Rich v Armytage
[2000] VSC 317
•5 July 2000
| SUPREME COURT OF VICTORIA |
| Not Restricted |
PRACTICE COURT
No. 5782 of 2000
| HUGO ALISTAIR RICH | Plaintiff |
| v | |
| PENNY ARMYTAGE (Correctional Services Commissioner) and OTHERS | Defendants |
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JUDGE: | Byrne J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 July 2000 | |
DATE OF JUDGMENT: | 5 July 2000 | |
CASE MAY BE CITED AS: | Rich v Armytage | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 317 | |
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | In person | |
| For the first to fourth Defendants | Mr R. Shepherd | Acting Victorian Government Solicitor |
| For the fifth to ninth Defendants | Ms P. Tate | Arthur Robinson & Hedderwicks |
HIS HONOUR:
The proceeding before the court is brought by Hugo Alistair Rich who is a prisoner presently in Port Phillip Prison. The defendants are nine in number and may be grouped broadly into two groups. The first to the fourth-named defendants appear by their description in the schedule to be officers of the Correctional Services Commission, Department of Justice. The fifth, sixth, seventh, eighth and ninth defendants appear by their description to be either, in the case of the fifth defendant, who is the Manager - I think that is the correct terminology - of the Port Phillip Prison, and the remaining of those defendants are officers of Group 4 Correctional Services. I mention in passing that the ninth defendant, who is described in the schedule to the writ as "Bill Fecis"; his correct name is "Decis" and leave is given to amend the schedule accordingly.
Before the court is an application brought by summons dated 15 June 2000 by the plaintiff Mr Rich in which he seeks injunctions restraining the defendants from moving him from Port Phillip Prison until various events. He has filed an affidavit in which he exhibits an order which he proposes, which includes the matters that I have mentioned and a number of other matters which are described as "various findings and facts and orders", including an order that Mr Decis be prosecuted for criminal contempt of orders and that others of the Group 4 defendants be restrained from removing legal documents and materials used by him for preparing for matters before the court. Other orders are sought as well.
As I indicated to the parties in the course of argument, my concern here today in the Practice Court is not to determine or even to express any views about the validity of Mr Rich's complaints, but rather to manage the case by making such orders as are necessary for the proper disposition of the proceeding and for the preservation of rights for this purpose.
There are also before the court two summonses filed by each of the two groups of defendants. In essence they seek to have the proceeding stayed or that they have judgment against the plaintiff on the basis that the proceeding does not disclose cause of action, it is frivolous or vexatious or otherwise abuse of the court. Orders are sought in the case of the Group 4 defendants under order 23.01 and 23.02. The Department defendants seek similar leave under 23.01 and also an extension of time for filing of the defence.
Now the proceeding has been commenced by Mr Rich acting in person. He has endorsed on his writ a general endorsement which covers a large number of matters. It seems to me that the proper management of this case requires that he deliver a statement of claim and I will so direct. Then it will be possible, in the face of a document of that nature, to address any applications that are made by the defendants to strike out all or part of that statement of claim. The immediate problem, however, before me is that Mr Rich fears he may be transferred from Port Phillip Prison where, for reasons which he set out in his affidavit, life is more conducive to his situation in preparing his litigation and also where he might receive treatment for what he describes as his "medical condition".
I have enquired of counsel for the defendants and have been told that the decision whether to transfer the prisoner from Port Phillip to another prison is a decision for the Secretary, although I am also told that there are various delegations in place.
What has been proposed is that the Department defendants give two undertakings to the court in order to protect Mr Rich's interests as far as is possible, given the fact that this is a temporary matter, intended not to settle the disputes between him and the Department or between him and Group 4, but merely to protect his interests sufficient to enable the case to go forward.
The first undertaking is in these terms. By 21 July 2000, the Sentence Management Unit will meet with the plaintiff and discuss with him whether he will be transferred or not from Port Phillip Prison to another location.
The second undertaking is this. If a decision to transfer the plaintiff from Port Phillip Prison to another location is made, the plaintiff will be given no less than seven clear days' notice of that decision before the decision for transfer is implemented.
Mr Rich urged me not to accept these undertakings on the basis that they do not deal with all of the matters that he is concerned with and, secondly, because his experience with the defendants has been such that he has no confidence that any undertaking will be kept.
As to the first matter, for reasons which I discussed with him, my immediate concern is not to determine the ultimate issues between the parties; that is for another day. But simply to protect him from the immediate concerns that are troubling him.
It seems to me that the implementation of these undertakings will have that effect. It will mean that, first, he will be given the opportunity to say what he wants to say about any proposal that he be transferred from Port Phillip Prison and, second, he will have no less than seven clear days once the decision has been made, if it be made, to approach the court or to take such other steps as he thinks are appropriate in order to protect his interests as a consequence of that decision.
As for his concern that the undertaking will not be kept, I reject that. I reject that for two reasons. First of all, there is nothing on the material before me which shows that the undertaking will not be kept and, secondly, the court has abundant power to compel those who give undertakings to the court to keep their undertakings and, in the unhappy event that they should not do so, to deal with them. So, in those circumstances, it seems to me that I should have no hesitation in accepting those undertakings and I shall do so.
An application of this nature would very often require a cross-undertaking by the plaintiff. It has been mentioned to me that such an undertaking may or may not be required. I would not require such an undertaking of a plaintiff in the position of the present plaintiff.
Now, that I think will deal with the immediate concern. I should record also that Mr Rich has spoken about the concerns he has had about acts of interference and even prevention on the part of officers at the prison obstructing his preparing and presenting this application and, apparently, an appeal which he has or is about to bring in the Court of Appeal.
I have raised this question with counsel and have been told that the factual basis of his complaint is likely to be disputed. As things stand, his allegations remain uncontradicted. I express no views about them because it is not necessary that I decide them. I have mentioned to those present, and I simply record now that, if it should appear that officers at the prison are not treating the prisoner's right to bring an application before the court with proper respect, then the court may well take a dim view of that. But I make no finding that anything of the kind has happened. That is a matter which must await the presentation of evidence for and against the allegations and the determination of an appropriate court as to whether those allegations have been made out.
Accordingly then, if the undertaking is now given, I will accept it.
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