Garrett v The State of South Australia - [2012] SADC 167

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
GARRETT v THE STATE OF SOUTH AUSTRALIA
[2012] SADC 167
Judgment of His Honour Judge Cuthbertson
4 December 2012
CRIMINAL LAW - ADMINISTRATION OF PRISONS - CIVIL LIABILITY
TORTS - MISFEASANCE IN PUBLIC OFFICE
Administrative Law - Removal of Computer from prisoner's cell and charging for storage
Minor Civil Review
Extension of time to file application.
The applicant claims damages for alleged unlawful removal of his personal computer from his cell and the storage of it by the prison authorities at his expense.
Held: Extension of time to file notice of review allowed.
Claim allowed in part - removal of computer from cell not unlawful - Authorities entitled to charge for storage of prisoner's property. No evidence that Minister has fixed a charge for storage of goods on behalf of prisoners.
Correctional Services Act 1982 s 33A; Correctional Services Regulations 2001 reg 7, referred to.
Fox v Percy (2003) 214 CLR 118; Collins v Paget (2004) 234 LSJS 341; Trindale Cain Lunney, The Law of Torts in Australia 4th Edition p 330, considered.

GARRETT v THE STATE OF SOUTH AUSTRALIA
[2012] SADC 167
The Issues

At all relevant times the applicant was a serving prisoner at the Mobilong prison. The defendant is the State of South Australia for the Department for Correctional Services.
By a claim, dated 8 November 2010, the applicant claims against the defendant for damages for the removal of his computer from his prison cell and payment of monies deducted from his account by the Department of Correctional Services for storage of it.
On Friday 17 August 2007 officers of the Department at Mobilong prison took the applicant’s computer and certain accessories from his cell. Hitherto the applicant had been permitted to have a computer and various other things associated therewith in his cell.
The defendant kept the computer in storage. As the applicant failed to nominate anyone to take possession of it, the storage fees continued to mount. The defendant deducted monies from the applicant’s General Prison Account, without the applicant’s authority, to pay the storage fees.
As at the time of pleading the applicant claimed the sum of $2,400 which includes a filing fee of $116 being the amount claimed by the applicant to have been wrongly deducted from his General Prison Account by the defendant. The storage fee continues to mount.
The Magistrate found against the applicant. The applicant’s grounds for review of the decision of the learned Magistrate as set out in the application dated 12 July 2012 are essentially as follows:
1That the Magistrate failed to give weight to certain sections of the Correctional Services Act, namely s 44(2)(b) and (d).
2That the taking of the computer was double punishment under Article 14 of the International Covenant on Civil and Political Rights.
3That the Magistrate erred in reliance on the case of Collins v Paget.[1]
4That the Magistrate failed to determine that the use of the phrase “on admission” in Regulation 7 of the Correctional Services Regulations 2001 meant that various provisions of the Act could not have applied to the applicant who had been in custody for some 16 years since September 1995 and therefore could not reasonably be described as a prisoner “on admission”.
5That the Magistrate did not give sufficient weight to practices of the Department over a period of time.
6That an application to issue a subpoena to the CEO of the Department of Correctional Services was refused.
[1] (2004) 234 LSJS 341
The applicant also seeks an extension of time in which to appeal.
Nature of the Review
A review under s 38 of the Magistrates Court Act requires the reviewing Court to pay due regard and give due weight to the findings of the Court hearing the matter as the Magistrate has had the advantage of actually seeing and hearing the witnesses give evidence.
As the High Court has said in Fox v Percy:
Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence. In part, it was to prevent and cure the miscarriages of justice that can arise from such mistakes that, in the nineteenth century, the general facility of appeal was introduced in England, and later in its colonies …
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect''[2]
[2] (2003) 214 CLR 118; P126 & 127
Misfeasance in Public Office
The applicant’s primary cause of action is in the tort of Misfeasance in Public Office. No issue has been taken by the defendant that it is not responsible for the acts of its employees if guilty of misfeasance.
The tort of misfeasance in public office provides a remedy for an applicant who suffers pure economic loss as a result of a public official acting in excess of his or her authority in circumstances where the lack of the authority is known to the public official.
The gist of the tort, then, is the abuse of power by a public official: as Brennan J noted in Mengel, liability is imposed where public officers act in ways that are inconsistent with an honest attempt to perform their function[3] ….
….
There are two ways in which the requisite state of mind of the defendant can be established. The first is by proving that the defendant acted with the intention of harming the plaintiff. In such a case it is not necessary that the defendant act unlawfully.   … authorities in Australia and England seem to assume that as long as P is “targeted” by D’s conduct this will be sufficient to establish the required state of mind. Such an approach is justifiable in terms of the rationale for the tort: the use of the power to “target” the applicant, whether as a primary or secondary purpose, is an abuse of power and must necessarily mean the power is exercised unlawfully.
The second “state of mind” sufficient for the tort is where D has knowledge that his actions are unlawful and that they will probably cause loss to P. It is important to recognise that it is the knowledge that there is no authority, rather than the actual lack of authority, that is the basis of liability. [4]
[3]    Trindade Cain Lunney, The Law of Torts in Australia 4th Edition, Para 6.10.1
[4]    Trindade Cain Lunney, The Law of Torts in Australia 4th Edition, Para 6.10.2
There can be little doubt that an officer of the Department of Correctional Services is a “public officer”. The question then is whether the applicant has proved that the removal of the computer and the charging of storage fees was illegal and known to be so by the defendant through its officers or whether the applicant was targeted in the sense that the removal of the computer and the charging of the storage fees was simply to target and harm him and without any justification in the administration of the prison.
The power to determine what a prisoner may or may not have in his cell is given by s 83 of the Correctional Services Act 1982 which permits the CE to make rules relating to the management of a correctional institution.
It would be a ridiculous situation if prison authorities did not have power to control the items that a prisoner can keep in his cell.
The learned Magistrate in his reasons determined that the Department had the legal power to remove the applicant’s computer from his cell and to store it.
So much is in accordance with the judgment of the former Chief Justice in Collins v Paget.
The applicant argues that too much reliance was placed on Collins v Paget. This however was a case directly in point and the Magistrate was obliged to follow the decision of the Chief Justice of the Supreme Court.
Further, the Magistrate was entitled to find that the applicant was not singled out for special treatment nor that the authorities were acting illegally; let alone intentionally illegally.
No real challenge has been made to the finding that the Magistrate was well entitled to make on the evidence presented. In particular, there is no evidence to establish that officers of the Department were motivated by issues involving a previous trial before Mr Johansen SM.
Accordingly, the learned Magistrate was correct in finding that the Department’s officers had not been guilty of misfeasance.
Collins v Paget also deals with the issue of the International Covenant of Civil and Political Rights.
Charging of Costs for Storage
The Magistrate relied on Regulation 7 of the Correctional Services Regulations 2001 as justification for the charging of costs.
Regulation 7(2) does not, in my view, justify the charging of costs incurred in storing a prisoner’s property, as it is confined to dealing with prisoner’s property “on admission”.
The applicant was “not on admission”. He had been in custody for many years.
I have also considered the operation of section 33A of the Correctional Services Act.
I am of the view that section 33A would permit the Minister to fix charges for the storage of goods on behalf of prisoners. (See s 33A(7)).
There is no evidence before the court, however that he has fixed any charge for the storage of goods on behalf of prisoners, save in relation to Regulation 7, which is not applicable to the situation of a prisoner who has been in custody for some time and is not a prisoner “on admission”.
Indeed, the respondent seeks to justify costs on the basis of the amount charged to the Department by a private company. In my view, it can only justify the quantum of storage costs by reference to charges fixed by the Minister.
The “associated costs” referred to in paragraph 8 of Managers Rules MR-03 does not relate, in my view, to costs associated with storage. The “associated costs” can only be costs associated with “a courier to deliver the property” and not storage costs.
It follows that in my view, the Magistrate has erred in holding that the respondent was entitled to deduct storage fees at a rate charged by a private storage company and to deduct these fees from the prisoner’s General Account beyond an eight week period and not in excess of a maximum rate of $7.00 per week.[5]
[5] Manager’s Rules MR-03 Rule 8
Other Issues
Further, there is no evidence that indicates that Mr Peter Severin nor Minister Koutsantonis could have given evidence to assist the applicant’s case and the failure to permit subpoena to issue to have them called to give evidence was a decision correctly made.
Conclusion
I make the following orders:
1.The time for issue of proceedings extended to the day on which proceedings were filed.
2.Appeal allowed in part. Appellant to have as damages amount deducted from his account as storage costs less $56.00 being eight weeks storage @ $7.00 per week.
3.No order as to costs.