von Arnim v Group 4 Correctional Services Pty Ltd

the hearing on 4 may 2001 11 At the hearing on 4 May 2001, the applicant and the Manager for Private Corrections gave evidence. The applicant began by adopting and amending some earlier written statements. They were the statements dated 27 February 2001, 30 April 2001 and 3 May 2001. 12 In summary, the applicant's evidence was that he had ceased to be enrolled as a student at a tertiary education institution as from 31 December 2000. This was because he had not completed the forms for his re-enrolment. He said that he had not received them and that it was not his fault that his enrolment had ceased. The applicant admitted, in cross-examination, that the assertion, in his statement of 27 February 2001, that he was "in the middle of exams" was incorrect. 13 In his affidavit of 16 March 2001, the Manager for Private Corrections deposed that the Kangan Batman TAFE was providing education programmes at the Prison. He described the programmes and the process for approving applications for full-time study in the following terms: … Kangan provides not less than an average four student contact hours of accredited education in adult basic education and vocational training per prisoner per week. … . … Kangan has recognised that some prisoners have educational needs that might be outside of the Kangan contract. Primarily, this is in relation to students wishing to pursue tertiary education, although some also wish to pursue further qualifications towards their VCE. … Pursuant to the contract that [the respondent] has with the Correctional Services Commissioner, the Prison is to ensure that not more than 5% of prisoners are given approval to undertake full-time study in an accredited course. Any prisoner participating in a full-time study course must have demonstrated their application and capacity to undertake such a course and that the study will result in a benefit for the prisoner. Prisoners undertaking full-time study are exempt from work. Full-time study courses are remunerated at the Prison as if the prisoner was working according to a rate fixed by the Office of the Correctional Services Commissioner. … … Approximately every six to eight weeks, myself and the Manager for Sentence Management at the Prison hold a review and assessment (R & A) of all applicants for approval to undertake a full-time study course. … The process for considering an application for full-time study is as follows. The R & A involves a consideration of the merits of each applicant to undertake a full-time education course based on the applicant demonstrating: (a) in the case of an applicant wishing to pursue an in-house educational programme, that they have undertaken their studies successfully to that point in time; (b) in the case of an applicant wishing to pursue full-time education on an off-campus basis, that the applicant has obtained a place at a university, TAFE or college of their choice; (c) where the applicant for an off-campus full-time study course has already undertaken part of that study towards that course, that that study has been successful. Applications are considered on a first-come-first-serve basis and at any one time there can be between 20 to 30 applicants waiting for consideration. … Given that there is a limited number of places available and that there is always a waiting list for approval for full-time study positions, part of the R & A process involves considering those already on courses and as to whether they should continue to be on a full-time paid study course. Removal from a full-time study basis does not, of course, mean that the prisoner cannot continue with their educational programme. Principally, in reviewing such a person, we would be considering their progress on the course to-date and the length of time they have been on a full-time paid study basis. 14 In relation to the applicant, the Manager for Private Corrections stated that the Prison had granted him full-time education status in February 1999 to allow him to commence studies "on an off-campus basis on the 'Diploma of Professional Editing and Writing Course' at the University of Ballarat, TAFE sector". The Manager further deposed that, shortly before making his affidavit on 16 March 2001, he had spoken with a number of officers of the University of Ballarat who stated that they had no record of the applicant "studying any university qualifications at that institution". The Manager deposed that, whilst an officer of the University had confirmed that the University of Ballarat, TAFE sector, had a record of a previous enrolment by the applicant in an off-campus Diploma of Professional Editing and Writing, the University had no current record of enrolment for him. The University offered a degree course in Professional Editing and Writing on an on-campus basis only. 15 In response to the applicant's claim that he was completing part of his course through the Emmanus Correspondence College in association with the University of Ballarat, the Manager stated that officers of the College and the University had informed him that the institutions had no connection with one another. Further, he was informed by the College that the course they offered was freely provided to prisoners. The University of Ballarat stated that the applicant had been granted an exemption from the fees for his course. 16 At the hearing, the Manager gave viva voce evidence that, on 27 April 2001, he had received an envelope addressed to: Education Centre P O Box 376 LAVERTON VIC Attention: Ulrich Von Arnim The envelope, which was endorsed "Off-Campus Centre, University of Ballarat" contained: · an enrolment application for 2001 at the University of Ballarat - TAFE Division; · a pamphlet entitled "Diploma of Arts (Professional Writing and Editing)", University of Ballarat; · a course list, identifying modules available in this Diploma on an off-campus basis only; and · a note of a return mailing address The Manager also gave evidence that La Trobe University had no Ballarat campus. consideration Outcome of the applicant's application 17 On the evidence given at the hearing on 4 May 2001, the applicant necessarily failed in his application. He never was entitled to the relief that he sought because at the relevant times he was not enrolled in any full-time course in any educational programme or institution. The evidence given by the Manager for Private Corrections established that enrolment in such a programme or institution was a prerequisite for a paid full-time education position at the Prison. 18 I would have disposed of the application upon this basis at the conclusion of the hearing on 4 May 2001 but for the fact that the respondent made an application for its costs of the proceeding to be paid, on an indemnity basis, by the applicant. Jurisdiction 19 I indicated in the course of these proceedings that, after considering the parties' respective submissions on jurisdiction, I was of the view that the Court had jurisdiction to entertain the application. Before turning to the question of costs, I set out my reasons for this conclusion. 20 By his application, the applicant sought to vindicate a right that he said was conferred by s 47 of the Corrections Act 1986 (Vic) ("the Corrections Act"). Section 53 of the Extradition Act makes s 47 of the Corrections Act applicable, so far as it is can be, to a person who has been committed to prison under the Extradition Act. Section 53 provides: The laws of a State or Territory with respect to: (a) the conditions of imprisonment of persons imprisoned in that State or Territory to await trial for offences against the law of that State or Territory; (b) the treatment of such persons during imprisonment; and (c) the transfer of such persons from prison to prison; apply, so far as they are capable of application, in relation to persons who have been committed to prison in that State or Territory under this Act. 21 Whether or not this Court has jurisdiction in a proceeding of this kind depends on whether the proceeding involves "any matter … arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter": Judiciary Act 1903 (Cth) ("Judiciary Act"), s 39B(1A)(c). The exceptions are not applicable in this case: see Bertran v Vanstone (1999) 94 FCR 404 at 409-410 per Sundberg and Merkel JJ and 417 per Finkelstein J. 22 The word "matter" in s 39B(1A)(c) has the same meaning as it possesses in s 76 of the Commonwealth Constitution: see Transport Workers' Union v Lee (1998) 84 FCR 60 ("TWU v Lee") at 66 per Black CJ, Ryan and Goldberg JJ. The "matter" is "the subject matter for determination in a legal proceeding", "a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy": see In Re Judiciary and Navigation Acts (1921) 29 CLR 257 ("Re Judiciary and Navigation Acts") at 265-6; Fencott v Muller (1983) 152 CLR 570 at 591 per Gibbs CJ and 603 per Mason, Murphy, Brennan and Deane JJ; and Croome v Tasmania (1997) 191 CLR 119 at 125 per Brennan CJ, Dawson and Toohey JJ. A matter is ordinarily concerned with "some immediate right, duty or liability to be established by the determination of the Court": see Re Judiciary and Navigation Acts at 265 and Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 524 per Gleeson CJ and McHugh J and 570 per Gummow and Hayne JJ. 23 The "matter" in the present case concerns the right, which the applicant claimed as a prisoner held under the Extradition Act, to participate in a full-time education course whilst in the Prison. This right, so the applicant submitted, was conferred by s 53 of the Extradition Act which makes the State law applicable under certain conditions. The nature of the right, if any, falls to be determined by reference to that Act. Accordingly, whether or not the applicant has the entitlement he claims is a matter "arising under" the Extradition Act. 24 This conclusion is consonant with the authorities. In R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Barrett (1945) 70 CLR 141 at 154 Latham CJ observed, in a frequently cited passage, that: [A] matter may properly be said to arise under a Federal law if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law. In either of these cases, the matter arises under the Federal law. If a right claimed is conferred by or under a Federal statute, the claim arises under the statute. See also LNC Industries Ltd v BMW (Australia) Limited (1983) 151 CLR 575 at 581 and TWU v Lee at 66. 25 A similar point was made by Gibbs J in Felton v Mulligan (1971) 124 CLR 367 at 416, where his Honour said: [A] matter arises under a law made by the Parliament when a right, title, privilege or immunity is claimed under that law. A right, title, privilege or immunity may be claimed under a law, either because the law is the source of the right, title, privilege or immunity or because the right, title, privilege or immunity can only be enforced by virtue of the law. See also at 373 per Barwick CJ, at 382 per Menzies J and at 403 per Walsh J; and Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 95 per Toohey J and at 136 per Gummow J. 26 Since s 53 of the Extradition Act is the source of any right the applicant may have had to undertake a course of study whilst in the Prison, then the matter of existence of the right arises under a law made by the Parliament, within the meaning of s 39B(1A)(c) of the Judiciary Act. 27 The operation of s 53 of the Extradition Act is relevantly similar to s 79 of the Judiciary Act. Section 79 provides that the laws of each State or Territory are, except as otherwise provided by the Constitution or the laws of the Commonwealth, "binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable". That is, s 79 of the Judiciary Act specifies that a certain body of law is to apply in particular situations. Section 53 of the Extradition Act similarly makes State law applicable under certain conditions. 28 In R v Hughes (2000) 202 CLR 535 at 551, the High Court referred to the fact that s 79 of the Judiciary Act operates to "'pick up' certain State laws as surrogate federal laws". There are other references to this manner of operation of s 79 including Pedersen v Young (1964) 110 CLR 162 at 165-6 per Kitto J; Maguire v Simpson (1977) 139 CLR 362 at 408 per Murphy J; The Commonwealth of Australia v Mewett (1997) 191 CLR 471 at 514 per Toohey J and at 554 per Gummow and Kirby JJ; Northern Territory v GPAO (1999) 196 CLR 553 at 575, 587-588 per Gleeson CJ and Gummow J, at 609 per Gaudron J, at 635 per Kirby J and at 650 per Hayne J; Austral Pacific Group Limited (in liquidation) v Airservices Australia (2000) 203 CLR 136 at 143 per Gleeson CJ, Gummow and Hayne JJ and at 154-155, 158-159 per McHugh J; and Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 177 ALR 329 at 346 per Gleeson CJ, Gaudron and Gummow JJ, at 356, 364 per McHugh J, at 382-383 per Kirby J and at 388 per Hayne and Callinan JJ. In Edensor Nominees, McHugh J said at 364: By ss 64 and 79 it is the Parliament itself, and not the legislature of the State, which has provided the extent to which, consonant with Ch III and subject to the Constitution, State laws will be applicable as federal laws. When State laws apply as federal laws in proceedings in which the Commonwealth is a party and in their application affect the Commonwealth, they do so, as I have indicated, by force of federal law, the Judiciary Act, enacted by the Parliament to facilitate the exercise of the judicial power of the Commonwealth. 29 Likewise, when s 47 of the Victorian Corrections Act applies as a surrogate federal law in proceedings concerning the matters referred to in s 53 of the Extradition Act, it does so by force of federal law. Section 53, when it applies, becomes the source of any relevant right. Although the "matter" in the present proceeding concerns the definition of a right in State law, it nonetheless arises under a federal law which picks up the State law and gives it the force of a federal law under certain conditions. It was for this reason that I formed the view that the Court had jurisdiction under s 39B(1A)(c) of the Judiciary Act to entertain the applicant's application. Indemnity costs 30 As noted, the respondent sought an order that the applicant pay the respondent's costs of the proceeding (including reserved costs) on an indemnity basis. The Court has power to make an order of this kind: see Federal Court of Australia Act 1976 (Cth), s 43 and Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 ("Colgate-Palmolive") at 228 per Sheppard J and the cases there cited. The question is whether the Court should so exercise its discretion in this case. 31 In Colgate-Palmolive at 232-4, Sheppard J set out some relevant principles, including the following. The ordinary rule is that, where the Court orders the costs of one party to litigation to be made by another party, the order is for payment of those costs on the party and party basis. In this Court the provisions of O 62, rr 12 and 19, and the Second Schedule to the Rules will apply to the taxation. In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity. … In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. … Woodward J in [Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397] appears to have adopted what was said by Brandon LJ (as he then was) in Preston v Preston [[1981] 3 WLR 619 at 637]; namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. … … It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice. 32 In support of its application, the respondent also referred me to various other authorities, including Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (1999) 166 ALR 302. In that case, the respondent had filed an application in the Supreme Court of the Australian Capital Territory seeking an order that the applicant (Helljay) be wound up in insolvency. A director of Helljay sought to oppose the winding-up application. He filed a notice of motion in the High Court in the name of Helljay which sought an order removing the cause pursuant to s 40 of the Judiciary Act. On the adjourned hearing in the Supreme Court, an order for winding-up was made notwithstanding opposition to the application. The application for removal was ultimately dismissed with costs to be taxed on an indemnity basis. Hayne J said at 310 that: [T]he application for removal was untenable and obviously so. That being so, and Mr Murphy [the director of Helljay] having continued to prosecute the application brought by Helljay despite the expressed attitude of the liquidator, this is a case in which the award of costs, both to the liquidator and to the respondent, should go beyond the ordinary party and party basis and extend to indemnity costs as that expression was explained by Sir Robert Megarry V - C in EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59 at 74. 33 The respondent's case for an award of indemnity costs was set out in final written submissions where it submitted that: [I]n the present case the following special circumstances justify an award of indemnity costs: (a) the Applicant has deliberately asserted facts that are false; (b) the Court is entitled to infer from all the facts before it that the Applicant knew or ought to have known that the facts asserted by him about his enrolment at the University of Ballarat were false; (c) the Applicant has put the Respondent to considerable expense in defending a claim that had no prospects of success; and (d) the Court ought not regard the Applicant as an inexperienced layman. His history in Courts in Victoria establishes that he is quick to assert rights that he plainly does not possess and to pursue unmeritorious appeals. He has also demonstrated an ability to conduct legal research and to write submissions, albeit submissions with little or no forensic merit. 34 I accept that, in at least one respect, the applicant asserted a fact that, at all relevant times, he knew was false. As noted, the applicant admitted, in cross-examination, that the statement made in his application and supporting statement of 27 February 2001 that he was "currently in the middle of exams" was wrong. Moreover, he did not correct the error properly at the hearing on 28 February 2000. Rather, he said that he would not be examined until the end of the semester. This too turned out to be false. I accept that the applicant knew that the statement made in his application and statement of 27 February 2001 was wrong at the time it was made. It gave some colour of urgency to his application, and this was presumably the reason for its inclusion. (I note that there was some evidence from the respondent that the application may have been precipitate in any event.) 35 I am not satisfied, however, that I am entitled to infer from the evidence that the applicant knew that all the facts asserted by him about his enrolment at the University of Ballarat were false. The evidence does not, I think, warrant a finding that, at the time he made his application on 27 February 2001, the applicant knew that he was no longer enrolled in the course that he had been pursuing the previous year. He should have appreciated that he was not, or that it was likely that he was not, enrolled as he claimed when he received the affidavit of the Manager for Private Corrections, mentioned earlier. The material before me does not establish precisely when it was that the applicant received this affidavit, although it is clear enough that the applicant, either personally or by his legal representatives, had received the affidavit and submissions referring to it by the hearing on 10 April 2001. When I specifically drew the applicant's counsel's attention to the enrolment issue, observing that the respondent's evidence tended to show that the applicant was not enrolled in any course of study for the year 2001, there was no suggestion by counsel that he had not received the relevant material prior to the hearing. Indeed, a letter from Ms Moorhouse-Perks dated 1 May 2001 (which is exhibited to the applicant's statement of 3 May 2001) informed the applicant that an officer of the University of Ballarat had advised that "she was not able to confirm that you were enrolled because you had not returned enrolment papers for this year" and "on receipt of your letter in April of this year seeking that she confirm your enrolment, [she] sent enrolment papers to you by post on 23 April 2001". 36 I accept that from 10 April 2001, the applicant, who was legally represented at least between 10 April 2001 and 4 May 2001, must be taken to have been aware that he was not, or was probably not, enrolled in a course at the University of Ballarat. It follows that, from 10 April 2001, he must be taken to have been aware that his application was, or probably was, untenable. 37 In submitting that the applicant had put the respondent to considerable expense in defending a claim that had no prospects of success, the respondent also contended that there was no tenable basis for the applicant's claim that s 47(1)(o) of the Corrections Act, in so far as it was made applicable by s 53 of the Extradition Act, conferred on him a right to participate in a full-time course offered by a tertiary education institution outside the Prison, and to receive payment from the respondent for so doing. 38 The respondent contended that the terms of s 47(1)(o) make it clear that, in conferring a right on prisoners (as described in s 4(1) of the Corrections Act) to take part in educational programmes in the Prison, the section conferred a right only to participate in programmes actually conducted in prison, as distinct from educational courses offered by educational institutions outside the Prison to students who were invited to study off-campus by correspondence or by means of electronic communication. That is, the respondent contended that s 47(1)(o) should be construed as conferring a right on prisoners to participate in educational programmes provided by the Prison pursuant to its implied obligation to provide such courses for prisoners. 39 The respondent submitted that the alternative construction of s 47(1)(o), which had been proposed by pro bono counsel, should not be accepted. According to the alternative construction, the words "in the prison" in s 47(1)(o) were to be read as describing the place where the prisoner was to exercise the right to take part in an educational programme. In other words, the provision was to be construed as conferring a right to take part in educational programmes providing the prisoner did so "in the prison". 40 It is unnecessary to determine which, if any, of the proposed constructions of s 47(1)(o) is correct. This is because, first, as I have already stated, I am of the view that the applicant's application must fail in any event; and, secondly, neither construction propounded in this proceeding would support the applicant's claim that he had a right to engage in a full-time course offered at a tertiary institution outside the Prison, and to receive payment from the respondent in consequence. Viewed in this way, I accept, as the respondent submitted, that the application made on 27 February 2001 was bound to fail. If this was not apparent to the applicant, it ought to have been apparent to his legal advisers, whom he retained at least between 10 April 2001 and 4 May 2001. 41 I propose to order that the application dated 27 February 2001 be dismissed and that the applicant pay the respondent's costs on the party and party basis up to and including 10 April 2001 and on the indemnity basis (as that expression was explained in EMI Records Ltd [1983] Ch 59 at 74) from 10 April 2001. 42 Again, pro bono counsel has assisted the Court. The Court acknowledges the public service rendered to the Court and to litigants in person by members of the profession who agree to act without fee as counsel (or solicitor) in the presentation of argument or in the preparation of cases in order that the interests of justice be served. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate: Dated: 20 March 2002 Counsel for the Applicant: Prior to 10 April 2001 and after 4 May 2001 - unrepresented

22 March 2001 - Mr S McLeish provided pro bono assistance with submissions

10 April to approximately 10.15am on 4 May 2001 - Mr B Monotti

Solicitor for the Applicant: Prior to 10 April 2001 and after 4 May 2001 - unrepresented

10 April to approximately 10.15am on 4 May 2001 - Ms K Moorhouse-Perks

Solicitor for the Respondent: Arthur Robinson & Hedderwicks

Dates of Hearing: 10 April and 4 May 2001