Knight v Minister for Corrections
[2003] VSC 82
•21 February 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 8621 of 2002
| JULIAN KNIGHT | Plaintiff |
| v | |
| MINISTER FOR CORRECTIONS AND ORS | Defendant |
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JUDGE: | WARREN J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 February 2003 | |
DATE OF JUDGMENT: | 21 February 2003 | |
CASE MAY BE CITED AS: | Knight v Minister for Corrections and Ors | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 82 | |
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendants | Mr R.D. Shepherd | Victorian Government Solicitor |
HER HONOUR:
The plaintiff is presently serving a term of life imprisonment and has been in custody now for approximately 16 years.
He has brought proceedings under Order 56 of the Supreme Court Rules seeking judicial review with respect to his particular location at Barwon Prison. The plaintiff seeks relief in the nature of certiorari, alternatively, mandamus.
He has deposed on affidavit that he is presently located in the unit known as Acacia at Barwon Prison. It is not entirely clear from the affidavit of the plaintiff or for that matter nor is it entirely clear from the affidavits filed on behalf of the defendants as to whether the plaintiff is the subject of a separation order for the purposes of the Corrections Regulations 1998, "the regulations". Furthermore, it is not clear entirely what a separation order means. It seems to me on the basis of the affidavits and the matters about which I have been informed today that these are factual disputes. In particular, I observe that Regulation 22 of the regulations provides that if a separation order is made, it must be made for a specified period.
Part of the complaint of the plaintiff is that he has been placed in the Acacia unit without a period being stipulated. In effect, he complains that his retention in the Acacia unit is continuous without him knowing for how long.
The Department has brought an interlocutory application under Order 23 of Chapter 1 of the Supreme Court Rules seeking to summarily dismiss the application or strike it out at a preliminary stage, that is without a trial and without the court hearing the evidence and without the plaintiff having the opportunity to ventilate the matters he wishes to put forward to the court in support of his claim.
At the outset I observe that there is a very high test that lies with an applicant such as the defendants seeking summary dismissal. In essence, what a defendant must do in the position of the defendants here is persuade the court that the claim is bad in law or lacks foundation or, in effect, that the plaintiff does not have an arguable basis for the case that he has brought.
Generally, when relief is sought in an originating motion as has happened here, it is quite a distinct process from that where a party brings a claim under a writ with a Statement of Claim. Here there is a straightforward statement by the plaintiff as to the relief that he seeks. He says that he seeks relief in the nature of certiorari quashing a decision of the defendants to classify him in a particular part of the Barwon Prison. He alleges the decision is contrary to the Corrections Regulations. The plaintiff also complains that the first defendant has unlawfully interfered or dictated as to the location of the plaintiff with the prison. The plaintiff further complains that he has been denied procedural fairness as to the determination of where he is to be located. Finally, he complains that irrelevant and improper considerations were taken into account in determining his location.
It must be observed at the outset that the claim brought by the plaintiff is very broadly based. However, the answer to that may lie with two explanations. First of all, the plaintiff brings his application as a layperson. The grounds recited in support of prerogative writ relief are complex. Secondly, he brings his application on the basis of broad ranging facts which are essentially set out in the various affidavits that he has sworn and the affidavits in opposition filed by the defendants.
A preliminary observation to be made also is that in these sorts of interlocutory applications it is difficult for a party seeking to strike out a proceeding to be successful without going to the affidavits that have been filed on either side. It inevitably follows that once the court is taken to the affidavits, the court invariably, if not necessarily, must venture into the merits of the particular case. Once that happens, it can on occasion, if not on most occasions, prove fatal to the interlocutory application. For example, the 1st defendant seeks dismissal of the proceeding against him essentially on the basis that he did not make the decision under challenge. However, the plaintiff's allegation is not solely concerned with power. He asserts that the 1st defendant interfered with or influenced the decision making process. Such allegation and its determination is a matter of fact to be determined at trial.
Here I observe that there are affidavits filed on either side. It is apparent from the affidavits and in the course of submissions today that there are areas of dispute. This is not the occasion for the determination of the dispute. It is simply a short question; in effect, whether the claim of the plaintiff is without foundation at law. If it is an arguable case and that it is only standard that need be satisfied, then the determination of the plaintiff's claim is a matter proper for trial.
An assertion has been made on behalf of the defendants that the plaintiff has no entitlement to natural justice as he claims in his claim and reliance is placed in particular on the judgment in R v. Classification Committee; Ex parte Finnerty. That authority I observe is authority for the proposition that a prisoner under the statutory regime had no legitimate expectation of natural justice, fairness or otherwise. However, to say that the authority of the Classification Committee case entitles the correctional authority to summary dismissal with respect to certiorari is a proposition for present purposes with which I have some difficulty. Inevitably I would need to make determinations on the basis of the affidavits that have been filed. That takes me back to the difficulty that I adverted to before.
There is the additional matter, that all of the authorities that I was taken to on behalf of the Department with one exception were cases where the judge was concerned with the full trial of the proceeding and not an interlocutory application to strike out the particular claim by the plaintiff.
I am mindful of the hesitation that has been expressed by judges of this court on occasion as to the court reviewing and interfering with correctional processes, but again, as I say, it seems to me that in this case it is a matter to be determined at trial.
I also have a difficulty in a case such as this that it is appropriate to bring an interlocutory application to strike out a claim pursuant to Order 23.
However, I make some additional observations. It seems from the basis of the evidence on affidavit before me today that the second defendant (Anderson) is not properly joined and I would propose that he be struck from the record. There is no basis to assert that the second defendant made the decision under attack. So much does not appear to be in issue.
There is also an additional matter that I draw to the attention of the parties, although it is not formally before me today, and that is the date on which the originating process was issued, that is 13 December 2002, and the date when the decision that is the subject of the attack was made. However, they are matters that I need not be concerned with today, but I draw them to the attention of the parties.
There is a remaining matter and again I draw this to the parties also by way of additional observations. The form of the originating motion at present, strictly speaking, does not meet the requirements of the rules in that the remaining first defendant, the Minister for Corrections and the remaining third defendant, the Director of Sentence Management should properly be named on the court record pursuant to the rules of the Supreme Court and their positions spelt out in the title to the proceeding. These are matters that can be rectified, I would expect, in due course.
It follows from my remarks that I am not satisfied that the discretion I have under Order 23 should be exercised in favour of the defendants and I will dismiss the summons. The proceeding will continue against the 1st and 3rd defendants. In so doing I do not express or indicate in any way a view as to the merits or otherwise of the plaintiff's claim. Those are matters to be determined properly by the trial judge in due course.
Accordingly, I would order as follows: That the proceeding be dismissed with respect to the second defendant; secondly, I dismiss the application otherwise by the defendants.
Are there any other matters to be dealt with, Mr Shepherd.
MR SHEPHERD:
Your Honour. Just one matter about the first defendant, the Minister. As I understand Your Honour's reasons it's to continue against the Minister, I was unsure what decision was attacked against the Minister because the submission which was put in respect of the second defendant was the same really, perhaps a stronger one even for the first defendant, the Minister.
HER HONOUR:
Mr Shepherd, I have ruled on the matter and I have indicated in my reasons, I have indicated in the statements I have just made and the remarks I have just made that the proceeding is to be struck out with respect to the second defendant. I will not make any other orders with respect to the remaining defendants.
Are there other matters that have to be dealt with at this point?
MR SHEPHERD:
Just costs in the proceeding.
HER HONOUR:
Why should the Department, why should the defendants obtain costs?
MR SHEPHERD:
We just want them to be costs in the proceeding.
HER HONOUR:
I'm not satisfied that any order ought be made. If costs were to follow the event there would be an order against the defendants as they have been unsuccessful in the proceeding. I have difficulty in seeing how the defendants can seek any order with respect to costs including the costs be costs in the proceeding.
MR SHEPHERD:
Just that we have succeeded in part on our application in respect of the second-named defendant.
HER HONOUR:
I'm not satisfied there should be any order as to costs in this matter.
Is there anything else, Mr Shepherd?
MR SHEPHERD:
No.
HER HONOUR:
Is there anything else you wish to raise at this point, Mr Knight?
PLAINTIFF:
No, Your Honour.
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