Palmer v The Chief Executive, Qld Corrective Services & Ors [2010] QCA 316

ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES - GENERALLY - where applicant is a prisoner at a corrective services facility - where applicant sought judicial review of a decision by the respondents to limit the quantity of legal documents he could have in his cell at any one time - where trial judge found there had been no decision under an enactment capable of review and dismissed the application - where applicant's appeal is out of time - whether there was a relevant decision under an enactment - whether any decision affected the applicant's legal rights - whether an extension of time should be granted

Corrective Services Act 2006 (Qld), s 45, s 136, s 140, s 141, s 263, s 271, s 317, s 317(1), s 317(2)

Corrective Services Regulation 2006 (Qld), s 18, s 19(h), s 45

Judicial Review Act 1991 (Qld), s 4, s 20, s 22, s 32, s 48

Abbot v Howden, General Manager, Woodford Correctional Centre [2006] QSC 186, cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, applied

Australian National University v Burns [1982] FCA 191; (1982) 64 FLR 166, cited

Barrow v Chief Executive, Department of Corrective Services [2004] 1 Qd R 485; [2002] QSC 168, cited

Bartz v Chief Executive, Department of Corrective Services [2002] 2 Qd R 114; [2001] QSC 392, distinguished

Burns v Australian National University (1982) 61 FLR 76; [1982] FCA 59, cited

Evans v Friemann (1981) 53 FLR 229; [1981] FCA 85, cited

Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, applied

McEvoy v Lobban [1990] 2 Qd R 235; (1989) 48 A Crim R 412, cited

McGrane v The General Manager, Wolston Correctional Centre, unreported, Supreme Court of Queensland, 24 January 2006, Muir J, considered

Meizer v Chief Executive, Dept of Corrective Services & Anor [2005] QSC 351, considered

Rich v Groningen (1997) 95 A Crim R 272; [1997] VSC 35, considered

[1] HOLMES JA: I agree with Chesterman JA that the application should be dismissed, since the proposed appeal is without prospect of success. I reach that view because, for the reasons Chesterman JA has given, the applicant's right to possession of the documents as his property did not extend to possession of them in the custodial environment; and he had no untrammelled entitlement to possession of them as an incident of his right to conduct legal proceedings. The respondent's decision did not, accordingly, "confer, alter or otherwise affect [his] legal rights" so as to meet the criteria identified in Tang[1] for a decision "made ... under an enactment".

[2] MUIR JA: I agree that the application for extension of time should be refused for the reasons given by Chesterman JA.

[3] CHESTERMAN JA: This is an application for an extension of time in which to apply for leave to appeal against a decision of Ann Lyons J given on 6 February 2009 dismissing an application for judicial review, on grounds which could be appealed against only by leave. A notice of appeal was filed on 16 July 2009 but no application for leave to appeal was made. An application for extension of time was filed well out of time, on 14 October 2010. This Court required the applicant to file a draft notice of appeal by 5 pm on 29 October 2010 so that the application for an extension could be heard together with argument as to the merits of the appeal. The respondents oppose the extension on the ground that the appeal is without merit or prospect of success.

[4] The applicant sought judicial review of what was said to be a decision concerning access to his legal documents while a prisoner at the Wolston Correctional Centre. The central question for the primary judge, and for this Court, was whether there was a decision under an enactment capable of judicial review. Her Honour found there was not.

[5] The applicant was convicted on 8 April 2002 of attempted murder, unlawful possession of amphetamines and of entering premises. He was sentenced to 17 years' imprisonment for the attempted murder, 4 years' imprisonment for unlawful possession and 6 months' imprisonment for entering premises. All sentences were to be served concurrently. This Court dismissed the applicant's appeal against his convictions and sentences: [2002] QCA 346. It seems the applicant then sought special leave to appeal his conviction but the matter was deemed resolved in 2003. At the time the relevant "decision" was made, the applicant did not have any legal proceedings on foot. However, he was said to be preparing a civil case concerning a personal injuries action and perhaps also re-enlivening his application for special leave. These were said to be the reasons why he needed access to his legal papers.

[6] Section 20 of the Judicial Review Act 1991 (Qld) (JR Act) provides that a person

"aggrieved by a decision to which this Act applies may apply to the court for a statutory order of review in relation to the decision".

"A decision to which this Act applies" is defined in s 4 to mean:

"a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)".

[7] It is first necessary to identify the "decision" sought to be reviewed. The parties agreed that it was, as the primary judge said, a decision made by the second respondent in August 2007 "that the applicant was not able to access material that he had stored within the facility". The applicant could not point to any record of the decision but said it was to be inferred from correspondence between the applicant and the second respondent. The decision was said to be to limit the applicant's access to his legal material so that he could have no more than three boxes of papers in his cell at a time. The remaining boxes were stored elsewhere in the facility.

[8] The first letter was dated 22 August 2007. The relevant part of the letter stated:

"In relation to legal documents being stored in your cell, you are subject to the provisions of Corrective Services Act 2006 Section 317 and Corrective Services Regulations 2006 Section 45 which refers to property and property limits. Corrective Services Regulation Section 45(2)[b] states that legal documentation need not be taken into consideration of property limits however the legal documentation is only considered when it has relevance to your current matters."

[9] Another letter was dated 29 August 2007. It relevantly provided:

"I ... advise that your complaint has now been determined.

You have previously been informed about the excessive material in your cell. Your cell contents was itemised and placed in the Reception Store during your detention period. The Reception Store has now provided you with your property, to acceptable limits."

[10] In a third letter dated 14 November 2007, the second respondent referred to the "large volume of document material in (the) cell" and continued:

"Efforts by centre management and staff for you to remove or reduce the excess material met with considerable resistance by you. Your initial claims for retaining the material in your possession related to there (sic) alleged legal status.

... On inspection it was noted that much of the material would be considered legal material.

... The effects of the excess material also created a fire hazard for your cell and the centre, notwithstanding the fact that it exceeded the standard prisoner property limits.

... You were offered an opportunity to identify and retain that material which related to your current legal matters which you declined in the first instance.

... Proceeding this offer steps were taken to remove the excess material from the centre at your expense pursuant of Queensland Corrective Services - Procedures."

[11] The letter then referred to sections 45 and 317 of the Corrective Services Act 2006 (Qld) (the Act) and sections 18 and 45 of the Corrective Services Regulation 2006 (Qld) (the Regulations). The letter noted that the applicant had been given opportunities to explain why such a quantity of material was required and to select a smaller amount for retention. It concluded:

"After allowing you to select and retain one carton of material the balance of papers were removed from your cell and placed in storage."

[12] The applicant's contention that there was a decision made under the Act is strengthened by the fact that he sought a statement of reasons for it pursuant to s 32 of the JR Act and Mr Collins, General Manager of Wolston and Palen Creek Correctional Centres replied on 14 November 2007 giving reasons for limiting the amount of legal materials the applicant could keep in his cell. The statement of reasons does not refer to any decision by date, document or particulars but does refer to "the decision to remove and store excess material ..." and gave as the reasons for "the decision":

"4.1 The amount of excess material exceeded reasonable prisoner property limits and constituted a significant fire and security hazard to the centre.

4.2 Despite being invited on several occasions to demonstrate why such a large volume of papers was required to be kept in your cell ... you failed to so explain ... and refused to set apart a lesser amount of papers for retention."

[13] Mr Granville, the Manager of Secure Accommodation at Wolston Correctional Centre, deposed in an affidavit of 28 October 2008, that the applicant wished to have 14 boxes of legal papers in his cell at all times. (Other correspondence between the applicant and prison authorities referred only to a total of eight boxes.) There were, he said, safety risks associated with the potential for fire and security risks associated with large amounts of paperwork being retained in a cell. It was said that the general design of the cell and fifty person units were not conducive to large quantities of flammable material. For these reasons the applicant was permitted to have no more than three boxes in his cell at any one time. The remaining material was kept in the "main store" at Wolston Correctional Centre. The applicant could request access to that material. Access could occur daily while staff were present. The turnover of material would ordinarily be one for one, that is, one box for another. The applicant was not prohibited from accessing the legal documents but was restricted in the quantity of documents he could have in his possession in the cell at any given time.

"317 Bringing property into corrective services facility

(1) The chief executive may allow property to be brought into a corrective services facility for a prisoner (the prisoner's property).

(2) However, the chief executive may impose conditions about the prisoner's property, including, for example, a condition -

(a) limiting the property's use; or

(b) that the property be safe for use; or

(c) that the property be stored by the chief executive in safe custody until the prisoner's release from custody.

(3) The prisoner must pay any costs incurred in deciding whether the prisoner's property is safe for use.

(4) If the prisoner fails to pay the costs, the chief executive may refuse to allow the prisoner's property to enter the corrective services facility.

(5) A regulation may be made about the property that a prisoner may keep in a corrective services facility, including, for example, the amount of property a prisoner may keep.

(6) The chief executive must keep a record describing the property brought into the corrective services facility for each prisoner."

[15] Section 263 should also be mentioned. It provides:

(1) Subject to any direction of the Minister, the chief executive is responsible for -

(a) the security and management of all corrective services facilities; and

(b) the safe custody and welfare of all prisoners; and

(c) the supervision of offenders in the community.

(a) the power to do all things necessary or convenient to be done for, or in connection with, the performance of the chief executive's functions under an Act; and

(b) the powers of an inspector, including the chief inspector, and a corrective services officer.

(7) To remove any doubt, it is declared that the chief executive may exercise a power mentioned in subsection (2)(b) in a place other than a corrective services facility."

[16] The chief executive is able to delegate a function to an "appropriately qualified person", which includes a "corrective services officer": s 271. A "function" is specified to include a "power": s 271(3). Although not addressed by the parties, it is presumably this section under which the second and third respondents communicated with the applicant.

[17] Section 45 of the Regulations provides that a prisoner may keep property in a corrective services facility if the property in total does not exceed a volume of 0.25m³: s 45(1)(b). Section 45(2)(b) provides that "legal documents" are among certain types of property that "need not be taken into account" for the purposes of s 45(1). It should be noted that that section is permissive rather than prescriptive. Although legal documents may be taken into account when determining the volume of property a prisoner may keep, they need not be. There is no regulation specifying how much property a prisoner may keep in his cell, as opposed to the prison.

[18] Section 19 of the regulation describes what are "privileges for a prisoner" for the purposes of the Act. It defines nine activities the eighth of which is:

[19] It is a clear and necessary implication from s 317 and in particular subs (1) and (2) that a prisoner in a corrective services facility has no right to bring or keep his personal property into the prison or his cell. The implication is reinforced by the terms of s 19(h) of the regulation. Whatever be the nature of the "privileges" identified it is clear that the particular privilege is something other than a right to possess one's own property in the prison or cell. The legislative scheme is inimical to the applicant's claim of a right to possess his own property while incarcerated.

[20] Another affidavit of the third respondent, dated 5 February 2009, described the dimensions of the applicant's cell. It is approximately three metres wide by five metres deep by 2.1 metres high, an area of 31.5m³. The shelving in the cell is standard and takes up approximately 0.25m³. Photographs attached to the affidavit showed that the documentation already within the applicant's cell almost fully occupied the shelving space. It can be inferred that there was not sufficient physical room for the volume of more than three boxes to be on the shelves in the cell at the one time.

[21] The issue between the parties was whether there had been a "decision ... under an enactment". In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ described what constitutes a "decision" in the following terms (337):

"... a reviewable 'decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

Another essential quality of a reviewable decision is that it be a substantive determination. ... "

[22] Whether the decision in question was made "under an enactment" is to be determined by reference to Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 and the judgment of Gummow, Callinan and Heydon JJ (130-131):

"The determination of whether a decision is 'made ... under an enactment' involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be 'made ... under an enactment' if both these criteria are met."

[23] A decision will have been made "under an enactment" where that decision has been made "in pursuance of" or "under the authority of" the enactment: Evans v Friemann [1981] FCA 85; (1981) 53 FLR 229 at 238 per Fox ACJ. Even where a particular enactment is the "source" of the general power to make the decision in question, it is necessary to determine in each particular case whether, in effect, the decision was made "under an enactment" or otherwise: Burns v Australian National University [1982] FCA 191; (1982) 64 FLR 166 at 173 citing with approval the primary judge Ellicott J; Bartz v Chief Executive, Department of Corrective Services [2001] QSC 392; [2002] 2 Qd R 114 per White J at 115. The "enactment" for present purposes is the Act and Regulations: s 3 JR Act.

[24] The comments of Ellicott J should be kept in mind:

"In many cases the power exercised will be precisely stated in the legislation. In other cases the power to do a particular thing will be found in a broadly stated power. The Act should not be confined to cases where the particular power is precisely stated. In each case the question to be asked is one of substance, whether, in effect, the decision is made 'under an enactment' or otherwise." [1982] FCA 59; (1982) 61 FLR 76, 87; approved 64 FLR 173-4.

[25] The language in which s 317 is expressed does not suggest that allowing a prisoner's personal property to be brought into a prison, and in making it a condition of bringing the property into the prison that it or part of it be kept in the prisoner's cell, is a "decision" to which the JR Act applies. Section 317 is cast in terms of permission: the chief executive may allow personal property to be brought into a corrective services facility. Of course the chief executive must decide whether to allow or forbid the entry of property, but allowing, or refusing to allow, a prisoner to bring his property into the prison is not the making of a formal, identifiable, final decision of the kind reviewable under the JR Act. Such a decision is one which a decision maker, conferred with the power to make the decision, must make in accordance with the Act. Section 22 of the JR Act allows persons "aggrieved by the failure of (the decision maker) to make the decision" to apply for a statutory order of review. The application may be made where the decision maker had a duty to make a decision. The permissive language in which s 317(1) is expressed indicates that the Chief Executive comes under no duty to decide whether to permit personal property into the prison. He may or may not permit it.

[26] The permissive expression of s 317 adds to the doubt that there was a "decision ... under an enactment" in the sense described in Bond or Tang. The chief executive could choose whether or not to allow property to be brought into the facility in the first place: s 317(1). The power is so broadly stated that neither the Act nor the Regulations required the chief executive to exercise that discretion at all, let alone arrive at a final decision. If the chief executive did choose to make a decision regarding the quantity of material the applicant could have in his cell, that determination was subject to change. It was also subject to whatever reasonable conditions the chief executive imposed from time to time pursuant to s 317(2). It was entirely at the chief executive's discretion as to whether property could be retained in a prisoner's cell at all and, if so, in what quantity and at what times. As such, any decision lacked the requisite degree of "finality" described by Mason CJ.

[27] The nature of the chief executive's powers under s 317 can be contrasted with the enactment under consideration in Bartz. In that case, s 59(3) of the Corrective Services Act 1988 (Qld) provided that a prisoner "may participate in an approved voluntary program". An "approved voluntary program" meant "any work or other activity prescribed by rules as an approved voluntary program for the purposes of this Act ...". Further, the chief executive was required under s 18 of the Corrective Services (Administration) Act 1988 (Qld) to

"develop and administer services and programs for the purposes of assisting prisoners to be absorbed into the community and to assist and encourage them to acquire such skills as may be necessary or desirable for their integration with the community upon their release from prison ...".

White J found that a decision not to order the applicant to participate in an approved voluntary program was a decision made "under an enactment".

[28] If my doubt is misplaced and the refusal to allow the applicant to have all his documents in his cell was a decision required or authorised by the Act or Regulation, it did not relevantly "confer, alter or otherwise affect" any "legal rights" of the applicant. The applicant argued he had a legal right to keep and access his property. However, this assertion is contrary to the express words and effect of s 317, as I have pointed out. It must be remembered that the chief executive did allow the applicant to bring all his property in question, all his legal documents, into the corrective services facility. All that is in issue is the condition imposed by the chief executive on the granted permission to bring the property into the prison. The condition was that only three boxes of documents at a time be taken from the general store to the applicant's cell. It is only the imposition of that condition which the applicant can challenge in these proceedings.

[29] The applicant's arguments took as their starting point the proposition that he was entitled to possession of his own property while in prison. He relied upon the remarks of Byrne J in Abbot v Howden, General Manager, Woodford Correctional Centre [2006] QSC 186 in which his Honour said of a prisoner whose property had not been vested in the Public Trustee:

"... under the general law, the prisoner is, prima facie, entitled to possession of the property he owns, there being no suggestion that anyone else has acquired a material interest in it.

I confess to reservations about the notion that the mere characterisation of prisoner access to property ... as a privilege thereby precludes a conclusion that a decision to deny access to it does not 'affect legal rights or obligations'... ."

It does not appear that his Honour's attention was drawn to s 317 of the Act. For the reasons I have expressed I do not share Byrne J's reservations. It is, I think, plain that a prisoner has no right to his personal property, while in prison.

[30] As I mentioned, s 19 of the Regulations describes "accessing the prisoner's property" as a "privilege". Privileges have been found to be distinct from legal rights such that a decision affecting a privilege, rather than a right, is not one "derived from an enactment" in the Tang sense, and is not subject to judicial review: Meizer v Chief Executive, Dept of Corrective Services & Anor [2005] QSC 351 per Douglas J; McGrane v The General Manager, Wolston Correctional Centre, unreported, Supreme Court of Queensland, 24 January 2006 per Muir J; Abbott v Howden [2006] QSC 186 per Byrne J. For this purpose, the parties and the trial judge distinguished between the concept of "keeping" property and "accessing" property. The applicant conceded that accessing property was a privilege but argued keeping property (presumably within a prisoner's cell) was not. For my part I do not think there is a distinction.

[31] In Meizer, the applicant was engaged in a program authorised by the Corrective Services Act 2000 (Qld). That Act required the chief executive to establish services or programs to help prisoners to be integrated into the community after their release. The corresponding regulations specifically defined "participating in an activity, course or program" as a privilege. The applicant challenged a decision to suspend him from the program for 14 days as a result of derogatory comments he allegedly made to prison visitors. Douglas J held the applicant had no legal right to participate in the program, merely a privilege, and consequently struck out his application for a statutory order of review.

[32] Similarly in McGrane, Muir J held that revoking permission given to a prisoner to use his personal computer was not a decision "under an enactment". The relevant regulations, as is the case here, described "accessing the prisoner's property" as a "privilege". In delivering his reasons, Muir J noted "the revocation of a privilege is merely that, it is not a decision made under an enactment".

[33] The applicant also relied on Rich v Groningen [1997] VSC 35; (1997) 95 A Crim R 272. The plaintiff in that case was a prisoner who demanded the defendants (the Victorian Commissioner for Correctional Services and prison managers) release to him all documentation, legal texts and computer software that he claimed he needed to prepare an appeal. Although not a case concerning judicial review, the comments of Gillard J (288-289) are relevant:

"I do not accept the contention of the plaintiff that he has an absolute right to all legal documents being in his possession at all times wherever he may be and irrespective of quantity. There are, first of all, physical constraints because of the size of the cell. ... Further, the quantity may be so great there may be a security and/or fire risk. Further, a prisoner cannot expect to have unlimited access to all his legal documents if they cannot be located in his cell. ...

On the other hand, I do not accept ... that the plaintiff has no rights to his appeal documents and that what he is given is merely a permissive right of possession. He does have an unimpeded right to the courts and in so far as it is necessary for him to have access to his appeal documents properly to exercise that right, he is entitled to have reasonable access. If the quantity is so great that all cannot be located in his cell, then the property should be housed in a place where he has access upon reasonable notice. ... The Act, Regulations and Director's Instructions make it clear that the decision to permit a prisoner to possess property in a prison is a question of discretion.

In my opinion in exercising the discretion it is a relevant and important factor to be considered that a prisoner needs his legal documents to enable him to exercise his right to present his case in court. ...

... Prison authorities should ensure that in making decisions concerning the possession of property by prisoners their right to unimpeded access to the courts is not adversely affected."

[34] I accept that, as a corollary to a prisoner's right to approach the court for legal redress whether by way of appeal or otherwise, the prisoner has a right to possess and access those documents reasonably necessary for the preparation and conduct of the proceedings. One may put aside for the moment questions of the origin of the right and the compatibility of its existence with s 317. The right is not an absolute one to keep in a prisoner's cell every document the prisoner wants. The right is subject to reasonable restrictions which may include access to limited number of documents at a time. The applicant does not contend here that his approach to the courts was frustrated by the limitation imposed on him by the respondents.

[35] The provisions of the Act and Regulation referred to make it clear that a prisoner has no right to bring any of his personal property into a prison, or corrective services facility. This is the necessary implication from s 317 and, in particular, subs (1). That result would follow from the general law. The applicant in an occupant of premises which he does not own. The fact that his occupation is involuntary is beside the point. An occupant has no more right to bring his property onto the owner's property than the owner gives him. The situation would be the same if he were a guest in a friend's house. As I pointed out earlier there is nothing in the Act or Regulation which permitted or authorised a prisoner to have any part of his property in his cell. To the extent that he may it will be as a condition imposed by the Chief Executive pursuant to the power conferred on him by s 317(1) and (2).

[36] The purpose of allowing the imposition of such restrictions is readily ascertainable. It was expressly stated in the correspondences between the applicant and the second and third respondents and are reflected in s 263 of the Act. It is entirely reasonable and appropriate for there to be conditions on the quantity and dimensions of material that may be brought into a cell in order to satisfy safety and other concerns. In this case there was precise and substantial evidence as to the quantity of material the applicant wished to have in his cell, which was, on any reading of the evidence, excessive for the limited space in the cell. Allowing three boxes in the cell at any given time while permitting the applicant to switch boxes upon request appears to have been a reasonable compromise between the rights of the applicant and the needs of the prison. In any case, the decision fell well within the discretion conferred by s 317. Further, as counsel for the respondent noted, the applicant was never absolutely denied access to his documents but was simply limited in the quantity he could possess at any one time.

[37] In oral submissions, the applicant briefly pointed to s 138 of the Act as supporting the proposition that a prisoner has a "right" to possess legal documents. The section allows a corrective services officer to seize property considered to pose a risk to the security of the facility or to the safety of persons in the facility. Documents "to which legal professional privilege attaches" are exempt. Nothing from the facts of this case suggests any property of the applicant was, at any time, seized under s 138, forfeited under s 140 or returned under s 141. The affidavit of the third respondent dated 28 October 2008 specifically states that the material "has not been seized from (the applicant), and he has not been denied access to the material as such". The issue of seizure was not raised below. There was no evidence before this Court as to whether the material to which the applicant sought unrestricted access was the subject of legal professional privilege. Section 138 is not relevant to the question to be determined in this application. For the reasons stated above, the applicant did not have an unfettered legal right to possession of the documents and s 138 is of no assistance to him.

[38] One final point should be mentioned. If the chief executive's imposition of condition as to the volume of papers the applicant may keep in his cell was a decision to which the JR Act applied it was completely inappropriate for judicial review. McEvoy v Lobban [1990] 2 Qd R 235; Bartz. Section 48(1)(a) of the JR Act confers power on the court to stay or dismiss an application for relief if the court considers it inappropriate "for proceedings in relation to the application ... to be continued" or "to grant the application". The parties agreed that if this Court were satisfied there had been a reviewable decision, the question of whether the matter should nevertheless be stayed or dismissed pursuant to s 48 should be remitted to the Trial Division. It is therefore unnecessary to say anything about the point and it may be thought officious to do so. Nevertheless because the point is so clear I express my opinion, which I hope will be helpful, that these sorts of decisions, which concern the day to day running of a corrective services facility and impact on the safety of prisoners and staff, and concern the general management and efficiency of the centre as a whole, would unnecessarily and inappropriately interfere with the functions of the chief executive: Bartz at 118; Barrow v The Chief Executive, Department of Corrective Services [2002] QSC 168.

[39] The imposition of the condition was not a decision under an enactment. Nor did it affect rights or obligations. The right described by Gillard J in Rich was not infringed. Ann Lyons J correctly dismissed the application.

[40] The appeal has no prospect of success and accordingly the application for extension of time should be refused. The respondents gave an undertaking not to seek costs in the event that a litigation guardian was appointed to represent the applicant, as has occurred.

[1] Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 at 130.