JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2013
DATE OF JUDGMENT:	3 October 2013
CASE MAY BE CITED AS:	Brazel v Westin & Anor
MEDIUM NEUTRAL CITATION:	[2013] VSC 527

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PRACTICE AND PROCEDURE – Plaintiff a prisoner – Proceeding claiming prerogative relief in respect of disciplinary hearing – Application for injunction that plaintiff be provided with an in-cell computer – Access to courts – Whether plaintiff deprived of access in absence of such computer.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Mr L Brown	Victorian Government Solicitor’s Office

HIS HONOUR:

The plaintiff is a prisoner in the Banksia Unit of the Barwon Prison complex. In the proceeding he applies, by originating motion, for a declaration, and other relief, in respect of disciplinary hearings held at the Metropolitan Remand Centre on 15 November 2012 and 21 December 2012. On 18 July 2013, the plaintiff issued a summons in the proceeding seeking orders that the Prison Authority, at Barwon Prison, provide to him computer facilities to enable him to comply with an order made by Associate Justice Lansdowne on 20 June 2013 and with other procedural requirements necessary to the proceeding. That application came before the Honourable the Chief Justice in the Practice Court on 6 September. On that date, her Honour referred the case for hearing in court. It is that application which has come before me.

The application

In his summons, the plaintiff seeks the following relief:

(1)An order requiring the Prison Authority at Barwon Prison to provide appropriate computer facilities to enable him to comply with orders of the court, and, in particular, the order of Associate Justice Lansdowne of 20 June 2013.
(2)An order requiring the Prison Authority to fulfil its “statutory obligations under the Commissioner’s requirements and … under ss 24 and 25 of the Charter of Human Rights and Responsibilities Act 2006”.
(3)Alternatively, an order exempting the plaintiff from being required to comply with the Supreme Court Rules and the requirements of any order of the court.

The affidavits

The plaintiff’s application is supported by three affidavits affirmed by him on 16 July, 7 September and 16 September respectively. In response, the defendants rely on an affidavit by Jonathan Howe, the Acting General Manager of Barwon Prison, sworn 5 September 2013.

The plaintiff’s first affidavit commences by explaining why the plaintiff did not have the opportunity to appear, by audio visual link, before Associate Justice Lansdowne at a directions hearing on 20 June. The plaintiff further states that because of difficulties which he then experienced in having adequate access to computer facilities, he was unable to fulfil the requirements of the directions made by the Associate Justice on that day. In particular, on 1 July…

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 Brazel v Westin

Details

AGLC: Brazel v Westin [2013] VSC 527
Case: [2013] VSC 527
Decision Date: 3 October 2013

CaseChat Overview and Summary

In the case of Brazel versus Westin, the plaintiff, an incarcerated individual, sought prerogative relief in relation to a disciplinary hearing. The plaintiff applied for an injunction, requesting that an in-cell computer be provided to them, in order to ensure they were not deprived of access to the courts. The case was heard in the relevant court, which was tasked with determining the legality of the plaintiff's request and the potential impact on their right to access the courts.

The court was required to decide whether the provision of an in-cell computer was necessary for the plaintiff to effectively exercise their right to access the courts, and if the absence of such a device would result in a deprivation of that right. Additionally, the court needed to consider the balance between the plaintiff's right to access the courts and the broader interests of the correctional facility, including security and resource allocation.

In delivering its decision, the court examined the circumstances of the case, including the plaintiff's specific needs and the resources available to them within the correctional facility. The court found that the provision of an in-cell computer was not a prerequisite for the plaintiff to access the courts, as alternative means of communication and legal assistance were available to them. The court also considered the potential risks associated with providing such a device, including security concerns and the impact on other inmates. Ultimately, the court determined that the plaintiff had not been deprived of their right to access the courts in the absence of an in-cell computer, and dismissed the application for an injunction.

As a result of the court's decision, the plaintiff's application for an in-cell computer was rejected. The court's ruling emphasised the importance of considering the broader interests of the correctional facility and the need to balance the rights of individual inmates with the overall security and well-being of the institution. This case serves as a reminder that the right to access the courts is not absolute, and must be considered in the context of the specific circumstances of each case.

Orders