Webb v Department for Correctional Services

[2023] SASC 114

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Judicial Review)

WEBB v DEPARTMENT FOR CORRECTIONAL SERVICES

[2023] SASC 114

Judgment of the Honourable Justice McIntyre  

ADMINISTRATIVE LAW - JUDICIAL REVIEW

ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - APPLICATIONS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - STANDING TO INSTITUTE PROCEEDINGS

The Applicant seeks judicial review of the decision to deny him access to various electronic devices within his cell and to deny him access to legal websites.

The applicant seeks this review on the grounds that the respondent is interfering with his right to knowledge and denying him of his constitutional rights and privileges. Further, the applicant contends that the Courts, Judges, and society are breaching the duty of care owed to the applicant as a prisoner. The respondent seeks summary dismissal of this application, arguing there is no reasonable basis for any ground of judicial review relied upon by the applicant.

Held:

1.      The application for summary dismissal is granted.

Vansetten v The State of South Australia [2020] SASC 158; Commissioner of Corrective Services v Liristis [2018] NSWCA 143, considered.

WEBB v DEPARTMENT FOR CORRECTIONAL SERVICES
[2023] SASC 114

Civil: Application

McIntyre J:

1. The Applicant, Richard Webb, is a prisoner detained at Mobilong Prison (“Mobilong”). 

2. The Applicant seeks judicial review of a decision to deny him access to various electronic devices within his cell or unit and to deny him access to legal websites.  The decision was made by the Chief Executive (“the CE”) of the Department for Correctional Services (“the Department”) on 2 December 2022 and communicated to the Applicant by letter.  The Applicant filed an originating application for review on 31 March 2023 (FDN 1) seeking:

   ·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. 

3. The Department filed an application for summary judgment (FDN 9) arguing there is no reasonable basis for any ground of judicial review relied on by the Applicant.  In the alternative, it is submitted that the pleadings and claims contained within the Applicant’s originating application and supporting documents ought to be either struck out under UCR 70.3 or dismissed under UCR 143.2 on the basis that it is frivolous, vexatious or an abuse of process.

   The documents

4. The applicant has filed two affidavits, one sworn on 2 January 2023[1] and a second affidavit sworn on 26 June 2023.[2]  The solicitor for the respondent filed one affidavit sworn on 28 April 2023.[3]  These affidavits annex all relevant documents, and I received them for the purpose of the hearing.  In addition, both the applicant and respondent have filed written submissions.  These were supplemented by oral submissions on 25 July 2023. 

   [1]    FDN 2.

   [2]    FDN 13.

   [3]    FDN 10.

   Submissions

5. The applicant submits that, as he has been sentenced to life imprisonment, the Courts, Judges, and society have a duty to ensure that he is being treated within the law. He says that the respondent has been interfering with his right to knowledge and has found to be acting unlawfully on multiple occasions. He contends that the relief he seeks must be granted as it is brought under the “Constitutional right and privilege.” He further contends that he is part of a marginalised group facing systemic disadvantage through his vulnerability and that the denial of fair and equitable access to the legal system further adds to his vulnerability and harm. His written submissions detail the basis upon which he makes these submissions including reference to various authorities, the Constitution, the Coronial enquiry into the death of Wayne Fella Morrison, the United Nations Universal Declaration of Human Rights, and various published articles. The applicant submits that the respondent is interfering with his right to knowledge and denying his basic legal rights.

6. The respondent submits the application should be dismissed or struck out on the grounds that the issues raised have been agitated and ruled upon previously, that the applicant has not identified a proper basis for judicial review of the decision and the applicant’s claims that the decision is contrary to the Australian Constitution, the ADJR Act and the Human Rights declaration are misconceived.

   Other Proceedings

7. The applicant has sought precisely the same interlocutory relief in other proceedings as the primary relief he seeks in this matter.  He issued civil proceedings in the Magistrates Court of South Australia,[4] concerning what he says was a negligent and inappropriate case note prepared by one of the respondent’s employees.  As part of those proceedings the applicant filed an interlocutory application seeking, inter alia, “a laptop or computer for use in my cell or unit for the purpose of preparing and storing legal documents or alternatives”.[5]  That interlocutory application was refused on 16 November 2022 by Magistrate Wells[6].  Those proceedings are still before the Magistrates’ Court.

   [4]    CIV-22-010490

   [5]    CIV-22-010490 FDN 2

   [6]    CIV-22-0104990 FDN 8.

8. The applicant also issued an application in the Supreme Court of South Australia seeking judicial review of a decision to regress him in the prison regime management system for failing to comply with directions to wear a mask during a COVID-19 outbreak at Mobilong.[7]  As part of that application the applicant filed an interlocutory application.[8]  That interlocutory application sought, inter alia “a laptop or computer for use in my cell or unit for the purposes of preparing and storing legal documents or alternatives.”  Justice McDonald refused that application on 3 August 2022.[9]  Justice Bampton delivered reasons for judgment granting the respondent’s application for summary judgment on 30 March 2023.[10]  The topic of the applicant’s access to a computer or laptop in his cell is referred to in the reasons for decision.[11] 

   [7]    CIV-22-007702.

   [8]    FDN 3; Affidavit of Seisia Marley Kane sworn on 28 April 2023 (SMK 7).

   [9]    Exhibit SMK 7.

   [10] SMK 8.

   [11] at [40] and [51]

9. The applicant has now appealed Bampton J’s decision.  One ground of appeal relates to his request for a laptop/computer, printer/scanner, restricted access to intranet/internet, and email access to “prepare legal work”.[12]

   [12] Grounds of Appeal at [13] and [24].

   Discussion

10. 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.[13]  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.[14]

    [13] Vansetten v The State of South Australia [2020] SASC 158 at [66] to [68].

    [14] Vanstetten at [69].

11. 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.[15] 

    [15] Commissioner of Corrective Services v Liristis [2018] NSWCA 143.

12. 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.