McCabe v Westin; McCabe v Pickering (No 2) - [2024] VSC 211

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 02537

ROWAN LEIGH MCCABE	Plaintiff
v
MELISSA WESTIN	Defendant

S ECI 2023 02539

ROWAN LEIGH MCCABE	Plaintiff
v
PHILLIP PICKERING	Defendant

---

JUDGE:	Harris J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2024
DATE OF JUDGMENT:	3 May 2024
CASE MAY BE CITED AS:	McCabe v Westin; McCabe v Pickering (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 211

---

JUDICIAL REVIEW – Remedies – Declarations – Form of declaration to give effect to findings in McCabe v Westin; McCabe v Pickering [2024] VSC 145 – Order in the nature of certiorari granted – Whether order in the nature of mandamus appropriate – Corrections Act 1986 (Vic).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Self-represented
For the Defendant	Mr N Petrie	Russell Kennedy

HER HONOUR:

On 28 March 2024, I published reasons for my judgment in these two proceedings, McCabe v Westin; McCabe v Pickering [2024] VSC 145. In that proceeding, Mr McCabe who was at the relevant time a prisoner at Loddon Prison, challenged decisions of Ms Westin, Deputy Commissioner, Custodial Operations, and Mr Pickering, Operations Manager, Corrections Victoria.[1] The decisions related to his access to an in-cell computer, and to contact visits with his family, following a finding that he was guilty of the disciplinary offence of misusing his computer by installing inappropriate material on it, and the imposition of a fine for that offence.
[1]The defined terms used in that judgment are used in this judgment.

In summary, in that judgment I found that:

(a) A condition of the Contact Visiting Programme authorised by Ms Westin under Deputy Commissioner’s Instruction 3.04 which stipulated that where a prisoner had been found guilty of a prison offence and had received a fine or loss of privileges, the prisoner is ineligible to participate in the Contact Visit Programme (the Fourth Ineligibility Condition) was beyond the scope of the discretionary power under s 38(1) of the Corrections Act 1986 (Vic) which authorised the Secretary or delegate to approve a contact visiting programme.[2]

(b) Mr Pickering’s decision as to the penalty to be imposed for the prison offence was affected by error either by having been made taking into account the Fourth Ineligibility Condition, which was invalid, or if I was wrong in that conclusion, by failing to afford Mr McCabe procedural fairness in the decision.

[2]McCabe v Westin; McCabe v Pickering [2024] VSC 145, [273]-[274], [282]-[285].

The parties were invited to provide written submissions regarding the question of relief arising out of the judgment, and a further hearing was held on 29 April 2024.

The parties agree that the appropriate relief includes a declaration relating to my decision as to the Contact Visiting Programme; and an order in the nature of certiorari applying to the penalty decision made by Mr Pickering. Neither party seeks an order as to costs. The differences between the parties are limited…

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.

Keep reading for free

Create a free CaseChat account to read McCabe v Westin; McCabe v Pickering (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] VSC 211
Decision Date: 3 May 2024

CaseChat Overview and Summary

In the case of McCabe v Westin; McCabe v Pickering (No 2), the parties involved were McCabe, the applicant, and Westin and Pickering, the respondents. The dispute centered around the form of declarations to be issued to give effect to the findings in a previous decision. The matter was heard in the Supreme Court of Victoria. The applicant sought relief under the Judicial Review Act 1991 (Vic), specifically in the form of a declaration and an order in the nature of certiorari to quash certain decisions made by the respondents.

The legal issues that the court was required to decide included whether the form of declaration sought by the applicant was appropriate to give effect to the findings in the earlier decision and whether an order in the nature of mandamus was suitable to compel the respondents to perform their statutory obligations. The court had to consider the nature of the relief that was necessary to ensure that the respondents complied with their legal duties and the impact of such relief on the administration of justice.

The court held that the form of declaration sought by the applicant was appropriate to give effect to the findings in the earlier decision. The court also determined that an order in the nature of mandamus was not necessary as it was sufficient to grant an order in the nature of certiorari to quash the decisions of the respondents. The court reasoned that the relief sought by the applicant would ensure that the respondents complied with their statutory obligations and that the administration of justice was not impeded. The court also noted that the respondents had an opportunity to remedy the situation and had not done so, which justified the granting of relief.

The final orders included the grant of a declaration that certain decisions of the respondents were invalid and an order in the nature of certiorari to quash those decisions. The court also ordered that the costs of the proceedings be paid by the respondents. This decision underscores the importance of ensuring that public officials comply with their statutory obligations and the role of the courts in providing appropriate remedies to address breaches of legal duties.

Orders