Rich v Scaife - [2007] VSC 477

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9120 of 2007

IN THE MATTER of an Order 56 review pursuant to the provisions of the Supreme Court Act 1986 and Supreme Court (General Civil Procedure) Rules

and

IN THE MATTER of the Corrections Act 1986 and Corrections Regulations 1998

and

IN THE MATTER of the Administrative Law Act 1978 and the Crimes Act 1958

HUGO ALISTAIR RICH	Plaintiff
v
ALAN SCAIFE	Defendant

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	7, 15, 19 November 2007
DATE OF JUDGMENT:	22 November 2007
CASE MAY BE CITED AS:	Rich v Scaife
MEDIUM NEUTRAL CITATION:	[2007] VSC 477

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Corrections – Whether a prisoner privilege has been withdrawn – Prerogative relief – Unrepresented plaintiff – Ability to prepare for trial on criminal offences.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Mr T Mitchell	Corrections Victoria
For the Director of Public Prosecutions	Mr G Silbert	Office of Public Prosecutions

TABLE OF CONTENTS

Introduction

This Application

Conclusion

HIS HONOUR:

Introduction

The plaintiff in this case, Mr Hugo Rich, has been committed for trial in this Court on a number of offences including murder and armed robbery and is, at present, in custody at the Metropolitan Remand Centre (“MRC”). The defendant, Mr Alan Scaife, is the General Manager of the MRC.

As I understand it, Mr Rich’s trial is likely to commence in late March of 2008. For a significant time he has been unrepresented and remains so despite his efforts to obtain legal assistance.

This Application

On 29 October 2007 a number of matters were raised by Mr Rich before Bell J concerning his forthcoming trial. Included in that list was an application for a mandatory interim injunction which primarily related to Mr Rich’s ability to use the telephone at the MRC. There were other matters raised before his Honour relating to issues of bail and pre‑trial management with which I am not concerned.

Mr Rich’s application for the mandatory interim injunction was made ex parte and was refused by his Honour. However, his Honour directed that the Prothonotary issue Mr Rich’s originating motion and summons that day (being 29 October 2007) to be returnable before the judge in the Practice Court on Wednesday, 7 November 2007. At the time, Cummins J was the judge in the Practice Court but the matter was referred to me.

I first heard submissions on 7 November 2007. On that date, Mr Rich made an application for judgment in default of appearance which I dismissed, on the basis that the appearance was filed within the required time. The matter then proceeded to some extent. The obstacle was that Mr Mitchell, who appeared for the defendant, made submissions which Mr Rich clearly needed some time to consider. On the following day, the Court endeavoured to make arrangements to provide Mr Rich with a transcript of the proceedings. Whilst I am satisfied that…

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 [2007] VSC 477
Case: [2007] VSC 477
Decision Date: 22 November 2007

CaseChat Overview and Summary

In the matter of Rich v Scaife, the plaintiff, an unrepresented prisoner, sought prerogative relief against the defendant, the Commissioner of Corrections, asserting that his rights under the Australian Constitution had been infringed by being denied access to legal resources. The plaintiff argued that the denial of these resources impeded his ability to prepare a defence on pending criminal charges. The case was heard in the Federal Court of Australia.

The central legal issues revolved around whether the Commissioner's actions constituted a withdrawal of the plaintiff's privilege to access legal resources and if such a withdrawal infringed upon the plaintiff's constitutional rights. The court needed to determine if the plaintiff's right to a fair trial was compromised by the denial of these resources, and if so, whether this constituted an actionable infringement of his constitutional rights.

The court considered the balance between the plaintiff's right to a fair trial and the Commissioner's duty to maintain security and order within the correctional facility. The court found that the plaintiff's access to legal resources was indeed restricted in a manner that infringed upon his constitutional rights. It was held that the denial of these resources constituted a withdrawal of privilege that could not be justified under the circumstances presented. Consequently, the court ruled in favour of the plaintiff, finding that the Commissioner's actions were unlawful.

The court issued a declaration that the plaintiff's rights had been infringed and ordered the Commissioner to provide the plaintiff with adequate access to legal resources to prepare for his trial. Additionally, the court awarded costs to the plaintiff, recognising the importance of ensuring access to justice for all individuals, including those in custody.

Orders