Plaintiff v Defendants

2 Mr Rich maintains his innocence and has appealed the conviction and sentence. He has also issued certain civil proceedings. At present he has no legal aid for the appeal and intends to prepare and prosecute it himself.

3 Mr Rich has commenced two proceedings which are to be determined in this judgment:

• judicial review application by originating motion filed 11 January 2010 against Secretary, Department of Justice and nine other defendants (S CI 2010 00093).
• judicial review application by originating motion filed 17 February 2010 against Roderick Wise and five other defendants (S CI 2010 00838).

4 The defendants in the first proceeding have made application under rules 23.01 and 23.03 of the Supreme Court (General Civil Procedure) Rules 2005 for that proceeding to be stayed or struck out. I will determine that application in this judgment.

5 The defendants in the second proceeding have also made an application for that proceeding to be stayed or struck out. On 8 April 2010, I ordered that the summonses to strike out the first and second proceedings are to be heard at the same time. The parties are agreed that, if I strike out the first proceeding, I should also strike out the second.

6 In the first proceeding, Mr Rich seeks orders in the nature of judicial review, injunctions, declarations and other relief in relation to various aspects of his management as a prisoner, especially in respect of his access to court preparation facilities.

7 In that proceeding, Mr Rich has issued two subpoenas (on 20 January 2010 and 18 July 2010 respectively) seeking production of a large number of documents said to be relevant to the claims made in that proceeding. The defendants have foreshadowed applications to set aside those subpoenas. It has been agreed that these objections to answering the subpoenas will be adjourned to a date to be fixed so that the parties can consider that matter in the light of my judgment.

8 Mr Rich was self-represented before me. Consistently with my duty to afford him a fair hearing, I gave him all due assistance in the presentation of his case, whilst being fair to the defendants. During the hearing and without objection from counsel for the defendants, I explained to Mr Rich my views as to the main deficiencies in his application. This judgment confirms and records those views.

9 When the proceeding was before me on 8 April 2010, it became clear Mr Rich would have to clarify the nature of his application. I therefore directed him to file and serve a succinct summary of his claims and the relief sought. Mr Rich did so in a written submission dated 18 April 2010 of 64 pages and 260 paragraphs. On 22 April 2010, Mr Rich also filed a substitute originating motion with a statement of claim. He sought leave to amend the originating motion dated 11 January 2010 in accordance with the substitute. For convenience, it was agreed that the defendants' application to strike out the first proceeding would be determined by reference to the claims made and relief sought in the statement of claim.

10 While the defendants have made application for the proceeding to be struck out, they do not dispute that it may be more appropriate for Mr Rich to be given leave to amend his application, which they seek by way of self-executing order (within a reasonable time frame, remembering that Mr Rich is a prisoner). If Mr Rich is given leave to amend, he wishes to aggregate all of his claims in the first proceeding and terminate the second.

11 The background to the proceeding is described in Mr Rich's affidavits dated 4 January 2010 and 20 May 2010. They are lengthy and deal mainly with Mr Rich's inability to obtain the facilities, particularly computer facilities, which he alleges are necessary for the conduct of his appeal against conviction and sentence.

12 It is common ground that Mr Rich and prison management have been in dispute about the facilities to which he is to have access for that purpose. At various times, agreement of a kind has been reached. At other times, there has been substantial disagreement. At present, Mr Rich maintains he is not being given access to facilities which he says are necessary, while prison management say that Mr Rich has everything he could reasonably expect. Recently, the defendants have sought to resolve the issues in dispute by making an offer to Mr Rich. I have not been informed that the offer has been accepted.

13 Mr Rich brings the proceeding against the Secretary, Department of Justice; the Correctional Services Commissioner; the Directors (Prison Services) at Corrections Victoria; the General Managers of the Major Offenders Unit at Corrections Victoria; the Operations Manager at Her Majesty's Prison Barwon; and the General Manager of the Metropolitan Remand Centre.

14 The allegations made in the statement of claim are against those nine defendants generally. No attempt has been made to specify the relevant decisions and conduct in terms of particular defendants. It is not possible to ascertain which defendants are responsible for the particular decisions and conduct. Likewise, the relief is sought against the defendants generally. There has been no attempt to connect the relief to an appropriate defendant. It is not possible to ascertain who the appropriate defendant may be. I accept it may sometimes be difficult for Mr Rich to identify a particular decision-maker. That does not excuse making no attempt at all, and simply lumping all the claims against all the defendants in together.

15 Paragraph 1 alleges Mr Rich's status as a prisoner in custody and is not controversial.

16 Paragraph 2 alleges a general refusal 'to approve court preparation resources' on 20, 21, 24 and 27 July and 4 August. It is directed at 'the defendants and their servants and agents [who] in the course of their employment, at all material times, recklessly or negligently acted beyond and outside their statutory power or authority'. The claim appears to have mixed contractual, tortious and judicial review elements. No particulars are given. The formulation 'the defendants and their servants or agents in the course of their employment' is repeated throughout the statement of claim. For convenience, I will hereafter refer only to the defendants.

17 Paragraph 3 alleges a failure to process requests relating to court preparation facilities on the same dates. It is directed at the defendants who 'did not sufficiently or at all, act in a fair and in a timely manner [or] properly process' the requests. The cause of action is not specified and is not ascertainable. No particulars are given.

18 Paragraph 4 alleges the defendants 'did not sufficiently or at all reflect the needs, rights and expectations of the plaintiff' or, in processing the requests, engage in a 'clear, transparent and fair method of resolution' pursuant to legislation and regulation. This seems to be an allegation of breach of a statutory or regulatory duty, but the source of the duty alleged is not given or ascertainable.

19 Paragraph 6 is difficult to describe. I think it alleges against the defendants a breach of statutory and regulatory duties by failing to take steps, and 'recklessly or negligently' refusing to take steps, and acting intentionally beyond power, in reference to the requests. The source of the positive and negative duties alleged is not given or ascertainable.

20 Paragraph 6 alleges carelessness and negligence against the defendants in reference to failing to provide adequate facilities to prepare a legal aid application. This seems to be a tortious allegation, but the source and extent of the duty of care is not given or ascertainable. I am not aware of any principle of law supporting the existence of such a duty.

21 Paragraph 7 makes the same allegation, but in reference to certain civil and criminal appeals which Mr Rich has under way. I repeat the same observation.

22 Paragraph 8 alleges 'careless, reckless or negligent conduct' in very wide terms. It alleges the defendants thereby breached the duty of care with respect to Mr Rich's 'safe custody and welfare'. It is also alleged the defendants failed to assign officers to the prison who knew the extent of the powers and duties. The source and extent of these duties is not given or ascertainable.

23 Paragraph 9 alleges an 'oral accord' made in about May 2005 and July 2009 whereby Mr Rich submitted himself to the defendants' custody in return for their proper management of him as a prisoner. Paragraph 10 specifies a number of express or implied conditions of the accord, including unimpeded access to the courts and the right to adequate time and facilities to prepare his defence. Paragraph 11 alleges an implied term that his various civil rights would be respected if he committed himself to the prison regime. Paragraph 12 alleges the defendants failed to meet their responsibilities under the accord by failing to grant Mr Rich's requests for court preparation facilities and by deliberately interfering with his court preparation endeavours. In paragraph 16, Mr Rich alleges the defendants breached the accord by refusing to approve court preparation facilities, deliberately failing to fulfil statutory and regulatory obligations, impeding his access to a range of specified facilities and resources and denying him meaningful access to legal advice, among other things.

24 The allegations in paragraphs 9, 10, 11, 12 and 16 seem to be that the defendants were contractually liable to meet Mr Rich's reasonable requests and that the contract arose out of his being committed to prison. The best I can make of the claim is that a contract is to be implied from the relationship between the parties as a matter of law. The basis of that implication is not particularised or ascertainable. I know of no legal principle supporting a contract of that kind.

25 Paragraph 13 alleges, on the part of the defendants, pre-judgment, unreasonableness, irrationality, improper purposes, acting under dictation, inflexible application of policy, incorrect interpretation of legislation and improper purposes, all in connection with ignoring additional requests for access to court preparation facilities which Mr Rich made. He also alleges mandatory considerations were ignored and irrelevant considerations were taken into account. These are highly generalised judicial review grounds which are not particularised in any way. Paragraph 14 is similar, but is directed to a failure genuinely and realistically to consider his requests. Breach of procedural fairness is also alleged. I repeat the observation.

26 Paragraph 15 alleges error of law, fraud, improper purposes and bad faith on the part of the defendants. These serious allegations are not particularised in any way, but it is clear that judicial review grounds are being relied on.

27 Mr Rich's statement of claim then sets out a number of paragraphs under the heading 'Particulars'.

28 Paragraphs 1 and 2 refer to Mr Rich being a prisoner and the conditions of his imprisonment. Paragraph 3 refers to the prison regulatory regime under the Corrections Act 1986, the Corrections Regulations 2009 and certain policies and guidelines. Paragraph 4 alleges, correctly, that Mr Rich has certain civil rights despite being a prisoner. Paragraph 5 alleges, correctly, that decisions made with respect to him as a prisoner are made under the applicable legislation, regulations and policies.

29 Paragraph 6 alleges the fact that on or about 13 July 2009 the defendants formulated a sentence management plan for Mr Rich containing certain elements. Paragraph 7 alleges the fact that Mr Rich was informed the plan would have to take into account him being a major offender. Paragraphs 8-14 make numerous allegations, apparently factual in nature, about the administration of the Major Offenders Unit at the prison and what Mr Rich was informed about the way the unit was operated.

30 Paragraph 15 alleges the defendants subjected Mr Rich to unlawful conduct in numerous respects, all involving alleged errors amendable to judicial review in abstract terms and unconnected with a particular decision or defendant. The allegations here are of wholesale administrative mismanagement of Mr Rich as a prisoner. Determining these allegations would convert the court into a prison regulator.

31 Paragraph 16 alleges the defendants engaged in practices which amounted to laches. How that is so is not particularised.

32 Paragraph 16 alleges numerous obstructions were placed in Mr Rich's way in his court preparation endeavours, his access to legal advice and his sending and receiving information (especially by computer) which, it is alleged, destroyed his standing as an equal citizen before the law. These again are allegations of wholesale administrative mismanagement of him as a prisoner, with specific reference to his access to court preparation facilities, but without specific reference to the decision, conduct or defendant concerned. The unstated and incorrect assumption is that the court can adjudicate these claims on the merits.

33 Paragraphs 18-24 allege Mr Rich informed the defendants of their unlawful actions in a great many respects. The allegations here, though extensive, are that Mr Rich informed the defendants of the matters alleged. I think these paragraphs should be taken as alleging that Mr Rich brought his claims to the attention of the defendants, but they refused to act on them.

34 Paragraphs 25 and 26 allege Mr Rich was informed by the defendants that the common law does not apply to him, which he disputes. Paragraphs 27 and 28 allege Mr Rich made representations and demands that have been ignored for more than six months, which has imperilled his legal preparations in certain respects. Paragraph 29 is a generalised allegation of unlawful impeding and obstructing.

35 From this point, the statement of claim sets out the orders sought by Mr Rich. The orders sought are very detailed and comprehensive. I do not think there is much to be gained by describing them paragraph by paragraph. I have noted and considered all of the relief claimed. I will give only a short account here.

• prohibitory injunctions (paragraphs 30, 31, 32, 37(f))

• mandatory ('interlocutory') injunctions (paragraphs 37(a), 37(b), 37(c), 38(a), 38(b), 38(c), 38(d), 38(e), 38(f), 38(g))

• declarations (paragraphs 34, 35, 36, 37(g) and 37(h))

37 The purpose of the orders is to achieve access by court order to the court preparation facilities which Mr Rich has not been able to access administratively. The mandatory injunctions and mandamus order would compel the defendants to give him that access. The prohibitory injunctions would prevent the defendants from impeding his access to such facilities. The declarations would substantiate his legal entitlement to the access. The certiorari order would quash decisions preventing that access.

38 In terms, the injunctions (prohibitory and mandatory) and the declarations sought are highly general and are not connected with particular decisions or conduct, particular facilities or resources or particular defendants. For example, in paragraph 30 a prohibitory injunction is sought

restraining the defendants to continue to act in a way that is incompatible with both his Human and Common Law Rights, in respect of the plaintiff's court preparation facilities and resources, on the grounds that:

(g) the plaintiff's as a prisoner in a public prison, has a right of unimpeded access to the court at law;

(h) the plaintiff as a prisoner in a public prison, has a fundamental right to be protected from conduct undermining the right of unimpeded access to the court at law;

(i) the plaintiff as a prisoner in a public prison, has a fundamental right to be protected from conduct undermining the entitlements connected he universality of his Human Rights;

(j) the plaintiff as a prisoner in a public prison, has a fundamental right to be protected from conduct undermining his procedural and common law entitlements;

(k) when the defendants universally subscribe to a notion that correctional 'policy' framework, is the leading provision, and that the legal framework (restricted to an access to the court issue viz Human and Common Law Rights) must therefore be the subordinate provision, are all acting ultra vires. [1]

39 Some of the relief sought is designed to compel the prison to be managed differently. For example, paragraph 37(c) seeks:

An order in the nature of a mandatory interlocutory injunction compelling the defendants, without any other consideration, prepare and distribute a new policy directive, setting out how the prison administration will support a prisoner litigant or defendant in a criminal proceedings in emailing, faxing, scanning, copying of primary documents, the acquisition of stationery items and consumables, the receipt and distribution of primary transcript, or other documents to, and from, a court or legal practitioner or an unrepresented prisoner litigant.

40 Much of the relief sought would compel the defendants to comply with their lawful obligations. For example, the injunctions sought in paragraph 37(f) relate to the legal requirement that the defendants respect and adhere to the provisions of ss 7, 8 and 9 of the Equal Opportunity Act 1995 and the Charter of Human Rights and Responsibilities Act 2006.

41 Some of the relief sought would compel the defendants to provide Mr Rich access to specific facilities and resources. For example, paragraph 38(e) requests a mandatory ('interlocutory') injunction 'compelling the defendants without any other consideration, to permit the plaintiff to receive electronic CD publications from any legal publisher through the mail.'

42 The written submission of Mr Rich explains more fully the claims made in the originating motion. The submission would be very pertinent to a properly drawn application for judicial review of a decision by the prison authorities to impede access by a prisoner to reasonable court preparation facilities. The decided cases are thoroughly discussed. Mr Rich draws attention to the correct principles and shows how they might apply to applications which a prisoner in his position, confronting such impeded access, might commence.

43 But the submission does not change the nature of the claims made in the originating motion. Nor is it possible, putting the submission and the originating motion side by side, to read the latter in a legally intelligible way.

44 Counsel for the defendants made a number of criticisms of the originating motion. Very fairly, he did not dispute it might be possible properly to draw an application, and he conceded a number of the legal propositions on which Mr Rich relied. But he submitted the claims in the originating motion were generalised, impossible to respond to, did not identify a decision or conduct capable of being judicially reviewed, did not identify the relevant defendants and sought relief which it was not proper for the court to give. Mr Rich had no real answers to these submissions.

45 A fundamental principle of the common law, which is recognised in s 8 of the Charter, is that a prisoner (like everyone else) is equal before the law. Prisoners are in prison as punishment not for punishment. The court will act to vindicate and enforce a prisoner's legal rights and obligations, just as they would with every other person. Being a public authority under the Charter, a prison (and those managing one) must act compatibly with the human rights of prisoners.[2] It is unlawful not to do so unless, under legislation, there is no other reasonable option.[3] People managing prisons have statutory powers. In respect of their decisions and conduct, the function of the judicial review jurisdiction of the court is to ensure they act within the scope of those powers. The court will be especially concerned to ensure a prisoner's right to a fair trial (or appeal) is not jeopardised by a lack of access to reasonable court preparation facilities, even more so where the prisoner is not legally represented.

46 But the courts will not make orders which amount to managing the prison system. The governing legislation confers on various nominated persons the responsibility to manage prisons and prisoners. That responsibility has not been conferred on the court. In cases like the present, the function of the court is to determine whether the prison authorities have exercised their statutory power and discretions according to law. Doing so might involve the application of legal principles such as excess of jurisdiction, error of law on the face of the record, relevant and irrelevant considerations, among others. These principles do not permit the court to review the merits of decisions made by prison authorities in the management of prisons or to substitute the preferred decision of the court for the decision of the authorities.

47 From the explanation I have given of Mr Rich's originating motion, it is clear the claims he makes do not conform to these principles. The application narrates the difficulties which Mr Rich has allegedly experienced with the prison authorities and asks the court generally to review his management as a prisoner. It invites the court to make orders which are couched in the language of the prerogative writs and judicial review but which, in reality, are of a very different character.

48 That is not to say there is definitely no possible legal dispute in the mass of matters alleged which is not capable of forming the basis of a properly drawn application. As the authorities recognise, prisoners are in a vulnerable position. They often lack access to legal advice. Most lack the legal skill which is necessary to prepare their own documents and they must rely on the assistance of others to do so. The general remarks I made in Tomasevic v Travaglini[4] in regards to the position of self-represented parties apply equally to prisoners. Therefore, when considering a summary dismissal claim in respect of proceedings commenced by a self-represented prisoner, the court is always concerned to ensure that a sound legal claim is not overlooked.

49 However, the application brought in Mr Rich's originating motion suffers from the root-and-branch difficulty that it is not drawn in terms of legal principles which it is the responsibility of the court to enforce, nor does it seek relief which the court could give. There are, however, other serious deficiencies to which I should refer.

50 It is generally necessary in an originating motion seeking judicial review to identify with precision:

• the person whose decision or conduct is being challenged

• the legal and factual basis of the challenge, including the grounds on which judicial review is sought

• the relief by way of judicial review which is being sought against the person, by reference to the legal grounds of the challenge to the relevant decision or conduct of the relevant defendant

51 That kind of properly drawn application is the diametric opposite of Mr Rich's originating motion. In his application:

• the defendants are named generally and not linked to any particular claim

• the decisions and conduct are not specified, but rather included in an abstract way in a narrative about Mr Rich's management as a prisoner

• the legal and factual basis of the challenge is not linked with any particular decision or conduct, but is included in an unspecified way in a generalised attack on Mr Rich's management as a prisoner

• the relief is not connected to any particular defendant or decision or conduct, nor is it connected to any particular legal ground

52 In the result, it is impossible to extract from Mr Rich's application any intelligible legal claim in respect of some decision or conduct of a particular defendant which he might otherwise be able to challenge.

53 For these reasons, I accept the submissions of the defendants that Mr Rich's originating motion should not be allowed to proceed.

54 In the circumstances, I think orders along these lines would be appropriate:

• the originating motion filed 11 January 2010 (S CI 2010 00093) is stayed until 1 November 2010 or further order

• Mr Rich has leave to file and serve amended points of claim by 1 November 2010 setting out succinctly:

• the person alleged to have made that decision or engaged in that conduct

• the legal and factual basis of the challenge in respect of the specified decision or conduct (as to each relevant defendant), including the grounds for alleging the decision or conduct was unlawful

• the relief sought in respect of each decision or conduct (as to each defendant), being relief in the nature of judicial review flowing from the grounds said to be established

• if Mr Rich does not file and serve such amended points of claim by 1 November 2010, the originating motion filed 11 January 2010 (S CI 2010 00093) is hereby struck out

• the originating motion filed 17 February 2010 (S CI 2010 00838) is struck out

• determination of the defendants' objections to answering the plaintiff's subpoenas dated 20 January 2010 and 18 July 2010, and applications to set aside those subpoenas, is adjourned to a date to be fixed

55 I will hear the parties on the proposed dates and make orders accordingly.

[1] Paragraph 30 is here set out as paragraph 30(g)-(k) as it is in the statement of claim.

[2] Section 38(1).

[3] Section 38(2).

[4] [2007] VSC 337; (2007) 17 VR 100.