Rich v Howe [2016] VSC 88

2 The particular application that has come before the court arose in the following circumstances. In December 2015, Mr Rich brought an application in the Practice Court in another proceeding in which a Mr Brett Ryan is the defendant (the Ryan proceeding) that was refused. Mr Rich then applied for leave to appeal that decision, which application is yet to be heard by the Court of Appeal. An issue that arises in that appeal was whether Mr Rich was denied access to justice because he was denied access to source legal materials via a computer that he would use to prepare an appeal. In that sense, he contended that his right to unimpeded access to the court had been infringed.

3 This proceeding was fixed for trial on 18 March 2016. In early February 2016, Mr Rich applied to Daly As J to vacate the trial date, an application that was opposed by the defendant. That application was made by summons filed 8 February 2016, supported by Mr Rich's affidavit sworn the same day. Before me, Mr Rich referred me to an earlier affidavit, filed in this proceeding, that he swore on 24 November 2014, and an affidavit that he had sworn in the Ryan proceeding on 6 January 2016

4 The defendant stated that the affidavit of 8 February 2016 has not been served. Although Mr Rich asserts that he was unaware of that fact and believed that the affidavit had passed through the usual prison postal system and ought to have been received, I am not persuaded that the affidavit was in fact served.

5 By the summons, Mr Rich also sought mandatory injunctions that Daly As J referred to the Practice Court after ordering the adjournment of the trial to permit Mr Rich to await the decision of the Court of Appeal in the Ryan proceeding before proceeding to trial in this proceeding. Mr Rich described the issue in the Ryan proceeding that he wished to have answered before trial in this proceeding to be -

an issue of substantive rights turning on the proper construction of ss 20, 21 and 47 of the Corrections Act vis-à-vis in relation to the functions for both rights and procedural entitlements in respect to unimpeded access to a court of law, equality in standing, sir, access to reasonable facilities on information about the law, including also in where an act or practice undertaken being inconsistent with or contrary to the proper construction of s.20, 21 and 47(2) of the Corrections Act.

6 Mr Rich seeks a mandatory injunction to restrain the following parties; Mr Roderick Wise, Mr Brendan Money, Ms Michelle Hosking and Mr Nicholas Solisky, from 'acting upon a threatened injury or apprehended violation of a legal right', said to be evident from letters that were sent to him by Mr Wise and Mr Solisky.

7 The letter from Mr Wise dated 21 December 2015, does not communicate that any decision was made by him at that time, but rather, explained that he intended to review the situation regarding Mr Rich's continued use of an incell computer and he was seeking input from Mr Rich before making that decision, giving him a period of 14 days in which to do so. That letter does not evidence any threatened injury or apprehended violation of a legal right.

8 Mr Solisky's correspondence, of late January, was not before the court, but Mr Rich read out the material parts of that correspondence during the course of the hearing. The relevant part of the letter of 27 January 2016 was -

At the meeting with Mr Wise and myself on 14 January 2016 you were asked to provide us with specific documentation relating to your High Court appeal. You stated that you had official correspondence regarding this and that this would be provided in the coming days. I am yet to receive this.

Any decision that Mr Wise might make in relation to you retaining an in-cell computer are reliant upon the receipt of this documentation. Please provide the documentation prior to the close of business by 1 February.

The relevant part of the letter of 29 January 2016 was -

I refer to your letters dated 16 January by one, 18 January by one, 19 January by one, 21 January by two, 22 January by one.

All of the issues raised need to be resolved at a unit level by your supervisor.

I have also asked that the Operations Manager, Mr G. Collison, speak to you as per the request book. You will recall on 17 January, I met with you and Deputy Commissioner R. Wise where you had ample opportunity to discuss this issue with me.

In relation to the repairs to the Correctional Victoria computer you have access to we will not be making any attempt to repair or replace it until Mr Wise makes a decision in regards to your ongoing access to it. This decision being delayed as you have not provided the High Court appeal correspondence from the High Court Australia. When I am in Banksia Unit next I will endeavour to see you.

9 The crux of the matter is Mr Rich's concern that Mr Solisky stated there is no evidence that Mr Rich commenced an application for special leave to appeal to the High Court of Australia and that, on that basis, it is not appropriate to further consider the requests that he is making.

10 Pending the trial that he adjourned, Mr Rich seeks a mandatory injunction that the Office of Corrections repair or replace the defective computer within 48 hours, that Mr Solisky reinstate the previous supervised scanning facility to which Mr Rich had access, within 48 hours, and thirdly, that Mr Brett Ryan, the general manager of the prison, reinstate the previous supervised email facility that Mr Rich had access to, within 48 hours.

11 It may first be noted that neither Mr Solisky nor Mr Ryan are parties to the proceeding. Mr Rich asserts that Mr Ryan presently holds the office that was occupied by Mr Howe at the time the proceeding was commenced, but there is no evidence to that effect. It appears that there is a procedural irregularity. Mr Howe is no longer the appropriate defendant in the proceeding and the plaintiff, who is self-represented, has not taken any steps to correct that situation. Having said that, I do not propose to decide this application against Mr Rich on that procedural issue although some attention will need to be given to identifying the precise parties whose decisions are the subject of challenge by Mr Rich in this proceeding. That matter that can be dealt with before the matter is refixed for trial.

12 I cannot identify from the material the basis upon which Mr Rich asserts the right to relief from the court that would achieve the repair of the computer, the reinstatement of the scanning facility and the reinstatement of the supervised email facility. No claim of that sort is made in the originating motion and there has been no application to amend the originating motion. Again, Mr Rich's response is that these matters have more recently arisen and that he would have dealt with these matters in front of Daly As J, but as the applications developed, that opportunity did not arise.

13 Mr Rich stated that the crux of his allegations was to be generally found in the correspondence which is exhibited to the affidavits and in that sense the defendant is on notice of the issues that arise in the proceeding. One of those affidavits has not been served.

14 I do not agree. The defendant is entitled to know precisely what are the issues that are being raised against him at the trial, as are the persons whose conduct Mr Rich would have the court enforce by injunction. I do not agree that it is open to Mr Rich to simply say the issue is mentioned, and can be found by the defendant, in correspondence that is exhibited to an affidavit. What the issue is to be determined by the court on this application and at trial requires precise identification. Mr Rich seeks to invoke judicial review of administrative action. The administrative action in issue must be identified.

15 That jurisdiction does not involve the court exercising a supervisory jurisdiction over the merits of prison management by the Office of Corrections. Matters about the repair or replacement of computers or scanners are not matters that the court is concerned with. It is necessary to identify precisely the administrative decision that was made in relation to those matters and precisely why it is said that such administrative decision is amenable to review. That has not occurred. I am unable to identify that there is a prima facie case in any sense, let alone in the sense of a serious question for trial that warrants the injunctive relief sought.

16 In any event, to proceed by making a mandatory injunction would be to, in effect, exercise a merits based response to Mr Rich's complaints and to make the decision that the defendant did not make. There is no appropriate basis for such a response from the court.

17 Mr Rich did strongly press the proposition that much of his accumulated data was at risk if the computer was not repaired or replaced. In that sense, there was a question of preservation of the status quo, but a mandatory injunction in the terms sought is an inappropriate response for that risk.

18 Mr Rich suggested that in the alternative, I might make orders for the preservation of the computer, about which I would say two matters. The first is that there is no material that identified for me precisely what actually is the risk to the data that Mr Rich is seeking to preserve. He has referred to backing up his data on to CDROMs in the context of being unable to access that data because the scanning facility was not available to him. Beyond that I have no information about the location of this computer, in whose possession it is, what is likely to happen to it and why it is said that there is some threat to its continued existence. In any event, the computer is the property of the Office of Corrections. I seems that Mr Rich appreciates the risk to his data of it being stored on an Office of Corrections' computer and has backed it up. I see no need for orders to preserve the computer in order to preserve the data.

19 The second observation that I would make is that having regard to the ventilation of these issues within court and the existence of these court proceedings, I would be surprised to learn that the computer was destroyed or disposed of prior to trial. But that is a different matter from making any order for it to be repaired or replaced.

20 The remaining matters upon which relief is sought, to the extent that there is a decision identified, turn on Mr Rich's perception that he is being denied access to his legal resources database that is preventing him from preparing for upcoming hearings of which at least three have been identified. The first is the trial of this proceeding, the second is the application for leave to appeal in the Ryan proceeding, and the third is his application for special leave to appeal to the High Court of Australia.

21 It is only the first of those proceedings that I am concerned with. The question of procedural unfairness in preparation for a hearing is a matter for the court that is seized of the proceeding. The difficulty again is assessing the extent to which Mr Rich has made out a prima facie case for relief that would justify an interlocutory mandatory injunction, which would have the effect of making a decision affirmatively in Mr Rich's favour. That relief would not be available to Mr Rich at trial. The court is concerned with the lawfulness of the decisions made, not the merits.

22 Further, bearing in mind all of the relevant discretionary considerations, the balance of convenience does not favour making the orders that Mr Rich seeks. The test is to determine where the greater risk of injustice will lie in the event that the decision that I make turns out, at trial, to have been the wrong decision, that is, if I refuse to make an injunction that Mr Rich is subsequently found to be entitled to or vice versa.

23 It, in my view, seems most unlikely that the court will, in these circumstances, resolve the issues that are being raised by mandatory injunction. At the highest, the court might quash a decision and return it to the decision maker to be made according to law. The risk of the lesser harm is achieved in these circumstances if I refuse the application for these mandatory injunctions. Mr Rich will respond that that conclusion effectively precludes him from unimpeded access to his legal resources and therefore unimpeded access to justice in pursuing the trial in this proceeding, but I do not see that he was precluded from making out the case that he seeks to make at the original trial date of 18 March 2016. Mr Rich chose to adjourn the trial because he thought that it would be appropriate to wait until the determination of the application for leave to appeal to the Court of Appeal in the Ryan proceeding. It does not follow that this proceeding could not have been resolved independently of the appeal.

24 What, in a nutshell, Mr Rich was required to do in this proceeding was to demonstrate the facts of his claim, that is, to identify a decision, show that there were grounds to impeach that decision and show that as a result of that decision, he has been denied the opportunity to present his case. While it may be of some advantage to Mr Rich to have access to computers or to his CDROM database, in demonstrating that he does not have that access, he fails to address the question of why the administrative decision is not valid.