Plaintiff v Defendant

1 This proceeding was brought by way of an application for leave to commence a proceeding by a person subject to a general litigation restraint order under r 83.04 of the Supreme Court (General Civil Procedure) Rules 2005. The plaintiff is a person subject to a general litigation restraint order made on 16 October 2014.[1] In addition to seeking leave to bring the proceeding, the plaintiff seeks declaratory relief in respect of the following:

(a) that the decision made by the defendant to ban smoking in Victorian prisons from 1 July 2015 is ultra vires or made for an improper purpose; namely, as a punitive measure against prisoners; and

(b) that ss 20(1) and 21(1) of the Corrections Act 1986 empower prison general managers to permit smoking by prisoners in spite of any general regulation or policy prohibiting smoking in prisons.

2 The plaintiff's application was accompanied by an affidavit of the plaintiff sworn 25 November 2014 purportedly disclosing the details required under s 56 of the Vexatious Proceedings Act 2014.

3 The plaintiff's application, together with the accompanying affidavit, was referred to me as the Judge sitting in the Practice Court on 11 December 2014.

4 For the reasons now set out, I have determined to refuse the plaintiff's application for leave to commence the proposed proceeding.

Relevant principles: the Vexatious Proceedings Act 2014

5 On 19 October 2004, Smith J ordered that the plaintiff be declared a vexatious litigant with effect for 10 years pursuant to s 21(2) of the Supreme Court Act 1986. Section 21(2) of the Supreme Court Act 1986 formerly provided:

The Court may, after hearing or giving the person an opportunity to be heard, make an order declaring the person to be a vexatious litigant if it is satisfied that the person has -

(a) habitually; and

(b) persistently; and

(c) without any reasonable ground -

instituted vexatious legal proceedings (whether civil or criminal) in the Court, an inferior court or a tribunal against the same person or different persons.

6 Section 21 of the Supreme Court Act 1986 was repealed by s 102 of the Vexatious Proceedings Act 2014, which came into operation on 31 October 2014. Section 91 of the Vexatious Proceedings Act 2014 provides that:

An order declaring a person to be a vexatious litigant under section 21(2) of the Supreme Court Act 1986 that is in force immediately before the repeal of section 21 of that Act is taken on and from that repeal to be a general litigation restraint order made by the Supreme Court under section 29 of this Act.

7 By summons filed 5 September 2014, the Attorney-General of Victoria has sought to extend the 19 October 2004 order. On 16 October 2014 T Forrest J made orders, inter alia, extending that order with effect until the final determination of the Attorney-General's summons. That proceeding is listed for trial on 10 June 2015. The effect of the orders of T Forrest J, in concert with s 91 of the Vexatious Proceedings Act 2014, is that the plaintiff is taken to be subject to a general litigation restraint order and must apply to the Court for leave to commence a proceeding.[2]

8 Under s 32 of the Vexatious Proceedings Act 2014, the effect of a general litigation restraint order made under s 29 is that a proceeding that is commenced in contravention of the order is of no effect.

9 However, ss 54(1) and (2) of the Vexatious Proceedings Act 2014 provide that a person who is subject to a general litigation restraint order may apply for leave to commence a proceeding that would allow the hearing of the proceeding to which the leave application relates.

10 Pursuant to s 55, the Court may grant that leave only if satisfied that:

(a) the proceeding is not a vexatious proceeding; and

(b) there are reasonable grounds for the proceeding.

11 The plaintiff submits that he has satisfied the test under s 55 of the Vexatious Proceedings Act 2014 as the proceeding is not vexatious and has reasonable grounds.

12 'Vexatious proceeding' is defined in s 3 to include:

(a) a proceeding that is an abuse of the process of a court or tribunal;

(b) a proceeding commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose;

(c) a proceeding commenced or pursued without reasonable grounds; and

(d) a proceeding conducted in a way so as to harass or annoy, cause delay or detriment; or achieve another wrongful purpose.

13 I make no finding as to whether the proposed proceeding is vexatious or not as defined by the Vexatious Proceedings Act 2014. However, I will explain why the plaintiff does not have reasonable grounds for bringing this application.

14 Section 56 of the Vexatious Proceedings Act 2014 requires a person subject to a litigation restraint order to disclose by affidavit the following when making an application for leave to proceed:

(a) details of each application for leave to proceed made by the person;

(b) details of each application for leave to commence or continue a proceeding made by the person under section 21 of the Supreme Court Act 1986 , as in force immediately before its repeal;

(c) details of each interlocutory application made or proceeding commenced or conducted by the person -

(a) that is a vexatious application or a vexatious proceeding; or

(b) which has been stayed or dismissed on the basis of being made, commenced or conducted without merit;

(d) an explanation as to how the application for leave to proceed is materially different to each application referred to in paragraph (a), (b) or (c) (if any);

(e) all other facts material to the application, whether in support of or adverse to the application, that are known to the person.

The plaintiff made his application by facsimile sent 1 December 2014. The attached affidavit purportedly addresses the above criteria. The affidavit did not, in fact, address any of the criteria.

15 The Vexatious Proceedings Act 2014 provides additional power to the Court to determine the procedure adopted in an application for leave. Section 63 enables the Court to determine an application for leave on the basis of written submissions without the appearance of the applicant, and the Court may only conduct an oral hearing in exceptional circumstances.

16 This is the second such application made under these provisions. Ginnane J heard an oral application by the plaintiff on 13 February 2015, which was dismissed on the basis that the claim was vexatious.[3] This application was heard on the papers with no appearance by either party.

17 The plaintiff initially filed two documents in this proceeding: an application in Form 83E, and an affidavit that did not disclose the matters referred to in s 56 of the Vexatious Proceedings Act. No written submissions were filed with the initial application. On 15 December 2014 the Court requested that the plaintiff provide written submissions in support of his application. Those written submissions were filed on 19 December 2014. The submissions also failed to include matters required to be disclosed by a plaintiff subject to a general litigation restraint order pursuant to ss 56(a)-(c) of the Vexatious Proceedings Act 2014. This was rectified by the further affidavit filed by the plaintiff of his own motion on 3 March 2015.

18 In his submissions dated 19 December 2014, the plaintiff states that he believes his application raises a novel question of law as the prohibition on smoking in Victorian prisons will prohibit an otherwise legal activity. The plaintiff sets out all the material facts in his submissions and affidavits. The plaintiff has also included correspondence between himself and the defendant from 19 October 2014 onwards whereby he has petitioned for a change in policy to no avail.

19 The plaintiff seeks answers to the following questions:

(a) Was the decision made by the previous Minister for Corrections to impose a total smoking ban in Victorian prisons from 1 July 2015 ultra vires?

(b) Does any head of power exist in either the Corrections Act 1986 or the Tobacco Act 1987 that empowers prison governors to continue to allow prisoners and prison staff to smoke in their respective prisons beyond 1 July 2015?

(c) Was the decision made by the previous Minister for Corrections to impose a total smoking ban in Victorian prisons from 1 July 2015 made for an improper purpose?

20 This decision turns on whether the plaintiff has reasonable grounds to bring the proceeding pursuant to s 55(b) of the Vexatious Proceedings Act 2014. In deciding whether or not there are potential grounds for the proceeding, a brief assessment of the plaintiff's claims must be undertaken.

Was the Minister's policy to prohibit smoking in Victorian prisons made ultra vires?

21 In his submissions, the plaintiff did not identify the basis upon which the decision to prohibit smoking in Victorian prisons was made ultra vires.

22 In 2014, the legislature specifically included the power to make regulations relating to smoking in prisons in the Corrections Amendment (Smoke-Free Prisons) Act 2014. The amending Act commenced on 1 July 2014,[4] apart from ss 4,6 and 7,[5] which commence on 1 July 2015. Since 1 July 2014, s 112 has relevantly provided:

112. Regulations

(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;

(ab) the prohibition and regulation of smoking in a prison or in any part of a prison;

(ac) the prohibition and regulation of entry, use and possession of tobacco products and tobacco smoking accessories in a prison or in any part of a prison;

(2) The regulations -

(a) may be of general or limited application; and

(b) may differ according to differences in time, place or circumstances.[6]

23 The legislation now also includes definitions relating to tobacco, smoking and tobacco smoking accessories:

3. Definitions

"Governor" means the Governor of a prison and includes a person nominated by the Secretary to act as the Governor of a prison;

"Secretary" means Secretary to the Department of Justice under the Public Administration Act 2004 and includes a person acting as the Secretary to the Department of Justice under the Act;

"smoke" means the drawing or releasing of smoke or fumes resulting from heating or burning an ignited tobacco product, and includes but is not limited to, holding or controlling an ignited tobacco product)

"tobacco smoking accessory" (means any smoking implement and includes but is not limited to, cigarette papers, pipes, cigarette holders, water pipes, cigarette lighters, matches or other similar methods of ignition of a tobacco product)

"tobacco product" means tobacco, cigarette or cigar or any other product the main ingredient of which is tobacco and which is designed for consumption

24 The amended s 112 of the Corrections Act 1986 confers an explicit power on the Governor in Council to make regulations regarding smoking in Victorian prisons from time to time.[7] Thus, the decision to implement the anti-smoking policy in Victorian prisons was not made ultra vires.

Notwithstanding the fact that smoking is prohibited in Victorian prisons as of 1 July 2015, do ss 20(2) and 21(1) of the Corrections Act 1986 empower prison officers to permit smoking in a prison?

25 In his submissions, the plaintiff assumes that the defendant relies on s 21 of the Corrections Act 1986 to empower the Minister to make a regulation prohibiting smoking in all Victorian prisons. The plaintiff submits that this power can be used by prison officers to allow smoking in Victorian prisons, notwithstanding any general policy prohibiting smoking.

26 Alternatively, the plaintiff submits that s 5A(2)(i) of the Tobacco Act 1986 provides an exception for 'personal sleeping or living area[s], or an exercise yard, of a prison...' to the prohibition on smoking in an enclosed workplace,[8] which renders any such general prohibition on smoking void or allows a prison officer to make a regulation in line with this provision. Given that the Corrections Amendment (Smoke-Free Prisons) Act 2014 explicitly repeals this section as of 1 July 2015, the date on which the policy comes into effect, I need not consider this submission as a potential ground for initiating the proceeding.

27 The defendant did not make any submissions but presumably relies on the power to make regulations pursuant to s 112 of the Corrections Act 1986 as outlined above.

28 The scope of the power under ss 20(2) and 21(1) of the Corrections Act 1986 has been reviewed by the Court on numerous occasions in a variety of situations.[9] However, as these provisions have been amended, these decisions are of little assistance. Sections 20(2) and 21(1) have not been reviewed by the Court in their current form.

29 The plaintiff has previously brought a proceeding that challenged a decision of the Governor to place a levy on cigarettes sold in prison instead of selling them to inmates at the wholesale price. He was successful in challenging the decision to introduce the levy in 1993, which decision was found to have been made ultra vires.[10] The relevant decision was made pursuant to ss 20(2) and 21(1) of the 1993 version of the Corrections Act 1987. The sections at the time provided:

...

"Director-General" means the Director-General of Corrections and includes a person acting as Director-General of Corrections under the Public Service Act 1974.

...

(1) The Director-General may, by instrument delegate to any officer or employee in the Office of Corrections or to any officer within the meaning of Part 5 or Part 9 any function or power of the Director-General under this Act or the regulations or under any other Act other than the Public Services Act 1974, except this power of delegation and the Director-General's powers under section 54A.

(2) The Director-General may under sub-section (1) delegate a function or power to a person or class of persons.

...

1. Director-General may exercise powers of prison officer

If whilst at a prison the Director-General considers that the security or good order of the prison or the safety of the prisoners is threatened, the Director-General may exercise all or any of the powers or functions of the Governor or of a prison officer.

...

...

(2) An officer in charge of prisoners must take all reasonable steps for the safe custody and welfare of the prisoners.

...

(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.

30 In the 1993 version of the Corrections Act 1986, there was no specific provision empowering an official to regulate smoking or tobacco products and accessories. However, since the judgment was handed down in favour of the plaintiff in 2012, the above provisions have been amended and further provisions added.

31 The prison officers' duties relating to security and welfare as well as the duties and powers of the Governor are contained in ss 20(2), 21(1) and 22A of the current version of the Corrections Act 1986:

20. Duties relating to security and welfare

...

(2) An officer in charge of prisoners must take all reasonable steps for the safe custody and welfare of prisoners.

21. Duties of Governor

...

(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.

...

22A. Powers of 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.

32 The Corrections Act 1986 still provides for the management and security of prisons and the welfare of prisoners, as well as the administration of services related to community-based corrections and for the welfare of offenders and to provide for other correctional services.[11] However, in light of a provision conferring power on the Governor in Council to make regulations of a specific nature, if a prison officer could establish a policy contrary to a regulation made by the Governor in Council pursuant to a general provision relating to management, that specific section would be rendered otiose.

33 Accordingly, the question as to whether or not ss 20(2) and 21(1) confer a power on a prison officer to allow smoking notwithstanding the general prohibition on smoking is not a question that constitutes a reasonable ground for the proposed proceeding to be given leave of the Court.

Was the decision to prohibit smoking in Victorian prisons made for an improper purpose?

34 The plaintiff alludes to the fact that he believes the power to make a policy prohibiting smoking in Victorian prisons was exercised for an improper purpose; presumably as a punitive measure against prisoners as the regulations make an otherwise legal activity illegal within the confines of the prison.

35 The fact that an activity is otherwise legal in places outside of a prison does not mean that regulating the same activity in prison is necessarily ultra vires or done for an improper purpose. People who are convicted of crimes and sentenced to prison routinely lose the right to engage in activities that are otherwise legal by way of their incarceration. For example, the legislature has validly enacted legislation at the Commonwealth level to prevent prisoners with sentences of longer than three years in duration from voting, despite the fact that the right to vote is protected under the Constitution.[12] The 'right to smoke' is not protected under the Constitution and, in any hierarchy of rights, it is a liberty that is easily derogated from by legislation such as the Tobacco Act 1987 or by regulation under an act of parliament.

36 The Corrections Act 1986 was amended by the Corrections Amendment (Smoke-Free Prisons) Act 2014. The purpose of the amending Act states:

1. Purpose

The purpose of this Act is to amend -

(a) the Corrections Act 1986 to provide for the prohibition and regulation of smoking and the entry, use and possession of tobacco products and tobacco smoking accessories in prisons; and

(b) the Tobacco Act 1987 to remove the exception relating to prison cells and exercise yards from the offence of smoking in an enclosed workplace.

37 The objects of the Tobacco Act 1987 make health and welfare considerations paramount:

(1) The objects of this Act are

(a) the active discouragement of the smoking of tobacco -

...

(iii) by encouraging and assisting smokers to give up smoking; and

(b) the promotion of health and illness prevention...

(2) In giving effect to the objects of this Act, the Minister shall cause steps to be taken to -

...

(b) encourage agreements to prohibit or limit the places and times at which people may smoke in enclosed public places or in the work environment

...

(d) evaluate the effectiveness of anti-smoking programs and plan future activities and policies on tobaccos usage...[13]

38 These objects of both Acts, read in conjunction, show that the objective intention of the legislature[14] is to regulate smoking in Victorian prisons for health reasons. Thus, the regulation prohibiting smoking in Victorian prisons was made for the proper purpose of facilitating both prisoners and prison staff in quitting smoking in line with the long-held anti-smoking policies referred to in the plaintiff's submissions and affidavit material.

39 I am not satisfied that the proposed proceeding has reasonable grounds pursuant to s 55(b) of the Vexatious Proceedings Act 2014.

40 Contrary to the plaintiff's submissions, ss 20(2) and 21(1) of the Corrections Act 1986 do not necessarily empower prison officers to allow smoking and, in any case, the inclusion of a specific power under s 112 of the Corrections Act 1986 renders a discussion of the scope of power under those sections unnecessary in this context. Further, the policy to prohibit smoking in Victorian prisons is not ultra vires, nor was it made for an improper purpose.

41 The plaintiff's application for leave to commence the proposed proceeding is refused.

[1] A-G (Vic) v Knight [2014] VSC 549. See below at paragraph [7].

[2] Vexatious Proceedings Act 2014, s 54(1).

[3] Knight v Shuard [2015] VSC 36.

[4] Victoria, Government Gazette, No. S 224, Tuesday 1 July 2014, 1.

[5] These provisions relate to seizure, the repeal of the definition of exercise yard in Tobacco Act 1987, s 3 and the removal of the exemption for smoking offences in enclosed places such as prison yards and cells pursuant to s 5A(2)(i) of the Tobacco Act 1987.

[6] Corrections Act 1986, s 112. Emphasis added.

[7] Pursuant to the Interpretation of Legislation Act 1984, s 40, 'Exercise of powers and performance of duties'.

[8] Tobacco Act 1987, s 5A(1).

[9] Binse v Williams [1998] 1 VR 381; Kaufman v Smith [2001] VSC 420; (2001) 124 A Crim R 259.

[10] Knight v Secretary to the Department of Justice [2012] VSC 613.

[11] Corrections Act 1986, s 1.

[12] Roach v Electoral Commissioner (2007) 233 CLR 162.

[13] Tobacco Act 1987, s 5.

[14] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 384 [78].