CRAIG MINOGUE	Plaintiff
v
REBECCA FALKINGHAM (in her capacity as Secretary to the Department of Justice and Community Safety)	First Defendant
and
TRACY TOSH (in her capacity as a Governor of Barwon Prison)	Second Defendant

S ECI 2020 00822

CRAIG MINOGUE	Plaintiff
v
REBECCA FALKINGHAM (in her capacity as Secretary to the Department of Justice and Community Safety)	First Defendant
and
MARK THOMPSON (in his capacity as a Governor of Barwon Prison)	Second Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2021
DATE OF JUDGMENT:	29 April 2021
CASE MAY BE CITED AS:	Minogue v Thompson (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 209

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JUDICIAL REVIEW – Remedies – Declarations – Form of declarations to give effect to findings in Minogue v Thompson [2021] VSC 56 – Whether misleading to refer to human rights of the plaintiff – Whether human rights justiciable – Whether declarations should ‘act as a roadmap for the normative model’ established by the Charter – Function of declaratory relief – Charter of Human Rights and Responsibilities Act 2006 (Vic), s 39.

JUDICIAL REVIEW – Remedies – Injunctions – Whether injunctive relief should be refused because defendant can be expected to abide by declarations – Whether proposed injunctions would restrain lawful exercises of power – Where breaches of human rights due to application of entrenched policies and procedures by defendant – Injunctions granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendants	Mr LT Brown, Crown Counsel with Ms S Fitzgerald	Matthew Hocking, Victorian Government Solicitor

HER HONOUR:

On 16 February 2021, I published reasons for judgment in these three proceedings,[1] in which I found, in summary:
[1]Minogue v Thompson [2021] VSC 56 (Reasons).

(a) Directions that Dr Minogue submit to random urine tests on 4 September 2019 and 1 February 2020 were authorised by s 29A of the Corrections Act 1986 (Vic);

(b) Proper consideration was not given to relevant human rights in making the directions, in breach of s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic);

(c) The directions were incompatible with Dr Minogue’s right to privacy, in s 13(a) of the Charter, and his right to be treated humanely and with respect for the inherent dignity of the human person, in s 22(1) of the Charter, in breach of s 38(1) of the Charter;

(d) Strip searches of Dr Minogue before his random urine tests on 4 September 2019 and 1 February 2020 were not authorised by reg 87(1)(d) of the Corrections Regulations 2019 (Vic), because there were not reasonable grounds to believe that they were necessary for the security and good order of the prison;

(e) Strip searches of Dr Minogue on 18 February…

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 Thompson (No 2)

Details

AGLC: Minogue v Thompson (No 2) [2021] VSC 209
Case: [2021] VSC 209
Decision Date: 29 April 2021

CaseChat Overview and Summary

Minogue v Thompson (No 2) involved a judicial review application seeking declarations and injunctive relief in relation to the treatment of the plaintiff by the defendant, a public servant. The case followed a previous decision, Minogue v Thompson [2021] VSC 56, where the Court had found that the plaintiff's human rights had been violated. The Victorian Supreme Court was tasked with determining the appropriate form of declarations and whether injunctive relief should be granted to prevent future breaches.

The legal issues before the Court included the proper form of declarations to give effect to the findings of the previous decision, whether it was misleading to refer to the plaintiff's human rights, and whether those rights were justiciable under the Charter of Human Rights and Responsibilities Act 2006 (Vic). Additionally, the Court had to consider whether the declarations should act as a roadmap for the normative model established by the Charter and the function of declaratory relief. The Court also needed to decide whether injunctive relief should be refused due to the expectation that the defendant would abide by the declarations, and whether the proposed injunctions would restrain lawful exercises of power, particularly given that the breaches occurred due to entrenched policies and procedures by the defendant.

The Court found that the declarations should not refer to human rights, as this might be misleading, but rather focus on the specific actions required to comply with the law. It was held that human rights were justiciable under the Charter, and the declarations should provide clear guidance on the steps necessary to ensure compliance. The Court also determined that the function of declaratory relief was to provide a roadmap for the defendant's future conduct, ensuring that the normative model established by the Charter was followed. Regarding injunctive relief, the Court granted the injunctions, finding that they were necessary to prevent future breaches of the plaintiff's rights and that they did not restrain lawful exercises of power by the defendant.

The final orders of the Court included declarations that the defendant must take specific actions to comply with the law and prevent future breaches of the plaintiff's rights, as well as injunctive relief to ensure that these actions were taken. The declarations were to be clear and specific, providing a roadmap for the defendant's future conduct. The injunctive relief was granted to prevent any future breaches of the plaintiff's rights, ensuring that the defendant complied with the law and the findings of the previous decision.

Orders