Plaintiff v Proposed defendant

2 By an originating motion and summons dated 11 October 2012, Mr Knight sought leave pursuant to s 21(4) of the Supreme Court Act 1986 (Vic) to commence proceedings against Mr Selisky in respect of the interception by him of two letters of Mr Knight's.

3 In Knight, I set out the principles governing the determination of an application for leave, as follows:[2]

The interpretation and application of s 21(4) were dealt with by the Court of Appeal in its recent decision in Phillip Morris Ltd v Attorney-General (Vic).[3] That case decided s 21(4) operated to confer a discretion to grant leave which is enlivened after the court becomes satisfied the proceeding would not be an abuse of process.[4] The onus is on the applicant to so satisfy the court.[5] In considering whether a proceeding would be an abuse of process, it is sometimes relevant to consider its prospects of success, but in a strictly limited respect. The issue is whether the proceeding is foredoomed to fail, not whether it has reasonable grounds.[6]

4 As can be seen from this statement, the applicant for leave must establish that the proposed proceeding would not be an abuse of the process of the court in the sense of being foredoomed to fail. If that question is answered in favour of the applicant, discretionary considerations must then be considered.

5 The decision complained of was made by Mr Selisky on 20 February 2012. It was a decision to stop two letters written by Mr Knight being sent to two other prisoners. Mr Selisky made the decision under s 47D(2)(a) of the Corrections Act 1986 (Vic) as a delegate of the Governor of Port Phillip Prison.

6 Under s 47(1)(n), subject to s 47D, Mr Knight has the right to send to and receive from anybody letters uncensored by prison staff. By s 47(1)(m), subject to ss 47A and 47B, he has the right to send to and receive from specified persons letters without them being opened by prison staff. It is ss 47(1)(n) and 47D which are relevant in the present case.

7 Section 47D(1) provides that the right to intercept prisoner letters applies where

the Governor reasonably believes that any letter to be sent by a prisoner to, or sent to a prisoner by, any person who is not listed in section 47(1)(m)-

(a) is a threat to prison security ...

8 Where s 47D(1) is satisfied, there is a power of interception in these terms:

(2) The Governor may -

(a) if the belief concerns the whole letter, stop the letter from being sent or received by the prisoner; or

(b) if the belief concerns only part of a letter, cause the relevant part of the letter to be censored.

9 It is not disputed and it is not disputable that the court has the jurisdiction to hear and determine an application for judicial review of a decision to intercept prisoner mail under s 47D. Mr Knight seeks leave to invoke that jurisdiction in the proposed proceeding.

10 The power which s 47D(1) confers to intercept a prisoner's letter is not unlimited. For the due protection of that civil liberty which we all possess under the common law to communicate with others, including by sending and receiving letters, the power of interception is conditional upon the Governor 'reasonably believing' that the letter comes within a category in paragraphs (a)-(e). This requires the Governor to have a subjective belief that a category applies and that belief to be objectively reasonable. Only then may the letter be stopped.

11 I was not taken to the principles governing the judicial review of the formation of such a reasonable belief. The submissions were based on the proposition that, if it was not open to Mr Selisky in the facts and circumstances to come to such a belief, the belief which he had could not be a reasonable belief. This the court could declare, as well as giving other relief. I am prepared to proceed on that basis.

12 It is to be noted that the Governor of the prison is the person on whom s 47D(1) confers the power of stopping a letter. Further, category (a) applies where the Governor reasonably believes that the letter is 'a threat to prison security'. Prison security is a matter which is peculiarly within the knowledge and expertise of the Governor. While that is a relevant consideration, it does not mean that the decision of the Governor is immune from judicial review in the exercise of the court's jurisdiction.

13 I cannot go greatly into the details of the letters or the particulars of the reasons for their interception because that would disclose matters which, in my view, should not be published in the interests of the public and in the interests of justice. I will only say here as much as will enable the reasons for my judgment to be understood.

14 The letters to the two prisoners refer to them and also other prisoners and to the involvement of persons in ongoing police investigations into crimes. The letters particularly refer to the involvement of a named person in giving assistance to the police in relation to an ongoing investigation into a murder. The letters name that person as a prison source of information for the police. Some details about the activities of the individual are given.

15 Mr Selisky made the decision to intercept the letters for reasons which are fully explained in his affidavit dated 4 December 2012. I will not allow the publication of this affidavit but the parties to the case, including Mr Knight, have had full access to it. In my view, the affidavit convincingly establishes that Mr Selisky made the decision to intercept the letters because he reasonably believed that they represented a threat to the security of the prison. For reasons which are given in Mr Selisky's affidavit, a court would find that he believed, reasonably, that the letters, if sent, might endanger the security of certain persons in the prison, which he named. I think that this evidence would be accepted by the court, both as to the possession by Mr Selisky of a subjective belief, and as to the reasonableness of that belief, that the letters come within the category of s 47D(1)(a).

16 In the affidavit, Mr Selisky gave other reasons for being of that reasonable belief. I was not so well persuaded by those other reasons. However, in view of the conclusion which I have just expressed, it is unnecessary for me to consider these matters.

17 Mr Knight made a number of submissions which I have considered. He particularly submitted that, in view of information which he said was in the public domain, interception of the letters was not warranted on the ground of a threat to prison security. This is really a criticism of the merits of the decision to intercept. However, I can see how a prisoner may be aggrieved by a decision to intercept a letter on grounds of prison security when the letter simply discusses matters which are widely and publicly known. On the evidence, that is not why the decision to intercept was made here. There was much more to it than that, as Mr Selisky's affidavit makes clear.

18 Underneath the reasonable belief which s 47D(1)(a) requires there must lie an evaluative judgment by the Governor about whether prison security would be threatened by a prisoner sending or receiving a particular letter or letters. On the evidence before the court in this application, there is no conceivable prospect of the court finding that Mr Selisky committed a judicially reviewable error in making the evaluative judgment which he did and in forming the reasonable belief which he held.

19 For those reasons, in my view Mr Knight's proposed proceeding, if instituted, would be foredoomed to fail and therefore a contempt of court. I therefore dismiss his application for leave under s 21(4) of the Supreme Court Act 1986 (Vic) to commence the proceeding.

[1] [2007] VSC 278; (2007) 16 VR 532.

[3] [2006] VSCA 21; (2006) 14 VR 538.

[4] At 541 per Maxwell P, Ormiston and Eames JJA concurring.

[5] At 562 per Ormiston JA.

[6] At 556 per Maxwell P, Ormiston and Eames JJA concurring.