Rich v Ryan
[2017] VSC 607
•11 October 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 05215
| HUGO ALISTAIR RICH | Plaintiff |
| v | |
| BRETT RYAN (Acting in his capacity as General Manager of HM Prison Barwon and for Corrections Victoria) | Defendant |
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JUDGE: | Lansdowne AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 May 2017 with further submissions to 29 May 2017 |
DATE OF JUDGMENT: | 11 October 2017 |
CASE MAY BE CITED AS: | Rich v Ryan |
MEDIUM NEUTRAL CITATION: | [2017] VSC 607 |
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JUDICIAL REVIEW – Application for strike out or summary dismissal – Plaintiff contends that a direction by the defendant that he provide a urine sample for testing was ultra vires for failure to comply with a requirement that the sample be tested by an ‘officer’ – Whether claim is intelligible – Whether it has any real prospect of success – Whether declaratory relief would be granted – Strike out and summary judgment refused – Corrections Act1986 (Vic) s 29A.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff appeared in person via video link | ||
| For the Defendant | Ms S Fitzgerald | Victorian Government Solicitor’s Office |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Power to direct urine testing............................................................................................................ 2
Facts....................................................................................................................................................... 4
Principles to apply to the determination of the summons......................................................... 6
Further amended originating motion........................................................................................ 6
Procedure adopted and relief sought........................................................................................ 6
Strike out........................................................................................................................................ 7
Summary judgment...................................................................................................................... 9
Discussion.......................................................................................................................................... 11
Strike out...................................................................................................................................... 11
Summary judgment.................................................................................................................... 12
Further matters.................................................................................................................................. 16
Orders................................................................................................................................................. 17
HER HONOUR:
Introduction
Mr Rich is a prisoner at HM Prison Barwon. He commenced this proceeding by originating motion and summons filed on 18 September 2015. In essence, the plaintiff seeks review of a direction by the defendant that he, the plaintiff, be subjected to urine testing for drug use. The plaintiff submits that the procedure followed for the testing did not comply with s 29A of the Corrections Act 1986 (Vic) (‘Corrections Act’).
The defendant filed a summons on 13 November 2015 seeking that the originating motion be struck out pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). The plaintiff was permitted to file a proposed amended originating motion, but purported to file an amended originating motion as though leave was not required. By directions made on 1 March 2017 Associate Justice Derham regularised the filing of that document, which was dated 16 January 2017 and filed on 23 January 2017. He directed that that document stand as the plaintiff’s amended originating motion.
Associate Justice Derham also permitted the defendant to file an amended summons, later filed 6 March 2017. The amended summons responds to the amended originating motion dated 16 January 2017 and also seeks, in the alternative to strike out, summary judgment in favour of the defendant.
The amended originating motion and the amended summons came before me for hearing on 1 May 2017. It appeared, however, that the plaintiff had not received the defendant’s submissions in sufficient time for his own responsive submissions, and on that basis he sought an adjournment. After hearing the parties, I ruled that the hearing before me proceed on the basis that further submissions could be made in writing. At the conclusion of the oral hearing, I directed that the plaintiff file and serve a further amended originating motion limited to the addition of the relief that he seeks and gave him leave to file and serve any further responsive submissions. I also gave the defendant leave to file and serve any written reply submissions.
These reasons record my determination of the defendant’s amended summons.
Power to direct urine testing
The further amended originating motion seeks orders to the effect that the decision made by the defendant on 17 July 2015 to subject the plaintiff to urine testing for alcohol or drug use was invalid or ultra vires. The grounds relied upon assert in essence that the decision was invalid because the procedure adopted did not comply with the requirements of s 29A of the Corrections Act, in that the testing for the presence of alcohol or drugs was not carried out by an officer as the section requires, but by an external pathology laboratory.
Section 29A provides as follows:
29A Prisoners may be tested for drug or alcohol use
(1)If the Governor considers it necessary to do so in the interests of the management, good order or security of the prison, he or she may at any time direct a prisoner to submit to tests to assess whether the prisoner has used or consumed—
(a) any alcohol; or
(b) any drug of dependence; or
(c)any Schedule 8 poison or Schedule 9 poison within the meaning of the Drugs, Poisons and Controlled Substances Act 1981.
(2) Tests under subsection (1)—
(a) must be of a kind approved by the Secretary; and
(b) may include the taking of samples of urine; and
(c) must be carried out by an officer within the meaning of Part 5.
(3) The following are deemed to be, and to have always been, valid—
(a)any direction given, or purportedly given, under this Act before the date of commencement of section 4 of the Corrections (Amendment) Act 2003 requiring a prisoner to submit to any test to assess whether the prisoner was using alcohol; and
(b)any test conducted on a urine sample, taken under this section before the date of commencement of section 4 of the Corrections (Amendment) Act 2003, to assess whether the prisoner who provided the sample was using alcohol.
‘Officer within the meaning of Part 5’ is defined by s 14 of the Act in these terms:
officer means a person who is—
(a) a Governor; or
(b) a prison officer; or
(c) a volunteer; or
(d) working in a prison or with prisoners and who is—
(i) an employee in the public service; or
(ii) an employee in the teaching service; or
(iii)a member of staff of a TAFE institute within the meaning of the Education and Training Reform Act 2006; or
(iv)a member of staff of a dual sector university within the meaning of the Education and Training Reform Act 2006; or
* * * * *
(f)a member of a prescribed class of persons who works in a prison as a psychiatrist, registered medical practitioner, dentist, nurse, midwife or health worker.
The plaintiff has made reference in his material to various regulations, but in fact no regulations have been made that expressly deal with the taking of urine samples for the purposes of s 29A(2)(b). The only express reference to s 29A in the Corrections Regulations2009 (Vic) (‘the Regulations’) is in regulation 77, which relates only to ‘breath tests’ to ascertain the presence of alcohol. That regulation expressly refers to such tests being carried out by authorised escort or prison officers, and the thrust of the regulation is that the ‘breath test’ includes the component of analysis, as provided by an instrument operated by the officer. In other words, that regulation does not relate to urine samples, and nor does it envisage analysis by an external laboratory.
Although there are no relevant regulations, Corrections Victoria has developed a detailed policy in relation to testing for the use of drugs and alcohol and detailed procedures for the taking of such samples.[1] The procedures include a requirement for a strip search prior to the giving of the sample, that the sample be provided in the presence of two officers, and that it then be divided into two. One of the samples is then sent for analysis, and the other retained for verification if required by the prisoner. The Deputy Commissioner’s Instruction provides that ‘(a) urine sample must be tested using one or more of the technologies listed (in an attached schedule) by a Pathology Laboratory approved by Corrections Victoria’ (emphasis added).[2]
[1]Affidavit of Debra Judith Coombs sworn 22 March 2017, and DJC-1 and 2 thereto.
[2]Ibid DJC-1 [4.5].
Regulation 69 of the Regulations permits strip searches of prisoners in certain situations and regulates the conduct of those situations. There is no specific reference in that regulation permitting strip searches prior to requiring a urine sample, although the general authorising provision of reg 69(3) may be sufficient. There is, by contrast, in reg 69(2)(c) specific authorisation for strip searches ‘prior to the testing of substances referred to under regulation 76’. Regulation 76 does not, however, relate to the taking of samples of urine to test for alcohol or prohibited drugs. It regulates the analysis of samples of substances that an officer ‘believes to be a drug of dependence or alcohol that is found in the possession of a prisoner and that was not lawfully issued to the prisoner’. Regulation 75 permits prison officers to seize such samples. Regulation 76 permits this analysis to be undertaken by an analyst external to the prison. There is no equivalent provision in the Corrections Act or the Regulations in respect of the analysis of samples of urine. In other words, the only explicit provision for the use of an external analyst in the statutory provisions relates to the analysis of substances suspected themselves to be alcoholic or a drug of dependence, not the testing of bodily samples for the consumption or use of alcohol or drugs.
The plaintiff submits that the procedures and policies adopted by Corrections Victoria cannot depart from the statutory provisions. This is plainly correct, and the defendant does not contend otherwise.
Facts
The question raised by the plaintiff’s further amended originating motion is one of statutory construction. It is necessary, however, that the plaintiff establish a factual context that allows him to seek this relief. There is no dispute as to the following facts.
First, that the plaintiff was required by the defendant to provide, and did provide, a urine sample on 17 July 2015. No question is said to arise as to compliance with s 29A(1) i.e. that the defendant is the relevant person to make a direction under s 29A; that he had formed the required opinion to make such a direction; and that the taking of the plaintiff’s urine sample was for a purpose stipulated by s 29A(1). In this instance, the test results suggest that the purpose was to test for the presence of various drugs. There is also no issue that s 29A(2)(a) was complied with.
Further, the plaintiff does not dispute that the test, in the sense of obtaining the sample, securing it, and conveying it for analysis, was undertaken by an ‘officer’ or ‘officers’, within the meaning of s 29A(2)(c).
There is no dispute that the analysis of the sample, i.e. subjecting the sample to examination for the presence of such drugs, was carried out by Dorevitch Pathology. Although Dorevitch Pathology is entered on the notification to the plaintiff of the test results as the ‘Testing Officer’,[3] the defendant concedes that Dorevitch Pathology and its employees are not ‘officers’ as defined in s 14 of the Act.[4] It is conceded then that the analysis or examination of the sample was not undertaken by an ‘officer’ as required by s 29A(2)(c). The issue is whether this means the ‘test’ was not carried out by such an officer, as that sub-section requires.
[3]Notification to Prisoner of Assay Result dated 23 July 2015, being the first page of HAR-1 to the plaintiff’s affidavit sworn 15 September 2015.
[4]Transcript page 55, lines 12-14 summarising the defendant’s submissions.
The plaintiff has put into evidence the results of previous urine and breath tests conducted on samples he provided dating back to 20 September 2005.[5] Indeed, he submits that ‘the defendant, along with Corrections Victoria’ have been acting ultra vires ‘for almost 25 years’.[6] Each result reported in the plaintiff’s evidence is negative. The defendant does not dispute these results. Indeed, the defendant relies on them to contend that the plaintiff would not be granted the relief that he seeks because he has not suffered any adverse consequence from any urine testing.
[5]Balance of HAR-1. See also DJC-3 to the affidavit of Debra Judith Coombs sworn 22 March 2017.
[6]Submissions on Behalf of the Plaintiff dated 17 April 2017 at [9].
Principles to apply to the determination of the summons
Further amended originating motion
The further amended originating motion filed by the plaintiff purports by added paragraph 48 to add further grounds, in addition to the permitted addition of the relief that he seeks. The defendant objects to these further grounds on the basis that it would be prejudicial to the defendant to allow the plaintiff to amend the grounds for review ‘after the fact’ i.e. after close of the defendant’s submissions in support of his amended summons.[7] This is plainly right. If the plaintiff wished to seek to add further grounds, he should have sought leave to do so. He did not. I will not take the grounds identified in added paragraph 48 into consideration, and will strike them out.
[7]Submissions in Reply on Behalf of the Defendant dated 29 May 2017 at [2].
Procedure adopted and relief sought
The plaintiff has utilised the procedure set out in O 56 of the Rules to initiate his claim. O 56 sets out the procedure for judicial review of the decisions of lesser courts and tribunals, including persons or bodies that are required to act judicially although not formally courts or tribunals. Neither party has made any submission as to whether or not the defendant in the exercise of his functions under s 29A is such a person, so as to enliven the Court’s supervisory jurisdiction over him. At the time when the amended originating motion did not seek any relief, the defendant did, however, submit that the usual relief of certiorari and mandamus on judicial review could not be, or would not be, granted.[8]
[8]Submissions on Behalf of the Defendant dated 22 March 2017 at [15]-[17].
It is now not necessary to determine the availability of that relief because in the further amended originating motion the plaintiff seeks declaratory relief. The plaintiff seeks declarations to the effect that the defendant’s direction that the plaintiff provide a urine sample was ultra vires. Declaratory relief has a statutory basis and can be sought irrespective of the availability of relief by way of judicial review.
The nature of declaratory relief was considered by McDonald J in XX v WW and Middle South Area Mental Health Service (‘XX’)[9] in these terms (extracted without citations):
The court’s jurisdiction to make a binding declaration of right without granting consequential relief arises pursuant to s 85 of the Constitution Act 1975 read in conjunction with s 36 of the Supreme Court Act 1986. A declaration is not an equitable remedy. It is a statutory remedy that is conferred in terms emphasising that its grant or refusal is within the discretion of the court. Further, the court’s power to grant declaratory relief can be enlivened in circumstances where no power exists to grant relief in the nature of mandamus and certiorari. This is clear from the High Court’s judgment in Ainsworth v Criminal Justice Commission. In this case, the High Court held there was no power to grant certiorari or mandamus in respect of a report prepared by the Criminal Justice Commission. Although the report had been prepared in breach of the rules of procedural fairness, there was no legal effect attaching to the report. However, the court did grant a declaration that in preparing the report the Criminal Justice Commission had failed to observe the requirements of procedural fairness.[10]
[9][2014] VSC 564.
[10]Ibid [45].
The defendant concedes that a declaration that the direction made on 17 July 2015 was ultra vires may be sought, as a matter of law, although he contends that it would be refused as a matter of discretion. In relation to the question of discretion, McDonald J held in XX that (extracted without citations):
It is uncontroversial that if there is no foreseeable consequence flowing from the grant of declaratory relief, this is a powerful consideration weighing against the grant of such relief. However, the question of whether there is a foreseeable consequence is a matter properly to be taken into account in determining whether to exercise the power to grant a declaration. It is not, of itself, a bar to the existence of the power to grant declaratory relief. [11]
[11]Ibid [47].
Strike out
The amended summons seeks strike out of the amended originating motion pursuant to r 23.02 of the Rules. That rule provides as follows:
23.02 Striking out pleading
Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading—
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair trial of the proceeding; or
(d) is otherwise an abuse of the process of the Court—
the Court may order that the whole or part of the indorsement or pleading be struck out or amended.
The amended summons relies on paragraphs (a), (c) and (d). In relation to paragraph (a) the defendant adds the gloss in his amended summons that the amended originating motion fails to disclose a ‘reasonable’ cause of action.
The basis for the application for strike out is elaborated in the defendant’s submissions. The defendant in his initial written submissions seeks strike out of the whole of the amended originating motion on the grounds that ‘much of the indorsement is unintelligible, and it does seek any particular relief’.[12]
[12]Submissions on Behalf of the Defendant, 22 March 2017 [2].
The defendant also submits that the amended originating motion should be struck out because it seeks that the Court give an advisory judgment, on issues that are hypothetical only.[13] The defendant makes this submission on the basis that the result of the urine testing in question was negative.
[13]Ibid [7].
The defendant appears to concede that his objection in relation to the absence of relief sought has been addressed in the further amended originating motion. I reach this conclusion because the defendant in his submissions in reply no longer submits that the further amended originating motion is defective for the absence of relief sought.
An objection under r 23.02 is to the form of expression of a plaintiff’s claim, rather than to the substance of the claim as shown by the evidence. It follows that the Court in determining such an application is limited to what appears in the pleading or indorsement in question, and may not consider any evidence or other extrinsic material.
Summary judgment
The amended summons also seeks that summary judgment be given for the defendant pursuant to s 62 of the Civil Procedure Act2010 (Vic) (‘CPA’) and r 22.16 of the Rules.
The relevant provisions of the CPA are ss 62, 63, 64 and 65. I set out ss 62 and 64 below. Section 63 relevantly confers power on the court to grant summary judgment in favour of a defendant, and s 65 provides that the power conferred by the Act to grant summary judgment are in addition to, and do not derogate from, any power to grant summary judgment under rules of court.
Sections 62 and 64 of the CPA provide as follows:
62 Defendant may apply for summary judgment in proceeding
A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.
64 Court may allow a matter to proceed to trial
Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a) it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.
The Rules provide for the making of an application by a defendant under s 62 in rules 22.16 - 22.23. Rule 22.22 confers power on the Court to dispose of the application, which is subject to the CPA, in the following way:
22.22 Hearing of application
Subject to Part 4.4 of Chapter 4 of the Civil Procedure Act 2010, on the hearing of an application the Court may—
(a) dismiss the application;
(b)give such judgment for the defendant against the plaintiff on the claim or the part of the claim to which the application relates as is appropriate (including the grant of any appropriate stay of the proceeding), having regard to the nature of the relief or remedy claimed; or
(c)with the consent of all parties, and notwithstanding Rule 77.03(1), dispose of the proceeding finally in a summary manner.
Paragraph (c) confers power to dispose of the proceeding finally as if at trial. The parties did not seek that course.
Prior to the commencement of the CPA, the test for the grant of summary judgment for either a plaintiff or a defendant required that the defence, or claim as the case may be, was hopeless or bound to fail. In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd[14] the Court of Appeal by majority (Warren CJ and Nettle JA) held that the statutory test of ‘no real prospect of success’ is whether the respondent to the application has a ‘real’ as opposed to a ‘fanciful’ chance of success; that the test should be applied ‘by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’’ and that it is ‘to some degree a more liberal test’ than that earlier common law threshold. Nevertheless, the Court emphasised that ‘the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried’.[15]
[14]42 VR 27; [2013] VSCA 158.
[15]Ibid (per Warren CJ and Nettle JA) [35].
Where the defence or claim, as the case may be, has no real prospect of success the Court is also required to consider whether to exercise the discretion to refuse summary judgment conferred by s 64.[16]
[16]Ottedin Investments Pty Ltd v Portbury Developments Pty Ltd (2011) 35 VR 1, per John Dixon J, [18], cited in the Submissions on Behalf of the Defendant, 22 March 2017 [8].
The defendant submits that the plaintiff has no real prospect of success in relation to his interpretation of s 29A, as the section properly interpreted only requires that the physical taking of samples of urine (and, by extension, the physical taking of other bodily samples as permitted) be undertaken by an officer within the meaning of Part 5 of the Act. The defendant submits that the section does not require the analysis of those samples to be undertaken by an officer, and indeed that it would absurd if it did.
Discussion
Strike out
As noted earlier, the Court in determining an application for strike out is confined to the expression of the claim in the initiating process or pleading, now the further amended originating motion. The document is certainly fulsomely expressed, and in some respects repetitive, but in my view it is intelligible. The essence of the plaintiff’s claim - that the direction to obtain a urine sample from him was ultra vires because it would not be ‘tested’ by a prison officer - is ascertainable. The factual context is also identified, in particular the further amended originating motion specifies the date of the relevant direction as being 17 July 2015 in paragraph 8, and then by reference in paragraph 35. The defendant does not make any submission that this direction is not capable of review by the Court, or that the application for review is made out of time. The grounds for review are also sufficiently expressed. Paragraphs 35 and 39(b) identify the plaintiff’s central grievance that analysis of a urine sample by an external laboratory rather than an ‘officer’ does not comply with s 29A. Finally, the further amended originating motion now includes the relief that is sought.
I have given consideration to whether the further amended originating motion seeks determination of the validity of directions to obtain urine samples from the plaintiff on other occasions, or from other prisoners on 17 July 2015 or other occasions. The breadth of the plaintiff’s written submissions and his reference to ‘decisions’ i.e. in the plural in, for example, paragraph 2 of the further amended originating motion might suggest this. The claim could be objectionable if it was this broad. I do not think, however, that properly construed it is this broad. The relief that the plaintiff seeks in the further amended originating motion is limited to declarations in relation to the direction made on the one specified date of 17 July 2015. He confirmed in his oral submissions that his claim is limited to this particular direction.[17] The proposed form of relief is not limited in terms to the direction made in relation to the plaintiff, but it is difficult to see how the plaintiff would have any standing to seek relief for other prisoners. Accordingly, I read the relief sought as limited to the direction made in relation to the plaintiff alone on 17 July 2015.
[17]Transcript page 69, lines 18-28.
That relief is in the nature of declarations. The defendant concedes that declaratory relief is available, but submits that here it would unlikely to be granted given that the result of the test in question was negative. Consistently with XX, I consider that while the availability in law of the relief sought is a question that may arise on a strike out application, the likelihood of the relief being granted is not. Accordingly, I will discuss the defendant’s submission that the relief is unlikely to be granted in the context of his summary judgment application.
The defendant’s amended summons also seeks strike out on the basis that the then amended originating motion fails to disclose a ‘reasonable’ cause of action. As I noted earlier, the addition of the word ‘reasonable’ is a gloss on the rule permitting strike out. If the addition of the word is intended to relate to comment on the merits of the claim, then the contention is not a matter for strike out, but for summary judgment. The defendant has not identified any basis for strike out under paragraph (a) of r 23.02 other than the issues of intelligibility, earlier absence of the relief sought, or likelihood of the grant of that relief which I have already discussed.
For these reasons, I will refuse the defendant’s application for strike out, save that I will strike out paragraph 48 which was included in the further amended originating motion without leave.
Summary judgment
The parties’ competing submissions turn on the meaning of the word ‘tests’ in s 29A, in particular in s 29A(2). In discussing the competing contentions, it is helpful to draw a distinction between the obtaining of a urine sample, and the analysis or examination of that sample to determine if it reveals usage of prohibited drugs.
On a purposive analysis of s 29A, the defendant’s submissions have considerable weight. I accept the submission that the requirement for the involvement of prison officers in s 29A(2) is likely directed to the prisoner management and security issues arising from physical engagement with prisoners to obtain samples for analysis.[18]
[18]Submissions on Behalf of the Defendant dated 22 March 2017 at [11].
I also accept the defendant’s submission that it is important that the results of drug tests be accurate, and that the interpretation advanced by the plaintiff could, at least theoretically, expose prisoners to the risk of being convicted of prison offences for drug use on the basis of incorrect analysis by unqualified prison officers.[19]
[19]Ibid [14].
It follows that it is unlikely to have been intended by Parliament that prison officers without the necessary qualifications be required to carry out the analysis of bodily samples, as well as the obtaining of them from prisoners. To the extent that a literal interpretation of the section might require this, the defendant submits that the literal meaning should be modified to overcome an absurdity.[20]
[20]Ibid.
The plaintiff’s submission is that ‘test’ means, or at least includes, the component of analysis or examination of the object or sample in question, as well as the obtaining of it.[21] On this submission, the ‘test’ that s 29A(2)(c) requires be carried out by an ‘officer’ is not limited to the taking of the urine sample, but includes the analysis of that sample. Further in support of this interpretation, the extended definition of ‘officer’ in Part 5 of the Act which is adopted in s 29A(2)(c) would permit this analysis to be undertaken by an ‘officer’ who is a health worker working in a prison.
[21]Transcript page 60, lines 11-14.
The plaintiff’s interpretation of the word ‘test’ is supported by the dictionary definition of ‘test’ and its common usage. The dictionary definition of ‘test’ as a noun in the Oxford English Dictionary is:
(in chemistry) a procedure for examining a substance under known conditions or with a specific reagent to determine its identity or the presence or absence of some constituent, activity, etc’…
(in other contexts) a procedure for determining the physical properties of a substance, material, etc., or the capabilities of a machine, etc., esp. to assess suitability for some purpose… procedure for assessing a person's aptitude, competence, skill or knowledge, or for determining a person's mental or physiological condition.[22] (emphasis added)
[22]Stevenson, Angus and Brown, Lesley Shorter Oxford English Dictionary on Historical Principles, (Oxford University Press, 6th edition, 2007) 3218–3219.
The bolded words in this definition highlight that examination, analysis or assessment is a necessary component of a ‘test’.
The word ‘test’ is also used in common usage to include the analysis or examination of a piece of work or other object submitted for ‘testing’, as well as the undertaking of that work. If support for this proposition is required, it can be found in the very Corrections Victoria document that outlines the procedure to be followed in relation to urine testing, Deputy Commissioner’s Instruction No 3-10.[23] The Instruction sets out at length the procedures to be followed in relation to the collection, packaging, transportation and storage of urine samples (all to be undertaken by officers) and then under the heading ‘Testing of Urine Samples’ provides, as set out earlier, that ‘(a) urine sample must be tested using one or more of the technologies listed in Schedule 3.10(3) by a Pathology Laboratory approved by Corrections Victoria’[24] (emphasis added). In other words, the Instruction itself treats obtaining the sample and ‘testing’ it as different.
[23]Exhibit DJC-1 to the affidavit of Debra Judith Coombs sworn 22 March 2017.
[24]Ibid a[4.5] p 8 of 17.
Thus the plaintiff’s interpretation has the merit of arguably being both the literal meaning of the word ‘test’ and its meaning in common usage. The defendant concedes that one literal meaning of ‘test’ includes or requires analysis or examination, but says it is not the only literal meaning.[25]
[25]Transcript page 44, lines 8-15.
Both interpretations have some contextual support in s 29A. The defendant relies on the use of the phrase ‘direct a prisoner to submit to tests’ in sub-section 1 in support of his proposition that the required involvement of prison officers is directed to the physical interaction with prisoners to obtain the necessary bodily sample. It might also be said, however, that the immediately following words which set out the required purpose of the direction as being ‘to assess whether the prisoner has used or consumed (alcohol or certain drugs)’ support the plaintiff’s interpretation - that ‘test’ means, or at least includes, the step of assessment i.e. analysis.
Each interpretation is arguably supported by paragraph (b) of s 29A(2). That paragraph specifies that the ‘tests’ may ‘include’ the taking of samples. This could mean that the taking of samples is itself a test, as the defendant submits,[26] or that it is a component of, but not the whole of, a test of that sample.
[26]Transcript page 43, lines 23-28.
Finally, the saving provision inserted in 2003 by paragraph (b) of sub-section 29A(3) was not referred to in argument, but could support the plaintiff’s contention that the ‘test’ is the assessment of the sample, not the taking of the sample.
For these reasons, I am not persuaded that the plaintiff’s interpretation of the meaning of ‘tests’ in s 29A(2)(c) has no real prospect of success. On the contrary, it has at least some merit, and is a question to be tried.
The defendant’s further and perhaps alternative submission is that, even if the plaintiff’s interpretation has merit, he is unlikely to obtain the declaratory relief that he seeks because the result in respect of his 17 July 2015 test was negative, and so he did not suffer any adverse consequences. In my view, this submission fails for two reasons.
First, it treats the possibility of disciplinary sanction arising from a positive test result as the only consequence of a direction to provide a urine sample sufficient to justify affording relief. There are other consequences of such a direction, including the physical intrusion of the strip search that is required before the sample is provided, and the invasion of privacy implicit in providing such a sample in the presence of prison officers. As it would seem that these consequences flowed to the plaintiff from the collection of the sample, irrespective of the negative result on its assessment, if it were a matter for me I would not necessarily consider his claim to be a hypothetical one that disentitled him to relief for that reason alone.
This brings me to the second reason why I will not grant summary judgment on the basis of the result of the test being negative. I do not consider that it is a matter for me on this summary judgment application to reach a conclusion as to whether or not discretionary relief should be granted. In my view discretionary considerations as to the grant of relief, as opposed to its availability as a matter of law, should ordinarily be left for trial. This is particularly so where it cannot be said that the claim has no real prospect of substantive success i.e. the plaintiff may fail only because of the discretionary refusal of relief. If the plaintiff succeeds in his substantive argument that the taking of the urine sample was ultra vires, then whether or not the consequences to him of that ultra vires collection were sufficient to justify a declaration in his favour is properly a matter for trial.
For these reasons, I will refuse the defendant’s application for summary judgment.
Further matters
The further amended originating motion should now be listed for trial. That should occur as soon as practicable. The delay that has occurred since the commencement of the proceeding in September 2015 and will now occur to trial is very regrettable. Some of that delay has been occasioned by interlocutory relief sought by the plaintiff and the adjournment of the proceeding to await his unsuccessful appeal against the refusal of that relief; some by technical issues in relation to video links; and some by delay in the delivery of various judgments. I apologise for my contribution to that delay.
Some of the delay has also arisen, however, from the decision by the defendant to seek strike out and then in addition summary dismissal, rather than proceeding directly to trial. True it is that the plaintiff did not set out the relief he sought, but the nature of the grievance and the grounds were ascertainable, and if summary judgment was refused, as it has been, what could have been disposed of in one hearing will now require two. The Court is now endeavouring to list judicial review matters at trial within a short space of time after initiation. In that context, I would urge defendants in future to seriously assess the utility of interlocutory applications.
I have caused the oral argument on 1 May 2017 to be transcribed and the Court will provide a copy to the parties. I will allow the parties to seek a timetable for further material for trial if either or both require it, but, given the detail of the written submissions to date and the breadth of the argument before me, I urge them to consider carefully whether anything further is required.
There is also an outstanding summons issued by the plaintiff on 6 January 2016. That summons was issued after a direction by Associate Justice Daly on 2 December 2015 permitting the filing of a proposed amended originating motion. The summons appears to seek leave to make such amendment; the joinder of various persons; orders for discovery and inspection; and adjournment of another proceeding pending the hearing and determination of this proceeding. It does not appear that this summons has been determined, except in relation to amendment of the originating motion. Both the defendant’s summons (then seeking only strike out) and this summons were adjourned by Associate Justice Daly on 15 February 2016 to await the determination of the plaintiff’s appeal from dismissal of another interlocutory summons. That application for leave to appeal was heard by the Court of Appeal and refused on 20 December 2016. This proceeding was then relisted for directions, but it does not appear that either party sought that the plaintiff’s summons of 6 January 2016 be listed for hearing.
In these circumstances, I am inclined to the view that the summons has been overtaken by events and abandoned, and should be dismissed on that basis, but will hear the plaintiff to the contrary if required.
Orders
I will ask the parties to confer and prepare orders to give effect to these reasons. If they cannot agree on proposed orders within three weeks of today’s date, they should contact my associate to seek that the proceeding be relisted for orders and directions. In the meantime, I will ask the Registry to notify the parties of a hearing date for the trial.
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