Proposed Plaintiff v Proposed Defendant

2 By letter dated 24 February 2023, Mr Donohue requested a review of the Prothonotary's decision. I address that application for review of the Prothonotary's decision as an application under r 28A.04(5) to direct the Prothonotary to seal the document.

3 In 2018, Mr Donohue was convicted of 12 charges of making a false document, three charges of attempting to pervert the course of justice and four charges of perjury. He was sentenced to 4 years and 5 months' imprisonment, with a non-parole period of 2 years and 9 months.[1]

4 While Mr Donohue was serving his sentence at Middleton Correctional Centre (MCC), a state of emergency was declared in Victoria due to the COVID-19 pandemic.

5 Mr Donohue applied for emergency management days (EMDs) pursuant to s 58E(1) of the Corrections Act 1986, the effect of which, if granted, would be to reduce his term of imprisonment. Mr Donohue applied for 216 EMDs for the period of 108 days that he had been in prison between 20 March and 6 July 2020.[2] He identified a range of restrictions and limitations which had been imposed during the COVID-19 pandemic period as the basis for his application.[3] The Deputy Commissioner of the Custodial Operations Division, acting in her capacity as delegate of the Secretary, refused this application, noting that Mr Donohue had been granted one EMD for a lockdown on 24 July 2020 relating to the COVID-19 pandemic, and that the overall disruption and deprivation experienced at MCC had not been significant in the context of the COVID-19 pandemic.[4] Mr Donohue sought judicial review of the Deputy Commissioner's decision, but his application was dismissed.[5]

6 Following his unsuccessful judicial review application, Mr Donohue commenced a proceeding on 12 April 2022, claiming damages against the Deputy Commissioner arising out of the refusal to grant EMDs. He argued that he was owed a duty of care by the Deputy Commissioner, and that the EMD refusal denied him the opportunity to complete his sentence early and return home to care for his sick wife and disabled son. He claimed that the most damaging aspect of the pandemic restrictions was being denied contact visits between 20 March 2020 and his release on 6 July 2021. He sought relief including damages in the sum of $7.8 million.[6] At the first return date of Mr Donohue's application, Daly AsJ made orders striking out the statement of claim and granted leave for Mr Donohue to file a proposed amended statement of claim.[7]

7 On 22 August 2022, Mr Donohue filed a proposed amended statement of claim. It included allegations that the Deputy Commissioner refused to take steps to avoid the injury and damage caused by the suspension of contact visits, being the grant of the EMDs.[8] By refusing to grant him EMDs, she breached her duty of care.[9] The Deputy Commissioner contended that the proposed amended statement of claim failed to disclose a cause of action against the defendant, and submitted that summary judgment should be granted, on the basis that the plaintiff's claim in relation to the EMD refusal was hopeless and doomed to fail.[10]

8 Associate Justice Daly gave judgment summarily dismissing the claims on the basis that they had no real prospects of success (the Daly AsJ Judgment).[11] However, her Honour commented:

... the way in which the claim for damages is framed suggests that the plaintiff's main complaint concerns the suspension of contact visits, and this was confirmed during the course of the hearing of the summary judgment application.[12]

9 Her Honour referred to s 112G of the Corrections Act[13] which was among several temporary provisions introduced during the state of emergency declared during the pandemic. That section allowed the Secretary or Governor to prohibit a person from entering a prison as a visitor. In an exercise of this power, and in line with the State-wide response to the pandemic, contact visits at MCC were restricted. Her Honour acknowledged that the plaintiff's 'real case'[14] had not been pleaded in the proposed amended statement of claim. Her Honour made some observations with respect to any claim regarding the suspension of contact visits:

Section 112E(2)(a) of the [Corrections] Act provided that the temporary provisions applied despite anything to the contrary in any other part of the Act, which would include s 47(1)(k) of the Act. Accordingly, to the extent that any claim by the plaintiff is based upon any alleged breach of s 47(1)(k) of the Act, it is clear that the plaintiff's right to receive contact visits was overridden by s 112G of the Act while the temporary provisions were in force.

It is not clear whether the decision to suspend the contact visits at Middleton was made by the Secretary or the Governor. In any event, neither of them are parties to this proceeding. Further, it seems to me to be highly unlikely that a Court would impose a duty on either the Secretary or the Governor with respect to the exercise of their powers under s 112G in all of the circumstances, given the pandemic emergency and the terms of the temporary provisions, but that may be a debate for another day.[15]

...the plaintiff conceded that he had not turned his mind to the possibility that the Secretary was the proper defendant to his claims in this proceeding, not the defendant. During the course of the hearing, I indicated that I would attempt to deal with all of the arguments advanced by the defendant in relation to the summary judgment application, not simply dismiss the application on the basis that the plaintiff has sued the wrong defendant. However, to the extent that the plaintiff may seek to advance claims based upon the decision to suspend contact visits, rather than the EMD refusal, it is not possible or desirable for me to reach a concluded view on the viability of such a claim, given that no such claim has been pleaded against any proper defendant. However, I have highlighted the possible weaknesses of such a claim in paragraphs 25 to 28 of these reasons.

However, the question of the proper defendant only really arises if the plaintiff's real case is that the decision to suspend contact visits was what really caused him harm, rather than the EMD refusal...[16]

11 Mr Donohue attempted to commence a new proceeding. He sent to the Prothonotary for filing a proposed writ dated 2 February 2023, affidavit affirmed on 3 February 2023, and statement of claim dated 7 February 2023.

12 The proposed statement of claim is effectively a reframing of Mr Donohue's initial action in tort that was before Daly AsJ. It claims that the decision to suspend contact visits was the cause of his harm, rather than the EMD refusal, and names the Secretary of the DJCS as the defendant.

13 Mr Donohue claims in the proposed statement of claim that:

... The denial of the right that is the basis of this Major Tort action, and is the cause of the injury, pain, suffering, and damage caused to the plaintiff by the defendant's failure to fulfil her Duty of care to the plaintiff, is as follows: ...

14 The statement of claim then sets out s 47(1)(k) of the Corrections Act 1958, which provides that every prisoner has a right to receive at least one visit which is to last at least half an hour each week under s 37 of that Act.

Important sets of entitlements arising from other Acts include:

• Equal Opportunities Act

• The Charter of Human Rights Act.

• The Charter of Human Rights Act further states that:

'A right or freedom not included in this Charter that arises or is recognised under any law (including international law, the common law, the Constitution of the Commonwealth and a law of the Commonwealth) must not be taken to be abrogated or limited because the right or freedom is not included in this Charter or is only partly included.'

16 The statement of claim also relevantly stated that by removing the plaintiff's contact visits, the Secretary failed to fulfil her duty of care owed to the plaintiff, resulting in injury, pain, suffering, and damage being cause to the plaintiff.

17 The statement of claim also argued that the harm caused against him was 'deliberate', and that 'the removal of access to personal contact visits is used as a form of punishment within Victorian prisons' and that to 'inflict this underserved equivalent to punishment, without appropriate amelioration, is a clear failure in the defendant's Duty of care to the plaintiff'. The statement of claim stated that

The denial of the right to personal contact visits had an overwhelmingly negative effect for the plaintiff, as contact visits, particularly with his invalid wife, and disabled son, where key to surviving the exigencies of imprisonment.

18 Mr Donohue claimed in the statement of claim that the injury, pain, and suffering continued to increase on an 'exponential scale' with each week that contact visits were withheld. This caused psychological injury_,_ pain, suffering, and damage to the plaintiff, and his invalid wife and disabled son. It was alleged that the Secretary was aware of this.

19 The statement of claim also alleged that the 'injury caused by the defendant's failure in her Duty of care to the plaintiff throughout the plaintiff's term of imprisonment is also covered by the Wrongs Act 1958'. It was alleged that his injury falls within the meaning of the term as defined under s 43 of that Act and that s 48 of the Act 'clearly defines the failure of the defendant to exercise her Duty of care'.

20 The statement of claim also referred to ss 53 ('The meaning of obvious risk') and 54 ('Voluntary assumption of risk'), and alleged that the risk of harm to the plaintiff would have been obvious to a reasonable person, and that he had no part in creating the risk. The statement of claim also referred to s 84 of the Act ('Wrongful exercise of or failure to exercise function') and alleged that the omission of the defendant to exercise her duty of care on behalf of a public authority was clear and that no public authority would consider the omission of the defendant to be unreasonable in the circumstances.

21 The statement of claim also noted specifically that:

The Victorian Government later repealed Part 10B, and s 37 of the Act, which effectively suspended the rights under s 47(1)(k). This however did not remove any duty of care from the defendant, nor does it COMPEL the defendant to DENY any form of amelioration for injury, pain, suffering and damage caused by the defendant's decision to remove the plaintiff's access to personal contact visits. The mere fact that it was considered necessary to amend the Act to suspend prisoner's right to personal contact visits, indicates the significance of such visits within Corrections Victoria.

22 The statement of claim stated that the plaintiff proposed to supply the court with a Substantial Injury Certificate, and identified that the claim for compensation was for $1,950,000, consisting of two components:

(a) In relation to the injury, pain, suffering and damage alleged to have been caused during his imprisonment. Mr Donohue claimed $10,000 per week he was restrained from contact visits, which he identified to be 65 weeks, giving a total of $650,000.

(b) In relation to the pain, suffering and damage that he alleged he had continued to suffer since his return home, and the 'permanent damage' caused, he claimed $1,300,000.

23 The proposed affidavit contains largely the same material as the proposed statement of claim, with some additional detail of the nature of the harm alleged to have been caused to the plaintiff and his family, and some additional information put forward in support of the quantum of his claim for monetary compensation.

24 After reading and assessing Mr Donohue's proposed documents, the Prothonotary refused to seal them on the basis that they would constitute an abuse of process. The Prothonotary provided reasons for that refusal, dated 23 February 2023. The Prothonotary stated that:

The writ and statement of claim lodged on Redcrest by the proposed plaintiff and dated 7 February 2023 are refused because they substantially and effectively replicate claims made and determined in previous Supreme Court proceedings.

25 The Prothonotary acknowledged the assertion in the statement of claim that 'This statement of Claim is not merely a reconstruction of Donohue v Westin as determined by Daly AsJ in [2022] VSC 794'. However, the Prothonotary concluded that the matter in the statement of claim was 'ostensibly identical to previous matters.'

26 The Prothonotary stated that the question of duty of care was carefully considered by Daly AsJ, and referred to the following passage from paragraph [25] of the Daly AsJ Judgment:

... it is patently clear from the temporary provisions that the defendant is not the proper defendant to any claim based upon the decision to suspend contact visits during the pandemic emergency. The temporary provisions included s 112G of the Act, which empowered the Secretary or the Governor of a prison to prevent a visitor from entering a prison for the safety, security or good order of a prison, or for the health and safety of any person. Accordingly, no legal responsibility for the decision to suspend contact visits rests with the defendant.

27 The Prothonotary noted that the new proposed defendant would hold no greater duty than the Deputy Commissioner (the defendant in the previous proceeding), and that neither could have foreseen, prevented or ignored the looming threat that COVID-19 presented to prisoners. The Prothonotary also quoted the following paragraphs from the Daly AsJ judgment:

...the proper approach to identify whether a duty of care exists requires an analysis of the facts bearing on the relationship between the plaintiff and the alleged tortfeasor by reference to the salient features or facts affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.[17]

...

the imposition of a duty of care upon the defendant with respect to the grant of EMDs is inconsistent with the purpose and policy considerations underpinning s 58E of the Act...[18]

28 The Prothonotary observed that even if the proposed defendant owed Mr Donohue a duty of care, the proposed defendant had a 'higher duty to protect the wellbeing and health of prisoners by temporarily preventing visits during COVID-19 restrictions'.[19] The Prothonotary concluded that there seemed to be no statutory or tortious basis for compensation for the temporary restrictions.

29 The Prothonotary identified other deficiencies in the formulation of a tortious claim in the statement of claim,[20] and concluded:

There is no identifiable new or exigent claim in this proposed writ and statement of claim. If sealed I believe this would be an abuse of process because it seeks to relitigate issues already decided by this Court.

Would the proposed proceeding have constituted a relitigation of the proceeding before Daly AsJ?

30 The Prothonotary's power to reject an originating process, arises under r 28A.04(2) of the Rules:

The Prothonotary or the Registrar may reject a document if the Prothonotary or Registrar considers that -

(a) a document, if it were sealed, would be substantially irregular or constitute an abuse of process; or

(b) there has been a failure to comply with the Rules, an order of the Court or a direction of the Prothonotary or the Registrar after a reasonable opportunity to do so.

31 The Court may, subsequently, pursuant to r 28A.04(5) direct that the Prothonotary or Registrar seal the document, or may make other orders or directions that it considers appropriate.

32 Determinations under r 28A.04(5) '[do] not involve any form of adjudication on the merits of the claim or the determination of an interlocutory or preliminary dispute.'[21] The power of the Court to direct the Prothonotary to seal an originating process is to be approached on the basis that, after due consideration of the process to be issued, if there is no demonstrable prospect of success, or it would otherwise constitute an abuse of process, it is appropriate to decline to direct the Prothonotary to seal the document. In LG v The Public Advocate, J Forrest J observed:

As I see it, if there is an arguable (even paper-thin) basis for permitting the filing of the documents then it should be allowed. This Court can then determine, at an early stage if the proposed respondent so desires, whether the proceeding should be permitted to continue.[22]

33 In this case, the Prothonotary considered that the documents would be an abuse of process if sealed, as they sought to reagitate claims that had already been dealt with in Daly AsJ's decision.

34 I agree that Daly AsJ had identified in her judgment the substance of the argument that is now the subject of Mr Donohue's proposed statement of claim, being a claim of breach of duty of care arising from the suspension of contact visits during the COVID-19 pandemic, and gave it some consideration. However, in considering whether the proposed statement of claim would seek to 'relitigate' issues already determined, it is relevant that her Honour's judgment discloses that while the claim was one which she identified broadly from the plaintiff's arguments, she did not regard it as a claim that had actually been pleaded before her:

... to the extent that the plaintiff may seek to advance claims based upon the decision to suspend contact visits, rather than the EMD refusal, it is not possible or desirable for me to reach a concluded view on the viability of such a claim, given that no such claim has been pleaded against any proper defendant. However, I have highlighted the possible weaknesses of such a claim...[23]

35 In these circumstances, I respectfully disagree with the Prothonotary's conclusion that there is no identifiable new claim in the proposed writ and statement of claim.[24] The Associate Justice acknowledged that it was not possible for her, in the context of the summary judgment application, to reach a concluded view on the issues raised relating to the decision to suspend contact visits. In her Honour's own words, she merely 'highlighted' the 'possible weaknesses' of the claim, and did not reach a final conclusion on the matter, given that the claim had not been pleaded and also, importantly, that the proper defendant to such a claim was not a defendant in the proceeding before her.[25]

36 I do not consider that the claim identified in Mr Donohue's proposed statement of claim would constitute a relitigation of issues that have already been determined.

Whether the power to direct that the documents be sealed should be exercised

37 Although I do not agree with the precise basis on which the Prothonotary identified the proposed proceeding as an abuse of process and reject the documents for filing, it does not automatically follow, in my view, that I must exercise the power under r 28A.04(5) to direct the Prothonotary to seal the documents.

38 The power of the Prothonotary to reject a document arises under r 28A.04(2) where the Prothonotary considers that the document would, if sealed 'be substantially irregular or constitute an abuse of process'. It would undermine the purpose of rule 28A.04 if I was to form the view that the document was substantially irregular, on the face of the document, or that it was readily apparent that the proceeding proposed to be instituted by the document would constitute an abuse of process, but nevertheless direct the Prothonotary to seal the document.

39 Noting that this rule has essentially a 'gatekeeping' function rather than inviting me to act as 'judicial arbiter' of the proposed proceeding,[26] it would not be appropriate for me to enter upon a detailed examination of the proposed proceeding for the purposes of determining whether it is an abuse of process. However I do regard it as appropriate for the purposes of my discretion under rule 28A.04(5) to consider any manner in which the proposed proceeding may constitute an abuse of process which is immediately raised by the statement of claim on its face, or readily apparent from considering the proceedings previously instituted by the proposed plaintiff. There is nothing in the rule to suggest that I should be limited by the Prothonotary's reasons for refusal.

40 The nature of what may constitute an abuse of process was discussed in Walton v Gardiner[27] where Mason, Deane and Dawson JJ observed:

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.'[28]

41 In that case Brennan J referred to his observations made in Jago v District Court (NSW),[29] and stated the following:

An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve.

If a party instituting proceedings does so for a purpose alien to the purpose which the proceedings are designed to serve, the proceedings are an abuse of process whether or not they are well founded in fact and law. And equally, the institution of proceedings which will inevitably and manifestly fail or which unnecessarily duplicate proceedings already pending or determined are incapable of serving a legitimate purpose...[30]

42 In the present case, two potential forms of abuse of process arise readily for consideration from the documents which Mr Donohue sought to file:

(a) Whether, notwithstanding that it was not an attempt to relitigate a claim which had already been litigated and determined in the Daly AsJ Judgment, it was a claim which should have been brought forward at the same time as the proceeding heard by Daly AsJ, and is now precluded by the doctrine of Anshun estoppel;[31] or

(b) Whether the proceeding was an abuse of process on the basis that it is foredoomed to fail.

43 A party may be estopped from bringing a proceeding if it involves a cause of action that is so relevant to the issues raised in earlier litigation that it was unreasonable not to rely on that cause of action in the earlier proceeding.[32]

44 In Gibbs v Kinna,[33] the Court of Appeal stressed the caution with which the principle of Anshun estoppel should be applied. Ormiston JA observed that:

... the question is not whether it would have been reasonable to have taken a different course but whether it was unreasonable to pursue the course that the respondent in fact took, by not then relying on the causes of action now the subject of proceedings...[34]

45 In the same case Kenny JA also emphasised the caution with which the doctrine was to be applied:

It should, I think, be borne in mind that whilst the principle discussed in Anshun's case is designed to foster public and private interests by encouraging parties to advance all their related claims or defences at the one time, thereby diminishing unnecessary duplication of curial and other effort, it seeks to meet these objectives by terminating a litigant's right to have a court adjudicate upon the merits of a claim. It is, I think, on this account that the principle is to be applied in only the clearest of cases.[35]

46 It is relevant, in considering the question of whether it was unreasonable not to bring forward all related claims in an earlier proceeding that the litigant is unrepresented. While far from determinative of the application of the principles of Anshun estoppel, the fact that a litigant is not represented nor legally qualified is relevant in assessing whether the course of action taken in not bringing forward a claim in an earlier proceeding was unreasonable_._[36]

47 Applying the principles of Anshun estoppel to the proceeding the subject of the Daly AsJ Judgment, the following observations can be made about that proceeding:

(a) In the proceeding before Daly AsJ, Mr Donohue alleged a breach of a duty of care owed to him by the defendant, Melissa Westin, the Deputy Commissioner of the Custodial Operations Division in Corrections Victoria, by reason of her refusal to grant EMDs in October 2020 and seeking relief including damages in the sum of $7.8 million.[37]

(b) The EMD applications had been made to ameliorate, and obtain compensation for, the disruption and deprivation of rights he experienced as a consequence of the pandemic restrictions, in particular the impact upon him and his family of the suspension of contact visits.[38]

(c) In refusing the EMDs the defendant deliberately caused injury to the plaintiff, and refused to take steps to avoid further injury, in breach of her duty of care.[39] That is, the breach related to the decision to refuse EMDs.

48 The key features of the proposed statement of claim are that:

(a) The 'right' identified as the basis of the tort action which was alleged to have caused Mr Donohue injury was the right in s 47(1)(k) of the Corrections Act 1986 to receive a visit which is to last at least half an hour in each week.

(b) The defendant is said to have a duty of care to Mr Donohue based on that section.

(c) The breach of the duty is identified as the 'decision to cancel contact visits and by not providing any form of amelioration for the damage caused by that decision.'[40]

(d) The denial of the 'right to personal contact visits' constituted deliberate harm to Mr Donohue by the defendant.[41]

49 The claim that Mr Donohue seeks to bring relates to a different decision than that challenged in the proceeding before Daly AsJ. The former proceeding related to a decision of Ms Westin, as delegate of the Secretary, to refuse to grant EMDs in October 2020. The decision Mr Donohue seeks to challenge in this proceeding is the anterior decision, alleged to have been made by the Secretary from March 2020, to suspend contact visits. As observed by Daly AsJ, Mr Donohue's 'main complaint' concerned the suspension of contact visits;[42] but in the proceeding before her, his claim of a breach of duty was not based on that decision. While it was unclear whether the Secretary or the Governor of MCC made the decision to suspend contact visits,[43] it was certainly the case that neither was party to the earlier proceeding.

50 In addition to the current proposed claim involving a different defendant, it is apparent that different considerations would have attended the making of the decision as to contact visits, compared to the later decision relating to EMDs. Different questions of causation of harm would also arise with respect to the decision to suspend contact visits, as acknowledged by Daly AsJ in her judgment.[44]

51 Taking these matters into account, it is not clear to me that the claim now made is so closely related to the proceeding determined by Daly AsJ that it was unreasonable for Mr Donohue not to bring the current proposed claim in the earlier proceeding. Mr Donohue, as an unrepresented litigant, appears not to have appreciated the potentially distinct cause of action, and while it might be said that he should have identified it given the strong relationship between the two claims, it does appear that the identification of the potential claim appears to have developed over the course of that proceeding. In particular, it was discussed in the judgment given by Daly AsJ when she dismissed the proceeding, by which time it was not open for Mr Donohue to add the claim of the kind he now seeks to make to that proceeding.

52 In these circumstances, I do not consider it was unreasonable, in the sense required by the principles of Anshun estoppel, to bring forward a case based specifically on the denial of contact visits and to identify and join the proper defendant in the proceeding before Daly AsJ.

Abuse of process on the basis that the claim is foredoomed to fail

53 Taking the claim put in the proposed statement of claim, I do however consider that Mr Donohue's proposed claim is foredoomed to fail, primarily because of two significant flaws in the basis that he identifies for the existence of the right which he alleges to have been breached and the existence of a related duty of care.

54 First, as noted above, the proposed statement of claim identifies as the sole basis of his proposed tort claim the right conferred by s 47(1)(k) of the Corrections Act 1986 which he says was breached by the suspension of 'personal contact visits'. Section 47(1)(k) states:

(1) Every prisoner has the following rights -

...

(k) the right to receive at least one visit which is to last at least half an hour in each week under section 37;....

55 Section 37 provides:

(1) With the permission of the Governor, a prisoner's relatives or friends may enter a prison and visit the prisoner.

(2) A relative or friend who visits a prisoner may see and speak with the prisoner but is not permitted to touch the prisoner, unless the visit is part of a contact visiting programme or residential visiting programme.

56 'Contact visiting' as referred to in s 37(2) as well as 'residential visiting' is provided for separately in s 38 of the Corrections Act 1986. That section provides, relevantly:

(1) The Secretary may in accordance with the regulations by instrument approve contact visiting programmes under which as prisoner's family and friends may visit and have physical contact with the prisoner.

57 Thus while s 47(1)(k) does, as Mr Donohue states in the statement of claim, confer a right to half-hour weekly visits, it is not a right to contact visits, as made clear by s 37(2). Contact visits are governed by the separate provision in s 38 of the Corrections Act 1986, which gives the Secretary discretionary power to approve contact visiting programs. Regulation 79 of the Corrections Regulations 2019 identifies that any contact visiting programme must specify the nature of the programme, the persons who are eligible to participate in it, and the conditions of participation in the programme. Any entitlements to contact visits are, therefore, not a matter of a right under s 47(1) of the Corrections Act 1986 but depend on the existence of a programme which may be approved by the Secretary in the exercise of discretion, and which will then be subject to conditions of eligibility.

58 The statutory provision stipulated by Mr Donohue as the basis of the defendant's alleged duty of care, and alleged to confer a right to personal contact visits, s 47(1)(k), does not confer such a right.

59 Secondly, any rights conferred by s 47(1)(k) were, as acknowledged in the proposed statement of claim, suspended at the relevant time. This arose by the operation of ss 112E(2) and 112G of the Corrections Act 1986 (Vic). These sections had been introduced by the COVID-19 Omnibus (Emergency Measures) Act 2020,[45] which inserted a new Part 10B into the Corrections Act 1986, which included ss 112E and 112G. Those sections relevantly state:

(1) The purpose of this Part is to temporarily change the operation of this Act in response to the COVID-19 pandemic.

(2) This Part applies despite anything to the contrary in -

(a) another Part of this Act; or

(b) any other Act, other than -

(i) the Charter of Human Rights and Responsibilities; or

(ii) the COVID-19 Omnibus (Emergency Measures) Act 2020; or

(iii) the Constitution Act 1975; or

...

112G Secretary or Governor may prohibit or restrict visits for health and safety reasons

(1) The Secretary or the Governor may by order prohibit a person from entering a prison as a visitor -

(a) for the safety, security or good order of a prison; or

(b) for the health and safety of any person.[46]

60 The Secretary and the Governor had clear statutory authority to restrict contact visits in prisons, which by reason of s 112E(2)(a), applied despite anything to the contrary in any other part of the Act, including s 47(1)(k).[47] In these circumstances there was, during the operation of the temporary provisions in s 112E and s 112G, no unqualified right under s 47(1)(k); it was entirely subject to the discretion of the Secretary or Governor to prohibit visits for health or safety reasons. The clear statutory authority to prevent entry into prisons for health and safety reasons would also contradict the existence of any duty of care the content of which required the Secretary to permit visiting rights, as contended by Mr Donohue in the proposed statement of claim. It has been repeatedly recognised by the High Court that a duty on a statutory authority 'cannot arise where it would be inconsistent or incompatible with the statutory powers or duties imposed on the statutory authority or it would be incoherent with the statutory framework.'[48] In these circumstances there is no basis on which the Secretary could have had, at the relevant time, a duty of care of the kind alleged by Mr Donohue in the proposed statement of claim.

61 For these reasons, Mr Donohue's claim is, in my opinion, misconceived on its face and foredoomed to fail. For that reason it would constitute an abuse of process if the proposed statement of claim was filed. The Prothonotary's decision to refuse to seal the documents was correct, although I reach this conclusion for different reasons.

62 For these reasons I decline to direct the Prothonotary to seal the proposed statement of claim, or any associated documents, for filing.

[1] DPP v Donohue [2018] VCC 1578.

[2] Donohue v Westin [2022] VSC 37, [6] (the Niall JA Judgment). The basis identified was a ration of two EMDs per affected day in prison.

[6] Donohue v Westin [2022] VSC 794 (the Daly AsJ Judgment), [13].

[13] This section had been inserted by the COVID-19 Omnibus (Emergency Measures) Act 2020, s 26.

[19] Reasons of R Ratcliffe, Prothonotary dated 23 February 2023 (Reasons), [8].

[21] Louise Goode v All Common Equity Housing Limited Governing Board Directors (Supreme Court of Victoria, J Forrest J, 19 October 2022), [8]; Ross v Smith and Ors (Supreme Court of Victoria, Keogh J, 16 December 2022), [14].

[22] LG (a pseudonym) v The Public Advocate [2021] VSC 583, [24] (J Forrest J).

[26] LG (a pseudonym) v The Public Advocate [2021] VSC 583, [23] (J Forrest J).

[29] [1989] HCA 46; (1989) 168 CLR 23, 47.

[31] See LG v The Public Advocate [2021] VSC 583, [22] where J Forrest J approached a decision under r 28A.04(5) on the basis that the question of relitigation of matters already determined may extend beyond consideration of whether the proposed proceeding raises substantially the same issues to a proceeding already determined, to a consideration of whether the doctrine of Anshun estoppel applies.

[32] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, 602 (Gibbs CJ, Mason and Aickin JJ).

[33] [1998] VSCA 52; [1999] 2 VR 19.

[34] Gibbs v Kinna [1998] VSCA 52; [1999] 2 VR 19, [2].

[35] Gibbs v Kinna [1998] VSCA 52; [1999] 2 VR 19, [33].

[36] Sahin v NAB & Anor [2012] VSCA 317 (Ferguson AJA; Warren CJ, Neave JA agreeing); Slaveska v State of Victoria & Ors [2015] VSCA 140 (Warren CJ, Tate JA and Ginnane AJA).

[37] Daly AsJ Judgment, [4], [10], [13].

[40] Statement of claim, Part 3, page 3.

[45] Which took effect in April 2020 (see s 2 of the Act) and has now ceased to have effect.

[46] Section 112H of the new Part 10B provided that the Secretary or Governor may permit visitor and prisoner communication through other means including telephone and video conference.

[47] And, for that matter, s 38 relating to contact visits, although Mr Donohue does not rely on this section in the statement of claim.

[48] Electricity Network Authority trading as Western Power v Herridge Parties [2022] HCA 37, [27] (the Court), and the authorities cited therein.