McCabe v Westin; McCabe v Pickering (No 2)
[2024] VSC 211
•3 May 2024
| 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 |
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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 |
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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).
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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 to:
(a) the terms of the declaration that I should make;
(b) whether any order in the nature of certiorari is appropriate with respect to Ms Westin’s authorisation of the Fourth Ineligibility Condition; and
(c) whether there should be any order in the nature of mandamus for the return of the $100 fine imposed on Mr McCabe at the disciplinary hearing.
Remedies with respect to the proceeding against Ms Westin
In the primary judgment, I found that the use of the power in s 38 of the CorrectionsAct to compel removal of contact visits for two weeks solely on the criterion of a finding of guilt and imposition of a penalty for a prison disciplinary offence was inconsistent with the comprehensive regime in Part 7 of the Corrections Act which identifies and limits the penalties that can be imposed for prison offences.[3] The discretionary power in s 38 should therefore not be construed to authorise the Fourth Ineligibility Condition as a condition of the Contact Visiting Programme. However I did not identify any other element of the Contact Visiting Programme as being beyond the power in s 38.[4] A question therefore arose as to the scope of the relief which would be appropriate, and this was the subject of submissions by the parties.
[3]McCabe v Westin; McCabe v Pickering [2024] VSC 145, [274].
[4]McCabe v Westin; McCabe v Pickering [2024] VSC 145, [285].
Declaratory relief
The parties’ submissions
The defendants’ position was that only the Fourth Ineligibility Condition in Deputy Commissioner’s Instruction 3.04 should be the subject of a declaration of unlawfulness, given that no other aspect of the Contact Visiting Programme was identified as beyond power.[5] Counsel for the defendants submitted that the Fourth Ineligibility Condition was ‘not critical to the functioning of the instrument’ and could ‘be neatly declared unlawful and the remainder of the policy and scheme will stand in place.’[6]
[5]Defendants’ Submissions dated 12 April 2024, [8]-[9]; Correspondence received from defendants’ solicitors dated 22 April 2024.
[6]Transcript 29/04/24, T27.14-28.05, citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
In written submissions the defendants proposed a declaration in general terms reflecting the language of the judgment, to the effect that ‘the contact visiting programme established under s 38(1) of the Corrections Act 1986 (Vic) by Part 2.0 to Deputy Commissioner’s Instruction 3.04 … is unlawful to the extent it comprises, as an automatic condition of ineligibility, the fact that a prisoner has been found guilty of any prison offence’. In response to a concern I raised that the language of the declaration may not assist those reading it to understand exactly what aspect of DCI 3.04 was invalid, the defendants proposed a declaration in the following terms:
The Court declares that the contact visiting programme established under s 38(1) of the Corrections Act 1986 (Vic) by Part 2.0 to Deputy Commissioner’s Instruction 3.04, Visits: Personal – Professional – Adult Parole Board is unlawful to the extent it comprises, as an automatic condition of ineligibility, the fact that a prisoner has been found guilty of any prison offence (other than an offence committed on a contact visit or related to drugs or alcohol) through adoption of the following words:
‘Where a prisoner has been found guilty of a prison offence (other than an offence committed on a contact visit or related to drugs or alcohol), and has received a fine or loss of privilege as a penalty, the prisoner will be ineligible to participate in the Contact Visit Program for a period of 14 days for each incident but not exceeding 30 days from the time of the imposition of the penalty. A loss of access to the Contact Visits Program is not considered to be a second penalty, but rather a consequence of poor behaviour.’
Mr McCabe opposed the description of the condition of ineligibility in the first part of the declaration. In his written submissions, Mr McCabe also sought a wider range of declarations relating to other Commissioner’s Requirements or Deputy Commissioner’s Instructions which touched on the relationship of disciplinary offences with access to the Contact Visiting Programme.[7] These included, for example, Deputy Commissioner’s Instruction 1.16, Disciplinary Processes, and Commissioner’s Requirement 2.3.3- Disciplinary Processes & Prisoner Privileges. Although these instruments had been in evidence at the hearing,[8] they had not been the subject of specific argument. As submitted by counsel for the defendants, they were not the subject of the legal controversy between the parties and it would be inappropriate to make a declaration which applied to them.[9] Further, all of the instruments referred to the relationship between contact visits and disciplinary offences in general terms and none repeated the Fourth Ineligibility Condition.
[7]Plaintiff’s Submissions dated 12 April 2024, 4.
[8]Affidavit of Rowan Leigh McCabe 21 April 2023, Exhibit C; Court Book 645.
[9]Transcript 29/04/24 T29.7-30.4, referring to Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ); See also Harkness v Roberts [2023] VSC 10, [24] (Richards J).
I expressed the view during the hearing that for these reasons, and absent further submissions to justify them, it would be inappropriate to make any declaration applicable to those instruments. In the course of the hearing Mr McCabe did not seek to press any further submission and accepted that the declaration would be confined to the Fourth Ineligibility Condition in Deputy Commissioner’s Instruction 3.04.[10]
[10]Transcript 29/04/24, T23.17-24.01, T26.14-.17.
The appropriate terms of the declaration
This Court has the inherent power to grant declaratory relief.[11] The application of the Fourth Ineligibility Condition has had practical consequences for Mr McCabe. Although he has already lost his contact visits, there is a practical utility in making a declaration given that the operation of the Contact Visiting Programme and the conditions of eligibility have foreseeable practical consequences for Mr McCabe and other prisoners into the future.[12] It is appropriate to make a declaration.
[11]CGU Insurance Ltd v Blakeley (2016) 259 CLR 339, 346 [13] (French CJ, Kiefel, Bell and Keane JJ); See also Supreme Court Act 1986 (Vic), s 36.
[12]CGU Insurance Ltd v Blakeley (2016) 259 CLR 339, 373 [102] (Nettle J); Ainsworth (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ), 595-597 (Brennan J).
I consider that the clearest and most precise form of declaration,[13] which can be understood by prisoners and any other person reading it, is one limited to the specific words in Deputy Commissioner’s Instruction 3.04 which set out the Fourth Ineligibility Condition, and which are beyond power. There is no need to describe them further, nor to explain in the declaration itself the source of the unlawfulness, which is explained in full in the primary judgment.
[13]Noting the need for precision and the need to avoid loosely framed declarations: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 579 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); see also Minogue v Doherty [2017] VSC 724, [51] (John Dixon J); Haigh v Ryan [2020] VSC 102, [18] (Cavanough J).
The paragraph following the Fourth Ineligibility Condition of Deputy Commissioner’s Instruction 3.04 as to the discretion of a General Manager following a finding of guilt on a prison offence other than an offence committed on a contact visit or related to drugs or alcohol was plainly intended to operate in conjunction with the Fourth Ineligibility Condition. However I accept the defendants’ submission that the instrument can properly operate with only the Fourth Ineligibility Condition identified as unlawful and inoperative. Noting the submission that it was anticipated that Deputy Commissioner’s Instruction 3.04 and other policies would be the subject of review,[14] it can also be anticipated any issues of form and consistency in the instrument will be addressed as part of that review.
[14]Transcript 29/04/24, T30.5-.9.
I will make a declaration in the following terms:
The Court declares that the contact visiting programme established under s 38(1) of the Corrections Act 1986 (Vic) by Part 2.0 to Deputy Commissioner’s Instruction 3.04, Visits: Personal – Professional – Adult Parole Board is unlawful to the extent that it includes the following words:
‘Where a prisoner has been found guilty of a prison offence (other than an offence committed on a contact visit or related to drugs or alcohol), and has received a fine or loss of privilege as a penalty, the prisoner will be ineligible to participate in the Contact Visit Program for a period of 14 days for each incident but not exceeding 30 days from the time of the imposition of the penalty. A loss of access to the Contact Visits Program is not considered to be a second penalty, but rather a consequence of poor behaviour.’
Other relief sought
Mr McCabe also made a submission as to the remedy of certiorari in relation to the s 38 instrument. He submitted:
If necessary to effect an order of mandamus upon the Governor (for the return of the $100 fine) then the plaintiff would also seek an order in the nature of certiorari to quash the Secretary’s decision to authorise the Fourth Ineligibility Condition in DCI 3.04, s 2.0. He does not seek it otherwise.[15]
[15]Plaintiff’s Submissions dated 12 April 2024, 5; Transcript 29/04/24, T45.23-.27.
The defendants submitted that if a declaration as to the unlawfulness of the Fourth Ineligibility Condition was made, no further relief was appropriate or necessary.[16]
[16]Defendants’ Submissions dated 12 April 2024, [9].
Having determined that a declaration of unlawfulness should be made in respect of the Fourth Ineligibility Condition, I do not consider that any order in the nature of certiorari is necessary with respect of Ms Westin’s exercise of powers. Putting aside the potentially complex questions as to quashing one element of the s 38 instrument in Deputy Commissioner’s Instruction 3.04, I would in any event decline to grant such an order on the basis that it would be lacking in utility.[17] Again, noting the acknowledgment by counsel for the defendants that there will be a review of policies relating to contact visits to reflect the fact that the Fourth Ineligibility Condition is invalid, I anticipate that this would address issues of consistency more effectively than any order in the nature of certiorari.
[17]See eg the discussion in Ainsworth (1992) 175 CLR 564, 580-582 (Mason CJ, Dawson , Toohey and Gaudron JJ), 595-596 (Brennan J).
Remedies with respect to the proceeding against Mr Pickering
In the primary judgment, it was necessary to consider the nature of the decision made by Mr Pickering after he had found Mr McCabe guilty of the prison offence. Mr Pickering had contended that he made no decision, as the Contact Visiting Programme, including the Fourth Eligibility Condition, simply took effect upon the finding of guilty. Mr McCabe had contended that Mr Pickering had actively made a decision that he would lose contact visits for two weeks as well as to impose a $100 fine.[18] I found that the decision made by Mr Pickering, which he made on the understanding that the Fourth Ineligibility Condition was valid, involved a decision ‘as to whether to impose a penalty (thus triggering the loss of contact visits if the policy was then applied) or to impose a reprimand, which then gave a discretion to recommend that there be no loss of contact visits.’[19] I concluded that Mr Pickering made a decision not to reprimand Mr McCabe, but to impose a fine and therefore subject him to loss of contact visits pursuant to the Contact Visiting programme.[20]
[18]Mr McCabe also contended that Mr Pickering made a decision that he should lose access to his in-cell computer: McCabe v Westin; McCabe v Pickering [2024] VSC 145, [293]. That is not relevant for present purposes.
[19]McCabe v Westin; McCabe v Pickering [2024] VSC 145, [297].
[20]McCabe v Westin; McCabe v Pickering [2024] VSC 145, [302], [328], [345].
There was no issue between the parties with respect to the finding of guilt made on the disciplinary hearing. It was not contended that that decision was impugned.
The legal position with respect to the consequences of the decision made by Mr Pickering as to penalty after he had found Mr McCabe guilty of the prison offence involved some complexity. This was because the judgment first acknowledged that his decision had taken into account the Fourth Ineligibility Condition, which was beyond power,[21] although he had not made a specific decision to suspend Mr Pickering’s contact visits. Mr McCabe contended that if it was concluded that the Fourth Ineligibility Condition was beyond power, it was unnecessary to consider the grounds of relief relating to procedural fairness and other errors in Mr Pickering’s decision. I understood this to be on the basis that he had contended that Mr Pickering had expressly determined to suspend Mr McCabe’s contact visits in accordance with the Contact Visiting Programme terms; and the relevant part of that instrument being invalid, it meant that his decision was invalid.[22]
[21]McCabe v Westin; McCabe v Pickering [2024] VSC 145, [289].
[22]McCabe v Westin; McCabe v Pickering [2024] VSC 145, [287].
The judgment characterised Mr Pickering’s decision somewhat differently: as not determining the loss of contact visits, but as fining him rather than exercising the discretion to reprimand, and thus exposing him to the application of the Fourth Ineligibility Condition.[23] The parties did not expressly address at trial the legal consequences of such a finding. I also addressed the remaining grounds of review relating to Mr Pickering’s decision, in the event that I was wrong in my conclusion as to the invalidity of the Fourth Ineligibility Condition.[24] I concluded that the discretion as to penalty and whether to reprimand or fine, with potential consequences for entitlements under the Contact Visiting Programme, was one which attracted procedural fairness obligations.[25] Procedural fairness was not afforded as Mr McCabe had no meaningful opportunity to make submissions on the issue as he was not aware of the Fourth Ineligibility Condition and not asked to address it at the hearing.[26]
[23]McCabe v Westin; McCabe v Pickering [2024] VSC 145, [302].
[24]McCabe v Westin; McCabe v Pickering [2024] VSC 145, [321]-[350].
[25]McCabe v Westin; McCabe v Pickering [2024] VSC 145, [328].
[26]McCabe v Westin; McCabe v Pickering [2024] VSC 145, [332], [344].
The parties’ submissions
Mr McCabe sought an order in the nature of mandamus to compel the return of the $100 fine imposed by Mr Pickering, on the basis that Mr Pickering in his decision was ‘working under the auspices of the Fourth Ineligibility Condition’ and also ‘impliedly invalid since it is outside the scope of s 53(4)’.[27]
[27]Plaintiff’s Submissions dated 12 April 2024, 5.
Mr McCabe submitted that the obligation on Mr Pickering to give procedural fairness in respect of his decision on penalty only arose if there was a ‘properly formulated eligibility condition to create a procedural obligation’.[28] He contended that the procedural fairness breach would not give rise to a remedy.[29]
[28]Transcript 29/04/24, T3.8-.16.
[29]Transcript 29/04/24, T3.29-4.2.
However, he contended that the effect of Mr Pickering having made his decision as to penalty taking into account the invalid Fourth Ineligibility Condition was a breach that ‘infects’ the penalty decision, or in other words acting under a condition that was beyond power so that the penalty was affected by jurisdictional error.[30]
[30]Transcript 29/04/24, T10.18-.22, T11.10-.12.
The effect of this was that an order in the nature of certiorari to quash Mr Pickering’s decision to impose the $100 fine was appropriate.[31] Mr McCabe further submitted that upon the quashing of Mr Pickering’s decision, it would not be open to compel Mr Pickering to re-make the decision on the basis that the jurisdiction to issue penalties was exhausted.[32]
[31]Transcript 29/04/24, T12.04-.08.
[32]Transcript 29/04/24, T12.09-.17.
The defendants accepted that an order in the nature of certiorari ought be made to quash the decision of Mr Pickering to impose a fine of $100. This was on the basis that there was a failure to bring to Mr McCabe’s attention conditions relevant to the Contact Visiting Programme, including the Fourth Ineligibility Condition.[33]
[33]Defendants’ Submissions dated 12 April 2024, [13], [15].
In response to Mr McCabe’s submission that if the penalty decision was quashed, the power to impose a penalty would be exhausted, counsel for the defendants submitted that Mr Pickering would not be functus officio, given certiorari has the effect that the original decision is void, and is no decision in law, so a new decision could be made.[34]
[34]Transcript 29/04/24, T36.06-22.
Finally it was contended that, given mandamus is an order that compels the performance of a public duty, it would not be appropriate in this case as to compel the return of the $100 fine would not enforce any public duty.[35] However it was acknowledged that if an order is made quashing the decision to impose the fine ‘one would expect that the natural consequence of that is that the $100 will be returned’,[36] and if not, that ‘there may be some claim to restitutionary relief or something of that nature.’[37]
[35]Transcript 29/04/24, T33.04-.07, T35.09-.23.
[36]Transcript 29/04/24, T35.26-.27, T38.15-.22.
[37]Transcript 29/04/24, T35.29-.31.
Consideration
The question of the nature of the legal error affecting Mr Pickering’s decision as to penalty, for the purposes of identifying the appropriate relief is complicated by the fact that the judgment’s conclusions as to the failure to afford Mr McCabe procedural fairness arose in addressing the remaining grounds of review in the event that I was wrong in concluding that the Fourth Ineligibility Condition was invalid.
Although the parties agreed that it was appropriate to issue an order in the nature of certiorari to quash the decision, they identified different bases on which this was appropriate. Mr McCabe identified Mr Pickering’s legal error as being that he acted by reference to a condition of the Contact Visiting Programme which was legally invalid. The defendants referred to the breach of procedural fairness obligations in failing to provide an opportunity to make submissions with respect to the conditions of the Contact Visiting Programme.
Ultimately, I do not think it necessary to identify one or other of those matters as the source of legal error. The failure to permit Mr McCabe an opportunity to make submissions about the Contact Visiting Programme, in circumstances where he had not been put on notice of the conditions of the programme, could constitute a failure of procedural fairness whether the Fourth Ineligibility Condition was valid or not. Equally, the fact that Mr Pickering had assumed that the Fourth Ineligibility Condition would apply, [38] and took that into account when he made the penalty decision, could be regarded as a misconception of his statutory function in imposing a penalty on a governor’s disciplinary hearing, or as taking into account an irrelevant consideration.[39] Whether one of those errors, or a failure of procedural fairness, it is jurisdictional error amenable to an order in the nature of certiorari.
[38]That is the case even though, as Mr McCabe acknowledged, Mr Pickering could not have been aware that the Fourth Ineligibility Condition was beyond the power conferred by the Corrections Act at the time he made the penalty decision: Transcript 29/04/24, T10.30-11.2.
[39]Craig v South Australia (1995) 184 CLR 163, 177-178 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
I will, therefore, make an order in the nature of certiorari quashing the decision of Mr Pickering dated 5 December 2022 to impose a penalty on the plaintiff of a fine of $100.
The defendants did not seek any order in the nature of mandamus remitting the decision on penalty to Mr Pickering to exercise as delegate of the prison governor, and Mr McCabe submitted that it would not be open to re-exercise that power. I accept the defendant’s submission that Mr Pickering would not be functus officio, because the earlier decision, being affected by jurisdictional error, is no decision at all.[40] Once quashed, the decision is void ab initio.[41] However in circumstances where Mr McCabe had already lost two weeks of contact visits on the basis of having committed a prison offence, this would be a matter which would not only be relevant to any further consideration of penalty, but may also give rise to the same sort of arguments considered in the primary judgment as to whether, having regard to the limitations in Part 7 of the Corrections Act, any further penalty was open.
[40]Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 613 [46]; Hossain v Minister for Immigration (2018) 264 CLR 123, 133 [24] (Kiefel CJ, Gageler and Keane JJ).
[41]Ruddock v Taylor (2005) 222 CLR 612, 656, [160], [182] (Kirby J); Ainsworth (1992) 175 CLR 564, 595 (Brennan J).
I also accept that it would be inappropriate to make an order in the nature of mandamus for the return of the $100 fine. There is no public duty arising from the statute identified which would compel the return of that fine.[42] However, it is also clear that once the penalty decision is quashed, the legal basis on which the $100 was compelled to be paid has fallen away. Counsel for the defendants appropriately acknowledged that it could be expected that the natural consequence of the order in the nature of certiorari is that the $100 would be returned, and if not there would likely be separate remedies available for the return of the money.[43]
[42]Compare to the position in Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51, where the Stamps Act 1958 (Vic) provided that ‘Where the Comptroller finds in any case that duty has been overpaid … he may refund to [the entity] which or who paid the duty the amount of duty found to be overpaid’. The Full Court of the Supreme Court of Victoria made an order in the nature of mandamus directing the Commissioner to issue a refund of overpaid duty to the plaintiff. The High Court held by majority that this conferred a discretionary power to refund money paid, but created no duty to make a refund. However Brennan J (at 87) with whom Toohey and McHugh JJ agreed (at 103) held that there was no discretion to refrain from making a refund once a finding of overpayment had been made and there was a legal liability to refund. Mason CJ held (78-79) that the discretion under the section should be exercised in accordance with the laws of restitution, and because it was unjust for the Commissioner to retain the moneys it was an erroneous exercise of discretion not to return them. He accepted that mandamus could issue to direct the performance of the statutory discretion where there was only one way in which the discretion could lawfully be exercised: at 81.
There is no provision in the Corrections Act or Corrections Regulations which creates a duty to refund a wrongly imposed penalty, nor any discretion which could be the subject of a duty to exercise it in a particular way.
[43]Such as a remedy in restitution: Transcript 29/04/24, T35.23-.31.
Conclusion
For the above reasons I will make the declaration in the terms identified at [13] above. I will also make an order in the nature of certiorari quashing Mr Pickering’s decision to issue a penalty of a $100 fine to Mr McCabe.
No party sought an order as to costs in the proceedings.[44] I will therefore also order that the proceedings be otherwise dismissed.
[44]Transcript 29/04/24, T38.27-.28, T40.16-.22.
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