McKechnie v Secretary to the Department of Justice
[2024] VSCA 170
•30 July 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0108 |
| ANDRE MCKECHNIE | Applicant |
| v | |
| SECRETARY OF THE DEPARTMENT OF JUSTICE & ORS (ACCORDING TO THE ATTACHED SCHEDULE) | Respondents |
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| JUDGES: | McLEISH JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 30 July 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 170 |
| JUDGMENT APPEALED FROM: | [2023] VSC 542 (Ginnane J) |
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PRACTICE AND PROCEDURE – Application for preliminary discovery – Whether trial judge erred in determining that preconditions in Supreme Court (General Civil Procedure Rules) 2015 r 32.05 were not satisfied – No error in trial judge’s approach – Order for preliminary discovery would be futile in any event – Application for leave to appeal totally without merit – Leave to appeal refused.
Supreme Court (General Civil Procedure) Rules 2015, r 32.05; Charter of Human Rights and Responsibilities Act 2006, ss 11, 21, 38, 39; Supreme Court Act 1986, s 14D(3).
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| Counsel | |||
| Applicant: | In person | ||
| Respondents: | C J Fitzgerald | ||
Solicitors | |||
| Applicant: | Not applicable | ||
| Respondents: | M Hocking, Victorian Government Solicitor | ||
MCLEISH JA:
On 14 May 2021, the applicant filed an originating motion and affidavit in support of an application for preliminary discovery under r 32.05 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’). The applicant was a prisoner at Hopkins Correctional Centre at the time the application was filed, having been incarcerated there since 8 March 2017. The respondents are described as the Secretary of the Department of Justice, the Minister for Corrections Victoria and the Commissioner for Corrections Victoria.[1]
[1]The respondents have submitted that the proper respondent is the General Manager of Hopkins Correctional Centre alone, but do not press the point. They also note that the first respondent is properly the ‘Secretary to the Department of Justice and Community Safety’, and that the second respondent should be the ‘Minister for Corrections’.
The preliminary discovery application sought documents that the applicant believed would disclose that the respondents had acted unlawfully in discontinuing a weekly payment he described, at least initially, as an ‘amenities allowance’, which he claimed to have received during part of his time in prison. The respondents disputed that such an allowance was ever paid to the applicant. They claimed that the applicant had been paid regular unemployment payments which ceased to be paid following a determination that the applicant was not eligible to receive them.
The application for preliminary discovery was heard by a judge in the Trial Division on 19 May 2023. On 11 September 2023, the judge dismissed the application.[2]
[2]McKechnie v Secretary to the Department of Justice [2023] VSC 542 [34] (Ginnane J) (‘Reasons’).
The applicant now seeks leave to appeal, advancing two proposed grounds.[3] For the reasons that follow, leave must be refused. The preliminary discovery application is hopeless in any event and the application for leave to appeal is totally without merit within the meaning of s 14D(3) of the Supreme Court Act 1986.
[3]The Registrar referred the application for determination by a single judge pursuant to r 64.15 of the Rules.
Background
During the period 8 March 2017 to 31 January 2018, the applicant received two types of payments from Corrections Victoria:
(a)From 9 March 2017 until 4 April 2017 he received an orientation allowance of $6.50 per weekday, payable for his participation in a prison orientation program.
(b)On 8 March 2017, and at various times between 5 April 2017 and 12 December 2017, he received an ‘unemployment’ payment of $3.30 per weekday for periods when he was unemployed.
When he filed his application for preliminary discovery, the applicant had been classified as ‘dismissed/refusing to work’ since January 2018. That classification meant that the applicant was not paid remuneration by Corrections Victoria.[4] As such, he had not been paid by Corrections Victoria for about three years and four months when his application was filed.
[4]See [17] below.
The application for preliminary discovery related to this discontinuance of payment. In an affidavit in support of the application, the applicant said:
It is highly probable that the defendants have documents which will disclose a cause of action determining the lawfulness, or otherwise, of the decision to discontinue the weekly payment, which I will refer to as the ‘amenities allowance’, made to myself and all others held in custody who are not provided funds by Corrections Victoria otherwise.
The documents sought by the application were initially described in the following terms:
The documents sought are:
(a)all documents that provide the reasons why the amenities allowance was paid to those held in custody in Victoria.
(b)all documents that detail the reasons why and when the amenities allowance was discontinued as a payment to those held in custody in Victoria.
The applicant said that the amenities allowance had been paid to persons held in custody in Victoria for at least 30 years until it was discontinued. The applicant claimed that the payment ceased without any change in his circumstances or to applicable legislation.
The applicant stated that he suspected that the amenities allowance was paid in satisfaction of ‘human rights requirements’ said to apply to Corrections Victoria. He further suspected that the amenities allowance supported a right of ‘access to the courts’. He said that, without funds, it would be impossible to make phone calls to lawyers, send letters and print legal documents.
On 27 July 2021, the respondents filed an affidavit of Anna Pejovic, a lawyer from the Victorian Government Solicitor’s Office (the ‘VGSO’). Ms Pejovic’s affidavit exhibited correspondence dated 6 July 2021 sent by the VGSO to the applicant on two occasions, seeking further information to assist in identifying the amenities allowance. The applicant did not respond to this correspondence.
On 19 August 2021, the respondents filed an affidavit of Melissa Westin, who was then the Acting Commissioner of Corrections. Ms Westin said that the applicant did not receive any payments that could be characterised as an amenities allowance during the period between 8 March 2017 and 31 January 2018, nor did any other prisoner held in custody in Victoria. Ms Westin’s affidavit provided general information about the policies and processes for paying remuneration to Victorian prisoners, and exhibited records of payments made to the applicant.[5]
[5]As described at [5] above.
On 28 February 2023, the applicant proposed reformulated categories of preliminary discovery that dispensed with the term ‘amenities allowance’. He submitted that the reformulated categories would avoid unnecessary cost and argument, particularly on the question whether a payment existed that could be characterised as an ‘amenities allowance’. The revised categories were as follows:
(a)any document or documents that describe all of the human rights considerations made with respect to the decision to provide to the applicant a weekly payment during the period 5 April 2017 to 19 August 2021; and
(b)any document or documents that describe all of the human rights considerations made with respect to the decision not to provide to the applicant a weekly payment during the period 5 April 2017 to 19 August 2021.
The hearing in the Trial Division proceeded on the basis of these revised categories. The applicant referred to possible causes of action at common law and under the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’). He submitted that he had ‘made [his] position clear from the beginning that [he] wouldn’t be working within the prison from day one’. He claimed that working in prison was a waste of time and ‘borders on servitude [or] slavery’. He submitted that servitude (going beyond forced labour) is prohibited by the Charter, and that ‘servitude’ could become ‘an important cause of action’. He argued that the respondents had placed him in a position where they would not pay him anything to call his lawyer, or indeed pay him any remuneration at all, unless he worked for them ‘in menial labour’.
Applicable law and policy
Regulations and policies governing prisoners’ remuneration
Regulation 43 of the Corrections Regulations 2019 (the ‘Regulations’) deals with remuneration payable to prisoners. It reads:
43 Remuneration
(1)A prisoner must be paid remuneration for up to 30 hours per week for—
(a)work done by the prisoner in a prison industry; and
(b)attendance at an educational, treatment or rehabilitation programme.
(2)Despite subregulation (1), a prisoner may be paid remuneration for more than 30 hours per week for work done by the prisoner in an essential work programme.
(3)A prisoner must be paid remuneration at a minimum rate if the prisoner is—
(a)on remand; or
(b)in police custody; or
(c)unable to work due to illness, disability or age.
(4)If a prisoner refuses to work in a prison industry or is dismissed from work in a prison industry, the prisoner—
(a)is not entitled to be paid remuneration under this regulation; and
(b)must be supplied with essential toiletries by the prison.
Note
Essential toiletries include soap, toothpaste and, for women, sanitary products.
…
By her affidavit, Ms Westin deposed that Victorian prisoners’ remuneration was governed by two policy documents:
(a)the ‘Commissioner’s Requirements (Prisoner Monies)’ (‘Prisoner Monies Policy’); and
(b)the ‘Deputy Commissioner’s Instruction 3.03 Prison Industries’ (‘Prison Industries Policy’).
A ‘Scale of Prisoner Earnings’ listed in the Prisoner Monies Policy indicates that prisoners who are classified as ‘dismissed or refusing to work’ receive a nil payment. The policy requires that such prisoners are provided with essential toiletries.
The Prison Industries Policy establishes the organisational framework and infrastructure to facilitate prisoners’ employment. It states that Corrections Victoria will provide meaningful work to prisoners to assist them to develop employment skills, but that ‘[p]risoners who refuse to work must not be paid’. It can be seen that these provisions are consistent with reg 43(4)(a).
Charter provisions
Sections 11 and 22 of the Charter set out rights to freedom from forced work and to humane treatment when deprived of liberty. They relevantly provide:
11 Freedom from forced work
(1)A person must not be held in slavery or servitude.
(2)A person must not be made to perform forced or compulsory labour.
(3)For the purposes of subsection (2) forced or compulsory labour does not include—
(a)work or service normally required of a person who is under detention because of a lawful court order or who, under a lawful court order, has been conditionally released from detention or ordered to perform work in the community; …
…
…
22 Humane treatment when deprived of liberty
(1)All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
…
Sections 38 and 39 constitute div 4 of the Charter, which is titled ‘Obligations on public authorities’. They relevantly state:
38 Conduct of public authorities
(1)Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
(2)Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.
Example
Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.
…
39 Legal proceedings
(1)If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
…
Application for preliminary discovery
The application for preliminary discovery was made under r 32.05 of the Rules, which is in the following terms:
32.05 Discovery from prospective defendant
Where—
(a)there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description the applicant has ascertained;
(b)after making all reasonable inquiries, the applicant has not sufficient information to enable the applicant to decide whether to commence a proceeding in the Court to obtain that relief; and
(c)there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had in that person’s possession any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist the applicant to make the decision—
the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c).
Primary judge’s reasons
The judge determined that the preliminary discovery application failed to satisfy each paragraph of r 32.05.[6]
[6]Reasons [25]–[27], [30]–[34].
The judge noted the applicant’s submission that being forced to work to obtain a payment or allowance borders on servitude or slavery, contrary to the Charter. The judge considered that this submission related to the requirement under s 22(1) of the Charter that persons deprived of liberty must be treated with humanity and respect for the inherent dignity of the human person.[7]
[7]Ibid [29].
The judge accepted Ms Westin’s evidence, stating:
I accept Ms Westin’s evidence the effect of which was that because [the applicant] has been classified as ‘refusing to work’ he has not been receiving any payments. I also accept her evidence that no amenities allowance was paid to prisoners in Victoria and that there are no prison records that provide any reasons as to why an amenities allowance was paid or discontinued. I accept that evidence because it is based on Ms Westin’s review of relevant prison records.[8]
[8]Ibid [25].
The judge said that the applicant could not establish that he had reasonable cause to believe that he had or may have the right to obtain relief against the respondents. Given that the applicant refused to work, reg 43(4)(a) of the Regulations prevented any remuneration being paid to him, and there was no evidence that he was entitled to any other payment or allowance. The judge said it followed that the applicant was ‘unable to bring a claim of unlawfulness arising because of actions by the [respondents] incompatible with his human rights under the Charter’.[9] The judge said, further, that the applicant ‘ha[d] not identified any arguable case that the discontinuance of weekly payments previously made to him was unlawful on non-Charter grounds’.[10] The judge said that this meant that the threshold in s 39(1) for reliance on a ground of unlawfulness arising because of the Charter had not been met, in any event.
[9]Ibid.
[10]Ibid.
The judge also considered the effect of s 38(2) of the Charter. He held that, because reg 43 of the Regulations provides that a prisoner who refuses to work in a prison industry is not entitled to remuneration, the respondents ‘could not reasonably have acted differently or made a different decision’ in respect of the applicant’s entitlement to remuneration.[11] Accordingly, the judge said that, even if the respondents had failed to consider the applicant’s human rights in accordance with their prima facie obligation to do so under s 38(1) of the Charter, s 38(2) was satisfied and s 38(1) therefore did not apply.[12]
[11]Charter, s 38(2).
[12]Reasons [32]–[33].
For the foregoing reasons, the judge considered that r 32.05(a) was not satisfied.
The judge also held that the applicant had failed to establish that he had made all reasonable inquiries as required by r 32.05(b). The judge took into account that some of the applicant’s records were held at prisons other than the Hopkins Correctional Centre, and that the applicant’s computer access was limited. These facts could not, however, explain the applicant’s failure to respond to requests from the VGSO for information about the documents he sought.[13]
[13]Ibid [26].
Having accepted Ms Westin’s evidence that there were no documents providing reasons why an amenities allowance was paid or discontinued, the judge found that r 32.05(c) was not satisfied either. He held that, in the circumstances, the applicant could not have reasonable cause to believe that the respondents may have in their possession documents relating to the question whether he had the right to obtain the relief he sought.[14]
[14]Ibid [27].
The judge therefore dismissed the application for preliminary discovery.[15]
[15]Ibid [34].
Proposed grounds of appeal
The applicant advances two grounds in support of his application for leave to appeal:
1.The learned trial judge erred in determining that Charter based relief was not available to the [applicant] and as a result determined that r 32.05(a) [and] (c) of the Rules were consequentially not satisfied.
2.The learned trial judge erred in determining that the [applicant] did not make all reasonable inquiries so as to satisfy r 32.05(b) of the Rules. The facts depended upon were not relevant to the question. Facts that should have been considered were not.
Proposed ground 1 — primary judge’s application of rr 32.05(a) and (c)
Parties’ submissions
In his written case, the applicant submits that the judge’s conclusions regarding reg 43(4)(a) of the Regulations amount to the proposition that ‘if you don’t work … you don’t get paid’. He argues that this was ‘fair enough provided that the work one is expected to do does not qualify under the definition of servitude’. He submits that the primary judge acknowledged his submissions about servitude, but erroneously found that they related to s 22 of the Charter, rather than s 11.
The applicant submits that it is ‘well established’ that a public authority’s failure to comply with s 38 can satisfy s 39(1). He submits that the respondents did not comply with s 38(1) when they decided not to pay him a weekly payment. He says that their decision involved coercion, and submits that coercion is an element of servitude. The element of coercion said to inhere in the respondents’ decision means that the prohibition against servitude in s 11(1) of the Charter has been breached.
While the applicant’s submissions on ground 1 concentrate on the availability of a right to relief under the Charter, and in that sense relate expressly to r 32.05(a) of the Rules, having regard to the terms of his proposed ground,[16] the applicant’s submissions in respect of ground 1 must also be taken to be directed to the judge’s decision under r 32.05(c).
[16]See [31] above.
The respondents submit that the applicant’s submissions do not deal with the judge’s findings concerning r 32.05(c) of the Rules and could not be said to impugn them. Because r 32.05 requires each of its three limbs to be satisfied, it is said that the proposed appeal must fail because the findings of the judge under r 32.05(c) are unchallenged.
The respondents submit, in any event, that the applicant’s submissions mischaracterise the reasons of the judge. They contend that the judge properly determined that no arguable case for relief arising other than from the Charter had been advanced by the applicant, and that the judge correctly approached s 39(1). They submit that the applicant’s submission that s 39(1) could be satisfied by a claim to relief based solely on contravention of s 38(1) is wrong and must be rejected.[17] Finally, the respondents submit that the applicant left unchallenged the primary judge’s finding concerning s 38(2) of the Charter. That finding was an independent basis for the judge’s determination that r 32.05(a) was not satisfied.
Consideration
[17]DPP v Debono [2013] VSC 407 [82] (Kyrou J).
Ground 1 has no substance. First, the judge did not ignore s 11 of the Charter. He made several references to ‘servitude’ and ‘slavery’ and was plainly aware of s 11. His reference to s 22 broadened the scope of the applicant’s case in a way that was only to the applicant’s potential benefit.
Secondly, even assuming that there might be a potential claim of unlawfulness under s 38 of the Charter (whether relying on s 11 or s 22[18]), the applicant pointed to no potential relief or remedy that he might seek ‘otherwise than because of’ the Charter (ie, independently of the Charter), and so the precondition in s 39(1) for seeking relief based on the Charter is not satisfied.
[18]The applicant did not make submissions on s 22. As to s 11, it is far from clear how the applicant says that he has suffered ‘servitude’. He has declined to undertake prison work, and has not been paid as a result. As he has frankly accepted, it is not unfair for a person who does not work not to be paid. Even if, as the applicant would have it, the work he declined to do would have constituted ‘servitude’, he was not compelled to do it.
More fundamentally, in any event, the applicant has not sought to challenge the judge’s conclusion that, by virtue of reg 43(4)(a), the respondents ‘could not reasonably have acted differently or made a different decision’ in respect of the applicant’s entitlement to remuneration.[19] It is clear from reg 43(4)(a) that a prisoner who refuses to work in a prison industry is not entitled to remuneration. The applicant freely acknowledges that he has refused to work in a prison industry. Accordingly, s 38(2) was satisfied and s 38(1) therefore did not apply. It follows that, even if the respondents had failed to give proper consideration to the applicant’s human rights when determining not to pay him remuneration, and even if that decision was incompatible with his human rights, s 38(1) did not apply to render the decision unlawful.
[19]Charter, s 38(2).
For these reasons, r 32.05(a) was not satisfied and that aspect of ground 1 must fail as a result.
As the respondents submit, the applicant has also not advanced any basis for doubting the judge’s conclusion in respect of r 32.05(c). That conclusion was based on the unchallenged evidence of Ms Westin, which the judge accepted. The remaining aspect of ground 1 therefore fails also.
Proposed ground 2 — primary judge’s consideration of r 32.05(b)
Parties’ submissions
The applicant submits in his written case that, in his consideration of r 32.05(b), the judge relied on the wrong facts.
The applicant refers to [26] of the judge’s reasons, where the judge said:
[The applicant] has not engaged with the [respondents] in response to their solicitors’ letters of July 2021 or since their submissions were served in February 2023 explaining why no payments were made to him.
The applicant points to the revised terms of his request for preliminary discovery, which dispensed with the term ‘amenities allowance’ and instead focused on documents describing human rights considerations made in relation to the decision to provide or not provide a weekly payment to the applicant during the period 5 April 2017–19 August 2021. The applicant said that the term ‘amenities allowance’ was from that point of no relevance.
The respondents submit that the judge’s reasons were directed to the applicant’s failure to respond to letters sent by the VGSO seeking to clarify what information the applicant sought. They submit that this went directly to the issue whether r 32.05(b) was satisfied.[20]
[20]Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd v Commercial Passenger Vehicle Commission [2020] VSC 762 [31] (Cavanough J) citing Victorian Taxi Families Inc v Taxi Services Commission (2018) 61 VR 91, 114 [70] (Derham AsJ).
The respondents submit that the applicant made no attempt to identify how the revision of the request for preliminary discovery would have resulted in r 32.05(b) being satisfied. They submit that the judge understood what information the applicant sought and was aware of the inquiries, or lack thereof, that he had made to determine whether to commence a proceeding. The respondents submit that there was accordingly no error in the judge’s decision in respect of r 32.05(b).
Consideration
In light of the failure of ground 1, it is unnecessary to consider ground 2. It can, however, be briefly addressed.
The relevant finding in relation to r 32.05(b) was that the applicant had not made all reasonable inquiries to decide whether to commence a proceeding. The judge based that conclusion on the applicant’s failure to engage with the VGSO in response to its letters of July 2021 ‘or since their submissions were served in February 2023’.[21] The revision in the terms of the request was articulated in the applicant’s outline of submissions dated 28 February 2023 and again by letter dated 30 March 2023. Those statements might be thought to have constituted the kind of ‘engagement’ which the judge held had not taken place. If so, there had not been a total failure to engage with the VGSO after the respondents’ submissions were served. But the applicant never answered the queries of the VGSO, and his reframed inquiry did not serve that purpose. The fundamental finding made by the judge was not affected by the fact that he did not refer, in this context, to the revised scope of the request.
[21]Reasons [26].
Ground 2 therefore has no real prospect of success.
Whether leave to appeal should be refused in any event
The respondents submit that leave to appeal should be refused in any event, on the basis that, even if the applicant’s grounds of appeal were made out, it would not be in the interests of justice to make the orders for preliminary discovery that he seeks. The respondents advance three reasons in support of this position. First, they refer to the fact that, since the judge’s dismissal of his preliminary discovery application, the applicant has confirmed his intention to commence a proceeding. By this confirmation, the respondents argue, the purpose of the application for preliminary discovery has been defeated.[22] Secondly, it is submitted that the applicant’s claim to relief is extremely weak, which weighs strongly against leave being granted. Thirdly, even if the applicant could establish a right to relief through a judicial review proceeding, he would be out of time to seek to pursue it.[23]
[22]In support of this submission the respondents relied on Asahi Beverages Pty Ltd v RFGA Management Pty Ltd [2018] VSC 606 [34(h)] (Derham AsJ) and Alex Fraser Pty Ltd v Minister for Planning [2018] VSC 391 [54(a), (c)] (Riordan J).
[23]Rules, r 56.02.
It has already been noted that the applicant has indicated that he now has enough information to commence a proceeding. Although this claim was first made in the course of making a costs submission before the primary judge, it was repeated in the applicant’s written case. The applicant’s decision that he is in a position to commence a proceeding amounts to an acknowledgment that r 32.05(b) is not satisfied.
That matter alone makes the present proceeding, and the application for leave to appeal, futile. Regulation 43 is also fatal to the success of the application for preliminary discovery because it precludes any claim that the respondents’ decision not to pay remuneration to the applicant was unlawful under s 38 of the Charter. As the judge held, the regulation attracts s 38(2) of the Charter. It is a statutory provision (defined in s 3(1) of the Charter to include a subordinate instrument such as a regulation),[24] as a result of which the respondents could not lawfully have acted differently or made a different decision.
[24]Interpretation of Legislation Act 1984, s 38.
All these matters mean that the proposed appeal would be futile. Leave to appeal must be refused accordingly.
Conclusion
Leave to appeal is refused. The multiple fatal flaws in the applicant’s case mean that the application for leave is totally without merit within the meaning of s 14D(3) of the Supreme Court Act 1986.
The respondents have sought their costs of the application, and normally an order to that effect would follow the refusal of leave. The applicant should have an opportunity to make submissions as to why he should not pay the respondents’ costs. If no such submissions are filed and served within 14 days, there will be such an order. If the applicant files and serves submissions in that time, the matter will be dealt with on the papers.
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SCHEDULE OF PARTIES
ANDRE McKECHNIE First applicant and SECRETARY OF THE DEPARTMENT OF JUSTICE First respondent MINISTER FOR CORRECTIONS VICTORIA Second respondent COMMISSIONER FOR CORRECTIONS VICTORIA Third respondent
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