Rich v The Secretary, Department of Justice (No 3)

[2011] VSC 224

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

No. S CI 2010 93

BETWEEN

HUGO ALISTAIR RICH	Plaintiff
and
THE SECRETARY, DEPARTMENT OF JUSTICE & ORS	Defendants

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 May 2011
DATE OF RULING:	24 May 2011
DATE OF REASONS:	26 May 2011
CASE MAY BE CITED AS:	Rich v The Secretary, Department of Justice & Ors (No 3)
MEDIUM NEUTRAL CITATION:	[2011] VSC 224

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Prerogative relief – Practice and procedure – Civil proceeding seeking relief in relation to pending criminal appeal.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendants	Mr T Mitchell	Sean K Morrison Legal Services Corrections Victoria

HIS HONOUR:

1. On 3 May 2011 I delivered a ruling in this proceeding.[1]  In substance, I ruled that the proceeding had not been struck out by virtue of the operation of a self-executing order made by Bell J on 31 August 2010. 

   [1][2011] VSC 174.

1. At the time of my earlier ruling counsel on behalf of the defendants foreshadowed an application to set aside a subpoena and a notice to produce which had been filed by the plaintiff.  On 4 May 2011 I struck out two sentences of the plaintiff’s amended points of claim, directed the defendants to file and serve points of defence and outlines of submissions by a specified time, and fixed the hearing of the application to set aside the subpoena and the notice to produce for Tuesday 24 May 2011.

1. In accordance with my directions, the defendants filed and served points of defence and outlines of submissions in relation to their application to set aside the subpoena and the notice to produce. 

1. The amended points of claim, which were the subject of my earlier ruling, concern sixteen alleged requests which, it is said, were refused by the defendants.  In the course of the submissions on the issue of whether there had been compliance with Bell J’s order, Mr Rich had explained to me at some length the significance of the sixteen requests and the basis for his complaints as to their refusal.  In essence, what he explained to me then was that the refusal of the requests constituted an unwarranted interference with his right to unimpeded access to the courts.  He explained that the conduct of the various responsible officers of Corrections Victoria in refusing the requests was effectively preventing him from properly preparing and prosecuting an appeal which is presently pending in the Court of Appeal concerning his conviction on 12 June 2009 on one count of murder and one count of armed robbery.[2]

   [2]Reference is particularly made to the transcript of the hearing on 13 April 2011 at page 30, 31, 34, 36, 37-38, 40, 41-42, 43, 46-48, 54, and 57.

1. Complaints by Mr Rich as to conduct by officers of the Department of Justice and Corrections Victoria, which was said to inhibit his ability to meet the case made against him in relation to those charges, were the subject of a number of proceedings brought in this Court by Mr Rich before the trial on those charges.[3]  They were also the subject of a number of rulings made by the trial judge.[4] 

   [3]See Rich v Secretary of Department of Justice & Ors [2006] VSC 347, Rich v Magistrates’ Court of Victoria [2007] VSC 65, Rich v Secretary of Department of Justice [2007] VSC 405 and Rich v Scaife [2007] VSC 477.

   [4]See Ruling No 2 [2008] VSC 141, Ruling No 3 [2008] VSC 219, Ruling No 19 [2008] VSC 538, Ruling No 20 [2009] VSC 24, Ruling No 22 [2009] VSC 39.

1. The affidavit filed in this proceeding in support of the application was sworn on 4 January 2010.  Only five of the sixteen refusals now complained of are dealt with in that affidavit.[5]  Whilst the affidavit does refer to matters other than the criminal proceeding concerning the murder and armed robbery charges, it also confirms that the predominant issue of concern to Mr Rich is his ability to properly defend himself in relation to those matters.

   [5]The first five requests referred to in the amended points of claim are respectively dealt with in the affidavit in paragraphs 41, 42, 47, 48 and 51.

1. On 24 May 2011 I heard submissions on behalf of the defendants in relation to the subpoena and the notice to produce.  Mr Rich expressed significant frustration in relation to the attitude taken by the defendants, but otherwise did not make submissions in answer to the submissions made by the defendants.  It seemed to me to be a very clear case where the subpoena and the notice to produce were oppressive, fishing and far too wide.  They each required the production of detailed categories of documents having no apparent relevance to the sixteen requests which are the subject of this proceeding.  I accordingly indicated that I would order that the subpoena and the notice to produce be set aside. 

1. I then sought submissions from the parties as to the course which should be followed thereafter.  I raised with the parties the issue of whether the substantial complaint advanced by Mr Rich, which concerns his pending criminal appeal, should properly be the subject of a separate civil proceeding for judicial review or whether it should be dealt with in the criminal appeal proceeding itself.  In that respect I referred the parties to the decision of Mandie J in Rich v Secretary of Department of Justice[6] and to the decision of the New South Wales Court of Appeal in Smith v Commissioner of Corrective Services[7] upon which his Honour relied.  I expressed the tentative view that the analysis of Mandie J appeared to me to be equally applicable to this proceeding, at least insofar as it concerned complaints about conduct by officers of Corrections Victoria which was allegedly inhibiting Mr Rich’s ability to prepare his criminal appeal. 

   [6][2007] VSC 405.

   [7][1978] 1 NSWLR 317.

1. I heard submissions from counsel for the defendants as to the course to be followed.  When I sought submissions from Mr Rich on the issue, he initially indicated that he felt himself to be “ambushed” by the matter I had raised.  I offered to adjourn the hearing for a period so that he could consider his position but he did not wish to take that course.  He then submitted, in emphatic terms, that he wished to withdraw the proceeding and start again. 

1. In the circumstances I acceded to Mr Rich’s wishes.  I told him that I would dismiss the proceeding without an adjudication on the merits, and I told him that I would deliver brief reasons setting out how that order had come about.  These are those reasons. 

1. If Mr Rich had not submitted that what he wished was for the entire proceeding to be brought to an end; in the absence of further submissions, I would have stayed the proceeding until the hearing and determination of the pending criminal appeal, applying the principles set out by Mandie J.  I would not have dismissed the proceeding entirely as it seemed to me to be possible that there were residual issues which might remain after determination of the appeal.  I would have taken that course because in my view the Court of Appeal exercising its criminal jurisdiction is in a superior position to determine, and to direct, what should be done, and when it should be done, in relation to access to hardware/software and other materials said to be necessary for the appeal, than is the civil court on a judicial review proceeding.  The conclusion I had reached was that it would have been inappropriate for a civil court to intervene on issues which concern the preparation and prosecution of a pending criminal appeal.

1. Mr Rich protested that he was being thwarted at every turn in his attempts to bring these issues to a resolution.  Insofar as the criminal proceeding is concerned the issues which he now seeks to agitate are the same, or are very similar, to issues which were argued before and ruled upon by the trial judge and which, it seems to me, should properly now be the subject of consideration by the Court of Appeal and not by the civil courts.