Plaintiff v Defendants

2 By summons filed 10 September 2007, the defendants seek an order, pursuant to Order 23.01 of the Rules, that the proceeding be dismissed. Mr Mitchell, who appeared as counsel for the defendants, said that the defendants contended that the proceeding did not disclose a cause of action and that the proceeding was an abuse of process of the Court. Of course, the Court also has an inherent jurisdiction in relation to those contentions and may consider relevant evidence in that regard.

(1) Subject to any Act, the jurisdiction of the Court to grant any relief or remedy in the nature of certiorari, mandamus, prohibition...shall be exercised only by way of judgment or order...and in a proceeding commenced in accordance with these Rules.

(2) The proceeding shall be commenced by originating motion naming as defendant -

(a) a person, if any, having an interest to oppose the claim of the plaintiff; and

(b) the court, tribunal or person in respect of whose exercise of jurisdiction...the plaintiff brings a proceeding.

(4) In addition to complying with the requirements of Rule 9.05[2], the originating motion -

(a) shall state the grounds upon which the relief or remedy specified in the originating motion is sought; and

(b) where any mistake or omission in any judgment, order or other proceeding in respect of which relief or remedy is sought is a ground, shall specify the mistake or omission.

(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.

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

4 The grounds set out in the plaintiff's originating motion may be summarised as follows. The plaintiff says that he is and was at all material times since 12 May 2005 a prisoner within the meaning of the Corrections Act 1986 (Vic) ("the Act") and is kept in custody as a prisoner at the Metropolitan Remand Centre.[3] After referring to the capacities and functions of the defendants, the originating motion refers to the list of prisoner privileges drawn up annually under reg. 36 of the Corrections Regulations 1998 (Vic) ("the Regulations")[4]. The originating motion then states, in relation to the list of prisoner privileges, that:

"the list does not include any repudiation of the "prisoner privileges" in respect to a prisoner making application and/or possessing a personal computer, referred to as an "In-Cell" computer in accordance with the provisions of the State-Wide policy edict referred to as the Commissioner's Instructions (Commissioner's Requirement 3/2004)."

5 I interpolate that Commissioner's Requirement 3/2004 ("the Commissioner's Requirement") is in evidence and contains the following introductory paragraphs:

"Prisoner access to their own "in cell" computer equipment is a privilege. Access may therefore be removed where a prisoner is found guilty of a prison offence and loss of privileges is imposed. Access is also subject to a prisoner's use of their 'in cell" computer in a manner which does not prejudice the security or good order of the prison, as determined by the prison manager, and their compliance with the behavioural requirements for computer access.

Where a prisoner is actively preparing for an imminent court case, withdrawal of the computer as a privilege should not be done without consideration of the effect on their preparation. In these circumstances the Prison Manager should consider other options such as making available use of an alternative computer that the prisoner can access during out of cell hours."

6 After quoting from the above instrument, the originating motion alleges that the second and fourth defendants "will not permit the plaintiff to draw the full benefit, or at all, the privilege of having access to his own "In Cell" computer equipment required in aid for his court preparation and/or defence."[5]

7 The originating motion then goes on to allege and contend, in substance, that the plaintiff's rights have been infringed, either under the Act or at common law, by depriving him of the benefit of the privilege of access to an in-cell computer.[6]

8 The originating motion goes on to make a number of other allegations in relation to the denial of the privilege of access to an in-cell computer, including negligence, bad faith, fraud and malice.[7]

9 The originating motion then sets out the plaintiff's claims. He seeks an order compelling the defendants to provide him with access to an in-cell computer.[8] He seeks orders referred to as "Prohibition", but which are in the nature of declaratory relief, to the effect that (in very vague terms) discretions exercised adversely to him have been exercised ultra vires and unfairly.[9] He seeks an order in the nature of mandamus inter alia compelling provision to him of an in-cell computer.[10] He seeks an order in the nature of an injunction compelling the defendants (again in vague terms) to provide him with hardware and software items and with the privilege of an in-cell computer.[11]

10 At the outset Mr Mitchell pointed out that Order 56 established a procedural framework for judicial review but did not alter the underlying substantive law.[12] Mr Mitchell accepted that in order to have the proceeding dismissed he had to show a high degree of certainty that the proceeding would fail if it came to trial, or, as I would put it, that the plaintiff had no arguable case arising from the matters set out in his originating motion.

11 Mr Mitchell then made submissions in relation to each of the categories of relief and remedy sought by the plaintiff.

12 In relation to mandamus, Mr Mitchell submitted that the plaintiff must first point to a duty required to be performed by the defendants. He submitted that such a duty was not alleged, or, if it was, such duty did not exist. Mr Mitchell referred to the prisoners rights set out in s.47 of the Act and pointed out that none of these encompassed the matter of which the plaintiff was complaining. On the other hand, the plaintiff (who appeared on his own behalf) pointed to s.47(2) of the Act which provides that:

"A prisoner's rights under this section are additional to, and do not affect any other rights which a prisoner has under an Act other than this Act or at common law."

13 Mr Mitchell then referred to s.54A of the Act dealing with privileges. Section 54A(1) of the Act empowers the Secretary to withdraw one or more of a prisoner's privileges if the Secretary is satisfied either that an investigation into whether the prisoner has committed a prison offence is carried out or that a prisoner has been charged with a prison offence or that steps have been taken to have an alleged prison offence dealt with under the criminal law. However s.54A(2) of the Act provides that the Secretary may only withdraw such privilege or privileges under sub-section (1) if the Secretary is satisfied that it is necessary to do so in the interests of the management, good order and security of the prison concerned. Mr Mitchell said that this was not a case where withdrawal of a privilege was alleged - rather the allegation was that the relevant privilege had been refused or denied.

14 Section 112 of the Act empowers the making of regulations with respect to various matters under the Act including "the privileges of prisoners"[13] and specifically provides that the regulations "may apply or incorporate by reference any document formulated in accordance with the regulations and concerning...the privileges of prisoners...".[14] In that regard, Mr Mitchell pointed to reg. 36 of the Regulations which provides:

"(1) Annually, each Governor must submit to the Secretary, for the Secretary's approval, a list of prisoner privileges to operate in the prison for all prisoners or for various classes of prisoners.

(2) The Secretary may approve or refuse to approve the list submitted under sub-regulation (1), or approve it with changes and may, at any time, delete from, or add to , the list of prisoner privileges to operate in a prison.

(3) The privileges for the time being appearing in a list approved under this regulation are the privileges determined for the prison."

15 Mr Mitchell handed up without objection a photocopy of a document purporting to be the list of prisoner privileges for public prisons for the year 2007. The document was in the form of a memorandum dated 19 December 2006 from the third defendant to the second defendant containing a proposed list of prisoner privileges to apply in all public prisons for the calendar year 2007 and was submitted for approval pursuant to reg. 36(1) of the Regulations. The memorandum was endorsed with the Commissioner's approval of the same date. Mr Mitchell pointed out that the privilege of access to an in-cell computer was not included in the list and he submitted that the description in the Commissioner's Requirement of access to an in-cell computer as being a "privilege" did not make it a prisoner's privilege within the meaning of the Act and the Regulations. Accordingly he submitted that there was no arguable duty or breach of duty involved in the alleged refusal or denial of access to the plaintiff of an in-cell computer.

16 Mr Mitchell further submitted that, insofar as it might be arguable that access for the plaintiff to an in-cell computer was subsumed by or comprehended within his common law right to a fair trial, this was a matter for the judge dealing with his criminal trial[15] ("the trial Judge") and not a matter for relief in the nature of mandamus or other relief by way of judicial review.

17 Mr Mitchell further submitted that the plaintiff's proceeding was misconceived in that he was seeking a specific outcome, namely access to an in-cell computer, when all that he would be entitled to, even if he made out a case, would be to an order for the performance of whatever duty was established or for the proper exercise of whatever discretion was shown to exist and not to have been properly exercised.

18 In relation to the plaintiff's claim for relief in the nature of prohibition, which clearly, as expressed, is a claim for declaratory relief, Mr Mitchell relied on all of the foregoing arguments and in addition submitted that the declarations sought were too vague and uncertain.

19 In relation to the plaintiff's claim for relief by way of injunction, Mr Mitchell submitted that such relief was not available under Order 56 (except perhaps as ancillary to the primary relief therein mentioned). He further submitted that the relief sought was vague and ambiguous. Again, reliance was placed in addition on the arguments relied upon in relation to the other heads of relief sought.

20 Mr Mitchell further submitted that, insofar as the plaintiff was seeking to quash some decision, he had not alleged that the decision had been made by any of the defendants and further, if there had been any decision, it must have been made more than 60 days prior the commencement of the proceeding and hence was outside the time permitted by Order 56.02 and there were no special circumstances for an extension of time.

21 The plaintiff provided written submissions which I have read. The plaintiff also made oral submissions. The plaintiff emphasised that he was not legally trained. The plaintiff said that he had fundamental rights and that his claims were honestly made. The plaintiff submitted that there must be a duty in all the circumstances (viz. as I understood him, to grant him access to an in-cell computer). The plaintiff said that even if his documents were defective or ambiguous, they could be amended and leave to amend them could be given. I do not purport to set out every matter to which the plaintiff referred either in writing or orally but I have considered the whole of his submissions.

22 One thing is clear. The plaintiff has a fundamental right to a fair trial. That right is relevant to this proceeding in the sense that, if that right is found to be the only source of whatever arguable claim the plaintiff has to access to an in-cell computer, then it is not for the civil courts to protect that right and the plaintiff cannot resort to the civil courts for protection thereof.

23 In Smith v Commissioner of Corrective Services[16], a prisoner sought declaratory relief in relation to the alleged inadequacy of the facilities provided to him for consultation with his legal representatives. Moffitt P said:

"I agree with the judgment of Hutley JA[17]. By way of emphasis I wish to add observations on two matters, in relation to the exercise of the declaratory jurisdiction, and other discretionary powers of the Court, in relation to pending criminal proceedings, even assuming there be demonstrated a right...capable of being the subject of a declaratory order.

The powers of the courts in their several criminal jurisdictions are wider and more effective than the powers to make the declaration of, and to make ancillary orders to enforce, a right, if it exists, in the way sought in proceedings such as the present. In particular, the powers and discretions of the judge who presides at a criminal trial...are more ample. Thus the judge who exercises criminal jurisdiction, prior to or at the trial, has the overriding duty to ensure that the accused has a fair trial...the judge has some overriding powers which impose on him a discretion, and indeed a duty, to do that which is fair to the accused. To ensure that the trial is fair to the accused, it is necessary that he be given a fair and reasonable opportunity to consult with, and instruct, his legal advisers, and to obtain their legal advice in relation to the charges against him. It is to be expected that, when an accused is confined prior to the trial, the authorities responsible for his custody will accord him this opportunity without the need for intervention by the judge or magistrate. If, however, they fail to do so, or if the accused or his legal advisers consider they have so failed, there are ample opportunities for them to seek the intervention of the criminal courts in exercise of the various powers of those courts. If the Court intervenes and gives a direction as to what is to occur prior to the trial, there are ample sanctions, if those charged with the custody were minded to disregard or neglect to obey the directions.

Quite apart from the wider powers and discretions of the courts exercising criminal jurisdiction, they are in a superior position to determine and direct what should be done, and when it should be done. They have ready access to the relevant circumstances which must include the nature of the charge and the demands of the pending trial.

All the foregoing circumstances make it totally inappropriate to seek the intervention of the civil courts, in proceedings such as the present, or for the civil courts to exercise any discretion they have to intervene, even assuming the relevant right could be established."

24 I would respectfully adopt the above quoted statements which are applicable both to the complaint of the plaintiff concerning denial of his access to an in-cell computer for the purposes of his defence to criminal proceedings and which are equally applicable to each of the various forms of relief sought by the plaintiff in this proceeding. Accordingly, unless the plaintiff can establish an arguably enforceable right to access to an in-cell computer which exists independently of his common law right to a fair trial, I consider that his claims in this proceeding are hopeless and ought to be dismissed.

25 It is reasonably arguable, I think, that, if a prisoner is enjoying or "entitled to" a privilege within the meaning of s.54A of the Act and that privilege is withdrawn by the Secretary, purportedly pursuant to s. 54A(1) and (2) of the Act, such prisoner would be able in an appropriate legal proceeding to contend that the Secretary had failed to withdraw the privilege in compliance with those statutory provisions and to seek relief accordingly. The question therefore arises whether access to an in-cell computer is arguably a "privilege" within the meaning of s.54A(1) of the Act, because if it is the plaintiff may have an arguable case to that extent.

26 As stated earlier, s. 112 of the Act contains a power to make regulations with respect to the privileges of prisoners and such regulations may incorporate by reference any document formulated in accordance therewith concerning the privileges of prisoners. Further, as stated earlier, reg. 36 is such a regulation. However it is not clear whether the document produced to the Court, purporting to be a list of prisoner privileges, is a list that complies with reg. 36. Regulation 36 provides that "each Governor" must submit a list of prisoner privileges to the Secretary for approval and it is not clear whether the document or list produced falls within that description. For the purposes of this case, it does not matter. If the document comprises a list of prisoner privileges complying with the Regulations, then access to an in-cell computer is not included in the list. If the document does not comply with the Regulations, then, subject to one qualification, there are no prisoner privileges within the meaning of the Regulations and hence arguably none within the meaning of the Act (having regard to reg. 36(3)). The qualification arises from the power of the Secretary, under reg. 36(2) to delete from or add to the list of prisoner privileges to operate in a prison - but it is not suggested that this power has been exercised in the present case.

27 It is thus clear that access to an in-cell computer is not a prisoner privilege within the meaning of the Regulations. I do not think that it is arguable, having regard to the terms of reg. 36, that there can be a prisoner privilege for the purposes of the Act other than those listed or laid down in accordance with reg. 36. In case that conclusion is wrong, does the Commissioner's Requirement arguably create a prisoner privilege within the meaning of the Act? A consideration of the terms of the Commissioner's Requirement shows, in my opinion, that, although the word "privilege" is used in the Commissioner's Requirement, access to an in-cell computer cannot be considered a privilege withdrawable only by the Secretary within the meaning of the Act. The Commissioner's Requirement makes it clear that access to an in-cell computer may be removed by the prison manager having regard to the criteria therein set out. This may be contrasted with a prisoner privilege under the Act that can only be withdrawn by the Secretary. The Commissioner's Requirement contains detailed guidelines governing the application by prisoners to have personal computers in their cells and provides that such applications are to be forwarded to a Review and Assessment Committee for recommendation to the prison manager. The Commissioner's Requirement also sets out a detailed regime regulating the use by prisoners of an in-cell computer. The whole structure set up by the Commissioner's Requirement makes it clear that access to an in-cell computer, although a "privilege" in ordinary language, cannot even arguably be a prisoner privilege within the meaning of the Act.

28 For the foregoing reasons, the originating motion does not disclose a cause of action as far as access to an in-cell computer is concerned. That of course is the plaintiff's central complaint - indeed the only identifiable concrete complaint contained in the originating motion. Further, and additionally so far as the more general complaints contained in the originating motion are concerned (to the extent that they can be comprehended), the submissions made on behalf of the defendants, that I have set out above and which I accept, show that the proceeding not only fails to disclose any cause of action but is also an abuse of process of the Court.

29 Insofar as the refusal to provide the plaintiff with an in-cell computer infringes his common law right to a fair trial (and I do not decide whether it does), that is a matter for the trial Judge.

30 For those reasons, the originating motion is dismissed with costs, including reserved costs.

[1] Kelvin John Anderson (Correctional Services Commissioner), Rod Wise (Director - Prison Services) and Alan Scaife (General Manager, Metropolitan Remand Centre).

[2] "An originating motion shall specify the relief or remedy sought and the Act, if any, under which the claim is made, and, where it includes any question to be answered, the question shall be stated."

[3] Paragraph 1 of the originating motion.

[4] Paragraphs 6 and 7 of the originating motion.

[5] Paragraph 9 of the originating motion.

[6] Paragraphs 10 - 14 of the originating motion.

[7] Paragraphs 15 - 20 of the originating motion.

[8] Paragraph 21 of the originating motion.

[9] Paragraph 22 of the originating motion.

[10] Paragraph 23 of the originating motion.

[11] Paragraph 24 of the originating motion.

[12] Citing Murdesk Investments Pty Ltd v Roads Corporation [2005] VSC 39 at [13] - [15] per Gillard J.

[15] It was common ground that the plaintiff had been committed for trial in the Supreme Court on various charges. I was told that the trial date was 31 March 2008.

[16] [1978] 1 NSWLR 317.

[17] Hutley JA made similar statements of principle to those of Moffitt P as herein set out.