RELEVANT PRINCIPLES
48 The State accepted that every prisoner in Victoria has a right of access to the courts, as part of their right to a fair trial.
49 The State also accepted that, in relation to matters in which it has jurisdiction, this Court has power (either under s 23 of the Federal Court of Australia Act 1976 (Cth), or as part of its inherent jurisdiction) to make orders directed to ensuring that a person has a fair trial and is not prevented from accessing the Court. G4S similarly accepted that this Court has the power to make orders to facilitate the proper administration of justice and for case management.
50 However, the conferral upon this Court by statute of the power to grant interlocutory injunctions is not at large. An injunction is a curial remedy. On an application for an injunction, a court is not empowered to make an order other than in protection of some legal or equitable right: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [59]-[60] (Gaudron J), [105] (Gummow and Hayne JJ).
51 In Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113 at [66], the New South Wales Court of Appeal considered a claim by a prisoner for, amongst other things, access to a printer, scanner and personal laptop to enable him to prepare for his pending trial in the District Court of New South Wales. A judge of the Supreme Court of New South Wales made orders that the prisoner be given access to this equipment. The New South Wales Court of Appeal allowed an appeal against those orders.
52 Basten JA (with whom Beazley P agreed) relevantly stated (at [68]-[69]) that:
A "right to a fair trial" may overlap with a "right of access to the courts", but … neither identifies a single "right": rather, each is a label describing a range of elements understood to be inherent requirements of a common law based system for the administration of civil and criminal justice.
Most rights are not absolute; express statutory or constitutional statements of human rights are generally expressed to be subject to 'reasonable limits'. Any rights in issue here are qualified in substantial respects, particularly by the need for enforcement of security in a custodial environment.
53 The principles in relation to the common law right of access to a court are well established.
54 Every prisoner in Victoria has a right of access to the courts, as part of their right to a fair trial. The leading case is Rich v Groningen (1987) 95 A Crim R 272. In that case, Gillard J (at 287) stated:
I have no doubt that the plaintiff as a prisoner enjoys the right of every citizen in this State to unimpeded access to the courts, subject to the provisions of any legislation in this state which applies to him.
55 The above principle has been accepted in a number of other Victorian authorities: Knight v Wise [2011] VSC 313 at [32] (Hollingworth J); Brazel v Westin [2013] VSC 527 at [21] (Kaye J) (Brazel); Knight v Wise [2014] VSC 76 at [25] (T Forrest J).
56 Relatedly, s 47(1) of the Corrections Act 1986 (Vic) enumerates a series of specific rights of each prisoner in Victoria. Section 47(2) provides that "a prisoner's rights under this section are additional to, and do not affect any other rights which a prisoner has … at common law."
57 The principles relevant to an application of the kind made by the applicant were usefully summarised by Kaye J in Brazel at [21]:
(1) Each individual has an established common law right to unimpeded access to the courts of the State, as part of the basic right to a fair trial.
(2) A prisoner, such as the plaintiff, has the same civil rights and privileges as any other citizen, including the right of access to the courts. That right inheres in each individual in both civil and criminal litigation.
(3) That right may be infringed where, in the case of a prisoner, the prison authorities take steps which effectively prevent the prisoner properly presenting his or her case to court.
(4) The court will only intervene to protect that right if the action, or inaction, of the prison authority, would have the effect of preventing a person from effectively accessing the court.
58 As to the final point, the authorities are clear that inconvenience to a prisoner is not sufficient to justify intervention. Rather, what is relevant is whether action or inaction by a prison authority has prevented a prisoner from having effective access to a court. So, for example, in R v Rich (No 2) [2008] VSC 141, Lasry J (at [66]) stated:
In my opinion it would obviously be very convenient for the accused to have a laptop computer but that is not the test. The question is whether such a facility is integral to the fair trial of the accused or, put in other words, whether without a laptop computer his trial will be unfair such as to justify a stay. (Emphasis added.)
59 In Knight v Wise [2014] VSC 76, T Forrest J considered whether denial of the applicant to access to an in-cell computer breached his common law right to unimpeded access. T Forrest J relevantly held (at [27], [29]):
The same or similar issues concerning the common law right of access to the courts have arisen in successive applications for leave to commence proceedings brought by Mr Knight. None of these proceedings has determined this issue in Mr Knight's favour.
…
Doubtless it would be easier for Mr Knight to meet his various court deadlines if he had access to an in-cell computer. I am not, however, satisfied the evidence could sustain a finding that there has been or could be a breach of Mr Knight's common law right of unimpeded access to the courts. Despite the large number of proceedings or proposed proceedings to which he is currently a party Mr Knight continues to file numerous originating documents, legal submissions and affidavits. These are almost always long and detailed and sometimes quite sophisticated. Mr Knight's correspondence with various court officials, or at least that part of it that was on the court file, has been constant.
60 A further principle that emerges from the authorities is that the Court must be careful not to enter into a review of the merits of the prison authority's decisions.
61 In Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506, Kyrou J (at [50]) stated:
There are sound constitutional and practical reasons why this Court cannot substitute its own view for the view of Corrections Victoria. Under our Constitution, it is the executive - acting through Corrections Victoria - rather than the judiciary that administers the laws relating to prisoners. As a result, Corrections Victoria is far more knowledgeable and experienced than this Court can ever be about issues concerning the management of prisoners - including education, welfare and security - that inform the framework within which decisions affecting prisoners are made.
62 In Fyfe v South Australia [2000] SASC 84, Martin J (at [18]) stated:
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.
63 Both of the above decisions were quoted with approval by Kaye J in Brazel at [22]-[23].
64 Although the above comments were made in the context of applications for judicial review of a decision of a prison authority, in my opinion, they are relevant to the Court's consideration of orders or directions that might be necessary to ensure that a prisoner has access to the courts.