Kyriazis v Coelho - [2019] VSC 74

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW & APPEALS LIST

S CI 2017 04884

VASILIOS KYRIAZIS	Plaintiff
v
ROBERT COELHO (Acting General Manager of Hopkins Correctional Centre)	First Defendant
- and -
SECRETARY TO THE DEPARTMENT OF JUSTICE AND REGULATION	Second Defendant

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2019
DATE OF JUDGMENT:	21 February 2019
CASE MAY BE CITED AS:	Kyriazis v Coelho
MEDIUM NEUTRAL CITATION:	[2019] VSC 74

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ADMINISTRATIVE LAW – Judicial review – Prison management – Visitation regime – Power to restrict access for security reasons – Plaintiff banned from Victorian prisons for three month period – Where ban expired prior to judicial review – Relief unavailable or inutile – Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 followed – Corrections Act 1986 s 43(1A).

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person
For the Defendants	Ms S M C Fitzgerald	Victorian Government Solicitors’ Office

HER HONOUR:

The plaintiff, Vasilios Kyriazis, seeks judicial review of a decision banning him from entering all prisons in Victoria for a period of three months.

The ban was enacted by Robert Coelho, Acting General Manager of Hopkins Correctional Centre (‘Hopkins’), pursuant to s 43(1A) of the Corrections Act 1986 (‘the Act’) and under delegation from the Secretary to the Department of Justice and Regulation. Mr Coelho and the Secretary are accordingly the first and second defendants to this proceeding.

The ban was communicated to the plaintiff by way of a letter dated 16 October 2017. It expired on 13 January 2018 and, on 5 February 2018, the plaintiff requested that his visitor status be reinstated. On 21 February 2018 he was advised that the ban had been lifted. As a result the decision the plaintiff wishes to challenge no longer has any legal effect. It is moot or spent and so, according to well settled authority, is insusceptible to prerogative relief upon judicial review.[1]
[1]Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 159 (Brennan CJ, Gaudron and Gummow JJ) (‘Hot Holdings’); Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 492 [25] (French CJ, Crennan, Bell, Gageler and Keane JJ) (‘Wingfoot’).

It follows that the relief that the plaintiff claims, namely orders in the nature of certiorari, prohibition, mandamus as well as five declarations in respect of the decision, is not available in the circumstances.

The proceeding must therefore be dismissed. My reasons follow.

Background circumstances

The plaintiff is a semi-regular visitor to several prisons throughout Victoria. On 14 October 2017 he was visiting a prisoner, Keith Dudley, at Hopkins on the outskirts of Ararat.

As the plaintiff was being processed by security, he allegedly became aggressive and confrontational, refusing to switch off his recording device and store it in a secure locker (it being a prohibited item).[2] After reviewing the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kyriazis v Coelho

Details

AGLC: Kyriazis v Coelho [2019] VSC 74
Case: [2019] VSC 74
Decision Date: 21 February 2019

CaseChat Overview and Summary

In Kyriazis v Coelho, the plaintiff sought judicial review of a decision made by the second defendant under the Corrections Act 1986. The plaintiff was a visitor to a Victorian prison and was banned from all Victorian prisons for a three-month period, beginning on 16 July 2019. The ban was imposed for security reasons, and the plaintiff sought to challenge the lawfulness of the decision. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the plaintiff's application for judicial review was available or inutile. The plaintiff argued that the ban imposed on him was unlawful and that he was entitled to seek relief from the court. The defendants, however, contended that the plaintiff's application was inutile because the ban had expired before the proceedings were commenced. The court had to determine whether the plaintiff's application was available or if it had become inutile due to the expiration of the ban.

The court held that the plaintiff's application for judicial review was inutile because the ban had expired before the proceedings were commenced. The court found that the plaintiff's application was no longer capable of achieving the relief he sought because the decision he was challenging had already been executed, and the effects of the decision had ceased. The court held that the plaintiff's application had become inutile because it was no longer possible to grant him the relief he sought. The court referred to the decisions in Hot Holdings Pty Ltd v Creasy and Wingfoot Australia Partners Pty Ltd v Kocak, which held that an application for judicial review is inutile if it is no longer possible to grant the relief sought.

The court dismissed the plaintiff's application for judicial review as inutile. The court held that the plaintiff was not entitled to the relief he sought because the ban imposed on him had expired before the proceedings were commenced. The court held that the plaintiff's application was no longer capable of achieving the relief he sought, and therefore, it was inutile. The court did not make any orders in favour of the plaintiff or the defendants.

Orders