Williams v May
[2009] QSC 276
•10 September 2009
SUPREME COURT OF QUEENSLAND
CITATION:
Williams v May [2009] QSC 276
PARTIES:
RUSSELL JAMES WILLIAMS
(applicant)
v
PAULA MAY
(respondent)FILE NO/S:
BS 5666 of 2009
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
10 September 2009
DELIVERED AT:
Brisbane
HEARING DATE:
24 August 2009
JUDGE:
Martin J
ORDER:
1. The application is dismissed
2. The applicant is to pay the respondent’s costs of and incidental to the application
CATCHWORDS:
JUDICIAL REVIEW – DISCRETIONARY POWERS – LEGITIMATE EXPECTATION – PRISONS – Where anonymous money order delivered to prison for receipt by prisoner – Where money deposited in prisoners’ trust account – Where money subsequently frozen pursuant to prison protocol – Where prisoner objects to freezing of funds on natural justice grounds, including legitimate expectation – Whether freezing of funds a breach of natural justice – Whether prisoner had a legitimate expectation that he would be able to receive and use the funds while in prison.
Judicial Review Act 1991
Corrective Services Act 2006, s 311COUNSEL:
Applicant on his own behalf
G J Handran for the respondentSOLICITORS:
Crown Law for the respondent
[1] The applicant (Mr Williams) is a prisoner at the Maryborough Correctional Centre. On 24 December 2008 the Centre received an envelope addressed to Mr Williams containing a money order for the sum of $200. Neither the envelope nor the money order identified the sender. The $200 was credited to the trust account held on Mr Williams’ behalf but the respondent (Ms May, General Manager of the Maryborough Correctional Centre) directed that that sum be frozen. Mr Williams seeks to have Ms May’s decision freezing those funds reviewed under the Judicial Review Act 1991 (JR Act).
[2] Mr Williams sought a statement of reasons from Ms May and that was provided. In that statement Ms May set out the following findings of fact and reasons for her decision:
“1.On 24 December 2008, an envelope addressed to you, containing an Australia Post money order for the sum of two hundred dollars ($200), was received by the Maryborough Correctional Centre "(the Centre").
2.Section 311(3) of the CSA specifically provides that ‘all amounts received for a prisoner by the Chief Executive must be paid into the prisoner's account in the prisoners trust fund’.
3.The amount of two hundred dollars ($200) was duly paid into your prisoner trust account fund in accordance with s. 311(3) of the CSA on 24 December 2008.
4.Neither the envelope nor the Australia Post money order contained details of the sender.
5.The Centre's protocol is that any monies received by a prisoner from an unknown sender, is receipted into the prisoner's trust account and then that amount is frozen in the trust account, until such time as the sender is identified or the prisoner is discharged from the Centre.
6.This protocol was made known to you by the Prisoner Rental Television-Rental and Trust Account Agreement signed by you on 22 October 2008.
7.Because the sender of the money order could not be identified the sum of two hundred ($200) was frozen in your trust account.”
[3] In the application for a statutory order of review, Mr Williams claims to be aggrieved because:
(a) he is being denied access to his money that is held in the prisoner’s trust account by Ms May; and
(b) Ms May is not following the Queensland Corrective Services procedure in relation to prisoner moneys.
[4] The grounds set out in the application for a statutory order of review are:
(a) non-observance of procedures required by law to be observed in connection with the making of the decision;
(b) that the person who purported to make the decision did not have jurisdiction to make the decision; and
(c) improper exercise of power where the decision purports to be made in pursuance of a power conferred by an enactment.
[5] In his written submissions, Mr Williams contended that the respondent’s decision was “unlawful” under s 20 and s 23(a),(b),(c),(d) and (i). The grounds relied upon for that assertion were that the respondent:
(a) failed to follow the procedure set in place to deal with prisoners’ moneys;
(b) added to the prisoner rental agreement – rental and trust account agreement a clause that is irrelevant to that agreement;
(c) made the respondent’s own protocol to deal with prisoners’ moneys;
(d) taking into account an irrelevant consideration;
(e) failed to take relevant considerations into account; and
(f) reached a decision with “some other end in mind rather than that of what the procedure – prisoners’ moneys state”.
[6] In support of those contentions, Mr Williams argued that the actions of Ms May were contrary to s 311 of the Corrective Services Act (CSA) and contrary to an administrative procedure put in place by the chief executive of the Corrective Services Department pursuant to authority given under the CSA.
[7] The applicant argued that the terms of the procedure promulgated by the chief executive were mandatory and that the actions of Ms May were contrary to that procedure and were contrary to the requirements of s 311 of the CSA.
[8] The submissions advanced by Mr Williams do not support any of the grounds argued by him for the following reasons.
[9] Section 311 of the Corrective Services Act 2006 (CSA) provides:
“311 Prisoners trust fund
(1)The chief executive must keep a trust fund called the prisoners trust fund.
(2)The prisoners trust fund is to consist of an account for each prisoner for whom an amount is received by the chief executive.
(3)All amounts received for a prisoner by the chief executive must be paid into the prisoner's account in the prisoners trust fund.
(4)If the public trustee is managing the prisoner's estate and the public trustee asks for the payment, the chief executive must pay the amount in the prisoner's account to the public trustee.
(5)A prisoner may, with the chief executive's approval, spend an amount that is in the prisoner's account.
(6)The chief executive may limit the amount a prisoner may spend.
(7)When a prisoner is discharged or released, the chief executive must pay the prisoner the amount in the prisoner's account.”
Section 311 must, as with all statutory provisions, be read in context. For the purposes of this application the relevant context is:
(a) Section 263(1) – this provides that the chief executive is responsible for the security and management of all Corrective Services facilities and the safe custody and welfare of all prisoners.
(b) Section 263(2) provides that the chief executive has power to do all things necessary or convenient to be done for or in connection with the performance of the chief executive’s functions under an Act.
(c) Section 138 provides that a Corrective Services officer may seize, among other things, a “prohibited thing” found in a Corrective Services facility. The definition of “prohibited thing” means something proscribed to be a prohibited thing under s 123(1).
(d) In s 20 of the Corrective Services Regulation 2006 a “prohibited thing” is defined to include “cash, a credit card, debit card, cheque or money order or another negotiable instrument”.
(e) Section 265 of the CSA provides that the chief executive must make administrative procedures to facilitate the effective and efficient management of corrective services and must publish them.
(f) Section 314 sets out the circumstances in which the chief executive may deduct an amount from a prisoner’s account and the purposes for which that deduction may be made.
There is a published policy entitled “Procedure – Prisoner Moneys”. That is the document referred to in the reasons given by Ms May for the decision she made. Clause 3.1 of that procedure provides:
“If an amount intended for an offender from an identifiable source equals or exceeds $1,000 the funds must not be credited to the offender’s trust account. The funds must be returned to the sender and the sender advised to make alternative payment arrangements with the offender.
If an amount intended for an offender from an unidentifiable source equals or exceeds $1,000, these funds must be receipted but held in suspense, pending investigations to identify the sender. Once identified, funds must be returned to the sender and the sender advised to make alternative payment arrangements with the offender. In cases where the source of such funds is never identified, the funds are to continue to be held in suspense pending the offender’s release.”
Mr Williams argued that this policy requires the payment of sums less than $1,000 into the relevant prisoner account because the policy only relates to sums above that amount. That is, in part, correct. The requirement of the policy is mandatory for sums over $1,000, but it says nothing about amounts less than $1,000. It does not purport to prevent the seizure or freezing of funds less than $1,000 should that be assessed as being appropriate.
Section 311 of CSA requires that “amounts received for a prisoner by the chief executive must be paid into the prisoner’s account”. That requirement does not extend to an amount which is not received “for” a prisoner. The Act does not compel the chief executive or anyone else to accept for the prisoner any money from any source at all. In dealing with the same provision in an earlier version of this Act, Douglas J said:
“Although the chief executive under section [311] may limit the amount to be spent from the prisoner’s account, it seems to me that it should not be construed to require him to accept or receive every amount that may be offered by way of cheque or other form of payment to the prisoner into the trust fund. For example, if the general manager was sent a large cheque from a known drug dealer directed towards the prisoner it does not seem to me to be appropriate that he be required statutorily to receive that cheque and pay it into the trust account to be held for the prisoner.”[1]
[1]Palmer v Department of Corrective Services, Supreme Court of Queensland, 15 August 2006, unreported.
To accept Mr Williams’ submissions could require that the chief executive receive funds constituted by the proceeds of crime as referred to by Douglas J. That manifest absurdity requires s 311(3) to be construed as only referring to amounts which the chief executive willingly receives on behalf of the prisoner for payment into the prisoner’s account. It is entirely appropriate that the chief executive, and those with delegated authority, be allowed to determine whether or not particular amounts will be credited to a prisoner’s account. In the affidavit from Ms May she explains the reasons for the action taken by her pursuant to a policy she created. The protocol is aimed to minimise and avoid standover tactics and criminal behaviour within the prison population. That is an approach which is within the provisions of the CSA.
Mr Williams also submitted that he had a reasonable expectation that he would have any funds sent to him deposited into his account. The document which he signed under which he was allowed to rent a coloured television for his personal use contained within it the following:
“I acknowledge that should monies be received at the Maryborough Correctional Centre for my trust account and no sender information is supplied, I understand these funds will be frozen. I understand that these funds will remain frozen until my discharge from the centre or until the sender provides written confirmation of their full name accompanied by proof of purchase.”
That document was signed by Mr Williams on 22 October 2008. He could not, having signed that, have continued to hold any expectation that a money order sent to him without any identification as to the sender would result in anything other than the funds it represented being frozen.
The applicant has not demonstrated that Ms May took into account any irrelevant considerations or failed to take into account any relevant consideration. He has, likewise, failed to establish that the respondent made the decision in a way which would attract any other provisions of the Judicial Review Act.
The application is dismissed. The applicant is to pay the respondent’s costs of and incidental to the application.
0
0
2