McKechnie v Commissioner of Corrections

3 In a set of reasons for a decision that I recently published in this proceeding, I described the originating motion and other aspects of the procedural context in terms which are equally applicable to the present application,[1] as follows:

2. By originating motion dated 8 June 2023 and filed 19 July 2023, the plaintiff, Mr McKechnie, sought to challenge a decision described as follows:

Sentence Management (Corrections Victoria) made the decision to unnecessarily increase the plaintiff's security rating to what it is 8 June 2023. The precise date of the decision is not know[n] to the plaintiff.

3. The grounds relied upon were unparticularised, as follows:

The decision was made by the defendant failing to properly exercise its power by both taking irrelevant considerations into account in failing to take relevant considerations into account.

4. On 28 August 2023, the defendant (the Commissioner) filed a summons dated 25 August 2023 seeking orders pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) that the entirety of the plaintiff's claim indorsed on the originating motion filed 19 July 2023 be struck out. On 6 September 2023, the Court made programming orders in preparation for the hearing of the Commissioner's summons.

5. On 24 October 2023, Mr McKechnie filed a summons dated 10 October 2023 seeking orders that he be granted leave to amend his originating motion and that the defendant be required to provide reasons for the impugned decision the subject of his application for judicial review. On 1 November 2023, the Court made programming orders in preparation for the hearing of this summons.

6. I heard argument on both summonses on 6 December 2023. The Commissioner pointed out that a security rating forms part of a prisoner classification, and that prisoner classifications are not determined by the Commissioner. They are determined by the Secretary or by sentence management panels established under the Corrections Regulations 2019 (Regulations) from time to time. The Commissioner provided copies of relevant provisions of the Regulations to the plaintiff and to the Court.

7. I formed the view that Mr McKechnie's originating motion was against the wrong defendant. It also was devoid of any properly identified, particularised ground of review. The lack of any properly identified ground of review was not surprising, because Mr McKechnie did not know why any decision to increase his security rating had been made, or even precisely when it might have been made. Nevertheless, his originating motion was liable to be struck out, as the Commissioner submitted.

8. Although, by his summons, Mr McKechnie was applying for leave to amend his originating motion, he did not provide a copy of any particular proposed amended originating motion for the consideration of the Court. Again, this was not surprising, given the plaintiff's ignorance about the decision he suspected had been made to increase his security rating.

9. I decided to strike out the current originating motion but to allow the plaintiff an opportunity to replead his case, and to do so against the proper defendant or defendants. Rather than giving him open-ended leave to replead, I made orders for a process by which he would prepare a proposed amended originating motion and serve it on any proposed defendants, and in the event of a dispute about that document or joinder, that issue would come back to court to be determined by a judicial officer. I did not make any order compelling the provision of reasons by the current defendant, the Commissioner.

10. No leave has yet been granted for the plaintiff to rely on any particular amended originating motion, or to join any new defendants.

11. On 12 January 2024, the plaintiff sent correspondence to the Court dated 11 January 2024 attaching two documents. The first was a purported or proposed 'amended originating motion for judicial review' naming the 'Secretary for the Department of Justice' and the 'Sentence Management Panel' as defendants. This document identified the decision under review as follows.

8 June 2023 the plaintiff had a specific security rating. The impugned decision is a decision that defendant made to change the plaintiff security rating to this rating.

Note, that this means that impugned decision was made prior to or on 8 June 2023 and occurred at the date, working backwards from 8 June 2023, when the plaintiff's security rating is first found to be lower [than] what it is understood by the defendant to have been 8 June 2023.

12. The document sets out only the following as the grounds relied upon:

The decision was made by the defendant failing to properly exercise its power by both taking relevant considerations into account and failing to take relevant considerations into account.

13. The second document is a proposed, unsealed summons dated 11 January 2024, on which the title of this proceeding has purportedly been amended to name the Secretary and the Sentence Management Panel as defendants. The orders sought in the unsealed summons are:

1. the defendants provide to the plaintiff the reasons for the defendants decision (the impugned decision) as described in the amended originating motion document date 11 January 2024.

2. the plaintiff be granted leave to amend the amended originating motion Document date 12 January 2024 after the reasons have been provided as per item 1.

14. On 13 March 2024, there was a directions hearing before Judicial Registrar McCann addressing outstanding summonses and procedural issues in this proceeding. In the recitals of the order subsequently made by Judicial Registrar McCann, she noted that the plaintiff had filed an amended originating motion and summons seeking reasons for the decision on 11 January 2024, referring to the latter as the 'reasons summons'. The recitals went on to relate the following contextual matters of relevance to my task:

At the directions hearing on 13 March 2024 counsel for the defendant informed the court that letters from the VGSO to the plaintiff dated 9 January 2024 and 24 January 2024 contained their substantive response to the request for reasons, and that these were reproduced in a letter dated 1 March 2024. The plaintiff informed the court that he had not received these letters. Counsel for the defendant indicated that these letter could be resupplied to the plaintiff.

It was the position of both parties that the reasons summons should be resolved prior to progressing the filing of an amended originating motion.

15. Judicial Registrar McCann made orders facilitating the hearing and determination of the reasons summons and the filing of a proposed further amended originating motion. Both the reasons summons and another summons were listed for hearing before her on 24 April 2024.

16. In the event, it was I who conducted the hearing on 24 April 2024. I partially heard the related summons on that day, made directions for further submissions, and later determined it.[2]

17. Also during the hearing on 24 April 2024, I partially heard argument on the reasons summons ... .

18. At the hearing on 24 April 2024, I proposed directions for further written submissions on the reasons summons. The parties agreed that I should determine the reasons summons on the papers after having received the further submissions. ...

4 In my recent reasons, I also described relevant aspects of the statutory context.[3]

5 My conclusion on the 'reasons summons' (paragraph 1 of Mr McKechnie's unsealed summons) was that I could not grant that application. My recent reasons for decision explain how I reached that decision.

6 In giving my reasons, at [20], I emphasised that I was only considering paragraph 1 of the unsealed summons dated 11 January 2024, and was not addressing the question of whether leave should be granted for Mr McKechnie to rely on a further amended originating motion, or what form any such document might take. I said that that would be dealt with as a separate matter once Mr McKechnie had had 'an opportunity to consider' those reasons.

7 In these reasons, I now address Mr McKechnie's application for leave to rely on his proposed amended originating motion dated 11 January 2024.

8 He foreshadowed making such an application following the receipt of reasons for the impugned decision in paragraph 2 of his unsealed summons dated 11 January 2024. As reasons have not been provided pursuant to paragraph 1 of that unsealed summons, the application in paragraph 2 does not arise. And given that the summons was not sealed, there is no need for me to determine it in any event.

9 Nevertheless, as Mr McKechnie made clear during an interlocutory hearing in this proceeding on 27 June 2024,[4] Mr McKechnie applies for leave to rely on his proposed amended originating motion, as formulated by him on 11 January 2024. I treat this as an oral application by Mr McKechnie for leave to amend the originating motion in that form.[5]

10 A key problem Mr McKechnie faces is that he does not know why the increase in his security rating occurred. That means he cannot form an informed understanding as to whether there would be any utility in seeking to have the decision quashed and cannot frame any appropriate ground of review.

11 Conscious of these difficulties, at the end of my recent reasons for judgment I suggested a possible solution that may be open to him in the form of an application for non-party discovery, saying as follows:

58. For the above reasons, the order Mr McKechnie seeks in paragraph 1 of the reasons summons is not available. I cannot grant it.

59. Nevertheless, the potential impact of a decision about a prisoner's security rating is a serious matter. Mr McKechnie is clearly aggrieved by the decision to increase his security rating that, based on the available indirect evidence, appears to have been made on 31 January 2023. It is unclear whether Mr McKechnie was directly notified of it at the time, and if so whether he received a written record of his new classification and security rating, and any reason for the new security rating.

60. Although there is no guarantee that a record of any such reason was included in the new classification at that time, reg 26(2)(a) indicates that there 'may' have been a reason recorded.

61. Having regard to the terms of reg 26(2)(a) of the Regulations and the indirect evidence of the decision made on 31 January 2023, it may be possible for Mr McKechnie to bring an application by summons served on the Secretary for non-party discovery of any such record pursuant to rr 32.07 and 32.08(2) of the Rules.

12 I wanted to give Mr McKechnie an opportunity to consider this before taking further steps in this proceeding.

13 Shortly after delivering those reasons for decision, on 27 June 2024, I held a hearing in this proceeding at which I read out to Mr McKechnie key aspects of my reasons for decision. As I said to him, I hoped he would reflect on my reasons for decision of 27 June 2024 before deciding on his next course of action. As I explained to Mr McKechnie at that hearing, I wished him to understand that he may be able to seek non-party discovery. At one point, he seemed receptive to taking the opportunity to read the reasons before making a decision. However, he said he did not think he would seek non-party discovery. Toward the end of the hearing, he made it clear that he wished to receive a decision as soon as possible in relation to his application to rely on his proposed amended originating motion.

14 As I mentioned to Mr McKechnie at the hearing on 27 June 2024, the problem with his proposed amended originating motion is that it merely replaces references to the Commissioner of Corrections with references to the Secretary of the Department of Justice and Community Safety and the 'Sentence Management Panel'. It is devoid of any proper ground for review.

15 A grant of leave would also amount to the addition of at least one new defendant, the Secretary of the Department of Justice and Community Safety, instead of the current defendant.

16 And, depending on whether it is permissible to add one or more further defendants under the name 'sentence management panel', there may be further additional defendants joined to the proceeding if I grant leave to Mr McKechnie to rely on his proposed amended originating motion.

17 I have a discretion under Order 36 of the Rules to permit an amendment, and powers under Order 9 to permit joinder of new parties.

18 I should be guided by an assessment of where justice lies in exercising those discretions. I should also be guided by the overarching purpose in s 7 of the Civil Procedure Act 2010 and facilitation of amendments and joinders that would enable the real questions of controversy to be decided.

19 In all the circumstances, I do not consider that justice would be served, or the real questions in dispute identified, by allowing Mr McKechnie to rely on his proposed amended originating motion.

20 On the contrary, granting leave to Mr McKechnie to file and serve his proposed amended originating motion would be productive of confusion and would identify no issue that can confidently be described as a real question of controversy.

21 This is because the document contains nothing that could fairly be described as a proper ground of review of the decision raising Mr McKechnie's security rating. It merely contains a generic assertion that the decision to increase Mr McKechnie's security rating was 'made by the defendant failing to properly exercise its power by both taking irrelevant considerations into account in failing to take relevant considerations into account'. The document provides no indication as to what those allegedly relevant considerations and allegedly irrelevant considerations were. The document does not provide a proper basis on which to join the proposed new defendants.

22 For these reasons alone, I do not regard it as appropriate to grant Mr McKechnie leave to amend his originating motion in the form he proposes.

23 There is, arguably at least, another defect in Mr McKechnie's proposed amended originating motion. One of the new defendants he purports to join as a party to the proceeding by his proposed amended originating motion is the 'sentence management panel'. A proposed party to a proceeding must be a legal person. Subject to any decided authorities on this point, I doubt whether a sentence management panel is a legal person. Sub-regulation 27(3) of the Corrections Regulations 2019 relevantly provides that 'A sentence management panel consists of members appointed by the Secretary', without constituting such panels as legal persons. Most likely, the proper defendants Mr McKechnie seeks to join are the individuals who constituted any relevant sentence management panel and who decided to increase his security rating. At present, it seems likely that Mr McKechnie does not know the identities of the people who made up any relevant 'sentence management panel' and who made this decision. However, the parties did not address this issue of the legal personality of a 'sentence management panel'. I was not taken to any decided case on point. So, in deciding the present application, I place no reliance on this potential second defect.

24 I refuse leave to Mr McKechnie to rely on his proposed amended originating motion. I will make an order to that effect.

25 Any submissions on costs may be made in writing, consisting of no more than two pages, within 14 days of publication of these reasons for judgment. In the absence of any submissions, r 63.20 of the Rules will apply.

[1] McKechnie v Commissioner of Corrections (Reasons Summons) [2024] VSC 370, [2]-[18].

[2] The footnote stated: 'See McKechnie v Evans (Communications Summonses) [2024] VSC 295 (5 June 2024)'.

[3] See McKechnie v Commissioner of Corrections (Reasons Summons) [2024] VSC 370, [22]-[25].

[4] See paragraph 13 below.

[5] Mr McKechnie has also sought to formalise his reformulated application to rely on the proposed amended originating motion of 11 January 2024. For example, he provided an unsealed summons dated 16 June 2024 setting out this application.