Plaintiff v First Named Defendant

2 In his summons, the plaintiff seeks the following relief:

(1) An order requiring the Prison Authority at Barwon Prison to provide appropriate computer facilities to enable him to comply with orders of the court, and, in particular, the order of Associate Justice Lansdowne of 20 June 2013.

(2) An order requiring the Prison Authority to fulfil its "statutory obligations under the Commissioner's requirements and ... under ss 24 and 25 of the Charter of Human Rights and Responsibilities Act 2006".

(3) Alternatively, an order exempting the plaintiff from being required to comply with the Supreme Court Rules and the requirements of any order of the court.

3 The plaintiff's application is supported by three affidavits affirmed by him on 16 July, 7 September and 16 September respectively. In response, the defendants rely on an affidavit by Jonathan Howe, the Acting General Manager of Barwon Prison, sworn 5 September 2013.

4 The plaintiff's first affidavit commences by explaining why the plaintiff did not have the opportunity to appear, by audio visual link, before Associate Justice Lansdowne at a directions hearing on 20 June. The plaintiff further states that because of difficulties which he then experienced in having adequate access to computer facilities, he was unable to fulfil the requirements of the directions made by the Associate Justice on that day. In particular, on 1 July 2013 he commenced to work on the unit computer, which was located in a "programs room" in the Banksia Unit, at about 8.45 am. However, at about 9.10 am, Mr Bellamy, the Information Technology officer for the Barwon Prison complex, required the plaintiff to cease work on the computer, since Mr Bellamy had been instructed to remove the computer hard drive in order to conduct an audit on it. The plaintiff advised Mr Bellamy that the computer contained information which was the subject of legal professional privilege. He deleted material which related to his legal proceedings from the hard drive, after first saving it on a disc. Mr Bellamy then removed the hard drive from the unit computer.

5 The computer was returned to the programs room in the Banksia Unit on 2 July. The plaintiff states that he was refused access to the computer on that day, because the programs room was being used for the Sentence Management Unit (SMU) meeting. On 3 July, the plaintiff was again informed that the programs room was booked for other uses. On 4 July, he had access to the computer for one hour and forty minutes, on 5 July he had access to the computer for two hours, on 6 July he had access to it for less than one hour, and on 7 July he had access to it for two hours. On the next day, 8 July, when the plaintiff commenced to work on the computer, he could not gain access to any file under the heading of "Supreme Court". As a result, Mr Bellamy attended and attempted to remedy the problem, and to recover the material which had been entered by the plaintiff from the unit hard drive. On the next day, 9 July, Mr Bellamy provided the plaintiff with a disc of the material which he was able to recover. However, none of the information on that disc related to the documents prepared by the plaintiff in response to the order of Associate Justice Lansdowne.

6 The plaintiff then worked "as diligently as possible" on preparing the relevant legal documents between 8 July and 12 July. However, on 12 July he again found that he could not access any of the discs which he then had in his possession. The problem could not be attended to on that day, because Mr Bellamy was not on duty. On Monday 15 July, Mr Bellamy attended and removed the computer hard drive, in order to attempt to save the material that the plaintiff had prepared for these proceedings. Mr Bellamy was able to recover some of the material, but he was unable to recover a substantial part of it.

7 In response to the problem, Mr Bellamy added a special partition on the computer hard drive, so that the plaintiff could save his material on the hard drive, rather than on a floppy disc, and so that the plaintiff could maintain some security over that documentation. The plaintiff was advised by the prison authorities that, notwithstanding the difficulties which he had experienced, he would not be given any additional time to use the computer facilities in order to enable him to comply with the orders made by Associate Justice Lansdowne on 20 June.

8 In response, the defendants filed an affidavit sworn by Jonathan Howe, the acting general manager of the Barwon Prison complex. Mr Howe deposes that while the plaintiff has been in the Banksia Unit at the prison, he has been granted facilitated access to the Banksia Unit computer, which is located in the programs room for that unit. The computer is normally accessible to prisoners in the Banksia Unit between 9.00 am and 3.30 pm. It is booked by staff on behalf of prisoners, by using a booking register.

9 Mr Howe further deposed that, after the general manager at the prison, Mr Norman, had received correspondence from the plaintiff concerning his access to computer facilities, staff at the Banksia Unit organised for the plaintiff to have a standing reservation of the unit computer between 8.30 am and 10.30 am daily. Mr Howe set out in his affidavit details of the hours over which the plaintiff had access to the unit computer between 27 June and 28 August. That information was compiled from records kept by prison staff. In summary, Mr Howe deposed that the plaintiff had the following access to the computer:

• Between 27 June and 30 June (inclusive) - 8 hours 55 minutes.
• Between 1 July and 10 July - 17 hours.
• Between 15 July and 31 July - 53.75 hours.
• Between 1 August and 28 August - 78 hours.

10 Mr Howe referred to a letter sent by the plaintiff dated 26 June 2013, by which the plaintiff sought to lease a computer through the computer lease program operating at the Metropolitan Remand Centre. In response, Mr Norman, by letter dated 27 June, confirmed that the plaintiff had facilitated access to the unit computer, and noted that the computer lease program was not offered at Barwon Prison. The plaintiff was advised that the options available to him were shared access to unit computers, or by applying for an in-cell computer in accordance with the Deputy Commissioner's instruction. The plaintiff was not permitted to have an overnight "in-cell" use of a computer outside the process set out in that instruction, because the arrangements made for him to access the unit computer were adequate, and it would not be appropriate for him to have access to a computer in his cell overnight.

11 In his further affidavit of 7 September, the plaintiff described how, late on 5 September, he was served with documents, including Mr Howe's affidavit, which were relevant to the application which was to be heard before the Chief Justice in the Practice Court on the next day. On 6 September, at 10.30 am, he received an envelope of further documents served on behalf of the defendants. The documents were incomplete, and every second page of the documents were missing. At 12.09 pm the plaintiff was served with a further envelope containing documents, which had the same deficiency.

12 In that affidavit, the plaintiff also deposed to the following matters which are relevant to this application:

• In October 2012, the plaintiff was transferred from the Charlotte Unit at the Port Philip Prison to the Exford Unit at the Metropolitan Remand Centre. During that transfer, a substantial quantity of legal text books, and Acts of Parliament, owned by the plaintiff, became lost, and have not been returned to the plaintiff. Some of those materials are relevant to the present proceeding. The plaintiff has been informed by prison authorities that those materials would be replaced, but, to date, he has not received any replacement materials.
• Prisoners held within the Acacia Unit and the Melaleuca Unit, which are the highest security units, in Barwon Prison, are entitled to have unit computers within their own cells twenty four hours per day to prepare legal documents in respect of cases in which they are presently involved. Similarly, all prisoners at the Metropolitan Remand Centre are entitled to hire computers from the Prison Authority.
• The plaintiff has been provided with his own dedicated computer which is attached to a trolley, so that it may be moved out of the programs room for the Banksia Unit if that room is required for other purposes. However, that solution has proven to be impracticable, because the plaintiff is required to use it, on such occasions, in a cell which is in a quite public place, where he is subjected to a number of interruptions.

13 The plaintiff has made a third affidavit affirmed 26 September 2013. In it he stated that at 8.58 am on Monday 23 September he received from a Banksia Unit staff member an envelope containing documents forwarded by the solicitors acting for the defendants. The documents had apparently been received by the prison complex on the previous Friday, 20 September. The time for service of the documents by the defendants had been extended, by order made by Associate Justice Lansdowne to 20 September.

14 The plaintiff appeared in person by audio visual link. He presented his submissions in a logical, coherent and well organised manner.

15 The plaintiff submitted that he needed to be provided with an in-cell computer in order to be able to conduct his case properly. He referred to the fact that his text books and Acts of Parliament had been lost in the transfer from Port Philip Prison to the Metropolitan Remand Centre, and that those materials are still not being replaced. In addition, he described the inconvenience and difficulty occasioned to him by the late provision of documents by the defendants on 5 September, 6 September and 23 September 2013. He submitted that the late provision of documents by the defendants added to the difficulties which he has experienced in properly preparing his case. He submitted that he should not be required to seek indulgences from the court, such as extensions of time, in order to be able to comply with the orders of the court, which have been occasioned by the late service of documents on him, and his lack of access to a computer.

16 The plaintiff further pointed out that other prisoners in Barwon Prison, and in particular those in high security units, have been provided with their own in-cell computers. In particular, they have been provided with computers to enable them to prepare for cases in which they are involved, or for educational purposes. The plaintiff submitted that he should have an equal right of access to such a computer.

17 In response, Mr Brown, who appeared for the defendants, pointed out that, after the plaintiff had been unable to attend before Associate Justice Lansdowne on 20 June, her Honour, by orders made on 26 July, extended the time for the plaintiff to comply with a number of the requirements specified in the early order. Mr Brown stated that the plaintiff has been able to comply with each of those requirements, and therefore the order sought in paragraph 1 of the summons is now unnecessary. He further submitted that all procedural steps have now been completed in the case, and that a directions hearing is due to be heard on 4 October, with a view to setting the case down for trial.

18 In response to questions from myself, Mr Brown stated that there are a number of other prisoners in Barwon Prison who do not have access to in-cell computers. He drew my attention to the policy document issued by Corrections Victoria, entitled "Commissioner's Requirement," dated 14 December 2013, concerning prisoner computers. That document specifies the eligibility criteria for provision of a computer to a prisoner. In particular, it provides (in paragraph 4.02):

"Access to an in-cell computer for outstanding civil matters will be approved only in exceptional circumstances."

19 Mr Brown advised me that the prisoners, to whom the plaintiff had referred in his submissions, each had outstanding criminal matters, either at trial level, or on appeal. It was for that reason that those prisoners had been granted access to in-cell computers. Mr Brown reiterated that there are no outstanding matters which are required to be performed by the plaintiff in accordance with the directions so far given in the case. He submitted that if a problem were to occur in the future, then the trial judge would be able to deal with that problem, by granting an adjournment to the plaintiff.

20 In reply, the plaintiff told me of the difficulties, which he had experienced in using a computer after he had been transferred to the Banksia Unit at Barwon Prison. In particular, he had been required to use the computer during the time of the day at which he would otherwise be entitled to have fresh air and exercise. He again referred to the late service of documents on him by the defendants, and he submitted that that conduct by the defendants gives little reason for confidence that, for the remainder of this case, the plaintiff will provide documentation to the plaintiff within sufficient time to enable him to respond to it, unless he is provided with an in-cell computer. He further submitted that a high proportion of the prisoners in the Acacia and Melaleuca Units at Barwon Prison have their own in-cell computers, and that, accordingly, he should be granted the same right.

21 The plaintiff, in effect, is seeking relief from this Court, by way of interlocutory injunction, to enable him to present his case to court. The principles, which are applicable to such an application, have been referred to in a number of recent authorities. They may be summarised, briefly, as follows:

(1) Each individual has an established common law right to unimpeded access to the courts of the State, as part of the basic right to a fair trial.[1]

(2) A prisoner, such as the plaintiff, has the same civil rights and privileges as any other citizen, including the right of access to the courts. That right inheres in each individual in both civil and criminal litigation.[2]

(3) That right may be infringed where, in the case of a prisoner, the prison authorities take steps which effectively prevent the prisoner properly presenting his or her case to court.[3]

(4) The court will only intervene to protect that right if the action, or inaction, of the prison authority, would have the effect of preventing a person from effectively accessing the court. As Lasry J stated in R v Rich (Ruling No 2):[4]

"In my opinion it would obviously be very convenient for the accused to have a laptop computer but that is not the test. The question is whether such a facility is integral to the fair trial of the accused or, put in other words, whether without a laptop computer his trial will be unfair such as to justify a stay."

22 In considering an application such as the present, it is important to bear in mind that the question is not whether the court agrees, or disagrees, with the action, or lack of action, by the particular prison authority. Rather, and importantly, the question is whether the action, or inaction, of the defendants and the prison authority, would preclude the plaintiff from having effective access to the court in this case. The reasons for that approach are set out, in a slightly different context, by Kyrou J in Knight v Deputy Commissioner, Corrections Victoria,[5] as follows:

"There are sound constitutional and practical reasons why this Court cannot substitute its own view for the view of Corrections Victoria. Under our Constitution, it is the executive - acting through Corrections Victoria - rather than the judiciary that administers the laws relating to prisoners. As a result, Corrections Victoria is far more knowledgeable and experienced than this Court can ever be about issues concerning the management of prisoners - including education, welfare and security - that inform the framework within which decisions affecting prisoners are made."

23 In similar terms, in Fyfe v State of South Australia,[6] Curtin J stated:

"There can be no question that it is the duty of this Court to conduct a careful review and to closely scrutinise the reasons advanced for the decision. Prisoners are in a position of particular disadvantage. Any abuse of power by prison authorities is unacceptable and can often have serious ramifications. At the same time, however, the limits of the court's jurisdiction must be carefully observed and the court must avoid becoming enmeshed in the merits of particular decisions. The management of prisons is a particularly difficult and sensitive task involving complex practical considerations and security implications with which the court is not familiar and which it is difficult for the court to understand or fully appreciate from the comfort of the court's surroundings."[7]

24 The question, then, is whether there is a serious issue that the defendants, by their conduct, have deprived, or are likely in the future to deprive, the plaintiff from having effective access to the court in the proceeding in the manner to which I have just referred, unless he is permitted to have an in-cell computer.

25 It is clear that the plaintiff has suffered some inconvenience and difficulty as a result of the matters which I have outlined. The collective effect of the loss of his legal text books, the earlier problems which he experienced in gaining computer access, the limited hours of his computer access, and the late service upon him of documents by the defendants, have, in combination, rendered the presentation by the plaintiff more difficult than it ought to be. On the other hand, and notwithstanding those matters, the affidavit of Mr Howe demonstrates that, at least until relatively recent times, the plaintiff has had a substantial amount of computer time provided to him by the authorities at the Banksia Unit. In the course of submissions, the plaintiff told me that there had been some difficulties in having the same level of access in the last two weeks. Nevertheless, it is relevant, as Mr Brown has observed, that the plaintiff has been able to comply with the time limits prescribed by Associate Justice Lansdowne, and as extended by the order made by her Honour on 26 July.

26 As I understand it, the hearing, which is due to take place before Associate Justice Lansdowne on 4 October (tomorrow) next, will be a directions hearing. It would seem that the case is ready to be set down for trial, other than that the plaintiff may wish to respond to the affidavit material which was served on him on 23 September. I understand that, presently, there is usually a delay of approximately nine months between setting down cases such as this proceeding, and the trial date. Thus, if the case is set down for trial on 4 October next, the plaintiff will have a significant period of time within which to prepare his case for trial. I would not anticipate that the plaintiff would require to be provided with an in-cell computer to enable him to undertake sufficient preparation for trial during that period. No doubt it would be more convenient to the plaintiff to be provided with an in-cell computer for that period. However, on the material so provided to me in this case, I would not be able to conclude that there is a serious issue that there is a likelihood, or risk, that the plaintiff would not be able to prepare his case adequately during such a period of time, unless he is provided with an in-cell computer.

27 I have been more troubled by the question whether the plaintiff will have sufficient access to computer facilities in the period close to his trial, in order that his right to properly access this Court is not interfered with. As I stated in the course of argument, I do not consider that it is sufficient for the defendants to meet that concern by contending that, if the plaintiff were provided by the defendants with further materials at a late stage, he would be entitled to an adjournment in order to be able to respond to it. The plaintiff is entitled to effective access to the court, and not access facilitated by a process of delay and adjournment.

28 However, the trial will, principally, be on affidavit. The plaintiff has filed a number of affidavits in support of his claim for principal relief in the proceeding. The defendant has filed one affidavit in response, an affidavit of Kevin White, sworn 19 September 2013. Mr White was responsible for conducting the hearing of the disciplinary charges against the plaintiff. It is that hearing which is the subject of the present proceeding.

29 I appreciate that the claim by the plaintiff may involve some disputed questions of fact, as well as questions of law, but I would expect that those questions of fact would be in a reasonably narrow compass. In those circumstances, I do not consider that the concerns, which have been raised by the plaintiff, are sufficient to enable me to conclude that there is a serious issue that, unless the plaintiff has an in-cell computer, he may be deprived of his right of access to the court in accordance with the authorities to which I have earlier referred. For those reasons, I do not consider that the material before me is sufficient to entitle the plaintiff to an injunction requiring the Barwon Prison authorities to provide him with an in-cell computer.

30 That conclusion is based on my assessment of the adequacy of the computer facilities available to the plaintiff so far, in ensuring to the plaintiff his right to effective access to the courts. If events were to occur before trial, which obstructed that access, the issue may need to be revisited by this Court.

31 In particular, it is important that the prison authorities ensure that the plaintiff does have adequate access to a computer, particularly in the week or so leading to his trial, and during his trial. It is equally important that the defendants to the litigation take into account the fact that the plaintiff is unrepresented, and that he is preparing his case in the difficult environment of a prison. The defendants must allow for the fact that there may be some delay between the delivery by them of documents to the prison, and the receipt of these documents by the plaintiff. It is the obligation of the defendants to ensure that the documents are received by the plaintiff, and thus served on him, within an appropriate time frame. In doing so, the defendants should be astute to serve material on the plaintiff in sufficient time to enable him to consider it, and to respond to it, bearing in mind the limited access which he has to computer facilities in the prison complex.

32 Nevertheless, for the reasons I have stated, I am not satisfied that there is a serious issue that the plaintiff's right of access to court has been, or will be, interfered with, in the absence of the provision to the plaintiff of an in-cell computer. Accordingly, the application made by the plaintiff, by his summons dated 18 July 2013, should be dismissed.

[1] Knight v Wise [2011] VSC 313, [32] (Hollingworth J); see also Charter of Human Rights and Responsibilities 2006 (Vic) s 24(1).

[2] Rich v Groningen [1997] VSC 35; (1987) 95 A Crim R 272, 287 (Gillard J); Raymond v Honey [1983] 1 AC 1.

[3] Rich v Groningen [1997] VSC 35; (1987) 95 A Crim R 272, 287.

[4] [2008] VSC 141, [66].

[5] [2012] VSC 506, [50].

[6] [2000] SASC 84.