Plaintiff v First Defendant Second Defendant Third Defendant

1 On 10 August 2011, Judith Moran was sentenced to a term of 26 years' imprisonment with a 21 year non-parole period for the murder of Desmond Moran. From on or about 12 December 2012 until 25 April 2015, Ms Moran was accommodated in the Margaret Unit at the Dame Phyllis Frost Centre ('DPFC'). The Margaret Unit is cottage style accommodation where prisoners are expected to prepare their own food and undertake their own cleaning duties.[1] On 26 April 2015, Ms Moran was transferred from the Margaret Unit to a cell in the Swan Unit at DPFC ('transfer decision'). The transfer decision is the subject of an application for orders in the nature of certiorari and mandamus pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005, as well as a claim for declaratory relief.

2 The applications for certiorari and mandamus are dismissed. The decision to transfer Ms Moran from the Margaret Unit to the Swan Unit is a decision of an administrative character. Although it had significant practical effects on Ms Moran, it has not affected any legal right amenable to relief by way of certiorari or mandamus. Alternatively, if the transfer decision is amenable to judicial review, there are significant discretionary considerations which weigh against the grant of the relief. The claim for declaratory relief is also dismissed. None of the grounds of unlawfulness which underpin the application for declaratory relief are made out.

3 Plainly, Ms Moran's transfer from the communal accommodation in the Margaret Unit to a single cell in the Swan Unit had a significant practical impact upon her. Her current accommodation is significantly more restrictive than that which she enjoyed whilst in the Margaret Unit. Nevertheless, if the transfer decision is an administrative decision which does not impact upon her legal rights, the decision is not amenable to judicial review.

4 At the outset, it is necessary to consider the legal framework governing the movement of prisoners within DPFC. The relevant provisions are contained in the Corrections Act 1986 ('the Act'). Both Ms Walsh, who appeared for Ms Moran and Mr Brown, who appeared for the defendants, submitted that the source of power to transfer a prisoner within DPFC, is ss 20 and 21 of the Act.

Section 20 provides:

1. An officer in charge of a prison or part of a prison must take all reasonable steps for the security of the prison or part of the prison.
2. An officer in charge of prisoners must take all reasonable steps for the safe custody and welfare of the prisoners.

Section 21 provides:

1. The Governor of a prison is responsible for the management, security and good order of the prison and the safe custody and welfare of the prisoners.

5 Both Ms Walsh and Mr Brown acknowledged that there is no specific provision in the Act which regulates the transfer of prisoners within a prison. The source of powers governing the transfer of prisoners is to be found in the general powers set out above. It is to be noted that whilst there is no specific provision regulating the transfer of prisoners within a prison, s 47 of the Act prescribes 15 discreet 'prisoner rights'.

6 Although none of the rights prescribed by s 47 of the Act deals specifically with the issue of accommodation within a prison, Ms Walsh submitted that s 47(1)(c) is relevant to the current proceedings. This section provides that every prisoner has:

the right to be provided with special dietary food where the Governor is satisfied that such food is necessary for medical reasons or on account of the prisoner's religious beliefs or because the prisoner is a vegetarian;

7 Ms Moran's solicitor, Mr Michael Cunningham, filed an affidavit in which he deposed to Ms Moran's special dietary requirements.[2] The affidavit annexed a medical certificate dated 9 May 2015 in which a medical officer certified that due to a medical condition Ms Moran needs 'low fat, more vegetable and fibre diet'. Mr Cunningham deposed that Ms Moran had provided both the certificate and list of her special dietary requirements to the kitchen staff at DPFC but the staff were unwilling to comply with these requirements.[3] Since her transfer, Ms Moran has received the standard kitchen food provided to the general inmate population at DPFC.

8 The evidence regarding Ms Moran's special dietary requirements falls short of enlivening the right prescribed by s 47(1)(c) of the Act. The existence of that right is contingent upon 'the Governor being satisfied' that special dietary food is necessary for medical reasons or on account of a prisoner's religious beliefs or because the prisoner is a vegetarian. There is no evidence that the Governor of DPFC is satisfied that Ms Moran needs to be provided with special dietary food for medical reasons. The fact that Ms Moran has received standard prison food since her transfer points to the contrary conclusion.

9 Further, assuming that Ms Moran established an entitlement to the right to receive special dietary food as prescribed in s 47(1)(c) of the Act, it does not follow that this would provide a basis for quashing the transfer decision and requiring the defendants to transfer Ms Moran back to the Margaret Unit. The existence of a right under s 47(1)(c) could underpin an order requiring the defendants to provide food in accordance with Ms Moran's special dietary requirements. However, it would be a matter for the defendants as to how they complied with any such order. Such compliance would not necessarily require Ms Moran to be accommodated in the Margaret Unit.

10 Ms Walsh also submitted that the transfer decision had been motivated by the defendants' belief that Ms Moran had engaged in conduct in the nature of prison offences, but that Ms Moran had not been treated in accordance with any of the rights (including to procedural fairness) which would have applied if she had actually been charged with a prison offence.

11 Mr Money, the Assistant Commissioner of the Sentence Management Branch of Corrections Victoria, gave unchallenged evidence that Ms Moran was transferred

...due to concerns that he held about unrest in the Margaret Units and a need to take some action to preserve the security and safety of the prisoners and staff at DPFC.[4]

12 Mr Money set out the terms of correspondence between himself and Mr Cunningham which included the following:

...

Prison staff reported an increased unrest in the Margaret 4 Unit during April 2015. The reports were based on prison staff's observations and reports from prisoners that a large number of prisoners were visiting Margaret 4, and it appeared that Ms Moran was exercising an unhealthy level of influence on those prisoners and the other prisoners within the Unit. There were specific allegations that Ms Moran was threatening prisoners, or other prisoners said they were being threatened on her behalf.

...

Part of Ms Moran's threats have included her saying she is well connected, and threatening later harm. Ms Moran appears to have some control over some prisoners. This behaviour is not conducive to the 'open style' of the Margaret Unit. After the incident on 23 April 2015 when two prisoners assaulted each other, and one of those prisoners then self-harmed, those prisoners and later Ms Moran were relocated into cell accommodation, whilst Prison Management reviewed the dynamics amongst the women, their interaction, and the influence of Ms Moran on other prisoners.[5]

13 Ms Moran denies that she has engaged in any of the conduct set out above. Ms Walsh submitted that the allegations against Ms Moran are in the nature of prison offences but that, because Ms Moran has never been formally charged with a prison offence, she has not been afforded the rights prescribed by the Act.

14 'Prison offence' is defined in s 48 of the Act as a contravention of the Act or the Corrections Regulations 2009. Section 50(2) of the Act provides that where a prisoner is alleged to have committed a prison offence, the prisoner must be given an opportunity of making an explanation. Section 50(5) of the Act provides that if a disciplinary officer is satisfied the prisoner has committed the offence, the officer may:

1. reprimand a prisoner; or
2. withdraw one of the prisoner's privileges for less than 14 days; or

15 If a prisoner is charged with a prison offence, the Governor may conduct a hearing of the charge or take steps to have the matter dealt with under the criminal law.[6] If at a Governor's hearing the prisoner is found guilty of the offence, pursuant to s 53(4) of the Act the Governor may impose any of the following penalties:

1. a reprimand;
2. a fine not exceeding 1 penalty unit;

1. withdrawal of one or more of the prisoner's privileges for a period not exceeding 14 days for each prison offence committed, but not exceeding in total 30 days.

16 Ms Walsh submitted that by failing to formally charge Ms Moran with a prison offence, the defendants had circumvented the process required under the Act:

Nothing has happened, nothing has been put to the client. No charges, no interview. The allegations weren't put. Nothing. So they have reacted to matters in the nature of prison offences, they have treated her in a way as if the offences have been proven against her by moving her to a worse form of accommodation to a more restricted form of accommodation and yet, they haven't put her through the process.[7]

17 There are two flaws in the submission set out above. First, if Ms Moran had been formally charged with prison offences in relation to the allegations set out in Mr Money's affidavit, and those charges had been proven, this would not have resulted in the transfer decision. Ms Walsh accepted that the powers available to prison management in the event of prison offences being proved do not include transferring a prisoner to more restrictive accommodation.[8]

18 Second, Ms Walsh accepted that the evidence supported a finding that the transfer decision had been taken for the safe custody and welfare of prisoners in accordance with s 20(2) of the Act.[9] Section 20(2) is a source of power to transfer a prisoner, provided the decision maker has addressed the question of whether it is necessary to do so for the safe custody and welfare of the prisoners. A decision maker will not fall into jurisdictional error if they address the question required by an Act, even though the question may be answered erroneously.[10] Contrary to Ms Walsh's submission, the fact that Ms Moran was not given an opportunity to respond to allegations prior to the transfer does not mean that there was no power to transfer her from the Margaret Unit.

19 Ms Walsh submitted that the failure to accord Ms Moran procedural fairness meant that the transfer decision was amenable to judicial review. A denial of procedural fairness will not found an entitlement to judicial review unless the decision under challenge has a legal effect, or alternatively, is a step in a process capable of altering legal rights, interests or liabilities.[11]

20 The transfer decision did not have any legal effect or consequence upon Ms Moran. Ms Moran had no right to be accommodated in the Margaret Unit. At its highest, Ms Moran had a right not to be transferred unless the transfer decision addressed the safe custody and welfare of prisoners, including Ms Moran. These matters were addressed.

21 A further obstacle to the grant of certiorari is that if mandamus is unavailable, there is no utility in granting certiorari. Mandamus will only be granted where there is an enforceable duty. The defendant was not subject to any duty to accommodate Ms Moran in the Margaret Unit. So much is clear from the order sought in the further amended originating motion filed 5 June 2015. Paragraph 2 seeks mandamus 'to compel the defendants to exercise their discretion to move the plaintiff back into the Margaret Units at the DPFC' (emphasis added). Mandamus is not available to compel the exercise of a discretion.[12]

22 In addition to seeking orders in the nature of certiorari and mandamus, Ms Moran also sought a declaration that she was denied procedural fairness in the making of the transfer decision. In Ainsworth v Criminal Justice Commission[13] the High Court observed:

It is now clear that a duty of procedural fairness arises, if at all, because the power involved is one which may "destroy, defeat or prejudice a person's rights, interests or legitimate expectations". Thus, what is decisive is the nature of the power, not the character of the proceeding which attends its exercise.[14]

23 In Kioa v West,[15] Mason J stated that what is appropriate in terms of procedural fairness depends on the circumstances of the case and will include, inter alia, the nature of inquiry, subject matter and the rules under which the decision maker is acting:

In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.[16]

24 The nature of the power governing the transfer decision was such that Ms Moran did not have a right nor a legitimate expectation to reside in the Margaret Unit. Due regard must be had to this when considering the existence or parameters of any obligation to accord Ms Moran procedural fairness in respect of the transfer decision.[17]

25 Ms Moran's accommodation within DPFC was a matter to be determined by the defendants, subject to due consideration being given to the security and welfare of prisoners. If the transfer decision was based, not on considerations of prisoner welfare and security but as a form of punishment for Ms Moran, there may be a basis for concluding that the decision gave rise to obligations to accord her procedural fairness. However, the unchallenged evidence of Mr Money is that the rationale for the transfer was not to punish Ms Moran but to ensure the safety and security of all prisoners in Margaret Unit. This rationale is supported by the fact that the five inmates who were in Margaret Unit in April 2015 were all transferred out of Margaret Unit within five days of Ms Moran's transfer on 26 April 2015.[18]

26 In considering the existence or scope of any obligation of procedural fairness, the absence of any express right under the Act for a prisoner to have accommodation in a particular section of a prison is significant. In Kelleher v Commissioner, Department of Corrective Services[19] McInerney J cited with approval the observations of White J in Bromley v Dawes:[20]

The presumption in favour of the citizen does not apply in favour of the prisoner, as the cases show. He is deprived of all of a citizen's rights except those which are preserved by the Prisons Act. There must be clear words, apt words, which preserve those rights.[21]

McInerney J concluded that where a statute is silent, a prisoner's right to seek judicial review has generally been given a restrictive interpretation.[22] Neither party submitted that Ms Moran had a statutory or common law right to a particular standard of accommodation. The absence of such right points strongly to the conclusion that a decision to move a prisoner within a prison is of an administrative/managerial character, not subject to a right of judicial review and not subject to obligations to afford procedural fairness. I agree with the observations of Nettle JA (as His Honour then was) in Anderson v Pavic[23] that it is:

...unlikely that Parliament should have intended that the courts sit in judgment upon questions of fact routinely decided by prison authorities in the course of management and administration of the prison for which they are responsible.[24]

27 Ms Walsh also submitted that the transfer decision was unlawful by reason of being tainted by irrelevant considerations or alternatively a failure to take account of relevant considerations. The irrelevant considerations were said to be constituted by unverified allegations concerning Ms Moran's behaviour towards other prisoners. The relevant considerations were said to be constituted by the health and dietary needs of Ms Moran and her good record of behaviour as a prisoner. The ground of failure to take into account a relevant consideration can only be made out for the purposes of judicial review if a decision maker fails to take into account a consideration which he is bound to take into account in the making of that decision. The same principle applies in respect of the taking into account of irrelevant considerations.[25] None of the considerations pointed to by Ms Moran were required by statute. This ground of challenge must therefore fail.

28 Ms Walsh also submitted that the transfer decision was unlawful by reason of being manifestly unreasonable. This ground of challenge must be rejected. The unchallenged evidence of Mr Money is that the rationale for the transfer decision was for the safe custody and welfare of the prisoners. Ms Walsh accepted this to be so.[26] The decision maker has addressed the relevant statutory criteria. There is no basis for contending that the decision to transfer Ms Moran to more restrictive accommodation was manifestly unreasonable.

29 If, contrary to the reasons set out above I had concluded that the transfer decision did adversely affect Ms Moran's legal right or legitimate expectation to be accommodated in the Margaret Unit, I would nevertheless have declined to grant certiorari or declaratory relief on discretionary grounds.

30 Declaratory relief is granted or refused within the discretion of the court.[27] To similar effect, it is well established that certiorari is a discretionary remedy.[28]

31 The transfer decision which is the subject of the present proceedings is a decision of a type routinely made in the course of the management and administration of a prison. Save for a case in which judicial intervention is warranted, Courts should be hesitant to overrule decisions taken in the ordinary course of management and administration of a prison. On the evidence presented before the Court, there is no basis for concluding that the transfer decision was motivated for reasons other than those prescribed by the Act, namely prisoner security and welfare. Ms Moran's application is dismissed.

[1] Affidavit of Brendan Francis Money sworn 17 July 2015, Exhibit D1 [9].

[2] Supplementary Affidavit of Michael David William Cunningham affirmed 18 May 2015, Exhibit P6.

[4] Affidavit of Brendan Francis Money sworn 17 July 2015, Exhibit D1 [8].

[6] Corrections Act 1986 s 51(c)-(d).

[7] Transcript of proceedings, Moran v Secretary to the Department of Justice and Regulation and Ors (Supreme Court of Victoria, S CI 2015 02175, McDonald J, 30 September 2015) T18 LL10-18.

[10] Fertility Control Clinic v Melbourne City Council [2015] VSC 424 [22] and the cases cited therein.

[11] Ainsworth & Anor v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 580; Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors [2013] HCA 43; (2013) 252 CLR 480 [25]; Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 159.

[12] Plaintiff M61/2010E v Commonwealth of Australia & Ors [2010] HCA 41, [99]-[100].

[13] [1992] HCA 10; (1992) 175 CLR 564.

[15] [1985] HCA 81; (1985) 159 CLR 550.

[17] Cf R v Classification Committee; Ex parte Finnerty [1980] VicRp 53; (1980) VR 561, 570 (Kaye J).

[18] Supplementary Affidavit of Michael David William Cunningham affirmed 18 May 2015, Exhibit P2 [11].

[19] [1999] NSWSC 86.

[20] (1983) 34 SASR 73.

[22] Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 [10].

[23] [2005] VSCA 244 [33].

[24] See also White v Lacey [2012] VSC 175 [15] (Hargrave J); Rich v Groningen & Ors [1997] VSC 35; (1997) 95 A Crim R 272, 274 (Gillard J).

[25] Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors [1986] HCA 40; (1986) 162 CLR 24, 39 (Mason J).

[26] Transcript of proceedings, Moran v Secretary to the Department of Justice and Regulation and Ors (Supreme Court of Victoria, S CI 2015 02175, McDonald J, 30 September 2015) T21 LL17-28.

[27] XX v WW and Middle South Area Mental Health Service [2014] VSC 564 [45]; AWB Limited v Cole & Anor (No. 2) [2006] FCA 913; (2006) 233 ALR 453; Ambridge Investments Pty Ltd (In liq) (Receiver Appointed) v Baker and Ors [2010] VSC 59 [61]-[73].

[28] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 89; Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372, 394.