Plaintiff v Defendant

Supreme Court of Victoria|2012-11-30|Before: MACAULAY J

ADMINISTRATIVE LAW - Claim by prisoner against Secretary of the Department of Justice - Whether there was performance of duties of Secretary to afford the prisoner his rights under s 47 Corrections Act 1986 (Vic) - Rights to food that is adequate to maintain health, and to have access to reasonable medical care and treatment − Whether relief in the nature of mandamus should be ordered - Duties being performed in accordance with law - Application refused.

2 Although, by his originating motion, he also sought orders in the nature of prohibition, it was clear that what Mr Weaven is really seeking is an order to compel the performance of duty rather than an order of a prohibitory nature.[1]

3 Section 6A of the Corrections Act 1986 states that the Secretary has the legal custody of prisoners.

4 Section 47 of the Act enumerates a number of statutory rights accorded to 'every prisoner' that are in addition to any other rights a prisoner has under any other Act or at common law.[2] Those rights, set out in sub-s (1), include:

(b) the right to be provided with food that is adequate to maintain the health and wellbeing of the prisoner;

(c) the right to be provided with special dietary food where the Governor is satisfied that such food is necessary for medical reasons or on account of the prisoner's religious beliefs or because the prisoner is a vegetarian;

...

(f) the right to have access to reasonable medical care and treatment necessary for the preservation of health including, with the approval of the principal medical officer but at the prisoner's own expense, a private registered medical practitioner, physiotherapist or chiropractor chosen by the prisoner ...

5 It was conceded by the Secretary that the rights in s 47(1) impose corresponding duties upon her to provide for those rights to be enjoyed.

6 In Castles v Secretary, Department of Justice,[3] Emerton J held, in respect of a female prisoner, that IVF treatment was both reasonable and necessary for the preservation of the prisoner's health. In that context, her Honour found that Ms Castles had a right to IVF treatment pursuant to s 47(1)(f) and that the Secretary, who had the legal custody of Ms Castles, had a corresponding duty to provide the necessary approval to enable that treatment to take place.[4]

7 With respect, I agree with that reasoning and I consider the Secretary's concession in this case to be correctly made.

8 The performance of a public legal duty may be enforced by mandamus in certain circumstances, as stated by Latham CJ in Cuming Campbell Investments Pty Ltd v Collector of Imposts (Vic):[5]

It is a well-established principle that mandamus will go to compel the performance of a public or quasi-public legal duty which the person who is subject to the duty has refused to perform and the performance of which cannot be enforced by any other adequate legal remedy. When it is the duty of a public officer to exercise a discretion, the court may order the officer to perform his duty by exercising his discretion, but it will not control the exercise of the discretion by directing that it be exercised in a particular manner not expressly required by law. "A mandamus goes to set a party in motion to do a thing, but not to prescribe the way in which it shall be done."[6]

9 The limits on the remedy of mandamus have recently been set out in Knight v Hastings (Commissioner, Corrections Victoria)[7] in which Williams J stated:

An order for relief in the nature of mandamus will only compel the performance of a statutory duty, not direct how it is to be discharged. Thus the success of Mr Knight's application does not depend upon him establishing that the duty imposed by law should have been exercised differently, but rather that there was either an actual or a constructive failure to carry out the duty at the 2010 annual review.

For an error to constitute a constructive failure to perform the duty, that error must affect jurisdiction, as opposed to being one which occurs within jurisdiction. Examples of the latter type of error include acting on wrong principle or failing to consider matters which should be taken into account. Mandamus will, however, be available in the case of an 'improper or capricious exercise of discretion'. [8]

10 Likewise in White v Lacey, [9] Hargrave J held:

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.[10]

11 Mandamus is a discretionary remedy which does not lie as of right.[11] The remedy may be refused 'if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made'.[12]

12 It may be that a particular statutory duty is either too generic or vague to be amenable to mandamus. An example may be a duty to 'afford the best primary education to all children'.[13] But I do not think the duties here are either vague or merely set a 'target'. The rights (and corresponding duties) in s 47 apply to 'every prisoner', and can only be meaningfully afforded by reference to the individual prisoner whose individual health or well-being is in issue. I should hasten to add that the Secretary did not contend otherwise.

13 Mr Weaven's complaints originally centred upon three issues:

the provision of food which is yeast free;
medical treatment to correct his injured wrist;
the provision of spectacles necessary to correct his eyesight.

At the time of trial the issue with respect to his glasses had been resolved and only the first two matters were in issue.

14 It was the Secretary's contention in this case that there is no basis for the grant of mandamus for three reasons:

Mr Weaven has not established any relevant failure to provide the care required by s 47 of the Corrections Act;
Mr Weaven sought to compel the manner in which health care was to be provided rather than the performance of the mandatory public duty in accordance with law, and that mandamus is not open for that purpose; and
The order should be refused as a matter of discretion because no further useful result could follow from the order in circumstances where the evidence establishes that the officers responsible for Mr Weaver's health care and diet are now providing appropriate and adequate health care and food.

Is the Secretary refusing to afford Mr Weaven his rights under s 47?

1"> 15 The evidence before me was primarily contained in affidavits: four affidavits filed on behalf of Mr Weaven (three from him and one from his father, Arthur Weaven) and four affidavits filed on behalf of the defendant (all of Larissa Strong, the Director of Justice Health, a business unit of the Department of Justice). In addition, Mr Weaven was cross-examined.

16 Mr Weaven first entered a Victorian prison (and therefore the custody of the Secretary) on 23 September 2009 when he was transferred from police custody to the Melbourne Assessment Prison (MAP). On 16 October 2009 he was transferred to the Metropolitan Remand Centre (MRC) and on 31 December 2009 he was moved to Port Philip Prison (PPP). He was moved back to MRC on 30 June 2011 where he remained until 6 January 2012 (during which time his trial occurred), after which he was again transferred to PPP. That is where he remains.

17 Mr Weaven is now 39 years of age. He was first diagnosed with a yeast intolerance by a naturopath when he was 14 years old and has always been careful to eat yeast free food. If he eats food which contains yeast he becomes nauseous and sick; he vomits and remains unwell for a number of days.

18 He complains that since being taken into custody, first by the police, and then into the prison system operated by the Secretary, those responsible for his care have failed to heed his requirements for yeast free food. The effect of not being provided food which he is able to eat without being sick, he claims, has been that he has lost a dramatic amount of weight. He said his 'normal' weight is around 75 kilograms but his weight upon entering into the prison system, after initially being in police custody for three weeks, was around or just below 50 kilograms. Today he weighs around 57 or 58 kilograms and that has been that weight for some time.

19 His second complaint relates to a wrist injury. Before being arrested, Mr Weaven had a pre-existing work related wrist injury. He sustained that injury on 14 May 2009 when he fractured a bone near his right wrist. The fracture was reduced in the emergency department at the Dandenong Hospital and his wrist was placed in a plaster cast for five weeks. Upon review by his surgeon, who last saw him in July 2009, he was making an excellent recovery. His fracture was uniting and there was no residual deformity of his wrist. He was advised to continue exercise so that the soft tissue component of the injury could subside.

20 He claims that, upon his arrest on 18 September 2009 for the crime for which he is now incarcerated, while he was being handcuffed, his wrist was re-injured. He has complained of pain ever since. Since then he has actively sought treatment for that injury and various consultations have occurred and treatments have been administered. His complaint is that such treatment has been inadequate and untimely.

21 Despite Mr Weaven's historical complaints of the inadequacy of both his dietary provision, and the treatment of his wrist, subject to some minor reservations he conceded that the current position with respect to both matters is satisfactory. Although he expressed pessimism that the current adequate regime will be continued once his case is finalised, he nevertheless described the system put in place in April this year for consulting with him weekly about his food preferences, and providing appropriate food, as 'faultless'. He also now 'congratulate[s]' the Department on its recent provision to him of a physiotherapist who is giving him the treatment he believes is required for his wrist.

22 Independently of Mr Weaven's concession, in my view, the evidence does not establish any present failure or refusal on the part of the Secretary to provide food adequate to maintain his health and wellbeing, special dietary food that is necessary for medical reasons, or access to reasonable medical treatment necessary for the preservation of his health.

23 Moreover, any residual complaints which Mr Weaven has concerning some of the particular details of his diet, or the way in which his wrist treatment is being administered, descends to the 'manner' in which the duty is being performed rather than the performance of the statutory duty itself. I refer, for example, to his complaint that the two loaves of yeast free bread which are delivered to him weekly are too crumbly to be buttered or cut, and are difficult to toast in a toaster. I also refer to his complaints that the particular treatments being administered to him by physiotherapists do not accord with what he considers to constitute 'intensive physiotherapy' as recommended by doctors.

24 Although Mr Weaven now accepts that the diet and wrist treatment he is receiving is much improved on what it has been, and indeed satisfactory, he says it has only reached this state because of his institution of proceedings in May 2011. As he would have it, it was only after May 2011 that steps were put in train to properly discharge the duties necessary to ensure his rights as a prisoner were respected. That is, the steps that have ultimately resulted in a proper dietary plan being formulated, an effective system implemented for the delivery of food in accordance with that plan, and the formulation of an appropriate medical treatment plan (with physiotherapy, pharmaceutical and psychiatric treatment components) to address to his wrist injury, have only been taken in response to his law suit.

25 The Secretary denies that it was the institution of proceedings that has motivated the prison authorities to properly discharge their duty to Mr Weaven.

26 The Secretary points to the bona fide confusion which has arisen about Mr Weaven's real food intolerance: that is, whether it is to yeast or to wheat (gluten). In part the Secretary alleges that this confusion has arisen because of Mr Weaven's own ambiguous statements from time to time. The Secretary also points out that there has never been any medical diagnosis of yeast intolerance. But nevertheless, she (and the prison authorities) are and have been prepared to accommodate Mr Weaven's apparent intolerance to yeast in his food.

27 As for his weight, I accept the Secretary's submissions that the dramatic weight loss occurred before he came into her custody, and that there may be many reasons in a prison environment why a prisoner may lose weight, or find it difficult to put on weight, other than purely dietary factors. Mr Weaven's current weight appears to be relatively stable in the context of a dietary regime he accepts has having been relatively satisfactory over a number of months.

28 Further, the Secretary alleges that Mr Weaven himself has not been entirely compliant with the treatment regimes and opportunities the Secretary has made available to him, particularly in relation to his wrist injury. She alleges that he has not been compliant with taking medication and has declined to attend a number of appointments arranged for him, for example with a gastroenterologist, a psychiatrist and various psychiatric nurses.

29 There appears to be a plausible basis in fact for at least some of the Secretary's allegations. Mr Weaven himself said that he has a suspicion of medication and 'drugs' (in which he includes Panadol). He said he only takes them when he feels he needs them, regardless of how they have been prescribed. He also agreed he did not attend an appointment with the gastroenterologist because he had been told in the past that yeast intolerance is undetectable medically, and he therefore considered it would serve no purpose. And he agreed he has declined to go to appointments with psychiatric nurses because he felt he has not been treated respectfully by them in the past, particularly suspecting breaches of patient confidentiality.

30 Additionally, I am not persuaded by Mr Weaven's evidence that prison authorities have not been properly attending to the treatment of his wrist injury merely because the physiotherapy treatment given has not accorded with what he believes should constitute the appropriate treatment, or achieved the outcome he would like. The evidence discloses that he has had a number of physiotherapy consultations by independent and properly qualified physiotherapists. There is no medical opinion before me that it has been inadequate or not suitable. I am not prepared to accept his assessment alone that the treatments have not been suitable or appropriate.

31 And contrary to the proposition implicit in the relief he seeks in his originating motion in this respect, it is not the duty of the Secretary to provide medical treatment that will necessarily 'correct' his injured wrist, or produce the result that he is free of pain or regains the use of his hand and arm again. It is not the duty of the Secretary to achieve particular medical outcomes, but to afford access to reasonable medical care and treatment necessary for the preservation of his health.

32 I can well understand Mr Weaven's suspicion that the improvement in the prisons' treatment of him, both for his diet and his wrist condition, appears to have coincided with the instigation of his proceeding in May 2011. On the other hand, I do accept that both his dietary condition and wrist condition have involved some complexity, the latter now involving a complex pain syndrome requiring the services of pain management specialists rather than specific orthopaedic or soft tissue treatment.

33 There may also have been some errors on the part of prison staff in relation to his dietary needs borne of bona fide but mistaken assumption that his intolerance has been to wheat or gluten rather than to yeast. In any system responsible for delivering high volumes of food for many residents, mistakes can occur.

34 Mr Weaven's believes there has been a lack of bona fides on the part of prison staff in faithfully attending to his special dietary needs. At least in part, that belief is influenced by his perception of the behaviour or attitude of the kitchen and unit staff with whom he deals. He believes they are dismissive of his special needs. When asked to detail what he meant, he referred to a statement by an individual within the unit: 'Here's your bread, are you happy? ... Now you can stop the court proceedings'. In other words, he feels as if he has been unfairly singled out.

35 It is not my function, in any general sense, to adjudicate on the daily machinations of prison culture. What is in issue at this level is the proper discharge of a statutory duty by the Secretary in accordance with law. In case it is doubted, I have considered the impact, if any, of the human right of humane treatment for persons deprived of liberty, as prescribed in s 22(1) of the Charter of Human Rights and Responsibilities Act 2006. The interpretation of the rights in s 47 of the Corrections Act, compatibly with that human right,[14] does not alter my analysis in the particular circumstances of this case.

36 On the evidence, I am not satisfied that the Secretary is currently refusing to discharge her duty to Mr Weaven either in respect of the provision of food that is adequate to maintain his health and wellbeing, special dietary food necessary for any medical reason, or of access to reasonable medical care and treatment necessary for the preservation of his health. There is no actual or constructive failure to carry out the duty or evidence of improper or capricious exercise of a discretion.

37 That being so, I accept that there is no occasion for me to make, or any utility in me making, any order to compel the Secretary to perform a duty which, on the evidence, is currently being performed in accordance with law. The remedy only lies where the duty remains unperformed.[15] And it is not for me to compel any particular manner for the performance of that duty nor to seek to fine tune arrangements that the Secretary, through the officers in her department, have put in place.[16]

38 I will not attempt to resolve the question of whether there has been any past failure to properly discharge that duty; it is somewhat more difficult to resolve confidently. But, given the present situation and the principal considerations that inform the exercise of my discretion, it is not necessary that I make findings on the past conduct. Neither party should take any comfort from my declining to make any such finding. It is conceivable that the history of the matter might need to be revisited should another complaint arise.

39 The application is refused and the proceeding will be dismissed.

[1] Mr Weaven appeared for himself, although he had the assistance of a legal practitioner in the preparation of his originating motion and affidavit material.

[3] Castles v Secretary, Department of Justice (2010) 28 VR 141.

[5] Cuming Campbell Investments Pty Ltd v Collector of Imposts (Vic) [1938] HCA 53; (1938) 60 CLR 741.

[7] Knight v Hastings (Commissioner, Corrections Victoria) [2012] VSC 203.

[8] Ibid [19]-[20] (citations omitted).

[9] White v Lacey [2012] VSC 175.

[11] R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389, 400.

[13] The example used by the learned authors of Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters, 4th Ed, 2008) 844, citing R(G) v London Borough Council [2003] EWHC 1831 (QB); [2004] 2 AC 208, 219.

[15] R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228, 242.

[16] See Castles v Secretary, Department of Justice (2010) 28 VR 141, 176 [145].

Human Rights and Responsibilities Act 2006

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Judgment (61 paragraphs)

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