Knight v Spadano & Ors [2003] VSCA 228

10. It is necessary to describe briefly the applicant's alleged offending conduct and the disposition of the charges resulting therefrom in the context of the several proceedings. I do so in the order in which they were dealt with by his Honour. In proceeding No.4003 of 2003 the applicant sought a declaration that the seizure and opening of his legal mail by prison officers contravened the Corrections Act 1986. He also sought relief in the nature of mandamus directing the defendants to inspect such mail only in accordance with the procedure laid down in that Act. Proceeding No.7945 of 2002 arose from the finding by the authorities, on 21 August 2002, of two lengths of metal or nails in the applicant's cell. Each item had been sharpened and was concealed in a pen that belonged to him. As a result the applicant was charged with a number of offences and, after a hearing on 19 September 2002, he was found guilty and was sentenced to seven days' loss of privileges.

13. The complaint in proceeding No.4002 of 2003 arose out of the finding by the authorities on 22 November 2002, in the applicant's cell, of a pair of scissors secreted in his socks. After a hearing the applicant was found to have committed a prison offence and was sentenced to seven days' loss of privileges.

16. Proceeding No.4596 of 2002 related to three separate incidents. The first was the provision by the applicant to another prisoner, on 1 May 2001, of two computer disks for removal from Barwon Prison. The second was the finding, on 21 July 2001, in the applicant's cell of a sharpened prison-issue knife secreted in a magazine. The third incident concerned possession by the applicant of a radio issued in and to another unit that was found in his cell on 7 August 2001. The charges arising from the three incidents were heard on 9 May, 4 August and 15 August respectively. The applicant was found to have committed the offences and was disciplined accordingly.

19. In the last-mentioned three proceedings the applicant essentially alleged that no offence was committed by him, that he was denied procedural fairness and that in two of the cases there was failure to produce the item in question at the disciplinary hearings. It was also said in one of the proceedings that the procedure for disciplinary hearings set out in the Corrections Regulations 1998 was not followed and that one of the charge sheets was a nullity. There were other errors in the disciplinary process that were alleged by the applicant but they need not be described here.

22. Proceeding No.8621 of 2002 related to the purported classification of the applicant as a long-term placement in a high security unit but, for reasons which will become apparent, it is not necessary to deal with the circumstances giving rise to this action.

25. His Honour heard evidence and submissions in relation to the applications before him over eight sitting days, at the end of which he reserved his decision. Approximately three weeks later the learned judge gave comprehensive reasons for refusing the relief sought and for ordering costs against the applicant. It should be said for completeness that in the hearings before his Honour the applicant was unrepresented other than in relation to proceeding No.8621 of 2002. In large part, the applicant's claims before the judge involved the resolution of factual issues and, to that end, his Honour heard evidence from a number of witnesses who were involved in the laying of the charges against the applicant and in the prosecution of them. The evidence was concerned essentially with the applicant's alleged misconduct and the manner in which the various hearings were conducted. Thus, the credibility and reliability of the witnesses were central to the resolution of most, if not all, of the factual disputes. The applicant's claims also raised questions concerning the construction and operation of the legislation and, given the nature of the relief sought, the ambit of his Honour's judicial discretion. The learned judge accepted the evidence given by or on behalf of the various respondents and found that they had not relevantly breached any of the applicable legislation or common law principles in their handling of the charges, at least not to the extent of vitiating the findings and disciplinary decisions. For example, in relation to the complaint about the opening of the applicant's mail, his Honour found that although a few letters were inadvertently opened by the prison authorities during part of the high-volume Christmas period this had been fully disclosed to the applicant, and there was no evidence that his legal mail was generally opened by the prison officers.

28. As I have said, being dissatisfied with his Honour's decisions, the applicant filed and served a notice of appeal in each proceeding. It was common ground before us that this process was instituted outside the time limit prescribed by r.64.03(1), hence the applications on Summons for orders extending this period. At the outset of the hearing before us the Court raised with the parties the question whether his Honour's decisions are interlocutory for the purpose of s.17A(4)(b) of the Supreme Court Act 1986. This matter was raised because, if the decisions are interlocutory, the applicant requires leave to bring the appeals otherwise they cannot be entertained by the Court.[1] Mr. Sweeney for the applicant first contended that the decisions are final but, after some discussions, submitted that if the Court considered that they are interlocutory, he should be taken as having applied ore tenus for an extension of time to apply for leave to appeal and, assuming that application was granted, for leave to prosecute the appeals.

31. In my view the decisions in this case are interlocutory and, therefore, as I have said, if the applicant is to prosecute appeals against them he must first obtain an extension of time for leave to appeal and, if that is granted, leave to appeal. It seems plain enough that the usual test for determining whether a decision is final or interlocutory is whether its legal, as distinct from its practical, effect is to determine finally the rights of the parties in the principal cause between them.[2] Thus, for example, a refusal to set aside a default judgment has been held to be an interlocutory decision. In such a case the legal effect of the decision does not determine the parties' rights in the principal cause between them since the disappointed party can (at least in theory) apply again to have the default order set aside.[3] Similarly, in Hall the majority held that a refusal of an application for an extension of time within which to sue the defendant was an interlocutory decision notwithstanding that the claim did not arise out of an existing proceeding. Taylor, J. considered[4] that the order in that case was interlocutory notwithstanding that it was made in a proceeding preliminary to the bringing of the principal cause between the parties and notwithstanding that in fact, but not in law, it deprived the applicant of the right to bring the substantive proceeding. Its legal effect, however, was not such as to prevent the applicant from making a further application for an extension of time, albeit on new facts. The situation here, however, is arguably different in a material way in that in the present case, unlike the position in the cases to which I have referred, the impugned decisions are not ancillary to any existing or anticipated proceedings between the parties and it might be said that a refusal to grant the relief sought finally determined the rights of the applicant for prerogative relief. But it is plain that the decisions of his Honour do not deprive the applicant of the right to bring like applications albeit on different material. It seems, therefore, that the decisions are not final. But it should be said that, whether an order dismissing an application for relief in the nature of a prerogative writ is interlocutory or final where there are no relevantly related proceedings between the parties, seems not to have been settled in this jurisdiction. Thus, for example, in Brygel v. O'Keefe[5] the learned President expressed doubt whether such an order was interlocutory although, in my view, his Honour did so by way of obiter.[6] On the other hand, in Monash University v. Berg[7] the Full Court[8], in dealing with an application for leave to appeal against the decision of a judge who refused the appellant relief sought under the Administrative Law Act 1978 (essentially to set aside the arbitrators' award) said that a decision to refuse relief in the nature of certiorari was interlocutory. But in that case the relief was sought in relation to an arbitration between the parties. Nevertheless, like Batt, J.A. in Kassionis, I consider that the Full Court correctly stated the position on this issue even where, as here, there are no ancillary proceedings between the parties.

34. One of the authorities cited by their Honours in support of their view was Coles v. Wood[9] where relief was sought in the nature of certiorari but, like here, there was no associated proceeding between the parties. In that case the appellant sought to appeal against a dismissal of a summons that sought orders quashing search warrants issued by one of the defendants. The Court of Appeal concluded that an order dismissing an application for relief in the nature of certiorari is interlocutory since it does not determine any rights as between the parties. Hutley, J.A.[10] explained[11]: "An order dismissing proceedings to quash a search warrant does not determine any rights; it does not preclude another application for the same order, nor does it stand in the way of any other kind of challenge to the validity of the warrant." A little later his Honour said: "Orders in the nature of the writ of certiorari are discretionary in the sense that a court is entitled according to proper principles to consider whether there is any utility in making the order. As an order can be refused on the grounds of utility and utility can easily change, any order simply dismissing an application for such a writ is necessarily interlocutory." In my respectful view, what their Honours said applies to this case.

37. Here, as I have said, his Honour's orders did not, from a legal perspective, finally determine the applicant's rights in relation to the decisions about which he complains in the sense that they did not operate to prevent him from making further applications for like relief (on fresh material). Thus I consider that his Honour's decisions were interlocutory so that the applicant requires leave to appeal against the impugned orders. But as I have said, given that he is out of time for making such applications, he will first require an order extending the time within which to seek such leave. In my view, if mere delay was the only issue on such an application, given that the period that has elapsed since the decisions were handed down is short and since it was not suggested by the respondents that any relevant prejudice would be occasioned if the time for seeking leave to appeal were extended, I would favour making such an order. But I consider that it would be futile to order such an extension of time because, for the reasons I give below, I think that the applicant has little or no prospect of establishing that he is entitled to leave to appeal in respect of any of the proceedings other than proceeding 8621 of 2002. In respect of the latter proceeding the respondents[12] have effectively conceded that leave to appeal should be granted so that in that case I would extend the time for leave to appeal against his Honour's decision in that proceeding and would grant the applicant leave to appeal against it.

40. I consider, however, that the remaining decisions are not attended with relevant doubt and, therefore, the applicant is not entitled to leave to appeal against them. I mention for completeness that if I am wrong in my view that his Honour's orders were interlocutory, I consider that, for reasons that will become apparent, it would be futile to grant the extension of time to appeal against them, other than in respect of proceeding 8621 of 2002, since his prospects of success on appeal would be hopeless or virtually so.[13]

43. In general terms, much of the applicant's attack on his Honour's decisions involved challenges to findings of fact. In my view, however, it is quite apparent from his Honour's reasons that the conclusions reached by him on such issues were well open to him. In particular, I cannot accept the applicant's claim that his Honour, in making such findings, misused the benefit of seeing and hearing the witnesses give their evidence. In so far as the applicant claims that his Honour's discretion miscarried, nothing has been put forward to show that his Honour arguably erred in principle when exercising his discretion in refusing the relief sought, particularly bearing in mind that in many instances the relevant "penalties" had been served by the applicant by the time the matters came before his Honour.

46. I turn to consider more specifically each of the applications. In relation to the application in proceeding No. 4003 of 2003, I think that it was well open to his Honour to find, as I have said, that the letters were opened in innocent error during the busy Christmas period. His Honour found that the opening of the applicant's letters was fully disclosed to him and that he was not denied access to the documents. In my view, nothing has been said to us to show that it is reasonably arguable that his Honour erred in his factual conclusions in that proceeding or in the exercise of his discretion not to grant the relief sought.

49. I now turn to the remaining three applications. Each notice of appeal on which the applicant proposes to rely contains 15 substantially identical grounds, and it is convenient to deal by way of example with the notice of appeal in proceeding No.4596 of 2002. It was said under cover of grounds 1, 2, 3, 7 and 8 that his Honour's rejection of the claim that natural justice was denied to the applicant cannot stand because it was inconsistent with the judge's acceptance that the respondent had committed a number of breaches of legislation and the common law relating to the provision of a fair hearing. But I can see no error in his Honour's conclusions that such breaches were technical in nature, did not cause the charges to be a nullity and did not relevantly prejudice the applicant. In the circumstances, there is no relevant error in his Honour's decision as is alleged in the above grounds.

52. Ground 4 is based on the assertion that the applicant was found guilty of the charge notwithstanding that evidence was taken in his absence. In the context of this proceeding the complaint relates to the hearing of a charge that arose out of the finding of a sharpened prison knife in the applicant's cell. The criticism was that the knife was not produced at the hearing. It has not been shown however, that the applicant was prejudiced by the course which was adopted and I can find no arguable error in his Honour's decision, in the circumstances, that the non-production of the knife did not vitiate the disciplinary proceeding. For like reasons, I consider that ground 6 must fail.

55. Ground 9 complains that his Honour wrongly refused to make a declaration. Nothing has been said that persuades me that it is arguable that the judge's discretion miscarried in that regard. In my view, his Honour had ample reasons for exercising his discretion in the way he did.

58. Ground 11 is, in my view, misconceived. His Honour did not hold that the applicant was not entitled to be heard on penalty. What his Honour said was that the applicant was given a full opportunity to make an explanation in mitigation and where, as here, there was a plea of not guilty, there was no requirement in the legislation to provide him with an opportunity to make an explanation or a plea between the finding of guilt and the imposition of the penalty. I also consider that, contrary to the assertion in ground 12, there was no arguable error in his Honour's decision that it was competent for the authorities to impose consecutive penalties. Ground 15 is incomprehensible, and in my view, there is nothing in ground 13.

61. This leaves for consideration the application for an extension of time for leave to appeal against the costs order that was made against the applicant. Counsel contended that it is only in extreme cases that a costs order should be made against a prisoner who brings proceedings against prison authorities in relation to their conduct towards him or her. It is common ground that a like argument was put to his Honour to support the claim that the usual rule that costs follow the event should not be applied. His Honour considered the argument and rejected it. There is much force in Mr Sweeney's other point that a costs order in circumstances such as the present is meaningless, but the question really is whether his Honour's discretion in that regard miscarried. In my view, there is nothing to show that it is even arguable that his Honour erred in the exercise of his discretion. In short, I consider that this discretionary decision is not attended with sufficient doubt and I would refuse leave to appeal. Consequently, in my view, the application for an extension of time in which to seek leave to appeal against the costs order should also be denied.

64. It follows that I would dismiss all the applicant's summonses other than the summons relating to proceeding No.8621 of 2002. In respect of that action, as I have said, I would grant the appellant an extension of time to seek leave to appeal and the necessary leave

74. The order of the Court is that each of the summonses in proceedings numbered 4003 of 2003, 7945 of 2002, 4002 of 2003 and 4596 of 2002 is dismissed. It is further ordered that the time for leave to appeal in proceeding No. 8621 of 2002 be extended to 4.00 p.m., 5 December 2003 and that the applicant be granted leave to appeal against his Honour's decisions in that proceeding. There will be no order as to costs.

[1] Little v. State of Victoria [1998] 4 V.R. 596 at 602 per Callaway, J.A. with whom Buchanan, J.A. agreed.

[2] See, for example, Re Luck (2003) 203 A.L.R.1 at 2 per McHugh A.C.J., Gummow and Heydon, J.J.; Hall v. Nominal Defendant [1966] HCA 36; (1996) 117 C.L.R. 423 at 440-441 per Taylor, J. and at 433 per Windeyer, J.; Carr v. Finance Corporation of Australia Ltd. [No.1] (1981) 147 C.L.R. at 248 per Gibbs, C.J. and Little at 598 per Callaway, J.A.

[3] See, for example, Carr at 248 per Gibbs, C.J. and at 254 per Mason, J.; Christie Pty. Ltd. v. Baker [1996] VicRp 89; [1996] 2 V.R. 582 at 595 per Brooking, J.A.

[5] Unreported, Court of Appeal, 17 April 1997 at p.7.

[6] See Kassionis v. Magistrates' Court of Victoria [2002] VSCA 73 at [3] per Batt, J.A.

[7] [1984] VicRp 30; [1984] V.R. 383.

[9] [1981] 1 N.S.W.L.R. 723.

[10] With whom Moffitt, P. and Samuels, J.A. agreed.

[12] The Minister for Corrections, the Correctional Services Commissioner and the Director of Sentence Management at Barwon Prison.

[13] See Jackamarra v. Krakouer [1998] HCA 27; (1999) 195 C.L.R. 516 at 521 per Brennan, C.J. and McHugh, J. and at 542-543 per Kirby, J., Apidopoulos v. The Sheriff of Victoria [2000] VSCA 104; (2000) 1 V.R. 476 at 480 per Winneke, P. delivering the judgment of the Court, the members of which included Phillips and Buchanan, JJ.A., and Flannery v. Goulburn Murray Water Authority, unreported, Court of Appeal, 27 November 1998 per Tadgell, J.A. at 6, with whom Batt, J.A. agreed.