Donohue v Secretary of the Department of Justice and Community Safety

[2024] VSC 337

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2024 00261

NEVILLE DONOHUE	Plaintiff
v
THE SECRETARY OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY IN THE STATE OF VICTORIA	Defendant

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JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2024
DATE OF JUDGMENT:	21 June 2024
CASE MAY BE CITED AS:	Donohue v Secretary of the Department of Justice and Community Safety
MEDIUM NEUTRAL CITATION:	[2024] VSC 337

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PRACTICE AND PROCEDURE — Summary dismissal of proceeding substantially identical to previous claims — Claims previously found to be foredoomed to fail — Indemnity costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Self-represented
For the Defendant	Ms S Fitzgerald	K&L Gates

HIS HONOUR:

1. The factual background that led to this proceeding was the same as the background already described in a judgment of Harris J given on 21 December 2023.[1] It involved the suspension of contact visits during the COVID-19 pandemic while Mr Donohue was imprisoned at Middleton Correctional Centre.

   [1]Donohue v Secretary of the Department of Justice and Community Safety [2023] VSC 789.

1. Harris J’s judgment concerned an attempt by Mr Donohue to commence a proceeding in February 2023 reframing an action in tort previously dealt with by the Court. The Prothonotary refused to seal a writ, statement of claim and affidavit sent by Mr Donohue to the Court for filing in February 2023, giving reasons. Mr Donohue then applied for a direction by a judge of the Court pursuant to r 28A.04(5) of the Supreme Court (General Civil Procedure) Rules 2015 (Rules), to direct the Prothonotary to seal the documents. That application was heard by Harris J.

1. Harris J dismissed the application on the basis that the claim in the proposed statement of claim was foredoomed to fail, and the proposed proceeding was therefore an abuse of process. Her Honour identified two bases for this conclusion:

(a) The proposed statement of claim identified as the sole basis of Mr Donohue’s claim a right conferred by s 47(1)(k) of the Corrections Act 1986 (Corrections Act), which Mr Donohue says was breached by the suspension of ‘personal contact visits’. Her Honour concluded that s 47(1)(k) of the Corrections Act did not confer a right to receive personal contact visits.

(b) Further, any rights conferred by s 47(1)(k) of the Corrections Act were subject during the relevant time to ss 112E(2) and 112G of Part 10B of the Corrections Act. Those provisions conferred overriding statutory authority to restrict visits on the Secretary and the Governor of the prison, leaving no basis for a duty of care of the kind alleged by Mr Donohue.

1. On or about 22 January 2024, Mr Donohue again attempted to commence a proceeding in substantially the same form, by filing the writ and statement of claim in this proceeding. The statement of claim, dated 19 January 2024, is substantially identical to the one previously refused by the Prothonotary and considered by Harris J, save for the addition of an additional, immaterial paragraph.

1. The writ and statement of claim were accepted by the Court’s online filing system and sealed as filed on 22 January 2024, thereby commencing this proceeding.

1. By summons dated and filed 9 April 2024, the Secretary seeks orders that the proceeding be dismissed summarily on the ground that the claims brought in the proceeding have no real prospect of success;[2] or orders that the proceeding be summarily dismissed or stayed on the basis that it is vexatious and/or an abuse of process.[3] The summons also seeks the costs of the application.

   [2]Pursuant to s 62 of the Civil Procedure Act 2010 and r 22.16 of the Rules.

   [3]Pursuant to r 23.01 of the Rules.

1. On 3 June 2024, I heard submissions from the parties and considered their written submissions on the issues raised by the summons. The submissions on behalf of the Secretary addressed not only the substance of the application, but also the question of costs. The Secretary sought an order that Mr Donohue pay the Secretary’s costs of the application on an indemnity basis. Both parties were given the opportunity to make further submissions in writing, and I also considered those submissions.

1. I have considered the reasoning and conclusions of Harris J. With great respect, I am satisfied that her Honour was correct in concluding that the proposed proceeding before her was foredoomed to fail, for the reasons she gave.

1. For the same reasons, I conclude that the current proceeding is foredoomed to fail. It has no real prospect of success, and should therefore be dismissed pursuant to s 62 of the Civil Procedure Act.

1. In particular, I am satisfied that s 47(1)(k) of the Corrections Act did not confer any right to a personal contact visit.

1. Section 47(1)(k) relevantly stated that every prisoner had a right to receive at least one visit, which was to last at least half an hour in each week, under s 37. The Corrections Act distinguished between contact visits and other visits. Section 37(2) of the Corrections Act provided that a relative or friend visiting a prisoner could see and speak with the prisoner ‘but is not permitted to touch the prisoner, unless the visit is part of a contact visiting programme or residential visiting programme’. It was only where approval of a programme for contact visits was granted under s 38 of the Corrections Act that contact visits could occur. The form of visit referred to in s 47(1)(k) was a visit under s 37 and was not a personal contact visit under a programme approved under s 38.

1. Further and in any event, as Harris J also concluded, during the period to which Mr Donohue’s claim relates, it would not have been possible for a duty of care of the kind he alleges to arise in the face of temporary amendments that were made to the Corrections Act.

1. The COVID-19 Omnibus (Emergency Measures) Act 2020 commenced on 25 April 2020, inserting Part 10B into the Corrections Act. It empowered the Secretary or the Governor to prohibit persons from entering a prison for any form of visit.[4]

   [4]See s 112G.

1. Under s 112E(2)(a) of Part 10B, the provisions of Part 10B applied despite anything to the contrary in any other part of the Corrections Act.

1. Part 10B applied to the entirety of the period in which Mr Donohue claims breach of duty. The relevant period to which Mr Donohue’s claim relates is between 20 March 2020 and 6 July 2021. Although Part 10B only commenced on 25 April 2020, it contained a provision that validated any actions taken on and from 20 March 2020.[5] When initially inserted into the Act, Part 10B contained a repeal provision providing for the repeal of the Part six months after commencement.[6] Subsequently, that provision was amended on two occasions, extending the repeal date to 26 April 2022.[7]

   [5]Section 112T.

   [6]Section 112V.

   [7]See COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Act 2020 s 20; and Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 s 202.

1. Although Part 10B of the Act was repealed with effect on 26 April 2022, ss 112E, 112G and 112T continue to apply to the events to which Mr Donohue’s claim relates by reason of general provisions as to the interpretation of legislative provisions in Victoria.[8]

   [8]Interpretation of Legislation Act 1984 ss 14(2)–(2A).

1. For these reasons, I am satisfied that the claim in the proceeding has no prospect of success, and so the proceeding should be summarily dismissed.

1. As the Secretary’s application for summary judgment has succeeded, the Secretary is entitled to an order for her costs. I am satisfied that there is no reason for depriving the successful party of her costs here. Ordinarily, costs are ordered on the standard, or ‘party and party’ basis. However, as noted earlier in these reasons, the Secretary seeks her costs on an indemnity basis. In order to succeed in this regard, the Secretary must point to special circumstances justifying an order of this kind, such as unreasonableness on the part of Mr Donohue in his commencement or conduct of the matter.

1. The main reason advanced by the Secretary in support of her application for indemnity costs was that Mr Donohue issued the proceeding incorporating a same claim made for ‘a second time’, in the face of the Court’s ruling that the claim was foredoomed to fail. The Secretary submitted that bringing the current claim in these circumstances was unreasonable, wasted the resources of the Court, and caused the Secretary to incur legal costs unnecessarily.

1. For the same reasons, the Secretary submitted that Mr Donohue had breached s 18 of the Civil Procedure Act, by making a claim that he has been told (by the Court, in the form of Harris J’s judgment in December 2023) did not have a proper basis.

1. Ordinarily, the Court would be reluctant to visit a special costs order on a self-represented litigant. However, as the Secretary submitted,[9] special circumstances justifying an indemnity costs order are established here, because a judicial officer had previously informed Mr Donohue of the hopelessness of his claim.

   [9]Relying on Vink v Tuckwell (No 3) [2008] VSC 316, [108].

1. For the same reason, I am satisfied that Mr Donohue breached his obligations as a litigant under s 18 of the Civil Procedure Act in commencing this proceeding, when it must have been clear to him that it had no real basis. This too provides a justification for a special costs order against him.

1. In addition, the Secretary pointed to correspondence between the parties and the Court in about March 2024, in which a request was made on behalf of the Secretary for access to the writ and statement of claim the subject of Harris J’s reasons for judgment given on 21 December 2023. As those documents had not been accepted for filling, they were not available to the Secretary by inspection of the court file.

1. The Court, constituted again by Harris J, treated the matter as a request for production of documents pursuant to r 42.13 of the Rules. Mr Donohue declined to consent to production, saying that it could only be to his detriment, because he considered that the Secretary’s solicitors did not intend to use it for his benefit.[10] The documents were ultimately made available to the Secretary pursuant to an order by Harris J.

   [10]Order of the Honourable Justice Harris dated 19 March 2024, recital F.

1. I am satisfied that, in withholding consent to production of the requested documents, Mr Donohue failed to cooperate in the manner required by s 20 of the Civil Procedure Act. This too provides a justification for a special costs order against him.

1. I am satisfied that Mr Donohue must have known at the time he commenced this proceeding that there was no real prospect of its success, and I am satisfied that after its commencement he did not cooperate with the Secretary and the court in connection with the conduct of the proceeding as required by the Civil Procedure Act. I will order costs on an indemnity basis against Mr Donohue.

1. I will make orders dismissing the proceeding summarily on the ground that the claims in the proceeding have no real prospect of success, an order that Mr Donohue pay the Secretary’s costs of and incidental to her summons dated and filed 9 April 2024 on an indemnity basis, and for Mr Donohue to otherwise pay the Secretary’s costs of and incidental to the proceeding on the standard basis.