Spiero v State of South Australia No. Scciv-02-249

SPIERO v STATE OF SOUTH AUSTRALIA
[2002] SASC 198
CIVIL

BLEBY J This is an application for leave to serve a summons for Judicial Review pursuant to r 98.03 of the Supreme Court Rules. Under r 98.04A(3) the application is to be heard ex parte, but the Court may permit interested parties to be heard. I did so, and heard helpful submissions from Mr Mackintosh for the defendants.
At all material times the plaintiff has been an inmate of the Yatala Labour Prison. He was housed in what is known as “B” Division.
On 22 May 2001 the second defendant, in her capacity as manager of the Yatala Labour Prison, signed a direction pursuant to s 36(2)(d) of the Correctional Services Act 1982 (“the Act”). The direction affected the plaintiff and required that he be kept separate and apart from all other prisoners until the direction was revoked. He was thereupon transferred to “G” Division, which is the maximum isolation security section of the Yatala Labour Prison.
Section 36 of the Correctional Services Act 1982 relevantly provides:
“(1)A prisoner must not be kept separately and apart from all other prisoners in the correctional institution except in accordance with this section.
(2)The Chief Executive Officer may direct that a prisoner be kept separately and apart from all other prisoners in the correctional institution if the Chief Executive Officer is of the opinion that it is desirable to do so –
(a)in the interests of the proper administration of justice where an investigation is to be conducted into an offence alleged to have been committed by the prisoner; or
(b)in the interests of the safety or welfare of the prisoner; or
(c)in the interests of protecting other prisoners; or
(d)in the interests of security or good order within the correctional institution.
(3) ………..
(4)Any other direction given under subsection (2) has effect until revoked by the Chief Executive Officer.
(5)……….
(6)A direction given under subsection (2) –
(a)must be in writing; and
(b)may be revoked at any time by the Chief Executive Officer.
(7)A copy of a direction given under subsection (2) must be served personally on the prisoner within 24 hours of being so given.
(8)Despite the fact that a direction under subsection (2) is in force in respect of a prisoner, the Chief Executive Officer may permit the prisoner to have contact with such other prisoners on such occasions as the Chief Executive Officer thinks fit.
(9)The Chief Executive Officer must, as soon as reasonably practicable after giving a direction under subsection (2), furnish the Minister with a report of the circumstances in which the direction was given.
(10)On receiving a report under subsection (9), the Minister may review the matter and may confirm or revoke the direction.”
The notice served on the plaintiff stated that the direction was made “in the interests of security or good order within the correctional institution” and gave as grounds on which the direction was given:
“You have been identified through information received, as a participant in an escape attempt.”
Although the direction was given by the second defendant as general manager of the Yatala Labour Prison and not by the Chief Executive Officer, s 7(2) of the Act enables the Chief Executive Officer, with the approval of the Minister, to delegate to any employee of the Department any of the powers, functions, duties or responsibilities vested in the Chief Executive Officer under the Act. In the absence of any evidence to the contrary, and there is none, I am entitled to act on the presumption of regularity in the appointment of the general manager and in the delegation to her of the authority vested in the Chief Executive Officer under s 36 of the Act. This would include the power to form an opinion and the power to issue a direction in reliance on that opinion, as provided for in s 36(2).
The plaintiff remained in “G” Division until 14 August 2001, when his period of separation ended. I have no information as to the result of any report that may have been made by the Chief Executive Officer pursuant to s 36(9) or whether the Minister was asked to or did in fact review the decision under s 36(10). Those are not the subject of these proceedings. The only decision sought to be reviewed is the decision made under s 36(2)(d) on 22 May 2001.
The summons for judicial review was filed on 13 February 2002. Rule 98.06 of the Supreme Court Rules provides that:
“Subject to any enactment, or order of the Court granting an extension of time, a summons for judicial review must be issued within six months from the date when grounds for the review first arose, and shall in all cases be made as promptly as possible.”
No information has been offered by the plaintiff explaining the reasons for the delay in issuing the summons. Some assertions were made by his counsel as to the difficulty of obtaining legal advice whilst in prison. Nevertheless, in the absence of any concession from the defendant, it behoves a plaintiff who seeks an extension of time to place sworn evidence before the Court as to the reasons for the delay. None has been forthcoming in this case, despite a lengthy adjournment of the hearing of the application to enable the plaintiff to file an affidavit of himself.
The summons which the plaintiff requires leave to serve seeks not only an order in the nature of certiorari to quash the decision made under s 36(2)(d) of the Act but it also seeks an order in the nature of mandamus to require the defendants to comply with the provisions of s 22, s 23, s 24 and s 25 of the Act, a declaration that the transfer of the plaintiff to “G” Division was unlawful, a declaration that his detention at “G” Division was unlawful and damages, including exemplary and punitive damages.
I turn to the question of an order in the nature of certiorari. In an affidavit of his solicitor in support of the application it is alleged that the determinations or purported determinations in respect of the transfer and continuing detention “were ultra vires, unreasonable, in breach of statutory and other duties owed to the plaintiff by the second defendant, a denial of natural justice, a denial of procedural fairness, not made without [sic] any or adequate compliance with the provisions of s 36 of the Correctional Services Act, without any or adequate reasons for such determinations or purported determinations and were unlawful”. No particulars are given of any of those broad assertions. In his own affidavit the plaintiff alleges as grounds:
“21. ……………..
(1)    I was not lawfully placed in G Division.
(2)    The suspicion that I was involved in the planning of an escape was not held on reasonable grounds.
(3)    Such suspicion was not held by the appropriate person.
(4)    The manner by which I was detained was contrary to representations made from time to time by senior prison officers, Mr Gale and Mr Cunningham concerned with my continuing detention in G Division and I refer to paragraph 8 above.
(5)    The assertion that it was suspected that I was involved in the planning of an escape is different to the grounds stated in various Review of Separation documents comprised in exhibit “GM1”.
(6)    The determinations to transfer me to G Division and continue to detain me there were made without natural justice or procedural fairness notwithstanding my requests for due process.
(7)    The determinations that it was suspected I had participated in the planning of an escape and the determinations set out in the various documents to continue my detention in G Division were made without procedural fairness or natural justice and notwithstanding my requests for due process.
(8)    I was denied natural justice and procedural fairness because I was not informed of the allegations in any manner that enabled me to respond; the determinations were made without any opportunity to be heard and I was not given any or adequate reasons for the determinations.
(9)    The determinations were unreasonable by virtue of the matters referred to in paragraph 4 above.
(10)    The determinations were not made by a lawfully authorized person.
(11)    The determinations were ultra vires.
(12)    The determinations were an abuse of power.
(13)    The determinations were an abuse of the process by which such determinations ought to be made.
(14)    The effect of the determinations were to do with matters that should properly and lawfully have been the subject of investigation of breach of prison regulations and charges in respect thereof pursuant to Part 5 of the CSA.
(15)    The determinations and the process by which the determinations were made were beyond the scope of the powers of the officers concerned therewith, and
(16) The determinations and the process by which the determinations were made were beyond the scope of the statutory powers in section 36(2) of the CSA.
(17)    I had a legitimate expectation that proper processes and procedures would be afforded to me in respect of those determinations.
(18)    I was denied such expectation.
(19)    My rights and privileges have not been restored to those that existed prior to my move to G Division.
(20)    Loss of my employment was a direct consequence and effect on my transfer to G Division.
(21)    The effect of determinations made as a consequence of the determination to transfer me to G Division continue to deprive me of my employment as a kitchen supervisor.
(22)    I am unfairly and unreasonably prejudiced by the determinations.
(23)    I am not able to apply for employment in the kitchen.
(24)    The determinations were not made for a lawful purpose or alternatively for unauthorized purposes.
(25)    The determinations had regard to irrelevant considerations.
(26)    The determinations were based on vexatious, spurious, unsubstantiated allegations.”
Whether or not an order has properly been made under s 36(2) of the Act depends on the proper formation of a relevant opinion by the Chief Executive Officer or his delegate. In this case the opinion needs to be formed that the direction is desirable in the interests of security and good order within the correctional institution. Information from many sources may be brought to bear on the formation of such an opinion. Much of the information will, of necessity, be confidential to a few senior officers of the institution. It will be in the nature of intelligence information which may, at that stage, not be capable of formal proof as in a court of law. The action taken under this paragraph may need to be taken urgently. It is essentially preventative – to avoid the happening of a possible security breach and for the preservation of security and good order in the institution. The action taken is not punitive. There are other procedures available for dealing with offences and with breaches of prison regulations. The section has its own inbuilt system of review.
Whatever may be the situation in respect of other paragraphs of s 36(2), it is difficult to see how, in the interest of proper prison security and order, a prisoner could be afforded procedural fairness in the sense of being heard as to whether a decision should be made, under paragraph (d) without seriously compromising the security and good order of the prison in other respects.
The information before me discloses that, on its face, the necessary opinion required by the paragraph was formed, and that the information received by the general manager justified the formation of the opinion. Rule 98.04 requires that an affidavit in support of an order for judicial review must contain not only details of the grounds on which it is sought but the facts relied on. The facts relied on must relate to and support the grounds. In this case, while the grounds are many and varied, there are no facts alleged to support them. The assertions by way of “grounds” are not capable of being answered. In so far as the plaintiff does rely on factual assertions said to support the grounds, those assertions have no bearing on what caused the second defendant to form the opinion that she did which justified the determination. In so far as the plaintiff relies on breaches of procedural fairness and denial of natural justice in his not being heard as to the making of the determination, I am satisfied that the Act, in so far as it concerns a decision under s 36(2)(d), does not require compliance with such principles. As no relevant factual foundation is laid to support the other grounds, it would be inappropriate to grant leave to serve: Bidermann v Magistrates Court of South Australia (2000) 210 LSJS 195 at 197 – 198. A plaintiff cannot obtain leave to serve by alleging, without any factual foundation, a wide-ranging series of grounds in the hope of finding some factual support for them in the course of pursuing discovery of documents.
The applicant’s original objection to the making of the determination has now been remedied. The direction has effectively been revoked. It was not disciplinary in nature, and it can have no ongoing disciplinary effect against the applicant. It is not as though there is some conviction or adverse finding made against the applicant which affects his future management as a prisoner. Whether there is any substance in the information or some of it which gave rise to the direction is not properly the subject of inquiry in these proceedings. Whether the plaintiff is presently being unduly prejudiced by a finding that he did in fact participate in an escape attempt is not relevant to these proceedings. Whether the applicant, as he seems to suggest, has been the subject of a “smear” campaign within the prison, and whether his ongoing treatment is affected by that, is not relevant to these proceedings.
The disadvantage that the plaintiff suffered by reason of the determination – the separation – has now been rectified. There is no effective decision to quash. No benefit can now be derived from an order in the nature of certiorari. In those circumstances it will not be made. See the cases referred to by Bray CJ (dissenting) in R v Johns; Ex parte Public Service Association of SA Inc [1971] SASR 206 at 209.
The plaintiff also seeks orders for mandamus to require the defendants to comply with s 22 to s 25 of the Act relating to the assignment of prisoners to particular correctional institutions, the periodic assessment of prisoners and the ability of the Chief Executive Officer to place prisoners in different correctional institutions and in different parts of a particular institution. There is nothing to suggest any non-compliance with the Act in the plaintiff’s ongoing management related in any way to the application of those sections, and certainly not in relation to the direction given under s 36(2)(d) of the Act.
For all these reasons, it seems to me that the plaintiff has no prospect of succeeding in his applications for orders in the nature of certiorari or mandamus. So far as the claims for the declaratory relief are concerned, r 98.01 enables the court to grant a declaration or injunction “in lieu of, or in addition to, any order in the nature of, or having the effect of, a prerogative writ at common law if it considers that having regard to (certain matters therein stated) it would be just and convenient for the declaration or injunction to be granted on a summons for judicial review”. I agree with Prior and Lander JJ in Xenophon v State of South Australia (2000) 78 SASR 251 at 256 [17] and [20] – [ 24] that there must first be an entitlement to an order in the nature of a prerogative writ before such declaratory relief can be claimed on an application for judicial review. Furthermore, declaratory relief is discretionary, and it too will not be granted where it will achieve nothing.
In relation to the claims for damages, r 98.09 also allows the court to award damages on a summons for judicial review where the damages arise “from any matter to which the application relates”. As in the case of declaratory relief, it seems to me that an essential pre-requisite to damages under this rule is the entitlement to prerogative relief. There is no prospect of that being granted, and so the claim for damages cannot stand. In any event, r 98.09(2) incorporates the provisions of r 46 into such a claim, and the plaintiff’s affidavits fail to give anything like the particulars that are required by that rule.
For these reasons the application for leave to serve is refused. I will hear counsel as to the costs of the application.

[2002] SASC 198

20 June 2002