Rowson v Department of Justice (No 2)
[2022] VSC 382
•1 July 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
PRACTICE COURT
S ECI 2020 01530
| MARK ROWSON | Plaintiff |
| v | |
| THE SECRETARY, DEPARTMENT OF JUSTICE | First Defendant |
| THE COMMISSIONER, CORRECTIONS VICTORIA | Second Defendant |
| THE STATE OF VICTORIA | Third Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 July 2022 |
DATE OF JUDGMENT: | 1 July 2022 |
CASE MAY BE CITED AS: | Rowson v Department of Justice (No 2) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 382 |
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TORT – Duty of care to prisoner – COVID-19 – Prison lockdown – Prisoner’s application to be released from prison due to health conditions – Whether serious question to be tried – Balance of convenience – Discretionary considerations – Application refused – Corrections Act 1986 ss 1, 47.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendants | Mr L Brown, Crown Counsel for Victoria with Mr C Fitzgerald | Victorian Government Solicitor’s Office |
HIS HONOUR:
Mr Mark Rowson seeks orders releasing him from Port Phillip Prison at Truganina because of his health risks, including potentially the risk to his life, if he is infected with COVID-19.
Mr Rowson’s summons seeks orders that the defendants, the Secretary of the Department of Justice, the Commissioner, Corrections Victoria and the State of Victoria be restrained until the hearing and determination of this proceeding, or further order, from holding him in prison in conditions where:
(a) he comes into contact with other persons, or surfaces or objects touched by other persons, such as to create a risk of him contracting COVID-19; or
(b) his medical needs, including physical and mental health needs, cannot otherwise be met.
This is a revised version of the judgment I gave when argument concluded on 1 July 2022.
Mr Rowson is aged 55 and since 2018 has been serving a term of imprisonment at Port Phillip Prison in the Gorgan Unit. He is due to be released on 5 August 2022, about five weeks away. He has cardiac and mental health problems. Because of a COVID-19 outbreak in the Prison and his unit, he has been locked in his cell since last Thursday, 23 June. The Gorgan Unit remains in quarantine. The lockdown greatly limits the movements of Mr Rowson and other prisoners in ordinary prison life, for example in attending medical appointments or exercising. Amendments made in 2020 to the Corrections Act 1986 gives the Secretary, or the Governor of a prison, power to make order restricting the movement of prisoners and about their placement:
…for the purposes of preventing, detecting or mitigating the risk of COVID-19 or related health risks in relation to a prison, prisoners, prison staff, visitors or any other person…[1]
[1]Corrections Act 1986 s 112O(1).
Ms M Westin, Deputy Commissioner, Custodial Operations of Corrections Victoria, stated in her affidavit that the Gorgan Unit has been locked down on six occasions since 16 May, about six weeks ago.[2] The seventh lockdown commenced on 23 June. She stated that by last Sunday, 26 June, 33 prisoners had tested positive to COVID-19 and were being accommodated in the Penhyn Unit. By yesterday, when she made her affidavit, 77 prisoners had tested positive to COVID-19 in this outbreak. That is approximately 7-8% of the prison population at Port Phillip Prison.[3]
[2]One of the lockdowns was not due to COVID-19.
[3]Some reservations were expressed about the accuracy of the figures, but no correcting evidence was presented.
This proceeding was commenced in 2020 when COVID-19 reached Victoria. Mr Rowson sued primarily in tort. On 1 May 2020, I refused his first application for orders that he be released from prison, but I ordered that a risk assessment be carried out and its recommendations implemented.[4]
[4]Rowson v Secretary Department of Justice (2020) 60 VR 410.
The defendants responded to Mr Rowson’s application, by first submitting that it was an abuse of process and made for the collateral purpose of gaining benefits in criminal proceedings which he faces.
I am not satisfied, for the purposes of deciding this interlocutory application, that Mr Rowson’s application has been made for the predominant purpose of obtaining collateral benefits. While his application may have more than one purpose, at least one appears to be his legitimate concern about the effects on his health of the presence of COVID-19 in Port Phillip Prison and of the lockdown.
Nor do I consider Mr Rowson’s delay in progressing this proceeding supports the conclusion that this application is an abuse of process. He has been in prison since he commenced the proceeding and did not have legal representation for this application.
The defendants’ affidavits describe the policies and protocols adopted to prevent, detect or mitigate the risk of COVID-19 and associated health risks in the Prison. These include an ‘Outbreak Prevention and Management Plan’ and COVID-19 Protocols, which have been underpinned by expert advice to protect prisoners, staff and visitors’ health. But, as Mr Rowson emphasised, the challenge for prison authorities is to ensure that these policies and protocols are implemented ‘on the ground’. He pointed to examples of rapid antigen tests not being properly taken and young prisoners, and some staff, not treating COVID-19 with appropriate seriousness. He also pointed to problems with cleaning units, receiving medication and related matters.
I accept that a public interest exists in prisoners serving their sentences, in the absence of a good reason. But a public interest also exists in the health and welfare of prisoners as recognized in the purposes of the Corrections Act. As Mr Rowson put it, the legislation intends that prisoners, once they serve their sentence, be returned to the community, not least their family and friends, in a healthy condition. Section 47(1)(f) gives prisoners the right to have access to reasonable medical care and treatment necessary for the preservation of their health.
The defendants offered to relocate Mr Rowson to Barwon Prison, where there are no COVID-19 cases at present, thereby minimising the risks to him. But he rejected the offer because he understood that he would be in solitary confinement at Barwon Prison and he wanted to be able to access the health care normally available at Port Phillip Prison.
In respect of Mr Rowson’s claims in negligence, the defendants argued that he had not made clear the standard of care that he claims the defendants owe him. But his statement of claim, and the declaration he seeks, indicate that his case is that the defendants must take reasonable steps to ensure that he does not suffer serious injury or death from COVID-19. His statement of claim, and his affidavit supporting his current application, describe measures that he says should be taken, but are not.
The duty of care owed to prisoners is part of the general law duty of care. In New South Wales v Bujdoso,[5] the High Court described that duty in the following terms:
It is true that a prison authority, as with any other authority, is under no greater duty than to take reasonable care. But the content of the duty in relation to a prison and its inmates is obviously different from what it is in the general law-abiding community. A prison may immediately be contrasted with, for example, a shopping centre to which people lawfully resort, and in which they generally lawfully conduct themselves. In a prison, the prison authority is charged with the custody and care of persons involuntarily held there.[6]
[5](2005) 227 CLR 1.
[6]Ibid [44].
Against this background, the question is whether Mr Rowson has established a serious question to be tried that the relief he seeks in his summons might be granted.
In my opinion, Mr Rowson has not established such a serious question. The relief he seeks, of release from prison, is only one way of dealing with the risk that he, as a person with health vulnerabilities, will contract COVID-19 while in custody. He seeks release from prison because he is not satisfied that the Prison authorities can manage the risk that he will contract COVID-19. But, I accept the defendants’ submission that Mr Rowson has not established that his release from prison is the only way to discharge their duty of care rather than, for example, attending to the matters about which he complains, including cleaning of prison areas and providing necessary medications.
Because Mr Rowson has not established a serious question to be tried, the balance of convenience does not have to be assessed. If it had, I would have taken into account the public interest in prisoners serving their sentences. I would also have considered the public interest in prisoners’ health, which is the responsibility of the Secretary, the Commissioner and the Governor.
The continuing effects of the COVID-19 pandemic, including details of the rates of death and infection, appear to have fallen from the community’s attention, perhaps because people are focused on exercising the freedoms that were removed from them for many months. The numbers of deaths and infections from COVID-19 are no longer announced on a daily basis by political leaders, health officers and the media. But that is not much comfort to prisoners, who cannot exercise the rights of ordinary people and whose voices are unlikely to be heard.
Prison authorities should consider the interests of prisoners, like Mr Rowson, with serious health conditions individually, rather than as part of the general prison population. That may be occurring, but Mr Rowson’s evidence suggests that it may not be in all cases. Such persons are particularly vulnerable to infection with COVID-19.
I consider that, in an appropriate case, the Court has jurisdiction to make orders requiring enhanced protection of the health of prisoners such as Mr Rowson, when their health is the subject matter of the litigation.[7]
[7]Tait v The Queen (1962) 108 CLR 620, 624 (Dixon CJ).
In summary, I am not satisfied that the orders Mr Rowson seeks are the only way in which his health and wellbeing can be protected. That protection is primarily a matter for the authorities at Port Phillip Prison under the supervision of the Secretary and the Corrections Commissioner. Mr Rowson’s evidence suggests that the needs of prisoners with heath conditions may not be receiving the individual attention appropriate. As this is an interlocutory application, I make no finding about that question.
For the sake of completeness I add, that I do not find on this interlocutory application, that the evidence establishes that the defendants have taken any action incompatible with Mr Rowson’s Charter rights.[8] But, that issue was not the subject of any detailed submissions.
[8]Charter of Human Rights and Responsibilities Act 2006 ss 7(2), 8, 9, 22, 38.
I dismiss Mr Rowson’s summons.
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