Kheir v Robertson

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 00481

ALI KHEIR	Plaintiff
v
NEIL ROBERTSON (as Delegate of the Secretary to the Department of Justice and Regulation)	First Defendant
COMMISSIONER FOR CORRECTIONS	Second Defendant
SECRETARY TO THE DEPARTMENT OF JUSTICE AND REGULATION	Third Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	10, 16 and 31 May 2019
DATE OF JUDGMENT:	26 June 2019
CASE MAY BE CITED AS:	Kheir v Robertson & Ors
MEDIUM NEUTRAL CITATION:	[2019] VSC 422

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ADMINISTRATIVE LAW – Application for judicial review of a decision of the delegate of the Secretary to the Department of Justice and Regulation refusing an application for emergency management days – Whether plaintiff denied procedural fairness – Whether decision of delegate tainted by apprehended bias – Whether delegate gave inadequate reasons – Whether delegate failed to take relevant considerations into account – Whether delegate took irrelevant considerations into account – Whether decision unlawfully delayed – Whether rights under Charter breached – Application dismissed – Charter of Human Rights and Responsibilities Act 2006 ss 21, 22, 39 – Corrections Act 1986 ss 6, 8, 58E – Supreme Court (General Civil Procedure) Rules 2015 Order 56.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P G Nash QC with Ms J Swiney	Access Law
For the First Defendant	Mr L Brown	Victorian Government Solicitor’s Office
For the Second Defendant	Ms S M C Fitzgerald	Victorian Government Solicitor’s Office
For the Third Defendant	No appearance

HIS HONOUR:

On 27 June 2013, the plaintiff was convicted and sentenced to an aggregate of nine years and six months’ imprisonment with a non-parole period of seven years for aggravated burglary, armed robbery, recklessly causing injury and blackmail. The plaintiff’s earliest eligible parole date is 21 August 2019.

From the commencement of his sentence until 2 July 2015, the plaintiff was imprisoned at the Metropolitan Remand Centre (‘MRC’). On 30 June 2015 and 1 July 2015, a riot occurred at the MRC. The plaintiff was transferred to Barwon Prison on 2 July 2015, where he was held in a high security unit and confined to his cell for long periods each day. The plaintiff remained there until his transfer on 11 May 2017 to Port Phillip Prison, where he is held in a mainstream unit.

The plaintiff was charged with riot and sabotage on 22 December 2015. Detective Leading Senior Constable Glen Hatton (‘informant’) filed the charge. At the committal mention on 13 to 15 February 2017, the charge of sabotage was withdrawn and, on 10 August 2017, the prosecution discontinued the charge of riot against the plaintiff.

On 24 August 2017, the plaintiff applied for emergency management days (‘EMDs’) to reduce his non-parole period and sentence pursuant to s 58E of the Corrections Act1986 (‘Corrections Act’) (‘s 58E application’). The length of a non-parole period or, if a non-parole period has not been fixed, the length of a sentence of imprisonment may be reduced by, in most cases, up to four days for each day on which the emergency existed.[1] Section 58E provides:
[1]Corrections Regulations 2009 (Vic) reg 78.

58E Emergency management days
(1) 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.
(2) Subsection (1) applies to all sentences of imprisonment, including any imposed for murder, irrespective of whether the sentences were imposed before or after the commencement of this section.

Section 58E confers a discretion on the Secretary or their delegate[2] to reduce a person’s sentence if satisfied of three preconditions:[3]
[2]Corrections Act 1986 (Vic) s 8.
[3]Kheir v Secretary to the Department of Justice and Regulation [2018] VSC 222, [26] (T Forrest J).

(a) the prisoner has been of good behaviour,

(b) while suffering disruption or deprivation,

(c) during an emergency existing in the prison.

On 15 September 2017, the then Commissioner for Corrections, acting as the Secretary’s delegate, made a decision not to grant the plaintiff’s application. By originating motion filed on 14 November 2017, the plaintiff sought judicial review of that decision. On 11 May 2018, T Forrest J quashed the Commissioner’s decision and ordered, inter alia, that:[4]

1. The appeal be allowed.
2.The s 58E application be remitted to a delegate of the Secretary of the Department of Justice and Regulation who, if possible, has had no previous involvement with that application.

[4]Ibid.

On 20 June 2018, the plaintiff’s solicitors emailed a bundle of documents to Ms Debra Coombs of the Victorian Government Solicitor’s Office (‘VGSO’), who had acted as the solicitor for the defendants in the proceeding before T Forrest J.[5] Ms Coombs acknowledged receipt and referred the documents to Corrections Victoria.
[5]Affidavit of Gabriel Kuek affirmed 6 February 2019, [20], [26]–[28].

By late September 2018, no delegation or decision had been made. On 10 October 2018, the plaintiff initiated a proceeding by originating motion seeking judicial review of the Secretary’s failure to decide or appoint a delegate to decide the plaintiff’s s 58E application. On 23 October 2018, the Secretary delegated the decision to the first defendant (‘delegate’). Thereafter, the plaintiff withdrew his application. Richards J awarded costs in favour of the plaintiff.[6]
[6]Kheir v Secretary to the Department of Justice and Regulation [2019] VSC 76.

On 20 December 2018, the delegate made a decision refusing the plaintiff’s application for EMDs. The delegate provided reasons. He accepted that there had been an emergency existing in the prison and that the plaintiff had suffered disruption or deprivation, but he was not satisfied that the plaintiff met the requirement for good behaviour during the emergency.[7]
[7]Exhibit GK-13 to the affidavit of Gabriel Kuek affirmed 6 February 2019.

By amended originating motion filed on 27 February 2019, the plaintiff seeks judicial review of the delegate’s decision and the following relief:

A.An order of, or in the nature of, Certiorari quashing or setting aside the decision and or determination made on 20 December 2018 by the first defendant, Mr. Neil Robertson (‘the delegate’), to reject the plaintiff’s application for emergency management days in relation to the emergency arising from the MRC riots of 30 June 2015 and 1 July 2015 and its aftermath (‘the impugned decision’).
B.An Order of, or in the nature of, Mandamus requiring the third defendant (‘the Secretary’) to appoint a different delegate to consider and determine the plaintiff’s application for emergency management days.
BA.A declaration that the second and third defendants’ conduct unlawfully delayed consideration and determination of the plaintiff’s application, for a reduction of his sentence or non-parole period in relation to the emergency arising from the MRC riots of 30 June 2015 and 1 July 2015 and their aftermath, pursuant to s.58E of the Corrections Act 1986.
C.A declaration that the second defendant (‘Corrections Victoria’) and/or the Secretary breached the plaintiff’s rights under Sections 21(1), 21(3) and 22(1) of the Charter of Human Rights and Responsibilities Act 2006.

D. Costs of, and incidental to, the proceedings.
E.Such further or other Orders as this honourable Court deems appropriate.

I shall address the grounds relied upon by the plaintiff in turn.

Ground 1: The plaintiff was denied the right to fair notice and the right to be heard

Whether principles of procedural fairness and natural justice apply to decisions relating to prison administration and management is a vexed question.[8] The parties proceeded on the assumption that the s 58E decision is subject to these principles.[9] Absent submissions to the contrary, I will proceed on that basis.
[8]See Anderson v Pavic [2005] VSCA 244, [32]–[33] (Nettle JA); Moran v Secretary to the Department of Justice and Regulation (2015) 48 VR 119, 126–7 [26]–[27]. Cf Knight v Money [2015] VSC 105, [20] (Cavanough J); AS v Secretary to the Department of Justice and Regulation [2017] VSC 310, [87], [91], [106] (Dixon J).
[9]First defendant, ‘Outline of Submissions’, 9 April 2019, [8]. No submission to the contrary was advanced by the second defendant.

The plaintiff submits that he was ‘denied procedural fairness and to fair notice and the opportunity to be heard’.[10] The plaintiff relies on:
[10]Plaintiff, ‘Amended Originating Motion’, 27 February 2019, [1].

(a) the defendants’ failure to provide the plaintiff’s solicitors with ‘an identical set of ALL the materials that [the delegate] would be informed by when arriving at his decision’;[11]

(b) the delegate’s failure to point to the passages that he considered relevant;[12]

(c) the defendants’ refusal and/or failure to provide the plaintiff’s solicitors with the communications between the delegate vis-à-vis Corrections Victoria and the VGSO.[13]

[11]Plaintiff, ‘Submissions’, 28 March 2019, [55] (emphasis in original).

[12]Ibid.

[13]Ibid [42]–[47].

The delegate or his assistant communicated with Corrections Victoria, the VGSO and the informant to obtain materials, which they provided. Between 26 November 2018 and 29 November 2018, the plaintiff’s solicitors made five requests to the VGSO and/or the delegate and his assistant to obtain the materials.[14]
[14]Affidavit of Gabriel Kuek affirmed 6 February 2019, [55], [59].

The plaintiff’s solicitors’ first request was precipitated by a letter to them from the delegate on 15 November 2018, which listed the materials that the delegate had received from Corrections Victoria and the VGSO.[15] After receiving a copy of Corrections Victoria’s submissions, the plaintiff’s solicitors requested ‘the whole of the basal materials’ upon which those submissions were based.[16] On 28 November 2018, Ms Coombs sent the plaintiff’s solicitors a letter by email, listing the witnesses whose full statements the delegate had requested from the VGSO.[17] The letter concluded:

Should you require a copy of those statements, please advise us.[18]

[15]Ibid [49].

[16]Ibid [53].

[17]Ibid [58].

[18]Ibid [58].

The plaintiff’s solicitors replied to Ms Coombs on 28 November 2018 requesting, inter alia, a letter from her to the delegate dated 7 November 2018.[19] The plaintiff’s solicitors did not advise Ms Coombs that they required a copy of the full statements of the witnesses listed in that letter. On 29 November 2018, Ms Coombs provided a copy of the letter to the plaintiff’s solicitors.[20] The letter listed a number of documents which had been enclosed to the letter sent to the delegate, but were not enclosed to the copy of the letter provided to the plaintiff’s solicitors.[21]
[19]Ibid [59].
[20]Ibid [60]–[61].
[21]Ibid [61].

The plaintiff’s solicitors wrote to Ms Coombs on 29 November 2018, copying the delegate’s assistant, and requested to be provided with:

(a)a copy of all the documents you attached to your letter of 7 November 2018 to Mr. Robertson,
(b)a copy of ALL other correspondence and materials between the VGSO and your clients on the one hand and Mr. Robertson and Ms. Wills on the other, and –
(c)a copy of all correspondence, notes, memoranda, etc between the VGSO and your clients on the one hand and the informant Mr. Hatton on the other.[22]

Ms Coombs did not reply to that letter because she was of the opinion that the request to provide documents previously forwarded to the plaintiff’s solicitors and the prosecution brief documents, which neither she nor Corrections Victoria had access to, was ‘oppressive and unreasonable.’[23]

[22]Ibid [62].

[23]Affidavit of Debra Judith Coombs sworn 19 March 2019, [44].

The delegate replied to the plaintiff’s solicitors on the afternoon of 29 November 2018 and stated, inter alia:

[A]t the risk of repetition, and for the sake of completeness and transparency, following is a consolidated list of the material I have been provided (which include the exhibits and annexures to those primary documents) as set out in the letters dated 15, 19 and 22 November 2018:
…

I have also asked for, and received from, the VGSO copies of the following witness statements:
…

Again, for the sake of completeness, I note that I also have the following witness statements, which were the exhibits annexed to your Affirmed Affidavit dated 10 November 2017 (Document 1):
…

I had assumed that these statements were taken from the brief of evidence on the riot charge against your client and, therefore, already in your possession. If that assumption is incorrect, I note that Ms Coombs, VGSO, has offered to provide copies of these statements to you.
In addition, Ms Coombs of the VGSO has provided me:
33.A document enclosed with her letter to you dated 28 November 2018 headed ‘Statements’ evidently prepared by the informant Detective leading Senior Constable Hatton.

I note that that document contains extracts from witness statements of the following prison officers:
…

I do not have copies of these witness statements and have requested them from the VGSO. If you do not have them, please let me know and I will ask that the VGSO also sends you copies.[24]

[24]Affidavit of Gabriel Kuek affirmed 6 February 2019, [64].

On 7 December 2018, Ms Coombs copied the plaintiff’s solicitors to an email to the delegate attaching the four full witness statements sought by the delegate.[25] On 10 December 2018, the plaintiff’s solicitors provided supplementary submissions and materials to the delegate.[26]
[25]Ibid [69].
[26]Ibid [70].

The plaintiff submits that the delegate’s failure to provide him with a complete set of materials and/or for the delegate to point to relevant passages in those materials meant that he was unable to know how the delegate might use the materials in arriving at a decision or make submissions in respect thereof.[27]
[27]Plaintiff, ‘Submissions’, 28 March 2019, [59].

In the current proceeding, Mr Nash QC, who appeared with Ms Swiney for the plaintiff, acknowledged that the plaintiff’s solicitors were in possession of the witnesses’ statements prior to the delegate’s decision.[28] Nevertheless, he submitted that, because the plaintiff’s solicitors were denied the opportunity to check that the statements in their possession were identical to the statements in the delegate’s possession, he was denied procedural fairness.[29] I reject that submission.
[28]Transcript of proceeding (10 May 2019), 34.03–34.04.
[29]Ibid 34.06–34.07; Plaintiff, ‘Reply Submissions’, 12 April 2019, [6], [9].

Procedural fairness generally requires that a person is ‘entitled to know the case sought to be made against him and to be given an opportunity of replying to it’.[30] A decision-maker must inform a person affected by a decision of information that is ‘credible, relevant and significant’,[31] meaning ‘information that cannot be dismissed from further consideration by the decision-maker before making the decision.’[32] In Hala v Minister for Justice,[33] the Full Court of the Federal Court stated:

Procedural fairness does not generally require that a decision-maker disclose information the substance of which is already known to the person who may be affected by the decision: Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at [27], [30] (Rares and Jagot JJ); [Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88] at [27]–[29]. Nor does it require a decision-maker to give an affected person the chance to comment on every nuance of what the decision-maker is considering, in the same way as judges are not required to produce draft reasons for judgment to the parties for their comments: Brock v Minister for Home Affairs [2011] FCAFC 167 (“Brock”) at [22] (Downes J, Yates J agreeing at [30], Katzmann J at [31]).[34]

[30]Kioa v West (1985) 159 CLR 550, 582 (Mason J).

[31]Ibid 629 (Brennan J); Chief Commissioner of Police v Nikolic [2016] VSCA 248, [30] (Ginnane J).

[32]Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, 96 [17] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon JJ).

[33](2015) 145 ALD 552, 564 [66] (Dowsett, Tracey and Katzmann JJ).

[34]Ibid 564 [66] (Dowsett, Tracey and Katzmann JJ). See also Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591–2 (Northrop, Miles and French JJ).

The plaintiff knew the substance of what was put against him by the second and third defendants. His solicitors were provided with a complete list of the materials that the delegate proposed to rely on, including a list of the witnesses whose statements had been provided to the delegate. The statements had been provided to the plaintiff’s solicitors in relation to the charges against the plaintiff and the 2017 committal mention in respect thereof. The plaintiff’s solicitors had acted for him in respect of the first decision and his successful challenge to that decision before T Forrest J, where a significant proportion of the same statements were relied on. The list of materials provided to the plaintiff’s solicitors was sufficient to enable the plaintiff and his legal representatives to identify and know the substance of the information before the delegate.

The plaintiff submits that procedural fairness required the delegate to point to the specific passages in the witnesses’ statements that he considered relevant.[35] He relies on Freeman v Brear[36] in support of this submission.[37] I reject this submission. The delegate was not required to afford the plaintiff the opportunity to comment on each piece of evidence he might rely on.[38] In Freeman v Brear, particulars of two charges of assault were not provided in circumstances where the plaintiff had all of the evidence. Phillips J held that there is a distinction between particulars sufficient to identify the charge and the evidence led in support of the charge.[39] Particulars are not required as of course but according to the justice of the case.[40] As the plaintiff faced two charges of assault upon the same person, separated by five to 10 minutes in time and 500 metres in distance, particulars were required to distinguish the charges.[41] Freeman v Brear is an illustration of the principle that it is the substance of an allegation that must be known, according to the particular case and depending on what information is known or available to the party.[42]
[35]Plaintiff, ‘Submissions’, 28 March 2019, [55], [59]; Plaintiff, ‘Reply Submissions’, 12 April 2019, [2], [4], [7]–[9].
[36](Supreme Court of Victoria, Phillips J, 5 November 1992).
[37]Plaintiff, ‘Reply Submissions’, 12 April 2019, [7].
[38]Hala v Minister for Justice (2015) 145 ALD 552, 564 [66] (Dowsett, Tracey and Katzmann JJ); Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591–2 (Northrop, Miles and French JJ).
[39]Freeman v Brear (Supreme Court of Victoria, Phillips J, 5 November 1992) 22–3.
[40]Ibid 17–19.
[41]Ibid 19–20, 23.
[42]Ibid 17, quoting Cook v Deluise (Supreme Court of Victoria, Gobbo J, 26 January 1990).

The reasoning of Phillips J in Freeman v Brear has no application to the present case. The plaintiff has not alleged that there were two discrete emergencies in respect of which he was entitled to EMDs. The plaintiff was not subject to a charge for which particulars could be provided. Rather, he was the subject of a decision in respect of an application that he made for the grant of EMDs. To the extent that there were ‘particulars’ relevant to the plaintiff’s application, these were to be provided by him to the delegate.

The plaintiff’s solicitors were provided with the submissions of Corrections Victoria, which identified passages in particular witnesses’ statements that, in its submission, militated against a finding that the plaintiff was of good behaviour during the emergency.[43] The plaintiff’s solicitors had instructed counsel at the committal mention, where the witnesses were cross-examined on the contents of their statements.[44] The plaintiff’s solicitors acted for him in relation to the first s 58E decision and the appeal in respect thereof. In regards to the delegate’s decision, they provided initial submissions and materials as well as supplementary submissions and materials in response to those provided by Corrections Victoria. The plaintiff was placed squarely on notice of the material relied upon by the second and third defendants in support of their contention that he was not of good behaviour during the riot.
[43]Exhibit GK-10 to the affidavit of Gabriel Kuek affirmed 6 February 2019.
[44]Transcript of proceeding (16 May 2019), 183.02.

The plaintiff also submits that he was denied procedural fairness by the refusal of the defendants to provide the communications between the delegate and the VGSO and Corrections Victoria in respect of his s 58E application. On 29 November 2018, the delegate responded to a request for these communications from the plaintiff’s solicitors:

My communications with Corrections Victoria and the Victorian Government Solicitor’s Office (VGSO) as its lawyers have been confined to obtaining material relevant to determining your client’s application.
In that context, I do not consider any useful purpose is served by providing you copies of the various communications you seek (beyond the instrument of delegation).[45]

On 30 November 2018, at a mention before Judicial Registrar Clayton, counsel for the defendants stated that her clients would ‘firmly resist’ providing the materials and documents that the plaintiff sought from the VGSO and the delegate.[46]

[45]Affidavit of Gabriel Kuek affirmed 6 February 2019, [64].

[46]Ibid [65]–[66].

The communications referred to were exhibited to an affidavit subsequently filed in the proceeding.[47] They relate to procedural matters and the obtaining of information in respect of the plaintiff’s s 58E application. The delegate informed the plaintiff’s solicitors of the materials that he had received and proposed to rely on for his decision. Procedural fairness did not require that the defendants disclose communications which had no bearing upon the delegate’s substantive decision with respect to the s 58E application.
[47]Affidavit of Debra Judith Coombs sworn 19 March 2019.

If the above conclusions are incorrect, it does not follow that the denial of procedural fairness constitutes jurisdictional error. To do so, the error must be material. ‘A breach is material to a decision only if compliance could realistically have resulted in a different decision.’[48] The plaintiff bears the onus of establishing that, had his solicitors been provided with a complete set of materials or communications, or had the delegate pointed to the passages that he considered relevant, it could realistically have resulted in a different decision.[49] The plaintiff has not shown how he was deprived of the opportunity to give evidence or place submissions before the delegate. The statements in the delegate’s possession were identical to those in the possession of the plaintiff’s solicitors. The plaintiff’s solicitors pointed to particular passages of witnesses’ statements that they considered favourable and/or unfavourable and made submissions in respect thereof before the delegate. The plaintiff has not discharged the onus of showing that any denial of procedural fairness was material.
[48]Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252, 263 [45] (Bell, Gageler and Keane JJ). See also Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780, 788 [29]–[31] (Kiefel CJ, Gageler and Keane JJ).
[49]Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252, 263 [46] (Bell, Gageler and Keane JJ).

The delegate’s failure to take steps to obtain a transcript of the committal mention

Mr Nash submitted that the failure of the delegate to obtain or attempt to obtain a transcript or recording of the committal mention on 13 to 15 February 2017 constituted a denial of procedural fairness.[50]
[50]Transcript of proceeding (10 May 2019), 30.12–30.16; Transcript of proceeding (16 May 2019), 190.05–195.09.

The plaintiff’s s 58E application was made on 20 June 2018. The submissions attached to the application invited the delegate to obtain a copy of the transcript of the committal mention.[51] A supplementary submission sent to the delegate on 10 December 2018 included the following submission:

If, for any legitimate reason, the delegate decides not to adopt and give full effect to the DPP’s conclusion, it is incumbent upon the delegate to decide the matter himself by obtaining and perusing the transcripts of the committal hearing and examining the veracity of the witnesses whose statements were not tested at committal hearing. In conducting this exercise the delegate should accord Mr. Kheir natural justice.[52]

[51]Exhibit GK-4 to the affidavit of Gabriel Kuek affirmed 6 February 2019, [35].

[52]Exhibit GK-11 to the affidavit of Gabriel Kuek affirmed 6 February 2019, [39].

I raised with Mr Nash the question of whether the transcript of the committal mention was in existence during the period from the delegate’s appointment on 23 October 2018 until his decision on 20 December 2018. I granted the plaintiff leave to file an affidavit addressing this question of whether the transcript was in existence. If the transcript was not in existence, this would bear upon the question of whether the delegate’s failure to obtain the transcript could constitute a denial of procedural fairness.

The plaintiff’s solicitors obtained the transcript from the Office of Public Prosecutions (‘OPP’) on 17 May 2019.[53] An affidavit of Mr Gabriel Kuek quoted an email from Ms Van Den Akker of the OPP, stating, ‘The OPP was provided with the committal transcript on 7 March 2017.’[54] The affidavit also quoted an email from Mr Kuek to Ms Van Den Akker, stating:
[53]Affidavit of Gabriel Kuek affirmed 20 May 2019, [6]–[7].
[54]Ibid [10].

You may recall exchanging correspondence with me on 25 and 30 October 2017 concerning Mr. Ali Kheir.
…
In the correspondence I sought provision of the transcripts of Mr. Kheir’s committal hearing on 13 February 2017 as well as with all materials relating to the decision to discontinue the prosecution, including the consideration of the witnesses’ testimony at the committal hearing.
You responded advising:
(a)depositions in this matter had not yet been prepared at the time when the Discontinuance was entered,
(b)application could be made to the VGRS for the release of the committal transcript,
(c)the prosecution was under no obligation to provide me with the materials sought in relation to the decision to discontinue the prosecution, and
(d)the prosecution would not provide the materials sought.[55]

[55]Ibid [5].

There is no evidence as to whether Mr Kuek acted on the advice he received from the OPP and applied to the Victorian Government Reporting Service for release of the committal transcript. The transcript existed on 7 March 2017.[56] However, it is not clear whether the delegate, as a non-party to the committal mention, could have obtained the transcript, had he sought to do so. Further, there is no evidence that the plaintiff’s solicitors explained to the delegate any steps they had taken to attempt to obtain the transcript and/or their inability to obtain the transcript themselves.[57]
[56]Transcript of proceeding (31 May 2019), 6.20–6.23.
[57]Ibid 27.25–28.10.

The plaintiff was not denied procedural fairness by reason of the delegate not obtaining the transcript. In Kheir v Secretary to the Department of Justice and Regulation,[58] T Forrest J held that s 58E does not require the delegate to undertake inquiries to uncover material beyond what is actually or constructively before him at the time of the decision.[59] I am bound to follow this conclusion unless I am satisfied that it is plainly wrong.[60] I am not so satisfied. To the contrary, his Honour’s conclusion is plainly correct.
[58][2018] VSC 222.
[59]Ibid [30]; Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458, 469 (Hill J, Gummow and O’Connor JJ agreeing).
[60]Holloway v Department of Human Services [2015] VSC 184, [1] and the cases cited therein; W E Pickering Nominees Pty Ltd v Pickering [2016] VSC 71, [91] (McMillan J); Bunting v Venville [1980] VR 633, 634 (Lush J); Mann v Paterson Constructions Pty Ltd [2018] VSCA 231, [97] (Kyrou, McLeish and Hargrave JJA); KR v BR [2018] VSCA 159, [59] (Osborn and Beach JJA).

In Enichem Anic Srl v Anti-Dumping Authority,[61] Hill J stated:

Decision-making is a function of the real world. A decision-maker is not bound to investigate each avenue that may be suggested to him by a party interested. Ultimately, a decision-maker must do the best on the material available after giving interested parties the right to be heard on the question.[62]

[61](1992) 39 FCR 458.

[62]Ibid 469 (Gummow and O’Connor JJ agreeing).

In Prasad v Minister for Immigration and Ethnic Affairs,[63] Wilcox J stated:

The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant’s case for him. It is not enough that the court find that the sounder course would have been to make inquiries.[64]

[63](1985) 6 FCR 155.

[64]Ibid 169–70. See also Abebe v Commonwealth (1999) 197 CLR 510, 576 [187] (Gummow and Hayne JJ).

In Minister for Immigration and Citizenship v SZIAI,[65] the High Court considered the ‘duty to inquire’ of the Refugee Review Tribunal (‘RRT’). The plurality held that the RRT may obtain such information it considers relevant and in that sense has an inquisitorial function, but this does not impose a general duty to inquire in addition to information provided by the applicant and otherwise.[66] In SZIAI, the RRT had made inquiries with a religious association that the respondent claimed to be a member of, which advised that certificates provided by the respondent were fake and forged. The plurality held that the RRT had not denied the respondent procedural fairness by failing to conduct its own inquiries in relation to the allegation of forgery.[67] Nothing indicated that further inquiries could have yielded a useful result, and the respondent’s solicitors had indicated the futility of further inquiry by admitting that there was nothing they could add beyond a bare denial.[68] The plurality criticised the term ‘duty to inquire’ on the basis that it directs consideration from the real question, whether the decision is vitiated by jurisdictional error.[69] The plurality further stated:

It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law.[70]

The plurality accepted that a failure to inquire may, in some circumstances, amount to a constructive failure to exercise jurisdiction or result in a decision affected in some other way that manifests jurisdictional error.[71]

[65](2009) 83 ALJR 1123.

[66]Ibid 1125 [1]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, 999 [43] (Gummow and Hayne JJ, Gleeson CJ agreeing).

[67]Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, 1129 [24] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[68]Ibid 1129 [26] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[69]Ibid 1129 [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[70]Ibid 1129 [24] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[71]Ibid 1129 [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

Heydon J concluded that the respondent and his solicitors were in at least as good a position as the RRT to contact the relevant persons and make appropriate inquiries.[72] His Honour held that it was not unreasonable for the RRT to proceed on the basis that, if any further evidence was to be provided, it would come from the respondent.[73]
[72]Ibid 1133 [52].
[73]Ibid 1133 [51]–[53] (Heydon J).

I agree with T Forrest J’s conclusion that s 58E does not require a delegate to undertake inquiries to uncover materials beyond what is actually or constructively before them at the time of the decision. The delegate was not subject to a duty to inquire. The plaintiff did not place the transcript before the delegate. The plaintiff’s solicitors were in as good a position as the delegate to obtain the transcript from the VGRS. Arguably, they were in a better position than the delegate to obtain the transcript because their client was a party to the committal mention. In the circumstances, it was reasonable for the delegate to rely on the material before him. The plaintiff was not denied procedural fairness by the delegate’s failure to take steps to obtain the transcript.

If this conclusion is wrong, I am not satisfied that the plaintiff was deprived of the possibility of a successful outcome by the delegate’s failure to obtain the transcript. Assuming in the plaintiff’s favour that the delegate could have obtained the transcript, the delegate had the statements of witnesses whose evidence was recorded in the transcript. Mr Nash submitted that the witnesses’ statements had been challenged and their evidence changed or was qualified in the course of the committal mention.[74]
[74]Transcript of proceeding (10 May 2019), 29.30–30.03.

The findings upon which the delegate based his conclusion that he was not satisfied that the plaintiff was of good behaviour were:

(d)Mr Kheir was in the yard in Area 3 when the fence between Areas 2 and 3 was breached and was part of the crowd encouraging those who broke through the fence;
(e)Mr Kheir was on the basketball court in Area 2 with a group of prisoners after the fence was breached and addressed the group with prisoner Moussa;
(f)Mr Kheir was among the group of prisoners that advanced on the Central Movement Control (CMC). He was at the front of the group and speaking to the group as a whole;
(g)Mr Kheir remained out of his cell and unit through most of the riot until his ‘surrender’; and
(h)Mr Kheir was with the prisoners that ‘surrendered’ at the fence line around midnight.[75]

[75]Exhibit GK-13 to the affidavit of Gabriel Kuek affirmed 6 February 2019, [37].

A precondition to the exercise of the discretion conferred by s 58E is a finding that an applicant was of good behaviour. In the present case, this required a finding by the delegate that the plaintiff was of good behaviour during the emergency constituted by the riot on 30 June 2015 and 1 July 2015, and at least its immediate aftermath. The question for determination by the delegate was not whether the plaintiff committed the offence of participating in a riot. Rather, the question was whether he was of good behaviour during the riot. Put another way, a finding that the plaintiff did not commit an offence does not necessarily correlate with a finding that the plaintiff was of good behaviour.

Evidence that the plaintiff remained quietly in his cell while other prisoners participated in a riot is one example of the type of evidence which could support a finding of good behaviour. There does not appear to be any issue that the plaintiff was in the vicinity of prisoners who were rioting. There was no evidence on behalf of the plaintiff that he was forced to join the crowd of prisoners against his will. Shortly stated, the plaintiff had the opportunity to place evidence before the delegate which could have supported a positive finding that he was of good behaviour, but did not do so.

I am not satisfied that, had the delegate taken steps to obtain the transcript and been able to obtain the transcript, this could realistically have resulted in a different decision. I have read the transcript of the committal mention. The transcript discloses that evidence of prison officers in respect of the delegate’s findings at (d), (e), (g) and (h) was not challenged in any meaningful sense. As to the finding at (f), there was evidence given at the committal mention that, when the plaintiff was speaking to the crowd of prisoners, he was attempting to dissuade them from advancing further upon Central Movement Control. The delegate accepted this. Having set out his findings of fact, including (d) to (h), the delegate stated:

Given these findings of fact, I am not satisfied that Mr Kheir was of good behaviour during the riot.
My conclusion is not undermined by the fact that there are reasonable grounds to conclude that when the group reached the gates to the CMC ([37(f)] above), Mr Kheir does appear to have attempted either to delay the crowd or turn it back.
While this attempt was unsuccessful, given the context of Mr Kheir’s other actions as outlined (and as illustrated by the prison officers’ witness statements), there is more than one possible interpretation of this act. I am not required to decide positively what was happening, but I do conclude that this one act, regardless of its motivation, does not necessarily characterise or explain the balance of Mr Kheir’s behaviour during the riot.[76]

[76]Exhibit GK-13 to the affidavit of Gabriel Kuek affirmed 6 February 2019, [38]–[40].

The transcript of the committal mention does not detract from the findings upon which the delegate based his conclusion that he was not satisfied that the plaintiff was of good behaviour. Further, had the transcript been obtained, this would not have altered the inadequacy of the material provided on behalf of the plaintiff. In particular, the plaintiff’s failure to provide evidence in relation to matters which could have supported a finding that he was of good behaviour.

Ground 2: Apprehended bias and/or partiality

The plaintiff submits that he was denied natural justice because the delegate’s decision was tainted by apprehended bias and/or partiality.[77] He submits that the delegate’s communications with the VGSO and Corrections Victoria without copying the plaintiff’s solicitors were ‘irregular and inappropriate’, and compromised the delegate’s independence.[78] The plaintiff submits that the communications include:
[77]Plaintiff, ‘Submissions’, 28 March 2019, [61]–[78].
[78]Ibid [62]–[65].

(a) Briefing of the delegate by Mr Rod Wise, the Deputy Commissioner for Corrections;

(b) ‘[U]nbalanced information gathering’ by the delegate from Corrections Victoria;

(c) The ‘provision of erroneous legal advice’ by Ms Coombs to the delegate;

(d) The provision of materials of Corrections Victoria to the delegate;

(e) Corrections Victoria seeking ‘assistance to avoid Mr. Kheir’s second judicial review proceeding behind heard’ and the delegate acquiescing;

(f) The delegate appearing to seek Corrections Victoria’s approval or agreement before communicating with the plaintiff’s solicitors.[79]

[79]Ibid [66].

The plaintiff submits that a reasonable bystander might reasonably form the view that the delegate might be influenced by his dealings with the informant, Corrections Victoria and/or the VGSO, and might not have arrived at his decision neutrally or impartially.[80] In particular, the plaintiff relies upon the refusal to disclose the communications to his solicitors,[81] and on the delegate’s assistant asking Ms Coombs whether she had a view about providing a copy of all other correspondence to the plaintiff, which the plaintiff submits was a matter entirely for the delegate.[82] The plaintiff relies upon the cumulative effect of the defendants’ conduct,[83] and the ‘cosy nature’ of the correspondence, from which a reasonable bystander might conclude the relationship was ‘quite different in kind from the relationship with Mr Kuek’.[84]
[80]Ibid [76].
[81]Ibid [70]–[77].
[82]Transcript of proceeding (10 May 2019), 20.02–20.07, 21.02–21.16.
[83]Ibid 21.14–21.15.
[84]Ibid 24.17–24.27.

Mr Nash submits that there was an ‘implied term in the previous decision [of T Forrest J] that there should be independence’ from Corrections Victoria and, because the order of T Forrest J was not complied with, the delegation was not effective.[85] I reject this submission, and any suggestion that the previous proceeding and order of T Forrest J lowered the threshold for a finding of apprehended bias. T Forrest J ordered that the decision be remitted to a delegate who, ‘if possible’, had ‘no previous involvement with that [s 58E] application.’ His Honour stated:

[T]he appointment of a wholly independent delegate is not statutorily possible. The Secretary’s scope to delegate is confined to ‘the Commissioner or to any other employee of the Department or to an officer within the meaning of Part 5 or Part 9 …’ It is impossible for the Secretary to delegate beyond the Department of Justice and Regulation will not be wholly independent.
In this case, it will be necessary for the remitted decision to be made by a delegate who is an officer or employee of the Department of Justice and Regulation within the meaning of s 8. Obviously, that person will not be ‘independent’ and will in fact be the Secretary’s delegate. It would be highly undesirable, however, for that person to have had any previous involvement in Mr Kheir’s s 58E application.[86]

[85]Ibid 22.28–24.06. Plaintiff, ‘Submissions’, 28 March 2019, [61].

[86]Kheir v Secretary to the Department of Justice and Regulation [2018] VSC 222, [40]–[41].

The test for apprehended bias is ‘whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits’.[87] In Isbester v Knox City Council,[88] the plurality stated:

The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made.
The principle governing cases of possible bias was said in Ebner to require two steps to be taken in its application. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an ‘interest’ in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in Jia Legeng, essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making.
It was observed in Ebner that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers. It was accepted that the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm. The content of the test for the decision in question may be different.
How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.[89]

[87]MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68, [82] (Bromberg, Farrell and Davies JJ), quoting ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30, [35] (Allsop CJ, Kenny and Griffiths JJ).

[88](2015) 255 CLR 135.

[89]Ibid 146 [20]–[23] (Kiefel, Bell, Keane and Nettle JJ). See also McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504, 507–8 [6]–[10] (Spigelman CJ).

The Secretary duly delegated the power under s 58E to the delegate, who had no previous involvement with the plaintiff’s s 58E application.[90] Corrections Victoria and the VGSO were cognisant of the need to appoint an independent delegate, insofar as was possible.[91]
[90]Affidavit of Gabriel Kuek affirmed 6 February 2019, [49].
[91]Affidavit of Debra Judith Coombs sworn 19 March 2019, [4]–[9].

The test for apprehended bias is one of real possibility, not of remote possibility nor of probability.[92] A court ‘will not lightly conclude’ that a decision-maker may reasonably be suspected of bias; ‘it must be “firmly established”’,[93] with any allegation ‘distinctly made and clearly proved.’[94] It is not sufficient that the reasonable bystander ‘has a vague sense of unease or disquiet’.[95]
[92]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345 [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[93]R v Lusink; Ex parte Shaw (1980) 32 ALR 47, 50 (Gibbs ACJ), quoting R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, 553–4 (Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ).
[94]Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 531 [69] (Gleeson CJ and Gummow J).
[95]Ibid 549 [135] (Kirby J); Reece v Webber (2011) 192 FCR 254, 270 [45] (Jacobson, Flick and Reeves JJ).

The fair-minded observer is taken to be aware of the statutory context. Section 8 of the Corrections Act contemplates a delegation of the power in s 58E to the Commissioner for Corrections, who is part of Corrections Victoria, or to an ‘employee’ of the Department of Justice and Regulation. The delegate is necessarily an employee of the Secretary. The fair-minded observer is also taken to be aware of the institutional setting, which is different to that of a court, and may require ‘little more than an absence of personal interest and a willingness to give genuine and appropriate consideration to the application.’[96] The context includes that Corrections Victoria and the delegate both sit within the Department of Justice and Regulation, that the decision relates to prison administration, and that Corrections Victoria is responsible for prison administration.
[96]McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504, 519 [80] (Basten JA).

The briefing of the delegate by Mr Rod Wise, the Deputy Commissioner for Corrections, which comprised a ten-minute telephone conversation to ascertain whether the delegate would accept the delegation,[97] was not inappropriate. I am not satisfied that a fair-minded observer might reasonably apprehend a lack of impartiality with respect to the decision to be made by the involvement of Corrections Victoria and/or the VGSO in the identification of an appropriate delegate, nor in the limited briefing of the delegate.
[97]Affidavit of Neil Robertson affirmed 20 March 2019, [11]–[12].

I do not accept that there was ‘unbalanced information gathering’ by the delegate in respect of Corrections Victoria. The plaintiff’s solicitors had provided materials to Ms Coombs which she in turn provided to the delegate.[98] Having received the plaintiff’s materials, a fair-minded observer might expect that the delegate would seek other relevant materials, including from Corrections Victoria. The plaintiff was given the opportunity to respond to the other materials provided and did so.
[98]Affidavit of Gabriel Kuek affirmed 6 February 2019, [26], [49].

The plaintiff’s submission in relation to ‘erroneous legal advice’ is a reference to Ms Coombs writing to the delegate’s assistant, ‘Justice T Forrest said in his decision it was not necessary for the decision maker to obtain further information or investigate.’[99] I am not satisfied that a fair-minded observer might consider that the delegate might not bring an impartial mind to the decision by reason of Ms Coombs’ accurate summary of part of T Forrest J’s judgment.
[99]Exhibit DJC-17 to the affidavit of Debra Judith Coombs sworn 19 March 2019. See Kheir v Secretary to the Department of Justice and Regulation [2018] VSC 222, [30] (T Forrest J).

In relation to the receipt of materials by the delegate from Corrections Victoria, Mr Nash sought to distinguish between the receipt of facts or information from Corrections Victoria, which he regarded as not inappropriate, and the receipt of submissions from Corrections Victoria, which he submitted gave rise to apprehended bias.[100]
[100]Transcript of proceeding (10 May 2019), 27.22–27.23.

I am not satisfied that a fair-minded observer might apprehend bias from the delegate’s communications with the VGSO or Corrections Victoria, nor from his receipt of submissions from Corrections Victoria. There is nothing unusual about the receipt of submissions by an administrative decision-maker from applicants and internal stakeholders. As T Forrest J stated in relation to the previous delegate:

The Commissioner was entitled to inform herself from primary and secondary sources. She was entitled to rely on the conclusions of others and I consider that her correspondence demonstrates that she did so conscientiously.[101]

[101]Kheir v Secretary to the Department of Justice and Regulation [2018] VSC 222, [29].

The question is whether undisclosed conduct and communications of the delegate with Corrections Victoria and/or the VGSO and the refusal to disclose that correspondence might cause a fair-minded observer to reasonably apprehend bias. The fair-minded observer is taken to be aware of the contents of the communications.[102]
[102]Carbotech-Australia Pty Limited v Yates [2008] NSWSC 540, [53] (Brereton J); R v Fisher (2009) 22 VR 343, 351 [36], 352 [41] (Redlich and Dodds-Streeton JJA).

In Carbotech-Australia Pty Limited v Yates,[103] the plaintiffs and defendants appointed a special referee by consent to determine the similarities between their products. The referee found that the products were ‘very similar in composition’ and the plaintiffs moved for adoption of the report. An Associate Judge dismissed the motion for adoption on the ground that a reasonable bystander might apprehend bias on the part of the referee from 19 emails and four telephone conversations between the referee and the plaintiffs’ solicitors on procedural matters absent the defendants’ solicitors. Brereton J allowed an appeal from the Associate Judge’s decision. His Honour stated that, while the referee was bound by the rules of natural justice, he was not required to conduct his inquiry as if it was a trial by a judge, was not bound by the rules of evidence, and was at liberty to inform himself as he thought fit.[104] Brereton J stated:

[W]here a judge is concerned, the mere fact of an ex parte communication is of importance, though not decisive, because it is such an obvious departure from the norms of behaviour understood by judges and the legal profession alike. The same cannot be said of a Referee who is not a lawyer let alone a judicial officer, who is not required to conduct the proceedings as if he were a judge, and who may be quite unfamiliar with the practices and protocols of lawyers. In my view, less significance attends the mere fact of such a communication in that context than in the context of a judicial officer. Accordingly, it is necessary to look beyond the mere fact of the communications to see whether the reasonably informed bystander would apprehend bias, knowing of their contents. Thus in JRL, it was of decisive importance that the court counsellor – a person whose opinion might be thought to carry weight with the judge – had made strong representations to the judge on the merits, in private, which it was not unreasonable to suppose may have influenced the judge adversely to the husband’s case.[105]

[103][2008] NSWSC 540.

[104]Ibid [39].

[105]Ibid [53].

His Honour concluded:

Accordingly, in my respectful opinion, the learned Associate Judge erred in concluding that a reasonable apprehension of bias arose from the mere fact of the single party communications, without examining the context and content of the communications. Upon such an examination, I conclude that no reasonable apprehension of bias arose.[106]

[106]Ibid [66].

Carbotech-Australia Pty Limited differs from the present case in that the communications were produced upon the request of the defendants. It is analogous, however, in that the defendants were not aware of the fact of the communications and they were not provided to the defendants and until after the referee’s report. The approach of Brereton J in considering the content of the communications in relation to apprehended bias was applied by the Victorian Court of Appeal in R v Fisher.[107]
[107](2009) 22 VR 343, 350–2 [30]–[41] (Redlich and Dodds-Streeton JJA).

Corrections Victoria is not a party to the decision of the delegate. As such, a fair-minded observer might consider it less improper for communications to occur between the delegate and Corrections Victoria absent the plaintiff’s solicitors than if it were a party to an adversarial decision. Having examined the communications exhibited to the affidavit of Ms Coombs, together with the plaintiff’s submissions regarding the communications,[108] I am not satisfied that a fair-minded observer might reasonably apprehend bias on account of these communications. The communications relate predominantly to procedural matters and the provision of information relevant to the delegate’s decision.
[108]Plaintiff, ‘Submissions’, 28 March 2019, attachment A.

As to the communications relating to the plaintiff’s second judicial review proceeding before Richards J,[109] I do not consider that a fair-minded observer might apprehend bias from the defendants’ attempts to expedite litigation and limit costs by doing the very thing that the plaintiff sought to have compelled in the proceeding.
[109]Exhibits DJC-11 and DJC-12 to the affidavit of Debra Judith Coombs sworn 19 March 2019.

The delegate applied the wrong test for apprehended bias

The plaintiff’s solicitors made submissions before the delegate that he ought to recuse himself on the ground of apprehended bias.[110] The plaintiff submits that, by considering whether ‘a hypothetical reasonable bystander would apprehend that [he] was [biased]’,[111] the delegate applied the wrong test in deciding not to recuse himself.[112] The plaintiff submits that this error of law amounts to jurisdictional error and invalidates the delegate’s decision.[113]
[110]Exhibit GK-11 to the affidavit of Gabriel Kuek affirmed 6 February 2019, [4]–[19].
[111]Exhibit GK-13 to the affidavit of Gabriel Kuek affirmed 6 February 2019, [11] (emphasis added).
[112]Plaintiff, ‘Submissions’, 28 March 2019, [79].
[113]Ibid [80]–[83].

While the delegate applied the wrong test, not all errors of law are jurisdictional.[114] For a decision to involve an error of law, the error must have contributed to the decision in some way.[115] The delegate’s decision not to recuse himself is not the decision under review. The error as to the test to be applied for apprehended bias had no bearing upon the delegate’s decision with respect to the plaintiff’s s 58E application.
[114]Allianz Australia Insurance Ltd v Ward [2009] NSWCA 264, [55] (Young JA).
[115]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353 (Mason CJ), 384 (Toohey and Gaudron JJ); Hill v Repatriation Commission (2005) 218 ALR 251, 266–7 [80]–[84] (Wilcox, French and Weinberg JJ; Combined Enterprises Pty Ltd v Brister [2016] VSC 807, [21] (Keogh J); Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780, 794 [65] (Edelman J); Wilson v County Court (Vic) (2006) 14 VR 461, 471 [43] (Cavanough J).

If this conclusion is incorrect, the error is plainly not material. I am not satisfied that a fair-minded observer might reasonably apprehend bias on the part of the delegate. The delegate’s decision not to recuse himself was ancillary to and had no bearing upon the determination of the plaintiff’s s 58E application.

Ground 3: The delegate misapprehended and thereby failed to exercise lawfully the s 58E jurisdiction

The plaintiff submits that the delegate misapprehended and thereby failed to exercise lawfully the jurisdiction created by s 58E of the Corrections Act.[116] The plaintiff submits that the delegate treated the decision-making process as adversarial and involving an inter partes dispute in which Corrections Victoria had a right to participate and be heard.[117]
[116]Plaintiff, ‘Submissions’, 28 March 2019, [85]–[94].
[117]Ibid [85].

In his written submissions, the plaintiff relies on the communications between the delegate vis-à-vis Corrections Victoria and the VGSO, the provision of materials by Corrections Victoria to the delegate, and the provision of significant submissions by Corrections Victoria,[118] which were relied upon in part by the delegate.[119] In oral submissions, Mr Nash took no issue with the provision of information by Corrections Victoria to the delegate, in contradistinction to the provision of submissions.[120] He submitted that the order of T Forrest J required the delegate to be independent insofar as possible but, by receiving significant submissions from Corrections Victoria, the delegate had been ‘tainted’.[121] Corrections Victoria had made submissions before the delegate on the information that he should seek, and on the conclusions that he should reach.[122]
[118]Transcript of proceeding (10 May 2019), 4.22–4.26.
[119]Plaintiff, ‘Submissions’, 28 March 2019, [85].
[120]Transcript of proceeding (10 May 2019), 7.23–7.24.
[121]Ibid 7.07–7.30.
[122]Ibid 8.22–9.17.

I reject this submission. The delegate was an administrative decision-maker who could inform himself as he thought fit. He was entitled to inform himself from primary and secondary sources, and to conscientiously rely on the conclusions of others.[123] The delegate accepted some of the submissions of Corrections Victoria, and rejected others, including its characterisation of the plaintiff’s behaviour prior to the riot as militating against satisfaction of his good behaviour.[124] I do not accept that, by receiving submissions from Corrections Victoria and/or conscientiously relying on them in part, the delegate misapprehended the s 58E jurisdiction.
[123]Kheir v Secretary to the Department of Justice and Regulation [2018] VSC 222, [29] (T Forrest J).
[124]Exhibit GK-13 to the affidavit of Gabriel Kuek affirmed 6 February 2019, [17], [33]–[34]. See Exhibit GK-10 to the affidavit of Gabriel Kuek affirmed 6 February 2019, [16].

Ground 4: The delegate erred in treating the ‘riot’ as the ‘emergency’

The plaintiff submits that there is an error on the face of the record in that the delegate erroneously treated the ‘riot’ as the ‘emergency’.[125] The plaintiff submits that the delegate identified three distinct periods: before, during and after the riot.[126] He found that the plaintiff was of good behaviour before and after the riot but was not of good behaviour during the riot.[127]
[125]Plaintiff, Submissions’, 28 March 2019, [95], [102].
[126]Ibid [95].
[127]Exhibit GK-13 to the affidavit of Gabriel Kuek affirmed 6 February 2019, [45].

The delegate did not erroneously equate the riot with the emergency. The emergency included the riot. The delegate had regard to the plaintiff’s behaviour before, during and after the riot, and noted that the emergency at least included the initial period of the plaintiff’s subsequent placement at Barwon prison.[128] The plaintiff’s real complaint is that the delegate did not regard it as sufficient to enliven his discretion under s 58E that the plaintiff was of good behaviour for the part of the emergency after the riot.
[128]Ibid [44].

Section 58E requires the delegate to be satisfied that the plaintiff was of good behaviour during an emergency. Mr Nash submits that ‘during’ means at a particular point in the course of.[129] Ms Fitzgerald, who appeared for Corrections Victoria, submits that ‘during’ carries its ordinary meaning, ‘throughout the course or duration of’.[130] Mr Brown, who appeared for the delegate, submits that the section must be given a purposive reading, and that the purpose of s 58E is to encourage prisoners to be of good behaviour during emergencies.[131]
[129]Transcript of proceeding (10 May 2019), 65.11–65.16.
[130]Transcript of proceeding (16 May 2019), 129.25–129.29.
[131]Ibid 165.06–165.14.

I accept the defendants’ contention that ‘during’ means throughout. If ‘during’ meant at some point in time during the emergency, it would create absurdities. The discretion to award EMDs would be enlivened if a person was not of good behaviour for a substantial period during an emergency, so long as they were of good behaviour at some particular point in time during the emergency. The delegate did not err by deciding that his discretion was not enlivened because he was not satisfied that the plaintiff was of good behaviour during the riot, which constituted a substantial part of the emergency.

Ground 5: The delegate failed to adequately explain his reasons for concluding that he was not satisfied that the plaintiff was of good behaviour

The plaintiff submits that the delegate failed to adequately explain the path of reasoning that led him to arrive at certain findings of fact, or how those findings led him to conclude that he was not satisfied that the plaintiff was of good behaviour.[132] The plaintiff submits that, rather than there being ‘clear and consistent points’, the evidence is contradictory.[133]
[132]Plaintiff, ‘Submissions’, 28 March 2019, [104], [106]; Transcript of proceeding (10 May 2019), 71.05–83.17.
[133]Transcript of proceeding (10 May 2019), 82.19–82.24.

The plaintiff’s relies on jurisprudence relating to judicial officers erring by providing inadequate reasons.[134] Such reliance is misplaced. The delegate is not a judicial officer. The Victorian Court of Appeal has stated that there is no basis for drawing an analogy between the requirements of administrative decision-makers to give reasons with the requirements for judicial officers to give reasons or the contents of such reasons.[135]
[134]Plaintiff, ‘Reply Submissions’, 12 April 2019, [30]–[33]; Plaintiff, ‘Submissions’, 28 March 2019, [122], [132]. See, eg, Hunter v Transport Accident Commission [2005] VSCA 1, [35] (Nettle JA, Batt and Vincent JJA agreeing); Read v Nerey Nominees Pty Ltd [1979] VR 47, 51 (Marks J).
[135]Colquhoun v Capitol Radiology Pty Ltd (2013) 39 VR 296, 308 [48] (Maxwell P, Weinberg JA and Ferguson AJA).

There is no requirement at common law for reasons to be provided by an administrative decision-maker.[136] No statutory requirement is imposed by the Corrections Act or otherwise for reasons to be provided for a s 58E decision. In Knight v Shuard,[137] McMillan J considered the requirement to give reasons for a s 58E decision in the context of a vexatious litigant’s application for leave to commence a proceeding. Her Honour stated:

[T]here is no basis for the plaintiff’s contention the failure to give reasons for the decision would provide the foundation for his claim for certiorari. The making of a decision under s 58E of the Corrections Act 1986 confers a discretionary administrative power and does not require the decision-maker or delegate to provide reasons for the decision to enable prisoners to bring proceedings for judicial review. At common law the reasons for administrative decisions do not form part of the record for the purposes of certiorari unless incorporated by the decision maker. Thus, the plaintiff’s contention that the reasons for the decision are inadequate cannot support his claim for relief and would most certainly fail, rendering the proceeding an abuse of process.[138]

I agree with her Honour. As I do not consider the judgment of McMillan J plainly wrong, I am bound to follow it.[139]

[136]Kheir v Secretary to the Department Justice and Regulation [2018] VSC 222, [36] (T Forrest J); Supple v Building Appeals Board [2015] VSC 83, [72] (Kaye JA); Public Services Board (NSW) v Osmond (1986) 159 CLR 656, 664–5, 667, 670 (Gibbs CJ, Brennan J agreeing), 676–7 (Deane J); Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 497–8 [43] (French CJ, Crennan, Bell, Gageler and Keane JJ); Sherlock v Lloyd (2010) 27 VR 434, 438 [16] (Maxwell P, Ashley JA and Byrne AJA).

[137][2016] VSC 413.

[138]Ibid [35] (citations omitted).

[139]Holloway v Department of Human Services [2015] VSC 184, [1] and the cases cited therein; W E Pickering Nominees Pty Ltd v Pickering [2016] VSC 71, [91] (McMillan J); Bunting v Venville [1980] VR 633, 634 (Lush J); Mann v Paterson Constructions Pty Ltd [2018] VSCA 231, [97] (Kyrou, McLeish and Hargrave JJA); KR v BR [2018] VSCA 159, [59] (Osborn and Beach JJA).

The provision of inadequate reasons does not constitute an error of law where there is no requirement to give reasons. In Supple v Building Appeals Board,[140] the plaintiffs submitted that the Building Appeals Board, which was not required by statute to give reasons, gave inadequate reasons for rejecting their appeal. Kaye JA stated:

[A]ssuming that the Board did provide reasons which were inadequate, that does not have the effect that the Board, thereby, made an error of law in its determination. The position would be different if the Board was required, by statute, to provide reasons for its decision. In such a case, the provision of inadequate reasons would constitute an error of law on the face of the record … However, in this case, there was no legal obligation for the Board to provide reasons for its determination. It follows that if the determination contained reasons, and if those reasons were inadequate, that would not constitute an error of law by the Board.[141]

[140][2015] VSC 83.

[141]Ibid [72].

That the provision of inadequate reasons does not constitute an error of law in the present case is sufficient to dispose of this ground. Nonetheless, I do not consider that the delegate gave inadequate reasons. Mr Nash submitted that the delegate did not give reasons for failing to take into account the evidence given at the committal mention or the challenging of some witnesses’ statements there.[142]
[142]Transcript of proceeding (10 May 2019), 53.01–53.03; Plaintiff, ‘Submissions’, 28 March 2019, [131]–[134].

Where a decision-maker is required to give reasons, they are not required to explain why they did not accept a particular piece of evidence or a submission contrary to the conclusion reached.[143]
[143]Supple v Building Appeals Board [2015] VSC 83 [75] (Kaye JA); Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd [2017] VSC 256, [139], [145] (Digby J); Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 501–2 [56] (French CJ, Crennan, Bell, Gageler and Keane JJ).

The plaintiff’s solicitors made the following submissions before the delegate:

We invite the Secretary’s delegate to obtain a copy of the Hand-up brief and the transcript of Mr. Kheir’s committal hearing on 15 February 2017 and to provide us with a copy of the transcript.
The transcript will show that the category (a) witnesses [‘those who saw Mr. Kheir’s conduct/acts/behaviour and heard what he said in the days leading up to and during the riots’] reaffirmed the contents of their sworn statements and the category (b) witnesses [‘those who saw Mr. Kheir’s conduct/acts/behaviour but did not hear what he said during the riots’] conceded their conclusions about Mr. Kheir might have been erroneous.[144]

[144]Exhibit GK-4 to the affidavit of Gabriel Kuek affirmed 6 February 2019, [27], [35]–[36] (emphasis in original).

The delegate accepted these submissions and explained how he had ameliorated the impact of witnesses’ conclusions being challenged:

In addition, my conclusion is not affected by the submissions on Mr Kheir’s behalf that some prison officers had the conclusions in their witness statements successfully challenged during cross-examination at Mr Kheir’s committal hearing. While I accept these submissions, I note that my findings of fact are based on observations of Mr Kheir’s behaviour, rather than conclusions drawn from it and are all reported by two or more prison officers. On that basis, I consider it reasonable to rely on the written statements on these facts.[145]

[145]Exhibit GK-13 to the affidavit of Gabriel Kuek affirmed 6 February 2019, [41].

The plaintiff takes issue with the ‘clear and consistent’ findings of the delegate. The plaintiff submits that ‘[e]ach of the “clear and consistent points … on which” the delegate relied was capable of different interpretations and/or explanations.’[146] I accept Ms Fitzgerald’s submission that, if the points were capable of different interpretations or explanations, they were capable of the interpretation adopted by the delegate.[147] The plaintiff is inviting the Court to partake in impermissible merits review.
[146]Plaintiff, ‘Amended Originating Motion’, 27 February 2019, [5(a)] (emphasis in original).
[147]Transcript of proceeding (16 May 2019), 131.15–131.30.

The plaintiff’s submissions effectively challenge the delegate’s interpretation of the evidence and the weight attributed to witnesses’ statements, in particular, the statements to the effect that the plaintiff tried to stop other prisoners from participating in the riot.[148] The delegate referred to this evidence in his reasons by citing the relevant witnesses’ statements relied on by the plaintiff and referring to the effect of the evidence, before concluding that it did not explain the balance of the plaintiff’s behaviour.[149] The delegate was not required to ‘give a line-by-line refutation of the evidence’, nor to give reasons for rejecting or attaching no weight to evidence that might undermine a finding made.[150] The plaintiff’s real complaint is the weight given to this evidence, which is not a matter susceptible to judicial review:

[I]n the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.[151]

[148]Plaintiff, Submissions’, 28 March 2019, [118]–[125]; Plaintiff, ‘Reply Submissions’, 26 April 2019, [28]–[33].

[149]Exhibit GK-13 to the affidavit of Gabriel Kuek affirmed 6 February 2019, footnote 35, [39]–[40].

[150]Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, 422–3 [64]–[65] (McHugh J); Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940, [24], [31] (Spender, O’Connor and Emmett JJ).

[151]Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, 41 (Mason J).

Findings (d) to (h) are set out above but, for convenience, I shall again set out this part of the delegate’s reasons:

Notwithstanding the confused and seemingly contradictory nature of this evidence, there are some clear and consistent points on which I consider I can reasonably rely:
(a) Mr Kheir was housed in Bellbridge unit in Area 3 in the period leading up to the riot;
(b)Mr Kheir was a sentenced prisoner, rather than a remandee and, consequently, had been at the MRC longer than many other prisoners;
(c)Mr Kheir was well known to many prison officers and easily recognised by them during the riot;
(d)Mr Kheir was in the yard in Area 3 when the fence between Areas 2 and 3 was breached and was part of the crowd encouraging those who broke through the fence;
(e)Mr Kheir was on the basketball court in Area 2 with a group of prisoners after the fence was breached and addressed the group with prisoner Moussa;
(f)Mr Kheir was among the group of prisoners that advanced on the Central Movement Control (CMC). He was at the front of the group and speaking to the group as a whole;
(g)Mr Kheir remained out of his cell and unit through most of the riot until his ‘surrender’; and
(h)Mr Kheir was with the prisoners that ‘surrendered’ at the fence line around midnight.

Given these findings of fact, I am not satisfied that Mr Kheir was of good behaviour during the riot. My conclusion is not undermined by the fact that there are reasonable grounds to conclude that when the group reached the gates to the CMC ([37(f)] above), Mr Kheir does appear to have attempted either to delay the crowd or turn it back.
While this attempt was unsuccessful, given the context of Mr Kheir’s other actions as outlined (and as illustrated by the prison officers’ witness statements), there is more than one possible interpretation of this act. I am not required to decide positively what was happening, but I do conclude that this one act, regardless of its motivation, does not necessarily characterise or explain the balance of Mr Kheir’s behaviour during the riot.[152]

The reasons were accompanied by citations to the prison officers’ statements upon which the delegate relied for each finding, which are omitted.

[152]Exhibit GK-13 to the affidavit of Gabriel Kuek affirmed 6 February 2019, [37]–[40].

The plaintiff submits that all of the findings of fact but (d) are neutral and do not inevitably lead to the delegate’s conclusion he was not satisfied that the plaintiff was of good behaviour during the riot. As such, the plaintiff submits that the delegate was required to explain why he reached his conclusion.[153] I reject that submission. The findings include that the plaintiff was with a group of prisoners involved in the riot, and remained out of his cell and unit until midnight. It was open to the delegate to conclude that the course of conduct taken by the plaintiff was incompatible with a positive finding of good behaviour. It is evident from his reasons that the delegate reached that conclusion.
[153]Plaintiff, ‘Submissions’, 28 March 2019, [107].

The plaintiff challenges the finding of fact (d), that he was ‘part of the crowd encouraging those who broke through the fence’, on the basis of evidence given by two officers, Messrs Rowley and Kaynak, that the plaintiff was attempting to stop the crowd.[154] There is no error of law in making a wrong finding of fact of itself.[155] In any event, the evidence that the plaintiff attempted to stop the crowd appears to relate to a later point in time, when the plaintiff was part of a crowd of prisoners approaching Central Movement Control, than finding (d). The plaintiff concedes that he was part of the crowd at the fence between areas two and three.[156] Mr Rowley’s evidence was that the plaintiff attempted to stop the crowd once they reached the gate to Central Movement Control.[157] Mr Kaynak’s evidence was that a crowd of prisoners was congregating at the fence at about 11:30am, and at about 12:00pm the plaintiff attempted to stop the crowd from breaching the gate to Central Movement Control.[158] Messrs Anastasiou and Wilson, Ms Deeble and Ms Stabek each gave evidence that the plaintiff, with another prisoner named Moussa, was with the crowd of prisoners at the fence speaking to them before the crowd moved to Central Movement Control and breached the gate.[159] This evidence supports the delegate’s finding of fact (d). On this basis, I am not satisfied that there is any direct inconsistency between the statements of these officers and the statements of Messrs Rowley and Kaynak.
[154]Transcript of proceeding (10 May 2019), 45.07–49.29.
[155]Waterford v Commonwealth (1987) 163 CLR 54, 77 (Brennan J).
[156]Transcript of proceeding (10 May 2019), 45.10–45.11.
[157]Exhibit GK-5 to the affidavit of Gabriel Kuek affirmed 6 February 2019.
[158]Exhibit GK-6 to the affidavit of Gabriel Kuek affirmed 6 February 2019.
[159]Exhibit DJC-20 to the affidavit of Debra Judith Coombs sworn 19 March 2019.

Ground 6: The delegate failed to take relevant considerations into account

The plaintiff submits that the delegate erred by failing to take account of relevant considerations, which were set out in his original and supplementary submissions to the delegate.[160] Failure to take a relevant consideration into account only constitutes error if the decision-maker is bound to take that consideration into account in making the decision.[161] Whether a decision-maker is bound to take into account a consideration, whether express or by implication, is determined by a process of statutory construction.[162]
[160]Plaintiff, ‘Submissions’, 28 March 2019, [127]–[134].
[161]Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, 375 (Deane J); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J).
[162]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39–40 (Mason J).

In his written submissions, the plaintiff relies upon the failure of the delegate to take into account the withdrawal of the charge of sabotage and the discontinuation of the charge of riot.[163] I reject this submission. These were not matters that the delegate was bound to take into account. The plaintiff’s submission is based on the erroneous assumption that the withdrawal and discontinuation of the charges is relevant to the delegate’s determination of whether the plaintiff was of good behaviour during the emergency. The delegate correctly concluded that it was not relevant.[164]
[163]Plaintiff, ‘Submissions’, 28 March 2019, [129]–[130].
[164]Exhibit GK-13 to the affidavit of Gabriel Kuek affirmed 6 February 2019, [42].

The charge of sabotage was withdrawn. The charge of riot was withdrawn because there was no reasonable prospect of obtaining a finding of guilt. When the plaintiff was charged, riot was a crime at common law and required proof beyond reasonable doubt of the following:

[A] tumultuous disturbance of the peace by three or more persons assembled together with an intent mutually to assist one another by force if necessary against anyone who opposes them in the execution of a common purpose and who execute or begin to execute that purpose in a violent manner so as to alarm at least one person of reasonable firmness and courage.[165]

The opinion of the prosecution that there was no reasonable prospect of proving the charge of riot beyond reasonable doubt does not support a positive finding by the delegate that the plaintiff was of good behaviour during the emergency. It was not a matter which he was required to have had regard to.

[165]Kumas v The Queen [2017] VSCA 287, [11] (Maxwell P, Weinberg and Priest JJA), quoting R v McCormack [1981] 1 VR 104, 107 (Young CJ, Kaye and McGarvie JJ).

The plaintiff submits that the delegate did not refer to many of the considerations that the plaintiff drew his attention to.[166] One of the considerations relied upon is the failure to take into account the whole of the evidence given at the committal mention.[167] I am not satisfied that this was a ‘consideration’ or ‘matter’ that the delegate was bound to take into account. I accept Ms Fitzgerald’s submission that the transcript is evidence, not a consideration, and therefore is not a factor that the delegate was bound to take into account.[168] In any event, the delegate did have regard to the plaintiff’s submission that witnesses’ conclusions drawn from their observations had been successfully challenged at the committal mention.[169]
[166]Plaintiff, ‘Submissions’, 28 March 2019, [131].
[167]Ibid [112]–[114]; Transcript of proceeding (16 May 2019), 188.19–189.18.
[168]Transcript of proceeding (31 May 2019), 12.09–12.20.
[169]Exhibit GK-13 to the affidavit of Gabriel Kuek affirmed 6 February 2019, [41].

The plaintiff submits that the delegate erred in relying upon Ms Stabek’s statement for his finding that the plaintiff was in the yard when the fence was breached and was part of the crowd encouraging those who broke through the fence without considering her evidence at the committal mention.[170] Ms Stabek’s cross-examination at the committal mention does not raise any new considerations which the delegate was required to take into account. Ms Stabek stood by her statement in relation to the plaintiff ‘remonstrating’ [sic] with the crowd at the fence, although she admitted that she could not hear his words, had no independent recollection of events from her statement, and her conclusion that the plaintiff was ‘fully committed’ to the riot was an opinion based on limited observations.[171] The plaintiff also submits that Ms Stabek’s evidence was contradicted by the statements of five other prison officers, so ‘no rational or logical decision maker could have reached the same view’.[172] This seeks to challenge a finding of fact which was open to the delegate. Further, I do not accept that there is inconsistency between the evidence of Ms Stabek and other prison officers. Ms Stabek’s evidence relates to the period of time prior to the plaintiff having been part of the crowd of prisoners who advanced on Central Movement Control.
[170]Plaintiff, ‘Submissions’, 28 March 2019, [112]–[116].
[171]Transcript of proceeding in the Magistrates’ Court (13 February 2017), 24.27–36.08.
[172]Plaintiff, ‘Submissions’, 28 March 2019, [116].

The plaintiff submits that the delegate failed to consider the evidence of Messrs Rowley and Kaynak.[173] Their evidence was to the effect that the plaintiff attempted to stop the crowd of prisoners once they reached the gate to Central Movement Control.[174] I accept that any attempts of the plaintiff to stop or reduce the severity of the emergency may be a relevant consideration. However, the delegate took this consideration into account. He stated in his reasons:

Given these findings of fact, I am not satisfied that Mr Kheir was of good behaviour during the riot.
My conclusion is not undermined by the fact that there are reasonable grounds to conclude that when the group reached the gates to the CMC ([37(f)] above), Mr Kheir does appear to have attempted either to delay the crowd or turn it back.
While this attempt was unsuccessful, given the context of Mr Kheir’s other actions as outlined (and as illustrated by the prison officers’ witness statements), there is more than one possible interpretation of this act. I am not required to decide positively what was happening, but I do conclude that this one act, regardless of its motivation, does not necessarily characterise or explain the balance of Mr Kheir’s behaviour during the riot.[175]

[173]Transcript of proceeding (10 May 2019), 53.03–53.06.

[174]Exhibits GK-5 and GK-6 to the affidavit of Gabriel Kuek affirmed 6 February 2019.

[175]Exhibit GK-13 to the affidavit of Gabriel Kuek affirmed 6 February 2019, [38]–[40].

The plaintiff’s real complaint is that the delegate gave insufficient weight to this consideration by finding that it did not outweigh the balance of his behaviour during the emergency. That is not a matter amenable to review by the Court in the present case.[176]
[176]Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, 41 (Mason J); Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35–6 (Brennan J).

Ground 7: The delegate took irrelevant considerations into account

The plaintiff submits that the delegate took irrelevant considerations into account by relying on statements of witnesses who were employees of Corrections Victoria and whose statements contained ‘speculative opinions’.[177]
[177]Plaintiff, ‘Submissions’, 28 March 2019, [135]–[139].

I reject this submission. Taking into account irrelevant considerations only amounts to jurisdictional error if the decision-maker was forbidden from taking into account that consideration.[178] The statements of the prison officers who observed the plaintiff’s conduct during the riot were relevant to whether the plaintiff was of good behaviour during an emergency existing in the prison. There is no reason why the delegate could not rely on the statements of witnesses who were employed by Corrections Victoria. The delegate was not bound by the rules of evidence. There is no reason why he could not take into account the opinions of the witnesses, based on their observations of the plaintiff’s conduct during the emergency and their prior knowledge of his character. In any event, the delegate did not rely upon speculation or conclusions drawn from witnesses’ observations of the plaintiff’s conduct, but on their actual observations.[179]
[178]Attorney-General (ACT) v Heiss (2002) 116 FCR 128, 134 [18] (Higgins, Finn and Weinberg JJ).
[179]Exhibit GK-13 to the affidavit of Gabriel Kuek affirmed 6 February 2019, [41].

If the delegate had relied upon an irrelevant consideration by relying upon statements of employees of Corrections Victoria, it does not follow that the plaintiff would be entitled to an order quashing the delegate’s decision. Certiorari is a discretionary remedy. The plaintiff’s conduct prior to the delegate’s decision would have precluded such relief on discretionary grounds. As submitted by Ms Fitzgerald,[180] the plaintiff encouraged the delegate to rely on the statements of the prison officers and attached two witnesses’ statements to his submissions.[181] In relation to the transcript of the committal mention, the plaintiff encouraged the delegate to rely on the transcript in which several category (a) witnesses reaffirmed the contents of their sworn statements.[182] Having adopted this position, it is not open to the plaintiff to challenge the delegate’s decision by reason of the delegate having acted consistently with an approach previously endorsed by the plaintiff.
[180]Transcript of proceeding (31 May 2019), 9.06–9.11.
[181]Exhibit GK-4 to the affidavit of Gabriel Kuek affirmed 6 February 2019, [25]–[30]; Exhibits GK-5 and GK-6 to the affidavit of Gabriel Kuek affirmed 6 February 2019.
[182]Exhibit GK-4 to the affidavit of Gabriel Kuek affirmed 6 February 2019, [36].

Ground 8: Unlawful delay in considering and determining the plaintiff’s s 58E application

The plaintiff submits that Corrections Victoria and the Secretary unlawfully delayed consideration and determination of the plaintiff’s application for EMDs.[183] On 11 May 2018, T Forrest J ordered that ‘[t]he s 58E application be remitted to a delegate of the Secretary of the Department of Justice and Regulation who, if possible, has had no previous involvement with that application.’ The plaintiff submits that there was a deliberate failure to comply with the order of T Forrest J, and the second and third defendants’ conduct unlawfully delayed the consideration and determination of the plaintiff’s s 58E application.[184]
[183]Plaintiff, ‘Submissions’, 28 March 2019, [143].
[184]Transcript of proceeding (10 May 2019), 85.14–86.01; ibid.

The primary relief sought by the plaintiff in the present proceeding is not to compel a delayed decision, but to set aside the delegate’s decision of 20 December 2018. Prima facie, ground eight has no nexus with any relief sought. Nevertheless, the plaintiff submits that ‘Ground 8 is included because of s.39 of the Charter.’[185] Section 39 of the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’) provides:
[185]Plaintiff, ‘Answers to Queries Raised by the Court and Supplementary Submissions’, 15 May 2019, 7.

39 Legal proceedings
(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
(2) This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right—
(a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and
(b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.

(3) A person is not entitled to be awarded any damages because of a breach of this Charter.
(4) Nothing in this section affects any right a person may have to damages apart from the operation of this section.

Ms Fitzgerald submits that ground eight is colourable and is pressed by the plaintiff solely for the purpose of enlivening jurisdiction to grant relief under s 39 of the Charter.[186] I accept this submission.
[186]Transcript of proceeding (16 May 2019), 143.15–149.08.

In Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation,[187] the Full Court of the Federal Court stated that claims are colourable if ‘they were made for the improper purpose of “fabricating” jurisdiction’.[188] In such a case, jurisdiction is not attracted.[189] To be non-colourable, the ground must be ‘bona fide and not spurious, hypothetical, illusory or misconceived’.[190] In Goode v Common Equity Housing Ltd,[191] Bell J held that a ground of non-Charter unlawfulness may be unsuccessful but will nevertheless support relief for a ground of Charter unlawfulness.[192] The reasoning of Bell J is consistent with Burgundy Royale. In Burgundy Royale, the Full Court of the Federal Court explained that ‘[a]ny other approach would involve the extremely inconvenient result that the existence or absence of jurisdiction to deal with a particular claim would depend upon the substantive result of that claim’.[193] I accept Ms Fitzgerald’s submission that the reasoning in Burgundy Royale applies to s 39 of the Charter.[194]
[187](1987) 18 FCR 212 (‘Burgundy Royale’).
[188]Burgundy Royale (1987) 18 FCR 212, 219 (Bowen CJ, Morling and Beaumont JJ). See also R v Cook; Ex parte Twigg (1980) 147 CLR 15, 26 (Gibbs J).
[189]Burgundy Royale (1987) 18 FCR 212, 219 (Bowen CJ, Morling and Beaumont JJ).
[190]Edge Technology Pty Ltd v Lite-On Technology Corporation (2000) 156 FLR 181, 186 [31] (Santow J).
[191][2014] VSC 585.
[192]Ibid [33]–[41]. See also DPP (Vic) v Debono [2013] VSC 407, [77]–[82] (Kyrou J); Burgess v Director of Housing [2014] VSC 648, [213]–[214] (Macaulay J).
[193](1987) 18 FCR 212, 219 (Bowen CJ, Morling and Beaumont JJ).
[194]Transcript of proceeding (16 May 2019), 141.24–143.22, 148.31–149.08.

Delay is not a ground of judicial review of itself.[195] In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs,[196] there was a delay of approximately four and a half years between the decision to refuse a protection visa and the decision on review by the Refugee Review Tribunal. Gleeson CJ stated:

Undue delay in decision-making, whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare.[197]

[195]NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470, 474 [5] (Gleeson CJ), 493 [78] (Kirby J), 524 [166] (Callinan and Heydon JJ); Braham Investments Pty Ltd v Wantrup [2018] VSCA 291, [224] (Whelan, Kyrou and McLeish JJA); Stevens v Spotless Management Services Pty Ltd [2016] VSCA 299, [90] (Kyrou, McLeish JJA and Elliott AJA).

[196](2005) 228 CLR 470.

[197]Ibid 473 [5]. See also, 487 [55] (Gummow J, dissenting but not on this point), 522–5 [161]–[167] (Callinan and Heydon JJ).

His Honour emphasised that, where relief is granted in cases of delay, ‘the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself.’[198] The majority of the Court held that the prolonged delay had resulted in a denial of procedural fairness justifying the grant of relief because the decision depended on the Tribunal’s assessment of the appellants’ demeanour and credit.[199]
[198]Ibid 474 [5].
[199]Ibid 475–6 [7]–[12] (Gleeson CJ), 493–503 [77]–[105] (Kirby J), 525 [168] (Callinan and Heydon JJ).

Had the plaintiff submitted that he was denied procedural fairness by the delay, I would have rejected that submission. The delegate did not rely upon observations from evidence given in a hearing but on written materials, so any delay did not deny the plaintiff a fair hearing. In contrast to NAIS, where the delay was not explained,[200] the delay here was explicable on the basis of finding an appropriate decision-maker who, in compliance with T Forrest J’s order, had no previous involvement with the plaintiff’s s 58E application.[201]

Ground 9: The second and third defendants breached the plaintiff’s rights under ss 21(1), 21(3) and 22(1) of the Charter

[200]Ibid 473 [3], 476 [11] (Gleeson CJ).

[201]Affidavit of Debra Judith Coombs sworn 19 March 2019, [4]–[8].

If the conclusions set out above in respect of ground 8 are incorrect, I am in any event not satisfied that the defendants breached the plaintiff’s rights under the Charter. The plaintiff submits that his rights under ss 21(1), 21(3) and 22(1) of the Charter were breached by Corrections Victoria and the Secretary in delaying the appointment of the delegate by more than five months.[202] The relevant sections of the Charter provide:
[202]Plaintiff, ‘Submissions’, 28 March 2019, [144]–[150].

21 Right to liberty and security of person
(1) Every person has the right to liberty and security.
…
(3) A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.
…
22 Humane treatment when deprived of liberty
(1) All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

In respect of s 21(1), the plaintiff submits that he was deprived of his prospective and/or actual right to liberty and security in that, if his sentence or non-parole period were reduced by way of EMDs, he would have the right to his liberty at an earlier date. In respect of s 21(3), the plaintiff submits:

Two Supreme Court judges have made findings of legal error on the part of the defendants. It follows that the decisions of the defendants:
(a) were not ‘in accordance with procedures, established by law’, and
(b) ‘deprived [Mr. Kheir] his liberty’
in contravention of s.21(3) of the Charter.[203]

[203]Ibid [156] (emphasis in original).

I reject this submission. The plaintiff was not deprived of his liberty by the refusal to grant EMDs, nor by the five-month delay in making the decision with respect to his application for EMDs. T Forrest J’s conclusion that the first decision was made with legal error did not entitle the plaintiff to his liberty. There is no entitlement to EMDs. Section 58E confers a discretion upon the Secretary or their delegate to grant EMDs and thereby reduce an applicant’s sentence or non-parole period. Section 6 of the Corrections Act defines ‘order of imprisonment’ to mean, inter alia, ‘a sentence of imprisonment imposed by a court’. The plaintiff was deprived of his liberty upon being convicted and sentenced by a judge of the County Court in accordance with the law.

This conclusion is consistent with jurisprudence in the United Kingdom. In R (Black) v Secretary of State for Justice,[204] a prisoner serving a determinate sentence of 24 years’ imprisonment became eligible for parole and discretionary release on licence. His release was recommended by the Parole Board but refused by the Secretary of State due to the risk of reoffending. The prisoner sought judicial review of the Secretary’s decision on the ground that it was incompatible with art 5.4 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Article 5 provides, inter alia:
[204][2009] 1 AC 949.

5 Right to liberty and security
1Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a)the lawful detention of a person after conviction by a competent court;

…
4Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.[205]

[205]Human Rights Act 1998 (UK) sch 1, pt I, arts 5.1(a), 5.4.

Lord Brown held that art 5.4 was not engaged by the administrative implementation of a determinate sentence.[206] Lord Rodger, agreeing with Lord Brown in a separate judgment, considered that the prisoner was detained under his original lawful sentence and, had the decision of the Secretary been unlawful, he would still not have had a right to be set free.[207] This reasoning applies equally to s 21 of the Charter in the present circumstances. The reasoning is also consistent with Victorian jurisprudence in the mental health context. In Kracke v Mental Health Review Board,[208] the failure to comply with the safeguard of periodic review of an involuntary treatment order by delaying review did not render the order incompatible within human rights.[209]
[206][2009] 1 AC 949, 988–9 [82]–[84] (Lord Rodger, Baroness Hale and Lord Carswell agreeing).
[207]Ibid 975–6 [46]–[49].
[208][2009] VCAT 646.
[209]Ibid [748]–[784] (Bell J).

Mr Nash submits that an analogy with Black cannot be drawn because that decision concerned the grant of parole, whereas the present decision concerns an application for a reduction in the sentence.[210] I reject that submission. In both cases, the executive has statutory authority to interfere with a court-imposed sentence by way of a discretionary decision.
[210]Transcript of proceeding (16 May 2019), 190.25–191.04.

The plaintiff submits that his rights under s 22(1) were infringed by the following conduct:

[T]he defendants have treated Mr. Kheir as being involved in the riots of 30 June and 1 July 2015. They have so treated Mr. Kheir:
(a)without undertaking any proper inquiry into his actual role during the riots,

(b) in reliance on accounts based on hearsay, speculation and innuendo, and—
(c) without attempting to reconcile the unreliable accounts with cogent accounts which proved that Mr. Kheir was attempting to quell the rioters.[211]

The plaintiff also submits that the defendants infringed his rights under s 22(1) of the Charter by refusing to provide him with relevant materials on which they relied, and by ‘unsuccessfully [resisting]’ both of the plaintiff’s applications for judicial review before T Forrest and Richards JJ.[212]

[211]Plaintiff, ‘Submissions’, 28 March 2019, [157].

[212]Ibid [158]–[160].

The plaintiff’s rights under s 22(1) of the Charter were not infringed. The manner in which the delegate conducted the s 58E application did not result in the plaintiff not being treated with humanity and with respect for the inherent dignity of the human person.

The plaintiff’s application to further amend the amended originating motion

The plaintiff submitted that the failure of the delegate to obtain the transcript of the committal mention fell within grounds one and six of the amended originating motion: denial of procedural fairness and failure to take relevant considerations into account. I permitted Mr Nash to advance these submissions notwithstanding the fact that the particulars of grounds one and six made no reference to the delegate’s failure to obtain the transcript.

Towards the end of the second day of the hearing, I raised with Mr Nash the absence of evidence as to whether the transcript was in existence at the time the delegate was considering the plaintiff’s application for EMDs. Mr Nash sought and was granted leave to file a short affidavit addressing this issue. When granting leave, I made it clear that this was the only issue which was to be the subject of the affidavit.[213] At the conclusion of the second day of the hearing, I reserved judgment.
[213]Transcript of proceeding (16 May 2019), 201.28–202.07.

On 20 May 2019, the plaintiff filed an affidavit affirmed by Mr Kuek. Mr Kuek referred to email communications with the OPP which established that the committal mention transcript was provided to the OPP on 7 March 2017. A copy of the transcript was provided to Mr Kuek. The affidavit established that the transcript was in existence during the period that the delegate was considering the plaintiff’s application for EMDs.

On 21 May 2019, the plaintiff sought leave to ‘file further written submissions, and to make oral submissions of up to one hour, in respect of the contents of the transcripts.’[214] The proceeding was listed for further hearing on 31 May 2019. The parties were granted leave to file further submissions based on the committal mention transcript.
[214]Email from Benjamin Djung, 21 May 2019.

Shortly after the commencement of the hearing on 31 May 2019, Mr Nash foreshadowed an application to further amend the amended originating motion. I informed Mr Nash that I would not entertain such application. Save for the receipt of the affidavit which the plaintiff was granted leave to file, the hearing had concluded on 16 May 2019. Thereafter, I acceded to the plaintiff’s request to hear further submissions of ‘up to one hour’ in respect of the committal mention transcript. No proper application to further amend the amended originating motion had been filed prior to 31 May 2019. The plaintiff had, during the course of the hearing on 10 and 16 May 2019, been granted considerable latitude in advancing submissions based upon the failure of the delegate to obtain the transcript. Further, during the first day of hearing, I asked Mr Nash whether he wished to apply to further amend the grounds in the amended originating motion.[215] No such application was made prior to judgment being reserved at the conclusion of day two.
[215]Transcript of proceeding (10 May 2019), 64.22–65.03.

Further, during Mr Nash’s reply submissions on the second day of hearing I pressed him to identify which of the grounds in the amended originating motion were enlivened by the delegate’s failure to obtain the transcript of the committal proceeding.[216] Thereafter Mr Nash confirmed that the plaintiff submitted that the delegate’s failure to obtain the second recording/transcript of the committal hearing fell within grounds one (denial of procedural fairness) and ground six (failure to have regard to relevant considerations).
[216]Transcript of proceeding (16 May 2019), 188.26–189.05.

It is to be noted that the hearing, although listed for one day, ultimately ran into a third day. Mr Nash’s submissions occupied all but a very short period of the first day of hearing. It is not consistent with the just, efficient, timely and cost-effective resolution of the real issues in dispute[217] for the plaintiff to have attempted to utilise the hearing on 31 May 2019 as a vehicle for further amending his amended originating motion. He had ample opportunity to present his case, and to consider the amendment of his grounds, during the first two days of hearing.
[217]Civil Procedure Act 2010 (Vic) s 7(1).

Conclusion

The plaintiff’s application for the relief sought in the amended originating motion filed on 27 February 2019 is dismissed. I shall provide the parties with an opportunity to make submissions on the costs of the application.

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[2019] VSC 422

26 June 2019