Rich v Ryan [2016] VSCA 337

1 The applicant, Hugo Rich, is a prisoner at H M Prison Barwon (the 'prison'). In September 2015, he instituted a proceeding in the Trial Division of this Court, seeking judicial review of various decisions made by the General Manager of the prison, Mr Brett Ryan, relating to his treatment in custody. On 13 November 2015, Mr Ryan filed an application to have Mr Rich's claim struck out.

2 By summons dated 2 December 2015, Mr Rich applied for what he described as a 'coercive order', to require Mr Ryan to give him access to a CD (or the data on the CD). Mr Rich argued that he needed the legal resources on the CD in order to prepare for the judicial review proceedings, including the strike out application. On 4 December 2015, the primary judge, sitting in the Practice Court, dismissed the summons.[1]

3 Mr Rich has applied for leave to appeal against the dismissal of his summons. He has also filed a summons in this proceeding, seeking orders against Mr Ryan on the ground that he is in contempt of court. For reasons which follow, we would refuse both applications.

4 In an affidavit filed in support of the December 2015 summons, Mr Rich said that he had applied to the prison in September 2015 to be provided with, or to be permitted to receive through the mail, certain material including 'communications', legislation and case law, legal publications, Hansard extracts, a Worksafe publication, a LexisNexis catalogue, and product codes for office stationery supplies. Mr Rich said that he needed this material to prepare for the judicial review proceedings and for a High Court application which he wishes to bring in relation to this Court's dismissal of his conviction appeal.[2]

5 Mr Rich told the judge that he had prosecuted this request on a number of occasions between September and November 2015, and was eventually told by a prison officer that he would be given permission for a CD containing the material to be delivered to the prison. When no further action was taken by the prison with regard to granting this permission, he asked his wife to deliver a CD containing the material to the prison. Subsequently, Mr Rich's wife was refused permission to leave the CD for him.

6 Mr Rich contended that the decision to refuse his request (the 'refusal decision') was the result of the inflexible application of a prison policy entitled 'Commissioner's requirements: prisoner computers' (the 'policy'). The relevant part of that policy was in these terms:

Burned CDs/DVDs will only be accepted from agencies such as:

• a prisoner's legal representative
• law enforcement agencies, including Victoria Police
• Court authorities
• authorised education providers, and
• other agencies that, from time to time, may be authorised by the prison General Manager.

7 The judge noted that what Mr Rich had sought was contrary to the policy, but did not regard that fact as determinative. He proceeded to consider the nature of the substantive proceeding and whether there was a need for Mr Rich 'to have the requested CD media in the interests of justice.'[3]

The rules of the court and authorities relating to strikeout applications in the court are well established and have been developed over many years. Those principles are comprehensively outlined in practice texts and legal references that are readily available to the plaintiff. In addition, the plaintiff is entitled to receive additional legal materials in printed form. The plaintiff also has access to the Department of Justice library. Finally, the plaintiff can always invite the court to look at particular things or particular references in the course of the hearing of any application.

As a result, I am not satisfied that there is any need in the administration of justice for the plaintiff to receive CD media at this time.[4]

a security risk and an IT risk to computer systems associated with the receipt of CDs outside the parameters of Requirement 4.11.5 [of the policy].[5]

In all the circumstances, his Honour said, the summons must be dismissed.

10 Mr Rich filed a lengthy written case in support of his application for leave, in which he identified a number of grounds on which, he contended, the refusal decision was unlawful. The judge at first instance had erred in 'failing to appreciate' that this was so.

• Mr Ryan had applied the policy inflexibly, without taking into account Mr Rich's individual circumstances;
• the establishment of the policy amounted to an unlawful fetter on Mr Ryan's discretion, as it dictated how that discretion should be exercised; and
• the effort of the refusal decision was to destroy Mr Rich's right of access to the Court.

12 In the written case, Mr Rich argued that his case raised

two broad issues: first, an issue be of substantive rights turning on the proper construction of Sections 20, 21 and 47(2) of the Corrections Act 1986 vis-à-vis in relation to functions relating both to procedural entitlements of unimpeded access to a court of law, equality in standing; access to reasonable facilities on information about the law. Including, also, in where an act or practice being inconsistent with or contrary to Human Rights, in addition to common law entitlements being allegedly infringed. Secondly, the existence of a remedial question whether, in the Court's discretion, an order potentially be made, in the nature of mandamus or alternatively as to whether a declaration to remove the matter complained of, be conformably made, in all the circumstances, or, in the interest of justice.

13 These arguments betray a fundamental misconception of the nature of the original application and - hence - of this application for leave to appeal. Although Mr Rich has a judicial review proceeding on foot, the application by summons was simply an interlocutory application in that proceeding, seeking an order on a matter of practice and procedure.

14 As has been explained several times to Mr Rich,[6] the Court does not have jurisdiction to review the merits of decisions made by officers of the Corrections Victoria in their supervision of prisoners. The jurisdiction of the Court is confined to the judicial review of the lawfulness of the exercise of powers delegated by Parliament to those officers.[7]

15 Where an officer of Corrections Victoria is a defendant to proceedings in the Court brought by a prisoner, the rights of the prisoner in the litigation are the same as, but not greater than, those of any other plaintiff.[8] The Court itself will be astute to ensure that processes of practice and procedure, which exist to ensure that litigation is conducted fairly and efficiently, are not used for any other purpose.

16 The judge hearing the interlocutory application had no jurisdiction to investigate the legality of the refusal decision. That question could only have arisen if the decision itself had been made the subject of a properly-constituted application for judicial review. No such application has been made. Even if it had been, the application for an order in the nature of mandamus would have been doomed to fail, as there is no enforceable duty with respect to the subject-matter of Mr Rich's request.[9]

17 In truth, as counsel for Mr Ryan correctly pointed out in this Court, what Mr Rich was seeking was a review on the merits of the decision to refuse access to the CD and/or its contents. That was an administrative decision made in the discharge of Mr Ryan's responsibility to ensure the security of the prison.[10] The Supreme Court has no jurisdiction to undertake merits review of administrative decisions.[11]

18 It follows, in our view, that the judge had no power to make the order sought. The application for leave to appeal must be refused.

19 By summons dated 4 July 2016, filed in this Court, Mr Rich alleged that Mr Ryan had committed contempt 'in relation to' the application for leave to appeal. The summons alleged that Mr Ryan was 'seeking to impede and obstruct, the continuance of the proceeding in this particular matter.'

20 Maxwell P directed that the contempt summons be listed for hearing at the same time as the application for leave to appeal. At a directions hearing on 7 September 2016, Mr Rich was informed that, once he had made his submissions in support of the application for leave to appeal, the Court would consider whether in any respect he had been inhibited in preparing or presenting his arguments.[12]

21 At the commencement of argument on the hearing of the application for leave to appeal, Mr Rich informed the Court that he had been denied access to some of his own working papers, and as a result was not in a position to proceed with the application. At that point, Maxwell P informed Mr Rich that the Court had read and understood his arguments, as fully developed in his written case. Maxwell P summarised the principal complaints in the written case and Mr Rich confirmed that the summary was accurate. In the course of the hearing, Mr Rich was given an opportunity to make supplementary oral submissions.

22 As we have said, the arguments which Mr Rich wished to advance were fully set out in his written case. There was nothing to indicate that he was in any relevant respect inhibited or obstructed in his preparation or presentation of the arguments. His application has failed, not for want of preparation or access to materials, but because the arguments on which it rests are unsound in law.

23 The application by summons seeking orders for contempt will be refused.

[1] Rich v Ryan [2015] VSC 785 ('Reasons').

[2] Rich v The Queen [2014] VSCA 126.

[6] Rich v Groningen [1997] VSC 35; (1997) 95 A Crim R 272, 286-7 (Gillard J); Rich v Howe [2016] VSC 88 [15]-[16] (John Dixon J).

[7] As indicated above, the proceeding commenced in September 2015 is in the nature of judicial review. The present application involves a matter of practice and procedure in the judicial review proceeding.

[8] Brazel v Westin [2013] VSC 527 [21].

[9] See, eg, Knight v Anderson [2007] VSC 278; (2007) 16 VR 532, 535-36 [14]-[17]; Moran v Secretary to the Department of Justice and Regulation [2015] VSC 593.

[10] Corrections Act 1986 s 20(1).

[11] John Dixon J came to a similar conclusion in connection with a similar application by Mr Rich in a different proceeding: Rich v Howe [2016] VSC 88 [15]-[16].

[12] Brazel v Westin [2013] VSC 527 [21]-[23].