Legal Research
Cases
Anderson v Pavic

Anderson v Pavic

Case [2005] VSCA 244 4 October 2005

Judicial Review

Legitimate Expectation

Statutory Interpretation

Administrative Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

Nos. 5281 and 5336 of 2004

KELVIN JOHN ANDERSON COMMISIONER, CORRECTIONS VICTORIA
	Appellant
v.
STEVEN FRANCIS PAVIC	Respondent

---

JUDGES:	WARREN, C.J., MAXWELL, P., and NETTLE, J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 October 2005
DATE OF JUDGMENT:	4 October 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 244

---

Administrative Law – Judicial review – Power conditioned on decision-maker’s state of satisfaction - Corrections Act 1986 (Vic), s.58E(1) – Open to Commissioner not to be satisfied that disruptions arose in circumstances “of an unforeseen and special nature” – No jurisdictional error – Appeals allowed.

---

APPEARANCES:	Counsel	Solicitors
For the appellant	Mr P. J. Hanks, QC with Mr J.D. Pizer	Corrections Victoria
For the respondent	Mr O.P. Holdenson, QC with Mr G.M. Hughan	Victoria Legal Aid

WARREN, C.J.:

I invite his Honour, the President, to state his reasons first.

MAXWELL, P.:

Division 3A of Part 8 of the Corrections Act 1986 (“the Act”) makes provision for emergency management days. Relevantly for present purposes s.58E(1) provides as follows:

“(1)The Secretary may, in accordance with the regulations, reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period (if one has been fixed in respect of the sentence) on account of good behaviour while suffering disruption or deprivation—
(a)during an industrial dispute or emergency existing in the prison or police gaol in which the sentence is being served; or
(b)in other circumstances of an unforeseen and special nature.”

The power conferred by that sub-section is expressed to be exercisable "in accordance with the regulations". Under the regulation-making power in the Act, Regulation 70 was made, dealing with emergency management days. Sub-regulation 1 of Regulation 70 confers a power on the Secretary to grant emergency management days in terms which are, for practical purposes, identical with those in the statute.

In my view, the power exercised, or available for exercise, by the Secretary or her delegate is the power under the Act. To the extent that the regulation purports to confer a power, it is redundant. To the extent that the regulation specifies how the statutory power is to be exercised, it operates as sub-s.1 contemplates that it will.

This case concerns two separate decisions by the appellant Commissioner not to grant emergency management days to the respondent, Mr Pavic. The learned

trial Judge held that each of the decisions was affected by jurisdictional error, and it is that decision – more accurately, the decision in each of two proceedings – from which the Commissioner appeals to this Court.

On 7 March 1996, Mr Pavic was convicted of murder and sentenced to 18 years' imprisonment with a non-parole period of 13 years. By reason of this conviction and sentence, Corrections Victoria designated him to be a "special category" prisoner. On 29 September 2003 he sought four Emergency management days for the disruption said to be due to the reclassification of his prison security rating from C1* (which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anderson v Pavic

Details

AGLC: Anderson v Pavic [2005] VSCA 244
Case: [2005] VSCA 244
Decision Date: 4 October 2005

CaseChat Overview and Summary

The case of Anderson v Pavic involved a challenge to a decision made by the Commissioner of Corrections under section 58E(1) of the Corrections Act 1986 (Vic), which allows the Commissioner not to be satisfied that disruptions in prison arose from unforeseen and special circumstances. The appellant, Anderson, sought judicial review of the Commissioner's decision, contending that it was based on an error of law. The case was heard in the Supreme Court of Victoria and subsequently appealed to the Court of Appeal.

The primary legal issue before the court was whether the Commissioner's decision to not be satisfied that the disruptions were of an unforeseen and special nature constituted a jurisdictional error. The court had to determine if the Commissioner's discretion under the statute permitted such a decision, and if the Commissioner exercised that discretion in a manner consistent with the law. The court also needed to consider whether there was any error in the application of the statute that could render the decision invalid.

The Court of Appeal found that the Commissioner's decision was not a jurisdictional error. The court reasoned that the statutory provision explicitly allowed the Commissioner not to be satisfied about the nature of the disruptions, and this was a legitimate exercise of the discretion granted by the statute. The court held that there was no requirement for the Commissioner to be satisfied of the unforeseen and special nature of the disruptions, and therefore, the decision did not involve an error of law. Consequently, the court allowed the appeals, affirming the Commissioner's decision. The court clarified that the Commissioner's discretion was not limited by requiring satisfaction of certain conditions, but rather the statute permitted the Commissioner to make a decision based on their assessment of the circumstances.

No additional orders were made beyond the allowance of the appeals and affirmation of the Commissioner's decision.

Orders