Plaintiff v Defendant

2 The plaintiff, Ali Kheir, is serving a sentence of imprisonment for aggravated burglary, recklessly causing injury, armed robbery and blackmail. At present, his sentence ends on 19 February 2022 and he is eligible for parole from 21 August 2019.

3 On 30 June and 1 July 2015, there was a riot at the Metropolitan Remand Centre (MRC), where Mr Kheir was imprisoned. On 2 July 2015 Mr Kheir was transferred to Barwon Prison, where he remained for more than 22 months. While at Barwon, he was held in a high security unit, and was confined to his cell for long periods each day. On 11 May 2017 Mr Kheir was transferred to Port Phillip Prison, where he is held in a mainstream unit.

4 In August 2017, Mr Kheir applied through his solicitors to the Secretary to the Department of Justice for a reduction to his sentence under s 58E of the Corrections Act 1986 (Vic). Section 58E empowers the Secretary to reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period on account of good behaviour while suffering disruption or deprivation during an emergency existing in the prison in which the sentence is being served. Any days by which a prisoner's sentence is reduced are known as 'emergency management days' or 'EMDs'.

5 On 15 September 2017, the then Corrections Commissioner, as delegate of the Secretary, decided not to reduce Mr Kheir's sentence. Mr Kheir sought judicial review of that decision in this Court. On 11 May 2018, T Forrest J set aside the Commissioner's decision and ordered that 'the s 58E application be remitted to a delegate of the Secretary to the Department of Justice and Regulation who, if possible, has had no previous involvement with that application'.[1]

6 In June 2018, Mr Kheir's solicitor provided the Secretary with written submissions in support of his request for a reduction in his sentence due to the disruption and deprivation he had suffered in the wake of the MRC riot. By late September 2018, the Secretary had not appointed a delegate and no decision had been made on Mr Kheir's s 58E application. Despite frequent, and increasingly insistent, inquiries from his solicitor,[2] the Secretary gave no indication of when a delegate might be appointed or a decision made. In a final letter sent on 19 September 2018, Access Law set a firm deadline for a response, and advised:[3]

If no meaningful progress is made in this case by then I must comply with my instructions and initiate proceedings in the Supreme Court.

This letter drew no response from the Secretary or his solicitor by the deadline of 21 September 2018.[4]

7 On 10 October 2018, Mr Kheir commenced this proceeding.[5] In his originating motion he sought:

(a) an order in the nature of mandamus requiring the Secretary urgently to consider and determine his application under s 58E;

(b) further or in the alternative, an order in the nature of mandamus requiring the Secretary to provide him with details of the steps taken to comply with T Forrest J's order of 11 May 2018;

(c) further or in the alternative, an order in the nature of mandamus requiring the defendant to appoint a delegate to receive and determine the application remitted by T Forrest J's order of 11 May 2018; and

(d) a declaration that the Secretary has breached ss 21(1), 21(3) and 22(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter).

8 On 23 October 2018, the Secretary appointed a delegate who made a decision on Mr Kheir's application on 20 December 2018.[6]

9 The making of a decision did away with most of Mr Kheir's claims for relief in this proceeding. All that remained was his claim for a declaration that the Secretary's delay in making a fresh decision had breached his human rights under ss 21 and 22 of the Charter. Section 21 of the Charter concerns the right to liberty and security of the person, while s 22 provides for the humane treatment of persons deprived of liberty.

10 At the trial on 12 February 2019, Mr Kheir withdrew his claim for declaratory relief. His counsel submitted that the appropriate disposition was an order that the proceeding be dismissed, and the Secretary pay Mr Kheir's costs on an indemnity basis.

11 In support of his claim for indemnity costs, Mr Kheir relied on a letter sent by his solicitor on 15 January 2019. The letter was headed:

'Hazeldene' letter

This letter is sent on a 'with prejudice' basis. It will be provided to the

Court on behalf of the plaintiff at the hearing on 12 February 2019

The letter summarised the correspondence that had taken place between the Court's order of 11 May 2018 and the commencement of the proceeding, and suggested that the Secretary had failed to take any step in compliance with that order until after the commencement of the proceeding. It continued:

On Mr Money's account of what occurred,[7] the defendants' failure to comply with [the] Supreme Court's Order is inexcusable. It lacks detail, justification and explanation. This is particularly so in light of the procrastinations and excuses provided by the defendants' lawyers over several weeks.

The defendants' failure to comply with the Supreme Court's Order caused the plaintiff to commence the current proceedings.

By the time the Secretary appointed Mr Robertson as his delegate, the plaintiff had incurred legal cost. He is entitled to recover those costs. He will continue to incur expenses for so long as the defendants resist an order to pay his costs.

The circumstances outlined above are sufficient to enliven the Court's discretion as to costs. The defendants risk incurring further expenses in resisting an order for payment of the plaintiff's costs.

Breach of plaintiff's human rights

If the defendants accept that they should pay the plaintiff's costs, the plaintiff need not pursue his application, in these proceedings, for a declaration that his human rights have been breached. In that event, it would be sufficient to submit a Memorandum and Minute of Proposed Consent Orders to the Court seeking Orders that the defendants pay the plaintiff's costs on a standard basis and for the proceedings to be dismissed.

Application for costs on a full indemnity basis

This offer is open to be accepted for 14 days. If the defendants fail to accept this offer, an application will be made to the Court that the defendants pay the plaintiff's costs on a full indemnity basis.

12 The Secretary did not accept this offer. On that basis, Mr Kheir says that the Secretary should pay his costs on an indemnity basis.

13 The Secretary submits that she should not be ordered to pay Mr Kheir's costs. Further, she submits that he should pay her costs of the proceeding, because:[8]

The plaintiff's behaviour in issuing proceedings as early as he did must be regarded as peremptory. The defendant seeks [her] costs on the basis that the claim could not have succeeded even before the latest decision was made.

14 An elaborate argument was put for the Secretary as to why the proceeding ought not have been brought, as follows:

(a) Section 58E does not contain a duty, and so mandamus was never available;

(b) Even if mandamus were available there was no refusal to make a decision;

(c) The delay involved in making the decision could not be construed as a refusal;

(d) The Charter rights in ss 21 and 22 have not been limited, or alternatively any limit was reasonable under s 7(2) so the rights were not breached;

(e) Even if the Charter rights in ss 21 and 22 have been breached, the conditions for seeking relief under s 39 of the Charter are not satisfied so no relief is available.

15 Each of these contentions involves legal or factual questions of some complexity. It is not necessary to determine these questions in order to decide who should bear the costs of the proceeding. In my view, the issues to be determined are as follows:

(a) Did Mr Kheir have an arguable claim for an order in the nature of mandamus in respect of the Secretary's failure to make a decision under s 58E of the Corrections Act?

(b) Who is the successful party in the proceeding?

(c) In relation to Mr Kheir's claim for indemnity costs, was it unreasonable in the circumstances of this case for the Secretary not to accept the offer made in the letter of 15 January 2019?

16 Section 58E of the Corrections Act provides, in full:

Emergency management days

(1) The Secretary may, in accordance with the regulations, reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period (if one has been fixed in respect of the sentence) on account of good behaviour while suffering disruption or deprivation -

(a) during an industrial dispute or emergency existing in the prison or police gaol in which the sentence is being served; or

(b) in other circumstances of an unforeseen and special nature.

(2) Subsection (1) applies to all sentences of imprisonment, including any imposed for murder, irrespective of whether the sentences were imposed before or after the commencement of this section.

17 Emergency management days are dealt with in reg 78 of the Corrections Regulations 2009 (Vic) as follows:

(1) If the Secretary grants emergency management days to a prisoner, the length of the non-parole period or, if a non-parole period has not been fixed in respect of the sentence, the length of the sentence of imprisonment is reduced by the number of emergency management days granted.

(2) The number of emergency management days granted must not exceed -

(a) 4 for each day or part of a day on which the industrial dispute or emergency exists;

(b) 14 in other circumstances of an unforeseen and special nature.

18 An order in the nature of mandamus will only be made to compel the performance of a public duty. A threshold issue for Mr Kheir was therefore whether the Secretary had a duty to make a decision on his claim under s 58E.

19 Mr Kheir acknowledged that s 58E confers on the Secretary a discretionary power to grant emergency management days if the threshold conditions specified in the section are satisfied. He contended that, once a prisoner invokes or makes application under s 58E, the Secretary has a duty to consider and determine the application. He put forward the following propositions in support of his contention that s 58E confers both a power and a duty on the Secretary:

(a) In Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia,[9] Heydon J held that 'in the absence of statutory language to the contrary, a grant of jurisdiction ordinarily carries with it a duty to exercise it'.[10] Hence, it is a function of an administrative decision-maker upon whom a power is conferred to act on that power. Here, the Secretary had embarked on the exercise of the power when the former Commissioner made the first decision, and was obliged to exercise the power according to law.

(b) There is nothing in s 58E to the contrary, in that it does not indicate that the Secretary has a discretion whether to make a decision. The use of the word 'may' indicates only that, in circumstances where the power is enlivened, the Secretary has discretion as to what decision to make - whether to grant any emergency management days and if so how many. In other words, the discretion is as to the outcome of the exercise of the power, not a discretion whether to exercise it at all.[11]

(c) Section 58E is a provision that confers rights and privileges on a prisoner in return for good behaviour. As such, it is to be read liberally and beneficially towards the prisoner.[12]

(d) Mr Kheir also relied on the reasoning of the Full Court of the Federal Court in Yasmin v Attorney-General (Commonwealth),[13] in relation to the factors that bear on whether there is a duty to exercise a statutory discretion.

(e) In addition, he relied on T Forrest J's finding in the earlier proceeding that the Secretary's delegate, the Commissioner, 'had failed properly to carry out the duty imposed on her by s 58E'.[14]

20 The Secretary contended that s 58E conferred only a power, which was not coupled with any duty to perform it. She relied on several authorities to the effect that whether there is an implied duty to exercise a power is a question of statutory construction,[15] and submitted that the text, context and purpose of s 58E of the Corrections Act compelled the conclusion that it did not impose a duty on the Secretary.

21 The Secretary accepted that s 58E must be construed in accordance with s 32(1) of the Charter. Section 32(1) requires that, where a provision has more than one meaning that is consistent with its purpose, the meaning to be preferred is the one that is most compatible with human rights.[16] It is arguable that s 58E engages the right to liberty and security of the person in s 21 of the Charter and the right to humane treatment in detention in s 22, and that construing s 58E as conferring both a power and a duty 'best accords' with those rights.[17] The Secretary submitted that neither right is engaged by s 58E and provided a good deal of authority on that question alone.

22 The competing contentions of the parties demonstrate that Mr Kheir had, at the very least, an arguable case that the Secretary had a duty to consider and determine his application under s 58E. To put it another way, there was sufficient substance to his claim for mandamus that I would not have been disposed to summarily dismiss that claim.[18]

23 Mr Kheir is the successful party in this proceeding. He had an arguable claim for an order in the nature of mandamus compelling the Secretary to consider and determine his s 58E application. After Mr Kheir commenced this proceeding, the Secretary appointed a delegate who then made a decision on Mr Kheir's application. Once that decision was made, on 21 December 2018, Mr Kheir had the substantive outcome that he sought in this proceeding.

24 The ordinary rule is that the successful party should have the costs of the proceeding, unless there is some good reason to order otherwise.

25 The Secretary contends that it was 'peremptory' for Mr Kheir to bring this proceeding when he did. I disagree. The Secretary's first decision on Mr Kheir's application had been set aside by a Judge of this Court, and remitted to be made by a new delegate to be appointed by the Secretary. It is a matter of dismay that the Secretary took more than five months to act on the Court's order of 11 May 2018, and then only after Mr Kheir had commenced a further proceeding. The Secretary to the Department of Justice and Regulation[19] has a central role in upholding the rule of law in Victoria, and should give effect to a final order of this Court as a matter of course. The delay in doing so here called, at the very least, for a full and transparent explanation.

26 The material filed on behalf of the Secretary did not, in my view, provide such an explanation. The Secretary relied on an affidavit of Brendan Money, made on 25 October 2018 when he was Acting Commissioner, Corrections Victoria. I set out the relevant parts of Mr Money's affidavit in full:[20]

Since the s 58E application remitted by T Forrest J on 11 May 2018, it has taken some time to identify the person who will make the decision. This is in large part because of the breadth of the plaintiff's bias concerns, which were ventilated in the Supreme Court before T Forrest J and have been reiterated in the subsequent correspondence on his behalf, and because of the conditions of the remitter by Justice Forrest, which require that the person 'if possible' have had 'no previous involvement with the application'. The Secretary has most certainly not refused to determine the plaintiff's application under s 58E but there was a difficulty in identifying a suitably qualified and senior person who will satisfy the court's condition and ideally avoid allegations of bias from the plaintiff. Since the remittal of the application, various people have been considered for this delegation but not selected.

I am informed by Ms Debra Coombs, Principal Solicitor, and believe that she had informed Mr Kuek by email on 14 May 2018 that she thought the likely person to consider the plaintiff's renewed application for EMDs would be the new Commissioner, Dr Emma Cassar, who was due to begin her position on 1 June 2018. I am further informed by Ms Coombs and believe that Mr Kuek by return email objected to Dr Cassar considering the application [and] said that her position as Commissioner may make her vulnerable to criticism of apprehended bias by reason that her position puts her in a position of conflict. Mr Kuek sought that the Secretary delegate another senior officer within the Department of Justice and Regulation, who is not associated with Corrections Victoria, to make the decision.

I am informed by Mr Rod Wise, former acting Commissioner, and I believe that he considered it appropriate to await Dr Cassar beginning her appointment as Commissioner to seek her position as to what recommendations she wished to make to the Secretary of the Department of Justice and Regulation as to the process in considering the plaintiff's remitted application for EMDs.

I am informed by Ms Coombs that the plaintiff renewed his application for EMDs and that this application was received on 22 June 2018 via Ms Coombs.

After being briefed in relation to the plaintiff's application for EMDs and Mr Kuek's objection to her being delegated to make the decision Dr Cassar has now recommended to the Secretary that he delegate the consideration of the plaintiff's application to another senior officer within the Department. The paperwork for the Secretary to delegate the power to another senior officer was prepared for me and signed by me and given to the Secretary.

On 23 October 2018, the Secretary delegated to Mr Neil Robertson, Executive Director, Criminal Justice Strategy and Co-ordination in the Department to consider and ... decide the plaintiff's application.

27 Much of Mr Money's affidavit was written in the passive voice, and obscured what it should have revealed - namely, who did what, and when. He deposed to only two specific actions taken on specific dates. On 14 May 2018, the Secretary's solicitor proposed that the incoming Corrections Commissioner should be delegated to make the decision. Mr Kheir's solicitor vetoed this proposal, on the ground of apprehended bias. On 23 October 2018, the Secretary delegated Neil Robertson to make the decision. Mr Money did not explain why it was so difficult to identify a suitable delegate within the Department. Nor did he identify the 'various people' who had been considered, when they were considered, and why they were not selected. He did not say when the new Commissioner was first briefed about Mr Kheir's s 58E application, or when she made her recommendation to the Secretary. His silence on each of these matters was eloquent.

28 I infer that the Secretary, through Corrections Victoria, took no action towards making a decision on Mr Kheir's application between 14 May 2018 and the commencement of this proceeding. The Secretary was then able to identify and appoint a suitable delegate within a month. I infer that attention was only given to Mr Kheir's application because he had taken further legal action. The 'difficulty' in identifying a suitable decision-maker seems to have evaporated at that point.

29 I reject the Secretary's contention that Mr Kheir acted prematurely in bringing this proceeding. The Secretary had ample opportunity to appoint a new delegate and to make a fresh decision on the application that Mr Kheir first made in August 2017. By late September, a string of polite inquiries of the Secretary's solicitor had elicited no action, or even an indication of when action might be taken. In those circumstances, it was entirely reasonable for Mr Kheir to take further legal action to compel a decision - as his solicitor had foreshadowed in his letter of 19 September 2018.

30 There is no good reason not to make the usual order as to costs. As the successful party, Mr Kheir should have his costs of the proceeding.

31 In relation to Mr Kheir's claim for indemnity costs, the critical question is whether it was unreasonable in all of the circumstances for the Secretary not to accept the offer made in Access Law's letter of 15 January 2019.[21] Among the factors to be considered in assessing reasonableness are:

(a) the stage of the proceeding at which the offer was received;

(b) the time allowed to the offeree to consider the offer;

(c) the extent of the compromise offered;

(d) the offeree's prospects of success, assessed as at the date of the offer;

(e) the clarity with which the terms of the offer were expressed;

(f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree's rejecting it.[22]

32 Each of these matters indicates that it was unreasonable for the Secretary not to accept the offer:

(a) The offer was made and received soon after the Secretary's delegate had made a decision. It does not appear from the file that any step was taken in the proceeding between 20 December 2018, when the decision was made, and 15 January 2019, when the offer was made.

(b) The offer was open to be accepted for 14 days, which I regard as a reasonable time. The offer was made in time to be considered and accepted by the Secretary before the Secretary's written submissions were due to be filed on 29 January 2019.

(c) By the time the offer was made, Mr Kheir had achieved the substantive outcome he sought in the proceeding. In those circumstances he had a reasonable expectation that the Secretary would be ordered to pay his costs of the proceeding. He offered to forego his claim for a declaration to vindicate the human rights he claims were breached by the Secretary's delay in dealing with his application, if the Secretary agreed to pay his costs on the standard basis to that point. In other words, he offered to compromise the balance of his claim.

(d) At the time of the offer, Mr Kheir had already achieved success in the proceeding and had a strong prospect of obtaining a costs order in his favour.

(e) The offer was made in clear terms.

(f) The offer foreshadowed an application for indemnity costs if the offer was not accepted.

33 A further matter that I consider to be relevant is the Secretary's position as a model litigant. The Court expects that the Victorian Government and its agencies, as parties to litigation, will act with complete propriety, fairly and in accordance with the highest professional standards.[23] The Victorian Government in turn accepts this responsibility, by requiring its departments and agencies to adhere to the Victorian Model Litigant Guidelines. Those Guidelines, among other things, required the Secretary to deal with Mr Kheir's claim promptly and not cause unnecessary delay, to keep the costs of litigation to a minimum, to take reasonable steps to resolve the litigation by agreement, to narrow the issues in dispute, and not rely on technical arguments unless the State's interests would be prejudiced by failure to comply with a particular requirement.[24]

34 For the Secretary, it was submitted that it was reasonable not to accept the offer because the proceeding should never have been brought, and to accept the offer would have encouraged unmeritorious claims by other prisoners, and increased strains on the court system. I have already found that Mr Kheir had an arguable case for mandamus and acted reasonably in bringing the proceeding, in the face of the Secretary's unexplained delay in giving effect to the Court's order of 11 May 2018. For the Secretary to have accepted the offer would have set no precedent, and would have eased the Court's workload by avoiding the need for the hearing on 12 February 2019. Continuing to contest the proceeding, as the Secretary did, has had the opposite effect.

35 I consider that the Secretary's failure to accept the offer fell short of the standards required of a model litigant.

36 Overall, I find that it was unreasonable in all the circumstances of this case for the Secretary not to accept the offer made in the letter of 15 January 2019. On that basis, I consider it appropriate for the Secretary to pay Mr Kheir's costs after that date on an indemnity basis. There is no basis to order indemnity costs before then, and the Secretary should pay Mr Kheir's costs on the standard basis up to 15 January 2019.

(a) The proceeding is dismissed.

(b) The defendant is to pay the plaintiff's costs of the proceeding, including any reserved costs, on the standard basis to 15 January 2019 and on an indemnity basis thereafter. Failing agreement, the plaintiff's costs are to be assessed by the Costs Court.

[1] Kheir v Secretary to the Department of Justice and Regulation [2018] VSC 222 (Kheir (No. 1)).

[2] In an affidavit dated 21 September 2018, Gabriel Kuek of Access Law deposed to making inquiries of Debra Coombs of the Victorian Government Solicitor's Office as follows: a telephone call on 13 August; an email on 22 August; a telephone call on 27 August; an email on 6 September; a telephone call on 13 September; two telephone calls and an email on 17 September; another email on 18 September; and a final letter on 19 September 2018.

[5] On 26 September 2018, Mr Kheir filed a summons in the earlier proceeding, seeking similar orders. However, that proceeding had been finally determined by T Forrest J's judgment and orders of 11 May 2018. On the return of the summons on 10 October 2018, Clayton JR ordered Mr Kheir to file an originating motion and summons by 11 October 2018.

[6] The delegate's decision is the subject of a separate judicial review proceeding, S ECI 2019 00481, commenced on 6 February 2019.

[7] This is a reference to the affidavit of Brendan Francis Money dated 25 October 2018 and filed in this proceeding.

[8] Submissions on behalf of the Defendant dated 29 January 2019.

[9] [2012] HCA 25; (2012) 249 CLR 398.

[11] Yasmin v Attorney-General for the Commonwealth [2015] FCAFC 145; (2015) 236 FCR 169 (Yasmin), [68].

[12] Relying on Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72, [11] (Gaudron, Gummow, Hayne and Callinan JJ). See also Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156, 164 (Gibbs CJ, Mason, Wilson and Dawson JJ) and Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, 359 (Mason CJ and Gaudron J).

[13] [2015] FCAFC 145; (2015) 236 FCR 169, in particular [68], [78]-[79], [114].

[15] Brownsville Nominees Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 409, 414; Animals' Angels EV v Secretary, Department of Agriculture [2014] FCA 398; (2014) 141 ALD 158, [31], [42], [69]-[72]; Yasmin, [89]-[119].

[16] Slaveski v Smith [2012] VSCA 25; (2012) 34 VR 206, [45]; Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [85].

[17] Carolan v R [2015] VSCA 167; (2015) 48 VR 87, [47].

[18] Civil Procedure Act 2010 (Vic), s 62.

[19] Since the proceeding was commenced, the Department has been renamed the Department of Justice and Community Safety.

[21] Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435 (Hazeldene), [23].

[23] See, for example, Melbourne Steamship Limited v Moorhead [1912] HCA 69; (1912) 15 CLR 333, 342 (Griffith CJ); R v Morgan [2008] VSCA 267; (2008) 22 VR 237, [157] (Nettle and Ashley JJA).

[24] Victorian Model Litigant Guidelines, revised 2011, published on the website of the Department of Justice and Community Safety, paragraphs 2(c), (e), (f), (g)(iii) and (iv), and (i).