Minogue v Dougherty [2017] VSC 724

CHARTER OF HUMAN RIGHTS - Whether prison mail officer a public authority - Governor offered to be substituted for prison mail officer as defendant - Whether prison officer a proper contradictor - Statutory responsibility for prisoner mail lies with governor - Relief refused on discretionary grounds where governor accepted responsibility - Relief granted where decision complete without proper consideration before governor attempted to assume responsibility - Charter of Human Rights and Responsibilities Act 2006 ss 4, 7, 13, 15(2), 38; Corrections Act 1986 ss 12, 47(1)(n) and 47D.

JUDICIAL REVIEW - Claims for declaratory relief - Whether seizure of pen pal letter unlawful - Whether refusal to photocopy A3 document constituted censorship of mail or unlawful application of Governor's rights in respect of prisoner mail - Whether non-delivery of a letter pending consideration of the mail procedure by the governor was unlawful - Relief refused - Charter of Human Rights and Responsibilities Act 2006 ss 13, 15(2) - Corrections Act 1986 ss 47(1)(n) and 47D.

JUDICIAL REVIEW - Claim for declaratory relief - Concession rightly made by defendant that prison mail officer returning letter and book to sender was unlawful - Declaratory relief granted - Corrections Act 1986 ss 47(1)(n) and 47D.

PRACTICE AND PROCEDURE - Application for extension of time to institute proceeding for judicial review - Special circumstances - Extension of time granted - Supreme Court (General Civil Procedure) Rules 2015 r 56.02(1).

PRACTICE AND PROCEDURE - Application for preliminary discovery - Application refused - Supreme Court (General Civil Procedure) Rules 2015 r 32.03, 32.05.

STATUTORY INTERPRETATION - Whether work instruction to a prison officer was delegation by governor - No delegation - Failure to proceed against proper defendant - Corrections Act 1986 s 24.

1 This judgment deals with four related proceedings that were managed and heard together. Broadly speaking they concern the plaintiff's right, he being a prisoner serving a sentence at Barwon Prison, to receive and send mail. I will first set out my findings as to what occurred in each proceeding. Each of the identified defendants is a Corrections Victoria employee.

2 On 17 August 2016, Prison Officer Dougherty was a mail officer processing incoming mail at the direction of the Prison Governor to whom she reported via her supervisor and an Operations Manager. The manner in which mail was processed was set out in a policy direction issued by Deputy Commissioner Wise, entitled Deputy Commissioner's Instruction, DCI 4.07 - Prisoner Communications (DCI). In addition, the Governor, Mr Brett Ryan issued a Local Operating Procedure on Prisoner Communications (LOP) that provided the mail officer with more detailed guidance.

3 A letter addressed to the plaintiff was seized on the basis that it was an unsolicited pen pal letter. An entry to that effect was made in a register. The plaintiff discovered some months later that a letter had been seized on this basis. The letter was placed in a property store held for the plaintiff. Intending to make a complaint to the Ombudsman, the plaintiff sought a copy of the letter but Mr Ryan refused his request, noting that if he complained, the Ombudsman might request a copy of the letter.

4 Mr Ryan described the letter as unsolicited but addressed to the plaintiff (describing him as a high profile prisoner). Although Mr Ryan was satisfied that the plaintiff was capable of assessing his own interests, the motives of his correspondent were unclear and might have been unlawful. Mr Ryan adopted the prison officer's decision and took responsibility for it.

5 Mr Ryan explained in his affidavit his reasons for confirming the decision of the mail officer. The letter was, he said, a 'strange letter, commenting on and questioning the plaintiff about a wide range of prison and prisoner related issues and general conversational topics'. In Mr Ryan's experience, associates of prisoners and others outside of the prison system have sought to obtain information of that sort to further an unlawful purpose, and correspondents with prisoners can show 'a great deal of creativity' in communicating in a manner that disguises their purpose from prison authorities. The author was not a known associate of the plaintiff and Mr Ryan could neither identify nor verify her intentions about a relationship by correspondence. Adopting a precautionary approach, he concluded that the letter was a threat to prison security and might involve communications in furtherance of an unlawful activity.

7 The plaintiff believes that the procedure for administration and management of a prisoner's right to correspondence by letter, which is governed by s 47(1)(n) of the Corrections Act 1986, in respect of this letter demonstrated that his freedom of expression as it is defined in s 15(2)(b) and (c) of the Charter of Human Rights and Responsibilities Act 2006 ('the Charter') had been unreasonably limited.

8 The plaintiff debated with Corrections Victoria and the VGSO whether there was an instrument of delegation by Mr Ryan under the Corrections Act that enabled Officer Dougherty when acting as a mail officer to discharge the duties and responsibilities in respect of mail that were granted by the Act to the governor. Mr Ryan denied that he had formally delegated any duties and responsibilities in respect of his powers in relation to prisoner's mail to any prison officer. There was, he said, no delegation, merely an assignment of a function as allocated work for a prison officer. Accordingly, he said, no formal instrument of delegation could be produced and he was responsible for all decisions made at Barwon in relation to mail, which responsibility he accepted.

9 From an early stage in the proceeding, Mr Ryan invited the plaintiff to substitute him as the defendant, which invitation seemed of no interest to the plaintiff.

10 The plaintiff submitted at trial that the word 'delegation' was used throughout the DCI and the LOP, which was powerful evidence that the Prison Governor delegated his statutory responsibilities in respect of mail to the mail officer. The plaintiff submitted that the evidence led him to believe that Officer Dougherty was the person who was actually making relevant decisions.

11 I accept Mr Ryan's evidence that there was no formal delegation and I am satisfied that the allocation of duties in relation to mail by the Prison Governor to prison officers is not a delegation under s 24 of the Corrections Act, nor an allocation of responsibility to such prison officers. It is no more than the allocation by a manager to his staff of tasks to be discharged in the course of their employment. It follows that responsibility for any impugned decision in relation to mail and any policy or procedure in operation at Barwon Prison in relation to mail is the responsibility of the Governor. Intermediate steps that are in legitimate performance of the operating procedures, such as inspection of mail, and delaying its delivery until a decision is made are of no legal consequence.

12 The plaintiff's proceeding was commenced by Originating Motion issued on 23 February 2017 and the application was made pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules'). By r 56.02(1), a proceeding under Order 56 must be commenced within 60 days after the date when the grounds for the grant of the relief or remedy claimed first arose. The decision that is the subject of challenge was made in August 2016, according to the Grounds of Claim indorsed on the Originating Motion. In evidence, that decision was identified as made on 17 August 2017.

13 However, the plaintiff was unaware of the decision. He submitted that Officer Dougherty concealed the decision from him, a characterisation that he has failed to establish as a matter of evidence. He stated that he discovered in October 2016 that Officer Dougherty had stopped a letter addressed to him for the reason that it was from a person who was thought to be a pen pal. Officer Dougherty, in a further conversation in November 2016 with the plaintiff, told him that all pen pal letters are banned and she does not provide prisoners with any documentation of that decision, or verbally advise them what has occurred. In that conversation it was clear that the decision made in October 2016 to stop the pen pal letter was being discussed.

14 I am satisfied that the plaintiff was aware of the impugned decision no later than 31 October 2016. The time limit for commencing the review proceeding expired on about 15 January 2017.[1]

15 In November 2016, the plaintiff resolved to make a complaint to the Ombudsman and, in December, sought from Mr Ryan, the Prison Governor, permission to send the stopped letter and documentation associated with it to the Ombudsman. On 22 December 2016, Mr Ryan refused that request, although he noted that the Ombudsman could request a copy of the letter.

16 It appears that the plaintiff then determined to commence this proceeding as his initiating documentation was dated 10 January 2017 on its face. It was not filed until 23 February 2017. The Court file suggests that the documents were received after 10 January and, in early February, the Prothonotary considered an application to waive the filing fee.

17 The Court has power under r 3.02(1) of the Rules to extend (or abridge) any time fixed by the Rules. By r 56.02(3), the Court must not extend the 60 day period fixed by paragraph (1) except in 'special circumstances'. By his summons, the plaintiff did not formally seek to extend the time, stating his belief that he was within time. The defendant had not taken objection at an interlocutory stage or by submissions, and the objection was first taken by counsel at the hearing.

18 What must be established to show 'special circumstances' has frequently been considered.[2] The cases show that whether special circumstances exist is a question to be determined by reference to the whole of the circumstances of a particular case. The inquiry is not confined to the circumstances relating to the failure to commence the proceeding within the prescribed period. Matters to be taken into account include the length of the delay, the reason for the delay, any prejudice to the defendants, whether the plaintiff has an arguable case and the public interest in the finality of litigation.

19 It was not suggested that there was any prejudice to the defendant. The period of delay was modest, and having regard to the plaintiffs circumstances, I would on the present facts, accept that the plaintiff has explained his delay. The plaintiff faced particular difficulties in identifying the material facts supporting his complaint and in choosing the appropriate method to seek a remedy. The circumstances were unusual, uncommon, or exceptional and capable of being described as special.

20 I will extend the time fixed by r 56.02(1) to 23 February 2017.

21 On 13 December 2016, the plaintiff requested some photocopying by prison staff. He agreed to pay for the service and completed the relevant form. He had requested 40 A3 size copies of a newspaper article. Knowing that the photocopier in his unit could not accommodate A3, he asked his supervisor whether Recreation/Programs staff could assist. He explained that he wished to include a copy in his Christmas letter with a mailing list of 40. The letter was about his parole situation and was not private or personal in nature.

22 His supervisor directed the plaintiff to Officer Schaper to whom he again explained his request. The following day, Officer Schaper told him that 'staff had been busy and had not had time to make so many copies'. The plaintiff began to suspect that his request might not be actioned and he composed a letter of complaint that he provided to his supervisor together with a copy of his Christmas letter. The complaint letter argued that the person who decided not to action his photocopy request was unreasonably limiting his human rights.

23 Soon after he received back the original newspaper article and one copy of it, he was told by his supervisor that Michael Trotter, an acting prison governor, had determined that he could not have 40 copies. The plaintiff sent his Christmas letter out, without the accompanying photocopy of the article, and wrote to Mr Trotter seeking reasons for his decision. The cost of 42 copies was deducted from his account, although that deduction was later refunded.

24 Mr Brett Ryan, the prison General Manager, responded to the plaintiff's letter to Mr Trotter, stating that both he and Mr Trotter objected to prison staff making the copies sought, denying that they had censored the 40 Christmas letters and otherwise denying that he was obliged to give reasons to the plaintiff for his decision. Mr Trotter swore an affidavit in which he explained that neither the newspaper article that the plaintiff wanted copied nor the 40 copies of the Christmas letter were censored by prison authorities. I accept that statement as accurate. He also explained that he instructed prison staff to make only one copy of the article because he considered that prison administrative resources would be inappropriately applied in making 40 copies. That decision was clearly open to Mr Trotter and was not unlawful, a conclusion unaffected by the plaintiff's assertion that similar demands have been made on administrative services by the plaintiff and other prisoners on other occasions. That assertion could not be tested.

25 In connection with an application for parole, the plaintiff communicated with an Assessment and Transitional Co-ordinator. As his right to apply for parole was affected by legislation, during a conversation with the co-ordinator, he offered to send a copy of his Christmas letter to her. He did so using the normal mail processes at the prison. He said she later told him that she never received the letter. The plaintiff did not file an affidavit from the co-ordinator. He also sent copies to the Complex Needs & Clinical Services Manager at Marngoneet and the Manager of Clinical Services at Barwon, each of whom received the letter.

26 The plaintiff complained to Mr Trotter about the non-receipt by the co-ordinator of his letter. Mr Trotter responded by letter that it was inappropriate to send letters to individual Barwon Prison staff members and that no further correspondence should be sent to the co-ordinator. Mr Trotter stated in his affidavit that the mail officer identified the letter as unusual and referred it to him for consideration. Mr Trotter did not consider that it was appropriate for the plaintiff to have sent the letter to the co-ordinator because she would have no professional interest in its content. As her role was to facilitate transition of prisoners to an allocated parole officer, she had no role to play in relation to the plaintiff who had not been granted parole. Mr Trotter deposed that, on inquiry, the co-ordinator stated she was reluctant to receive the letter and asked that it not be forwarded to her. She said she preferred direct conversation with the plaintiff if he had any issues rather than by mail. It was for that reason that the letter was not delivered to the co-ordinator. The defendant did not file an affidavit from the co-ordinator.

27 By his submission, the plaintiff disputed the substance of the statements attributed to the co-ordinator, but I prefer the evidence of Mr Trotter, which was admitted without objection, and I find that the letter was not sent on to the co-ordinator because she asked that it not be forwarded to her after it was withheld by the mail officer.

28 The plaintiff believes that the refusal of the defendant to permit prison staff to photocopy a document for him and staff members to receive correspondence from him was an abuse of power involving idiosyncratic and nonsensical reasoning that had arbitrarily and capriciously limited his right under s 47(1)(n) of the Corrections Act to correspond and thus unreasonably limited his right to freedom of expression under s 15(2)(b) and (c) of the Charter.

29 On 20 January 2017, a 'bank account letter' was stopped and on 6 March 2017, the plaintiff observed at the Barwon Prison property store an email letter dated 8 February 2017 that was marked 'not to be issued'. The prison officer declined to give the plaintiff information that he sought about the letter, other than to say that 'The PIU [Prison Intelligence Unit] said it is not to be issued on 8 February 2017', and 'for further information you have to go through FOI'.

30 The plaintiff then corresponded with Mr Ryan, whom he alleged was adhering to a corrupt culture of covering up for other prison officers so they cannot be held accountable for their administrative decisions. On 4 April 2017, the plaintiff was informed that release of a letter to him had been authorised. He believed this letter to be the stopped email letter of 8 February 2017. The plaintiff declined to accept the letter because he believed the decision to approve its release to him was disingenuous, intended to stifle any complaint of unlawful conduct with the rejoinder that there was no longer any dispute between the parties.

31 Mr Ryan responded to the plaintiff's correspondence on 22 April 2017. He disputed that the letter had been stopped. It had been assessed as to the security or other aspects of its contents. The email letter was, he said, from a person who claimed to be a professor at a Pakistani university whose identity was unclear. Mr Ryan stated that the original decision not to issue the letter to the plaintiff was made following consideration of the security risks, the likely lawful purpose of the letter, and the risks to the plaintiff. However, on review, the item was considered appropriate for release to the plaintiff but he refused it.

32 In his affidavit, Mr Ryan explained that mail is routinely inspected under the relevant mail policies to ensure prisoners do not receive articles that would be a threat to prison security, could be used to threaten or harass other prisoners or may be used to further an unlawful activity or purpose. Mail officers are required by the policy to withhold any article that might be so characterised until a decision can be made whether to censor the article.

33 The bank account letter dated 19 January 2017 was sent to the plaintiff by his mother. Because financial information can be used by prisoners to threaten or extort other prisoners, the letter was withheld pending investigation by the PIU. The letter was deemed safe for release, which occurred on 25 January 2017. The email letter from the Pakistani university was withheld for investigation and Mr Ryan determined that it was safe for release to the plaintiff.

34 The plaintiff contended that the bank account letter and the email letter were stopped, not merely withheld pending investigation, and that lies were being told about them. He submitted that the evidence established that the letter was seized by officers of the PIU and placed in his prisoners property marked 'not to be issued' on 8 February 2017. Mr Ryan stated that the letter was brought to his attention on about 31 January 2017 when he formed the view that it did not present a security risk and could be released to the plaintiff. However, it was not released until 4 April 2017. Through a freedom of information request the plaintiff obtained heavily redacted copies of email communications in February 2017. On the basis of these emails, the plaintiff invited me to reject Mr Ryan's statement that he formed that view on 31 January 2017 and to accept that the decision to issue the email letter to him was only made after he commenced proceedings on 21 March 2017. The relief sought by the proceeding is to discover the identity of the prison officer who initially determined that the email letter be seized and placed in the prisoner's property.

35 The plaintiff submitted his right to freedom of expression by mail communications was unreasonably restricted in an arbitrary and capricious way and that his ultimate receipt or offer of the letters was intended to deny him information identifying the persons who decided to deny him access to the letters and their reasons for doing so. The plaintiff sought that information to make an informed choice as to how to proceed to enforce his rights.

36 On 17 May 2017, a book in a package addressed to the plaintiff arrived at Barwon prison. The book, Meditations on First Philosophy, by Rene Descartes, appeared to have been sent to the plaintiff by a named person who was not on the plaintiff's 'list of approved visitors'. The book was returned to the sender and an entry to that effect was made in the Register of Mail.

37 In an affidavit, Mr Trotter explained that to ensure that contraband or items that might jeopardise prison security do not enter the prison, property will not be given to a prisoner unless the property is approved and is sent by a person who is on the prisoner's approved visitor list. Mr Trotter adopted the decision as correctly made in accordance with prison policy relying only on the fact that the sender was not on the plaintiff's list of approved visitors. He did not suggest that the book was contraband or prejudicial to prison security.

38 By her written submission, Ms Dougherty conceded that the letter addressed to the plaintiff was not stopped in accordance with the plaintiff's right under s 47(1)(n) of the Corrections Act to receive letters except in the circumstances provided under s 47D of the Act. She accepted that the Court should declare that the decision not to deliver the letter and the book to the plaintiff was not in accordance with law.

39 Division 4 of the Corrections Act regulates prisoner's rights. Section 47 relevantly provides:

Prisoners rights

(1) Every prisoner has the following rights -

...

(n) subject to section 47D, the right to send and receive other letters uncensored by prison staff;

Section 47D relevantly provides:

When letters may be stopped and censored

(1) This section applies if the Governor reasonably believes that any letter to be sent by a prisoner to, or sent to a prisoner by, any person who is not listed in section 47(1)(m) -

(a) is a threat to prison security; or

...

(b) may be of a threatening or harassing nature; or

(c) may be being used to further an unlawful activity or purpose; or

(d) contains indecent, abusive, threatening or offensive written or pictorial matter, or written or pictorial matter that may be regarded by a victim as distressing or traumatic, or an indecent, obscene or offensive article or substance; or

...

(2) The Governor may -

(a) if the belief concerns the whole letter, stop the letter from being sent or received by the prisoner; or

(b) if the belief concerns only part of a letter, cause the relevant part of the letter to be censored.

40 Part 3 of the Corrections Regulations 2009 regulates letters and parcels and relevantly provides:

(1) In this regulation -

(a) a "letter" includes a facsimile;

(b) a "parcel" includes any contents contained in or associated with a parcel, whether or not the parcel is accompanied or associated with a letter.

(2) If the Governor reasonably suspects that any parcel to, or from, a prisoner contains an unauthorised article or substance that could pose an immediate danger to any person, the Governor may dispose of the parcel in any manner he or she considers to be appropriate.

...

(9) Subject to sub-regulations (3), (4) and (6), the Governor may inspect and stop a parcel if the Governor reasonably believes that a parcel to be sent by a prisoner to, or sent to a prisoner by, any person -

(a) is a threat to prison security; or

(b) may be of a threatening or harassing nature; or

(c) may be used to further an unlawful activity or purpose; or

(d) contains indecent, abusive, threatening or offensive written or pictorial matter, or written or pictorial matter that may be regarded by a victim as distressing or traumatic, or an indecent, obscene or offensive article or substance.

18 Register of letters and parcels

(1) Each Governor must establish and maintain a register containing -

(a) details of -

(i) every letter read, censored or stopped under section 47D of the Act; and

(ii) every parcel inspected under regulation 17; and

(b) the reason for the reading, censoring or inspection; and

(c) details of any unauthorised substance or article found in the letter or parcel; and

(d) details of any subsequent action taken.

(2) If a letter or parcel sent by a prisoner is censored, the Governor must notify the prisoner who sent the letter or parcel and give him or her details of the parts censored.

41 Relevant aspects of the policy directive issued by Deputy Commissioner Wise, entitled 'Deputy Commissioner's Instruction, DCI 4.07 - Prisoner Communications', and the 'Barwon Local Operating Procedure on Prisoner Communications' issued by Mr Ryan include the following:

DEPUTY COMMISSIONER'S INSTRUCTION

Outcome

Prisoners are able to maintain contact with family and friends and relevant professionals by telephone and mail. Prisoners' human rights are limited only to the extent that it is reasonably and demonstrably justifiable. All staff must act compatible with human rights and consider human rights when making decisions.

Operating Principles

Corrections Victoria will assist prisoners to maintain ties with family and friends while in custody because of the value such contacts have in helping prisoners adjust to prison life and in aiding reintegration. Staff will ensure prison security is not compromised when allowing prisoners to communicate with family and friends. Staff will respect the right to confidentiality during these communications.

1.6 Inspection of all other Mail

[This section of the policy details the inspection procedure adopted by the General Manager following the Act and Regulations]

1.8 Correspondence with Pen Pals

In view of the risks associated with exploitation, prisoners will not be permitted to participate in organised pen pal programs. Where it is identified that a prisoner is corresponding with a pen pal not affiliated with an organised program, the general manager should assess the appropriateness of this arrangement, with due regard to the pen pal's circumstances (where known), the prisoner's offences, notoriety, prison behaviour, community supports, advice from offending behaviour programs etc. where it is assessed that either the prisoner or the pen pal may be at risk, the general manager or delegate is to stop such mail.

LOCAL OPERATING PROCEDURE

[The outcome statement mirrors that produced in the Deputy Commissioner's Instruction]

1. Responsibilities of the Mail Officer

The local HM Prison Barwon Mail Officer has been delegated duties and responsibilities from the general manager to assist prisoners to maintain ties with family and friends, whilst also ensuring that prison security is not compromised when allowing prisoners to communicate ... Mail Officers will maintain effective communication with the prisons intelligence unit and the operations manager assigned to the security and barrier control portfolio. Mail officers are required to have a well-rounded knowledge of Deputy Commissioner's Instructions 4.07 ...

Mail sent to, or received by a prisoner may be opened, inspected and read to determine whether or not the contents of the letter/parcel may jeopardise the safety and security of the prison, or the safe custody and welfare of any prisoner or the safety of the community ...

In accordance with Deputy Commissioner's Instruction 4.07, prisoners are not permitted to participate in any organised pen pal programs ...

Prisoners are permitted to request photocopying and printing of documentation where required. Officers should be mindful of the content in the documentation ... Documents will only be printed on A4 size paper ...

42 Section 24 of the Corrections Act empowers prison governors to delegate their powers to prison officers.

43 The plaintiff submitted that the LOP was a fraudulent document that had been deliberately designed to misrepresent issues to the Court about pen pal letters and the delegation of authority to the mail officer. This contention was based on careful analysis of the LOP that revealed typographical and layout inconsistencies in the document that is in evidence. However, these features of the document are consistent with word processing or typographical error, or amendment by 'cut and paste'. In that sense, the document appeared 'constructed'.

44 I refused to draw the inference that the document was a fraudulent document for two reasons. First, the inconsistencies on the face of the document might be subject to a reasonable explanation inconsistent with the inference sought by the plaintiff. Plainly, care is necessary to ensure that such an inference is appropriate in the circumstances and established to the requisite standard. It is difficult to conceive of circumstances in which such an inference would be drawn in the absence of cross examination of the witness presenting the exhibited document. I am satisfied that it is improbable that the LOP was a fraudulent document.

45 Secondly, the plaintiff did not demonstrate how any particular feature of the constructed nature of the document was relevant to his submissions. Rather, the plaintiff pointed to these features as supporting his belief that the policy is arbitrary and capricious.[3]

46 The relief sought by the plaintiff in this proceeding was extensive, including a range of declarations that were designed by the plaintiff to provide a comprehensive analysis by the Court of the rights of prisoners and Corrections Victoria in respect of mail. The plaintiff submitted that the declarations sought will address the unlawful policies and practices which continue to go beyond that which is prescribed in the Corrections Act and Regulations for limiting the operation of the s 47(1)(n) right of correspondence by mail. The declarations sought would state and settle the operation of the law, thereby reducing the need for litigation by the plaintiff of mail disputes and individual prison locations and on every individual occasion.

47 Notwithstanding this objective, the plaintiff had named a junior prison officer undertaking functional duties on instruction from her supervisor as the defendant against whom such relief was being sought. He has done so despite the offer of the prison Governor, the proper contradictor, to stand as defendant.

48 The plaintiff contended that the duties and responsibilities under the Corrections Act in respect of mail were formally delegated by Mr Ryan pursuant to s 24. He submitted that I ought to reject Mr Ryan's explanation that he accepted responsibility for the prison officer's actions, which he considered to be appropriate as an ex post facto justification of, and rationalisation for, the decision under challenge. Citing R v Ngo,[4] the plaintiff contended that a delegation of power had, in truth, denied practical overall control to the very person chosen by Parliament to exercise it. Further, the plaintiff submitted that the mail powers require a state of mind of the person exercising the power and s 42 of the Interpretation of Legislation Act 1984 that concerns the exercise of delegated powers, reinforces the conclusion drawn by the Court in Ngo. The plaintiff argued that mail officers use their discretion and make decisions without reference to Mr Ryan. Accordingly, Mr Ryan did not retain legal responsibility for the actions of Officer Dougherty.

49 The plaintiff has not established a factual basis for this submission. As noted above, there was no delegation. Further, I reject the plaintiff's assertions that in contending that he is responsible for mail decisions, Mr Ryan has lied and given false evidence. There was no proper basis for assertions of that kind which were scandalous and inappropriate.

50 The plaintiff also contended, inconsistently, that Officer Dougherty in fact did not make any decision or exercise any discretion. Her conduct amounted to no more than a blanket application of a policy. Later, when Mr Ryan purported to reconsider the matter, he did so on the basis of a suspicion that could not be shown to be reasonable.

51 The Court may declare the legal position of the parties by stating the rights of the parties with respect to a particular matter with precision, and in a binding way.[5] However, declaratory relief is discretionary and granted cautiously.[6] Specifically, declaratory relief is not ordinarily granted where, as here, the underlying controversy is hypothetical, academic or abstract, the declaration will produce no foreseeable consequences for the parties, or the declaration would be futile or lack utility.[7]

52 Because Officer Dougherty was acting as an employee following instructions from Mr Ryan, in whom the relevant power resided, she had no power to finally stop the letter. Her power was limited to withholding the letter as instructed until a decision was made, or confirmed, by the Governor. That is what occurred. It follows that any declaratory relief against Officer Dougherty can have no consequences for the parties and would be futile or lack utility. It is noteworthy that the plaintiff refused an offer that Mr Ryan be substituted for Officer Dougherty as the defendant in this proceeding, because declaratory relief against the prison governor may not have drawn that criticism. Further, the plaintiff specifically invited the Court to 'settle the law in this area [by] binding declarations about the interaction between and operation of the provisions of the Act and Regulations, the policies and operating procedures, and the Charter'. There are several reasons to decline to accept that invitation, including that the defendant is Officer Dougherty.

54 Although it is unnecessary to do so, I make the following observations in response to the plaintiff's submissions had the same been put against Mr Ryan as the defendant.

55 First, I accept that Mr Ryan believed that the letter was a threat to prison security and may have been used to further an unlawful activity or purpose. His belief involved an evaluative judgment based on his expertise in managing prisons and prison security. That belief, objectively assessed, was reasonable.[8] The decision appears to be a lawful exercise of the powers under the Act in respect of mail.

56 Second, a prison governor has the power to take all reasonable steps to ensure the management, security and good order of the prison and the safe custody and welfare of its prisoners. As Nettle JA (as he then was) observed in Anderson v Pavic,[9] the Corrections Act should ordinarily be interpreted so as to give full scope to the power of correctional authorities to carry out tasks of prison administration and management without undue influence from the courts. That perspective, contrary to the plaintiff's contentions, includes the welfare of prisoners.

57 Third, I discuss the plaintiff's arguments made under the Charter against Officer Dougherty later in these reasons.

58 The plaintiff commenced his submissions in this proceeding by asserting that the Court was biased against him with a deference to, and favouritism for, the defendant as a correctional administrator.[10] This submission was not pressed towards any particular form of relief beyond a plea that the plaintiff's submissions be carefully considered. That is what has occurred.

59 That said, it was not easy to identify the path of reasoning that supported the plaintiff's submissions. Putting to one side Charter questions that I will address separately in due course, the plaintiff contended that the reference to the welfare of prisoners in the purposes of the Act[11] provided for 'a framework of rationality' through which the operation of the whole Act must be interpreted,[12] because the purpose of the welfare duty is to prevent an abuse of power.

60 The plaintiff contended that when Mr Trotter refused to provide him with 40 A3 photocopies of the newspaper article that was to accompany his Christmas letter, Mr Trotter censored those letters by forcing the plaintiff to send the letters without the A3 size photocopy of the newspaper article. In so doing, he acted in breach of the plaintiff's rights pursuant to s 47(1)(n) of the Corrections Act. The flaw in the plaintiff's contention lies in the notion that the refusal to provide the 40 copies was an act of censorship. The plaintiff's submission continued that to the extent that Mr Trotter said otherwise, his claim was improper, dishonest, misleading and deceptive in contravention of overarching obligations under the Civil Procedure Act 2010. The plaintiff contended that this conclusion followed on the assertion that the photocopying would be 'an inappropriate use of the prison's resources'.

61 I reject this submission. It is clear that both the Christmas letter and the letter to the co-ordinator were not censored by Mr Trotter. The plaintiff was able to, and did, determine the content of those letters before he sent them. The Christmas letters did not each contain an A3 sized copy of the newspaper article because the plaintiff chose to send the letters in that form after his photocopying request was declined. Nothing in the Act, the Regulations or the policies obliged the defendant to accede to the copying request. Rather, the LOP made clear that photocopying will only be done in an A4 size. The evidence does not exclude the prospect that the plaintiff could have arranged for photocopying of the newspaper article in the smaller size, despite the plaintiff's submission to that effect. Further, there was no impediment to the plaintiff sending the Christmas letters and the newspaper article to someone outside of the prison who could have performed this secretarial function for him before posting all of the letters. The defendant did not censor the letter and did not confiscate the article. Both were returned to the plaintiff to enable him to determine how he would proceed.

62 I am satisfied that the defendant was correct when he submitted that he neither stopped nor censored the Christmas letters. The defendant also correctly submitted that there was no extant controversy in respect of the letter to the coordinator. Mr Trotter neither censored nor stopped that letter. I am satisfied on the evidence that it was not delivered at the co-ordinator's request and, in any event, at a later point in time the plaintiff handed the letter to the coordinator. Mr Trotter's statements to this effect were not challenged in a manner that would permit an alternative factual finding.

63 I add that I am not persuaded by the fact that a payment was deducted from the plaintiff's resources to conclude otherwise. The plaintiff completed the deduction form before his request for photocopying was rejected and although the deduction was made, it was refunded. I am also not persuaded to a different conclusion by the plaintiff's contention that the definition of a letter includes any article accompanying the document. In this case the letter did not have any enclosure because of the photocopying policy. That is a distinct issue to the question of what constitutes a letter. The documents that constituted the letters were a matter for the plaintiff to determine and on the evidence it cannot be said that the defendant stopped or censored any letter assembled by the plaintiff. I reject as inappropriate the plaintiff's invitation to me to further develop administrative policies in relation to mail within the corrections system.

64 In this proceeding, the plaintiff sought different relief. He sought discovery of the identity of the prison officer who stopped the bank account statement letter, the identity of the prison officer who stopped the email letter and copies of documents that record the decisions in respect of each letter. Thus the application is for preliminary discovery to identify a defendant or a right to obtain relief, permitted pursuant to r 32.03 and r 23.05 of the Rules.

65 What is curious about this application is that it is made against the person whom the plaintiff might hold responsible for stopping his mail. For the reasons already discussed, the plaintiff misconceived the concepts of delegation and responsibility. Mr Ryan has stated on oath that he is responsible for all decisions at Barwon in relation to mail, identifying himself, correctly in my view for the reasons discussed above, as the proper proposed defendant for the proceeding apparently being contemplated by the plaintiff. The plaintiff seeks documents to decide whether to bring a proceeding against a person who would not be the proper defendant. For that reason the relief that he seeks will be refused.

66 The plaintiff received the bank account letter. To the extent that there was any delay in the receipt by, or offer to, the plaintiff of the bank account letter it was due to the implementation of the process designed to enable the Governor to exercise the power he possesses pursuant to s 47D of the Corrections Act. On the factual question, there was neither censorship nor stopping of the letter. I reject the submission that there was an arbitrary or capricious stopping of the letter. I find that delivery of the letter was justifiably deferred for about 6 days.

67 I accept that it was open to the plaintiff to contend that the email letter addressed to him was stopped or censored. I accept the plaintiff's contention that the email letter was provided to him well after 31 January 2017 when Mr Ryan stated that he determined that the email letter should be released to the plaintiff. The plaintiff asserted that the defendant had submitted false and misleading evidence and had made claims that were not put on a proper basis. The plaintiff's argument was that these letters were only released by reason of his actions to press for disclosure during that period of delay required the finding that the letter was stopped in breach of his rights. The plaintiff contended that the delay was not for a review process, rather, it was a decision to stop the letters that was reversed by his actions, which revealed an original decision that was unlawful.

68 The plaintiff coloured his submissions with baseless allegations that he did not attempt to establish, relating to the motives and integrity of the defendants. The plaintiff also added, without any proper basis, the scandalous assertion that Mr Ryan was telling such demonstrably obvious lies that the Court's failure to call out the defendant's conduct was evidence of a blind eye and a deaf ear. I reject these assertions. Whether the email chain on which the plaintiff relied must be interpreted as the plaintiff contended is a matter for another day, if any proceeding of the nature envisaged eventuates. The plaintiff made no application to cross-examine Mr Ryan to establish these allegations. It should not be assumed that, if sought, cross-examination at large would have been permitted. Had such an application been made, it would necessarily have been evaluated on the plaintiff's affidavits that were not substantially based on personal knowledge of the events under discussion, but advanced argument and speculation and on that basis an application to cross-examine Mr Ryan would not be likely to succeed.

69 That said, the plaintiff, acting reasonably, knew the identity of the proper defendant, namely Mr Ryan. Notwithstanding his submission, he does not need to know the identity of the PIU officers and he does not need documents of the kind identified in his originating motion to decide whether to bring a proceeding against Mr Ryan. The affidavits that he has sworn in this proceeding clearly demonstrate that the plaintiff is convinced that his rights have been breached and that he is entitled to relief from the Court. Any application against Mr Ryan would now need to be an application to extend time to seek that review.

71 As noted above, in this proceeding the defendant accepted that the Court should declare that the decision not to deliver the letter and the book to the plaintiff was not in accordance with law. I will make that declaration. There was also an application for relief under the Charter that is considered below.

72 In these proceedings, in respect of the Charter arguments that have been raised, the defendants have conceded that Mr Ryan, as the general manager of a prison, is a public authority.[13] Section 38(1) of the Charter makes it unlawful for a public authority to act in a way that is incompatible with human rights or in making a decision to fail to give proper consideration to a relevant human right.

73 The plaintiff alleges that decisions were made without proper consideration of his rights under the Charter which identifies, relevantly, the following rights:

13. Privacy and reputation

A person has the right -

(a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; ...

15. Freedom of expression

...

(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether -

...

(b) in writing; or

(c) in print; ...

7. Human rights - what they are and when they may be limited

(1) This Part sets out the human rights that Parliament specifically seeks to protect and promote.

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

(a) the nature of the right; and

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

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

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

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

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

74 In Certain Children v Minister for Families and Children (No 2),[14] I identified a useful road map for assessing incompatibility under s 38 of the Charter, which is for the Court to consider a number of questions:

(a) is any human right relevant to the decision or action that a public authority has made, taken, proposed to take or failed to take? (the relevance or engagement question);

(b) if so, has the public authority done or failed to do anything that limits that right? (the limitation question);

(c) if so, is that limit under law reasonable and is it demonstrably justified having regard to the matters set out in s 7(2) of the Charter? (the proportionality or justification question);

(d) even if the limit is proportionate, if the public authority has made a decision, did it give proper consideration to the right? (the proper consideration question);

(e) was the act or decision made under an Act or instrument that gave the public authority no discretion in relation to the act or decision, or does the Act confer a discretion that cannot be interpreted under s 32 of the Charter in a way that is consistent with the protected right (the inevitable infringement question).

75 The first issue is raised in the Dougherty proceeding in respect of the pen pal letter. The initial issue is whether any human right was relevant to and engaged by the decision or action that a public authority has made, taken, proposed to take or failed to take. The plaintiff contended that the conduct of the defendant engaged his human rights pursuant to s 13(a) of the Charter, specifically his right not to have his correspondence unlawfully or arbitrarily interfered with, and s 15(2)(b) and (c) of the Charter, specifically his right to freedom of expression by receiving information and ideas of all kinds in writing or in print_._

76 Because the plaintiff refused to bring this proceeding against the prison governor, whom the defendant concedes is a public authority under the Charter, the issue must be considered in the context of Officer Dougherty. Prison officers are employed under Part 3 of the Public Administration Act 2004 as provided for in s 12 of the Corrections Act. The Charter, by s 4, defines a public authority to include a public official within the meaning of the Public Administration Act and that Act defines a public official to include a public sector employee which term in turn refers to a person employed under Part 3 of that Act in any capacity. Prison Officer Dougherty is also a public authority under the Charter.

77 However, Officer Dougherty has not relevantly made, taken, proposed to take or failed to take a decision or action to which the human rights identified by the plaintiff are relevant. That is because, for the reasons discussed above, the relevant decision or action was taken by Mr Ryan who accepted responsibility for the decision or action of his employee, whether that be by the process of allocation of duties or ratification of a decision. I have found that Officer Dougherty was acting as a functionary, an employee, undertaking assigned duties for the responsible officer.

78 Officer Dougherty's decision or action was not, as I have stated, of itself of any legal consequence. The plaintiff contended that this conclusion would be a triumph of form over substance, but I do not agree. Mr Ryan's offer to stand as defendant in the proceeding in lieu of Officer Dougherty was an attempt to reassert substance in the place of form that was rejected by the plaintiff. The power to stop the mail reposed in Mr Ryan who considered the actions of Officer Dougherty and formed a belief within the terms of s 47D of the Corrections Act.

79 Even if I am later considered to be in error in these findings, and assuming that Officer Dougherty acted in a manner that limited the plaintiff's rights, I would have been satisfied under s 7(2) of the Charter that the plaintiff's rights had been subjected to a reasonable and proportionate limitation.[15] The rights are subject to limitation by the statutory text. Interference in s 13(a) is limited to unlawful or arbitrary interference, while s 15(3) permits lawful restrictions on the right of freedom of expression under s 15. The process of vetting or censoring mail operates within a statutory framework set by the Corrections Act. I was not persuaded by the plaintiff that the conduct of either Officer Dougherty or Mr Ryan in connection with the pen pal letter was outside that statutory framework.

80 The second issue is raised in the Trotter proceeding in respect of the Christmas letter. I have found that as a matter of fact, neither the Christmas letter nor the copy intended for the co-ordinator was stopped or censored. The plaintiff has not established that a public authority has made, taken, proposed to take or failed to take a decision or action to which the human rights he identified are relevant. A refusal by a public authority to make photocopies cannot, in the circumstances identified, constitute either an unlawful or unreasonable interference with correspondence or conduct that might interfere with the plaintiff's freedom of expression. Likewise, where the addressee declines to accept delivery of a letter there is no unlawful or unreasonable interference with correspondence or any interference with the plaintiff's freedom of expression. Other questions might be raised about prisoners' entitlement to administrative services provided for them by Corrections Victoria, but such questions were not raised in this proceeding.

81 The plaintiff put an extensive submission that there was a failure by the defendant to observe the process identified by Emerton J in Castles v Secretary to the Department of Justice.[16] This submission fails, for the reasons just given, at the threshold. If the decision maker responding to the request for photocopying that was made by the plaintiff, seriously turned his or her mind to what rights would be affected by the photocopying decision, it was not reasonable to conclude that the plaintiff's freedom of expression or his right to communicate were likely to be interfered with. There was no impediment, bearing in mind the material in the plaintiff's possession, for the plaintiff to have obtained such administrative resources and satisfied his right to express his views and to communicate them outside of the prison system. So much is clear from the provision to the plaintiff of a second copy of the newspaper article and the fact that he was able to freely distribute the Christmas letter.

82 The application for preliminary discovery does not, and cannot, raise issues touching on an entitlement to relief under the Charter.

83 Finally, the remaining issue concerns the stopping of delivery to the plaintiff and return to sender of the Descartes book, Meditations of First Philosophy. Otherwise than because of the Charter, the plaintiff sought relief against Officer Dougherty in respect of this conduct. The plaintiff contended that the decision to stop the letter and return the book was unlawful and infected with jurisdictional error. The defendant has accepted that a letter addressed to the plaintiff was stopped in breach of the plaintiff's right under s 47(1)(n) of the Corrections Act to receive letters addressed to him, as it did not fall within the circumstances provided for in s 47D. She accepted that the decision was unlawful. That concession was rightly made.

84 However, having regard to the defendant's submissions generally, it must follow that the proper defendant in this proceeding was not Officer Dougherty but Mr Trotter. In submissions, counsel clarified that the defendant's concession was made in respect of Mr Trotter's decision to accept responsibility for the actions of the prison officer. To limit the defendant's concession to the conduct of the prison officer on 17 May 2017 was not consistent with Mr Trotter's evidence that he adopted the prison officer's decision to return the book as his own and would make the same decision if the book were to be sent to the prison again by a person who was not on the plaintiff's approved list of visitors.

By reason of the decision of Prison Officer Dougherty, that was adopted and ratified by Acting Prison Governor Michael Trotter, the Governor of HM Prison Barwon unlawfully interfered with the plaintiff's correspondence on about 17 May 2017 by returning to the sender, rather than forwarding to the plaintiff, a letter that delivered to the plaintiff a copy of the book Meditations of First Philosophy by Rene Descartes.

86 Under s 39(1) of the Charter, when the plaintiff may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, otherwise than because of the Charter, the plaintiff may seek relief or a remedy on the ground of unlawfulness arising because of the Charter.

As a consequence of the decision by the defendant to limit the operation of the plaintiff's s 47(1)(n) right of correspondence by letter, in relation to the stopping of the letter the operation of the human right of 'freedom of expression' as it is defined in s 15(2)(b) & (c) of the Charter was also unlawfully limited.

88 In this instance, Officer Dougherty relevantly made the decision and took action to which the human rights identified by the plaintiff are relevant. That is because the return of the book to the sender was complete and irreversible when Mr Trotter purported to ratify it. Although Officer Dougherty was acting as a functionary, an employee, undertaking assigned duties on behalf of the responsible officer, she was a public authority as defined by the Charter, who completed the procedure, excluding the possibility of another accepting responsibility for her actions in the procedural sense. Bearing in mind that the plaintiff directs his complaint to the procedural limb of s 38(1), I do not accept the defendant's contention that the rights were not engaged in the circumstances. Officer Dougherty was the only person who made a decision about the letter and the issue was whether she failed to give proper consideration to a relevant human right.

89 In Bare v IBAC,[17] Tate JA agreed with Emerton J's four step approach to assessing proper consideration under the procedural obligation in s 38(1).[18] Tate JA described the obligation in s 38(1) as imposing a higher standard than the obligation on a decision maker to take into account a consideration at common law or under statute.[19] This follows from the obligation to give 'proper' consideration to human rights.

90 The obligation to accord proper consideration requires a public authority decision-maker to understand in general terms which rights may be relevant and whether and how those rights will be interfered with by the decision that is being made.[20] Proper consideration also requires a decision maker to have seriously turned his or her mind to the possible impact of the decision on an affected person's human rights and the implications for that person; and to identify the countervailing interest or obligations.[21]

91 Officer Dougherty ought to have understood, from the express terms of the DCI and the LOP, with which mail officers were required to have 'a well rounded knowledge', that a prisoner's right to correspondence and a prisoner's right to freedom of expression could only be restricted on the basis provided for in the DCI and LOP. Those human rights were relevant to her decision and her actions.

92 Contrary to counsel's contention, there was no evidence from Officer Dougherty or any evidence that she turned her mind to the possible impact of her decision to return the book to the sender on the plaintiff's human rights, whether seriously or at all. So much is clear from the terms in which the book was returned. The unsigned letter stated -

Prisoners are only able to received (sic) property from people on their approved visitors list. The enclosed property is returned to you as you are not on the prisoners visitors list.

Mail Office

Barwon Prison

93 It is also made clear by the concession that the decision to return the book to the sender was not lawful in accordance with the Act. Further, the references to Charter rights in the DCI and the LOP are superficial. It is not enough to simply assert by a document -

Prisoners human rights are limited only to the extent that it is reasonably and demonstrably justified. All staff must act compatibly with human rights and consider human rights when making decisions.

A prison officer must at least have considered the possible impact of the decision to return the book on the plaintiff's right to privacy and his right to freedom of expression and identified the countervailing interest or obligations.

94 I am not persuaded that it is appropriate in this proceeding to consider whether these circumstances might constitute unlawfulness in the conduct of a public authority under the substantive limb of s 38(1). That is because the essential interaction that arises on the consideration of that question is whether the relevant human rights have been subject to reasonable and proportionate limitation in accordance with s 7(2) of the Charter, having regard to the statutory provisions under the Corrections Act. As discussed above, it is the prison governor, or the State of Victoria, that is the proper contradictor. In the absence of the proper contradictor, I decline on discretionary considerations to grant any relief by way of declaration pursuant to the substantive limb of s 38(1) in the circumstances of the present application.

95 Section 38(1) has a procedural limb, which requires that a public authority give proper consideration to a relevant human right. In this instance, Officer Dougherty, not the governor, was the obligated public authority. Applying the Castles test, I am not satisfied that any consideration was given to the plaintiff's relevant human rights when Officer Dougherty decided to return the book to the sender. What occurred was the blanket application of a non-existent rule, namely that prisoners are only able to receive mail/property from people on their approved visitors list, without any consideration whatsoever of the plaintiff's right not to have his correspondence unlawfully or arbitrarily interfered with or his right to freedom of expression by receiving information and ideas of all kinds in print. Had the 'approved visitor's list' rule existed in the Corrections Victoria policies, other considerations might have arisen. Interference with correspondence pursuant to a rule that forms part of an existing regulatory framework might be accepted as 'lawful' within the meaning of s 13(a). That question does not arise. It is also unnecessary for present purposes to explore the scope of the relevant rights.[22]

96 Accordingly, I will make a further declaration in the following terms -

In deciding to return to sender, the letter and accompanying book Meditations of First Philosophy by Rene Descartes that had been sent to the plaintiff at HM Prison Barwon, the prison mail officer failed to give proper consideration to the plaintiff's human right of privacy as it is defined in s 13(a) of the Charter and of 'freedom of expression' as it is defined in s 15(2)(b) and (c) of the Charter.

(a) In proceeding 2017 00621, the time fixed by r 56.02(1) for the commencement of the proceeding be extended to 23 February, 2017, but the proceeding be otherwise dismissed.

(i) by the decision of Officer Dougherty, that was retrospectively adopted and ratified by Acting Prison Governor Michael Trotter, the Governor of HM Prison Barwon unlawfully interfered with the plaintiff's right to receive correspondence uncensored by prison staff on about 17 May 2017 by returning to the sender, rather than forwarding to the plaintiff, a letter that delivered to the plaintiff a copy of the book Meditations of First Philosophy by Rene Descartes;

(ii) in deciding to return to sender, the letter and accompanying book Meditations of First Philosophy by Rene Descartes that had been sent to the plaintiff at HM Prison Barwon, the prison mail officer, Prison Officer Dougherty failed to give proper consideration to the plaintiff's human rights of privacy, as it is defined in s 13(a) of the Charter, and of freedom of expression, as it is defined in s 15(2)(b) and (c) of the Charter.

[1] Taking account of r 3.04 of the Rules.

[2] See, for example, Denysenko v Dessau [1996] VicRp 65; [1996] 2 VR 221; Prencipe v Nisselle [1999] VSC 137; Kay v Legal Profession Tribunal [2000] VSC 460; Lednar v Magistrates' Court [2000] VSC 549; (2000) 117 A Crim R 396, 408-412 [122]-[150]; Carra v Hamilton [2001] VSC 215; (2001) 3 VR 114; Mann v Medical Practitioners Board of Victoria [2004] VSCA 148; Somerville Retail Services Pty Ltd v Vi [2008] VSC 196 [42]-[44]; Goodman v Victorian Civil and Administrative Tribunal [2011] VSC 35 [28], [29]; Kocak v Wingfoot Australia Partners Pty Ltd [2011] VSC 285; Lazarevic v Victoria Police [2014] VSC 497; Madafferi v The Chief Commissioner of Police [2017] VSC 652.

[3] The issue of whether the document was fraudulent is not probative, while the plaintiff's beliefs are of no relevance.

[4] [1999] VSCA 222; [1999] 3 VR 265, 274 [29] ('Ngo').

[5] Warramunda Village Inc v Pryde [2001] FCA 61; (2001) 105 FCR 437, 440 [8]; Magman International Pty Ltd v Westpac Banking Corporation [1991] FCA 41; (1991) 32 FCR 1, 15.

[6] Rich v Van Groningen [1997] VSC 35; (1997) 95 A Crim R 272, 278-9.

[7] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581-2; Rich v Van Groningen [1997] VSC 35; (1997) 95 A Crim R 272, 278-9; Annacott Pty Ltd v Konann Pty Ltd [2012] VSC 389 [55].

[8] Knight v Selisky [2012] VSC 635 [10], [12], [18].

[9] [2005] VSCA 244 [32].

[10] Citing as the basis for this assertion dicta of Kirby J in Sinanovic v The Queen [1998] HCA 40; (1998) 103 A Crim R 452, and an article by an academic commentator - Richard Edney, 'Judicial deference to the expertise of correctional administrators: the implications for prisoner's rights' [2001] AUJlHRights 5; (2001) 7(1) Australian Journal of Human Rights, 91.

[11] See s 1(a).

[12] Citing Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, 348-352 [23]-[30], 362-365 [63]-[70], 370-371 [90].

[13] Charter s 4(1)(a).

[14] [2017] VSC 251.

[15] See generally DPP v Kaba [2014] VSC 52; (2014) 44 VR 526, 647 [468]; PJB v Melbourne Health [2011] VSC 327; (2011) 39 VR 373, 421 [220]; Sabet v Medical Practitioners Board [2008] VSC 346; (2008) 20 VR 414, 442 [186].

[16] (2010) 28 VR 141, 184 [185]-[186].

[17] Bare v IBAC [2015] VSCA 197; (2015) 48 VR 129, 226 [299].

[19] Ibid 217-218 [275]-[276] (Tate JA); 198-199 [217]-[221] (Warren CJ).

[20] Castles v Secretary to the Department of Justice (2010) 28 VR 141, 184 [185]-[186] (Emerton J).

[22] For a discussion of the scope of the right under s 13 of the Charter, see Kracke v Mental Health Review Board (General) (2009) 29 VAR 1, 131 [619]-[620]; Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328, [29]. For a discussion of the scope of the right under s 15(2) of the Charter, see Re XYX and Victoria Police (2010) 33 VAR 1, 86 [515]ff, and Magee v Delaney [2012] VSC 407; (2012) 39 VR 50, 60 [40]ff and the cases cited in these decisions.