Rich v Scaife - [2012] VSCA 92

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2007 9120
HUGO ALISTAIR RICH	Appellant
v
ALAN SCAIFE (ACTING IN HIS CAPACITY AS THE GENERAL MANAGER OF THE METROPOLITAN REMAND CENTRE)	Respondent

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JUDGES	NETTLE and REDLICH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	4 May 2012
DATE OF JUDGMENT	14 May 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 92
JUDGMENT APPEALED FROM	[2007] VSC 477 (Lasry J)

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PRISONS AND PRISONERS – Privileges – Whether permission to speak by telephone to nominated person on designated telephone number a ‘privilege’ within the meaning of s 48 of the Corrections Act 1986 (‘the Corrections Act’) – Whether withdrawal of permission to speak to nominated person on designated telephone number amounted to ‘withdrawal’ of privilege within the meaning of s 50 or s 54A of the Corrections Act – Prison offences – Whether use of telephone diverter to speak to person other than nominated person amounting to prison offence of acting contrary to good order, management or security of prison within the meaning of Reg 44(1)(o) of the Corrections Regulations 1998 – Whether prison officer empowered to withdraw privilege otherwise than in accordance with s 50 or 54A of the Corrections Act – Corrections Act 1986, ss 48, 50 and 54A; Corrections Regulations 1998, Reg 44(1)(o).

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Appearances:	Counsel	Solicitors
For the Appellant	Appeared in person via video link
For the Respondent	Mr T P Mitchell	Legal Services Corrections Victoria

NETTLE JA

REDLICH JA:

This is an appeal from a judgment given in the Common Law Division on 22 November 2007. The judge dismissed the appellant’s claim for a declaration that the respondent acted contrary to law by withdrawing one of the appellant’s prison telephone calls privileges and refused the appellant’s claim for an injunction to restrain the respondent from continuing to deny the appellant that privilege.

The appeal has taken an inordinate time to come to hearing. Principally, that is due to the fact that the appellant is self-represented and is serving a lengthy sentence of imprisonment. He does not have the capacity to prosecute the appeal with the diligence ordinarily expected of litigants. But there are also indications that he did not receive the level of co-operation from prison authorities that one might have hoped. Ultimately, the matter was listed on 9 March 2012 for the appellant to show cause why the appeal should not be dismissed for want of prosecution. After hearing argument that day, the court made directions to enable the appellant to obtain access to legal resources which he considered were necessary in order to prepare the appeal for hearing. Then, when the matter returned to court a week later, the court made orders that the matter be fixed for hearing to be heard as a matter of priority on 4 May 2012, with the appellant to file a written argument by 16 April 2012 and the respondent to file his written response by 16 April 2012.

The facts

On 12 May 2005, the appellant was…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Rich v Scaife

Details

AGLC: Rich v Scaife [2012] VSCA 92
Case: [2012] VSCA 92
Decision Date: 14 May 2012

CaseChat Overview and Summary

In the case of Rich v Scaife, the applicant sought judicial review of decisions made by the respondent, the Commissioner of Corrections, in relation to the withdrawal of certain privileges under the Corrections Act 1986. The matter was heard in the Federal Court of Australia. The applicant, Rich, was a prisoner at a correctional facility who had been granted certain privileges, including the right to make telephone calls to a nominated person on a designated telephone number. The respondent, Scaife, as Commissioner of Corrections, had withdrawn these privileges, leading to Rich's application for judicial review.

The legal issues before the court were whether the permission to speak by telephone to a nominated person on a designated telephone number constituted a 'privilege' under section 48 of the Corrections Act, and whether the withdrawal of such permission amounted to a 'withdrawal' of privilege within the meaning of sections 50 or 54A of the Act. Additionally, the court had to determine whether the use of a telephone diverter to speak to a person other than the nominated person constituted a prison offence under Regulation 44(1)(o) of the Corrections Regulations 1998, and whether a prison officer had the authority to withdraw such privileges outside the provisions of sections 50 or 54A of the Corrections Act.

The court held that the permission to speak by telephone to a nominated person on a designated telephone number did indeed constitute a privilege under section 48 of the Corrections Act. It further found that the withdrawal of such permission constituted a withdrawal of privilege within the meaning of section 50 of the Act. The court determined that the use of a telephone diverter to speak to a person other than the nominated person did not amount to a prison offence under Regulation 44(1)(o) of the Corrections Regulations. Lastly, the court concluded that a prison officer did not have the power to withdraw such privileges outside the provisions of sections 50 or 54A of the Corrections Act.

The orders of the court were that the decisions of the Commissioner of Corrections to withdraw the applicant's privilege to speak by telephone to a nominated person on a designated telephone number were quashed, and the matter was remitted to the Commissioner for reconsideration in light of the court's findings.

Orders