Anderson v Pavic

Case [2005] VSCA 244


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

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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

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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.

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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.:

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

MAXWELL, P.:

  1. 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.”

  1. 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.

  1. 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.

  1. 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.

  1. 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…

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Anderson v Pavic [2005] VSCA 244
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[2005] VSCA 244
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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.

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