Craig Minogue v Jan Shuard (in her capacity as the Correctional Services Commissioner)
[2017] VSCA 267
•22 September 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0014
| CRAIG MINOGUE | Applicant |
| V | |
| JAN SHUARD (in her capacity as the CORRECTIONAL SERVICES COMMISSIONER) | Respondent |
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| JUDGES: | KYROU and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 September 2017 |
| DATE OF JUDGMENT: | 22 September 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 267 |
| JUDGMENT APPEALED FROM: | Minogue v Shuard [2016] VSC 797 (McDonald J) |
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ADMINISTRATIVE LAW – Judicial review – Decision required applicant to cease undertaking a distance education course while in custody – Decision never implemented and reversed prior to trial – Judge held that question of legality of decision was rendered hypothetical and dismissed proceeding – Application for leave to appeal refused.
PRACTICE AND PROCEDURE – Applicant alleged that respondent and her legal practitioners had engaged in conduct which, if true, would have constituted breaches of overarching obligations under Civil Procedure Act 2010 – Allegations lacked substance.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr L T Brown | Victorian Government Solicitor’s Office |
KYROU JA
KAYE JA:
Introduction and summary
This is an application for leave to appeal against a decision of a judge of the Trial Division dismissing the applicant’s application for judicial review of a decision made by the respondent, Jan Shuard, in her capacity as the Commissioner of Corrections Victoria.[1] The applicant, Dr Craig Minogue, has been serving a term of imprisonment since 1986.
[1]Minogue v Shuard [2016] VSC 797 (‘Reasons’).
The proceeding arose out of a letter dated 9 November 2015, and a subsequent undated letter, to the applicant from an officer of Corrections Victoria. The letters concerned a distance education diploma of counselling course (‘counselling course’) which the applicant was undertaking with the Australian Institute of Professional Counsellors (‘AIPC’). The letters informed him that he must cease the counselling course and that Corrections Victoria would prevent him from corresponding with AIPC in relation to the course (‘impugned decision’).[2]
[2]As appears from the terms of the letters as set out at [11] and [13] below, they also informed the applicant that the counselling course was ‘not supported’ by Corrections Victoria. The applicant was not aggrieved by this aspect of the letters as the references to ‘support’ were references to practical and administrative support that is offered within the prison to prisoners undertaking distance education. He did not request any such support.
The applicant sought an order in the nature of certiorari quashing the impugned decision. He also sought declarations that the Distance Education Policy and Procedural Framework dated 8 August 2014 (‘DE Policy’)[3] — upon which the respondent was said to have relied in making the impugned decision — unlawfully limited his rights pursuant to ss 47(1)(o) and (n) of the Corrections Act 1986. Those provisions conferred, respectively, the right to take part in educational programmes in the prison and the right of communication by letters. The applicant also argued that the impugned decision was contrary to his right to freedom of expression conferred by s 15(2) of the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’).
[3]The DE Policy is relevantly set out at [8] below.
Prior to trial, Corrections Victoria advised the applicant that it would not restrict his correspondence with AIPC. This meant that he could continue to undertake the counselling course.
The judge dismissed the proceeding. He held that the question the subject of the proceeding had become hypothetical because the applicant was not in fact subjected to any restrictions in relation to his participation in the counselling course at any time and continued to receive mail from AIPC.
The applicant seeks leave to appeal against the judge’s decision on the basis that the judge: erred by concluding that the question the subject of the proceeding was hypothetical; failed to address complaints made by the applicant about conduct of the respondent and her legal representatives which, if true, contravened the Civil Procedure Act 2010 (‘CPA’); and erred in the manner in which he framed various arguments made by the applicant.
For the reasons that follow, the application for leave to appeal will be refused.
Facts
Section 6.8 of the DE Policy provides as follows:
6.8 Unsupported Distance Education
A prisoner may seek approval from the R&A [Review and Assessment] Committee[4] to undertake unsupported DE [Distance Education] studies.
If it becomes apparent that a prisoner is participating in unsupported DE, without approval from the R&A Committee, the prisoner will be required to make an application for consideration as to whether study can continue. All non-approved prisoners will have all course material (forwarded by external providers) restricted.
Approved unsupported DE students do not receive CV [Corrections Victoria] funded administrative support from the SEO [Senior Education Officer]; however, the SEO may offer general advice.
…
[4]This committee is now known as the Case Management Review Committee.
The applicant has been enrolled as a full fee paying student in the counselling course since December 2013.
On 20 September 2015, the applicant wrote to Vicki Ryan, the manager of the Major Offenders Unit of Corrections Victoria, seeking clarification of a statement made by Ms Ryan at the applicant’s annual review to the effect that he was ‘forbidden’ from continuing to undertake the counselling course.
On 9 November 2015, the applicant was sent a letter by Brendan Money, the Assistant Commissioner of the Sentence Management Branch of Corrections Victoria, in response to his letter to Ms Ryan. That letter was headed ‘Request to cease studies in a Diploma of Counselling’ and stated, relevantly, as follows:
I advise that the Commissioner recently determined that your ongoing participation in [the counselling course] is not supported.
The Commissioner’s decision was based on the process by which you commenced these studies, whereby due process was not followed. In addition, it was determined that the nature of such studies was not suitable when considering your offending history. While I acknowledge that prisoners may access a range of educational pursuits provided through external providers, Corrections Victoria is obliged to assess the suitability of all studies against the individual prisoner’s needs and circumstances.
It is therefore advised that you cease your studies in the [counselling course] in accordance with the Commissioner’s decision. Access to this course will no longer be available whilst you remain in custody, you are however able to apply via Loddon Prison’s education officer to partake in other avenues of study, which will be assessed on merit.
The Loddon Prison General Manager will be notified of Corrections [Victoria’s] position on this course and make appropriate arrangements in respect of AIPC Mail.
On 12 November 2015, the applicant wrote to the general manager of Loddon Prison seeking clarification in relation to the restrictions, if any, that would be placed on his access to mail from AIPC. On 14 November 2015, the applicant also wrote to the respondent seeking clarification of the decision set out in Mr Money’s letter dated 9 November 2015.
In mid-December 2015, Mr Money sent an undated letter to the applicant in response to his letters dated 12 and 14 November 2015. That letter stated, relevantly, as follows:
As per my last letter, dated 9 November 2015, you have been formally requested to cease [the counselling course]. I reiterate that the decision was made [on] the basis of how you commenced your studies, whereby you did not apply via the correct avenues. Instead, you engaged in such studies directly with the provider. In addition, the nature of such studies was deemed inappropriate due to your offending history, and would not have been supported by Corrections Victoria had you applied through the correct avenues regardless. I have made arrangements with Loddon Prison’s General Manager to place in your property any incoming mail from the AIPC. This will ensure there is no ongoing confusion regarding Corrections Victoria’s position on your ongoing participation in this course.
The reference to incoming mail from AIPC being placed ‘in your property’ is a reference to mail not being passed on to a prisoner.
On 13 January 2016, the applicant commenced the proceeding by originating motion.
On 10 May 2016, Debra Coombs, a principal solicitor at the Victorian Government Solicitor’s Office, wrote to the applicant and stated, relevantly, as follows:
We are instructed that the [respondent] does not and will not support you in the counselling course …
We are instructed that your mail has been and will continue to be processed within Loddon Prison under the usual mail protocols required by the Corrections Act 1986 and the Corrections Regulations 2009. It will be stopped or censored only when required or permitted under the Act or Regulations.
In reply, the applicant’s letter dated 12 May 2016 stated the following:
I fully understand, and fully accept, as you advise in your letter:
‘that the Commissioner for Corrections Victoria does not and will not support [me] in the counselling course … ’
I do not want, and I do not need, and I will not accept, any ‘support’ from Corrections Victoria for the counselling course …
I understand, and I fully accept, as you advise in your letter that items of mail will:
‘be processed within Loddon Prison under the usual mail protocols required by the Corrections Act [1986] and the Corrections Regulations 2009. It will be stopped or censored only when required or permitted under the Act and the Regulations.’
All I have ever asked for is that the law be applied inside the prison.
Thank you for making the situation clear to me.
As indicated in Ms Coombs’ letter, despite the impugned decision, the applicant at all times was able to receive mail from AIPC. This, in turn, meant that he was able to participate in the counselling course.
Relevant statutory provisions
The rights of a prisoner in a Victorian prison under s 47(1) of the Corrections Act include ‘the right to take part in educational programmes in the prison’ in sub-s (1)(o) and ‘subject to section 47D, the right to send and receive … letters uncensored by prison staff’ in sub-s (1)(n). Section 47D empowers the Governor of a prison to stop a letter from being sent or received by a prisoner if the Governor reasonably believes that the letter is a threat to security, good order or management of a prison, or may be of a threatening or harassing nature, or may be used to further an unlawful activity or purpose, or contains indecent, abusive, threatening or offensive matter.
The CPA has an overarching purpose, set out in s 7(1), which is ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’. Section 8 requires a court to seek to give effect to the overarching purpose in the exercise of any of its powers or in the interpretation of those powers. Section 9 provides that in making any order or giving any direction in a civil proceeding, a court must further the overarching purpose by having regard to a number of objects and other matters set out in that section.
Part 2.3 of the CPA contains a number of overarching obligations with which participants in a civil proceeding, including the parties and their legal representatives, must comply.[5] Each person to whom the overarching obligations apply has a paramount duty to the court to further the administration of justice in relation to any civil proceeding in which that person is involved.[6] Legal practitioners must not cause a client to contravene any overarching obligation[7] and to the extent that there is an inconsistency between a legal practitioner’s overarching obligation and instructions received from a client, the former will prevail.[8]
[5]CPA s 10.
[6]CPA s 16.
[7]CPA s 14.
[8]CPA s 13.
The overarching obligations include, relevantly, the following:
(a) An obligation to act honestly at all times in relation to a civil proceeding.[9]
(b)An obligation to not make any claim or a response to any claim in a civil proceeding that does not have a proper basis.[10]
(c)An obligation to cooperate with the parties to a civil proceeding and the court in connection with the conduct of that proceeding.[11]
(d)An obligation to not engage in conduct which is misleading or deceptive, or likely to mislead or deceive.[12]
[9]CPA s 17.
[10]CPA s 18(d).
[11]CPA s 20.
[12]CPA s 21.
Section 29 of the CPA provides, relevantly, as follows:
29 Court may make certain orders
(1)If a court is satisfied that, on the balance of probabilities, a person has contravened any overarching obligation, the court may make any order it considers appropriate in the interests of justice including, but not limited to—
(a)an order that the person pay some or all of the legal costs or other costs or expenses of any person arising from the contravention of the overarching obligation;
…
(c)an order that the person compensate any person for any financial loss or other loss which was materially contributed to by the contravention of the overarching obligation …
(d)an order that the person take any steps specified in the order which are reasonably necessary to remedy any contravention of the overarching obligations by the person;
(e)an order that the person not be permitted to take specified steps in the civil proceeding;
(f)any other order that the court considers to be in the interests of any person who has been prejudicially affected by the contravention of the overarching obligations.
(2) An order under this section may be made—
(a) on the application of—
(i) any party to the civil proceeding; or
…
(b) on the court’s own motion.
(3)This section does not limit any other power of a court to make any order, including any order as to costs.
Section 15 of the Charter provides, relevantly, as follows:
15 Freedom of expression
…
(2)Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether—
(a) orally; or
(b) in writing; or
(c) in print; or
(d) by way of art; or
(e) in another medium chosen by him or her.
(3)Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary—
(a)to respect the rights and reputation of other persons; or
(b)for the protection of national security, public order, public health or public morality.
Course of the proceeding
As stated above, the applicant commenced the proceeding by originating motion on 13 January 2016. An amended originating motion was filed on 9 August 2016.
In the amended originating motion, the applicant contended that the impugned decision was beyond the respondent’s power because it had the effect of limiting the operation of the applicant’s rights under ss 47(1)(n) and (o) of the Corrections Act without lawful justification. He sought relief in the nature of certiorari quashing the impugned decision, and declarations that the DE Policy has the effect of unlawfully limiting the operation of:
(a)the applicant’s s 47(1)(o) right to take part in educational programmes in the prison;
(b) the applicant’s s 47(1)(n) right of communication by letters; and
(c)the human right to ‘freedom of expression’ as it is defined by s 15(2) of the Charter.
The application for judicial review was heard on 18 August 2016. The applicant did not attend the hearing. He informed the Court that he relied on: his final written submissions dated 8 August 2016; three affidavits sworn by him on 8 January 2016, 30 May 2016 and 31 May 2016; and an affidavit sworn on 8 May 2016 by another prisoner, Julian Clark.
In his final written submissions, the applicant contended that, although he was not in fact prevented from participating in the counselling course or receiving mail from AIPC, his rights pursuant to ss 47(1)(n) and (o) of the Corrections Act had nevertheless been limited as a result of the impugned decision.
He argued that the right conferred by s 47(1)(o) includes the right of a prisoner to take part in programs offered by a distance education provider which is a registered training organisation provided that the program did not fall within any prohibition in the Corrections Act. This right was said to apply irrespective of whether the prisoner received support or approval from the prison authorities in relation to the program.
The applicant also contended that s 47(1)(n) confers a right on a prisoner to send and receive letters provided the letters do not fall within any category prohibited by the Corrections Act.
According to the applicant’s submissions, as the impugned decision purported to restrict his rights under ss 47(1)(n) and (o) in relation to the counselling course beyond the restrictions authorised by the Corrections Act, it was beyond power.
In relation to the receipt of support, the applicant said the following:
[T]he Court must understand that ’supported’ and ‘unsupported’ and ‘non-support’ are different from ‘Approved and non-approved’ in the [DE] Policy. ‘Support’ relates to administrative support which I have never sought, and ‘non-support’ means approved to take part in an educational program, but not given administrative support. And ‘non-approved’, which is my situation, means that the prisoner is NOT allowed to continue with the course and the education related letters will be seized.
In relation to the provisions of the Charter, the applicant submitted that, as the impugned decision stated that his mail would be restricted, it infringed his right to freedom of expression reflected in s 15(2).
In his final written submissions, the applicant also made a number of allegations about the manner in which the respondent and her legal representatives had conducted the proceeding. Specifically, the applicant outlined what he considered to be the respondent’s ‘misleading and deceptive’ and ‘unlawful’ conduct. The applicant summarised the conduct in the following terms:
It is my submission that there is a pattern of unlawful conduct … which should be seen as a set of similar facts which corroborate each other; that unlawful conduct being the choice of the [respondent]:
(a)Not to comply with Orders of the Court for serving documents on me by the time stipulated in the Order;
…
(c)To play a bullying mind game with late personal service of documents rather than ordinary service on time;
(d)To misleadingly and deceptively omit any reference to particular affidavits, and then to make the claim that there is no indication in my evidence of the specific matters which are detailed in the omitted affidavits; and
(e)To provide false and misleading evidence which has no basis in fact, law or logic. …
The misleading and deceptive conduct and evidence was said to include, among other things, the following:
(a)The omission from the respondent’s written submissions of reference to affidavits sworn by the applicant.
(b)The ‘recasting’ of the applicant’s claims and evidence.
(c)Misleading and deceptive claims and submissions as to the applicant’s rights and the respondent’s obligations under the relevant legislation and the applicability of authorities.
(d)The introduction of irrelevant matters to ‘obfuscate’ the applicant’s claims.
(e)The contents of affidavits filed by the respondent.
In his final written submissions, the applicant did not: make any reference to the CPA; allege that the respondent had breached any of the obligations in the CPA; or seek any relief as a result of the respondent’s conduct. He summarised his submission as follows:
It is my submission that the Court should consider in combination the conduct I have complained about … And it is my submission that when considered in combination, the conduct which I have complained about presents as a deliberate strategy by the [respondent] in this civil proceeding to:
(a) Frustrate the administration of justice;
(b) Act dishonestly;
(c) Respond to my claims on an improper basis;
(d) Mislead or deceive the Court;
(e) Widen the issues in dispute by introducing irrelevant material; and
(f) Cause delays by not acting promptly.
It is my submission that a real risk is created for the effective administration of justice when a party to a civil proceeding systematically misrepresents the evidence and claims of the other party.[13]
[13]Emphasis in original.
In his affidavit sworn on 8 January 2016, the applicant set out, among other things, details of the counselling course and his correspondence with AIPC and with officers of Corrections Victoria. In his affidavit sworn on 30 May 2016, the applicant set out details of further correspondence with Corrections Victoria, responded to some of the evidence contained in the affidavit of Roderick Wise which is discussed at [40]–[41] below, and outlined his arguments in relation to the operation of ss 47(1)(o) and (n) of the Corrections Act and the respondent’s alleged failure to afford him the rights conferred by those sections. He alleged that the respondent’s approach purported to convert the right in s 47(1)(o) into a privilege which was subject to the respondent’s approval.
In his affidavit, Mr Clark detailed his experience engaging in tertiary studies while in custody.
The respondent relied on three affidavits, two of Roderick Wise, Deputy Commissioner of Operations at Corrections Victoria, sworn on 12 May 2016 and 2 August 2016, and one of Ms Coombs, sworn on 1 August 2016.
In his affidavit sworn on 12 May 2016, Mr Wise stated as follows in relation to the process for prisoners generally to participate in education programs:
All prisons, including Loddon Prison where the [applicant] is accommodated, employ a Senior Education Officer (‘SEO’) whose duties include motivating prisoners to undertake education and training. The SEO also supports a small number of prisoner students who enrol in courses offered by outside universities and educational institutions in distance education courses. The SEO assists prisoners by accessing web-based lecture notes and course readings and submitting assessable work for them, because no prisoner is permitted to access the internet.
Due to the number of prisoners wishing to enrol in distance education, they are not all able to be supported by the SEO. Some prisoners have material sent in by family members and friends. The distance education material provided from the educational institution to prisoners is processed within the prison under the usual mail protocols required by the Corrections Act and the Corrections Regulations 2009.
The process for prisoners undertaking distance education not supported by the SEO is described in the [DE Policy] section 6.8. Although the final form of the [DE Policy] was not approved until 8 August 2014, it describes long-standing practice in relation to education in the prison system. …
For unsupported distance education, prisoners seek approval from the Case Management Review Committee (formerly the Review and Assessment Committee) at the prison location. If it becomes apparent that a prisoner is participating in unsupported distance education, without approval from the Case Management Review Committee, the prisoner will be required to make an application for consideration as to whether that study can continue. All prisoners with non-approved distance education will have their course material forwarded by external providers inspected carefully. If the course material contains anything that should be stopped or censored pursuant to sections 47A to 47D of the Corrections Act, or any unauthorised or controlled articles under the Corrections Regulations, the prisoner may be denied all or part of the course material.
Approved unsupported distance education prisoners do not receive funded administrative support from the SEO; but the SEO may offer general advice. …
In relation specifically to the applicant’s situation, Mr Wise said the following:
I understand that the [counselling] course requires the [applicant] to undertake practical exercises, or satisfactory alternative exercises to demonstrate the student’s counselling abilities. To the extent that this would involve the [applicant] counselling other prisoners, [he] would not be permitted to undertake those practical exercises, as this would not be consistent with the duty to safeguard the welfare of prisoners.
I am informed by Gavin Blair who is now acting as General Manager, Loddon Prison, and believe that neither he nor his prison staff have recently sighted any course material from AIPC coming into the prison for the [applicant]. I have been informed by Mr Blair and believe that neither he nor the substantive General Manager, Andrew Lourey, directed their staff that mail from AIPC was to be stopped. Mr Blair further informed me and I believe that there is no course material from AIPC in the [applicant’s] property, which is the prison’s storage facilities in which any prisoner’s property to which they have restricted access is held. However, Mr Blair has informed me and I believe that the [applicant] continues to have correspondence with AIPC, which correspondence has not been stopped or censored.
In his further affidavit sworn on 2 August 2016, Mr Wise noted that para 6.8 of the DE Policy, in referring to the restriction of a prisoner’s access to courses or course material forwarded by external providers, was not qualified by reference to this being a discretionary decision. He also noted that the DE Policy did not mention ‘the requirement to consider the management, security and good order of the prison in any decision’. He said that the DE Policy was being reviewed and that it was his intention to amend para 6.8 to reflect the discretion and the requirement to consider the management, security and good order of the prison.
During the trial, the respondent’s counsel said the following about the treatment of the applicant’s correspondence:
Despite an earlier letter which suggested that … correspondence [between the applicant and AIPC] may have been stopped, Mr Wise’s affidavit confirms, [as] has [the applicant], that the correspondence has not in fact been stopped because it’s accepted that correspondence can only be stopped in the circumstances contemplated under the Corrections Act, s 47 and related sections.[14]
[14]Transcript of Proceedings, Minogue v Shuard (Supreme Court of Victoria, S CI 2016 00322, McDonald J, 18 August 2016) (‘Trial Transcript’) 7.
The following exchange ensued between counsel for the respondent and the judge:
HIS HONOUR: Can we just be clear on this. I’ve been labouring under the clear impression that a decision was made that [the applicant] was to cease his studies in the diploma of counselling. … Am I wrong about that?
[COUNSEL]: It has been overtaken by events somewhat. …
HIS HONOUR: … Are you saying that in fact after that letter of 9 November [the applicant] was told by the relevant authorities there had been a change of mind and in fact he can continue with his studies?
[COUNSEL]: Your Honour, the position is that it’s been recognised that the Corrections Authorities cannot stop his mail to that institution. … Unless the mail falls foul of specific prohibitions on [mail] containing dangerous items, for example.
…
HIS HONOUR: All right. So the position is that he will be able to continue to correspond with the relevant institution where he’s undertaken the study but when it gets to the point in his course when he needs to be doing a practical component which would involve him counselling other prisoners, he won’t be permitted to do that, but you say that has not yet occurred?
[COUNSEL]: That’s right, Your Honour. It has not yet reached that stage where that decision is fallen to be made.[15]
[15]Trial Transcript 8–10.
The judge also asked counsel for the respondent whether the prison authorities had any control over the capacity of a prisoner to enrol in a distance education course by contacting a provider directly and counsel responded as follows:
[T]here is no express power in the [Corrections] Act to deal with that. There’s a right in the Corrections Act to take part in educational programs in the prison. So there would be great difficulties in limiting a prisoner’s ability to take part in a course within the prison.[16]
[16]Trial Transcript 16.
In her outline of submissions dated 6 July 2016, the respondent relied on the following statement of Bell J in Knight v Anderson:[17]
[Section 47(1)(o)] is a general right to take part in educational programmes, which, plainly, is not a right to be assessed for and take part in specific programmes of the kind Mr Knight has identified. It is equally plain that a right of that kind cannot be implied.[18]
[17](2007) 16 VR 532.
[18](2007) 16 VR 532, 535 [15].
Judge’s decision
The judge noted that the remedies of certiorari and declaration are discretionary.[19]
[19]Reasons [8]. The judge cited Mann v Medical Practitioners Board of Victoria (2004) 21 VAR 429, 434 [17]; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581–2; Rich v Groningen (1997) 95 A Crim R 272, 278.
In relation to the nature of the dispute the subject of the applicant’s judicial review application, the judge said the following:
There is currently no factual controversy regarding [the applicant’s] participation in the counselling course, or his receipt and dispatch of mail associated with his participation in that course. It is correct that the correspondence from Mr Money to [the applicant] in November and December 2015 advised [the applicant] to cease his participation in the course, and that he would not be able to access incoming mail from AIPC. However, thereafter no restrictions were placed on [the applicant’s] participation in the course, and no restrictions have been placed upon his dispatch or receipt of mail associated with his participation in the course. The question of whether the correspondence from Mr Money in November and December 2015 did in fact infringe [the applicant’s] rights under s 47(1)(n) of the Corrections Act 1986 is hypothetical. Assuming in [the applicant’s] favour that these provisions confer upon him the rights for which he contends, those rights were never breached.[20]
[20]Reasons [8].
The judge then said the following as to the likely outcome had the question the subject of the application not been hypothetical:
If there was an ongoing controversy regarding [the applicant’s] participation in the counselling course it would have been necessary for the Court, as a precondition to granting [the applicant] the relief he seeks, to determine whether he had an enforceable legal right to participate in the counselling course. Unless [the applicant] could establish an entitlement to mandamus to enforce a legal right to participate in the counselling course, there would be no utility in the grant of certiorari. Mandamus is not available to compel the exercise of a discretion.[21]
… [The applicant] contends that he had an enforceable legal right pursuant to s 47(1)(o) to undertake the counselling course, notwithstanding that he received no support from the prison authorities in doing so. He contends that he has this right irrespective of whether the prison authorities approve of his participation in the course.
…
Had I concluded that there was an extant factual controversy regarding [the applicant’s] participation in the counselling course, it would have been necessary to determine whether the counselling course provided by the AIPC is an ‘educational programme in the prison’ within the meaning of s 47(1)(o).
Plainly, there is a significant qualitative difference between vocational training courses of the type deposed to by Mr Wise, and a diploma course provided by a third party provider without the approval of the prison authorities. It is certainly arguable that whilst the former constitute ‘educational programmes in the prison’, the latter does not. The fact that [the applicant] is physically present in the prison whilst undertaking the course does not necessarily confer upon the course the status of being an educational programme ‘in the prison’. On one view, an educational programme ‘in the prison’ is one which is made available to prisoners through the auspices and with the approval of the prison authorities. Such a course would not necessarily have to be delivered within the physical confines of the prison. To the extent that it was delivered by a third party provider it would, however, have to be approved by the prison authorities. It is therefore arguable that [the applicant] has no enforceable legal right to undertake the diploma of counselling. His capacity to undertake the course is subject to the discretion of prison authorities.[22]
[21]The judge cited Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, 358–9 [99]–[100]; Moran v Secretary to the Department of Justice and Regulation (2015) 48 VR 119, 125 [21].
[22]Reasons [9]–[10], [12]–[13].
The judge held that in the light of his conclusion that there was no extant controversy between the applicant and the respondent regarding the applicant’s participation in the counselling course, it was unnecessary for him to express any concluded view on the question whether the applicant had an enforceable legal right under s 47(1)(o) of the Corrections Act to participate in that course. The judge considered that the determination of that question, which he said had significant ramifications for other prisoners undertaking studies through third party providers, should await a proceeding in which there is a live controversy regarding the operation of s 47(1)(o).[23]
[23]Reasons [14].
The judge then considered the declaratory relief sought by the applicant and said the following:
The discretionary considerations which weigh against the grant of certiorari apply with equal force in respect of [the applicant’s] application for declaratory relief. There is no extant controversy between [the applicant] and the [respondent] regarding his right to participate in the counselling course or to send and receive correspondence relating to his participation in the course. The declaratory relief he seeks is hypothetical. Absent this obstacle to the grant of declaratory relief, it would have been necessary for the Court to determine whether he does in fact have an enforceable legal right under s 47(1)(o) to participate in the counselling course. It would also have been necessary to determine whether, if [the applicant] does not have an enforceable legal right in the counselling course, he nevertheless has a right pursuant to s 47(1)(n) to send and receive correspondence relating to that course. The determination of these questions should await a proceeding to which there is an extant controversy regarding the operation of the [DE Policy].[24]
[24]Reasons [17].
For the same reasons, the judge also declined to grant the applicant the declaration he sought in respect of s 15(2) of the Charter on the following basis:
No question arises as to whether [the applicant’s] freedom of expression has been limited by the application of the [DE] Policy. As he acknowledged in his response to Ms Coombs by letter dated 12 May 2016, his right to correspond with AIPC is subject to the same protocols under the Corrections Act 1986 and Corrections Regulations 2009 which apply in respect of all prisoners. The interrelationship between the rights arising under s 15(2) of the Charter and the rights conferred upon prisoners by the Corrections Act 1986 is a matter with significant potential ramifications for all prisoners in Victoria. The determination of this issue should await proceedings in which the application of s 15(2) can be considered in the context of an extant controversy.[25]
[25]Reasons [18].
The judge did not refer to the CPA in his reasons, or to the allegations made by the applicant in his final written submissions about the conduct of the respondent and her legal representatives. In the course of outlining the applicant’s argument about the effect of the impugned decision on the applicant’s rights conferred by the Corrections Act, the judge quoted three paragraphs of the applicant’s final written submissions. Those paragraphs included, relevantly, the following statements:
I have NOT claimed that letters have been stopped, censored or removed from me. My claim has always been that the decision of the Defendant as particularised on the face of the record in the 2 letters from Assistant Commissioner Money had the effect of limiting the operation of my ss 47(1)(n) & 47(1)(o) rights. This is a totally different claim from saying that AIPC letters have been stopped, censored or removed from me.
The misleading recasting of my claims are so often repeated that I have to repeatedly answer them by saying that it has always been my claim that when the Defendant made the decision, and when the reasons for that decision were communicated to me in the 2 letters from Assistant Commissioner Money, that it was at this moment in time, that my ss 47(1)(n) & 47(1)(o) rights were unlawfully limited in their operation.
… To say: ‘We said we were going to limit the operation of his rights, but we didn’t get around to it, so no harm was done’ is nonsense, and the Court should not accept such nonsense.[26]
[26]Reasons [7] (emphasis in original).
The judge did not address those statements to the extent that they alleged that there had been repeated misleading recasting of the applicant’s claims.
Grounds of appeal
The proposed grounds of appeal are in the following terms:
1The trial judge erred in finding that the effect of the decision communicated to the Applicant by the 2 letters from Mr Brendan Money and by s 6.8 of the [DE Policy], had a hypothetical effect on the operation of the:
(a)s 47(1)(n) Corrections Act correspondence by letter right;
(b)s 47(1)(o) Corrections Act education right; and
(c)s 15(2)(b)(c) Charter freedom of expression right.
2Having erred in finding that the effect of the decision was hypothetical, the trial judge then erred in finding that relief was not available.
3The trial judge erred in law in not giving effect to [the] overarching purpose of the CPA as is mandatorily required by s 8 of the CPA when he did not address the complaints made by the Applicant at trial that:
(a)The Defendant at trial contravened the paramount duty to the court to further the administration of justice in relation to any civil proceeding in which that person is involved (s 16 CPA);
(b)The Defendant at trial contravened the obligation to act honestly at all times in relation to a civil proceeding (s 17 CPA);
(c)The Defendant at trial contravened the obligation not to make a claim or make a response to any claim in a civil proceeding without there being a proper basis for the claim or response (s 18(d) CPA);
(d)The Defendant at trial contravened the obligation to cooperate in the conduct of [a] civil proceeding (s 20 CPA); and
(e)The Defendant at trial contravened the obligation not to engage in conduct which is misleading or deceptive, or which is likely to … [mislead] or deceive (s 21(a)(b) CPA).
4The trial judge erred in law in not giving effect to [the] overarching purpose of the CPA as is mandatorily required by s 8 of the CPA when he did not address the complaints made by the Applicant at trial that Ms Debra Coombs of the firm of the Victorian Government Solicitor’s Office had:
(a)Acted in contravention of the obligations placed on a legal practitioner (s 13 CPA);
(b)Acted in contravention of the obligations placed on a legal practitioner not [to] cause the client to contravene any of the overarching obligations of the [CPA] (s 14 CPA);
(c)Acted in contravention of the paramount duty to the court to further the administration of justice in relation to any civil proceeding in which that person is involved (s 16 CPA);
(d)Acted in contravention of the obligation to act honestly at all times in relation to a civil proceeding (s 17 CPA);
(e)Acted in contravention of the obligation not to make a claim or make a response to any claim in a civil proceeding without there being a proper basis for the claim or response (s 18(d) CPA);
(f)Acted in contravention of the obligation to cooperate in the conduct of [a] civil proceeding (s 20 CPA); and
(g)Acted in contravention of the obligation not to engage in conduct which is misleading or deceptive, or which is likely to … mislead or deceive (s 21(a)(b) CPA).
5[Ground 5 was identical to Ground 4 save that it was directed at the respondent’s counsel, Ms C M Harris].
6The trial judge erred in fact and in law when finding that the issue in dispute between the parties was: ‘whether [the applicant] had an enforceable legal right to participate in the counselling course’ (para 9) when such a claim of fact and law was never made by the Applicant.
7The trial judge erred in fact and in law when finding that the issue in dispute between the parties was that: ‘[The applicant] contends that he had an enforceable legal right pursuant to s 47(1)(o) to undertake the counselling course’ and ‘he contends that he has this right’ (para 10) when such a claim of fact and law was never made by the Applicant.
8The trial judge erred in fact and in law when finding: ‘It is therefore arguable that [the applicant] has no enforceable legal right to undertake the diploma of counselling’ (para 13) when such a claim of fact and law was never made by the Applicant.
Grounds 1 and 2: Whether the effect of the respondent’s decision was hypothetical
Parties’ submissions
The applicant submitted that the impugned decision on its face limited the operation of his rights pursuant to ss 47(1)(o) and (n) of the Corrections Act and s 15(2) of the Charter. He maintained that submission despite accepting that, from a practical perspective, he was able to continue the counselling course and access mail from AIPC because the impugned decision had not ultimately been implemented.
The applicant submitted that he, and other prisoners, remained at risk of a further decision being made in the future with the same effect as the impugned decision whether in relation to his undertaking of the counselling course or the receipt of his mail, because nothing had happened as a result of this proceeding that prevented it. The applicant emphasised that the concession made by the respondent at trial that she did not have the power to make the impugned decision did not appear in the judgment. Further, the applicant submitted that the concession was only made ‘by suggestion’ in the 10 May 2016 letter from Ms Coombs, which the applicant described as ‘vague’.
The applicant submitted that his argument was reinforced by the fact that para 6.8 of the DE Policy provided for mail to be restricted in circumstances other than those allowed by the Corrections Act.
According to the applicant, this has created a situation where an officer of Corrections Victoria who is not familiar with the respondent’s concession in this proceeding that she could not prevent him from continuing the counselling course, could make a decision which would be on its face compliant with the DE Policy or standing orders within the prison, but contrary to that concession.
In relation to the proposed amendments to para 6.8 of the DE Policy described by Mr Wise, the applicant submitted that they would limit the rights in ss 47(1)(n) and (o) of the Corrections Act and s 15(2) of the Charter by reference to the general powers in ss 21 and 22 of the Corrections Act when in fact para 6.8 should limit those rights by reference only to the specific powers in ss 47A–47D.
The respondent referred to the letter from Ms Coombs dated 10 May 2016 and the affidavit of Mr Wise sworn on 12 May 2016 and submitted that they establish that there was in fact no restriction placed on the applicant’s mail or participation in the counselling course. In relation to the exact terms of the 10 May 2016 letter, and in particular whether it was clear from that letter that the applicant would not be prohibited from continuing the counselling course, the respondent submitted that if distance education is undertaken by correspondence and there is no restriction on a prisoner’s correspondence, except as provided for by the Corrections Act, it must follow that there is no restraint on participating in the course. Accordingly, so it was said, the position had been made clear in advance of the trial.
The respondent contended that once the judge had concluded, as a matter of fact, that the applicant had continued to participate in the counselling course and had not had any relevant restriction placed on his ability to send and receive mail, it was open to the judge to conclude that the controversy was hypothetical and that, as a matter of discretion, the relief sought by the applicant should not be granted.
Decision
In our opinion, Grounds 1 and 2 are not made out.
The correspondence between the parties makes it clear that there was never any issue between them with regard to the absence of support by Corrections Victoria for the applicant’s undertaking of the counselling course. Although Corrections Victoria was not willing to provide such support, the applicant had never sought it and did not want it. The only issues in dispute related to the decision of Corrections Victoria to require the applicant to cease undertaking the counselling course and to restrict his correspondence with AIPC.
The events described in the evidence set out at [16] and [41] above establish that, prior to trial, the respondent had made it clear to the applicant in writing that Corrections Victoria would not take any steps to prevent him from continuing the counselling course or interfere with his correspondence with AIPC. In his letter dated 12 May 2016, the applicant acknowledged that he understood and accepted the position of Corrections Victoria regarding the manner in which it would deal with his correspondence with AIPC. As the counselling course was a correspondence course, lack of interference with the applicant’s correspondence with AIPC meant that there would be no interference with his continued undertaking of the course.
At trial, the respondent confirmed that, insofar as the letters from Mr Money stated that the applicant must cease undertaking the counselling course and that Corrections Victoria would restrict his correspondence with AIPC, they no longer represented the position of Corrections Victoria.
In these circumstances, the question whether the impugned decision was invalid because it purported to curtail the applicant’s rights under ss 47(1)(n) and (o) of the Corrections Act without a proper legal basis, and contrary to s 15(2) of the Charter, was no longer before the Court because Corrections Victoria had resiled from that decision. As at the date of trial, there was no evidence that Corrections Victoria was acting — or intended to act — contrary to the above statutory provisions in relation to the applicant’s undertaking of the counselling course. It follows that the judge was correct to find that the applicant’s complaint against the respondent in relation to the counselling course had become hypothetical and that the discretionary remedies of certiorari and declaration were not available.
The judge was also correct in stating that, had the applicant’s complaint not become hypothetical, it would have been necessary for the Court to consider the scope and effect of ss 47(1)(n) and (o) of the Corrections Act and whether the impugned decision breached those provisions and infringed the right to freedom of expression set out in s 15(2) of the Charter. This was merely a statement of the obvious. While the judge made some observations about these provisions, they were made in passing and did not have any bearing on his decision. The judge made clear that, as the scope and effect of these provisions no longer needed to be determined, those issues should be left to a future case where they are in contention.
We have not overlooked the applicant’s stated concern that, in the future, Corrections Victoria might alter its position yet again by interfering with his statutory rights in relation to the counselling course or some other course that he might undertake. However, judicial review remedies are available only in respect of unlawful decisions that are actually made or threatened and cannot be granted merely because a person has a concern that an unlawful decision might possibly be made sometime in the future.
Similarly, judicial review remedies are not available in this proceeding in respect of any current or future non-compliance with ss 47(1)(n) and (o) of the Corrections Act and s 15(2) of the Charter by Corrections Victoria in relation to other prisoners. Separate judicial review proceedings would need to be instituted by the prisoners concerned in the case of any such non-compliance.
Finally, this proceeding does not provide an appropriate occasion for a review of para 6.8 of the DE Policy or any proposed amendments to it. This is because para 6.8 was ultimately not applied in relation to the applicant’s undertaking of the counselling course. We note that counsel for the respondent informed us that Corrections Victoria is reviewing the DE Policy to ensure that it complies with the applicable legislation.
Grounds 3–5: Alleged breaches of the CPA
Parties’ submissions
The applicant submitted that the judge failed in his mandatory obligation arising under s 8 of the CPA to address allegations made by the applicant at trial of conduct which, if proved, would be in contravention of the CPA.[27]
[27]The applicant cited Yara Australia Pty Ltd v Oswal (2013) 41 VR 302, 311–12 [26]–[27] (‘Yara’).
The applicant referred to the allegations made in his final written submissions[28] at the trial and submitted that they, in effect, constituted allegations that the respondent and her legal representatives contravened their obligations in ss 13, 14, 16, 17, 18(d), 20 and 21 of the CPA. According to the applicant, the judge’s failure to address these allegations directly led to a substantial miscarriage of justice, the unlawful subversion of the effective administration of justice, the applicant being denied his right to be heard at the trial and a fraud being committed on the Court.
[28]See [34]–[36] above.
The applicant accepted that he had not articulated the relief he sought as a result of the alleged breaches of the overarching obligations. During oral submissions, he said that the relief he would have sought would be a written acknowledgement that the respondent and her legal representatives had committed those breaches and an admonition by the Court.
The applicant outlined the evidence relied on and submissions made by the respondent which he said misleadingly implied that he was claiming that the right in s 47(1)(o) of the Corrections Act imposed a duty on Corrections Victoria to do certain things to facilitate participation in a specific educational program in the prison, in circumstances where he did not make that claim. The applicant identified the following submissions made by the respondent in her outline of submissions dated 6 July 2016 as falling into this category:
(a)‘There is no specific legal entitlement on the part of prisoners to be permitted to enrol in a particular course of study outside of the prison.’
(b)‘Section 47(1)(o) provides a right to take part in educational programmes within the prison, but it does not provide a right to participate in particular educational programs of the prisoner’s own choosing.’
(c)‘… the [applicant] has no right under s 47(1)(o) to take part in any specific program, and no right to undertake any particular program offered by a distance education provider.’
(d)‘… there is no lawful obligation on prison authorities to actively facilitate particular externally provided education programs. Nor is there any evidence that the [applicant] has sought any particular assistance.’
(e)‘As there is no legal right to any particular administrative support for [a] specific distance education course offered outside the prison, and the provision of such support is entirely discretionary, there is no basis on which [the impugned] decision could be the subject of an order in the nature of certiorari.’
(f)‘… there is no right to participate in specific educational programmes, in particular specific programmes offered outside the prison ...’
According to the applicant, these matters indicate that the respondent and her counsel made a choice to mislead the Court by repeatedly recasting his claims to make it appear as if he had no basis for them. The applicant described that conduct as ‘beyond-the-pale of honest advocacy’.[29]
[29]Emphasis in original.
The applicant also submitted that his affidavit sworn on 8 January 2016 was not the principal affidavit filed in support of his case, and the respondent’s statement in her outline of submissions dated 6 July 2016 that that affidavit was ‘in support of his primary application’ was incorrect and misleading. In fact, so it was said, his affidavit sworn on 30 May 2016 was the principal affidavit, and that affidavit was ‘omitted’ by the respondent at trial. The applicant submitted that there is a further misleading claim in the respondent’s outline of submissions dated 6 July 2016 in relation to the number of applications there had been in this proceeding as opposed to another proceeding instituted by the applicant. According to the applicant, these statements were designed to ‘work as a sleight-of-hand-trick to misleadingly direct the attention of the Court’ to the applications made in the other matter in order to suggest that the affidavits filed by the applicant in this matter were ‘not relevant to the main matters in dispute’.
The applicant submitted that the choice to omit any reference to the applicant’s affidavits sworn on 30 and 31 May 2016 from the respondent’s outline of submissions dated 6 July 2016 was a ‘dishonest deflecting tactic designed to mislead and deceive the Court as to the state of the Applicant’s evidence’, which he had complained about in his final written submissions.
The applicant also submitted that the respondent used dicta from Knight v Anderson deceptively in her outline of submissions dated 6 July 2016.[30] According to the applicant, as counsel for the respondent also appeared in Knight v Anderson, she would have ‘intimate knowledge of that matter’ and would know that the dicta from Knight v Anderson did not apply in this case. The applicant submitted that the programs being referred to by Bell J in the passage relied upon by the respondent were not education programs, but were offending behaviour programs. According to the applicant, such programs are different because they are designed to address the risk of reoffending, and are exclusively provided at the discretion of the Department of Justice and facilitated by psychologists as part of clinical treatment programs in the prison system. After explaining how Mr Knight had attempted to enliven s 47(1)(o) of the Corrections Act, the applicant submitted that Mr Knight’s claims were ‘as completely different from the Applicant’s claims, as are chalk and cheese’.
[30]See [46] above.
According to the applicant, this Court should investigate and settle the question of what Bell J was referring to in Knight v Anderson. He added that, if this Court agrees with his interpretation of Knight v Anderson, a ‘very real question’ would arise as to whether the respondent and her counsel had committed a fraud on the Court. This fraud was said to have denied the applicant the opportunity to be heard by the Court.
In relation to the complaint made in the final written submissions about late personal service of documents on him by the respondent, the applicant submitted that he had suffered prejudice as a result of that late service. According to the applicant, this prejudice arose because it takes him considerable time to obtain authorities in order to prepare and respond to submissions, and as a result of the delay in service, there were arguments made by the respondent that he did not have time to address.
The respondent submitted that the applicant did not actually argue before the judge that the respondent or her legal representatives had contravened the CPA, although she accepted that he did allege conduct that would amount to a breach of the CPA in his final written submissions.
According to the respondent, the applicant had not demonstrated how the judge erred in giving judgment and making orders in the proceeding if his complaints about breaches of the CPA had been upheld by the judge.[31]
[31]The respondent noted that the usual consequence of such a breach is an adverse costs order against the delinquent person or party and cited Yara (2013) 41 VR 302, 311–12 [27].
The respondent argued that to the extent that the applicant’s argument was that the judge overlooked his submissions about breaches of the CPA, it could not be sustained because it was clear from the judge’s reasons that he considered them.[32]
[32]The respondent referred to Reasons [7] n 9. See [53] above.
According to the respondent, it was never put to the judge that there ought to be relief granted to the applicant through an application under s 29 of the CPA and, if it had been, the respondent may have put on evidence to respond to the allegations.
The respondent submitted that, in any event, there was no substance to the applicant’s allegations about the conduct of the respondent and her legal representatives.
In relation to the allegations that Mr Wise had given evidence that was misleading and deceptive, the respondent submitted that articulation by Mr Wise of his understanding as to a course of events or state of affairs cannot be described as a deliberate attempt to mislead or deceive. The respondent noted that it was apparent on the face of Mr Wise’s affidavits that he was only expressing his understanding, and that there were qualifications in the language he used.
In relation to the allegations of late service, the respondent submitted that that delay could have been ameliorated by the applicant seeking extra time.
In relation to the allegations about the legal practitioners, the respondent submitted that the applicant’s true complaint was that he disagreed with the arguments they made. According to the respondent, even if those arguments were wrong in law, that is not enough to establish that they were misleading or deceptive. The respondent contended that the arguments were properly made and the fact that they might be potentially incorrect is not sufficient to establish a breach of the CPA.
Decision
As the applicant’s written submissions raised serious allegations against the respondent and her legal representatives which, if true, would have constituted breaches of their overarching obligations under the CPA, the judge should have addressed them. If the judge had formed the view that the allegations were misconceived or lacked substance, he could have said so briefly without analysing them in detail.[33] It is understandable that, in the face of the judge’s silence in relation to his allegations, the applicant feels that the judge ignored them.
[33]Yara (2013) 41 VR 302, 311–12 [27]; Giles v Jeffrey [2016] VSCA 314 [126]–[127] (‘Giles’).
Having considered the applicant’s allegations, we are able to deal with them expeditiously.
In our opinion, the applicant has not established that the manner in which the respondent conducted the proceeding contravened any provision of the CPA. It is true that the respondent departed from the position set out in Mr Money’s letters and offered no explanation as to why she did so. Had the respondent notified her change of position prior to the commencement of the proceeding, it is possible that the proceeding may have been avoided. However, the respondent’s conduct in this regard is not inconsistent with the overarching purpose or any of the overarching obligations in the CPA. This is because her change of position, in substance, overcame the applicant’s grievance and rendered continuation of the proceeding unnecessary.
We are not satisfied that there are any facts set out in the affidavits that the respondent filed in support of her defence of the proceeding which are deliberately false or misleading or that any opinions expressed in the affidavits were not genuinely held.
In relation to the submissions of counsel for the respondent which are the subject of the applicant’s allegations, the question that arises under the CPA is not whether the Court (or, for that matter, the applicant) agrees with them. Rather, the question is whether any of the submissions are made dishonestly or are misleading. In our opinion, none of the submissions can be so described; on the contrary they were all within the proper bounds of advocacy.
We note that, even if we had held that the respondent or her legal representatives had breached any of their overarching obligations under the CPA, no relief would have been available to the applicant. Apart from the fact that the applicant did not seek any relief in respect of the alleged breaches, there was no evidence that he had suffered any loss or other prejudice as a result of the alleged breaches. The Court’s powers under s 29 of the CPA are, in the main, directed at providing redress where the person who has alleged breaches of the overarching obligations has demonstrated that he or she has been prejudiced by the breaches.[34]
[34]Yara (2013) 41 VR 302, 311–12 [27]; Giles [2016] VSCA 314 [128].
The applicant’s complaint about the late service of documents by the respondent is not a sufficient basis for an order under s 29 of the CPA in the absence of further particulars of how the delay caused him prejudice and an explanation as to why he did not seek extra time in which to respond to the documents.
The applicant’s submission that, under s 29, the judge could have admonished the respondent and her legal representatives assumes that s 29 confers a power to admonish a party or a legal practitioner for breaching an overarching obligation. In the present case, it is not necessary to decide whether the powers in s 29 can be exercised for disciplinary purposes as distinct from compensatory purposes. That is because, even if a power to admonish were available under s 29, no occasion for its exercise arose in the present case, as we are not satisfied that any overarching obligation has been breached. However, we note that, subject to compliance with procedural fairness, the Supreme Court has inherent jurisdiction to admonish a party or a legal practitioner for inappropriate conduct in a civil proceeding, and does not need express statutory power to do so.
Contrary to the applicant’s submissions, the judge’s conduct of the proceeding gave effect to the overarching purpose in the CPA. He correctly identified that there was no extant substantive issue in dispute between the parties and determined the proceeding efficiently and succinctly.
It follows that Grounds 3–5 must be rejected.
Grounds 6–8: Whether the judge erred in identifying the issues in dispute
Parties’ submissions
The applicant referred to a number of statements made by the judge in his reasons which the applicant said ‘categorised’ his claims in particular ways, and submitted that he did not make the claims as categorised. The applicant identified those claims as follows:[35]
[35]We note that grounds 5–8 in the notice of application for leave to appeal refer only to the matters in (a), (c) and (d).
(a)‘… whether [the applicant] had an enforceable legal right to participate in the counselling course’ [Reasons [9]];
(b)‘Unless [the applicant] could establish an entitlement to mandamus to enforce a legal right to participate in the counselling course, there would be no utility in the grant of certiorari’ [Reasons [9]];
(c)‘[The applicant] contends that he had an enforceable legal right pursuant to s 47(1)(o) to undertake the counselling course … [and] … he contends that he has this right’ [Reasons [10]];
(d)‘It is therefore arguable that [the applicant] has no enforceable legal right to undertake the diploma of counselling’ [Reasons [13]];
(e)‘… it would have been necessary for the Court to determine whether [the applicant] does in fact have an enforceable legal right under s 47(1)(o) to participate in the counselling course’ [Reasons [17]]; and
(f)‘It would also have been necessary to determine whether, if [the applicant] does not have an enforceable legal right in the counselling course, he nevertheless has a right pursuant to s 47(1)(n) to send and receive correspondence relating to that course’ [Reasons [17]].
The applicant submitted that he in fact claimed that the operation of the rights in ss 47(1)(o) and (n) of the Corrections Act could not be limited in their operation for reasons which are not provided for under law and which were not demonstrably and reasonably necessary under law.
The respondent submitted that there is no substance to Grounds 6–8 because the relevant paragraphs of the judge’s reasons were not part of the reasons for which the application for judicial review was dismissed.
According to the respondent, having concluded that the controversy was hypothetical, the judge proceeded to make some comments on the approach that he would have taken had the issue not been hypothetical. The respondent submitted that that proposition is demonstrated by the words ‘[i]f there was an ongoing controversy’.[36]
[36]See [49] above.
The respondent submitted that even if the judge erred in his understanding of the arguments made by the applicant, which she denied, that did not lead to appealable error.
Decision
In our opinion, Grounds 6–8 are not made out.
In relation to Grounds 6 and 7, even if it is assumed that the judge’s statements which are the subject of those grounds did not accurately reflect the issues sought to be agitated by the applicant, any such mischaracterisation did not affect the correctness of the order made by the judge or his reasons for making that order.
In relation to Ground 8, the judge’s statement which is the subject of this ground merely set out an arguable construction of s 47(1)(o) of the Corrections Act. The judge did not express a final view on the proper construction of that provision because it was not necessary for him to do so. The judge’s statement did not affect the correctness of the order that he made or his reasons for making that order.
Conclusion
For the above reasons, the application for leave to appeal will be refused.
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