Plaintiff v Defendant

1 The plaintiff seeks judicial review of a number of decisions made by the defendant in relation to his telephone access to his partner, including for the purpose of his partner contacting the plaintiff's lawyers by email and posting tweets on his behalf.

2 The decisions in question were made in early 2019, and the proceeding was commenced by originating motion dated 27 March 2019 and filed on 2 April 2019. The proceeding was originally listed for hearing on 15 October 2019, but that date was vacated when the plaintiff sought to further amend his originating motion. The proposed amendments include matters for which the plaintiff requires, and seeks, an extension of time. These reasons concern his applications to amend and for an extension of time.

3 For the reasons I now give, I will grant an extension of time in respect of one of the proposed additional grievances, but not the other. I will not grant leave to amend in respect of some of the relief the plaintiff seeks in relation to that additional grievance and some of the proposed reformulated relief in respect of grievances already included in the proceeding, but will otherwise allow the amendments.

4 I apologise for the delay in delivery of these reasons.

5 In 1988 the plaintiff was convicted of the murder of a police officer and sentenced to life imprisonment with a non-parole period of 28 years. On 3 October 2016, after the expiration of his non-parole period, the plaintiff applied to the Adult Parole Board for parole. On 14 December 2016, a new provision in the Corrections Act 1986 (Vic) ('the Act') came into force, s 74AAA, which imposed limitations on the power of the Adult Parole Board to grant parole to a prisoner convicted of the murder of a police officer. The plaintiff challenged the constitutional validity of the section. On 20 June 2018, the High Court held that the section did not apply to the plaintiff, and declined to decide the constitutional issue.[1]

6 On 1 August 2018, the Act was again amended to insert a new s 74AB and to substitute ss 74AAA and 127A. The new s 74AB only applies to the plaintiff. It sets out limitations on the power of the Adult Parole Board to grant him parole. In short, the section provides that the Board is unable to grant the plaintiff parole unless satisfied that he is in imminent danger of dying or is seriously incapacitated and as a result no longer has the physical ability to harm any person; has demonstrated that he does not pose a risk to the community; and the Board is satisfied that because of these matters the grant of parole is justified.

7 On 23 October 2018, the plaintiff commenced proceedings in the High Court to challenge the constitutional validity of s 74AB, and, if it applied, s 74AAA. The proceeding was heard in the High Court on 18 June 2019. On 11 September 2019, the High Court ruled that s 74AB was not invalid.[2] As of that date the plaintiff's application for parole had not been determined.[3] The evidence in this proceeding does not reveal the current status of that application.

8 I draw what follows in relation to the facts giving rise to this proceeding from the series of affidavits of the plaintiff and the sole affidavit relied on by the defendant. The facts are broadly not disputed, although their consequences are. For the purpose of this application I will assume that the plaintiff will be able to establish his account.

9 The plaintiff deposes that until the events that form the subject of this proceeding he had had telephone access to his 'life partner', a woman who lives interstate, from December 2017 and that she had operated a Twitter account for him, in his name, from 1 May 2018. He deposes that various politicians have accessed that Twitter account. He further deposes that he has had email addresses operated on his behalf by intermediaries for over twenty years prior to March 2019, and for over ten years prior to March 2019 had a website in his name on which material was published (again presumably by others, possibly at his request) about him.[4]

Tweet of 11 February 2019 and subsequent investigation

10 On 11 February 2019, another prisoner at Barwon Prison, Mr Tony Mokbel, was attacked and seriously injured. On that same day, the plaintiff caused a tweet to be published on his Twitter account by his partner at his telephone request in these terms:

URGENT: The Prison Intelligence Unit and Victoria Police have had Tony Mokbel attacked in Barwon Prison today. This is a conspiracy to pervert the cause [sic] of justice.

11 On 19 February 2019, Dr Emma Cassar, Commissioner of Corrections Victoria, wrote to the plaintiff in relation to this tweet. She advised the plaintiff that she had asked the prison General Manager to investigate whether the content of that tweet and successive tweets or operating a Twitter account constituted a prison offence under regulation 50 of the Corrections Regulations 2009 (Vic) ('2009 Regulations'). Regulation 50 contained a list of the conduct that would constitute a prison offence. Dr Cassar requested that Barwon Prison suspend the plaintiff's telephone calls to a named person, who was the plaintiff's partner, pending that investigation. Pursuant to s 54A of the Act, the Secretary may withdraw a privilege pending investigation of a possible prison offence.

12 On 20 February 2019, the plaintiff became aware that his telephone access to his partner had been deactivated. That same day a Prison Supervisor investigated the matter as requested by Dr Cassar, including by interviewing the plaintiff, and concluded that no prison offence had occurred.[5] There was no prison offence created by regulation 50 of the 2009 Regulations specifically directed to a prisoner requesting another person on a permitted telephone call to use the internet on the prisoner's behalf. The list of prison offences pursuant to regulation 50 included the misuse of telephones to threaten the recipients or to speak to persons not approved by the Governor (reg 50(h)); the use of communication devices not approved by the Governor (reg 50(i)); and the misuse of computers or electronic equipment by the installation, use or possession of non-approved material (reg 50(j)) but did not specifically address the use of the internet or social media.

13 The plaintiff's telephone access to his partner was reinstated on 22 February 2019.

14 Thereafter, there were a number of steps taken in relation to telephone access by the plaintiff and the rules relating to telephone access by prisoners generally, in particular the use of telephone access to direct or request another person to use the internet on behalf of a prisoner.

February Privileges List and requests pursuant to that List

15 On 27 February 2019, the List of Prisoner Privileges was updated ('February Privileges List'). Prisoner Privileges are conferred pursuant to the regulations. At the time of the February Privileges List, the relevant regulation was regulation 42 of the 2009 Regulations. That regulation provided that the Commissioner must provide the Secretary annually with a proposed list of prisoner privileges, and that the Secretary could approve that list, or approve with changes, and could make changes from time to time. Pursuant to s 53(4)(c) of the Act, removal of a privilege is a possible punishment for a prison offence, and so the removal of privileges is part of the internal disciplinary system of a prison.

16 Paragraph 1(d) of the February Privileges List includes 'Access to telephone calls (subject to paragraph 2)' as a privilege. Paragraph 2 stated:

1. permit or authorise any access by a prisoner to a telephone call to use or access the Internet;
2. permit or authorise any access by a prisoner to a telephone call to commission, arrange, enable or allow another person to use or access the Internet on the prisoner's behalf;
3. prevent access by a prisoner to a telephone call to a lawyer representing the prisoner or to a lawyer from whom the prisoner is seeking legal advice;
4. prevent access by a prisoner to a telephone call (not made via the Internet) to the Victorian Ombudsman; the Victorian Inspectorate; the Health Complaints Commissioner; the Independent Broad-based Anti-corruption Commission (IBAC); the Commission for Children and Young People; the Human Rights Commissioner; the Mental Health Complaints Commissioner; the Information Commissioner; the Public Interest Monitor; the Victorian Equal Opportunity and Human Rights Commission; and the Victorian Legal Services Commissioner; or a person authorised to act on behalf of that person or body.

17 The previous privileges list is not in evidence, but it seems that it may not have contained the limitations on telephone calls for the purpose of accessing the internet that appeared in the February Privileges List.

18 On 28 February 2019, the plaintiff was given a copy of a summary of the February Privileges List, as it applied to using a telephone call to access the internet, in the form of a document headed 'Notice to Prisoners: Publication of material on the internet'.[6] The Notice to Prisoners allowed a prisoner to request a person by telephone to find information on the internet to pass onto the prisoner, and to seek the permission of the Commissioner or the prison General Manager to use a telephone call to arrange for publication of material on the internet. These exceptions did not expressly appear in the February Privileges List. The Notice to Prisoners stated that breach of these requirements would be seen as a breach of sub-regulation 50(u) of the 2009 Regulations. That sub-regulation provided that it was a prison offence to:

commit an act or omission that is contrary to the security or safety of the prison or the prisoners.

19 On 28 February 2019, after receiving the Notice to Prisoners, the plaintiff wrote to the Governor of Barwon Prison, Mr Brett Ryan, making two requests to telephone his partner for the purposes of access to the internet. According to the account of the contents of this letter in the plaintiff's affidavit,[7] the letter did not state expressly that the requests were made pursuant to the Notice to Prisoners, but the plaintiff deposes that this was the basis for the requests.[8]

20 The first request sought permission to access the internet via his partner to utilise email or voice mail message to his lawyers for the purpose of current and potential proceedings before various courts and tribunals. These matters included his then current proceeding in the High Court. The letter stated that it was difficult to communicate with his lawyers to comply with court timelines by telephone or post. The plaintiff gave examples of his use of telephone calls to his partner, prior to receipt of the Notice to Prisoners, to request his partner to access his lawyers via the internet.

21 The second request made by the plaintiff in his letter to Mr Ryan of 28 February 2019 was for permission to contact his partner by telephone to arrange for the publication of various tweets on his Twitter account in relation to the reduction of telephone access.

22 On 1 March 2019, the plaintiff wrote to the Governor seeking permission to write to his partner (as opposed to telephoning her) to ask her to publish various tweets for him. He enclosed a copy of the letter he proposed sending to his partner, which contained the tweets.[9]

23 On 8 March 2019, the plaintiff received an acknowledgement dated 8 March 2019 of letters received by Mr Ryan on 1 and 7 March 2019 which the letter described as relating to 'requests for access to the internet and the ability to publish material on social media, the sending and receiving of letters uncensored and phone access with your partner'. The plaintiff took this to be an acknowledgement of receipt of his letters of 28 February and 1 March 2019. Mr Ryan's letter stated that legal advice was being sought.[10] The plaintiff did not receive substantive responses to the requests made in the letters for some time. I will detail those responses shortly.

Removal of telephone access to the plaintiff's partner

24 On 1 March 2019, the two telephone numbers of the plaintiff's partner were removed from the list of telephone numbers the plaintiff could call without further permission, at the direction of Deputy Commissioner Wise. Deputy Commissioner Wise deposes that he made this decision because he was concerned that the post about Tony Mokbel was inflammatory and that 'something similarly inflammatory might happen again if we did not stop instantaneous contact via telephone'.[11]

25 The plaintiff was unable to contact his partner by telephone without seeking further permission until the numbers were restored on 10 April 2019. In the period 1 March 2019 to 10 April 2019 he was permitted a number of welfare calls to his partner. The plaintiff completed application forms for access to his partner's telephone numbers to be restored on at least the following occasions - 1 March 2019, 4 March 2019, 14 March 2019 and 24 March 2019 - and made numerous other requests in that period in person or by letter (including a second letter dated 1 March 2019) to various prison officers or officials for restoration of access. One of his written application forms was returned with a stamp indicating access was prohibited.[12]

26 The plaintiff's solicitors wrote to the Governor on 19 March 2019 seeking the restoration of access on the basis that the investigation had concluded that the plaintiff had not committed a prison offence; there were no outstanding allegations that he had committed any such offence; and no other grounds for removal of telephone privileges. Mr Wise replied by letter dated 26 March 2019, which also acknowledged receipt of the plaintiff's letters to the Governor of 28 February 2019 and 1 March 2019. He stated that the removal of the two numbers was 'under section 21 of the Corrections Act 1966 as a preventive [sic] measure protecting the good order and security of the prison'.[13]

27 The plaintiff's partner wrote to the Governor of Barwon Prison, Mr Ryan, by letter dated 24 March 2019 offering to enter into an undertaking not to use the internet on the plaintiff's behalf so that telephone access could be restored.[14] The Commissioner decided to allow telephone access on the basis of an undertaking, and that decision was conveyed to the plaintiff's partner by letter dated 3 April 2019 from Mr Ryan. The partner signed the enclosed undertaking on 9 April 2019, returning it by fax to Barwon Prison on that day. The partner's two telephone numbers were restored to the plaintiff's telephone list on 10 April 2019 and he was informed of that on 11 April 2019.

28 In the period before restoration of telephone access, the plaintiff alleges that his partner was threatened with violence as a result of a news report about the withdrawal of his telephone privileges in which report the location of his partner was identified.

29 The plaintiff commenced this proceeding by filing an originating motion, his affidavits of 10 March 2019, 20 March 2019 and 27 March 2019, a Notice of Constitutional Matter, a Charter notice[15] and summons seeking directions. They were all accepted for filing on 2 April 2019. The defendant filed a notice of appearance on 10 April 2019. The Victorian Government Solicitors' Office advised the Court by letter dated 10 July 2019 that the Victorian Attorney General did not intervene in respect of either the Notice of Constitutional Matter or the Charter notice.

30 On 16 April 2019, the plaintiff filed a subsequent affidavit sworn 11 April 2019 detailing further correspondence with prison authorities and the restoration of telephone access to his partner.

31 Pursuant to directions made 17 April 2019, the plaintiff was permitted to file an amended originating motion dated 17 April 2019. The amended originating motion was filed on 24 April 2019.

32 On 11 April 2019, the defendant issued a new list of prisoner privileges ('April Privileges List'). The document does not refer to the February Privileges List. It states that it revokes the list of prisoner privileges dated 1 November 2018. It lists access to telephone calls (paragraph 2(d)) as a privilege is subject to paragraph 3. Paragraph 3 provides as follows:

1. permit or authorise any access by a prisoner to a telephone call to use or access the Internet;
2. permit or authorise a prisoner to commission, arrange, enable or allow another person to use or access the Internet on the prisoner's behalf, unless the person using or accessing the Internet on the prisoner's behalf is -

(i) a lawyer representing the prisoner, or from whom the prisoner is seeking legal advice, for the purposes of a legal proceeding; or

(ii) doing so for a purpose approved by the Governor or the Commissioner having regard to -

(A) the management, security or good order of a prison; or

(B) the safe custody or welfare of any prisoner; or

(C) the safety or welfare of any person (including the impact of the communication on a victim which may be distressing, traumatic or offensive);

1. prevent access by a prisoner to a telephone call to a lawyer representing the prisoner or to a lawyer from whom the prisoner is seeking legal advice;

1. prevent access by a prisoner to a telephone call (not made via the Internet) to the Victorian Ombudsman; the Victorian Inspectorate; the Health Services Commissioner; the Independent Broad-based Anti-corruption Commission (IBAC); the Commission for Children and Young Person [sic]; the Human Rights Commissioner; the Mental Health Complaints Commissioner; the Information Commissioner; the Public Interest Monitor; the Victorian Equal Opportunity and Human Rights Commission; and the Victorian Legal Services Commissioner; or a person authorised to act on behalf of that person or body.

33 Unlike the February Privileges List, the April Privileges List thus expressly confers on the Governor or Commissioner the discretion to allow a prisoner to access the internet through a third person who is not a lawyer.

Responses to the plaintiff's requests made pursuant to the February Privileges List

34 By letter dated 11 April 2019, Mr Ryan, General Manager of Barwon Prison, responded (amongst other matters) to the first request made by the plaintiff in his letter of 28 February (permission to use the telephone to ask his partner to email his lawyers) and the requests made in the plaintiff's letters of 1 and 27 March and 1 April (request for permission to ask his partner by letter to access the internet on his behalf).[16] Mr Ryan refused the request that the plaintiff be able to telephone his partner for her to use the internet to contact his lawyers, on the basis that the plaintiff had adequate other means to communicate with his lawyer by way of telephone call to the lawyer, post or fax to and from the prison. In relation to making such a request by letter, Mr Ryan neither acceded to, nor refused the request, but referred the plaintiff to s 47D of the Act, which enables letters and parcels to be stopped or censored in certain circumstances.

35 The second request made by the plaintiff in his letter of 28 February 2019 was that he be permitted to telephone his partner and provide her with various tweets to be published on his Twitter account. Mr Ryan foreshadowed a response to this request in the introduction to his letter of 11 April 2019, and then provided that response by a letter dated 15 April 2019.[17] The letter of 15 April 2019 neither granted nor refused the request. It noted that the request was made pursuant to the February Privileges List, which had now been replaced by the April Privileges List, a copy of which was enclosed.

Requests made pursuant to the April Privileges List

36 After receipt of that letter, the plaintiff wrote to Mr Ryan on 18 April 2019 and 24 April 2019 seeking permission pursuant to the exception contained in paragraph 3(b)(ii) of the April Privileges List for access to the internet via his partner by telephone. The identified purposes were to engage in political discourse by way of the publication of tweets on his Twitter account (letter of 18 April 2019) and contact his lawyers (letter of 24 April 2019). The plaintiff also requested by letter to his partner dated 27 April 2019 that she post certain tweets on his Twitter account. The plaintiff deposed to this correspondence in his affidavit sworn 28 April 2019.[18] In a follow-up letter dated 6 May 2019, the plaintiff sought responses to those letters, and made his first reference (on the evidence in this application) to the new regulations, noting that he had not as yet seen them.[19]

37 The plaintiff exhibits two letters from Mr Ryan, each dated 10 May 2019. The letter of 10 May 2019, first received by the plaintiff on 11 May 2019,[20] states that it responds to the plaintiff's letter of 24 April, which it describes as a request for approval to tweet. It states that 'a decision is pending', which decision will also relate to the plaintiff's letter to his partner of 27 April 2019 which contained tweets he asked her to post. The letter states that by sending that letter the plaintiff had not 'followed process' by not seeking approval first.

38 The plaintiff stated in his reply of 12 May 2019 that both assertions were incorrect. He stated that his letter of 24 April 2019, the contents of which he deposed to in his affidavit of 28 April 2019, sought permission to contact his lawyers through the internet via telephone contact to his partner. It did not relate to publication of tweets. Assuming the plaintiff's account of his letter of the 24 April 2019 to be correct, he is correct in his assertion that Mr Ryan's first received letter of 10 May 2019 does not respond to it. The evidence does not reveal any reply by Mr Ryan that responds in fact to the plaintiff's letter of 24 April 2019 seeking permission pursuant to the April Privileges List to telephone his partner for the purpose of her contacting his lawyers via the internet.

39 In relation to Mr Ryan's assertion that he should have 'followed process' by seeking approval before sending his letter of 27 April 2019 to his partner, the plaintiff stated in his reply of 12 May 2019 that as far as he was aware neither as at 27 April 2019 nor as at 12 May 2019 was there any requirement for a prisoner to seek approval to send a letter with tweets to be published. As will be seen, the new regulations which commenced on 28 April 2019 do in fact apply to accessing the internet via letter.

40 The plaintiff received the second letter dated 10 May 2019 from Mr Ryan on 14 May 2019. That second letter of 10 May 2019 states that it responds to the plaintiff's letter of 16 April 2019, and that that 'complaint' had been addressed in Mr Ryan's letter of 11 April 2019.[21] As noted earlier, part of Mr Ryan's letter of 11 April 2019 had addressed the plaintiff's enquiry as to the relationship between the control over access to the internet via telephone imposed by the February Privileges List and the sending of letters by stating that '[i]f you send a letter to anyone it will be treated by the prison in accordance with the provisions in the Act'. The plaintiff's letter of 16 April 2019 was in fact in response to that part of the letter of 11 April 2019, and the plaintiff states that it was an attempt to seek clarity in relation to the sending of letters containing tweets.[22]

Corrections Regulations 2019

41 New regulations under the Act were made on 16 April 2019, which came into force on 28 April 2019 ('2019 Regulations'). Regulation 65 provides for those matters which constitute a prison offence. Relevantly, the regulation contains several new offences, contained within sub-regulation 65(1)(m), (o) and (p) as follows:

65 Prison offences

(1) A prisoner must not -

...

(m) communicate, or cause to be communicated (including by radio, telephone, the Internet or any other means) any matter that the Governor is reasonably satisfied is contrary to -

(i) the management, good order or security of a prison; or

(ii) the safe custody or welfare of any prisoner; or

(iii) the safety or welfare of any person (including the impact of the communication on a victim which may be distressing, traumatic or offensive); or

...

(o) use or access the Internet; or

(p) commission, arrange, enable or allow another person to use or access the Internet on the prisoner's behalf, unless use or access to the Internet is -

(i) by a lawyer representing the prisoner, or from whom the prisoner is seeking legal advice, for the purposes of a legal proceeding; or

(ii) by any person or body referred to in regulation 20 or section 47(1)(m) of the Act (other than a lawyer referred to in section 47(1)(m)(iii) of the Act) in the course of the person or body's official duties; or

(iii) for a purpose approved by the Governor or the Commissioner in accordance with subregulation (2);

...

(2) For the purposes of subregulation (1)(p)(iii), the Governor or the Commissioner may approve a person to use or access the Internet having regard to -

(a) the management, good order or security of a prison; or

(b) the safe custody or welfare of any prisoner; or

(c) the safety or welfare of any person (including the impact of the communication on a victim which may be distressing, traumatic or offensive).

42 After the plaintiff obtained a copy of the new regulations, he wrote again to Mr Ryan, by letter dated 9 May 2019 asking the following question:

Does r 65(1)(p) or (o) operate to limit the s 47(1)(n) right from the Corrections Act for prisoners to send and receive uncensored letters, in relation to their content, in a way that is beyond that which is provided for in s 47D?[23]

43 The plaintiff also sought in the letter of 9 May 2019 advice from Mr Ryan as to whether his letter of 27 April 2019 to his partner, containing tweets he asked her to upload, would 'actuate any negative consequences' for himself or his partner.[24]

44 The evidence does not disclose if there were replies to the plaintiff's letters of 6, 9 or 12 May 2019.

45 The 2019 Regulations were further amended as of 12 June 2019, without change to the provisions in question here. The 2019 Regulations do not purport to have retrospective effect. As at the date of the hearing, the plaintiff had not been charged with a prison offence constituted by breach of sub-regulations 65(1)(o) or (p). The evidence does not disclose any application made by him pursuant to the 2019 Regulations for permission to access the internet via telephone or letter to his partner.

46 Thereafter the plaintiff sought to further amend his originating motion, initially in the form of a document dated 14 May 2019, 46 pages in length, sent to the defendant under cover of a letter dated 15 May 2019, and apparently received at least by 3 June 2019 when the defendant contacted the Court to request a relisting. The proceeding was relisted for directions on 24 July 2019. I was informed at the hearing before me that prior to that relisted directions hearing the plaintiff had served on the defendant a further iteration of his proposed further amended originating motion, dated 14 July 2019, which was 62 pages long, and was received by the defendant on 17 July 2019. That document was not before me on this application.

47 At the relisted directions hearing, the trial date was vacated, and the plaintiff ordered to file and serve his proposed further amended originating motion and any further affidavit by 15 August 2019. He subsequently filed the Proposed Further Amended Originating Motion dated 15 August 2019 ('PFAOM') which is the subject of this application, and an affidavit in support of the application to extend time, sworn 15 August 2019 ('15 August affidavit'). I heard the plaintiff's application to further amend on 10 October 2019. In addition to the documents previously filed by the parties I requested, and the defendant supplied, the plaintiff's proposed further amended originating motion dated 14 May 2019.

48 In his original originating motion, the plaintiff sought relief in respect of two grievances, which for the purpose of these reasons I will assume, without determination on the merits, are decisions that are reviewable pursuant to order 56 of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules'). Those two grievances were the creation of the February Privileges List on 27 February 2019 (issued by the Secretary, the current defendant) and the withdrawal of the plaintiff's telephone access to his partner on 1 March 2019 (a decision of Deputy Commissioner Wise).

49 As noted earlier, the plaintiff was permitted to amend that originating motion. In his Amended Originating Motion dated 17 April 2019 (subsequently filed on 24 April 2019) ('AOM') the plaintiff added a further two grievances in respect of which he sought review. These were the creation of the April Privileges List on 11 April 2019 (issued by the Secretary), and the offer expressed in Mr Ryan's letter of 3 April 2019 to the plaintiff's partner of an undertaking not to access the internet on the plaintiff's behalf, in return for reinstatement of his telephone access to his partner (a decision of the Commissioner, Dr Cassar).

50 The PFAOM differs from the AOM in four respects. First, it seeks to add an additional two grievances in respect of which relief is claimed. The first is the refusal by Mr Ryan to permit the plaintiff to access his lawyers via the internet through the means of telephone to his partner, conveyed in Mr Ryan's letter of 11 April 2019. The second is the commencement of sub-regulations 65(1)(o) and (p) on 28 April 2019.

51 The first of these additional grievances, the refusal of Mr Ryan to permit internet access to the plaintiff's lawyers, was not included in the proposed further amended originating motion dated 14 May 2019. The second, relating to the regulations, was included in the 14 May 2019 iteration.

52 Secondly and thirdly, as well as the addition of these two new grievances, the PFAOM also seeks to add both new grounds and new relief in respect of the matters previously included. These proposed changes are not indicated by marking up. The PFAOM is a substantially new, and much longer, formulation of the plaintiff's existing grievances and the proposed two new grievances.

53 Fourthly, the PFAOM seeks to add two further defendants in addition to the Secretary, the existing defendant. The proposed additional defendants are Deputy Commissioner Wise and Mr Ryan, in his capacity of Governor of Barwon Prison. There is no objection to the joinder of Mr Wise, who confirms in his affidavit sworn 6 June 2019 that it was he who made the decision on 1 March 2019 to remove the two telephone numbers of the plaintiff's partner from the plaintiff's list of permitted telephone numbers.[25] Mr Ryan would be a proper defendant if the Court extends time to allow the plaintiff's grievance in relation to the decision in Mr Ryan's letter of 11 April 2019 not to allow him to telephone his partner and ask her to contact his lawyers by the internet.

54 The evidence of Mr Wise is that the decision to offer and accept an undertaking from the plaintiff's partner, conveyed in Mr Ryan's letter of 3 April 2019, was made by the Commissioner. The PFAOM does not seek the joinder of the Commissioner, and counsel for the defendant informs the Court that no point will be taken in relation to the correct identity of defendants, but strictly she would be the proper defendant in relation to that grievance. The plaintiff is content to add the Commissioner as a defendant if the Court so orders.[26]

55 The defendant opposes the proposed changes identified as one to three above, i.e. the addition of two further grievances in respect of which relief is sought; and the reformulation of the grounds and relief sought, on two broad bases. First, that in respect of the two proposed new grievances the plaintiff is out of time and has not shown the necessary special circumstances to extend time. Further, in relation to the challenge to the regulations, the defendant submits that the plaintiff is seeking an advisory opinion from the Court, without the framework of a set of facts, and so the Court will not grant that relief.

56 The second broad basis relates to the new formulations of relief sought. The defendant contends that the new formulations of relief sought have no real prospects of success. The defendant did not take specific objection to new or reformulated grounds in respect of existing grievances. I will elaborate the defendant's submissions further later in these reasons.

57 At the hearing, the plaintiff sought and was granted leave to delete two sub-paragraphs of the relief he now wishes to seek, both relating to Mr Ryan's decision of 11 April 2019. He deletes sub-paragraphs (b) of each of paragraphs 40 and 41, on pages 15 and 16 respectively of the PFAOM. Otherwise, the plaintiff presses his application. In summary, in relation to the extension of time necessary to add his grievance in relation to Mr Ryan's decision conveyed in his letter of 11 April 2019, the plaintiff says that the defendant has been on notice of it in substance by inclusion of it in his earlier affidavits of 10 March 2019 and 28 April 2019; that it was an oversight not to include it in the AOM, arising from his very difficult personal circumstances; and that it is a concrete example of the hardship occasioned to him by the February and April Privileges Lists (already included in the AOM) and by the 2019 Regulations (which he seeks to include).

58 The plaintiff submits that it would be artificial to exclude his proposed challenge to 2019 Regulations on the basis that it seeks an advisory opinion, apparently for two reasons. First, because the relevant regulations use the same words as those used in the February and April Privileges Lists, in Mr Wise's decision and in the undertaking required of his partner. Secondly, because he could issue a further proceeding if he does something pursuant to the regulations and wishes to challenge a decision made in respect of that action.[27] He also disputes that an extension of time is necessary to seek a declaration of inconsistency with the Charter.

59 The plaintiff submits that the expansion and reformulation of the relief he seeks is to make his line of argument plain, and that the Court will not be constrained by his framing of relief in any event. I will elaborate the plaintiff's submissions in more detail later in these reasons as required.

60 The plaintiff seeks judicial review arising from his grievances pursuant to O 56 of the Rules. Judicial review pursuant to O 56 is a procedure by which the decisions of certain public officials, tribunals and lower courts may be examined by this Court. Unlike appeal on the merits, the purpose of judicial review is not to determine if the decision in question is the right one on the facts. Judicial review is directed to examining the legality of the decision, not whether a different decision should have been made on the facts of the case. It follows that judicial review is generally concerned with questions relating to the process by which a decision has been made, or not made, and the ambit of the authority pursuant to which the decision maker was permitted or required to make the decision.

61 Even where this Court is satisfied on judicial review that the decision is affected by reviewable error, the Court has a discretion as to whether or not to grant relief. If relief is granted, the Court does not substitute a different decision for the decision affected by error. Common forms of relief for reviewable error are certiorari, mandamus or declaration. Those forms of relief are directed at requiring the decision maker to make a decision according to law, not to state what the content of the decision so made should be.

62 If relief by way of certiorari is granted, the Court quashes the impugned decision and requires the decision maker to reconsider the matter according to law as set out in the reasons for the grant of relief. The availability of certiorari is limited to distinct grounds, the most important of which are jurisdictional error, failure to observe an applicable requirement of procedural fairness, fraud or error of law on the face of the 'record'.[28] In Victoria, pursuant to s 10 of the Administrative Law Act 1978 (Vic), the reasons for a decision form part of the 'record'.

63 Mandamus is a remedy that requires a public official to exercise a public duty which remains unperformed. It follows that the official in question must be under a relevant duty. In Plaintiff M 61/2010E v Commonwealth of Australia[29] the High Court held that recommendations made to the Minister of Immigration in relation to the claims of certain claimants for refugee status were tainted by error. Nevertheless, the Court declined to order the Minister to make the decision (whether or not to grant the claimants refugee status) according to law because the relevant provisions of the Migration Act 1958 (Cth) explicitly stated that he did not have a duty to consider whether or not to do so. The Court held:

That the Minister decided to consider exercising the powers [in those provisions to grant the relevant visa] and, for that purpose, directed the making of Refugee Status Assessments and Independent Merits Reviews does not entail that, if the process of inquiry miscarried, the Minister can be compelled again to consider exercising the power.[30]

64 The Court in that case also held that given that mandamus did not lie, there was no utility in quashing the recommendations by way of certiorari. However, the Court did grant declarations to the effect that the processes followed to arrive at the recommendations not to grant refugee visas were flawed. By way of reasons for this decision, the Court noted the importance of the issues before them in the context of the international obligations of the Commonwealth and the public interest in the correct exercise of those obligations. They also specifically excluded common reasons why a declaration would not be granted in the following passage (citations omitted):

In the circumstances of this litigation it cannot be said that a declaratory order by the Court will produce no foreseeable consequences for the parties. Declaratory relief is directed here to determining a legal controversy; it is not directed to answering some abstract or hypothetical question. Each plaintiff has a "real interest" in raising the questions to which the declaration would go.[31]

65 As observed by the High Court in the second sentence of the extract above, declarations may be granted to state the rights and obligations of parties, but only in the context of a particular set of facts affecting the plaintiff. This is because courts hear and determine controversies - they do not make pronouncements in the abstract of a particular controversy between parties. Doing so would be to issue an advisory opinion, which is not the judicial function.[32]

66 The principle that a declaration is made to determine a controversy on particular facts is illustrated by two cases which the defendant cited. In Rural Press Ltd v Australian Competition and Consumer Commission[33] the High Court generally upheld the decision of a trial judge to make declarations that the appellant had breached certain provisions of the Trade Practices Act 1975 (Cth), but held that the declarations made, that merely declared that breach, were a 'bad precedent', and that they should have given content to the breaches found by setting out at least the 'gist of the findings' giving rise to the declaration of breach.[34] The High Court substituted for the general declarations of breach made by the trial judge declarations that set out in short form the manner by which the breach was constituted.

67 The defendant also relies on observations by the Full Federal Court in Warramunda Village Inc v Pryde[35] ('Warramunda Village') to criticise declarations that the plaintiff seeks which set out the conclusions of fact or law he seeks that the Court reach in order to issue final relief. Those observations, with the emphasis given to them by the defendant, are as follows:

The remedy of a declaration of right is ordinarily granted as final relief in a proceeding. It is intended to state the rights of the parties with respect to a particular matter with precision, and in a binding way. The remedy of a declaration is not an appropriate way of recording in a summary form, conclusions reached by the Court in reasons for judgment. This is even more strongly the case when the conclusion is not one from which any right or liability necessarily flows.[36]

68 At first glance it could appear contradictory to on the one hand require a declaration to refer with sufficient precision to the facts constituting the matter declared and on the other hand to exclude a purported declaration that summarises the conclusions leading to the declaration. On analysis, however, the decision in Warramunda Village is confined to its own facts. In that case, the respondents had sought the imposition of penalties on the appellant for breach of certain conditions of an employment award. Thus the final relief sought was the imposition of a penalty, not a declaration. The trial judge first considered and gave reasons in respect of certain issues relating to the applicability of the award. He purported to make declarations in general terms that the appellant had breached the award, without any specificity as to the facts constituting the breaches, and adjourned the proceeding for directions as to a penalty hearing. Thus the purported declarations did not determine the rights of the parties in respect of any specific breach, and did not constitute final relief. On appeal to the Full Federal Court the question initially arose as to whether the declarations were an interlocutory order in respect of which leave was required to appeal. The Full Court went further and held that declarations did not even constitute an order at all from which an appeal, even by leave, could lie.

69 The requirement that declarations be made only to declare the rights and obligations of the parties in the context of a particular set of facts is general, i.e. it is not limited to judicial review. In the context of judicial review, a court does not make declarations in relation to how a power should be exercised in the absence of a specific exercise of, or reviewable failure to exercise, that power. In other words, the requirement that the declaration arises from a particular set of facts will ordinarily require that it relates to a decision on a question that has been made, or not made, by a public official with an obligation to consider the question. In the absence of a relevant decision, or failure to make a decision, a declaration would be merely advisory.

70 The time within which a proceeding pursuant to O 56 may be brought, and the test for extension of that time, are set out in r 56.02 of the Rules which provides as follows:

56.02 Time for commencement of proceeding

(1) A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.

(2) Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.

(3) The Court shall not extend the time fixed by paragraph (1) except in special circumstances.

71 The time period of 60 days commences from the day after the date 'when grounds for the grant of the relief or remedy claimed first arose'. Mr Ryan conveyed his decision to refuse the plaintiff's request made 28 February 2019 to telephone his partner with a request that she contact his lawyers by internet by letter dated 11 April 2019. The plaintiff deposes that he received that letter on 15 April 2019.[37] Assuming that the decision is reviewable, and the date on which the grounds for review arose to be the date of receipt of the letter, 60 days thereafter expired on 14 June 2019.

72 If the promulgation of the 2019 Regulations is reviewable at the instance of the plaintiff in this proceeding, then the time period expired 60 days after 28 April 2019 (the date on which they came into force), i.e. on 27 June 2019.

73 The time period for the commencement of an action for judicial review may be extended, but r 56.02(3) prohibits the Court from extending the time for review except in 'special circumstances'. There is no precise or exhaustive definition of may what constitute 'special circumstances' for the purpose of this rule. In Mann v Medical Practitioners Board of Victoria ('Mann') the Court of Appeal held that the requirement that the plaintiff show 'special circumstances' requires that he make out circumstances that are not 'general in character',[38] but something exceeding 'that which is usual or common'.[39]

74 It is clear from the wording of the sub-rule (and the authorities) that the special circumstances are not confined to the failure to commence the proceeding within the prescribed period of 60 days.[40] In a passage cited by the defendant, Associate Justice Derham in Lazarevic v Victoria Police helpfully summarised the factors that have been considered relevant in the assessment of special circumstances as follows (citations omitted) :

The authorities establish that:

(a) The rule requires the Court to be objectively satisfied that special circumstances exist;

(b) The existence of special circumstances is to be determined by reference to all the circumstances of a case;

(c) The factors relevant to the exercise of the discretion under Rule 56.03(2) include, but are not limited to:

(i) the period of the delay;

(ii) the reason for the delay;

(iii) whether the plaintiff has an arguable case;

(iv) the justice to both parties, including the prejudice to the parties; and

(v) the public interest in the finality of litigation.[41]

75 The defendant accepts that 'special circumstances' are not limited to the failure to bring the claim within the prescribed period, in other words the reasons for the delay (unlike, for example the text for extension of time for an appeal on a question of law from the Magistrates' Court to the Supreme Court pursuant to s 109 of the Magistrates' Court Act 1989 (Vic). Nevertheless, the defendant submits that this failure is the 'focus' of enquiry as to extension of time.[42] If that submission is to the effect that the reasons for the failure necessarily carry greater weight than other factors, I do not consider it to be correct. The enquiry is of course only necessary when there has been that failure, but the authorities do not give any greater weight to the reasons for the failure than other relevant circumstances.

76 Indeed there is authority implicitly to the contrary. In Glass v Chief Examiner[43] ('Glass') a decision of Garde J dismissing an appeal from a refusal by me of an extension of time, one of the grounds of appeal was that I had regarded a satisfactory explanation for the failure to bring a claim for judicial review within time as a precondition or threshold for the grant of an extension. The trial judge hearing the appeal rejected that ground, but in doing so it was implicit in his decision that it would be an error to regard a satisfactory explanation in that way.[44]

77 The decision of the trial judge in Glass was further appealed to the Court of Appeal, Glass (a pseudonym) v Chief Examiner.[45] The trial judge's implicit determination that a satisfactory explanation was not a threshold requirement for extension of time was not appealed, or cross appealed. On the appeal to the Court of Appeal, the sole ground of appeal related to the degree to which the merits of the proposed case should be assessed in determining an application for extension of time. Thus the decision of the Court of Appeal now sets out the necessary approach to evaluation of the merits of the proposed claim in an application for extension of time.

78 Both before me, and before Garde J, the application had been conducted on the basis that, while it is necessary to consider the merits of the proposed case in considering an application for extension of time, it is sufficient to consider whether the proposed case is arguable, in the sense of having a real, as opposed to a fanciful prospect of success. In other words, that it was not necessary to assess the likely degree of success. The Court of Appeal held that this approach was incorrect. The Court held as follows, citing Mann as the authority for the first sentence:

The circumstances of each case dictate the factors to be taken into account in determining whether or not the applicant for an extension of time has established that there are special circumstances justifying the extension. One of the factors will ordinarily be the merits of the case. If the case is unmeritorious, then it would be futile to grant an extension. The stronger the case, the more weight that might be accorded to that factor. Whilst it is not necessary nor desirable to examine the merits in too much detail, the strength of the case should be sufficiently apparent from the review undertaken to enable the judge or associate judge to give the appropriate weight to it. In some situations all that might be said is that the case is arguable. In other cases, it may be more than arguable. Even if the case is a strong one, other factors may outweigh the merits such that overall it cannot be said that there are special circumstances justifying the extension.

...

As we have said, consideration of the strength of the merits of the substantive case for judicial review may well bear upon how much weight should be given to it as a factor. Consequently, in our opinion it may not always be sufficient to consider whether the case is merely arguable or on the other hand, has no real prospect of success. We would add that the fact that an associate judge may not have power to hear and determine the ultimate application for judicial review (without an order made by a judge referring the substantive trial to an associate judge) does not mean that associate judges cannot and should not make an assessment of the prospects of success. In doing so, they are not determining the ultimate matter. Rather, they are simply making an assessment of the prospects of success for the purposes of the application before them for an extension of time. Whilst some care may need to be taken in analysing and describing the strength of the merits, it is nevertheless a task that more often than not will be necessary and should not be shied away from by judges and associate judges.[46]

79 Although the courts have identified factors that are ordinarily relevant to the determination as to whether or not special circumstances exist, those identified factors are not exhaustive, and nor does the fact that any one of them may, or may not, constitute in isolation a circumstance beyond the usual or common necessarily lead to a conclusion that special circumstances exist by reason of which the discretion to extend time is enlivened. In Kocak v Wingfoot Australia Partners Pty Ltd[47] Cavanough J observed:

All relevant factors (positive and negative) need to be considered. It is conceivable that a single outstanding feature of a case may contribute enough to make the circumstances as a whole, on balance, special. However, the mere unusualness of a particular feature would not be relevant at all unless the feature tendered to support an extension. On the other hand, it is not essential that there be some particular circumstance that is unusual. Circumstances can be combined. An usually clear or heavy balance of favourable circumstances over unfavourable circumstances may be enough, even if none of the individual circumstances is uncommon or unusual in itself.[48]

80 In other words, what is required is consideration of all relevant individual factors, leading to an overall conclusion as to whether or not special circumstances exist. This evaluative approach was well summarised by McDonald J in Madafferi v The Chief Commissioner of Police[49] ('Madafferi') as follows:

The court's determination of whether special circumstances exist involves a decision making process in which no one consideration and no combination of considerations is necessarily determinative of the result. It requires an evaluation of competing considerations and a determination of whether or not such considerations constitute special circumstances justifying the grant of an extension of time.[50]

81 It is implicit in the prohibition that the Court 'shall not' extend time unless special circumstances exist, as opposed to a positive requirement that the Court 'shall' extend time if such circumstances exist, that the Court retains a discretion to refuse an extension even if satisfied that there are special circumstances.

82 In addition to seeking to add two more grievances to his AOM, the plaintiff seeks to amend the relief he seeks in respect of his existing grievances, and the grounds on which that relief is sought. While there is some similarity between the factors the Court must or may take into account in the exercise of its discretion to grant leave to amend and those relevant to the exercise of discretion to extend time pursuant to r 56.02, there are also significant differences. Plainly, to add a grievance that arose more than 60 days ago requires satisfaction of the 'special circumstances' test in r 56.02, not the general test for amendment.[51] However a question that could arise is which test applies to the proposed changes to the relief sought and to the grounds on which the plaintiff seeks that relief in respect of his grievances brought within time, i.e. those in the AOM. In respect of this question, the defendant's oral submissions departed from her written submissions.

83 The defendant's written submissions contend that the test for extension of time also applies to proposed changes to the relief, that are sought more than 60 days after grounds for the relief claimed first arose.[52] The basis for this proposition was said to be textual, on the basis that the time limit is addressed to 'the relief claimed'. No authority was cited for this proposition and it was not advanced in oral argument. I do not consider it to be correct. The rule does specify that the commencement of the limitation period runs from the date 'grounds for the grant of the relief or remedy claimed first arose'. However, in my view, the proper construction of r 56.02(1), in the light of r 56.02(2), places the emphasis on the temporal relationship between the date of commencement of the proceeding and the date of the 'grounds' for relief, not on the relief claimed in that proceeding. On the basis of r 56.02(2), I take the reference to 'grounds' to be the impugned decision. It follows that proposed change to the formulation of the relief is to be judged by the usual principles relating to amendment. This was in fact the way counsel for the defendant put the argument in oral submissions.[53]

84 The defendant correctly observes in her written submissions that the PFAOM also reframes the grounds for existing grievances, and may imply that the stricter test for extension of time applies to that reframing, as well as to the proposed addition of additional grievances.[54] Again, this proposition was not pursued in oral submissions and I do not consider it to be correct. As noted above, the time limitation is addressed to the commencement of the proceeding. Although the limitation period runs from the date 'grounds for the grant of the relief or remedy claimed first arose', I take this reference to 'grounds' to be a reference to any grounds, not the precise formulation of those grounds as it first appeared in the proceeding. As in relation to reformulated relief, counsel for the defendant in oral submissions departed from these written submissions, and submitted that only the test for amendment applies to the reformulated or new grounds in respect of grievances already within the proceeding.[55]

85 The defendant did not take specific objection to particular new or reformulated grounds ( as opposed to relief) in respect of grievances already included in the AOM in either written or oral submissions. For that reason, I will allow those new or reformulated grounds, except where they reflect relief which is not permitted.

86 Leave to amend may be granted pursuant to r 36.01 of the Rules for the purpose, amongst other purposes, of determining the real question in controversy between the parties. Historically, a relatively liberal approach was taken to amendment, to allow a party to advance the claims it wished, in the manner it wished. In more recent times, there is more emphasis on the inclusion of case management principles in the assessment of an application for leave to amend. The High Court specifically endorsed this greater emphasis on case management principles in Aon Risk Services Australia Ltd v Australian National University[56] and it was given legislative force in Victoria by ss 7 and 8 of the Civil Procedure Act 2010 (Vic) ('CPA'). Those sections of the CPA require the Court, in considering the exercise of any of its powers, including the grant of leave to amend, to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.

87 Matters that may be relevant in the exercise of the discretion to allow or refuse an amendment include the stage of the proceeding at which the application is made, including the effect on a trial date; the period of any delay in seeking amendment and the reasons for that delay; the effect on judicial resources and other pending proceedings of allowing the amendment; the prejudice to the party seeking amendment if it is refused; and any prejudice to the other party if it is granted, which is not to be regarded as necessarily satisfactorily compensated by a costs order being made in favour of that party.[57]

88 As noted earlier, some of these factors are also relevant to the exercise of the discretion to grant an extension of time, although the overall test in that respect is that special circumstances must exist. There is a distinction, however, between assessment of the merits of a proposed additional grievance for the purposes of extension of time, and assessment of the merits of a proposed amendment that does not require satisfaction of the extension of time test. In relation to amendment, leave to amend should not be granted if the proposed amendments have no real prospect of success, as such an amendment would be futile.[58] This is the same test as that for summary judgment. It requires only an assessment as to a real, as opposed to a fanciful, prospect of success. It does not require an assessment of the strength of that 'real' prospect of success. The defendant concedes that for the purpose of leave to amend it is sufficient that the Court is satisfied that the prospects of success on the amendment are not fanciful.[59] In other words, on the question of amendment, as opposed to extension of time, the Court is not required to assess the strength of the proposed case beyond this threshold level.

89 I begin my discussion with matters that apply to both additional grievances in respect of which an extension of time is sought.

90 The defendant accepts that the period of delay, i.e. the length of time after expiration of the 60 days in each case, is short. Nor does the defendant assert any prejudice to the defendant if the extensions are granted, save that the defendant had prepared for trial and may now wish to put on further evidence.[60]

91 The plaintiff's evidence as to the reasons for delay is contained in his 15 August affidavit. In that affidavit he deposes that he has 'suffered in my ability to address matters in a timely fashion' by reason of his conditions of confinement and his emotional distress.[61]

92 In relation to the first, the plaintiff deposes that he has been (as at that date) held in isolation since 14 April 2019. There is no evidence in opposition, so I assume this to be correct. Thus for the whole of the period within which the plaintiff could have added these grievances without extension of time, and thereafter, he has had the additional burden of imprisonment in isolation.

93 The plaintiff deposes in his 15 August affidavit to his belief that the two pieces of legislation passed by the Victorian Parliament imposing limitations on the power of the Adult Parole Board to grant parole to prisoners convicted of murder of a police officer, and later to the plaintiff specifically, were designed to ensure that he dies in custody. In support of this belief, he seeks to extract and rely on various statements made by members of Parliament in the course of Parliamentary debate. The defendant submits that these extracts are inadmissible, as a breach of Parliamentary privilege.

94 The plaintiff seeks that I determine that question,[62] but it is not necessary to do so. The defendant concedes for the purpose of this application that the plaintiff could have suffered, or did suffer, emotional distress 'to an enormous extent' by reason of his suit in the High Court challenging the second piece of legislation concerning his parole, and the 'significant media and other public comment' about fresh charges laid against him, his period of incarceration and his entitlement to parole.[63] Counsel for the defendant observes that the plaintiff has not adduced any medical evidence to show the consequences of these matters on his capacity to engage in litigation, and qualifies the concession by submitting that these matters 'could have led to Dr Minogue suffering emotional distress to an enormous extent' (emphasis added).[64] For the purpose of this application, I consider that the plaintiff's evidence, where it is unopposed and not objected to (and so excluding the extracts from Parliamentary debate) should be taken at its highest, and so I find that he did suffer that level of emotional distress.

95 As against this the defendant submits that notwithstanding this level of distress, and the conditions of his confinement in isolation, the plaintiff was still able to attend to many matters in this proceeding, or in relation to telephone access. The defendant identifies these as attendance at directions hearings on 14 April 2019 and 24 July 2019; the preparation, filing and service of the AOM, which is dated 17 April 2019; the preparation, swearing, filing and serving of affidavits, being affidavits sworn 28 April 2019 and 15 May 2019; the preparation and service of a number of iterations of a proposed further amended originating motion, including the one dated 14 May 2019 which prompted the defendant's request for a further directions hearing; preparation of written submissions for the directions hearings and numerous letters as deposed to in his affidavits.[65]

96 The directions hearing held on 14 April 2019 was of course prior to receipt by the plaintiff on 15 April 2019 of Mr Ryan's letter of 11 April 2019, and the preparation of the AOM dated 17 April 2019 may already have been mostly undertaken by that date. Both were also before the plaintiff became aware of the commencement on 28 April 2019 of the 2019 Regulations. As against this, the plaintiff incorporated Mr Ryan's letter of 11 April 2019 into his affidavit sworn 28 April 2019 and so it could have been, but was not, incorporated into his first iteration of a proposed further amended originating motion dated 14 May 2019. By contrast, the plaintiff did include his grievance about the 2019 Regulations in that first proposed further amended originating motion, which is within the period of 60 days after their commencement, as well as in his affidavit sworn 15 May 2019.

97 In oral submissions, in answer to my question as to why he did not include his grievance about Mr Ryan's 11 April 2019 letter in his AOM of 17 April 2019, the plaintiff responded that given his state of mind he thought he had included it, and that he lost track of the decision constituted by the 11 April 2019 letter because there were two decisions about which he was aggrieved made on 11 April 2019.[66] In relation to inclusion of that grievance in the plaintiff's first iteration of a proposed further amended originating motion dated 14 May 2019, while the plaintiff did not have it before him at the hearing he accepted that it did not include his grievance in relation to Mr Ryan's letter. His explanation in oral submissions was that this was an oversight given his circumstances at the time.

98 On balance, notwithstanding the steps in the litigation that the plaintiff was still able to take despite his emotional distress and circumstances of confinement, I accept as satisfactory his explanation for his failure to seek to add his grievance in relation to Mr Ryan's letter of 11 April 2019 until the proposed further amended originating motion on which he now moves, the PFAOM dated 15 August 2019, which is outside the period of 60 days after receipt of that letter. In addition to these matters, I also take into account that the field of action in relation to internet access for a prisoner facilitated by telephone underwent a number of changes during this period at the instance of the defendant and relevant Minister. The plaintiff adverts to this in his written submissions.[67] It is not surprising that the plaintiff may have lost track of his articulation of specific grievances given those changes.

99 In relation to his grievance about the 2019 Regulations, the plaintiff did seek to add that grievance to his proposed further amended originating motion dated 14 May 2019. However, as the proposed further amended originating motion dated 14 May 2019 is not the iteration on which the plaintiff now moves, and he sought and was granted the opportunity to file a further iteration at the directions hearing on 24 July 2019, technically he still requires an extension of time. The defendant informed me that there was a further iteration before the directions hearing on 24 July 2019, which is not before me, and so I am unable to determine if either of the additional grievances were included in that iteration. The plaintiff's explanation for the further iteration constituted by the PFAOM is that he sought to address concerns raised by counsel for the defendant at that directions hearing.

100 A relevant factor tending towards a conclusion that special circumstances exist is that neither of these additional grievances could be considered to come as a surprise to the defendant. The defendant was on notice of the plaintiff's request for telephone access to his partner for the purpose of her contacting his lawyers through the internet from the date of his request by letter dated 28 February 2019, which was included in his 10 March affidavit filed at the commencement of the proceeding. Notice that the plaintiff was aggrieved by the defendant's response of 11 April 2019 was given in the plaintiff's affidavit of 28 April 2019. Notice that the plaintiff was aggrieved by the promulgation and commencement of the 2019 Regulations was given in his affidavit of 15 May 2019. Further, the fact that the plaintiff wished to seek relief about his grievance about the 2019 Regulations, as opposed to raising it in evidence, was made explicit in the first iteration of his proposed further amended originating motion, dated 14 May 2019.

101 In Madafferi, two extensions of time were required - in respect of the originating motion and also in respect of the amended originating motion on which the plaintiff then wished to move. McDonald J would have been inclined to grant the extension in respect of the originating motion (which contested an initial decision by the defendant, subsequently revoked) because although it was filed out of time no objection was taken by the defendant and indeed the defendant subsequently agreed to allow an amendment to the originating motion to challenge a second decision (on the basis that the amendment would be within 60 days of the second decision). McDonald J considered this agreement to a special circumstance justifying an extension of time in relation to the originating motion. The circumstances in this case are not as favourable for the plaintiff, amounting to notice to the defendant rather than agreement with the defendant, but I do consider that notice of the grievance is a factor tending towards special circumstances.

102 In summary, the factors of short delay, satisfactory explanation for the delay given the plaintiff's circumstances and the rapidly changing field of contest, minimal prejudice to the defendant, and informal notice within time of the grievances all tend towards a conclusion of special circumstances. I now turn to consideration of the merits of the proposed additional grievances, and other factors peculiar to each.

Refusal of internet access by letter dated 11 April 2019

103 Mr Ryan's letter was in response to a request made by the plaintiff by letter dated 28 February 2019 pursuant to the Notice to Prisoners issued to give notice of the February Privileges List. That Notice contained an exception for causing the use of the internet with the permission of the Commissioner or Prison General Manger. The February Privileges List itself did not contain this express exception, but Mr Wise's evidence is that nevertheless it was always intended that this exception would apply.[68]

104 The plaintiff requested permission to telephone his partner so that she could contact his lawyers by the internet on his behalf. The letter gave examples of requests made by the plaintiff of his partner of this type prior to the change to telephone access.[69] These requests were to the following effect:

i) to send to his lawyer in the High Court proceeding an email requesting a PDF version of his submission for that proceeding;

ii) to send via Twitter or email, to a lawyer who uses communication via Twitter, a voice mail message in relation to potential litigation in the Court of Criminal Appeal;

iii) to send via email, to a lawyer in contact with him by post, a voice mail message in relation to potential litigation in the Court of Criminal Appeal;

iv) to send via email, to a lawyer acting for the plaintiff in the Administrative Appeals Tribunal, a document on a United Kingdom government website; and

v) previous requests to send to his lawyers acting in the High Court proceeding via email voice mail messages, made when the plaintiff had been unable to contact that lawyer on her office telephone. The lawyer in turn would respond by telephone or email to the plaintiff's partner, who would communicate those responses to the plaintiff by telephone.

These examples are typical of my use of the internet to communicate about my legal matters. Meaningful access to the Courts and Tribunals in this country are very much dependent upon expeditious means of communication.[70]

106 The plaintiff did not receive a substantive reply to that request until Mr Ryan's letter of 11 April 2019, received on 15 April 2019. By that time, of course, the February Privileges List had been overtaken by the April Privileges List, which does contain specific exceptions relating to contact with lawyers. For the purposes of this application, I will assume that those are the exceptions that were applicable at the time of the plaintiff's request, which was denied by Mr Ryan by letter dated 11 April 2019.

107 In respect of access to the internet for legal purposes, the April Privileges List does not prevent a prisoner making a telephone call to a lawyer with a request that that lawyer access the internet (paragraph 3(b) and (c)). However, it would only allow a prisoner to make a telephone call to an intermediary requesting that that intermediary contact the prisoner's lawyer via the internet for any purpose, including to make a request that the lawyer obtain some information from the internet, where that purpose has been approved by the Governor or Commissioner having regard to certain criteria. In other words, if a prisoner needs quick contact with his lawyer, and is unable to contact that lawyer by telephone, he could not, pursuant to the April Privileges List, ask a permitted telephone contact to contact the lawyer by email or voice mail without first seeking and obtaining permission. In that scenario, the necessity to seek and obtain permission would seem to militate against quick contact.

108 The plaintiff addressed this situation in the request he made of Mr Ryan by letter dated 24 April 2019 to be allowed to telephone his partner and ask her to contact both his lawyers and lawyers for Minister Dutton via the internet.[71] In that letter, the plaintiff noted, amongst other matters, the following in support of his request:

(i) It takes 7-10 days for a letter from a lawyer to be received, even if priority post.

(ii) Lawyers 'notoriously' leave preparation to the last moment, and it is 'almost impossible' to communicate last moment thoughts without relying on access to the internet via an intermediary he can contact by telephone.(iii) The sending and receiving of facsimiles in the prison takes 12-48 hours. Further, some lawyers (and he gave a concrete example) do not have fax machines.

(iv) His telephone access both in terms of permitted numbers, and in terms of permitted time, is limited. At that time, he was only able to make telephone calls once a day and lawyers may not be available at that time.

(v) The Prisoner Telephone System does not allow a recorded message to be left if the lawyer is unavailable and utilises an automated message service.

(vi) Telephone access to a lawyer's mobile number is prohibitively expensive for a prisoner, and there is a limit to the number of mobile telephone numbers a prisoner may have on their access account.

(vii) His lawyer for the High Court matter works between two firms with different telephone numbers.

(viii) Communication with lawyers by post occasions a 'forced delay in communication' which 'makes it "too hard" for people in the real world to make the effort; especially lawyers who are working pro bono. Meaningful access to legal advice, Courts and Tribunals are very much dependent upon expeditious means of communication.'

109 Mr Ryan's refusal of the plaintiff's request was because, in Mr Ryan's view, the plaintiff already had adequate means to communicate with his lawyer by telephone, mail and facsimile. Mr Ryan did not in his response indicate any objection arising from prison security or good order, or the welfare of any person. In any event, in his later letter of 24 April 2019, the plaintiff proposed various safeguards in those respects.

110 In my view, the plaintiff makes in the observations I summarise above a strong case that Mr Ryan's refusal of his request was incorrect on the merits, i.e. in asserting that the other means of communication with lawyers are adequate. Within the experience of the Court, communication to and from lawyers, courts and tribunals is now routinely electronic via the internet, indeed even before the current COVID-19 environment mainly so, and now almost entirely so. Quick communication is often necessary given lawyers' many commitments and court timetables, and communication by fax machine is increasingly rare. Further, the observations the plaintiff makes that lawyers are not always available when he can call them directly, and that he may not be able to leave a message for them in that case, are compelling.[72] Indeed, the defendant concedes that the internet barrier does burden the ability of prisoners to contact their lawyers, but submits that in the prison context this is defensible.[73]

111 This is, of course, because the issue in this proceeding, if an extension to challenge the decision is allowed, will not be whether or not the decision was correct on the merits, but whether there is a good ground for discretionary relief by way of judicial review. The relief that the plaintiff seeks in respect of this decision is set out in paragraphs 38‑42 of his PFAOM, as further amended by him in court to delete sub-paragraphs 40(b) and 41(b). The defendant submits that the plaintiff's prospects of success in respect of this relief are low, even if not fanciful, and that this weighs against the grant of an extension of time.[74] The defendant takes specific objection to the relief sought by paragraphs 38 (seeks relief by way of certiorari), 39 (seeks relief by way of mandamus), 40 and 41. I agree with the objections to 40 and 41 (declarations of invalidity by reason of breach of s 92 of the Commonwealth Constitution), but will allow the other paragraphs.

112 Section 92 of the Commonwealth Constitution is directed at protecting interstate intercourse. The plaintiff seeks to invoke this protection on the basis that his partner lives interstate. I accept the defendant's submissions that the plaintiff's prospects of successfully invoking s 92 in respect of Mr Ryan's decision are poor.[75] Section 92 may invalidate a law enacted for the purpose of preventing interstate intercourse. It does not, however, apply where some prevention of interstate intercourse is an incidental consequence of a law enacted for some other purpose.[76] Even assuming that s 92 could apply to an administrative decision such as Mr Ryan's, his decision only prevented telephone contact to a person who happens to live interstate for one particular purpose. It was not directed to interstate telephone contact as such. It is not arguable that Mr Ryan's decision was for the purpose of preventing telephone contact with a person living interstate.

113 The defendant only takes limited specific objection to the declarations that the plaintiff sets out in paragraph 42 of the PFAOM. That paragraph seeks declarations that the decision was contrary to law by reason of failure to give proper consideration to, or conflict with, various statutory requirements of the Act and the Charter. The defendant contends that the decision would survive the challenges pursuant to the Charter because the limitations were reasonable, relying on Mr Wise's evidence in that regard. I consider this question is better considered at trial, given that on the evidence to date it is arguable that Mr Wise has misunderstood the extent of the restrictions. Mr Wise deposes that both the April Privileges List and the notice to prisoners summarising that List 'state that it will not be seen as a prison offence to use or access the internet via another person to contact a lawyer, so those activities will not actually be effected'.[77] As set out earlier, on my reading of the April Privileges List, this is incorrect. The exceptions in the List allow a lawyer to access the internet on behalf of a prisoner, but they do not permit a prisoner to contact a lawyer by the internet either directly or through the intermediary of another person contacted by telephone, unless permission has been granted for that purpose.

114 The defendant does not take specific objection to the proposed declarations relating to conflict with the Act, and I consider that they have reasonable prospects of success, re-crafted if necessary by the Court. To give one example, the declaration sought by paragraph 42(a) is to the effect that the decision was ultra vires and otherwise contrary to law because it failed to give proper consideration to the 'duty under law' at, inter alia, s 21(1) of the Act 'for the welfare of prisoners'. Section 21(1) of the Act imposes responsibility on the Governor of a prison for the welfare of prisoners, as well as for their safe custody and the management, good order and security of the prison. It is more than merely arguable, in my view, that 'welfare' includes adequate provision of means of communication with lawyers.

115 The defendant submits that certiorari sought by paragraph 39 of the PFAOM would not be granted because the decision has no ongoing legal effect. The same objection could be raised as a matter of discretion in relation to the grant of the declarations referred to above. In my view, this is a discretionary matter that is properly to be considered at trial on the evidence at that time. On the material before me, it is the case that the decision was made in respect of the February Privileges List, which has now been overtaken by the April Privileges List, and that using the telephone to commission internet use has now been made a specific prison offence by the 2019 Regulations. Further, it is also the case that the plaintiff's High Court proceeding has concluded, and it may be that the other specific proceedings or potential proceedings identified by the plaintiff are also no longer current. However, further evidence for trial may establish that the plaintiff now has other legal proceedings on foot, or contemplated, or other need for legal advice, and there is nothing on the material before me that indicates that Mr Ryan's decision is now inoperative, or has ceased to reflect his attitude should further request be made pursuant to the April Privileges List or the 2019 Regulations.

116 Relief by way of mandamus requires a public duty that is unperformed. The defendant contends that the plaintiff has not 'specified the public duty he would have the Court compel (and none exists)'.[78] I do not think this quite correct. The plaintiff specifies certain duties in the PFAOM,[79] contending that duties for his 'welfare' are imposed on the defendants, including Mr Ryan, by ss 1(a), 7(1) and 21(1) of the Act.[80] Section 1 of the Act specifies the purposes of the Act - it does not impose a duty on any person. However, s 7 specifies the responsibilities of the Secretary, the first defendant, and those responsibilities include the welfare of prisoners. Similarly, s 21 specifies the responsibilities of the Governor of a prison, including Mr Ryan, and those responsibilities include the welfare of prisoners. I think it better determined at trial whether mandamus can lie in the way the plaintiff asserts given Mr Ryan's responsibility for the plaintiff's welfare, as that may extend to access to lawyers.

117 There are two further factors tending towards a conclusion that special circumstances exist so as to enliven the Court's discretion to extend time in respect of Mr Ryan's decision, and that the discretion should be so exercised. The first is that there may be some confusion or disagreement as between Mr Ryan and Mr Wise as to the effect of the restrictions on telephone access in relation to accessing the internet to contact a lawyer. As noted earlier, the evidence before me does not contain any reply by Mr Ryan to the request made by the plaintiff pursuant to the April Privileges List. However, Mr Wise responds to it in his affidavit. As discussed above, he may have misunderstood the effect of the exceptions. There is also some apparent disagreement with Mr Ryan's understanding. He certainly appears to have assumed in his letter that permission was required to use the telephone to facilitate contact with a lawyer by the internet.

118 The other relevant factor is the degree of interconnectedness between the plaintiff's grievance in relation to the resumption of his telephone access to his partner on the basis of her undertaking not to use the internet on his behalf, which is already the subject of the proceeding by virtue of the AOM, and the proposed addition of the plaintiff's grievance in respect of Mr Ryan's letter of 11 April 2019. The undertaking that was required of the plaintiff's partner by Mr Ryan's letter of 3 April 2019 to her contains three conditions as follows:

1. I will only conduct telephone calls with [the plaintiff] in compliance with the law, including the Corrections Act 1986 and the Corrections Regulations 2009.
2. I will not access or use the internet on [the plaintiff]'s behalf, including via telephone. Accessing or using the internet includes any use or access in any manner whatsoever of 'social media', including Twitter, Facebook and any other similar platform.
3. I will not cause, encourage or allow another person to use or access the internet on [the plaintiff]'s behalf, including via telephone. Accessing or using the internet on [the plaintiff]'s behalf includes any use or access in any manner whatsoever of 'social media', including Twitter, Facebook and any other similar platform.

119 The second of these on its face would prevent the partner from emailing the plaintiff's lawyer at his telephone request, even if that telephone request was made with the permission of the Governor. The third of the conditions would prevent the partner from asking the plaintiff's lawyer to access the internet on his behalf. I am not here addressing the prospects of success of relief in relation to the grievance about the undertaking. It may be, for example, that these conditions were not intended to apply in that way, in particular because they were intended to be subject to condition 1. The point I seek here to make is that the connection between the grievance about the undertaking and the grievance sought to be added about Mr Ryan's refusal of permission adds further weight to the plaintiff's contentions of special circumstances.

Conclusion in relation to extension of time in relation to 11 April 2019 letter

120 Having regard to all the factors considered, I consider that there are special circumstances that enliven the Court's power to extend time to allow the grievance in relation to the 11 April 2019 letter to be added to the proceeding, and that the discretion should be exercised in favour of the plaintiff. The factors that lead me to conclude that there are special circumstances are:

• the sufficiency of the plaintiff's explanation for that delay, given his solitary confinement, that he is self-represented, was suffering the opprobrium of adverse public comment during the relevant time period, and the pace of change in the restrictions;

• the absence of any significant prejudice to the defendant;

• informal notice to the defendant within time of this grievance and its interconnectedness to an existing grievance;

• the possible confusion or division of opinion on the part of the defendant or her employees as to access to lawyers via the internet; and

• the reasonable prospects of successful challenge at least in relation to some of the relief sought.

121 Viewed together, I consider that these circumstances take the circumstances beyond those which are usual or common. I will extend time to add this grievance but will not allow the further amended originating motion to include paragraphs 40 or 41 of the PFAOM.

122 I reach the opposite conclusion in relation to the proposed inclusion of the grievance constituted by the promulgation of the 2019 Regulations. The plaintiff seeks to challenge both new regulation 65(1)(o) (no direct access by a prisoner to the internet) and 65(1)(p) (no commissioned prisoner access to the internet). There is no evidence before me that the plaintiff has made any endeavour to directly access the internet, or, as noted earlier, any request for permission to access the internet pursuant to these Regulations, or has been charged with a prison offence for accessing the internet without permission. It is not the case, as the plaintiff contends, that the defendant requires him to commit a prison offence to challenge the Regulations - a request for permission that was refused, or not answered, may be sufficient. In the absence of any such request, or any such charge, there is no decision or failure to decide that can be impugned. The plaintiff seeks an advisory opinion, which is not permissible.

123 In response to the defendant's submissions in this regard, the plaintiff first submits that these are 'overly technical objections' which will result in a 'false economy', foreshadowing that if those objections are upheld, he will make a request and challenge the outcome in a fresh proceeding.[81] The objections are not, as the plaintiff contends, technical - they are fundamental. They go to the heart of the judicial function. Any future proceeding commenced by the plaintiff will be assessed on its own merits.

124 The plaintiff further submits that one part of the relief at least that he seeks in respect of the 2019 Regulations is available to him, being the proposed declaration pursuant to s 36 of the Charter that sub-regulations 65(1)(o) and (p) are not capable of consistent interpretation with the Charter. This submission is not correct. Section 36 relevantly provides as follows (with emphasis in italics added):

36 Declaration of inconsistent interpretation

(1) This section applies _if - _

(a) in a Supreme Court proceeding a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or

(b) the Supreme Court has had a question referred to it under section 33; or

(c) an appeal before the Court of Appeal relates to a question of a kind referred to in paragraph (a).

(2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.

125 It is apparent from the italicised words alone that the Court's jurisdiction to make a declaration pursuant to s 36(2) only arises pursuant to s 36(1)(a) where there is a proceeding on foot in this Court in which the relevant question of law arises. In other words, merely seeking a s 36 declaration is not sufficient to create the jurisdiction to grant it. That would be a bootstraps argument. There must be a proceeding otherwise on foot, and specifically a controversy, in which the question of consistency with the Charter arises. The jurisprudential reasons for this conclusion were analysed by the High Court in Momcilovic v R.[82] Here, in the absence of a decision or failure to decide an application of the 2019 Regulations to the plaintiff, there is no such controversy.

126 The plaintiff also submits that it would be artificial to exclude his grievance in relation to the 2019 Regulations, when they utilise very much the same words to limit telephone access for the purpose of accessing the internet as do the February and April Privileges, which are already the subject of his proceeding. That submission is based on a misconception. While similar words are used, the effect of sub-regulations 65(1)(o) and (p) is different to the limitations on the privilege of telephone access. The effect of the sub-regulations is to create a prison offence, which has potentially broader impact than withdrawal of a privilege. In any event, the submission does not override the fundamental difficulty that the evidence does not reveal any decision made pursuant to the sub-regulations that can be the subject of judicial review.

127 Accordingly, although some of the factors in common with the plaintiff's grievance about Mr Ryan's 11 April 2019 decision and the additional factor of inclusion in the plaintiff's first iteration of a proposed further amended originating motion could tend towards a conclusion of special circumstances, the absence of any prospect of success strongly militates against extension. I will refuse an extension of time to permit inclusion of this grievance in the further amended originating motion, because it has no prospect of success, and so the extension would be futile.

128 The defendant submits that leave to amend should be refused in respect of additional relief sought in the PFAOM that relates to existing grievances, and re-formulations of relief sought in the AOM.

129 The additional proposed relief that is sought in paragraphs 1-16 inclusive of the PFAOM under the heading 'Relief and Remedy: Matters of fact and law' is objected to on the basis that the proposed declarations are conclusions of fact or law that may form part of the Court's reasoning process, if the plaintiff is successful, but are not appropriate declarations because they do not finally determine the respective rights and obligations of the parties in the relevant controversies. I agree. I will not grant leave to add these paragraphs.

130 The plaintiff says that he included these paragraphs with the intention of fully exposing his proposed line of argument, and with a view to addressing objections taken by the defendant at the July directions hearing.[83] Accepting that to be his intention, the manner by which the plaintiff has sought to do this is not correct. I consider that in the interests of focusing attention on the real issues, and limiting the costs and time of consideration, where relief sought is plainly inappropriate it should be excluded. This does not, of course, prevent the plaintiff from seeking findings of facts or law as foreshadowed in paragraphs 1-16 in submissions for the trial. As will be seen, in the case of newly sought or reformulated relief that may suffer from technical defects but sufficiently exposes a request for final relief, as opposed to intermediate findings, I take a more lenient approach, provided the grounds are not fanciful. I do so because the plaintiff is unrepresented. In instances of that type, the Court at trial may be prepared to fashion appropriate relief where satisfied of invalidity or unlawfulness.

131 The defendant next objects to the reformulation of the relief sought in respect of the creation of the February Privileges List, as it appears in paragraphs 17-20 of the PFAOM. The defendant only takes specific objection to paragraphs 17, 19 and 20(a), (h), (i) and (j), and the utility of any declaration. Accordingly, I largely confine my consideration to those paragraphs.

132 I agree that the declarations sought in paragraphs 17 and 19 have no real prospect of success, and will refuse leave to include those paragraphs. The declaration sought in paragraph 17 is objectionable because it seeks a finding of fact, rather than a binding declaration of right. The declaration sought by paragraph 19 is objectionable for the analogous reason that it seeks a conclusion of law that may form part of the Court's reasoning process, but is not a binding declaration of right as a result of those reasons.

133 Paragraph 18 seeks a declaration of invalidity of the February Privileges List by reason of conflict with s 92 of the Constitution in two respects. The first is said to be in relation to intercourse between the states; the second in relation to the implied right of freedom of political expression. It could be said that the first aspect has no real prospect of success for the reasons set out earlier in relation to the similar declaration sought in relation to the 11 April 2019 refusal of internet access to the plaintiff's lawyers via telephone to his partner. Indeed, the prospect of the plaintiff successfully establishing that the purpose of the February Privileges List was to limit interstate intercourse as it applies to prisoners generally could be said to be even more remote that his prospects of success in that regard in relation to him personally.[84] The defendant has not, however, taken this objection and given that the plaintiff is not legally represented and is under the disability of his imprisonment, I do not think I should go beyond the objections taken. The parties can take this matter further at trial if they wish.

134 The defendant has also not cavilled with the proposition in the second aspect of paragraph 18 that the implied right of political freedom of political expression arises from s 92 of the Constitution. The defendant only raised objection to relief relating to invalidity by reason of conflict with the implied right of political expression in relation to the 11 April decision by Mr Ryan, and the relief sought to that effect was deleted by the plaintiff at the hearing. For these reasons, I will allow paragraph 18.

135 Paragraphs 17 and 19 of the PFAOM are new in the sense that they do not appear in that form in the AOM. It is appropriate then that leave is required for their inclusion. Although the exact correspondence is difficult to detect in the absence of marking up, much of the relief sought by paragraph 20 already appears in the AOM, although on occasion slightly differently formulated. For example, the defendant takes specific objection to sub-paragraphs (h), (i) and (j) yet these appear in almost exactly the same words in the AOM, at paragraph 3. Even if leave is strictly required given different formulation, I consider that the appropriate approach is the practical one of allowing the paragraph, including any reformulations, unless patently without any real prospect of success.

136 Applying this approach, I accept the defendant's objection to sub-paragraph 20(a) but otherwise will allow the paragraph. Sub-paragraph 20(a) is based on the assumption that the privative clause in s 50(9) of the Act, that prevents appeal of, or challenge to, a decision of a prison officer as to whether a particular set of facts does, or does not, constitute a prison offence at a particular point in time, also prevents subsequent change to the privileges that apply generally. That contention has no real prospect of success.

137 The defendant also submits that relief in respect of the February Privileges List will not be granted because it has been overtaken by the April Privileges List, and so relief would have no utility. I accept that the Court may ultimately take that view, even if otherwise satisfied of unlawfulness or invalidity in respect of the February Privileges List, but that is a discretionary decision that should be left to the trial judge.

138 I take a similar approach to the relief sought in paragraphs 21-25 of the PFAOM in respect of Mr Wise's decision to withdraw the plaintiff's telephone access. The defendant only takes specific objection to paragraphs 22, 24 and 25 (a), (h), (i) and (j). I will not allow paragraphs 22 (seeks a finding of fact expressed as a declaration); 24 (seeks a conclusion of law expressed as a declaration); or 25(a) (misconceives the effect of the privative clause in s 50(9) of the Act).

139 No specific objection is taken to paragraph 23, as opposed to the similar declaration sought in paragraph 41 in respect of the decision by Mr Ryan, and I do not consider it appropriate to consider it further in the absence of such an objection.

140 The misconception in proposed declaration 25(a) is different to that in proposed, and disallowed, declaration 20(a). Proposed declaration 25(a) requires the Court to agree that a privative clause that prevents the decision of the prison officer to 'be called into question in any court' also prevents a different prison officer withdrawing a privilege on a different basis. The plaintiff has no real prospect of success of establishing that this is the effect of the privative clause. I otherwise will allow the relief sought in respect of this decision, even if reformulated from the relief sought in the AOM.

Offering of undertaking: Dr Cassar 3 April 2019

141 The defendant objects to the relief sought in respect of this grievance on a number of broad bases.[85] These are:

(1) that the acceptance of the undertaking did not constitute a decision or other exercise of public power that is amenable to judicial review;

(2) that the undertaking never had, or does not have continuing, legal force and so certiorari is not available;

(3) that even if were, quashing the decision would be against the plaintiff's interests; and

(4) that the person with standing to challenge the decision is the plaintiff's partner, not the plaintiff.

142 In my view, (1) above does not properly reflect the way the plaintiff characterises his grievance. In paragraph 49 of the PFAOM the plaintiff characterises the relevant decision as the offering of the undertaking, not the acceptance of it. A matter that stands in the way of relief in respect of the offering of the undertaking is that it was the plaintiff's partner who first proposed that she give an undertaking not to use the internet on behalf of the plaintiff. However, the form of the required undertaking was that stipulated in Mr Ryan's letter of 3 April 2019, conveying Dr Cassar's decision.[86] Accordingly, it is arguable in my view that there was a relevant decision, being the formulation of the terms of the undertaking.

143 The form of the undertaking required the plaintiff's partner to acknowledge that failure to comply with it could result in withdrawal of the plaintiff's telephone privileges or 'other lawful action or consequence'. Given these required acknowledgements, it sits oddly for the defendant to now contend that the undertaking never had any legal force, and I do not consider it is fanciful to contend to the contrary.

144 Whether the relief sought is in the plaintiff's interests is a matter for him. Finally, it seems to me plain that the plaintiff has standing to challenge a decision that required his partner to give the undertaking as a condition of restoration of his telephone access to her. The fact that his partner may also have such standing is not to the point.

145 I will not allow paragraphs 28 (seeks a finding of fact by way of a declaration); 30 (seeks a conclusion of law by way of a declaration), or 31(f) (misconstrues the effect of the privative clause in s 50(9) of the Act) for reasons given earlier in respect of parallel relief sought in respect of other decisions. I will otherwise allow the relief sought. This includes paragraph 29, to which no specific objection is taken. Bearing in mind the way the plaintiff articulates his grievance, that the Commissioner required the undertaking to restore his telephone access, and the content of the conditions and acknowledgements in the undertaking, I do not consider that the prospects of success of the particular sub-paragraphs of paragraph 31 to which the defendant takes objection, sub-paragraphs (a)-(e), and (l)-(n) to be only fanciful.

146 In relation to the objection taken to the relief sought by way of certiorari in paragraph 26 and mandamus in paragraph 27, it must be borne in mind that the plaintiff is not legally represented. If there are technical reasons why the relief he seeks is not appropriate, but the effect he seeks to achieve is sufficiently apparent, and the Court at trial considers that there is a basis for relief with that effect, then the Court may be prepared to fashion relief in an appropriate way.

147 I will not allow paragraphs 34, 36 or 37(a) for reasons already given in respect of parallel relief sought in respect of other decisions. I otherwise will allow the formulations of relief sought.

148 The defendant contends that the relief sought in paragraph 32 (quashing the approval of the April Privileges List by grant of certiorari) and paragraph 33 (order in the nature of mandamus) are not appropriate given that the April Privileges List is general, i.e. not specific to the plaintiff, and that there is no relevant public duty that remains unperformed. In respect of these objections I repeat my observations above in relation to technical objections taken to the relief sought by an unrepresented person in a complex area of law.

Mr Ryan's decision of 11 April 2019 in relation to internet access to lawyers

149 I have addressed the relief sought in relation to this grievance in paragraphs 111-116 of these reasons.

150 I will allow the filing and service of the PFAOM (including the joinder of Mr Wise and Mr Ryan) with the deletions set out below and order the addition of Dr Cassar, in her capacity as Commissioner, as a further defendant. The required deletions are as follows:

(vii) Removal of paragraphs 43-46 (proposed challenge to the 2019 Regulations).

(viii) Consequential removal of related or dependent paragraphs to those specified above, including but not necessarily limited to paragraphs 52(h); and paragraphs 53-59.

151 I make these final observations. The Court was required to be positively satisfied that an extension of time should be granted in respect of the additional grievances that the plaintiff wishes to add to the AOM and the defendant was entitled to object to the grant of those extensions. The defendant is entirely successful in respect of the objection taken to addition of the grievance relating to the 2019 Regulations, and while not successful in relation to the other additional grievance, the objections taken were not lacking in merit. Further, the consideration of extension of time required evaluation of the prospects of success of the relief that the plaintiff sought. In all these circumstances, it is perhaps understandable that the defendant considered herself required, or that it was appropriate, to also object to the reformulations of the relief sought in respect of grievances already under challenge. Should a similar situation arise again, I invite the defendant to reconsider that approach.

152 In the result, the defendant has been successful in removing some of the relief sought in the PFAOM, but largely on technical grounds that do not prevent the plaintiff re-agitating these matters by way of submission at trial. If he does so, the defendant and the trial judge will still be required to address these matters in detail. Given the further factors of an unrepresented plaintiff; that setting out the relief sought in this way may be thought to have the benefit of exposing his intended argument; and that the Court will not be constrained in any event by the plaintiff's formulation of relief, it might be thought that there is limited utility in taking objection to the formulation of relief at an interlocutory stage.

153 As against this, the contest has had the advantage of eliciting from the plaintiff a guide as to how he intends the PFAOM to be read, included in his written submissions dated 15 August 2019. The tables he sets out in paragraph 13 of those submissions relate the relief he seeks in respect of each grievance to his articulation of that grievance, and in some cases to the grounds of the challenge. Thus, while the PFAOM with the changes I require will still be a lengthy, dense, and to some extent unconventional document, that guide, and these reasons, may assist the trial judge to some degree.

154 I will make orders giving effect to these conclusions including reservation of costs to the trial judge, and the listing of the proceeding for further directions after the PFAOM with these changes is filed.

[1] Minogue v Victoria [2018] HCA 27; (2018) 264 CLR 252.

[2] Minogue v Victoria (2019) 372 ALR 623.

[4] Affidavit of Craig Minogue sworn 10 March 2019, [3]-[5], [8], [18] ('10 March affidavit').

[5] Exhibit RJW-3 to affidavit of Roderick John Wise sworn 6 June 2019, 6 ('Wise affidavit').

[15] Charter of Human Rights and Responsibilities Act 2006 (Vic).

[16] Exhibit CM-12 to the affidavit of Craig Minogue sworn 28 April 2019 ('28 April affidavit').

[17] 28 April affidavit, [32]-[35], Exhibit CM-13. The letter refers to the foreshadowing of a response 'in my letter of 15 April 2019'. I assume this was intended to be a reference to the letter of 11 April 2019.

[18] 28 April affidavit, [39], [40] and [41].

[19] Affidavit of Craig Minogue sworn 15 May 2019, [6] ('15 May affidavit').

[21] Ibid [13], [15], Exhibit CM-16.

[25] Wise Affidavit [26]; Transcript of proceedings of 10 October 2019, 14 ('Transcript').

[26] Re the defendant's position: Transcript 20, 104-105. Re the plaintiff's position: Transcript 81.

[27] Transcript 27-28. See also the Plaintiff's Supplementary Submission dated 2 October 2019, [1].

[28] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163.

[29] [2010] HCA 41; (2010) 243 CLR 319.

[32] Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334, 355-357. This principle has been applied in the determination of other proceedings by the plaintiff - Minogue v Dougherty [2017] VSC 724 - and more recently in Haigh v Ryan [2020] VSC 102.

[33] [2003] HCA 75; (2003) 216 CLR 53.

[34] Ibid 91 (Gummow, Hayne and Heydon JJ), 60 (Gleeson CJ and Callinan J agreeing).

[35] [2001] FCA 61; (2001) 105 FCR 437.

[36] Ibid 440. Extracted in the table to the Defendant's Written Submissions.

[38] Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, [68] (Hansen AJA) (Chernov JA [5] and Nettle JA [8] agreeing).

[40] Lazarevic v Victoria Police [2014] VSC 497, [33] (upheld on appeal) citing Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, [57] and [72]; Lednar v Magistrates' Court [2000] VSC 549; (2000) 117 A Crim R 396, 410-411 not following Denysenko v Dessau [1996] VicRp 65; [1996] 2 VR 221, 224. See also Glass (a pseudonym) v Chief Examiner [2015] VSCA 127; (2015) 50 VR 577 and Madafferi v Chief Commissioner of Police [2017] VSC 652.

[41] Lazarevic (n 40), [35].

[43] [2015] VSC 29.

[45] [2015] VSCA 127; (2015) 50 VR 577.

[46] Ibid 595-596, 597 (citation omitted).

[47] [2011] VSC 285.

[49] Madafferi (n 40).

[51] Madafferi (n 40), [53].

[52] Defendant's Written Submissions, [18].

[53] Transcript 29.1-8; 30.26-28. Compare this to the defendant's submissions in relation to the relief claimed for the 11 April 2019 decision of Mr Ryan, in respect of which the defendant submits, and I agree, that the prospects of success need to be assessed beyond the real/fanciful level: Transcript 57-58.

[54] Defendant's Written Submissions, [17].

[58] Mandie v Memart Nominees Pty Ltd [2016] VSCA 4, [42]-[43]; ABL Nominees Pty Ltd v MacKenzie (No 2) [2014] VSC 529, [19].

[60] Transcript 33, 37.26, 40.27-41.29.

[62] Plaintiff's Supplementary Submission dated 2 October 2019, [12].

[67] Plaintiff's Written Submissions dated 15 August 2019, [6].

[71] Set out in 28 April affidavit, [40].

[72] Elaborated in oral submissions at Transcript 63, 66-67.

[75] Table to the Defendant's Written Submissions.

[76] Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1, 57 (Brennan J).

[78] Table to the Defendant's Written Submissions.

[80] Plaintiff's Written Submissions dated 15 August 2019, 10; Transcript 87.18-89.15.

[81] Plaintiff's Supplementary Submission dated 2 October 2019, [1].

[82] (2011) 245 CLR 1. See also the discussion in Fidge v Municipal Electoral Tribunal [2019] VSC 639, [44]-[47].

[83] Plaintiff's Written Submissions dated 15 August 2019, [2], and tables at 3-5; Transcript 75-76.

[84] The plaintiff particularises the decision of the Secretary to determine the List at [47] of the PFAOM as applying to prisoners generally.

[85] Table in the Defendant's Written Submissions.

[86] Exhibit CM-09 to affidavit of Craig Minogue sworn 11 April 2019.