De Alwis v Minister for Corrective Services - [2013] WASC 275

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DE ALWIS -v- MINISTER FOR CORRECTIVE SERVICES [2013] WASC 275

CORAM: SIMMONDS J

HEARD: 15-17 & 22 JULY 2013

DELIVERED : 22 JULY 2013

FILE NO/S: CIV 2044 of 2013

BETWEEN: VIJITHA GAMINI DE ALWIS
Plaintiff
AND
MINISTER FOR CORRECTIVE SERVICES
First Respondent
COMMISSIONER FOR CORRECTIVE SERVICES
Second Respondent
SUPERINTENDENT, CASUARINA PRISON
Third Respondent
MR P ANDERSON, ASSISTANT SUPERINTENDENT, CASUARINA PRISON
Fourth Respondent
MR GIBLETT, ASSISTANT SUPERINTENDENT, CASUARINA PRISON
Fifth Respondent
MS COLLINS, PRISON OFFICER, CASUARINA PRISON
Sixth Respondent
MR LAWLER, PRISON OFFICER, CASUARINA PRISON
Seventh Respondent

Catchwords:

Prisons and prisoners - Application for writ of certiorari and mandamus including application for urgent ex parte stay order - Order made in respect of order regressing prisoner to basic supervision - Whether order should be further extended or new stay order granted - Whether serious question to be tried - Whether damages adequate remedy - Balance of convenience

Legislation:

Australian Constitution, s 109
Oaths, Affidavits and Statutory Declarations Act 2005 (WA)
Prisons Act 1981 (WA), s 35, s 36, s 37, s 43
Prisons Regulations 1982 (WA)

Result:

Urgent ex parte stay order as extended dissolved
No new stay order granted

Category: B

Representation:

Counsel:

Plaintiff:     In person
First Respondent           :     Mr T C Russell
Second Respondent       :     Mr T C Russell
Third Respondent         :     Mr T C Russell
Fourth Respondent        :     Mr T C Russell
Fifth Respondent          :     Mr T C Russell
Sixth Respondent          :     Mr T C Russell
Seventh Respondent      :     Mr T C Russell
Friend of the Court       :     Daughter of the applicant

Solicitors:

Plaintiff:     In person
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
Seventh Respondent      :     State Solicitor for Western Australia
Friend of the Court       :     Daughter of the applicant

Case(s) referred to in judgment(s):

Barreto v McMullan [2013] WASC 26
Bartz v Chief Executive, Department of Corrective Services [2001] QSC 392; [2002] 2 Qd R 114
Isherwood v Tasmania [2010] TASCCA 11
Kidd v Chief Executive, Department of Corrective Services [2000] QSC 405; [2001] 2 Qd R 393
Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198
McEvoy v Lobban [1990] 2 Qd R 235
National Australia Bank Ltd v Joyce [2012] WASC 224
NGJF v Prisoners Review Board [2010] WASC 107
Re York Street Mezzanine Pty Ltd (in liq) [2007] FCA 922; (2007) 162 FCR 358
Rich v Scaife [2012] VSCA 92
Stampalia v The Stewards of the Western Australian Trotting Association [1999] WASC 7
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
Walker v The Queen [1993] 2 Qd R 345

SIMMONDS J:
(This judgment was delivered extemporaneously on 22 July 2013 and has been edited from the transcript.)

Introduction

This is a hearing to permit me to deliver my determination in respect of an application for either the extension of the stay order I made on 30 June 2013 or the grant of a new stay order in the same terms for a further, and I took it to be, an indefinite period. These reasons are, as will become apparent, lengthy.
The applicant is a prisoner in custody at Casuarina Prison. He is serving a term of 4 years and 9 months' imprisonment, taken to have commenced on 4 April 2011.
The applicant has commenced proceedings for, principally, orders of a judicial review kind in respect of decisions and other conduct by prison authorities or officers, being decisions affecting him (the present proceedings). One of the orders he has applied for, originally on an urgent ex parte basis, is an order staying an order for the applicant's confinement for a fixed period, but apparently subject to possible extension. The order (the confinement order) was made by the seventh respondent and dated 28 June 2013, on the document provided to the applicant. The order was for seven days of 'bassic' [sic] - which I take it, and there was no indication of any difficulty on this account, means 'basic supervision' - commencing on 27 June 2013 and terminating on 3 July 2013 'dependant on his behaviour'.
It is common ground that immediately prior to the coming into effect of the confinement order the applicant had been subject to confinement by 'standard supervision'. It is further common ground that confinement by basic supervision differs from confinement by standard supervision. It differs by reference to a number of matters to which I will return.
On 30 June 2013, a Sunday, following a hearing on the previous day, continued on the Sunday, I made orders on the urgent ex parte application for a stay. Those orders were principally for the stay of the confinement order until 2 July 2013 at 4.00 pm or further order (my stay order); the matter be adjourned until 1 July 2013, no later than 2.15 pm, to permit notice of the application to be given to the respondents, and for the respondents to be able to appear; and incidental orders.
On 1 July 2013, after hearing from the applicant in person and counsel for the respondents, I made further orders. Those were orders for the extension of my stay order until 3 July 2013 at 9.00 am; the hearing of the application in relation to the confinement order on 2 July 2013 at 4.00 pm; and incidental matters.
On 2 July 2013 I made programming orders (the programming orders) for affidavits and written submissions for a hearing in relation to my stay order. I extended my stay order until the day programmed for that hearing, 15 July 2013 at 4.00 pm; and I made incidental orders.
On 15, 16 and 17 July 2013 there was a hearing in relation to my stay order. On the same days, I made further orders for the extension of my stay order to accommodate the hearing and to accommodate the preparation and delivery of these reasons.
I should note that, throughout all of the hearings I have referred to, the applicant appeared in person. Also throughout, I permitted him to have a McKenzie friend. The friend was his daughter (the McKenzie friend). The McKenzie friend made submissions to the court throughout, as did the applicant. There was also an affidavit of the McKenzie friend of which I took account. She also provided written submissions to the court in addition to those of the applicant. In making these allowances I considered I was exercising the discretion in relation to the McKenzie friend described in Isherwood v Tasmania [2010] TASCCA 11 [68] ‑ [69] (Crawford CJ, Evans & Blow JJ).
In the balance of these reasons I set out the evidence upon which these reasons rest. I set out the applicable law. I set out the questions the applicant seeks to raise relevant to the matter before me. I set out my application of the law. In the final section of these reasons, I summarise my conclusions and call for orders.

The evidence upon which these reasons rest

At the hearing on 15 July 2013, I ruled as to the affidavits that I regarded as properly in evidence before me, subject to objections to all or any parts of any of those affidavits. Some of the affidavits for both the applicant and the respondents which were filed and served were filed or served after the dates provided in that regard in the programming orders.
I also note that evidence was given by the applicant at the hearing on 30 June 2013. As I will indicate, I considered that evidence was properly before me and I have taken account of it.
I should indicate that the affidavits for the respondents, two in number, were objected to in whole by the applicant on the basis they did not comply with the formal requirements for affidavits under the Oaths, Affidavits and Statutory Declarations Act 2005 (WA). It was not contended, however, that the documents filed and served by the respondents, otherwise in compliance with the programming orders, would not be identical in content with the documents which counsel for the respondents undertook to file and serve to meet the objection.
Subsequently, on 18 July 2013, the affidavits were affirmed and filed, although they were not served then. The court's copies of them were provided to the applicant at the commencement of the hearing on 22 July 2013 and time allowed for the applicant to verify whether or not the content of those affidavits was indeed identical with the documents previously provided. The applicant acknowledged that there was such identity. Accordingly, I consider that I should treat the documents provided to the applicant by the date allowed for in the programming orders as properly in evidence before me as a result of that undertaking and compliance with it.
I should further indicate that the affidavits for the applicant included affidavits filed and served in compliance with the programming orders, as well as some, but not all, of the further affidavits the applicant sought to rely upon, notwithstanding they had been provided otherwise than in full compliance with the programming orders. For the applicant there were the following affidavits which I regarded as in evidence before me, with the qualification having to do with objections to all or any part of the affidavit pursued at the hearing before me in respect of that particular affidavit, as follows (there were seven):
•affidavit of the applicant sworn 29 June 2013;
•affidavit of the applicant sworn 2 July 2013;
•affidavit of the applicant dated 9 July 2013 and sworn 15 July 2013;
•affidavit of the applicant sworn 10 July 2013;
•affidavit of the applicant sworn 11 July 2013;
•affidavit of the McKenzie friend sworn 14 July 2013; and
•affidavit of the applicant affirmed 15 July 2013.
For the respondents there were the following affidavits, which I regarded as in evidence before me, with the same qualification:
•affidavit of Phillip Murray Giblett affirmed 1 July 2013: this is one of the two documents for the respondents, the subject of the undertaking by their counsel referred to earlier; Mr Giblett deposes he is employed by the Department of Corrective Services as an assistant superintendent of Casuarina Prison; and
•affidavit of Mr Giblett affirmed 2 July 2013: this is the other of the two documents for the respondents, the subject of the undertaking by their counsel referred to earlier.
I should indicate, in respect of each of those affidavits, that I took as also being in evidence all of the attachments to those affidavits.
I should also indicate that, in compliance with the programming orders, I also had written submissions by the applicant dated 9 July 2013. At the hearing of 15 July 2013, the McKenzie friend sought to put before me a document entitled 'Submissions CIV2044/2013'. Counsel for the respondents indicated he had no objection to that document being considered by me as if it were further submissions for the applicant, and I so approached it.
Finally, I should also indicate that, in compliance with the programming orders, I have written submissions for the respondents dated 3 July 2013.

The applicable legal principles

I take the legal principles applicable to the consideration of the matter in my stay order as follows:
(1)As this was a hearing directed to the matter of my stay order, while the determination of that matter might mean that other orders should be made, such as an order dismissing the applicant's application, that last order would not necessarily be the result of the determination.
(2)In the determination of the matter in this case the relevant factors were at least those that are commonly considered in the extension or grant of an interim injunction. In my view, this draws support from Stampalia v The Stewards of the Western Australian Trotting Association [1999] WASC 7.
(3)Those factors, being the ones referred to under (2), as they appear in Kendall C & Curthoys J, Civil Procedure in Western Australia (as at 16 July 2013) at [52.0.3] are:
[3.]1Whether the plaintiffs have established a serious question to be tried in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief.
[3.]2Whether the plaintiffs will suffer irreparable injury for which damages will not be an adequate remedy; and
[3.]3Whether the balance of convenience favours the granting of an injunction.
(4)The matters of serious question to be tried and balance of convenience are not independent of one another in the sense explained in Civil Procedure in Western Australia [52.1.6] as follows, citing authority which I omit:
An apparently strong claim may lead a court more readily to grant an injunction where the balance of convenience is fairly even, but a claim of less strength which nevertheless raises the serious question to be tried may attract interlocutory relief where there is a marked balance of convenience in favour of it ... .
(5)The court in a hearing such as this one is not likely to be able to enter into a detailed consideration of the applicant's case. For that purpose, I note relevantly the following matter, as set out in Civil Procedure in Western Australia [52.1.9]:
In Emeco International Pty Ltd v O'Shea [2012] WASC 282 [24], Edelman J stated the following principles in relation to the extent to which a court can embark in a detailed consideration of the strength of a plaintiff's case.
'([5.]1)Normally the court does not undertake a preliminary trial, and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case. But, there are some kinds of case in which for the purpose of seeing where lies the balance of convenience it is desirable for the court to evaluate the strength of the plaintiff's case for final relief. One class of case to which this applies is where the decision to grant or refuse an interlocutory injunction will in a practical sense determine the substance of the matter in issue.
([5.]2)Where a plaintiff's entitlement to ultimate relief is uncertain, the court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately be held not to be entitled, and the consequences to the plaintiff of the refusal of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled.
([5.]3)Where the uncertainty depends in whole or in part on a contested question of fact it is not appropriate for the court to decide that question on the interlocutory application.
([5.]4)Where the uncertainty depends in whole or in part on a contested question of law, it may or may not be appropriate for the court to decide that question on the interlocutory application, depending on circumstances, eg, whether the question is novel or difficult, or is susceptible of resolution on the present state of the evidence, or whether the urgency of the matter renders it impracticable to give proper consideration to the question.'
(6)There is a duty of full disclosure on an ex parte application, for breach of which an order made on such an application may be dissolved: see Civil Procedure in Western Australia [52.1.14]. However, I also note [52.1.15] in material part as follows:
The fact that an injunction is dissolved for non-disclosure or misrepresentation does not prevent the court in a proper case from re‑granting the injunction forthwith on notice and on the merits.
In exercising a discretion to dissolve the order and re-grant it, or completely discharge it, the court will consider the materiality of the matter which was not disclosed and the nature of the applicant's conduct in failing to fulfil his or her duty of disclosure. Other material considerations are whether the non-disclosure was innocent, and whether an injunction would have been granted if full disclosure had been made. (citations omitted)
I should add in relation to the serious question to be tried that the 'evidence as it is' refers to both the evidence of the applicant and the evidence of the respondent or respondents: see Owen J, writing extra curially, 'The interlocutory injunction', in R Carroll ed, Civil Remedies, Issues and Developments (1993) 256. I consider this is also the case with respect to the remaining considerations of inadequacy and balance of convenience.
I turn now to apply these principles. I begin with a serious question to be tried and I must first consider the nature of the applicant's application.

The serious question to be tried: the nature of the applicant's application

The identification of the nature of the application the applicant makes in which he seeks relief by way of stay order is not an easy task. Although the applicant is a former certificated legal practitioner, his application to commence the present proceedings is not easily understood. I do not consider, however, I need to determine what might explain that difficulty.
Further, the matters the applicant seeks to have addressed in the present proceedings have been extended since these proceedings were commenced. The application for such an extension is itself not easily understood. Again, I do not consider I need to determine what might explain that difficulty.
Doing the best I can, I analyse the nature of the application the applicant makes and the extension he seeks as follows.
The present proceedings were commenced by originating motion for writs of certiorari and of mandamus. The writ of certiorari is in respect of the confinement order, referred to as an order made by the fourth respondent on 14 June 2013. However, this was not the confinement order. It was an order that is at least one of those the subject of similar proceedings, in CIV 1960 of 2013, brought by the applicant against some, but not all, of the respondents in the present proceedings.
Indeed, the present proceedings were originally commenced under that number, CIV 1960 of 2013, with the reallocation of the present proceedings to a new matter number, CIV 2044 of 2013 occurring subsequently. The order at least one of the subjects of those other proceedings was a similar order of confinement of the applicant. It was made previously to the confinement order. I will have more to say about the proceedings in CIV 1960 of 2013 later.
I should note that it is not in contest that the reference in the originating motion to the order made by the fourth respondent on 14 June 2013 should be understood, notwithstanding this date, as a reference to the confinement order.
The originating motion also seeks an urgent stay order in respect of the confinement order. The present matter before me concerns an order made on that part of the originating motion as I have explained. The writ of mandamus is to have the first, second and third respondents consider a number of matters. In broad terms those matters to be so considered are sending the applicant back to the unit area he was in prior to the coming into effect of the confinement order; the provision of facilities for his comfort in certain respects; the provision of certain supports for his research for the legal proceedings that he has referred to in the originating motion, and for the protection of his files; the provision of certain forms of medical treatment and medical examination for him; his 'right to legal professional privilege, his legal privilege and his right to privacy under the law be respected and strictly observed'; and certain protections for his safety in particular respects be provided.

The writ of mandamus is also to have the third respondent or the equivalent person in respect of any other prison in which he is held in custody, as well as the first and second respondents, provide the applicant with a 'safe prison environment that is suitable for prisoners like the applicant'.
At the hearing on 2 July 2013 the applicant, by chamber summons/notice of motion (the further process) sought orders for the extension of my stay order as well as a similar order made by Beech J in CIV 1960 of 2013; for the consolidation of the present proceedings with those in CIV 1960 of 2013; and for other orders.
One of the other orders in the original process filed by the applicant that commenced the present proceedings was for a stay of an order for the loss of privileges of the applicant in respect of library facilities at Casuarina Prison. However, at the hearing on 30 June 2013, the applicant indicated he did not press for an urgent order in that regard. Further, on the material as to that order before me it had expired. It would appear that the applicant nonetheless seeks an order or orders to mark that order as having been made unlawfully.
Another of the other orders was for the movement of the applicant back to a particular unit in Casuarina Prison until 'finality' in these proceedings and those in CIV 1960 of 2013.
Leaving aside orders sought for liberty to apply, the remaining order of the other orders sought was for the protection of the applicant against being 'victimised' in the respects indicated.
I should indicate that at the hearing on 2 July 2013 I adjourned the application for consolidation sine die to await the outcome of the present hearing.
The present matter before me is, of course, directed to my stay order, which implicates questions the applicant seeks to raise in the present proceedings in respect of the confinement order. I am not otherwise called to deal with the other orders sought in the further process or, indeed, in the original process. On my analysis of them the applicant has sought orders directed to not simply the confinement order but the possibility of orders of a similar kind, both through having the confinement order set aside and through having him confined in accordance with the regime that would follow from the consideration he seeks and from the protection orders he seeks.
I should note that, at the hearing on 15, 16 and 17 July, it became apparent - including through a minute of proposed orders put up for the applicant - that he sought mandatory orders for transfer to particular prison facilities outside Casuarina Prison. In my view this confirms my analysis of the orders the applicant seeks. It does not call for separate treatment in these reasons.
I turn then to the serious question to be tried and the applicable principles in relation to it.

The serious question to be tried: applicable principles

The principles applicable to the grant of orders of the judicial review kind, such as a writ of certiorari or writ of mandamus, for orders in the nature of the confinement order have recently been described in Barreto v McMullan [2013] WASC 26 (McKechnie J). Barreto, as is relevant to me, stated principles applicable to decisions ultimately made under the Prisons Act 1981 (WA), s 36. I return to that provision and related provisions below, which the respondents rely upon as the source of the authority to make the confinement order.
Barreto is under appeal, as the applicant stressed. However, until that decision is overturned in any respect material to me, the principles stated there are ones which I should follow unless I consider, at the least, they are plainly wrong: see Re York Street Mezzanine Pty Ltd (in liq) [2007] FCA 922; (2007) 162 FCR 358 [22] (Finkelstein J). The statements of principle in Barreto that I rely upon are ones which I do not consider to be wrong, let alone plainly wrong.
From Barreto I note the following as, in my view, correctly stating applicable principles:
Courts do not manage prisons. This court should not intervene to grant prerogative or declaratory relief unless the actions of the respondent are unlawful or beyond power. The extent to which the rules of natural justice might apply in respect of management decisions is an open question. The nature of the legitimate expectations of a prisoner is also an open question. Neither question can be answered in the abstract. The facts must give context to the answers.
Management decisions or orders are within the authority of the superintendent under the Prisons Act s 36. They are not of their nature easily susceptible of judicial review. Absent bad faith, a prison superintendent has broad and encompassing power over discipline and management of a prison. A superintendent must maintain order and security. A superintendent must take steps to reasonably protect both prisoners and prison officers or other staff in an environment which may at times be charged. Sometimes a superintendent will have to act on less than complete information, including information that may be later shown to be in error.
As earlier set out, the Prisons Act and the Acacia Agreement place responsibilities on the CEO (Prisons Act s 7); and the superintendent (Prisons Act s 36) for the good government, good order, and security of that prison. Carrying out the statutory or contractual responsibility requires a prison superintendent from time to time to make decisions and give orders which may be unfair in an individual case but are required for the overall good governance of that prison. Many prison orders will in fact be given when there is no practical possibility of judicial review.
An analogy may be drawn between prison officers and police officers or defence service personnel who are required to make executive decisions to keep the peace when faced with circumstances that require response.
Nothing could be more antithetical to good decision-making within the parameters of the Prisons Act s 36 than the possibility of judicial review in respect of each decision. Care therefore must be taken to identify a point at which a prisoner might have a legitimate expectation of a privilege or continuation of a right such as to accord the prisoner procedural fairness balanced against the responsibility of a prison superintendent to manage and control a prison for the safety, security and welfare of other prisoners and prison officers [37] ‑ [41].
I consider those statements to be supported by the authorities McKechnie J cited of McEvoy v Lobban [1990] 2 Qd R 235, Court of Appeal (confinement to a cell for a period of four days except for one hour per day for exercise and isolation from other prisoners but able to continue with personal privileges); Walker v The Queen [1993] 2 Qd R 345 (Williams J) (transfer from one prison to another); Kidd v Chief Executive, Department of Corrective Services [2000] QSC 405; [2001] 2 Qd R 393 (White J) (decision to place prisoner in maximum security and subsequent further orders to keep him there); Rich v Scaife [2012] VSCA 92 (withdrawal of telephone privileges); Bartz v Chief Executive, Department of Corrective Services [2001] QSC 392; [2002] 2 Qd R 114 (White J) (decision declining to designate a prisoner a full-time student at a prison farm); and NGJF v Prisoners Review Board [2010] WASC 107 (Hall J) (denial of parole and denial of participation in re-socialisation program prior to parole).
From Barreto and those decisions I consider a sufficient statement of the principles for my limited purposes is as follows:
(1)Decisions taken to punish a prisoner are different from decisions taken in the management and good governance of a prison: decisions taken to punish a prisoner naturally may attract review: see McEvoy (241) (Thomas J); Rich [43] (Nettle & Redlich JJA).
(2)Decisions taken in the management of a prison do not as readily attract review but may do so in a number of clear classes of case: see McEvoy (241) (Thomas J).
(3)One such class of case is where bad faith is present, such as victimisation of a prisoner under the guise of ordinary management: see McEvoy (241) (Thomas J); and Bartz [17] (White J).
(4)Another such class of case is where a decision has a material effect on a prisoner's rights and legitimate expectations, such as where a decision involves the loss of the usual prisoner's privileges, for example, freedom of association within the prison community consistent with good conduct: see Barreto [73] (McKechnie J); and Kidd [26] (White J): I note the qualifier 'consistent with good conduct'.
(5)It may at times be difficult to draw a distinction between decisions that have such an effect in proposition 4 and those that do not: see Barreto [73] (McKechnie J).
(6)There may be other classes of case where the court will exercise prerogative powers: see McEvoy (241) (Thomas J).
I then turn to the applicant's questions.

Serious question to be tried: the applicant's questions

I understood the submissions for the applicant to raise the following as serious questions to be tried. I should note that the applicant's submissions did not provide a clear formulation of all of these questions. However, I am satisfied that the following are the questions the applicant is seeking to raise.
I will deal with each question separately, as a proposition in each case that the applicant would be seeking to make good in the final hearing in the present proceedings with respect to the confinement order.
First, the confinement order was an unlawful order because it provided for treatment inconsistent with a number of international agreements or instruments listed in the originating motion, with provisions of a number of Commonwealth and Western Australian statutes listed there and with 'relevant and applicable international law and the municipal law', as the originating motion states it (the first question).
The confinement was an unlawful order because it was not made in accordance with the applicable provision in the Prisons Act (the second question).
The confinement order was a reviewable order because it was made contrary to the legitimate expectations of the applicant that he would not be held in separate confinement or in confinement inappropriate to him because of his physical condition or his need to prepare for present and prospective legal proceedings to which he is or would be a party, or any combination of these (the third question).
The confinement order was a reviewable order because it was made without adequate disclosure to the applicant at the relevant time of the bases upon which the confinement order was made (the fourth question).
The confinement order was a reviewable order because it was made on the basis of unjustified decisions or reports concerning the applicant (the fifth question).
The confinement order was a reviewable order because it was made in bad faith (the sixth question).
It will be seen that the first two questions go to the power to make an order like the confinement order. It will also be seen that the remaining four questions go to the making of the confinement order for the applicant. To deal with the six questions, and particularly the first two, I need to describe the power to make an order like the confinement order in more detail. Some of these matters are not in contest; some of them are in sharp contest.

Serious question to be tried: the confinement order and its application

A copy of the confinement order is attachment VA2 to the applicant's affidavit of 29 June 2013. This was the copy of the confinement order provided to the applicant.
I should note that the applicant in oral submissions put to me that there was a question that the confinement order was unlawful because it lacked the signatures of the prison officers whose names appeared there. However, it is not apparent to me there was not a copy of the confinement order that did contain such signatures or that the lack of signatures on the copy provided to the applicant affected the order's lawfulness.
Although there was a contest before me as to who made the confinement order and under what legislative provision, on the evidence before me, I consider it impossible to arrive at any other set of conclusions as to who made it, under what legislative provisions and the following.
The Giblett affidavit of 1 July 2013 states that the deponent 'decided to award the applicant seven days basic supervision commencing at 10 am, 27 June 2013' (par 13). It cannot be contested that this was a decision to make the confinement order.
The applicant put to me that it should be taken from the form of the confinement order that Mr Giblett was not the decision‑maker as his name was absent from the form. However, I do not consider that absence to be determinative. Further, there is support for the statement in the Giblett affidavit of 1 July 2013 from the materials I now reach.
The principally relevant provisions of the Prisons Act begin with s 36(3). That reads:
The superintendent of a prison may issue such orders to officers and to prisoners as are necessary for the good government, good order, and security of the prison of which he is superintendent.
The Giblett affidavit of 1 July 2013 par 4 states that the deponent has 'delegated authority' to issue orders on behalf of the superintendent under Prisons Act s 36. The source of that authority appears to lie in the exercise of the power in Prisons Act s 35(3) to make Policy Directive 3, 'Hierarchy of prisoner management regimes' (Policy Directive 3), specifically [8.1] there. There are also some other provisions that are relevant and other instruments to which I will come.
Prisons Act s 35(1) and (3) provide:
(1)The chief executive officer may, with the approval of the Minister, make rules for the management, control and security of prisons generally or a specified prison and for the management, control, and security of prisoners and the management of officers of the Department.
...
(3)Rules made under this section may confer a discretionary authority on any person or class of persons.
It is contended that Policy Directive 3 was made under Prisons Act s 35. That seems to me to be correct.
The applicant contended that because Policy Directive 3 provides for annual review of the policy, and the copy of Policy Directive 3 annexed as PMG1 to the Giblett affidavit of 1 July 2013 is dated 31 March 2009, I do not have sufficient evidence that there is a Policy Directive 3, or, if there is one, that I have the current version. I disagree.
I take the Giblett affidavit of 1 July 2013 and its reference to Policy Directive 3 as stating that the annexure referred to, PMG1, is the current version. It is at least as likely that there have been annual reviews since 31 July 2009 which have not resulted in any changes to PMG1.
The applicant also put to me that on the evidence before me Policy Directive 3 was inflexibly applied. Taking it as, at least in part, a statement of policy, my attention was not drawn to any particular evidence in that regard. Further, I am unable to discern from the Giblett affidavit of 1 July 2013 or the Giblett affidavit of 2 July 2013 that there was the inflexibility contended for. I therefore do not uphold that submission either.
Policy Directive 3 provides for a hierarchical management system of relative supervision levels. There are four such levels. They are, in descending order of level of supervision as appears from the document:
•Close supervision level;
•Basic supervision level;
•Standard supervision level;
•Earned supervision level.
See [1].
The hierarchical management system under Policy Directive 3 is one which rewards 'good behaviour by progression to or eligibility to progress to a higher level of privileges and lower level of supervision'; by 'contrast, poor behaviour shall result in regression to a lower level of privileges and a higher level of supervision'. See [3.1] and [3.2], the respective sources of the quotations. Newly received prisoners begin on the standard level of supervision, see Policy Directive 3 [9.1], [9.2].
It is not in contest that the applicant was subject to the standard level of supervision in a cell in Unit 13 in Casuarina Prison prior to the incidents in question. The applicant was subject to that level of supervision by reason of a stay of the previous confinement order made on or about 14 June 2013 to which I have referred. This was the stay ordered of Beech J to which I have also previously referred.
Close supervision level is described in Policy Directive 3 as having as its purpose, [7.4]:
[T]o temporarily remove those prisoners from the mainstream prison population because they pose a threat to other prisoners, staff or the good order and security of the prison, and require a greater degree of supervision and management than other prisoners require.
Policy Directive 3 also states, [7.6]:
Prisoners who come within this category [close supervision level] would jeopardise the security and good order of the prison if they continue association with the general prison population, but prisons are able to manage them with other prisoners who also require a greater degree of supervision than normal.
When a prisoner is placed on close supervision, [7.7]:
[T]he Designated Superintendent or their delegate shall inform the prisoner of the reason(s) for the placement and the behaviour the prisoner needs to achieve to return to the basic or standard supervision level.
Where a prisoner has been placed on close supervision the 'Designated Superintendent or their delegate' shall review the behaviour of the prisoner at least every seven days; and when doing so the 'designated Superintendent or their delegate' is to advise the prisoner 'of any behavioural issues that require addressing in order for the prisoner to progress out of the close supervision regime': [7.8].
Prisoners are to remain at the close supervision level 'only ... whilst they pose a threat to other prisoners, staff or the security of the prison'; and the 'Designated Superintendent' is to ensure that prisoners do not remain at this level 'longer than is necessary to achieve the purpose': [7.9].
Policy Directive 3 [7.1] provides for the placement of a prisoner at close supervision level, as well as the removal of the prisoner from that level, as follows:
The placement and removal of prisoners into or out of this supervisory level is subject to the approval of the Designated Superintendent or their delegate.
Basic supervision level is described in Policy Directive 3 [8.2] as follows:
Basic level supervision is a reduction in privileges and where possible the prisoner shall remain a resident in his or her own cell.
When a prisoner is placed on basic supervision 'the Unit Manager shall inform the prisoner of the reason(s) for the placement and the behaviour the prisoner needs to achieve to return to the standard level of supervision': [8.4].
Where a prisoner has been placed on basic supervision the 'Unit Manger' shall review the prisoner at least every seven days: [8.6]. When doing so, the 'Unit Manager' is to advise the prisoner 'of any behavioural issues that require addressing in order for the prisoner to progress out of the basic supervision regime': [8.7].
Prisoners are to remain at the basic supervision level 'only ... whilst they demonstrate inappropriate behaviour'; and the 'Designated Superintendent' is to ensure the prisoners do not remain at this level 'longer than is necessary to achieve the purpose': [8.8].
Policy Directive 3 [8.1] provides for placement of a prisoner at basic supervision level in material part as follows:
The Unit Manager may regress a prisoner to basic supervision level where that prisoner demonstrates poor or inappropriate standards of behaviour. This includes:
...
b)breach of cell standards (eg, poor hygiene, possession of items not lawfully issued)
c)continuous breaches of the required standard of behaviour.

It will be seen that basic supervision closely resembles close supervision in the respects described save that for basic supervision the Unit Manager performs most of the functions that are assigned for close supervision to the Designated Superintendent or their delegate.
I consider Policy Directive 3 [8.2] to be a conferral on the Unit Manager of discretionary authority on a class of persons within Prisons Act s 35(3).
I note also, however, the term Designated Superintendent is defined in Policy Directive 3 materially in terms of the definition of Prisons Act s 36(1). However, there is no definition of Unit Manager in Policy Directive 3, the Prisons Act, or the Prisons Regulations 1982 (WA).
At the same time, I consider that the Unit Manager in Policy Directive 3 may be taken to include certain persons referred to in Casuarina Prison Local Order 02, 'Hierarchical management and close supervision' (Local Order 02).
Local Order 02 is attachment PMGA to the Giblett affidavit of 2 July. It is issued by the named 'Superintendent' and appears to be under Prisons Act s 37(1). That provision empowers the superintendent of a prison, with the approval of the chief executive officer, to 'make and issue written standing orders with respect to the management and routine of that prison'. I have no reason to believe that Local Order 02 does not answer this description.
Local Order 02 describes the four levels of supervision used in Casuarina Prison in terms of the four levels of supervision from Prison Directive 3 above. Local Order 02 provides detail as to the accommodation for prisoners at and the privileges in respect of those levels at Casuarina Prison.
Local Order 02 provides that the Assistant Superintendent, Prisoner Management (ASPM) and Special Units (ASSU) can provide a period of up to 14 days of close supervision [3.2].
Local Order 02(4.1) provides as follows:
Prisoners subject to Basic Supervision will be housed in a general living unit and have a cell assigned to them at the discretion of the Unit Manager. Ongoing placement in Unit 1 will be at the discretion of ASPM or ASSU.
I note it was put to me by counsel for the respondents that Mr Giblett had the authority as ASSU to make the confinement order by virtue of Adult Custodial Rule 3, which was handed up at the hearing before me on 17 July 2013 as a business record.
In any event it seems to me, although the matter is not as clear as it might be, especially in view of the use of 'Unit Manager', 'ASPM' and 'ASSU' in Local Order 02 [4.1], that Unit Manager for the purposes of the power to order a prisoner be placed at basic supervision level includes the ASPM or ASSU.
Further, I consider that, on all of the evidence before me, I should take Mr Giblett as occupying the position of ASSU at Casuarina Prison. I note at the hearing before me there was no contest as to that last matter.
I turn now to the way Local Order 02 describes basic supervision at Casuarina Prison.
It will be seen that there is a sharp contest as to whether or not that level of supervision as the applicant experienced it is correctly described as basic supervision, and, in any event, it is, for him, a form of punishment which is cruel and inhumane. The contest centred on the evidence as to the quality of the applicant's cells while under the confinement order, as to the confinement of the applicant to that cell, as to the provision for the applicant's meals, as to the provision for the applicant's medical condition (including diagnosis and treatment), and as to the provision for the applicant's preparation for his present and prospective legal proceedings.
However, for present purposes my focus is upon the way in which basic supervision is described in Local Order 02, particularly by comparison of close supervision, on the one hand, and standard supervision, on the other.
I previously set out Local Order 02 [4.1] as to accommodation for prisoners subject to basic supervision.
It is not in contest that the applicant was, as a result of the confinement order, transferred from a cell in the part of Casuarina Prison known as the Multi‑Purpose Unit (MPU) to a cell in the part known as Unit 1, A wing, on 28 June 2013.
Local Order 02 [3.1] states that the areas 'designated in Casuarina Prison to house "Close Supervision" regimes are the [MPU] and Unit 1 - A and C Wings'.
It was not in contest that the cell in Unit 1 to which the applicant was transferred as a result of the confinement order was, as I have indicated, a cell in A wing. It was also not in contest that the applicant was transferred from there to a cell in Unit 1 C wing as a result of my stay.
The applicant pressed on me conditions for the applicant that on his evidence he experienced in the MPU. I note the description of the cell in the MPU that the applicant sets out in the applicant's affidavit of 29 June [34].
Although the matter is not all together clear, I accept that the applicant was initially transferred to the MPU as a result of the confinement order. However, in my view of the evidence before me that was a temporary transfer in response to the conditions in the applicant's cell in Unit 13, which were as reported to Mr Giblett, and which were one of the reasons for the confinement order: see Giblett affidavit of 1 July, [10], read with [13] and with attachment PMG3.
I do not consider that the conditions in the MPU experienced on that basis are ones which indicate that such detention there was not basic supervision. See on detentions in cases of an emergency kind Barreto [102].
The other relevance of the MPU for my purposes I now turn to.
The applicant also pressed on me that his accommodation in a cell in Unit 1 in A wing meant that he was in fact being held under close supervision. I took this to be a submission that as a result of Local Order 02 [3.1] and Appendix 1, I should take such accommodation as having that meaning.
Local Order 02 [4.4] indicates that the 'privileges' available during any period of basic supervision are those outlined in Appendix 1 of the policy.
Appendix 1 was the subject of some considerable attention of the hearing before me. In broad terms I consider that it indicates basic supervision across the range of matters that Appendix 1 describes to be more similar to standard supervision than basic supervision is to close supervision.
In particular, basic supervision and standard supervision are described in identical terms in respect of the items 'Cell', 'Medical', 'Library' and 'Meals', while there are differences in each of those for close supervision. I note that close supervision is described in Appendix 1, item Cell, as follows:
As designated by prison, Multi-Purpose or Unit 1.
Basic supervision and standard supervision are both described in Appendix 1, item Cell, as follows:
Normal.
The applicant indicated to me that I should take from this that the Multi‑Purpose Unit and Unit 1 were both only for close supervision prisoners.
However, it does not seem to me that that is a necessary or, indeed, a preferable construction of the terms in Appendix 1. The very title, Multi‑Purpose Unit (MPU) is suggestive of a range of purposes, at least for the MPU. The provision for allocation to Unit 1 in respect of basic supervision, and the 'where possible' qualifier in respect of accommodation in a prisoner's cell, described in respect of basic supervision, lead me strongly to that conclusion.
Further, I note that the Giblett affidavit of 2 July indicates that Unit 1, A wing, houses prisoners subject to a variety of management regimes including close supervision and basic supervision, while Unit 1, C wing, houses prisoners also subject to a variety of management regimes where, at the time of the affidavit, there were six other prisoners, five of whom were subject to standard supervision and one of whom was subject to earned supervision: see [7] ‑ [8].
I would indicate I do not consider there to be a serious question to be tried in respect of the applicant's contention as to how basic supervision should be understood under Local Order 02.
I note that there are the following material respects in which, under Local Order 02, basic supervision and close supervision differ from standard supervision. They are the extent of the confinement of the prisoner to their cell and their access to personal property in storage.
Appendix 1 for the item 'Exercise and out of cell hours' sets out the following for close supervision, basic supervision and standard supervision.
For close supervision:
Time out of cell is to be a minimum of 1 hour.
Unit senior officer may increase this period based on behaviour.
If a 1 hour period cannot be achieved, the reason should be recorded in the unit occurrence book and cell door running sheet.
The 1 hour period is not to include an ablution period.
May exercise with other prisoners under Close Supervision at the discretion of the Senior Officer.
For basic supervision:
As determined by prison routine or at the discretion of the Unit Manager to suit the routine and circumstances of the unit.
Time out of cell is to be maximised so far as practicable but should not be less than 1 hour a day. If the time out of cell is less than 1 hour, the reason should be recorded in the unit occurrence book.
For standard supervision:
As determined by prison routine.
It may be noted that the provision for close supervision is very similar to that for basic supervision, save in respect of the maximisation of time out of cell, which is restricted to basic supervision.
Appendix 1 for the item 'Access to personal property in storage' sets out the following for close supervision, basic supervision and standard supervision.
For close supervision and basic supervision:
Only legal matters connected with any current matters before courts.
For standard supervision:
Normal.
The applicant, as I understood his submissions, put to me that I should take basic supervision under Local Order 02, or at least as experienced under the confinement order, to be a form of solitary confinement, or at least separate confinement within the meaning of Prisons Act s 43. I return below to his experience under the confinement order. For the present my focus is upon basic supervision under Local Order 02.
Prisons Act s 43 provides as follows:
43.Separate confinement
(1)For the purpose of maintaining good government, good order or security in a prison, the chief executive officer may order, in writing, the separate confinement in prison of a prisoner for such period not exceeding 30 days as is specified in the order.
(2)The chief executive officer shall inform the Minister forthwith of every order made by him under subsection (1).
(3)Every cell used for the separate confinement of a prisoner under this section shall be of such a size and so ventilated and lighted that a prisoner may be confined in that cell without injury to health and every prisoner in separate confinement shall have the means of taking air and exercise for not less than one hour each day at such times and for such other periods as the chief executive officer may direct.
I accept that if basic supervision under Local Order 02 is, in fact, under that order a form of separate confinement, then the confinement order was not made in accordance with the requirements of Prisons Act s 43.
Indeed, I further take from Barreto [97] ‑ [99] that separate confinement has aspects of a penal nature which naturally may attract judicial review.
However, I am unable to see how the entries in Local Order 02, Appendix 1 for exercise and out of cell hours that I quoted establish that basic supervision is a form of separate confinement within Prisons Act s 43. That is because the entries for both basic supervision and close supervision indicate that a prisoner subject to either is not separately confined from the rest of the prison population.
In my view, the entries in Appendix 1 for access to personal property in storage do not affect this conclusion. However, below I will consider its possible relevance in respect of any particular need of the applicant to prepare for legal proceedings.
That is, I do not see a serious question to be tried in the present respect.
However, I should indicate that decisions taken under either close supervision or basic supervision might, as where they were made to deny a prisoner the one hour per day referred to for each, constitute reviewable separate confinement: see Barreto [102]. However, there is no evidence of such a decision here. Indeed, the evidence, as I will indicate, is to the contrary.
I turn now to the six questions for the applicant that I have identified. It will become apparent that my description of the power to make an order like the confinement order has provided the answer, as I have indicated, to a part or a large part of what I would say as to those questions, or at least some of them.

Serious question to be tried: the first question

This question is whether the confinement order was an unlawful order because it provided for treatment inconsistent with the arrangements or instruments that I have referred to.
I consider that a short statement, sufficient for my purposes, of the possibly relevant effects of the international legislation listed or described is the following.
Where a statute or subordinate legislation is ambiguous, it should be construed in accordance with Australia's international obligations under international treaties to which Australia is a party: see Kidd [22]. I assume, for the purposes of considering the present question, that the international agreements or instruments listed in the originating motion are all ones to which Australia is a party.
I further note, by reference to matters other than the international instruments or arrangements, that, by virtue of Australian Constitution, s 109, where a state law is inconsistent with a law of the Commonwealth, the law of the Commonwealth prevails and the law of the state, to the extent of the inconsistency, is not valid.
Finally, in respect of instruments at the state level, I note that a statute of this state, enacted after the Prisons Act provisions in this case were enacted, might work a repeal, expressly or by implication, of the Prisons Act provisions, in whole or in part.
For the purposes of the present question, I understood the applicant to lay considerable emphasis upon his description of the effect of the confinement order on him in three respects, individually or in combination. One respect was what he described as his confinement to his cell in Unit 1 and the MPU. Another respect was the limitation on his capacity to prepare for present and prospective legal proceedings to which he was or would be a party. The third respect was provision for his medical conditions. I will return to those three respects below where I will indicate that my assessment of the evidence, which I will need to provide in some detail as to those effects, is that there is no probability that, if the evidence remains as it is, on a final hearing the applicant will be held entitled to relief in respect of them.
In any event, I note that the applicant did not make clear to me which provisions in the international agreements or instruments, in the Commonwealth legislation, and state or municipal legislation represented those which the confinement order as made, or in terms of its effect upon the applicant as I have indicated, engaged so as to produce the effects described of the listed legislation in this case. This is with the exception of the reference in the originating motion to Criminal Code (WA), s 135 and s 143. Those two provisions concern conspiring or attempting to pervert the course of justice, or similar. However, in respect of those provisions, it is not clear to me how they were contravened.
In the absence of the clarity that I have indicated, by reference to particular provisions of the relevant arrangements or instruments, the present question cannot be considered to be a serious question: see Kidd [22].
Thus, I consider there is no serious question in relation to the first question.
I turn now to the second question.

Serious question to be tried: the second question

This is the question whether the confinement order was an unlawful order because it was not made in accordance with the applicable provisions of the Prisons Act. This question I understood to relate to the applicant's submission that it was Prisons Act s 43, not s 36, which was that under which the confinement order was made. I have already dealt with this, concluding that no serious question is raised in this respect.
I turn now to the third question.

Serious question to be tried: the third question

This is the question whether the confinement order was made contrary to the rights and legitimate expectations of the applicant that he would not be held in separate confinement, or in confinement inappropriate to him because of his physical condition, or his need to prepare for present and prospective legal proceedings to which he is or would be a party, or any combination of these.
I have already dealt with the applicant's contention as to basic supervision as a form of separate confinement. In my view, as I have indicated, there is no serious question in that respect.
However, it is appropriate at this point that I deal with the applicant's contention, strongly pressed upon me, that he experienced the implementation of the confinement order as solitary or separate confinement which was of particular concern to him, given his physical condition.
This contention was first strongly urged upon me at the hearings on 29 and 30 June 2013, at the conclusion of which I made my stay order. My stay order was based on the evidence put before me by the applicant at those hearings, including orally, that he had been placed, on 27 or 28 June 2013, in a form of solitary confinement in which there was a serious risk of long term or permanent injury to health, or worse to a person with his physical condition. I note, in particular, my finding on 30 June 2013, ts 67, that his physical condition for this purpose included account being taken of his age, 68.
However, I did not have the benefit of the evidence as to the nature of basic supervision to which I previously referred, as well as the additional evidence from Mr Giblett that I will reach.
I consider it is appropriate to deal with the contention of the applicant for at least two reasons.
First, the matter goes to whether or not I should consider my stay order was procured on the basis of a breach by the applicant of his duty of disclosure.
Second, the matter goes to whether or not the applicant has raised a serious question that the confinement order was inappropriate to him because of his physical condition. In the present context, this raises the question whether or not the applicant has raised a serious question of the material effect on any rights and legitimate expectations the applicant had, notwithstanding the nature of basic supervision as I have described it.
In respect of how the applicant experienced his confinement under the confinement order, the applicant at the hearings before me on 15 to 17 July 2013 referred me, in particular, to two matters of evidence. One form of evidence was the applicant's comparison of his cell in Unit 1 with the cell in Unit 13 where he had been before being taken to the MPU on 27 June 2013. This comparison appears in annexure VAFA‑X to the applicant's affidavit of 11 July 2013: see [50]. This evidence, taken at face value, would appear to indicate significantly inferior conditions in the former cell compared to the latter. I should note that this evidence appears to be in contest. See the Giblett affidavit of 2 July at [9].
However, it is not apparent to me that the difference claimed by the applicant indicated confinement in the former cell was solitary or separate confinement.
I would make the same observation for the same reasons in respect of the applicant's evidence as to his cell in the MPU in which he was initially held.

I have also noted the applicant's evidence in the applicant's affidavit of 15 July 2013, [15], as to the characteristics of what he refers to as the 'isolation cell'. This appears to be the cell in the MPU from which he was transferred to the cell in Unit 1 pursuant to the confinement order. However, in view of that transfer, and the evidence I read shortly of the applicant being able to leave that cell in Unit 1, I do not consider that evidence sufficient to establish the applicant was kept in separate confinement in the cell in the MPU.
I return to the comparison of the cell in Unit 13 and the cell in Unit 1, as well as the nature of his confinement in the cell in the MPU, for the purposes of considering the applicant's physical condition below.
The other form of evidence to which I was referred in particular was the applicant's evidence in the applicant's affidavit of 29 June 2013, [28] ‑ [34], that he had been 'handcuffed' and 'locked up' in the cell referred to there, which appears to be the cell in the MPU.
However, it is not apparent to me from that material for how long he had been so treated; and I have already indicated he was transferred to the cell in Unit 1. That transfer apparently occurred within 24 hours of being placed in the cell in the MPU.
Further, the applicant accepted at the hearings before me of 15 to 17 July 2013 that, notwithstanding his evidence he had been locked up in the cell in Unit 1 (the applicant's affidavit of 15 July, dated 9 July, [64]), he had been able on at least one occasion while in residence in the cell in Unit 1 to go outside his cell where he had met with a prison officer. See the applicant's affidavit of 11 July, [36], which it was accepted for the applicant related to his confinement in Unit 1.
The evidence just referred to is consistent with the nature of basic supervision as I have previously described it.
In respect of the applicant's physical condition, the applicant referred me to his evidence, in particular, in the applicant's affidavit of 11 July, [27], as to a range of physical conditions from which he suffers. The applicant also referred me to his evidence at the hearing before me on 30 June 2013 as to his collapse which it appears was while he was in the MPU cell referred to.
The applicant also referred me to a number of reports or similar documents from a number of medical practitioners. Those reports or similar documents, it was put to me, went to show a number of physical conditions from which the applicant was suffering at the relevant time, and for which he required treatment at the times of those documents. See the applicant's 15 July affidavit, dated 9 July, annexure VA2, and the applicant's 15 July affidavit, annexure VDA3B. Those conditions, I accept, include a diabetes and a heart condition.
However, there was no report from a medical practitioner dated after April 2011. Further, none of those reports appear to have commented on particular risks to the applicant, including in respect of the physical conditions to which the applicant refers in the applicant's affidavit of 11 July, [27], from being held in any particular form of custody.
In that context, it is significantly more difficult, even with the evidence of the applicant comparing conditions in his previous cell in Unit 13 with his cell in Unit 1 or the evidence of the applicant as to the conditions in the cell in the MPU, to assess the risks referred to.
The absence of any such comment is of greater significance, given what appears in the Giblett affidavit of 2 July, that medical care available to prisoners is 'consistent across against every supervision regime in the prison': [25]; medical staff visit each unit in the morning and in the afternoon to issue medication: [26]; and under a basic supervision regime 'prison officers are required to more closely monitor the prisoner than if the prisoner was subject to a standard supervision regime' and, in particular, if the applicant 'had a medical incident, then he would be more likely to be observed and assisted under a basic supervision regime than under a standard supervision regime: [29].
I have noted the evidence of applicant that when he pressed an alarm, apparently one in the cell in the MPU, quoting from the applicant's affidavit of 15 July [15.3] 'my punishment order has been extended'. It appears to have been put to me that this was an indication that the applicant had pressed the bell, which was referred to in the Giblett affidavit of 2 July [28], without receiving a response. However, I am simply unable to read the evidence in that way.
I note the evidence at the hearing of 30 June 2013 that the applicant collapsed, apparently again in the cell in the MPU. However, the evidence also is that he was found. It is not evident from that matter that a material risk resulted from confinement in the cell in the MPU when the evidence he was found is considered with the nature of basic supervision.
Counsel for the respondents referred me in connection with the applicant's evidence of his collapse while in the MPU to his collapse in quite different contexts referred to in Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198 [27], [37], [40], [42], [49] (Steytler P, Pullin JA & Murray J).
However, I do not consider, in view of the age of that decision, 2006, that there is anything I can derive from those collapses.
I have also noted in the present context the references in the submissions for the applicant to evidence as to the lack of adequate provision for meals and other sustenance for the applicant while he was in custody under the confinement order. This evidence was of his not receiving a meal for 23 hours on 27 June 2013.
However, on the evidence of the applicant at the hearing before me on 30 June 2013, he received meals and other sustenance, although in his cell, and not all the sustenance he would have wished to bring there from the canteen, over the period since then up to about the time at which I made my stay order. As I indicated at the hearing on 30 June 2013, I was not able to conclude from that evidence that the applicant had been denied sustenance as a result of his confinement under the confinement order.
I was not directed to evidence that would cause me to come to any different finding.
It was put to me for the applicant that his medical condition was such that he had particular sustenance needs which this evidence indicated had not been, and might not be, met in that custody. However, on the medical evidence I have referred to, I am not in a position to arrive at any such conclusion
The applicant also contended that the confinement order operated so as to materially impede his preparation for present and prospective legal proceedings to which he is or would be a party. A form of this contention was put to me at the hearings of 29 and 30 June 2013, at the conclusion of which I made my stay order.
However, in my reasons for making my stay order, I indicated I was unable to find sufficient evidence of such an effect.
The applicant at the hearings of 15 to 17 July 2013 provided evidence of further proceedings to which he was or would be a party. He appeared to contend that the nature of those proceedings was such that his confinement under the confinement order would materially impede his preparation for them.
The applicant referred me in particular to his appeals against conviction and sentence for the offence for which he is presently a sentenced prisoner: see the appeals in CACR 274 and 275 of 2012. Those appeals were dismissed on or about 21 May 2013, after the papers called for by a springing order were not provided by the due date.
The McKenzie friend's affidavit of 14 July, it was put to me, indicates that the applicant's ability to prepare documents to have the dismissal of those appeals set aside has been impeded by the conditions in the cell in Unit 1 in which he has been held under the confinement order.
However, in view of the nature of basic supervision to which I have referred, and the evidence just referred to, it is not apparent to me that there is a probability that the applicant will show at any final hearing that the applicant has been prevented in any material way from attending to matters of that kind by being placed in that cell.
In that regard, I have taken account of the entry for basic supervision in Appendix 1 to Local Order 02, 'Access to personal property and storage', above. In particular, I note the term 'current matter' in reference to access to relevant matters. It was not made apparent to me in light of that provision that the applicant has been prevented from having access to papers for any application to have the dismissal of the appeals in CACR 274 and 275 of 2012 set aside by reason of his confinement under the confinement order. The evidence in the McKenzie friend's affidavit of 14 July 2013, [31] ‑ [33], appears to me rather to relate to the effects of confinement and custody generally rather than confinement under the confinement order.
I should add that I put to one side the matter of access to the library at Casuarina Prison. There was no evidence to which my attention was called that confinement under the confinement order has affected that. I have previously referred to a denial of library privileges which has ceased.
I have noted the evidence of the applicant in the applicant's affidavit, 15 July 2013, [17.4], as to his inability to prepare documents both for the purposes of the programming orders of Beech J in CIV 1960 of 2013 for a hearing in relation to his stay order, and the criminal appeals referred to.
However, that evidence on its face appears to relate to the effect upon him of confinement in the cell in the MPU, which I have indicated was temporary confinement. It is not apparent to me that such a limited inability represents a material effect.
I further noted what the applicant put to me concerning the lawfulness of his imprisonment under a warrant of commitment which, on his submission, was void, because it referred to an offence of which he had been acquitted. It appears, however, that he had been convicted of an alternative offence, with the term of imprisonment referred to in the warrant.
In any event, it was not clear to me that the present proceedings had raised an issue of the lawfulness of the warrant of commitment otherwise than as a proceeding which he might in the future commence, and with his preparations for which the confinement under the confinement order would interfere. So considered, I would deal with the matter of the warrant of commitment as I did with the proceedings in CACR 274 and 275 of 2012.
I accept for the purposes of the present question, however, that the applicant experienced his confinement under the confinement order as at least, in part, separate confinement. That is to say, that is the way he viewed the matter. However, it is not apparent to me that on the evidence I have, that there is a probability the applicant will show at any final hearing that he experienced a material effect on any right and legitimate expectation he had that he would not be kept in separate confinement. In particular, the evidence does not make a case that he in fact experienced confinement other than that entailed by the nature of basic supervision as I have described it.
At the same time, the nature of this conclusion is such that I do not consider the applicant failed in his duty of disclosure, given that there is no suggestion he had access to Policy Directive 3 or Local Order 02 at any relevant time for that purpose.
I further accept for the purposes of the present question that the applicant's physical condition is one of some frailty, calling for special medical attention and diagnosis. However, it is not apparent to me that, on the evidence before me, there is a probability the applicant will show at any final hearing that by virtue of his confinement under the confinement order, he experienced or is likely to experience a material increase in the risk he will not receive the special medical treatment and diagnosis he may need.
At the same time, the nature of this conclusion is such I do not consider the applicant failed in his duty of disclosure. This is given that the conclusion is in large part the result of my assessment of the weight of the principally relevant evidence, being the medical reports or similar documents, assessed against the background of the nature of basic supervision, evidence as to which I do not consider the applicant had access to at any relevant time.
I further accept for the purposes of the present question that the applicant has particular needs in respect of his preparation for present and prospective legal proceedings to which he is or would be a party. However, it is not apparent to me that, on the evidence before me, that there is a probability the applicant will show at any final hearing that by virtue of his confinement under the confinement order he experienced or is likely to experience a material effect on any such right or legitimate expectation.
In particular, the evidence does not make a case that confinement under the confinement order has adversely affected or will adversely affect his physical condition or his preparation for present or prospective legal proceedings to which he is or would be a party in view of the nature of basic supervision as I have described it: see Barreto [37], [73]; and Kidd [26].
I should not leave matters I have dealt with under the third question without referring to the submissions for the respondents that the disclosure provided to me at the hearings on 29 and 30 June 2013 went, adversely, to the credibility of the applicant's evidence or its weight in any relevant respect. It will be apparent, I do not conclude that the disclosure at those hearings should be so seen.
I turn now to the fourth question.

Serious question to be tried: the fourth question

This is the question whether or not the confinement order was reviewable because it was made without at the relevant time adequate disclosure to the applicant of the bases on which the confinement order was made.
Policy Directive 3 [8.4] provides as follows, under the heading 'Notification of Placement':
When placed on basic supervision, the Unit Manager shall inform the prisoner of the reason(s) for the placement, and the behaviour the prisoner needs to achieve to return to the standard level of supervision.
Policy Directive 3 [11] under the heading 'Regression' provides some further detail as to the information to be supplied, in [11.1], [11.3] and [11.4]. However, for my purposes, those provisions do not materially add to [8.4], save for the indication in [11.1] that the officer authorising the action is to inform the prisoner, among other things, of the procedures for progression back to the previous supervision level.
It is not in contest that the applicant received a copy of the confinement order on 28 June 2013, subject to the point from the applicant with which I previously dealt.
The applicant put to me that such receipt indicated an element of secrecy with respect to the confinement order. However, I am unable to draw any such inference from such a delay.
The confinement order has a section '3. Reason for Confinement: (state briefly why the offender is to be confined)', which reads as follows:
On Thursday that (date) 27/06/2013 at approximately (time) 10:00 hrs the above offender: was awarded 7 days Bassic [sic] supervision due to his continual disruptive behaviour within his living unit and the Prison Library. This placement will focus on closer observation of Prisoner DE ALWIS activities and behaviour.
The said offender is therefore to be confined to a appropriate cell per Rule:
AC 3.
'AC 3' I take to be a reference to Adult Custodial Rule 3.
The confinement order also has a section, '5. Termination of Confinement: (Confinement to be terminated subject to the following conditions)', which reads '03/07/2013 dependant on his behaviour'.
The Giblett affidavit of 1 July 2013 provides the following as to the reasons the deponent decided to award the applicant seven days basic supervision commencing 10.00 am 27 June 2013 [9] ‑ [10] and [13] ‑ [14]:
On 26 June 2013, at approximately 3:15PM, the Applicant was instructed to pack up and leave the library, but he continued to work despite repeated requests to finish up. Consequently, the Applicant was escorted from the library. The incident reports relating to this incident are attached and marked 'PMG2'.
On 27 June 2013, at approximately 8 AM, Officer Morphea and Officer Stokes attended the Applicant's cell to investigate whether he had complied with my direction to put it in order, and to take photographs of the cell. While the photographs were being taken, the Applicant complained loudly to the officers and refused to calm down such that he disturbed other prisoners. Eventually the Applicant was forcibly removed from the unit. The incident reports relating to this incident are attached and marked 'PMG3'.
...
In relation to the incident on 27 June 2013, I decided to award the Applicant 7 days basic supervision, commencing at 10.00 a.m. 27 June 2013.
In making this decision I had regard to:
(a)the incident reports (PMG 2; PMG 3);
(b)photographs taken by the officers;
(c)offender notes relating to the Applicant recorded on the TOMS, (PMG 4); and
(d)my own notes I had made in relation to recent incidents involving the Applicant.
It is not in contest that TOMS referred to the computerised Total Offender Management System on which, amongst other things, basic information as to incident reports involving a prisoner is recorded. The attachment, PMG4, refers to incidents both at Hakea Prison and Casuarina Prison without providing any detail as to their nature. The applicant put to me that there was no evidence he had been provided with any of the documents referred to in (a) to (d) above; I agree. However, I also note that there is no provision in Policy Directive 3 or Local Order 02 for the provision of any such documents to a prisoner regressed to basic supervision.
The applicant sought to have me take account of a further affidavit of his sworn 15 July 2013 in which he said he confirmed that he had not been provided with any such documents. I ruled on 15 July 2013, and confirmed on 17 July 2013 by further ruling on his application to have me reconsider the first ruling, that I would not take account of that further affidavit. However, I am in a position to take account of any evidence to a corresponding effect in those affidavits, the contents of which I would take account.
For the applicant my attention was directed to the applicant's affidavit of 15 July 2013, [11.7], which, although not altogether clearly, appears to indicate that the applicant did not receive at any material time information regarding the incidents in PMG4.
I accept as arguable that Policy Directive 3 [8.4] read, if necessary, with [11.1], [11.3] and [11.4] would support a submission that the applicant had a right to be, or a legitimate expectation that he would be, provided with information to the extent described in those sections.
I have also noted that a comparison of the matters listed in the Giblett affidavit of 1 July 2013, [14] above, with those appearing in the confinement order at section 3 above, might found a case that such information was not provided to the extent of a statement like that in [14] of the affidavit of 1 July 2013. I return to this matter below.
However, it was not made apparent to me that the confinement order is further reviewable in the present respect by reference to the requirement for documentation of the kind for which the applicant contends. This is unless at least the confinement order is to be seen as separate confinement, or as punishment: see Barreto [102]; and McEvoy (241).
I previously indicated why I do not consider there is a serious question that the confinement order is an order for separate confinement.

Further, in view of my analysis of the nature of basic supervision above I do not consider it has been shown to me that basic supervision is properly to be characterised as punishment. I do not see in the confinement order's statement of the reasons for the order and the circumstances under which it may be terminated, or in the Giblett affidavit of 1 July 2013 I have quoted, any reason to consider that the confinement order here was in fact a punishment order.
However, for the applicant there was strong reliance on the evidence of a sign at the entrance to the MPU, or that part in which the applicant was initially placed in a cell, 'Discipline' (see the applicant's affidavit 29 June [34]). It was put to me this was a clear indication the MPU, or at least the cell in question, was a punishment unit or cell.
In my view the sign is not an indication that the applicant was being punished under the confinement order (see the definition of 'discipline' in Macquarie Dictionary as 'training to act in accordance with rules'). See also, and importantly, Barreto [38].
Further, I note the evidence previously referred to that the applicant was transferred from the cell in the MPU to the cell in Unit 1, A wing under the confinement order. I have noted the references in the applicant's evidence to characterisation of the cell in Unit 1, A wing to which he was transferred under the confinement order, and also it would appear, although not clearly, in respect of the cell in the MPU from which he was transferred, as punishment cells, in the descriptions given by other prisoners.
However, I give that evidence no weight. I do so because the evidence is clearly of a hearsay character, perhaps even of a double or treble hearsay character, and not specific as to the relevant prisoner's experience, if any, of confinement in the cell in question.
I should note that the applicant and the applicant's affidavit of 15 July 2013 refers to his not having received information as to what he needed to do in order to return to standard supervision as required by Policy Directive 3 [8.7] and [8.8]. I accept that such information is required to be provided by the Unit Manager under Policy Directive 3 [8.7].
However, [8.7] applies 'when reviewing a prisoner's placement at basic supervision', which is a review that is to occur at least every seven days [8.6]. It is not apparent to me that the time for such review, after taking account of my stay order, has yet arrived.
At the same time, as I have reflected on this matter I have concluded that it might be taken to focus attention on legitimate expectations the applicant had arising out of the disclosure called for by Policy Directive 3 not only in that respect but also in respect of the reasons for the making of the confinement order to the extent of a reference to previous incidents and to notes of incidents in the Giblett affidavit of 1 July, [14(c)] and [(d)]. I have so concluded allowing for the submissions the applicant put to me concerning the incidents in PMG4.
On that allowance one such expectation might have been, if the confinement order was based in part on considerations arising from the incidents concerning the applicant listed in the TOMS material in annexure PMG4 to the Giblett affidavit of 1 July 2013, and out of Mr Giblett's own notes of certain incidents as referred to in [14] also of that affidavit, that there would have been disclosure of that fact.
On a comparison of the evidence in the Giblett affidavit of 1 July 2013, [14] with the confinement order at section 3 there is in my view a probability that, if the evidence remains as it is, at a final hearing the applicant will be held entitled to relief on the basis he did not receive that disclosure.
However, that comparison does not in my view strongly make that case. The Giblett affidavit of 1 July 2013 [14] might, in my view, be readily read to indicate that the matters referred to are ones of evidence rather than statements of reasons.
I turn now to the fifth question.

Serious question to be tried: the fifth question

This is the question whether or not the confinement order was made on the basis of unjustified decisions or reports concerning the applicant.
The applicant in the applicant's affidavit of 15 July 2013 [9] ‑ [12] states in brief why reports in the attachments PMG2 to PMG4 to the Giblett affidavit of 1 July 2013 were unjustified. In the applicant's other affidavits there appears to be further detail to the same effect.
However, the fact that the confinement order may have been made on the basis of incomplete information, or erroneous information, does not of itself make the confinement order reviewable: see Barreto [38].
Further, there is no evidence to which the applicant refers me that the matters having to do with lack of justification were known to Mr Giblett when he made the confinement order. Had such matters been known to him there might have been scope to argue that he had, in making the confinement order, acted in bad faith. Whether or not such an argument would have raised a serious question to be tried, and whether or not the applicant would have had a strong case, would have depended on the nature of the matter in question.
On the matter before me, being the evidence before me, I do not consider there is a serious question in the present respect.
I should not leave the present matter without referring to a number of allegations in the applicant's 15 July affidavit, dated 9 July, to which counsel for the respondents drew my attention, allegations which went to conduct of a significant number of prison officers over a period of time preceding the applicant's confinement under the confinement order (see [40], [46], [57] ‑ [58], [71] ‑ [72] and [80] in particular). In my view a significant proportion of the allegations in those paragraphs are argumentative and scandalous in character. Further, their relevance to the matters before me is simply not evident.
Nor are those the only allegations to which my attention was drawn by counsel for the respondents for which at least in part similar observations would be merited (see the applicant's affidavit of 15 July, [20] ‑ [24]).
Counsel for the respondents also drew my attention to the decision I have previously referred to, Legal Practitioners Complaints Committee v De Alwis [111]. I took this reference to indicate matter against a backdrop of which I should view the allegations in the previous paragraph of my reasons.
However, I should indicate that in view of the age of that decision and the difference in the context I do not consider there is any significant assistance I can derive from it for my purposes.
At the same time, I should indicate that as to the allegations I have characterised in the way I have done I would not give them any significant weight.
I turn then to the sixth question.

Serious question to be tried: the sixth question

This is the question whether or not the confinement order was made in bad faith.
The applicant acknowledged at the hearings of 15 to 17 July 2013 that there was no direct evidence of bad faith of Mr Giblett. However, the applicant appeared to put to me that bad faith should be inferred from the matters going to show that the confinement order was made on the basis of unjustified decisions or reports concerning the applicant.
I have already indicated in my discussion of the fifth question as to those matters that I do not consider there is a serious question, and that that conclusion in my view means that such an inference is not reasonably to be drawn on the evidence before me.
In the McKenzie friend's affidavit of 14 July 2013 I have noted allegations of instances of interception of papers the applicant was preparing in relation to proceedings involving allegations made against certain prison officers. All of these instances preceded the confinement of the applicant under the confinement order.
It is not evident to me from those allegations that they have any significant bearing on the question whether or not Mr Giblett should be seen in making the confinement order to have acted in bad faith. None of the interception was ascribed to Mr Giblett, directly or indirectly.
I have also noted the reference in the submissions of the applicant to a significant number of complaints concerning prison officers that the applicant has made to the authorities in the prison system.
However, I am not satisfied I should infer from this that Mr Giblett, who does not appear to have been the subject of any of those complaints, should be seen to have made the confinement order in bad faith or that there was a reasonable apprehension of bias in respect of him.
The applicant did not appear to put to me any other matters going to show bad faith by Mr Giblett.
I therefore do not consider on the evidence before me that there is a serious question in the present respect.

Serious question to be tried: overall

I summarise then on serious question overall as follows.
On the evidence before me, and I stress on the evidence before me, I consider there is a serious question, but not one of any great strength, in respect only of the fourth question.
I turn now to the matter of whether damages would be an adequate remedy. I believe this question can be answered simply.

Damages as an adequate remedy

I accept that if the stay order is not extended or a new order granted, and it is determined that the applicant ought not to have been confined under the confinement order as made, then in view of the way I characterised the applicant's application earlier, damages would not be an adequate remedy.
However, this matter is not determinative of in favour of relief. Rather, if damages were an adequate remedy, then the stay order would likely not be extended, or a new one not granted. On the other hand, if there is a serious question or questions, and damages are not an adequate remedy, as here, then the court must still consider the balance of convenience. See Owen J; 254, Civil Procedure in Western Australia [52.1.6].
Indeed, it may be that this matter 'is simply one of the factors to be considered within the balance of convenience rather than as a separate and distinct consideration' Civil Procedure in Western Australia [52.1.4], referring to National Australia Bank Ltd v Joyce [2012] WASC 224 [40] (Edelman J).
I turn now to the matter of the balance of convenience.

Balance of convenience

Balance of convenience is described in Civil Procedure Western Australia [52.1.6], as follows:
The factor commonly referred to as 'the balance of convenience' is probably better described as 'the balance of the risk of doing an injustice': Cayne v Global Natural Resources Plc [1984] 1 All ER 225 at 237; Independent Corporate Services Ltd v Stevens [2002] WASC 280; BC200207097 AT [90].
The balancing of risk referred to is further described in Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 (Beech J), a judgment frequently referred to in this context as follows [11]:
The grant of an injunction involves balancing the injustice which might be suffered by the defendant if the injunction is granted and the plaintiff later fails at trial, against the injustice which might be suffered by the plaintiff if the injunction is not granted and the plaintiff later succeeds at trial: Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670; Madaffari v Labenai Nominees Pty Ltd [2002] WASC 67 [14].
In this case, the injustice that might be suffered by the respondents if the stay is extended or a new stay granted, and the applicant fails at the final hearing, is that the risks the confinement order was intended to address would be materially increased in the meantime. Those risks in general terms are to the 'good government, good order, and security of the prison', referred to in Barreto [39].
In considering whether there are such risks in this case, I consider I should take account of the evidence as to them in the Giblett affidavit of 1 July 2013, [10] quoted above.
In this case also, I consider that the injustice that might be suffered by the applicant if the stay is dissolved and a new one not granted, and the applicant succeeds at the final hearing, is that he would suffer discomfort from confinement and basic supervision which he would not have suffered from standard supervision during the time confinement, the result of the confinement order, is on foot.
For that purpose, I have taken account of the possibility that his confinement in that form will extend beyond the seven days provided for in the confinement order. I consider that the terms of the confinement order, when understood with Policy Directive 3, include that it may continue beyond those seven days, dependent on the outcome of the review the confinement order refers to. That is to say, and contrary to a submission put to me by counsel for the respondents, the confinement order is extendable.
It is important I note that that discomfort is that which the applicant has in his evidence before me indicated he felt in the cell in Unit 1, A wing, but without regard to the matters of risks to his physical condition and to his preparation for legal matters to which he is or would be a party that he also submitted resulted from that confinement. I have previously indicated why, on the evidence as I have it, I do not consider that the applicant has raised a serious case in those latter respects.
In my view, there is no marked balance of convenience favouring the applicant, and in particular, no balance of convenience sufficient to offset the relative weakness of the applicant's case, which I have found in relation to the fourth question.

Conclusion and call for orders

I have concluded, then, that, on the evidence as I have it, the applicant has raised one serious question.
However, I consider that there is no marked balance of convenience favouring the applicant to offset the relative weakness of the applicant's case in respect of that question.
Having regard to those conclusions, in the exercise of my discretion, I have reached the determination that my stay order should not be permitted to continue, and no new stay order should be granted.
However, I would make the following additional remarks.
I should note the strong submissions made for the applicant by the McKenzie friend of the serious concerns she entertains for the applicant's welfare were he to remain in confinement under the confinement order, and, indeed, were he to remain in confinement, as a resident of any cell in Casuarina Prison, or at least any cell there other than the one in Unit 13 that he had previously occupied.
As the length of these reasons may have indicated, following, as they did, hearings over more than three days, I have been concerned to take proper account of those submissions, being that account which in my view is required by the applicable principles, and allowing, by reference to the length of the hearing time provided in this matter, for the difficulties the applicant has indicated he had putting forward his case, and which his McKenzie friend indicated included her own difficulties.
I must now call for the appropriate orders to be made on my determination.
I should add that in my preliminary view it would be appropriate to make further orders of a programming kind towards a final hearing on the applicant's application, at least in respect of the confinement order. I would, at first blush, take that hearing to be one for an order or orders absolute, in view of the nature of the determination I have made.
It is important for that purpose that my determination is only with respect to the confinement order, and only on the evidence as it is at present in relation to the interlocutory matter of my stay order.
I have also noted the considerable overlap between the legal issues the applicant seeks to raise in the present proceedings, as against some, but not all, of the same parties in the proceedings in CIV 1960 of 2013. In that regard, I have noted as well the applicant's application for consolidation of the present proceedings with those proceedings. As I previously indicated, I adjourned that application sine die.
I consider it would now be appropriate for that application for consolidation to be considered at a hearing for which, as necessary, programming orders would be made. Such an application would clearly, it seems to me, fall to be dealt with before the application or before any hearing for an order absolute.
There are two further matters I should mention. The first has to do with costs.
As a preliminary matter, it seems to me that the costs of the hearing thus far in this matter is a matter that does not fall to be dealt with now. That is because, it seems to me, that it will, at least in significant part, be affected by the outcome of the final hearing for an order absolute.
The second matter has to do with what I understand to be the possibility of an application for suppression of at least details sufficient to identify both the applicant and the applicant's McKenzie friend.
In respect of that matter, it may be that the form of the reasons, as I have delivered them, now makes such an application unnecessary. However, the contrary may also be the case.