Pavic v Anderson [2004] VSC 410

5. On 29 September 2003 and on 17 October 2003 the plaintiff made separate applications for the grant of emergency management days. The first defendant responded in each case informing him that they would not be granted. The plaintiff has applied in separate proceedings pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 1996 for Orders that the above decisions be quashed and emergency management days granted.

8. The application made on 29 September 2003 arose out of a change to Mr Pavic's security rating and a resulting re-classification as a prisoner within the system from minimum security to medium security. (the "reclassification proceeding".) The application made on 17 October 2003 arose from a lockdown which occurred after a round of live ammunition was found in the prison in which he was located. (the "lockdown proceeding".)

11. Before turning to the relevant facts in each case, reference should be made to the relevant statutory and regulatory provisions.

15. The emergency management day provisions appear in the Act in s 58E.

"58E. Emergency management days (1) The Secretary may, in accordance with the regulations, reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period (if one has been fixed in respect of the sentence) on account of good behaviour while suffering disruption or deprivation-

(a) during an industrial dispute or emergency existing in the prison or police gaol in which the sentence is being served; or

(b) in other circumstances of an unforeseen and special nature.

(2) Sub-section (1) applies to all sentences of imprisonment, including any imposed for murder, irrespective of whether the sentences were imposed before or after the commencement of this section.

"Regulations 112. (1) The Governor in Council may, subject to disallowance by Parliament, make regulations for or with respect to any of the following matters-

(a) the management, good order and security of prisons and locations and the discipline and welfare of prisoners and offenders, the privileges of prisoners and the procedures for hearing and dealing with prison offences and acts of misconduct by offenders;

. . .

(r) the reduction of the length of a sentence of imprisonment or of the non-parole period, if one has been fixed in respect of the sentence, on account of good behaviour while the person serving the sentence is suffering disruption or deprivation-

(i) during an industrial dispute or emergency existing in the prison or police gaol in which the sentence is being served; or

(ii) in other circumstances of an unforeseen and special nature;

(s) the issue of authorities under section 15, the conditions to which authorities are subject, and the manner and circumstances in which persons may exercise the powers which they are authorized to exercise;

Pursuant to those powers the following regulations were made:

"PART 7 - EMERGENCY MANAGEMENT DAYS 70. Emergency management days (1) The Secretary may grant emergency management days on account of a prisoner's good behaviour while suffering disruption or deprivation-

(a) during an industrial dispute or emergency existing in a prison; or

(b) in other circumstances of an unforeseen and special nature.

(2) The length of the non-parole period or, if a non-parole period has not been fixed in respect of the sentence, the length of the sentence of imprisonment is reduced by the number of emergency management days granted. (3) The number of emergency management days granted must not exceed-

(a) 4 for each day or part of a day on which the industrial dispute or emergency exists;

(b) 14 in other circumstances of an unforeseen and special nature.

(4) In sub-regulation (1)- "disruption" means any substantial interruption to a prisoner's normal daily routine; "industrial dispute" means a dispute as to industrial matters concerning wages, terms or conditions of employment resulting in a withdrawal of labour, or a work ban or other restrictive work practice by prison officers."

41. I note that in relation to each matter, the officers who made the decisions,[1] held delegations from the Secretary to the Department of Justice of her powers under s 58E(1) of the Act and Regulation 70(1) of the Regulations to grant emergency management days.

44. In essence, the legislation and regulations confer a discretion to grant emergency management days provided certain criteria are satisfied including that while the prisoner is of good behaviour, he suffers a disruption or deprivation.

47. Before turning to the facts and submissions I note that both parties relied on affidavit material to which no objection was taken. This material dealt, inter alia, with the circumstances leading up to the applications for emergency management days, the applications themselves, the decisions, and subsequent explanations for those decisions. No issues were raised about what constituted the "record" or whether the affidavit material went beyond that which could be considered in an application of this kind.[2] Rather the assumption of all parties appears to have been that the errors alleged were jurisdictional.

The circumstances of the re-classification proceeding (5336 of 2004)

51. It appears that when first imprisoned, Mr Pavic was advised that he would serve one third of his sentence as a maximum security prisoner, one third as a medium security prisoner and the final third as a minimum security prisoner - provided he was of good behaviour. He was eligible to be classified as a minimum security prisoner in December 2002 but did not receive that rating until 23 July 2003. He then established a new routine in a new environment including a new vegetable garden, developing relationships with new fellow prisoners and adapting generally to the new security rating, accommodation and routine. On 26 September, however, he was notified that his security rating was changed reduced to medium security. He had to move out of the cottages in which he was located. In his affidavit he argues that this order was a result of policy and had nothing to do with his behaviour. He further argues that as a result of the order he suffered disruption and deprivation including:

* the disruption of packing and moving his belongings;

* the requirement of cleaning and decontaminating his new cell which was filthy;

* the loss of privileges and freedoms associated with minimum security;

* the loss of companions and the need to develop new relationships;

* the abandonment of his flourishing vegetable garden;

* total disruption to his daily routine on 26 September 2003 and the need to develop a new routine;

* an inability to carry out his employment as prisoner supporter on the day.

62. On 29 September he wrote to the Secretary of the Department of Justice requesting emergency management days for the disruption and deprivation that he suffered because of this change of policy. On 29 October 2003 he received a reply from Mr Kelvin Anderson refusing the request and stating that his request related to a "lockdown" rather than the issues raised in his letter.

65. In this matter, an affidavit sworn by Mr Roach was filed on behalf of the defendants. Mr Roach is the Director of Statewide Services at Corrections Victoria. In September 2003 he was the Acting Commissioner and held a delegation from the Secretary to determine a prisoner's classification. While he was Acting Commissioner, there were several escapes of prisoners from prison custody. One of the escapees was a "special category" prisoner who held a minimum security rating. Special category prisoners are those who are serving a total effective minimum term of 10 years in prison, have been convicted of murder or have been nominated by the Commissioner as requiring special monitoring while progressing through the prison system. As a result of the escapes, Mr Roach directed a review of security including a risk assessment of the classifications of special category prisoners. He deposes that the review determined that classifying special category prisoners as minimum security when they had many years left on their sentence created an unacceptable risk to the community in the event that those prisoners absconded. The Review Panel recommended that the classification policy be changed so that, in the absence of exceptional circumstances, no special category prisoner could be given a minimum security classification unless they had three years or less to serve on their sentence before becoming eligible for parole. He deposes that he accepted this recommendation and directed an individual risk assessment of each special category prisoner who held a minimum security classification but had more than three years to serve before becoming eligible for parole. Mr Pavic came within that group because his earliest estimated discharge date is 6 January 2008 and at the time of the review in September 2003 he had more than four years remaining before becoming eligible for parole. In reviewing his case, no exceptional circumstances were identified and it was decided that his classification should be changed from minimum security to medium security because allowing him to remain on a minimum security rating posed an unacceptable risk to the community. He was advised of the re-classification by letter on 26 September 2003 and orally by the Acting General Manager of Sentence Management on 30 September 2003.

68. Mr Roach also deposed that re-classification of the security rating of prisoners is a normal aspect of prison management and an individual's rating can change a number of times while serving the sentence. Where there is a change to classification, the daily routine will normally change and so too will the unit in which the prisoner is housed and even the prison in which the prisoner is housed. Changing a minimum security rating to a medium security rating means that the prisoner cannot be held in a minimum security unit. A decision as to the precise unit in which the prisoner will be housed is determined by having regard to a number of factors including the prisoner's security rating, the compatibility of the prisoners in the unit, other security factors and prison resources. He also deposes that it is not unusual for prisoners to be moved from unit to unit several times in one year whether for security reasons or for other reasons. He further deposes that it can be part of a healthy security environment that the prisoners are not held in one place for long periods of time.

71. On 29 September 2003 Mr Pavic applied for emergency managements days as a result of the disruption to his normal daily routine following the changing of his security rating. The first defendant replied on 29 October 2003 by letter advising the plaintiff that it was the view of the first defendant that the plaintiff's application "does not satisfy the criteria for the granting of emergency management days pursuant to s 70(1) of the Corrections Regulations 1998".

Re-classification proceeding - extension of time

75. As noted above, the plaintiff was advised of the decision to refuse his application for emergency management days by letter dated 29 October 2003. Proceedings pursuant to Order 56 must be brought within 60 days of the decision after the grounds for the grant of the relief first arose.[3] That period probably expired at about 14 January 2004. The current proceedings were not issued until 1 April 2004.

78. Affidavit material has been filed by Mr Pavic attempting to explain the period of delay but that material still leaves a number of matters unanswered. From that material it appears that sometime early in 2004 he filed an originating motion. He cannot say, however, when he decided to seek the review of the decision under consideration. Documentation was prepared and filed by a Ms Trezise at the Deputy Prothonotary's Office at the Supreme Court at Sale. Ms Trezise was a solicitor with Victoria Legal Aid who visited the prison to provide advice to prisoners. She did not visit every week. On the evidence before me she appears to have been the only visiting solicitor prepared to assist him in circumstances where legal aid had not been approved.

81. Mr Pavic deposes that he was not aware in early 2004 that a summons had to be filed. He deposes that he has been informed that the Senior Deputy Prothonotary wrote to Ms Trezise about the 24th day of February 2004 asking that a summons be filed for that application by no later than 9 March 2004. He says that he was not able to prepare the summons by that time because his application for legal assistance for the proceedings had not been lodged with the VLA until that date. He also deposes that the Deputy Prothonotary recommended to Ms Trezise that proceedings of that nature not be issued until issues of legal representation had been determined. A copy letter was produced dated 24 February 2004 from the Senior Deputy Prothonotary to Ms Trezise setting out the above details.

84. Plainly, it would not have been easy for Mr Pavic as a lay person to deal with the matter and plainly the officers of VLA were limited in what they could do, assistance not having been formally granted. There also appear to have been misunderstandings. What we have is an incomplete explanation and one that would not justify the complete period of delay that has occurred. On the other hand, the difficulties he has experienced are in part due to the fact that he is a prisoner and, therefore, at some disadvantage, and the difficulty of obtaining legal assistance. The substantive points he seeks to raise are important points for prisoners in that the granting of emergency management days affects the period of time in which they will be incarcerated and for which their liberty is lost. Having regard to these matters, notwithstanding the delay and the partial and incomplete explanation for it, I consider special circumstances exist warranting an extension of time in this instance.

88. For the plaintiff it is submitted that when the undisputed circumstances in which the disruption occurred are considered, each of the three criteria to be satisfied were satisfied. They are:

2. he was of good behaviour during a period in which he suffered disruption or deprivation;

3. the disruption occurred in other circumstances of an unforseen and special nature.

It is common ground that he was of good behaviour at all relevant times and that there was a disruption or deprivation. Counsel submitted that when regard was had to the circumstances it had to inevitably follow that they were unforeseen and of a special nature. The re-classification of the plaintiff's security rating arose from a revision of the classifications following the escape of a "special category" prisoner. There was no fault on the part of the plaintiff. The circumstances were unforeseen and special.

95. Counsel argued that accepting that the conclusion on the evidence before the first defendant had to be that each of the criteria were satisfied, there must have been some error of law made on the part of the first defendant to reach the decision he did. Alternatively, it is submitted that the first defendant erred by failing to take into account relevant considerations. In particular, it is said that to reach the conclusion that was reached in respect of the third criteria, the first defendant must have failed to take into account the individual circumstances of the plaintiff and in particular the reclassification of the security ratings, the re-classification of his rating and the reasons for it together with the disruption to him. It is argued that the first defendant considered only that the re-classification and transfer of prisoners was part of normal prison life.

98. Counsel abandoned a further argument that what occurred was that the first defendant failed to apply the special and unforeseen circumstances criterion because of an inflexible application of policy that no situation was sufficiently "special and unforseen" to give rise to the exercise of the power to award emergency management days.

101. Counsel for the defendants submitted that the question whether the other circumstances were "unforseen and special" is a question of fact and the Commissioner should be take to have found that the circumstances were not unforseen and special. Counsel submitted that the finding was clearly open because re-classification of prisoners, on the evidence, for security reasons is a normal aspect of prison management. Further, a prisoner's classification may be changed for general policy reasons and not as a result of any particular conduct on the part of the prisoner. In addition, counsel submitted that it can be anticipated that re-classification of a prisoner necessarily results in a change to the prisoner's normal daily routine. It usually results in a change of the unit in which the prisoner is housed. Counsel submitted that it was therefore plainly open to find that the other circumstances of the case, namely, that the plaintiff was required to move from one part of the prison to another as a result of a re-classification made for policy reasons, were not special and unforseen.

104. Counsel for the defendants also submitted that the unforseen nature of the circumstances was to be gauged by reference to whether they were unforseen by the person with the discretion under the provisions - that is the Commissioner or his or her delegate. Counsel submitted that one should in fact look at the totality of the circumstances and ask if they can be described as "unforseen and special" in the eyes of the Commissioner. Counsel also submitted that that was to be gauged at the time the circumstances occurred. Counsel submitted that the circumstances in question, referred to above, were normal administrative occurrences and something to be expected by the Commissioner.

107. Counsel also submitted that great care must be taken in approaching an argument that there was an error of law on the basis that it was not open to a body to make the finding that it did. Counsel submitted that the analysis should be approached with caution. Counsel also submitted that the Court should be slow to interfere with the exercise of the Commissioner's judgment on this question.[4] A balance, however, is to be struck. A passage quoted by both sides in this dispute is apposite. In Fyfe v State of South Australia,[5] Curtin J said:

"There can be no question that it is the duty of this Court to conduct a careful review and to closely scrutinize the reasons advanced for decision. Prisoners are in a position of particular disadvantage. Any abuse of power by prison authorities is unacceptable and can often have serious ramifications. At the same time, however, the limits of the Court's jurisdiction must be carefully observed and the Court must avoid becoming enmeshed in the merits of particular decisions. The management of prisons is a particularly difficult and sensitive task involving complex practical considerations and security implications with which the Court is not familiar and which it is difficult for the Court to understand or fully appreciate from the comfort of the Court surroundings."

112. To establish jurisdictional error of law in finding that it was not demonstrated that the other circumstances were of an unforseen and special nature, the plaintiff must establish that it was not open to the Commissioner to reach that conclusion, the issue being properly classified as a conclusion of fact.

115. The first problem is to identify the relevant other circumstances. The expression "in other circumstances" is a reference to circumstances other than an industrial dispute or emergency existing in the prison during which a disruption occurs. They would include most of the matters referred to and relied upon by the defendants, namely, the re-classification of all prisoners, the changing of that classification for policy reasons and the circumstance that re-classification would necessarily result in a change to the prisoner's normal daily routine. It must also, however, include in the present case the circumstance that triggered the re-classification process, namely, the escape of the other prisoner. It must be accepted in my view that that circumstance was unforseen and special and that it could not be found to be otherwise. Counsel for the defendant conceded that it was unforseen. I suggest that it is significant that in the defendants' submissions that particular circumstance was not addressed. It was that circumstance that triggered the chain of circumstances that can be described as otherwise normal occurrences. Looked at overall, however, the colour or character of the events is determined by that initial event. I am therefore persuaded that it was not open to the Commissioner to find that the plaintiff had not established that the circumstances of the disruption were unforseen and special.

118. We do not have the reasons of the Commissioner and therefore it is unclear what reasoning process was employed. The evidentiary material advanced by the person who made the decision, however, seeks to justify the decision solely on the alleged normality of the re-classification process and its aftermath. It is, I suggest, significant that nothing else is referred to by way of justification. It may be said that to treat normality as the determinant of whether circumstances were unforseen or special, is to fail to consider all matters relevant to the ultimate question which is whether the circumstances in which the disruption occurred were unforseen and special. The Commissioner must direct his or her mind to the precise circumstances and ask whether they were unforseen and special. Normality may be relevant to the question whether they were special and may affect the question of whether they were unforeseen. But the ultimate question must be answered - were the circumstances in which the disruption occurred unforseen and special. If one considers the defendants' affidavit material and submissions, that issue is not fully addressed. Not having reasons, however, it is not possible to take those issues any further. The alleged jurisdictional error has to be addressed on the basis of whether it is established that it was not open to find that the prisoner had not demonstrated that the circumstances in which the disruption occurred were unforseen and special. For the reasons indicated above I am of the view that it was not open to so find and that the Commissioner should have found that the other circumstances were unforseen and special.

121. Establishing the threshold criteria, however, is only part of the challenge facing the prisoner. Having established that the criteria were satisfied the prisoner then has to persuade the Commissioner to exercise the discretion to grant the emergency management days. In considering that question, it would be relevant, among other things, to consider the extent to which the prisoner's stay in prison has been adversely affected and the extent to which the time to be served has been made more onerous than it would otherwise have been. I note that the material indicates that the prisoner's expectation at the start of his sentence was that he would spend considerably longer in minimum security than will now result from the re-classification. The issue of the exercise of the discretion, however, is not one to be resolved in these proceedings. For the reasons given above, the decision made should be quashed but the matter should be returned to the Commissioner for hearing and determination according to law.

The circumstances of the "lockdown" - proceeding (No. 5281 of 2004)

125. Subsequent to the events giving rise to the first proceeding, an incident occurred on 15 October 2003. A round of live ammunition was found in the prison. As a result the prisoners were ordered to return to their units and were not permitted to leave their units until 17 October 2003. Thus there occurred what is known as a "lockdown". Mr Pavic alleges that he suffered disruption and deprivation which included:

* an inability to carry out his employment as a prisoner supporter;

* being held in closed confinement with eight other prisoners in a situation of increasing frustration and anger so exposing him to risk of physical and psychological harm; and

* an inability to separate himself from people smoking tobacco and being forced to inhale tobacco smoke.

132. On 17 October 2003 Mr Pavic wrote to the Secretary of the Department of Justice seeking emergency management days for the time of the lockdown. He sought a total of four emergency management days per day of lockdown. By letter dated 28 January 2004 the first defendant responded to the request in the following terms:

"After considering your application for the various days provided, I advise that your application does not satisfy the criteria for granting of emergency management days pursuant to section 70(1) of the Corrections Regulations 1998. Accordingly your application is not approved."

By letter dated 16 March 2004 Victoria Legal Aid sought reasons for the refusal of Mr Pavic's request but none have been provided. By letter dated 17 May 2004 the first defendant replied to the letter from the Victoria Legal Aid stating that

"he was not persuaded to exercise [the] discretion to award Emergency management days as the circumstances required an immediate and effective response to a security issue"[6].

139. The plaintiff's primary position is that the first defendant's letter of 28 January 2004 is the record of the decision. Counsel for the defendants accepted that that was so. Counsel submitted that it demonstrated an error of law. The argument is put that the first two criteria again are plainly satisfied. This again is common ground. As to the third criteria, the plaintiff relies upon the material deposed to by the first defendant in his affidavit and in particular the explanation for what occurred as being that

"the lockdown occurred to enable a complete search to be conducted of the prison following the discovery of a live round of ammunition in the prison".

Counsel submitted that this, on any view, constituted "an emergency existing in the prison" or "other circumstances of an unforeseen and special nature".

144. Counsel for the plaintiff also submitted that the letter of 17 May 2004 contained a statement of the Commissioner's reasons which demonstrated jurisdictional error because he had identified the wrong issue or asked himself the wrong question.[7] Subsequently, the Commissioner resiled from the explanation given in that letter and qualified it by saying that what he was intending to say was that assuming the criteria were satisfied the approach he would have taken was that set out in the quoted passage.

147. Returning, therefore, to the criteria to be satisfied, counsel for the defendant submitted that the Commissioner should be taken to have found that the circumstances were not an emergency[8] and were not unforseen and special.[9] Counsel submitted that the plaintiff sought to impugn those findings which were finding of fact and that those findings were open on the material before the Commissioner. Counsel submitted therefore, that there was no error of law.

151. It seems that the originating motion and affidavit in this matter were not filed until 31 March 2004. The proceeding was therefore commenced outside the 60 day period but only by two days. I accept the evidence that the papers were sent to the Prothonotary by mail on 26 March 2004. If delivered in the ordinary course they would have been received in time. The preparation of the documents had been delayed by errors in the swearing formalities for which the prisoner should not be held responsible. In my view, the above constitute special circumstances and an extension of time should be granted.

155. The word "emergency" is defined in the Oxford Dictionary[10] as:

"A sudden serious and dangerous event or situation which needs immediate action to deal with it."

Counsel for the defendants relied upon an affidavit sworn in the matter concerning the frequency and normality of searches of prisons and partial or complete lockdowns. Oral evidence was also given. From that evidence it emerged that over the thirteen prisons in Victoria, total lockdowns would occur perhaps two to three times a year and partial lockdowns would occur every day.

160. Again the focus of the defence evidence and submissions was on issues of the normality of searches and lockdowns. That is only part of the relevant inquiry. This approach again does not address the specific question to be determined - in the first instance, whether the disruption occurred during an emergency existing in the prison in which the sentence was being served. Was the finding of the round of ammunition a "sudden serious and dangerous event or situation which needs immediate action to deal with it"? This definition of the term "emergency" precisely fits the circumstances of the case. The fact that the prison authorities were used to dealing with this sort of situation does not mean it was not an emergency. Fire fighters are used to bushfires but they would still be regarded as emergencies. The Commissioner, in my view, had no option but to find that the disruption occurred in the context of an emergency. It is unnecessary, therefore, to consider whether the circumstances other than the disruption itself were unforseen and special. My own view, however, is that clearly they were and that the Commissioner was bound to so find. The finding of the ammunition caused the relevant chain of circumstances and made the circumstances in which the disruption occurred unforseen and special.

163. Again the occasion arose for the exercise of the discretion. That issue, however, does not arise for consideration by this Court. It is a matter for the Commissioner to consider. The role of this Court is confined to assessing the decision made. In light of the foregoing, I am satisfied the plaintiff has made out his case and the decision should be quashed. This matter should also be referred back to the Commissioner for hearing and determination according to law.

167. In both proceedings, therefore, the decisions should be quashed and the matters referred back for hearing and determination according to law by the Commissioner.

[1] Mr Roach in respect of the re-classification decision and Mr Anderson in relation to the lockdown decision.

[2] Craig v SA [1995] HCA 58; (1995) 184 CLR 163, 179.

[4] Kelleher v Commissioner, Department of Corrective Services [1999] NSW SC 86 at [7]; Herald and Weekly Times Limited v Correctional Services Commissioner, [2001] VSC 329 at [95]; R v Hillingdon LBC [1986] UKHL 1; [1986] 1 AC 484.

[5] (2000) SASC, 84.

[6] Counsel for the plaintiff advanced arguments arising out of the 17 May 2004 letter but it is not relevant to consider them because the 28 January 2004 letter constitutes the decision.

[7] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179.