Badenoch v Department of Justice
[2003] VSC 329
•19 August 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CIVIL JURISDICTION
No. 8160 of 2002
| FARREN DEACON BADENOCH | Plaintiff |
| V | |
| SECRETARY TO DEPARTMENT OF JUSTICE & ORS | Defendants |
---
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 August 2003 | |
DATE OF JUDGMENT: | 19 August 2003 | |
CASE MAY BE CITED AS: | Badenoch v Department of Justice & Ors | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 329 | |
---
Interlocutory injunction – Prisoner seeking not to be moved from one prison to another – Existence and limitation of prisoners' rights – Relief refused.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff in person | |
| For the Defendants | Ms M. Kennedy S.C. with Ms M.A. Tran | Ms N. Sahinidis |
HIS HONOUR:
By summons filed in this court on 15 November 2002 the plaintiff Mr Farren Deacon Badenoch seeks interlocutory injunctions to the following effect: first, that the defendants be restrained from moving the plaintiff, a currently serving prisoner, from Port Phillip Prison until the conclusion of the proceeding and, second, that the defendants be restrained from moving the plaintiff from Port Phillip Prison until he has filed a written submission in support of his appeal against conviction and sentence for murder in which he currently is unrepresented by a legal practitioner. The three defendants now are the Secretary to the Department of Justice, the Correctional Services Commissioner and the Director of Sentence Management.
By writ filed on the same day, the plaintiff seeks an order by way of prohibition that the defendants cause the plaintiff to remain at Port Phillip Prison until his completion of the preparation of material to be put to the Court of Criminal Appeal and that material has been filed with the Court of Appeal in the form of a written submission, together with numerous declarations, essentially as to incidents of the plaintiff's right of access to the Court and thereby to justice. The matter before me is the summons for the two interlocutory injunctions.
Some explanation is needed of the extensive time taken between the filing of the summons and its adjudication today.
The summons for interlocutory injunctions came on before Beach J on 2 December 2002 sitting in the Practice Court. On that day Ms Sahinidis, the learned solicitor for the defendants appeared for the defendants and the plaintiff appeared in person. The general form of the Order states:
Attendance: Ms Sahinidis, the solicitor for the defendants. The plaintiff in person.
Other matters: In my opinion this Court should not interfere in the internal operations and procedures of the prison system. I can see no reason why the plaintiff should not be transferred from the Port Phillip Prison to the Barwon Prison if the authorities should consider that is the appropriate course to adopt.
The Court orders that: the proceeding is dismissed.
With every respect to the learned judge I consider that the proceeding was most unfortunate. Neither party was given any opportunity to address the court. The purpose of the courts is to hear people, not to shut them out.
Not unnaturally, Mr Badenoch by notice filed 18 December 2002 sought to appeal from the decision of the learned judge. On 28 May of 2003 the Court of Appeal ordered that the order below be set aside and the proceedings be referred back to court for hearing.
Mr Badenoch is a serving prisoner. He was convicted on 19 October 2001 at the Mildura Sittings of the Supreme Court for the murder of his sister. He was sentenced on 31 July 2002. The sentence imposed by the learned sentencing judge was that the plaintiff be imprisoned for 14 years with a minimum term before eligibility for parole of nine years.
Again, the time taken between conviction and sentence calls for an explanation and which is not irrelevant to the considerations properly to be exercised by me in this proceeding.
The offence of which the accused was convicted occurred on 1 March 2000. The court sat in Mildura from 8 to 14 August 2001 wherein pre-empanelment submissions were heard by the learned judge. The plaintiff was represented by most experienced counsel, Mr Hartnett, who was instructed. The accused at the conclusion of the pre-empanelment proceedings dismissed his counsel. Thus the trial could not immediately proceed. Trial Two occurred between 9 and 19 October 2001, again in Mildura. On this occasion the plaintiff was represented by another most experienced counsel, Mr O'Doherty, who was instructed. The jury's verdict was on 19 October 2001. Then at the commencement of the following year the accused dismissed Mr O'Doherty as counsel. Two mentions were made before the learned judge and then a plea on behalf of the accused with third counsel, Ms McNiff, also most experienced, occurred on 16th and 17 July 2002. The sentence was imposed on 31 July 2002 in Melbourne.
On 2 August 2002 the plaintiff filed a notice of application for leave to appeal against the conviction on 31 July 2002. This is a detailed document of ten pages including 31 grounds of appeal. The 30th ground of appeal is that the conviction for murder was against the weight of the evidence. The 31st ground of appeal is in all of the circumstances and taking all of the above grounds of appeal together, the cumulative effect is that there was a serious miscarriage of justice which causes the conviction to be manifestly unsafe and unsatisfactory. The other twenty nine grounds of appeal complain about decisions or conduct of the learned trial judge including alleged bias or assert incompetence and worse of defence counsel and instructor.
As I said in discussion both with Mr Badenoch, who appears unrepresented before me, and Ms Kennedy of senior counsel who appears for the defendants, I have been at pains in this proceeding not to venture into the merits or otherwise of the trial or of the appeal. Doubly so because I wish to respect to Mr Badenoch's right to privacy as to his own considerations as to the grounds of the appeal, which is yet to be heard. The application for leave to appeal is likely to be heard in the first term next year.
After the sentence was imposed Mr Badenoch filed, on 12 August 2002, application for leave to appeal against sentence. In view of the sentence imposed, I will say nothing further about that.
So much is necessary to say in order to give a structure and context to the matters to be determined by me.
I must say that Mr Badenoch in appearing for himself argued the matters he wished to place before the court in a most thoughtful and comprehensive way. His submissions were relevant and if I may say so, very well presented both orally and in writing.
This proceeding, of course, is not for final relief but is for interlocutory relief. The usual interlocutory criteria - which I do not need here to repeat as they are well-known and as Mr Badenoch has shown he is well familiar with them by reference to his written submissions - apply to this proceeding.[1] However, I have adopted an inclusive and plenary approach to the material sought to be relied upon by Mr Badenoch in this proceeding. I consider that where a person is unrepresented and is in custody and has shown, as Mr Badenoch has shown before me, a serious and responsible address to the issues, I should extend, consistent with relevant principles of law, procedure and evidence, as much plenary inclusiveness to his material as properly may be extended to him. For that reason I have had regard to an amount of material including some hearsay material and the like which, strictly speaking, is not admissible but I think in fairness to Mr Badenoch I ought to have regard to and I do so.
[1]Namely that there is a serious question to be tried and that the balance of convenience favours the granting of the injunction (Castlemaine Tooheys Ltd & Ors v State of South Australia (1986) 161 CLR 148 at 153-154 per Mason ACJ as then he was).
I proceed upon the basis that Mr Badenoch is a person currently serving a substantial sentence of imprisonment and thus is immediately and directly suffering from the disability of lack of freedom. I also proceed upon the basis - although this is something Mr Badenoch has chosen for himself, but I nonetheless take it fully into account - that he is unrepresented before me.
As the authorities clearly establish, prisoners have rights; those rights are important; the court should uphold them; and they should not be deflected, diminished, or attenuated, except by necessary matters of security, the proper running of the prison system and the fulfilment of the legitimate purposes of sentencing.[2] That is the premise upon which I proceed.
[2]See Rich v Gronigen (1997) 95 A. Crim. R. 272 especially at 286-289 per Gillard J.; Collins v State of South Australia (1999) 74 S.A.S.R. 200; Fyfe v State of South Australia (2000) S.A.S.C. 84 especially paragraph 18 per Martin J.; and generally R Edney "Judicial Deference to the expertise of correctional administrators: the implication for prisoners' rights" (2001) 7 Australian Journal of Human Rights 91.
Essentially, this application as argued by Mr Badenoch both orally and in writing, is for access to law. In two ways: access to law holistically speaking and access to this Court specifically speaking, the Court being the gateway to the law. Mr Badenoch submits that he will be prevented, or at least hindered, and prejudiced in his access to the Court, notably the Court of Appeal next Term One, if he is moved from Port Phillip Prison to Barwon Prison. Mr Badenoch submits that he is entitled to have full and proper access to the Court, that he is starting from a position of disadvantage being a person without freedom, namely a serving prisoner and - although of his own choice - a person presently unrepresented. I say "of his own choice" not in an otiose sense. I have rehearsed briefly the history of his dispensing with numerous qualified lawyers. That does emphasise that his present situation of being legally unrepresented is indeed of his own choice.
I agree entirely with Mr Badenoch that the State has a duty of care to those whom it coercively holds.
Mr Badenoch in his submissions in the end focused upon four main areas he says of prevention of access to the Court. The first is the prevention of his access to his "support network" if he is moved from Port Phillip Prison to Barwon. The second is the prevention of his access to a particular computer if he is moved from Port Phillip to Barwon. The third is the prevention of his access to the large number of hours of computer use available in Port Phillip - significant less, 10 per cent only, if moved to Barwon Prison. The fourth is the prevention of his access to the library in Port Phillip, a lesser library being available at Barwon.
I shall take those points in turn. The first matter, and I think a very important matter personally to Mr Badenoch, is the removal of him from his "support network" – a term of Mr Badenoch's. His support network is a group of other prisoners, primarily Mr Minogue and Mr Rich, who have been assisting Mr Badenoch in the extensive preparation of his appeal papers and in the prosecution of these interlocutory proceedings. If Mr Badenoch is moved to Barwon Prison, plainly he will lose the benefit of that support group, assuming for the purposes of these applications it is a benefit. The second matter is his access to a particular computer, not one provided by the prison authorities but one provided by Mr Minogue. The third matter is the number of hours he can access computers: up to 70 hours a week in Port Phillip and about seven hours a week at Barwon. The final matter is the library which Mr Badenoch says is better at Port Phillip than at Barwon. Mr Badenoch emphasised to me in his submissions, and I consider this as a good point, that it is the combination of the matters which he really relies upon and that they should not, as it were, be cut down one by one in isolation but should be regarded as an holistic entity, and I proceed upon that basis. That, however, does not mean that one should not apply analysis to these arguments just as one does to any other argument in any court proceeding. The purpose of court proceedings is to look at arguments, and then assess them analytically, fairly, without prejudice and in a balanced and appropriate way.
It is not apparent to me what ultimately Mr Badenoch will do as regards legal representation before the Court of Appeal and I suspect Mr Badenoch himself presently does not know. Mr Badenoch has said to me that his lengthy preparatory material – presently the corpus of which is a two volume detailed "narrative" by him of 569 pages and which I have perused because it was exhibited by him to an affidavit - has a dual function. The first is so that he can apply to Legal Aid with it as a briefing paper to obtain legal representation on the basis of it; and second, if he does not obtain legal aid (and I add in parentheses, or if he decides not to apply for or utilise it) he can use the material himself as a base upon which to make his submissions to the Court of Appeal. It appears from what Mr Badenoch has put before me that he does intend, presently, to apply to Legal Aid for legal representation for and at the appeal. Indeed, Mr Badenoch observed in passing in his submissions to me yesterday that - although he did not use this word - he is a little wiser now than he was a year ago when he started all of this because he, having done a lot of hard work, which he plainly has done, has come to the realisation that law is a technical area and requires trained analytical skills and not just natural analytical skills which plainly Mr Badenoch himself has.
So I proceed upon the basis that Mr Badenoch presently does intend to seek legal representation for his appeal. Whether he keeps it, of course, if things do not go the way he wants them to go in running, is a question I will not venture predict. If it obtains it, I hope he keeps it.
Mr Badenoch relies upon a substantial body of affidavit material. The material primarily is affidavits deposed by himself of 12 November 2002 and of 26 June 2003 with numerous exhibits. By paragraph 5 of his affidavit 26 June 2003 he also placed before the court the two-volume file "narrative", it being the factual and analytical basis of his instructions and arguments for the Court of Appeal. Exhibited to the 26 June 2003 affidavit is an outline of law which Mr Badenoch is yet to complete. Finally there are further affidavits of his of 15 July 2003, of 17 July 2003 with numerous exhibits, and of 7 August 2003. Mr Badenoch also relies upon other affidavits as follows: of 10 June 2003 of Mr Craig Minogue, a serving prisoner at Port Phillip Prison; an affidavit of 11 June 2003 of Mr Midas Conway, a serving prisoner at Port Phillip; an affidavit of 26 June 2003 of Mr Keith Lees, a serving prisoner at Port Phillip; an affidavit of 26 June 2003 of Mr David Nicholas, a serving prisoner at Port Phillip; an affidavit of 15 July 2003 of Shaun Braebook, Aboriginal liaison worker at Port Phillip; an affidavit of 1 August 2003 of Mr Hugo Rich, a prisoner at Barwon; and an affidavit of 8 August 2003 of Mr Julian Knight, a prisoner at Barwon. Mr Badenoch also sought before me to rely upon proposed viva voce evidence: from Mr Conway about lack of access to discs at Barwon and that he has continuing problems therein; of Mr Wood, an officer that Mr Badenoch’s placement and behaviour at Port Phillip is stable and that Mr Badenoch is a good and busy worker there; and of Mr Hendon, who goes to a later and irrelevant matter, a question of behaviour in relation to some furniture which I put aside; and of Mr Minogue, further in relation to what Mr Badenoch called "an assessment of my position in relation to what is going to happen if I am drip-fed a meagre few hours per week to finish my assignments." Apart from that last matter - which plainly is opinion evidence which is inadmissible - I have taken account of what Mr Badenoch has foreshadowed he wished to call. I did not formally receive any oral evidence because the normal procedural rule should apply, namely that oral evidence is not received on interlocutory injunction applications, particularly when there is a substantial amount of material on affidavit already in support of the applications and which comes from a number (but not all) of those persons anyway. However, as I have said, in fairness to Mr Badenoch I have had general regard to that foreshadowed material. In fact most of that material is evident or implicit in the affidavit material Mr Badenoch relies upon anyway.
Based upon that affidavit and further material Mr Badenoch has put to me that he is in a position of substantial advantage presently at Port Phillip, despite his being a serving prisoner and unrepresented legally, because he has first, his support network of a number of prisoners but mainly Mr Minogue and Mr Rich, that he has extensive computer access both in terms of Mr Minogue's sophisticated computer and the number of available computer hours, and that he has a useful library. It is in stating Mr Badenoch's case at its highest that the flaw in it reveals itself. I shall return to that in a moment.
Ms Kennedy, leading Ms Tran for the defendants has relied upon a body of affidavit material for the defendants as well as written and oral submissions.
Ms Sahinidis, learned instructing solicitor, has deposed in an affidavit filed on 11 August 2003 as to the extensive history of this matter which I have in skeletal form reviewed. A substantial affidavit has been filed of Mr T.W. Pickering, assistant manager, Sentence Management and Strategic Operations Unit of the Office of the Correctional Services Commissioner. I turn to that affidavit.
Mr Pickering deposed that the Sentence Management Unit is responsible for carrying out sentence management functions. Sentence management is the ongoing process of identifying and matching the security and management risks and program needs of individual prisoners to the available correctional services. It is a process of balancing a number of factors, particularly security, management concerns, needs of prisoners, the public's need for protection and the efficient and effective operation of the correctional system. Mr Pickering personally attends Port Phillip Prison twice a week to chair Sentence Management Panel meetings and Barwon once a week for a like purpose. He deposed that Port Phillip Prison is Victoria's remand prison. It is designed to provide the programs, facilities and level of contact which are considered appropriate for remand prisoners. Except in certain circumstances, Port Phillip Prison is not intended to hold prisoners for the duration of their sentences. Sentenced prisoners may serve some time of their sentence at Port Phillip Prison because of specific needs or issues that need to be accommodated in specialist units. Those issues may include high protection, high management, intellectual disability, diagnosed mental illness or a requirement for secondary or tertiary treatment. There is also a small number of sentenced prisoners employed, as indeed Mr Badenoch was, in essential worker positions at Port Phillip Prison. The Sentence Management Panel will usually consider a request by the management of Port Phillip Prison for a prisoner to remain at Port Phillip Prison on a short-term basis on the ground that he occupies an essential worker position. However, these positions are not generally intended to be long term. Where a sentenced prisoner occupies an essential worker position, usually the Sentence Management Panel will ultimately require the management of Port Phillip Prison to train a replacement for the essential worker position so that the sentenced prisoner can move to another prison within the prison system which is more appropriate to the prisoner's needs or sentence duration.
Mr Pickering deposed that on 6 August 2002 the plaintiff had an initial meeting with the Sentence Management Panel wherein the plaintiff stated that his primary focus was on his appeal in which he might be appearing for himself. The Sentence Management Panel had been informed that the plaintiff held an essential worker position at Port Phillip Prison. As a result the Sentence Management Panel determined that the plaintiff would remain at Port Phillip Prison and be reviewed for transfer to Barwon in December 2002. The panel met again with the plaintiff on 26 November 2002 at which meeting Mr Pickering again was present. Mr Pickering informed the plaintiff that he was currently classified to Port Phillip Prison and that there would be a review of this in December, the next month. Mr Pickering discussed the plaintiff's progress with Port Phillip staff and was told that his behaviour was excellent both in relation to work performance and general conduct. It was decided that the plaintiff presently remain at Port Phillip and to review the position again in March 2003. In March 2003 the relevant subsidiary committee again met, reviewed the position of the plaintiff and made a recommendation that he be permitted to stay at Port Phillip Prison for a further three months. Mr Pickering constituting the Sentence Management Panel reviewed this recommendation on 9 April 2003. That date is the critical date for purposes of the custodial flow process in this particular case. Mr Pickering deposed in paragraph 24 of his affidavit that he determined that a further extension of the plaintiff's stay at Port Phillip Prison was not appropriate. Mr Pickering deposed as follows in that paragraph:
"EWPs (essential workers positions) are generally not intended to be long-term positions. Port Phillip Prison management is expected to train replacements for these positions in order to enable sentenced prisoners to progress into other prisons where their long-term needs can be more satisfactorily addressed. I felt that a six-week extension would be sufficient to enable Port Phillip Prison to train a replacement for the plaintiff's EWP and that a three-months extension was not necessary. I decided that the plaintiff's classified location should be changed to Barwon Prison with effect after 2 June 2003."
Exhibited as Exhibit TWP6 is the notation of the reasons of Mr Pickering's decision-making on 9 April 2003.
Finally, Mr Pickering deposed that in early June 2003 a decision was made by the Sentence Management Panel to delay the transfer of the plaintiff until after the hearing of his application for an interlocutory injunction in this proceeding. And indeed, that is what has occurred. The prison service has loyally waited to the end of this interlocutory proceeding and has not moved Mr Badenoch from Port Phillip Prison pending the outcome of this interlocutory proceeding.
I shall not address the following matters in detail because they are obvious. Mr Pickering went on to state that there are currently more than 100 prisoners in Victoria held in police cells which is a wholly inappropriate regime of holding persons custodially and it is desirable that if possible they get moved to Port Phillip by reason of persons from Port Phillip being moved on in the correctional system. It is wholly inappropriate except in the exceptional circumstances I have already outlined that serving prisoners stay at Port Phillip Prison. Rather they should proceed into the beneficent and rehabilitative system which is intended to apply in other prisons down the line, including in this case Barwon, which is a much smaller and more stable prison entity than Port Phillip.
Mr Badenoch in his submissions to me more than once came back to the point that he is stable. I entirely accept that. The point by the defendants is that the entity of the Barwon Prison is a smaller and more stable structural situation than Port Phillip. That is not a reflection on Mr Badenoch. It is a statement of the nature of the entities - Port Phillip on the one hand and Barwon on the other.
I shall be brief in referring to the other affidavits relied upon by the defendants. Mr I.F. Cox, Standards Co-ordinator of Port Phillip Prison, by an affidavit filed 11 August 2003, set out the position in relation to the computer facilities available at Port Phillip and in relation to Mr Badenoch being required to move to Barwon. Mr Cox, properly in my view, has stated in the final paragraph of his affidavit that he will be available to assist Mr Badenoch in relation to transferring his computer material from the system available to him personally at Port Phillip to that which will be available to him at Barwon. There is a an affidavit of Ms M. Geertsema, senior psychologist who was the acting manager of Therapeutic Services at Port Phillip which sets out the nature of the Port Phillip entity; and finally one of Mr M.G. Hebden, prison services manager at Port Phillip which sets out the facilities available, particularly in the Gorgan Unit, as to library, photocopying and computers, professional visits and documents in the cells. I do not need to review that in detail because for the purposes of these proceedings, as I have said, I will take Mr Badenoch's case at its highest and including the material he has sought to lead which is not technically before the court.
In relation to Barwon there are two affidavits, one of Mr P. Spadano, prison governor of Barwon, which sets out what he says are the facilities at Barwon, filed 7 July 2003, as to photocopying, library, computers, professional visits, professional cells, witnessing of affidavits, working hours, documents within the cells, and the rehabilitative beneficent programs at Barwon. And, finally, that of Ms D.J. Reid, senior psychologist at Barwon prison which sets out the rehabilitative procedures available at Barwon.
It is plain from that material that the plaintiff has been fairly and rightly extended a substantial amount of consideration in relation to not transferring him from Port Phillip to Barwon until this proceeding is determined and this decision is known, and secondly, that in terms of the plaintiff's rehabilitation, it is demonstrably better for him to be at Barwon than at Port Phillip.
To that the plaintiff says, and I understand entirely his point, that first, he has not yet had a chance to do some grieving because he has been caught up in the web of legal process since the death of his sister; and second, that he accepts that Barwon is better in terms of rehabilitation but he says first things first: he wants to deal with his appeal properly and look at the rest of his life once that is done. He does not dispute the rehabilitative aspect of Barwon, but he says the priority for him is his appeal and preparing for it. As for his two narrative volumes, he says he thinks he could complete them within "six to eight weeks". Presumably his desire for recourse to his "support network" could be ongoing. Likewise the library and computer. However the relief sought is until "the completion of the preparation of the material to be put to the Court of Criminal Appeal and that material has been filed with the Court in the form of a written submission."
Proceeding upon the basis that preparation for his appeal is his legitimate and understandable priority, I consider Mr Badenoch's application is misconceived. It is demonstrable from the material I have briefly reviewed that Mr Badenoch will have proper access to the Court and to law from Barwon Prison. He will not be denied access to the Court or to law from Barwon Prison.
Putting Mr Badenoch's case at its highest, his case is that he will not get as plenary and full an access to the Court and to the law from Barwon as he gets presently from Port Phillip. It is debatable whether he is really being well served at present by his support group or not, but I accept for purposes of this judgment that he has a number of benefits at Port Phillip, including his prisoner support group, the computer provided by Mr Minogue and the extensive hours, 70 a week, of computers as compared with seven at Barwon and the fuller library. Mr Badenoch has had a number of minor annoyances with his computer transfer such as italics and paragraph numbering and the like. Annoying though they are to anyone, and I am sure doubly so to a person in custody, they are not a substantial matter for purposes of granting an interlocutory injunction. The number of hours per week available to Mr Badenoch on computer is significantly greater at Port Phillip Prison than at Barwon. On the other hand the authorities rightly and properly have offered both from the Port Phillip end and from the Barwon end, to provide him with assistance in relation to transferring his data from one system to another, as I have reviewed. In terms of the library, there is a library at Barwon. The library at Port Phillip is required by the relevant Prison Services Agreement, tendered before me, to be "a well-stocked and diverse library including legal publications" (clause 23.2). Assuming, without having had any detailed exposition of this, that the library at Barwon is not as good as that at Port Phillip, again that is not a ground of itself for granting an interlocutory injunction.
Proceeding upon the holistic criteria submitted by Mr Badenoch, the application really comes down to two things: one is the number of hours per week on computer, and second, his prison support network.
It cannot be that one would grant an interlocutory injunction to enable a prisoner to retain a prisoner support network for purposes of doing legal process. One cannot have a league table of unqualified lawyers in the prison system to whom an applicant is entitled to have continuous recourse. Such a proposition has merely to be stated to be demonstrated to be fallacious. If implemented it would make the correctional system unworkable. All of that is assuming that the prisoner support network is in truth a benefit to Mr Badenoch. It cannot be that he is entitled to have prisoners of his own choosing to help him do his documents and analyses and thus impede the proper administration of the prison system, including its rehabilitative function which is vital in any civilised society. The ground that he wishes to retain his prisoner support network, no matter how understandable from Mr Badenoch's point of view and no matter how sincere and genuine he is about it – and I accept he is entirely sincere and genuine about it – is not a ground in law of refusing to enable the prison system to operate beneficently and in a rehabilitative function as plainly the affidavits of the defendants demonstrate will occur if he goes to Barwon and which will be impeded if he stays at Port Phillip. That significant leg of Mr Badenoch's application does not stand up.
It really then comes down to the access to computer material which is not as good at Barwon as at Port Phillip. Nonetheless it exists and exists in a substantial way at Barwon and with the assistance to him that I have stated is going to be provided to him by both Port Phillip and Barwon.
When analysed, what Mr Badenoch's application comes down to is this: that he will be in a less advantageous position as regards access to law if he is in Barwon rather than Port Phillip. He will not be denied access to law at Barwon. He simply will not be as well placed as he is in Port Phillip. His complaint is that at Barwon he will not be in the optimum position he presently is at Port Phillip. He is being provided a vehicle for access to the Court but the vehicle is a Holden and not a Rolls Royce.
In my view that is entirely insufficient to grant an interlocutory injunction. There are numerous people in the community who have far less access to the law than Mr Badenoch will have at Barwon. He in fact will be provided with a substantial amount of support and access and, in my view, the fact that it is not quite as full in his view as it is at Port Phillip, is no ground for refusing the prison system to operate to its aim of rehabilitation.
Therefore I consider the applications by Mr Badenoch are misconceived, taking them at their highest. For those reasons I dismiss the summons and refuse the relief sought in it.
This is an interlocutory proceeding. In terms of the normal criteria I consider neither a serious question to be tried has been made out nor an arguable case. On the contrary, I think the arguments are in favour of the defendant's case. Secondly, I consider that the balance of convenience plainly is in favour of dismissing the applications. It is in Mr Badenoch's interests that he goes to Barwon where rehabilitation is advantaged and where Mr Badenoch will still have access to the law; and it is certainly in the interests of the persons held in police cells (currently more than 100 persons) that they can proceed to Port Phillip.
Accordingly, I refuse the applications and dismiss the summons.
- - -
HIS HONOUR: Ms Kennedy, I raise one matter that's been troubling me overnight and it's this: Mr Badenoch provided to the court and to the defendants, under paragraph 5 of this affidavit of 26 June 2002 his - - -
MS KENNEDY: Yes, Your Honour.
HIS HONOUR: He did in that affidavit set out his outline of arguments but really the detailed data is in the two volume narrative. It seems to me that it's inappropriate for the defendants to retain the narrative. If this case comes on for final hearing, no doubt they can be provided back to the defendants by Mr Badenoch. If this case, that is to say the applications for declarations and injunctions, never comes on for hearing, you don't need them. Plainly the Office of Public Prosecutions is entirely separate and distinct from the three defendants but I think in fairness to Mr Badenoch it might be better if the arguments that he wants to put to the Court of Appeal are returned to him. He may want to change them, he may want to – he's already told me he has developed them, but I think he ought to have his own, as it were, private documents back.
MS KENNEDY: We have no problem with that, Your Honour.
HIS HONOUR: All right.
MS KENNEDY: That will be done.
HIS HONOUR: Any other matters?
MS KENNEDY: Yes. We apply for costs, Your Honour. Essentially costs should follow the event, particularly whereas Your Honour has indicated the application was misconceived and in fact the arguments made generally were in favour of the defendants. The misconception should not, in those circumstances, be visited upon the Corrections Office or the three defendants. So we would apply for costs.
HIS HONOUR: I understand that. On the other hand Mr Badenoch is unrepresented. Secondly, I've said his applications appeared to me to be genuine and thought through, although of course misconceived analytically speaking, but they weren't frivolous or offensive and he's a prisoner. So what do you say about those matters?
MS KENNEDY: The lack of representation seems to be a matter that was more his own choice.
HIS HONOUR: I understand that.
MS KENNEDY: The fact that it's not frivolous is, with respect, not to the point.
HIS HONOUR: I can tell you if a prisoner comes before me with frivolous applications I'll certainly award costs.
MS KENNEDY: Certainly, Your Honour but it's not necessary for us to go that far. The fact that it is without merit and the fact that it's been a very costly exercise that Mr Badenoch could have pulled out and got some advice at any point along the way, he has chosen to continue it – and it's really not a good precedent to be setting that any prisoner per se should be able to put up his hand and say, look I'm a prisoner so I should avoid the normal principles. Particularly, where it's a prisoner such as this who could have got some representation, there's no issue here that the man somehow had some difficulty getting a lawyer or something like that. So we say there's nothing here to upset the general principle Your Honour.
HIS HONOUR: Thank you very much.
MS KENNEDY: If it please Your Honour.
HIS HONOUR: I refuse the application that the defendant's costs are paid by the plaintiff. Normally I would grant the application. The fact that the plaintiff has chosen not be legally represented of itself would not cause me to refuse the application because as Ms Kennedy rightly pointed out just now, he made that of his own choice and he could have had legal representation.
The fact that the plaintiff is a prisoner of itself should not warrant me refusing cost to the defendant for the three reasons Ms Kennedy has articulately stated: (1) these proceedings are expensive and (2) the plaintiff could have chosen a different course and (3) the proceedings analytically speaking were misconceived. Also, as she says, rightly, that one has to be careful in not establishing a precedent that just because a person is a prisoner they don't have costs awarded against them.
There is no such precedent. The fact that a person is a prisoner does not prevent costs being awarded against them. However, in this case, I consider there are two exceptional circumstances: one is, I do consider that Mr Badenoch has presented his case in a most thoughtful and comprehensive way without any inappropriate presentation at any time. Secondly and significantly, there is the unusual history of the matter including the refusal earlier to entertain the application. I think in all the circumstances I ought to refuse the application on this occasion. With this caveat, that this does not mean that just because a person is a prisoner they won't have costs awarded against them. Normally a losing party, including a prisoner, will have costs awarded against them. However, in the matrix of unusual circumstances of this case I refuse the application. Are there any other orders?
MR BADENOCH: Excuse me, Your Honour - - -
HIS HONOUR: Yes, Mr Badenoch.
MR BADENOCH: About the transcript - - -
HIS HONOUR: Did you get it?
MR BADENOCH: No, I haven't.
HIS HONOUR: You should have got it last night, you'll presumably get it today. I've already ordered that you get it and - - -
MR BADENOCH: I've actually asked for it but it hasn't been forthcoming.
HIS HONOUR: I will make sure it gets to you.
MR BADENOCH: Okay, Your Honour, so I don't need to go into my costs submission?
HIS HONOUR: You don't. Thank you, Mr Badenoch. Thank you very much Ms Kennedy and Mr Tran. Adjourn the court sine die.
- - -
0
3
0