Marsh v Department for Correctional Services

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Judicial Review)
MARSH v DEPARTMENT FOR CORRECTIONAL SERVICES
[2024] SASC 73
Judgment of the Honourable Justice Hughes
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES - MEANING OF DECISION - REPORTS AND RECOMMENDATIONS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES - DECISIONS OF AN ADMINISTRATIVE CHARACTER
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
The applicant seeks judicial review of a decision or decisions made by the respondent, the Department for Correctional Services. The decision(s) were not clearly identified. One was a recommendation that he undertake a training program provided by the respondent. Another was that the respondent applied a label of "domestic violence offender" to the applicant.
The applicant is currently serving a sentence of imprisonment and is currently eligible to apply for parole. During his sentence, the applicant has been subject to a yearly Individual Development Plan which contains recommendations for education, training, and medical and psychiatric treatment. In 2019, a recommendation was made that the applicant undertake the Domestic Family Violence Intervention Program (DFVIP).
The respondent sought summary dismissal of the application on the grounds that there is no reasonable basis for the applicant’s action and that the relief sought would produce no foreseeable consequences for any parties and that the relief sought is futile.
Held; granting the application for summary dismissal:
1. None of the respondent's actions constituted decisions amenable to judicial review.
2. The respondent's recommended treatment program was not compulsory.
3.The respondent's label attached to the applicant reflected the assessment and not his convictions, and was an internal classification without legal consequence.

4. The proceedings lacked merit and utility and summary dismissal is appropriate.
Correctional Services Act 1982 (SA) s 23; Uniform Civil Rules 2020 (SA) rr 144.2, 256.5, referred to.
Adelaide Brighton Cement v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Narroway v Department for correctional Services [2020] SASC 19, applied.
Vansetten v State of South Australia [2020] SASC 158, considered.

MARSH v DEPARTMENT FOR CORRECTIONAL SERVICES
[2024] SASC 73
Civil: Judicial Review

HUGHES J: This decision concerns an application for summary dismissal of the applicant’s proceedings for judicial review.
The applicant is currently serving a sentence of imprisonment of 7 years, 11 months, and 9 days. His non-parole period was set at 4 years. The sentence commenced on 14 March 2018 and Mr Marsh became eligible to apply for parole on 13 March 2022. Mr Marsh’s head sentence is due to expire on 22 February 2026.
In this decision, I shall refer to Mr Marsh as the applicant, and the Department as the respondent, in accordance with their roles in the judicial review proceedings.
The decision about which the applicant complains was said to have been made on 23 December 2019. The decision, or a decision, that is complained of is that the applicant should undertake a particular program, the Domestic Family Violence Intervention Program.
A prisoner who is sentenced to a period of imprisonment for 12 months or more is the subject of an Individual Development Plan (IDP) which contains recommendations for education, training or medical or psychiatric treatment of the prisoner. This is provided for under s 23 of the Correctional Services Act 1982.
The following events are documented in the affidavit of Ms Kelly executed on 13 March 2024.
On 23 December 2019, the applicant attended an assessment for his Individual Development Plan. The assessment was conducted by one of the respondent’s employees from the Sentence Management Unit. Ms Kelly’s affidavit explains the information that is relied upon in such an assessment that leads to a prediction as to whether a person is likely to commit an offence of domestic violence. Those matters extend beyond the person’s convictions for domestic violence offences. In the applicant’s case, two allegations made to police by a former partner of the applicant, and an intervention order protecting her from him, were taken into account in the assessment. As a result of the assessment, the employee recommended that the applicant engage in the Domestic Family Violence Intervention Program (“DFVIP”).
The applicant’s Individual Development Plan was updated to reflect the assessment.
The recommendation outlined reasons stating:
Mr Marsh had been subject to a restraining order for the protection of [the complainant] in 2000. He was charged with two domestic violence offences in 2016 which were dismissed for want of prosecution on 27/07/2016. Mr Marsh had also been issued with an interim Intervention order on 30/04/2016 which was later dismissed from court on 8/12/2016. It was recommended that Mr Marsh be considered for inclusion in the DFVIP program.[1]
[1] Exhibit A of Affidavit of Christopher Peter Marsh affirmed on 6 November 2023.
The respondent’s Sentence Management Unit manager endorsed that recommendation on 30 December 2019, and the applicant was advised of those assessments, according to the respondent, on 13 January 2020. The applicant says that the respondent’s action was a decision, for the purposes of judicial review, and that he only received notice of the decision on 30 December 2021.
On 16 September 2021, the applicant made an application to the Parole Board to be considered for parole. On 1 March 2022, the Parole Board noted the submissions that had been made by the applicant, and resolved to interview him following his completion of a Violence Prevention Program and the DFVIP.[2]
[2] Exhibit B of Affidavit of Christopher Peter Marsh affirmed on 6 November 2023.
On 16 May 2023 the Parole Board interviewed Mr Marsh and decided to defer a decision as to a grant of parole pending his completion of the DFVIP and receipt of the post treatment report.
The applicant has not completed the DFVIP. The applicant initiated proceedings of judicial review on 20 February 2024.
The respondent has applied to the Court to have the proceedings summarily dismissed. I have considered the affidavit material and the parties’ written and oral submissions on the application for summary dismissal.
I turn to a consideration of what an application for summary dismissal entails.
Summary judgment may be applied for under the Uniform Civil Rules (“UCR”) rr 144.2 and 256.5(3)(a). These provide that the Court will dismiss the judicial review action unless the Court is satisfied there is a reasonable basis for the action. The Court can enter summary judgment if satisfied that there is no reasonable prospect that if the judicial review proceeded to trial, the trial judge would exercise the discretion to grant the relief.[3]
[3] Vansetten v The State of South Australia [2020] SASC 158 at [69].
The basis for an application for summary dismissal is r 256.5(3)(a) which requires the Court to dismiss an action unless it is satisfied that there is a reasonable basis for the action. Rule 144.2 empowers the Court to enter a judgment on a summary basis on the application of a party. It has been made clear by this Court that the power to determine a claim summarily should not be exercised lightly. What is required of the Court is to make an assessment of whether or not the applicant has a real, as opposed to a fanciful, prospect of success. It is recognised that the decision will be made on incomplete evidence which gives rise to the need for caution.[4]
[4] Adelaide Brighton Cement v Hallett Concrete Pty Ltd (2020) 137 SASR 117.
Consideration of an application for summary dismissal does not require a close examination of the evidence and issues as they would be ventilated at the hearing of the substantive proceedings, but a careful consideration of the legal propositions and the way in which the party proposes to establish their applicability to the particular context.
In Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd,[5] Doyle J (as his Honour then was) put it as follows:
By way of summary of the approach articulated in Spencer v Commonwealth, it can be said that the power to determine a claim summarily should not be exercised lightly. Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the claim is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed. However, beyond these very general guidelines, the Court should focus upon the words used in the rules and avoid applying any judicial gloss.
Related to the requirement that the Court undertake a practical assessment is the notion that the Court should not embark upon a mini trial of the claim. Rather, the claim should be assessed in a summary manner, while being cognisant of the incomplete nature of the evidence upon which the Courts decision must be based. Adversarial argument may assist, and indeed may result in the emergence of a sufficiently clear answer to a complex issue that summary judgment is appropriate. On the other hand, the need for prolonged argument may be indicative of a reasonable basis for the claim.
(Citations Ommitted)
[5] Ibid at [59]-[60] per Doyle J.
The overarching proposition to be established by the respondent on its application for summary dismissal is that the applicant has failed to raise in his application for judicial review any arguable point, such that it would not do the applicant injustice to determine his claim at this early juncture. The application for summary dismissal is not limited to procedural defects in the initiating application, but to whether the Court can be satisfied that the application for judicial review lacks merit such that summary dismissal is appropriate.
The respondent’s case
The respondent contends that there is no reasonable basis for the applicant’s action. In the alternative, the respondent submits that the relief sought would produce no foreseeable consequences for any of the parties and that the relief sought is futile. The respondent also asserts that as a discretionary relief, it is relevant that the proceedings were brought significantly out of time.
In the further alternative the respondent seeks an order striking out the originating application and statement of facts, issues and contentions.
The applicant has two broad grounds of complaint about the respondent’s decision. Firstly, he says that the respondent cannot say that the program is suitable for him. It is an element of the program that the sessions be recorded and the applicant says that it has been documented that his mental health prevents him from undertaking any program that is recorded. Secondly, he is critical of the process by which he came to be classified as a domestic violence offender when he does not have any convictions for a domestic violence offence. In his submission, the applicant states “it takes one or two prisoners to stand up and make enough noise to be heard and try and put a stop to it before more damage is done to prisoners’ mental health. I’m not a domestic violence offender and I should not be classified as one.”
In his submission, the applicant asks for an order that the respondent remove the recommended program from the applicant’s Individual Development Plan and remove his classification as a domestic violence offender, and order an independent inquiry into the respondent on labelling prisoners domestic violence offenders in the absence of a conviction.
Consideration
For the reasons that follow, the respondent’s application for summary dismissal succeeds.
The first ground upon which the respondent has persuaded the Court that the applicant’s proceedings have limited or no prospects of success is that the applicant has not identified a decision made by the respondent that is amenable to judicial review. I have taken into account the fact that the applicant is not legally represented and not legally trained. He has, in the course of his documents, referred to a number of actions by the respondent. In particular, the record made by the respondent that the applicant is eligible to participate in the DFVIP program is identified as a decision of which he seeks review.
The respondent submitted, and I accept, that the Chief Executive’s action under s 23 concerns either a transfer of a prisoner to another prison, or the preparation of a program for the prisoner’s education, training or treatment during the period of imprisonment. In this case, the action was an assessment for the purpose of a treatment program that the applicant is eligible for the DFVIP program on offer. That assessment is not a decision for the purposes of judicial review. The respondent correctly identified that the assessment or the record of it does not enliven any express rights or legitimate expectations for the applicant.[6] It does not require the Chief Executive to offer any particular education, training or treatment, or for a prisoner to participate in any recommended program. Indeed, the applicant has successfully declined to participate in the recommended program on the basis of his concern for the effect upon him that participation may have.
[6] Narroway v Department for Correctional Services [2024] SASC 19, [36].
At this point it is useful to refer to the minute to the Sentence Management Unit and the Parole Board upon which the applicant himself relies. In that report dated 8 April 2022,[7] the senior clinician and the manager of the Rehabilitations Programs Branch state that Mr Marsh was aware of an outstanding core program referral to be assessed for the DFVIP and stated that he did not feel he would be able to participate in this program due to the program sessions being recorded. The applicant was informed of the possible consequences of refusing to participate in a program or refusing to be assessed. He stated that he understood the consequences but did not feel he would be able to cope if he was exposed to a camera when the sessions were being recorded.
[7] Exhibit G.
The respondent sought to rely on the recent decision of Narroway v Department for Correctional Services [2024] SASC 19 in which McIntyre J concluded that the decision that a prisoner is eligible to participate in the DFVIP is not a decision amenable to judicial review.
McIntyre J referred to this Court’s decision in Vansetten v State of South Australia[8] and said:
…an assessment determining eligibility for a program such as the DFVIP did not enliven any express rights or legitimate expectations for the applicant. There was no substantive legal effect or foreseeable consequence that directly arises from such assessment.
[8] [2020] SASC 158 per Doyle J.
Her Honour went on to say,
Whilst the CE is bound to assess a prisoner and prepare a program the CE is not bound to implement it. In the present case, the CE did implement the applicant’s IDP. The applicant was assessed and offered a position in the DFVIP. As was his right, he chose not to undertake that course. That decision by the applicant has had consequences for his application for release on parole. However, any anticipated use by third party decision makers of that assessment or conclusions reached as part of that assessment, such as the Parole Board subsequently reviewing a prisoner’s circumstances for consideration for release on parole does not enliven a right of review.[9]
[9] Narroway v Department for Correctional Services [2024] SASC 19, [38].
The applicant sought to distinguish Narroway on the different factual circumstances as between his offending history and that of Mr Narroway. That focus on the facts fails to address the important legal aspect of the Narroway decision, which is the characterisation of the activity performed by the respondent under s 23 of the Correctional Services Act 1982. I endorse the approach taken by this Court in Narroway and find that it is applicable to the applicant’s circumstances.
Further, the applicant has been offered assistance to overcome his objections to participation in the recommended program. He has been offered the ability to make representations about his Individual Development Plan, and he has been advised of the possible consequences of failure to participate in a recommended program.
If there has been a ‘decision’ for the purposes of judicial review, there has not been a lack of procedural fairness to the applicant.
A further decision to which the applicant refers and might be characterised as the decision to which the proceedings relate, concerns the respondent’s characterisation of the applicant as a domestic violence offender on the Department’s Justice Information System. Whilst there was no evidence before the Court as to the Justice Information System, it was described as ‘internal’ and was evidently understood by both parties to be the respondent’s digital record-keeping system in respect of prisoners.
The respondent submits that recording the applicant as a “domestic violence offender” is an internal label and it is applied to a cohort of prisoners on the basis of their histories extending beyond their convictions. I accept the respondent’s submission that the characterisation is not a ‘decision’ for the purposes of enlivening a right to judicial review.
Grounds of complaint
Even if the decision to assess the applicant as eligible to participate in the program, or to recommend his participation in the program, or to offer the program, or to characterise him as a domestic violence offender, were a decision amenable to review, it appears that the applicant’s real concern is that his decision to decline to participate has affected his assessment for suitability for parole. The applicant’s proceedings do not extend to the Parole Board’s decision. It is not a party to the proceedings.
In any event, it must be remembered that the task of the Court, on any substantive judicial review, would not be to assess the merits of any decision but to assess whether or not it was lawfully made. The applicant has not identified any basis upon which the decisions referred to above were unlawfully made.
It might be inferred that the applicant considers that it is not open to the respondent to offer a program addressing domestic violence to a person who has not been convicted of a domestic violence offence. However, he has not identified any basis, and I cannot discern any basis, for such a position. The applicant also criticises the respondent’s recommendation that he undertake a course when the respondent has information that to undertake the course as proposed may have a detrimental effect on his mental health. He submits that it is documented that he has a history of being offended against that makes it difficult for him to be video-recorded. The applicant has not asserted, and there is no basis for finding, that this complaint is one that goes to the lawfulness of the respondent’s actions.
The difficulty with the applicant’s case is highlighted when the available remedies are considered. In relation to the respondent’s finding or decision that the applicant is eligible for a particular program, the applicant must be understood to seek to have that quashed. In turn, it must be understood that the applicant considers that his eligibility was wrongly based on allegations that did not result in convictions. But to be quashed, there must be a decision with legal effect. The finding of eligibility for a program does not have that quality. The difficulties are greater, even, in relation to the complaint about the “domestic violence offender” label in the Justice Information System. There is no indication that the label itself had any bearing on the offer of treatment, or the Parole Board’s decision to defer consideration of the applicant’s parole application.

The respondent also contends that the applicant is now substantially out of time to complain about events that occurred some years ago. However, the applicant submits (but has not established) that he only became aware of the decision recently and attempted to make an application for an extension of time. It is not necessary to make any determination about those contentions. If there was a decision, and it had legal consequences, it would be necessary to consider those issues and make at least a preliminary determination on such evidence as is available.
The respondent’s submissions about time limits also prompted the applicant to submit in oral submissions that the relevant decision had ‘expired’ because it was made during the time that he was serving a sentence that was completed, and that since 2022 he has been serving a sentence for different offences. I reject that argument and accept the respondent’s submission that the Individual Development Plan does not attach to particular sentences but to the prisoner’s period in custody, and is not affected by which sentence a prisoner is currently serving.
For the above reasons, the respondent’s application for summary dismissal succeeds.
The respondent has applied for costs but the applicant has not addressed that matter.
The applicant has until Wednesday 19 June 2023 to make a written submission (two pages maximum) in response to the application for costs. After that date, an order will be made administratively in Chambers whether or not a submission has been received.

[2024] SASC 73

29 May 2024