mr Johns and Mr Chandler. He also had a good relationship with Ms O'Brien, the psychologist attached to Worimi, before her departure overseas in March 1998. Ms Serhan, a case work co-ordinator, apparently assumed a mother image to JMR, but Ms Johnston gave evidence that that relationship has recently deteriorated since JMR became aware that Ms Serhan now supports his transfer to Mt Penang.
15 JMR has been fortunate to enjoy the close support of his grandmother and of his grandfather, both of whom attended Court throughout the present hearing. They were accompanied by JMR's aunt and uncle, each of whom is obviously supportive. In her affidavits JMR's grandmother has expressed her concern if JMR is moved because he has responded so well at Worimi and because Worimi is the only place at which JMR has ever felt safe. JMR has expressed concern to Mr Chandler about going to Mt Penang on some three or four occasions, saying:
"There are people waiting to get me at Mt Penang. If I go to Mt Penang I will be gang raped."
16 The plaintiff's grandmother who lives at Teralba has been a very regular visitor at Worimi but some twelve months ago suffered a severe physical injury which has prevented her from driving and she also has difficulty walking. Not only can the grandmother not drive now but her husband cannot drive either. Hence since the grandmother's accident, the grandparents have been dependent on a friend to drive them to Worimi and the difficulties of regular visits will be far greater should JMR be moved further away to Mt Penang. The desirability of regular and frequent visits for so long as the plaintiff remains detained in whatever place is obvious and has been stressed in the psychiatric evidence.
17 The evidence disclosed that Worimi is primarily a remand centre, with capacity to accommodate thirty-five detainees. A small number of sentenced detainees, ranging from eight to ten, are kept there for some part of their committal. Worimi comprises a two storey building described as having "low ceilings and narrow corridors" and "no grassed recreational areas".
18 By way of contrast, Mt Penang is a larger detention centre which accommodates 128 detainees. There are three closed units, and one open unit, each accommodating up to thirty-two detainees. It is proposed that the plaintiff should be placed at Karinya, the open unit where Mr Gould said there are usually about twenty-five detainees. The accommodation at Karinya is dormitory accommodation. Those selected for placement at Karinya satisfy the following requirements, according to Mr Gould:
"(i) the detainee displaying a positive move towards rehabilitation;
(ii) the detainee's level of co-operation with staff;
(iii) the willingness of the detainee to become involved in community programmes;
(iv) the vulnerability of a detainee."
19 Those detained at Karinya dine separately from those in the other units.
20 The psychiatric disorder from which the plaintiff has suffered at all relevant times in the past and continues to suffer has been defined by his treating psychiatrist as a "Dissociative Identity Disorder". It is the existence and the perceived significance of this disorder which has been the focus of the plaintiff's application presently before this Court.
21 Before considering the psychiatric evidence and the evidence of Ms Johnston in close detail, it is appropriate to record the grounds upon which the plaintiff seeks relief in this Court. The points of claim are very lengthy, but in the course of the hearing Ms Moen of counsel, for the plaintiff, distilled the challenge to the intended transfer to the following grounds:
(i) that the decision to transfer the plaintiff was unreasonable;
(ii) that it involved a denial of natural justice;
(iii) that the decision was ultra vires;
(iv) that the implementation of the decision should be restrained to prevent commission of the tort of negligence.
(The points of claim fashioned various forms of relief including applications for declarations and a quia timet injunction.)
22 I shall now consider the above four grounds in turn.
(i) Unreasonableness
23 The decision challenged is the decision taken by Ms Johnston as the superintendent at Worimi to arrange for the transfer of the plaintiff to Mt Penang. It is challenged as being "unreasonable" within the meaning of that concept as considered by Lord Greene M.R. in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229 and following.
24 At the outset it is necessary to identify the decision which is challenged, because the evidence has made it clear that Ms Johnston had the contemplated transfer in mind for a considerable period before the summons was filed to commence these proceedings on 26 June 1998.
25 An adjournment during the course of the hearing to enable a precise definition of the "decision" was granted. Following such adjournment, it was made clear that the decision challenged was the decision made by Ms Johnston in October 1996. This of course calls for concentration upon the position at that time and the basis upon which the decision maker then acted. On the other hand, for the purposes of the fourth ground of challenge, for the restraint of the anticipated tort, the due consideration of that ground would, the parties agreed, involve consideration of all that has occurred since October 1996, including the expression of the more comprehensive medical opinions since that time.
26 Where is the October decision to be found and what was it? These questions are answered in paragraph 12 of the second defendant's affidavit:
"In about October 1996, I decided that, subject to any change in circumstances and any representations made by specialist staff, the plaintiff and/or his tutor and her husband ('the plaintiff's grandparents'), the plaintiff should, if sentenced, be transferred to Reiby in about twelve months time and, thereafter, to Mount Penang. In this regard, I was of the opinion that while the general policy provided for the plaintiff to be transferred immediately after sentencing, the circumstances of the plaintiff's case made it appropriate for his transfer to be delayed until his therapeutic programme had progressed to an appropriate stage."
27 At about that time Ms Johnson said that in conjunction with Ms Serhan she prepared a case plan for the plaintiff, a copy of which was annexed to her affidavit. This case plan was developed for attachment to the background report to be put before the Supreme Court for sentencing purposes in November 1996. That plan involved psychological assessments after sentencing for a variety of purposes referred to in the plan itself. Further the plan involved participation of other staff for specified purposes and provision for schooling. It also involved counselling for the past sexual assaults and planning for encouragement of visitors. It involved the consideration of "appropriate accommodation placements during the period of custody, with a view to planning during the pre-release phase (i.e. to be incorporated into the exit case plan)".
28 Ms Johnston discussed the planned transfer to Mt Penang in June 1997 and thereafter explained the reasons for the planned transfer in her letter dated 14 August 1997 which she wrote in response to a request from the Newcastle Legal Centre:
"In summary, the reasons for [JMR's] transfer are:
° The opportunity to experience change (eg, in environment, support people, peers, experiences, etc.) while still having support structures and controls available. This is in terms of [JMR's] ultimate return to the community (in 2000), during which there will be a range of issues associated with change, and at that time he will have reduced support structures in the wider community;
° Related to the above, the opportunity to challenge the 'comfort zone' which has established and is continuing to strengthen in the Worimi environment, and the familiarity [JMR] has with those around him, which could be detrimental to the development of coping strategies for the future;
° Wider range of vocational training programmes, and greater intensity in training which is applicable to the workplace;
° Greater community interaction opportunities, both within and outside the centre, based on Mount Penang being a committal centre and the number of detainees eligible for community activities;
° Interaction with a larger number of other young people of his own age;
° Residence with other detainees who are serving sentences, to introduce longer term, more stable relationships with peers in similar situations; and
° Very importantly, the expertise of Mount Penang staff in working with young people sentenced under section 19 of the Children (Criminal Proceedings) Act 1987, in the preparation of Submissions for Consideration of Release on Parole. We do limited work in this area, and also do not have the full gambit of opportunities for detainees to fulfil the areas highlighted in parole submissions.
Specialist services currently involved with [JMR] are all available at Mount Penang. There is also greater opportunity for groupwork at that centre, given the higher number of detainees.
Dr Nunn, a child psychiatry specialist, visited the centre recently. He spent time with [JMR] and [his grandparents]. I am informed that Dr Nunn was in support of the transfer, but advised that this should be done carefully, sensitively and in a structured manner. This is certainly part of the planned transfer, as I am well aware of the issues associated with transferring a young person like [JMR]. The transfer will be planned and structured, and all available support will be provided to [JMR].
In conclusion, it is my opinion that if [JMR] were to remain at Worimi for the duration of his sentence, ending in November 2000, that would not be helpful for him. Based on my experiences with such cases, I do not view it as in the interests of [JMR's] total well being to remain at this centre, and not experience any changes or challenges, which will prepare him for his return to the community after a very extensive period of time in detention."
29 In her thoughtful and comprehensive submissions, Ms Moen challenged the decision taken in October 1996 as being premature, to the point of being taken before the sentence and consideration of the remarks of the sentencing judge. It should not have been taken, it was submitted, without due consideration of appropriate psychiatric and psychological assessment of the plaintiff. This was particularly so considering the framework of the Children (Detention Centres) Act, 1987 and the paramount consideration which s 4 directed should be given to the welfare of those subject to control. The decision was unreasonable in 1986 because of the absence of cogent evidence to support the decision. Ms Moen referred in support of this submission to Luu v Renevier (1989) 91 ALR 39 and to dicta in the joint judgment of the Federal Court in that case at 47:
"The effect of a finding of fact by a decision maker which is unsupported by the evidence must depend upon the significance of that finding. If the finding relates only to a matter of peripheral importance, the validity of the decision may remain unaffected. But where the finding is critical to the ultimate decision, it is impossible to sustain the decision."
30 Ms Johnston was cross examined about the information she had and the inquiries she made before reaching her decision in October 1996. One of the sources to whom she said she had regard was Dr Miller, but plainly the witness was wrong about this because his report did not become available until the following month. Ms Johnston said however, and I accept, that she consulted with the centre's psychologist and that she had
"information from the centre support team which is a multi disciplinary team made up of registered nurse, psychologist and other counsellors via their regular meetings they have about young people in detention." (T94).
31 For reasons of confidentiality departmental procedure restrained Ms Johnston from seeing the reports but she was able through staff members to inform herself of available assessments and said that she "had numerous discussions with the co-ordinated case worker" (T95). That discussion concerned entries in psychological progress notes.
32 Ms Johnston was then asked the following questions and gave the following answers (T96):
"Q. …at that particular stage of October 1996, did you have available to you any expert psychological opinion that remaining at Worimi would be harmful for the plaintiff's mental health putting aside all other issues of what might be good or bad for him, did you have any expert psychological opinion that remaining at Worimi would be damaging to his mental health?
A. No, I did not.
Q. Did you have any expert opinion to that effect at that stage?
A. That it would be damaging?
Q. Yes, damaging to his mental health as opposed to anything else?
A. To remain at Worimi?
Q. Yes?
A. No, I did not.
HIS HONOUR: Q. What about the reverse. Did you have any information in the form of expert evidence available to you as to any adverse impact of him being transferred?
A. The information I had at that time was that the environment of Worimi and the relationships within Worimi were beneficial for the plaintiff and that it was certainly helpful to his treatment. And I am sorry I am recalling - and the information was also about if there was any consideration that the preference was for him to remain at Worimi, that was certainly my understanding but if there was any consideration of transfer from Worimi that that needed to be carefully considered how that was done. At that time in October 1996, that was my understanding of the information available."
33 In considering the reasonableness of what Ms Johnston decided in October 1996, it is important to have regard to the context in which the decision was taken. It was a planning decision made at a point of time after the plaintiff had been in custody for some eleven months. It was a required planning decision having regard to a directive of the Executive Director of Juvenile Justice Centres, which directive had been addressed to the superintendents of the various juvenile justice centres in October 1994 concerning the transfer of detainees. A copy of this direction became Exhibit F and it prescribed guidelines for the transfer of detainees, including "Routine (Plan) Transfers", inter alia after "reclassification". When the decision was taken by Ms Johnston in October 1996 it was in anticipation of the pending reclassification once sentence was imposed on JMR.
34 Exhibit F assumes relevance because it places the decision made in 1996 in context. It was essentially a planning decision. The directive in Exhibit F could not justify an irrational and arbitrary decision to move a detainee immediately, without regard to relevant considerations, but it seems to me that Ms Johnson's decision in October 1996 could not be so categorised. The second defendant did not at that time decide when the transfer would take place; rather the decision then was that the transfer should be delayed "until his therapeutic progress had progressed to an appropriate stage". It was also a decision taken "subject to any change in circumstances and any representations made by specialist staff, the plaintiff and his grandparents."
35 Dr Miller concluded in November 1996 that it was his recommendation that JMR remain where he was "for at least one or two years". Even had that report been available before the second defendant made her decision that could not have rendered the decision for a delayed transfer "until therapeutic progress had progressed to an appropriate stage" an unreasonable decision.
36 Nor in my opinion could the evidence of Dr Nunn or Dr Chenoweth be regarded as rendering Ms Johnston's decision unreasonable. Nor could the recommendation of the sentencing judge.
37 Ms Johnston referred to Dr Nunn in her letter to the Newcastle Legal Centre in the passage extracted above. Dr Nunn did not see the plaintiff until July 1997. When he subsequently reported on 7 August 1997 to Dr Chenoweth, Dr Nunn said:
"The staff at Worimi are in need of external people like yourself because of the intensity of the relationship that has developed in such a closed setting. I have, and will be, encouraging them to take up some of the issues raised by our visit. The biggest single management issue is the need to decide on a date for him to be transferred to alternative facilities if he moves at all. The biggest therapeutic issue will be how best to pursue integration. If it is too fast, he may become aggressive or even suicidal. If it is too slow he may not be ready to move and may remain vulnerable to the first person who calls him a paedophile. Should any key staff leave (eg Ms O'Brien, Ms Serhan or his teacher), there are obviously going to be flashpoints…"
38 Later under the heading "Summary and Recommendations", Dr Nunn wrote:
"A decision about [JMR] - one way or the other - should be made. If a move is to be made sufficient notice must be given and the grandparents reassured about contact. By enough notice, I mean at least six to eight months, taking into account the school year."
39 In his oral evidence Dr Nunn said that when he was at Worimi for the purposes of his assessment, there was discussion about the transfer issue. This discussion was either with Ms Johnston or Ms Serhan but what Dr Nunn said was, according to his evidence at T21:
"If a transfer must take place then it ought to take place with a great deal of preparation, it ought to take place incrementally, and the people - and the place to which [JMR] was going needed considerable preparation as well."
40 Later in cross examination Dr Nunn was asked these questions and gave these answers (T26):
"Q. On the basis that that transfer was to take place you came up with a proposal as to what would best fit him for transfer, and that is, it being undertaken carefully, sensitively and in a structured manner.
A. Yes.
Q. Would you make any criticism of somebody who proceeded with the transfer on that basis?
A. No, no I wouldn't. The crucial issue there is to build in the capacity, to monitor the successful progression, because one can do all those things but the sensitivity issue means that you have to have built in a capacity to know if it's going wrong."
41 Dr Chenoweth addressed reports to the psychologist at Worimi in September 1997 and in February 1998 in which the subject of the proposed transfer was addressed. In the earlier report Dr Chenoweth wrote:
"I believe this to be a most critical time in his rehabilitation. I would encourage the administration to hold him for as long as possible at Worimi. He is only 16 in January and is expanding his outside and other options in a gradual and somewhat belated but none the less age-appropriate way.
If it is at all possible I would advocate delaying his transfer to Mt Penang until mid 1998. I understand that the real world will challenge him much more down there but his Dissociative Identity Disorder really needs as much integration as possible before he is exposed to those kinds of challenges. I am sure that Dr Nunn would agree with this given the caution he raised about attempts at integrating the good and bad bits of [JMR] prematurely."
42 Then in the report of February 1998 Dr Chenoweth wrote:
"I note the time and effort that is going into the preparation of [JMR] for this transfer and in particular the transition case plan being compiled including the educational component. The transition plan as outlined seems fine to me. I have not much to add to the carefully considered document presented. I particularly like the farewell dinner and the 'right of passage' built into this transition. If at all possible I would like him to regard this as the next logical move in his rehabilitative and maturational process rather than as something to be feared."
43 Dr Chenoweth was asked in cross examination the following question and gave the following answer at T10:
"Q. At that time, when you wrote that letter of 18 February 1998, did you think that the transfer was so unwise that no reasonable person could have made the decision to transfer him?
A. No, I considered that there were many forces operating and that I wished to maintain a good and cordial relationship with those maintaining his care, as well as with the young person concerned. But in my own mind, it was making the best of a situation that was inevitable."
44 Later in cross examination he was asked these further questions and gave these further answers:
"Q. I will ask you to assume if you will, a fact that the proposed transfer of the plaintiff was to be delayed until July 1998 at that time?
A. That is correct.
Q. Can I suggest to you that the decision to delay the transfer, for what was in effect another nine months, from the time that you provided that report, was entirely consistent with your report?
A. Yes, it was entirely consistent with my report. I would also like to say, if I may, there was another factor involved, that was that since that report was written, I assumed a much higher profile in the management of the boy; that at that stage I was doing assessments every so often and the main management was in the hands of Miss O'Brien. She would ring and let me know how things were going. In the ensuring year or so, I have got to know him a lot more, a lot better and in a sense my position has hardened slightly.
Q. I was actually going to suggest that your position has hardened to a great degree and am I correct in putting that proposition to you?
A. I think it is better for him that he stays at Worimi. Yes, I have come to that conclusion, as I have got to know him better.
Q. You have now reached the stage where you would say that a decision to transfer him now would be so unreasonable that no reasonable decision maker would make it?
A. No, I certainly would not go that far. I would not go that far. I think it would be an unwise decision, given what happened for him but we have extraordinarily competent people in both places. I think the major issue has more to do with the strength of his attachments, than it has to do with the programmes, or the competence of personnel at either institution."
45 The evidence I have reviewed above from Dr Nunn and Dr Chenoweth was not, of course, available to Ms Johnston in October 1996 but even if it had been its existence could not, in my opinion, have rendered the decision made in October 1996 an unreasonable one and I reject the submission that it was necessarily unreasonable for Ms Johnston to have formed the conditional decision she reached in October 1996 without having sought direct guidance from either Dr Chenoweth or Dr Nunn.
46 I shall consider the evidence of these two specialists further when looking at ground (iv), but it seems to me that their evidence does not assist the plaintiff on this first ground.
47 The decision in October 1996 has to be regarded in its chronological context, heeding that it was a planning decision, and heeding also the qualifications contained in the decision as expressed in paragraph 12 of the second defendant's affidavit.
48 Having reflected on the relevant evidence and the competing submissions in this case, I conclude that the second defendant's decision has not been proved to be unreasonable in the Wednesbury sense and that this first ground fails.
(ii) Denial of natural justice
49 The second defendant acknowledges that neither JMR nor his grandparents were consulted before the decision in October 1996 was reached. Ms Johnston has stated her reason for lack of prior consultation in paragraph 15 of her affidavit:
"At that time (that is in October 1996) I did not inform either the plaintiff's grandparents or the plaintiff of my decision because I was concerned that informing them at that time might prejudice the plaintiff's therapeutic programme."
50 Ms Johnston was not challenged as to the above explanation and I accept that explanation.
51 I accept therefore that the second defendant had the plaintiff's interests in mind in not raising the matter with either his grandparents or himself in October 1996. However Ms Johnston did not then intend to attempt to implement that decision without consultation with the grandparents or the plaintiff. I accept, as she deposed in her affidavit, that the decision in 1996 was made, inter alia, subject to consideration of any representations made by JMR or his grandparents. I accept further that there was consultation, as Ms Johnston claims, in June 1997 before she wrote the letter to the Newcastle Legal Centre. I am satisfied that the representations on behalf of JMR were taken into account and in all the circumstances I am not persuaded by this submission. It has not been proved that the October 1996 decision involved a denial of natural justice.
(iii) That the decision was ultra vires
52 Section 13 of the Children (Detention Centres) Act, 1987 provides:
" (1) The Director-General may, by order in writing, direct the transfer of a person on remand or a person subject to control from one detention centre to another…"
53 Ms Moen submitted correctly that before JMR can be transferred there must be a direction complying with s 13. Her further submission was that the section does not authorise the superintendent of a detention centre to order the transfer, and therefore the decision made by Ms Johnston in October 1996 was ultra vires.
54 It seems to me that that submission misconceives the nature of the decision made by the second defendant and the nature of the action contemplated by s 13. What Ms Johnston decided should be done in October 1996 was, as I remarked earlier, a decision made in a planning context. It was not a direction for transfer under s 13. Ms Johnston was not purporting to make an order under that section.
55 Doubtless before JMR can be transferred to Mt Penang an order under s 13 will be required from the Director General. However it does not follow that the requirements of s 13 strip the superintendent of the detention centre of authority to make a decision that a detainee should be transferred. There has been no evidence as to the procedure that is followed but it seems to me that the existence of s 13 is entirely consistent with the procedure under which the Director General might act on the recommendation of the superintendent of a detention centre in making an order under that section. Whether the Director General would necessarily act on such a recommendation or the reasoning behind it is not a matter with which this Court is presently concerned.
56 This submission fails.
(iv) That the implementation of the decision should be restrained to prevent the commission of the tort of negligence
57 As I observed earlier, the parties agreed that a consideration of this ground is not restricted to the position in October 1996, and that, on the contrary, all the evidence that has been introduced, including the current opinions expressed in the witness box by Dr Nunn and by Dr Chenoweth, should be taken into account.
58 Ms Moen has submitted that if effect is indeed given to the decision to transfer JMR to Mt Penang this would involve breach of a duty of care owed by the defendants to the plaintiff such as would be likely to cause harm to him. Therefore it is submitted that the Court should intervene by the grant of an injunction to restrain the transfer.
59 I am satisfied that the defendants do owe the plaintiff a duty to exercise reasonable care for his safety.
60 Ms Moen referred to s 66 of the Supreme Court Act as justifying the grant of an injunction such as the plaintiff seeks. Section 66(1) provides:
"The court may, at any stage of proceedings, by interlocutory or other injunction, restrain any threatened or apprehended breach of contract or other injury."
61 That sub-section, it is submitted, is wide enough to confer a power to restrain any threatened tort that may cause injury.
62 Counsel was not able to take the Court to a case where s 66 has been used in an analogous way. However in Prisoners A to XX Inclusive v State of New South Wales (1994) 75 A Crim R 205 Dunford J had before him a case in which prisoners sought quia timet injunctions to restrain breach of duty by the Department of Corrective Services. Those injunctions were not granted for reasons which it is unnecessary to consider but Ms Moen drew encouragement from the following passage in his Honour's judgment at 213:
"Although Equity in its auxiliary jurisdiction has traditionally granted injunctions to restrain the commission of various torts, it has not previously granted injunctions to restrain the tort of negligence, but there appears to be no reason why it should not do so in an appropriate case, even without proof of damage: Supreme Court Act 1970 (NSW), s 66; Meagher, Gummow and Lehane, Equity Doctrines and Remedies (3rd ed, 1992), par 2120. The power to grant injunctions would appear, since the fusion of law and equity, to extend to granting injunctions in respect of all torts: Parry v Crooks (1981) 27 SASR 1, per King CJ.
Accordingly, if the plaintiffs are able to establish by evidence that the failure by the department to permit their use of condoms constitutes a breach of duty of care it owes to them, they may be entitled to injunctive relief."
63 It is clear that if relief of the type sought is available to restrain the commission of the tort of negligence the remedy would involve the exercise of a discretion, and a risk of harm to the plaintiff if proved should the relief be refused is not the only consideration that would arise in the exercise of such a discretion.
64 To consider this ground it is necessary to examine the relevant evidence more closely together with the statutory scheme under which the intended transfer would be implemented.
65 The plaintiff draws heavily on the evidence of Dr Nunn and Dr Chenoweth to support this ground. It is accurate to summarise the effect of the evidence of both doctors as being that each is of the opinion that the plaintiff's interests would be better served by his remaining at Worimi. Plainly, Dr Chenoweth has become firmer in that view with the passage of time, notwithstanding the expressions of opinion in the reports to which I have earlier referred.
66 Dr Chenoweth said in evidence that when he wrote seemingly approving the transfer, he did not consider the transfer to be in the plaintiff's best interest but regarded it as being inevitable.
67 Dr Chenoweth plainly considers that the plaintiff has been progressing favourably at Worimi and that he should remain there. I draw on his affidavit and oral evidence. Dealing with the need for prolonged attachments to therapists and caring figures, the doctor said at paragraph 4 of his affidavit of 19 August 1998:
"The general consensus is that prolonged attachment to therapists and caring figures reliably assists in the connection of thinking processes to the emotional storms of the dissociative state. References to this can be found in a recent publication The Treatment of Dissociative Disorders edited by Professor Alexander McFarlane and Professor Essaul Van deKolk August 1995. This treatment is sometimes augmented by medications which [JMR] now has no need of but which were essential in the early parts of his treatment. As he is improving no variation over the next two years seems necessary. Factors influencing the likelihood of such treatments succeeding include stability of attachment figures first and foremost. Successful treatment is defined in terms of the ability of the patient to be able to experience negative affect, negative feelings, talk about same and not 'space out' and respond in an appropriate manner, be it fight and flight, rage or panic. It is unlikely that a successful treatment goal will be achieved in only 2 to 5 years. The treatment will need to persist subsequently for many years. As he is currently making good progress I see no need to change the treatment regimen. My belief is that he is gaining ground as opposed to simply maintaining his condition."
68 Further, as to the importance of attachment bonds, the doctor said in paragraph 10:
"…acquisition of appropriate affect depends on attachment bonds made and the maintenance of such connections. Appropriate affect means the ability to respond appropriately at a feeling level to life's 'ups and downs'. [JMR] is some distance towards acquiring it. Most of us are still working on this task. He has come a great deal of distance. The link between the attachment bonds and the appropriate affect centres on the generation of trust. Trust firstly that his needs will be met by others who care for him and secondly trust that whatever happens, he himself will be all right at some central core level. [JMR's] security to be vulnerable in the presence of others and his capacity to trust others is still reasonably shaky."
69 Dr Chenoweth addressed the risk of re-offending in paragraph 18:
"The most important factors likely to ensure [JMR] will not re-offend when he is released are overwhelmingly to do with his ability to express appropriate affect. Experts such as Associate Professor Warwick Middleton (University of Queensland) state that the reclamation of appropriate affect is central to the management of people like [JMR]. If he has the ability to express himself positively and negatively in a mature and confident way he will not offend. His offences, however horrendous, arose out of a deep sense of powerlessness, provocation recurrent over a long period of time, immaturity and the dissociative disconnection of appropriate affect consequent upon horrendous abuse. At the moment I am reasonably confident that [JMR] will not re-offend upon his release. However, this could be set back if he is placed in a situation where he regresses to previous patterns of cognitive function. The most important factors likely to ensure that he will not re-offend when eventually released are overwhelmingly in the area of the acquisition of appropriate affect. The assessment of dangerousness in a person like [JMR] hinges on his ability to experience both positive and negative experiences, to be able to talk about them and respond appropriately. I am reasonably confident that he will not re-offend upon release as he has come some distance towards those goals. This is still somewhat a fragile situation and should not be jeopardised."
70 In paragraph 19 Dr Chenoweth considered the importance of safety and security in the plaintiff's environment:
"Dr Nunn, Dr Miller and myself refer to the maintenance of safety and security as the primary influence of [JMR's] psychological and emotional well being. This single factor is so important as it involves external limits being placed on his behaviour and the development through that of internal limit-setting. The length of time taken by this process is obviously variable. Some of the indicators that tell us when such a person no longer requires this attention to safety include the ability to handle negative and stressful situations appropriately, to discuss painful and emotionally evocative issues with the expression of appropriate feeling and the ability to get on with the normal milestones of adolescent maturation (ie academically, psychologically, emotionally and physically). If this sense of safety is missing, it would be highly likely that [JMR] would regress to familiar and previous ways of coping. It is not sufficient to ensure that no abuse actually occurs. Rather it is essential that his perception of safety is maintained, that his contact with his schooling, that a sense of academic achievement be preserved, that a sense of familiarity and trust within his milieu be maintained and that his part in the culture of the Worimi institution be consolidated."
71 Dr Chenoweth addressed the significance of the exposure to increased risk of sexual assault in paragraphs 24 and 25:
"For [JMR], exposure to an increased risk of sexual assault would be extremely detrimental to his emotional and psychological well-being. Even being strip-searched on return from leave currently causes him great anxiety. The containment, the layout and the high levels of surveillance within Worimi have contributed greatly to his own perception of safety from sexual assault. Whilst in Worimi he also has developed relationships with many of the staff members which has also added to his sense of safety. His perception has not been threatened at any point other than at the times of strip-search at return from leave. His responses at those times were those of great anxiety.
I think that Worimi can ensure [JMR's] recovery to the point of relative safety in the community. He can certainly achieve re-integration in an environment which will foster his health, self-respect and dignity. I am uncertain about what is available at Mt Penang. The photo that I have seen of the dormitory does not fill me with optimism."
72 In cross examination Dr Chenoweth acknowledged the need to attach weight to the views of those who have had responsibility for the plaintiff's control. The doctor was asked these questions and gave these answers (T12):
"Q. Can I suggest to you that the plaintiff had to move on and has had to continuously move on since he first came into care?
A. He has and is doing extraordinarily well. He has academically come ahead enormously, from a position as being treated as intellectually retarded, to the point where he is a long way down the track towards his year 12 and getting very very good results. A certain trust in himself is developing.
Q. What I want to suggest to you is that those who have responsibility for his care, custody and control, have done very well?
A. Yes, very very well.
Q. Their views should be given weight as to what is now appropriate with respect to readying the plaintiff for eventual release?
A. For me the issue was, does one treat him as a normal lad and move on in a normal kind of way, through the system, or are there special provisions made, given that psychiatrically, this lad is quite unusual, quite unusual in the degree of his disintegrated control of emotional life.
Q. I think my question to you doctor was, would you agree that those that have his care, custody and control, on their past record in looking after the boy, their views as to what should be done with respect to his future care, custody and control, should be given weight?
A. Yes, I agree."
73 Dr Nunn gave evidence (T24):
"I think it has to be said that that is the open question from a therapist point of view, can he be rehabilitated, and therefore the possibility of, of titrating the environment against his capacity to cope with that environment in a controlled, predictable and assessable way, is critical."
74 It is the belief of Dr Nunn, shared by Dr Chenoweth, that training in psychiatry is necessary to equip the decision-maker with the expertise to assess the reasons for a change in the plaintiff's environment.
75 Ms Moen submitted that the effect of the medical evidence is that a transfer to Mt Penang would expose the plaintiff to very significant triggers of stress including the fear of sexual assault and that deterioration in the plaintiff's mental condition is likely if the transfer takes place. I am not persuaded that the evidence warrants a finding of likelihood of harm attendant upon transfer. Certainly there would be a risk of harm and probably a greater risk than at Worimi. However that is not the only matter to be considered.
76 Ms Johnston gave evidence, taking into account all the evidence of Dr Chenoweth and Dr Nunn, that her opinion as to the desirability for transfer and for the plaintiff's removal from the "comfort zone" at Worimi remained unchanged. Ms Johnston sees advantages to the plaintiff in the environmental change at Mt Penang and in the change of support staff. Her evidence at T34-35 was as follows:
"Worimi general justice centre is a very small and close centre. It is no large open spaces. It has no grass. It has what we call a building perimeter. Therefore it has no fences around it and the building is closed in by other buildings, commercial buildings on a block side by side.
There is no open spaces. It is quite enclosed. It has limited group work and therapy rooms available. It does not have an appropriate visiting area for family contact. A lot of areas for young people would be in groups or contact with their visitors are thoroughfares to other areas of the centre.
Mt Penang, on the other hand, is a large, open centre. It also does not have a perimeter fence. It has got large pastures and it is a semi rural setting. It certainly has a range of programme areas, vocational training areas in addition to a much larger school area which is located on the periphery of the property, where it can be quite separate from the rest of the centre. It obviously has larger and more school facilities.
So there is vast differences there in the physical environment, support people. I think I agree with Dr Chenoweth that the connection that [JMR] has made with people in Worimi and the trust he has been able to develop and the safety that he has a sense of now is a very positive thing and it certainly has helped his development and his ability to respond to people in a way we would want him to respond.
The change in support people, it is - the issue is about providing him with the opportunity to do that again with a new group of people, what he has done at Worimi, and to learn that wherever he goes in his life he can establish that trust and have that sense of safety and sense of security. When he returns to the community he can have more faith. If he is not to move and remain at Worimi, yes, he will continue the trust. The trust will continue to build his sense of safety, will be there, but he will go directly from there into the wider community and not be with those whom he has established such trust and safety and go into the wider community.
He is not going to be under juvenile justice supervision when he released and I have concerns about that. I would like him to learn the experiences he has had at Worimi. He can have them in another setting, another juvenile justice setting, which means we are still around to help him through that and then he can go into the community, having known that he can find that security with a variety of people."
77 Later the witness responded to a question in cross examination at T48:
"Q. Dr Chenoweth and Dr Nunn's assessment of [JMR] are that significant strong positive trusting relationships are assisting his responses in a situation that he might ordinarily be violent in?
A. In this particular case I would then class significant positive relationships as a key indicator of his suitability for release on parole, in that we should be able to demonstrate his ability to form and maintain relationships with a wide range of people, in a wide range of settings. Because of the concerns about [JMR] initiating these relationships and having the sense of trust, there should be a graduated increase in the types of relationships that he has whilst still having support. The idea behind the move to Mount Penang is that the Juvenile Justice Centre staff will still be there in a supporting role to help him establish those relationships and to help him maintain them."
78 There is another consideration regarded as fundamental by Ms Johnston concerning this plaintiff and that is the need to assess before the plaintiff is admitted to parole the risk that he may re-offend. At T60 the witness was asked the following questions and gave the following answers:
"Q. Do you accept then, that the treatment of the plaintiff's dissociative problem, is fundamental to ensuring his safe release?
A. Regardless of the reason, the plaintiff is a serious violent offender, therefore the reason for offending and the offending need to be the focus of work whilst he is in custody and during the post release period under parole supervision and once supervision has ended. The graduated exposure to the community will serve both those purposes. The experience of a variety of positives and negatives are experiences, it has been reported, will help in the acquisition of appropriate affect."
79 Later at T77 the witness was asked these questions and gave these answers:
"Q. You heard Dr Nunn say yesterday that it was still an open question as to whether the plaintiff could be rehabilitated, do you recall that?
A. Yes, I do.
Q. What do you say as to the appropriateness or otherwise of Worimi as opposed to Mt Penang in making a judgment as to whether that had been achieved with the plaintiff at the time of the expiry of his non parole period?
A. It's been reported that the assessment of dangerousness and the likelihood of re-offending is based upon the plaintiff's ability to experience positive and negative experiences, be able to reflect on those and maybe the appropriate responses. The ability to assess that in Mt Penang is far greater because of the variety of those experiences. In the Worimi environment, at this point, because of familiarity in the environment, in the relationships, positive experiences outweigh negative experiences."
80 Ms Johnston made it plain in her evidence that she would have difficulty in making a recommendation as to parole for the plaintiff if he was to remain at Worimi, perceiving that he needs to show an ability to adjust in the wider environment than can be afforded at Mt Penang. The evidence of the second defendant to that effect has particular relevance against the provisions of the Children (Detention Centres) Act, 1987, one of the expressed objects of which is to ensure that "persons subject to control take their places in the community as soon as possible as persons who will observe the law" (s 4(1)(a)).
81 It is not practicable to review in this judgment the detail of all the evidence referable to the ground in point. I do not overlook evidence that the defendant will continue to fund the services of Dr Chenoweth as the plaintiff's treating doctor in the event of the transfer to Mt Penang going ahead. I am also mindful of the evidence as to the other services that will be available to the plaintiff at Mt Penang and the opportunities that will exist for the formation of valuable attachments. The plaintiff will have the opportunity of association with various categories of staff at Mt Penang, including the psychologists, the counsellors, the case workers, the nursing staff, the vocational service instructors, the chaplains, and the recreational staff. The opportunity will, of course, also exist for the plaintiff to form friendships with the other inmates who have been selected for detention at Karinya because of their positive attitudes towards rehabilitation and the other worthy attributes identified by Mr Gould in his affidavit.
82 I also bear in mind the evidence of Ms Johnston that the second defendant will provide for the transport of the grandparents to Mt Penang for regular visits, weekly to begin with, and later on a fortnightly basis on the understanding that the grandparents should be able to find assistance from friends or relatives to permit them to visit more frequently than fortnightly.
83 It seems to me that it is altogether reasonable and appropriate that the plaintiff should be exposed to the wider environment at Mt Penang before his suitability for parole can be more properly assessed. It seems to me further to be altogether reasonable and appropriate and important to assess the potential danger the plaintiff may pose to the community following his ultimate release against the background of his broader experience at Mt Penang.
84 I have concluded therefore that I am not satisfied that apprehended breach of the defendants' duty of care to the plaintiff in the event of the transfer proceeding has been established. It follows that this ground advanced by the plaintiff also fails.
85 Ms Moen finally advanced a submission, not in the points of claim, that if the Court was not persuaded that relief should be granted on one or other of the bases claimed, it should nevertheless grant an injunction to restrain the transfer until risk factors attendant upon such transfer have been adequately considered by a psychiatrist. Ms Anderson opposed consideration of such relief upon the ground that it had not been sought in the points of claim and that no opportunity was provided for the defendants to assess it since the ground for relief was expressed orally at the end of Ms Moen's submissions in reply.
86 I do not consider it would be appropriate to act on the submission last expressed by Ms Moen and of course Ms Johnston has considered the evidence of both psychiatrists upon whom the plaintiff relied. The defendants could not be compelled to act only on those expressions of psychiatric opinion against the transfer and yet not be able to take into account those expressions of psychiatric evidence that are available which offer some support for the transfer.
87 For the reasons I have stated the summons is dismissed. Costs are reserved.