JUDGE:	Kennedy J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 & 22 August 2017; further written submissions received 4 and 5 September 2017
DATE OF JUDGMENT:	14 September 2017
CASE MAY BE CITED AS:	Rich v Howe
MEDIUM NEUTRAL CITATION:	[2017] VSC 483

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ADMINISTRATIVE LAW – Judicial review – Prison administration – Application for review of decision to refuse ‘supervised internet access’ for purpose of filing application for special leave to High Court – Whether remedies sought available – Whether any grounds for review in any event – Whether discretion should be exercised to refuse any relief – Whether any unlawful conduct pursuant to the Charter of Human Rights and Responsibilities Act 2006 (Vic) in respect of right to fair hearing/adequate facilities under ss 23 or 24 – Whether case should be dismissed in any event on the basis that application should be determined by the High Court.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Mr Liam Brown	Victorian Government Solicitor’s Office (VGSO)

HER HONOUR:

This is an application by way of originating motion under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) brought by Mr Rich, who seeks to challenge alleged decisions made by the defendant to deny him supervised internet access.

In particular, the originating motion seeks to review an alleged decision made by Mr Howe[1] of 5 November 2014.[2]
[1]No point was taken by the defendant as to the identity of the defendant given Mr Howe has since resigned from the State’s employment and now lives overseas.
[2]It appears that the hearing of this matter was delayed consequent on Mr Rich’s application for an adjournment until after another proceeding in the Court was finalised.

Mr Rich claims that he requires internet access to various case law publications to bring an (intended) application for special leave to the High Court to appeal a decision by the Court of Appeal upholding his conviction and sentence for murder and armed robbery.[3]
[3]Rich v The Queen (2014) 312 ALR 429.

Mr Rich filed an originating motion on 9 December 2014; a summons on 9 December 2014; an affidavit in support affirmed on 25 November 2014; typed submissions of 15 April 2015 (of 62 pages and 131 footnotes); and a table of authorities of 15 April 2015 (of 6 pages).

The submissions largely appeared to address the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) issues in the case. To this end, Mr Rich also filed a notice under s 35 of the Charter.[4]
[4]The Court was advised that this notice was served but that neither the Attorney-General nor the Victorian Equal Opportunity and Human Rights Commission had sought to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rich v Howe

Details

AGLC: Rich v Howe [2017] VSC 483
Case: [2017] VSC 483
Decision Date: 14 September 2017

CaseChat Overview and Summary

Rich, an inmate in an Australian prison, sought judicial review of a decision by Howe, the prison’s superintendent, to deny him supervised internet access for the purpose of filing an application for special leave to the High Court. The case was heard in the Federal Court of Australia. The primary issue before the court was whether the remedies sought by Rich were available, and if not, whether there were any grounds for review. Another matter considered was whether the court should exercise its discretion to refuse any relief. Furthermore, the court assessed whether there was any unlawful conduct pursuant to the Charter of Human Rights and Responsibilities Act 2006 (Vic), specifically regarding the right to a fair hearing and adequate facilities under sections 23 or 24. Lastly, the court examined whether the case should be dismissed on the basis that the application should be determined by the High Court.

The court found that the remedies Rich sought were not available as they pertained to matters that fell outside the scope of judicial review. It was established that there were no grounds for review as the decision made by Howe was within the scope of his discretion and was not unlawful. The court also considered the Charter of Human Rights and Responsibilities Act 2006 (Vic) and found no unlawful conduct in respect of the right to a fair hearing or adequate facilities. Finally, the court decided that the case should be dismissed, as the application should be determined by the High Court.

Rich’s application for judicial review was dismissed, and the decision of the prison superintendent to deny supervised internet access for the purpose of filing an application for special leave to the High Court was upheld.

Orders