Islam v Director General of the Department of Justice and Community Safety Directorate
[2017] ACTSC 293
•9 October 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Islam v Director General of the Department of Justice and Community Safety Directorate |
Citation: | [2017] ACTSC 293 |
Hearing Date: | 12 September 2017 |
DecisionDate: | 9 October 2017 |
Before: | McWilliam AsJ |
Decision: | 1. The originating applications in proceedings SC 248 of 2017 and SC 249 of 2017 are struck out. 2. The plaintiff is granted leave in each of proceedings SC 248 of 2017 and SC 249 of 2017 to file a further amended originating process, within 28 days of the making of these orders. |
Catchwords: | PRACTICE AND PROCEDURE – Court Procedures Rules 2006 (ACT) r 40 – application to set aside originating process – where application ought be made before first return date – where notices of intention to respond have been filed – whether proceedings otherwise disclose no reasonable cause of action – whether proceedings frivolous or vexatious |
Legislation Cited: | Court Procedures Act 2004 (ACT) s 5A Corrections Act 1986 (Vic) s 47 Human Rights Amendment Bill 2007 (ACT) |
Cases Cited: | Bolas v Calvary Health Care Limited [2016] ACTSC 58 Certain Children v Minister for Families and Children & Ors (No 2) [2017] VSC 251 Ucak v Avante Developments Pty Ltd [2007] NSWSC 367 |
Texts Cited: | Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 6 December 2007 |
Parties: | I Islam (Plaintiff) Director General, Department of Justice and Community Safety Directorate (Defendant) |
Representation: | Counsel Self-represented (Plaintiff) N Tarbet (Defendant) |
| Solicitors Self-represented (Plaintiff) ACT Government Solicitor (Defendant) | |
File Number(s): | SC 248 of 2017 and SC 249 of 2017 |
McWilliam AsJ:
Mr Islam, the plaintiff in each proceeding, is currently a prisoner at the Alexander Maconochie Centre (AMC). His complaints relate to his detention at the AMC.
The originating application filed 5 July 2017 and amended on 4 August 2017 in proceedings SC 248 of 2017 relates to food ordered by the plaintiff. He seeks an order that the defendant ‘take reasonable steps to’ either ‘implement the current food ordering system’ or ‘implement a competent food ordering system’. He further specifically complains about failing to receive a vegetarian roll on 2 July 2017, and seeks a replacement vegetarian roll. For ease of reference, I will describe this proceeding as the ‘Food Claim’.
The originating application filed 10 July 2017 and amended on 4 August 2017 in proceedings SC 249 of 2017 concerns the printing practices at the AMC, and in particular, the charge to inmates of 20 cents a page for printing education-related material. The plaintiff seeks an order that the defendant cease attempting to charge inmates 20 cents a page for printing education-related material. Again, for ease of reference, this proceeding will be referred to as the ‘Printing Claim’.
On 24 July 2017, the defendant filed unconditional notices of intention to respond in both proceedings.
The present applications
On 5 September 2017, the defendant filed the applications presently before the Court, seeking to set aside the amended originating applications in each proceeding. In written submissions filed for the defendant, the basis for seeking such an order is said to be r 40(1)(e) of the Court Procedure Rules 2006 (ACT) (Rules).
The applications before the Court do not seek summary dismissal, summary judgment or that the pleadings be struck out, as an alternative to setting aside the originating processes, although a general catch-all form of relief was sought in terms of ‘any other orders that the Court considers appropriate’.
On the face of the applications, the only issue might appear to be whether the amended originating applications ought be set aside. For reasons set out below, I have resolved that issue against the defendant. As a consequence, a further issue arises as to whether the Court should of its own motion dispose of either or both proceedings on a summary basis, principally for failure to disclose a reasonable cause of action.
I have reached the conclusion that although the grounds set out in aid of the Food Claim and the Printing Claim do not disclose a reasonable cause of action and ought be struck out, the substance of the complaints by the plaintiff as developed before the Court in oral argument raise a reasonably arguable case. Accordingly, the proceedings ought not be dismissed, but rather leave to re-plead ought be granted.
Whether the amended originating applications ought be set aside
At the heart of the application, pursuant to r 40 of the Rules, was the submission that there was no relevant legal right or entitlement that had been affected and that was capable of being enforced by the Supreme Court.
The defendant submitted that the principles relevant to a strike out under r 425 of the Rules apply to an application to set aside an amended originating application under r 40(1)(e) of the Rules. The oral and written argument was directed to establishing firstly, that no reasonable cause of action was disclosed and secondly, in the case of the charges for printing, that the proceedings were the subject of either res judicata or issue estoppel.
The defendant relied on authorities such as Global Partners Fund Ltd v Babcock & Brown Ltd (In Liq) [2010] NSWSC 270; 267 ALR 144 at [74]-[77] and Ucak v Avante Developments Pty Ltd [2007] NSWSC 367 at [3]-[8], and the oft-cited decisions of Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125.
Rule 40(1) relevantly provides:
(1) The court may –
(a) declare that a proceedings for which an originating process has been issued has not, for want of jurisdiction, been properly started; or
...
(e) set aside an originating process; or
...
(j) make an order declining to exercise jurisdiction in a proceeding; or
(k) make any other order it considers appropriate.
Although the defendant only relied on r 40(1)(e) of the Rules, part of the context of the provision has been set out above to emphasise that the rule is directed to the Court’s jurisdiction. So understood, it is not a case of simply applying legal principles developed in the context of summary disposal applications under r 425 of the Rules as the applicable test for whether an order ought be made under r 40 of the Rules.
In the context of what appears to have been a similar submission as to incorporating the test relevant to the striking out of a pleading under r 425 of the Rules, in Islam v Director General of the Justice and Community Safety Directorate (No 2) [2015] ACTSC 314 (Islam) then Associate Justice Mossop stated (at [34]) that it was not self-evident that the power in r 40 of the Rules was the appropriate power to rely upon.
Had it been necessary to consider the applicable legal principles arising under r 40, I would have rejected the submissions of the defendant. None of the cases cited by the defendant, and referred to above, are authority for the proposition for which it contended. Rule 40 is notably to be found in Part 2 of the Rules, concerning how civil proceedings are started. The setting aside of an originating process following a challenge to the Court’s jurisdiction may be a preliminary procedure, but it does not appear to me to be a summary procedure.
It may well be that in the circumstances of a particular case, the lack of disclosure of a reasonable cause of action has the consequence that a court is not satisfied that it has jurisdiction to hear the proceedings. That is a different position from the Court approaching the setting aside of an originating process under r 40 on a summary basis. However, it is unnecessary to consider further the applicable legal principles because of the following procedural difficulties for the defendant.
First, the defendant has filed unconditional notices of intention to respond in each proceeding.
Rule 111 of the Rules relevantly provides:
(1) If a defendant proposes to challenge the court’s jurisdiction or to assert an irregularity, the defendant must file a conditional notice of intention to respond.
(2) If a defendant files an unconditional notice of intention to respond or defence, the defendant is taken to have submitted to the court’s jurisdiction, and waived any irregularity in the proceeding or defect in service of the originating process.
(3) If a defendant files a conditional notice of intention to respond, the defendant must apply for an order under rule 40 ...not later than 28 days after the day the notice is filed.
(4) If the defendant does not apply for an order under rule 40 before the end of the 28-day period, ... the conditional notice of intention to respond becomes an unconditional notice of intention to respond.
...
The defendant does not appear to have appreciated the issue created by the filing of unconditional notices, as it was not addressed in either written or oral argument. Some assistance is provided by Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 163, where it was held that parties cannot by consent confer power upon the Court to make orders which the Court lacks power to make. The same reasoning would appear to apply to a waiver under r 111(2) of the Rules.
However, it is by no means clear that the waiver provided for by r 111 can be overcome simply by filing an application pursuant to r 40. That appears to run contrary to the express terms of the rule. Having not had the benefit of any argument on the point, it is not appropriate to embark upon a separate consideration of how the issue might have been resolved by first applying to withdraw the notices filed or other means.
A further hurdle for the defendant is r 6015 of the Rules, which relevantly provides:
An application for an order under rule 40... must be filed within the time mentioned in rule 102 ... for filing a notice of intention to respond to the originating process ... .
As each proceeding was commenced by originating application, the cross-reference to the time provided for by r 102 means that the challenge to jurisdiction should have been filed on or before the ‘return date’ for each originating application, being the date set by the Court (in accordance with the Dictionary to the Rules); in this case, 4 August 2017.
As stated above, the applications were filed a month later, on 5 September 2017. Accordingly, even if there were no unconditional notices of intention to respond filed, the applications are out of time under the Rules and no dispensation has been sought to extend time.
Again, this was not an issue addressed in either oral or written submissions. It was understandably not raised by the self-represented plaintiff. While the identification of procedural issues not expressly considered by either party might in some circumstances have the consequence of creating an obligation to raise the point with the parties in order to afford procedural fairness, it need hardly be said that the requirements of procedural fairness mould to the circumstances of the case. In this case, the issue that has arisen is the operation of the Rules, which result in the applications being incompetent. The defendant is a legally represented party who must be taken to be aware of the Rules of this Court. It is not incumbent upon the Court to put the defendant on notice that the Rules will apply to applications filed by it, before proceeding to determine those applications.
The Court has a wide power to dispense with rules, both under r 1401 as to directions that may be made and in its inherent power to control and supervise proceedings, which may be exercised if it appears that their operation results in the triumph of form over substance.
However, the issues above are not (to my mind) mere matters of form, capable of remedy by dispensing with the rules in question. There is insufficient material before the Court on the applications to determine whether the Court should (of its own volition) grant leave to the defendant to withdraw the notices filed and instead direct that conditional notices of intention to respond be entered. Further, there is no evidence explaining why the applications pursuant to r 40 were filed out of time such as to enable the Court to consider extending the time to bring the application, had a dispensation been sought.
Accordingly, although I do not consider that what appears to have been an oversight on the part of the defendant means that it has now irretrievably lost the ability to challenge the Court’s jurisdiction in each proceeding, it is not appropriate on the material before the Court to attempt to circumvent the otherwise clear operation of the Rules, with the consequence that the applications as they presently stand must be dismissed.
Alternative grounds for dismissing the proceedings
Under r 425, the Court may ‘at any stage of a proceeding’ order that a pleading be struck out if (relevantly) it discloses no reasonable cause of action, is frivolous or vexatious, or is otherwise an abuse of the process of the Court. Such words are wide enough to include the Court acting without a formal application before it.
I have proceeded on that basis for the following reasons. First, the rule permitting the Court to make an order without a formal application is in addition to the Court’s inherent power to prevent an abuse of process, consistent with the approach taken by Mossop AsJ in Islam at [34].
Second, the case before me was in fact substantively argued as if it was an application under r 425. The parties have thus each had an opportunity to address the issue.
Third, s 5A of the Court Procedures Act 2004 (ACT) provides (emphasis added):
(1) The main purpose of the civil procedure provisions is to facilitate the just resolution of disputes –
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2) Without limiting subsection (1), the main purpose includes the following objectives:
(a) The just resolution of the real issues in civil proceedings;
(b) The efficient use of the judicial and administrative resources available for the purposes of the court;
...
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil procedure provisions must be interpreted and applied, and any power or duty imposed by them ... must be exercised or carried out, in the way that best promotes the main purpose.
...
Turning then to the principles applicable to the Court’s power to strike out a pleading under r 425, I respectfully adopt what has been set out in Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132; cited in McColley v Commonwealth [2012] ACTSC 154 at [7] (approved on appeal: McColley v Commonwealth of Australia [2014] ACTCA 21 at [31]); and further cited in Bolas v Calvary Health Care Limited [2016] ACTSC 58 at [1]. It suffices to note here that there is a very high threshold with a need for exceptional caution before a Court will strike out a pleading, including an originating process.
Proceedings SC 248 of 2017
The first consideration is whether any reasonable cause of action is disclosed. There are two complaints set out in the Food Claim. As developed by the plaintiff during oral argument, the first complaint is general, in that it concerns the management of the food requests of prisoners and whether the system is adequate and consistent with the Human Rights Act 2004 (ACT) (Human Rights Act). The second, more specific, complaint concerns one instance of the plaintiff not receiving his requested choice of a vegetarian roll.
On a summary basis, it is assumed that the plaintiff will substantiate his factual claim that the current system is inadequate. Although the plaintiff may have difficulty establishing that an imperfect system is an inadequate system (putting aside whether that would constitute any breach of any statute), and particularly if only the one instance is relied upon by the plaintiff, that will be a question of fact for determination at the hearing.
The plaintiff’s identification in the Food Claim of one instance where he has been affected by the system in place is sufficient for the Court to proceed on the basis that this complaint is not hypothetical. To the extent that the defendant sought to contend futility on the basis of subsequent remedy, that assertion was contested by the plaintiff and in any event, the Food Claim reaches further than the potentially isolated instance specified by the plaintiff. Accordingly, such an argument does not take the matter very far on a summary basis.
The plaintiff asserts his complaints constitute breaches of ss 14 and 19(1) of the Human Rights Act and give rise to a cause of action under s 40C of the Human Rights Act.
Section 14 is in the following terms:
(1) Everyone has the right to freedom of thought, conscience and religion. This right includes—
(a)the freedom to have or to adopt a religion or belief of his or her choice; and
(b)the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community and whether in public or private.
(2) No-one may be coerced in a way that would limit his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.
Section 19(1) is in the following terms:
Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
Although not referred to by the plaintiff, s 28 of the Human Rights Act is relevant to the issue under consideration. It provides:
(1) Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.
(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:
(a) the nature of the right affected;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relationship between the limitation and its purpose;
(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.
Section 40B is relevant to the claim under s 40C of the Human Rights Act. Section 40B(1) provides:
(1) It is unlawful for a public authority—
(a) to act in a way that is incompatible with a human right; or
(b) in making a decision, to fail to give proper consideration to a relevant human right.
Section 40C then relevantly provides:
(1) This section applies if a person—
(a)claims that a public authority has acted in contravention of section 40B; and
(b)alleges that the person is or would be a victim of the contravention.
(2) The person may—
(a)start a proceeding in the Supreme Court against the public authority; or
…
(3) A proceeding under subsection (2) (a) must be started not later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise.
(4) The Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages.
(5) This section does not affect—
(a)a right a person has (otherwise than because of this Act) to seek relief in relation to an act or decision of a public authority; or
(b)a right a person has to damages (apart from this section).
…
These sections combine to provide a statutory cause of action for breach by a public authority. That the defendant is a ‘public authority’ to which the Human Rights Act applies has not been put in issue by the defendant on this application.
However, the Food Claim as presently pleaded is insufficient to disclose an arguable claim for determination by the Court. The Food Claim does not specify what right is affected. Although it might be inferred (from exchanges with the plaintiff during the hearing) that the plaintiff is vegetarian by reason of either religion or belief, that is not set out, and the defendant’s requests for such detail have not been answered, due (as it transpired at the hearing) to a misunderstanding by the plaintiff.
The Food Claim also does not specify the conduct of the defendant that breached the right. The lack of a competent food ordering system is referred to, but there is insufficient detail to enable the defendant (or the Court) to understand the way in which the plaintiff complains the system is incompetent (or inadequate) to such a degree as to be inconsistent with the right alleged, or to found any other relief, such as a declaration pursuant to judicial review proceedings.
As to the relief sought, the implementation of a ‘competent’ system is a matter that may also require revisiting, although that of itself does not warrant striking out the Food Claim. This is because under the Human Rights Act, the Supreme Court’s power to grant such relief as it considers appropriate excluding damages on its face broadly permits orders or relief in the nature of mandamus. Whether the Court would so order is an entirely different question, the answer to which may alter depending on whether the claim is framed as a judicial review application or under statute.
For these reasons, I am satisfied that the lack of detail set out in the Food Claim warrants it being struck out for failing to disclose a reasonable cause of action.
Whether proceedings SC 248 of 2017 should be dismissed
The striking out of the Food Claim means the Court must consider whether the plaintiff’s complaints are capable of being pleaded so as to articulate a reasonable cause of action, under the Human Rights Act or otherwise.
The reluctance of the Courts to intervene by way of judicial review of day-to-day prison conditions is well-established, and may be traced back to Horwitz v Connor (1908) 6 CLR 38 and Flynn v The King (1949) 79 CLR 1 (Flynn) where Dixon J stated at 8 (citations omitted):
It is pointed out in the case of Horwitz v Connor that if prisoners could resort to legal remedies to enforce gaol regulations responsibility for the discipline and control of prisoners in gaol would be in some measure transferred to the courts administering justice.
It is generally not for the courts to interfere with the management, discipline and control of prisoners. In Kelleher v Commissioner, Dept of Corrective Services [1999] NSWSC 86, McInerney J was considering whether the Court had jurisdiction to review the denial of a right of an inmate to private medical treatment for removal of tattoos. His Honour stated at [11]:
The exercise of powers relating to prisoner classification and separation, the transfer from one part of a prison to another, transfers between prisons, conditions on visits or access to certain conditions or facilities such as education, recreation and supply of condoms have all been characterised as administrative and managerial in nature rather then punitive and judicial. Consequently, they have been held not to give rise to any right, interest or legitimate expectation enforceable by judicial review in the ordinary courts. For example, see Smith v Commissioner of Corrective Services (1978) 1 NSWLR 317; Walker v The Queen (1992) 60 A Crim R 463; Gray v The Queen (1990) 45 A Crim R 364; and Prisoners A-XXX inclusive (1935) 38 NSWLR 622.
His Honour discussed cases which suggested a more interventionist approach but ultimately found at [63] that the Court had no jurisdiction to intervene.
In K v Commissioner for Corrective Services [2017] NSWSC 311, Latham J was considering a prisoner’s leave entitlements. Her Honour stated at [31]:
The hurdle faced by the plaintiff in establishing this ground in the absence of any evidence supporting an inference of bad faith or improper purpose is reinforced by those authorities which caution against any interference by the courts in the administration of prisons and management of prisoners. The exercise of a discretion in relation to the leave entitlements of inmates is generally not susceptible to judicial review, in circumstances where there is no evidence that such decisions result from an abuse of power: see Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 at [39]; Clark v Commissioner for Corrective Services [2016] NSWCA 186 at [86] per Emmett AJA; Georgiou v Commissioner for Corrective Services [2016] NSWSC 1337 at [35].
However, Latham J was not dealing with the case before her on a summary basis. Moreover, in Clark v Commissioner for Corrective Services [2016] NSWCA 186, which was cited by her Honour, Basten JA referred to the above extract in Flynn and went on to state at [7]-[11] (references omitted, emphasis added):
[7] Over the last 40 years, social and judicial attitudes have changed. Both administrative efficiency and transparency have resulted in the regulation of prisons being defined in far greater detail, as may readily be seen by comparing the length and content of the Prisons Act 1952 (NSW) and the regulations thereunder, with the Crimes (Administration of Sentences) Act 1999 (NSW) (“Administration Act”) and the regulations under that Act.
[8] Nor was it only at the level of detail that the regulation of prisons and prisoners changed. The Administration Act reflects the principle that the punishment was being sent to gaol; offenders were not sent to gaol to be punished. Thus, s 2A of the Administration Act, setting out the objects of the Act, state the first object as being “to ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment”. Although s 2A(3) provides that nothing in the section “can be taken into account in any civil proceedings”, it can properly be used to identify the underlying philosophy of the legislation.
[9] The principled basis underlying the modern approach to judicial review of decisions affecting prisoners was discussed by Lord Reed speaking for the UK Supreme Court in Osborn v The Parole Board. (Osborn concerned the circumstances in which the common law accorded a prisoner a right to an oral hearing in relation to key decisions regarding release.)
[10] Further, there has been a notable expansion in the scope of judicial review of administrative action. Limits on review are now defined by reference to the scope of the discretion given to the decision-maker, rather than by declaring particular areas of administrative action to be beyond judicial control. The focus is on the scope and exercise of the statutory power, rather than identifying the legal “right” which has allegedly been infringed. There is also an expectation that decisions which may infringe on rights or interests be justifiable.
[11] Bearing those factors in mind, the availability of judicial review of the conditions of custody must flow from a careful analysis of the statutory and regulatory scheme to which prisoners are subject.
The NSW authorities are in the context of judicial review proceedings, without a statutory regime that includes any specific human rights statute. They are relevant to the present issue of whether any arguable cause of action might be pleaded by the plaintiff, because they illustrate that it is no longer certain that the mere fact a complaint relates to prison conditions excludes the matter from intervention by the courts on judicial review.
In Moran v Secretary to the Department of Justice and Regulation & Ors [2015] VSC 593; 48 VR 119, in a jurisdiction where the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) is in force, McDonald J had cause to consider s 47(1)(c) of the Corrections Act 1986 (Vic) which provides that every prisoner has:
The right to be provided with special dietary food where the Governor is satisfied that such food is necessary for medical reasons or on account of the prisoner’s religious beliefs or because the prisoner is a vegetarian.
McDonald J stated at [9]:
...The existence of a right under s 47(1)(c) could underpin an order requiring the defendants to provide food in accordance with Ms Moran’s special dietary requirements.
It might be argued by analogy that the provisions of the Human Rights Act underpin the same relief. In my view, the availability of such an argument takes the Food Claim outside one that is appropriate for summary dismissal.
More recently in Certain Children v Minister for Families and Children & Ors (No 2) [2017] VSC 251, a case concerning a decision to transfer children to an area in a prison rather than a separate youth justice facility, John Dixon J referred to s 38 of the Charter, which is in relevantly the same terms as s 40B of the Human Rights Act, and stated at [226] (citations omitted):
It is possible for a public authority to make a decision that will interfere with rights in a way that would be demonstrably justifiable, even though the decision-maker did not give any, or any adequate, consideration to the human rights issues that were involved. In that situation, the public authority will nevertheless have acted unlawfully, because rights will not have been properly considered as part of the decision-making process. This is a matter of real practical significance even if the decision that was made involved a justifiable interference with rights, because if rights had been properly considered a different decision might have been made. If this were not so, the obligation to give proper consideration would be negated such that its utility would be diminished or void. The requirement for a public authority to give proper consideration to human rights must be given work to do.
In R v Forsyth [2013] ACTSC 179; 281 FLR 62, a case also in a different factual context, Penfold J referred (at [224]) to the Explanatory Statement for the Human Rights Amendment Bill 2007 (ACT) where the Attorney-General in the Second Reading Speech for that Bill (Legislative Assembly, 6 December 2007, 4030) said:
In line with the recommendation of the 12-month review and the Victorian charter, damages will not be available for a breach of the Human Rights Act. Rather, a finding of a breach could, for example, be a basis for setting aside an administrative decision or for a declaration that the public authority’s actions breached [or] were not in compliance with human rights.
The above authorities are in no way intended to constitute an excursus of the point. However, I draw from them that the plaintiff is not presently shut out from arguing that his conditions of imprisonment, and in particular the food system presently being implemented at the AMC, in some way breaches either the Human Rights Act or is otherwise amenable to relief by way of judicial review. He may not ultimately succeed either at law or on the facts, but he is entitled to come before the Supreme Court and put the case.
Accordingly, I would grant leave to the plaintiff to file a further amended originating application, having regard to the reasons above.
Proceedings 249 of 2017
The same reasoning largely applies to the Printing Claim. The primary relief sought is:
That the defendant be ordered to take reasonable steps to cease attempting to charge inmates twenty cents a page for printing education-related material or; alternatively if a charge is to be imposed then an amount of free printing per inmate should be set and records of printed material per inmate need to be kept by the Defendant.
In addition to ss 14 and 19 of the Human Rights Act, the plaintiff relies upon s 27A, which provides relevantly (the remainder of the section applying to children):
...
(2) Everyone has the right to have access to further education and vocational and continuing training.
(3) These rights are limited to the following immediately realisable aspects:
(a) everyone is entitled to enjoy these rights without discrimination;
...
Again, it may be inferred from the reference to that section that the plaintiff considers his access to education is somehow limited by the processes being implemented by the defendant. However, as drafted, the Printing Claim does not sufficiently disclose the right, or the nature of the limit or breach said to infringe the Human Rights Act or to found other relief, such as the setting aside of a decision in the context of judicial review proceedings.
Accordingly, the Printing Claim ought also be struck out. As to whether leave should be given to file a further amended originating application, the defendant confirmed during the hearing of this matter that the policy with regard to printing is possibly inconsistently applied, with whether a charge is levied apparently left to the discretion of the relevant personnel.
In Islam v Director-General, Justice and Community Safety Directorate [2015] ACTCA 60, the plaintiff argued a similar claim with regard to a charge for photocopying. Walmsley AJ dealt with the claim on a substantive basis. His Honour found at [31] and then at [35]:
As to the sending and receiving of photocopies, I accept [the evidence of the General Manager, Custodial Operations, ACT Corrective Services at the AMC]... that each prisoner receives a free allowance of faxes received and sent but that there are limits. The evidence does not show precisely how many pages of faxes Mr Islam may need to send or receive before his appeal is heard, but I consider that if the Director-General charges 20 cents per page, it is unlikely he will incur more than $10 or so for faxes. I consider he can afford to pay for that himself.
...
I consider the attitude of the AMC and its staff to be reasonable in the circumstances. I do not consider he has made out a case for relief under the Human Rights Act. I am not persuaded his right under s 22(2)(b) has been infringed.
As with the Food Claim, it may be that in a substantive hearing, the policy of the defendant is found to be consistent with the Human Rights Act, and that it is further found to have been implemented, in the case of the plaintiff, with regard to the Human Rights Act, as required by s 40B.
However it is not possible to draw such a conclusion on a summary basis. At the very least, some evidence as to what the policy was would need to be before the Court. There is thus a triable issue is capable of being brought before the Court, and accordingly I would grant leave to file a further amended originating application in this proceeding.
For completeness, I will deal briefly with the defendant’s argument that the plaintiff is prevented from pursuing the Printing Claim on the basis of res judicata or issue estoppel. The argument was based on the extracts of the judgment delivered by Walmsley AJ on 16 December 2015, set out above. The complaints the subject of the Printing Claim might be similar, and may therefore meet a similar fate to the findings of Walmsley AJ. However, they concern facts that only arose two years after the previous decision, a potentially different policy with different discretionary application, and a different section of the Human Rights Act specified from that under consideration on the facts before Walmsley AJ.
Further, the case as ultimately put may be separately argued on a judicial review basis. Such a claim was not before, and therefore not considered by, Walmsley AJ. Even if it had been, on the authorities set out above, this is an area where the law may have developed since December 2015, when the previous issues were decided.
Accordingly, I do not consider that any question of Anshun or issue estoppel arises, let alone whether it warrants dismissal of the proceedings on a summary basis.
Costs
Costs are in the discretion of the Court. The defendant seeks its costs of each application.
Although the defendant has achieved a degree of success in having each of the amended originating applications struck out, that was not the relief it sought in either of the applications, which in any event I have dismissed.
The plaintiff is self-represented and does not appear to have paid any disbursements in order to respond to the defendant’s applications.
Accordingly, this is a case where there should be no order as to costs.
Orders
The orders of the Court are as follows:
1. The originating applications in proceedings SC 248 of 2017 and SC 249 of 2017 are struck out.
2. The plaintiff is granted leave in each of proceedings SC 248 of 2017 and SC 249 of 2017 to file a further amended originating process, within 28 days of the making of these orders.
| I certify that the preceding seventy-five [75] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: 9 October 2017 |
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