Plaintiff v Defendant

Supreme Court of Victoria|2015-04-23|Before: Derham AsJ

JUDICIAL REVIEW - Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 - Application in the nature of certiorari and mandamus - Whether defendant proper party.

PRACTICE AND PROCEDURE - Subpoena - Setting aside - Whether legitimate forensic purpose - Whether subpoena too wide and fishing.

1 The plaintiff is in custody at the Marngoneet Correction Centre ('the prison'). On 16 February 2006, he pleaded guilty to the murder of Jason Michael King and was sentenced by Justice Osborne to 15 years imprisonment with a non-parole period of 11 years.

2 It is common ground that, in the course of operating the prison, the Department of Justice conducts offender behaviour programs as part of the rehabilitation of prisoners. These programs are conducted by psychologists and other medical professionals. The participation of a prisoner in such a program is voluntary.

3 In 2013, the plaintiff was assessed as needing to complete an Offending Behaviour Program ('OBP') entitled the 'Moderate Violence Intervention Program' ('the MVIP'). He believed that his participation in the MVIP would do more harm than good because certain elements of his crime placed him at risk in the prison environment should they become known and a topic of conversation. He expressed his concern, but was reassured that the situation would be managed.

4 The plaintiff completed 33 sessions of the MVIP before he withdrew. There were six sessions remaining. He withdrew from the program because he felt his participation in the group who were involved in the program was putting him at risk. The details of that risk and the circumstances giving rise to his withdrawal from the program are set out in some length in correspondence passing between the plaintiff and officers of Corrections Victoria, but are not material to the issues before me.

5 As a result of his withdrawal from the MVIP, the plaintiff became embroiled in a dispute about the decision-making processes associated with his completion of the program. He believes that he has been targeted as a scapegoat because he has become the whistle-blower who is causing embarrassment through this so-called dispute. He claims that he is being disadvantaged by a refusal to deliver the remaining six sessions of the MVIP to him on an individual basis, rather than as a member of a group. He also claims that Correctional Policy mandates that if he fails to complete a recommended OBP, this will have the effect of acting as a presumption against him being released on parole by the Adult Parole Board, and that this would be contrary to his legitimate legal interests.

6 The plaintiff applies by originating motion filed 1 April 2014 for orders in the nature of certiorari, to quash 'the actions of the defendant for want of lawful jurisdiction', and mandamus to compel the defendant to make a decision and provide reasons for that decision in response to the plaintiff's legitimate interests in completing the MVIP. In addition, the plaintiff seeks a declaration that the defendant failed to act according to law and therefore the 'actions' are void ab initio, or alternatively a declaration that the 'actions' of the defendant were ultra vires.

7 There are a number of applications before me, as follows:

(a) An application by the defendant, who is represented by the Victorian Government Solicitor's Office, pursuant to r 9.06 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) ('the Rules') to substitute the Secretary to the Department of Justice (and not the State of Victoria as stated in the Summons) as the defendant in place of Sarah Wheatley (who is an officer of Corrections Victoria and a public official appointed as the Clinical Services Manager of the Flinders Peak Neighbourhood at Marngoneet Corrections Centre);[1]

(b) An application by the defendant pursuant to s 63 of the Civil Procedure Act 2010 (Vic) ('CPA') for the proceeding to be dismissed on the basis that it has no real prospect of success;[2]

(c) An application to set aside a subpoena issued at the request of the plaintiff on 9 October 2014 and directed to Mr Greg Wilson, the Secretary to the Department of Justice ('the Secretary'), on a variety of bases;[3] and

(d) an application by the plaintiff to amend his originating motion.

8 At the hearing held on 27 October 2014 by video link, the defendant's applications to substitute the Secretary as the defendant in place of Sarah Wheatley and to set aside the subpoena and the plaintiff's application to amend the Originating Motion were argued and my decision was reserved. The defendant's application to dismiss the proceeding was adjourned to a date to be fixed. It was adjourned because there were documents subpoenaed by the plaintiff (under another subpoena, which there was no application to set aside) that he had not been able to peruse and desired to do so for the purpose of resisting the application to dismiss.

9 Accordingly, these reasons concern the three reserved questions, namely:

(a) Who is the proper defendant, Ms Wheatley or the Secretary?

(b) Should the subpoena directed to Mr Greg Wilson issued on 9 October 2014 be set aside?

(c) Should the plaintiff's application to amend the Originating Motion be allowed?

10 The plaintiff has filed the following affidavits in support of his originating motion and summons, as follows:

(c) Affidavit sworn 14 July 2014 in support of the originating motion;

(d) Affidavit sworn 14 July 2014 in support of the subpoena; and

(e) Affidavit sworn 26 July 2014 relating to service of the subpoena.

11 The defendant has filed the affidavit of Claire Elizabeth Hanrahan sworn 24 June 2014. Ms Hanrahan is the regional manager of the OBP Team in the Barwon South West Region, Regional Services Network, of the Department of Justice. The affidavit establishes that the present defendant, Sarah Wheatley, is and was at all relevant times an employee of the Department of Justice, employed as the Acting Senior Clinician of the Flinders Peak Neighbourhood and the prison. This Centre is a part of the Region for which Ms Hanrahan is responsible. Ms Wheatley reports directly to Ms Hanrahan. All actions and any decision taken by Ms Wheatley in the course of the treatment of the plaintiff were taken in her capacity as an employee of the Department of Justice.

12 At some stage before 30 December 2013, the plaintiff voluntarily withdrew from the MVIP in which he was participating. He complained by letter dated 30 December 2013 directed to the Flinders Peak Manager about the circumstances which compelled him to withdraw from the OBP, and asked that he be able to complete the last six sessions in a one-on-one setting.

13 On 31 December 2013, he wrote to the Director of the Sentence Management Unit of Corrections Victoria ('SMU') enclosing a copy of his letter of 30 December 2013 and concluding by saying that he:

[Looked] forward to discussing [his] case in detail with the SMU before any discussion [sic] is made which is adverse to my interests.[4]

14 On 28 January 2014, the plaintiff had two meetings about his situation. First, he met the Flinders Peak Operations Manager, Sue Agis, and someone called Sara from the SMU. Then, later that day, he met with Sue Agis, Sarah Wheatley and PO Daren Gibson and sought a decision about his access to clinical treatment in the form of the MVIP as part of his rehabilitation. He claims that he sought a decision from Ms Wheatley because he understood that she was the officer who had sole responsibility for his clinical case management.[5]

15 He was given to understand at this meeting, although he is uncertain, that the 'assessment and recommendation' of Ms Wheatley was that he must now complete the High Intensity Violence Intervention Program ('H-VIP'). He suspected that this was a 'decision' based on the participation in the group program that he did not complete. He asked Ms Wheatley for any decision in writing with reasons.[6]

16 On 28 January 2014, he wrote to the Director of Sentence Management about the first meeting. He claims that at this meeting Sue Agis agreed to speak to the Senior Clinician, Sarah Wheatley, about delivering the remaining six sessions of the OBP on a one-on-one basis.[7]

17 On 31 January 2014, he wrote to the Director of Sentence Management referring to the second meeting held on 28 January 2014.[8] In the letter he claims that, at the meeting:

I received little feedback and I was given to understand, 'although I am uncertain, that the 'assessment and recommendation' of Ms Wheatly [sic] is that I must now completed the H-VIP. Apparently the reasoning for this decision is, and I quote: 'Based on your participation in the group program which you did not complete'. Let me say concisely for the record: I identified a situation which was potentially of a very high risk, and I was being placed at risk because of the behaviour of others, so I removed myself from the risk whilst assertively articulating my fears to many people.[9]

18 He went on to formally request that the Director of the Sentence Management Unit:

...cause a decision to be made in my case in response to my conciliatory offer that I complete the remaining 6 sessions of the program individually. And that a decision in response to my offer be provided to me in writing along with the reasons and details of what information was and was not taken into account; and who made the decision.[10]

19 He noted that his formal request for reasons was made pursuant to s 8 of the Administrative Law Act 1978 (Vic) ('the ALA'), and in compliance with s 7(1)(g) of the Public Administration Act 2004 (Vic) ('the PAA') and the rights found in the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) ('the Charter').

20 On 10 February 2014, the plaintiff wrote to Ms Wheatley referring to the meeting held on 28 January 2014 and formally requested that:

You make a decision in response to my conciliatory offer that I complete the remaining 6 sessions of the program individually.[11]

21 He again referred to the request being made under s 8 of the ALA and the other legislation referred to above.

22 On 11 February 2014, he met with Ms Agis and the Regional Manager of the Sentence Management Unit, and was told that Ms Wheatley did not have to and would not give him her decision nor reasons for her decision in writing. He asked if the refusal to give him a decision and the reasons for that refusal would be given in writing and was told they would not.[12]

23 By letter dated 14 February 2014, Sarah Wheatley replied to the letter of 10 February 2014 to inform the plaintiff of his proposed treatment pathway. The letter contains the following relevant paragraphs:

The following treatment recommendations have been made:

modules in an individual format
Prosocial Thinking
Managing Emotions
Victim Empathy
Self Management
Completion of two group-based modules
Interpersonal Relationships

Please consider the proposed pathway and inform me of your decision regarding your participation. This treatment pathway will commence in March 2014.

24 The plaintiff complains that this does not disclose a decision, or give reasons, but makes an uncertain offer.[13]

25 On 25 February 2014, the plaintiff responded in the following terms, so far as relevant:[14]

At our meeting on 28 January I was given to understand, although I was uncertain, that after your assessment of my situation that your decision was that I must now complete the H-VIP.

From the content of your letter and the 'proposed treatment pathway' it seems to me that we are back to a point before a decision has been made about the apparent need for me to complete the H-VIP, which is what I was given to understand from our 28 January meeting.

Despite what I take to be an offer of a proposed treatment pathway, I remain, however, uncertain about the situation, your decision, if a decision has actually been made, and on what grounds, and what is to actually happen is uncertain.

Administrative decision making should make things clear, and not confused. I am sorry but I am more confused now that I was when I wrote my 10 February letter and asking for a decision and reasons.

My focus has always been on completing the remaining content of the M-VIP so that my interests in being released on Parole are not unfairly affected because of problems I experienced with the delivery and circumstances of a group based program which placed me at an unreasonable risk.

I do not understand what you are offering in your letter. The first set of modules, are these the remaining M-VIP content from the six session I did not complete, or are they content from the H-VIP? Or are they something else. And I do not understand the second part of your offer; are you saying I have to do 2 models in a group from the Interpersonal Relationship? If so, how would that work?

I do not understand if the offer in your letter is a decision or not. And I am concerned that I have affectively been given three days to respond to your offer which you say will commence in March. This short time frame seems unreasonable to me.

26 Attached to this letter was a draft Originating Motion and in the letter the plaintiff effectively threatened to litigate a resolution of the so-called dispute if it could not be resolved.[15]

27 In its initial state, the plaintiff's originating motion alleged that the defendant exercises statutory power for public purposes when making decisions as an officer and public official because:

(a) She is an officer appointed and empowered to make decisions for public purposes pursuant to the Corrections Act 1986 (Vic) ('the Act');

(b) She is a public official appointed and empowered to make decisions for public purposes pursuant to the PAA;

(c) She is an officer and public official bound by the common law and the provisions of the ALA;

(d) Part II of the PAA requires the defendant as a public official to take into consideration certain mandatory factors when making decisions; and

(e) Section 38(1) of the Charter requires the defendant as a public official to give proper consideration to relevant human rights.

(a) He has a legitimate interest in being granted, supervised and conditionally released on parole at the expiration of his non-parole period pursuant to Part 8, Division 5 of the Act;

(b) He has a legitimate expectation that his welfare be maintained by officers pursuant to s 1(a) of the Act;

(c) He retains all his common law rights pursuant to s 47(2) of the Act, which are not expressly or by necessary implication taken away from him; and

(d) In relation to administrative decision making processes by an officer and a public official that affect his interests, he has a legitimate expectation arising from ss 1(a) and 47(2) of the Act, the ALA and the Charter that:

(i) procedural fairness and natural justice will be applied;

(ii) mandatory considerations will be taken into account;

(iii) all relevant information will be taken into account;

(iv) irrelevant information will not be taken into account; and

(v) all relevant human rights will be taken into account.

29 The plaintiff then complains, after reciting elements of the sequence of events referred to above,[16] that the actions of the defendant - in not making or disclosing a decision or reasons for a decision but making an uncertain offer (in the letter of 14 February 2014) - are adverse to his legitimate legal interests because:

(a) their practical effect is that he will not be able to complete the MVIP;

(b) correctional policy in the Deputy Commissioner's instructions mandate that if a prisoner does not complete a recommended OBP then the Community Corrections Service must make a recommendation to the Parole Board that the plaintiff not be released on parole at the expiration of his non-parole period; and

(c) the practical effect of the actions of the defendant is to vitiate the decision and the decision-making processes because of uncertainty.

30 He then claims that the actions of the defendant were so unreasonable that no reasonable person could have so exercised their power in such a way in making the decision.

31 He seeks, as I have said, an order in the nature of certiorari to quash the actions of the defendant for want of lawful jurisdiction and an order in the nature of mandamus to compel the making of a decision, with reasons, in response to the plaintiffs legitimate interests in completing an OBP and, specifically, the MVIP.

32 The plaintiff also seeks a declaration that the defendant has failed to act according to law and that her actions are void ab initio or, alternatively, ultra vires.

33 In his proposed amended originating motion, the plaintiff adds references to particular sections of the Act and the Corrections Regulations 2009 (Vic) ('the Regulations') to support the allegation that the defendant exercised statutory power for public purposes when making decisions as an officer and a public official. He also adds references to various sections of the Act and the Regulations to support his allegation that he has a legitimate expectation that his welfare will be maintained by officers in the performance of their duties under that legislation. He further adds references to that legislation in support of his allegation that, in relation to administrative decision making processes by an officer and a public official, he has legitimate expectations of the kind referred to in paragraph 28(d) above.

34 In addition to including, in several of his allegations, references to specific sections of the Act and the Regulations, the proposed amended originating motion added a series of questions of law that are said to be raised and that must be settled by the Court. The questions are very wide ranging.

35 As I have mentioned above, there was argument relating to the application by the plaintiff to amend his originating motion at the hearing in October last year. The argument, however, did not descend into the detail of the various provisions of the Act and Regulations that are alleged to sustain his proposed amendments.

36 It seems to me that, on reflection, many of the proposed amendments to the originating motion are intimately tied into the application the defendant makes to dismiss the proceeding pursuant to s 63 of the CPA. Because I have not heard the full argument in relation to that question, it would be inappropriate in these reasons to express a view about the ultimate prospect of success either of the claims as originally formulated or of the claims as they are proposed to be formulated in the amended originating motion.

37 Accordingly, I will defer consideration of the proposed amendments to the hearing of the application by the defendant to dismiss the proceeding.

38 The defendant submits that the Secretary is the proper defendant because it is he or she who is responsible for the conduct of prisons. Prisoners are in the custody of the Secretary and, under the statute, it is the Secretary who is responsible for monitoring proper provision of 'correctional services' as defined. The logic of the submission is that:

(a) Pursuant to s 6A of the Act, the Plaintiff is held in the custody of the Secretary. Marngoneet Correctional Centre is a prison pursuant to s 10 of the Act;

(b) Section 7 (1) of the Act provides that:

The Secretary is responsible for monitoring performance in the provision of all correctional services to achieve the safe custody and welfare of prisoners and offenders.

(c) Section 3 of the Act defines 'correctional services', so far as relevant for present purposes, as follows:

correctional services means the following services -

(a) prisons and services related to prisons or prisoners;

(b) services related to parole and programmes for persons subject to correctional orders;

(d) The programme in question in this case was a service 'related to prisoners', and is a voluntary program so far as the plaintiff is concerned;[17] and

(e) The present defendant is employed pursuant to s 12 of the Act for the purpose of providing such programmes.

39 It was submitted on behalf of the defendant that:

(a) The fact that the defendant is a public official under the PAA, as alleged by the plaintiff, is irrelevant. A 'public official' is defined in s 3 of the Act to include 'a public sector employee'. Except in the course of her duties referred to in the affidavit of Ms Hanrahan and described above, the defendant has no power 'to make decisions for public purposes', whether under the Act or otherwise. Part 2 of the Act is headed, 'Public Sector Values and Employment Principles'. Section 7 sets out the values required of the public sector. The plaintiff does not give particulars of any alleged failure to comply with those values so as to give rise to grounds for judicial review of any alleged decision, including a decision not to make a decision, or failure or neglect to make a decision; and

(b) It is not appropriate for a person in Ms Wheatley's position to be a defendant to proceedings of this kind, where she is simply carrying out the duties under her contract of employment.

40 The plaintiff opposed the substitution of the Secretary as defendant on the basis that the present defendant, by reason of her employment under the PAA (for the purposes of Part 4 of the Act), is a public official who is the decision-maker empowered by law in this matter with powers, duties and functions of a public nature that cannot be delegated or assumed by any other person or entity.[18] She carries out her functions in the context of a legislative scheme, which vests in her power that she is bound to exercise and that she cannot delegate.[19]

41 The particular sections of the Act to which the plaintiff refers are s 1(a)-(c) (the Purposes section), s 3 (the definitions section), s 12 (the provision for employment under the PAA), s 19(3) (which concerns officers being subject to certain directions of the Governor of a prison), s 20(1) (which concerns the duties of officers in charge of a prison or part of a prison relating to security and welfare), s 22(1) (which concerns the duties of the Governor of a prison), s 23(1) (which concerns the control of prisoners by officers, who may give orders to prisoners believed to be necessary for the security or good order of the prison, etc) and s 47(2) (which concerns prisoners' rights).

42 The statutory scheme of the applicable legislation relied on by the plaintiff is set out in his second submission.[20] He contended that, when combined, the provisions to which he refers in that second submission constitute a scheme that requires the defendant:

...to observe one or more of the rules of natural justice and procedural fairness when making decisions, and to provide written advice of a decision, and the reasons for it, when asked by a person whose legitimate legal interests are affected by the decision.[21]

43 The power - which the plaintiff contends the defendant is duty-bound to exercise - is said to relate to his participation in a mandatory rehabilitative program, which is a part of the correctional services that the Secretary is obliged to provide under the Act.

44 Exhibited to the plaintiff's affidavit of 14 July 2014 is a copy of instruction number 3.08 issued by the Deputy Commissioner, which is entitled 'Programs Designed to Reduce Offending Behaviour - General'.[22] It is clear from this document that the programs the subject of the instruction are undertaken by prisoners voluntarily. This is also clear from a consideration of the provisions of the Act that deal with parole. Another exhibit to the plaintiff's affidavit of 14 July 2014[23] is instruction number 5.2, 'Parole Assessment and Advice', issued by the Deputy Commissioner. The provisions of the Act dealing with parole and the Deputy Commissioner's relevant instruction demonstrate that although a prisoner who refused to take an appropriate OBP may face difficulties when the Adult Parole Board considers his release on parole, that does not mean that it is compulsory for a prisoner to undertake or complete a relevant OBP.

(a) The defendant owes a duty to the Secretary to provide oral or written information in relation to the discharging of her powers and functions as they relate to the security and good order of a prison or the safe custody and welfare of prisoners;

(b) Powers, duties and functions are given to officers like the defendant in their own right under s 12, Part 4, of the Act, and they cannot be delegated 'upwards, or sideways, or assumed by anyone in place of the defendant, when actions of the defendant are subject to judicial review';[24]

(c) It is a well-established principle of law that if a person is entrusted by the legislature with certain powers and duties expressly or impliedly for public purposes, then that person cannot divest himself or herself of those powers or duties;

(d) The affidavit of Ms Hanrahan establishes that she is the Regional Manager of the OBP Team in the Barwon South West Region of the Department of Justice and she supervises the defendant, who reports directly to her. A Regional Manager is defined in s 3 of the Act to mean a Regional Manager employed under Part 4 - that is, under s 12 - of the Act. Section 92 of the Act provides for additional duties of a Regional Manager:

(1) The Regional Manager of a region is responsible for the management good order and security of the locations in the region.

(2) The Regional Manager of a region must take reasonable steps to ensure that officers working in the region have access to information as to what their powers and duties are and what provision is made by or under this Act and the Sentencing Act 1991 concerning locations and offenders.

(e) That the defendant has powers, duties and functions under the Act and the Sentencing Act 1991 (Vic) is therefore confirmed by the statutory duty cast under the Regional Manager under s 92(2) of the Act.

46 It is critical to the question of whether or not the defendant is the proper defendant to determine whether the legislation casts upon a person occupying her position any particular power, duty or function. Despite the reference by the plaintiff to the variety of sections to which I have referred, it seems to me that none of them confers upon this particular officer, a clinician employed for the purposes of the Corrections Act, any particular power, duty or function.

47 The person responsible for monitoring performance in the provision of all correctional services to achieve the safe custody and welfare of all prisoners and offenders is the Secretary.[25] The plaintiff is held in the custody of the Secretary.[26] It is common ground that the subject-matter of the plaintiff's complaint is a part of the correctional services for which the Secretary is responsible. In my view, it follows that the proper defendant is the person who by the legislation is cast with the responsibility for the services that are the subject of complaint. I say this without in any way concluding or assuming that the provision or non-provision of any of those correctional services gives rise to any entitlement in the plaintiff to orders of the kind he seeks in this proceeding.

48 Accordingly, in my view, the Secretary should be substituted as defendant to the originating motion.

49 On 9 October 2014, a subpoena directed to Mr Greg Wilson, the Secretary, was issued at the request of the plaintiff. That subpoena was issued pursuant to Order 42A of the Rules, and seeks in its schedule 10 categories of documents.[27]

50 The application by the defendant to set aside the subpoena was made by summons filed on 22 October 2014. In that summons, the grounds set out are that the subpoena:

(c) Was not filed for the purpose of providing relevant evidence in the proceeding but is a fishing expedition and requires the production of documents which are not sufficiently relevant to the issues in the proceeding.

51 It emerged in the course of argument that the prime issues are whether or not the subpoena is too wide and fishing, and whether there is a legitimate forensic purpose for it.

52 Mr McInnes, solicitor, who appeared for the defendant in support of the application to set aside the subpoena, pointed to the very wide terms of the description of the documents in the schedule to the subpoena (as set out in the Schedule to these reasons), and submitted that it was clear that it was merely a fishing expedition. It is well established that a fishing expedition is not a legitimate forensic purpose and will not be permitted.[28]

53 Because the plaintiff is self-represented, it is desirable to set out more fully what makes a subpoena a fishing expedition. It is an attempt to find out whether the person to whom the summons is addressed has or has not any documents relevant to an issue and, if so, what those documents are. In the Commissioner for Railways v Small,[29] Jordan CJ described fishing as endeavouring, not to obtain evidence to support the case, but to discover whether one has a case at all, or to discover the nature of the other side's evidence. The most descriptive metaphor is the one used by Owen J in Associated Dominion Assurance Society Pty Ltd v Sir John Fairfax & Sons:

A 'fishing expedition', in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purposes of finding out whether there are any there or not.[30]

54 Mr Webb made it clear in his submissions that he was indeed going on a fishing expedition. He was trying to find out whether there is any documentation that supports his case.[31]

55 The following principles govern the application to set aside the subpoena:

(a) It is necessary for the party at whose request the subpoena was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;[32]

(b) Except in cases where the subpoena is plainly too broad and merits the description of a fishing expedition, the judge should normally inspect the documents for the purpose of making a final decision as to whether a legitimate forensic purpose exists;[33]

(c) However, the Court will not require production of subpoenaed documents, and will not permit access to subpoenaed documents, if the subpoena is expressed so broadly that the applicant cannot demonstrate, having identified a forensic purpose, that it is 'on the cards'[34] or that there is a 'reasonable possibility'[35] that the documents will materially assist the case of the party.[36]

(d) A 'fishing expedition' is not a legitimate forensic purpose and will not be permitted;[37]

(e) The relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose.[38] There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her case;[39]

(f) A mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough - the criteria set out in (c) must be satisfied; and

(g) Where a party fails to demonstrate a legitimate forensic purpose, the Court should refuse access to the documents and set aside the subpoena.[40]

56 Further to the principle identified in paragraph 55(a), it has been held in several cases that it is the duty of the court, where the issue is raised, to require the party calling on a subpoena to produce documents to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought and to refuse access unless such an identificat[41]n is made.41

57 The descriptions of the classes of documents the subject of the subpoena confirm what the plaintiff said about his purpose, namely that it is a fishing expedition. I will not repeat the descriptions in the Schedule to these reasons, as they speak for themselves. It is plain on their face that they are too wide, are casting an oppressive burden on the Secretary, and go far and wide across the operation of Victorian prisons in a way that cannot be permitted. An example is the broad and all-encompassing category of documents as follows:

All documents which will provide an overview of the outcomes and effectiveness of 'correctional services' (ss.1(c) 3 Corrections Act) as they relate to rehabilitative programs in the prison system in Victoria as they were in effect between 1 February 2013 and 1 February 2014...

58 How this can be relevant to the discrete subject of the MVIP in relation to which the plaintiff seeks a decision is entirely unclear. It can only be an attempt to trawl through the materials in an endeavour to find something that might help the plaintiff in the pursuit of his claim in this proceeding. There is no suggestion that it is on the cards or that there is a reasonable possibility that there are documents in this category - or any of the other categories - that will materially assist the plaintiff's case. Many of the categories have no apparent connection to the complaint made by the plaintiff about the failure of the defendant to make a decision or give reasons as requested for any decision made.

59 For these reasons the subpoena will be set aside.

(a) the Secretary to the Department of Justice be substituted as the defendant in this proceeding in place of Ms Sarah Wheatley;

(b) the subpoena filed on 9 October 2014 addressed to Mr Greg Wilson, Secretary to the Department of Justice, shall be set aside;

(c) the costs of the defendant's applications are reserved pending the hearing of the application to dismiss the proceeding; and

(d) That any further affidavit of the plaintiff in support of his application be filed and served within 21 days of the date of authentication of the order.

Description of Documents set out in Subpoena to the Secretary to the Department of Justice dated 9 October 2014.

1. All documents relating to the employment of Sarah Wheatley as an employee of the 'public service' of Victoria as that is given meaning in the Public Administration Act.

2. All documents which detail the roles and responsibilities and the job description, requirements, powers, duties and functions of Sarah Wheatley in her capacity as a s.12 Officer under the Corrections Act and her role as the Senior Clinician of the Flinders Peak Neighbourhood at Marngoneet Correctional Centre, when and where she is facilitating 'correctional services' (ss.1(c), 3 Corrections Act) as they relate to rehabilitative programs in the Prison.

3. All documents which detail the roles and responsibilities and the job description, requirements, powers, duties and functions of Greg Wilson acting as the Secretary to the Department of Justice when he is facilitating 'correctional services' (ss.1(c) 3 Corrections Act) as they relate to rehabilitative programs at Marngoneet Correctional Centre.

4. All documents which comprise of instruments of delegation of powers, duties and functions to or from Sarah Wheatley in her capacity as the Senior Clinician of the Flinders Peak Neighbourhood at Marngoneet Correctional Centre, when facilitating 'correctional services' (ss.1(c) 3 Corrections Act) as they relate to rehabilitative programs in the Prison.

5. All documents which will provide an overview of the Policies and Procedures for conducting 'correctional services' (ss.1(c)3 Corrections Act) as they relate to rehabilitative programs in the prison system in Victoria as they were in effect between 1 February 2013 and 1 February 2014, and as they have been generated by:

(d) The Deputy Correctional Commissioner of Operations;

6. All documents which will provide an overview of the outcomes and effectiveness of 'correctional services' (ss.1(c) 3 Corrections Act) as they relate to rehabilitative programs in the prison system in Victoria as they were in effect between 1 February 2013 and 1 February 2014, and as they have been generated by:

(b) The Secretary to the Department of Justice;

(d) The Deputy Correctional Commissioner of Operations;

7. All documents which will provide an overview of the rational and need for 'correctional services' (ss.1(c) 3 Corrections Act) as they relate to rehabilitative programs in the prison system in Victoria as they were in effect between 1 February 2013 and 1 February 2014, and as they have been generated by:

(b) The Secretary to the Department of Justice;

(d) The Deputy Correctional Commissioner of Operations;

8. All documents which will provide an overview of the assessment processes of prisoners for their participation in 'correctional services' (ss 1(c)3 Corrections Act) as they relate to rehabilitative programs in the prison system in Victoria as they were in effect between 1 February 2013 and 1 February 2014, and as they have been generated by:

(b) The Secretary to the Department of Justice;

(d) The Deputy Correctional Commissioner of Operations;

9. All Policy and Procedural documents which will detail the making of assessments, the preparing of reports, and giving advice to the Adult Parole Board and the Executive of Government, as that is associated with individual prisoner participation in 'correctional services' (ss 1(c)3 Corrections Act) as they relate to rehabilitative programs in the prison system in Victoria as they were in effect between 1 February 2013 and 1 February 2014, and as they have been generated by:

(b) The Secretary to the Department of Justice;

(d) The Deputy Correctional Commissioner of Operations;

10. All documents which will provide an overview of the public funds allocated to the facilitating of 'correctional services' (ss. 1(c) 3 Corrections Act) as they relate to rehabilitative programs in the prison system in Victoria from 1 February 2013 to date.

[4] Exhibit GRW-005 to the plaintiff's affidavit of 14 July 2014.

[5] Plaintiff's affidavit of 14 July 2014, [3]-[4].

[7] Exhibit GRW-005 to the plaintiff's affidavit of 14 July 2014.

[9] Ibid [emphasis in original; bold in original].

[11] Exhibit GRW-002 to the plaintiff's affidavit of 14 July 2014.

[12] Plaintiff's affidavit of 19 March 2014, [15].

[14] Exhibit GRW-007 to the plaintiff's affidavit of 14 July 2014 [emphasis in original].

[15] Exhibit GRW-007 to the plaintiff's affidavit of 14 July 2014; plaintiff's affidavit of 19 March 2014, [18].

[16] See [12] to [26] of this judgment.

[17] The plaintiff contends that the program is mandatory, which is an issue for determination in the context of the application to dismiss the proceeding.

[18] Plaintiff's second submission, [14].

[22] Exhibit GRW-004 to the plaintiff's affidavit of 14 July 2014.

[23] Exhibit GRW-003 to the plaintiff's affidavit of 14 July 2014.

[24] Plaintiff's second submission, [20].

[25] See s 7 of the Act.

[26] See s 6A of the Act.

[27] The documents are set out in the schedule to these reasons.

[28] See Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 and the authorities referred to in [55(d)] of this judgment.

[30] (1952) 72 WN (NSW) 250, 254; see also Lyons v Kern Constructions (Townsville) Pty Ltd [1983] FCA 33; (1983) 47 ALR 114, 130.

[31] Transcript 27 October 2014 at p 14.

[32] R v Saleam (1989) 16 NSWLR 14, 18; R v Mokbel (Ruling No 1) [2005] VSC 410, [45]; Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498, 504; R v Sergi [1998] 1 Qd R 536; NSW Commissioner of Police v Tuxford [2002] NSWCA 139, [22]; Re Don [2006] NSWSC 1125, [26].

[33] Woolworths Ltd v Svajcer, [2013] VSCA 270, [40]-[47] (Nettle, Ashley and Neave JJA).

[34] Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, 414.

[35] DPP v Selway (Ruling No 2) [2007] VSC 244; (2007) 16 VR 508, [10]; Ragg v Magistrates' Court of Victoria [2008] VSC 1; (2008) 18 VR 300, [96].

[36] Attorney-General (NSW) v Chidgey [2008] NSWCCA 65 , [62], [64]; R v Mokbel (Ruling No 1) [2005] VSC 410, [45]; R v Saleam [1999] NSWCCA 86, [11]; Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, 414; R v Saleam (1989) 16 NSWLR 14, 18; Woolworths Ltd v Svajcer, [2013] VSCA 270, [40]-[47] (Nettle, Ashley and Neave JJA).

[37] Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404; R v Saleam (1989) 16 NSWLR 14, 17, 414; Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564, 575; Re Don [2006] NSWSC 1125, [26].

[38] Attorney-General (New South Wales) v Chidgey 2008] NSWCCA 65 , [59].

[39] Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162, 181.

[40] R v Saleam (1989) 16 NSWLR 14, 18. See also R v Sergi [1998] 1 Qd R 536; R v Saleam [1999] NSWCCA 86, [11].

[41] Ali Tastan (1994) 75 A Crim R 498, 504; R v Saleam (1989) 16 NSWLR 14, 18 (Hunt J).

Court (General Civil Procedure) Rules 2005

Administration Act 2004

Human Rights and Responsibilities Act 2006

Court (General Civil Procedure) Rules 2005

Administration Act 2004

Human Rights and Responsibilities Act 2006

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