FEDERAL COURT OF AUSTRALIA

Knight v G4S Custodial Services Pty Ltd [2023] FCA 926

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for interlocutory relief in his amended originating application filed on 26 September 2022 be dismissed.

2.    The applicant pay the respondents’ costs of the application, to be fixed by way of an agreed lump sum or, in default of agreement, by way of a lump sum fixed by a Registrar.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANDERSON J

INTRODUCTION

1    By his amended originating application filed on 26 September 2022, the applicant, Mr Knight, sought interlocutory relief requiring the respondents to:

(1)    provide him with daily access to a computer and printing facilities;

(2)    reconnect “various electronic legal databases (particularly, LexisNexis Butterworths Unreported Judgments Disks 1-4 and the Thomson Lawbook Co Federal Cases database)” (together, Relevant Databases) to the Port Phillip Prison (PPP) library computer server; and

(3)    provide him with access to three websites, namely www.fedcourt.gov.au (Court’s website), www.legislation.gov.au (Federal Register of Legislation) and www.austlii.edu.au (AustLII) (together, Relevant Websites).

2    In support of his interlocutory application, the applicant tendered two affidavits dated 19 September 2022 (Knight First Affidavit) and 17 July 2023 (Knight Second Affidavit).

3    In response to the applicant’s application for interlocutory relief, the first respondent (G4S) and the second respondent (the State) relied on:

(1)    the affidavit of Andrew Pike, the then Deputy General Manager of G4S, dated 23 August 2022 (Pike Affidavit);

(2)    the affidavit of Jennifer Hosking, the Assistant Commissioner of the Sentence Management Division at Corrections Victoria, dated 31 August 2022 (Hosking First Affidavit);

(3)    the further affidavit of Jennifer Hosking dated 17 July 2023 (Hosking Second Affidavit);

(4)    the affidavit of Kenneth Middlebrook, the acting Deputy General Manager of G4S, dated 18 July 2023 (Middlebrook Affidavit); and

(5)    the further affidavit of Ms Hosking dated 25 July 2023 (Hosking Third Affidavit).

FACTUAL BACKGROUND

4    The affidavit evidence discloses the following background facts.

The applicant’s current access to facilities and resources

5    The applicant is a prisoner at Port Phillip Prison (PPP). He is serving a non-parole life sentence.

6    The applicant has been classified as a Major Offender since January 2016 because of the high profile and significant nature of his offences. This means that Corrections Victoria provides additional monitoring and oversight of the applicant to ensure that he is managed appropriately. Mr Pike deposed that, as the applicant is a Major Offender, some of the processes with respect to the applicant’s access to in-cell computers, software and hardware differ when compared with the processes applicable to prisoners who are not classified Major Offenders.

7    Mr Pike deposed that the applicant was placed on a management regime in the Charlotte Unit at PPP on 25 March 2022 for reasons which are not presently relevant.

8    Mr Pike deposed that, while the applicant was in the Charlotte Unit, he did not have access to a computer and could not be escorted to a location where he had access to a computer. In the Knight First Affidavit, the applicant contested Mr Pike’s evidence on this issue, and deposed that he attended the Government Functions area of PPP on one occasion while he was in the Charlotte Unit, during which time he accessed a computer.

9    On 6 May 2022, the applicant was returned to the Gorgan Unit at PPP.

Access to computers in the PPP library and the Government Functions area

10    Mr Pike deposed that, since the applicant’s return to the Gorgan Unit, he has had access to:

(1)    computers in the prison library during the timetable for access by prisoners from Gorgan Unit (except during days when Gorgan Unit was in lockdown due to COVID); and

(2)    a laptop in the Government Functions area of PPP during periods when he booked access to a laptop (except during days when Gorgan Unit was in lockdown due to COVID).

11    Mr Pike deposed that there are three general use computers in the PPP library. Mr Pike deposed that, “in the months of June, July and 5 August 2022”, the applicant attended the library on three occasions. Mr Pike was unable to depose to the applicant’s attendance on the library in May because he did not, at the time, have access to the necessary records. In the Knight First Affidavit, the applicant deposed that he accessed the library on three occasions in May 2022.

12    In the subsequent Middlebrook Affidavit, Mr Middlebrook deposed that the applicant had access to the PPP library on Mondays between 8.40am and 10.15am and Tuesdays between 12.45pm and 2.15pm. In his affidavit, Mr Middlebrook set out in a table recording the applicant’s attendance at the PPP library based on the library’s attendance records. That table identified that, between October 2022 and July 2023, the applicant attended the library on approximately 80 occasions.

13    At the time of the hearing, a platform called the Offender Services Network (OSN) was available on PPP library computer. In the Hosking Third Affidavit, Ms Hosking deposed that the OSN gave prisoners access to various applications, including Microsoft Office. In the Hosking Second Affidavit, Ms Hosking deposed that prisoners who had access to the OSN were able to access an up-to-date collection of Victorian legislation at the website http://legislation.vic.gov.au. Ms Hosking deposed that this website was available on a restricted basis, with all external links blocked. Ms Hosking deposed that no other websites were available to prisoners.

14    Mr Pike and Mr Middlebrook deposed that there are two general use laptops in the Government Functions area of PPP. The applicant deposed that only one laptop is made available for use by prisoners at any one time. The applicant deposed that his total attendance at the Government Functions area of PPP from 6 May 2022 to 5 August 2022 was approximately 52 hours. On this basis, the applicant deposed that, during this period, his average computer access was 4 hours per week.

15    Mr Middlebrook subsequently deposed to the applicant’s attendance at the Government Functions area of PPP to use a laptop computer based on the prison’s records for booking laptops, and an associated spreadsheet. Mr Middlebrook deposed to approximately 70 attendances by the applicant at the Government Functions area between October 2022 and July 2023.

16    During the hearing, I asked the applicant about the extent of his access to computers at PPP. His response was broadly consistent with the evidence of Mr Pike and Mr Middlebrook. He relevantly stated:

On Monday morning, I can attend the prison library and use the computers there for around 9 till 10.30, roughly. Again on Tuesday afternoon, I can attend the library and access theirs from around 10 to 1 [ie, 12.50pm] to around 2.30, give or take a few minutes here or there. …

Then there’s access to legal laptop computers at the government functions building at the prison and that can vary, your Honour. I’ve had some weeks where I’ve been able to access it four afternoons a week, and then the following week not at all. Obviously, you’re dealing with a prison that holds around a thousand prisoners, although it’s somewhat less now, but, be that as it may, there’s competing demands on that resource.

Access to printing

17    Mr Pike deposed that the applicant is able to print documents at the prison library, with the assistance of PPP staff. In the Knight First Affidavit, the applicant deposed that prisoners may only have legal documents (for example, court documents) printed. The applicant deposed that prisoners wishing to have legal documents printed must draft them onto one of the library computers during an assigned library session, and send them to the prison’s Education Coordinator for printing, which occurs within 1-4 days. The applicant deposed that prisoners are charged 10 cents per page printed.

Access to legal resources, including the Relevant Databases

18    At the time of his affidavit, Mr Pike deposed that the applicant had access to various legal resources in the prison library — specifically, the legal resources listed in Commissioner’s Requirement 4.2.3 – Prison Libraries and Prisoner Access to Legal Resources (CR 4.2.3). The respondents did not give evidence as to any amendments to CR 4.2.3 since the time of Mr Pike’s affidavit.

19    Mr Pike deposed that the resources listed in CR 4.2.3 did not include electronic databases for Lexis Nexis Butterworths Unreported Judgments and Thomson Lawbook Federal Cases.

20    In the Knight First Affidavit, the applicant deposed that, in 2002, LexisNexis Butterworths Unreported Judgments Disks 1-4 were copied onto the PPP library’s computers and, in 2006, various Thomson Lawbook Co legal databases were added to the prison library computers. The applicant’s evidence was that the prison library computer server was restored on 15 January 2018, following a fire in the prison’s control room. He deposed that when the server was restored, the prison did not restore the links to the LexisNexis Butterworths or Thomson Lawbook Co legal databases. The respondents did not seek to rely on any evidence that contradicted the applicant’s evidence on this issue.

21    Mr Pike deposed that, among other things, CR 4.2.3 stated that:

In the event that a prisoner makes a request for a specific legal resource reasonably related to their legal matters that is not available at their local prison library arrangements may be made for a copy of the resource to be obtained from the MRC Library or the Group Services & Coordination team, Corrections & Justice Services.

Charges to prisoners for loans or photocopy services are not to exceed what a prisoner might reasonably be capable of paying having regard to their prison income…

22    Mr Pike deposed that the applicant has not made a request of the prison library at PPP to obtain specific legal resources for his use in connection with this proceeding.

23    During the hearing, I asked the applicant if he had made a targeted request for access to legal resources in accordance with the protocol outlined in CR 4.2.3. The applicant said he had not. The applicant further explained:

[Applicant]: I say two things about that: first, your Honour has touched on a targeted request. … First you have to know what you’re seeking.

HIS HONOUR: Well, you’ve got to start, I think, Mr Knight. And it may be that you don’t get everything you want on the first request and it may be you need to make a second or third request.

[Applicant]: Well, that leads into my second point, your Honour: the way that process works is that they won’t conduct legal research on your behalf. You have to specify what case you’re after. I can’t make a general request saying, “I want all cases that contain the phrase special disability,” because the response is, “Well, you have to nominate what specific case you’re after.” And obviously, your Honour, that – if I don’t know what I’m looking for, how can I specify what case, if any, exists.

And the additional problem that arises there is that this is on a cost basis, so I’m paying for every page that they print out. Now, I may seek access, assuming that I know the name of the case, to a judgment of the High Court, for instance, that may be several hundred pages long and, when I actually get a chance to read it, it is absolutely useless to me. So I’ve spent all that money having them print out a case that is no benefit to me, which if I was given direct access to it via AustLII or via the court’s own website, I could make that determination for myself.

Access to internet

24    Neither the computers in the prison library nor the laptops in the Government Functions area of PPP have access to the internet. Rule 65(1)(o) of the Corrections Regulations 2019 (Vic) (Regulations) provides that prisoners in Victorian prisons are prohibited from using or accessing the internet.

Access to an in-cell computer

25    Prisoners do not have a right to computers under the Corrections Act 1986 (Vic) or the Regulations. Regulation 33 of the Regulations requires the Commissioner of Corrections Victoria (Commissioner) to submit an annual list of prisoner privileges to the Secretary to the Department of Justice and Community Safety. In the Hosking Second Affidavit, Ms Hosking deposed that the current Annual List of Prisoner Privileges includes “[a]ccess to shared unit computers” (item (g)), but otherwise does not include computers.

26    In the Hosking First Affidavit, Ms Hosking relevantly deposed that:

(1)    Decisions within Victorian prisons about whether a prisoner will be allowed to have access to a computer would be made having regard to a policy outlined in “Commissioner's Requirement CR 2.1.2 - Prisoner Computers and Gaming Consoles” (CR 2.1.2). In the Hosking Second Affidavit, Ms Hosking confirmed that there had been no changes to CR 2.1.2 since the time of her first affidavit.

(2)    CR 2.1.2 sets out the criteria for a prisoner to have an in-cell computer which can be broadly grouped into two types of criteria, namely criteria depending on the purpose of the prisoner’s access to an in-cell computer (eligibility criteria) and criteria depending on the prisoner’s past conduct (standards of behaviour criteria).

(3)    Under CR 2.1.2, a prisoner may only be given permission to have an in-cell computer if they meet at least one of three eligibility criteria. Relevantly in relation to those criteria, the applicant:

(a)    was not involved in any outstanding criminal legal matters;

(b)    was not enrolled in any educational programs or courses;

(c)    did not have a disability that affected his ability to communicate; and

(d)    was not in the final 12 months of his sentence.

(4)    In relation to the standards of behaviour criteria, the applicant:

(a)    had an Identified Drug User status of category IDU-A, which was given to those prisoners convicted of a serious prison or non-prison offence for trafficking drugs into or within a prison; and

(b)    had a history of non-compliance with CR 2.1.2 and Commissioner’s Requirement 2.1.4 – USB Storage Devices for Prisoners (CR 2.1.4). Mr Hosking identified four incidents relating to the unauthorised use of USBs, the last of which was on 25 March 2022. In the Hosking Second Affidavit, Ms Hosking deposed that the applicant had not had any further incidents since March 2022.

(5)    Other matters which may affect the good order and security of the prison, or the safety of staff and prisoners, are also relevant considerations when determining a prisoner’s application for access to a computer.

(6)    CR 2.1.2 also sets out the approval process for an application for an in-cell computer from a prisoner who is classified as a Major Offender. Broadly, that process requires a recommendation by a Case Management Review Committee at PPP which is supported by the General Manager of PPP.

27    In the Hosking First Affidavit, Ms Hosking also opined that prisoner access to in-cell computers carried “risks to the security, good order and management of a prison”. Ms Hosking further deposed:

The main risk associated with a prisoner's use of an in-cell computer is the possibility of that individual using the computer to access the internet, which would open up the opportunity for a prisoner to have unsupervised electronic contact with others in the community, including victims of a prisoner's crime or criminal associates.

28    In his affidavit dated 23 August 2022, Mr Pike deposed that since his return to the Gorgan Unit, the applicant had not applied for an in-cell computer. Mr Pike further deposed that, earlier in the year, as a result of significant periods of lock downs associated with COVID, the applicant had been approved for a temporary loan of a laptop for use in his cell. In the Knight First Affidavit, the applicant exhibited a letter from Mr Pike dated 9 March 2022, which stated that a “loan ‘in cell computer’ was approved on 24 February 2022”. It is not clear whether this is the approval for a temporary loan deposed to in Mr Hosking’s affidavit.

29    In the Hosking First Affidavit, Ms Hosking further deposed that Corrections Victoria had not received an application for an in-cell computer through the “correct process” of recommendations and approvals set out above.

30    In the Knight Second Affidavit, the applicant referred to two applications that he submitted on 28 October 2022, titled “Application for Access to a Personal Computer” and “Application to Purchase Corrections Victoria Approved USB”. Subsequently, in the Hosking Third Affidavit, Ms Hosking identified the following bundle of documents relating to applications made by the applicant on 28 October 2022:

(1)    Application for Access to a Personal Computer signed by the applicant on 28 October 2022;

(2)    Application for Access to Computer Hardware signed by the applicant on 28 October 2022;

(3)    Application for Access to Computer Software signed by the applicant on 28 October 2022;

(4)    Prisoner's Computer Agreement signed by the applicant on 28 October 2022; and

(5)    Application to Purchase Corrections Victoria Approved USB Storage Device signed by the applicant on 28 October 2022.

31    Ms Hosking deposed that, on 5 January 2023, Mr Pike sent a letter to the applicant, rejecting the applicant’s application for a loan computer. At the time that this letter was sent, Ms Hosking deposed that Corrections Victoria had informed Mr Pike that a final decision on the applicant’s application could be made by him.

32    Ms Hosking deposed that Corrections Victoria subsequently determined that any final decision regarding the applicant’s application, as an application for a loan computer for in-cell use, rested with Corrections Victoria. Accordingly, on 25 July 2023, the Deputy Commissioner, Custodial Operations (Deputy Commissioner), wrote to the applicant on behalf of Corrections Victoria rejecting the applications that the applicant submitted on 28 October 2022. In her letter to the applicant, the Deputy Commissioner informed the applicant that his application was refused “based on previous breaches of the prisoner’s computer agreement, which impacts the security and good order of the prison”.

Access to a USB storage device

33    The applicant does not, by his application, seek access to a USB storage device, so it is not necessary to set out his access to a USB in detail. It is sufficient to set out the following key facts:

(1)    Mr Pike deposed, at the time of his affidavit, that the applicant had access to a USB storage device, which he could use to save documents that he was editing on the computers in the prison library and the laptops in the Government Functions area.

(2)    In the Hosking First Affidavit, Ms Hosking deposed that she could find no record of appropriate approval for the USB access that Mr Pike had deposed had been provided to the applicant. Ms Hosking deposed that the relevant process was set out in CR 2.1.4, and required a recommendation from her as the Assistant Commissioner of the Sentence Management Division and approval by the Deputy Commissioner. Nonetheless, Ms Hosking deposed that, if such an application was made, she would recommend its approval to the Deputy Commissioner.

(3)    Ultimately, on 25 July 2023, the Deputy Commissioner rejected the applicant’s application for a personal USB, on the basis of his previous breaches of the prisoner’s computer agreement. The Deputy Commissioner further stated that she supported the applicant’s access to the OSN via PPP library computer. She stated that the OSN allowed the applicant to save documents securely using his own login, and this removed the need for a USB.

APPLICANT’S SUBMISSIONS

34    The applicant sought to rely on the inherent power of this Court to regulate its own proceedings, and further s 23 and 37P of the Federal Court of Australia Act 1976 (Cth), to make interlocutory orders with respect to daily access to computer and printing facilities, existing electronic legal databases at the prison library, and to relevant online legal resources. The applicant emphasised that he did not seek judicial review of the respondents’ decisions to refuse him access to a personal computer.

35    The applicant relied on the following principles:

(1)    the common law right of unimpeded access to the court;

(2)    the principle that that right is retained by prisoners in Victoria ;

(3)    the principle that a prisoner's common law right of unimpeded access to the courts includes access to reasonable facilities for the conduct of proceedings, which today includes access to computer and printing facilities in order to facilitate case preparation; and

(4)    that it is for the Court, and not the prison authorities, to determine what constitutes a fair hearing, adequate time, reasonable facilities and unimpeded access to the Court.

Access to computer and printing facilities

36    The applicant submitted that he required access to a computer on a daily basis to draft court documents, review relevant statutes and authorities, read transcripts, compile briefs to counsel, seek advice from legal advisers and give instructions, draft affidavit material, draft associated correspondence and maintain personal records. The applicant submitted that denying him access to a personal “in cell” computer and printer had hindered and impeded his case preparation, leading to delays in the conduct of his proceeding.

37    The applicant emphasised that the substantive claim litigated in this proceeding was complex, and may involve the review of voluminous materials produced under subpoena. He further noted that, in the underlying proceedings, he sought declaratory relief that the prisoners at PPP were under a “special disability” when entering into consumer transactions for goods and services, which was relevant to various claims made under the Australian Consumer Law (as set out in the Competition and Consumer Act 2010 (Cth), Sch 2). It followed, the applicant submitted, that the proceeding implicated interests beyond his own. The applicant submitted that these matters provided context to his application for access to computer and printing facilities.

38    The applicant also emphasised that PPP had loaned in-cell computers to other prisoners. He also submitted that other prisoners with a similar history of possessing unauthorised materials have or have had approval to be supplied personal in-cell computers.

39    The applicant also drew the Court’s attention to the chronology of his previous correspondence with the respondents concerning his access to an in-cell computer. That chronology is relevantly set out at [28]-[32] above. The substance of the applicant’s submission appeared to be that the chronology revealed that the respondents had previously approved his access to an in cell computer (referred to in the letter from Mr Pike dated 9 March 2022, as set out at [28] above), and the respondents’ had subsequently had an unexplained “change of heart”.

Access to Relevant Databases and Relevant Websites

40    In support of his application for access to the Relevant Databases, the applicant submitted that the Relevant Databases had been accessible on the PPP library computers until a fire at the prison (the relevant chronology, taken from the Knight First Affidavit, is set out at [20] above). He then submitted:

And the resource still exists. It’s sitting on the computer screen – on the computer server. All they’ve simply done is remove the link from the desktop in 30 of the library computers to those resources on the server. Now, if that situation has somehow changed, I’m unaware of it. Perhaps the first respondent can enlighten the court as to what the current situation is. But my expectation is, your Honour, that simply involves the relevant IT personnel re-establishing the link to the computer desktops.

41    The applicant conceded that both of the Relevant Databases were only “current to around 2005, 2006”. However, he submitted that “a lot of the resources [on the databases] are still good, current law”.

42    In support of his application for access to the Relevant Websites, the applicant submitted that, if (for example) he was given access to AustLII, he would be able to conduct keyword searches for relevant authorities in support of his claim in the underlying proceeding.

43    As extracted at [23] above, the applicant submitted that there were limitations with the present protocol for making targeted requests for legal materials of Corrections Victoria. In summary he submitted that:

(1)    the protocol for making requests for legal materials were premised on the applicant knowing what he was seeking;

(2)    the protocol did not enable him to make general requests for authorities containing keywords, and instead required him to identify specific authorities the subject of his request; and

(3)    the protocol unnecessarily increased the cost of his legal research, because he was required, in the first instance, to pay for the printing of all authorities obtained in response to a targeted request before he could read those authorities and determine their relevance to his case.

44    The applicant further observed that, under the OSN, he was able to access a “real-time link” to the Victorian legislation website. The applicant submitted that, if the respondents were able to create a link to that website “one would have thought that it’s simply another tick to add the [Federal Register of Legislation] and [AustLII]”.

45    During the hearing, the applicant made the following submissions in support of his application for access to this Court’s website:

For a number of years, I had access to the direct phone line to the court’s registry and rang it on a semi-regular basis. As your Honour might be aware, this is my – not my first proceeding in this court. With the COVID pandemic, as your Honour is no doubt aware, the phone system [changed] to a national call centre. So, instead of ringing the Melbourne registry, I could be speaking to someone at the registry in Adelaide or Brisbane or wherever. Following that change, your Honour, and a return to numbers being available, the court instituted a 1300 number to the national call centre. The problem that creates for myself and other prisoners is that prisoners are not permitted … to ring 1300 numbers and they’re not permitted or not able, in fact, to ring any number that requires a keypad selection after the initial call because, obviously, we’re going through the prison switchboard and the relevant keyboard is there, not at the unit level. So, unfortunately, I no longer have access to the registry. …

So, as we’ve already seen with respect to this link now to the Victorian legislation website. And, if your Honour looks at that website, there is an invitation by the Office of the Chief Parliamentary Counsel and the parliament library that operate the library and they even have a page that says, “Contact us.” For reasons best known to Corrections Victoria, they’ve blocked all those email things. But there is still the remaining link to the, “Was this page helpful?” comment section.

46    I infer from this that the effect of the applicant’s submissions was that, if he had access to this Court’s website, he may be able to access an equivalent facility to that available on the Victorian legislation website, which would enable him to more readily make contact with the Court.

Appropriate relief

47    The State submitted that, if the Court considered that the applicant had, in effect, been prevented from having access to the Court, the Court should, in the first instance, indicate what additional facilities were required for the applicant to be able to access the Court, and to allow the respondents to determine how those facilities could best be provided to the applicant consistently with the security, good order and management of PPP. During the hearing, the applicant submitted that he was agreeable to this course. He submitted that, if, for example, the respondents were to deny him access to a computer on an in-cell basis, but to allow him access to the computer in the PPP library “all day, every day that the library is open”, he would be agreeable to this.

RELEVANT PRINCIPLES

48    The State accepted that every prisoner in Victoria has a right of access to the courts, as part of their right to a fair trial.

49    The State also accepted that, in relation to matters in which it has jurisdiction, this Court has power (either under s 23 of the Federal Court of Australia Act 1976 (Cth), or as part of its inherent jurisdiction) to make orders directed to ensuring that a person has a fair trial and is not prevented from accessing the Court. G4S similarly accepted that this Court has the power to make orders to facilitate the proper administration of justice and for case management.

50    However, the conferral upon this Court by statute of the power to grant interlocutory injunctions is not at large. An injunction is a curial remedy. On an application for an injunction, a court is not empowered to make an order other than in protection of some legal or equitable right: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [59]-[60] (Gaudron J), [105] (Gummow and Hayne JJ).

51    In Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113 at [66], the New South Wales Court of Appeal considered a claim by a prisoner for, amongst other things, access to a printer, scanner and personal laptop to enable him to prepare for his pending trial in the District Court of New South Wales. A judge of the Supreme Court of New South Wales made orders that the prisoner be given access to this equipment. The New South Wales Court of Appeal allowed an appeal against those orders.

52    Basten JA (with whom Beazley P agreed) relevantly stated (at [68]-[69]) that:

A “right to a fair trial” may overlap with a “right of access to the courts”, but … neither identifies a single “right”: rather, each is a label describing a range of elements understood to be inherent requirements of a common law based system for the administration of civil and criminal justice.

Most rights are not absolute; express statutory or constitutional statements of human rights are generally expressed to be subject to ‘reasonable limits’. Any rights in issue here are qualified in substantial respects, particularly by the need for enforcement of security in a custodial environment.

53    The principles in relation to the common law right of access to a court are well established.

54    Every prisoner in Victoria has a right of access to the courts, as part of their right to a fair trial. The leading case is Rich v Groningen (1987) 95 A Crim R 272. In that case, Gillard J (at 287) stated:

I have no doubt that the plaintiff as a prisoner enjoys the right of every citizen in this State to unimpeded access to the courts, subject to the provisions of any legislation in this state which applies to him.

55    The above principle has been accepted in a number of other Victorian authorities: Knight v Wise [2011] VSC 313 at [32] (Hollingworth J); Brazel v Westin [2013] VSC 527 at [21] (Kaye J) (Brazel); Knight v Wise [2014] VSC 76 at [25] (T Forrest J).

56    Relatedly, s 47(1) of the Corrections Act 1986 (Vic) enumerates a series of specific rights of each prisoner in Victoria. Section 47(2) provides that “a prisoner’s rights under this section are additional to, and do not affect any other rights which a prisoner has … at common law.”

57    The principles relevant to an application of the kind made by the applicant were usefully summarised by Kaye J in Brazel at [21]:

(1)     Each individual has an established common law right to unimpeded access to the courts of the State, as part of the basic right to a fair trial.

(2)     A prisoner, such as the plaintiff, has the same civil rights and privileges as any other citizen, including the right of access to the courts. That right inheres in each individual in both civil and criminal litigation.

(3)     That right may be infringed where, in the case of a prisoner, the prison authorities take steps which effectively prevent the prisoner properly presenting his or her case to court.

(4)     The court will only intervene to protect that right if the action, or inaction, of the prison authority, would have the effect of preventing a person from effectively accessing the court.

58    As to the final point, the authorities are clear that inconvenience to a prisoner is not sufficient to justify intervention. Rather, what is relevant is whether action or inaction by a prison authority has prevented a prisoner from having effective access to a court. So, for example, in R v Rich (No 2) [2008] VSC 141, Lasry J (at [66]) stated:

In my opinion it would obviously be very convenient for the accused to have a laptop computer but that is not the test. The question is whether such a facility is integral to the fair trial of the accused or, put in other words, whether without a laptop computer his trial will be unfair such as to justify a stay. (Emphasis added.)

59    In Knight v Wise [2014] VSC 76, T Forrest J considered whether denial of the applicant to access to an in-cell computer breached his common law right to unimpeded access. T Forrest J relevantly held (at [27], [29]):

The same or similar issues concerning the common law right of access to the courts have arisen in successive applications for leave to commence proceedings brought by Mr Knight. None of these proceedings has determined this issue in Mr Knight’s favour.

…

Doubtless it would be easier for Mr Knight to meet his various court deadlines if he had access to an in-cell computer. I am not, however, satisfied the evidence could sustain a finding that there has been or could be a breach of Mr Knight’s common law right of unimpeded access to the courts. Despite the large number of proceedings or proposed proceedings to which he is currently a party Mr Knight continues to file numerous originating documents, legal submissions and affidavits. These are almost always long and detailed and sometimes quite sophisticated. Mr Knight’s correspondence with various court officials, or at least that part of it that was on the court file, has been constant.

60    A further principle that emerges from the authorities is that the Court must be careful not to enter into a review of the merits of the prison authority’s decisions.

61    In Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506, Kyrou J (at [50]) stated:

There are sound constitutional and practical reasons why this Court cannot substitute its own view for the view of Corrections Victoria. Under our Constitution, it is the executive — acting through Corrections Victoria — rather than the judiciary that administers the laws relating to prisoners. As a result, Corrections Victoria is far more knowledgeable and experienced than this Court can ever be about issues concerning the management of prisoners — including education, welfare and security — that inform the framework within which decisions affecting prisoners are made.

62    In Fyfe v South Australia [2000] SASC 84, Martin J (at [18]) stated:

Prisoners are in a position of particular disadvantage. Any abuse of power by prison authorities is unacceptable and can often have serious ramifications. At the same time, however, the limits of the Court’s jurisdiction must be carefully observed and the Court must avoid becoming enmeshed in the merits of particular decisions. The management of prisons is a particularly difficult and sensitive task involving complex practical considerations and security implications with which the Court is not familiar and which it is difficult for the Court to understand or fully appreciate from the comfort of the court surroundings.

63    Both of the above decisions were quoted with approval by Kaye J in Brazel at [22]-[23].

64    Although the above comments were made in the context of applications for judicial review of a decision of a prison authority, in my opinion, they are relevant to the Court’s consideration of orders or directions that might be necessary to ensure that a prisoner has access to the courts.

CONSIDERATION

65    The applicant does not assert that he has a statutory right under the Corrections Act 1986 (Vic) or the Regulations, or any other legislation, to have daily access to computer and printing facilities, or to have access to electronic legal databases or the internet.

66    Rather, the applicant contends that the Court should make the orders that he seeks on the basis that those orders are necessary to give effect to a “common law right of unimpeded access to the court”.

67    For the reasons that follow, the application must be dismissed.

68    The question which will determine this application is whether the applicant has been prevented from having effective access to the Court in this proceeding. In undertaking that assessment, I am conscious of the need to avoid, if possible, interfering with prison management decisions made pursuant to the relevant acts and regulations: Knight v Deputy Commissioner, Corrections Victoria [2012] VSC 506 at [50]; Fyfe v South Australia [2000] SASC 84 at [18]; Brazel at [22]-[23]; see also Knight v Governor, Port Phillip Prison [2014] VSC 10 at [22].

69    The affidavit evidence, and the applicant’s submissions during the hearing, establish that the applicant presently has access to the following facilities and resources relevant to his access to this Court:

(1)    the applicant has access to computers in the prison library twice a week for a total of at least 3 hours (see [12], [16] above);

(2)    the applicant has access to a laptop in the Government Functions area on a booking system, and the prison records record his booking of this laptop for use on a regular basis (see [15] above);

(3)    the applicant is able to print documents with the assistance of PPP staff (see at [17] above);

(4)    the applicant has access to the legal resources specified in CR 4.2.3 (see at [19]-[21]); and

(5)    the applicant is able to request access to additional specific legal resources (see at [19], [22]-[23]).

70    Further, during the course of this interlocutory application:

(1)    the applicant has written numerous letters to chambers and the respondents;

(2)    the applicant filed written submissions of ten pages, which cited or quoted the authorities of this Court, the Supreme Court of Victoria, the Victorian Court of Appeal, the House of Lords, the England and Wales High Court, the England and Wales Court of Appeal, and the United States Supreme Court;

(3)    the applicant filed two affidavits – the Knight First Affidavit (237 pages in length, including annexures) and the Second Knight Affidavit (25 pages in length, including annexures);

(4)    the applicant emailed to chambers a list of authorities in support of his application which referred, in total, to 37 cases; and

(5)    during the hearing of this application, the applicant referred the Court to Australian Competition and Consumer Commission v Telstra Corporation Limited [2021] FCA 502, a case which the applicant submitted dealt with “exactly the same issues” as raised in the underlying proceeding.

71    I am satisfied on the basis of the above that the applicant’s common law right of unimpeded access to the courts has not been infringed. The affidavit evidence relied upon by the applicant and his submissions during the hearing establish that it is inconvenient to him to be denied the additional facilities and resources that he seeks in this application. However, that inconvenience is not sufficient to justify the interlocutory relief which he seeks.

72    More particularly, it is clear on the evidence that the applicant has access to computer resources on a weekly basis. The respondents’ refusal to provide the applicant with additional access, or an “in cell” computer, does not constitute a breach of his common law right of access to the court.

73    I note that, in his submissions during the hearing, the applicant sought to emphasise that other prisoners had been granted access to “in cell” computers and that he had previously been approved to be provided with access to an “in cell” computer. However, these considerations are not relevant. The question with which I am concerned is whether the level of the applicant’s access to computer facilities is sufficient to ensure a fair trial in this proceeding. I am satisfied that it is.

74    I also consider that the evidence establishes that the applicant has available to him the ability to make targeted requests for legal resources. His conduct of this proceeding establishes that he is able to access legal resources when required. Plainly, it would be more convenient for the applicant to be able to access the Relevant Websites and Relevant Databases, but his lack of access to these resources does not deny him access to the court. It simply means that the applicant must undertake research using an alternative methodology than would be his preference by, for example, first reviewing relevant textbooks or relevant cases of which he is aware – such as Australian Competition and Consumer Commission v Telstra Corporation Limited [2021] FCA 502 – and from there making targeted requests for further relevant cases.

75    It is also clear that the applicant is more than capable of corresponding with chambers by email as required in relation to the conduct of this case and, consequently, the fact that the applicant does not have access to this Court’s website does not constitute a breach of his common law right of access to the court.

76    Further, the applicant’s request to have access to the Relevant Websites must be refused as such an order would be contrary to r 65(1)(o) of the Regulations. The applicant’s common law right of access to the courts is not absolute and must be subject to the laws and regulations applicable to prisoners. His common law right therefore cannot override the requirements of the Regulations. It follows that any speculation by the applicant as to the ease with which he can be provided access to the Relevant Websites can have no bearing on the outcome of this application.

77    The applicant made reference to s 256 of the Migration Act 1958 (Cth), which provides:

Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.

78    The applicant referred to the decision of NAFC v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 126 FCR 99, in which Beaumont J considered the meaning of “reasonable facilities” in s 256 of the Migration Act 1958 (Cth).

79    Section 256 has no application to the applicant because he is not in immigration detention. For the same reason, cases concerning the phrase “reasonable facilities” in the context of s 256 of the Migration Act 1958 (Cth) have no application to the applicant’s claim for interlocutory relief.

80    For the above reasons, I am not satisfied that the applicant has been prevented from having effective access to the Court. It follows that it is also not necessary for me to provide any indication to the parties as to what additional facilities the applicant requires to be able to access the Court.

DISPOSITION

81    The application will be dismissed with costs.

Associate:

Dated:    10 August 2023