Plaintiff v Defendant

2 The Governor's powers and duties are contained in the Corrections Act 1986 ('the Act'). Relevantly, s 21(1) of the Act provides for the Governor's duties:

(1) The Governor of a prison is responsible for the management, security and good order of the prison and the safe custody and welfare of the prisoners.

3 Section 22A(1) of the Act provides for powers of the Governor:

(1) A Governor has and may exercise all or any of the powers or functions of a prison officer or escort officer under this Act.

(2) An exercise by a Governor of any power or function under subsection (1) in relation to a matter prevails over the exercise by a prison officer or escort officer of that power or function in relation to that matter.

4 On 22 November 2011, a prison supervisor informed prisoners, including Mr White, of an election to be held that day to elect a prisoner representative. The election was conducted during the day. There were two main candidates - Mr White and a Mr Mantivani. There was campaigning by both parties.

5 Next, the Governor informed Mr White that he had received the most votes in the election. The Governor said, however, that:

1. As far as I believe, you had the most votes and [prisoner] Mantivani was second. We have nothing to do with it though and you'll have to work it out between yourself, Mantivani and other bloke on the job [the by-standing non elected prisoner and paperwork person Brian Bonka].[1]

6 Later, a prison officer told Mr White he had received seven more votes than Mr Mantivani. It was a close election between rival candidates and, as Mr White described them, their respective 'constituents'.

7 On 1 December 2011, Mr White and Mr Mantivani met with the prison supervisor who had announced the election on 22 November 2011. In his affidavit, Mr White deposed:

1. On Thursday the 1st of December prisoner Mantivani and I were called into Supervisor Nesbit's office where we were given the ultimatum of working together as the reps, or that neither of us could be a rep at all.
2. I voiced that I could try to work with that, but I was surprised by prisoner Mantivani's refusal of that offer, which in turn prompted Supervisor Nesbit to tell us that another election would be called for, and that neither of us would be eligible to enter as candidates.
3. Prisoner Mantivani then said that this suited him because he knew of some suitable candidates to run.
4. In the circumstances I cannot see how a successful campaign could have been achieved for my constituents.[2]

8 Mr White is aggrieved by the failure of the prison authorities to recognise and enforce his election win. He commenced proceedings in the Court by originating motion, seeking to challenge the conduct of the Governor under O 56.01 of the Supreme Court (General Civil Procedure) Rules 2005. In his originating motion, Mr White claims:

1. That the Court, in the nature of mandamus under subsection 56.01 of the Supreme Court Rules 2005, order the defendant to acknowledge the plaintiff as the democratically elected prisoner representative at Beechworth Correctional Centre for the Novemer 22nd 2011 Prisoner Representative Election.

9 In his statement of grounds, Mr White contends that the Governor acted within his statutory powers in authorising the election but then, notwithstanding his success, disallowed him any recognition or acknowledgment of his status as elected prisoner representative; that the actions of the Governor were undemocratic; and that the Governor's conduct was in breach of legal obligations.

10 In his prayer for relief, Mr White seeks orders requiring the Governor to acknowledge his status duly as elected prisoner representative, to 'hear from' him about his 'acquired knowledge', and to give proper consideration to his complaints and suggestions in that capacity. Further, Mr White seeks orders fixing the duration of his position as elected prisoner representative at six months and that his tenure and rights as a prison representative continue, even if he is transferred to another prison or rehabilitative location.

11 The Governor applied for summary judgment. The test to be applied in determining whether to summarily dismiss a proceeding is contained in s 62 of the Civil Procedure Act 2010. The Court has power to dismiss a proceeding which has no reasonable prospect of success. A proceeding has no reasonable prospect of success if the Court is satisfied that the prospects of success are 'fanciful' or 'not realistic'.[3]

12 An Associate Justice dismissed the proceeding as having no real prospect of success. Mr White appeals against that decision. He is out of time but no point is made about that. The appeal is a full re-hearing de novo.

13 In order to maintain a proceeding for relief in the nature of mandamus it is necessary to demonstrate that the defendant public body is required by law to perform a mandatory public duty, and that such duty has not been performed according to law. When that is established, the Court does not grant relief enforcing the result which the plaintiff contends should have arisen upon a lawful exercise of the public duty. The appropriate relief is to order a re-exercise of the public duty; not to compel the manner of performance of that duty.[4]

14 Mr White relies upon s 21(1) of the Act. He contends that the sub-section imposes a duty on the Governor which has been invalidly exercised; because the Governor was obliged to recognise him as a duly elected prisoner representative and 'hear from' him in that capacity.

15 I do not accept Mr White's contentions. I accept that the Governor has implied statutory power to take all reasonable steps to ensure the management, security and good order of the prison and the safe custody and welfare of its prisoners.[5] However, neither s 21(1) nor any other section of the Act or legislative instrument imposes any obligation on a prison governor to conduct elections, recognise prisoner representatives or hear from any such representatives. They are matters of internal management within the discretion of prison governors, and it is not for this Court to mandate how those matters should be managed in order to comply with the Governor's responsibilities under s 21(1). As Nettle JA said in Anderson v Pavic:

Prison legislation should ordinarily be interpreted so as to give full scope to the power of correctional authorities to carry out tasks of prison administration and management without undue influence from the courts.[6]

16 Mr White did not claim in his originating motion an alternative form of relief, that the Governor's conduct in refusing to recognise him as a duly elected representative should be quashed and remitted for re-determination in accordance with law. However, given that Mr White is self-represented, I will consider the issue. Mr White referred to a number of matters relevant to the Governor's conduct since the election, including that the refusal to recognise him as a duly elected prisoner representative was unfair and has caused prisoners to lose faith in any internal elections which may be conducted. He contended that the good order of the prison may have been undermined by the Governor's conduct. These may be relevant considerations, but there is no evidence to suppose they were not considered by the Governor.

17 In my opinion, an alternative claim of this kind would have no real prospect of success. The evidence discloses that there was a concern by the Governor and prison officers that the two rival candidates could not work together and, given the closeness of the election, that it would accordingly be best in the interests of good order of the prison if other prison officers fulfilled the role of prisoner representative. There is no evidence of the Governor acting in bad faith, for an improper purpose or acting in excess of his jurisdiction. The decision to proceed in the manner described in Mr White's affidavit was not inherently unreasonable. It was within the scope of the Governor's discretion. No ground to quash any decision of the Governor, and to remit any matter for reconsideration, has been made out.

18 I can understand why Mr White perceives some unfairness. An election was held and he obtained the most votes. Counsel for the Governor rightly acknowledged that no criticism is made of Mr White. Indeed, had the other main candidate been prepared to work with him, Mr White would likely have been able to play his desired role as a prisoner representative. But that is not to be.

19 I note also that Mr White conducted himself in an exemplary fashion as a self-representative litigant.

20 For the above reasons, however, the appeal will be dismissed. The Governor seeks no order as to costs.

[1] Affidavit of Gregory Eric White sworn 14 December 2011, [5].

[3] Samfa Pty Ltd v Hilane Pty Ltd & Ors [2011] VSC 644, [10]; JBS Southern Aust Pty Ltd & Anor v Westcity Group Holdings Pty Ltd & Ors [2011] VSC 476; Matheson & Anor v Spark & Anor [2011] VSC 378; Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd [2011] VSC 222.

[4] For example, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd [1949] HCA 33; (1949) 78 CLR 389, 398-9.

[5] Binse v Williams and Another [1998] 1 VR 381, 392.

[6] [2005] VSCA 244, [32].