Proposed Applicant v Proposed Respondents

Supreme Court of Victoria|2016-02-18|Before: Digby J

The Applicant filed an affidavit affirmed 15 October 2015, addressed at [7] above.

16 By facsimile dated 20 November 2015, the applicant provided the Court with written submissions in support of his application by Summons dated 15 October 2015. To the extent that the applicant's submissions are relevant to the relief sought in the Summons, those submissions are summarised as follows.

17 The applicant's submissions of 15 October 2015 included:

(ii) the applicant has been denied access to computer facilities since 24 September 2015;

(iii) the applicant is detained in solitary confinement;

(iv) the applicant is not permitted access to any of the prison's facilities, including the library;

(v) the applicant is confined to his cell for 23 hours, 10 minutes each day, for the remaining 50 minutes he is in an enclosed exercise yard;

(vi) the applicant was informed on 11 November 2015 that his placement would not be reviewed for at least 3 months;[3] and

(vii) the applicant was on 11 November 2015 placed on a "Level 2 Handcuffs Regime" and was not informed why or for how long this would continue.

18 The applicant provides the following "factual matrix" as explanation for his present circumstances outlined in the preceding paragraph:

(i) prior to the imposition of a total smoking ban in Victorian prisons on 1 July 2015, the applicant brought three proceedings in the Victorian Supreme Court relating to the ban, all of which were dismissed;

(ii) the applicant submitted in Knight v Minister for Corrections (No 2)[4] that by imposing a total smoking ban there existed the risk of a prison riot;[5]

(iii) the applicant submits that the potential for prison riots was also raised by the media and the prison officers' union;

(iv) on 30 June 2015, a prison riot occurred at the Metropolitan Remand Centre as a result of the imposition of the smoking ban in Victoria's prisons; and

(v) on 16 July 2015, the applicant was removed from Port Phillip Prison.

19 The applicant submits that an allegation has been made that he "agitated a riot" at Port Phillip Prison by conspiring with others in the prison's back compound during the morning of 14 July 2015. The applicant makes the following submissions in regard to that allegation:

(i) during the morning of the 14 July 2015 he was appearing before Macaulay J of the Supreme Court of Victoria via video-link and did not enter the back compound of the prison on that date;

(ii) the respondents are unable to produce to the Court any first-hand report that indicates the applicant was "agitating a riot" at Port Phillip Prison;

(iii) the Court should not accept second-hand assertions as to the contents of unidentified reports by prison staff;

(iv) the last review of the applicant's placement at Port Phillip Prison was conducted on 4 June 2015 and the record of this review records good conduct;

(v) the respondents rely on the applicant's telephone calls to a friend outside the prison after 30 June 2015, however none of these calls contain evidence of the applicant "agitating a riot" at Port Phillip Prison;

(vi) the respondents rely on the applicant's submissions before Zammit J of the Supreme Court of Victoria on 3 July 2015, however none of those submissions constituted an incitement to riot;

(vii) the applicant strenuously denies any wrongdoing - cf. the proven misconduct of the applicant in Knight v Spadano[6].

20 The applicant also makes the following submissions in connection with his transfer from Port Phillip Prison to Barwon Prison and his placement in solitary confinement:

(i) by relying on the applicant's submissions before Zammit J the first respondent's decision constitutes a contempt of court;

(ii) the placement of the applicant in solitary confinement, because of his submissions in court, aims to punish the applicant for bringing proceedings against the first respondent and/or dissuade him from bringing such proceedings;

(iii) even if the applicant's comments by way of submissions could be considered relevant, the comments constituted no more than a statement as to the objective state of the prison on that day, which on that day was locked down due to the fear of a riot or major disturbance;

(iv) the first respondent's decision to place the applicant in solitary confinement was managerial in nature and is a decision that is reviewable by the Courts;[7]

(v) whether or not the first respondent's decision was managerial or administrative in nature, the decision is reviewable because the applicant alleges it was made in bad faith and for ulterior and improper purposes;[8]

(vi) the first respondent's decision was made to punish the applicant for using the courts to fight the imposition of the smoking ban in Victorian prisons;

(vii) by relying on the separation power in regulation 27 of the Corrections Regulations 2009 (Vic) (the Regulations), the first respondent sought to circumvent the provisions of the classification power in regulations 22, 25 and 26;

(viii) the misuse of the separation power cannot be rectified by a subsequent decision regarding the applicant's classification and placement;

(ix) even if it could be considered that the separation of the applicant was justified, his removal from the prison was not warranted given the existence of management units at Port Phillip Prison where the applicant could have been separated.

21 Further, the applicant makes the following submissions concerning the alleged improper purpose of impeding the applicant's access to the courts whilst frustrating the court's processes:

(i) the decision of the first respondent to separate the applicant from Port Phillip Prison to Barwon Prison was designed, and had the effect of, rendering the applicant's prayer for relief before Macaulay J futile;

(ii) unimpeded access to the courts is a common law right that extends beyond a total denial of access;

(iii) the applicant enjoys a statutory right to a fair hearing under s 24 of the Charter of Human Rights and Responsibilities Act 2007 (Vic);

(iv) the applicant has a right to unimpeded preparation of his court matters;[9] and

(v) further, the applicant has a right to expect non-interference with his case documents.[10]

22 The applicant also relies on the comments made by the court concerning the adverse impact a placement in Acacia Unit has on a respondent's right to a fair trial.[11]

23 Finally, the applicant makes the following submissions in connection with access to his legal materials:

(i) the respondents have had over five and a half months to examine the applicant's electronic media for unauthorised pornographic videos, with the majority of these items being floppy disks which are incapable of storing video files;

(ii) a CD-R of some of the applicant's legal files created on 31 July 2015 was only provided to the applicant on 13 November 2015, after receipt of the facsimile sent by the Court on 13 November 2015;

(iii) the above conduct is evidence of bad faith on the part of the respondents and the CD-R remains of limited value without access to computer facilities and the means of saving amended files; and

(iv) the applicant's requests to the second and third respondents for access to his legal files in electronic media have been ignored.

The proposed respondents' responses to the proposed applicant's initial materials

24 The second proposed respondent filed and served an affidavit of Ian Pugh Thomas (Thomas) the General Manager of Port Phillip Prison, sworn 8 December 2015.

25 Thomas stated that he is the General Manager of Port Phillip Prison. Thomas deposes that:

(i) Port Phillip Prison is operated and managed by G4S Custodial Services Pty Ltd (G4S) as part of a subcontract arrangement;

(iii) he did not make the decision to transfer the applicant from Port Phillip Prison to Barwon Prison on 16 July 2015;

(iv) he was informed of the decision to transfer the applicant by Brendan Money (Acting Deputy Commissioner, Offender Management, Corrections Victoria) and Rod Wise (Deputy Commissioner Operations, Corrections Victoria) on 15 July 2015;

(v) G4S is not involved in the management of operations of Barwon Prison; and

(vi) since the transfer of the applicant to Barwon Prison on 16 July 2015 he has not been involved with his correctional management.

26 Thomas' Affidavit of 8 December 2015 also exhibits his Further Affidavit dated 24 July 2015, which was filed in proceeding S CI 2013 2363. The exhibited affidavit details the steps taken to transfer the property of the applicant from Port Phillip Prison to Barwon Prison, following the applicant's transfer on 16 July 2015.

27 Thomas also deposes in the Affidavit of 8 December 2015 that Port Phillip Prison staff are liaising with Barwon Prison and Corrections Victoria staff regarding items seized at the time of the applicant's transfer to Barwon Prison which occurred as part of disciplinary investigations into potential prison offences for possession of contraband. The applicant has made separate requests for the return of the seized items, including pornographic material and other property. Those requests are currently being processed by prison authorities and will be responded to as soon as practicable.

28 By written Submission dated 4 December 2015, the second respondent makes the following submissions.

29 There is no foundation for the grant of leave to proceed against the second respondent. The Court cannot be satisfied that the proposed proceeding against the second respondent is not a vexatious proceeding or that there are reasonable grounds for the proceeding, as required by s 55 of the Act.

30 The second respondent did not make the decision to transfer the applicant to Barwon Prison and is not involved in operational matters concerning Barwon Prison, because that prison is a prison operated by the State of Victoria and not the second respondent's employer. Therefore, the second respondent is not a proper respondent to paragraphs 1(a)-(d), 2 or 4 of the Summons dated 15 October 2015.

31 With regard to paragraph 3 of the Summons, the affidavit of Thomas sworn 24 July 2015 deposes that the second respondent has already transferred all of the applicant's property to Barwon Prison, save for the contraband items seized during a search of the applicant's property. The requests by the applicant for the return of the seized property are currently being processed in the usual manner.

32 In the circumstances, the applicant does not have reasonable grounds to obtain leave to proceed with the proposed proceedings against the second respondent.

33 The first and the third proposed respondents filed and served affidavit material and a Submission.

34 Brendan Money (Money) deposes that he is authorised to make the affidavit of 8 December 2015 on behalf of Corrections Victoria and for the Commissioner and the General Manager of Barwon Prison.

35 In his affidavit of 8 December 2015, Money states the following:

(i) since 15 May 2008, the applicant has primarily been held in custody in the Waaksembyd Mainstream Unit at Port Phillip Prison;

(ii) he was informed by Thomas, and believes, that on 22 April 2015, intelligence information was received that prisoners were saving unauthorised files on the prison library computers;

(iii) following a forensic audit by prison IT staff, 800 files considered to be non-violent erotica were found stored under the applicant's user profile, totalling approximately 6.3 GB;

(iv) on 6 June 2015, the applicant's cell was searched and several items were removed, including pornographic material and a shiv;

(v) he was also informed by Thomas, and believes, that on 6 June 2015 the applicant's cell was searched as part of the follow up investigation of the pornographic pictures found on the education network computers under the applicant's login details; and

(vi) on 3 July 2015, the applicant said during a court hearing that Port Phillip Prison was "currently in lock down because it's on the verge of kicking off here, as it did with the MRC", by which he believed the applicant to be saying a riot or prisoner demonstrations may also be going to occur at Port Phillip Prison.

36 Money deposes that he was informed by Thomas, and believes that, there was general unrest at Port Phillip Prison and an informant reported there were plans and discussions of trouble at Port Phillip, including the taking of hostages. The applicant was implicated in those reported plans as an agitator and planner. Further, Thomas advised the applicant was observed talking to influential prisoners who do not normally mix together. Further, Money deposes to the applicant being reported as conversing with a former prisoner by telephone and saying in that conversation that the prison system would have to let prisoners out if there was further disturbances.

37 With the general unrest and tension of prisoners within several units of Port Phillip Prison Thomas decided, with the concurrence of the Commissioner, for the prison to be partially locked down to defuse some of the tension and reduce the interaction between prisoners.

38 Given the surrounding circumstances, Money deposes that he made the decision to transfer the applicant from Port Phillip Prison to Acacia High Security Management Unit, Barwon Prison. As part of the investigation into the unrest at Port Phillip Prison and allegations of disruptive plans, several other prisoners were also separated.

39 Money deposes that the separation was made pursuant to regulation 27 of the Regulations and that the separation was requested formally by Operations Manager Mark Jones and authorised by Brendan Meara, Senior Assistant Manager at Barwon Prison, who had been delegated the power to authorise separations by the Secretary.

40 Since the transfer of the applicant to Barwon Prison on 16 July 2015, the following meetings between the applicant and the Major Offenders Unit sentence management panel ('the Panel') have taken place:

41 At the meeting on 20 July 2015, Money deposes that the Panel put the allegations referred to above in relation to the applicant's conduct in June and July 2015 to the applicant. The applicant minimised the statements attributed to him, said he had not participated in any unusual meetings, and he had spent his time watching television, reading and sleeping.

42 Significantly, in my view, Money deposes that at the meeting on 5 August 2015 the applicant's placement at Barwon Prison was discussed with prison authorities, including the canvassing of a possible placement in the mainstream prison community. The applicant made it clear that he was concerned about being victimised and was against a Barwon Prison mainstream placement. On three occasions at this review the applicant threatened there would be "fatalities". At the meeting on 11 November 2015, the applicant became verbally threatening towards Barwon Prison staff stating that "he would find something extremely sharp or something very very heavy and cave their fucking heads in".

43 Money deposes that based on the concerns raised that the applicant appeared to be involved in the planning of riotous behaviour at Port Phillip Prison, the Major Offenders Unit recommended to him that the applicant should remain at Barwon Prison and be placed under long term management. Long term management means that the applicant would be placed in a restrictive unit with monthly reviews by the Panel, where settled and sustained positive and appropriate behaviour is sought and active engagement in the review process. The long term management plan was endorsed by Money on 21 August 2015.

44 Money deposes to the applicant being notified on 8 July 2015 that he was being charged with four offences under s 50(1) of the Regulations. On 28 July 2015, three of the four charges (relating to the pornography found at Port Phillip Prison) were heard and those charges were found proven.

45 Following searches of the applicant's tubs by the property officers at Barwon Prison after the transfer of the applicant, the following contraband items were found:

(i) on 20 July 2015, a razor blade was found concealed in the applicant's property; and

(ii) on 22 July 2015, two 32 GB USBs, one USB (size undetermined), a quantity of pornographic pictures, and a shiv made from a sharpened cutlery knife.

46 In relation to the USBs, on 25 August 2015 a disciplinary hearing was conducted for the offence of having prohibited items within the prisoner's possession and the offence was found proven. In relation to the razor blade found in his property, the applicant received a reprimand. In relation to the shiv and pornographic material, the applicant's charges were found not proven and dismissed.

47 Money deposes that the applicant does not have an in-cell computer. Money is informed by Mr Brett Ryan, General Manager, Barwon Prison, and believes that there is a computer allocated to Acacia Unit that the applicant has limited access to. The applicant has limited access to the computer due to his limited out of cell hours and the prescribed regime in the Acacia Unit.

48 Money deposes that the applicant has had access to the computer during his out of cell hours between 8.15am and 9.00am, and 9.45am and 10.30am. Since mid-November 2015 further arrangements have been made for the applicant to have access to the computer. The applicant has been able to access the computer for around three to four hours per week as part of these further arrangements.

49 Money deposes that he was informed by the Corrections Victoria IT Security Manager, Ms Fumberger, that she met with the applicant on 31 July 2015 to discuss what computer material he wanted from his Port Phillip account. The applicant identified the files required for legal matters that were currently active, which were then burnt to a CD and provided to the applicant on 3 August 2015.

50 Money deposes that the applicant has 18 tubs of physical material, much of it being legal materials. Prisoners are only entitled to have two tubs in the cells for fire safety, security and OHS reasons. However, the applicant may arrange for the swapping and inspection of the other 16 tubs with the prison's property officers.

51 Money states that he has been informed by Mr Ryan that the applicant has not made any request of prison authorities to use the computer available in the yard during run-out hours.

52 Finally, Money states that the Barwon Prison Property Store has received only one request from the applicant to "view" his stored prison property and that request was made on 8 October 2015. However, the applicant's request related to only a stereo, a kettle, a fan and a PlayStation 2.

Submissions of the first and third proposed respondent

53 By their written submissions dated 8 December 2015, the first and third proposed respondents submit that the applicant has not established that there are reasonable grounds for the proceeding, as required by s 54 of the Act, nor that the proposed proceeding is not a vexatious proceeding. The proceeding would be a "vexatious proceeding" in that the application for the type of relief sought is foredoomed to fail and is therefore an abuse of process[12] and it would constitute a proceeding commenced or pursued without reasonable grounds. The Commissioner also notes that in any event, given the nature of the application and the statutory powers engaged, he is not an appropriate respondent to the proceeding.

Separation and placement in Acacia Management Unit at HM Barwon

54 In essence, the first and third proposed respondents submit that the applicant was properly separated and placed in the Acacia Management Unit Barwon Prison, in accordance with Part 3 of the Regulations.

55 Regulation 27(1) provides for separation of prisoners from other prisoners in the following circumstances:

If reasonable for the safety or protection of the prisoner or other persons, or the security, good order or management of the prison, the Secretary may in writing, order the separation of the prisoner from other prisoners.

56 The first and third proposed respondents submit that the reasons relied upon by Money in making the decision to separate the applicant, as outlined in the Money Affidavit of 8 December 2015, were all good reasons why, in the interests of the security, good order or management of Port Phillip Prison, it was prudent to remove the applicant from a volatile situation.

57 The first and third proposed respondents submit that there is no evidence to support the allegation made in paragraph 1(a) of the Summons. Further, the first and third proposed respondents submit that paragraphs 1(b) to (d) of the Summons do not constitute any basis for review of the separation decision; rather those matters are all relevant to the broad range of matters senior prison officers must consider when discharging the responsibility to further the security, good order or management of the prison.

58 The first and third proposed respondents also submit that the ongoing placement of the applicant in the Acacia Management Unit is also a decision that has a sound basis by reference to the primary consideration in relation to security classification under regulation 25, that is the appropriate authority, must consider the risk the prisoner presents to prison security, the community, himself, herself or any other person.

59 Further, the injunction sought by the applicant at paragraph [1] of the Summons does not seek to stop a particular action on the basis it is unlawful, rather the applicant seeks a mandatory injunction transferring him to a particular unit of a particular prison.

60 In essence the first and third proposed respondents argue that the applicant does not have a right to any particular placement in any particular prison unit; his placement is a matter of discretion on the part of sentence management panels or the Secretary and delegates, within the boundaries of the Regulations.

Access to legal materials and computer facilities

61 The first and third proposed respondents submit that access to legal materials and computer facilities are issues relating to the authority of the Prison Governor and other prison authorities ability to regulate the contents of a prisoner's cell, and their discretionary powers to provide prisoners with access to computer equipment.

62 The first and third proposed respondents submit that the applicant has been provided with his physical legal materials, to the extent that it is possible taking into account the size of the applicant's cell and the volume of these materials. In relation to the applicant's legal computer files, these have been copied from the Port Phillip Prison computers to a CD which was provided to the applicant on 3 August 2015.

63 The first and third proposed respondents submit that the applicant currently has some access to a computer for legal purposes, in circumstances where it is possible for him to do so, given all the factors which have led to his continuing placement in a management unit.

Applicant's Submissions in Reply dated 21 December 2015

64 On 21 December 2015 the applicant provided Submissions in Reply dated 21 December 2015, together with a List of Authorities.

65 The applicant's Submissions in Reply are lengthy and primarily concerned with disputing the contents of the Money Affidavit dated 8 December 2015 and provide further information that is not relevant to the present application. To the extent that the applicant's Submissions in Reply seek to address the written submissions made by the respondents, those submissions can be characterised as either attempting to traverse areas of factual dispute, or reiteration of submissions made in the applicant's written submissions of 20 November 2015.

66 The applicant's Submissions in Reply however, clarify that the applicant has been afforded access to a computer on eight days in November 2015 and on nine days in December 2015. Subsequently, by the applicant's affidavit 30 December 2015 referred to below, the applicant updated the number of days of access to a computer which he had been granted by prison authorities to thirteen days in total.

67 The applicant also records that at a Panel hearing on 11 November 2015 he was informed that he would be considered for a return to Port Phillip prison in the first quarter of 2016.

68 The applicant submitted that the review of his separation since his initial separation amounts to the making of a new order of his separation, under regulation 27(7) of the Regulations and not to cessation of the entire separation decision via a classification process by a Sentence Management Panel under regulation 27(7)(ii). In this regard I note that on the applicant's own submissions it is clear that he has been the subject of a number of Panel hearings, including on 11 November 2015 and on 9 December 2015 at which his circumstances and accommodation regime have been considered.

69 The applicant asserts that in substance he is being subjected to punitive measures, under the guise of classification and placement and management regimes, to prevent him access to his computer material and thereby to the courts.

70 The applicant filed a further Affidavit of 30 December 2015 in support of his Submissions in Reply. The Affidavit of 30 December 2015 refers to other litigation in which the applicant has been involved and adds further contentious details to the applicant's earlier material joining issue with the respondents and in support of the applicant's Submissions in Reply.

71 The applicant filed a further Affidavit affirmed on 18 January 2016 which contains information about events that have transpired between 30 December 2015 and 18 January 2016. This affidavit includes an update to the effect that to 18 January 2016 the applicant had been granted access to a computer on six days that month and the applicant was on 15 January 2016 given five of the CDs containing his legal files which he has been seeking.

72 The applicant also states in his affidavit of 18 January 2016 that as part of a further prison authorities review of his situation on 14 January 2016 he has again been informed that his request to return to Port Phillip Prison would be considered during the first quarter of 2016.

73 In his last filed Affidavit of 29 January 2016, the applicant details that 16 days of access to a computer has been provided to him in January 2016. He complains that the prison authorities have continued to retain two USBs he requires, although the applicant has been offered to have files he requires from the two USBs copied to a CD and provided to him. The applicant has in response sought the two USBs in their entirety and that is where this aspect rests at present.

74 The applicant summarises the position at 29 January 2016 as being that other than the second proposed respondent's retention of the two USBs referred to above, and certain items of personal property belonging to him, he has no further claim for return or access to materials or property against the second proposed respondent.

Discretion as to how to deal with application for leave under ss 62 and 63 of the Act. Application to be dealt with on the papers - an oral hearing is not necessary or appropriate.

75 The Act provides for the exercise of the court's discretion as to the manner in which the applicant's application for leave to commence a proceeding is to be entertained. Specifically the Act provides:

62 Victorian court or tribunal may give persons opportunity to be heard

(1) A person who has been given notice in accordance with section 60 or 61 may be heard in relation to the application for leave to proceed.

(2) For the purposes of subsection (1), the Victorian court or tribunal may direct that the person make written submissions or oral submissions.

63 Determining application for leave to proceed

(1) A Victorian court or tribunal may determine an application for leave to proceed on the basis of written submissions, without the appearance of -

(a) the person who made the application; or

(b) any person given notice of the application in accordance with section 60 or 61.

(2) Despite subsection (1), a Victorian court or tribunal may determine an application for leave to proceed by conducting an oral hearing, if the Victorian court or tribunal considers -

(a) there are exceptional circumstances; and

(b) it is appropriate to do so, having regard to the interests of justice.

(3) An oral hearing may be held under subsection (2) regardless of whether written submissions have been made to the Victorian court or tribunal and, if made, whether those submissions establish the matters required for the granting of leave or the dismissal of the application.

76 Having considered the materials referred to above I have decided that it is not appropriate or warranted to receive further submissions, or conduct an oral hearing in relation to the applicant's current application for leave to commence the proceeding outlined in the applicant's Summons dated 15 October 2015.

77 The applicant has been afforded a very fulsome opportunity to file the written submissions he has desired to file and support such submissions with supporting material, including affidavit material, to the extent he considered necessary.

78 Further, although at about the time of the applicant's Summons in this matter I harboured a concern that there appeared to be some substance in his complaint that he was not able to access or utilise necessary legal materials and for that reason, coupled with the serious nature of his proposed application, exceptional circumstances may have existed which might have rendered it necessary and appropriate to conduct an oral hearing in this matter, during the course of the interlocutory exchanges in this application, it has evolved that the applicant has ultimately both been afforded adequate access to his legal materials and also to a computer. Therefore, at this point I do not consider that any relevant circumstances exist which would justify an oral hearing, nor for the same reasons do I consider that the interests of justice require an oral hearing in relation to the applicant's leave application. Accordingly, the applicant's application for leave to commence a proceeding has been dealt with on the extensive materials filed by the parties.

79 Section 56 of the Act requires the disclosure of details, in essence requiring a relevant applicant for leave to proceed to detail each earlier application for leave, including pursuant to s 21 of the Supreme Court Act 1986, together with details of each interlocutory application made, or proceeding commenced or conducted by the applicant, or which has been stayed or dismissed on the basis of being made, commenced or conducted without merit.

80 The applicant is also, amongst other requirements, to explain how the instant application for leave to proceed is materially different to all earlier applications which the applicant has specified as necessitated by s 56 of the Act. Further, the disclosure requirements of s 56 must be made by affidavit unless the rules of the court or relevant tribunal provide otherwise or a court or a tribunal dispenses with the requirement for an affidavit.

81 In this matter, and in particular at the time of the filing of this application in mid-October 2015, I accept that the applicant was hampered in his ability to provide the details required under s 56(1)(a), (b) and (c) and probably (e) of the Act as a result of his constrained access, at that time, to his extensive legal materials and to a computer. Ultimately however, taking into account all of the information provided by the applicant in the extensive materials referred to above, the applicant has in substance sufficiently complied with s 56(1) and (2) of the Act.

82 Further, I note that neither the first and the third proposed defendants nor the second proposed defendant seek to resist the applicant's application for leave to commence a proceeding on the basis that his Summons of 15 October 2015 and supporting materials are non-compliant with the requirements of s 56(1) and (2) of the Act.

Current leave application not substantially different to recent earlier application for leave to proceed

83 The current Summons is in substance seeking the same relief as the applicant's earlier Summons dated 14 August 2015 which came before this Court on 9 October 2015.

84 On 9 October 2015, McDonald J handed down his decision in Knight v Corrections Commissioner & Ors.[13] His Honour dismissed the plaintiff's application and stated in his reasons that:

[1] By a summons dated 14 August 2015, Mr Knight seeks the following orders:

(i) an order in the nature of an injunction directing the Commissioner of Corrections Victoria to return Mr Knight to the Waaksembyd Unit at Port Phillip Prison, on the ground that the placement of Mr Knight in solitary confinement in administrative segregation in the Acacia High Security Unit at HM Prison Barwon on 16 July 2015 was for an improper purpose; namely, to impede Mr Knight's access to the courts whilst frustrating the court's processes;

(ii) an order in the nature of an injunction directing the General Manager of Port Phillip Prison to release to Mr Knight all of his legal materials, including those held in electronic form (computer files, email, CD, floppy disc); and

(iii) an order in the nature of an injunction directing the General Manager of HM Prison Barwon to provide Mr Knight with the means of examining his legal materials held in electronic format and of producing court documents.

85 McDonald J dismissed the applicant's application for leave to commence proceedings in matter number S CI 2015 4361 for non-compliance with sections 56(1)(b) and (d) of the Act.

86 I consider that, in substance, the application in this proceeding is not materially different to that disposed of by McDonald J in proceeding number S CI 2015 4361. In the applicant's written submissions dated 21 December 2015 at [81] in this proceeding, the applicant refers to his intent that the primary relief sought in his summons is in the nature of a request that he be returned to the status quo as it stood before his alleged unlawful separation. This claim by the applicant and the ancillary relief sought in the applicant's Summons dated 15 October 2015 are substantially the same as the relief sought by the applicant in the application for leave determined by McDonald J on 9 October 2015. Both proposed proceedings were directed to the same ends, namely an order effecting the applicant's transfer back to Port Phillip Prison and release of and access to the applicant's legal materials. They were both also grounded upon an allegation that the applicant's present relocation was motivated by an improper purpose on the part of the prison authorities.

87 The application of 15 October 2015 before me only adds some additional particulars of the allegation of improper purpose which was also central to the proposed application disposed of by McDonald J on 9 October 2015.

88 In my view the current application is substantially the same as the applicant's application of 14 August 2015 before McDonald J of this Court. I am not satisfied for this reason, nor am I satisfied on the basis of any other material put before me by the applicant, that the current application is materially different to the previous application determined on 9 October 2015 and I consider that the current application should therefore be dismissed pursuant to s 58 of the Act.

Applicant has not discharged onus to satisfy the court that he has reasonable ground for his proposed proceedings and that the proposed proceedings are not vexatious

89 Furthermore, I do not consider that the applicant has discharged his onus to satisfy me that:

(a) there are reasonable grounds for his proposed proceeding; or

(b) that the applicant's proposed proceeding is not a vexatious proceeding, given that a proceeding is a 'vexatious proceeding' if a proceeding is commenced or pursued without reasonable grounds.

90 Section 55(a) of the Act requires the applicant to establish that there are reasonable grounds for the proposed proceeding and that the proposed proceedings are not vexatious. In this regard the applicant is required to satisfy the court that the proposed proceeding is not in the nature of a 'vexatious proceeding', and in so doing satisfy the court that the proposed proceeding does not fall within the types of proceeding referred to in s 3 of the Act. Section 3 of the Act defines certain proceedings as vexatious in nature, including proceedings proposed to be commenced without reasonable grounds. Section 3 of the Act is clearly intended to be of application where the court is considering an application under s 55 in relation to a proceeding which is proposed to be commenced, but not yet commenced. This is clear from the scheme of the Act, including from the language of section 55 itself which refers to a 'proceeding' as encompassing both proceedings not yet commenced and proceedings which have been commenced and are sought to be continued.

There are no reasonable grounds for the applicant's proposed proceedings

91 In my view, the applicant has failed to establish that there are reasonable grounds for his proposed proceeding for the following reasons.

Corrections Regulations 25, 26 and 27(1)

92 Certain relevant Regulations, made pursuant to s 112 of the Corrections Act 1986, and in particular Regulations 25 to 27 relevantly state:

25 Determination of classification

When determining or varying a prisoner's classification, a Sentence Management Panel, a Review and Assessment Committee, or the Secretary must consider the risk the prisoner presents to prison security, the community, himself, herself or any other prisoner, having regard to any one or more of the following:

(a) the nature of the offence for which the prisoner has been charged or convicted;

(b) the risk of the prisoner escaping, or attempting to escape, from custody;

(c) the risk of the prisoner committing a further offence and the impact the commission of the further offence is likely to have on the community;

(d) any risk the prisoner poses to prison management, security and good order;

(e) any risk the prisoner poses to the welfare of himself or herself and any other person;

(f) the length of the prisoner's sentence or, if the prisoner is awaiting trial, the maximum sentence applicable to the offences in respect of which the prisoner has been charged;

(g) any other matter considered relevant to prison management, security and good order and the safe custody and welfare of the prisoner.

26 Determination of placement

When determining or varying a prisoner's placement and developing a sentence plan, a sentence management panel or the Secretary may consider and assess the following factors -

...

(c) any risk the prisoner poses to the welfare of himself or herself or any other person;

...

(l) any other matter considered relevant to prison management, security and good order and the safe custody and welfare of the prisoner.

27 Separation by the Secretary

(1) If reasonable for the safety or protection of the prisoner or other persons, or the security, good order or management of the prison, the Secretary may, in writing, order the separation of a prisoner from other prisoners.

(2) The amount of time a prisoner is separated must not be longer than is necessary to achieve the purposes set out in subregulation (1).

(3) The requirement in subregulation (1) that a separation order be in writing does not apply if the separation of a prisoner from other prisoners is, in the opinion of the Secretary, required urgently.

(4) If an oral separation order is made under subregulation (3), the order must be confirmed in writing within 12 hours where practicable but not exceeding 24 hours.

(5) Before making a separation order, the secretary must consider the medical and psychiatric condition of the prisoner.

(6) The prisoner must be advised of the reasons for the separation and given a copy of the separation order.

(7) Unless extended by a new order, a separation order ceases -

(i) on expiry of the order; or

(ii) when the prisoner is classified by a sentence management panel; or

(iii) when cancelled by the Secretary.

93 Part 3, Division 6-8 of the Regulations confer upon what are entitled 'Sentence Management Panels and the Secretary'[14] powers and functions in relation to the classification and placement of prisoners within the Victorian Custodial system. The process of 'classification' under the Regulations encompasses decisions about a prisoner's security rating, placement and sentence plan. Sentence Management Panels undertake the requisite 'classification' task pursuant to regulation 23 of the Regulations. The Secretary may himself or herself carry out the functions of a Sentence Management Panel or may delegate that power pursuant to s 8 of the Corrections Act 1986.

94 The function of undertaking a determination of classification is pursuant to the Regulations and in particular regulations 25 and 26. Such a determination is in the nature of the exercise of a broad discretionary power.

95 Whereas the applicant seeks to support his plea for an injunction in relation to the decision made on 16 July 2015 affecting him on the basis that that decision was founded on an improper purpose, namely to impede the applicant's access to the courts and/or was based upon non-existent reports that the applicant was 'agitating a riot' at Port Phillip Prison and/or wrongly took into account irrelevant considerations including the applicant's submissions made in court on 3 July 2015 and the gist of certain telephone conversations made by the applicant, in my view none of the applicant's grounds amount to anything more probative than conjecture on his part. Not only is there no persuasive evidence adduced by the applicant in his many affidavits to support these allegations of improper purpose and irrelevant considerations being taken into account, all such assertions are directly and in my view persuasively traversed and contradicted by Money in his sworn affidavit.

96 Money's evidence establishes a number of sound bases for the decision made by the prison authorities on 16 July 2015 to separate the applicant from other prisoners.[15]

97 In my view, the applicant has failed to put forward any evidence or submission which establishes any real or reasonable prospect that the applicant's separation and specific placement in the Acacia Management Unit at Barwon Prison was for the improper purpose of impeding the applicant's access to the court or that a contempt of court is arguable against the respondents or any of them as alleged by the applicant.

98 Furthermore, the grounds upon which the applicant seeks to impugn the relevant decision made in July 2015 are most unlikely to found any form of successful administrative review, including because of the above mentioned matters which Money considered were relevant, appropriate and sufficient to warrant the decision by the prison authorities when exercising the broad discretionary powers provided in regulations 25 to 27 of the Regulations. Those relevant considerations included the required consideration in regulation 25 concerning the risk a prisoner presents to prison security, the community, himself, herself or any other person. Accordingly, on the evidence and submissions put forward by the applicant, he enjoys no real or reasonable prospect of success in relation to the prison authorities' decision of 16 July 2015.

99 It also appears to me to be more likely than not, on the material filed, that subsequent to 16 July 2015 the applicant's conduct also provided a basis for the relevant prison authorities to consider that he was a threat to prison security and to others, including other prisoners.[16]

100 In summary I consider that the relief which the applicant seeks in paragraph 1 of his Summons, namely the mandatory injunction affecting his transfer to a particular section of Port Philip Prison, which the applicant asserts is in substance a request that he be returned to the status quo which existed before what he asserts to be his unlawful separation,[17] is forlorn. Forlorn both because the applicant has failed to satisfy the requirements of the Act in the ways I have explained above, including because the applicant has failed to establish reasonable grounds for, or even point to any legal right to, the injunctive relief sought. Conversely, for the reasons I also have outlined above, the Secretary and his or her delegates appear to have had ample power and ample justification for the prisoner management related decision in question which they had made in relation to the applicant's location.

101 I am however moved to note that on a number of occasions, not contradicted by the respondents, the applicant has reported that he has been informed by both the Sentence Management Panel (11 November 2015) and the Major Offenders Review Panel (14 January 2016) that his request for return to Port Philip Prison will be considered during the first quarter of 2016. In this regard I have every confidence that the prison authorities will expeditiously review the applicant's request, given the applicant's current circumstances of detention, particularly given what appears to have been the very lengthy period during which he has already endured separation from the general prison community and the deprivation of normal prisoner accommodation and facilities.

102 For the reasons I have identified, in my view the applicant has not satisfied me that he has any reasonable grounds for his proposed proceedings and that his application for leave to commence those proceedings should be granted. Nor am I satisfied for the reasons I have outlined that the applicant's proposed proceedings are not a vexatious proceeding.

103 An analysis of the affidavit material and submissions filed by the applicant, summarised above, indicates that incrementally, and subsequent to the applicant's summons of 15 October 2015, this issue has narrowed and by about the end of January 2016 been substantially resolved. At the date of the applicant affirming the last of his affidavits on 29 January 2016 it appears that he has been provided with substantial computer access throughout January of this year.

104 The applicant's affidavit of 29 January 2016 also appears to establish that of the legal files to which he required access at the outset of his application, by that date, only two USB storage devices were being sought by him. Further the applicant has been, in effect, offered copies of the documents listed as contained in those two USB devices, which he desires to obtain, being copied and provided to him. The applicant has responded to that offer by Corrections Victoria by requesting physical delivery of the two USB devices themselves.

105 Accordingly, in my view at this time the foundation of the applicant's complaint about access to legal materials and computer facilities has been effectively addressed by the parties and substantially resolved.

106 For this reason alone I do not consider that there are any reasonable grounds for the applicant's proceeding in respect of his second set of issues concerning legal materials and computer facilities.

107 I am also, at all events, unpersuaded that the applicant has reasonable grounds for this second limb of his proceedings and additionally I am unpersuaded that this part of his proceedings is not a vexatious proceeding in the circumstances which I have outlined.

108 For the reasons I have outlined above I dismiss the applicant's application for leave to commence the proposed proceedings referred to in the applicant's proposed summons dated 15 October 2015.

[1] Attorney-General (Victoria) v Knight [2004] VSC 407.

[2] Attorney-General (Victoria) v Knight [2014] VSC 549.

[3] It is unclear whether at paragraph [15] of his submissions the applicant is referring to his placement in solitary confinement or his placement at Barwon Prison.

[7] McEvoy v Lobban [1990] 2 Qd R 235.

[8] Ibid, 237 (Macrossan CJ) and 240-241 (Thomas J).

[9] Rich v Van Groningen & Ors [1997] VSC 35; (1997) 95 A Crim R 272, 286-288.

[11] R v Benbrika & Ors (No 20) [2008] VSC 80; (2008) 18 VR 410, [28]-[36], [91]-[93].

[12] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393.

[14] "Secretary" is defined in s 3 of the Act to mean "Secretary to the Department of Justice and Regulation under the Public Administration Act 2004 and includes a person acting as the Secretary to the Department of Justice and Regulation under that Act".

[15] First and second proposed defendants' written submission dated 8 December 2015 (17.1-17.4).

[16] Money's affidavit sworn 8 December 2015, [16] and [19].

[17] Applicant's Reply Submissions dated 21 December 2015, [81].

Vexatious Proceedings Act 2014(Vic)

Proceedings Act 2014(Vic)

Charter of Human Rights and Responsibilities Act 2007(Vic)

Supreme Court (General Civil Procedure) Rules 2015

Court (General Civil Procedure) Rules 2005

Administration Act 2004

At a glance

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Legislation Cited (7)

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