Mindemir v Correct Care Australasia
[2022] VCC 1189
•29 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-21-03377
| MEHMET MINDEMIR | Plaintiff |
| v | |
| CORRECT CARE AUSTRALASIA PTY LTD (ACN 160 982 703) | Third Defendant |
| And | |
| ST VINCENT'S HOSPITAL (MELBOURNE) LIMITED (ACN 052 110 755) | Fourth Defendant |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 28 July 2022 via Zoom | |
DATE OF RULING: | 29 July 2022 | |
CASE MAY BE CITED AS: | Mindemir v Correct Care Australasia & Anor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1189 | |
RULING
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Subject:COMMON LAW – MEDICAL NEGLIGENCE – DAMAGES – QUARANTINE OF DAMAGES – STATUTORY INTERPRETATION
Catchwords: Plaintiff injured whilst undergoing sentence of imprisonment at two prisons – negligence of third and fourth defendants as healthcare providers in failing to diagnose and treat plaintiff’s cancer – defendants sub-contractors – proceeding settled – whether Part 9C of Corrections Act 1986 (Vic) (“the Act”) applicable to the award of damages – whether civil wrong “arose out of and in connection with” the plaintiff’s detention in custody – meaning of “State”, “contractor” and “sub-contractor” for the purposes of Part 9C of the Act – whether either defendant a “contractor” as defined – whether either defendant classified as “State” for the purposes of Part 9C of the Act
Legislation Cited: ss1, 3, 8B, 8E, 8F, 9, 9A, 9AA, 9AC, 10, 21, 47, 47AA, 80, Part 9C, ss104O, 104Q, 104R, 104P, 104V, 104W, 104ZG, 104ZH, 104ZJ and 104ZK Corrections Act 1986 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic); s35 Interpretation of Legislation Act 1984 (Vic)
Cases Cited:CKM (Mortgages) Ltd v McDonnell & Anor; McDonnell & Anor v CKM(Mortgages) Ltd & Ors [2010] VSC 576
Ruling: Neither of the defendants is the “State” as defined because neither is a “contractor” for the purposes of Part 9C of the Corrections Act (Vic) 1986 – Part 9C of the Act not applicable to plaintiff’s award of damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Seeman | Robinson Gill |
| For the Third Defendant | Mr S Dawson | Meridian Lawyers |
| For the Fourth Defendant | Ms B de Brouwer | Minter Ellison |
Table of Contents
Background
The application
Statutory framework
The plaintiff’s contentions
The third defendant’s contentions
The fourth defendant’s contentions
Principles of statutory interpretation
Did the “civil wrong” arise out of and in connection with the plaintiff’s detention in custody?
The pleadings
Do either of the defendants fall within the definition of “State”?
Discussion
Conclusion and orders
HER HONOUR:
Background
1On 28 June 2018 the plaintiff, Mehmet MINDEMIR, was sentenced on appeal from the Magistrates’ Court at Melbourne in the County Court of Victoria in respect of the following charges laid under the Drugs, Poisons and Controlled Substances Act:
· trafficking cocaine;
· possess MDMA;
· possess cannabis;
· possess a Schedule 4 poison;
· trafficking methylamphetamine;
· trafficking in a drug of dependence;
· possess 1,4-butanediol;
· possess a drug of dependence; and
· a further charge of possessing a Schedule 4 poison.
2The orders imposed in the court below were set aside and in their stead the plaintiff was convicted of all charges and sentenced to an aggregate term of 30 months’ imprisonment. The plaintiff was directed to serve a minimum of 18 months’ imprisonment before becoming eligible for parole. A declaration was made that he had already served 38 days by way of presentence detention which was reckoned as a period of imprisonment already served under the sentence and which was deducted administratively.
3Whilst in custody at both Port Phillip Prison and in Marngoneet Correctional Centre, the plaintiff exhibited symptoms consistent with an underlying condition of cancer.
4The plaintiff was first imprisoned at Marngoneet Correctional Centre. Whilst there, he complained of finding blood in his urine. He notified nursing staff immediately and requested medical treatment. Approximately two or three weeks later the plaintiff saw a nurse who provided the plaintiff with urine satchels. The plaintiff filled the satchels with urine and provided the samples to nursing staff on approximately 26 October 2018. A urine culture was taken on 27 October 2018.
5The plaintiff continued to have blood in his urine and re-attended on nursing staff within two weeks of the notification. Again he was requested to provide urine samples, which he did.
6By December 2018 the plaintiff, still finding blood in his urine, requested further medical treatment. An appointment was made for him to see a doctor on 10 December 2018. Unfortunately, due to a computer system malfunction the plaintiff was unable to see the doctor on that occasion. The medical appointment was not rescheduled even after the computer problem was fixed.
7The plaintiff was transferred to Port Phillip Prison without first having seen a doctor. Whilst at Port Phillip Prison, the plaintiff’s symptoms escalated. There was now an increase in the levels of blood in his urine, he was suffering severe back pain, he lost weight and he lacked an appetite for food.
8Despite multiple requests for treatment from a nurse or doctor, the plaintiff was seen only by a nurse who gave him Panadol and water.
9Eventually the plaintiff complained to the Health Commissioner about the lack of treatment he had received. It was not until a significant time later that the plaintiff was diagnosed with metastatic urothelial carcinoma.
10The plaintiff brought proceedings against the State of Victoria (first defendant), G4S Custodial Services Pty Ltd (second defendant), Correct Care Australasia Pty Ltd (third defendant) and St Vincent’s Hospital (Melbourne) Ltd (fourth defendant). The first and second defendants were never served and are not parties to the litigation.
11During the period between 3 July 2018 and 7 March 2019, the third defendant provided primary health care services at Marngoneet Correctional Centre. These services were provided pursuant to a sub-contract between The GEO Group Australia Pty Ltd and GEO Care Australia Pty Ltd dated 24 December 2012.[1] The GEO Group Australia Pty Ltd was the head contractor and GEO Care Australia Pty Ltd was the sub-contractor. After entering into the sub-contract, GEO Care Australia Pty Ltd changed its name to its current name “Correct Care Australasia Pty Ltd”.[2]
[1]See exhibit “CC-2”, affidavit of Kellie Dell’Oro sworn 27 July 2022, paragraph 4. A copy of that contract is exhibited to the affidavit as “KDO-1”
[2]Ibid, paragraph 6. A copy of an ASIC printout showing the change of name is exhibited to the affidavit as “KDO-2”
12During the period that the plaintiff was incarcerated at Port Phillip Prison between March 2019 and December 2019 the fourth defendant provided health services to inmates at the prison, including to the plaintiff, pursuant to a contract entered into between the fourth defendant and G4S Custodial Services Pty Ltd, who managed and operated the prison.[3] The fourth defendant was the sub-contractor under that agreement.
[3]See exhibit “SV-2”, affidavit of Barbara Therese de Brouwer sworn 28 July 2022, paragraph 2. A copy of the contract is exhibited to the affidavit as "BTD"
13The proceeding settled. Pursuant to the settlement terms, the plaintiff was to receive the amount of $500,000 plus costs (“the settlement sum”). The settlement sum comprised of damages for pain and suffering, loss of earnings and gratuitous care.
The application
14Although the proceeding has settled, there is an outstanding issue to be resolved: namely, whether the settlement sum must be disbursed in accordance with Part 9C of the Corrections Act 1986 (“the Act”). In broad terms, the Act provides that in certain circumstances damages awarded to prisoners must be quarantined for a period of time so as to preserve the funds, in case victims of the crimes perpetrated against them by the prisoner, or creditors of the prisoner, wish to bring proceedings against the prisoner to recover damages.
15The plaintiff submits that the Act has no application in the present case. On the other hand, the third defendant submits that the Act might apply, depending on the interpretation of certain terms contained in the relevant provisions of the Act. The fourth defendant adopts the submissions made on behalf of the third defendant.
16The parties agree that if the Act has application in respect of at least one of the defendants, a part of the settlement sum must be quarantined in accordance with the provisions of the Act.
Statutory framework
17So far as is relevant for this Ruling, the purposes of the Act are set out in s1:
“The purposes of this Act are—
(a) to provide for the establishment management and security of prisons and the welfare of prisoners; …
and
(c) to provide for other correctional services.”
18The relevant definitions for present purposes are set out in s3 and include:
“contractor means—
(a) a party to an agreement with the Minister under section 8B(1); or
(b) a party to an agreement with the Secretary under section 9(1); or
(c) a party to an agreement with the Chief Commissioner of Police under section 9AA(1);
…
correctional services means the following services—
(a) prisons and services related to prisons or prisoners;
…
Health Complaints Commissioner means the Commissioner within the meaning of the Health Complaints Act 2016;
…
offender, other than in sections 30A to 30I, means a person of whatever age who is the subject of a correctional order;
…
prison means a prison under Part 3 and includes a prison industry site;
prisoner means a person who under Part 1A is deemed to be in the legal custody of the Secretary;
…
Secretary means Secretary to the Department of Justice and Community Safety under the Public Administration Act 2004 and includes a person acting as the Secretary to the Department of Justice and Community Safety under that Act;
sub-contractor means a sub-contractor of a contractor;
…”
19Part 9C of the Act, entitled “Prisoner compensation quarantine funds”, also contains relevant definitions. These are found in s104O:
“104O Definitions
In this Part—
agreement includes compromise and acceptance of an offer of compromise;
award of damages means damages—
(a)awarded pursuant to a judgment of a court; or
(b)paid or payable in accordance with an agreement between the parties to the agreement;
civil wrong means an act or omission of the State—
(a)that gives rise to a claim by a prisoner against the State; and
(b)that occurred while the claimant was a prisoner detained in custody in a prison; and
(c)that arose out of and in connection with his or her detention in custody in a prison;
claim means a claim brought in tort, in contract or under statute or otherwise;
court includes tribunal;
criminal act has the meaning given in section 104Q;
damages includes any form of monetary compensation;
family member has the same meaning as in section 30A;
initial quarantine period, in relation to a prisoner compensation quarantine fund, means the period of 12 months following the publication in the Government Gazette of the notice in respect of the fund under section 104Y;
prisoner includes former prisoner;
prisoner compensation quarantine fund has the meaning given in section 104V;
quarantine period, in relation to a prisoner compensation quarantine fund relating to a prisoner, means—
(a)the initial quarantine period; and
(b)the period ending on the final determination of all legal proceedings by victims against the prisoner which are commenced within the initial quarantine period and which are notified to the Secretary under section 104ZE(1);
State includes—
(a)the Secretary; and
(b)a contractor responsible for the management or operation of a prison; and
(c)any employee of the Crown or of a person referred to in paragraph (a) or (b);
victim has the meaning given in section 104R.”
20There are further definitions found in sections 104Q and 104R:
“104Q Meaning of criminal act
(1) In this Part, criminal act means conduct that, on the balance of probabilities, would constitute an offence.
(2) The definition of criminal act applies whether or not a prisoner whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of the offence.
104R Meaning of victim
In this Part victim means—
(a) a person who has had a criminal act committed against him or her;
(b) a family member of a person who has had a criminal act committed against that person.”
21The application of Part 9C is set out in s104P:
“104P Application
(1) This Part applies in respect of an award of damages to a prisoner in respect of a claim made by or on behalf of the prisoner against the State for a civil wrong.
(2) This Part applies to a claim by or on behalf of a prisoner arising from and in connection with the prisoner's detention while on remand if the prisoner is subsequently sentenced to a term of imprisonment, whether or not that sentence was imposed for the offence in respect of which the prisoner was remanded in custody.
(3) This Part does not apply to an award of damages to a prisoner in respect of a claim of false imprisonment.
(4) This Part does not affect (and is subject to) any obligation imposed on the State or the Secretary by or under an enactment of the State or the Commonwealth to pay some other person money owed or due to or held on account of the prisoner.”
22Division 3 of Part 9C provides for the payment of certain monies to the prisoner compensation quarantine fund:
“104V Damages awarded to prisoner to be paid to prisoner compensation quarantine fund
(1) The amount of any award of damages to a prisoner in respect of a civil wrong must be paid by the State to the Secretary immediately after the damages are awarded.
(2) The amount to be paid under subsection (1) does not include any amount specified in the award of damages made or approved by the court as attributable to—
(a)existing and future medical costs; and
(b)legal costs.
(3) An amount paid to the Secretary under subsection (1)—
(a)must be held in trust for the prisoner by the Secretary during the quarantine period and until the final payment is made out of the prisoner compensation quarantine fund in accordance with this Part; and
(b)may be paid out of the prisoner compensation quarantine fund only as authorised by this Part.
(4) Money held by the Secretary in trust for a prisoner under this Part constitutes a prisoner compensation quarantine fund.
(5) This section does not apply if the amount that would, but for this subsection, be required to be paid to the Secretary under subsection (1) does not exceed $10 000.
104W Prisoner compensation quarantine funds
(1) A prisoner compensation quarantine fund consists of—
(a)any amount held by the Secretary in trust for a prisoner under this Part; and
(b)any interest earned on that money.
(2) The Secretary must deposit all money in a prisoner compensation quarantine fund into an interest-bearing account with an ADI.
(3) The following may be paid out of the prisoner compensation quarantine fund—
(a)amounts required to be paid out to any person in accordance with section 104ZG or 104ZH;
(b)amounts required to be paid out in accordance with section 104ZJ in respect of the prisoner;
(c)the costs of administration of the fund (including any taxes payable in respect of the fund).
(4) The Secretary may only pay out of a prisoner compensation quarantine fund the costs of administration of the fund if that payment would not decrease the level of the fund below the amount of damages paid into the fund.
(5) The Secretary is responsible for the administration of the prisoner compensation quarantine fund.”
23Division 4 of Part 9C provides for the notification to victims and creditors of the fact that an award has been made in favour of the prisoner. It is unnecessary for present purposes to set out the provisions of Division 4 in any further detail. Division 5 contains provisions as to what is to happen to the funds once the initial quarantine period and any subsequent periods of quarantine have elapsed. Again, no further amplification of these provisions is necessary for present purposes.
The plaintiff’s contentions
24On behalf of the plaintiff, Mr Seeman submitted that before the Act can apply two prerequisites must be established: first, the award must relate to a “civil wrong” as defined, and second, the award must be made against the “State” as defined. Mr Seeman contends that neither prerequisite has been satisfied. First, he submits that the “civil wrong” (as defined) committed against the plaintiff did not arise out of and in connection with his detention in custody (emphasis added). Second, Mr Seeman further submits that neither of the defendants fall within the definition of “State” because they are sub-contractors, not contractors.
25Turning to the first point, namely whether the award relates to a civil wrong as defined, Mr Seeman submitted that the defendants’ negligence “had nothing to do with the Plaintiff’s incarceration, but rather, his development of cancer and failure to treat which was independent of his incarceration. He merely happened to be in prison when his symptoms arose.”[4]
[4]Exhibit “A” – plaintiff’s written submissions dated 25 July 2022, paragraph 23.b
26As to the second point, Mr Seeman contended that neither of the defendants can be regarded as falling within any of the paragraphs included in the definition of “State”. In particular, neither is (a) the Secretary; or (b) a contractor responsible for the management or operation of a prison; or (c) any employee of the Crown or of a person referred to in paragraph (a) or (b).
27The detail of Mr Seeman’s contentions is set out in his written submissions tendered as Exhibit A.
The third defendant’s contentions
28On behalf of the third defendant, Mr Dawson submitted that the words “that arose out of and in connection with” as they appear in subparagraph (c) of the definition of “civil wrong” are to be given a broad meaning and that the plaintiff’s claim in negligence arose out of and in connection with his detention in custody in a prison.
29As to the question whether either of the defendants fall within the definition of “State”, Mr Dawson submitted that if a wide interpretation is given to that term, it could include a sub-contractor of a contractor mentioned in paragraph (b).
30The detail of Mr Dawson’s contentions is set out in his written submissions tendered as Exhibit CC-1.
The fourth defendant’s contentions
31On behalf of the fourth defendant, Ms de Brouwer adopted the submissions made on behalf of the third defendant.
32The detail of Ms de Brouwer’s contentions is set out in her written submissions tendered as Exhibit SV-1.
Principles of statutory interpretation
33The principles of statutory interpretation are not in dispute. All parties agree that an interpretation that promotes the objects and purposes of the Act should be favoured. Should it be necessary to comprehend parliamentary intent, regard may be paid to extrinsic materials including explanatory memoranda and reports of proceedings of Parliament.[5]
[5]See sections 35(a) and (b) Interpretation of Legislation Act 1984
34I have already referred to the purposes expressed in s1 of the Act, which include “to provide for ... the welfare of prisoners”.
35The purposes of Part 9C are self-evident and are not in dispute. Should there be a need to resort to the Minister for Correction’s Second Reading Speech, I note that the Honourable Mr Cameron MP introduced the Bill by saying:
“…
This bill amends the Corrections Act 1986 to further strengthen the recognition that this government has given to the needs of, and harmful effect of crime on, victims.
The government is committed to empowering victims to exercise all of their available rights and remedies to seek compensation for the effects that they have suffered due to crimes perpetrated against them. The effects of these crimes can be severe and long lasting and can also have a significant impact on families as well. The bill provides an opportunity for victims to consider their existing rights under the civil law through notifying them of moneys received by prisoners in respect of claims brought against the state and quarantining those moneys for a period of at least 12 months to allow victims to bring civil proceedings against the prisoner.
The government intends to address the situation where an offender receives an award of damages from the state and therefore has a much improved financial situation. Victims can then choose to take advantage of that improved financial situation by taking their own legal action in the knowledge that there are assets that may satisfy a successful judgement.
The government is aware of the perceived inequity when offenders are seen to use the law for their own purposes through pursuing compensation arising from their circumstances in custody. This bill represents a step in addressing that inequity.
….
All victims of crime are able to bring a civil suit against perpetrators where they can satisfy the requirements of a relevant cause of action. However, the decision to bring a civil claim is dependent on the victim’s financial resources to fund the claim, the likelihood of recovering damages if the claim is successful and the victim’s willingness to pursue their perpetrator in the civil courts. In many instances, victims simply do not pursue civil remedies because either they lack the funds to bring the action or their perpetrator is impecunious or they do not want to face their perpetrator in a civil court. As often is the case, many convicted offenders have very few assets and no income for a victim to successfully enforce a civil judgement.
Under the Corrections Act 1986, victims can register and be told information about a prisoner’s sentence, parole and release date.
At present, compensation paid to prisoners by the state can be disbursed or squandered by the prisoner prior to claims being made by victims or judgements being enforced against them by those who have a judgement in their favour or others, such as the child support agency. The scheme does not change the law as it currently stands as to who can claim the funds. However, it will allow victims and others to know where the funds are, in order to decide whether to make a claim or have an existing judgement enforced.
Under the bill, damages awarded to offenders will immediately be paid to the Secretary of the Department of Justice to be quarantined in a trust fund. A public notification process will then commence. Victims will have 12 months in which to consider and commence legal proceedings against the offender. They can do this with the knowledge that the quarantined funds may be available to satisfy a successful claim.
This is not a scheme to redress all wrongs done by offenders to their victims. It is a scheme that provides another opportunity for victims in Victoria to seek civil redress in the light of an offender’s changed financial situation.
I move now to the substantive operation of the scheme. The bill amends the Corrections Act 1986 to:
quarantine damages and awards payments to prisoners received as a result of a successful claim against the state of Victoria or a private prison operator;
provide for the public notification of successful claims by prisoners to enable victims of crime and others to consider civil action to recover funds;
provide for the registration of victims to allow the disclosure of relevant information;
provide for the payment out of the fund to victims and creditors.
The bill does not affect the legal right of a current or former prisoner to bring a claim that may result in the payment of compensation or other award by the state of Victoria or a private prison operator.
It does not matter for the purposes of the scheme whether a prisoner brings their claim when in custody or after they have been released or whether a claim made whilst in custody is not resolved before their release. Provided the claim results in a payment by the state of Victoria or a private prison operator in relation to the conditions and circumstances in detention, it will potentially be quarantined. The bill applies to prisoners serving a sentence in custody and excludes prisoners on remand.
The aim is simply to provide victims the opportunity to bring a claim once they have been made aware of the existence of an asset that might be available to enforce a successful civil suit. The scheme only applies to damages or awards that relate to the circumstances of a prisoner’s incarceration. The scheme does not guarantee that a victim will be able to recover damages, irrespective of whether they can bring a claim within the limitation period or following an extension of that period granted by a court. Where a prisoner receives a damages payment, the bill requires the
…
The scheme captures any payment of damages or an award following a successful claim made by a prisoner at common law or under statute. The types of claims that may be made by prisoners or former prisoners include allegations of negligence, breach of contract, breach of statutory duty and claims based on a statute such as antidiscrimination matters and breaches of privacy.
The scheme applies to payments made pursuant to a court order on the completion of a hearing and payments made pursuant to a settlement agreement agreed between the parties. In all cases, it will only apply to claims made in relation to circumstances during the prisoner’s time in custody. It will not apply to claims made by a prisoner against another prisoner.
…
This bill further strengthens the recognition that this government gives to the harmful effects of crime and the needs of victims of crime.”[6]
[6]Victoria, Parliamentary Debates (Second Reading Speech), Legislative Assembly, 31 July 2008, 2983-2985 (Bob Cameron, Minister for Corrections)
Did the “civil wrong” arise out of and in connection with the plaintiff’s detention in custody?
36It will be recalled that in order to establish that a claim is a “civil wrong” for the purposes of Part 9C, in addition to the claim being one referable to an act or omission of the “State”, three elements must be satisfied: namely, the act or omission must be one:
“(a)that gives rise to a claim [as defined, meaning a claim brought in tort, in contract or under statute or otherwise] by a prisoner against the State; and
(b) that occurred while the claimant was a prisoner detained in custody in a prison; and
(c) that arose out of and in connection with his or her detention in custody in a prison.”[7]
[7]Corrections Act 1986 (Vic) s104O
37It is the third element that is in dispute, there being no dispute that the first two elements are satisfied.
The pleadings
38In the Amended Statement of Claim dated 18 November 2021, the plaintiff alleged by way of background:
“I. Background
1.The Third Defendant is and was at the relevant times, being in or around July 2018 to in or around December 2019 (“the period”), a body corporate with perpetual succession and is capable of being sued.
2.The Fourth Defendant is and was at the relevant times during the period a body corporate pursuant to the provisions of the Health Services Act 1988 and is able to be sued.
3.From in or around July 2018 to March 2019, the Plaintiff was incarcerated at Margoneet (sic) Correctional Facility (“Margoneet”) (sic).
4.From in or around March 2019 to December 2019, the Plaintiff was incarcerated at Port Phillip Correctional Facility (“Port Phillip”).
5.The Third Defendant provided nursing services to inmates at Margoneet (sic) during the period (“nursing staff of Margoneet” (sic)).
6.The Fourth Defendant provided nursing services to inmates at Port Phillip during the period (“nursing staff of Port Phillip”).”
39These allegations of fact are not in dispute.
40The particulars of negligence alleged against the third defendant are pleaded in paragraph 36 of the Amended Statement of Claim:
“(a)Failing to consider the significance of the Plaintiff repeatedly complaining of blood in his urine.
(b)Failing to consider the possibility that the Plaintiff’s complaint of blood in his urine was consistent with the possibility of the Plaintiff suffering a metastatic urothelial carcinoma or any other serious medical conditions.
(c)Failing to reschedule the Plaintiff’s appointment at Margoneet (sic) following the computer system malfunction.
(d)Failing to refer the Plaintiff to a doctor immediately upon receipt of knowledge that the Plaintiff had blood in his urine.
(e)Failed to perform investigations into the source of the Plaintiff’s symptoms sufficiently and in a reasonable time frame.
(f)Failing to organise a blood test, within a reasonable time frame.”
41The particulars of negligence alleged against the fourth defendant are pleaded in the same paragraph:
“(a)The Plaintiff refers to and repeats the particulars pleaded against the Third Defendant above.
(b)Failing to consider the significance of blood in his urine, severe lower back pain, weight loss and loss of appetite to a potential diagnosis of a carcinoma or other serious illness.
(c)Failing to schedule the Plaintiff to see a doctor following multiple medical codes being called.
(d)Failing to act upon the Plaintiff’s complaint to the Health Services Commissioner.”
42As mentioned, Mr Seeman contends that the defendants’ negligence “had nothing to do with the Plaintiff’s incarceration, but rather, his development of cancer and failure to treat which was independent of his incarceration. He merely happened to be in prison when his symptoms arose.”[8]
[8]Exhibit A, plaintiff’s written submissions dated 25 July 2022, paragraph 23.b
43Mr Seeman calls in aid of interpretation the Second Reading Speech of the then Minister for Corrections, the Hon Mr Cameron, MP. In his written submissions Mr Seeman cited the passages upon which he relied:
“The Second Reading Speech of Mr Cameron, Minister for Corrections, included the following statements:
oI move now to the substantive operation of the scheme. The bill amends the Correction Act 1986 to:
Quarantine damages and awards payments to prisoners received as a result of a successful claim against the State of Victoria or a private prison operator (emphasis added).
oProvided the claim results in a payment by the state of Victoria or a private prison operator in relation to the conditions and circumstances in detention (emphasis added), it will potentially be quarantined (at p.2894)
o…The scheme only applies to damages or awards that relate to the circumstances of a prisoner’s incarceration (emphasis added).”[9]
[9]Exhibit A, paragraph 25
44Mr Seeman argues that there is no nexus between the defendants’ negligence and the circumstances of his incarceration. He submitted that “the only connection between the hypothetical claim and the prison is a temporal one. The treatment by nurses have nothing to do with the circumstances of his cancer, treatment or otherwise.”[10]
[10]Exhibit A, paragraph 34
45Mr Seeman further submits that neither of the defendants are responsible for the conditions of prisons, lending force to the interpretation for which he contends. He submits “In this case, the Plaintiff’s custody in prison is merely temporally relevant. Nothing more. The legislature did not intend Part 9C to operate in this manner. There must be some meaningful connection with detention in custody, not merely a temporal one.”[11]
[11]Exhibit A, paragraph 37
46On the other hand, Mr Dawson submits that the defendants’ negligence is intimately connected to the plaintiff’s incarceration because, while a prisoner, the plaintiff was dependent upon the correctional service providers for his medical care and for his ability to access that care. The conditions and circumstances of the plaintiff’s detention included his ability to access medical care. As Mr Dawson put it:
“The definition of “civil wrong” is focused on the character of the relevant act or omission, not on the nature of the loss, injury, or damage. In this case, the alleged act or omission relates to the scheduling and referral for medical care, which … is directly related to the plaintiff’s incarceration.”[12]
[12]Exhibit CC-1, paragraph 19
47I consider that the words in question should be given a broad meaning. To do so would promote the purposes of the Act. Such an interpretation is also consistent with the way those words have been interpreted in other contexts.[13]
[13]See for example CKM (Mortgages) Ltd v McDonnell & Anor; McDonnell & Anor v CKM (Mortgages) Ltd & Ors [2010] VSC 576 at paragraph 6
48In my judgment, paragraph (c) of the definition of “civil wrong” requires that there be a causal nexus between the negligence and the plaintiff’s detention in custody. In this case I am persuaded that the defendants’ negligence arose out of and in connection with the plaintiff’s detention in custody in prison.
49Both prisons owed a high duty of care to the plaintiff because he was incarcerated and was under the care and control of the prisons. His detention meant that he did not have the freedom of movement outside, or indeed inside, the walls of the prison or the ability to secure the attendance of a healthcare professional of his own choosing without first obtaining the appropriate authorisation to do so.[14]
[14]See for example list of prisoners’ rights set out in s 47(1)(f) of the Act
50One of the features of incarceration is that prisons are responsible for the welfare of prisoners, a purpose spelt out in s1 of the Act. This purpose is manifest in a number of other provisions of the Act.[15] Inherent in the prison’s duty to be responsible for the welfare of prisoners is the obligation to provide medical attention, treatment and care when required. In this case, and to this end, both prisons contracted with various providers to provide such services on behalf of the prison for the benefit of their prisoners.
[15]See for example ss20(2), 21(1), and 47
51In accordance with the duty of care owed by both prisons to the plaintiff, the plaintiff was entitled to receive competent medical care and treatment from the prisons because of the relationship that existed of prisoner and jailer.
52I am satisfied that the causal nexus required by paragraph (c) of the definition of “civil wrong” is met for the following reasons:
(a) the defendants’ negligence occurred as a direct consequence of the plaintiff’s detention in custody in a prison;
(b) the prison was required to provide competent medical care to the plaintiff. That duty arose because of the plaintiff’s status as a prisoner in the custody and under the control of the defendants;
(c) the defendants’ involvement in the plaintiff’s medical care arose because the plaintiff was a prisoner and the defendants, as sub-contractors, were contractually bound to provide that care and treatment to the plaintiff;
(d) the defendants’ failure to provide competent medical care to the plaintiff, a person to whom the duty of care was owed, arose only because the plaintiff was imprisoned and because the prisons engaged the defendants to discharge the prisons’ duty to provide for the welfare of its prisoners, including the plaintiff.
53A broad interpretation of the words “arose out of and in connection with” is consonant with the purposes of the Act generally and with Part 9C in particular.
54Parliament intended to strike a balance between the rights of victims of crime and the need to ensure that a prisoner’s ongoing costs of medical treatment and care are provided for. On the one hand Parliament intended that the ability of victims to obtain compensation should be enhanced; however, on the other hand it also sought to safeguard from quarantine funds referable to medical and ongoing care costs and funds referable to legal costs and fees.[16] In any event, the scheme does not seek to deprive prisoners of awards of damages forever. Funds are quarantined for a limited period of time. A prisoner will be entitled to the proceeds of the award of damages if there are no relevant notifications made within time, or to the balance of any proceeds remaining after any successful claims are paid out of the quarantined funds.[17]
[16]See s104V(2)
[17]See ss104ZG, 104ZH, 104ZJ and 104ZK
55In all the circumstances I am satisfied that the plaintiff’s claim against each of the third and fourth defendants “arose out of and in connection with [the plaintiff’s] detention in custody in a prison.”
Do either of the defendants fall within the definition of “State”?
56As mentioned earlier, during the period between 3 July 2018 and 7 March 2019 the third defendant provided primary health care services at Marngoneet Correctional Centre as a sub-contractor of The GEO Group Australia Pty Ltd and GEO Care Australia Pty Ltd. So much is evident from the contract entered into between these parties.[18] In this capacity as sub-contractor, the third defendant was responsible for providing reasonable and competent medical care to the plaintiff.
[18]See exhibit “CC-2”, affidavit of Kellie Dell’Oro sworn 27 July 2022, paragraph 4. A copy of that contract is exhibited to the affidavit as “KDO-1”
57During the period that the plaintiff was incarcerated at Port Phillip Prison between March 2019 and December 2019 the fourth defendant provided health services to inmates at the prison, including to the plaintiff, as a sub-contractor pursuant to a contract entered into between the fourth defendant and G4S Custodial Services Pty Ltd, who managed and operated the prison.[19]
[19]See exhibit “SV-2”, affidavit of Barbara Therese de Brouwer sworn 28 July 2022, paragraph 2. A copy of the contract is exhibited to the affidavit as “BTD”
58The parties agreed that if either of the defendants fell within the definition of “State”, and provided the elements of “civil wrong” were also satisfied, the settlement sum is subject to the provisions of Part 9C.
59It will be recalled that “State” is defined in s104O as follows:
“State includes—
(a)the Secretary; and
(b)a contractor responsible for the management or operation of a prison; and
(c)any employee of the Crown or of a person referred to in paragraph (a) or (b)”.
60The parties agree that neither the third nor fourth defendant can be described as the Secretary (as defined) or as an employee of the Crown or as an employee of the Secretary or of a contractor responsible for the management or operation of a prison. The parties also agree that neither defendant is a contractor responsible for the management of a prison.
61The critical question is whether either of the defendants is a contractor responsible for the operation of a prison.
62Mr Seeman submits that although multiple contractors may be engaged to operate various aspects of the prison, neither of the defendants meet the definition of “contractor”. He submits that neither defendant was responsible for the operation of a prison. Accordingly, Part 9C can have no application to the settlement sum.[20]
[20]Exhibit “A” paragraph 23.a
63Mr Dawson agrees that the terms “contractor” and “sub-contractor” are defined in s3 of the Act and that prima facie both the third and fourth defendants fall within the definition of “sub-contractor”, not “contractors”. He submits, however, that it is open to find that the term “contractor” as used in Part 9C has a wider meaning than as is defined in s3.[21] He observes that should “contractor” be construed narrowly, it could lead to unintended consequences, such as by creating anomalies. He hypothesises the case of two claimants with identical claims of medical negligence arising out of the circumstances of their detention in a prison where one prisoner has been treated by a contractor as defined in s3 and the other treated by a sub-contractor as defined in that section. The application of Part 9C would apply in one case, but not in the other.[22] Such a consequence, submits Mr Dawson might undermine the purposes of Part 9C.
[21]Exhibit “CC-1” paragraphs 21 - 35
[22]Exhibit “CC-1” paragraph 27
Discussion
64There is a distinction to be drawn between the terms “contractor” and “sub-contractor” in relation to the conferral of powers, and the assumption of rights, duties, and obligations.
65The Act provides for the engagement of contractors to provide correctional services[23] and management services.[24]
[23]See Part 2A Division 1, which includes s8B
[24]See Part 2A Division 2, which includes s9(1) and 9AA(1)
66As mentioned earlier, the terms “contractor” and “sub-contractor” are defined in s3:
“contractor means—
(a)a party to an agreement with the Minister under section 8B(1); or
(b)a party to an agreement with the Secretary under section 9(1); or
(c)a party to an agreement with the Chief Commissioner of Police under section 9AA(1);
...
sub-contractor means a sub-contractor of a contractor”.
67Both definitions are exhaustive. In other words, there is no room to read in any other meanings than those specified in the respective definitions. The terms are mutually exclusive.
68In no other place in the Act is a different or expanded meaning given to either of those terms, although other terms in the Act have been given more than one definition. One example where different definitions have been given to the same term within the Act is found for the term “State”. For the purposes of Part 8A, which concerns interstate leave of absence for prisoners, “State” is defined in s80 as follows:
“State includes the Australian Capital Territory and the Northern Territory.”
69For the purposes of Part 9C “State” has an entirely different definition as set out earlier.
70Another example of two definitions in the Act for the same word is “victim”. Section 47AA defines “victim”:
“victim means—
(a)a natural person who has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of an offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender; or
(b)a family member of a person to whom paragraph (a) applies.”
71A different definition of “victim” is provided for the purposes of Part 9C:
“104R Meaning of victim
In this Part victim means—
(a)a person who has had a criminal act committed against him or her;
(b)a family member of a person who has had a criminal act committed against that person.”
72It is clear that Parliament did not intend that every award of damages made in favour of a prisoner arising from the fact of their incarceration should be subject to quarantine under Part 9C of the Act.
73During the second reading of the bill, Dr Sykes asked why the bill was restricted to certain claims:
“.… What is interesting is that as I understand it, the legislation is restricted to money which comes to a prisoner as a result of claims against the government or the provider of the prison services. As I understand it, it does not appear to cover money coming to the prisoner from other sources ….
Therefore I would welcome the minister providing some explanation as to why the bill is restricted to claims made against the government, and why it does not include money coming into the hands of prisoners from other means.”[25]
[25]Victoria, Parliamentary Debates (Second Reading Speech), Legislative Assembly, 20 August 2008, 3118 (Bill Sykes, Minister for Benalla)
74In response the responsible Minister explained:
“…. I will just address a couple of issues. For example, the honourable member for Benalla raised the issue of why this reform related to the situation where the government or a private provider was the party that was being sued and the party who had to ultimately pay out a reward. We have done that because that is where we have some control. We know when the state or the private provider as a contractor has to pay out. The situation is vastly different where a prisoner may have a legal transaction with another party, a private party, but that is something that we would not know about.”[26]
[26]Victoria, Parliamentary Debates (Second Reading Speech), Legislative Assembly, 20 August 2008, 3121 (Bob Cameron, Minister for Corrections)
75These passages strengthen the inference that Parliament did not intend that awards of damages arising out of claims made by prisoners against third parties such as sub-contractors should be subject to quarantine pursuant to Part 9C of the Act.
76Had Parliament intended to give a different meaning to “contractor” for the purposes of Part 9C it could easily have done so. To do so, however, would make little sense, since a very specific, limited and exhaustive meaning is intended for this term not only for Part 9C, but for everywhere else in the Act where that term is used. Moreover, throughout the Act both terms “contractor” and “sub-contractor” are used although not always together or interchangeably.[27] Significantly, Division 4 of Part 2A sets out general provisions relating to agreements. These are agreements pursuant to which “contractors” as defined in s3 are engaged. In that Division, both “contractor” and “sub-contractor” are used. The terms are not used interchangeably. Rather, they are mutually exclusive:
“Division 4—General provisions relating to agreements
[27]See for example sections 8E(1) and (2), 8F(3), 9AC(1), 9A(1)
9A Authorisation of certain staff
(1)The Secretary may, by instrument, authorise a contractor under Division 1 or 2 or a sub-contractor of that contractor or a person employed by that contractor or sub-contractor to exercise all or any of the functions or powers under this Act or the regulations or under any other Act or the regulations under that Act of—
(a)the Secretary; or
(b)an officer within the meaning of Part 5; or
(c)an officer within the meaning of Part 9; or
(d)an escort officer.
(1A)The Chief Commissioner of Police may, by instrument, authorise a contractor under Division 3 or a sub-contractor of that contractor or a person employed by that contractor or sub-contractor to exercise all or any of the functions or powers as may be exercised under section 27 of the Bail Act 1977 or Part 9A of this Act or under the regulations made under this Act by a police officer.
(1B)The Chief Commissioner may, by instrument, authorise a contractor under an agreement entered into under section 9AA or a sub-contractor of that contractor or a person employed by that contractor or sub-contractor—
(a)to carry out the transport of any persons or class of persons in accordance with that agreement and to detain those persons while being transported; and
(b)to have and exercise all or any of the following functions—
(i) to take all reasonable steps to ensure a person being transported remains in the physical custody of the authorised person;
(ii) to take all reasonable steps to ensure that the safety and welfare of a person being transported are maintained;
(iii) to take all reasonable steps to prevent and detect the commission by a person being transported of any unlawful act or any attempt to commit an unlawful act;
(iv) to report to the Chief Commissioner of Police on the commission by a person being transported of any unlawful act or any attempt to commit an unlawful act;
(v) to take all reasonable steps to ensure the good order and discipline of a person being transported;
(vi) to take all reasonable steps to attend to the security of any property that is in the possession of a person being transported;
(vii) to take all reasonable steps to ensure the person is transported to or from the appropriate place as required by the Chief Commissioner of Police;
(viii) to take all reasonable steps to ensure that the person is transferred—
(A)into the physical custody of another person acting on behalf of the Chief Commissioner of Police; or
(B)if legal custody of the person is authorised to be transferred to a person other than the Chief Commissioner, into the physical custody of a person acting on behalf of the person to whom legal custody is to be transferred;
(c)to exercise all or any of the following powers in relation to the functions set out in paragraph (b)—
(i) to order a person being transported to do or not to do anything which the authorised person believes on reasonable grounds is necessary for the safety of the authorised person, the person being transported or any other person;
(ii) to search and examine a person being transported or any thing in the person's possession or under the person's control if the authorised person believes on reasonable grounds that this is necessary for the safety of the authorised person, the person being transported or any other person;
(iii) to seize any thing found on a person being transported or in that person's possession or under that person's control if the authorised person believes on reasonable grounds that this is necessary for the safety of the authorised person, the person being transported or any other person;
(iv) subject to subsection (2A), to apply an authorised instrument of restraint to a person being transported if the authorised person believes on reasonable grounds that the application of the instrument of restraint is necessary to prevent the escape of the person being transported or the assault of, or injury to, any person.
(2)An authority may be given subject to any conditions or limitations that are stated in it.
(2A)A person authorised under subsection (1B)(c)(iv) may apply an instrument of restraint to a person being transported only if—
(a)the instrument, or type of instrument, is approved by the Chief Commissioner of Police; and
(b)the instrument is used in the manner determined by the Chief Commissioner of Police.
(3)A contractor or sub-contractor or a person employed by a contractor or sub-contractor is incapable of exercising any function or power referred to in subsection (1), (1A) or (1B) except in accordance with an authority given under that subsection.
(4)The Secretary or the Chief Commissioner of Police may refuse to give an authority to any person if he or she considers that it is in the public interest not to give it.
(5)Without limiting subsection (4), the Secretary or the Chief Commissioner of Police may refuse to give an authority—
(a)to any person who has not undertaken a relevant course of training or instruction accredited by the Secretary or the Chief Commissioner of Police for the purposes of this Part; or
(b)to any person whom the Secretary or the Chief Commissioner of Police considers not to be a fit and proper person to be so authorised for any reason including criminal record, character or educational standard.
(6)After giving the person a reasonable opportunity to be heard, the Secretary or the Chief Commissioner of Police may at any time revoke an authority given by him or her to that person if he or she considers that it is in the public interest to do so.
(7)Without limiting subsection (6), the Secretary or the Chief Commissioner of Police may revoke an authority given by him or her if—
(a)in the opinion of the Secretary or the Chief Commissioner of Police it ought not to have been given having regard to subsections (4) and (5); or
(b)the person has failed to comply with any provision of this Act or the regulations or with any direction given to him or her under this Act or the regulations.”
77Neither defendant falls within the definition of “contractor” as neither are:
“(a)a party to an agreement with the Minister under section 8B(1); or
(b)a party to an agreement with the Secretary under section 9(1); or
(c)a party to an agreement with the Chief Commissioner of Police under section 9AA(1).[28]
[28]Corrections Act 1986 (Vic) s3
78Both the third and fourth defendants fall within the definition of “sub-contractor” because they each are sub-contractors of contractors as defined in s3 of the Act. Had Parliament so intended, it would have been a simple matter to include the term “sub-contractor” in the definition of “State” contained in s104O as was done in the case of Division 4 of Part 2A.
79I consider it can be inferred safely that for the purposes of Part 9C Parliament did not intend to give “contractor” a broader interpretation than as is defined in s3.
80In all the circumstances, neither the third nor the fourth defendants can be classified as a “contractor” for the purposes of Part 9C of the Act. Therefore, neither of them is included in the definition of “State” for that Part.
Conclusion and orders
81It is not open to find that this is a case of a “civil wrong” as defined in s104O of the Act because the relevant acts or omissions that gave rise to the plaintiff’s claim were neither acts nor omissions of the “State” as also defined in that section.
82Accordingly, I rule that the settlement sum is not subject to the provisions of Part 9C of the Act. I so order.
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