Minogue v Secretary to the Department of Justice and Community Safety

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 01385

CRAIG MINOGUE	Plaintiff
v
SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY	Defendant

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2019
DATE OF JUDGMENT:	18 June 2020
CASE MAY BE CITED AS:	Minogue v Secretary to the Department of Justice and Community Safety
MEDIUM NEUTRAL CITATION:	[2020] VSC 355

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JUDICIAL REVIEW – Prisoner seeks review of decisions relating to removal and reinstatement on conditions of his telephone access and limitations on telephone access for the purpose of accessing the internet - Application for extension of time to add additional grievances to existing proceeding – Application for leave to further amend relief sought in amended originating motion – Comparison between the tests for extension of time and amendment of existing relief – Extension of time granted in relation to refusal of telephone calls for the purpose of recipient contacting plaintiff’s lawyers by use of the internet – Extension of time refused in relation to challenge to Corrections Regulations 2019 (Vic) because seeks advisory opinion – Leave refused in relation to some reformulations of relief – Observations as to the utility of interlocutory challenge to formulations of relief where plaintiff unrepresented – rr 36.01 and 56.02 Supreme Court (General Civil Procedure) Rules 2015 (Vic).

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APPEARANCES:	Counsel	Solicitors
The Plaintiff in person
For the Defendant	L T Brown with S M C Fitzgerald	Victorian Government Solicitor

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Factual background and procedural history................................................................................. 1

Context.................................................................................................................................. 1
Tweet of 11 February 2019 and subsequent investigation............................................. 3
February Privileges List and requests pursuant to that List......................................... 4
Removal of telephone access to the plaintiff’s partner.................................................. 7
Commencement of this proceeding.................................................................................. 8
April Privileges List............................................................................................................. 8
Responses to the plaintiff’s requests made pursuant to the February Privileges List 10
Requests made pursuant to the April Privileges List................................................... 10
Corrections Regulations 2019.......................................................................................... 12
Further amendment of the originating motion............................................................. 14

Amendments sought and summary of submissions................................................................. 15

Relevant legal principles................................................................................................................ 18

Judicial review............................................................................................................................. 18
Extension of time......................................................................................................................... 21
Amendment................................................................................................................................. 26

Consideration.................................................................................................................................... 29

Extension of time......................................................................................................................... 29
Refusal of internet access by letter dated 11 April 2019.............................................. 34
Conclusion in relation to extension of time in relation to 11 April 2019 letter......... 41
Promulgation of the 2019 Regulations........................................................................... 42

Proposed amendments to relief sought................................................................................... 44
Opening paragraphs of relief........................................................................................... 45
Determination of February Privileges List.................................................................... 45
Withdrawal of plaintiff’s telephone access.................................................................... 47
Offering of undertaking: Dr Cassar 3 April 2019.......................................................... 48
Determination of the April Privileges List..................................................................... 50
Mr Ryan’s decision of 11 April 2019 in relation to internet access to lawyers......... 50

Conclusion and orders.................................................................................................................... 50

HER HONOUR:

Introduction

The plaintiff seeks judicial review of a number of decisions made by the defendant in relation to his telephone access to his partner, including for the purpose of his partner contacting the plaintiff’s lawyers by email and posting tweets on his behalf.

The decisions in question were made in early 2019, and the proceeding was commenced by originating motion dated 27 March 2019 and filed on 2 April 2019. The proceeding was originally listed for hearing on 15 October 2019, but that date was vacated when the plaintiff sought to further amend his originating motion. The proposed amendments include matters for which the plaintiff requires, and seeks, an extension of time. These reasons concern his applications to amend and for an extension of time.

For the reasons I now give, I will grant an extension of time in respect of one of the proposed additional grievances, but not the other. I will not grant leave to amend in respect of some of the relief the plaintiff seeks in relation to that additional grievance and some of the proposed reformulated relief in respect of grievances already included in the proceeding, but will otherwise allow the amendments.

I apologise for the delay in delivery of these reasons.

Factual background and procedural history
Context

In 1988 the plaintiff was convicted of the murder of a police officer and sentenced to life imprisonment with a non-parole period of 28 years. On 3 October 2016, after the expiration of his non-parole period, the plaintiff applied to the Adult Parole Board for parole. On 14 December 2016, a new provision in the Corrections Act 1986 (Vic) (‘the Act’) came into force, s 74AAA, which imposed limitations on the power of the Adult Parole Board to grant parole to a prisoner convicted of the murder of a police officer. The plaintiff challenged the constitutional validity of the section. On 20 June 2018, the High Court held that the section did not apply to the plaintiff, and declined to decide the constitutional issue.[1]
[1]Minogue v Victoria (2018) 264 CLR 252.

On 1 August 2018, the Act was again amended to insert a new s 74AB and to substitute ss 74AAA and 127A. The new s 74AB only applies to the plaintiff. It sets out limitations on the power of the Adult Parole Board to grant him parole. In short, the section provides that the Board is unable to grant the plaintiff parole unless satisfied that he is in imminent danger of dying or is seriously incapacitated and as a result no longer has the physical ability to harm any person; has demonstrated that he does not pose a risk to the community; and the Board is satisfied that because of these matters the grant of parole is justified.

On 23 October 2018, the plaintiff commenced proceedings in the High Court to challenge the constitutional validity of s 74AB, and, if it applied, s 74AAA. The proceeding was heard in the High Court on 18 June 2019. On 11 September 2019, the High Court ruled that s 74AB was not invalid.[2] As of that date the plaintiff’s application for parole had not been determined.[3] The evidence in this proceeding does not reveal the current status of that application.
[2]Minogue v Victoria (2019) 372 ALR 623.
[3]Ibid 625.

I draw what follows in relation to the facts giving rise to this proceeding from the series of affidavits of the plaintiff and the sole affidavit relied on by the defendant. The facts are broadly not disputed, although their consequences are. For the purpose of this application I will assume that the plaintiff will be able to establish his account.

The plaintiff deposes that until the events that form the subject of this proceeding he had had telephone access to his ‘life partner’, a woman who lives interstate, from December 2017 and that she had operated a Twitter account for him, in his name, from 1 May 2018. He deposes that various politicians have accessed that Twitter account. He further deposes that he has had email addresses operated on his behalf by intermediaries for over twenty years prior to March 2019, and for over ten years prior to March 2019 had a website in his name on which material was published (again presumably by others, possibly at his request) about him.[4]
[4]Affidavit of Craig Minogue sworn 10 March 2019, [3]-[5], [8], [18] (‘10 March affidavit’).

Tweet of 11 February 2019 and subsequent investigation

On 11 February 2019, another prisoner at Barwon Prison, Mr Tony Mokbel, was attacked and seriously injured. On that same day, the plaintiff caused a tweet to be published on his Twitter account by his partner at his telephone request in these terms:

URGENT: The Prison Intelligence Unit and Victoria Police have had Tony Mokbel attacked in Barwon Prison today. This is a conspiracy to pervert the cause [sic] of justice.

On 19 February 2019, Dr Emma Cassar, Commissioner of Corrections Victoria, wrote to the plaintiff in relation to this tweet. She advised the plaintiff that she had asked the prison General Manager to investigate whether the content of that tweet and successive tweets or operating a Twitter account constituted a prison offence under regulation 50 of the Corrections Regulations 2009 (Vic) (‘2009 Regulations’). Regulation 50 contained a list of the conduct that would constitute a prison offence. Dr Cassar requested that Barwon Prison suspend the plaintiff’s telephone calls to a named person, who was the plaintiff’s partner, pending that investigation. Pursuant to s 54A of the Act, the Secretary may withdraw a privilege pending investigation of a possible prison offence.

On 20 February 2019, the plaintiff became aware that his telephone access to his partner had been deactivated. That same day a Prison Supervisor investigated the matter as requested by Dr Cassar, including by interviewing the plaintiff, and concluded that no prison offence had occurred.[5] There was no prison offence created by regulation 50 of the 2009 Regulations specifically directed to a prisoner requesting another person on a permitted telephone call to use the internet on the prisoner’s behalf. The list of prison offences pursuant to regulation 50 included the misuse of telephones to threaten the recipients or to speak to persons not approved by the Governor (reg 50(h)); the use of communication devices not approved by the Governor (reg 50(i)); and the misuse of computers or electronic equipment by the installation, use or possession of non-approved material (reg 50(j)) but did not specifically address the use of the internet or social media.
[5]Exhibit RJW-3 to affidavit of Roderick John Wise sworn 6 June 2019, 6 (‘Wise affidavit’).

The plaintiff’s telephone access to his partner was reinstated on 22 February 2019.

Thereafter, there were a number of steps taken in relation to telephone access by the plaintiff and the rules relating to telephone access by prisoners generally, in particular the use of telephone access to direct or request another person to use the internet on behalf of a prisoner.

February Privileges List and requests pursuant to that List

On 27 February 2019, the List of Prisoner Privileges was updated (‘February Privileges List’). Prisoner Privileges are conferred pursuant to the regulations. At the time of the February Privileges List, the relevant regulation was regulation 42 of the 2009 Regulations. That regulation provided that the Commissioner must provide the Secretary annually with a proposed list of prisoner privileges, and that the Secretary could approve that list, or approve with changes, and could make changes from time to time. Pursuant to s 53(4)(c) of the Act, removal of a privilege is a possible punishment for a prison offence, and so the removal of privileges is part of the internal disciplinary system of a prison.

Paragraph 1(d) of the February Privileges List includes ‘Access to telephone calls (subject to paragraph 2)’ as a privilege. Paragraph 2 stated:

Note: Paragraph (1)(d) does not:
i. permit or authorise any access by a prisoner to a telephone call to use or access the Internet;
ii.permit or authorise any access by a prisoner to a telephone call to commission, arrange, enable or allow another person to use or access the Internet on the prisoner’s behalf;
iii.prevent access by a prisoner to a telephone call to a lawyer representing the prisoner or to a lawyer from whom the prisoner is seeking legal advice;
iv.prevent access by a prisoner to a telephone call (not made via the Internet) to the Victorian Ombudsman; the Victorian Inspectorate; the Health Complaints Commissioner; the Independent Broad-based Anti-corruption Commission (IBAC); the Commission for Children and Young People; the Human Rights Commissioner; the Mental Health Complaints Commissioner; the Information Commissioner; the Public Interest Monitor; the Victorian Equal Opportunity and Human Rights Commission; and the Victorian Legal Services Commissioner; or a person authorised to act on behalf of that person or body.

The previous privileges list is not in evidence, but it seems that it may not have contained the limitations on telephone calls for the purpose of accessing the internet that appeared in the February Privileges List.

On 28 February 2019, the plaintiff was given a copy of a summary of the February Privileges List, as it applied to using a telephone call to access the internet, in the form of a document headed ‘Notice to Prisoners: Publication of material on the internet’.[6] The Notice to Prisoners allowed a prisoner to request a person by telephone to find information on the internet to pass onto the prisoner, and to seek the permission of the Commissioner or the prison General Manager to use a telephone call to arrange for publication of material on the internet. These exceptions did not expressly appear in the February Privileges List. The Notice to Prisoners stated that breach of these requirements would be seen as a breach of sub-regulation 50(u) of the 2009 Regulations. That sub-regulation provided that it was a prison offence to:

commit an act or omission that is contrary to the security or safety of the prison or the prisoners.

[6]Exhibit CM-3 to 10 March affidavit.

On 28 February 2019, after receiving the Notice to Prisoners, the plaintiff wrote to the Governor of Barwon Prison, Mr Brett Ryan, making two requests to telephone his partner for the purposes of access to the internet. According to the account of the contents of this letter in the plaintiff’s affidavit,[7] the letter did not state expressly that the requests were made pursuant to the Notice to Prisoners, but the plaintiff deposes that this was the basis for the requests.[8]
[7]10 March affidavit, [47].
[8]Ibid [49].

The first request sought permission to access the internet via his partner to utilise email or voice mail message to his lawyers for the purpose of current and potential proceedings before various courts and tribunals. These matters included his then current proceeding in the High Court. The letter stated that it was difficult to communicate with his lawyers to comply with court timelines by telephone or post. The plaintiff gave examples of his use of telephone calls to his partner, prior to receipt of the Notice to Prisoners, to request his partner to access his lawyers via the internet.

The second request made by the plaintiff in his letter to Mr Ryan of 28 February 2019 was for permission to contact his partner by telephone to arrange for the publication of various tweets on his Twitter account in relation to the reduction of telephone access.

On 1 March 2019, the plaintiff wrote to the Governor seeking permission to write to his partner (as opposed to telephoning her) to ask her to publish various tweets for him. He enclosed a copy of the letter he proposed sending to his partner, which contained the tweets.[9]
[9]Ibid [50], [52].

On 8 March 2019, the plaintiff received an acknowledgement dated 8 March 2019 of letters received by Mr Ryan on 1 and 7 March 2019 which the letter described as relating to ‘requests for access to the internet and the ability to publish material on social media, the sending and receiving of letters uncensored and phone access with your partner’. The plaintiff took this to be an acknowledgement of receipt of his letters of 28 February and 1 March 2019. Mr Ryan’s letter stated that legal advice was being sought.[10] The plaintiff did not receive substantive responses to the requests made in the letters for some time. I will detail those responses shortly.
[10]Ibid [83], Exhibit CM-06.

Removal of telephone access to the plaintiff’s partner

On 1 March 2019, the two telephone numbers of the plaintiff’s partner were removed from the list of telephone numbers the plaintiff could call without further permission, at the direction of Deputy Commissioner Wise. Deputy Commissioner Wise deposes that he made this decision because he was concerned that the post about Tony Mokbel was inflammatory and that ‘something similarly inflammatory might happen again if we did not stop instantaneous contact via telephone’.[11]
[11]Wise affidavit, [26].

The plaintiff was unable to contact his partner by telephone without seeking further permission until the numbers were restored on 10 April 2019. In the period 1 March 2019 to 10 April 2019 he was permitted a number of welfare calls to his partner. The plaintiff completed application forms for access to his partner’s telephone numbers to be restored on at least the following occasions – 1 March 2019, 4 March 2019, 14 March 2019 and 24 March 2019 - and made numerous other requests in that period in person or by letter (including a second letter dated 1 March 2019) to various prison officers or officials for restoration of access. One of his written application forms was returned with a stamp indicating access was prohibited.[12]
[12]10 March affidavit, [67].

The plaintiff’s solicitors wrote to the Governor on 19 March 2019 seeking the restoration of access on the basis that the investigation had concluded that the plaintiff had not committed a prison offence; there were no outstanding allegations that he had committed any such offence; and no other grounds for removal of telephone privileges. Mr Wise replied by letter dated 26 March 2019, which also acknowledged receipt of the plaintiff’s letters to the Governor of 28 February 2019 and 1 March 2019. He stated that the removal of the two numbers was ‘under section 21 of the Corrections Act 1966 as a preventive [sic] measure protecting the good order and security of the prison’.[13]
[13]Exhibit RJW-7 to Wise affidavit.

The plaintiff’s partner wrote to the Governor of Barwon Prison, Mr Ryan, by letter dated 24 March 2019 offering to enter into an undertaking not to use the internet on the plaintiff’s behalf so that telephone access could be restored.[14] The Commissioner decided to allow telephone access on the basis of an undertaking, and that decision was conveyed to the plaintiff’s partner by letter dated 3 April 2019 from Mr Ryan. The partner signed the enclosed undertaking on 9 April 2019, returning it by fax to Barwon Prison on that day. The partner’s two telephone numbers were restored to the plaintiff’s telephone list on 10 April 2019 and he was informed of that on 11 April 2019.
[14]Exhibit RJW-8 to Wise affidavit.

In the period before restoration of telephone access, the plaintiff alleges that his partner was threatened with violence as a result of a news report about the withdrawal of his telephone privileges in which report the location of his partner was identified.

Commencement of this proceeding

The plaintiff commenced this proceeding by filing an originating motion, his affidavits of 10 March 2019, 20 March 2019 and 27 March 2019, a Notice of Constitutional Matter, a Charter notice[15] and summons seeking directions. They were all accepted for filing on 2 April 2019. The defendant filed a notice of appearance on 10 April 2019. The Victorian Government Solicitors’ Office advised the Court by letter dated 10 July 2019 that the Victorian Attorney General did not intervene in respect of either the Notice of Constitutional Matter or the Charter notice.
[15]Charter of Human Rights and Responsibilities Act 2006 (Vic).

On 16 April 2019, the plaintiff filed a subsequent affidavit sworn 11 April 2019 detailing further correspondence with prison authorities and the restoration of telephone access to his partner.

Pursuant to directions made 17 April 2019, the plaintiff was permitted to file an amended originating motion dated 17 April 2019. The amended originating motion was filed on 24 April 2019.

April Privileges List

On 11 April 2019, the defendant issued a new list of prisoner privileges (‘April Privileges List’). The document does not refer to the February Privileges List. It states that it revokes the list of prisoner privileges dated 1 November 2018. It lists access to telephone calls (paragraph 2(d)) as a privilege is subject to paragraph 3. Paragraph 3 provides as follows:

Paragraph (2)(d) does not:
a)permit or authorise any access by a prisoner to a telephone call to use or access the Internet;
b)permit or authorise a prisoner to commission, arrange, enable or allow another person to use or access the Internet on the prisoner’s behalf, unless the person using or accessing the Internet on the prisoner’s behalf is –
(i)a lawyer representing the prisoner, or from whom the prisoner is seeking legal advice, for the purposes of a legal proceeding; or
(ii)doing so for a purpose approved by the Governor or the Commissioner having regard to –
(A) the management, security or good order of a prison; or
(B) the safe custody or welfare of any prisoner; or
(C)the safety or welfare of any person (including the impact of the communication on a victim which may be distressing, traumatic or offensive);

c)prevent access by a prisoner to a telephone call to a lawyer representing the prisoner or to a lawyer from whom the prisoner is seeking legal advice;
d)prevent access by a prisoner to a telephone call (not made via the Internet) to the Victorian Ombudsman; the Victorian Inspectorate; the Health Services Commissioner; the Independent Broad-based Anti-corruption Commission (IBAC); the Commission for Children and Young Person [sic]; the Human Rights Commissioner; the Mental Health Complaints Commissioner; the Information Commissioner; the Public Interest Monitor; the Victorian Equal Opportunity and Human Rights Commission; and the Victorian Legal Services Commissioner; or a person authorised to act on behalf of that person or body.

Unlike the February Privileges List, the April Privileges List thus expressly confers on the Governor or Commissioner the discretion to allow a prisoner to access the internet through a third person who is not a lawyer.

Responses to the plaintiff’s requests made pursuant to the February Privileges List

By letter dated 11 April 2019, Mr Ryan, General Manager of Barwon Prison, responded (amongst other matters) to the first request made by the plaintiff in his letter of 28 February (permission to use the telephone to ask his partner to email his lawyers) and the requests made in the plaintiff’s letters of 1 and 27 March and 1 April (request for permission to ask his partner by letter to access the internet on his behalf).[16] Mr Ryan refused the request that the plaintiff be able to telephone his partner for her to use the internet to contact his lawyers, on the basis that the plaintiff had adequate other means to communicate with his lawyer by way of telephone call to the lawyer, post or fax to and from the prison. In relation to making such a request by letter, Mr Ryan neither acceded to, nor refused the request, but referred the plaintiff to s 47D of the Act, which enables letters and parcels to be stopped or censored in certain circumstances.
[16]Exhibit CM-12 to the affidavit of Craig Minogue sworn 28 April 2019 (‘28 April affidavit’).

The second request made by the plaintiff in his letter of 28 February 2019 was that he be permitted to telephone his partner and provide her with various tweets to be published on his Twitter account. Mr Ryan foreshadowed a response to this request in the introduction to his letter of 11 April 2019, and then provided that response by a letter dated 15 April 2019.[17] The letter of 15 April 2019 neither granted nor refused the request. It noted that the request was made pursuant to the February Privileges List, which had now been replaced by the April Privileges List, a copy of which was enclosed.
[17]28 April affidavit, [32]-[35], Exhibit CM-13. The letter refers to the foreshadowing of a response ‘in my letter of 15 April 2019’. I assume this was intended to be a reference to the letter of 11 April 2019.

Requests made pursuant to the April Privileges List

After receipt of that letter, the plaintiff wrote to Mr Ryan on 18 April 2019 and 24 April 2019 seeking permission pursuant to the exception contained in paragraph 3(b)(ii) of the April Privileges List for access to the internet via his partner by telephone. The identified purposes were to engage in political discourse by way of the publication of tweets on his Twitter account (letter of 18 April 2019) and contact his lawyers (letter of 24 April 2019). The plaintiff also requested by letter to his partner dated 27 April 2019 that she post certain tweets on his Twitter account. The plaintiff deposed to this correspondence in his affidavit sworn 28 April 2019.[18] In a follow-up letter dated 6 May 2019, the plaintiff sought responses to those letters, and made his first reference (on the evidence in this application) to the new regulations, noting that he had not as yet seen them.[19]
[18]28 April affidavit, [39], [40] and [41].
[19]Affidavit of Craig Minogue sworn 15 May 2019, [6] (’15 May affidavit’).

The plaintiff exhibits two letters from Mr Ryan, each dated 10 May 2019. The letter of 10 May 2019, first received by the plaintiff on 11 May 2019,[20] states that it responds to the plaintiff’s letter of 24 April, which it describes as a request for approval to tweet. It states that ‘a decision is pending’, which decision will also relate to the plaintiff’s letter to his partner of 27 April 2019 which contained tweets he asked her to post. The letter states that by sending that letter the plaintiff had not ‘followed process’ by not seeking approval first.
[20]Ibid [8], Exhibit CM-15.

The plaintiff stated in his reply of 12 May 2019 that both assertions were incorrect. He stated that his letter of 24 April 2019, the contents of which he deposed to in his affidavit of 28 April 2019, sought permission to contact his lawyers through the internet via telephone contact to his partner. It did not relate to publication of tweets. Assuming the plaintiff’s account of his letter of the 24 April 2019 to be correct, he is correct in his assertion that Mr Ryan’s first received letter of 10 May 2019 does not respond to it. The evidence does not reveal any reply by Mr Ryan that responds in fact to the plaintiff’s letter of 24 April 2019 seeking permission pursuant to the April Privileges List to telephone his partner for the purpose of her contacting his lawyers via the internet.

In relation to Mr Ryan’s assertion that he should have ‘followed process’ by seeking approval before sending his letter of 27 April 2019 to his partner, the plaintiff stated in his reply of 12 May 2019 that as far as he was aware neither as at 27 April 2019 nor as at 12 May 2019 was there any requirement for a prisoner to seek approval to send a letter with tweets to be published. As will be seen, the new regulations which commenced on 28 April 2019 do in fact apply to accessing the internet via letter.

The plaintiff received the second letter dated 10 May 2019 from Mr Ryan on 14 May 2019. That second letter of 10 May 2019 states that it responds to the plaintiff’s letter of 16 April 2019, and that that ‘complaint’ had been addressed in Mr Ryan’s letter of 11 April 2019.[21] As noted earlier, part of Mr Ryan’s letter of 11 April 2019 had addressed the plaintiff’s enquiry as to the relationship between the control over access to the internet via telephone imposed by the February Privileges List and the sending of letters by stating that ‘[i]f you send a letter to anyone it will be treated by the prison in accordance with the provisions in the Act’. The plaintiff’s letter of 16 April 2019 was in fact in response to that part of the letter of 11 April 2019, and the plaintiff states that it was an attempt to seek clarity in relation to the sending of letters containing tweets.[22]
[21]Ibid [13], [15], Exhibit CM-16.
[22]Ibid [13].

Corrections Regulations 2019

New regulations under the Act were made on 16 April 2019, which came into force on 28 April 2019 (‘2019 Regulations’). Regulation 65 provides for those matters which constitute a prison offence. Relevantly, the regulation contains several new offences, contained within sub-regulation 65(1)(m), (o) and (p) as follows:

65 Prison offences
(1) A prisoner must not—
…
(m)communicate, or cause to be communicated (including by radio, telephone, the Internet or any other means) any matter that the Governor is reasonably satisfied is contrary to—

(i) the management, good order or security of a prison; or
(ii) the safe custody or welfare of any prisoner; or
(iii)the safety or welfare of any person (including the impact of the communication on a victim which may be distressing, traumatic or offensive); or

…
(o) use or access the Internet; or
(p)commission, arrange, enable or allow another person to use or access the Internet on the prisoner's behalf, unless use or access to the Internet is—
(i)by a lawyer representing the prisoner, or from whom the prisoner is seeking legal advice, for the purposes of a legal proceeding; or
(ii)by any person or body referred to in regulation 20 or section 47(1)(m) of the Act (other than a lawyer referred to in section 47(1)(m)(iii) of the Act) in the course of the person or body's official duties; or
(iii)for a purpose approved by the Governor or the Commissioner in accordance with subregulation (2);

…
(2)For the purposes of subregulation (1)(p)(iii), the Governor or the Commissioner may approve a person to use or access the Internet having regard to—
(a) the management, good order or security of a prison; or
(b) the safe custody or welfare of any prisoner; or
(c)the safety or welfare of any person (including the impact of the communication on a victim which may be distressing, traumatic or offensive).

After the plaintiff obtained a copy of the new regulations, he wrote again to Mr Ryan, by letter dated 9 May 2019 asking the following question:

Does r 65(1)(p) or (o) operate to limit the s 47(1)(n) right from the Corrections Act for prisoners to send and receive uncensored letters, in relation to their content, in a way that is beyond that which is provided for in s 47D?[23]

[23]15 May affidavit, [7].

The plaintiff also sought in the letter of 9 May 2019 advice from Mr Ryan as to whether his letter of 27 April 2019 to his partner, containing tweets he asked her to upload, would ‘actuate any negative consequences’ for himself or his partner.[24]
[24]Ibid.

The evidence does not disclose if there were replies to the plaintiff’s letters of 6, 9 or 12 May 2019.

The 2019 Regulations were further amended as of 12 June 2019, without change to the provisions in question here. The 2019 Regulations do not purport to have retrospective effect. As at the date of the hearing, the plaintiff had not been charged with a prison offence constituted by breach of sub-regulations 65(1)(o) or (p). The evidence does not disclose any application made by him pursuant to the 2019 Regulations for permission to access the internet via telephone or letter to his partner.

Further amendment of the originating motion

Thereafter the plaintiff sought to further amend his originating motion, initially in the form of a document dated 14 May 2019, 46 pages in length, sent to the defendant under cover of a letter dated 15 May 2019, and apparently received at least by 3 June 2019 when the defendant contacted the Court to request a relisting. The proceeding was relisted for directions on 24 July 2019. I was informed at the hearing before me that prior to that relisted directions hearing the plaintiff had served on the defendant a further iteration of his proposed further amended originating motion, dated 14 July 2019, which was 62 pages long, and was received by the defendant on 17 July 2019. That document was not before me on this application.

At the relisted directions hearing, the trial date was vacated, and the plaintiff ordered to file and serve his proposed further amended originating motion and any further affidavit by 15 August 2019. He subsequently filed the Proposed Further Amended Originating Motion dated 15 August 2019 (‘PFAOM’) which is the subject of this application, and an affidavit in support of the application to extend time, sworn 15 August 2019 (’15 August affidavit’). I heard the plaintiff’s application to further amend on 10 October 2019. In addition to the documents previously filed by the parties I requested, and the defendant supplied, the plaintiff’s proposed further amended originating motion dated 14 May 2019.

Amendments sought and summary of submissions

In his original originating motion, the plaintiff sought relief in respect of two grievances, which for the purpose of these reasons I will assume, without determination on the merits, are decisions that are reviewable pursuant to order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’). Those two grievances were the creation of the February Privileges List on 27 February 2019 (issued by the Secretary, the current defendant) and the withdrawal of the plaintiff’s telephone access to his partner on 1 March 2019 (a decision of Deputy Commissioner Wise).

As noted earlier, the plaintiff was permitted to amend that originating motion. In his Amended Originating Motion dated 17 April 2019 (subsequently filed on 24 April 2019) (‘AOM’) the plaintiff added a further two grievances in respect of which he sought review. These were the creation of the April Privileges List on 11 April 2019 (issued by the Secretary), and the offer expressed in Mr Ryan’s letter of 3 April 2019 to the plaintiff’s partner of an undertaking not to access the internet on the plaintiff’s behalf, in return for reinstatement of his telephone access to his partner (a decision of the Commissioner, Dr Cassar).

The PFAOM differs from the AOM in four respects. First, it seeks to add an additional two grievances in respect of which relief is claimed. The first is the refusal by Mr Ryan to permit the plaintiff to access his lawyers via the internet through the means of telephone to his partner, conveyed in Mr Ryan’s letter of 11 April 2019. The second is the commencement of sub-regulations 65(1)(o) and (p) on 28 April 2019.

The first of these additional grievances, the refusal of Mr Ryan to permit internet access to the plaintiff’s lawyers, was not included in the proposed further amended originating motion dated 14 May 2019. The second, relating to the regulations, was included in the 14 May 2019 iteration.

Secondly and thirdly, as well as the addition of these two new grievances, the PFAOM also seeks to add both new grounds and new relief in respect of the matters previously included. These proposed changes are not indicated by marking up. The PFAOM is a substantially new, and much longer, formulation of the plaintiff’s existing grievances and the proposed two new grievances.

Fourthly, the PFAOM seeks to add two further defendants in addition to the Secretary, the existing defendant. The proposed additional defendants are Deputy Commissioner Wise and Mr Ryan, in his capacity of Governor of Barwon Prison. There is no objection to the joinder of Mr Wise, who confirms in his affidavit sworn 6 June 2019 that it was he who made the decision on 1 March 2019 to remove the two telephone numbers of the plaintiff’s partner from the plaintiff’s list of permitted telephone numbers.[25] Mr Ryan would be a proper defendant if the Court extends time to allow the plaintiff’s grievance in relation to the decision in Mr Ryan’s letter of 11 April 2019 not to allow him to telephone his partner and ask her to contact his lawyers by the internet.
[25]Wise Affidavit [26]; Transcript of proceedings of 10 October 2019, 14 (‘Transcript’).

The evidence of Mr Wise is that the decision to offer and accept an undertaking from the plaintiff’s partner, conveyed in Mr Ryan’s letter of 3 April 2019, was made by the Commissioner. The PFAOM does not seek the joinder of the Commissioner, and counsel for the defendant informs the Court that no point will be taken in relation to the correct identity of defendants, but strictly she would be the proper defendant in relation to that grievance. The plaintiff is content to add the Commissioner as a defendant if the Court so orders.[26]
[26]Re the defendant’s position: Transcript 20, 104-105. Re the plaintiff’s position: Transcript 81.

The defendant opposes the proposed changes identified as one to three above, i.e. the addition of two further grievances in respect of which relief is sought; and the reformulation of the grounds and relief sought, on two broad bases. First, that in respect of the two proposed new grievances the plaintiff is out of time and has not shown the necessary special circumstances to extend time. Further, in relation to the challenge to the regulations, the defendant submits that the plaintiff is seeking an advisory opinion from the Court, without the framework of a set of facts, and so the Court will not grant that relief.

The second broad basis relates to the new formulations of relief sought. The defendant contends that the new formulations of relief sought have no real prospects of success. The defendant did not take specific objection to new or reformulated grounds in respect of existing grievances. I will elaborate the defendant’s submissions further later in these reasons.

At the hearing, the plaintiff sought and was granted leave to delete two sub-paragraphs of the relief he now wishes to seek, both relating to Mr Ryan’s decision of 11 April 2019. He deletes sub-paragraphs (b) of each of paragraphs 40 and 41, on pages 15 and 16 respectively of the PFAOM. Otherwise, the plaintiff presses his application. In summary, in relation to the extension of time necessary to add his grievance in relation to Mr Ryan’s decision conveyed in his letter of 11 April 2019, the plaintiff says that the defendant has been on notice of it in substance by inclusion of it in his earlier affidavits of 10 March 2019 and 28 April 2019; that it was an oversight not to include it in the AOM, arising from his very difficult personal circumstances; and that it is a concrete example of the hardship occasioned to him by the February and April Privileges Lists (already included in the AOM) and by the 2019 Regulations (which he seeks to include).

The plaintiff submits that it would be artificial to exclude his proposed challenge to 2019 Regulations on the basis that it seeks an advisory opinion, apparently for two reasons. First, because the relevant regulations use the same words as those used in the February and April Privileges Lists, in Mr Wise’s decision and in the undertaking required of his partner. Secondly, because he could issue a further proceeding if he does something pursuant to the regulations and wishes to challenge a decision made in respect of that action.[27] He also disputes that an extension of time is necessary to seek a declaration of inconsistency with the Charter.
[27]Transcript 27-28. See also the Plaintiff’s Supplementary Submission dated 2 October 2019, [1].

The plaintiff submits that the expansion and reformulation of the relief he seeks is to make his line of argument plain, and that the Court will not be constrained by his framing of relief in any event. I will elaborate the plaintiff’s submissions in more detail later in these reasons as required.

Relevant legal principles
Judicial review

The plaintiff seeks judicial review arising from his grievances pursuant to O 56 of the Rules. Judicial review pursuant to O 56 is a procedure by which the decisions of certain public officials, tribunals and lower courts may be examined by this Court. Unlike appeal on the merits, the purpose of judicial review is not to determine if the decision in question is the right one on the facts. Judicial review is directed to examining the legality of the decision, not whether a different decision should have been made on the facts of the case. It follows that judicial review is generally concerned with questions relating to the process by which a decision has been made, or not made, and the ambit of the authority pursuant to which the decision maker was permitted or required to make the decision.

Even where this Court is satisfied on judicial review that the decision is affected by reviewable error, the Court has a discretion as to whether or not to grant relief. If relief is granted, the Court does not substitute a different decision for the decision affected by error. Common forms of relief for reviewable error are certiorari, mandamus or declaration. Those forms of relief are directed at requiring the decision maker to make a decision according to law, not to state what the content of the decision so made should be.

If relief by way of certiorari is granted, the Court quashes the impugned decision and requires the decision maker to reconsider the matter according to law as set out in the reasons for the grant of relief. The availability of certiorari is limited to distinct grounds, the most important of which are jurisdictional error, failure to observe an applicable requirement of procedural fairness, fraud or error of law on the face of the ‘record’.[28] In Victoria, pursuant to s 10 of the Administrative Law Act 1978 (Vic), the reasons for a decision form part of the ‘record’.
[28]Craig v South Australia (1995) 184 CLR 163.

Mandamus is a remedy that requires a public official to exercise a public duty which remains unperformed. It follows that the official in question must be under a relevant duty. In Plaintiff M 61/2010E v Commonwealth of Australia[29] the High Court held that recommendations made to the Minister of Immigration in relation to the claims of certain claimants for refugee status were tainted by error. Nevertheless, the Court declined to order the Minister to make the decision (whether or not to grant the claimants refugee status) according to law because the relevant provisions of the Migration Act 1958 (Cth) explicitly stated that he did not have a duty to consider whether or not to do so. The Court held:

That the Minister decided to consider exercising the powers [in those provisions to grant the relevant visa] and, for that purpose, directed the making of Refugee Status Assessments and Independent Merits Reviews does not entail that, if the process of inquiry miscarried, the Minister can be compelled again to consider exercising the power.[30]

[29](2010) 243 CLR 319.

[30]Ibid 358.

The Court in that case also held that given that mandamus did not lie, there was no utility in quashing the recommendations by way of certiorari. However, the Court did grant declarations to the effect that the processes followed to arrive at the recommendations not to grant refugee visas were flawed. By way of reasons for this decision, the Court noted the importance of the issues before them in the context of the international obligations of the Commonwealth and the public interest in the correct exercise of those obligations. They also specifically excluded common reasons why a declaration would not be granted in the following passage (citations omitted):

In the circumstances of this litigation it cannot be said that a declaratory order by the Court will produce no foreseeable consequences for the parties. Declaratory relief is directed here to determining a legal controversy; it is not directed to answering some abstract or hypothetical question. Each plaintiff has a "real interest" in raising the questions to which the declaration would go.[31]

[31]Ibid 359.

As observed by the High Court in the second sentence of the extract above, declarations may be granted to state the rights and obligations of parties, but only in the context of a particular set of facts affecting the plaintiff. This is because courts hear and determine controversies – they do not make pronouncements in the abstract of a particular controversy between parties. Doing so would be to issue an advisory opinion, which is not the judicial function.[32]
[32]Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334, 355-357. This principle has been applied in the determination of other proceedings by the plaintiff - Minogue v Dougherty [2017] VSC 724 - and more recently in Haigh v Ryan [2020] VSC 102.

The principle that a declaration is made to determine a controversy on particular facts is illustrated by two cases which the defendant cited. In Rural Press Ltd v Australian Competition and Consumer Commission[33] the High Court generally upheld the decision of a trial judge to make declarations that the appellant had breached certain provisions of the Trade Practices Act 1975 (Cth), but held that the declarations made, that merely declared that breach, were a ‘bad precedent’, and that they should have given content to the breaches found by setting out at least the ‘gist of the findings’ giving rise to the declaration of breach.[34] The High Court substituted for the general declarations of breach made by the trial judge declarations that set out in short form the manner by which the breach was constituted.
[33](2003) 216 CLR 53.
[34]Ibid 91 (Gummow, Hayne and Heydon JJ), 60 (Gleeson CJ and Callinan J agreeing).

The defendant also relies on observations by the Full Federal Court in Warramunda Village Inc v Pryde[35] (‘Warramunda Village’) to criticise declarations that the plaintiff seeks which set out the conclusions of fact or law he seeks that the Court reach in order to issue final relief. Those observations, with the emphasis given to them by the defendant, are as follows:

The remedy of a declaration of right is ordinarily granted as final relief in a proceeding. It is intended to state the rights of the parties with respect to a particular matter with precision, and in a binding way. The remedy of a declaration is not an appropriate way of recording in a summary form, conclusions reached by the Court in reasons for judgment. This is even more strongly the case when the conclusion is not one from which any right or liability necessarily flows.[36]

[35](2001) 105 FCR 437.

[36]Ibid 440. Extracted in the table to the Defendant’s Written Submissions.

At first glance it could appear contradictory to on the one hand require a declaration to refer with sufficient precision to the facts constituting the matter declared and on the other hand to exclude a purported declaration that summarises the conclusions leading to the declaration. On analysis, however, the decision in Warramunda Village is confined to its own facts. In that case, the respondents had sought the imposition of penalties on the appellant for breach of certain conditions of an employment award. Thus the final relief sought was the imposition of a penalty, not a declaration. The trial judge first considered and gave reasons in respect of certain issues relating to the applicability of the award. He purported to make declarations in general terms that the appellant had breached the award, without any specificity as to the facts constituting the breaches, and adjourned the proceeding for directions as to a penalty hearing. Thus the purported declarations did not determine the rights of the parties in respect of any specific breach, and did not constitute final relief. On appeal to the Full Federal Court the question initially arose as to whether the declarations were an interlocutory order in respect of which leave was required to appeal. The Full Court went further and held that declarations did not even constitute an order at all from which an appeal, even by leave, could lie.

The requirement that declarations be made only to declare the rights and obligations of the parties in the context of a particular set of facts is general, i.e. it is not limited to judicial review. In the context of judicial review, a court does not make declarations in relation to how a power should be exercised in the absence of a specific exercise of, or reviewable failure to exercise, that power. In other words, the requirement that the declaration arises from a particular set of facts will ordinarily require that it relates to a decision on a question that has been made, or not made, by a public official with an obligation to consider the question. In the absence of a relevant decision, or failure to make a decision, a declaration would be merely advisory.

Extension of time

The time within which a proceeding pursuant to O 56 may be brought, and the test for extension of that time, are set out in r 56.02 of the Rules which provides as follows:

56.02 Time for commencement of proceeding
(1)A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.
(2)Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.
(3)The Court shall not extend the time fixed by paragraph (1) except in special circumstances.

The time period of 60 days commences from the day after the date ‘when grounds for the grant of the relief or remedy claimed first arose’. Mr Ryan conveyed his decision to refuse the plaintiff’s request made 28 February 2019 to telephone his partner with a request that she contact his lawyers by internet by letter dated 11 April 2019. The plaintiff deposes that he received that letter on 15 April 2019.[37] Assuming that the decision is reviewable, and the date on which the grounds for review arose to be the date of receipt of the letter, 60 days thereafter expired on 14 June 2019.
[37]28 April affidavit, [27].

If the promulgation of the 2019 Regulations is reviewable at the instance of the plaintiff in this proceeding, then the time period expired 60 days after 28 April 2019 (the date on which they came into force), i.e. on 27 June 2019.

The time period for the commencement of an action for judicial review may be extended, but r 56.02(3) prohibits the Court from extending the time for review except in ‘special circumstances’. There is no precise or exhaustive definition of may what constitute ‘special circumstances’ for the purpose of this rule. In Mann v Medical Practitioners Board of Victoria (‘Mann’) the Court of Appeal held that the requirement that the plaintiff show ‘special circumstances’ requires that he make out circumstances that are not ‘general in character’,[38] but something exceeding ‘that which is usual or common’.[39]
[38]Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, [68] (Hansen AJA) (Chernov JA [5] and Nettle JA [8] agreeing).
[39]Ibid [70] (Hansen AJA).

It is clear from the wording of the sub-rule (and the authorities) that the special circumstances are not confined to the failure to commence the proceeding within the prescribed period of 60 days.[40] In a passage cited by the defendant, Associate Justice Derham in Lazarevic v Victoria Police helpfully summarised the factors that have been considered relevant in the assessment of special circumstances as follows (citations omitted) :
[40]Lazarevic v Victoria Police [2014] VSC 497, [33] (upheld on appeal) citing Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, [57] and [72]; Lednar v Magistrates’ Court (2000) 117 A Crim R 396, 410-411 not following Denysenko v Dessau [1996] 2 VR 221, 224. See also Glass (a pseudonym) v Chief Examiner (2015) 50 VR 577 and Madafferi v Chief Commissioner of Police [2017] VSC 652.

The authorities establish that:
(a)The rule requires the Court to be objectively satisfied that special circumstances exist;
(b)The existence of special circumstances is to be determined by reference to all the circumstances of a case;
(c)The factors relevant to the exercise of the discretion under Rule 56.03(2) include, but are not limited to:

(i) the period of the delay;

(ii) the reason for the delay;

(iii) whether the plaintiff has an arguable case;

(iv) the justice to both parties, including the prejudice to the parties; and

(v) the public interest in the finality of litigation.[41]

[41]Lazarevic (n 40), [35].

The defendant accepts that ‘special circumstances’ are not limited to the failure to bring the claim within the prescribed period, in other words the reasons for the delay (unlike, for example the text for extension of time for an appeal on a question of law from the Magistrates’ Court to the Supreme Court pursuant to s 109 of the Magistrates’ Court Act 1989 (Vic). Nevertheless, the defendant submits that this failure is the ‘focus’ of enquiry as to extension of time.[42] If that submission is to the effect that the reasons for the failure necessarily carry greater weight than other factors, I do not consider it to be correct. The enquiry is of course only necessary when there has been that failure, but the authorities do not give any greater weight to the reasons for the failure than other relevant circumstances.
[42]Transcript 36-37.

Indeed there is authority implicitly to the contrary. In Glass v Chief Examiner[43] (‘Glass’) a decision of Garde J dismissing an appeal from a refusal by me of an extension of time, one of the grounds of appeal was that I had regarded a satisfactory explanation for the failure to bring a claim for judicial review within time as a precondition or threshold for the grant of an extension. The trial judge hearing the appeal rejected that ground, but in doing so it was implicit in his decision that it would be an error to regard a satisfactory explanation in that way.[44]
[43] [2015] VSC 29.
[44]Ibid [11], [12], [16].

The decision of the trial judge in Glass was further appealed to the Court of Appeal, Glass (a pseudonym) v Chief Examiner.[45] The trial judge’s implicit determination that a satisfactory explanation was not a threshold requirement for extension of time was not appealed, or cross appealed. On the appeal to the Court of Appeal, the sole ground of appeal related to the degree to which the merits of the proposed case should be assessed in determining an application for extension of time. Thus the decision of the Court of Appeal now sets out the necessary approach to evaluation of the merits of the proposed claim in an application for extension of time.
[45](2015) 50 VR 577.

Both before me, and before Garde J, the application had been conducted on the basis that, while it is necessary to consider the merits of the proposed case in considering an application for extension of time, it is sufficient to consider whether the proposed case is arguable, in the sense of having a real, as opposed to a fanciful prospect of success. In other words, that it was not necessary to assess the likely degree of success. The Court of Appeal held that this approach was incorrect. The Court held as follows, citing Mann as the authority for the first sentence:

The circumstances of each case dictate the factors to be taken into account in determining whether or not the applicant for an extension of time has established that there are special circumstances justifying the extension. One of the factors will ordinarily be the merits of the case. If the case is unmeritorious, then it would be futile to grant an extension. The stronger the case, the more weight that might be accorded to that factor. Whilst it is not necessary nor desirable to examine the merits in too much detail, the strength of the case should be sufficiently apparent from the review undertaken to enable the judge or associate judge to give the appropriate weight to it. In some situations all that might be said is that the case is arguable. In other cases, it may be more than arguable. Even if the case is a strong one, other factors may outweigh the merits such that overall it cannot be said that there are special circumstances justifying the extension.
…
As we have said, consideration of the strength of the merits of the substantive case for judicial review may well bear upon how much weight should be given to it as a factor. Consequently, in our opinion it may not always be sufficient to consider whether the case is merely arguable or on the other hand, has no real prospect of success. We would add that the fact that an associate judge may not have power to hear and determine the ultimate application for judicial review (without an order made by a judge referring the substantive trial to an associate judge) does not mean that associate judges cannot and should not make an assessment of the prospects of success. In doing so, they are not determining the ultimate matter. Rather, they are simply making an assessment of the prospects of success for the purposes of the application before them for an extension of time. Whilst some care may need to be taken in analysing and describing the strength of the merits, it is nevertheless a task that more often than not will be necessary and should not be shied away from by judges and associate judges.[46]

[46]Ibid 595-596, 597 (citation omitted).

Although the courts have identified factors that are ordinarily relevant to the determination as to whether or not special circumstances exist, those identified factors are not exhaustive, and nor does the fact that any one of them may, or may not, constitute in isolation a circumstance beyond the usual or common necessarily lead to a conclusion that special circumstances exist by reason of which the discretion to extend time is enlivened. In Kocak v Wingfoot Australia Partners Pty Ltd[47] Cavanough J observed:

All relevant factors (positive and negative) need to be considered. It is conceivable that a single outstanding feature of a case may contribute enough to make the circumstances as a whole, on balance, special. However, the mere unusualness of a particular feature would not be relevant at all unless the feature tendered to support an extension. On the other hand, it is not essential that there be some particular circumstance that is unusual. Circumstances can be combined. An usually clear or heavy balance of favourable circumstances over unfavourable circumstances may be enough, even if none of the individual circumstances is uncommon or unusual in itself.[48]

The plaintiff also submits that it would be artificial to exclude his grievance in relation to the 2019 Regulations, when they utilise very much the same words to limit telephone access for the purpose of accessing the internet as do the February and April Privileges, which are already the subject of his proceeding. That submission is based on a misconception. While similar words are used, the effect of sub-regulations 65(1)(o) and (p) is different to the limitations on the privilege of telephone access. The effect of the sub-regulations is to create a prison offence, which has potentially broader impact than withdrawal of a privilege. In any event, the submission does not override the fundamental difficulty that the evidence does not reveal any decision made pursuant to the sub-regulations that can be the subject of judicial review.

Accordingly, although some of the factors in common with the plaintiff’s grievance about Mr Ryan’s 11 April 2019 decision and the additional factor of inclusion in the plaintiff’s first iteration of a proposed further amended originating motion could tend towards a conclusion of special circumstances, the absence of any prospect of success strongly militates against extension. I will refuse an extension of time to permit inclusion of this grievance in the further amended originating motion, because it has no prospect of success, and so the extension would be futile.

Proposed amendments to relief sought

The defendant submits that leave to amend should be refused in respect of additional relief sought in the PFAOM that relates to existing grievances, and re-formulations of relief sought in the AOM.

Opening paragraphs of relief

The additional proposed relief that is sought in paragraphs 1-16 inclusive of the PFAOM under the heading ‘Relief and Remedy: Matters of fact and law’ is objected to on the basis that the proposed declarations are conclusions of fact or law that may form part of the Court’s reasoning process, if the plaintiff is successful, but are not appropriate declarations because they do not finally determine the respective rights and obligations of the parties in the relevant controversies. I agree. I will not grant leave to add these paragraphs.

The plaintiff says that he included these paragraphs with the intention of fully exposing his proposed line of argument, and with a view to addressing objections taken by the defendant at the July directions hearing.[83] Accepting that to be his intention, the manner by which the plaintiff has sought to do this is not correct. I consider that in the interests of focusing attention on the real issues, and limiting the costs and time of consideration, where relief sought is plainly inappropriate it should be excluded. This does not, of course, prevent the plaintiff from seeking findings of facts or law as foreshadowed in paragraphs 1-16 in submissions for the trial. As will be seen, in the case of newly sought or reformulated relief that may suffer from technical defects but sufficiently exposes a request for final relief, as opposed to intermediate findings, I take a more lenient approach, provided the grounds are not fanciful. I do so because the plaintiff is unrepresented. In instances of that type, the Court at trial may be prepared to fashion appropriate relief where satisfied of invalidity or unlawfulness.
[83]Plaintiff’s Written Submissions dated 15 August 2019, [2], and tables at 3-5; Transcript 75-76.

Determination of February Privileges List

The defendant next objects to the reformulation of the relief sought in respect of the creation of the February Privileges List, as it appears in paragraphs 17-20 of the PFAOM. The defendant only takes specific objection to paragraphs 17, 19 and 20(a), (h), (i) and (j), and the utility of any declaration. Accordingly, I largely confine my consideration to those paragraphs.

I agree that the declarations sought in paragraphs 17 and 19 have no real prospect of success, and will refuse leave to include those paragraphs. The declaration sought in paragraph 17 is objectionable because it seeks a finding of fact, rather than a binding declaration of right. The declaration sought by paragraph 19 is objectionable for the analogous reason that it seeks a conclusion of law that may form part of the Court’s reasoning process, but is not a binding declaration of right as a result of those reasons.

Paragraph 18 seeks a declaration of invalidity of the February Privileges List by reason of conflict with s 92 of the Constitution in two respects. The first is said to be in relation to intercourse between the states; the second in relation to the implied right of freedom of political expression. It could be said that the first aspect has no real prospect of success for the reasons set out earlier in relation to the similar declaration sought in relation to the 11 April 2019 refusal of internet access to the plaintiff’s lawyers via telephone to his partner. Indeed, the prospect of the plaintiff successfully establishing that the purpose of the February Privileges List was to limit interstate intercourse as it applies to prisoners generally could be said to be even more remote that his prospects of success in that regard in relation to him personally.[84] The defendant has not, however, taken this objection and given that the plaintiff is not legally represented and is under the disability of his imprisonment, I do not think I should go beyond the objections taken. The parties can take this matter further at trial if they wish.
[84]The plaintiff particularises the decision of the Secretary to determine the List at [47] of the PFAOM as applying to prisoners generally.

The defendant has also not cavilled with the proposition in the second aspect of paragraph 18 that the implied right of political freedom of political expression arises from s 92 of the Constitution. The defendant only raised objection to relief relating to invalidity by reason of conflict with the implied right of political expression in relation to the 11 April decision by Mr Ryan, and the relief sought to that effect was deleted by the plaintiff at the hearing. For these reasons, I will allow paragraph 18.

Paragraphs 17 and 19 of the PFAOM are new in the sense that they do not appear in that form in the AOM. It is appropriate then that leave is required for their inclusion. Although the exact correspondence is difficult to detect in the absence of marking up, much of the relief sought by paragraph 20 already appears in the AOM, although on occasion slightly differently formulated. For example, the defendant takes specific objection to sub-paragraphs (h), (i) and (j) yet these appear in almost exactly the same words in the AOM, at paragraph 3. Even if leave is strictly required given different formulation, I consider that the appropriate approach is the practical one of allowing the paragraph, including any reformulations, unless patently without any real prospect of success.

Applying this approach, I accept the defendant’s objection to sub-paragraph 20(a) but otherwise will allow the paragraph. Sub-paragraph 20(a) is based on the assumption that the privative clause in s 50(9) of the Act, that prevents appeal of, or challenge to, a decision of a prison officer as to whether a particular set of facts does, or does not, constitute a prison offence at a particular point in time, also prevents subsequent change to the privileges that apply generally. That contention has no real prospect of success.

The defendant also submits that relief in respect of the February Privileges List will not be granted because it has been overtaken by the April Privileges List, and so relief would have no utility. I accept that the Court may ultimately take that view, even if otherwise satisfied of unlawfulness or invalidity in respect of the February Privileges List, but that is a discretionary decision that should be left to the trial judge.

Withdrawal of plaintiff’s telephone access

I take a similar approach to the relief sought in paragraphs 21-25 of the PFAOM in respect of Mr Wise’s decision to withdraw the plaintiff’s telephone access. The defendant only takes specific objection to paragraphs 22, 24 and 25 (a), (h), (i) and (j). I will not allow paragraphs 22 (seeks a finding of fact expressed as a declaration); 24 (seeks a conclusion of law expressed as a declaration); or 25(a) (misconceives the effect of the privative clause in s 50(9) of the Act).

No specific objection is taken to paragraph 23, as opposed to the similar declaration sought in paragraph 41 in respect of the decision by Mr Ryan, and I do not consider it appropriate to consider it further in the absence of such an objection.

The misconception in proposed declaration 25(a) is different to that in proposed, and disallowed, declaration 20(a). Proposed declaration 25(a) requires the Court to agree that a privative clause that prevents the decision of the prison officer to ‘be called into question in any court’ also prevents a different prison officer withdrawing a privilege on a different basis. The plaintiff has no real prospect of success of establishing that this is the effect of the privative clause. I otherwise will allow the relief sought in respect of this decision, even if reformulated from the relief sought in the AOM.

Offering of undertaking: Dr Cassar 3 April 2019

The defendant objects to the relief sought in respect of this grievance on a number of broad bases.[85] These are:
[85]Table in the Defendant’s Written Submissions.

(1) that the acceptance of the undertaking did not constitute a decision or other exercise of public power that is amenable to judicial review;

(2) that the undertaking never had, or does not have continuing, legal force and so certiorari is not available;

(3) that even if were, quashing the decision would be against the plaintiff’s interests; and

(4) that the person with standing to challenge the decision is the plaintiff’s partner, not the plaintiff.

In my view, (1) above does not properly reflect the way the plaintiff characterises his grievance. In paragraph 49 of the PFAOM the plaintiff characterises the relevant decision as the offering of the undertaking, not the acceptance of it. A matter that stands in the way of relief in respect of the offering of the undertaking is that it was the plaintiff’s partner who first proposed that she give an undertaking not to use the internet on behalf of the plaintiff. However, the form of the required undertaking was that stipulated in Mr Ryan’s letter of 3 April 2019, conveying Dr Cassar’s decision.[86] Accordingly, it is arguable in my view that there was a relevant decision, being the formulation of the terms of the undertaking.
[86]Exhibit CM-09 to affidavit of Craig Minogue sworn 11 April 2019.

The form of the undertaking required the plaintiff’s partner to acknowledge that failure to comply with it could result in withdrawal of the plaintiff’s telephone privileges or ‘other lawful action or consequence’. Given these required acknowledgements, it sits oddly for the defendant to now contend that the undertaking never had any legal force, and I do not consider it is fanciful to contend to the contrary.

Whether the relief sought is in the plaintiff’s interests is a matter for him. Finally, it seems to me plain that the plaintiff has standing to challenge a decision that required his partner to give the undertaking as a condition of restoration of his telephone access to her. The fact that his partner may also have such standing is not to the point.

I will not allow paragraphs 28 (seeks a finding of fact by way of a declaration); 30 (seeks a conclusion of law by way of a declaration), or 31(f) (misconstrues the effect of the privative clause in s 50(9) of the Act) for reasons given earlier in respect of parallel relief sought in respect of other decisions. I will otherwise allow the relief sought. This includes paragraph 29, to which no specific objection is taken. Bearing in mind the way the plaintiff articulates his grievance, that the Commissioner required the undertaking to restore his telephone access, and the content of the conditions and acknowledgements in the undertaking, I do not consider that the prospects of success of the particular sub-paragraphs of paragraph 31 to which the defendant takes objection, sub-paragraphs (a)-(e), and (l)-(n) to be only fanciful.

In relation to the objection taken to the relief sought by way of certiorari in paragraph 26 and mandamus in paragraph 27, it must be borne in mind that the plaintiff is not legally represented. If there are technical reasons why the relief he seeks is not appropriate, but the effect he seeks to achieve is sufficiently apparent, and the Court at trial considers that there is a basis for relief with that effect, then the Court may be prepared to fashion relief in an appropriate way.

Determination of the April Privileges List

I will not allow paragraphs 34, 36 or 37(a) for reasons already given in respect of parallel relief sought in respect of other decisions. I otherwise will allow the formulations of relief sought.

The defendant contends that the relief sought in paragraph 32 (quashing the approval of the April Privileges List by grant of certiorari) and paragraph 33 (order in the nature of mandamus) are not appropriate given that the April Privileges List is general, i.e. not specific to the plaintiff, and that there is no relevant public duty that remains unperformed. In respect of these objections I repeat my observations above in relation to technical objections taken to the relief sought by an unrepresented person in a complex area of law.

Mr Ryan’s decision of 11 April 2019 in relation to internet access to lawyers

I have addressed the relief sought in relation to this grievance in paragraphs 111-116 of these reasons.

Conclusion and orders

I will allow the filing and service of the PFAOM (including the joinder of Mr Wise and Mr Ryan) with the deletions set out below and order the addition of Dr Cassar, in her capacity as Commissioner, as a further defendant. The required deletions are as follows:

(i) Removal of paragraphs 1-16.

(ii) Removal of paragraphs 17, 19 and 20(a).

(iii) Removal of paragraphs 22, 24 and 25(a).

(iv) Removal of paragraphs 28, 30 and 31(f).

(v) Removal of paragraphs 34, 36 and 37(a).

(vi) Removal of paragraphs 40 and 41.

(vii) Removal of paragraphs 43-46 (proposed challenge to the 2019 Regulations).

(viii) Consequential removal of related or dependent paragraphs to those specified above, including but not necessarily limited to paragraphs 52(h); and paragraphs 53-59.

I make these final observations. The Court was required to be positively satisfied that an extension of time should be granted in respect of the additional grievances that the plaintiff wishes to add to the AOM and the defendant was entitled to object to the grant of those extensions. The defendant is entirely successful in respect of the objection taken to addition of the grievance relating to the 2019 Regulations, and while not successful in relation to the other additional grievance, the objections taken were not lacking in merit. Further, the consideration of extension of time required evaluation of the prospects of success of the relief that the plaintiff sought. In all these circumstances, it is perhaps understandable that the defendant considered herself required, or that it was appropriate, to also object to the reformulations of the relief sought in respect of grievances already under challenge. Should a similar situation arise again, I invite the defendant to reconsider that approach.

In the result, the defendant has been successful in removing some of the relief sought in the PFAOM, but largely on technical grounds that do not prevent the plaintiff re-agitating these matters by way of submission at trial. If he does so, the defendant and the trial judge will still be required to address these matters in detail. Given the further factors of an unrepresented plaintiff; that setting out the relief sought in this way may be thought to have the benefit of exposing his intended argument; and that the Court will not be constrained in any event by the plaintiff’s formulation of relief, it might be thought that there is limited utility in taking objection to the formulation of relief at an interlocutory stage.

As against this, the contest has had the advantage of eliciting from the plaintiff a guide as to how he intends the PFAOM to be read, included in his written submissions dated 15 August 2019. The tables he sets out in paragraph 13 of those submissions relate the relief he seeks in respect of each grievance to his articulation of that grievance, and in some cases to the grounds of the challenge. Thus, while the PFAOM with the changes I require will still be a lengthy, dense, and to some extent unconventional document, that guide, and these reasons, may assist the trial judge to some degree.

I will make orders giving effect to these conclusions including reservation of costs to the trial judge, and the listing of the proceeding for further directions after the PFAOM with these changes is filed.

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[2020] VSC 355

18 June 2020