Plaintiff v Defendant

(i) A letter from Ms Sheryle Griffiths dated 13 November 2015 together with a copy of the judgment of the Supreme Court of Victoria in Moran v Secretary to the Department of Justice and Regulation [2015] VSC 593;

(ii) Two volumes of the Journal of Prisoners on Prisons together with covering letters from Zachary Leheniuk dated 5 November 2015 and 14 December 2015.[1]

2 Further, in February and March 2016, prison officers opened three envelopes which had been dispatched by Dr Minogue which were addressed to the Darebin Community Legal Centre from whom he was seeking advice in respect of the current proceedings and other proceedings in the Supreme Court of Victoria.

3 The defendant accepts that the items of mail referred to above were dealt with in contravention of Dr Minogue's right under s 47(1)(n) of the Corrections Act 1986 ('the Act'). Section 47(1)(n) provides that subject to s 47D, which prescribes letters which may be stopped and censored, every prisoner has the right to send and receive other letters uncensored by prison staff. The defendant's written submissions include the following:

1. The Defendant accepts that the Moran judgment was stopped and returned to the sender,[2] and that the mail staff were in error in stopping that item and cover letter, which was stopped because the prison staff incorrectly identified the judgment as transcript relating to the private affairs of another prisoner.[3] It is also, however, clear that the plaintiff has received those items, first when the Moran judgment was sent to him under cover of mail marked legally privileged[4] and secondly when the defendant arranged to provide it to the plaintiff on 3 March 2016, after the plaintiff advised at a directions hearing in this matter that he had not received it.[5]
2. The Defendant also accepts that the Journal article was incorrectly stopped and placed in the plaintiff's property, based on an incorrect understanding by prison staff that the articles had content which made it inappropriate for release to the prison population. The plaintiff was provided with the Journal article and a letter with which it had been sent to him on 23 December 2015, but the article was retained in his property at the Property Store.[6] That article, and the cover letters with the article, have also been provided to the plaintiff on 16 March 2016.[7]
3. In relation to the legal mail, the Defendant also accepts that the two items of legal mail dated 18 March 2016 sent on 28 March 2016 referred to by the plaintiff was not authorised by the Corrections Act 1986 or Corrections Regulations 2009 and that it should not have happened. The mail was opened in error and was not read. Steps including speaking to particular staff;[8] training of relevant staff[9] and reminder notices in the room in which mail is opened[10] have been taken to minimise any possibility that such errors will occur again. Also, the Deputy Commissioner's Instruction No. 4.07 Prisoner Communications was amended on 1 July 2016 to provide a check list of exempt persons and bodies.[11]

1. The defendant acknowledges in relation to the legal mail that (1) the three items of legal mail were opened, in error;[12] (2) this constituted a contravention of the Corrections Act restrictions on opening of mail addressed to lawyers, as there was no statutory basis which authorised the opening of the letters;[13] and (3) that such mail should not be opened in future, unless the extraordinary circumstances of s 47A or s 47B of the Corrections Act apply.[14]
2. The state of the evidence renders it unnecessary for the Court to make any findings on the factual matters identified by the plaintiff, nor to quell any controversy. There are a number of findings declarations sought by the plaintiff on matters of law which are not contested, including for example that the Defendant is constrained by the provisions of the Corrections Act and Corrections Regulations: see par 5 of the 24 May 2016 summons.
3. Other declarations relate to abstract matters which could not be the subject of a declaration because they relate to matters which, although of significance to the plaintiff, do not relate to any actual legal controversy as between the parties:

28.1. the declarations which would assert that the opening of legal correspondence had the effect of the Plaintiff 'losing confidence' in being able to enjoy certain rights;

28.2 the declarations that the communication is an activity which is captured by the operation of the human right of 'freedom of expression' and 'was not demonstrably justified and reasonably necessary under the law'.[15]

4 The defendant submits that the Court should conclude that there is no extant dispute of law or fact between the parties.[16] The defendant submits that there is no utility in making declarations in the terms sought 'given the evidence that the errors were not deliberate; that it is recognized that the actions were unlawful, and that action has been taken to avoid them occurring again'.[17]

5 It is well established that the grant of declaratory relief is discretionary. Dr Minogue has a real interest in the relief sought. That relief is not hypothetical. It relates to circumstances which have actually occurred. Notwithstanding the concessions made by the defendant, I do not accept that there is no utility in the grant of declaratory relief. The right of Victorian prisoners to send and receive mail is prescribed by the Act and the Corrections Regulations 2009 ('Regulations'). Plainly, the right to send and receive mail unimpeded, save for in particular prescribed circumstances, is a right of the utmost importance to any prisoner. This is particularly so where, as in the present case, rights to unimpeded receipt and dispatch of mail involved correspondence between a prisoner and a legal advisor. I am satisfied that Dr Minogue is entitled to declaratory relief to vindicate his right to receive and dispatch mail in accordance with the provisions of the Act and Regulations. This is an issue of ongoing and general importance to all prisoners in Victoria.

6 The defendant concedes that Dr Minogue's rights to receive and dispatch mail were unlawfully impeded on a number of occasions. Whilst the specific circumstances in which this occurred are in the past, this is not determinative of whether declaratory relief should be granted.

7 The fact that the events underpinning Dr Minogue's claim for declaratory relief are in the past does not mean that there is no utility in granting the relief sought.[18] Evidence lead on behalf of the defendant that steps have been taken to ensure that there is no further unlawful interference with Dr Minogue's mail does not mandate a conclusion that there is no utility in granting declaratory relief. I have concluded that the granting of declaratory relief is appropriate because it serves to record the Court's disapproval of the defendant's conduct in contravention of Dr Minogue's right, subject to s 47D of the Act, to send and receive letters uncensored by prison staff.[19]

8 Further, although the facts underpinning the claim for declaratory relief relate solely to interference with Dr Minogue's mail, the issues raised by the proceeding are of general importance. All prisoners in Victoria have the right to send and receive mail uncensored by prison staff, save for the exceptions prescribed by the Act and Regulations. As such, the grant of the relief sought serves not only to vindicate Dr Minogue's rights,[20] but also to deter the defendant from further engaging in conduct in contravention of Dr Minogue's rights under s 47(1)(n).[21]

9 Dr Minogue sought 13 separate declarations.[22] All of the declarations which he sought arise out of the failure to forward mail to him in November and December 2015, and the opening of correspondence from him to the Darebin Community Legal Centre in February and March 2016.

10 For the reasons set out above, I have decided to grant the following declarations:

(a) The defendant, in his capacity as Governor of Loddon Prison, contravened the plaintiff's rights pursuant to s 47(1)(n) of the Corrections Act 1986 by reason of the failure to provide the plaintiff with:

(i) a letter from Ms Sheryle Griffiths dated 13 November 2015 together with a copy of the judgment of the Supreme Court of Victoria in Moran v Secretary to the Department of Justice and Regulation [2015] VSC 593, on or about 14 November 2015;

(ii) a volume of the Journal of Prisoners on Prisons and an accompanying letter from Zachary Leheniuk dated 5 November 2015;

(iii) a volume of the Journal of Prisoners on Prisons and an accompanying letter from Zachary Leheniuk dated 14 December 2015.

(b) The defendant in his capacity as Governor of Loddon Prison contravened the plaintiff's rights pursuant to s 47(1)(n) of the Corrections Act 1986 by reason of prison staff at Loddon Prison opening correspondence from the plaintiff sent on 25 February 2016, and two letters sent on 28 March 2016 to Ms Donna Williamson and Ms Katia Lallo, Darebin Community Legal Centre Inc.

[1] Whilst the defendant's written submissions erroneously referred to a single journal article being temporarily withheld from the plaintiff, the defendant accepted at trial that there was a second journal article and a letter dated 14 December 2015 which had been withheld from the plaintiff: See Transcript of Proceedings, Minogue v Lourey (Supreme Court of Victoria, S CI 2016 00324, McDonald J, 18 August 2016) T26 LL3-13.

[2] 'Defendant's Outline of Submissions' dated 25 July 2016, [6], citing Exhibit A: Affidavit of Gavin Blair sworn 11 May 2016, [11].

[3] Ibid, citing Exhibit A: Affidavit of Gavin Blair sworn 11 May 2016, [10].

[4] Ibid, citing Exhibit P1: Affidavit of Craig Minogue sworn 4 January 2016, [6].

[5] Ibid, citing Exhibit A: Affidavit of Gavin Blair sworn 11 May 2016, [11].

[6] Ibid [7], citing Exhibit P1: Affidavit of Craig Minogue sworn 4 January 2016, [11].

[7] Ibid, citing Exhibit A: Affidavit of Gavin Blair sworn 11 May 2016, [12].

[8] Ibid [8], citing Exhibit B: Further Affidavit of Gavin Blair sworn 2 June 2016, [8].

[9] Ibid, citing Exhibit B: Further Affidavit of Gavin Blair sworn 2 June 2016, [17].

[10] Ibid, citing Exhibit B: Further Affidavit of Gavin Blair sworn 2 June 2016, [16], "GB-4".

[11] Ibid, citing Exhibit C: Affidavit of Debra Coombs sworn 25 July 2016, "DJC-1".

[12] Ibid [26], citing Exhibit B: Further Affidavit of Gavin Blair sworn 2 June 2016, [4]-[5].

[13] Ibid, citing Exhibit B: Further Affidavit of Gavin Blair sworn 2 June 2016, [3], [4]-[6].

[14] Ibid, citing Exhibit B: Further Affidavit of Gavin Blair sworn 2 June 2016, [3].

[15] Ibid [28], citing Plaintiff's summons dated 24 May 2016, [7]-[8].

[18] See Alinta Asset Management Pty Ltd v Essential Services Commission (No 3) [2007] VSC 353, [12]; Alinta Asset Management Pty Ltd v Essential Services Commission [2008] VSCA 273; (2008) 22 VR 275, [247].

[19] See Australian Securities and Investments Commission v Aktiengesellschaft [2016] FCA 1489, [91] ('Aktiengesellschaft'); Director of Consumer Affairs Victoria v Mecon Insurance Pty Ltd [2016] VSC 42, [28] ('Mecon Insurance').

[20] Aktiengesellschaft [2016] FCA 1489, [78]; Mecon Insurance [2016] VSC 42, [28].

[21] Aktiengesellschaft [2016] FCA 1489, [78].

[22] See Amended Originating Motion between Parties dated 23 July 2016, [28]-[40].