Plaintiff v Defendant

Supreme Court of Victoria|2015-12-04|Before: Garde J

PRACTICE - Request by prisoners for provision of CD media outside the parameters of the Commissioner's requirements relating to prisoner computers - Advanced stage of strike out application - Lack of need for CD media in the interests of justice - Prisoner entitled to access and receipt of legal material by other means - Security risk and risk to IT system - Request for access to CD media refused.

1 This is the return of a summons dated 2 December 2015 in a proceeding commenced by originating motion. Paragraph 1 of the summons seeks what it describes as a coercive order, a declaratory judgment or order and binding declarations of right. None of these are appropriately made in an interlocutory application of this nature. The summons is not in a proper form and cannot be successful as to the form of relief sought from the Court.

2 Mr Hugo Rich ('the plaintiff') requests access to CD media containing electronic files,[2] which he says are relevant to the proceeding and to a Special Leave Application which he proposes to bring in the High Court of Australia in relation to his previous conviction.

3 The main issue argued before the Court is whether the plaintiff should receive the requested CD media in the circumstances of this case.

4 The solicitor for Mr Brett Ryan (acting in his capacity as the Acting General Manager of H.M Barwon and for Corrections Victoria) ('the defendant'), drew my attention to the operative guidelines for the prison governing access to CDs and DVDs entitled 'Commissioner's Requirements - Prisoner Computers'.[3] This directive, published by the Corrections Victoria Commissioner ('the Commissioner'), is administrative in character, and does not have effect as law. However, it is submitted that the Commissioner's Requirements are relevant to the exercise of my discretion in this matter.

Burned CDs/DVDs will only be accepted from agencies such as:

a prisoner's legal representative
law enforcement agencies, including Victoria Police
Court authorities
authorised education providers, and
other agencies that, from time to time, may be authorised by the prison General Manager.

Requirements 4.11.6, 4.11.7 and 4.11.8 refer to other requirements relating to CDs and DVDs.

6 It is clear, as the defendant contends, that what is sought by the plaintiff is contrary to Requirement 4.11.5, as the CD media will not come from any authorised source. While this is a significant consideration, it is by no means the only consideration that I should take into account. It is important to review the proceeding that has been initiated by the plaintiff, and the need for the plaintiff to have the requested CD media in the interests of justice.

7 The originating motion is dated 14 September 2015. Daly AsJ has granted liberty for the plaintiff to file and serve a proposed amended originating motion on or before 22 January 2016.

8 The statement of claim prepared by the plaintiff covers an extensive field, is lengthy, and includes headings such as 'Prisoners may be tested for drugs or alcohol use', 'Duties relating to security and welfare', 'Prisoner communication', and 'Requests and Complaints'. It is of a very broad character, containing a series of contentions and assertions by the plaintiff as to the breach of a wide variety of corrections and administrative duties that he says the defendant has.

9 A summons dated 13 November 2015 has been issued on behalf of the defendant, seeking to strike out the proceeding on the grounds that it:

(a) fails to disclose a reasonable cause of action;

(b) is likely to cause prejudice, embarrassment and delay in the proceeding; and

(c) is an abuse of the process of the Court.

10 The strikeout application is significantly advanced, and is returnable on 1 March 2016. Daly AsJ has made orders for the filing of submissions by the parties. The plaintiff has filed a substantial written submission in support of his application for a coercive order and did so without the assistance of CD media. The next step, apart from any proposed amended originating motion, is for the defendant to file a further outline of submissions.

11 The rules of the court and authorities relating to strikeout applications in the court are well established and have been developed over many years. Those principles are comprehensively outlined in practice texts and legal references that are readily available to the plaintiff. In addition, the plaintiff is entitled to receive additional legal materials in printed form. The plaintiff also has access to the Department of Justice library. Finally, the plaintiff can always invite the court to look at particular things or particular references in the course of the hearing of any application.

12 As a result, I am not satisfied that there is any need in the administration of justice for the plaintiff to receive CD media at this time.

13 The solicitor for the defendant highlighted, in oral submissions, that there have been past problems with the receipt of CDs in prisons. Clearly, there is a security risk and an IT risk to computer systems associated with the receipt of CDs outside the parameters of Requirement 4.11.5. The plaintiff highlighted that he has, in the past, received a good number of CDs while in prison.

14 Having regard to these considerations and the matters put to me in argument, I have decided that the summons dated 2 December 2015 should be dismissed. It does not seem to me that the nature of the proceeding, the likely prospects of success, and the advanced state of the strike out application necessitate, at least at this time, the wide ranging access the plaintiff seeks to legal materials through the provision of CD media.

15 In all the circumstances, particularly as I have said the nature of the proceeding, the prospects of success, the advanced state of the strikeout application, added to which there are the security and IT risks and the breach of the Commissioner's Requirements that I have referred to, I am not prepared to accede to the summons or the request for CD media access made by the plaintiff. The summons dated 2 December 2015 is dismissed.

[1] This is an edited ruling of an oral judgment given on 4 December 2015.

[2] Affidavit of Hugo Alistair Rich dated 2 December 2015 ('2 December 2015 affidavit') [3]; " ... communications, legislation, historical Hansard records, case authority, legal publications, Guideline document from Worksave authority, an abridged copy extracted from the current electronic NexisLexis Legal Publications Catalogue, an extract of both price and description, and product codes for an office stationary supplies, a publication to assist in the pleading of statutory provisions, and other sundry files required for that particular matter, and also a proposed pending High Court of Australia application ..." [sic]

[3] Corrections Victoria Commissioner, Commissioner's Requirements - Prisoner Computers (May 2015) ('Commissioner's Requirements').

At a glance

Court

Decision date

Before

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Judgment (23 paragraphs)

Parties