Rainsford v State of Victoria
[2002] FMCA 266
•20 November 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAINSFORD v STATE OF VICTORIA | [2002] FMCA 266 |
| HUMAN RIGHTS – Disability discrimination – Application pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act to extend the time in which to make an Application. Administrative Decisions (Judicial Review) Act1977, s.11 Rainsford v State of Victoria (2001) FMCA 115 |
| Applicant: | JAMES ERNEST RAINSFORD |
| Respondent: | STATE OF VICTORIA |
| File No: | MZ 869 of 2002 |
| Delivered on: | 20 November 2002 |
| Delivered at: | Melbourne |
| Hearing Date: | 4 October 2002 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr James Gray |
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Ms Melinda Richards |
| Solicitors for the Respondent: | Victorian Government Solicitor |
ORDERS
In relation to the Application by the Applicant pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act to extend the time in which to make an Application against the Respondents pursuant to the Disability Discrimination Act 1992:
(a)The time in which the Applicant has to make an Application against the Respondents pursuant to the Disability and Discrimination Act 1992 be extended to 29 August 2002 in relation to the first allegation referred to in Attachment A to the Notice of Termination issued by the Human Rights and Equal Opportunity Commission on 28 May 2002.
(b)The remainder of the Application to extend the time in which to make Application being the second, third and fourth allegations and the further allegation detailed in Attachment A to the two Notices of Termination issued by the Human Rights and Equal Opportunity Commission on 28 May 2002 is dismissed.
In relation to the first allegation, the Applicant has leave to amend his Application to include Group 4 Correctional Services as a Respondent provided that such Application is filed and served no later than 4.00pm on Friday 15 November.
Before 4 pm Tuesday 19 November the Applicant file and serve on the Respondents a Statement of Contentions setting out
(a)In relation to each act of discrimination alleged, whether direct or indirect discrimination is alleged or both, and
(b)In respect of each act alleged the section of the Disability Discrimination Act which is relied on.
The Respondent file and serve a Statement of Contentions on or before 4.00pm on 20 November 2002.
The Applicant file and serve on the Respondent a Witness Statement in relation to the evidence of the Applicant and a list of witnesses he intends to call at the hearing, and an indication of the evidence to be given by each of them on or before 4.00pm on 18 November 2002.
The Respondent file and serve on the Applicant any Affidavits upon which they intend to rely at the hearing, or a list of Affidavits already filed in relation to the proceedings on or before 4.00pm on Wednesday
20 November.A Gaol Order be issued in relation to the Applicant's attendance at the hearing with a request that transport be provided that will enable the Applicant to stretch and stand if possible.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 869 of 2002
| JAMES ERNEST RAINSFORD |
Applicant
And
| STATE OF VICTORIA |
Respondent
REASONS FOR JUDGMENT
Present applications
This is an Application by James Ernest Rainsford (the Applicant) for an extension of time in which to file an Application to the Federal Magistrates Court of Australia pursuant to s.46 PO(2) of the Human Rights and Equal Opportunity Act 1986 (Cth) ("the HREOC Act") alleging contraventions of the Disability Discrimination Act 1992 (Cth).
The Applicant did not file an application for an extension of time per se, but filed an application pursuant to the HREOC Act alleging discrimination after the time allocated by the Act and after the time the Court had ordered the application to be made. On 3 September 2002 I ordered that the said application be treated as an application for an extension of time under s.46PO(2) of the HREOC Act.
The State of Victoria (the Respondent) opposes the application.
Previous and related proceedings
Although this Application is a discreet Application filed by the Applicant, there are other matters in this Court concerning related litigation by the Applicant and there have been proceedings by the Applicant in other Courts, which may be relevant to these proceedings.
The proceedings in this Court were commenced by an Application by the Applicant against the State of Victoria made under the HREOC Act alleging unlawful discrimination by the State of Victoria against the Applicant. The Application was filed in the Federal Court of Australia on 10 May 2001. In this Application, he claimed unlawful discrimination had occurred pursuant to the provisions of the Disability Discrimination Act 1992. There was no issue taken by the Respondent that the State of Victoria was the correct Respondent in a claim relating to alleged conduct of the office of the Correctional Services Commissioner. The precise nature of the discrimination alleged is important.
The complaint was described in the Notice of Termination from the Human Rights and Equal Opportunity Commission (the HREOC Commission) dated 10 April 2001. It referred to the Applicant's complaint against the Respondent that the Applicant had advised that he had a back injury, and that in 1996 had surgery to repair a prolapsed disc and had some discs removed. The Applicant, at the time of the complaint, was in prison and has been in prison since 1998. The doctors at Barwon Prison had advised because of his back injury he should not sit for longer than 10-15 minutes and should not lift anything over five kilograms in weight.
In essence, the Applicant's complaint was being one whereby the Applicant alleges that the Respondent failed to provide him with reasonable accommodation for his disability when transported between Port Phillip Prison and Barwon Prison. He also claimed that he was required to load and unload boxes without the aid of a trolley and this aggravated his injury.
The Application to the Federal Court was transferred to the Federal Magistrate's Court on 28 September 2001. When the matter was first listed before McInnis FM on 29 October 2001, the solicitor for the Respondent foreshadowed an Application to dismiss the Application for want of jurisdiction. By Application filed 21 November 2001, the Respondent sought an order wholly staying or dismissing the Application on the basis that it did not disclose a reasonable cause of action and/or was an abuse of process of the Court.
After hearing submissions in relation to the Respondent's Application, McInnis FM delivered judgment on 28 November 2001. McInnis FM dismissed the Applicant's application on the basis that there was no reasonable cause of action disclosed and/or the proceeding was an abuse of process of the Court. His reason for dismissal of the Application was that s.6 of the HREOC Act did not bind the Crown in right of the State. Thus the State of Victoria was not subject to the HREOC Act and the anti discrimination legislation including the Disability Discrimination Act.
The HREOC Act was subsequently amended restrospectively by the Human Rights and Equal Opportunity Commission (Amendment) Act 2002 making it clear that the State of Victoria is bound by the provisions of HREOC legislation.
The Applicant appealed that decision to the Full Court of the Federal Court of Australia. On 30 April 2002, the Full Court of the Federal Court of Australia made Orders by consent as follows:
(1)The Judgment of McInnis FM delivered 28 November 2001 in Rainsford in the State of Victoria (2001) FMCA 115, being the Judgment appealed from, be set aside;
(2)The proceeding be remitted to the Federal Magistrate's Court for further hearing and determination according to law.
(3)There be no Order as to costs.
Thus the application filed on 10 May 2001, having been remitted by the Full Court, to the Federal Magistrates Court remains to be heard and determined. This proceeding I will refer to as “the remitted proceeding.”
On 8 November 2001, the Applicant filed an Application against Group 4 Correctional Services (who operate Port Phillip Prison), seeking an interim injunction pursuant to s.46PP of the HREOC Act which referred to a claim being brought under the Disability Discrimination Act 1992. In the Affidavit in support, the Applicant referred to the following:
I lodged a complaint concerning DDA on 3 October with HREOC about being locked in my cell 23/7 days a week, as I have had an operation on my back and needed to exercise it. The Orders I seek are (46PP) for the prison not to be able to lock me in a cell 23/7 days a week and for further victimisation concerning legal actions, and under (46PR) that the Court hear this as soon as possible and not be bound by technicalities, as there is no-one to witness the Affidavit.
This Application was filed in the Federal Magistrate's Court. There were a number of hearing dates listed which did not proceed due to difficulties for the Applicant, including the fact that he was initially unrepresented, but representation then became available to him but in circumstances which required one of the hearing dates to be adjourned. The matter was ultimately heard on 13 February 2002. Prior to hearing of the Applicant's Application for an injunction, he filed an Amended Application seeking the following Orders:
1. In all dealings with the Applicant, the Respondent reasonably accommodate the Applicant's back injury by enabling him to stand, stretch and exercise his back and have access to facilities of a reasonable height at all times.
2. The Respondent apply the ordinary course of dealing with such matters to the Applicant's Application for access to an approved Sex Offender Rehabilitation Course and a revision of his security rating, such process to be completed in 14 days and written reason for the outcome provided shortly thereafter.
It is, I think, useful to set out the chronology of complaints which then formed the Applicant's Application because they need to be considered in the context of what is being argued before me. On 3 February 2000 there was an incident at the Ararat Prison where the Applicant who allegedly fought with an inmate, was as a result of that incident sentenced to a further seven days' imprisonment. On 14 December 2000 an incident occurred (disputed by the Applicant) which related to a fight and charges arising out of the Prison Regulations relating then to the Applicant. On 12 September 2001, there was a letter written by the Applicant to a former prison officer which came to the attention of the Respondent. On the same day the Applicant was moved to a Management Unit Prison.
On 14 September 2001, the Applicant wrote a letter to HREOC which referred to a further complaint of disability discrimination and refers to the Applicant being taken to the Management Unit.
On 24 September 2001, there was a further letter from the Applicant to HREOC repeating the claim made in the letter of 14 September 2001.
As well as making various complaints to the HREOC pursuant to the Disability Discrimination Act, the Applicant also used the internal review system to review some of the decisions (to which the present complaints also relate). When those proved unsuccessful he sought to have them reviewed in the Supreme Court of Victoria.
On 28 September 2001, the Applicant commenced Supreme Court proceedings which related to the Applicant's stay at the Management Unit and other matters. On 30 September 2001 there was a further letter from the Applicant to HREOC raising what are referred to as additional matters, and referring back to the two earlier letters dated
14 and 24 September 2001.
On 2 October 2001 the Applicant was removed from the Management Unit and returned to the mainstream part of the prison. On 12 October 2001, there was a further letter from the Applicant to HREOC alleging discrimination; on this occasion it related to the complaint concerning what might be the dealings with the Parole Board and the Office of Correctional Service in relation to the Applicant.
On 5 November 2001, the Applicant further wrote to HREOC and on this occasion alleged further discrimination concerning being locked in his cell and victimisation to taking legal action which had occurred on 3 October 2001.
A further letter dated 6 November 2001 to HREOC and an allegation of disability discrimination was raised and it dealt specifically with what is alleged to be a refusal to allow the Applicant to attend a rehabilitation course at Carlton.
On 12 November 2001 the Applicant further wrote to HREOC alleging a new complaint and completing a claim in relation to the attendance at the rehabilitation program in Carlton.
On 23 November 2001, Beach J delivered his Judgment in the Application which was then before him in the Supreme Court. The Application sought judicial review and sought judicial intervention in relation to Orders made under the Corrections Act 1986. The Court dismissed the Application.
McInnis FM dealt with the Application for an injunction on
13 February 2002 pursuant to s.46PP of the HREOC Act. This decisions I shall refer to as “the injunction determination”. In his Reasons for Judgment, McInnis FM explained that there was a limitation to be placed upon the Court when considering Applications under the HREOC Act (rather than injunctions) which provides in s.46PO(3):
3) The unlawful discrimination alleged in the Application: (a) Must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) Act, omissions or practices that were the subject of the terminated complaint.
Hence, he pointed out that there is a limitation to be placed upon the Court not to entertain Applications which are not the same or the same in substance as the unlawful discrimination which was the subject of the terminated complaint. This must be considered carefully, in the context of the powers of the Court under s.46PP to grant injunctions. Having considered the complaints, he said, in paragraph 28:
…when the issue was before the Supreme Court of Victoria, it seemed to me that a large portion of the complaints, which form the contents of the letters to which I have referred, were indeed dealt with by the Supreme Court of Victoria in dismissing the Application's originating motion to review the decisions made there by the Respondent.
Then at paragraph 29:
However, I do note that by counsel of the Applicant to consider the later correspondence which clearly does raise a separate complaint concerning what is alleged to be the potential inability of the Applicant to attend the rehabilitation course at Carlton.
McInnis FM dismissed the Application for an Injunction pursuant to s.46PP. He did so for a number reasons including:
·The interim order sought was not one which could possibly be regarded as an order in circumstances in which it is necessary to ensure the effective exercise of the powers of the Commission or jurisdiction of the Court.
·Rather the Orders sought effectively pre-empt and seek to interfere with the proper management of the prison.
·That part of the Applicant's complaint which related to his attendance at the rehabilitation centre at Carlton was a matter which could be dealt with by the authorities, and he was not satisfied that there was an arguable case that discrimination had occurred in relation to the attendance at the rehabilitation centre.
·The date of termination of the complaints is uncertain and it could not be said that the injunction would be of short-term duration.
On 15 May 2002 the Applicant filed a further Application under the HREOC Act seeking another interim injunction pursuant to s.46PP of the HREOC Act. His Application referred to a complaint lodged by him on 10 October 2001 in relation to his attendance at the Sex Offenders Program at Ararat Prison. This Application was brought by him against the State of Victoria and the Adult Parole Board. The Application was made to the Federal Court of Australia on 16 May 2002, was transferred from Weinberg J to the Federal Magistrates Court. This Application and the remitted proceedings came before McInnis FM on 17 May 2002. The Application was adjourned to a date to be fixed and costs were reserved.
The Application for an interim injunction was not pursued, and it would seem obvious that this is because the complaint to the Commission of 12 October 2001 upon which the interim injunction was sought, was one of the complaints dealt with by McInnis FM in the injunction determination on 13 February 2002.
File number MZ 476 of 2002 remains on foot and it would appear to me, subject to what counsel may say, that I should now dismiss it formally.
During the course of the mention before McInnis FM on 17 May it was foreshadowed by the Applicants that the numerous complaints before the Commission (the subject of the injunction determination) would in due course, be terminated and give rise to the Applicant's right to bring proceedings in the Federal Magistrate's Court or the Federal Court arising from those complaints.
The genesis of the present application
When the remitted proceeding was given a hearing date on 29 May 2002 the other matters the Applicant then had before the HREOC had been heard on 28 May and it was the view of both the Applicant and Respondent that the Application would be made to the Federal Magistrate's Court under the HREOC Act and that all matters could be dealt with together as they concerned related matters in the sense that, (a) the alleged discrimination has occurred during the Applicant's imprisonment and, (b) matters all concern alleged discrimination under the Disability Discrimination Act.
Consequently, on 29 May, in the knowledge that the Applicant's further complaints had been terminated by the Human Rights and Equal Opportunity Commission on 28 May, a timetable, which both the Applicant and the Respondent then thought was acceptable, was set. Order 1 of the Orders made by me on 29 May were in the following terms:
The Applicant file and Application in relation to the complaints terminated by the Human Rights and Equal Opportunity Commission on 28 May 2002 on or before the 7th day of June 2002.
Paragraph 2 said:
Upon filing the said Application, the matter be listed for hearing together with proceeding MZ398 of 2002 (sic) between James Ernest Rainsford and the State of Victoria.
The balance of the Orders provided for a timetable consistent with the hearing date. Order 9 provided that the Applications be listed for hearing on 13 August 2002 with an estimated hearing time of three to four days. This timetable provided the Applicant with less time than HREOC Act which, in s.46PO(2) provides:
(2) The Application must be made within 28 days after the date of issue of the Notice under sub-s.46PH(2) or within such further time as the Court concerned allows.
In this case in an effort to accede to the desire of both parties to have all matters heard together, the time for filing was less than that provided in the Act.
However, the Applicant did not file the Application by 7 June. Nor did he file the Application within the 28 days permitted by the HREOC Act. The Application was ultimately filed on 29 August 2002, three months after the termination of the complaint and two months after the statutory time had expired.
Extension of time – relevant principles
In Phillips v Australian Girls' Choir & Anor (2001) FMCA 109, McInnis FM considered the principles which would govern the discretion provided by s.46PO(2) of the HREOC Act. He compared s.46PO(2) of the HREOC Act with s.11 of the Administrative Decisions (Judicial Review) Act 1997 and found it appropriate to look at the authorities dealing with s.11 of the ADJR Act in order to obtain some assistance in interpretation of the Court's powers pursuant to s.46PO(2) of the HREOC Act. He considered that in Human Rights Applications there may well be different considerations bearing in mind the remedial and/or beneficial nature of the Human Rights Legislation which:
Unlike ADJR Applications which goes beyond the new Judicial Review and Administrative Decisions and deals instead with fundamental human rights.
He also pointed out that in most of the claims made pursuant to the HREOC Act:
It is unlikely that an argument would be entertained that strict adherence to the time limit should be observed in order to assist the proper administration of government departments.
He also said:
Further, the wider issue of the degree of certainty in time limits for the public benefit may also have less weight in relation to claims made under the Human Rights Legislation compared with those claims made for judicial review of administrative actions.
Nevertheless he considered it appropriate to consider the principles applied by Courts in considering the exercise of discretion to allow further periods of time within which an Applicant must lodge an Application in ADJR cases. Having considered a number of authorities, he set out what he considered to form the relevant principles in relation to the exercise of the Court's discretion when considering an extension of time in Human Rights Applications as follows:
(1)There is no onus of proof upon an Applicant for an extension of time though an Application has to be made. Special circumstances need not be shown, but the Court will not grant the Application unless positively satisfied it is proper to do so. The 'prescribed period' of 28 days is not to be ignored (Lilkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).
(2)It is a prima facie rule that the proceedings commenced outside the proscribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a precondition for success in an Application for extension of time that an acceptable explanation for delay must be given. It is expected that such an explanation will normally be given as relevant matter to be considered, even though there is no rule that such an Application is an essential precondition (Comcare v A'Hearn (1993) 45 FCR 441and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).
(3)Action taken by the Applicant other than by making an Application to the Court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the Applicant has rested on his rights and whether the Respondent was entitled regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287)
(4)Any prejudice to the Respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the granting an extension (See Doyle at p.287).
(5)The mere absence of prejudice is not enough to justify the granting of an extension (See Lucic at p.416).
(6)The merits of the substantial Application are properly to be taken into account in considering whether an extension of time should be granted (See Lucic at p.417).
(7)Considerations of fairness as between the Applicant and other persons otherwise in a like position are relevant to the manner of exercise of the Court's discretion (Wedesweiller v Cole (1983) 47 ALR 528).
McInnis FM went on to add that the principles involved in the extension of time and ADJR Applications differ from those that are found in Human Rights Applications to the extent that the issue of public administration is less important in a Human Rights Application than it may be in an ADJR Application. In considering the merits of the Application he said:
The Applicants could demonstrate an arguable case. It is not necessary to demonstrate a strongly arguable case. If it can be demonstrated that the case is totally without merit, vexatious and/or an abuse of process then an extension of time should not be granted as to do so would be to unnecessarily prolong the judicial process and take up valuable Court time.
I agree with the relevant principles for the exercise and discretion set out by McInnis FM in Philips case and propose to apply them in this case. Counsel for the Applicant submitted that they were the relevant principles which I should consider.
Identification of the applicant's allegations of discrimination
The Application filed by the Applicant on 29 August 2002 seeks Orders:
(1)Declaration or finding that the Respondent's conduct contravened Disability Discrimination 1992, as alleged.
(2)Compensation and costs.
(3)Order that the Applicant's back injury should be accommodated by the Respondent and its agents in all future dealings with the Applicant.
The information sheet (which the Federal Magistrate's Court rules require to be filed in an unlawful discrimination case) filed by the Applicant does not set out components of the Act that are relevant, nor did the Applicant then file an Affidavit. He relied upon an Affidavit from Mr Gray, the barrister who appeared on his behalf, and the Notice of Termination from the Human Rights and Equal Opportunity Commission dated 28 May 2002. Thus the allegations of discrimination must be discerned from the Notice of Termination.
There are four allegations in total. They are as follows.
i)The first allegation on 12 September 2001, the Applicant was placed in a Sentence Management Unit at Charlotte for nine days because he allegedly breached prison regulations. He claimed that there was only a toilet, a sink and a bed in the unit and the bed was six inches from the ground. He claimed that the Respondents refused to accommodate his disability whilst he was in this unit and as a result he had difficulties getting to the bed or sitting down. This complaint was made in letters dated 14 and 24 September 2001 to HREOC and on 30 September 2001 he wrote to HREOC advising that he could not do the exercises recommended by his back specialist whilst in this unit. He therefore alleged that the Respondents indirectly discriminated against him on the basis of his disability by imposing a requirement or condition that he be able to move and bend freely while in this unit. He claims that he cannot use this service or facility on the same terms as prisoners without a back injury;
ii)The second allegation on 5 November 2001, the Applicant advised HREOC that he had been returned to his normal cell in Port Philip Prison but was locked in for 23 hours a day, seven days a week. He claimed that for the reasons set out in the first allegation, he could not do the back exercises recommended by his specialist;
iii)The third allegation on 6 November 2001 the Applicant advised HREOC that he had not been granted leave to attend the Sex Offender Rehabilitation Program in Carlton while he was located in the Port Philip Prison. His request was denied by the State of Victoria Parole Board and the Office of the Correctional Services Commissioner and he was required to do the program in Ararat Prison. He claimed that he could not travel to Ararat Prison because of his back injury and that that affected his eligibility for parole. He claimed that he could not comply with the condition or requirement that he travel to Ararat Prison to do the rehabilitation program and be eligible for parole because of his disability. He claimed that the three hour drive would aggravate his back injury. He claimed that other prisoners without his disability could reasonably travel to Ararat for rehabilitation;
iv)The fourth allegation on 10 April 2002, the Applicant advised HREOC that he had been discriminated against in relation to access to transport at Ararat Prison which is operated and managed by Group 4 Correctional Services on behalf of the State of Victoria (Office of the Correctional Services Commission).
He claimed that at Ararat Prison he was required to travel in a body belt for visits to Ararat Hospital. He claimed this restricted his movement and aggravated his back injury and that prisoners without a back injury were not affected in this way. He claimed that at Port Philip Prison he was able to travel with handcuffs;
(iv)A further allegation was dealt with by HREOC and this matter was also terminated on 28 May 2002.
The further allegation
The Applicant alleges he was victimised because he lodged a complaint of disability discrimination with the Human Rights and Equal Opportunity Commission. He claimed that because he lodged the complaint he was not given a lower security "C" classification. He advised that he was not aware of any other reasons why he would be denied a lower classification and because his classification has not been lowered, he has not been able to complete the steps necessary to be eligible for parole.
These are the complaints that I discern from the two Notices of Termination from the Human Rights and Equal Opportunity Commission which form the subject matter of the Application in respect of which an extension of time is now sought. One matter was conceded by the Respondent at the commencement of argument. The concession was that the Applicant has a disability, which is a back injury, as a result of prolapsed disc for which he has had surgery. He has medical advice that he has to manage the condition with restrictions as to lifting and bending and is required to do regular exercises.
The Respondent relied upon an Affidavit of Shane Francis Kelly who is the Acting Director Sentence Management Unit Office of the Correctional Services Commissioner and Norman Leslie Wills, the secretary of the Adult Parole Board. The Applicant relied upon an Affidavit of James Donald Grey, his barrister. Both parties agreed that the matter should proceed on the material before the Court.
Contentions of the parties
The Applicant contended that he had an acceptable explanation for the delay. In this respect the relied upon the Affidavit of James Donald Gray. The contents of that Affidavit were not the subject of any dispute.
In summary, he deposed to the following:
b)Mr Gray first came to act for the Applicant in December 2001 or January 2002 in relation to his appeal against the decision of McInnis FM to the Full Federal Court. Ultimately that appeal did not proceed other than to have Orders by consent made remitting the matter because the point was resolved by the enactment of legislation with retrospective effect;
c)Upon the matter coming back before the Federal Magistrate's Court he appeared without an instructing solicitor on 17 May 2002 before McInnis FM. He indicated to the Court on that occasion his unease at appearing without an instructing solicitor;
d)On 29 May 2002 in a telephone mention for directions, he appeared for the Applicant;
e)He received a copy of the Orders made on 29 May on 13 June. He was unable to procure an instructing solicitor to act on a pro bono basis and indicated that the ethics of the Victorian Bar preclude him from doing the work ordinarily undertaken by a solicitor unless an exemption has been given;
f)Further, that any attempt to promote settlement discussions following the directions hearing on 29 May failed;
g)On 20 June he phoned the Respondent’s solicitor. He asserts that he left phone messages which were unanswered and at the same time continued to make enquiries to procure an instructing solicitor with no success. In July he sent a letter to the Victorian Government solicitor indicating that he had been unable to obtain a response from them in relation to a change in the timetable set by the Court and alerting him to the problems he was having in obtaining an instructing solicitor. He asked that they agree to vacating the hearing date and making further directions. The Victorian Government solicitors responded by indicating that they had no records of phone calls but, more importantly, that the Application had not been filed in accordance with the Orders made by me and that, further, the 28 day period provided for the filing of that Application under the HREOC Act had expired and that their clients were not prepared to agree to an extension of time. This decision was conveyed by a letter dated 1 August 2002. At that time the time for the 28 day period for filing had elapsed;
h)On 13 August he wrote to the Victorian Bar Ethics Committee requesting permission to represent the Applicant without an instructing solicitor. That consent was finally given.
The Applicant contended that in relation to the reason for the delay the Court should find that the principles should be relaxed slightly because this was not an outright new claim and, in a sense, associated with the original claim which is still before the Court. It was also the subject of the injunction determination. It was further contended the Respondent would not be taken by surprise because of the HREOC proceeding, being familiar with the termination of the complaint since 28 May. It was contended that there would be particular disadvantage to the Applicant if he were not granted leave because he was relying on the fact that representation would be available to him. Whilst it was accepted that in the past the Applicant had conducted matters on his own, on this occasion his expectation was that counsel would be able to represent him and therefore he had left the filing of an Application to counsel. It was further contended there would be no prejudice to the Respondent occasioned by the delay in filing the Application.
The Respondent contended that the Court should treat the arguments of the Applicant with some scepticism. The Applicant's capacity to file material in his own right had been demonstrated and he was well aware within the 28 day period that he would not be able to file in the appropriate timeframe and should have then made an Application. However, It was not asserted that there was any prejudice to the Respondent.
Whilst I accept that an explanation for the delay is not an essential precondition to success in an Application for an extension of time, I am satisfied that in this case there is a reasonable explanation for the delay. Although the Applicant has demonstrated a capacity to file material himself in related matters, and particularly the HREOC, and indeed represented himself before McInnis FM, I accept that in relation to these particular proceedings a belief on his part that his representation (which was on a pro bono basis) would continue and that counsel would be responsible for filing material was reasonable. This is emphasised, in my view, by the fact that at the telephone mention on 29 May when Orders were made for filing material, the Applicant was represented by Mr Gray. Whilst some of the steps taken by counsel, such as obtaining the exemption from the Victorian Bar to having an instructing solicitor, could perhaps have been done more promptly, in the end I am satisfied that the main reason for the delay was the uncertainty of the Applicant's barrister as to whether he would be able to continue to act for him without an instructing solicitor and the reliance of the Applicant upon Mr Grey to file the necessary Application within the time specified in accordance with the Orders of 29 May or, indeed, in the further time specified in s.46PO(2) of the HREOC Act.
There is no evidence of any prejudice to the Respondent occasioned by the delay and I accept that the Respondent, who are the Respondent to the complaint to the HREOC Commission, was aware of the complaints which were terminated by the Commission on 28 May 2002.
Merits of the application
In short, the Applicant contends that the matters raised in each of his allegations provide an arguable case which can only be resolved at a hearing.
I will consider the complaints individually.
The third allegation - It is pertinent to consider the evidence placed before the Court, which is not the subject of dispute, on behalf of the Respondent. Mr Wills, the secretary of the Adult Parole Board, deposed to the following:
(a)The Board has a file on the Applicant, Mr Rainsford, which indicates that his present sentence expires on 21 March 2004. He became eligible to be considered for release on parole from
19 June 2002. He has not yet been released on parole.(b)The Board's file on Mr Rainsford includes records of his conviction. Now shown to be marked NLW-1 is a true copy of those records. Those records indicate that Mr Rainsford has an extensive criminal history. In addition to numerous other convictions, he was found guilty on 7 March 1974 for carnal knowledge, on 30 March 1985 for wilful and obscene exposure, on 30 June 1986 of three counts of rape, and on 11 January 1993, wilful and obscene exposure. The sentence currently being served by Mr Rainsford is in respect to the conviction on 9 April 1999 of assault with intent to rape and two counts of wilful and obscene exposure.
The file also includes the judge's sentencing, comments for the sentences imposed for rape and others on 26 June 1986.
Paragraph 11:
The Board has determined that Mr Rainsford should complete an appropriate Sex Offender Program in prison before it will order his release on parole. The issue of participation in the sex offender program, Mr Rainsford's back condition, travel between various prisons, programs available in prison and in the community, and possible counselling through the Family Court, have been common issues discussed at the various interviews with Mr Rainsford. The Board's decisions have been communicated to Mr Rainsford.
Paragraph 12:
It should be noted that the Board does not itself run or have control over the running of the Sex Offenders Program. Likewise, the board does not have control over where those programs are conducted. Currently, the only program available for offenders in prison is the program offered at the Wimmera Treatment Unit at HM Prison Ararat. Until after his most recent interview with the Board on 15 August 2002, Mr Rainsford had declined to participate in the program at Ararat. I understand that he has now agreed to participate and is scheduled to commence the program in October 2002.
Paragraph 13:
Mr Rainsford had indicated a preference to undergo an alternative program available at the Carlton Community Correction Services. That program is designed for offenders living in the community, on community dispositions or parole. The Board's position has been that it would be far more sensible to require Mr Rainsford to complete an appropriate Sex Offenders Program whilst in custody before being released on parole. The Board's reason for taking this position includes the sentencing Judge's comments, which clearly imply that treatment should occur before release, and Mr Rainsford's criminal history, it strongly suggests that he represents a risk to the community unless he undergo some treatment before release. Further, the program offered at Ararat is more intensive in terms of the number of hours of participation than the programs available in the community.
Paragraph 14:
Even if Mr Rainsford completed a program inside prison, it is likely that his parole conditions would require him to participate in a further Sex Offender Program in the community, largely relating to relapse prevention. It is usual in cases such as
Mr Rainsford for the Board to impose parole conditions of this kind. Participation in the program in the community is seen by the Board as a possible supplement to undergoing the program offered at Ararat, and not as an acceptable alternative in
Mr Rainsford's case.
Paragraph 15:
Mr Rainsford has claimed to the Board that he would receive the appropriate counselling or treatment from Family Court counsellors, if he was released. However, it appeared to the Board that any such counselling or treatment is more likely to be focussed on the question of his contact with his children rather than treatment specifically designed to prevent recurrence of his offending behaviour.
Paragraph 16:
The Board is able to review its decisions at any time, and commonly makes a number of decisions at different stages to a prisoner's sentence. The Board has decided to interview
Mr Rainsford again in March 2003 when any further relevant information or material will be considered at that stage.
The Respondent contends that it is not entirely clear what is complained of by the Applicant. In the Applicant's letter to the HREOC of 6 November 2001 he said:
I've been advised by the Adult Parole Board and the Office of the Correctional Services Commissioner that I need to take part in a variety of rehabilitation needs, the only place that I can take part in these programs are via leave to attend at 11-15 Argyle Place, South Carlton, Vic, 3053, DX211376 - - -
I have applied for leave, here at the prison to attend at the above address to participate in these programs, the only other place these programs are offered are at Ararat Prison, which is a three hour drive away, which due to disc prolapses and an operation on my back, I cannot attend which leaves only the above. The director here at the prison has the power to grant my leave to attend the above, under an instrument of authorisation which is delegated to Kevin Anderson (Director of Port Philip Prison) s.57(1)(a, )(c ), (d), (e), (f) Corrections Act (1986) and R42, Corrections Regulations (1998) and to refuse my request I seek as disability discrimination.
Some history of the background to the disc complaint is set out in the Affidavit of Shane Francis Kelly. From his Affidavit sworn 29 June, it is apparent that in August 2000, his Review and Assessment Committee recommended that the Applicant be reclassified to Ararat Prison where he would be further assessed for a minimum security rating. The classification was not approved at the time due to prior allegations of assault at Ararat. Those allegations were the subject of a Governor's hearing in June 1999, in proceedings in the Supreme Court of Victoria that were heard in April 2000 by Eames J in Rainsford v Governor of HM Prison Ararat (2000) VFC 141. It is apparent from the decision that the Applicant is alleged to have assaulted another prisoner, an allegation admitted by the Applicant in the course of the Governor's hearing on 25 June 1999.
The Applicant was due for a review by his local Review and Assessment Committee September 2001. Further management issues arose in relation to him in September 2001 when it was alleged he had written a letter to a female prison officer at Port Philip Prison indicating that he was sexually infatuated with her. The allegations were also the subject of Supreme Court proceedings and a judgment of Beach J in Rainsford v Director of the Port Philip Prison (2001) (VFC 440).
The Applicant was transferred from Port Philip Prison to Ararat Prison on about 3 April 2002. At that time he had a medium security or "B" rating. The question of whether he should be given a "C" rating was considered but rejected. On 15 May 2002 the Applicant was seen at the Ararat Prison by the Sentence Management Panel. It was not until after his most recent interview with the Adult Parole Board on
15 August 2002, the Applicant indicated that he was willing to participate in the Sex Offender Program in Ararat Prison. He is scheduled to begin the Sex Offender Program in October 2002. He was subsequently given a "C" rating.
The legislation
The Applicant claims discrimination based on s.5 of the Disability Discrimination Act. Section 5 says as follows:
(1) For the purposes of this Act, a person("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or treated person without the disability.
(2) For the purposes of sub-s.(1) the circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with the disability.
Section 6 of the Act which deals with indirect Disability Discrimination is as follows:
For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which is a substantially higher proportion of persons without the disability comply or are able to comply;
(b) which is not reasonable having regard to the circumstances of the case;
(c) with which the aggrieved person does not or is not able to comply.
Section 10 of the Act says:
If:
(a) an act is done for two or more reasons; and
(b) one of the reasons is the disability of the person (whether or not he is has a dominant or a substantial reason for doing the act);
Then, for the purposes of this act, the act is taken to be done for that reason.
It appears, because it is not specifically stated in the Application that the Applicant relies upon s.24 of the Disability Discrimination Act, that section says as follows:
24(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground that the other person's disability or a disability of any of that other persons' associates;
(a)By refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b)In the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)In the manner in which the first person provides the other person with those goods or services or makes those facilities available to the other person.
Section 24(2):
This section does not render it unlawful to discriminate against a person on the ground of the person's disability yet the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provided the goods or services or makes the facilities available.
Although I am considering in this context whether or not the Applicant has an arguable case, I have regard to the principles which have been referred to in a number of authorities in relation to summary dismissal. In that context, the test to be applied has been variously expressed but referred to by Barwick CJ in his judgment in General Steel Industries Inc v Commission of the Railways New South Wales (1964) 112 CLR 125 at 129:
… so obviously untenable that it cannot possibly succeed;
… manifestly groundless;
… so manifestly faulty that it did not admit an argument;
… discloses a case which the Court is satisfied cannot succeed;
… under no possibility can there be a good cause of action.
In an Application for Summary Judgment, the issue to be considered by the Court is not whether the Applicant would probably succeed in his action, but whether the material before the Court is such that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail (See decision of the High Court in Webster v Lampard (1993) 177 CLR 598 at 682.
In considering the merits of this case on an Application to extend the time in which to apply, I have obligations to other litigants in the Court not to permit the Court's time to be taken up with matters in which there is not an arguable case or, to put it another way, is apparent must fail.
Third allegation
I find that the Applicant has no arguable case in relation to the third allegation for the following reasons:
a)While not specifically stated by the Applicant (because no sections relied upon were identified as required), the only basis upon which such a claim could be brought under the Disability Discrimination Act is s.24 to which I have referred. Section 24 provides that it is unlawful to discriminate on the ground of disability in the manner of provision of goods or services or making facilities available.
When analysed, the complaint here is that the denial of a request to attend to a Sex Offender Rehabilitation Program in Carlton by the State Adult Parole Board and requirement that the Applicant do the program in Ararat Prison, was discriminatory because the particular disability prevented the Applicant from travelling to Ararat Prison. In addition, the fact that other prisoners without the disability could reasonably travel to Ararat for rehabilitation. It is clear in my view that the rehabilitation program being offered could not be said to be goods or services. The question is whether it is a "facility" made available.
b)In my view the Parole Board and Office of Correctional Services in the case of the Sex Offender Program in Ararat is not a provider of goods or services or a facility in the sense referred to in s.24. In fact, the provision of a Sex Offender Program for prisoners could not in any sense be said to be "facility". In this case it is a requirement of his parole. For the reasons stated by Mr Wills, the secretary of the Parole Board, his attendance at this particular course was considered by the Parole Board to be a pre-requisite to his obtaining parole. On that basis, in my view, he has no arguable case in relation to the third allegation.
However, even if I am wrong in my analysis of s.24, there are other reasons why the Applicants case is without merit. It is clear from the Affidavit of Mr Wills, secretary of the Adult Parole Board, that in considering whether the Applicant should complete an appropriate Sex Offender Program in prison, the Board took into account the issue of participation in the Sex Offender Program, his back condition, travel between various prisons, programs available in the prison, and the community and possible counselling through the Family Court. It is also clear that the only program available for offenders in prison was the program offered at Ararat Prison. The Parole Board determined that it would be inappropriate for the Applicant to attend a program designed for offenders living in the community and that it would be more responsible to require him to complete the program whilst in custody. In coming to this conclusion the Board took into account the Sentencing Judge's comments and the Applicant's criminal history.
I cannot see any basis upon which the Applicant could succeed in an argument that his disability was one of the reasons he could not do the course at Ararat Prison. First, it is clear the Adult Parole Board required him to complete a Sex Offenders Program in prison and this is the only one available The trip is a three hour one, and provided he was given the opportunity to stretch his back at various times, there is no indication that he could not travel to Ararat. Indeed, I cannot overlook the fact that he is presently in Ararat Prison and has clearly travelled there from Port Philip Prison. He makes no allegation that the opportunity to stretch his back during the three hour period would not be available to him. In other words, he makes no allegation that transport which took account of his disability was not available to him, and for this reason as well, in my view, his claim is not arguable.
Thirdly, I also take into account the public policy implications in this case of interfering in the proper deliberations of the Parole Board in relation to a prisoner. In the Supreme Court of Victoria, in Rainsford v Director of Port Philip Prison & Anor, Beach J, in a judgment delivered on 23 November 2001, referred to Fyfe in the State of South Australia (2000) SASC 84 (Unreported 31 March 2000) and quoted the following paragraph:
There can be no question that it is the duty of this Court to conduct a careful review and to closely scrutinise the reasons advanced in the decision. Prisoners are in a position of particular disadvantage. (**10.17) by prison authorities is unacceptable and can often have serious ramifications. At the same time, however, the limits of the Court's jurisdiction must be carefully observed and the Court must avoid becoming enmeshed in the merits of a particular decision. The management of prisons is a particularly difficult and sensitive task involving complex practical considerations and security implications with which the Court is not familiar and which it is difficult for the Court to understand or fully appreciate in the comfort of the Court surroundings.
The fact that the Parole Board have now dealt with this particular issue and that the Applicant is at Ararat Prison and apparently has agreed to attend the program, in my view it would constitute an abuse of process for this issue to be agitated by him under the Disability Discrimination Act and inappropriate for the Court to intervene in the decisions of the Parole Board.
When McInnis FM considered this issue in the context of whether an interim injunction should be granted to the Applicant, in refusing to grant an injunction, he stated that if he made Orders in relation to the rehabilitation and parole they would effectively preempt and seek to interfere with the proper management of the prison, whether it be by way of Governor's hearing or whether it be the hearing of the Parole Board. He formed the view that the matter could be more effectively and conveniently dealt with by another statutory authority, the Parole Board. Whilst he was considering an interim injunction in which different considerations apply, in my view his comments are also pertinent to this proceeding.
Fourth allegation
The fourth allegation is the allegation that the Applicant, at Ararat Prison, was required to travel in a body belt for visits to Ararat Hospital which he asserts restricts his movement and aggravates his back injury, whereas at Port Philip Prison he was able to travel with handcuffs. I find that there is no arguable case in relation to this allegation. I refer to the reasons given above and adopted in relation to this allegation. This is an issue relating to the management of the prison and relates to security requirements for the transport of prisoners. In neither case is there any assertion that the Applicant is treated less favourably than persons without a disability.
In order to bring himself within s.6 which is Indirect Disability Discrimination, the Applicant needs to establish that he has been discriminated against on the ground of his disability by being required
to comply with the requirement or condition
(a)with which a substantially proportion of persons without a disability comply or able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
Having regard to the nature of the Applicant's sentence and his imprisonment and the requirements of the Adult Parole Board and the Correctional Commissioner, it is impossible to see, in the light of this allegation, how the Applicant could establish that having regard to the circumstances of the case, the requirements placed upon him were unreasonable. In my view, the quote by Beach J from Fyfe in South Australia is particularly germane.
The management of prisons is a particularly difficult and sensitive task involving complex practical considerations and security implications with which the Court is not familiar and which it is difficult for the Court to understand or fully appreciate from the comfort of Court surroundings.
The further complaint
The Applicant alleges that the Respondent victimised him because he lodged a complaint of Disability Discrimination of Human Rights in the Equal Opportunity Commission. He claimed that because he had lodged the complaint, he was given as low a security "C" classification and he alleged that he was not aware of the reasons why he would be denied a lower classification and because the classification has been lowered he has not able to complete the necessary steps to be eligible for parole.
Victimisation and offence in the division four of the Disability Discrimination Act 1992. In the context of this case:
a person is taken to commit an act of victimisation against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
(a)has made or proposes to make a complaint under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or
(b)has brought, or proposes to bring proceedings under this Act or the Human Rights and Equal Opportunity Commission Act 1986 against any person.
The Applicant asserts that as a result of his not being given a lower security "C" classification and his not being aware of any other reasons why he would be denied a classification, he is being victimised as a result of his Applications to HREOC.
The issue of the security rating is dealt with in the Affidavit if Shane Francis Kelly. Mr Kelly, in the Affidavit, indicates that in August 2000 the Review and Assessment Committee recommended that the Applicant be reclassified to Ararat Prison where he would be further assessed for a minimum security rating. However, the recommendation was not approved at that time due to prior allegations of assault at Ararat. Those allegations were the subject of the Governor's hearing in June 1999 and proceedings in the Supreme Court of Victoria that were heard in April 2000. Those proceedings culminated in the judgment of Eames J in Rainsford v Governor of HM Prison Ararat (2000) VSC 141. It is apparent from Eames J decision that Mr Rainsford was alleged to have assaulted another prison, an allegation admitted by Mr Rainsford in the course of the Governor's hearing on 25 June 1999.
The Applicant was due for a review by his local Review and Assessment Committee in September 2001. Further management issues arose in relation to him in September 2001, when he was alleged to have written a letter to a female prison officer at Port Philip Prison, indicating that he was sexually infatuated with her. The allegations were also the subject of the Supreme Court proceeding. These proceedings were before Beach J in Rainsford v the Director of the Port Philip Prison (2001) VSC 440.
There was a possibility of the Applicant's transfer to Ararat Prison from Port Philip Prison once various Court matters were finalised and providing he was medically fit to transfer. In fact he was transferred from Port Philip Prison to Ararat Prison on about 3 April 2002. At that time he had a medium security or "B" rating.
On facts taken into account in considering whether to give a "C" rating to a prisoner convicted of a sex offence is whether the prisoner is prepared to address his offending behaviour through appropriate and therapeutic intervention. After his transfer to Ararat Prison in April 2002, the Applicant was unwilling to participate in the Sex Offender Program offered at the Wimmera Treatment Unit at Ararat Prison. During his intake meeting on 15 April 2002, the Applicant advised he was only willing to do programs if he could complete them by his earliest release dated 19 June 2002. It would not have been possible for him to complete the Sex Offender Program within that time.
On 16 April 2002 he indicated that he did not intend to participate in group treatment in prison but may be interested in treatment on release from prison. On 10 May 2002 he informed the local Review and Assessment Committee that he was not willing to participate in the Sex Offender Program. His unwillingness to participate in the program was an obstacle for him obtaining a "C" rating.
On 2 May 2002 he was seen at Ararat Prison by the Sentence Management Panel. He claimed to have been discriminated against because he should have been moved to Ararat sooner to participate in Sex Offender Program. He said that he wanted to transfer to another prison and threatened to take legal action. He walked out of the meeting before the discussion had been concluded.
On 26 June Mr Kelly and the Director of Sentence Management and the Office of the Correctional Services Commissioner wrote to the Applicant to clarify what was required in order for him to obtain a "C" rating. He advised that if behavioural reports from Ararat Prison were positive, in his view an Application to review the security rating would be viewed favourably should he indicate his consent to participate in the programs and thereby demonstrate his willingness to address issues associated with his offending. It was only after his most recent interview with the Adult Parole Board on 15 August 2002 that he indicated he was willing to participate in the Sex Offender Program in the Ararat Prison. He formally applied for reclassification on 21 August 2002. The Review and Assessment Committee at Ararat recommended lowering his security rating to "C1", and this recommendation was accepted by the Sentence Management Panel on 26 August 2002. Mr Kelly said he was not given a "C" security rating before August 2002 to give consideration to the nature of the offences for which he had been imprisoned, management issues that had arisen during his term of imprisonment, his resistance to participate in the Sex Offender Program at Ararat Prison.
The Applicant's case is based solely on the fact that there was no other possible explanation for his failing to obtain a "C" rating other than victimisation. This is patently not the case. There are clearly many explanations to do with his behaviour and prison management issues which are pertinent to the "C" classification. I am satisfied that no arguable case has been made out by the Applicant in relation to victimisation. I also take into account that at least two of the factors relating to his "C" classification have been the subject of him of action to the Supreme Court and it would, in my view, in addition constitute an abuse of process for the same issues to be agitated a third time in a different Court albeit under the guise of a different piece of legislation.
Second allegation
The second allegation involves the Applicant alleging in a letter dated 6 October 2001, that he was returned to his normal cell at Port Philip Prison but locked in for 23 hours seven days a week and could not do the back exercises recommended by his specialist. This in fact appears to be the subject of two allegations; that of victimisation contained in his letter of 5 November and that of Disability Discrimination in a letter dated 24 September 2001.
As far as victimisation is concerned, the Applicant concedes that he was locked in a cell for acting in a threatening way to another prisoner. He asserts he has been victimised for taking legal action on 3 October. It is unclear what legal action was taken on 3 October as it does not form part of a complaint to HREOC. Furthermore, there is no allegation that the officer who locked him in the cell was aware of his complaints to the Commission. He concedes in his own letter that the basis for this was threatening actions made to another prisoner. In my view, the lack of particularity in assertions in his letter make his case unarguable. In any event, any behavioural issues involving the Applicant might be impossible for him to establish that being locked in his cell was as a result of victimisation rather than as a result of issues with his behaviour. I again refer to the quote of Beach J from Fyfe in the State of South Australia in relation to the management of prisons and security implications involved therein.
First allegation
The first allegation is constituted by letters of 14 and 22 September 2001 in which the Applicant alleges against Port Philip Prison which is operated and managed by Group 4 Correctional Facilities on behalf of the State of Victoria, that on 12 September 2001 he was placed in a Sentence Management Unit at Charlotte for nine days because he allegedly breached a prison regulation. He claims that there is only a toilet, a sink and a bed in the unit and the bed is six inches from the ground. He claims the Respondents refused to accommodate his disability whilst he was in this unit and as a result he had difficulties getting to the bed or sitting down.
On 30 September 2001 he wrote to HREOC to advise that he also found he could not do the exercises recommended by his back specialist whilst in this unit. He alleged that the Respondents indirectly discriminated against him on the basis of his disability by imposing a requirement or condition that he be able to move and bend freely while in the unit. He claims that he cannot use this service or facility on the same terms as prisoners without a back injury. The allegation formed the basis for the Applicant's Application to McInnis FM on
8 November 2001 for an interim injunction pursuant to s.46PP of the HREOC Act.
In paragraph 12, McInnis FM refers to the letters which form the basis of this complaint, namely a letter of 14 September 2001, a letter of
24 September 2001. In the proceedings for an injunction, the Applicant named the Group 4 Correctional Services as the Respondent. No objection was ever taken to the nominated Respondent. There is no explanation as to why the proceedings for an interim injunction were brought against Group 4 Correctional Services whereas the present Application for substantive relief after determination is complained to the Human Rights Commission arising out of the same matters should name the Respondent as the State of Victoria. The Respondent contends that the Applicant has no arguable case because he has brought his Application against the wrong Respondent.
The Respondent contends that in relation to complaints one and two, each involves allegations against the staff of Port Philip Prison. The Respondent contends that the staff are not employees of the State of Victoria and that there is no contractual relationship between the State and Group 4 Correctional Services. The Respondent contends that there are three privately operated prisons in Victoria and that Port Philip Prison is operated by Group 4 Correctional Services. The Governor of the prison is an employee of Group 4 Correctional Services and is not an employee of the State of Victoria, and has no direct link to the State of Victoria.
The Applicant contends that pursuant to s.8A of the Corrections Act, the Commission of Correctional Services is an employee of the State of Victoria; further that s.4 of the Corrections Act provides that a person is deemed to be in the custody of the Secretary of the Correctional Services Department which affects an agency relationship between the operator of the prison and the State of Victoria (in the Correctional Services Commissioner). He contends that the secretary may authorise transfers between prisons but the Governor has control of the prison and is answerable to the Commissioner. The Respondent asserts s.8A creates an office but does not affect those who operate the prison, in this case Port Philip Prison.
The complaint itself relates to the provision of a bed six inches from the ground in the Sentence Management Unit at Charlotte in which the Applicant was placed for nine days because he breached prison regulations. In particular, he complains that the bed was six inches off the ground and he explained to officers about his bad back and that as a result of his back injury he would be unable to make the bed and would have trouble getting up and down from such a low position on the bed. Since it was the only place to sit or to eat meals and write letters, and he was locked in 23 hours a day, he was discriminated against on the basis of his disability, indirectly, in that a requirement or condition was imposed upon him and that he be able to move and bend freely while in the unit and which he could not do on the same terms as other prisoners without a back injury.
This complaint is, in my view, of a different kind than the other complaints which have been raised by the Applicant and terminated by the HREOC. It is, in my view, arguable, pursuant to s.24 of the Disability Discrimination Act 1992 that in the provision of facilities the Applicant has been discriminated against. This is a matter which, in my view, is similar to the remitted proceeding. One of the Applicant's complaints is what occurred to him in Port Philip Prison, in particular he was denied the use of a trolley to bring a box with his property inside so that his property could be transported in a manner that accommodated his disability. This complaint clearly related to matters pertaining directly to the operation of the prison as does the first complaint here which concerns the facilities made available to him.
Despite the fact that the Respondent in the original proceedings, namely the State of Victoria, made an Application to wholly stay or dismiss the Application on either grounds, at no time did they raise any objection to the Respondent named therein, namely the State of Victoria or assert that it was the wrong Respondent. There is, in my view, a degree of inconsistency whereby the Respondent now submits to the Court that the Applicant's case is unarguable because he has identified the wrong Respondent.
That is not to say that the issue of who is responsible, if discrimination were to be found, is not an issue which must be determined. However, I am dealing with an application for an extension of time.
Given that the original application which appears to me to be dealing with a complaint of a similar kind (about the Port Phillip Prison) attracted no assertion that it was wrongly brought against the State of Victoria, I do not find that the Applicant's case is unarguable in relation to the first allegation on the ground that he has incorrectly brought the Application against the State of Victoria rather than Group 4 Correctional Services. There is now an issue raised as to who is responsible for unlawful discrimination, if that is proved, and the matter should, in my view, be agitated at the hearing.
The matter is not so clear that the applicants case is without merit.
Accordingly, I propose to give leave to the Applicant in the Orders that I will make to join Group 4 Correctional Services as a Respondent. Group 4 Correctional Services has already been involved as a Respondent in the earlier part of these proceedings when an injunction under s.46PP was sought. I will give the Respondent an opportunity to make submissions about whether there is any prejudice in the matter proceeding on the date now fixed for hearing in view of my decision, but subject to any submissions that may be made, I cannot immediately see that there would be any prejudice in terms of the Respondent if Group 4 Correctional Services were named as a Respondent.
I certify that the preceding One hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 20 November 2002
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