Plaintiff v Defendant

1 The plaintiff, Paul Steven Haigh, is a prisoner at Barwon Prison serving a life sentence for multiple murders. The defendant, Brett Ryan, is the Governor and General Manager of Barwon Prison.

2 This proceeding was commenced by Mr Haigh on 20 April 2018 by the filing of an originating motion under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015. In his originating motion, Mr Haigh sought judicial review of a decision that had been made on 7 March 2018 by a prison officer, Mr L Doherty, who was the then Acting Operations Manager of Barwon Prison, and who in this instance was exercising powers delegated to him by Mr Ryan (as Governor/General Manager of Barwon Prison). The decision was to stop the sending of a letter written by Mr Haigh to an evangelical Christian organisation known as 'Tomorrow's World'. That organisation was the maker of a weekly television program of the same name.

3 As indicated in his affidavit of 3 April 2018 filed in support of the originating motion, Mr Haigh's contention, in essence, was that the decision of 7 March 2018 had been made pursuant to an alleged prison policy which, according to Mr Haigh, imposed a 'blanket ban' on prisoners communicating with the media, being a policy that was allegedly in conflict with prisoners' rights under s 47(1)(n) of the Corrections Act 1986 ('Corrections Act') and with prisoners' human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the 'Charter').

4 However, it turned out that, even before this proceeding was commenced, Mr Haigh had circumvented the decision of 7 March 2018 by causing a friend to send a copy of the letter to Tomorrow's World. Indeed by 24 August 2018 Mr Haigh had received back from Tomorrow's World, via his friend, a letter of reply dated 20 April 2018 and also several items of printed religious material. Mr Haigh revealed these matters in their full scope for the first time by an affidavit dated 28 August 2018 filed in this proceeding. However, Mr Haigh declined to discontinue the proceeding.

5 In those circumstances, in October 2018, Mr Ryan formally reversed the decision which had been made by Mr Doherty on 7 March 2018 and advised Mr Haigh in writing that Mr Haigh was at liberty to send the original letter directly to Tomorrow's World if he still wished to do so. However, Mr Haigh again declined to discontinue the proceeding. On 17 January 2019, the solicitors for Mr Ryan conceded in a letter to Mr Haigh that Mr Doherty's decision had been affected by jurisdictional error, on the basis that there was no evidence before the Court that Mr Doherty had given 'proper consideration' to Mr Haigh's Charter rights. Nevertheless, once again, Mr Haigh declined to withdraw this proceeding. Eventually, on 6 March 2019, Mr Haigh abandoned the claims he had originally made in this proceeding for orders in the nature of certiorari and mandamus, leaving only claims for declaratory relief.

6 The issue which remains is whether this Court, in the exercise of its undoubted discretion, should make a declaration of some kind in favour of Mr Haigh or should rather dismiss this proceeding as abstract, hypothetical or inutile or as otherwise inappropriate to be the subject of any declaration.

7 Mr Haigh is self-represented. In a written submission filed in this proceeding he has said:

I have no aptitude for the law, and I guess it is obvious that I have had considerable assistance to get this far with my documents without the help of a lawyer.[1]

Mr Haigh does not, in that submission or elsewhere, expressly identify the person or persons from whom this 'considerable assistance' has been obtained. However, it is evident that another prisoner serving a life sentence in Victoria, Dr Craig Minogue, has been, at least, a source of assistance to Mr Haigh in relation to this proceeding. In recent years Dr Minogue has brought several proceedings in this Court similar in nature or theme to the present proceeding.[2] Mr Haigh not only refers to the judgments in those proceedings,[3] but he also refers to certain otherwise unpublished material that was apparently filed in some of those proceedings. In addition, Mr Haigh exhibits copies of certain correspondence that had apparently been sent by or on behalf of Dr Minogue (as distinct from Mr Haigh) to third parties.[4] Further, Mr Haigh would seek to have me consider and determine in this proceeding, among other things, whether this Court has erred in certain respects in past proceedings brought by Dr Minogue.[5]

8 At Mr Haigh's request, and with the agreement of Mr Ryan, and pursuant to directions given by a Judicial Registrar, what remains of this proceeding is to be determined 'on the papers'. Accordingly, an agreed court book has been filed; and there has been no cross-examination on any of the affidavits that the parties have filed.

9 Part 5 of the Corrections Act deals with the powers of prison officers. Relevantly, s 19 gives the Governor of a prison power to direct the work of prison officers. Section 21 provides, among other things, that the Governor is responsible for the management, security and good order of the prison and the safe custody and welfare of the prisoners. Under s 22A, a Governor has all the powers of a prison officer. Under s 23, prison officers are given powers to control prisoners.

10 Part 6 of the Corrections Act deals further with the management and administration of prisons. Under s 24, a Governor may delegate powers to prison officers and others. Division 4 of Part 6 deals with the prisoners' rights. Relevantly, s 47(1)(m) gives prisoners the right, subject to certain exceptions, to send letters to, and receive letters from, the particular persons listed in s 47(1)(m) without those letters being opened or read by prison staff. Section 47(1)(n) deals with 'other' letters. It provides that every prisoner has 'subject to section 47D, the right to send and receive other letters uncensored by prison staff'. As at 7 March 2018, Section 47D provided:

47D When letters may be stopped and censored

(1) This section applies if the Governor reasonably believes that any letter to be sent by a prisoner to, or sent to a prisoner by, any person who is not listed in section 47(1)(m) -

(a) is a threat to prison security; or

(ab) in the case of a letter sent by a prisoner to another prisoner or a former prisoner, may be a threat to the good order, management or security of a prison or prisoner; or

(ac) in the case of a letter sent to a prisoner by another prisoner or a former prisoner, may be a threat to the good order, management or security of a prison or prisoner; or

(b) may be of a threatening or harassing nature; or

(c) may be being used to further an unlawful activity or purpose; or

(d) contains indecent, abusive, threatening or offensive written or pictorial matter, or written or pictorial matter that may be regarded by a victim as distressing or traumatic, or an indecent, obscene or offensive article or substance; or

(e) contravenes or would contravene section 47H.

(2) The Governor may -

(a) if the belief concerns the whole letter, stop the letter from being sent or received by the prisoner; or

(b) if the belief concerns only part of a letter, cause the relevant part of the letter to be censored.

11 The principally relevant provisions of the Charter are ss 7, 13, 14, 15, 38 and 39 which provide:

7 Human rights - what they are and when they may be limited

(1) This Part sets out the human rights that Parliament specifically seeks to protect and promote.

(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including -

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

(3) Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.

...

13 Privacy and reputation

A person has the right -

(a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and

(b) not to have his or her reputation unlawfully attacked.

14 Freedom of thought, conscience, religion and belief

(1) Every person has the right to freedom of thought, conscience, religion and belief, including -

(a) the freedom to have or to adopt a religion or belief of his or her choice; and

(b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.

(2) A person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

15 Freedom of expression

(1) Every person has the right to hold an opinion without interference.

(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether -

(a) orally; or

(b) in writing; or

(c) in print; or

(d) by way of art; or

(e) in another medium chosen by him or her.

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary -

(a) to respect the rights and reputation of other persons; or

(b) for the protection of national security, public order, public health or public morality.

...

38 Conduct of public authorities

(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

Example

Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.

(3) This section does not apply to an act or decision of a private nature.

(4) Subsection (1) does not require a public authority to act in a way, or make a decision, that has the effect of impeding or preventing a religious body (including itself in the case of a public authority that is a religious body) from acting in conformity with the religious doctrines, beliefs or principles in accordance with which the religious body operates.

(5) In this section religious body means -

(a) a body established for a religious purpose; or

(b) an entity that establishes, or directs, controls or administers, an educational or other charitable entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles.

39 Legal proceedings

(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

(2) This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right -

(a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and

(b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.

(3) A person is not entitled to be awarded any damages because of a breach of this Charter.

(4) Nothing in this section affects any right a person may have to damages apart from the operation of this section.

The terms of the declarations claimed by Mr Haigh

12 In Mr Haigh's originating motion, in addition to his now abandoned claims for an order in the nature of certiorari to quash the decision of 7 March 2018 and for an order in the nature of mandamus to compel the defendant to remake the decision according to law, Mr Haigh claimed declarations in the following terms:

1. A declaration by the Court that the s 47(1)(n) right in the Corrections Act 1986 to send and receive letters uncensored by prison staff, except for the provisions of s 47D:

(a) is a right which operates under law to the extent that it can only be limited in its operation by that which is demonstrably justified and reasonably necessary under law;

(b) is a right which must be properly construed through the operation of any relevant human rights in the Charter;

(c) is a right which enlivens a mandatory consideration of the s 13(a) human rights of privacy; and

(d) is a right which enlivens a mandatory consideration of s 15(2)(b)(c) human right of freedom of expression.

1. A declaration by the Court that the decision in the case of the plaintiff to limit the operation of the s 47(1)(n) Corrections Act right to send a letter:

(a) was so unreasonable that no decision-maker acting reasonably could have made such a decision;

(b) was not demonstrably justified and reasonably necessary under law;

(c) did not demonstrate a proper consideration of any relevant human rights from the Charter;

(d) did not demonstrate an application of the evaluative Castles test in relation to any relevant human rights from the Charter; and

(e) was made without jurisdiction under law.

1. A declaration by the Court that as a consequence of the decision by the defendant to limit the operation of the s 47(1)(n) right to send and receive letters uncensored by prison staff, the operation of the s 13(a) and s 15(2)(b)(c) human right of freedom of expression was also unlawfully limited.

13 Later, in written submissions dated 31 August 2018 and 11 November 2018 respectively, Mr Haigh claimed additional relief by way of a further set of declarations, in the following terms:

(a) A declaration by the Court that as a consequence of the decision of the defendant to limit the operation of s 47(1)(n) right to send and receive letters uncensored by prison staff, the operation of:

(i) the s 47(1)(i) Corrections Act right of freedom of religious practice was unlawfully limited; and

(ii) the s 14 Charter right of freedom of thought, conscience, religion and belief was unlawfully limited.

In claiming this additional relief, Mr Haigh referred to and relied on Rule 59.01 of the Supreme Court (General Civil Procedure) Rules 2015, which provides that the Court may, at any stage of a proceeding, on the application of any party, give such judgment or make such order as the case requires notwithstanding that the judgment or order had not been sought in the originating process or other document of the party in the proceeding.

14 Mr Ryan, in his final written submission dated 5 March 2019, apparently assumed that Mr Haigh continued to press for the three sets of declarations claimed in the originating motion, and for them only. He made no mention of Mr Haigh's additional claimed declarations relating to freedom of thought etc. under s 14 of the Charter. Mr Ryan submitted that there was no utility in the Court considering this case further. He also commented on the specific terms of the declarations claimed in the originating motion, submitting, among other things, that they were abstract, hypothetical and academic and would achieve nothing.

15 Mr Haigh filed a submission dated 6 March 2019 in reply to Mr Ryan's final written submission. It was the last submission filed in the proceeding. It was only in this submission in reply that Mr Haigh at last abandoned his claims for certiorari and mandamus, acknowledging that 'this is no longer in dispute between the parties'.[6] Mr Haigh did not expressly challenge Mr Ryan's apparent assumption that Mr Haigh continued to seek declarations in the terms set out in the originating motion, and them only.

16 On the other hand, Mr Haigh was somewhat vague about this in his final reply submission. He submitted, twice, that 'relevant declarations' should be made.[7] In fairness to Mr Haigh as a self-represented (albeit not inexperienced) litigant, I assume in his favour that he does not confine himself to a claim for declarations in the precise terms set out in his documents. I assume that he would wish to have the Court consider and accept the substance of his arguments and to make some kind of declaration in his favour on that basis.

17 As a superior court, this Court has inherent power to grant declaratory relief.[8] The Court also has statutory power to do so.[9] The general principles relating to the nature of the power are well known.[10] They were stated by Mason CJ, Dawson, Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission (1992) 175 CLR 565 ('Ainsworth')[11] as follows (omitting footnotes):

It is a discretionary power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties" .

18 More recently, in Minogue v Dougherty[12], John Dixon J said (referring to Ainsworth and certain other cases as indicated):

The Court may declare the legal position of the parties by stating the rights of the parties with respect to a particular matter with precision, and in a binding way.[13] However, declaratory relief is discretionary and granted cautiously.[14] Specifically, declaratory relief is not ordinarily granted where, as here, the underlying controversy is hypothetical, academic or abstract, the declaration will produce no foreseeable consequences for the parties, or the declaration would be futile or lack utility.[15]

19 This case is not a suitable vehicle for the making of any declarations, or even for the making of any legal pronouncements, of a kind that Mr Haigh may wish to see made.

20 The principal subject matter of the proceeding - the decision of Mr Doherty - is no longer in existence. It was set aside, and the opposite decision made, by Mr Ryan as advised in his letter to Mr Haigh dated 19 October 2018.[16] This was confirmed in a letter from the Victorian Government Solicitor's Office, on behalf of Mr Ryan, to Mr Haigh dated 25 October 2018.[17] As the Governor of Barwon Prison, Mr Ryan had full power to set aside, and reverse, the decision of his delegate, Mr Doherty, especially after it had been challenged,[18] and even more so when the decision was, as Mr Haigh himself contended and Mr Ryan in due course acknowledged, affected by jurisdictional error.[19] Accordingly, and quite correctly, Mr Haigh does not suggest that Mr Doherty's decision has any continuing legal existence.

21 It follows that, from a legal point of view, any declaration to the effect that Mr Doherty's decision was invalid would be purely academic. Generally speaking, Courts do not make declarations about academic questions.[20]

22 Thus it really matters not what may have been involved in the making of Mr Doherty's decision. As mentioned above, from the outset Mr Haigh has contended that Mr Doherty's decision was attributable to a 'blanket ban' on communications between prisoners and the media contained in 'prison policy'; and that this involved conflict with the Corrections Act and the Charter. However, the Court should not investigate or seek to determine these matters. As already mentioned, they are academic. Further, there is no solid basis in the factual material before the Court for it to reach conclusions of the kind urged by Mr Haigh.

23 Mr Ryan has certainly not conceded that there was or is any 'blanket ban' of the kind alleged. Mr Haigh referred in his original affidavit of 3 April 2018 to what he described as 'Section 5.0 headed 'Media Contact' of the prison policy titled Deputy Commissioner's Instruction No: 4.07 - Prisoner Communications'. Mr Haigh deposed that this provided:

'Prisoners are not permitted to initiate contact with media organisations under any circumstances'.

It is true that Mr Ryan has not expressly said that no such instruction existed or still exists. However, at no stage in the proceeding has Mr Haigh produced a copy of this alleged policy document. Mr Haigh did point to, and did exhibit as PSH-02, a pro-forma document headed 'H M Prison Barwon - Prisoner Communication (Mail)', which apparently referred to Mr Haigh's letter and in which a box was ticked opposite the printed words 'is a threat to prison security (Corrections Act 1986, s 47D(1)(a))'. In the same box, in handwriting, the expression 'MEDIA CONTACT' appeared. The document was dated 7 March 2018 and was signed by a prison officer, Ms Dougherty (who was acting as a mail officer) and by Mr Doherty, as manager. In his affidavit of 3 April 2018, Mr Haigh described this as 'the record and reasons of the decision'. However, even in combination, these things may not have amounted to a sufficient basis for the Court to examine and pronounce upon the question whether there was a 'blanket ban' policy.

24 Further, the affidavit of Mr Ryan in this case was not consistent with the existence in practice of the alleged 'blanket ban'. Mr Ryan swore in an affidavit of 1 August 2018 that, on 20 July 2018, at his first real opportunity, he read the letter carefully and formed his own view. He mentioned s 47D of the Corrections Act and said that he had considered Mr Haigh's rights under the Charter, but in the end had come to the conclusion that it was right that the letter had been stopped in all the circumstances of the case. He gave a quite detailed explanation, including by reference to Mr Haigh's personal history and circumstances.

25 In the last paragraph of the affidavit of 1 August 2018, Mr Ryan stated that, notwithstanding his own view of the matter, he had been informed by a Senior Manager at the Prison that Mr Haigh had retained a copy of the letter and had sent it to a friend. Mr Ryan said that this had been a mistake and that the letter to Mr Haigh's friend should have been stopped, having regard to the potential for the letter to end up with the media, which presented a threat to security as explained earlier in the affidavit.

26 Later, Mr Haigh submitted that the affidavit of 1 August 2018 was really more evidence of the 'blanket ban' on media contact. As to Mr Ryan's later decision to permit Mr Haigh to send out the letter, Mr Haigh claimed that this was an indication of arbitrary and capricious decision making.[21] However, by the time of the later decision, Mr Haigh had revealed the full extent of what he had achieved by circumventing the first decision, and Mr Ryan had had to take that into account. Factual issues like these are not suitable to be determined 'on the papers' in a case of an academic nature. Insofar as Mr Haigh is to be denied a full curial investigation of his allegations and legal contentions, he is, to a considerable extent, the author of his own misfortune.[22]

27 As this case progressed and as its academic nature became more apparent, Mr Haigh's contentions about prison policy tended to broaden. For example, he mentioned[23] the alleged 'pen pal' policy referred to in Minogue v Doherty.[24] He spoke more generally of 'the policy based abuse of power'.[25] However, like John Dixon J in Minogue v Doherty,[26] I reject as inappropriate Mr Haigh's invitation to me to range broadly over the administrative policies relating to mail within the corrections system.

28 In the end, Mr Haigh almost seemed to be contending that there could be no legitimate role for internal prison policies in relation to prisoner's rights in respect of mail or anything else. That kind of contention would be difficult to reconcile with well understood principles relating to the legitimate application of policy in administrative decision-making, wherein the desirability of policy for the sake of consistency and fairness is often mentioned.[27]

29 Some of Mr Haigh's submissions raise difficult and interesting questions about the interaction between the Corrections Act and the Charter. However, for the reasons already mentioned, this is manifestly not the right case in which to consider those legal questions. In that regard, I note that both the Attorney-General of the State of Victoria and the Victorian Equal Opportunity and Human Rights Commissioner declined to intervene in this proceeding.[28]

30 Neither party has suggested that the substantive outcome of this case would bear on any order as to costs. Indeed, neither party has made or foreshadowed a claim for costs. That further supports the view that no substantive relief should be considered.

Civil Procedure Act 2010

31 Mr Haigh suggested from time to time during this proceeding that orders should be made against Mr Ryan and/or his solicitors under the Civil Procedure Act 2010 (Vic). Mr Haigh did not specify what kind of orders might be appropriate in that regard. I gather that, in the end, Mr Haigh did not persist with these suggestions. In any event, they lacked any substance. They are rejected.

32 The proceeding will be dismissed. There will be no order as to costs.

[2] See, eg, Minogue v Lourey [2016] VSC 812 and Minogue v Dougherty [2017] VSC 724 (four related proceedings).

[3] See, eg, Mr Haigh's written submission dated 18 November 2018 at [49]-[50] (CB 113-114).

[4] See, eg, Mr Haigh's affidavit of 3 April 2018 at paragraphs 14 to 16 inclusive (CB 14); Mr Haigh's written submission dated 11 November 2018 at paras 20 to 26 and footnote 1 to 4 (CB 109-110), at para 43 (CB 112-113) and at para 55 (CB 114-115); See also Appendix A to that submission at pages 1-11 (CB 118-127): And see Mr Haigh's written submission of 6 March 2019 at para 16 (CB 152).

[5] See paragraph 22 of Mr Haigh's written submission dated 31 August 2018 and paragraphs 16 and 18 of Mr Haigh's written submission dated 11 November 2018.

[6] Mr Haigh's submission dated 6 March 2019, para 6 (CB 149).

[8] Ainsworth v Criminal Justice Commission (1992) 175 CLR 565, 581 ('Ainsworth').

[9] Supreme Court Act 1986 (Vic), s 36.

[10] Walker v New South Wales Bar Association [2016] FCA 799 (Besanko J) at [67].

[11] (1992) 175 CLR 565, 581-582.

[12] [2017] VSC 724 at [51].

[13] Warramunda Village Inc v Pryde [2001] FCA 61; (2001) 105 FCR 437, 440 [8]; Magman International Pty Ltd v Westpac Banking Corporation [1991] FCA 41; (1991) 32 FCR 1, 15.

[14] Rich v Van Groningen [1997] VSC 35; (1997) 95 A Crim R 272, 278-9.

[15] Ainsworth (n 8); [1992] HCA 10; (1992) 175 CLR 564, 581-2; Rich v Van Groningen [1997] VSC 35; (1997) 95 A Crim R 272, 278-9; Annacott Pty Ltd v Konann Pty Ltd [2012] VSC 389 [55].

[18] Corrections Act 1986 (Vic) ss 19, 21, 22A, 24; Interpretation of Legislation Act 1984 (Vic) ss 40, 42A(1)(a). The instrument of delegation states that the delegation 'does not limit my exercise of any of the powers or functions at any time'. And see Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 2) [1991] FCA 519; (1991) 103 ALR 661, 666-667 (Beaumont J), 671 (Hill and Heerey JJ).

[19] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597.

[20] See the paragraphs above under the heading 'General principles concerning declarations'.

[21] See, eg, Mr Haigh's written submission of 11 November 2018 [41] (CB 112).

[22] Cf Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625, 631 (Brennan, Deane and McHugh JJ).

[24] [2017] VSC 724.

[26] [2017] VSC 724 [63]. See also at [56].

[27] See, for example Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 AD 634; Plaintiff M64/2015 v Minister for Immigration [2015] HCA 50; (2015) 258 CLR 173, 193-194 [52]-[54], 198 [69].

[28] See paragraph C of 'Other Matters' in the authenticated order of Judicial Registrar Clayton of 27 February 2019 in this proceeding.