CRAIG MINOGUE	Plaintiff
v
SHARELLE DOUGHERTY (in her capacity as a Corrections Act 1986 Officer)
And
MICHAEL TROTTER (in his capacity as a Governor of Barwon Prison)
And
BRETT RYAN (in his capacity as a Governor of Barwon Prison)
And
SHARELLE DOUGHERTY (in her capacity as a Corrections Act 1986 Officer)	Defendants

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 AUGUST 2017
DATE OF JUDGMENT:	6 DECEMBER 2017
CASE MAY BE CITED AS:	MINOGUE v DOUGHERTY
MEDIUM NEUTRAL CITATION:	[2017] VSC 724

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CHARTER OF HUMAN RIGHTS — Obligation under s 38(1) to accord proper consideration to a relevant human right when making a decision — Whether seizure of pen pal letter in accordance with mail policy unreasonably limited freedom of expression — whether refusal to photocopy A3 document constituted censorship of mail or unreasonable limitation of right to privacy of correspondence or freedom of expression — whether non-delivery of a letter constituted censorship of mail or unreasonable limitation of right to privacy of correspondence or freedom of expression — Relief refused — Charter of Human Rights and Responsibilities Act 2006 ss 7, 13, 15(2), 38; Corrections Act 1986 ss 47(1)(n) and 47D.

CHARTER OF HUMAN RIGHTS — Whether prison mail officer a public authority —Governor offered to be substituted for prison mail officer as defendant — Whether prison officer a proper contradictor — Statutory responsibility for prisoner mail lies with governor — Relief refused on discretionary grounds where governor accepted responsibility — Relief granted where decision complete without proper consideration before governor attempted to assume responsibility— Charter of Human Rights and Responsibilities Act 2006 ss 4, 7, 13, 15(2), 38; Corrections Act 1986 ss 12, 47(1)(n) and 47D.

JUDICIAL REVIEW — Claims for declaratory relief— Whether seizure of pen pal letter unlawful — Whether refusal to photocopy A3 document constituted censorship of mail or unlawful application of Governor’s rights in respect of prisoner mail — Whether non-delivery of a letter pending consideration of the mail procedure by the governor was unlawful — Relief refused— Charter of Human Rights and Responsibilities Act 2006 ss 13, 15(2) — Corrections Act 1986 ss 47(1)(n) and 47D.

JUDICIAL REVIEW — Claim for declaratory relief — Concession rightly made by defendant that prison mail officer returning letter and book to sender was unlawful — Declaratory relief granted — Corrections Act 1986 ss 47(1)(n) and 47D.

PRACTICE AND PROCEDURE — Application for extension of time to institute proceeding for judicial review — Special circumstances — Extension of time granted — Supreme Court (General Civil Procedure) Rules 2015 r 56.02(1).

PRACTICE AND PROCEDURE — Application for preliminary discovery — Application refused— Supreme Court (General Civil Procedure) Rules 2015 r 32.03, 32.05.

STATUTORY INTERPRETATION — Whether work instruction to a prison officer was delegation by governor — No delegation — Failure to proceed against proper…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Minogue v Dougherty

Details

AGLC: Minogue v Dougherty [2017] VSC 724
Case: [2017] VSC 724
Decision Date: 6 DECEMBER 2017

CaseChat Overview and Summary

Minogue brought a case against Dougherty, a prison mail officer, regarding the handling of correspondence in a prison setting. The dispute centred around the seizure of a letter from Minogue's pen pal, the refusal to photocopy an A3 document, the non-delivery of a letter, and the return of a book sent to Minogue. The case was heard in the Supreme Court of Victoria.

The primary legal issues in this case were whether the actions of the prison mail officer constituted a breach of Minogue's human rights, specifically the right to freedom of expression and the right to privacy of correspondence. Additionally, the court had to determine if the prison mail officer was a public authority under the Charter of Human Rights and Responsibilities Act 2006 and whether the Governor could be substituted as a defendant. The court also needed to decide if the prison mail officer was a proper contradictor and whether the statutory responsibility for prisoner mail lay with the Governor.

The Supreme Court ruled that the prison mail officer was not a public authority, and the Governor could not be substituted as a defendant. The court found that the prison mail officer was not a proper contradictor, but statutory responsibility for prisoner mail lay with the Governor. The court held that the seizure of the pen pal letter, the refusal to photocopy the A3 document, and the non-delivery of a letter did not constitute censorship of mail or an unreasonable limitation of Minogue's rights. However, the court found that returning the book to Minogue was unlawful. The court granted declaratory relief for this specific action and refused other relief on discretionary grounds.

The court granted an extension of time to institute the proceeding for judicial review due to special circumstances but refused the application for preliminary discovery. The court also determined that the work instruction to a prison officer was not a delegation by the Governor.

Orders