HER HONOUR: This is an application by a prisoner for judicial review of a series of decisions relating to the conditions of his custody.
The proceedings were commenced by summons filed 23 October 2014. On 17 November 2014, the prisoner prepared and appears to have filed or at least sent to the Court a Notice of Motion seeking a number of orders on an interlocutory basis. The proceedings came before me as Duty Judge on 8 December 2014.
On that occasion, after hearing from the Commissioner of Corrective Services and also from the prisoner, Mr Monteiro, I determined that, as submitted on behalf of Corrective Services, a large amount of the relief sought on an interlocutory basis could not in truth be determined on that basis and that the appropriate course was to bring the matter on for an early final hearing.
There was, however, one exception to that determination which was that Mr Monteiro raised a concern as to the diet that he is on in the prison. The evidence filed by him included a medical certificate from a Dr Hinder, an employee or at least a medical officer for Justice Health, which stated that Mr Monteiro required a raw salad and vegetable diet.
Mr Monteiro complains that, notwithstanding the existence of that medical certificate, he is not receiving that diet. In the face of the existence of the medical certificate and the fact that it was not being complied with, I considered that that aspect of the interlocutory relief sought by Mr Monteiro should properly be regarded as a matter to be determined in the Duty List. I heard submissions on that basis.
I stood the proceedings over to today because it emerged during the course of argument that the decision-making process in respect of Mr Monteiro's diet was not at an end.
The Commissioner for Corrective Services very fairly consented to provide a written statement of the reasons for a decision recently made by a nurse evidently overriding the medical certificate to which I have referred.
I made a direction that that written statement of reasons be provided within a certain timeframe and stood the proceedings other to last Tuesday, 16 December 2014.
Unfortunately, the Court was closed on that date due to the Lindt Café siege in the central business district of Sydney. The proceedings have been relisted before me today, the last day of term, as the re-listing of that fixture.
The events of the Lindt Café siege also prevented the Commissioner from complying, in terms, with the directions made by me on 8 December 2014. There is, however, now before the court an affidavit affirmed by Denielle Brassil, annexing further documents relevant to Mr Monteiro's claim.
The first is a letter from the General Manager of Wellington Correctional Complex, dated 10 December 2014. That letter acknowledges Mr Monteiro's complaint that he is not being afforded a raw salad and vegetable diet in accordance with Dr Hinder's medical certificate. The letter records Mr Peeble's understanding that Dr Hinder's medical certificate "is not based on any medical requirement and should not have been issued". The letter states, however, that, given the existence of the medical certificate, a raw salad and vegetable diet would be provided to Mr Monteiro "at this time".
The General Manager appears then to have arranged for Mr Monteiro to be reviewed by the centre's visiting medical officer, Dr Ferris, at the earliest opportunity. The letter concludes:
"Should Dr Ferris invalidate Dr Hinder's certificate, the raw salad vegetable diet will be withdrawn."
The second annexure to the affidavit is a letter dated 11 December 2014, stating the reasons of a nurse unit manager at Justice Health for overriding Dr Hinder's medical certificate.
As events have transpired, however, those reasons do not presently have the legal significance I apprehended at the time I directed that they be provided. Mr Herzfeld, who appears for the Commissioner of Corrective Services, has explained to me this morning that, according to his understanding of the statutory regime, the relevant decision-maker is the General Manager of whichever prison for the time being houses Mr Monteiro.
At some time between when Mr Monteiro appeared before me on 8 December 2014 and today, he has been moved from Wellington to Mid North Coast Correctional Centre. Incidentally, that move may address some of the other relief sought in the original application, since one of Mr Monteiro's complaints related to the cold and damp conditions of his custody at what he describes as "alpine prisons". The Mid North Coast facility, I apprehend, will not have those difficulties and it may be that some of the relief sought no longer requires to be determined in light of that move, but that is incidental to the present matter.
More importantly, on 18 December 2015, Dr Michael Ferris, a different medical officer of Justice Health, set out his reasons for deciding not to issue Mr Monteiro with "a clinical certificate for a non-standard special diet". As the decision-making process has been explained to me, the significance of the assessment of Justice Health is that, although the decision-maker in questions of diet is the general manager of the relevant facility in accordance with s 233 of the Crimes (Sentence Administration) Act 2005 (ACT), the General Manager in turn takes advice from Justice Health, who is charged with the assessment as to whether a particular diet is "medically indicated" or "clinically indicated". Dr Ferris' decision not to issue a clinical certificate for a non-standard special diet was explained by reference to the following reasons:
"Your request was not in the approved form."
"Your request did not fall within the special diet policy."
"Your special diet request was not clinically indicated."
The letter continues with reference to Mr Monteiro's particular medical condition, which I will not record in this judgment.
Finally, also on 18 December 2015, the same date on which Dr Ferris stated his reasons for declining to issue a clinical certificate for a non-standard special diet, Mr Greg Steel, the general manager of the correctional centre which now houses Mr Monteiro, sent to Mr Monteiro a letter setting out his position concerning the request for a raw vegetable diet. He stated:
"I am therefore not inclined to provide you a raw vegetable diet for the following reasons: it is not routinely provided and I would have to make special arrangements at extra cost."
The letter concluded, however, by inviting Mr Monteiro to comment as to why he should nonetheless be provided with the diet.
Mr Herzfeld indicated that whilst that could readily be seen as a letter affording procedural fairness, it is not acknowledged by the Commissioner of Corrective Services that procedural fairness is a requirement of this particular decision-making process. In any event, the Commissioner is taking a practical approach to the issue at this point and it seems inevitable that a further round of consideration of material to be put before Mr Steel by Mr Monteiro must occur. More importantly, juridically, at this point, there is no decision which can properly be the subject of review by Mr Monteiro, Mr Steel having made it plain that he has not yet made that determination. Unfortunately for Mr Monteiro, whereas the period pending the previous determination saw him receiving the diet he had requested on the strength of Dr Hinder's certificate of 4 November 2014, it appears that that will not occur because of the statement of reasons of Dr Ferris dated 18 December 2015.
I do wish to observe that it seems extraordinary that a prisoner who wishes to eat a healthy diet of raw salad and vegetables cannot do so, whereas a prisoner who has a specific diet for religious reasons can, but that is not the issue before me. I have explained to Mr Monteiro that I do not have power to direct the Commissioner to provide a specific list of foods, which is the request made by Mr Monteiro on page 11 of his 12-page submission provided for the purposes of this morning's hearing. My power is confined to considering the legal correctness of the decision for the time being governing the diet provided to Mr Monteiro. It is plain that at this point in time the General Manager is yet to make a final determination on the application for a special diet, having chosen to afford Mr Monteiro an opportunity to put further material before him.
In all the circumstances, the only thing I can do in determining this issue is stand the proceedings over before me early in the new term. In the meantime, for the reasons explained during argument on the previous occasion, I consider it appropriate to refer Mr Monteiro to the pro bono scheme. The time of year may preclude anyone from taking that referral, but I propose to make the order in the hope that that is not the case.
I have explained to Mr Monteiro that he should provide to the Crown Solicitor any material upon which he proposes to rely on the next occasion. Mr Herzfeld has indicated that the Commissioner will be ready, if possible, to argue Mr Monteiro's application for interlocutory relief relating to his diet that day. Otherwise, orders should be made for the final hearing of the summons as soon as possible.
The orders are:
1. Pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW), I refer Mr Monteiro to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance. The kind of assistance for which the referral is made is: advice in relation to the proceedings and representation when the proceedings come before the Court on 3 February 2015 for determination of the issue identified in this judgment.
2. I stand the proceedings over to 3 February 2015 for argument in respect of the decision to be made in respect of Mr Monteiro's diet, if practicable.
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Decision last updated: 12 March 2015