Monteiro v State of New South Wales

Recusal application

1. After the completion of the hearing and while my decision was reserved, Mr Monteiro sent further material to the Court, including a notice of motion dated 1 June 2015 requesting that I recuse myself from the matter immediately. The grounds of the application were set out at length in the notice of motion, handwritten by Mr Monteiro. The notice of motion was listed for hearing at 2pm on 11 September 2015. Unfortunately, for reasons that are not clear, Mr Monteiro was not aware that the matter was listed for hearing until that morning. When the video link to Goulburn Correctional Centre was established, the papers he required for the purpose of arguing the application were not available to him. Accordingly, after hearing Mr Monteiro's oral submissions, I granted him leave to put on any further written submissions within seven days.
2. The further written submissions mostly addressed matters irrelevant to the recusal application. The only point referring to the recusal application was a request to have that application and all issues in the proceedings heard by the Chief Justice.
3. By reference to the matters raised in the notice of motion and in oral submissions at the hearing, the application appears to be based on the following grounds: 1. a contention that I am "covertly prejudiced" against Mr Monteiro; 2. a contention that I am a "right wing, pro-Crown judge".
4. The contention that I am covertly prejudiced against Mr Monteiro was based primarily on the content of my earlier interlocutory judgment (to which I have already referred). In his notice of motion, Mr Monteiro submitted that the content of that judgment reveals that I am "wilfully blind to obvious serious indiscretions by all departments in Justice Health NSW and Corrective Services NSW". Expanding upon that contention in oral submissions, Mr Monteiro submitted that the judgment was so biased that "blind Freddy could see" I had already formed a view on the matters before me that was unfavourable to him (T3.27). He said the judgment was "wilfully blind", adding "and that would be putting it pretty nicely" (T4.20).
5. Mr Monteiro relied in particular on three passages in the judgment. First, he relied on a passage at [7] of the judgment where, after reciting the history of the application, I said: "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."
6. Mr Monteiro evidently takes issue with the proposition that anything the Commissioner has done (in these proceedings or elsewhere) could be described as "very fair". Those words, apart from reflecting the discourse of courtesy I aim to achieve in all proceedings before me, referred specifically to the legal fact that the decision in question (that of the nurse) was one in respect of which there is probably no legal obligation to give reasons. Mr Herzfeld, who appears for the defendants, had been anxious to emphasise that proposition at the time he indicated the Commissioner's consent to provide a statement of reasons. I sought at [7] of the judgment merely to acknowledge that.
7. Secondly, Mr Monteiro relied on the judgment at [15] where I said: "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."
8. Mr Monteiro submitted that, by those words, I had glazed over conduct the United Nations would define as torture. He said: "This cruel and unfair judgment is a disgrace and I will feature it in a documentary post my release from prison in a documentary dedicated to a pro-Crown and corrupt swine judges and magistrates."
9. Finally, Mr Monteiro relied on the judgment at [20], as follows: "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 Ferres dated 18 December 2015."
10. Again, the complaint was that, by describing the Commissioner's approach as a "practical" one, I revealed my covert prejudice against Mr Monteiro. Mr Monteiro did not refer to my remarks at [21], where I said: "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."
11. I am not in fact biased against Mr Monteiro. Having reconsidered the terms of the earlier judgment as a whole, I do not think it would prompt a fair-minded, well-informed observer to apprehend otherwise.
12. I should record a discrete aspect of the application, which is the issue of delay. The recusal application was filed 3 months after I reserved my decision. Mr Monteiro argued that the delay in determining the matter was further evidence of my covert prejudice against him.
13. Unfortunately, the need to hear and determine the recusal application itself contributed to the delay. The application could not be listed before me until mid-September 2015. For the reasons already recorded, Mr Monteiro sought to file further written submissions after that hearing. It must nonetheless be acknowledged that, in the result, there has been delay between the hearing and the date of this judgment which is regrettable. It has not, however, been due to any prejudice on my part towards Mr Monteiro or, as he contended, a deliberate decision that "he can wait".
14. The second basis for the recusal application was Mr Monteiro's reading of my separate judgment in the decision of the Court of Criminal Appeal in Hawi v R [2014] NSWCCA 83 (published before the commencement of these proceedings). More accurately, Mr Monteiro complained of "cases such as Hawi". However, when pressed at the hearing of the recusal application as to whether there was any other judgment of mine he wished to rely upon, Mr Monteiro identified only my judgment in Hawi.
15. Mr Monteiro submitted that it is "blatantly obvious" from my judgment in that case that I am "just another pro-Crown empty suit incapable of fairness and impartiality". I will leave aside, for present purposes, the obvious proposition that, in order to assess that contention, the fair-minded, well-informed observer might wish to read not only the full judgment in Hawi but also the other 193 judgments in which I have sat as a member of the Court of Criminal Appeal; the many criminal cases in which I have sat at first instance and probably also any civil or administrative decisions relating to the interests of prisoners, including judgments relating to high risk offenders.
16. At the hearing of the recusal application, Mr Monteiro said he had read the judgment in Hawi and that he knew the case quite well because he knows the solicitor who represented Mr Hawi. Mr Monteiro said: "I believe your view in that case was incorrect and that's a fact because you were outgunned on it by two."
17. There was in fact no majority in Hawi; unusually, the Court was split three ways. It is true that I would have dismissed the appeal. The Chief Justice would have allowed the appeal and entered a verdict of acquittal. The third member of the bench, Price J, would have quashed the conviction but ordered a new trial.
18. The reason the Court was split in that way was that the Chief Justice would have allowed a ground that the jury's verdict was unreasonable and a further ground that the verdicts in relation to the co-accused could not be reconciled with the conviction of Mr Hawi: at [328] and [349]. Justice Price and I both disagreed with the Chief Justice and would have rejected those grounds: at [396] and [471]. Were they the only grounds, the appeal would have been dismissed by a majority of which I would have formed part.
19. However, there was an additional ground alleging a miscarriage of justice on the ground that the defence of provocation was not left to the jury. That was a ground which, if upheld, would have warranted an order granting a new trial under s 8 of the Criminal Appeal Act 1912 (NSW) but not an order under s 6(2) of the Act directing that a verdict of acquittal to be entered.
20. Justice Price was of the view that the defence should have been left to the jury. I disagreed. The Chief Justice, having concluded that the verdict was unreasonable and should be quashed, did not determine that ground.
21. There was accordingly no majority in favour of any form of order disposing of the appeal. For the reasons stated by the Chief Justice at [352] to [379], with which Price J and I both agreed, the disposition of the appeal was achieved by our all concurring in the orders proposed by Price J, giving effect to the majority view of Bathurst CJ and Price J that the appeal should be allowed whilst preserving the majority view of Price J and myself that the verdict was not unreasonable. Accordingly, whilst it is perhaps correct to say that I was "outgunned" as to whether the appeal should be allowed, there was no ground of appeal on which I was in a minority of two to one. On the unreasonable verdict ground, I enjoyed the agreement of Price J; on the provocation ground Price J and I were evenly split and the Chief Justice did not decide. (By way of footnote, it may be noted that Mr Hawi subsequently pleaded guilty to manslaughter on a basis that did not rest on provocation: R v Hawi [2015] NSWSC 206).
22. I am not persuaded that a fair-minded observer who took the trouble to read all 531 paragraphs of Hawi would conclude that I am a "pro-Crown empty suit incapable of fairness and impartiality".
23. For those reasons, the recusal application is refused.

Decision under review

1. The challenge to be determined in this judgment relates to a decision not to provide Mr Monteiro a raw vegetarian vegetable and salad diet which he claims is necessary to maintain and preserve his health. Before identifying the precise decisions under review, it is necessary to explain some background.

Circumstances in which the challenge is brought

1. Mr Monteiro suffers from hypothyroidism (underactive thyroid glands) which affects his metabolism. There is no dispute as to that diagnosis; it is clearly documented throughout his medical records. Mr Monteiro complains that, as a result, he has a sluggish bowel, is constipated and has developed haemorrhoids. He states that, when he is not eating raw vegetables, his bowel motions need to be controlled by laxatives whereas when he is eating a raw vegetable diet he suffers no symptoms. He suffers additional symptoms when using laxatives and is also concerned about the long-term impact of controlling his condition in that way. He apprehends that, if he is not granted parole, those vexations will continue for the long term. Whilst lawyers tend to focus on a prisoner's non-parole period, Mr Monteiro noted that the risk of having to serve at least part of the balance of term is not theoretical in his case. As noted above, he has already been refused parole once.
2. Portions of Mr Monteiro's medical notes were tendered. Those notes were relied upon by the relevant decision-makers in the manner outlined below. The earliest note to which I was asked to have regard is a note dated 27 July 2014 which records Mr Monteiro's request for a "strictly vegetarian" diet to address the symptoms described above. The note states "Is also Buddhist". The note records that a certificate for a vegetarian diet was given that day.
3. A separate entry, undated but falling between entries dated 27 July and 18 August 2014, records a referral to a GP "to check thyroid function/meds". Mr Monteiro was housed at Parklea Correctional Centre at that time. On 11 August 2014, the nurse unit manager at Parklea gave him a certificate for an "uncooked vegetarian diet".
4. The next relevant notes are the notes of Dr Hinder dated 17 October 2014 when Mr Monteiro presented with a complaint of "constipation due to not getting his cold raw salad diet". The notes conform to the stereotype that all doctors have illegible handwriting. As best I have been able to decipher them (adopting most but not all of a transcription offered by the Commissioner), the notes continue: "Requests additional certificate from me [indecipherable] so that he can say that the diet is necessary for his health. I doubt there is any compelling evidence that applies particularly to him that the diet is necessary to his health - and his constipation may be partially due to his not having sufficient thyroid hormone on board. Getting blood test on Monday."
5. A later note reveals that blood results were indeed received the following Monday, 20 October 2014. The later note records levels for TSH (thyroid-stimulating hormone) but there is no evidence before me to explain the significance of the levels recorded. In any event, on 4 November 2014, Dr Hinder provided a clinical certificate for a non-standard diet. The certificate certified that Mr Monteiro has a medical condition that requires a special diet. It specified that the following diet was "clinically indicated" for Mr Monteiro: "Raw salad vegetables (no frozen vegetables) only". There is no separate clinical note to match the date of that certificate. Chronologically, it was issued after the receipt of the blood test results.
6. In the meantime, Mr Monteiro had commenced these proceedings (on 23 October 2014).
7. The next relevant note (dated 18 November 2014) begins "review hypothyroidism". The author is not identified. The note records discussion of "multiple issues" with Correctional Services including a complaint that they were not properly acting on his diet despite several medical certificates.
8. It appears that, on 27 November 2014, Mr Monteiro was transferred to a different facility (not identified). He was seen after his arrival. The note of a registered nurse that date says: Pt requesting one out and raw vegetable diet. Pt told will organise ASAP with kitchen.
9. However, the nursing unit manager (NUM) at Wellington Correctional Centre subsequently declined the request for a special diet. As noted by Mr Godkin, she did so without examining Mr Monteiro or having any consultation with him. Her notes dated 8 December 2014 record that she asked him to attend the clinic to discuss his request for a raw vegetable diet but that Mr Monteiro did not attend as he had court (that appears to be a reference to one of his early appearances in these proceedings). Evidently referring to a policy document (considered below), the NUM wrote: "Discussed Special Diets at Synopsis which clearly states that 'raw vegetable diet' does not come under clinically recommended diets. Pt has two certificates in file but no clinical notes to justify why certs written. Will call pt to explain policy again."
10. The determination was explained in a letter to Mr Monteiro dated 11 December 2014. The NUM said: "In considering the request and making my decision, the process followed was to: Review Mr Monteiro's file from early 2014 and search for any consultations with nursing staff or visiting medical officers VMOs) regarding medical conditions that indicated a need for a special diet. Check the patient appointment system (PAS) for any appointments or presenting conditions that may have led to the provision of a special diet. Check on the Justice Health Electronic Health System (JHeHS) for any known Health conditions or alerts. Review the Justice Health policy for provision of a nonstandard diet."
11. The NUM concluded, apparently primarily from what she perceived to be an absence of records, that there were "no clinical indications that would warrant a non-standard diet certificate for raw vegetables". She said she found no documentation outlining any medical condition to indicate why Dr Hinder had issued a certificate for a non-standard diet on 4 November 2014.
12. It is true that there does not appear to be any clinical note dated 4 November 2014 in relation to Dr Hinder's certificate of that date. However, as outlined above, there was a wealth of documentation in the notes leading up to that date of the medical condition and the symptoms in response to which Dr Hinder formed the opinion that the special diet was required. The medical condition was one which is able to be diagnosed by reference to objective symptoms including blood tests. The notes recorded clinical symptoms caused by that condition (constipation causing haemorrhoids) and the patient's positive experience in managing those symptoms with the special diet requested.
13. In any event, apparently as a result of the NUM's determination, Mr Monteiro was not provided with the diet identified in Dr Hinder's certificate after his transfer to Wellington. He lodged a complaint.
14. On 10 December 2014, the acting general manager of Wellington Correctional Centre, Mr Peebles, wrote to Mr Monteiro acknowledging his complaint and explaining the decision not to provide the diet certified by Dr Hinder. He said: "I have been advised by Senior Justice Health staff that there is no medical basis for you to receive such a diet. I also note the medical certified issued by Dr Hinder on 4 November 2014. My advice from Senior Justice Health Staff regarding this medical certificate is that it is not based on any medical requirement and should not have been issued. Given the medical certificate is in existence however, I have directed you be provided with a raw salad vegetable diet at this time. I have however asked Justice Health to have this matter reviewed by the centre's visiting medical officer, Dr Ferres, at the earliest possible opportunity. Should Dr Ferres invalidate Dr Hinder's certificate, the raw salad vegetable diet will be withdrawn."
15. It is important to record the next few entries in full. The NUM's notes for 11 December 2014 state: "9:30: phone call from Gurder advising me to contact Crown Solicitor John McDonnell re giving a statement on my decision to deny Pt [patient] a "raw vegetable" diet Certificate. 10.00am: phone call from Dr Badami asking that I meet with Dr Ferres and that we get pt up to clinic to inform him that he has no medical condition or clinical indication to warrant a diet certificate for raw vegetables." [emphasis added]
16. Those notes suggest that the NUM was asked to meet Dr Ferres before Dr Ferres saw Mr Monteiro. The subsequent notes appear to confirm that that is what in fact occurred. Further, the words in italics suggest that, before Mr Monteiro saw Dr Ferres, the decision had already been made within Justice Health that a certificate for a raw vegetable diet was not warranted.
17. Dr Ferres, whose handwriting is no clearer than that of Dr Hinder, made a series of notes which appear to record a review of the background rather than any consultation with Mr Monteiro. The notes begin with a list of conditions evidently attributed to Mr Monteiro, including "hypothyroidism" but also including two references to his mental health and two further entries I am unable to decipher.
18. The notes continue (if I have read them correctly): "Needs adequate monitoring treatment of thyroid disease. Constipation. Needs fibre. Diet regulations permit - vegetarian diet (but not uncooked) Suggest Metamucil + [illegible] [illegible] - short term No medical indication to sustain certificate for uncooked vegetable diet. Declines to have Metamucil."
19. The next note appears to be the handwriting of the NUM. Dated 11 December 2014 at 13.30pm, the note says: "Remand in Room with Dr Ferres with a CSNSW officer Mr C. Smith and Mr B. Peebles as requested by Dr Badami. Patient very demanding threatening court, threatening to sue - raised voice, pointing finger, speaking down to me. Pt would not be quite (sic) long enough for myself or Dr to explain anything. Everything the Dr said he knew all about it. Demanding Dr write certain things in notes."
20. In his affidavit in these proceedings, Mr Monteiro said Dr Ferres was in consultation with him for approximately two minutes that day. Mr Monteiro said he refused to be examined by Dr Ferres and refused to answer any of Dr Ferres's questions. That evidence reinforces my conclusion that Dr Ferres's notes were made before his "consultation" with Mr Monteiro. Accordingly, so far as the record reveals, Dr Ferres's note "No medical indication to sustain certificate for uncooked vegetable diet" is either something he was told by someone else or a conclusion he reached without seeing or examining the patient.
21. On 11 December 2014, Dr Ferres decided not to issue Mr Monteiro with a clinical certificate for a non-standard diet. He provided a statement of his reasons for that determination in a letter to Mr Monteiro dated 18 December 2014. The determination was as follows: "I formed the view that a special diet of raw vegetables was not clinically indicated and the request could not be granted because it did not fall within the Justice Health and forensic mental health network policy, "special diets - clinically recommended" ("Special diet policy")."
22. The reasons stated for that determination were that Mr Monteiro's request was not in the approved form; that his request did not fall within the "Special Diet Policy" and that his special diet request was not "clinically indicated". Dr Ferres considered that Mr Monteiro's bowel condition could be treated with fibre contained in cooked vegetables and Metamucil which he noted had been offered to Mr Monteiro but declined.
23. The reference to the failure to make the request in the approved form is curious; it was Mr Peebles who asked Justice Health to have the matter reviewed by Dr Ferres, not Mr Monteiro.
24. Mr Monteiro was subsequently transferred to Mid North Coast Correctional Centre where he again requested a raw vegetable diet. The general manager of that centre, Mr Steele, treated the request as one for the provision of a diet that was not routinely provided and, importantly, not clinically indicated. In a letter dated 18 December 2015 to Mr Monteiro, the General Manager stated that he was not inclined to provide the diet sought but he invited comment from Mr Monteiro. Mr Monteiro provided comments in a document dated 21 December 2014. He took issue with the determination that a raw vegetable diet was not "clinically indicated" stating that, based on his own research and his own prison experience, the cooked food provided in the prison contained insufficient nutrients and fibre to maintain his health. On that basis, he submitted that his dietary requirement was "clinically indicated".
25. Mr Monteiro's letter also referred to the Standard Guidelines for Corrections in Australia, under which he submitted he was owed a duty of care and an entitlement to be individually managed with regard to specific needs.
26. In response to the general manager's notation that, in order to provide the diet sought, he would have to make special arrangements at extra cost, Mr Monteiro offered to pay for his raw vegetable diet if required. He also repeated his claim that he is a practising Buddhist and yoga practitioner. He said "Buddhists and yoga practitioners often consume a raw diet as part of our beliefs". On that basis, he raised a separate basis for the diet, namely, as a religious diet of the kind provided to Jewish or Muslim prisoners.
27. Mr Monteiro also noted that, at Goulburn Correctional Centre, prisoners can receive raw salad vegetables with no requirement to obtain a medical certificate.
28. On 6 January 2015, the general manager refused Mr Monteiro's request for a raw vegetable diet. He stated his reasons for that decision in a further letter dated 29 January 2015, as follows: "1. In accordance with the assessment of Dr Michael Ferres as set out in his letter of 18 December 2014, the diet is not medically required. 2. I was advised that a raw food diet is not in the Corrective Services NSW Operations Manual, Section 7.9. 3. It is my understanding that the vegetarian diet provided by Corrective Services Industries accommodates the requirements of Buddhist beliefs. 4. Vegetarian meals which are manufactured and supplied as per the Corrective Services Industries' Menu Control Plan have been checked and approved by a nutritionist to meet the dietary needs of inmates. 5. A raw food vegetable diet would not offer a varied diet as the Food Service Unit ("FSU") only has a limited range of raw products available and some of the raw vegetables used in the FSU require further cooking (for example, potato and pumpkin) and some are frozen. There would only be about six or seven suitable vegetables currently in use. 6. A raw food vegetable diet offers no guarantee of nutritional value. FSU is limited to the vegetables available and I would be unable to guarantee the nutritional value of what is being supplied. In particular, I would be unable to guarantee that the requisite amount of protein would be provided. 7. To ensure a more varied diet it would be necessary to purchase additional vegetables just for one inmate's meals, which would not be very cost effective."

Relevant provisions and policies

1. The Commissioner's written submissions provided a summary of the specific legislative provisions and administrative policies relevant to the determination of the diets of inmates. Before turning to those specific provisions, some broader propositions may be noted.
2. The rule of law should protect prisoners no less than it protects any other class of person. In Barreto v McMullan [2014] WASCA 152, the Court of Appeal of Western Australia said at [152] that a prisoner does not have the rights and privileges of an ordinary citizen. I apprehend that statement was meant to be understood as a description of the practical corollaries of being lawfully detained in a correctional centre. The imposition of a sentence of imprisonment is an authorised curtailment of the common law right of freedom of movement. Incidentally, it necessarily curtails many ordinary freedoms but it is not a broad abrogation of unspecified rights.
3. A court that sentences an offender to imprisonment must issue a warrant for the committal of the offender to a correctional centre. The warrant is the source of authority for the governor of the correctional centre to keep the offender in his or her custody for the term of the sentence: s 62 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
4. While held in custody in a correctional centre, an inmate is taken to be in the custody of the general manager of the correctional centre to which he or she has been committed: s 72 of the Crimes (Administration of Sentences) Act 1999 (NSW). The administration of sentences is governed by that Act. The objects of the Act are stated in s 2A of the Act, as follows: (1) This Act has the following objects: (a) to ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment, (b) to ensure that other offenders are kept under supervision in a safe, secure and humane manner, (c) to ensure that the safety of persons having the custody or supervision of offenders is not endangered, (d) to provide for the rehabilitation of offenders with a view to their reintegration into the general community. (2) In the pursuit of these objects, due regard must be had to the interests of victims of the offences committed by offenders. (3) Nothing in this section gives rise to any civil cause of action or can be taken into account in any civil proceedings.
5. Mr Herzfeld, who appears for the Commissioner, submitted that a possible implication of subsection (3) is that the objects of the Act cannot be taken into account in these proceedings. In my view, consistently with the reasoning of the Court of Appeal in Patsalis referred to at the outset of this judgment, that section should not be construed so as to preclude my having regard to the objects of the Act. The reviewability of a decision made within the context of such a prescriptive legislative regime could scarcely be considered without regard to the objects of the primary governing Act. Those objects include the object of ensuring that those offenders who are required to be held in custody are placed in an environment that is safe, secure and humane. The pursuit of that object is tested at a time when, as is notoriously the position in New South Wales at the moment, prisons are overcrowded.
6. The administration of correctional centres is governed by Part 11 of the Crimes (Administration of Sentences) Act. Section 233 of the Act, which falls within that part, relevantly provides: "the general manager of a correctional centre has the care, direction, control and management of the correctional centre". The exercise of that function is subject to the direction and control of the Commissioner.
7. Health services for inmates are addressed in division 4 of Part 11. Section 236A confers upon Justice Health the function of providing health services to offenders and other persons in custody; to monitor the provision of health services in correctional centres and, relevantly, to provide advice to the Commissioner on the diet, exercise, clothing, capacity to work and general hygiene of inmates.
8. There is further provision relating to the diets of inmates in the Crimes (Administration of Sentences) Regulation 2014 (NSW): Regulation 50 provides: (1) An inmate must be supplied each day with food in accordance with a diet designed to provide a dietary intake generally in accordance with the recommended dietary intakes published by the National Health and Medical research Council. (2) The diet must: (a) be varied, and (b) provide adequate amounts of each essential nutrient from basic foods; and (c) be planned to ensure optimal nutritional health. (3) the diet of an inmate having special dietary needs is to be planned having regard to those needs. Regulation 52 provides: (1) The general manager of a correctional centre may permit an inmate: (a) to purchase food available for purchase at the centre or outside the centre, or (b) to arrange for the supply of food from outside the centre. (2) An inmate must not purchase food, or arrange for the supply of food from outside a correctional centre, unless permitted to do so under subclause (1). (3) An inmate must not receive or have in his or her possession any food other than food supplied by a correctional centre or food that he or she is permitted to purchase or be supplied with under this clause. (4) An inmate supplied with food from outside a correctional centre must ensure that none of it is received by another inmate.
9. Mr Herzfeld submitted that, although it is not expressly stated, the implication to be drawn from those regulations is that the ultimate responsibility for the diets of inmates at correctional centres rests with the general managers of those centres as an aspect of the broad function conferred upon them under s 223 of the Act. I agree.
10. Mr Herzfeld also drew my attention to reg 287, which provides: (1) As soon as practicable after forming an opinion that an inmate's diet, exercise or other treatment should be varied or modified for reasons of health, a prescribed health officer must report that he or she has formed the opinion, and the grounds for the opinion, to a prescribed CSNSW officer. (2) On receiving a report referred to in subclause (1), the prescribed CSNSW officer: (a) must take the steps that are reasonable to carry into effect any recommendation contained in the report, and (b) in the case of a report with respect to a serious offender, must ensure that written particulars of the report are kept available for reference by the Review Council. (3) If it is impracticable to carry a recommendation into effect, the prescribed CSNSW officer must report that fact to the Chief Executive, Justice Health and Forensic Mental Health Network.
11. Mr Herzfeld also identified three administrative policies which he submitted are relevant to the determination of diets of inmates. First, the general provision of "food services" to offenders is subject to a policy developed by "corrective services industries". Secondly, a policy has been developed by Justice Health for consideration of "Special Diets" which are "clinically recommended" or "clinically indicated". Thirdly, there is a policy of providing diets to meet the religious needs of individual inmates. Each of those policies was put in evidence by the Commissioner.
12. Mr Godkin also placed reliance on the contents of the "Standard Guidelines for Corrections in Australia" (p 12 of annexure L to affidavit of Denielle Brassil of 29 January 2015) which acknowledges that prisoners are to be treated with respect as human beings and not to be subject to harsh or degrading treatment. The Standard Guidelines also state that prisoners are to be "individually managed".
13. Of particular importance in the present case is the "Special Diets" policy. The policy states, as a mandatory premise, that recommendations for diets outside of the standard, vegetarian and religious friendly diets must be clinically indicated "and not on the basis of a patient's like or dislike of food items". As it was put to Mr Monteiro at one point (in terms embraced by Mr Herzfeld), it was a prison, not a hotel.
14. The "Special Diets" policy provides that the standard, vegetarian and religious friendly diets do not require a clinical certificate. Medical Officers and Nursing Unit Managers can approve the following diets:
15. As a "Standard Special Diet": high protein, lactose free, low fibre, reduced energy, gluten free and renal diets.
16. As an "Individual Non-standard Special Diet": allergy diet, food intolerance diet, special diet prior to medical investigations/procedures, or a variance to a standard special diet.
17. It may be accepted that the diet sought by Mr Monteiro was not one of the six available Standard Special Diets listed above. He sought one of the three routinely offered diets with a variance. Specifically, he requested a vegetarian diet but requested that it be raw.
18. The procedure to give effect to the "Special Diets" policy is stated in clause 3 of the document. Clause 3.3 states: "[Justice Health] recognises there are certain medical conditions that require dietary considerations that are not normally met within the diets offered by Medirest and CSI. In these cases, Medirest and CSI will provide a limited range of special diets to meet these requirements as listed above in section 2.1. Where a diet not routinely offered is indicated, a [Justice Health] authorised MO or NUM will make a recommendation to Medirest or CSNSW that a Standard Special Diet and/or Individual Non Standard Special Diet is required. These requests must be based on a clinical need and as such they must be approved by authorised [Justice Health] clinicial staff on the [Justice Health] Clinical Certificate - Standard Special Diety and/or Non Standard Special Diet form (JUS200.030)."
19. Whether described as a variation to a routinely offered diet (vegetarian but raw) or an "Individual Non-standard Special Diet", the diet requested by Mr Monteiro fell within the policy and could be recommended if it was "clinically indicated" (clause 2.1).
20. Clause 3.3.2 of the procedure provides that Justice Health is responsible for ensuring that a review of any such recommendation occurs before the recommendation expires and that a further certificate is submitted if required. It also states that "NUMs must review the Special Diet lists at each of their health centre/in patient units on at least a monthly basis to determine all Special Diets are still required".

Decisions under review

1. Mr Monteiro's summons did not identify with specificity the decision of which review is sought. The hearing proceeded on the common premise that the relevant decisions are: 1. The decision of Dr Ferres made 11 December 2012 on behalf of Justice Health that the special diet sought by the plaintiff was not required for reasons of health. 2. The decision of the general manager of the Mid North Coast Correctional Centre made on 6 January 2015 not to direct the provision of a raw vegetable diet.
2. Mr Herzfeld noted that, although the decision of Dr Ferres was only a recommendation, it was capable of having sufficient legal effect (by reason of reg 287) to be amenable to orders in the nature of certiorari, citing the decision of Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580.

Grounds of review

1. The summons also failed to specify the grounds upon which review of those decisions is sought which, as Mr Herzfeld noted, is contrary to the requirement of r 59.4(c) of the Uniform Civil Procedure Rules 2005 (NSW). Of course, it is not open to Mr Monteiro to seek review of the merits of either decision.
2. In written submissions prepared by Mr Godkin, a number of specific grounds of review were articulated. Mr Herzfeld did not oppose my determining the application by reference to those grounds. I considered it appropriate to proceed on that basis having regard to the fact that the plaintiff is a prisoner and his counsel accepted instructions pursuant to a pro bono referral without the benefit of an instructing solicitor. At the risk of again provoking Mr Monteiro's ire, I wish to record that Mr Herzfeld's approach to that and many aspects of the hearing was punctiliously fair.

Reviewability of managerial decisions by prison authorities

1. The grounds for review formulated by Mr Godkin in the written submissions were broad, extending to "legitimate expectation", apprehended bias, failure to take into account a relevant consideration, taking into account an irrelevant consideration, the inflexible application of policy without giving real consideration to the plaintiff's circumstances, unreasonableness and improper purpose.
2. The Commissioner contended that the exercise of ordinary managerial powers by prison authorities is reviewable only for bad faith or improper purpose. Mr Herzfeld submitted that the permissible grounds for judicial review are confined in that way by a long line of authority. He acknowledged that some first instance authorities have recognised that Wednesbury unreasonableness is also a permissible ground, citing Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82 at 88-89 per Dunford J; Fyfe v Bordoni (1998) 199 LSJS 401 at [61] and Kaufman v Smith (2001) 124 A Crim R 259 at 267 [32]. He submitted that the authorities have repeatedly denied the implication of an obligation to afford procedural fairness when making decisions concerning the ordinary management of prisons.
3. Mr Herzfeld recognised this Court's constitutionally entrenched authority to review the decisions of statutory decision-makers for jurisdictional error recognised in Kirk v Industrial Court (NSW) (2010) 239 CLR 531. He submitted, however, that the question as to what constitutes jurisdictional error is a matter of statutory construction so that if, for example, as a matter of proper construction, it is not a condition of the exercise of power to afford procedural fairness, it is not a jurisdictional error to fail to do so.
4. Mr Herzfeld also invoked the well-known statement in the decision of the High Court in Minister for Immigration & Ethnic Affairs v Weu Shan Liang (1996) 185 CLR 259 at 271 to 272 that the Court should not review reasons for decision "minutely and finely with an eye keenly attuned to the perception of error".
5. The Commissioner submitted that, applying those principles, the Court would accept that neither decision was invalid. As to Dr Ferres, it was submitted that he addressed himself properly to the question posed by reg 287 (whether the inmate's diet "should be varied or modified for reasons of health"). It was contended that Dr Ferres "consulted the plaintiff and formed the view, evidently based on his medical experience, that the diet sought by the plaintiff was not clinically indicated in the case of the plaintiff, ie required for reasons of health".
6. As to the decision of the general manager, Mr Herzfeld submitted that, there being no recommendation from Justice Health, the general manager was not compelled by reg 287 or otherwise to direct the provision of a special diet.
7. Mr Godkin did not accept that the grounds for review of the exercise of ordinary managerial powers by prison authorities are limited to bad faith or improper purpose.
8. The jurisprudence relied upon by the Commissioner begins with the decision of the Full Court of the Supreme Court of Queensland in McEvoy v Lobban [1990] 2 Qd R 235 at 240 to 241. In my respectful opinion, it overstates the reach of that decision to say that it confined the grounds for review of decisions of prison authorities concerning ordinary management "only to bad faith and improper purpose".
9. The decision under review in McEvoy concerned the treatment of a prisoner suspected to be a ringleader at a time when prison authorities had received information that a riot was being planned. In order to minimise the risk, the governor of the prison decided to isolate the ringleader by confining him to his cell for four days. He sought a declaration that his isolation was unauthorised at law. The function under consideration was "to direct, control and manage prisoners in the interests of security and to ensure safe custody of inmates". In that context, the Court held that the requirements of natural justice would not inhibit a reasonable and necessary use of administrative power on the part of the Governor of the prison when used to avoid a breach of the peace.
10. Justice Thomas wrote the primary judgment. His Honour considered an argument that decisions of that kind are not reviewable at all by the courts. It was in that context that his Honour referred to "reluctance" on the part of the courts to become involved in review of matters that arise in the administration of prisons. Whilst observing that the borderline between functions of management and adjudicatory (punitive) functions within a prison may be difficult to draw, his Honour stated (at 240.50): "I do not think that it is open to say that the exercise of the power of segregation is unreviewable by the courts. If for example the interference with the prisoner were to be of sufficient moment to be regarded as defeating the legitimate expectation of an ordinary benefit, and the power were exercised in bad faith for an ulterior purpose plainly a court would enter upon a review."
11. His Honour concluded (at 241.43): I find it impossible to envisage any legitimate involvement of the courts in the review of the bona fide acts performed by persons involved in the administration of prisons in the course of steps taken to avoid a breach of the peace. Steps taken to punish a prisoner are something different and naturally may attract review. Further, if a prison officer by cynical pretence abuses his powers to victimise a prisoner under the guise of ordinary management, the court will in an appropriate case intervene. I do not imply that this is the only point at which the courts would exercise prerogative powers, but it affords a clear example where the court's intervention would be called for (at 241).
12. Chief Justice Macrossan agreed. His Honour said that the feature of the case which was of "fundamental importance" was that the segregation of the prisoner was "an action bona fide taken in the interests of the prison as a whole" and one done "as a precaution against the possibility of a riot which it was feared might take place": at 236.1. His Honour concluded that the Governor's action in that case was "unchallengeably a management decision taken squarely within the scope of the power which prison governors necessarily possess, that is if anarchy is to be avoided": at 236.17. His Honour noted that the Court had been referred to cases which speak in terms of the prison authority's decision not being "examinable" but preferred to express his conclusion, not as a matter of jurisdiction but because the challenged action in that case had been legitimately performed in the exercise of a discretion lying comfortably within the limits of the power of management conferred by the relevant legislation.
13. Justice Lee agreed with Thomas J and the Chief Justice.
14. McEvoy v Lobban is authority for the proposition that decisions relating to individual prisoners are not unreviewable. The Court considered that such decisions are subject to judicial review if made in bad faith or for improper purposes. I do not think a restrictive principle in the terms contended for on behalf of the Commissioner was stated. Indeed, the remarks of Thomas J at 241 (set out above) reveal that the Court was concerned not to be definitive as to the limits of the proper exercise of the Court's prerogative powers. Nonetheless, I accept that the decision has subsequently been interpreted as authority for the principle stated by Mr Herzfeld, most recently by this Court in McKane v Commissioner of Corrective Services [2015] NSWSC 737 at [55].
15. The broader view reflected in the grounds articulated by Mr Godkin finds support in the decision of Dowd J in Middleton v Commissioner of Corrective Services (NSW) (2003) 143 A Crim R 364. The decision in that case was concerned with a prisoner who was enrolled in a Bachelor of Engineering degree. He had originally been a prisoner in Queensland where he had been permitted access to his computer in his cell during lockdown periods for educational purposes. He spent about 40 hours a week studying and was achieving good grades. He was subsequently transferred to a correctional centre in New South Wales where he was refused access to this computer in his cell which forced him to drop out of almost all subjects. The reason for the refusal was a prohibition on the use of computers by any prisoners other than those with a minimum security classification.
16. Justice Dowd said that the prisoner's request to use a computer was one which required "proper consideration". His Honour held (at 372 [53]) that the determination of that request by reference to a blanket prohibition on the use of computers by medium and heavy security prisoners amounted to: "a failure to exercise the discharge of the exact function according to the law as Dixon J set out in Avon Downs (supra), and is in breach of the principles set out in Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 96, 98 which applied Gummow J in Kahn v Minister for Immigration, Local Government and Ethnic Affairs, unreported, 11 December 1987. The principle there reaffirmed is that the Commissioner and Governor were required to consider all relevant material which is placed before him and that there should be "...proper, genuine and realistic consideration to the merits of the case"."
17. The passage from Avon Downs referred to was one in which Dixon J had said that a decision of the Commissioner of Taxation is liable to review "if he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination": Avon Downs v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360.
18. Mr Herzfeld noted that the broader view stated in Middleton was stated without reference to the well-established line of authorities relied upon by the Commissioner in this case and should not be followed. It may well be that the decision in Middleton states the position too broadly. In my respectful opinion, however, the correct approach should not be stated in the terms contended for by the Commissioner. In particular it is undesirable, in my view, to attempt to state the extent of the court's prerogative power in any class of case by reference to a confined list of grounds. As explained by the Court of Appeal of Western Australia in Barreto at [150], the correct focus is "the proper construction of the Act and whether the decisions in question were vitiated by jurisdictional error". There the Court said that the correct focus is not on whether "management decisions" made by a superintendent of a prison are subject to "judicial review".
19. Barreto was a case in which, as here, a prisoner sought a broad array of declaratory relief as to the terms of his incarceration. The defendant (the superintendent of the prison) sought preliminary determination of the question of law whether, assuming the decisions in question were made in good faith and for a proper purpose, those decisions were "lawful and not open to judicial review" (at [55]). The decision of the Court of Appeal supports two unexceptionable propositions. First, there is no special principle that management decisions in a prison context are immune from judicial review. Secondly, the correct focus in each individual case is the proper construction of the Act and whether the decision in question was vitiated by jurisdictional error. Applying those principles, the task for the court, when review is sought, is to consider the statutory context in which the decision was made with a view to determining whether the decision-maker had authority to decide in the manner found.
20. It may well be the case, and is indeed likely, that many statutory provisions that confer management powers on prison authorities are not apt to be construed as being conditioned other than by a requirement to act in good faith and for a proper purpose or not unreasonably in the Wednesbury sense. Indeed, that was the effect of the Court's conclusion in Barreto at [147]-[169]. In my view it is nonetheless important not to purport to distil a principle of finer concentration than is admitted by the nature of the mixed authorities in this field. Ultimately, each case must be determined according to the particular statutory regime and the particular decision under consideration.

Consideration

1. As noted on behalf of the Commissioner, Mr Monteiro's argument appeared to proceed on the premise that if, as a matter of objective fact to be determined by the Court, an inmate has special dietary needs, reg 50(3) mandates a special diet. Mr Herzfeld submitted that, to the contrary, reg 50(3) should be construed as turning upon the satisfaction of the general manager on that issue, citing QBE Insurance (Australia) v Miller [2013] NSWCA 442 at [11] to [35] per Basten JA. I accept that submission. The question appropriately considered by this Court in that context is whether the relevant health officer's opinion was validly formed.
2. It is not for this Court to determine whether, on the strength of the material before the medical officer, the opinion could validly be formed that the diet sought by Mr Monteiro was not required for reasons of health.
3. What is troubling in the present case is the process by which the doctor's opinion was reached. That was a critical step in the course of events which led to the circumstance that the general manager came to make his decision on the premise that a raw vegetable diet was not "medically required". As contemplated by reg 287, a prescribed health officer had reported his opinion that an inmate's diet should be varied or modified for reasons of health. The troubling circumstance of this case is that, without consulting Mr Monteiro and apparently unilaterally, the NUM rejected that opinion and determined not to act upon it. As the facts recited above reveal, her decision to that effect was implemented immediately, that is, Mr Monteiro was not given the diet recommended by Dr Hinder until he lodged a complaint with the general manager.
4. I acknowledge that, under clause 3.3.2 of the Special Diets policy, the NUM has the function "to review the Special Diet lists at on at least a monthly basis to determine if all Special Diets are still required". It is doubtful whether that function extends to purporting to review the individual clinical needs of any particular patient without consulting the patient and in such a way as to countermand the recommendation of the treating doctor. So much is acknowledged in the general manager's decision, in response to Mr Monteiro's complaint, to provide the diet on the strength of Dr Hinder's certificate pending review by the centre's visiting medical officer, Dr Ferres.
5. The function to be performed by the appropriate officer of Justice Health in accordance with reg 287 was to review a recommendation that Mr Monteiro's diet should be varied or modified (by reference to the routinely-provided diets) for reasons of health. The "Special Diets" policy guided the making of that determination according to whether the variation sought was "clinically indicated". A close examination of the clinical notes has persuaded me that Justice Health did not discharge that function in good faith. In reaching that conclusion, I mean no direct criticism of any individual decision-maker. The determination was made in an unorthodox manner by a combination of steps, informed partly by the commencement of these proceedings. I am persuaded, however, that a combination of factors has resulted in a miscarriage of the process resulting in a determination that was beyond authority.
6. First, it is clear that the NUM undertook her review, and made a decision, without regard to the clinical indications. Contrary to her statement of reasons, there was documentation in the patient's notes outlining a medical condition which indicated why Dr Hinder had issued the certificate for a non-standard diet on 4 November 2014. As already noted, those entries are in some respects illegible and that may explain her overlooking them but the fact is they must have been overlooked.
7. Secondly, it is common ground that the NUM did not consult with Mr Monteiro so as to learn any clinical presentation that might be relevant to an analysis of the notes. The term "clinically indicated" suggests, ordinarily, a consideration of the presentation of the patient. That is not always possible but the failure to consult the patient was compounded in this case by the failure to find the relevant notes.
8. Thirdly, the NUM's notes of 11 December 2014 suggest that, contrary to what was foreshadowed in Mr Peebles's letter of 10 December 2014, Dr Ferris did not independently review the clinical indications. He was a visiting medical officer, probably dependent to a degree on the information provided to him by Justice Health. His note that there was "no medical indication to sustain certificate for uncooked vegetable diet" either recorded something he was told by someone else or a conclusion he reached without seeing the patient (and accordingly without learning, from the patient, what were the clinical indications for a modified diet).
9. Finally, it is clear, in my view that the "consultation" with Dr Ferris on 11 December 2014 was not an ordinary medical consultation. Described as a "remand", it took place in the presence of a Corrective Services officer and the acting general manager of the correctional centre. That may well have been due to safety concerns but it was not the same kind of consultation as was had with Dr Hilder. Mr Herzfeld relied on the fact that Mr Monteiro refused to answer Dr Ferres's questions as a factor against him in that respect. I do not think that is fair. Mr Monteiro did not request to be reviewed by Dr Ferres; as a prisoner, however, he had no choice but to attend. In any event, the notes reveal, in my view, that the purpose of the "remand" was to tell the prisoner of the decision already reached, not to undertake a genuine review of his clinical presentation. My consideration of the statement of reasons has not altered that conclusion.
10. For those reasons, I am satisfied that Mr Monteiro is entitled to a declaration that the decision of Justice Health made 11 December 2014 that the special diet sought by Mr Monteiro was not required for reasons of health was invalid.
11. There is no utility in quashing that decision, since it is no longer operative and, indeed, was no longer operative as at the date of the hearing. As already noted, the policy contemplates that such decisions will be reviewed on at least a monthly basis.
12. Nor is it appropriate to grant the further relief sought by Mr Monteiro of ordering that he be provided with a particular diet. It is not the role of this Court to descend into the management of prisons. The Court's role is a supervisory one; it is confined to judicial review of the exercise of statutory authority.
13. In light of the conclusion I have reached on that issue, it is not necessary to determine the other grounds advanced by Mr Monteiro.

Costs

1. The parties were heard briefly as to costs at the hearing.
2. In Patsalis, Basten JA observed that, in circumstances where a prisoner raises an issue that is reasonably arguable and might have had wider consequences with respect to the administration of the prison system, it may well be appropriate not to order costs against him: at [102]. Mr Monteiro has not been successful in obtaining relief in the nature of certiorari but has obtained declaratory relief. As he was represented by counsel, subject to any submissions that might be put on behalf of the Commissioner, I would be minded to order the Commissioner to pay Mr Monteiro's costs of the hearing of 26 February 2015. If any different order is sought, I will deal with the matter on the papers.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2015