Donohue v Westin

IN THE SUPREME COURT OF VICTORIA

Restricted

AT MELBOURNE
COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2022 01298

BETWEEN:

NEVILLE DONOHUE	Plaintiff
v
MELISSA WESTIN (the nominated representative of CORRECTIONS VICTORIA)	Defendant

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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 and welfare of prisoners and offenders’. While the plaintiff was in the legal custody of the Secretary during the course of the plaintiff’s imprisonment, s 8 of the Act empowers the Secretary to delegate to any qualified employee or officer any of the functions, powers, duties or responsibilities of the Secretary, and in practice, the Secretary regularly does so.

At the relevant time, the defendant was the Deputy Commissioner of the Custodial Operations Division within Corrections Victoria. It is common ground that the Secretary had (lawfully) delegated the power to grant emergency management days (‘EMDs’) to prisoners to the defendant.

Section 58E(1) of the Act provides as follows:

The Secretary may, in accordance with the regulations, reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period (if one has been fixed in respect of the sentence) on account of good behaviour while suffering disruption or deprivation—
(a)during an industrial dispute or emergency existing in the prison or police gaol in which the sentence is being served; or

(b) in other circumstances of an unforeseen and special nature.

Regulation 100 of the Corrections Regulations 2019 (Vic) provides as follows:

Emergency management days
For the purposes of section 58E(1) of the Act, the Secretary may reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period by—
(a)in the case of an industrial dispute or an emergency under section 58E(1)(a) of the Act, up to 4 days for each day or part of a day on which the industrial dispute or emergency exists in the prison or police gaol in which the sentence is being served; or
(b)in the case of other circumstances of an unforeseen and special nature under section 58E(1)(b) of the Act, up to 14 days.

If a prisoner is granted an EMD or EMDs, the period of incarceration may be reduced accordingly. Many prisoners made applications for EMDs during the pandemic emergency, relying upon the disruption to normal prisoner routines caused by the imposition of restrictions on prisoner movement within prisons, the reduction or cessation of on-site programs and services, and the suspension of visits from family, friends and lawyers during the pandemic emergency (‘pandemic restrictions’).[1]
[1]During the pandemic emergency, part 10B of the Act (‘temporary provisions’), which were enacted in the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic), but are now no longer in force, contemplated, among other things, the imposition of restrictions upon a prisoner’s right under s 47(1)(k) of the Act to receive regular contact visits. Section 47(1)(k) of the Act provides that ‘every prisoner has...the right to receive at least one visit which is to last at least half an hour each week’. These visits were suspended during the pandemic emergency.

Between 28 April 2020 and 18 August 2020, the plaintiff applied to the defendant for the grant of additional EMDs pursuant to s 58E of the Act (‘EMD applications’). The EMD applications were made by the plaintiff relying upon the pandemic restrictions, and also by reason of an alleged industrial dispute during his term of imprisonment.

The plaintiff’s claim for EMDs arising out of the alleged industrial dispute does not appear to be an issue in this proceeding. What is in issue is the plaintiff’s claim for 216 EMDs as a consequence of the pandemic restrictions imposed during the period between 20 March 2020 and 6 July 2020, a period of 108 days. If the EMD applications had been granted, the plaintiff may have been released in March 2021 rather than in July 2021.

The EMD applications were rejected by the defendant in a letter dated 7 October 2020 (‘EMD refusal’), which stated, relevantly, as follows:

I am writing in relation to you application of 6 July 2020, in which you request to be granted Emergency Management Days (EMDs). In accordance with Commissioner’s Requirement 2.3.2, Emergency Management Days, a prisoner may be eligible for EMDs if they are of good behaviour during a period of disruption or deprivation, relating to an emergency. I apologise for the delay in providing you a response to your application.
I note that prisoners residing at Middleton experienced a lock down on 24 July 2020 relating to the COVID-19 emergency. As such, you have already been granted one EMD for this date.
However, the overall disruption or deprivation you have experienced at Middleton has not been significant in the context of the COVID-19 pandemic and so does not warrant the granting of the requested EMDs. Only more significant disruptions, such as being accommodated in a restrictive regime or having your out-of-cell time significantly restricted because of COVID-19, will result in the granting of EMDs. Therefore, your application for additional EMDs is not approved.
I understand that this decision is not your preferred outcome due to the ill health of your wife and needs of your son. However, I remain firm that the level of disruption and deprivation you have experience during COVID-19 is not significant enough to warrant the granting of EMDs.

The EMD refusal was the subject of an application for judicial review brought by the plaintiff against the defendant in this Court on 24 November 2020 (‘judicial review proceeding’). The plaintiff was unsuccessful in the judicial review proceeding.[2] Justice of Appeal Niall (sitting in the Trial Division) rejected the plaintiff’s contentions that the defendant had failed to evaluate the material before her in support of the EMD applications, had failed to give proper consideration to the plaintiff’s human rights as required by s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’), and that her decision was infected by jurisdictional error in that she incorrectly applied the law, or that the decision was otherwise legally unreasonable.
[2]Donohue v Westin [2022] VSC 37.

The plaintiff has stated that he accepts the decision in the judicial review proceeding, and contends that he does not seek to challenge or re-litigate the outcome of the judicial review proceeding in the course of this proceeding.

This proceeding

The plaintiff commenced this proceeding on 12 April 2022. In his statement of claim filed on 12 April 2022 (‘first statement of claim’), the plaintiff made various claims against the defendant in relation to the EMD refusal. The gravamen of the plaintiff’s complaint was that the EMD refusal denied the plaintiff the ability to complete the custodial portion of his sentence early, and return home to recommence his role as a carer for his invalid wife and disabled son, as the most damaging aspect of the pandemic restrictions to him was the denial of contact visits between 20 March 2020 and his release on 6 July 2021. The relief sought in the first statement of claim included damages in the sum of $7.8 million.

At the first return date of the defendant’s application on 11 August 2022, I made orders striking out the first statement of claim, with leave granted to the plaintiff to file a proposed amended statement of claim. On that day, I gave the following reasons for striking out the first statement of claim:

A.The statement of claim does not disclose a cause of action, in that it fails to explain why the conduct of the defendant gives rise to an entitlement of the plaintiff to claim damages.
B.However, having regard to the status of the plaintiff as a self-represented litigant, he should have the opportunity to prepare a proposed amended statement of claim, having regard to the issues raised by the defendant in correspondence, the discussion during the hearing today, and these reasons, prior to the Court forming a view as to whether the causes of action open to the plaintiff, or any of them, have any real prospect of success.
C.Without forming any concluded view regarding the viability of any of the causes of action listed below, the following causes of action may apply to the facts of the current case:
(i)breach of statutory duty (although s 84 of the Wrongs Act 1958 (Vic) (‘Wrongs Act’) may be an impediment to this claim);
(ii)misfeasance in public office (although relief is limited to invalid or unauthorised acts or omissions);
(iii)negligence (see ss 48 and 72 of the Wrongs Act);
(iv)intentional infliction of mental harm (noting that the relevant harm must be a recognised psychiatric injury); and
(v)false imprisonment.

D.Each of the causes of action outlined above have their own elements, that is, there are certain facts which must be established in order for the plaintiff to have a right to recover damages. As well as the Wrongs Act, a reputable text book may also assist the plaintiff to understand the elements of each of the torts outlined above, and assess whether the underlying facts might support any of the various causes of action outlined above. Further, as some of the causes of action outlined above require the plaintiff to establish that the defendant intended to do certain things, or intended certain outcomes, the plaintiff must plead the facts, matters and circumstances upon which he intends to rely upon to establish the pleaded intention.
E.Further, the plaintiff may wish to have regard to the following provisions of the Wrongs Act, which limit the quantum of damages recoverable for non-economic loss, and require, save in the case of intentional torts, that a plaintiff seeking to recover damages for noneconomic loss obtain a significant injury certificate: see ss 28G, 28LE, 28LF and 28LC(2).

On 22 August 2022, the plaintiff filed a proposed amended statement of claim pursuant to the orders made on 11 August 2022 (‘proposed amended statement of claim’). However, the defendant contends that the proposed amended statement of claim also fails to disclose a cause of action against the defendant, and submitted that summary judgment should be granted, on the basis that the plaintiff’s claim in relation to the EMD refusal is hopeless and is doomed to fail.

The proposed amended statement of claim

The proposed amended statement of claim is a lengthy document, largely in a narrative form. While the proposed pleading is not in a conventional form, it is easy enough to comprehend the gravamen of the plaintiff’s complaints, although, as will be seen, the plaintiff’s case has shifted, and seems to be continuing to shift over time.

The first part of the proposed amended statement of claim addresses the following matters:

(a) the plaintiff made the EMD applications in order to ameliorate and obtain compensation for the disruption and deprivation and denial of rights he experienced as a consequence of the pandemic restrictions, ‘above and beyond the normal exigencies of incarceration’;

(b) while in the judicial review proceeding, Niall JA had found that the defendant was not compelled by the Act to grant EMDs, he also found that the defendant was not compelled by the Act not to grant EMDs;

(c) the EMD refusal was a personal decision by the defendant, which was contrary to the duty of care owed by the defendant to the plaintiff, as the EMD refusal caused him injury, pain, suffering and damage, by denying the plaintiff the early completion of the custodial portion of his sentence, and thus (as was known to the defendant):

(i) recommence his role as a carer for his invalid wife and disabled son;

(ii) end the injury, pain, suffering damage caused to the plaintiff, including the further deterioration of his psychiatric illness, caused by the cessation of contact visits; and

(iii) recommence psychiatric and psychological treatment available to the plaintiff outside prison through the Department of Veterans Affairs;

(d) the rights conferred upon prisoners by the Act, the Charter, other legislation and the common law;

(e) details of the impact upon the plaintiff and the plaintiff’s family of the suspension of contact visits, and the inadequacy of the measures put in place by the defendant to ameliorate the impact of the pandemic restrictions; and

(f) the defendant’s knowledge of the particular circumstances of the plaintiff, including the difficulties experienced by the plaintiff’s wife and son, and the impact upon the plaintiff of the suspension of contact visits.

The plaintiff then went on to allege that the defendant had at her disposal the means to avoid the injury and damage caused to the plaintiff by the suspension of contact visits, being the grant of EMDs. By the EMD refusal, the defendant deliberately continued to cause injury and damage to the plaintiff, and refused to take steps to avoid further injury and damage, in breach of her duty of care to the plaintiff. In summary, the plaintiff contended that ‘the defendant, by not fulfilling her duty of care, whilst having the power and the ability under the Act to do so, knowingly, and therefore deliberately caused and continued to cause long term injury, pain, suffering and damage to the plaintiff’.

In my reasons for striking out the first statement of claim, I suggested to the plaintiff that he should look to the provisions of the Wrongs Act1958 (Vic) (‘Wrongs Act’) for the purpose of reframing his claims in this proceeding. Accordingly, in the proposed amended statement of claim, the plaintiff made reference to the following provisions of the Wrongs Act as being relevant to his claim in negligence against the defendant:

(a) he noted that the definition of injury in s 43 of the Wrongs Act included psychological or psychiatric injury, and included the aggravation, acceleration or recurrence of an injury or disease;

(b) he stated that s 48 of the Wrongs Act clearly defined the failure of the defendant to fulfil her duty of care, in that the defendant was aware of the risk of harm to the plaintiff, the risk was not insignificant, and a reasonable person in the position of the defendant would have taken precautionary action to avoid the risk of harm to the plaintiff;

(c) he said that the risk of harm to him was an obvious risk within the meaning of s 54 of the Wrongs Act, given the defendant had been fully informed of the risk of harm to the person in her care (being the plaintiff);

(d) he said that s 54 of the Wrongs Act, which provides for the defence of voluntary assumption of risk, does not apply to him; and

(e) in relation to s 84(2) of the Wrongs Act, which limits the liability in tort of public authorities for their acts and omissions, the plaintiff said that the EMD refusal was ‘so unreasonable that no public authority in question could properly consider the act or omission to be a reasonable exercise of its functions’.

In the proposed amended statement of claim, the plaintiff referred to the decisions of the New South Wales Court of Appeal in State of New South Wales v Smith[3] and Campbell J in Hamilton v State of New South Wales (No 13)[4] as a general guide to how monetary compensation could be quantified in this proceeding. The damages claimed by the plaintiff in the proposed amended statement of claim total $1,950,000.
[3][2017] 95 NSWLR 662.
[4][2016] NSWSC 1311.

This sum is based upon a claim of $650,000, or $10,000 per week for all but two weeks between 20 March 2020 and 6 July 2021, being the period in which the plaintiff was ‘effectively falsely punished and denied his rights to contact visits whilst incarcerated’. The balance of the claim (being twice the sum of $650,000) is claimed on account of the pain, suffering and damage caused to him since he was released from custody, and the permanent damage caused to him by the EMD refusal.

The shifting nature of the plaintiff’s claim

The manner in which the damages have been calculated by the plaintiff reflects to some extent the shifting nature of the plaintiff’s claim. While the first statement of claim was deficient in that it failed to, among other things, plead how it was said that the defendant owed the plaintiff a duty of care, it was tolerably clear from the first statement of claim that the conduct which was said to have amounted to a breach of duty was the EMD refusal. Similarly, the allegations made in the proposed amended statement of claim focus on the EMD refusal as being a breach of the defendant’s alleged duty to ameliorate the hardship suffered by the plaintiff by reason of the pandemic restrictions, in particular the suspension of contact visits.

However, the way in which the claim for damages is framed suggests that the plaintiff’s main complaint concerns the suspension of contact visits, and this was confirmed during the course of the hearing of the summary judgment application.[5] To explain further, the plaintiff claims damages for the entire period of his incarceration during which contact visits were suspended, not just the period post-dating the EMD refusal, or from the time that he could have expected to have been released had the EMD applications been granted.
[5]See T26, 25-29.

What might be described as the plaintiff’s real case has not been pleaded in the proposed amendment statement of claim, and as such is not properly the subject of the summary judgment application. However, I will make a few observations in passing regarding any claim the plaintiff may plan to bring in respect of the suspension of contact visits.

First, it is patently clear from the temporary provisions that the defendant is not the proper defendant to any claim based upon the decision to suspend contact visits during the pandemic emergency. The temporary provisions included s 112G of the Act, which empowered the Secretary or the Governor of a prison to prevent a visitor from entering a prison for the safety, security or good order of a prison, or for the health and safety of any person. Accordingly, no legal responsibility for the decision to suspend contact visits rests with the defendant.

Section 112E(2)(a) of the Act provided that the temporary provisions applied despite anything to the contrary in any other part of the Act, which would include s 47(1)(k) of the Act. Accordingly, to the extent that any claim by the plaintiff is based upon any alleged breach of s 47(1)(k) of the Act, it is clear that the plaintiff’s right to receive contact visits was overridden by s 112G of the Act while the temporary provisions were in force.

It is not clear whether the decision to suspend the contact visits at Middleton was made by the Secretary or the Governor. In any event, neither of them are parties to this proceeding. Further, it seems to me to be highly unlikely that a Court would impose a duty on either the Secretary or the Governor with respect to the exercise of their powers under s 112G in all of the circumstances, given the pandemic emergency and the terms of the temporary provisions, but that may be a debate for another day.

Further, it seems to me that there may well be questions of causation arising out of any claim by the plaintiff with respect to the suspension of contact visits. Middleton Prison is near Castlemaine. For many months between March 2020 and July 2021, residents of metropolitan Melbourne were subject to travel restrictions, and could only leave home for certain purposes, for a limited period of time. Those restrictions would no doubt have substantially impeded the ability of the plaintiff’s wife and son to visit the plaintiff in prison without being in breach of the restrictions on community movement which applied to all residents of Victoria, or at least residents of the Melbourne metropolitan area, during much of the period to which the plaintiff’s claims relate, even if contact visits had not been suspended during that time.

However, the discussion above is somewhat academic, in that no express claim has been made against either the Secretary or the Governor with respect to the suspension of contact visits. However, if that decision is the real focus of the plaintiff’s claim, then the defendant is not the proper defendant to such a claim.

I shall now move to consider the summary judgment application, based upon how the claim is currently framed in the proposed amended statement of claim.

The application for summary judgment

Sections 62 and 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’) provide that:

Defendant may apply for summary judgment in proceeding
A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.
…
Summary judgment if no real prospect of success
Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence of counterclaim, as the case requires, has no real prospect of success.

The defendant referred to the decision of Sloss J in Silver Chef Rentals Pty Ltd v Makong Australia Pty Ltd[6] as providing a useful summary of the principles to be applied in applications for summary judgment under ss 61 and 63 of the CPA, as follows:

In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd, the Court of Appeal stated the relevant test to be applied in determining an application for summary judgment made under ss 61 and 63, as follows:
(a) the test for summary judgment under s 63 of the [CPA] is whether the respondent to the application for summary judgment has a “real” as opposed to a “fanciful” chance of success;
(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the “hopeless” or “bound to fail test” essayed in [General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125];
(c) it should be understood, however, that the test is to some degree a more liberal test than the “hopeless” or “bound to fail” test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[7]

[6][2019] VSC 703.

[7]Ibid [53].

A proceeding may constitute an abuse of process where it is “foredoomed to fail”[8] or will “inevitably fail”[9].
[8]Walton v Gardiner (1993) 177 CLR 378, 393.
[9]R v Smith [1995] 1 VR 10, 15.

The defendant’s submissions

In summary, the defendant submitted that:

(a) the defendant had no duty of care to the plaintiff when making decisions under s 58E of the Act;

(b) no harm can flow from a decision made by the defendant under s 58E of the Act, given that it is a “backward-looking power”, and cannot be exercised in order to remedy future harm; and

(c) the plaintiff has not suffered a significant injury within the meaning of s 28LF of the Wrongs Act.

The defendant submitted that the duty of care alleged to be owed to the plaintiff by the defendant is not a recognised category of duty known to the law, and the Court is unlikely to find that such a duty exists, given that:

(a) the plaintiff was in the legal custody of the Secretary by operation of s 6A of the Act, not the defendant, such that if any duty of care were to exist, that duty would be owed by the Secretary, not the defendant;

(b) the decision of Niall JA in the judicial review proceeding identified that the discretion under s 58E of the Act to grant EMDs is one which:

compensates for a deterioration of prison conditions compared to some expected norm, it does so as an incident of prison management and not as a reflection of some underlying entitlement.[10]

[10][2022] VSC 37 [56].

The defendant submitted that the reasoning of Niall JA in the judicial review proceeding also established that no duty of care is owed by the defendant to the plaintiff to prevent future hardship when determining whether to grant the EMD applications.

Alternatively, even if a duty of care did arise on the basis of the “salient features” analysis referred to in the authorities, it would be displaced by the requirements of the Act, and the duty owed by the defendant to the general public to ensure that sentences are served according to law and in accordance with the applicable sentencing principles.

The defendant submitted further that:

(a) the imposition of a duty of care with respect to decisions made under s 58E of the Act would distort the decision making process and undermine the ability of responsible officers to perform other duties imposed upon them by the Act;

(b) a condition of exercising the discretion under s 58E of the Act is that the defendant must be satisfied that there was a “period of disruption or deprivation” that has already occurred. It is not a condition of the exercise of its discretion under s 58E of the Act that the defendant must prevent future hardship;

(c) the consequences of the EMD refusal are the inevitable consequences of the plaintiff being in custody during the pandemic emergency, not any act or omission of the defendant;

(d) the plaintiff had an opportunity to advance his claim based upon the defendant’s alleged breach of s 47(1)(k) of the Act in the judicial review proceeding, but did not do so. In any event, the terms of the temporary provisions would defeat the plaintiff’s claim with respect to any alleged breach of s 47(1)(k) of the Act; and

(e) further, no harm flows from a breach of any duty of care as the plaintiff has not suffered a significant injury, as defined in s 28LF of the Wrongs Act, even if any such injury could be causally linked to the EMD refusal.

The defendant submitted further that the suspension of contact visits during the pandemic emergency caused the harm alleged to have been suffered by the plaintiff, not the EMD refusal, and the suspension of contact visits was not a decision that was made by the defendant.

The defendant submitted that a duty of care will not arise where the defendant was “merely delegated the power to made decisions under s 58E of the Act”, noting that, in the judicial review proceeding, the EMD refusal was determined to have been a lawful exercise of discretion by the defendant.

The defendant relied upon the decision of the High Court in Crimmins v Stevedoring Industry Finance Committee[11] (‘Crimmins’) in support of the proposition that the courts are generally reluctant to impose or extend the liability of public authorities in negligence when exercising their functions and duties, referring to the following passage of the reasons of Hayne J:

Put at its most general and abstract level, the fundamental reason for not imposing a duty in negligence in relation to the quasi-legislative functions of a public body is that the function is one that must have a public rather than a private or individual focus. To impose a private law duty will (or at least will often) distort that focus. This kind of distinction might be said to find reflection in the dichotomy that has been drawn between the operational and the policy decisions or functions of public bodies. [12]

[11](1999) 200 CLR 1 [292] (‘Crimmins’).

[12]Ibid [292].

The defendant submitted that if a duty of care of the kind alleged by the plaintiff was found to exist, the Court would not find that in order to fulfil this duty a decision maker under s 58E of the Act must grant an EMD application under s 58E of the Act, as this would defeat the purpose of the Act in conferring a discretion on the decision maker as to whether to grant EMDs. The defendant referred to the statement of the High Court in Graham Barclay Oysters Pty Ltd v Ryan[13] regarding the imposition of a novel duty of care on public authorities as follows (footnotes omitted):

A public body invested with a discretionary statutory power may be in breach of a common law duty of care if it fails to exercise the power for the benefit of an individual or class of individuals. In these cases, failure to exercise the power given constitutes actionable negligence that sounds in damages. In determining whether a public authority has breached a common law duty by failing to exercise a statutory power, it is essential to examine the words and policy of the legislation. That is because the legislation may indicate that the legislature has legislated to cover the field and excluded all common law duties of care. In other cases, the imposition of a common law duty may be inconsistent with or undermine the effectiveness of the duties imposed by the statute. In some cases, the circumstances of the case — for example, active intervention by the authority or reliance by the plaintiff — may establish a duty of care. But the legislation may give the authority such a wide discretion to exercise the power in question that the tribunal of fact cannot find that the failure to exercise the power constituted a breach of the duty.[14]

[13](2002) 211 CLR 540.

[14]Ibid [78].

The defendant submitted that an analysis of the legislative framework within which decisions were made by the defendant under s 58E of the Act, along with the legislative framework underpinning the pandemic restrictions, lead to a conclusion that Parliament did not intend to impose a duty of care upon the defendant when exercising her discretion with respect to the grant of EMDs to individual prisoners.

The plaintiff’s submissions

The plaintiff submitted in opposition to the summary dismissal application, in summary, as follows:

(a) the duty of care owed by the defendant to the plaintiff arose as “part of the defendant’s role as Acting Deputy Commissioner for Custodial Operations, and later as Deputy Commissioner for Custodial Operations”;

(b) the defendant was negligent in her failure to ameliorate, in any way, the injury, pain, suffering and damage caused to the plaintiff by the defendant’s decision to suspend contact visits;

(c) the defendant did not fulfil her duty of care to the plaintiff, as she failed to ameliorate the harm caused by the suspension of contact visits during the pandemic emergency, given that her duty would have been fulfilled by granting the EMD applications;

(d) the plaintiff accepts that the defendant was not compelled to grant EMDs under the Act, but the existence of a discretionary power does not negate any duty of care;

(e) further, the enactment of temporary provisions did not operate to remove any duty of care owed by the defendant to the plaintiff;

(f) the removal of contact visits is traditionally used as a method of punishing prisoners. Accordingly, the defendant would have been aware that harm would flow from the suspension of contact visits, and that the EMD refusal knowingly inflicted harm upon him; and

(g) he has taken steps to obtain a significant injury certificate from medical practitioners who are providing care to him via the Department of Veterans Affairs.

Discussion

During the hearing on 29 September 2022, the plaintiff conceded that he had not turned his mind to the possibility that the Secretary was the proper defendant to his claims in this proceeding, not the defendant. During the course of the hearing, I indicated that I would attempt to deal with all of the arguments advanced by the defendant in relation to the summary judgment application, not simply dismiss the application on the basis that the plaintiff has sued the wrong defendant. However, to the extent that the plaintiff may seek to advance claims based upon the decision to suspend contact visits, rather than the EMD refusal, it is not possible or desirable for me to reach a concluded view on the viability of such a claim, given that no such claim has been pleaded against any proper defendant. However, I have highlighted the possible weaknesses of such a claim in paragraphs 25 to 28 of these reasons.

However, the question of the proper defendant only really arises if the plaintiff’s real case is that the decision to suspend contact visits was what really caused him harm, rather than the EMD refusal. I accept that the Secretary was the person with the legal custody and control of the plaintiff while he was in custody. Further, either the Secretary or the Governor of the prison at which the plaintiff was incarcerated made the decision to suspend contact visits. However, I do not consider that this necessarily precludes other parties owing the plaintiff a duty of care during his period of incarceration. Ultimately, the determination of whether one person owes another a duty of care is quite fact dependent, albeit that the enquiry must take place within the legal framework imposed by the Wrongs Act and the common law principles governing when a duty of care may or may not be imposed, having regard in particular to the principles applicable to the determination of whether a public authority or a public official owes a duty to a person or class of people when exercising their powers and functions.

Accordingly, I would not grant summary judgment solely on the basis that the defendant, by reason of her not being charged with the legal custody of the plaintiff, was not the proper defendant to the plaintiff’s claims in this proceeding.

I now turn to the other arguments advanced by the defendant in support of her summary judgment application, namely:

(a) the defendant did not owe a duty of care to the plaintiff when considering the EMD applications, on the basis that the legislative scheme governing the grant of EMDs is inconsistent with the imposition of such a duty;

(b) this proceeding is an abuse of process, as the plaintiff should have brought his claim for loss and damage said to have been caused by the EMD refusal in the judicial review proceeding; and

(c) the plaintiff has not established that he has a significant injury within the meaning of s 28LF of the Wrongs Act, which is a necessary precondition for the recovery of damages for non-economic loss.

Taking the latter issue first, the absence of a significant injury certificate at this stage of the proceeding is not fatal, although if a certificate was not forthcoming within a reasonable period of time, that might be a sound reason for staying the proceeding until a significant injury certificate is obtained. Further, in the proposed statement of claim, the plaintiff alleges that the defendant intentionally caused him harm. Section 28LC(2)(a) of the Wrongs Act provide that there is no requirement for a plaintiff to establish a significant injury in order to recover damages for non-economic loss (being pain and suffering, loss of amenities of life, and loss of enjoyment of life), where the claim is:

A claim where the fault concerned is, or relates to, an intentional act that is done with intent to cause death or injury…

However, while the proposed amended statement of claim makes reference to the intentional and deliberate conduct of the defendant in refusing the EMD applications, the plaintiff’s claim is currently framed as a claim in negligence, not as an intentional tort. However, the point would become moot if the plaintiff is able to obtain a significant injury certificate in advance of any trial.

As for the question of whether the proceeding should have been dismissed as an abuse of process, on the grounds that the EMD refusal was the subject matter of both this and the judicial review proceedings, I would not dismiss the proceeding on this ground alone. A judicial review proceeding and a proceeding bringing a negligence claim are of quite different characters, with different procedural rules and evidentiary requirements. Also, while this is not determinative of the matter, the Court should be prepared to give a self-represented litigant a little more latitude regarding this issue than what might be given to a party who is legally represented and therefore can be presumed to have received advice regarding the operation of the principle in Port of Melbourne Authority v Anshun Pty Ltd.[15] However, as will be seen later in these reasons, the findings and reasons in the judicial review proceeding are relevant to the determination of the current application.
[15](1981) 147 CLR 589.

The critical issue in the current application is whether I can be satisfied, as submitted by the defendant, that there is no real prospect of the plaintiff establishing that the defendant owed him a duty of care when considering the EMD applications. If that contention is made good, then this proceeding has no real prospects of success, and should be dismissed.

Prior to turning to the authorities regarding the circumstances in which the courts will impose a duty of care upon a public authority or officials with respect to the exercise of their statutory functions, I note that in applications of the current kind, I am required to take the plaintiff’s case at its highest and best. That is, when determining whether the facts pleaded give rise to a viable cause of action, I am required to presume, and will presume, that the facts pleaded by the plaintiff in the proposed amended statement of claim can be proved at a trial. The relevant facts include:

(a) that the suspension of contact visits, along with the imposition of the other pandemic restrictions, caused and continue to cause the plaintiff psychological or psychiatric injury;

(b) that the defendant knew of the plaintiff’s particular family circumstances and the ongoing harm caused to him by the suspension of contact visits and the other pandemic restrictions; and

(c) that the defendant knew that the grant of EMDs would ameliorate the harm caused to the plaintiff by the suspension of contact visits and the other pandemic restrictions.[16]

[16]Notwithstanding that the grant of EMDs which would reduce the non-parole period of a prisoner’s sentence would not necessarily reduce the period of time that prisoner spent in custody.

Further, as noted above, the decision and reasons of Niall JA in the judicial review proceeding are relevant to the determination of the application of summary judgment in at least two respects. First, as discussed later in these reasons, a Court will not impose a duty of care on a public authority exercising statutory functions and powers if imposing such a duty of care would be inconsistent with the statutory framework conferring the relevant functions, powers and duties.[17]
[17]Sullivan v Moody (2001) 207 CLR 562. See also Electricity Network Corporation v Merridge Partners [2022] HCA 37, delivered while judgment in this application was reserved.

In his reasons in the judicial review proceeding, Niall JA conducted a review of the statutory framework governing the grant of EMDs to prisoners, and discussed the purpose of EMDs. As an associate judge, I am bound by the findings made by Niall JA in the judicial review proceeding. But, in the current application, my task is not limited to applying those findings uncritically. When determining the defendant’s summary judgment application, I am required to consider whether the plaintiff’s claims have any real prospect of success, and thus should ultimately proceed to trial before a judge of the Trial Division. If, as contended for by the defendant, the findings of Niall JA regarding the purpose of EMDs and the framework within which the power to grant EMDs operates leads to an inevitable conclusion that no duty of care was imposed upon the defendant with respect to the exercise of her powers and functions under s 58E of the Act, then, in order to make a contrary finding, a trial judge may well be required to consider the correctness of Niall JA’s findings and reasons. Given that Niall JA was sitting in the Trial Division when determining the judicial review proceeding, another trial division judge would be free to differ from his Honour’s conclusions regarding the purpose of s 58E of the Act, but, in accordance with the principles of judicial comity, only if that judge considered that Niall JA was ‘plainly wrong’ in his analysis and conclusions.

Accordingly, I will need to address the following issues in these reasons:

(a) given Niall JA’s analysis of the legislative framework governing the grant of EMDs, whether there is a real prospect of the plaintiff establishing that the imposition of a duty of care is not inconsistent with that legislative framework; or

(b) if there is no real prospect of establishing a duty of care based upon Niall JA’s analysis, whether there is a real prospect of another trial judge reaching a conclusion that Niall JA’s analysis is plainly wrong, and reaching a conclusion that imposing a duty of care is not inconsistent with the relevant legislative framework.

In the judicial review proceeding, Niall JA embarked upon an analysis of the purpose of s 58E of the Act, and the legislative framework within which the provision operates. While this analysis was necessarily shaped by reference to the plaintiff’s grounds of review in the judicial review proceeding, the following findings and observations are relevant to the issues in the current application:

(a) the grant of EMDs with the effect of reducing a prisoner’s non-parole period would not automatically reduce the time to be served, as the period of time served would ultimately depend upon the Parole Board;[18]
[18][2022] VSC 37 [40].

(b) a decision to grant or refuse an EMD is not a decision which is, of itself, a decision which would limit rights, such that s 38 of the Charter does not apply,[19] as s 38 of the Charter does not require a decision-maker to consider how to maximise or increase the enjoyment of Charter rights by a person who may be affected by the decision to grant or refuse an EMD application;[20]
[19]Ibid [42].
[20]Ibid [44].

(c) the role of the defendant in making decisions under s 58E was not to overcome the burden of imprisonment or hasten the restoration of the plaintiff’s freedoms;[21]
[21]Ibid [45].

(d) the following propositions apply to s 58E of the Act:

(a)Where a prisoner applies for EMDs, the Secretary is under a duty to at least consider the exercise of the power;
(b)The power to grant EMDs is enlivened once the Secretary is satisfied that the statutory preconditions are met;
(c)Satisfaction of the criteria enlivens the discretion but does not give rise to an entitlement in favour of the prisoner or a duty on the Secretary to grant one or more EMDs to the prisoner; and
(d)Both the question of whether the satisfaction of the statutory preconditions are met, and whether EMDs should, as a matter of discretion, be granted, are to be determined by the Secretary having regard to the purpose of the provision, being prison management, and subject to being within the outer limits of reasonableness or legal error, are matters for prison authorities.[22]
[22]Ibid [54].

(e) His Honour went on to say as follows:

The section involves an evaluative exercise on the part of the prison authority. Although the grant of an EMD has an ameliorative effect on the length of imprisonment, the purpose of the section is to encourage or reward good behaviour during times of challenge. To the extent that a grant of EMDs compensates for a deterioration of prison conditions compared to some expected norm, it does so as an incident of prison management and not as a reflection of some underlying entitlement. Still less is it an attempt to reflect what the sentencing court might have had in mind at the time the sentence was imposed. It is not, as the plaintiff submitted in his application for EMDs, designed to restore or honour the integrity of the sentence.[23]
[23]Ibid [56].
[emphasis added]

(f) that the primary purpose of EMDs is to maintain good order in prisons, rather than to ameliorate the adverse impact of emergencies or special circumstances, is supported by the requirement that an applicant for EMDs must show that they had been of good behaviour;[24]
[24]Ibid [57].

(g) section 58E is concerned with deprivation or disruption that is caused by an emergency or special circumstances, and when determining whether or not to grant EMDs, the decision maker will need to compare the level of disruption and deprivation with the situation which normally applies;[25]
[25]Ibid [62].

(h) his Honour then went on to say as follows:

There is no bright line that mandates when a level of suffering warrants the grant of an EMD. No doubt, given that the overall purpose of the provision is prison management and to ensure good order within the prison, the decision making process will be influenced by an assessment of the extent to which prisoners will reasonably cope with disruptions to the usual running of the prison or deprivation of rights, entitlements, and benefits that are usually available. A key factor may be the need to ameliorate hardship so as to counter, through offsetting EMDs, frustration, anger and suffering that is likely to be burdensome on prisoners and play out in challenging behaviour or more serious consequences. This assessment of the level of deprivation or disruption, and the tolerance of prisoners for it, will be a product of experience and judgment for those given responsibility for prison management.[26]

(i) granting EMDs is a mechanism by which prison management can ameliorate or compensate for disruptions and deprivation;[27] and

(j) the EMD refusal was not unreasonable, and the EMD refusal did not lack an evident and plausible justification.[28]

[26]Ibid [63].

[27]Ibid [64].

[28]Ibid [70].

The analysis of Niall JA is consistent with the discussion by Cavanough J of the policy considerations behind and the operation of s 58E of the Act in Dudley v Secretary to the Department of Justice and Community Safety[29] (‘Dudley’). Dudley[30] was also an application for judicial review of a decision with respect to the grant of EMDs, such that the question of whether the Secretary (or the defendant) owed an applicant for EMDs a common law or statutory duty of care was not raised for consideration. Further, the factual circumstances relied upon by the plaintiff in Dudley[31] differed somewhat from those relied upon by the plaintiff in this proceeding.
[29](2021) 66 VR 403.
[30]Ibid.
[31]Ibid.

Cavanough J accepted that the exercise of the discretion to grant EMDs is amenable to judicial review. However, he made the following pertinent observations:

The pre-conditions in s 58E involve matters of evaluation and degree and matters of comparison with normal or other situations or conduct within prisons – particularly as to ‘good behaviour’, as to ‘suffering disruption or deprivation’, as to ‘during... an emergency’ and, all the more so, as to ‘in other circumstances of an unforeseen and special nature’ – which Parliament surely saw as best determined, on their merits, by the correctional authorities rather than by any court. It is highly unlikely that Parliament intended the very inconvenient result that there should be a separation between the repository of the ultimate power to assess compliance with the pre-conditions for the enlivening of the discretionary power to grant emergency management days under s 58E, on the one hand, and the repository of that self-same discretionary power itself, on the other hand. That is all the more evident because of the interrelatedness (properly acknowledged at the final hearing by senior counsel for the plaintiff) that will often exist between matters relevant to the statutory pre-conditions and matters relevant to the exercise of the discretion itself.[32]

[32]Ibid [15].

His Honour rejected the plaintiff’s contention that, once the preconditions in s 58E were satisfied, the Secretary (or her delegate) was under a positive obligation to grant EMDs in response to a particular application.[33] That is, there is no “entitlement” to EMDs. That no such entitlement existed was consistent with the legislative history of s 58E, which abolished “automatic” remissions for states of emergency or disruption with a discretionary power to grant EMDs.[34]
[33]Ibid [38].
[34]Ibid [40].

His Honour referred to the second reading speech of the responsible Minister concerning the introduction of s 58E of the Act (“second reading speech”), as follows (emphasis added):

This Bill represents the government’s commitment to reform the law to ensure that sentences of imprisonment imposed by the courts are actually served by prisoners.
The Bill abolishes the entitlement to remission for prisoners sentenced after the date of the commencement of the Act...
The abolition of all remissions will include the director-general’s power to grant additional and special remissions under regulation 98 of the Corrections Regulations 1988. Currently additional remissions may be granted for good behaviour, to promote the prisoner’s welfare and for unforeseen and special circumstances, while special remissions are only granted for good conduct when a prisoner suffers disruption due to an industrial dispute or an emergency exists within the prison.
Despite the abolition of such remissions, it is necessary for the director-general to retain the power to deduct days from a prisoner’s non-parole period for good behaviour during industrial disputes or other emergencies. For this reason, the Bill provides for the director-general the discretion to deduct some time as a reward for good conduct during such periods of disruption.[35]

[35]Ibid.

His Honour noted that the corrections authorities had taken steps to grant EMDs to prisoners in certain circumstances during the pandemic emergency, noting that “other legitimate considerations, such as lawful government policy or “lawful corrections policy, might come into play in particular circumstances.”[36]
[36]Ibid [44].

The reference in the second reading speech to EMDs being granted as a “reward for good conduct” is consistent with the view of Niall JA in the judicial review proceeding that s 58E is a prison management tool, not a prisoner welfare measure.

The question of whether the imposition of a duty of care upon the defendant with respect to decisions made by her under s 58E is relevant to the current application, because the consistency or otherwise with the imposition of a duty with the relevant statutory framework is one of the ‘salient features’ which must be considered by a court when determining whether a public authority or public official owes a duty of care to a particular person or class of people. The ‘salient features’ were enumerated by McHugh J in the decision of the High Court in Crimmins.[37]Prior to identifying the matters relevant to the question of whether a public authority or official would owe a duty of care to a person or class of people when exercising their statutory functions, McHugh J noted the long-standing aversion on the part of the courts to imposing affirmative common law duties of care upon public authorities, stating that:

Common law courts have long been cautious in imposing affirmative common law duties of care on statutory authorities. Public authorities are often charged with responsibility for a number of statutory objects and given an array of powers to accomplish them. Performing their functions with limited budgetary resources often requires the making of difficult policy choices and discretionary judgments. Negligence law is often an inapposite vehicle for examining those choices and judgments. Situations which might call for the imposition of a duty of care where a private individual was concerned may not call for one where a statutory authority is involved. This does not mean that statutory authorities are above the law. But it does mean that there may be special factors applicable to a statutory authority which negative a duty of care that a private individual would owe in apparently similar circumstances. In many cases involving routine events, the statutory authority will be in no different position from ordinary citizens. But where the authority is alleged to have failed to exercise a power or function, more difficult questions arise.[38]

[37](1999) 200 CLR 1.

[38]Ibid [79].

Justice McHugh then went on to comment upon the proposition (which he did not accept) that the determination of a duty of care should depend upon public law principles, stating that:

Public law concepts of duty and private law notions of duty are informed by differing rationales. On the current state of the authorities, the negligent exercise of a statutory power is not immune from liability simply because it was within power, nor is it actionable in negligence simply because it is ultra vires.[39]

[39]Ibid [82].

His Honour then went on to discuss the ‘policy/operational’ distinction which had in the past been the main basis for determining whether a duty of care should be imposed upon public authorities. He noted that the distinction had some support amongst the Australian authorities, but preferred to adopt what is now described in the authorities as the ‘salient features analysis’, as follows:

In my opinion, therefore, in a novel case where a plaintiff alleges that a statutory authority owed him or her a common law duty of care and breached that duty by failing to exercise a statutory power, the issue of duty should be determined by the following questions:
1.Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.
2.By reason of the defendant's statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.
3.Was the plaintiff or were the plaintiff's interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.
4.Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.
5.Would such a duty impose liability with respect to the defendant's exercise of “core policy-making” or “quasi-legislative” functions? If yes, then there is no duty.
6.Are there any other supervening reasons in policy to deny the existence of a duty of care (e.g., the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty.

If the first four questions are answered in the affirmative, and the last two in the negative, it would ordinarily be correct in principle to impose a duty of care on the statutory authority.[40]

[40]Ibid [92] – [94].

The reasoning in Crimmins[41] has been followed and applied in subsequent High Court decisions and decisions of other Australian appellate courts.[42]
[41]Ibid.
[42]See, for example, Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, where it appears that the term ‘salient features’ was first used to describe the factors which must be taken into account when determining the question of when a public authority owes a duty of care in novel cases.

One of the salient features identified in Crimmins[43] was whether there were supervening policy reasons which would deny the existence of a duty of care. A critically relevant policy consideration is whether the imposition of a duty would be consistent with the statutory scheme governing the functions and powers exercised by the person or authority said to have owed a duty of care to an individual or a class of people.
[43](1999) 200 CLR 1.

The leading authority on the question of whether the imposition of a duty of care upon a public body is inconsistent with the relevant statutory scheme is the decision of the High Court in Sullivan v Moody.[44]
[44](2001) 207 CLR 562.

In Sullivan v Moody[45], the High Court was considering an appeal from the Full Court of the Supreme Court of South Australia, which had rejected the contention that the child protection authorities owed a duty of care to parents of children which had been the subject of allegations of sexual abuse, that is, a duty to parents who were being investigated for having abused their children.
[45]Ibid.

The High Court dismissed the appeal, with the Court finding that ‘a duty the kind alleged should not be found if that duty would not be incompatible with other duties which the respondents owed’.[46] Further, the Court stated:

The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.[47]

[46]Ibid [55].

[47]Ibid [60].

The Court also referred, with apparent approval, to the finding of the court below that the relevant legislative scheme was critical to determining whether a duty of care would be imposed. In the case before them, the High Court agreed that mere foreseeability of harm was insufficient to found a duty of care, and imposing a duty on the child protection authorities and their investigators to avoid causing harm to parents accused of sexual abuse would be incompatible with the statutory duties imposed upon them to protect children and to investigate and report upon suspected child abuse.

That the critical issue in determining whether a duty of care is owed by a public authority in the exercise of its powers and functions is whether the imposition of a duty of care is consistent with the statutory framework within which the authority operates was reinforced by the recent decision of the High Court in Electricity Networks Corporation v Herridge Parties[48] (‘ENC’), which was delivered while judgment in the current application was reserved. The Court commenced its discussion of the relevant principles as follows (omitting footnotes):
[48][2022] HCA 37 (“ENC”).

There is no freestanding common law rule which fixes whether and when a common law duty of care upon a statutory authority might, or might not, arise. Statutory authorities take many forms and have different functions and powers. It is wrong to treat all statutory authorities alike.
The starting point for analysis of any common law duty of care that might be owed by any statutory authority must always be the particular statutory framework within which the statutory authority operates:
“The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.”

And in formulating a common law duty, it is important to keep in mind the distinction between the existence and content of the duty (who owes the duty, whom do they owe the duty to, and what kind of risks of harm must they take reasonable care to minimise or avoid?) and questions of breach (what were the reasonable precautions required in the circumstances, and did the person discharge the duty?).
The two propositions – that there is no freestanding common law rule which fixes whether and when a common law duty of care upon a statutory authority might, or might not, arise, and that the starting point for the analysis of any such duty is the terms, scope and purpose of the applicable statutory framework – require first that the functions of the statutory authority are identified and, second, that the statutory powers that the statutory authority in fact did exercise in performance of those functions (as well as those which it could have exercised but did not) are identified.[49]

[49]Ibid [19]-[21].

Accordingly, while I shall consider each of the salient features identified by McHugh J in Crimmins[50] in the following section of these reasons, the statement of the High Court in ENC[51] extracted above makes it clear that primary among these factors is the question of whether the imposition of a duty of care is consistent with the relevant statutory scheme.
[50](1999) 200 CLR 1.
[51][2022] HCA 37.

Applying the salient features analysis in the current case, and taking the plaintiff’s case at its highest and best, I make the following observations regarding the factors enumerated by McHugh J in Crimmins:[52]
[52](1999) 200 CLR 1.

First, given that it seems that the defendant was aware of the particular family circumstances of the plaintiff, and of the particular harm caused to the plaintiff by the pandemic restrictions, including the suspension of contact visits, it is arguable that it was reasonably foreseeable by the defendant that the EMD refusal might cause harm to the plaintiff. This factor weighs in favour of the existence of a duty of care.

Secondly, while I accept that there is scope for debate regarding whether the defendant (as opposed to the Secretary) had assumed obligations towards or had effective control over the defendant, it seems to me to be inappropriate to determine that question on a summary basis. I doubt that in all cases a person exercising powers and functions delegated by the Secretary can be absolved from any responsibility for the consequences of the exercise of those powers by asserting that the Secretary was the real wrongdoer, but in any event, it is difficult to reach a concluded view on that question in the context of the current application. There is no doubt that the defendant had the power to determine the EMD applications, and that the fate of the EMD applications had material consequences for the plaintiff. This factor weighs in favour of the existence of a duty of care.

Thirdly, as a prisoner, the plaintiff was subject to the control of the prison authorities, and had no real ability to modify the pandemic restrictions or ameliorate the consequences of the pandemic restrictions. I note that in the judicial review proceeding, Niall JA accepted that the burden of the pandemic restrictions may weigh more heavily on the incarcerated population.[53] This factor weighs in favour of the existence of a duty of care.
[53][2022] VSC 37 [66].

Fourthly, I am prepared to accept, at least for present purposes, that it is at least arguable that the defendant knew, or ought to have known that any refusal to grant EMDs would cause harm to the plaintiff. While there is insufficient information before me to make a positive finding to that effect, it is not possible to make a contrary finding in the context of an application for summary judgment.

Fifthly, when considering the EMD applications, the defendant was not exercising “core policy making” or “quasi-legislative” functions. She was exercising a discretionary power in response to individual applications for EMDs. Accordingly, if it is the case that the “policy/operational” distinction remains valid, then the decisions of the defendant to grant or refuse to grant EMDs to individuals would almost certainly fall on the operational side of the ledger. This factor weighs in favour of there being a duty of care.

Accordingly, upon undertaking the salient features analysis based upon a view of the facts most favourable to the plaintiff, there is support for a view that the first five factors support the existence of a duty of care owed by the defendant to the plaintiff when considering the EMD applications. Put more neutrally, it seems to me that, based upon the material before me, it could not be said that the plaintiff’s assertions that the defendant owed him a duty of care are so hopeless as to justify summary judgment being granted in favour of the defendant, at least based upon the first five salient features.

However, the main difficulty facing the plaintiff is that the proposition that imposing a duty of care upon the defendant is consistent with, or at least not inconsistent with, the legislative framework governing the grant of EMDs has, in my view, no real prospects of success, and I do not consider that there would be further evidence likely to be adduced at a trial which would cause me to alter that view.

It is apparent from the decision of the High Court in Sullivan v Moody,[54] as reinforced by the Court’s recent statement in ENC,[55] that the primary consideration in any salient features analysis is the relevant statutory scheme. The reasoning of Niall JA in the judicial review proceeding makes it clear that the primary purpose of s 58E of the Act is to promote the orderly management of prisons during times of emergency or crisis. While the effect of providing EMDs from the point of view of individual prisoners may be compensatory or ameliorative, the real purpose of s 58E is to promote good behaviour in prisons during times of stress by holding out to prisoners the “carrot” of the possible reduction in the period of incarceration through the grant of EMDs.
[54](2001) 207 CLR 562.
[55][2022] HCA 37.

If the primary purpose of the grant of EMDs was to compensate prisoners for the hardship suffered by them during emergencies, then, as Niall JA observed in his reasons in the judicial review proceeding, there would be no reason to restrict the availability of EMDs to prisoners found to have been of good behaviour, as prisoners who had behaved poorly would suffer from the impact of the pandemic restrictions in just the same way as prisoners who had been of good behaviour.

It seems to me that imposing a duty of care upon the defendant to avoid causing harm to an applicant for EMDs is inconsistent with:

(a) the purpose of s 58E of the Act;

(b) the discretionary nature of the power conferred by s 58E of the Act;

(c) the “backward looking” nature of s 58E of the Act;

(d) the numerous decisions of this Court and courts in other Australian jurisdictions to the effect that the Parliament, by the Act, intended that correctional authorities should have a wide degree of latitude when administering prisons.

In my view, not only am I bound by the findings of Niall JA in the judicial review proceeding regarding the purpose of s 58E of the Act (being to promote good order in prisons during times of crisis), it seems to me that it is unlikely in the extreme that another judge of this Court would depart from the conclusions reached by Niall JA on the basis that they are plainly wrong. Further, while I accept that it might be open to the defendant to take into account the individual circumstances and vulnerabilities of prisoners when determining when to grant EMDs, I accept that there are no doubt sound reasons for those considerations being secondary to other considerations, such as the degree to which the emergency circumstances departed from the norm, and the desirability of treating prisoners of good behaviour consistently. The objective of s 58E, and the broad discretion conferred upon the defendant, is inconsistent with imposing a duty of care upon the defendant which, practically speaking, would necessitate an inquiry into the impact of emergency situations, including but not limited to the pandemic restrictions, upon the health and well-being of each and every applicant for EMDs, having regard to the particular circumstances and vulnerabilities of each applicant. In my view, such a duty is inconsistent with, and has the potential to conflict with, the primary objective of maintaining good order within prisons, and with the objective, as expressed in the second reading speech, of ensuring that sentences of imprisonment imposed by the courts are actually served by prisoners.

That the primary purpose of s 58E of the Act is to promote good order in prisons during times of crisis or stress is in my view bolstered not only by the reasons of Niall JA in the judicial review proceeding, but also the terms of s 58E(3) of the Act.

Section 58E(3) of the Act provides as follows:

(3)This section does not apply to any prisoner (whether or not the prisoner was involved in any way) in respect of or in relation to—
(a)any event (including any emergency or riot) at the Metropolitan Remand Centre, Victoria, on 30 June 2015 and 1 July 2015 and the security response to that event; or
(b)any emergency, riot or other significant security incident that is caused or contributed to by that prisoner or any other prisoner.

Section 58E(3)(a) concerns a specific incident in the past, and therefore is not relevant here, save that it reinforces my conclusion that the primary objective of s 58E is to promote good order in prisons. Section 58E(3)(b) is clearly concerned with promoting good order in prisons, by imposing a form of collective punishment upon (or, perhaps, more accurately, a withholding of reward from) prisoners involved in riots or other disorderly behaviour. If the primary purpose of the grant of EMDs was to compensate prisoners of good behaviour for disruption or detriment, having regard to their individual circumstances, there would be no sound policy reason for distinguishing between emergencies or disturbances caused by the conduct of other prisoners, and those arising from other causes or circumstances.

Further, I agree with the defendant’s submission to the effect that the “backward-looking” nature of the power in s 58E of the Act is inconsistent with the imposition of a duty to avoid future harm being caused to the plaintiff. In the proposed amended statement of claim, the plaintiff seeks damages for the entire period under which he was subject to the pandemic restrictions, the effects of which he says are ongoing. However, the EMD refusal was determined on 7 October 2020, towards the end of the second wave of the pandemic emergency. At that time, neither the plaintiff, the defendant, or even the health authorities could have predicted how long the temporary provisions would remain in force, or how long pandemic restrictions would remain in place. The practical inability of the defendant to foresee what would be required to remedy any ongoing harm to the plaintiff also tells against the existence of a duty to take steps to prevent that harm taking place.

Finally, while the particular role and functions of prison administrators do not of themselves preclude either judicial review of their decisions or the imposition of a duty of care upon them, the courts have exhibited a long standing reluctance to interfere with the lawful decisions of prison administrators. As observed in Fyfe v South Australia:[56]

The limits of the court’s jurisdiction must be carefully observed and this court must avoid becoming enmeshed in the merits of particular decisions. The management of prisons is a particularly difficult and sensitive task, involving complex practical considerations and security implications with which the court is not familiar and which it is difficult for the court to understand or fully appreciate from the comfort of court surroundings.[57]

[56][2000] SASC 84, referred to with approval by Rush J in Knight v Governor, Port Phillip Prison [2014] VSC 10 [21].

[57]Ibid [18].

Further, in Knight v Deputy Commissioner, Corrections Victoria:[58]

There are sound constitutional and practical reasons why this Court cannot substitute its own view for the view of Corrections Victoria. Under our Constitution, it is the executive – acting through Corrections Victoria – rather than the judiciary that administers the laws relating to prisoners. As a result, Corrections Victoria is far more knowledgeable and experienced than this Court can ever be about issues concerning the management of prisoners – including education, welfare and security – that inform the framework within which decisions affecting prisoners are made.[59]

[58][2012] VSC 506 (see also [2012] VSCA 315).

[59]Ibid [50].

Accordingly, while this is not conclusive of the matter, it seems to me that the deference shown by the courts to prison authorities when carrying out their duties and functions also tells against the imposition of a duty of care upon a prison administrator when lawfully exercising a broad discretion conferred upon them by Parliament for the purpose of promoting good order in prisons.

Finally, for completeness, in considering whether it was appropriate to determine the question of whether the defendant could arguably owe the plaintiff a duty of care on a summary basis, I had regard to the decision of John Dixon J in Smith v State of Victoria[60] (‘Smith’). In Smith,[61] his Honour dismissed an application for summary judgment by the defendant, which was sued in relation to an alleged failure by certain police officers to fulfil their duty of care to a victim of domestic violence. The defendant sought summary judgment on the basis that no duty of care could arise at law.
[60](2018) 56 VR 332 (‘Smith’).
[61]Ibid.

Justice John Dixon rejected the application on the basis that:

(a) the question of whether a duty of care was owed by the police officers to the plaintiff and her children in the circumstances in which the relationship between the plaintiff and the police officers arose must be determined on the facts established at trial;[62]
[62]Ibid [171].

(b) the proper approach to identify whether a duty of care exists requires an analysis of the facts bearing on the relationship between the plaintiff and the alleged tortfeasor by reference to the salient features or facts affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury;[63]
[63]Ibid [91].

(c) the New South Wales Court of Appeal had held that, on reasonably similar facts, the existence of a duty of care was at least arguable;[64] and

(d) he concluded as follows:

Australian common law has not affirmatively recognised that a police officer can never owe a duty of care. Whether a police officer does owe a duty of care in the terms identified in the amended statement of claim must necessarily be determined on a close analysis of the facts bearing on the relationship between the plaintiffs and the putative tortfeasor for whom the defendant is responsible. I accept that there are many cases in which it has been held that police and the police force as a whole do not owe a duty of care to a plaintiff in the particular circumstances of those cases. In no case has a court determined that no duty of care was owed in circumstances that demonstrate the degree of proximity between the plaintiffs and the police that is likely to be demonstrated on the evidence in this case at trial and in the legislative and policy framework that prevails in respect of domestic violence at the relevant time.[65]

[64]Ibid [172], referring to NSW v Spearpoint [2009] NSWCA 233.

[65]Ibid [170].

However, Smith[66] is not authority for the proposition that the question of whether a novel duty of care could arguably exist should never be determined on a summary basis. Indeed, in Sullivan v Moody,[67] the High Court decided that it was not open for the appellant to plead the existence of a duty of care. Rather, in Smith,[68] his Honour was concerned not to shut out the plaintiff from bringing her claims when the statutory framework and underlying policy considerations were focused upon the protection of women and children from family violence, notwithstanding the traditional reluctance of the courts to impose a duty of care upon police to protect individual members of the community from the harm caused by violent crime.
[66](2018) 56 VR 832.
[67](2001) 207 CLR 562.
[68](2018) 56 VR 832.

However, in the current case, the imposition of a duty of care upon the defendant with respect to the grant of EMDs is inconsistent with the purpose and policy considerations underpinning s 58E of the Act, as identified in the judicial review proceeding, and I do not consider there is a real prospect that a trial judge would take a different view of the purpose of s 58E of the Act from that formed by Niall JA in the judicial review proceeding.

For all of the foregoing reasons, the plaintiff’s claims in the proceeding, as articulated in the proposed amended statement of claim, have no real prospects of success, and should be dismissed. I shall hear further from the parties on the question of costs.

Citations

Donohue v Westin [2022] VSC 794

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[2022] VSC 794

19 December 2022