JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	29 September 2022
DATE OF JUDGMENT:	19 December 2022
CASE MAY BE CITED AS:	Donohue v Westin
MEDIUM NEUTRAL CITATION:	[2022] VSC 794 (revised 21 December 2022)

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PRACTICE AND PROCEDURE — Application for summary dismissal —Sections 62 and 63 of the Civil Procedure Act2010 (Vic) —Whether proceeding has any real prospects of success.

NEGLIGENCE — Novel duty of care —Whether duty of care owed by delegate of the Secretary to the Department of Justice and Community Safety to the plaintiff when determining applications for emergency management days pursuant to s 58E of the Corrections Act1986 (Vic) – Whether proceeding an abuse of process because issue not raised in prior judicial review proceeding – Whether the secretary was the proper defendant to the claim – Whether the plaintiff must establish he has suffered a significant injury within the meaning of s 28 LF of the Wrongs Act1958 (Vic).

DUTY OF CARE – Novel duty of care – Salient features analysis – Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 applied – Whether imposition of duty of care inconsistent with statutory framework governing the grant of emergency management days – Sullivan v Moody (2001) 207 CLR 562 referred to – Electricity Networks Corporation v Herridge Parties [2022] HCA 37 referred to – Dudley v Secretary to the Department of Justice and Community Safety (2021) 66 VR 403 referred to – Donohue v Westin [2022] VSC 37 referred to and applied.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff in person
For the Defendant	Ms S Fitzgerald	Victorian Government Solicitor’s Office

HER HONOUR:

Introduction and background

These reasons concern an application by the defendant, Ms Melissa Westin (in her capacity as the representative of Corrections Victoria), seeking an order that this proceeding be summarily dismissed on the ground it has no real prospect of success, or in the alternative, that the proceeding is vexatious and/or an abuse of process.

The plaintiff, Mr Neville Donohue, was convicted and sentenced to four years and five months imprisonment on 25 September 2018, with his non-parole period expiring on 8 June 2021. The plaintiff served part of his sentence at the Middleton Correction Centre from around May 2019 until he was released on parole on 6 July 2021, that is, during the period in which a state of emergency was in place in Victoria owing to the COVID-19 pandemic (‘pandemic emergency’).

Whilst in prison, Mr Donohue was in the custody of the Secretary to the Department of Justice and Community Safety (‘Secretary’) pursuant to s 6A of the Corrections Act 1986 (Vic) (‘Act’). Pursuant to s 7(1) of the Act, the Secretary is also ‘responsible for monitoring performance in the provision of all correctional services to achieve the safe custody…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Donohue v Westin

Details

AGLC: Donohue v Westin [2022] VSC 794
Case: [2022] VSC 794
Decision Date: 19 December 2022

CaseChat Overview and Summary

In the matter of Donohue v Westin, the plaintiff, Donohue, sought to establish a novel duty of care against Westin, who was a delegate of the Secretary to the Department of Justice and Community Safety. The plaintiff alleged that the defendant owed a duty of care when determining applications for emergency management days under the Corrections Act 1986 (Vic). The court was required to determine whether the defendant owed a duty of care to the plaintiff in the circumstances, whether the proceeding was an abuse of process, and if the Secretary was the proper defendant. Additionally, the court had to consider whether the plaintiff had suffered a significant injury as required by s 28 LF of the Wrongs Act 1958 (Vic).

The court considered the salient features of the case and applied the principles set out in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1. The court held that the imposition of a duty of care was not inconsistent with the statutory framework governing the grant of emergency management days. The court referred to Sullivan v Moody (2001) 207 CLR 562, Electricity Networks Corporation v Herridge Parties [2022] HCA 37, and Dudley v Secretary to the Department of Justice and Community Safety (2021) 66 VR 403, and concluded that the plaintiff had failed to establish that he had suffered a significant injury. The court also held that the proceeding was not an abuse of process and that the Secretary was the proper defendant.

The court dismissed the plaintiff's claim and made no orders for costs. The court held that the plaintiff had failed to establish that the defendant owed a duty of care to him, and that the proceeding was not an abuse of process. The court also held that the Secretary was the proper defendant, and that the plaintiff had not suffered a significant injury as required by s 28 LF of the Wrongs Act 1958 (Vic).

Orders