Rich v Howe - [2016] VSC 88

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

S CI 2014 06647

HUGO RICH	Applicant
v
JONATHAN HOWE (IN HIS CAPACITY AS THE GENERAL MANAGER OF HM PRISON BARWON & FOR CORRECTIONS VICTORIA)	Respondent

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JUDGE:	JOHN DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 March 2016
DATE OF JUDGMENT:	7 March 2016 (Revised 21 March 2016)
CASE MAY BE CITED AS:	Rich v Howe
MEDIUM NEUTRAL CITATION:	[2016] VSC 88

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ADMINISTRATIVE REVIEW– Relief sought by interlocutory mandatory injunctions that effectively make a merits decision – Application brought by prisoner – Denial of prisoner’s application for repair of in-cell computer, reinstatement of scanning facility, provision of supervised email facility – Reviewable decision or error in it not clearly identified – No serious question identified – Balance of convenience not in favour of relief sought – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr L T Brown	Victorian Government Solicitors Office

HIS HONOUR:

By this proceeding, commenced by an originating motion on 24 November 2014, Mr Rich claims certain relief against the general manager of HM Prison Barwon, Mr Jonathan Howe. It appears from the statement of claim that the original object of the proceeding was to challenge the refusal of Mr Howe to provide supervised controlled internet access to Mr Rich. The statement of claim also refers to a decision taken by Mr Howe on 23 November 2014 that appears to be to that effect.

The particular application that has come before the court arose in the following circumstances. In December 2015, Mr Rich brought an application in the Practice Court in another proceeding in which a Mr Brett Ryan is the defendant (the Ryan proceeding) that was refused. Mr Rich then applied for leave to appeal that decision, which application is yet to be heard by the Court of Appeal. An issue that arises in that appeal was whether Mr Rich was denied access to justice because he was denied access to source legal materials via a computer that he would use to prepare an appeal. In that sense, he contended that his right to unimpeded access to the court had been infringed.

This proceeding was fixed for trial on 18 March 2016. In early February 2016, Mr Rich applied to Daly As J to vacate the trial date, an application that was opposed by the defendant. That application was made by summons filed 8 February 2016, supported by Mr Rich’s affidavit sworn the same day. Before me, Mr Rich referred me to an earlier affidavit, filed in this proceeding, that he swore on 24 November 2014, and an affidavit that he had sworn in the Ryan proceeding on 6 January 2016

The defendant stated that the affidavit of 8 February 2016 has not been served. Although Mr Rich asserts that he was unaware of that fact and believed that the affidavit had passed through the usual prison postal system and ought 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 [2016] VSC 88
Case: [2016] VSC 88
Decision Date: 7 March 2016 (Revised 21 March 2016)

CaseChat Overview and Summary

The case of Rich v Howe involved a prisoner who sought interlocutory mandatory injunctions to compel the relevant authorities to address issues concerning the repair of an in-cell computer, the reinstatement of a scanning facility, and the provision of a supervised email facility. The application was heard in the Federal Court of Australia. The respondent, representing the authorities, opposed the application, arguing that the prisoner's claims did not constitute a reviewable decision and that no error had been identified. Moreover, it was contended that no serious question to be tried was presented, and that the balance of convenience did not favour the relief sought by the prisoner.

The central legal issues the court had to address were whether the prisoner's application for mandatory injunctions effectively sought merits review of administrative decisions and, if so, whether such an application was appropriate at the interlocutory stage. Additionally, the court had to determine whether a serious question to be tried was presented by the prisoner's claims and whether the balance of convenience favoured granting the relief sought. The court found that the application was essentially seeking merits review rather than judicial review of the administrative decisions. Furthermore, the court determined that the prisoner had not identified a reviewable decision or any error within it, nor had a serious question to be tried been demonstrated. The balance of convenience also did not favour the prisoner, leading to the refusal of the application.

The court held that the prisoner's application did not constitute an appropriate exercise of the court's jurisdiction to review administrative decisions. The court was of the view that the relief sought by the prisoner would effectively make a merits decision, which was not within its purview at the interlocutory stage. The court further found that no serious question to be tried was presented by the prisoner's claims, and the balance of convenience did not support the granting of the relief sought. Consequently, the application for interlocutory mandatory injunctions was refused.

Orders