Morgan v The Commissioner of the Department of Corrective Services
[2014] WASC 13
•3 JANUARY 2014
MORGAN -v- THE COMMISSIONER OF THE DEPARTMENT OF CORRECTIVE SERVICES [2014] WASC 13
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 13 | |
| Case No: | CIV:1002/2014 | 3 JANUARY 2014 | |
| Coram: | JENKINS J | 3/01/14 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | DERAN JOHN MORGAN THE COMMISSIONER OF THE DEPARTMENT OF CORRECTIVE SERVICES |
Catchwords: | Administrative law Prerogative writs Mandamus Decision to refuse prisoner an absence permit to attend his mother's funeral |
Legislation: | Prisons Act 1981 (WA), s 7, s 83 Prisons Regulations 1982 (WA), reg 54 Rules of the Supreme Court 1971 (WA), O 56 |
Case References: | Barreto v McMullan [2013] WASC 26 Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
THE COMMISSIONER OF THE DEPARTMENT OF CORRECTIVE SERVICES
Respondent
Catchwords:
Administrative law - Prerogative writs - Mandamus - Decision to refuse prisoner an absence permit to attend his mother's funeral
Legislation:
Prisons Act 1981 (WA), s 7, s 83
Prisons Regulations 1982 (WA), reg 54
Rules of the Supreme Court 1971 (WA), O 56
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr D A Ellis
Respondent : Mr P D Evans
Solicitors:
Plaintiff : D A Ellis, Barrister & Solicitor
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Barreto v McMullan [2013] WASC 26
Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286
1 JENKINS J: (This decision was delivered orally and has been edited from transcript). This is an application made on an urgent basis for an order nisi for a writ of mandamus. The application was filed yesterday afternoon and has been heard this morning. The application is supported by the affidavit of Dean Albert Ellis, sworn 2 January 2014.
2 The application relates to an application which the applicant, Deran John Morgan, a prisoner, currently in prison at the West Kimberley Regional Prison in Derby made to the Department of Corrective Services for permission to attend his mother's funeral. The funeral is due to take place at 3.30 pm tomorrow afternoon in Wyndham.
3 Mr Morgan's mother died on or about 11 December 2013 and the application to attend her funeral was made soon after her death. Sometime after the application was made, Mr Morgan and/or his sister, Mrs Maria Morgan, were informed orally that the application for an absence permit or for permission to attend the funeral had been refused.
4 On 1 January 2014, Mr Morgan's sister sought to appeal that decision. On or about 2 January 2014, which was yesterday, the appeal was refused and the original decision was confirmed. In these urgent circumstances, this application has been brought. The subject of the application is the decision, ultimately made by the Commissioner of the Department of Corrective Services to deny Mr Morgan an absence permit to attend his mother's funeral.
5 The applicant has, in addition to the affidavit of Mr Dean Ellis, sought to rely on an article from the Western Australian newspaper published on 21 October 2013. That article reports on comments made by the Inspector of Custodial Services, Mr Neil Morgan, in a report tabled in State Parliament. Those comments are criticisms of the department's then policy in respect of permitting prisoners to attend funerals.
6 The inspector criticises the then policy on a number of bases. The first is that the policy restricted approvals to funerals of a person with a direct blood relationship. The second appears to be that there was no separate budget for funeral attendance and the third is that there was no way to identify the costs associated with compassionate leave. In those circumstances, the inspector reportedly said that he could not determine how much funeral attendance was costing, how much could be saved or how effective the changes that had been made to the policy had been in achieving any savings.
7 The article also reported on the department's response and a departmental spokesman is reported as saying:
If every person who applied to attend was given approval, the costs would be in the tens of millions. It is essential to control costs while maintaining an equitable process.
8 In essence, that is also what this case is about. However, it is important for me to note that given the date on which that article was published, the policy to which the inspector was referring cannot be the policy which was relevant at the time the decision was made in this case. That is because the Department of Corrective Services Policy Directive 9 (PD 9), which is the relevant policy in this case, is dated 21 October 2013, the same date on which that article was published.
9 The respondent to the application has undertaken to file the affidavit of Brian Ellis sworn 3 January 201[4] and he relies upon that affidavit. That affidavit contains material showing the process by which the decision under review was made.
10 In particular, I note that after the application for leave to attend the funeral was made, a written report was prepared dated 12 December 2013 by an Acting Senior Officer (ASO) and, subsequently, the recommendation was added of an Assistant Superintendent Security/Acting ASO. The recommendation of the ASO was that the application by Mr Morgan was recommended. The recommendation by the Assistant Superintendent Security/Acting ASO was similarly that the application was recommended. This was due to:
[the] immediate relationship, and as above, feuding is not believed to be a factor at this funeral. Morgan has maintained contact and has been emotionally impacted by the passing of his biological mother.
11 That report is quite detailed and it discloses several relevant matters.
12 The first, an obvious one, is the relationship between the deceased and Mr Morgan, that being that the deceased is the biological mother of Mr Morgan. The second is the close relationship between the two of them. The third is that the relationship between them had been maintained whilst Mr Morgan was a prisoner. The fourth is that there is an active alert regarding the possibility of family feuding between the Morgan families and another family in Wyndham. The next is that there would probably be trouble if any of that other family were to come into contact with Mr Morgan.
13 The next is that advice had been received by a cleric in Wyndham that the family were quiet and did not foresee any issues in regard to feuding between families in Wyndham. The report also mentioned the distance between Broome Prison and Wyndham and the requirement for transport to be provided between Broome and Wyndham and return for the funeral. The report further referred to Mr Morgan's compliant behaviour whilst a prisoner and the fact that his behaviour had been of a high standard. That is just a summary of the material contained in the report. I cannot, because of time constraints, go through all of its details.
14 The affidavit of Mr Brian Ellis also contains an internal memorandum dated 24 December 2013. Mr Brian Ellis sent the memorandum to Mr Brett McMerrin, an Assistant Commissioner of Custodial Services. The internal memorandum refers to two quotations for prisoner transport. The first is for the transport of Mr Morgan only to the funeral. That is the only one that I need deal with. It was said that the cost was expected to be $14,401.13. Mr Brian Ellis refers to the prescribed maximum costs for funeral attendance being $6000 per prisoner. He concludes, by saying:
The relationship between the prisoners and the deceased is considered significant under the guidelines in Policy Directive 9.
For your consideration.
15 The reference to the 'prisoners' is a reference to the fact that another relative of the deceased, who is also a prisoner, had sought permission to attend the funeral. That application is not the subject of this application and, therefore, I am not going to refer to it again.
16 The affidavit of Mr Brian Ellis attaches a quote from SERCO under the WA Court Security and Custodial Services contract in respect of the estimated cost of transporting Mr Morgan to the funeral and return. Indeed, that quote is for $14,401.13.
17 I digress to note that there is some confusion because the quote is for transporting Mr Morgan from Broome to Wyndham and return, whereas the evidence is that Mr Morgan is imprisoned in Derby. I asked the respondent's counsel to clarify why that was. He has advised me from the bar table that if Mr Morgan was to attend the funeral, it was envisaged that he would be transported from Derby to Broome by internal departmental mechanisms which would not result in any specific cost. The incurred cost would be for transport from Broome to Wyndham and return.
18 The affidavit of Mr Brian Ellis then contains an email from Mr McMerrin which states:
I am not approving MORGAN'S attendance for the following reasons:
The expenditure greatly exceeds the cap as per PD9.
Morgan is a sex offender who for many years preyed on members of the Oombulgurri Community and it can't be guaranteed if victims might be present. He is currently imprisoned for these offences.
19 There is then a reference to the application by the other prisoner. Mr McMerrin then says:
Both men are to be provided with alternatives to funeral attendance.
Both men are to be provided with extra family contact.
Both men are to be provided with counselling and support as deemed necessary.
20 There is also a copy of Mr Morgan's appeal, which is a written document, attached to Mr Brian Ellis' affidavit. Mr Morgan advised the department that it may have a big impact on him if he was unable to attend the funeral. He said that culturally this was one of his family's and his biggest losses. He said that the victims of his offences would not be attending. He said that one lived in Kulumburu and the other would keep well away. He said that the funeral would be very peaceful and respectful and he was aware that there was no family feuding.
21 Attached also to that appeal was a typewritten document dated 1 January 2014. In it Mr Morgan said that he was appealing the decision not to allow him to attend his mother's funeral which he understood had not been granted on the basis of financial limitations and victim impact and family feuding.
22 In respect of financial limitations, he submitted that West Kimberley Regional Prison officers would be able to facilitate his escort and, therefore, SERCO would not have to be used. In respect of the victim impact, he said none of the families would be in attendance at the funeral. He also said that there was no family feuding.
23 Mr Morgan, again, reinforced that his mother had been an indigenous elder and highly respected. He said that his attendance at her funeral had major cultural and personal significance. He also asked the department to take into account his prison record, the fact that he was a minimum security prisoner and that he had been of good behaviour throughout his sentence.
24 The affidavit of Mr Brian Ellis then attaches the internal memorandum from Mr Brian Ellis to Mr McMahon which recommends that the leave of absence and the appeal not be granted. It also contains the respondent, Mr McMahon's decision that Mr Morgan's appeal be dismissed.
25 Mr Brian Ellis sets out in the internal memorandum various matters relating to the application, including the initial decision, the matters relied upon by Mr Morgan in his appeal, the costs of the travel for Mr Morgan and those who would be supervising him and some relevant matters from PD 9.
26 As I have said, Mr Brian Ellis says that despite the nature of the relationship between Mr Morgan and the deceased, the cost of the escort substantially exceeds the guidelines in PD 9. He said, as such, he did not recommend that Mr Morgan be given an absence permit to attend the funeral. Mr McMahon has endorsed on the memorandum his decision that Mr Morgan's appeal be dismissed.
27 Finally, the affidavit of Mr Brian Ellis attaches PD 9 which relates to absence permits. There is nothing of any significance in that policy directive in respect of this application except that the policy directive states in part 11:
11.1 The department has financial and security limitations in relation to a prisoner's attendance at a funeral or visit to a dangerously ill person. The limitations are prescribed in Appendix 1.
11.2 Generally, where an application is found to be within the limitations prescribed in Appendix 1, only immediate family relationships will be considered favourably.
28 Appendix 1 says that:
The current cost limitations for the transport and supervision of a prisoner attending a funeral or visit to a dangerously ill person are:
Local community $2,000;
Remote community $6000.
…
These costs are fixed and where a quotation for transport and supervision is above these cost restrictions, the attendance at a funeral for a visit to a dangerously ill person will not be approved.
29 Mr Morgan says that the Commissioner should have found that his application to attend his mother's funeral was reasonable and the application should have been granted. He says that he will suffer emotional, if not psychological damage if he is not permitted to attend his mother's funeral. He says that this will be his only opportunity to farewell his mother, given that because of his incarceration he was not able to see her before she died. Mr Morgan says that the decision to deny him permission to attend his mother's funeral has denied him this opportunity to farewell his mother on the basis of cost and a misunderstanding of risk.
30 Mr Morgan says that he is an aboriginal man with cultural obligations. He says that it is inevitable that, given his location and the location of his mother, that the cost of him attending his mother's funeral would be greater than usual. He says that the blanket rule of the cost being the determinative factor is not in accordance with the law. He asks, rhetorically, if this application is not approved then when could approval be given for a prisoner in a regional prison to attend another regional area? He says that the decision was clearly made on a misunderstanding of the risk, given that the victims and the victims' families will not be attending the funeral.
31 The respondent, on the other hand, says that there has been no error of law and as this is not a merits review, then the application for a writ of mandamus cannot be granted.
32 It is necessary for me to refer to the statutory regime in order to determine this matter. Section 83 of the Prisons Act 1981 (WA) applies to authorised absences from prison. Subsection 3 permits an absence permit being given for a purpose or in circumstances prescribed in the regulations. The Prisons Regulations 1982 (WA), reg 54D prescribes that enabling a prisoner to be absent from prison on compassionate grounds is a prescribed purpose. So there is no doubt that the statutory regime permits the Commissioner to give an absence permit to enable Mr Morgan to attend this funeral.
33 Section 83(1)(b) says that the objectives of s 83 are, amongst other things:
[T]he compassionate or humane treatment of prisoners and their families;
34 Mr Morgan relies upon this objective. It is also relevant to note that s 83(7) says that when considering whether to give an absence permit, the Chief Executive Officer must take into account the safety and interests of the public. In taking into account these matters, clearly such matters as family feuding are relevant matters to take into account. Also, the costs of granting an absence permit are relevant matters to take into account in the interests of the public.
35 Regulation 54E(3) says that an absence permit shall be for the shortest period reasonably required for that purpose or in those circumstances, including travel time. There is similar requirements in reg 54E(1) and (2). I mention that because during the hearing there was some discussion about the proposed mode of transport. I see that as a management issue and not a matter for me, but of course, the Commissioner, in deciding the mode of transport, must take into account reg 54E.
36 There are also requirements in reg 54I and reg 54K for the supervision of a prisoner whilst they are on absence permit. These requirements also are prone to increase the cost of a prisoner's attendance at a funeral.
37 Before going on to consider the matter further, I should also note by way of background that Mr Morgan is currently serving a sentence of 10 years imprisonment for sexual offences against children. Those offences were committed in a regional community close to Wyndham. I am told that he will be eligible for parole shortly, although he is not currently eligible for parole.
38 Next, again before I get on to the merits of the matter, I should also refer to the recent amendments that have been made to O 56 of the Rules of the Supreme Court 1971 (WA). I note that the present application for an order nisi for a writ of mandamus is not in accordance with those rules. My understanding is that there is now no provision for the granting of an order nisi; rather, an application for a writ of mandamus is to be heard at first instance, without the requirement for an order nisi being granted. There are other procedural changes which are made in the new O 56. I am not going to deal with the new O 56 at this point. That is because any problems in respect to the way this application has been made and O 56 could be dealt with by amendment to the application should I have been minded to grant it. As will become clear from these reasons, I do not intend to grant the application, so I do not need to deal with those issues. I will give these reasons on the basis there is no procedural issues preventing the substantive application from being granted.
39 Next I note is that this is not a merits review. Any decision I may make, even if I was minded to allow the application, would simply be to command the decision maker to perform his or her duty according to law. I cannot and do not have the power to substitute my decision for that of the authorised decision maker.
40 Further, mandamus compels the fulfilment of a duty of a public nature which remains unperformed. The duty under challenge in the application has been performed. As I have indicated, a decision at first instance was made and then was subject to an appeal. A decision was made after that appeal. Therefore mandamus cannot be issued on the basis of failure to perform the duty.
41 Consequently, if any order was to be made, a writ of certiorari would have to issue first to quash the decision and the application to attend the funeral would have to be referred back to the decision maker to be made according to law.
42 That is another matter which, although it is of some significance, is not a matter which would prevent me from determining this application according to its merits. If I had been minded to grant the application, then I could have overcome the problems that arise from both the form and content of the application.
43 However, the only other basis for the issue of a writ of mandamus is on the basis of a constructive failure to perform a duty because the decision maker has misconceived his or her duty. Such a misconception would, alternatively, justify me granting a writ of certiorari to quash a decision. I do not see any evidence of such a misconception sufficient for me to interfere in the management of the applicant and the prisons. The recommendation given to the original decision maker referred to all relevant matters, except it did not specifically specify the cost of granting an absence permit.
44 The decision maker, in addition to the matters in the officer's recommendation, took into account the question of cost. Having done so, he refused the application. Cost is a legitimate matter to be considered. It is, as I have said, clearly in the interests of public that the cost of an absence permit be taken into account.
45 In this respect, I have had regard to what the President of the Court of Appeal said in the case of an application for a writ of certiorari and a writ of mandamus against Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286. Her Honour (then McLure J) said:
A policy which fetters all or part of a discretion is unlawful. However, where a decision-maker adopts a policy, it is entitled to apply that policy provided applicants are given an opportunity to show that there are exceptional reasons why it should not be applied in their case.
...
However, a court will not review the merits of a policy where it is lawful and has not been inflexibly applied because to do so would be an intrusion into the merits of the decision-making process: Attorney-General (NSW) v Quin (1990) 170 CLR 1 [28] – [30].
46 I am concerned about the apparently mandatory requirements in PD 9, which state that absence permits which require expenditure on travel to funerals will not be approved if the cost is, in the case of a remote community, above $6000. However, having considered all the material before me, including the full recommendation, which refers to all relevant matters, which was before the decision-maker, and that the cost of the trip would be well in excess of that $6,000 limit, I am not of the view that it can be said that the decision-makers misconceived their duty, or took into account an unlawful policy.
47 It is my assessment that the decision makers made a judgment not bound by the financial limitation contained in the PD 9. Rather, they made a discretionary judgment based on all relevant matters, including that the cost of the absence permit would have been greatly above the limit in PD 9. Thus, I am not satisfied that the initial decision maker and the Commissioner on appeal inflexibly applied PD 9. I am of the view that it was but one matter which the decision makers took into account.
48 It is true that the decision makers also took into account a risk to public safety. The applicant says that there is no such risk. On the basis of the material which is now before me, it may well be that a decision maker would conclude that there was no such risk or there was less risk but it is not for me to make that judgment.
49 What is clear is that information has come to light since the decision was made. Even to the extent that it was contained in material that was before the decision makers, it is a matter of judgment for the decision makers to balance that material against all other relevant considerations. I do not consider that it is a matter for me to quash the decision based on material that has been made available subsequent to the decision.
50 Information about a potential risk to public safety was simply one more factor that was relevant to be taken into account by the decision-makers. There are no doubt many matters that have to be weighed and considered by a decision maker in these circumstances. That material is but one of them.
51 I cannot allow this application simply because I would have made a different decision or I am satisfied that someone else would have made a different decision. The decision is a management decision for those who are statutorily given the power to manage prisons and prisoners. They are in a far better position than me to balance the competing factors which must affect a decision of this type.
52 The applicant has stressed the importance of his attendance at his mother's funeral, given his close relationship with her and his cultural obligations as an indigenous man. I do not in any way diminish those considerations. I do not in any way suggest that they are not important considerations for a decision maker to take into account in these circumstances. However, regrettably, they are not the only considerations that have to be considered. In this case, the decision maker, who has the task of making the decision, considered that other matters outweighed those matters. I do not see that it is my function to overrule that decision simply because I may have made a different one.
53 Before I conclude, there is another matter of law I should mention and that is the issue as to whether this court has jurisdiction to grant judicial review in respect of a decision of this nature. McKechnie J discussed the relevant considerations in Barreto v McMullan [2013] WASC 26.
54 Given the urgency of this matter, I did not think that it would be profitable for me to review all the relevant considerations and the law and to make a determinative decision in respect of my power. I have been content to assume that this court has jurisdiction to grant writs of mandamus and certiorari in respect of this type of decision. That is an assumption in favour of the applicant.
55 However, I have been mindful, in deciding the application, that absent bad faith or a clear interference in a prisoner's rights, courts should not readily interfere in prison management. This is clearly a decision which falls within the management of a prison and prisoners. The management of prisons and prisoners is an obligation which has been granted by statute to the Commissioner: Prisons Act s 7(1).
56 That concludes my reasons. I would add only the following.
57 First, it is very regrettable that it seems Mr Morgan and his family were not given written advice of the reasons for refusing his application. The Commissioner should do his best to ensure that there is adequate information given to prisoners and their families of the reasons for refusing such an application. This is not only because of the clear statutory requirement in the Prisons Act s 83, for compassionate treatment of prisoners and their families but also because of the inherently very stressful nature of such a matter to them.
58 Secondly, given the matters which have been raised in Mr Dean Ellis' affidavit and the attachments to it in regards to the lack of any safety concerns if Mr Morgan was to attend the funeral and given the discussions we have had today of whether there would be any cheaper method of permitting Mr Morgan to travel to the funeral, it does seem to me that it would be compassionate for the Commissioner to have a look at this matter again, in light of the information in Mr Dean Ellis' affidavit and in light of my comments, to see whether it would be possible for Mr Morgan to attend the funeral.
59 However, given the time limitations, it seems that such a review of the matter would be of no use unless the funeral could be delayed. So, I think that the ball is, first, in Mr Morgan's court to be able to advise the Commissioner that there could be some delay in the conduct of the funeral and what that delay could be. Otherwise it seems to me at this point there would be no practical use in the Commissioner having one last look at the matter, so to speak.
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