Minogue v Lourey - [2016] VSC 812

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 00324

CRAIG WILLIAM JOHN MINOGUE	Plaintiff
v
ANDREW LOUREY (in his capacity as the Governor of Loddon Prison)	Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 August 2016
DATE OF JUDGMENT:	23 December 2016
CASE MAY BE CITED AS:	Minogue v Lourey
MEDIUM NEUTRAL CITATION:	[2016] VSC 812

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JUDICIAL REVIEW – Prison staff failed to allow plaintiff access to mail and opened mail dispatched by plaintiff to his legal representatives – Defendant admitted contravention of s 47(1)(n) of Corrections Act 1986 – Discretion to grant of declaratory relief notwithstanding contravening conduct not ongoing – Declarations granted – Corrections Act 1986 s 47(1)(n).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No Appearance
For the Defendant	Ms C M Harris	Victorian Government Solicitor

HIS HONOUR:

The plaintiff has been serving a term of imprisonment since 1986, having been convicted of murder. At the time of the events which underpin the present application, he was detained in Loddon Prison. The facts underpinning the present proceeding are not in dispute. In late 2015, prison officers at Loddon Prison prevented the following items of correspondence which were addressed to Dr Minogue from being delivered to him:

(i) A letter from Ms Sheryle Griffiths dated 13 November 2015 together with a copy of the judgment of the Supreme Court of Victoria in Moran v Secretary to the Department of Justice and Regulation [2015] VSC 593;

(ii) Two volumes of the Journal of Prisoners on Prisons together with covering letters from Zachary Leheniuk dated 5 November 2015 and 14 December 2015.[1]

[1]Whilst the defendant’s written submissions erroneously referred to a single journal article being temporarily withheld from the plaintiff, the defendant accepted at trial that there was a second journal article and a letter dated 14 December 2015 which had been withheld from the plaintiff: See Transcript of Proceedings, Minogue v Lourey (Supreme Court of Victoria, S CI 2016 00324, McDonald J, 18 August 2016) T26 LL3–13.

Further, in February and March 2016, prison officers opened three envelopes which had been dispatched by Dr Minogue which were addressed to the Darebin Community Legal Centre from whom he was seeking advice in respect of the current proceedings and other proceedings in the Supreme Court of Victoria.

The defendant accepts that the items of mail referred to above were dealt with in contravention of Dr Minogue’s right under s 47(1)(n) of the Corrections Act 1986 (‘the Act’). Section 47(1)(n) provides that subject to s 47D, which prescribes letters which may be stopped and censored, every prisoner has the right to send and receive other letters uncensored by prison staff. The defendant’s written submissions include the following:

6.The Defendant accepts that the Moran judgment was stopped and returned to the sender,[2] and that the mail staff were in error in stopping that item and cover letter, which was stopped because the prison…

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: [2016] VSC 812
Decision Date: 23 December 2016

CaseChat Overview and Summary

In Minogue v Lourey, the plaintiff, a prisoner, sought judicial review against the defendant, a prison official, for the denial of access to his mail and the unlawful opening of mail sent to his legal representatives. The case was heard by the Supreme Court of Queensland. The plaintiff alleged that the prison staff had failed to provide him with access to his mail and had opened mail addressed to his legal representatives, which was a contravention of section 47(1)(n) of the Corrections Act 1986.

The primary legal issue before the court was whether the plaintiff was entitled to declaratory relief under section 47(1)(n) of the Corrections Act 1986, despite the defendant admitting to the contravention of the provision. The court had to determine whether the discretionary nature of declaratory relief could be granted despite the contravening conduct not being ongoing. The court also needed to consider whether the declaration could be made in light of the defendant’s admission of the contravention.

The court found that the discretionary nature of declaratory relief meant that the court could grant relief even if the contravening conduct was not ongoing. The court held that the contravention of the statutory provision was serious, and the declaration was necessary to ensure that the plaintiff’s rights under the Act were recognised and protected. The court also found that the declaration was necessary to maintain the integrity of the legal process and to prevent the recurrence of similar breaches in the future. The court granted the declarations sought by the plaintiff.

Orders