CD v State of Victoria
[2020] VSC 892
•23 June 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI 2019 05428
BETWEEN:
| CD[1] | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
[1]To avoid the possibility of identifying the alleged victim of a sexual offence, the judgment has been anonymised by the adoption of a pseudonym of the name of the applicant.
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 February 2020; submissions filed 6 April 2020 and 21 April 2020 |
DATE OF RULING: | 23 June 2020 |
CASE MAY BE CITED AS: | CD v State of Victoria |
MEDIUM NEUTRAL CITATION: | [2020] VSC 892 |
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PRACTICE AND PROCEDURE — Approval of a personal injuries claim by a former prisoner of the State — Application of Part 9C of the Corrections Act 1986 – Whether Part 9C applies to claims arising from events that occurred prior to the enactment of Part 9C – Whether Part 9C applies to claims for prisoners incarcerated before Part 9C came into effect — Whether Part 9C applies to claims settled after Part 9C came into effect – Whether the award of damages in respect of a claim made by or on behalf of the prisoner against the State for a civil wrong is within the meaning of Part 9C —Application approved.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Longano, solicitor for the plaintiff | Angela Sdrinis Legal |
| For the Defendant | Mr G Foley, solicitor for the defendant | Victorian Government Solicitor |
TABLE OF CONTENTS
Summary.............................................................................................................................................. 1
Background......................................................................................................................................... 2
Plaintiff’s submissions..................................................................................................................... 4
Defendant’s submissions................................................................................................................. 5
Analyis............................................................................................... Error! Bookmark not defined.
Does Part 9C of the Act apply to claims made by former prisoners, such as the plaintiff, whose period of imprisonment was served prior to the relevant amendment coming into effect on 24 September 2008 and whose claims settled after the amendment came into effect? 7
Is the ‘award of damages’ on or after 24 September 2008?..................................................... 8
Is the ‘award of damages’ in respect of a claim made by or on behalf of the ‘prisoner’ against the ‘State’ for a ‘civil wrong’ within the meaning of Part 9C?............................................. 9
Does the ‘award of damages’ specify the amounts, if any, awarded or agreed in respect of (i) existing and future medical costs; and (ii) legal costs. If not, should the Court specify those costs?.................................................................................................................................... 11
Are the amounts specified for medical and legal costs appropriate portions of the total amount payable?.............................................................................................................................. 11
Should the compromise be approved?.................................................................................... 13
HER HONOUR:
By summons filed on 4 February 2020, the plaintiff seeks approval of a compromise pursuant to Part 9C of the Corrections Act 1986 (‘the Act’). On 17 June 2020, orders were made approving the compromise. This ruling contains the reasons.
Summary
This ruling considers the following question.
Does Part 9C of the Act apply to claims made by former prisoners, such as the plaintiff, whose period of imprisonment was served prior to the relevant amendment coming into effect on 24 September 2008 and whose claims settled after the amendment came into effect?
The answer is yes.
The issues considered are as follows.
(a) is the ‘award of damages’ made on or after 24 September 2008?
(b) is the ‘award of damages’ in respect of a claim made by or on behalf of the ‘prisoner’ against the ‘State’ for a ‘civil wrong’ within the meaning of Part 9C?
(c) does the ‘award of damages’ specify the amounts, if any, awarded or agreed in respect of (i) existing and future medical costs; and (ii) legal costs? If not, should the Court specify those costs?
(d) are the amounts specified for medical and legal costs appropriate portions of the total amount payable under the ‘award of damages’ having regard to (i) the claim, (ii) the loss or damage suffered by the prisoner and (iii) the need to ensure as far as possible that victims are not deprived of an opportunity to enforce a successful claim for damages against a prisoner?
(e) should the compromise be approved?
Background
The plaintiff is currently 57 years’ old. His claim relates to events when he was 17 years’ old.
On 24 January 1977, by orders of the Ballarat Children’s Court, the plaintiff became a ward of the State after he ran away from home, stole a car and drove to Ballarat. He was 14 years’ old and remained a State ward for almost two years. During that time, the plaintiff was placed at Turana Youth Training Centre (‘Turana’). The plaintiff recalls spending three years in detention at Turana.[2]
[2]Plaintiff statutory declaration declared on 14 February 2019.
After the period of his wardship, the plaintiff remained at Turana. At that time, he was serving a sentence of 30 months’ detention for burglary and motor vehicle theft. The sentence was due to expire on 22 October 1981. A further sentence for youth detention were imposed on 30 March 1979.
On 29 June 1979, the Children’s Court sitting at Melbourne sentenced the plaintiff to an additional 14 months’ detention.
On 23 August 1979, the Magistrates’ Court at Box Hill sentenced the plaintiff to 7 days’ imprisonment for escaping from a Youth Training Centre and 24-hours’ imprisonment for unlicensed driving. He served the sentence at HM Pentridge Prison (‘Pentridge’). On 28 August 1979, the plaintiff was transferred from Pentridge to Turana.
On 10 September 1979, the Youth Parole Board recommended that the plaintiff be transferred to a prison under s 177 of the Community Welfare Services Act 1970 (‘CWS Act’). On 11 September 1979, the plaintiff was transferred from Turana to Pentridge.
On 18 September 1979, the Minister signed the order under s 177 of the CWS Act (‘Ministerial direction’) which directed the plaintiff serve the unexpired term of his detention as imprisonment.
Between September 1979 and March 1983, the plaintiff served various terms of imprisonment at both Pentridge and HM Prison Bendigo (‘Bendigo Prison’). He alleges that during the periods of imprisonment at Pentridge and Bendigo Prison, he was subjected to physical and sexual abuse by other inmates.
The plaintiff made a claim of negligence and breach of statutory duty against the State.[3] The claim relates to the allegations of physical and sexual abuse at Pentridge, Bendigo Prison and Turana.
[3]By way of statement of claim, unfiled, his statutory declaration and supporting medical report.
The plaintiff’s claims settled on 9 August 2019 at an informal settlement conference, prior to him issuing proceedings. On 16 September 2019 and 8 October 2019, the parties executed the Deed of Release.[4] Clause 1.2 of the Deed of Release states:
1.2 The settlement sum comprises the following:
(a)the sum of $56,250.00 (Fifty six thousand two hundred and fifty dollars) for the payment of damages for a civil wrong suffered by the Releasor whilst he was a prisoner within the meaning of the Corrections Act 1986 (Vic);
(b)the sum of $56,250.00 (Fifty six thousand two hundred and fifty dollars) for the payment of damages for a civil wrong suffered by the Releasor whilst he was not a prisoner;
(c)the sum of $10,000.00 (Ten thousand dollars) for the payment of existing and future medical costs;
(d)the sum of $27,500.00 (Twenty seven thousand five hundred dollars) for legal costs.
[4]Exhibit ‘AS-1’ to the affidavit of Zoe Papageorgiou, the plaintiff’s solicitor, affirmed on 3 December 2019 (‘the first Papageorgiou affidavit’).
On 3 December 2019, the plaintiff filed a summons seeking approval of the compromise. Each party provided oral submissions and later in April 2020, written submissions and further affidavit material. The further written material and evidence was necessary for the proper determination of this application. In particular, the following documents were necessary: the claim (here in the form of a draft statement of claim), a medical report, the Deed of Release and an assessment by the plaintiff’s legal practitioner of medical and legal costs.
Turning now to the parties’ key submissions. I have not outlined their respective legal submissions, save where there is a dispute. Their legal submissions are considered in the Analysis below.
Plaintiff’s submissions
The plaintiff says Part 9C does not apply to him because he was not a ‘prisoner’ for the purposes of s 104P of the Act. Section 3 of the Act defines prisoner, adding to the definition of prisoner in s 104O.
The parties agree any sentence of detention at a Youth Training Centre does not constitute an ‘order of imprisonment’. The plaintiff concedes the Ministerial direction of 18 September 1979 is an ‘order of imprisonment’ within the meaning of s 6(c) of the Act.
The plaintiff says he did not enter the ‘legal custody of the Secretary’, as set out in s 6A of the Act, because he was moved to Pentridge on or about 11 September 1979 without lawful authority. The plaintiff was transferred before the Ministerial direction was made on 18 September 1979. The persons who received him at Pentridge were not acting under ‘lawful authority’. The physical reception limb of the ‘legal custody of the Secretary’ test is therefore not satisfied. The conclusion is supported by reference to ordinary principles of statutory interpretation.[5] This analysis gives appropriate meaning to the word ‘legal’ as it appears in the definition of prisoner in s 3 and Part 1A of the Act.
[5]Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 382.
The plaintiff submits that as he was not in the ‘legal custody of the Secretary’, he was not a prisoner, and Part 9C of the Act has no application to his case. The plaintiff seeks a declaration by the Court that Part 9C has no application to his case.
In the alternative, if the Court concludes, the plaintiff was in the ‘legal custody of the Secretary’ and that Part 9C therefore applies, the plaintiff relies on the affidavit of his solicitor[6] to satisfy ss 104T and 104U of the Act. In accordance with s 104T, the parties agreed to specific apportionment of the settlement sum. The second Papageorgiou affidavit specifies the apportionment of the settlement monies in his affidavit.
[6]Affidavit of Zoe Papageorgiou affirmed on 20 April 2020 (‘second Papageorgiou affidavit’).
Defendant’s submissions
The Court should declare:
(a) Part 9C of the Corrections Act applies to all claims made by a prisoner, or a former prisoner, where the award of damages was made, or settlement entered into, after 24 September 2008, regardless of when the prisoner was imprisoned.
(b) Accordingly, the Corrections Act applies to the settlement reached between the State and the plaintiff on 9 August 2019.
The Deed of Release constitutes an award of damages as defined in s 104O. The Act must necessarily cover agreements made through informal settlement processes such as that established by the State. The claim is for a ‘civil wrong’ as defined in s 104O where the plaintiff alleges negligence by the State for numerous failings of servants and/or agents and/or officers to take appropriate steps to ensure the plaintiff was safe whilst in custody.
The Ministerial direction made pursuant to s 177(1) of the CWS Act is an ‘order for imprisonment’ as defined by s 6(b) of the Act. By s 177(3) of the CWS Act, the decision of the Children’s Court on 29 June 1979 to extend the youth training sentence to a further 14 months’ became a decision to extend the sentence to 14 further months of imprisonment. The plaintiff was placed in Pentridge on 11 September 1979 pursuant to an order of imprisonment pursuant to s 6(b) of the Act. Time already served in the Youth Training Centre would be considered to be a minimum term pursuant to s 190 of the CWS Act.
The plaintiff is a former prisoner for the purposes of the Act. The term ‘prisoner’ includes former prisoner: s 104O.
Sections 104P and 117 expressly provide that Part 9C only applies to awards of damages made on or after the commencement date of the Amendment Act on 24 September 2008. The date of imprisonment is immaterial to the application of Part 9C.
The relevant legal right the plaintiff holds under Part 9C is the right to enforce an award of damages or an agreement to pay damages in relation to a civil wrong arising out of a term of imprisonment, upon the parties entering into the agreement. It is a potential future, not a pre-existing, legal right. The Act seeks only to amend future legal rights. It merely takes into account past circumstances namely being a ‘former prisoner’. The principles of retrospectivity were set out in Robertson v City of Nunawading[7] and Yarra City Council v Metropolitan Fire and Emergency Services Board.[8] Similar analysis was undertaken by the Federal Court in Ketjan v Assistant Minister.[9] Applied to the plaintiff’s claim, the legal right the plaintiff holds is the right to enforce the Deed of Release. This right came into existence on 9 August 2019 when the agreement to settle was reached.
[7][1973] VR 819 (Winneke CJ, Gowans and Starke JJ).
[8][2017] VSCA 194.
[9][2019] FCA 516.
Analysis
I adopt the following overview of Part 9C given by Keogh J in Goodenough v State of Victoria.[10]
Part 9C of the Act was introduced by the Corrections (Amendment) Act 2008 (Vic). The main purpose of the amending Act is to provide for the payment of certain damages awarded to prisoners into a quarantine fund for payment out of amounts recoverable by victims and other creditors from the prisoner. The scheme of pt 9C of the Act requires payment of all or part of any award of damages to a prisoner by the State into a prisoner compensation quarantine fund. Damages are held in the fund for an initial quarantine period of 12 months or until claims against the fund by victims or other creditors of the prisoner have been finalised. Only then is the balance of the damages awarded paid out to the prisoner.
Section 104P(1) of the Act provides that pt 9C applies to an award of damages to a prisoner in respect of a claim made by the prisoner against the State of Victoria for a civil wrong. A prisoner is someone in legal custody. If pt 9C applies, an agreement to settle a proceeding is of no effect until approved by a court. An award of damages made by the Court pursuant to any agreement must, after payment of existing and future medical costs and legal costs, be paid into the prisoner compensation quarantine fund.
As can be seen, pt 9C operates to cause very significant interference with the common law rights of a prisoner.
Does Part 9C of the Act apply to claims made by former prisoners, such as the plaintiff, whose period of imprisonment was served prior to the relevant amendment coming into effect on 24 September 2008 and whose claims settled after the amendment came into effect?
[10](2017) 53 VR 670, 672–3 [8]–[10] (‘Goodenough’). His Honour also addressed Part 9C in the earlier case of Khodr v G4S Custodial Services Pty Ltd [2016] VSC 800 [13] (‘Khodr’).
The answer to this question is yes for the following reasons.
The Corrections Amendment Act 2008 (‘the Amendment Act’) inserted Part 9C into the Act and came into force on 24 September 2008. Part 9C of the Act applies to an ‘award of damages’ in response to a claim against the State by a prisoner (or former prisoner) for a civil wrong, regardless of when their period of imprisonment was served. The operative date is that of the ‘award of damages’. It is not the date of imprisonment or if legal proceedings have been issued, the date of commencement, that attracts the operation of Part 9C.
This interpretation is supported by the text of the Amendment Act. A transitional provision, s 117, provides the operative date is the award of damages:
Transitional provision—Corrections Amendment Act 2008
(1)Part 9C applies to an award of damages made to a prisoner against the State on or after the commencement of the Corrections Amendment Act 2008 even if the legal proceedings were commenced by the prisoner before that commencement.
(2)Words used in subsection (1) have the same meanings as they have in Part 9C.
Section 104P of Part 9C provides the operative date is the award of damages:
(1)This Part applies in respect of an award of damages to a prisoner in respect of a claim made by or on behalf of the prisoner against the State for a civil wrong.
(2)This Part applies to a claim by or no behalf of a prisoner arising from and in connection with the prisoner’s detention while on remand if the prisoner is subsequently sentenced to a term of imprisonment, whether or not that sentence was imposed for the offence in respect of which the prisoner was remanded in custody.
…
This interpretation is consistent with the purpose of the Amendment Act, stated in s 1:
The main purpose of this Act is to amend the Corrections Act 1986 to provide for the creation of prisoner compensation quarantine funds for the purpose of paying into those funds certain damages awarded to prisoners and to provide for the payment out of those funds of certain amounts recoverable by victims and others from prisoners.
Turning now to the issues here.
Is the ‘award of damages’ on or after 24 September 2008?
An ‘award of damages’ includes damages paid in settlement of a compromise. Section 104O of the Act defines ‘agreement’, ‘award of damages’ and ‘damages’ as follows.
agreement includes compromise and acceptance of an offer of compromise;
award of damages means damages—
…
(b)paid or payable in accordance with an agreement between the parties to the agreement;
…
damages includes any form of monetary compensation;
In Goodenough, the plaintiff, a former prisoner had brought a civil claim in negligence against the State alleging that he was injured during his imprisonment. The plaintiff was later pardoned and his proceeding resolved in 2017. Keogh J held that “the text of Part 9C would result in that part applying to the settlement of this proceeding”.[11] However, it did not apply to the settlement with Mr Goodenough because he had been pardoned.
[11]Goodenough [17].
Here, damages are yet to be paid. The Deed of Release properly requires that approval of the Court be first obtained. Clause 2.2 provides that the damages will be paid within 28 days of the Deed of Release being approved by the Court. If the Court were to approve the compromise, then the award of damages would be after 24 September 2008.
Is the ‘award of damages’ in respect of a claim made by or on behalf of the ‘prisoner’ against the ‘State’ for a ‘civil wrong’ within the meaning of Part 9C?
The first issue to consider is whether the plaintiff is a ‘prisoner’ within the meaning of Part 9C. Section 104O defines ‘prisoner’ to include a ‘former prisoner’.
Section 3 provides the following definition:
prisoner means a person who under Part 1A is deemed to be in the legal custody of the Secretary;[12]
[12]The Secretary is to the Department of Justice and Community Safety under the Public Administration Act 2004: s 3 of the Act.
Section 6A of Part 1A of the Act follows.
When is a person in the legal custody of the Secretary?
(1) A person is deemed to enter the legal custody of the Secretary when—
(a)an order of imprisonment is made in relation to the person; and
(b)either of the following events occurs—
(i)a person acting under lawful authority on behalf of the Secretary takes physical custody of the person; or
(ii)a person at a prison acting under lawful authority on behalf of the Secretary receives the person into the prison.
…
Section 6(c) provides that an ‘order for imprisonment’ includes a direction, order or warrant made under an Act requiring or directing or authorising the imprisonment of a person or their detention in a prison or transfer or return to a prison. Accordingly, the warrant issued on 1 July 1982 and the later Ministerial direction are each an ‘order for imprisonment’. Therefore the plaintiff is a ‘prisoner’ for the purposes of Part 9C from the date of the warrant.
It is not contended that the plaintiff was a ‘prisoner’ in respect of the period prior to the Ministerial direction of 18 September 1979, that is the period he was at Turana from the date he was sentenced until he was transferred to Pentridge on 11 September 1979. There is a difference between a sentence of imprisonment and one of youth detention. That was the case under the CWS Act.[13] More fundamentally, s 6 does not include detention in a youth detention centre within the definition of an ‘order for imprisonment’. Therefore the plaintiff was not a ‘prisoner’ for the period that he was in detention at Turana. Accordingly, Part 9C does not cover an ‘award of damages’ for that period. Unfortunately the deed does not stipulate the period. It provides that the monies for the period the plaintiff was a prisoner are paid into the quarantine fund. Adopting the analysis above, I read this to be the period from 11 September 1979 while the plaintiff was detained at Pentridge and Bendigo Prison.
[13]R v Harrop [1979] VR 549 (Gobbo J).
As to the plaintiff’s submission that he was not in the ‘legal custody of the Secretary’ when placed in Pentridge on 11 September 1979 prior to the Ministerial direction of 18 September 1979: a finding that the Secretary’s custody of the plaintiff was not lawful cannot be made in an application of this nature, namely, an approval of compromise. Such a controversy would need to be agitated by claim and on notice to the Secretary. Moreover, here, neither the unfiled statement of claim nor the statutory declaration confine the period of alleged abuse to the period of 11 – 17 September 1979. Indeed, the unfiled statement of claim is to the contrary.
The second issue to consider is whether the defendant is the ‘State’ within the meaning of Part 9C. The ‘State’ has an inclusive definition including the Secretary, a contractor responsible for the management or operation of a prison and any employee of such a person or any employee of the Crown. There is no dispute here that the defendant is the State.
The third issue to consider is whether the ‘award of damages’ is in respect of a ‘claim’ for a ‘civil wrong’. ‘Claim’ is defined widely in s 104O of the Act and is not restricted to legal proceedings: “a claim brought in tort, in contract, or under statute or otherwise”. I am satisfied that the draft statement of claim falls within the definition of a claim.
‘Civil wrong’ is also defined broadly in s 1040 of the Act:
civil wrong means an act or omission of the State—
(a)that gives rise to a claim by a prisoner against the State; and
(b)that occurred while the claimant was a prisoner detained in custody in a prison; and
(c)that arose out of and in connection with his or her detention in custody in a prison;
I am satisfied that the claim here falls within the definition of ‘civil wrong’.
Does the ‘award of damages’ specify the amounts, if any, awarded or agreed in respect of (i) existing and future medical costs; and (ii) legal costs? If not, should the Court specify those costs?
Sections 104S – 104T of the Act provide for agreements to be approved by the Court and that an award of damages must specify the amounts of existing and future medical costs and legal costs.
Agreements must be approved by court
An agreement between the State and a prisoner for the payment of damages for a civil wrong is of no effect until it has been approved by a court.
Determination of amounts for medical and legal costs
(1)An award of damages for a civil wrong must specify the amounts, if any, awarded or agreed in respect of—
(a) existing and future medical costs; and
(b) legal costs.
(2)If the parties to an agreement between the State and a prisoner for the payment of damages for a civil wrong are unable to agree on any amount to be specified under subsection (1), the court must specify the amounts to be specified in the agreement for the purposes of that subsection and the agreement is varied accordingly.
The Deed of Release specified future medical costs and legal costs. There are no past medical costs.[14] I am satisfied that there is compliance with s 104T.
Are the amounts specified for medical and legal costs appropriate portions of the total amount payable?
[14]Second Papageorgiou affidavit.
Section 104U outlines matters to be considered by the Court.
Matters to be considered by court
(1) This section applies to—
(a)an award of damages by a court for a civil wrong; and
(b)an agreement between the State and a prisoner for the payment of damages for a civil wrong.
(2)The court must not make the award or approve the agreement unless the court is satisfied—
(a)that section 104T(1) has been complied with; and
(b)that, in all the circumstances, the amounts specified for the purposes of section 104T(1) are appropriate portions of the total amount payable under the award or agreement having regard to—
(i)the claim; and
(ii)the loss or damage suffered by the prisoner; and
(iii)the need to ensure as far as possible that victims are not deprived of an opportunity to enforce a successful claim for damages against a prisoner.
(3)If legal costs are to be assessed and paid under an order made on taxation, the legal costs are taken under this Part to be specified in the award of damages.
Having regard to all the circumstances and the factors in s 104U(2), including the unfiled statement of claim and the evidence contained in the plaintiff’s statutory declaration, the Papageorgiou affidavits, and the medical report of Dr Stephanie Bennett, psychologist, dated 22 October 2018, I am satisfied that the portion specified for future medical costs are appropriate portions of the total amount payable under the compromise.
Having regard to the factors in s 104U(2), in all the circumstances, I am satisfied that the portion specified for legal costs is appropriate. The basis for the calculation of legal costs is provided in the second Papageorgiou affidavit. This is not a case where a more detailed itemisation is required. I am satisfied that it is appropriate that the portion specified for legal costs be calculated on a solicitor-client basis.[15] As Keogh J stated in Khodr:[16]
The purpose of the Amending Act and of Part 9C of the Act is reflected in the s 104U(2)(b)(iii) factor to which I must have regard when specifying the amount for legal costs. A victim might be deprived of the opportunity to recover from a damages award to a prisoner if too large a portion of the damages awarded to the prisoner is specified for legal costs. A victim will have no opportunity to recover from a quarantine fund if no claim for damages is prosecuted by the prisoner.
… In my view, the purpose of the Amending Act will be advanced by specifying, in an appropriate case, a portion of the total awarded damages as the legal costs of the solicitors for the plaintiff.
[15]Khodr.
[16]Ibid [17]–[18].
Should the compromise be approved?
As outlined above, orders were made approving the compromise.
It is unnecessary to make the declarations sought by the defendant in their submissions. Further, given the confidentiality orders sought by both parties, such a declaration would not be of any practical utility.
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