Kyriazis v Coelho
[2019] VSC 74
•21 February 2019
| 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 incident report, together with relevant CCTV footage, the first defendant decided to ban the plaintiff from entering all prisons in Victoria for a period of three months. The ban was communicated by way of a letter dated 16 October 2017.
[2]See Corrections Regulations 2009 r 33. Electronic devices are generally prohibited. The Governor may give specific approval to a visitor but it was neither sought nor given in this instance.
On 27 October 2017, as is his right, the plaintiff requested an internal review of the decision. This was done and, on 30 November 2017, the plaintiff was advised that the ban had been upheld.
On 1 December 2017 the plaintiff filed an originating motion claiming prerogative relief in the form of certiorari, prohibition and mandamus, as well as five declarations in respect of the first defendant’s decision to ban him.
On 13 January 2018 the ban expired and, on 21 February 2018, the plaintiff was advised that his visitor status had been reinstated. It was at that time explained to the plaintiff that, when visiting Victorian prisons in the future, he would need to store his recording device in a secure locker. Failure to do so, he was told, could lead to the imposition of further bans.
On 15 April 2018 the plaintiff attended Hopkins in the company of another person. Their intention was to visit Mr Dudley. Once again, the plaintiff was allegedly aggressive and confrontational, refusing to store his recording device in a secure locker. The situation escalated and police were called to remove the plaintiff and the other person. They left, however, before the police arrived.
The incident on 15 April 2018 became the subject of several complaints by prison officers to the General Manager. The General Manager at that time was no longer Mr Coelho but rather Scott Jacques. Mr Jacques shortly thereafter went on leave and Leo Harrington became Acting General Manager. On 23 April 2018, after reviewing the complaints, incident report and footage from a ‘body cam’ worn by one of the officers on 15 April 2018, Mr Harrington decided to ban the plaintiff from entry into all prisons in Victoria for 12 months. This further ban was communicated to the plaintiff by way of a letter dated 24 April 2018.
The ban imposed by Mr Harrington is not the subject of these proceedings for judicial review. However, at a series of interlocutory hearings, the plaintiff sought to agitate the subject of the 12-month ban. On 8 June 2018 he advised the Court that he wished to amend his originating motion to incorporate an attack on the 12-month ban. The Court gave the plaintiff leave to file and serve an amended origination motion by 6 July 2018.
The plaintiff did not file and serve an amended originating motion despite being granted two extensions of time, the first until 6 September 2018, and the second until 19 October 2018. It follows that the 12-month ban imposed on 23 April 2018, which is still in force, is beyond the scope of this proceeding.
Statutory regime for access to prisons
The functions of the second defendant in respect of the Victorian corrections system are set out in Part 2 of the Act:
7 Functions of Secretary
(1)The Secretary is responsible for monitoring performance in the provision of all correctional services to achieve the safe custody and welfare of prisoners and offenders.
The general powers and obligations of prison officers and officers in charge of a prison are set out in Part 5 of the Act. The following provisions are relevant for present purposes:
14 Definitions
In this Part—
officer means a person who is—
(a) a Governor; or
(b) a prison officer; or
(c) a volunteer; or
…
20 Duties relating to security and welfare
(1)An officer in charge of a prison or part of a prison must take all reasonable steps for the security of the prison or part of the prison.
(2)An officer in charge of prisoners must take all reasonable steps for the safe custody and welfare of the prisoners.
(3) An officer must not jeopardise the security of the prison.
…
21 Duties of Governor
(1)The Governor of a prison is responsible for the management, security and good order of the prison and the safe custody and welfare of the prisoners.
…
22A Powers of Governor
(1)A Governor has and may exercise all or any of the powers or functions of a prison officer or escort officer under this Act.
The term ‘governor’ is no longer used in practice by Corrections Victoria and had been replaced by the term ‘general manager’. The Act uses the term governor to refer to the person in charge of a prison, i.e. now the general manager, and so for present purposes we may read ‘governor’ as ‘general manager’.
The management of access to prisons is provided for in more specific terms in Part 6 of the Act. Section 43(1A) is the relevant section here:
43 Governor may refuse or terminate visits for security reasons
…
(1A)Without limiting any other power of the Secretary under this Act, if the Secretary believes on reasonable grounds that the good order or security of prisons or the safety of prisoners or visitors to prisons is threatened, the Secretary may by order prohibit a person from entering all or any prisons in Victoria as a visitor.
The explanatory memorandum accompanying the Act contains the following relevant discussion:
Access to prisons is dealt with in detail and provision made for the appointment of official visitors. These sections balance the need to maintain security in prisons and the need for prisoners to maintain family and community ties.[3]
…
Clause 43 empowers the Governor to refuse or terminate any visit where the security of a visitor is threatened.[4]
[3]Explanatory Memorandum, Corrections Bill 1986, 1.
[4]Ibid 4.
Judicial review of prison management
The courts traditionally have been slow to interfere in the management of prisons unless there has been a clear infringement of a legislative requirement by prison authorities.
The Court of Appeal in Anderson v Pavic[5] confirmed that the jurisdiction of the courts to supervise the administration of a prison is a narrow one. In that case Nettle JA (as he then was) observed:
[P]rison legislation should ordinarily be interpreted so as to give full scope to the power of correctional authorities to carry out tasks of prison administration and management without undue influence from the courts.[6]
[5][2005] VSCA 244.
[6]Anderson v Pavic [2005] VSCA 244, [32] (Nettle JA).
These principles were affirmed by this Court in Moran v Secretary of the Department of Justice and Regulation.[7]
[7](2015) 48 VR 119, 127 [26] (McDonald J).
It follows from these principles that, unless the Act provides otherwise, the degree of judicial supervision that is consistent with the lawful maintenance of a prison environment will be limited.
Analysis
In the course of oral submissions the plaintiff took the Court through the six grounds set out in his originating motion dated 1 December 2017.
As set out in the defendants’ submissions, the plaintiff’s grounds can be summarised as follows:
(a) the first defendant had no authority to make the decision (authority ground – grounds 1 and 2 in the originating motion);
(b) the decision was unreasonable (unreasonableness ground – grounds 3 and 4 in the originating motion); and
(c) the reasons and/or the review reasons were inadequate (reasons ground – grounds 5 and 6 in the originating motion).
Authority ground
The plaintiff submits that the decision to impose the three month ban was made by the acting general manager of Hopkins and that this was in contravention of the Act, which required that he be ‘notified’ of the decision by the governor.[8]
[8]Transcript of Proceedings, Kyriazis v Coelho (Supreme Court of Victoria, Zammit J, 4 February 2019) 35.12-27 (‘T’).
This ground has no merit. The first defendant was authorised to make the decision by delegation from the second defendant.[9]
[9]Corrections Act 1986 s 8; Affidavit of Robert Coelho sworn 2 November 2018; exhibit RC-5.
Unreasonableness ground
The plaintiff took issue with the findings of the first defendant and the materials he relied upon in reaching the decision to impose the three month ban. The plaintiff asserted in oral argument that the finding that he had undermined the good order or security of Hopkins, its prisoners and visitors was ‘ridiculous’ and that the statements relied on by the first defendant in reaching that finding were ‘pre-emptive’ and ‘false’.[10]
[10]T38.1–5; T38.30–31.
In imposing the three month ban, the first defendant had regard to:
(a) a memorandum dated 14 October 2017, from an officer who was on duty that day, working in the support office in the gatehouse area of Hopkins;[11]
[11]Affidavit of Robert Coelho sworn 2 November 2018; exhibit RC-1.
(b) an email dated 14 October 2017 from the acting operations manager at Hopkins;[12]
(c) a memorandum dated 15 October 2017 from the acting senior prison officer at Hopkins;[13] and
(d) CCTV footage of the incident on 14 October 2017.
[12]Ibid; exhibit RC-2.
[13]Ibid; exhibit RC-3.
Having regard to the scope, purpose and objects of the statutory source of the power,[14] I consider the first defendant’s exercise of the delegated power under s 43(1A) of the Act was not legally unreasonable. It was not beyond power to ban the plaintiff from visiting all Victorian prisons for a period of three months.
[14]See generally Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408, 428 [79] (Nettle and Gordon JJ).
The material that was before the first defendant discloses genuine concern as to the plaintiff’s behaviour on 14 October 2017. The first defendant was entitled to infer that the plaintiff posed a threat to the good order and security of Hopkins and the safety of prisoners or visitors. The decision was based on information provided by eyewitnesses and included a review of the CCTV footage. Having reviewed the materials, and without conducting a review into the merits of the decision, I consider there was cogent evidence before the first defendant that provided a reasonable basis for the conclusion reached.
The decision reached was consistent with the scope, purpose and object of s 43(1A) of the Act. The provision clearly states that the second defendant has responsibility for ensuring the security and good order of Victorian prisons. The power, as discussed, has been lawfully delegated to the first defendant. The Court’s role is not to make a determination of the merits of the decision but to determine whether the exercise of statutory power was lawful. The first defendant’s reasons, and the review reasons provided to the plaintiff on 30 November 2017, do not lack ‘an evident and intelligible justification’.[15]
[15]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 367 [76] (Hayne, Kiefel and Bell JJ) (‘Li’).
As Hayne, Kiefel and Bell JJ observed in Minister for Immigration and Citizenship v Li,[16] an analogy can be drawn between the kind of reasoning engaged in by an appellate court when reviewing the exercise of the discretion of a lower court on House v The King[17] grounds, and judicial review of the exercise of a statutory discretion on unreasonableness grounds:
House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent.
…
Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.[18]
[16](2013) 249 CLR 332.
[17](1936) 55 CLR 499.
[18]Li (2013) 249 CLR 332, 366-367 [75]–[76] (Hayne, Kiefel and Bell JJ) (emphasis added).
It follows from the confined nature of such review, as delineated by the High Court, that it is not for me to impose my view in place of that of the first defendant. As Jane Dixon J stated in AS v Secretary to the Department of Justice and Regulation:[19]
the role of a reviewing court is not to substitute its own judgment for that of the decision-maker, but to review the process by which the decision was made.[20]
[19][2017] VSC 310.
[20]Ibid [127].
The first defendant had before him eyewitness accounts and CCTV footage of the plaintiff being aggressive and confrontational at the Hopkins gatehouse. Prison officers informed the plaintiff that his recording device was prohibited and requested that he store it in a secure locker. He ignored them. The situation escalated until the plaintiff left the premises. I cannot see how first defendant, on the basis of the materials that were before him, was acting unreasonably—in the strict sense explained by the High Court in Li—in deciding to ban the plaintiff from all Victorian prisons for a period of three months. The decision reached by the first defendant was evident and intelligible and it is not for this Court to second guess that decision.
The plaintiff denies that his conduct represented a threat to the good order and safety of Hopkins and its prisoners or visitors. He asked the Court to listen to the recording he made of the incident on 14 October 2017. The defendants did not object and, as such, I gave the plaintiff leave to tender the recording.[21] I note that the recording was not before the first defendant and so is beyond the scope of this proceeding for judicial review. Nevertheless, having listened to it (it runs for approximately 30 minutes), I am satisfied that it confirms the defendants’ position that the plaintiff was acting in a belligerent and cajoling manner towards prison officers on 14 October 2017.
[21]Exhibit P1.
For the above reasons, the unreasonableness ground has no merit.
Reasons ground
This ground has no merit. As the defendants submitted, the common law does not impose a duty upon administrative decision-makers to give reasons, and nor does the Act require that a decision under s 43(1A) be accompanied by reasons.[22] Nor did the plaintiff make a request for reasons under the Administrative Law Act 1978. However, and in any event, I consider that the first defendant’s reasons and review reasons are more than sufficient in disclosing a path of reasoning.
[22]That is not to say that s 43(1A) of the Act excludes considerations of natural justice. See generally AS v Secretary to the Department of Justice and Regulation [2017] VSC 310.
Would it be futile to grant the relief sought?
As I have said, the plaintiff seeks relief in the nature of certiorari, prohibition and mandamus, as well as five declarations in relation to the decision.
The plaintiff has not made out any of the grounds upon which he claims judicial review. What is more, even if he had, the prerogative relief he seeks should be refused because the impugned decision no longer affects the plaintiff’s rights or interests. The three month ban expired in January 2018. The plaintiff was advised in February 2018 that the ban had been lifted. The plaintiff has since visited Hopkins on several occasions. Accordingly, the decision has no ongoing legal effect, and is insusceptible to prerogative relief upon judicial review.[23]
[23]Hot Holdings (1996) 185 CLR 149, 159 (Brennan CJ, Gaudron and Gummow JJ); Wingfoot (2013) 252 CLR 480, 492 [25] (French CJ, Crennan, Bell, Gageler and Keane JJ).
For completeness, I note that the plaintiff did not submit that the decision had the practical effect of ‘blackening’ his reputation.[24] If there had been evidence to this effect then, despite it being moot or spent,[25] the plaintiff may have had an arguable basis upon which to claim declaratory relief. However, in the absence of such evidence, declaratory relief will ordinarily be refused where its grant would produce no foreseeable consequences for the parties, be futile or lack utility.[26]
[24]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581 (Mason CJ, Dawson, Toohey and Gaudron JJ) (‘Ainsworth’).
[25]XX v WW and Middle South Area Mental Health Service [2014] VSC 564 [47] (McDonald J).
[26]Ainsworth (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ).
Without repeating the declarations sought by the plaintiff, in this case, the decision of the first defendant in October 2017 to ban the plaintiff for three months from entering all prisons in Victoria no longer affects the plaintiff’s rights or interests. The relief sought by the plaintiff will produce no foreseeable consequence and lacks utility.
Conclusion
As there is no administrative decision susceptible to relief upon judicial review—and the plaintiff has not amended his originating motion so as to challenge the more recent decision banning him from all prisons in Victoria for a period of twelve months—the proceeding must be dismissed.
I will hear the parties on costs and the appropriate form of order.
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