Rich v Ryan
[2018] VSC 201
•1 May 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 04399
| HUGO ALISTAIR RICH | Plaintiff |
| v | |
| BRETT RYAN (acting in his capacity as the General Manager of H. M. Prison Barwon and for Corrections Victoria) | Defendant |
---
JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 March 2018 |
DATE OF RULING: | 1 May 2018 |
CASE MAY BE CITED AS: | Rich v Ryan |
MEDIUM NEUTRAL CITATION: | [2018] VSC 201 |
---
JUDICIAL REVIEW AND APPEAL — Practice and procedure — Discovery — Application for discovery in judicial review proceeding — Whether plaintiff has a good, or at least an arguable case, proof of which would be aided by discovery—Supreme Court (General Civil Procedure) Rules 2015 rr 29.01(1), 29.01.1(1), 29.07 —Civil Procedure Act 2010 ss 54, 55 — Australian Society for Kangaroos Inc. v Secretary, Department of Environment, Land, Water and Planning [2018] VSC 88 — Moreland City Council v Minister for Planning [2014] VSC 468 — Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | ||
| For the Defendant | Ms Sarala Fitzgerald | Victorian Government Solicitor’s Office |
HER HONOUR:
The plaintiff, Mr Hugo Rich, is imprisoned at Barwon Prison. The defendant, Mr Brett Ryan, manages Barwon Prison and is an employee of Corrections Victoria. Mr Rich has brought this proceeding seeking judicial review of decisions regarding his access to electronic equipment whilst he is imprisoned. He also seeks review of a decision he says was not made to approve monies for stationery expenditure.
For convenience, a reference to ‘Corrections Victoria’ in this ruling is a reference to the defendant.
On 24 January 2018, Mr Rich filed a draft notice seeking discovery from Corrections Victoria of 23 categories of documents, and a summons for discovery and inspection of documents. Corrections Victoria opposes the application.
In judicial review proceedings, the presumption is against discovery. Mr Rich seeks that the Court exercise its discretion to order otherwise, that is, for discovery. The 23 categories of documents that Mr Rich seeks Corrections Victoria discover are contained in Schedule 1 to this ruling.
The issue for determination in this ruling is whether or not Corrections Victoria should be ordered to discover any or all of those documents. This raises two questions, which I have answered as follows:
1. Does Mr Rich have a good, or at least arguable case? No.
2. Are there special circumstances so as to warrant an order for discovery? No.
Orders will therefore be made dismissing Mr Rich’s application for discovery.
Affidavits and submissions
Mr Rich relies upon his affidavits affirmed on 5 October 2017 (‘the first Rich affidavit’), 9 January 2018 (‘the second Rich affidavit’), and 23 February 2018 (‘the third Rich affidavit’).[1] Mr Rich also made written submissions dated 10 January 2018. His written submissions together with his second and third affidavits, which are in the nature of submissions, total 59 pages.
[1]A copy of this affidavit was placed on the court file but the affidavit has not been filed.
Corrections Victoria relies upon two affidavits of Mr Brett Ryan sworn 20 February 2018: one is nine paragraphs (‘the Ryan resources affidavit’) and the other is 30 paragraphs (‘the Ryan affidavit’). Its solicitors made written submissions dated 26 February 2018.
It is unnecessary to reiterate all the parties’ submissions in this ruling. I have confined reference to the central submissions by each party that are relevant to this application.
Given that Mr Rich is self-represented, I will first outline the applicable principles and then discuss the issues above, including relevant submissions.
Applicable Principles
Rules 29.01 and 29.01.1(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) provide:
29.01 Application and definition
(1)Except where the Rules of this Order otherwise provide, the Order applies only—
(a) to a proceeding commenced by writ; and
(b) to a proceeding in respect of which an order has been made under Rule 4.07(1).
(2) In this Order possession means possession, custody or power.
29.01.1 Scope of discovery
(1)Unless the Court otherwise orders, discovery of documents pursuant to this Order is limited to the documents referred to in paragraph (3).
(2) Paragraph (1) applies despite any other rule of law to the contrary.
(3)Without limiting Rules 29.05 and 29.07, for the purposes of this Order, the documents required to be discovered are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given—
(a) documents on which the party relies;
(b) documents that adversely affect the party's own case;
(c) documents that adversely affect another party's case;
(d) documents that support another party's case.
(4) Notwithstanding paragraph (3)—
(a)if a party giving discovery reasonably believes that a document is already in the possession of the party to which discovery is given, the party giving discovery is not required to discover that document;
(b)a party required to give discovery who has, or has had in the party's possession more than one copy, however made, of a particular document is not required to give discovery of additional copies by reason only of the fact that the original or any other copy is discoverable.
(5)For the purposes of paragraph (3), in making a reasonable search a party may take into account—
(a) the nature and complexity of the proceeding;
(b) the number of documents involved;
(c) the ease and cost of retrieving a document;
(d) the significance of any document to be found; and
(e) any other relevant matter.
Rule 29.07 of the Rules provides:
29.07 Order for discovery
(1)In a proceeding within Rule 29.01, notwithstanding that the pleadings between any parties are not closed, the Court may order that any of those parties make discovery of documents to any other of those parties.
(2)In a proceeding not within Rule 29.01, the Court may at any stage order any party to make discovery of documents.
(3)An order under paragraph (1) or (2) may be limited to such documents or classes of document, or to such questions in the proceeding, as the Court thinks fit.
(underline added)
Section 54 of the Civil Procedure Act 2010 (‘CPA’) indicates that, unless the Court otherwise orders, discovery is to be in accordance with the Rules.
54Discovery of documents to be in accordance with rules of court
Unless a court otherwise orders, discovery of documents in a civil proceeding is to be in accordance with the rules of court.
Section 55 of the CPA provides the Court with broad powers in respect of orders and directions in relation to discovery.
55 Court orders for discovery
(1)A court may make any order or give any directions in relation to discovery that it considers necessary or appropriate.
(2)Without limiting subsection (1), a court may make any order or give any directions—
(a) requiring a party to make discovery to another party of—
(i)any documents within a class or classes specified in the order; or
(ii)one or more samples of documents within a class or classes, selected in any manner which the court specifies in the order;
(b) relieving a party from the obligation to provide discovery;
…
(3)A court may make any order or give any directions requiring a party discovering documents to—
(a)provide facilities for the inspection and copying of the documents, including copying and computerised facilities;
(b) make available a person who is able to—
(i) explain the way the documents are arranged; and
(ii)help locate and identify particular documents or classes of documents.
(4)A court may order or direct a party to pay to another party an amount specified or determined by, or in accordance with, the order or direction in relation to the costs of discovery in any manner considered appropriate by the court, including, but not limited to, payment in advance of an amount to the other party for some or all of the estimated costs of discovery.
(5)Without limiting any other power of a court to make costs orders, a court may order or direct that costs payable under an order or a direction under subsection (4) are recoverable as costs in the proceeding.
(underline added)
The principles concerning discovery applications in judicial review matters were recently summarised by Ginnane J in Australian Society for Kangaroos Inc. v Secretary, Department of Environment, Land, Water and Planning.[2] His Honour stated that:
Discovery is often not ordered in judicial review proceedings because the documents evidencing the decision under review are usually before the court including a statement of reasons. But discovery can be ordered if the plaintiff has a good, or at least arguable, case proof of which would be aided by discovery. However, that is subject to any countervailing or discretionary factors, including the nature of the case and the time at which the application is made. It is sometimes said that the same discovery rules that apply in civil cases also apply in judicial review cases. But, in judicial review cases, while any discovery request will be assessed by reference to the issues raised, usually the primary focus will be on the documents that were before the decision-maker and which will have been provided to the plaintiff and be before the court.[3]
[2][2018] VSC 88 (28 February 2018) (‘Australian Society for Kangaroos’).
[3]Ibid [21] (underline added).
In Moreland City Council v Minister for Planning,[4] Daly AsJ held that:
[4][2014] VSC 468 (24 September 2014).
Under the rules of this Court, discovery is ordered in cases commenced by originating motion only in ‘special circumstances’. The rationale behind this is that proceedings commenced by way of originating motion are generally those of a character where there is no substantial factual dispute. Applications for judicial review are generally, by their very nature, concerned with questions of law rather than factual disputes. But there is no barrier in principle to discovery being ordered in appropriate circumstances, and in fact discovery has been ordered in judicial review proceedings in Victoria.
Most of the authorities which have considered the question of whether discovery ought to be ordered have arisen, as might be expected, in the federal jurisdiction. The main principles to be distilled from these authorities can be summarised as follows:
(a)discovery in judicial review cases will not be ordered in the usual case, but may be ordered where the applicant has ‘a good case proof of which would be aided by discovery’;
(b)where the proceeding before the Court requires the court to assume a fact finding role, discovery may well be ordered to assist the court in fulfilling that role;
(c)in cases where the reasonableness, or ‘rationality’ of the decision is in question, discovery may be ordered in respect of the documents before the relevant decision-maker;
(d)the fact that a decision maker has provided reasons for the relevant decision may influence the court to exercise its discretion against ordering discovery; and
(e)while there appears to be a more relaxed approach to the question of ‘fishing’ in later decisions compared with earlier decisions it is still the case that the making of a mere assertion in an originating process, without more, is insufficient to persuade a Court to exercise its discretion to order discovery in judicial review matters.
In my view, the threshold test is whether the applicant has a good, or at least an arguable case, proof of which would be aided by discovery, subject to any countervailing authority or discretionary factors. If the case is shown to be more than merely speculative, then the existence of a factual question which might need to be resolved by the Court in its determination of the issues in the proceeding is probably sufficient to amount to ‘special circumstances’ to enliven the Court’s jurisdiction to order discovery, but is not, of itself, determinative of whether the Court should exercise its discretion to do so.[5]
[5]Ibid [12]–[14] (underline added) (citations omitted).
The parties cited authorities predating the CPA. The CPA is relevant to this application. The overarching purpose and objects must be firmly borne in mind. The overarching purpose of the CPA and the rules of Court in relation to civil proceedings are to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[6] Section 9(1) of the CPA requires the Court to further the overarching purpose by having regard to a number of objects, including:
[6]CPA s 7(1).
Court's powers to further the overarching purpose
(1)In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects—
(a) the just determination of the civil proceeding;
(b)the public interest in the early settlement of disputes by agreement between parties;
(c) the efficient conduct of the business of the court;
(d) the efficient use of judicial and administrative resources;
(e)minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—
(i) the fair and just determination of the real issues in dispute; and
(ii) the preparation of the case for trial;
(f) the timely determination of the civil proceeding;
(g) dealing with a civil proceeding in a manner proportionate to—
(i)the complexity or importance of the issues in dispute; and
(ii) the amount in dispute.
In Volunteer Fire Brigades Victoria Inc v Country Fire Authority,[7] J Forrest J outlined the following principles, which I adopt:
[7][2016] VSC 573 (29 September 2016).
In Liesfield v SPI Electricity Pty Ltd (Ruling No 1), I discussed the scope of both s 55(1) of the CPA and O 29 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic):
These provisions make clear that the Court’s powers in relation to discovery are broad. In sum, both the Act and Rules mandate that any order concerning discovery should be directed to finding the most efficient, effective and economical management of the discovery exercise, bearing in mind the nature and complexity of the trial.
There is no ambiguity about the application of the principles of the CPA. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited the High Court said of its NSW analogue:
The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.
That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice.[8]
The approach to discovery has changed markedly in the past half-decade or so. The Peruvian Guano test has been consigned to the dustbin …
The overriding consideration of the CPA is to ensure that the parties receive a fair trial i.e. ‘a just resolution’ to use the words of the CPA. However, a fair trial is not a perfect trial. It is, rather, the best trial that a court can provide to the parties within reason and in proportion to the issues in dispute and the court’s resources. Accordingly, demands for discovery of documents which are peripheral to the central issues cannot be entertained. The Court is obliged to focus on the central issues as best it can be determined at this point in the litigation.[9]
[8]Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303, 323 [56]–[57] (emphasis added).
[9][2016] VSC 573 (29 September 2016) [31]–[34] (emphasis in original) (citations omitted).
The principles above were outlined in the context of a dispute about the scope of discovery. They are, however, salient to the issue of relevance and the impact of the CPA upon discovery.
Bearing in mind the principles above, and the CPA, the first question is whether Mr Rich’s case is a good, or at least an arguable, case, proof of which would be aided by discovery. If so, the second question is whether there are special circumstances so as to warrant an order for discovery.
Does Mr Rich have a good, or at least an arguable case?
Mr Rich’s submissions do not adequately address the issue of whether or not he has a good or an arguable case. They are largely irrelevant to the issue at hand. For instance —
If the Honourable Court required meaning legal ‘papers’ so that any such Court be sufficiently charged to the doing of justice, it respectfully be about time, that it fundamentally considers to stop pandering to unwarranted deference to that ‘public authority’, and thereby demands in its judgments, that Corrections Victoria respond to the question of ‘proportionality’ in its requisite decision-making from the very beginning.
Therefore, none of these considerations should ever be left to the product of some guile or sinister intent at all.
That be why the importance of the documents from the moderate discovery be so important, in these proceedings.
Further, the provision of adequate facilities for court preparation be reasonably connect to what has been described as the principle of ‘equality of arms’…[10]
[10]Plaintiff’s written outline of submissions, 10 January 2018, [79]–[82].
Mr Rich says that he is at the total whim of Corrections Victoria because he is a prisoner and also because he has a particular process applied to him concerning requests to prison management. He must make requests in writing and then they are escalated up the prison hierarchy. Being in prison, Mr Rich says, he is in a different situation to everyone else. He can only document the unreasonable nature of a decision and ask someone to review it. He says Corrections Victoria will not provide the information he seeks because in the event it does he will win his case.
Mr Rich says justice is the paramount consideration under the CPA and in terms of discovery. He says Corrections Victoria regards itself as beyond the reach of the law and resists making decisions. He thinks that the Court should not remove the ‘civil citizenship’ of a person and it does so if it ‘continually finds’ for Corrections Victoria.
During the hearing, Mr Rich said that unreasonableness was at the heart of his complaint.
Corrections Victoria submits that Mr Rich does not get to first base on his discovery application because he does not have an arguable case. It says none of the issues that he seeks to litigate are justiciable. Mr Rich’s allegations are that the prison management decisions made (or not made) are unreasonable. Corrections Victoria submits that this would require the Court to conduct a broad ranging inquiry into the reasonableness of the management of Mr Rich’s imprisonment, with a particular focus on how his electronic equipment requests have been dealt with. It submits that the Court has no such jurisdiction. Nor may Courts substitute their own decision in a merits review.[11] Further, that the Court of Appeal recently explained the distinction between merits review and judicial review to Mr Rich.[12]
[11]Defendant’s Submissions Opposing Discovery dated 26 February 2018, [14] (‘Defendant’s Submissions’).
[12]Ibid [27] referring to Rich v Ryan [2016] VSCA 337 (20 December 2016) [14].
Corrections Victoria submits that whilst legal unreasonableness is a ground of review, it does not permit merits review. It requires a decision that no sensible authority acting with due appreciation of its responsibilities would make or an exercise of power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action.[13] It is necessary to consider the construction of the relevant statute to determine if, in effect, the relevant power has been abused.[14] Corrections Victoria refers to the broad statutory powers for prison management and security set out in ss 20–22 of the Corrections Act1986. The decisions and actions of Corrections Victoria that Mr Rich is contesting are, it says, within these broad powers. Further they cannot be contested as legally unreasonable. Corrections Victoria says there has been no abuse of the broad powers for the management, security and good order of the prison and the safe custody and welfare of the prisoners.
[13]Defendant’s Submissions [16] referring to Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1975] UKHL 6; [1977] AC 1014, 1064; Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36.
[14]Defendant’s Submissions [47] referring to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 357.
Corrections Victoria says there is authority to indicate courts are particularly reluctant to interfere in management of a prison unless there has been a clear infringement of legislative requirements, and the jurisdiction to supervise the administration of a prison is narrow.[15]
[15]Defendant’s Submissions [21].
Analysis
In his affidavit affirmed on 23 February 2018, Mr Rich deposes:
I make this Affidavit in support of an application for a judicial review of discretions characterised as a decisions of an administrative character under the enabling enactment thereof, in claiming that they had been unreasonable and therefore ultra virus [sic].
There being 5 proposed central pillars, along with the relied upon proposed evidence comprising from any such pillar, to demonstrate the requisite relied upon ‘unreasonableness’, in relation to, thus:
(a)the refusal to ‘approve’ the acquisition of a HP ScanJet 3500 ft Flatbed Scanner for Archiving purposes at the plaintiff’s own cost;
(b)the refusal to ‘approve’ the acquisition of a new version of the plaintiff’s existing ELO Digitaloffice 9.0 Software, constituted as having been a Document Management and Archiving programme at the plaintiff’s own cost;
(c)the arbitrary cancellation together with the withdrawing a long standing ‘facility’ to holding a spare toner cartridge in stock, being a particular matter, in previously having been part of an ‘agreed’ understanding established, in support of a part negotiated settlement, in the matter of Rich vs. Len Norman No. S CI 2013 03754, together with also that any such acquisition, not be required to be processed as part of the prison’s monthly ‘Special Spend’ form system;
(d)the failure to exercise, or refusing to make or delaying to make, in reasonably having been constituted as a constructive failure to make, involving no actual decision, to act upon previous formal advices dated 14 September 2016 to replace the ‘defective’ prison-supplied Hewlett Packard Compaq DC 7600 Ultra-slim Desktop computer; and
(e)the failure to ‘approve’ the receipt of $3000.00 dated 14 December 2016 required for the acquisition of office stationary [sic] items, at the plaintiff’s own cost required for the purposes for the proposed filing of a Special Leave application to the High Court of Australia pursuant to the provisions of rule 41.02.2 of the Statutory High Court Rules 2004.
I have considered Mr Rich’s originating motion, together with his affidavits. I have done so bearing in mind that he is a self-represented litigant. The first five paragraphs of his originating motion indicate that he considers the decisions of Corrections Victoria concerning access to electronic equipment and alleged refusal to make a decision concerning approval of the stationery spend to be unreasonable.
Mr Rich says paragraph 6 of his originating motion relates to lawful decision making. It states: ‘[a]s it universally seeks, along with in also having been truncated with identifiable claimed failures, all being connected to, thus…’. It is nonsensical.
Paragraph 7 of Mr Rich’s originating motion concerns allegations of unreasonableness.
Mr Rich says paragraphs 8 and 9 of his originating motion are to be read together and that paragraph 8 arises because he is the only prisoner required to make his requests to prison management in writing. He says that requirement is made solely for management to protect themselves. Paragraph 8 is nonsensical. Paragraph 9 contains allegations of unreasonableness and other claims such as the improper exercise of a delegated power.
Paragraph 10 of Mr Rich’s originating motion concerns allegations about the failure to consider ‘the required values of any board-based [sic] ”needs” of the plaintiff’.
Mr Rich says that paragraph 11 of his originating motion is a complaint about there being a lack of individual focus on him and that is what is required by valid decision-making. Paragraph 11 contains nonsensical allegations and allegations of acting in excess of legal authority and a failure to act fairly.
Legal unreasonableness has been characterised as a decision ‘that no sensible authority acting with due appreciation of its responsibilities would make’;[16] or a purported ‘exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action’.[17]
[16]Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014, 1064.
[17]Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36.
Putting the stationery allegation to one side for the moment, Mr Rich’s allegations cannot be categorised as a good, or at least an arguable, case. His affidavit material does not support the allegations of unreasonableness or his other claims. Indeed, he effectively concedes that is so by saying he needs the documents to make good his case, as discussed further below.
As to the stationery allegation, Mr Rich says a decision has not been made. Mr Ryan agrees a decision has not been made and his affidavit material explains why. Mr Ryan does not understand why Mr Rich requires $3000 so he can purchase items for a special leave application to the High Court. He says that if Mr Rich provided a costing for the stationery then he would consider it.[18]
[18]Affidavit of Brett Ryan sworn 20 February 2018, [29] (‘the Ryan affidavit’).
There are broad statutory powers for prison management and security set out in ss 20–22 of the Corrections Act 1986:
20 Duties relating to security and welfare
(1)An officer in charge of a prison or part of a prison must take all reasonable steps for the security of the prison or part of the prison.
(2)An officer in charge of prisoners must take all reasonable steps for the safe custody and welfare of the prisoners.
(3) An officer must not jeopardize the security of the prison.
(4)An officer must make returns and reports in accordance with the regulations and other returns and reports required by the Secretary.
(5)An officer must keep records in accordance with the regulations and other records required by the Secretary.
(6)In relation to officers within the meaning of paragraph (f) of the definition of "officer" in section 14—
(a)subsection (2) applies as if it did not include a reference to welfare; and
(b)subsections (4) and (5) apply as if they referred to returns, reports and records concerning prison security only.
(7)At the Secretary's request an officer must make available to the Secretary a return or report prepared under subsection (4), or a record kept under subsection (5).
21 Duties of Governor
(1)The Governor of a prison is responsible for the management, security and good order of the prison and the safe custody and welfare of the prisoners.
(2)The Governor of a prison must take reasonable steps to ensure that officers assigned to the prison know what their powers and duties are and what provision is made by or under this Act concerning prisons and prisoners.
(3)The Governor of a prison must give all necessary directions to ensure that—
(a)officers within the meaning of paragraph (f) of the definition of officer in section 14 assigned to the prison comply with the provisions of this Act and the regulations relating to prison security; and
(b)other officers assigned to the prison comply with this Act, and the regulations.
22 Reports to Governor
(1)An officer must report immediately to the Governor anything which might reasonably be thought to jeopardize the security of the prison or the welfare of the prisoners.
(2) An officer must report immediately to the Governor—
(a)the escape or suspected escape of a prisoner in the officer's charge; and
(b)the escape or suspected escape of a prisoner from the prison where the officer is working if the escape or suspected escape comes to the officer's notice.
Courts are not inclined to interfere in the management of a prison unless there is evidence of a clear infringement of a legislative requirement by prison authorities. In Vezitis v McGeechan,[19] the Court held that:
…the management of the gaol and the prisoners therein is given to the Commissioner in very wide terms, and the manner in which he carries out his duties imposed by the section ought not to be examined by the Court unless there is a clear infringement of the Act or regulations.[20]
[19](1974) 1 NSWLR 718 (‘Vezitis’); see also Rich v Groningen (1997) 95 A Crim R 272, 274–5; Bromley v Dawes (1983) 34 SASR 73; R v Classification Committee, Ex Parte Finnerty (1980) VR 561.
[20]Vezitis (1974) 1 NSWLR 718, 721 (citations omitted).
In Anderson v Pavic,[21] the Court of Appeal stated that the Court’s jurisdiction to supervise the administration of a prison is narrow. Nettle JA (as his Honour then was) held that:
Prison legislation should ordinarily be interpreted so as to give full scope to the power of correctional authorities to carry out tasks of prison administration and management without undue influence from the Courts.[22]
[21][2005] VSCA 244 (4 October 2005) (‘Anderson’); see also White v Lacey [2012] VSC 175 (3 May 2012).
[22]Anderson [2005] VSCA 244 (4 October 2005) [32].
In Barreto v McMullan,[23] the Court of Appeal of Western Australia recognised that since Vezitis, there has perhaps been a broadening of the approach to judicial review of management decisions by prison authorities.[24] It was identified that a number of cases subsequent to Vezitis have viewed such decisions as reviewable where they are made in bad faith or for an improper purpose. Of note, Barreto did not consider Anderson.
[23][2014] WASCA 152 (22 August 2014) (‘Barreto’).
[24]Ibid [135].
The four decisions and the alleged refusal to make a decision which are the subject of Mr Rich’s application for judicial review are all matters which relate to the management of the prison. Mr Rich’s contention is that they are unreasonable.
On the material before the Court, there is no basis to say Corrections Victoria has exercised its powers in bad faith or for an improper purpose. Nor is there a basis to say it has acted in excess of its powers.
I understand that Mr Rich is unhappy with his treatment by prison management and feels that it is unfair that he must make requests in writing, and that they are then escalated up the prison hierarchy, whereas he says other prisoners are treated differently. I also understand that he considers prisoners lack the right to challenge decisions by prison management. However, this proceeding may not be used as a vehicle to conduct a general review of the day-to-day relationship between Mr Rich and prison staff, nor a general inquiry into prison management processes and their general application to Mr Rich, nor prisoners’ rights generally. It is a proceeding for judicial review.
Importantly, as Corrections Victoria submits, merits review is not permissible upon a judicial review application. This Court cannot stand in the shoes of prison management and re-make the four decisions the subject of his originating motion or make the decision he says has not been made.
Mr Rich’s proceeding has been commenced by originating motion and he does not have a good, or at least an arguable, case, therefore I would decline his application for discovery. That is, I decline to order discovery pursuant to r 29.07(2) or ss 54 and 55 of the CPA.
However, in the event that I am incorrect on the question of whether Mr Rich has a good, or at least arguable case, I will consider whether there are special circumstances to warrant an order for discovery.
Are there special circumstances to warrant an order for discovery?
There were some general submissions concerning discovery made by Mr Rich. He makes his application for discovery pursuant to s 55 of the CPA. Mr Rich says that he is not seeking to use the rules of Court to engineer a settlement or tactically to exhaust the resources of the defendant. He says justice will be served by an order for discovery, and that such an order will assist to identify the real issues in dispute, reduce surprise, assist to enforce the judgment, and be an efficient use of resources. Mr Rich says that discovery will be an important aid for the Court to make its decision and to test the efficacy of the decision-making of Corrections Victoria and whether it is lawful. He says that if he makes a Freedom of Information request then he will never obtain the material in time.
In paragraph 37 of his affidavit affirmed on 9 January 2018, Mr Rich asserts that production of the documents sought would reveal the factual basis to be established for his claims including, amongst other things, the existence of unreasonable decision-making. Paragraph 4 of that same affidavit asserts the production will reveal the pathway of any discretions applied and the manner in which any such matters had been considered in relation to his claim of unreasonableness.
Analysis
The Ryan affidavit evidences the decisions in respect of the electronic equipment and non-decision regarding stationery expenditure. So much is not in dispute. The Ryan affidavit evidences the reasons for the decisions. The issue in dispute is how the decisions are characterised and in particular, whether they are unreasonable.
As Ginnane J stated in Australian Society for Kangaroos, discussed above, the primary focus is usually on the documents before the decision-maker at the time. Mr Rich’s submission that an order for general discovery would reduce surprise misses the point. This proceeding does not concern a merits review; nor is it a general inquiry into prisoner rights or the relationship between him and Corrections Victoria. The Court is not in a fact finding role.
I accept Corrections Victoria’s submission that the CPA requires the just determination of the ‘real issues in dispute’. As discussed below, the request for discovery is very broad; well beyond the issues in this proceeding. An order for discovery would not be just, timely or cost effective and would be inconsistent with the CPA. It would be an inefficient use of resources.[25]
[25]The Ryan resources affidavit evidences the general impact that compliance with the discovery request would have on resources at Barwon Prison.
Further, as to Mr Rich’s submission that discovery would assist in enforcement of judgment, that cannot be so in a judicial review proceeding. If the decision-maker has jurisdiction, and an applicant succeeds, the usual order is to quash the decision and remit the matter to the decision-maker to be decided according to law.
Finally, in his oral submission in reply, Mr Rich offered to reduce the 23 categories below to 10 categories or less. However, there was no precision with which these categories were identified. Further, they remained very broad.
I will now address each of the categories of discovery sought by Mr Rich.
Category 1
This category is extremely broad and goes beyond Mr Rich’s originating motion.
As Corrections Victoria submits, this category will require disclosure of all prisoners’ correspondence from 19 May 2016. Further, consistently with the CPA and the principles discussed above, discovery must concern the central not peripheral issues in dispute.
This category amounts to fishing. Indeed, this is consistent with some of Mr Rich’s submissions. For instance, paragraph 3 of his written submissions refers to ‘the aim of searching out an effective remedy, that is without the application of any such preliminary discovery, all due to the defendant’s dominance over the plaintiff thereof’.
For completeness, I reject Mr Rich’s submission that I should order discovery of this category on the basis that Corrections Victoria could easily sort the correspondence register electronically and provide a printout to him. That will not address the issue of relevance.
Additionally, I accept Corrections Victoria’s submission that it should not be required to create documents as part of a discovery process.
I disallow discovery of this category.
Category 2–10
These categories seek various correspondence regarding Mr Rich and/or documents concerning his computer-related issues. There is no dispute as to the factual background to this proceeding. It is evident from Mr Ryan’s affidavit sworn 20 February 2018 that he accepts that he received the requests the subject of this proceeding from Mr Rich. Further it is also agreed between Mr Rich and Corrections Victoria that Mr Ryan made decisions regarding those requests, and in respect of the request for stationery expenditure, did not make a decision. Discovery is unnecessary.
The same analysis applies as for category 1 above.
As to Mr Rich’s submissions about Corrections Victoria being able to sort some of the categories electronically, that does not solve the fundamental issues discussed above.
As to Mr Rich’s submission that he is unable to make a case without obtaining the documents, if that is indeed the case, he is in contravention of his obligation under s 18 of the CPA to have a proper basis before commence this proceeding.
18 Overarching obligation—requirement of proper basis
A person to whom the overarching obligations apply must not make any claim or make a response to any claim in a civil proceeding that—
(a)is frivolous; or
(b)is vexatious; or
(c)is an abuse of process; or
(d)does not, on the factual and legal material available to the person at the time of making the claim or responding to the claim, as the case requires, have a proper basis.
The same analysis applies in respect of his submission that he could not sufficiently plead because the accuracy of the pleading is in the hands of Corrections Victoria.
For completeness, I do not accept Mr Rich’s submission that he need only have a reasonable belief or good cause for his proceeding and ‘not much more than that is required’. Section 18 of the CPA requires a proper basis for the commencement of proceedings. I accept Corrections Victoria’s submission that this basis must be in existence before initiating the proceeding. That is, a proceeding should not be initiated in the absence of a proper basis for it.
I disallow discovery of these categories.
Category 11
This category concerns documents regarding Mr Rich’s request for the $3000 stationery expenditure. There is no factual dispute concerning these matters.
The same analysis applies as for category 1 and categories 2–10 above.
I disallow discovery of this category.
Category 12
This category concerns any documents regarding Mr Rich’s requests for access to electronic equipment and the $3000 stationery expenditure. He says the documents are relevant to the exercise of discretion by Corrections Victoria.
This is a broad category seeking documents revealing the complete records for those matters. It is too broad. Further, there is no factual dispute about the decisions.
The same analysis applies as for category 1 and categories 2–10 above.
I disallow discovery of this category.
Category 13
This category relates to correspondence between Corrections Victoria and Mr Rich.
The same analysis applies as for category 1 and categories 2–10 above.
I disallow discovery of this category.
Category 14
This is a request for information by date only that shows when Mr Rich’s computer was audited. Mr Rich says that Corrections Victoria has not complied with its policy to review his computer every six months, and he wants to rebut the evidence.
Mr Rich says that Corrections Victoria relies upon the issue of security not to provide documents, and he does not accept that as a basis not to provide documents.
The same analysis applies as for category 1 and categories 2–10 above.
I disallow discovery of this category.
Category 15
This category requests Mr Rich’s complete Prisoner Information System (‘PIMS’) file ‘although only now restricted to the issue, relating to all requests made by the plaintiff and the running note section for this category or class of documents’. Mr Rich says ‘the issue’ are the five issues raised in his originating motion concerning electronic equipment and stationery expenditure. He wants internal records contained within his PIMS file, including handwritten notes.
Corrections Victoria reiterates its submissions for categories 2–10 above.
The same analysis applies as for category 1 and categories 2–10 above.
I disallow discovery of this category.
Category 16
This category seeks emails relating to Mr Rich from 19 May 2016 to the present. Mr Rich says he is not fishing but rather looking to test the efficacy of the decision-making. He says the email system is integral to passing on any matter to the upper hierarchy in the prison system for the application of their decision-making discretion. Mr Rich submits a global search can be done of his prison name and number and that will retrieve all emails attached to his requests which can be transferred to a spreadsheet.
The same analysis applies as for category 1 and categories 2–10 above.
I disallow discovery of this category.
Category 17
This category seeks emails or memoranda generated by reason of the categories of discovery.
The same analysis applies as for category 1 and categories 2–10 above.
I disallow discovery of this category.
Category 18
This category seeks records revealing the ‘physical attendance’ of certain managers ‘attending upon the plaintiff for this category or class of documents’. Mr Rich says that this request relates to the requirement imposed on him by Corrections Victoria that a particular process, namely to put all his requests in writing, applies to him.
This category does not shed any light on any facts in dispute in this proceeding.
The same analysis applies as for category 1 and categories 2–10 above.
I disallow discovery of this category.
Category 19
This category relates to records or documents revealing Mr Rich’s requests. Mr Rich says that these documents can be produced in response to a Freedom of Information request and so should be able to be produced in this proceeding for him.
The same analysis applies as for the preceding category.
I disallow discovery of this category.
Category 20
This category relates to correspondence concerning the Deputy Commissioner, Operations, Department of Justice and Regulation or his delegate. Mr Rich concedes that these documents are also contained in category 12.
The same analysis applies as for category 1 and categories 2–10 above.
I disallow discovery of this category.
Category 21
This category relates to correspondence concerning the IT Co-ordinator’s office and prison officers. Mr Rich concedes that these documents are also contained in category 12.
The same analysis applies as for category 1 and categories 2–10 above.
I disallow discovery of this category.
Category 22
This category concerns documents showing the processing of an application for access to computer software submitted on 29 July 2017. Mr Rich concedes that these documents are also contained in category 12.
This does not shed any light on factual issues in dispute in the proceeding.
The same analysis applies as for category 1 and categories 2–10 above.
I disallow discovery of this category.
Category 23
This category seeks documents concerning Mr Rich’s requests for the above categories of documents. At issue for Mr Rich are the five points of contention raised in paragraphs 1–5 of his originating motion concerning electronic equipment and stationery expenditure.
The same analysis applies as for category 1 and categories 2–10 above.
Conclusion
Mr Rich’s originating motion is, at its heart, a complaint of unreasonableness. I find he does not have a good, or at least an arguable, case. However, even if he did, Mr Rich has not established special circumstances so as to warrant an order for discovery. In summary, there is no factual question to be resolved that will be aided by the discovery sought. The question as to the characterisation of the decisions concerning electronic equipment and the response to the request for stationery expenditure are the matters to be determined at the trial of this judicial review application. The fact of those decisions being made (and in the one instance, not made) is not in dispute. The Court is not engaged in a fact finding role. It is not permissible for Mr Rich to use discovery as a fishing exercise to expand his claim. In the circumstances, orders for discovery would be inconsistent with the overarching purpose of the CPA for the just, timely and cost-effective resolution of disputes.
SCHEDULE 1
NOTICE FOR DISCOVERY
(“DRAFT”)
1. Any Correspondence Register administered the Executive of HM Prison Barwon recording letters defined by the following columns something to the effect of “Reference”, “From”, “To”, “Subject””(sic), Link to Correspondence”, “Rec’d”, “Assigned to”, “Issue/Log” of Events”, (sic) Date Due”, “Days Until Due”, “Completed” and “Link to response” for this category or class of documents from 19 May 2016 through to the present, upon this Notice be processed.
2. Any letters sent to the plaintiff by any officer within the meaning of the definition of Part 5 of the Corrections Act 1986 for this category or class of documents effective from 19 May 2016 through to the present.
3. Any letters received by the defendant from the plaintiff for this category or class of documents effective from 19 May 2016 through to the present.
4. Any letters sent by the defendant to the plaintiff for this category or class of documents effective from 19 May 2016 through to the present.
5. Any letters received by the IT coordinator of HM Prison Barwon, whether written by been (sic) Miss K McFadden or Ms S Fumberger, or that of any officer within the meaning of the definition of Part 5 of the Corrections Act 1986 for this category or class of documents effective from 19 May 2016 through to the present.
6. Any document sent or received by post or electronic mail from any officer within the meaning of the definition of Part 5 of the Corrections Act 1986, confined to the issue of the processing of any request for any ‘computer-related issue’ for this category or class of documents effective from 19 May 2016 through to the present.
7. Any document sent or received by internal mail or electronically from any officer within the meaning of the definition of Part 5 of the Corrections Act 1986, confined to the issue of the processing (sic) any request concerning the ‘computer-related issue’, the complaint in relation to processing of with ‘printer consumables’ issue, also the processing of the ‘HP ScanJet 3400 ft Flatbed Scanner, along with the acquisition of a newer version of the plaintiff’s existing ELOoffice 9.0 Software’ issues effective for this category or class of documents from 19 May 2016 through to the present.
8. Any documents sent or received by Corrections Victoria, including by internal mail or electronically, in communication with any other Agency or Business Unit of the Department of Justice, including from the office of the Performance and compliance Manager, Barwon Prison, concerning the ‘computer-related issue’, the complaint in relation to processing of with ‘printer consumables’ issue, also the processing of the ‘HP ScanJet 3500 ft Flatbed Scanner, along with the acquisition of a newer version of the plaintiff’s existing ELOoffice 9.0 Software’ issues effective for this category or class of documents from 19 May 2016 through to the present.
9. Any documents sent or received by HM Prison Barwon, including by internal mail or electronically, in communication with Computer Information Technology Advisory Committee (CITAC) concerning the processing of the ‘HP ScanJet 3500 ft Flatbed Scanner, along with the acquisition of a newer version of the plaintiff’s existing ELOoffice 9.0 Software’ issues effective for this category or class of documents from 1 July 2017 through to the present.
10. Any documents, including agent, minutes, memoranda documents, sent or received, raised by any officer within the meaning of the definition of Part 5 of the Corrections Act 1986 from the Computer Information Technology Advisory Committee (CITAC), including by internal mail or electronically, in communication with HM Prison Barwon concerning the processing of the ‘HP ScanJet 3500 ft Flatbed Scanner, along with the acquisition of a newer version of the plaintiff’s existing ELOoffice 9.0 Software’ issues effective for this category or class of documents from 1 July 2017 through to the present.
11. Any document sent or received by internal mail or electronically from any officer within the meaning of the definition of Part 5 of the Corrections Act 1986, confined to the issue of the processing the plaintiff’s request to receive a sum of $3000.00 required for the acquisition of office stationary (sic) items, at the plaintiff’s own cost required for the purposes fore (sic) the proposed filing of a Special Leave application to the High Court of Australia pursuant to the provisions of rule 41.02.2 of the Statutory High Court Rules 2004 effective from dated 14 December 2016 through to the present.
12. Any ‘document’ that will reveal the complete record reasonably linked to the administration and provision of any briefings, advice provided, or received in directing, that Corrections Victoria or HM Prison Barwon concerning the subject matter, in processing:
(a) the computer-related issue;
(b) the global’ (sic) complaints in relation to processing of with ‘printer consumables’ issue;
(c) the ‘HP ScanJet 3500 ft Flatbed Scanner issue;
(d) the ELOoffice 9.0 Software’ issue; and
(e) the request to receive a sum of $3000.00 issue,
for this category or class of documents effective from 14 December 2016 through to the present.
13. Any ‘document’ that will show the complete record evidencing the defendant’s written communication to the plaintiff concerning the subject matter, in processing:
(a) the computer-related issue;
(b) the ‘global’ complaints in relation to processing of with ‘printer consumables’ issue;
(c) the ‘HP ScanJet 3400 ft Flatbed Scanner issue;
(d) the ELOoffice 9.0 Software’ issue; and
(e) the request to receive a sum of $3000.00 issue,
for this category or class of documents effective from 14 December 2016 through to the present.
14. Any documents/information that will show when the Plaintiff’s computer had been “audited” over the last 4 years (by date only).
15. The complete PIMS File in respect to prisoner Hugo A Rich (13705), although only now restricted to the issue, relating to all requests made by the plaintiff and the running note section for this category or class of documents.
16. All emails including attachments, in which the “subject” line and/or body of the text refers to, or, relates to the plaintiff; including, any reply or replies for this category or class of documents effective from 19 May 2016 through to the present.
17. Any emails or memoranda generated by reason of paragraphs [01]-[26] hereinabove for this category or class of documents effective from 14 December 2016 through to the present.
18. Any record of documents revealing the physical attendance of any Duty Manager of Senior Executive Manager attending upon the plaintiff for this category or class of documents effective from 14 December 2016 through to the present.
19. Any record or document from (sic) effective from 14 September 2016 through to the present revealing the plaintiff’s requests being recorded through the internal process known as the “Register of Prisoner Requests and Complaints” procedure – (Schedule 4.01(1) defined by the “policy” referred to as the Deputy Commissioner’s Instruction No: 4.01-Requests and Complaints for this category or class of documents.
20. Any documents sent or received by Roderick Wise, Deputy Commissioner, Operations, Department of Justice and Regulation, or that of his delegate, including by internal mail or electronically, in communication with IT Coordinator’s office, Ms S Fumberger, including to the office of the Performance and Compliance Manager at Barwon Prison, together with any officer within the meaning of the definition of Part 5 of the Corrections Act 1986 at HM Prison Barwon concerning the subject matter, in processing:
(a) the computer-related issue;
(b) the global’ complaints in relation to processing of with ‘printer-consumables’ issue;
(c) the ‘HP ScanJet 3500 ft Flatbed Scanner issue; and
(d) the ELOoffice 9.0 Software’ issue,
for this category or class of documents effective from 14 December 2016 through to the present. Specifically, although not just restricted to, by reason of having received written communication from the plaintiff dated 16 September 2016, 3 October 2016, 4 October 2016, 5 October 2016, 10 October 2016, together with in (sic) having been provided EXTRACTS from the plaintiff’s electronic Diary for 2016 & 2017 (14, 15 September, 10 October, 3, 4, 20 November, 5, 9, 17 December 2016; 1, 3, 9, 10, 11, 14 18 and 20 January 2017
21. Any documents sent or received by IT Coordinator’s office, Ms S Fumberger, together with any officer within the meaning of the definition of Part 5 of the Corrections Act 1986 at HM Prison Barwon, including by internal mail or electronically, in communication with Roderick Wise, Deputy Commissioner, Operations, Department of Justice and Regulation, or that of his delegate, concerning the subject matter, in processing:
(a) the computer-related issue;
(b) the ‘global’ complaints in relation to processing of with ‘printer consumables’ issue;
(c) the ‘HP ScanJet 3400 ft Flatbed Scanner issue; and
(d) the ELOoffice 9.0 Software’ issue,
for this category or class of documents effective from 14 December 2016 through to the present. Specifically, although not just restricted to, by reason of having received written communication from the plaintiff dated 16 September 2016, 3 October 2016, 4 October 2016, 5 October 2016, 10 October 2016, together with in (sic) having been provided EXTRACTS from the plaintiff’s electronic Diary for 2016 & 2017 (14, 15 September, 10 October, 3, 4, 20 November, 5, 9, 17 December 2016; 1, 3, 9, 10, 11, 14, 18 and 20 January 2017)
22. Any ‘record’ or ‘document’ that will show and reveal the processing of a Commissioner’s Requirement – Attachment 7 Application for Access to Computer Software form submitted on 29 July 2017, including the processing of any such form and attachment itself for this category or class of documents.
23. All diary notes or entries, including investigation diaries documents, memoranda, and day book notes, or entries from any person, including other investigation day books documents (whether signed, unsigned or in draft form whether adopted or not) in respect to prisoner Hugo A Rich, although only restricted to the issue relating to all requests made by the Plaintiff between for this category or class of documents effective from 14 September 2016 through to the present.
---
2
10
0