Pilcher v Chief Executive Queensland Corrective Services
[2023] QSC 171
•1 June 2023
SUPREME COURT OF QUEENSLAND
CITATION:
Pilcher v Chief Executive Queensland Corrective Services [2023] QSC 171
PARTIES:
DANE ANDREW PILCHER
(applicant)
v
CHIEF EXECUTIVE, QUEENSLAND CORRECTIVE SERVICES(respondent)
FILE NO/S:
SC 31 of 2023
DIVISION:
Trial
PROCEEDING:
Statutory Review
ORIGINATING COURT: Supreme Court at Cairns
DELIVERED ON:
Delivered ex tempore on 1 June 2023
DELIVERED AT:
Cairns
HEARING DATE:
1 June 2023
JUDGE:
Henry J
ORDER:
The orders, on the Court’s understanding that the applicant has seen an optometrist and has been prescribed glasses, are that:
1. The applicant’s amended application filed 16 March 2023 is summarily dismissed.
2. The applicant have liberty to apply within 60 days on the giving of 2 business days’ notice in writing.
3. There be no order as to costs.
CATCHWORDS:
ADMINISTRATIVE LAW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – where the applicant seeks judicial review of the decision of authorised Corrective Services Officers to not make arrangements for him to see an optometrist and be prescribed glasses in a timely way – where on the eve of the hearing the respondent arranged for the applicant to see an optometrist and made arrangements for him to receive glasses
Corrective Services Act s 263
Judicial Review Act s 49
Ainsworth v Criminal Justice Commission [1991] 175 CLR 564COUNSEL: The applicant appeared on his own behalf
A Scott KC with P O’Higgins for the respondent
SOLICITORS: The applicant appeared on his own behalf
Crown Law for the respondent
HENRY J: The applicant, Mr Pilcher, seeks judicial review of the decision or decisions, or arguably non-decisions, of authorised Corrective Services Officers to not make arrangements for him to see an optometrist and be prescribed glasses in a timely way, consistent with the Chief Executive’s responsibility for his welfare.
In the course of mentions and directions pertaining to this application, which was ultimately listed for hearing today, I made the observation that it would be cheaper for arrangements to be made for him to see an optometrist and be provided with glasses than the cost of resisting the present application would be. In making those observations, I was conscious that on the materials before me, the arrangement which Corrective Services had at Townsville (where Mr Pilcher is housed) with Queensland Health had faltered. I was conscious that ultimately the Chief Executive would realise the path to fulfilling the Chief Executive’s statutory obligation could not be delegated to another government agency providing an optometry service, so that if that other agency was failing to do so, the Chief Executive’s obligation would be to pursue a different solution, which would logically include the possibility of Corrective Services engaging with optometrist services directly rather than via another government department.
In recent days, the respondent sought to list an application for summary dismissal of this application, evidently because, as the materials now show, common sense has prevailed, and the applicant has now seen an optometrist, been prescribed glasses, and all parties understand those glasses will soon be sent to him.
It is against that background that I resolved to determine the summary dismissal application first because of the prospect that the respondent’s argument that there is no longer utility in the application is an argument of obvious substance. Faced with that combination of events, Mr Pilcher this morning agreed that there was no longer any point in him seeking the injunction which was amongst the relief his application sought.
However, he wished to persist with his application with a view to securing the declaration which it sought. It was sought in these terms:
“The applicant also seeks a declaration that Queensland Corrective Services will provide access to optometry services for all inmates of the Townsville Correctional Centre as clinically required and in a clinically appropriate period. This declaration should include that if an optometrist cannot be sourced to visit the prisoner at regular intervals, then Queensland Corrective Services will facilitate the transfer of inmates to an external optometrist as clinically required.”
The plurality in Ainsworth v Criminal Justice Commission [1991] 175 CLR 564 at 581, 582 observed:
“It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which “[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise”. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed towards the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have a “real interest”, and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that have not occurred and might never happen”, or if “the Court’s declaration will produce no foreseeable consequences for the parties”. (Citations omitted)
The argument advanced by Mr Pilcher is that there is utility in the hearing of his application on the merits, with a view to securing the declaration he seeks, in essence, because of the risk that the circumstances which prompted his application may continue or recur.
It is to be borne in mind that the relief is sought in the context of a judicial review. It necessarily relates to the decision-making of the Chief Executive and the Chief Executive’s delegates as it pertains to Mr Pilcher. The application is not akin to a class action. It cannot, as a matter of law, be regarded as being brought on behalf of all inmates. It is his application and it relates to his interests.
An incident of his application, should it be heard on the merits, I suppose, is that the reasons given by this Court, quite apart from whatever declaration might potentially be made, should the Court decide in his favour, would be reasons of a kind other prisoners could remind the Chief Executive or the Chief Executive’s delegates of in the future, should a problem of the kind which has occurred here continue or recur. The difficulty remains, though, that the focus of an application of this kind is on the ultimate order and whether it has utility. It is most unlikely, on a hearing of the merits of this application, that I would be persuaded of the appropriateness of making a declaration that pertained to any inmates other than the person who has brought the application.
The test of utility relates to the relief which may potentially be granted. The argument that a declaration, which in my view could only pertain specifically to Mr Pilcher, has utility beyond Mr Pilcher’s interests would, in effect, be that even a declaration of the kind sought pertaining to Mr Pilcher would serve a broader utilitarian purpose on behalf of all those in the custody of the Chief Executive. That purpose would be raising the Chief Executive’s awareness of and sense of proper priority about the provision of elementary healthcare services, such as optometry, to those prisoners who have difficulty with sight. However, looked at in that way, one realises that the declaration would necessarily have to be couched in general terms to serve that purpose. The immediate purpose of this application, Mr Pilcher securing glasses, has almost been effected. Such declaration as required, then, would not be prescriptive and would likely be in general terms, tending to vague terms, in effect, a motherhood statement of the Chief Executive’s statutory duty of responsibility for the welfare of prisoners. It begs the question of why that would need to be said in general terms only, when, as a matter of existing fact, s 263(1)(b) Corrective Services Act 2006 (Qld) provides the Chief Executive is responsible for the welfare of all prisoners.
Mr Pilcher’s argument that it is necessary is that, as he put it, “this is going to keep happening”. When he was tested as to that submission, it became apparent the only basis for it was the fact that it has happened this time. On the face of it, then, the prospect of a continuation or recurrence is merely an abstract or hypothetical prospect, and as the plurality in Ainsworth observed, declaratory relief must be directed to the determination of legal controversies, not answering abstract or hypothetical questions.
The only other substantive argument advanced in support of persisting with the pursuit of declaratory relief was that the prospect of Mr Pilcher needing optometry services in the future is not hypothetical. I, of course, accept that prospect is not hypothetical, taking judicial notice of the reality that those whose eyesight starts to encounter difficulty, to the point where they need glasses, generally continue to have such difficulty, indeed their eyesight problems may worsen in time. Additionally, of course, there is the ever-present risk that glasses may break and need to be replaced. The reality is that, from time to time, most people who need glasses need check-ups and either replacement or more magnified glasses as a result of that process. It is difficult, though, for the argument that Mr Pilcher will continue to have a need for optometry services, to surmount the point already made that the prospect of the problem which sparked the present application continuing or recurring in the future is abstract or hypothetical, there being no basis to infer that it will be likely.
I record that in the course of argument I was informed at the organisational level Corrective Services is well advanced in addressing the service provider issue as it relates generally to prisoners in Townsville. I respectfully do not propose to act on that information in the course of my decision. The reasons I have given did not need to act upon it.
The evidence before me does show that Mr Pilcher recently saw an optometrist and was prescribed glasses and that glasses will be sent to him. It did not say when. I was informed from the bar table that the general understanding about that is that it will be soon. Strictly speaking, then, the underlying purpose of the relief sought has not been completed. However, the state of the evidence is such that it is so very obviously likely to soon be completed that I see little point in refraining from the dismissal of the application until they arrive.
The preferable course, I think, is that when I make my orders, as I will, for the reasons I have given, now summarily dismissing Mr Pilcher’s application, that I ought give liberty to apply within the next 60 days. That will allow Mr Pilcher to re-enliven the current application in the event that the glasses are not soon received, the basis for such re-enlivening being that I will have framed my order as being made on an erroneous understanding that the applicant will soon be sent the glasses.
In my conclusion, then, for the reasons given, the continued hearing of the primary application would be inappropriate. It is ordered, on the Court’s understanding that the applicant has now been seen by an optometrist and prescribed glasses which will soon be sent to him:
1. His application is summarily dismissed.
2. Liberty to apply within the next 60 days on the giving of two business days’ notice in writing.
I will hear the parties as to costs.
…
The Chief Executive seeks costs in respect of the summary dismissal application but no order as to costs in respect of the principal application. In summary, its argument is that even when the equation presenting itself was explained to Mr Pilcher this morning, he nonetheless chose to press on and resist the application, and that in the normal course costs should follow the event. Indeed, on one view of it, the position taken by the Chief Executive might be described as conservative, in that the Chief Executive is not seeking costs in respect of the primary application, which my perusal of the file reveals attracted a lot of preparatory work. There being no application by the prisoner pursuant to s 49 Judicial Review Act, the question as to costs is to be resolved according to the usual power pursuant to the Uniform Civil Procedure Rules 1999 to order costs and the general presumption that costs should follow the event.
In my view, that presumption is displaced in the circumstances of this case for these reasons. Firstly, Mr Pilcher is a prisoner serving a life sentence. He receives some allowance-style income as a prisoner, but it is extremely modest and he would need to save for a very long time, having no other assets to meet any costs order. Bearing in mind the modesty of such monetary allowance as he is given, and the obvious desirability of him being in a position to at least utilise some of it in custody, it would take years for him to gradually save enough to be remotely within a position to pay off a costs order.
Secondly, the application was brought in the context where he was not some external party to the Corrective Services system, but an inmate within it who, on the materials, was plainly in need of optometry services, which had not been provided in a timely way. I have not resolved the merits of the principal application, and I note arguments were flagged by the Chief Executive’s counsel in the outline of argument for that matter in support of the conclusion that the primary application ought not succeed. Nonetheless, the application at least appeared to have rationally arguable prospects founded, as it was, upon an alleged failure of decision-making contrary to, so it was to be argued, the statutory obligation deriving from the relationship of care.
Thirdly, the very reason why the summary dismissal application succeeded is that if not the only, then certainly the main and most immediate object of the substantive application had been achieved, by finally arrangements being made for Mr Pilcher to see an optometrist and glasses being prescribed for him.
Having regard to all of those considerations, I conclude that there ought be no order as to costs. Accordingly, my third order is:
3. No order as to costs.
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