PRACTICE AND PROCEDURE – Leave to appeal – remittal from High Court of Australia – whether matter arising under international treaty – International Covenant on Civil and Political Rights – treaty not part of Australian domestic law – final or interlocutory judgment – relevant tests governing leave to appeal from interlocutory judgment.
CRAIG WILLIAM JOHN MINOGUE v CLIVE WILLIAMS (GENERAL MANAGER OF BARWON PRISON) V 687 of 1999
RYAN, MERKEL and GOLDBERG JJ 17 FEBRUARY 2000 MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 687 of 1999
BETWEEN:
CRAIG WILLIAM JOHN MINOGUE Applicant
AND:
CLIVE WILLIAMS (GENERAL MANAGER OF BARWON PRISON) Respondent
JUDGE:
RYAN, MERKEL and GOLDBERG JJ
DATE OF ORDER:
17 FEBRUARY 2000
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. Leave to appeal is refused.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 687 of 1999
BETWEEN:
CRAIG WILLIAM JOHN MINOGUE Applicant
AND:
CLIVE WILLIAMS (GENERAL MANAGER OF BARWON PRISON) Respondent
JUDGE:
RYAN, MERKEL and GOLDBERG JJ
DATE:
17 FEBRUARY 2000
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
THE COURT:
Introduction
The applicant seeks leave to appeal from the decision of Weinberg J on 18 November 1999 whereby his Honour, pursuant to O 20 r2(1) of the Federal Court Rules, dismissed the proceeding brought by the applicant on the ground that the Court had no jurisdiction to entertain the proceeding and ordered the applicant to pay the respondent’s costs. His Honour rejected the applicant’s submission that he had a justiciable “matter” based upon an alleged breach by the respondent of Article 10(1) of the International Covenant on Civil and Political Rights 1966 (“the ICCPR”). The applicant contended that he had legally enforceable rights under the ICCPR and, in particular, under Article 10(1) which provides:
“All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”
The proceeding had been commenced in the High Court but had been remitted to the Federal Court. His Honour held that there was no jurisdiction in the High Court pursuant to s 75(i) of the CommonwealthConstitution to entertain an action based upon an alleged breach of Article 10(1) of the ICCPR. His Honour relied, in particular, upon the reasoning in Dietrich v The Queen (1992) 177 CLR 292, Victoria…
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
AGLC
Minogue v Williams [2000] FCA 125
Case
[2000] FCA 125
Decision Date
CaseChat Overview and Summary
Minogue v Williams is a case where the applicant sought leave to appeal from the decision of Weinberg J who dismissed the applicant’s proceeding on the basis that the Court lacked the jurisdiction to hear the matter. The applicant alleged that the respondent, as the General Manager of Barwon Prison, had breached Article 10(1) of the International Covenant on Civil and Political Rights 1966 by not providing appropriate meals for his vegetarian diet, leading to health issues. The case initially began in the High Court but was remitted to the Federal Court. The legal issues before the court included whether the Court had jurisdiction under the Constitution to entertain a claim based on an alleged breach of the ICCPR and whether the applicant had a justiciable matter.
The court considered several precedents, including Dietrich v The Queen and Victoria v The Commonwealth, to conclude that there was no jurisdiction in the High Court under s 75(i) of the Commonwealth Constitution to entertain the action based on an alleged breach of the ICCPR. The court also noted that the matter did not constitute a justiciable controversy arising under a treaty or a matter arising under a law of the Commonwealth. Weinberg J's decision was found to be correct and not attended by sufficient doubt to warrant the grant of leave to appeal.
The court refused leave to appeal and concluded that the proceeding should be dismissed on the ground of lack of jurisdiction. The parties had already agreed on the issue of costs, so no further determination was necessary on that matter. Consequently, the court ordered that leave to appeal is refused.
Orders
Orders of the court
1. Leave to appeal is refused.
Background
Background to the litigation
The applicant seeks leave to appeal from the decision of Weinberg J on 18 November 1999 whereby his Honour, pursuant to O 20 r2(1) of the Federal Court Rules, dismissed the proceeding brought by the applicant on the ground that the Court had no jurisdiction to entertain the proceeding and ordered the applicant to pay the respondent’s costs. His Honour rejected the applicant’s submission that he had a justiciable “matter” based upon an alleged breach by the respondent of Article 10(1) of the International Covenant on Civil and Political Rights 1966 (“the ICCPR”). The applicant contended that he had legally enforceable rights under the ICCPR and, in particular, under Article 10(1) which provides:“All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”The proceeding had been commenced in the High Court but had been remitted to the Federal Court. His Honour held that there was no jurisdiction in the High Court pursuant to s 75(i) of the CommonwealthConstitution to entertain an action based upon an alleged breach of Article 10(1) of the ICCPR. His Honour relied, in particular, upon the reasoning in Dietrich v The Queen (1992) 177 CLR 292, Victoria v The Commonwealth (1996) 187 CLR 416), Sinanovic v R (1998) 154 ALR 702, Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438, Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 and Re East; Ex parte Nguyen (1998) 159 ALR 108.Background The applicant is a prisoner currently serving a life sentence in Barwon Prison for murder and the respondent was, at relevant times, the General Manager of Barwon Prison. The appellant is a vegetarian and complains that his vegetarianism is not being accommodated or properly provided for by the prison authorities. He complains about the lack of variety and balance in the vegetarian meals given to him and says that he suffers from a vitamin deficiency brought about by poor diet with the result that he has been obliged to seek medical attention for this deficiency. On 11 January 1999 the applicant, by writ of summons, commenced an action in the High Court of Australia against the respondent. On 15 January 1999 the applicant filed a statement of claim in the High Court and in late April 1999 he filed an amended statement of claim although leave was not granted to file it. The statements of claim are different but they purport to set out substantially the same causes of action against the respondent. In substance they reproduce the applicant’s complaint of an alleged failure on the part of the prison authorities to accommodate and provide for his vegetarianism. The applicant alleged that for religious, ethical and health reasons he is a vegetarian and that for medical reasons he had been prescribed a low cholesterol diet by the prison doctor. He alleged that the respondent had prohibited him from making a choice of meals offered on the prison’s menus and had precluded him from receiving a variety of meals. The applicant alleged that he was being psychologically degraded and tortured because he was forced to eat meals which consisted of the same ingredients for lunch and dinner every day of the year.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
We do not accept the submission that his Honour erred in not referring specifically to the passage in the judgment of Kirby J in The Queen v Swaffield (supra) to which he had been taken by the applicant in the course of argument. Conclusion For the foregoing reasons we are satisfied that the decision of Weinberg J was not attended with sufficient doubt to warrant the grant of leave to appeal. We would add that in our view his Honour did not err in law in arriving at the conclusion that the proceeding should be dismissed on the ground of lack of jurisdiction as the matter before the Court was not a justiciable controversy arising under a treaty (s 75(i) of the Constitution) nor was it a matter arising under a law of the Commonwealth (s 39B(1A) of the Judiciary Act). As the parties resolved the issue of costs by agreement in the course of the hearing it is not necessary for us to say any more about it.