Rainsford v State Of Victoria and Anor (No.2)
[2004] FMCA 707
•19 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAINSFORD v STATE OF VICTORIA & ANOR (No.2) | [2004] FMCA 707 |
| HUMAN RIGHTS – Disability discrimination – whether applicant suffered indirect discrimination during period of incarceration – whether the respondents, when transporting the applicant between prisons and placing him in certain cell accommodation, were providing a “service” in respect of the Disability Discrimination Act – where prior to his incarceration the applicant had undergone back surgery – where applicant claimed his doctor had prescribed a rigorous exercise regime to aid his recovery and lessen the risk of relapse – where applicant did not present medical evidence to this effect – where no special arrangements were made by the respondents for transporting the applicant between prisons – where as a result of this failure the applicant claims to have suffered severe aches and pains – where applicant spent 9 days in segregation and was locked down 23 hours per day – whether if the provision of cell accommodation and transportation are services, the applicant has been discriminated against contrary to s.24 DDA – where applicant has defined the services provided by the respondents as “management and control of the prison” – whether the provision of accommodation to and the transportation of prisoners are precluded from constituting a service for the purposes of the Act given that these functions form part of the government’s statutory duty to incarcerate – whether the respondents imposed a condition or requirement on the applicant to be comfortable in his cell and in his transportation between prisons without providing the means for this to be achieved. |
Disability Discrimination Act 1992 (Cth)
Federal Magistrates Court Rules 2001
Corrections Act 1986 (VIC), ss.4, 21(1), 24
Interpretation Act 1984 (WA), s.18
Canadian Human Rights Act 1985IW v City of Perth 191 CLR 1
Attorney General (Canada) v Cumming (1980) 2FC 122
Savjani v Inland Revenue Commissioners(1981) QB 458
(1983) 2 AC 818
(1998) QB 65
11 TASR 324
(1986) EOC 92-153
(1984) EOC 92-027, 92-105
(1985) EOC 92-124
(1994) EOC 92-610
(1992) EOC 92-397
[2002] VCAT 91
(1989) 1 FC 430
(1988) 10 CHRR D/586
CHRT T.D. 6/86
(1991) 1 FC 391
CHRT T.D 3/92
(1992) 17 CHRR D/236
[1997] 1 F.C. 582
[1997] 3 F.C. 646
CHRT T.D. 2/01
CHRT TD 10/86
(1992) 173 CLR 349
123 FCR 561
R v Entry Clearance Officer; Ex parte Amin
Farah v Commissioner of Police of the Metropolis
Secretary of the Department of Justice and Industrial Relations v Anti Discrimination Commissioner
Clarkson v The Governor of the Metropolitan Reception Prison and Anor
Henderson v Victoria
Jolly v The Director General of Corrections
A Complainant and Anor v The State of Western Australia
Hobby v Executive Director of The Department of Corrective Services
Bandulla v The State of Victoria
Re Singh
Anvari v Canada
Le Deuff v Canada
Canada v Rosin
Chiang v NSERC
Menghani v Canadian Employment & Immigration Commission
Arnold v CHRC
Gonzalez v Canada
Popaleni v Canada
Hum v Royal Canadian Mounted Police
Walters v PTC
Sluggett v HREOC
| Applicant: | JAMES RAINSFORD |
| First Respondent: | STATE OF VICTORIA |
Second Respondent: | GROUP 4 CORRECTIONS SERVICES PTY LTD |
| File No: | M 869 of 2002 and MZ 590 of 2003 |
| Delivered on: | 19 October 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 26 August 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr J Gray |
| Counsel for the First Respondent: | Mr R M Niall |
| Counsel for the Second Respondent: | Ms D Mortimer, SC |
| Solicitors for the First Respondent: | Corrections Victoria |
| Solicitors for the Second Respondent: | Allens Arthur Robinson |
CORRIGENDUM
In the Reasons for Judgment of Federal Magistrate Raphael dated 19 October 2004
In the third sentence in paragraph 6 delete the quotation marks from around “there following”.
In the second sentence in paragraph 19 the phrase “on the cusp on the definition” should read “on the cusp of the definition”.
I certify that the preceding [3] paragraphs are a true copy of the Corrigendum to the Reasons for Judgment of Raphael FM
Associate:
Date: 26 October 2004
ORDERS
Application dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 869 of 2002 and MZ 590 of 2003
| JAMES RAINSFORD |
Applicant
And
| STATE OF VICTORIA |
First Respondent
| GROUP 4 CORRECTIONS SERVICES PTY LTD (ACN 050 069 255) |
Second Respondent
REASONS FOR JUDGMENT
In this matter there are two proceedings which have been dealt with and heard together. Proceeding No M753 of 2001 was a proceeding by application dated 21 May 2001 which was remitted to this court from the Full Court of the Federal Court. It became MZ753 of 2001. The complaint involved the arrangements made for the transport of Mr Rainsford between prisons. There was a further matter numbered MZ869 of 2002 which was filed in this court and that matter involved a complaint relating to the placing of Mr Rainsford in the Charlotte Management Unit of Port Philip Prison. In both cases it was alleged, in a manner that will be set out in detail later, that the respondents indirectly discriminated against Mr Rainsford contrary to the provisions of the Disability Discrimination Act 1992 (the “Act”).
The proceedings were heard by Bryant CJ, then Chief Federal Magistrate. Final submissions in the matter were provided to the court by the applicant on 16 October 2003. Unfortunately Bryant CJ was unable to complete her judgment prior to her elevation and it proved necessary to order that the matter be reheard. The appropriate certificates were given.
I arranged a directions hearing in this matter which had been transferred into my docket. After hearing from the parties I determined that pursuant to Rule 17 of the Federal Magistrates Court Rules 2001 two questions should be determined separately from the rest of the proceedings. The two questions were:
a)Whether, in relation to the transport complaint, the first respondent provided a “service” to Mr Rainsford as those words are properly construed in the Act; and whether in relation to the Charlotte complaint, the second respondent provided a service to Mr Rainsford as the word is properly construed in the Act.
b)Whether the first and second respondent each imposed a condition or requirement on Mr Rainsford of the kind identified by him.
Before these preliminary questions came on for hearing Mr Rainsford sought to amend his definition of the requirement or condition so that in relation to the Charlotte complaint:
“The discrimination alleged is that of indirect discrimination contrary to s.6 DDA insofar as the discriminator required the applicant, an aggrieved person, to comply with the requirement or condition being:
(a)To be reasonably comfortable in the cell without access to appropriate exercise facilities; or
(b)To be sufficiently comfortable in the cell without access to appropriate exercise facilities; or
(c)To maintain the state of his back without access to appropriate facilities in circumstances in which;
(d)A substantially higher proportion of persons without the disability are able to comply; and
(e)Is not reasonable having regard to the circumstances of the case.”
In respect of the transport complaint the discrimination now sought to be alleged was:
“That of indirect discrimination contrary to s.66 DDA insofar as the discriminator required the applicant, an aggrieved person, to comply with a requirement or condition being:
(a)To be reasonably comfortable in the transport vehicle without access to conditions which would protect his back from injury or;
(b)To be sufficiently comfortable in the transport vehicle without access to conditions which would protect his back from injury; or
(c)To maintain the state of this back in the transport vehicle without access to conditions which would protect his back from injury in circumstances in which;
(d)A substantially higher proportion of persons without the disability are able to comply;
(e)Is not reasonable having regard to the circumstances of the case.
Over the objections of the first and second respondents I allowed these amendments which consisted of the addition of the words “without access” and the words “there following” in each case. The matter then proceeded on the usual basis upon which separate questions are considered, that is that the evidence of the applicant was taken at its highest. It was not necessary for me to hear any further evidence but I was taken to relevant evidence by each of the parties.
The background facts
At all material times Mr Rainsford was a prisoner of the State of Victoria having been sentenced to a term of imprisonment by a court of competent jurisdiction. Pursuant to s.4 of the Corrections Act 1986 (VIC) he was deemed to be in the custody of the Secretary of the Department of Justice. In December 1996, prior to his incarceration Mr Rainsford was operated on by Dr Damien Jensen, Neurosurgeon, for a disc prolapse in the L5/S1 area. Mr Rainsford claimed that Dr Jensen had recommended to him a strenuous exercise regime for the purposes of maintaining the muscle tone in his back and as a consequence remaining as comfortable as possible for a person in his condition and lessening, so far as was possible, the risk of a subsequent prolapse. Dr Jensen was not called to give evidence at the hearing. Details of the alleged exercise regime have only been provided to the court through Mr Rainsford. The necessity for the regime has been queried by the respondent’s expert witness Dr Dorhmann.
Mr Rainsford has at all times made it clear to the prison authorities that he has suffered from a disc prolapse. He made several attendances upon doctors and received medical certificates indicating that he was not fit for work or for lifting to certain weights or bending. So far as I understand the evidence there were no specific medical recommendations relating to the provision of exercise facilities for Mr Rainsford nor to the provision of special facilities for him upon being transported from place to place. The evidence does, however, appear to corroborate Mr Rainsford’s complaints that the transport arrangements involved him being in uncomfortable vehicles for long journeys without much in the way of support so that his back was liable to jarring and he was liable to slipping around. Mr Rainsford made a number of complaints about the transport arrangements which he claimed resulted in him suffering severe pain, aching and limitation of movement following any lengthy journey.
In regard to the Charlotte complaint Mr Rainsford had been placed in a cell in the spine of the Mt Charlotte unit for reasons which he accepts were appropriate. This incarceration lasted for nine days. He claimed that during the course of this incarceration he was locked down for 23 hours per day and was unable to access any exercise facilities. He claims that his cell was not equipped with any facilities which would assist him to exercise. He was also denied access to an exercise area or gym. There is no medical evidence that in relation to this nine day period the applicant suffered any exacerbation of his back condition.
The services issue
The first preliminary question asks whether in relation to the two complaints the respondents provided a service to Mr Rainsford as that word is properly construed in the Act. The definition of services in s.4 of the Act is in the following form:
"services” includes:
(a) services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; or
(b) services relating to entertainment, recreation or refreshment; or
(c) services relating to transport or travel; or
(d) services relating to telecommunications; or
(e) services of the kind provided by the members of any profession or trade; or
(f)services of the kind provided by a government, a government authority or a local government body
The above is more a descriptive than definitive provision so that in order to answer the question it is necessary first for the applicant to clearly set out what it is in the nature of “services” he is alleging the respondent’s provided so that their conduct in providing those goods or services or making facilities available fell within s.24 of the Act which prohibits discrimination in goods, services and facilities. In his submissions Mr Rainsford argued that the services were the provision of accommodation and transport being services that were of a kind provided by a government.
In IW v City of Perth 191 CLR 1 Brennan CJ and McHugh J discussed the meaning of “services” at [11] and [12]. They refer to the wide definition in the Macquarie Dictionary and to s.18 of the Interpretation Act 1984 (WA) which enjoined decision making bodies to give preference to a purposive construction of legislation. These strictures apply equally within the Commonwealth context but at [12] their Honours said:
“Although a provision of the Act must be given a liberal and beneficial construction, the Court or Tribunal is not at liberty to give it a construction that is unreasonable or unnatural. But subject to that proviso, if the term “service” read in the context of the Act and its object, is capable of applying to an activity, a Court or Tribunal, exercising jurisdiction under the Act should hold that that activity is “a service” for the purposes of the Act.”
Their Honours then went on to review the authorities, in particular Attorney General (Canada) v Cumming (1980) 2FC 122 at [131] to [132], Savjani v Inland Revenue Commissioners (1981) QB 458, R v Entry Clearance Officer; Ex parte Amin (1983) 2 AC 818 and Farah v Commissioner of Police of the Metropolis (1998) QB 65 and made the important point that whilst agreeing with Otton LJ in Farah and Templeman LJ in Savjani the courts should be
“Slow to find that the effects of something which is humiliating discriminatory in racial matters falls outside the ambit of the Act”
made the point that:
“Given the artificial definitions of discrimination in the Act and the restricted scope of their applications, the Court or Tribunal should not approach the task of construction with any presumption that conduct which is discriminatory in its ordinary meaning is prohibited by the Act. The Act is not a comprehensive anti discrimination or equal opportunity statute. The legislature of Western Australia, like other legislatures in Australia and the United Kingdom, has avoided the use of general definitions of discrimination … because of the restrictive terms of a particular statute, however, even a purposive and beneficial construction of its provisions will not always be capable of applying to acts that most people would regard as discriminatory.”
[IW at 15]
The need to construe “services” as having its ordinary and broad meaning was accepted by all the Justices in IW. Where they differed was in their views as to whether the services allegedly performed by the Council fell within their broad definitions so that Brennan and McHugh J held that the Council did not provide a service of giving planning approvals; Dawson and Gauldron JJ held that the relevant service for the purpose of the Act was the exercise of discretion whether to grant or withhold planning approval; Toohey J held that the consideration and disposition of an application for planning approval is the provision of a service; Gummow J held that the Council provided services in dealing with the applications for approval but it had not refused to provide those services and Kirby J held that services for the purposes of s.66K include the provision by a Council of a planning decision.
Mr Rainsford argues that the prisons were being administered in the same way as the Council in IW administered the planning scheme and that services were being provided in both cases. He argued that the obligation to provide the services of accommodation and transport were part of the prison authorities’ responsibility under the Act for the safe custody and welfare of the prisoners (s.21(1)) Corrections Act).
At [15] of Mr Rainsford’s amended final contentions he defines his argument as follows:
“Prison management and control, including the control of cell accommodation and transport between prisons amounts to the provision of a service or facility for the purpose of s.24 DDA.”
The respondents seek to hold Mr Rainsford to this assertion and to argue that prison management and control does not constitute a service but is the core government function implementing the detention of people after the exercise of judicial power. It constitutes conduct which is an incident of detention. The actions of placing a prisoner in a particular cell accommodation and of transporting him from one prison to another are integral parts of the performance of the respondents’ core function of detaining people. To this extent it is no different from the judicial function of sentencing or the administrative detention of an asylum seeker neither of which activities, they argue, were comprehended as a function of a service or facility. They argue the DDA does not prohibit discrimination in the exercise of statutory functions. It is clear that what the respondents mean by the rather bald statement made above is what Brennan CJ and McHugh J described in IW at [15] as
“When a Council is called upon to execute a statutory duty it may be acting directly as an arm of government rather than as a provider of services and its actions will be outside the scope of the Act.”
It is necessary to make this concession not only because of the dicta in IW but also because of what was said by the House of Lords in Ex Parte Amin at [834] to [835] and by the Court of Appeal in Farah at [75] to [78] as well as in Savjani. These cases make it clear that some functions “of the kind provided by a government” do constitute services.
There have been several cases in which consideration was given to whether services were being provided in prisons or in the exercise of prosecutorial powers. In Secretary of the Department of Justice and Industrial Relations v Anti Discrimination Commissioner 11 TASR 324 at [341] Underwood J after considering the authorities cited here said at [53]:
“Application of the above authorities leads me to conclusion that at the time the DPP acted as described in paragraphs 3 and 4 of his letter dated 19 January 2000 and which led to the making of the complaint, he was not providing a service but performing a statutory duty.
In Clarkson v The Governor of the Metropolitan Reception Prison and Anor (1986) EOC 92-153, a matter heard by the Equal Opportunity Board in Victoria in 1986, the Tribunal noted that in Henderson v Victoria (1984) EOC 92-027 and (1984) 92-105 and in Jolly v The Director General of Corrections (1985) EOC 92-124 that the Director General of Corrections provide services to prisoners:
“These services have been held by the Board to include welfare and rehabilitation services and services to prisoner’s families.”
In A Complainant and Anor v The State of Western Australia (1994) EOC 92-610 the Equal Opportunity Commissioner of Western Australia after referring to Jolly and also to Hobby v Executive Director of The Department of Corrective Services (1992) EOC 92-397 stated:
“Thus, the Tribunal found in accordance with the previously decided cases, that there was no reason in principle why opportunities provided by a prison could not be regarded as the provision of services or the making available of facilities within s.66K.”
Unfortunately, a recitation of these cases does not answer the question posed in respect of Mr Rainsford. The “services” referred to in those decisions were either services provided to others such as prisoners’ families or matters clearly within the rehabilitative or welfare spectrum of the responsibilities of the Department of Corrections. This case, the respondents argue, has been placed by Mr Rainsford squarely within the spectrum of the core functions of the department, prison management and control. Noting that in Bandulla v The State of Victoria [2002] VCAT 91 Deputy President McKenzie said at [20]:
“I find great difficulty in characterising a criminal trial, a trial for a criminal offence as a service to the accused within the meaning of that section (s.42 Equal Opportunity Act). It is not something voluntarily provided or received. It is governed in large part by statute. It is not discretionary in the sense of being capable of being refused to an alleged offender. When one looks at s.42(1) among other things it covers refusal of the service. In other words there must be a service which is capable of being refused.”
the respondents argue that the situation is similar here. Mr Rainsford did not volunteer to go to prison, his accommodation was not voluntarily provided or received. He could not refuse the accommodation and neither could he refuse the transfer between one prison and another. That was a matter entirely within the power of the Director General consequent upon his sentencing
Mr Rainsford has restricted his claim to the provision of services in the management and control of the prison. It may well have been possible, at least in the context of the transport claim, to have provided a different articulation, perhaps one based upon the restriction of the undoubted service of providing medical facilities or the restriction of the possible service of providing him with an opportunity to attend court in relation to civil matters. But he did not do this and only the actual question put can be answered not one that may more advantageously have been put.
The decision in IW does not provide much assistance to the lower court decision maker dealing with a matter on the cusp on the definition. At [73] Kirby J does note a common link between the various forms of service included within the general definition being that they are all activities helpful to the person using them. He notes that “helpful” does not always mean satisfactory so that advice can be “helpful” even if it is not what the recipient wishes to hear. If the provision of something of benefit to the recipient is an indicator of the existence of a service then it is obviously arguable that the provision of cell accommodation and motor transport come within the definition. But it does not seem to me that the argument is an attractive one in this case.
Firstly, the services are not defined in this way, they are defined as the management and control of the prison. Secondly, to ally the provision of cell accommodation within a prison to the provision of motel accommodation or a weekly room in an hotel would be far from comparing like with like. Similarly, the provision of transport from one jail to another where the applicant is being required to move for the maintenance of the good order of the prison service is clearly distinguishable from the provision of such services by a bus company to an individual wishing to travel from Melbourne to Sydney. In the case of these particular prison “services” they cannot be separated from the duty of incarceration. A place must be provided for a prisoner to sleep and in order to move the prisoner from the place of trial to the place of incarceration transport must be used. On the other hand the provision of library books to prisoners, the provision of visiting days to prisoners or the opportunities allegedly lost by the complainants in A Complainant and Anor being restricted access to recreational activities, restriction on visits to the IDU, no access to the prison library or other education facilities, no opportunity to work, no opportunity to interact with other prisoners, no access to the canteen or restriction to association with prisoners who are criminally insane, disturbed or in need of protective custody, could all be seen as complaints relating to the provision of benefits to the prisoner without which the statutory duty to incarcerate could still be effected. If, in the case of services of the kind provided by a government one distinguishes the statutory duty element from the services element by assessing whether the alleged services element is intended to provide a benefit to the complainer then it can be seen that the decided cases are consistent.
It is useful to compare Canadian authorities on this point. Section 5 of the Canadian Human Rights Act 1985 is similar in its effect to s.24 Disability Discrimination Act, although some key differences in the legislative wording exist. Section 5 of the CHRA states:
It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a)to deny, or deny access to, any such good, service facility or accommodation to any individual, or
(b)to differentiate adversely in relation to any individual on a prohibited ground of discrimination
The inclusion of the words “customarily available to the general public” in the Canadian legislation have been instrumental in the way that the Human Rights Tribunal and Courts have interpreted the term “service”. “Service” has been construed as pertaining to acts carried out by public servants under statute as agents for the Crown: see for example Re Singh (1989) 1 FC 430; Anvari v Canada (1988) 10 CHRR D/586; Le Deuff v Canada CHRT T.D. 6/86. As Linden JA commented in Canada v Rosin (1991) 1 FC 391 at 398:
“The cases have shown that “public” means “that which is not private”, leaving outside the scope of the legislation very few activities indeed.”
Despite this broad approach to what constitutes a service there are indicators in the decisions that support the position that I have outlined above at [20]. In Chiang v NSERC CHRT T.D 3/92 the Canadian Human Rights Tribunal gave extensive consideration to the meaning of “provision of services”. It began its discussion with the following:
“The first issue is whether NSERC was providing services within the meaning of s.5 CHRA. Although not strongly contested by the Respondent, an examination of the issue of whether a government or public activity which confers a benefit is a “service”, is necessary.”
It is relevant to note that the Canadian decisions which consider whether a government activity is to be regarded as a service tend to relate to situations where the government department concerned is able to exercise a measure of discretion as regards a certain matter e.g. the granting of permanent residency (Anvari v Canadian Employment & Immigration Commission (1989) 10 CHRC D/586; Menghani v Canadian Employment & Immigration Commission (1992) 17 CHRR D/236); the distribution of federal funds for research projects (Chiang v NSERC CHRT T.D 3/92); acceptance into doctoral fellowship programs (Arnold v CHRC [1997] 1 F.C. 582); or the provision of unemployment benefits (Gonzalez v Canada [1997] 3 F.C. 646; Popaleni v Canada CHRT T.D. 2/01). There is a clear distinction between a government authority, acting under the authority of statute, deciding whether or not to extend or apply a service to a particular individual and the situation in the instant case, where no discretionary element exists. Whilst undoubtedly there are various aspects of prison life over which a prisoner retains a degree of control e.g. participation in training programs or counselling sessions, his actual incarceration is not one of them. Rather it is the result of the coercive power of the State following judicial determination, and is a decision imposed on both the prisoner and the provider of correctional services.
In contrast, the Canadian Human Rights Tribunal in Hum v Royal Canadian Mounted Police CHRT TD 10/86 indicated that the activities of the police constituted services for the purposes of the Canadian Human Rights Act. However, the facts of this case where the complainant alleged discrimination arsing out of questions he was asked prior to his arrest can be factually distinguished from the situation of Mr Rainsford. But in any event to the extent that this decision is in conflict with the English decision Ex parte Amin (supra), and the cases cited in argument therein, I would prefer to follow that decision.
This analysis of the cases leads me to the conclusion that the first question posed by the respondents should be answered in the negative.
The requirement or condition issue
The applicant has articulated the requirement or condition which he claims was imposed upon him. The respondents articulated the total complaint of the applicant in the following way:
“In providing prison management and control including the transport between prisons the State of Victoria imposed a requirement or condition being that the applicant be reasonably comfortable in the transport vehicle without access to conditions which would protect his back from injury or in providing prison management or control including the transport between prisons the State of Victoria imposes a requirement or condition being that the applicant maintain the state of his back in the transport vehicle without access to conditions that would protect the back from injury.”
A similar reading of the complaint can be made with respect to that in relation to the cell namely that:
“In providing prison management or control including the provision of cell accommodation the State of Victoria imposed a requirement or condition being that the applicant be reasonably comfortable in the cell without access to appropriate exercise facilities.”
Specifying the condition or requirement that is imposed on the aggrieved person is required in order for the applicant to make good this aspect of his case; Walters v PTC (1992) 173 CLR 349 at [360]; the condition must exist independently of the service itself and is in the nature of a qualification or stipulation that must be obeyed or endured if the services are to be acquired, used or enjoyed; Walters at [407] per McHugh J. In Sluggett v HREOC 123 FCR 561 at [56] Drummond J said:
“But the concept of a “requirement or condition” with which the aggrieved person is required to comply involves a notion of compulsion or obligation. See the definitions of “require” and “requirement” in the Macquarie Dictionary 3rd Ed (1997) and the definition of “condition” which includes the following:
“The circumstance indispensable to some result; a pre-requisite; that on which something else is contingent… something demanded as an essential part of an agreement….”
And whether a “requirement” or “condition” within s.6 has been imposed in the context of the DDA will take its colour from the particular setting in which it is said a prohibition against discrimination created by the Act has been infringed by indirect discrimination. It is only if the University could be said to have required, in the sense of “obliged” or “compelled” Ms Sluggett to do something in relation to the health service premises that involve access to those premises that it could be said to have required her to comply with or requirement or condition in relation to the provision of means of access to those premises capable of amounting to indirect discrimination against her contrary to s.23(1)(c).”
What is required here? Mr Rainsford argues that he is being required to be comfortable but without the means which would enable that state of being to exist. But there is no evidence of such a requirement being made on the part of the respondents at all. They may have hoped that he would be comfortable in his cell and on his journeys but they did not impose an obligation upon him to be so. Likewise, there was no evidence of any requirement by either of the respondents for the applicant to maintain the state of his back. The respondents were charged with the welfare of the applicant and in order to carry out that duty they may have imposed requirements upon him. But it is difficult to conceive of them imposing a requirement upon him to maintain a state of health even if they could impose requirements upon him which would have that effect. It seems to the court that there are ways in which the applicant could have articulated his complaints so as to bring them within the confines of the Act but the way that it has been done is not that. In the absence of any evidence of the requirement or condition, as opposed to evidence of the conditions within the Charlotte Unit or on the vehicles used for transport, the answer to the second question must also be no.
By virtue of these responses to the two preliminary questions the applicant’s proceedings cannot be sustained. I will dismiss them. I will hear the parties as to costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 19 October 2004
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