Minogue v Falkingham - [2021] VSC 185

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 05598
S ECI 2020 03887

CRAIG MINOGUE	Plaintiff
v
REBECCA FALKINGHAM (in her capacity as the Secretary to the Department of Justice and Community Safety)	Defendant

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JUDGE:	Macaulay J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 May, 21 and 25 September, 6 November 2020, and 1 February 2021
DATE OF JUDGMENT:	20 April 2021
CASE MAY BE CITED AS:	Minogue v Falkingham
MEDIUM NEUTRAL CITATION:	[2021] VSC 185

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ADMINISTRATIVE LAW – Judicial review of administrative decisions relating to applications for a laptop computer – Plaintiff a prisoner – Plaintiff also defendant in a criminal matter and plaintiff in a civil matter.

HUMAN RIGHTS – Access to courts – Right to communicate with lawyer, seek and receive legal advice and give instructions for a criminal matter – ‘Right’ to fair trial – Common law rights - Corrections Act 1996 (Vic) – Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 8, 15, 24, 25 and 38 - Whether decision deprived plaintiff of access to courts – Whether decision deprived plaintiff of right to fair trial – More appropriate forum to seek relief against alleged denial of access to courts or fair trial is court hearing the particular case in respect of which denial is claimed – Whether decision-maker acted in a way incompatible with a human right – Whether in making the decision the decision-maker required to give proper consideration to human rights.

ADMINISTRATIVE LAW – Decision permitted laptop in place of desktop computer – Decision satisfied plaintiff’s request – Limited scope to review decisions regarding administration of prisons – No bad faith – No unreasonableness.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Self-represented
For the Defendant	Mr L Brown (on 1 February 2021 only) and Ms S Fitzgerald (7 May 2020, 21 and 25 September 2020, 6 November 2020 and 1 February 2021)	Victorian Government Solicitor’s Office

TABLE OF CONTENTS

Background......................................................................................................................................... 4

The 2019 Decision.......................................................................................................................... 4
The 2020 Decision.......................................................................................................................... 7

The parties’ contentions.................................................................................................................. 15

Two significant obstacles to plaintiff’s success......................................................................... 17

Decision satisfied the request for portability of documents................................................. 18
Inappropriate forum................................................................................................................... 20
Consequence for the plaintiff’s proceeding............................................................................ 22

Other arguments............................................................................................................................... 23

Limited scope for the decision to be judicially reviewed...................................................... 23
Decision was not unreasonable................................................................................................. 24
Decision was not made in bad faith......................................................................................... 25
Decision did not limit human rights under the Charter........................................................ 26

Other applications........................................................................................................................... 29

Conclusion and orders.................................................................................................................... 30

HIS HONOUR:

Introduction

Dr Craig Minogue, the plaintiff, is a long-term prisoner in the custody of the Secretary to the Department of Justice and Community Safety, a position currently occupied by the defendant, Ms Rebecca Falkingham. Under s 8 of the Corrections Act 1996 (Vic) (‘Corrections Act’) the Commissioner of Corrections Victoria (the ‘Commissioner’) is employed by the defendant to carry out functions of the defendant in providing correctional services.

The plaintiff is presently imprisoned at HM Prison Barwon, in the…

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.

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Details

Case: [2021] VSC 185
Decision Date: 20 April 2021

CaseChat Overview and Summary

In the matter of Minogue v Falkingham, the plaintiff, Minogue, a prisoner, sought judicial review of a decision made by Falkingham, the Commissioner of Corrections, regarding the provision of a laptop computer. Minogue, who was also involved in a criminal matter and a civil matter, sought a laptop to facilitate communication with his legal representatives and to access necessary legal resources. The dispute centred on whether the decision to deny Minogue a laptop computer deprived him of his right to access the courts and to a fair trial, as well as whether the decision-maker was required to consider human rights in making the decision.

The central legal issues before the court were whether the decision to deny Minogue a laptop computer deprived him of his right to access the courts and to a fair trial, as guaranteed by the Charter of Human Rights and Responsibilities Act 2006 (Vic). The court also needed to determine if the decision-maker was required to consider human rights in making the decision, and whether the decision was unreasonable or made in bad faith. Furthermore, the court examined whether the decision to permit a laptop in place of a desktop computer satisfied Minogue’s request and whether there was any scope to review the decision under administrative law principles.

The court held that while the decision to deny Minogue a laptop computer might have impacted his ability to access legal resources and communicate with his legal representatives, the more appropriate forum to seek relief against any alleged denial of access to courts or a fair trial was the court hearing the particular case in respect of which the denial was claimed. The court found that the decision did not deprive Minogue of his right to access the courts or to a fair trial because the right to fair trial is not absolute, and there are circumstances where restrictions may be justified. The court also found that the decision-maker was not required to give proper consideration to human rights in making the decision, as the decision did not act in a way incompatible with a human right. Additionally, the court found that the decision to permit a laptop in place of a desktop computer satisfied Minogue’s request, and there was limited scope to review the decision under administrative law principles, as there was no evidence of bad faith or unreasonableness.

The court dismissed the application for judicial review and made no orders for costs.

Orders