Knight v Wise and Spadano
[2002] VSC 355
•27 August 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 6596 of 2002
| JULIAN KNIGHT | Plaintiff |
| v | |
| ROD WISE and PAUL SPADANO | Defendants |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2002 | |
DATE OF JUDGMENT: | 27 August 2002 | |
CASE MAY BE CITED AS: | Knight v Wise and Spadano | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 355 | |
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PRISONERS – access to legal materials – no outstanding questions between parties – hypothetical questions – declaratory relief
Corrections Act 1986 – sections 47, 47B, 47C
Brazel v Acting Commissioner of Prisons [2002] VSC 213
Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 139 ALR 663
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendants | Mr R D Shepherd | Legal Officer CORE Public Correctional Enterprise |
HER HONOUR:
The plaintiff is a prisoner serving a life sentence at Her Majesty’s Prison Barwon (“the prison”). By originating motion filed on 30 July 2002 he sought an injunction ordering that the defendants return to him certain legal materials sent to him by mail from the Darebin Community Legal Centre on 28 June 2002.
In his affidavit of 15 August 2002 the second defendant deposed that he had decided that the materials in question should now be released, and that they were available to be provided to the plaintiff at the prison.
That being so, the plaintiff now seeks the amendment of the originating motion by substituting for the original claim a claim for the following:
Either an order in the nature of a prohibitory injunction ordering that the defendants refrain from inspecting legal mail sent to or by the plaintiff in any manner inconsistent with the procedure set down in section 47B of the Corrections Act 1986 (“the Act”);
Or in the alternative an order in the nature of a declaration declaring that the plaintiff has a common law right to legal professional privilege and that the provisions of sections 47B of the Act as the relate to a letter to or from a legal practitioner, are not overridden by any other provisions of the Act.
The relevant provisions of the Act, which were introduced, with effect from at the latest 1 March 2002, by the Corrections (Custody) Act 2002, read:
47Prisoners rights
(1)Every prisoner has the following rights¾
.. .
(m)subject to sections 47A and 47B, the right to send letters to, and receive letters from, the following people without those letters being opened by prison staff –
.. .
(iii)a legal practitioner representing the prisoner, or from whom the prisoner is seeking legal advice;
.. .
(vii)any person authorised to act on behalf of a person listed in sub-paragraph (iv), (v) or (vi);
(n)subject to section 47D, the right to send and receive other letters uncensored by prison staff;
.. .
47BCertain confidential letters may be inspected
(1)This section applies if the Governor reasonably suspects that a letter to, or from, a prisoner contains any unauthorised article or substance, but section 47A does not apply.
(2)If the letter is to, or from, a legal practitioner, the Health Services Commissioner or the Human Rights and Equal Opportunity Commissioner or any person authorised to act on behalf of either of those Commissioners, the Governor -
(a)may hold the letter and notify the prisoner and the legal practitioner, or the relevant Commissioner, of his or her suspicions; and
(b)may open and inspect the letter -
(i)in the presence of the prisoner and a representative of the legal practitioner or relevant Commissioner; or
(ii)in accordance with any alternative arrangement agreed with the legal practitioner or relevant Commissioner -
but must not read or censor the letter.
(3)If the Governor has not received a response from the relevant Commissioner or legal practitioner within 7 days after notice is given under sub-section (2), the Governor may require the prisoner to open the letter to enable the Governor to inspect it.
(4)If the letter is to, or from, the Minister, a member of Parliament, the Secretary, the Commissioner or an official visitor, the Governor may require the prisoner to open the letter to enable the Governor to inspect it.
(5)If a prisoner refuses a request to open a letter under sub-section (3) or (4), the Governor may open the letter.
(6)In opening or inspecting a letter under this section, the Governor -
(a)may inspect the envelope, and any associated packet, parcel, container or wrapper; but
(b)must not read or censor the letter.
47CAll other letters may be opened and read
A prison officer may open, inspect and read a letter sent to, or received by, a prisoner by or from any person who is not listed in section 47(1)(m) to determine whether or not the contents of the letter may jeopardise the safety and security of the prison, the safe custody and welfare of any prisoner or the safety of the community.
I would, with respect, adopt the following passages from the judgment of Beach J in Brazel v Acting Commissioner of Prisons[1] :
[1][2002] VSC 213
[24] As Gillard J said in Rich v Groningen and Others [2] :
[2](1997) 95 A Crim R 272 at 278
Finally, the exercise of powers and duties by prison authorities depends on factual situations which arise at a particular point in time and which are the subject of decisions made by officers in the day-to-day management and operation of a prison. The facts will change. The weight attached to factors such as security, fire risk and good administration and management of the prisons will vary considerably depending on the circumstances. Mr Shepherd submitted that in those circumstances a court should not make a declaration in relation to the exercise of discretion made in the course of making decisions except in circumstances where there is a dispute, the facts are established and a finding is made. I agree.
[25] In my opinion that is a correct view of the matter.
[26] I also agree with the observation of Curtin J in Fyfe v State of South Australia [3] . That was a case in which his Honour was dealing with a prisoner in a somewhat similar situation to that in which the present plaintiff found himself between 12 September and 2 October. At para 18 of his judgment his Honour said:
There can be no question that it is the duty of this court to conduct a careful review and to closely scrutinise the reasons advanced for the decision. Prisoners are in a position of particular disadvantage. Any abuse of power by prison authorities is unacceptable and can often have serious ramifications. At the same time, however, the limits of the court's jurisdiction must be carefully observed and the court must avoid becoming enmeshed in the merits of particular decisions. The management of prisons is a particularly difficult and sensitive task involving complex practical considerations and security implications with which the court is not familiar and which it is difficult for the court to understand or fully appreciate from the comfort of the court surroundings.
[28] It must be remembered that under the provisions of s. 47(1)(j) of [the Act] the plaintiff has the right to make complaints concerning prison management to the Minister, the Secretary to the Department of Justice, the Commissioner appointed pursuant to s. 8A of the Act, the Governor of the prison, an official visitor, the Ombudsman, the Health Services Commissioner and the Human Rights Commissioner.
[29] In that situation this Court should be slow to interfere in matters of prison procedure and prison security and should only do so in an exceptional case where such interference may be warranted. I do not consider this to be such a case.
[3](2000) SASC 34
As to the proposed claim for an injunction, it is unnecessary for the Court to make an order directing that the defendants comply with the law, as they are in any case bound to do so. Should they fail to do so in the future, the plaintiff has his remedies. The first claim for amendment of the statement of claim accordingly fails.
As to the proposed claim for a declaration, I would refer to the judgment of Lockhart J in Aussie Airlines Pty Ltd v Australian Airlines Ltd[4] where His Honour said:
For a party to have sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests which have been formulated by the courts, some in the alternative and some cumulative. I shall formulate them in summary form as follows:
(a)the proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies (In Re Judiciary and Navigation Acts (1921) 29 CLR 257).
[4](1996) 139 ALR 663 at 670-671
The learned authors of Aronson & Dyer, Judicial Review of Administrative Action [5] comment as follows on the principle there stated:
There are good reasons behind the judicial distrust of the advisory or hypothetical opinion. The facts upon which a declaration is to be conditioned may never occur, or they may take on a wholly new complexion if other facts also occur. A change in the facts might have knock-on effects for non-parties affected by the declaration. A hypothetical declaration, therefore, can be wholly useless or wrong, or only partly useful or right. It is all a question of degree and context, but there is usually a correlation between the extent of the conditional or hypothetical nature of a declaration and its irrelevance or inaccuracy. An irrelevant judgment wastes both party and judicial time. Inaccuracy is something to avoid intrinsically, and it can present difficulties for a future court in unscrambling the error.
[5]second edition, 2000, p 641
There is, as appears from [2] above, no outstanding issue between the parties in this proceeding, and thus the test set out by Lockhart J and cited in [7] above is not met. The claim for amendment of the statement of claim relating to a declaration accordingly fails.
There being no outstanding issue between the parties on the original claim, and the claim for amendment of the originating motion having failed, the plaintiff’s application is dismissed.
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