De Alwis v Minister for Corrective Services
[2013] WASC 288
•31 JULY 2013
DE ALWIS -v- MINISTER FOR CORRECTIVE SERVICES [2013] WASC 288
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 288 | |
| Case No: | CIV:1960/2013 | 31 JULY 2013 | |
| Coram: | McKECHNIE J | 31/07/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed Stay order dissolved | ||
| B | |||
| PDF Version |
| Parties: | VIJITHA GAMINI DE ALWIS MINISTER FOR CORRECTIVE SERVICES COMMISSIONER, DEPARTMENT OF CORRECTIVE SERVICES SUPERINTENDENT, CASUARINA PRISON MR P ANDERSON, ASSISTANT SUPERINTENDENT, CASUARINA PRISON MR RATTAN, PRISON OFFICER, CASUARINA PRISON MS HARROWER, PRISON OFFICER, CASUARINA PRISON |
Catchwords: | Prerogative relief Prison discipline Whether arguable case No new principles |
Legislation: | Prisons Act 1981 (WA) |
Case References: | De Alwis v Minister for Corrective Services [2013] WASC 275 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
MINISTER FOR CORRECTIVE SERVICES
First Respondent
COMMISSIONER, DEPARTMENT OF CORRECTIVE SERVICES
Second Respondent
SUPERINTENDENT, CASUARINA PRISON
Third Respondent
MR P ANDERSON, ASSISTANT SUPERINTENDENT, CASUARINA PRISON
Fourth Respondent
MR RATTAN, PRISON OFFICER, CASUARINA PRISON
Fifth Respondent
MS HARROWER, PRISON OFFICER, CASUARINA PRISON
Sixth Respondent
Catchwords:
Prerogative relief - Prison discipline - Whether arguable case - No new principles
Legislation:
Prisons Act 1981 (WA)
Result:
Application dismissed
Stay order dissolved
Category: B
Representation:
Counsel:
Applicant : In person & Ms S M De Alwis
First Respondent : Mr G Tannin SC & Ms A Preston-Sanson
Second Respondent : Mr G Tannin SC & Ms A Preston-Sanson
Third Respondent : Mr G Tannin SC & Ms A Preston-Sanson
Fourth Respondent : Mr G Tannin SC & Ms A Preston-Sanson
Fifth Respondent : Mr G Tannin SC & Ms A Preston-Sanson
Sixth Respondent : Mr G Tannin SC & Ms A Preston-Sanson
Solicitors:
Applicant : In person & McKenzie Friend
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Third Respondent : State Solicitor for Western Australia
Fourth Respondent : State Solicitor for Western Australia
Fifth Respondent : State Solicitor for Western Australia
Sixth Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
De Alwis v Minister for Corrective Services [2013] WASC 275
- McKECHNIE J:
How this matter comes to court
1 The applicant is a sentenced prisoner who applied urgently for prerogative relief in respect of a decision made to place him on basic supervision for a period of seven days. On 18 June 2013, Beech J heard the application, made programming orders and stayed proceedings until today.
2 The applicant was returned to his cell in Unit 13, but on 27 June 2013 a further decision was taken to place him in basic supervision. He applied urgently to this court again. Simmonds J heard the application over four days and published detailed reasons for dismissing it: De Alwis v Minister for Corrective Services [2013] WASC 275.
The evidence
3 Although outside the programming orders timetable, the applicant filed an affidavit on 30 July 2013, and an affidavit of his daughter of the same date. Another affidavit from AW has no particular relevance, consisting entirely of hearsay.
4 The respondents, within time, filed an affidavit from the decision maker, Mr Giblett. The respondents oppose the admission of the two late affidavits into evidence. However, I will receive them into evidence. I have read them together with their annexures. I note though, that they are in contravention of case management principles. They are not responsive to the respondents' affidavit but raise new matters in an endeavour to distinguish Simmonds J decision in De Alwis v Minister for Corrective Services.
5 Why this material was not put before Simmonds J is unexplained as the question whether basic supervision was separate to confinement was a live question before him. So was the medical condition of the applicant and general issues of bad faith on the part of prison officers - all of which are referred to in these proceedings.
The oral submissions
6 This morning, Ms S M De Alwis, who is a solicitor, was allowed by me to make submissions on behalf of her father, the applicant, at his request. Her submissions were detailed, comprehensive and logical. As a pragmatic decision, I permitted her to do so even though she is not on the record and went far beyond the role of a McKenzie friend, as normally understood. Nevertheless, her submissions have been of considerable assistance.
7 After Mr Tannin of Senior Counsel responded, the applicant sought leave in person to make what he termed brief submissions to overcome what he also described was a lacuna in the presentation by his daughter.
8 I am not persuaded that there was any lacuna. It is verging on bad faith to use the opportunity to have a McKenzie friend in order to then make what are very extensive submissions of one's own. It should be, in general, one or the other. Nevertheless, I permitted the applicant to range over some matters, but put on him a time limit as it was clear that he was not, in fact, dealing with matters in reply to Mr Tannin, but was ranging over new matters, including matters of no relevance to these proceedings.
Disposition
9 The applicant faces the considerable hurdle of the decision of Simmonds J in De Alwis v Minister for Corrective Services which adjudicated on legal issues substantially identical to those in these proceedings.
10 The applicant's central submission was that the evidence detailed in the recently filed affidavits demonstrates a sufficient difference to the matters before Simmonds J that I should not be bound by that decision.
11 At the heart of the submission was the proposition that the evidence now adduced demonstrates at least an arguable case that the supervision imposed on the applicant for four days, until the stay order was made, was actually separate confinement and therefore, arguably, unlawful under the Prisons Act 1981 (WA) s 43. I do not consider that the evidence, taken at its highest, supports this conclusion. Considerable store was placed on the table – annexure B to the applicant's recent affidavit. However, the matters there set out do not establish that the applicant was separately confined or that a separate confinement regime was actually applied to him.
12 The applicant also stresses his medical conditions and that the form of punishment is therefore inappropriate, and that he has not received the treatment which he needs. The respondents have a general duty of care in respect to the applicant, and to all prisoners, in respect of appropriate and necessary medical treatment. Assuming, without deciding, that there was less than appropriate medical care provided to the applicant at some times, that lack of care is not because of any supervision order.
13 The decision to award basic supervision is quintessentially a management decision, not one attracting rights which may be subject to judicial review.
14 A decision may be reviewed if made in bad faith. The applicant argued this was such decision. However, the decision maker was not named as a respondent. There is no evidence of bad faith on his part, and he has deposed that he was not actuated by malice. Nor is there evidence of an abuse of power.
15 I return to the decision in De Alwis v Minister for Corrective Services. Simmonds J, with respect, comprehensively ruled upon the applicant's claims. The applicant had ample opportunity to put evidence before Simmonds J and did so. I follow Simmonds J's decision, which I do in part because I consider his decision to be plainly right.
16 The applicant has failed to persuade me that there is any material difference in the evidence other than, of course, the reasons for the supervision order. In particular, the evidence does not establish an arguable case that basic supervision imposed on the applicant can be categorised as separate confinement under the provisions of the Prisons Act s 43. In my view, the evidence established this was a management decision not susceptible to judicial review.
Orders
17 The orders I will make are that the application for prerogative relief as detailed in the written application be dismissed. The stay order is necessarily dissolved.
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