Webb v Department for Correctional Services - [2024] SASCA 43

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
WEBB v DEPARTMENT FOR CORRECTIONAL SERVICES
[2024] SASCA 43
Judgment of the Court of Appeal
(The Honourable President Livesey and the Honourable Justice Doyle)
4 April 2024
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
The appellant seeks leave to appeal from a decision of a single judge of the Supreme Court summarily dismissing his claim for judicial review. The appellant requires an extension of the time within which to seek leave to appeal.
The appellant is a prisoner detained at Mobilong Prison. The appellant sought judicial review of a decision of the Chief Executive of the Department for Correctional Services to deny him access to various electronic devices within his cell or unit, and to deny him access to legal websites.
A single judge of the Supreme Court granted summary judgment in favour of the respondents, finding that there was no reasonable basis for the judicial review action and that the same issue was being pursued in other proceedings. The appellant contends that the single judge erred in finding that the Chief Executive was not required to accede to his requests for access to computing and legal resources and in finding that the issue was being determined in other proceedings.
Held per the Court, granting an extension of time but dismissing the application for permission to appeal:
1.As an explanation for the delay has been provided and the extension of time is not opposed, it is appropriate that the applicant be granted an extension of time; and
2.In circumstances where the applicant has not identified any ground of appeal which is reasonably arguable, it is not in the interests of justice that he be granted leave to appeal.

Correctional Services Act 1982 (SA) s 24(2), referred to.
Commissioner of Corrective Services v Liristis [2018] NSWCA 143; Vansetten v The State of South Australia [2020] SASC 158; Webb v Department for Correctional Services [2023] SASCA 110; Webb v Department for Correctional Services [2023] SASC 114, considered.

WEBB v DEPARTMENT FOR CORRECTIONAL SERVICES
[2024] SASCA 43
Court of Appeal – Civil: Livesey P and Doyle JA

THE COURT: The applicant is a prisoner detained at Mobilong Prison. He seeks leave to appeal from a decision of a single judge of the Supreme Court summarily dismissing his claim for judicial review. He had sought judicial review of a decision of the Chief Executive of the Department for Correctional Services to deny him access to various electronic devices within his cell or unit, and to deny him access to legal websites.
The respondent opposes leave to appeal on the basis that the applicant has not identified any error in the judge’s reasons and that the appeal is not reasonably arguable.
The applicant requires an extension of the time within which to seek leave to appeal. As an explanation for the delay has been provided, and the extension is not opposed, it is appropriate that the applicant be granted an extension of time.
Background
The applicant is serving a life sentence at Mobilong Prison. He has been imprisoned since 2012, and during that time has initiated several legal proceedings against the Department for Correctional Services complaining about the management of him whilst in prison.
The applicant has been unable to obtain legal representation, and so has been representing himself in those proceedings. He does not have any legal training.
In order to enable him to represent himself properly, the applicant made requests of prison management for a computer and printer for use in his cell, and for access to legal websites. These requests have been refused on several occasions, culminating in a decision of the Chief Executive of the Department on 2 December 2022 affirming the earlier decisions to refuse his requests for access to computing and legal resources.
On 27 February 2023, the applicant filed these proceedings seeking judicial review of the Chief Executive’s decision. His originating application sought:
·Certiorari: quash the decision.
·Declaration: the Department grant legal rights.
·Injunction: the legal right of fair and equitable access to the legal system and justice be granted.
In response, the Department filed an application seeking summary judgment, contending that there was no reasonable basis for any of the grounds of judicial review relied on by the applicant.
In support of his application for judicial review, the applicant emphasised his position of disadvantage and vulnerability as a prisoner, and the difficulties he faces in attempting to pursue his legal rights. He argued that he is entitled to equality of treatment before the law, and that this included a right to be able to properly represent himself in his legal proceedings. He relied upon several sources for this entitlement and right, including the Constitution, the common law and equity. He argued that justice required that he have access to the computing and legal resources necessary to represent himself, and that there was a duty in the Department and the courts to facilitate this access.
In contending that it was appropriate to summarily dismiss his claim for judicial review, the Department argued that there was no legal merit in the applicant’s case; that there was no duty on the part of the Department to provide access to computing and legal resources, and hence no basis for challenging the Chief Executive’s refusal of his request.
However, the Department also relied upon the fact that the issue sought to be ventilated by the applicant had already been determined against him in two other proceedings. In particular, in proceedings he had brought in the Magistrates Court complaining about his treatment by an employee of the Department, a magistrate had refused an interlocutory application he had made for an order for access to computing and legal resources to assist him to represent himself in those proceedings. Similar applications had been refused by single judges of this Court in proceedings in which he had complained about a decision of the Department to regress him for failing to comply with directions to wear a mask during a COVID-19 outbreak at the prison.
A single judge of the Supreme Court ultimately granted summary judgment in favour of the Department in the earlier Supreme Court proceedings just mentioned. The applicant appealed to the Court of Appeal. Whilst the focus of the Court’s reasons related to the lack of merit in the applicant’s challenge to the decision to regress him, the Court (Lovell, Bleby and David JJA) also addressed and rejected his challenge to the interlocutory decisions refusing him access to computing and legal resources. Their Honours noted the challenge early in their reasons:[1]
The respondent submitted that the applicant’s contention that he was denied the opportunity to have access to technology to prepare for legal proceedings (referred to in the applicant’s materials) [was] not properly before this Court on appeal. The applicant made two interlocutory applicants before two different judges seeking, inter alia, a laptop in his cell, both of which were summarily dismissed. The notice of appeal does not identify the disposition of these interlocutory applications as being the subject of this appeal. In any event, for the reasons which follow, had that ground of appeal been properly before the Court, we would not grant leave.
[1] Webb v Department for Correctional Services [2023] SASCA 110 at [34] (Lovell, Bleby and David JJA) (citations omitted).
Their Honours later gave their reasons for rejecting the challenge:[2]
As to the applicant’s contention that he was denied the opportunity to have access to technology to prepare for legal proceedings, given the terms of s 24(2) [of the Correctional Services Act 1982 (SA)], there is no such obligation on the Chief Executive. Nor is there any other express obligation in the Act, or elsewhere, requiring the Chief Executive to provide a computer to a prisoner. Whilst s 30 provides that the Chief Executive ‘must arrange for such courses of instruction or training as the Chief Executive thinks fit to be made available to prisoners’, that requirement is subject to the Chief Executive’s own subjective determination. Had this contention been properly before this Court, we would not have granted leave to appeal.
[2] Webb v Department for Correctional Services [2023] SASCA 110 at [50] (Lovell, Bleby and David JJA).
Whilst the applicant has since sought special leave to appeal to the High Court, that application is focused upon his challenge to the Chief Executive’s decision to regress him rather than the decision to decline his request for access to computing and legal resources. As at the date of these reasons, the High Court has not determined that application.
The decision below
Returning to the decision in the present matter, after summarising the applicant’s submissions, and outlining the other proceedings in which the issue of access to computing and legal resources had been addressed, the single judge granted summary judgment in favour of the Department. Her Honour reasoned as follows:[3]
The respondent’s application for summary judgment is filed under Uniform Civil Rules (“UCR”) 144.2 and 256.5. UCR 256.5(3)(a) provides that the Court will dismiss the judicial review action “unless the Court is satisfied there is a reasonable basis for the action”. The applicant bears the onus to establish a reasonable basis. The test is whether there is a reasonable or real prospect of the applicant prosecuting an action successfully as opposed to having fanciful prospects of success.[4] The Court can give summary judgment if satisfied that there is no reasonable prospect that if the matter went to trial the trial judge would exercise the discretion to grant the discretionary relief.[5]
The applicant is seeking relief that has already been argued and refused in the Supreme Court and in the Magistrates Court. Magistrate Wells ruled on the issue as it relates to the Magistrates Court proceedings and McDonald J ruled on the matter as it relates to the Supreme Court proceedings. The Supreme Court proceedings are now the subject of an appeal to the Court of Appeal. The appropriate forum for ensuring reasonable opportunity to prepare for trial is the trial court. Any exercise of the Supreme Court’s independent supervisory jurisdiction should be constrained accordingly.[6]
It is my view, that there is no reasonable basis for this action given the applicant is pursuing the same matter in other proceedings. Accordingly, I grant the application for summary dismissal. In those circumstances, I do not proceed to consider the other bases upon which the application for summary dismissal was based.
[3]     Webb v Department for Correctional Services [2023] SASC 114 at [10]-[12] (McIntyre J).
[4]     Vansetten v The State of South Australia [2020] SASC 158 at [66]-[68] (Doyle J).
[5]     Vansetten v The State of South Australia [2020] SASC 158 at [69] (Doyle J).
[6]     Commissioner of Corrective Services v Liristis [2018] NSWCA 143.
The application for leave to appeal
The applicant has filed a notice of appeal and written submissions in support of his application for leave to appeal. In contending that the single judge erred, he relies upon two broad contentions. The first is that the judge erred in treating the issue as having been determined in the other proceedings because those cases only addressed specific requests for access to computing and legal resources in the context of the particular proceedings, whereas the present proceedings relate to a more general request for ongoing access to such resources. The second involves a repetition of the arguments put below as to the reasons why the Chief Executive ought to have acceded to his request, and why the courts have a duty to ensure that the applicant has proper access to computing and legal resources.
Whilst we are sympathetic to the difficulties the applicant undoubtedly experiences in representing himself, there is no merit in the applicant’s proposed appeal. He has not identified any sound basis for his challenge to the Chief Executive’s decision to refuse his request for access to computing and legal resources. Given the breadth of the Chief Executive’s discretion, and the broad and abstract way in which the suggested duty is articulated, it is difficult to see how the applicant could succeed with his challenge as presently framed.
It may be accepted that the issue arose in a more specific context in his other Supreme Court proceedings, and that the Court of Appeal’s observations in relation to access to computing and legal resources were made obiter. However, the point of principle underpinning those observations extends to the present case, and the applicant has not identified any arguable basis for reaching a different conclusion.
In circumstances where the applicant has not identified any ground of appeal which is reasonably arguable, it is not in the interests of justice that he be granted leave to appeal.
Conclusion
For the reasons set out, we would grant an extension of time but dismiss the application for permission to appeal.