PATSALIS V THE STATE OF NEW SOUTH WALES [2011] NSWSC 1583

Supreme CourtNew South Wales

Medium Neutral Citation

Patsalis v The State of New South Wales [2011] NSWSC 1583

Hearing Dates

14 December 2011

Decision Date

19/12/2011

Jurisdiction

Common Law

Before

Schmidt J

Decision

For the reasons given, I order that Mr Patsalis be given access to his legal documents which relate to his civil proceedings in his cell.

Catchwords

PROCEDURE - notice of motion - mandatory injunction - access to legal documents - expedition - injunction refused - access to certain legal documents and expedition granted

Legislation Cited

Crimes (Appeal and Review) Act 2001
Crimes (Administration of Sentences) Act 1999
Felons (Civil Proceedings) Act 1981

Cases Cited

Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82
Patsalis v State of New South Wales (Supreme Court of New South Wales, Schmidt J, 26 July 2011, unreported)
Patsalis v State of New South Wales [2011] NSWCA 364

Category

Procedural and other rulings

Parties

Michael Patsalis (Plaintiff)
The State of New South Wales (Defendant)

Representation

Solicitors:
Mr Patsalis (unrepresented)
IV Knight, Crown Solicitor (Defendant)

Counsel:
Mr JJ Hutton (Defendant)

File Number(s)

2011/151237

Publication Restriction

None

JUDGMENT

1By a judgment given on 26 July 2011, Mr Patsalis was granted leave to commence these proceedings under s 4 of the Felons (Civil Proceedings) Act 1981, except as to one aspect. Leave to commence the proceedings in relation to the access Mr Patsalis sought to certain legal documents, was refused (see Patsalis v State of New South Wales (Supreme Court of New South Wales, Schmidt J, 26 July 2011, unreported)) . Mr Patsalis has been granted leave to appeal that aspect of the decision (see Patsalis v State of New South Wales [2011] NSWCA 364).

2By a notice of motion filed on 27 October 2011, Mr Patsalis sought three interlocutory orders:

"1. Court order in the nature of mandatory injunction preventing the staff at Junee Correctional Centre or any other correctional staff or the Commissioner of Corrective Services or the Serious Offenders Review Council from moving the plaintiff from Junee Correctional Centre to any other centre except to Dawn De Laos Correctional Centre until such time as the Honourable Court hears and determines the Court order numbered one in his Summons (case number, 2011/151237); which can be summarised as follows; for the Honourable court to compel the State of New South Wales or the Commissioner of Corrective Services to "house the plaintiff in the same pod or wing which houses inmates who are ex-police officers; ex-prison officers; ex-lawyers and the like at Dawn De Laos Correctional Centre" (which also includes the protection part of Dawn De Laos Correctional Centre which may not house ex-police officers; ex-prison officers; ex-lawyers and the like); and to always have him in a one out cell. (please refer to the supporting evidence namely the plaintiff's affidavit and brief submissions).

2. Court order in the nature of mandamus to compel and command the Commissioner of Corrective Services and Junee Correctional Centre to allow the plaintiff to have the same access to his legal documents in the segregation cell as he did whilst being housed in the pod; or at any other correctional centre which houses him from time to time. The legal documents being referred to here are in relation to these current civil proceedings and to his current criminal case; Smith v Commissioner of Correctives Services (1978) 1 NSWLR 317 at 320 - 322 (Please refer to the supporting evidence namely the plaintiff's affidavit and brief submissions).

3. Court order for an expedited hearing in relation to the first Court order which the plaintiff has sought in his Summons (as referred to in Court order number one above; Please refer to the supporting evidence namely the plaintiff's affidavit and brief submissions)."

The first order

3The parties' competing positions have to be considered in the light of the applicable statutory regime and the approach discussed inModica v Commissioner for Corrective Services (1994) 77 A Crim R 82 at 87 - 8). The Court must generally exercise restraint in reviewing managerial decisions made within a prison, unless for example where bad faith or improper purpose is shown.

4Mr Patsalis is kept in custody in accordance with the provisions of the Crimes (Administration of Sentences) Act 1999 ('the Act'), which includes:

"10 Segregated custody of inmates

(1) The Commissioner may direct that an inmate be held in segregated custody if of the opinion that the association of the inmate with other inmates constitutes or is likely to constitute a threat to:

(a) the personal safety of any other person, or

(b) the security of a correctional centre, or

(c) good order and discipline within a correctional centre.

(2) The general manager of a correctional centre may exercise the Commissioner's functions under this section in relation to the correctional centre and, on each occasion he or she does so, must notify the Commissioner of that fact and of the grounds on which the segregated custody direction was given.

(3) A segregated custody direction given by the general manager of a correctional centre does not apply in relation to any other correctional centre.

(4) Subsection (3) is subject to section 15.

11 Protective custody of inmates

(1) The Commissioner may direct that an inmate be held in protective custody if of the opinion that the association of the inmate with other inmates constitutes or is likely to constitute a threat to the personal safety of the inmate.

(2) The Commissioner may also direct that an inmate be held in protective custody if the inmate requests the Commissioner in writing to do so.

(3) The general manager of a correctional centre may exercise the Commissioner's functions under this section in relation to the correctional centre and, on each occasion he or she does so, must notify the Commissioner of that fact and of the grounds on which the protective custody direction was given.

(4) A protective custody direction given by the general manager of a correctional centre does not apply in relation to any other correctional centre.

(5) Subsection (4) is subject to section 15.

12 Effect of segregated or protective custody direction

(1) An inmate subject to a segregated or protective custody direction is to be detained:

(a) in isolation from all other inmates, or

(b) in association only with such other inmates as the Commissioner (or the general manager of the correctional centre in the exercise of the Commissioner's functions under section 10 or 11) may determine.

(2) An inmate who is held in segregated or protective custody:

(a) is not to suffer any reduction of diet, and

(b) is not to be deprived of any rights or privileges other than those determined by the Commissioner (or the general manager in the exercise of the Commissioner's functions under section 10 or 11), either generally or in a particular case, and other than those the deprivation of which is necessarily incidental to the holding of the inmate in segregated or protective custody."

...

14 Information concerning review of segregated or protective custody direction

As soon as practicable after an inmate is directed:

(a) to be held in segregated custody under section 10, or

(b) to be held in protective custody under section 11 (other than at the inmate's request),

the general manager of the correctional centre is to provide the inmate with information concerning the inmate's rights to a review of the segregated or protective custody direction.

15 Transfer of inmate held in segregated or protective custody

(1) If an inmate held in segregated or protective custody under a segregated or protective custody direction given by the general manager of a correctional centre is transferred to another correctional centre, the segregated or protective custody direction applies:

(a) in relation to the correctional centre to which the inmate is transferred (the receiving correctional centre), and

(b) in relation to the conveyance of the inmate to the receiving correctional centre, including custody of the inmate in any correctional centre in which the inmate is held during the course of being conveyed to the receiving correctional centre.

(2) Within 72 hours after the arrival of the inmate at the receiving correctional centre, the general manager of the receiving correctional centre must review the segregated or protective custody direction, having regard to the grounds referred to in section 10 or 11, and give one of the following directions:

(a) a direction revoking the segregated or protective custody direction,

(b) a direction confirming the segregated or protective custody direction,

(c) a direction confirming the segregated or protective custody direction but amending its terms.

(3) A direction given under subsection (2) has effect according to its terms.

(4) A segregated or protective custody direction that is subject to a direction under subsection (2) (b) or (c) is, on and after the giving of that direction, taken to be a segregated or protective custody direction given by the general manager of the receiving correctional centre.

(5) A direction by the general manager of a receiving correctional centre revoking, confirming or amending a segregated or protective custody direction has effect even though it is given outside the period during which it is required to be given under this section.

16 Review of segregated or protective custody direction by Commissioner

(1) The general manager of a correctional centre where an inmate is held in segregated or protective custody must submit a report about the segregated or protective custody direction to the Commissioner within 14 days after the date on which the direction is given (the relevant date), regardless of whether the segregated or protective custody direction was given by the Commissioner or by the general manager of a correctional centre.

(2) Within 7 days after receiving the report, the Commissioner must review the segregated or protective custody direction and give one of the following directions:

(a) a direction revoking the segregated or protective custody direction,

(b) a direction confirming the segregated or protective custody direction,

(c) a direction confirming the segregated or protective custody direction but amending its terms.

(3) If the direction is confirmed, the general manager of the correctional centre where the inmate is held in segregated or protective custody must submit a further report about the direction to the Commissioner within 3 months after the relevant date, and within each subsequent period of 3 months after that period.

(4) Within 7 days after each occasion on which the Commissioner receives any such further report, the Commissioner must review the segregated or protective custody direction and give one of the directions referred to in subsection (2) (a)-(c).

(5) The confirmation of a segregated or protective custody direction by the general manager of a correctional centre under section 15, or by the Review Council under section 22, does not affect the requirements for reporting about and reviewing a segregated or protective custody direction under this section.

(6) A direction by the Commissioner revoking, confirming or amending a segregated or protective custody direction has effect even though it is given outside the period during which it is required to be given under this section.

(7) In this section:

report , in relation to a segregated or protective custody direction, means a report recommending whether or not the segregated or protective custody direction should be revoked, confirmed or amended.

Mr Patsalis' position

5Mr Patsalis' application was supported by three affidavits, to which were annexed various documents. He also gave oral evidence about matters deposed to in an affidavit sworn by Mr Aaron Baril, who is employed in the Crown Solicitor's Office.

6Particulars of his claim have been provided by Mr Patsalis. He seeks to establish that his life and safety are under threat; that his psychological and mental health and wellbeing have been harmed; that he has been regularly victimised, because of a belief held by other prisoners that he is an ex-police officer; and that he has reported ongoing threats and victimisation since his incarceration in 1999.

7Mr Patsalis is an inmate at Junee Correctional centre. On 14 October 2011, Mr Patsalis says that he was separated from the pod where he had been housed and placed in the segregation pod of the Correctional Centre, because he was then considered to be under threat from other inmates. This was the result of a request he had made on 13 October, when another inmate told other prisoners that Mr Patsalis was an ex-police officer. That day he had raised a complaint about failures to deal with a number of 'Inmate Request Forms', which he had submitted and had not been registered, in accordance with the applicable practice. He was asked to make a further request, which he supplied on the basis that it was not to be disclosed to other inmates. He believes that this request was not honoured.

8Mr Patsalis understands that there are a number of non-association alerts in place in respect of him and various other prisoners and that this was why he was placed into segregation. He has also since been informed that he would be reclassified and moved to another facility.

9Mr Patsalis is concerned that his reclassification on such a transfer will not be properly undertaken and that it would not be suitable for him to be housed at any other correctional centre, other than Junee or the Dawn de Laos Centre. This concern rests in part on numerous non-association orders which apply to him. He is concerned about the consequences which would follow for his safety, if transferred.

10Mr Patsalis also understands that in order for him to be placed at the Dawn de Laos Centre, he would have to be reclassified from a 'B' to a 'C1' security classification. The alternative, being housed elsewhere in protective custody as a Protection Restriction Non Association ('PRNA') inmate, Mr Patsalis opposed as involving a regime of solitary confinement, which was cruel and not healthy for his mental state and which would involve him losing a number of rights and privileges to leisure, work and access to the telephone and education.

11Mr Patsalis relies on the provisions of s 263 of the Act, to argue that there is a mandatory legal obligation falling upon the defendant to act in good faith in determining matters such as his classification and placement, given also the duty of care which it has for him, his safety and mental and physiological wellbeing. He submitted that obligation supported the grant of the relief sought.

The Crown's position

12The Crown opposed the orders sought.

13On Mr Baril's evidence, Mr Patsalis is now classified as a PRNA inmate and is the subject of protective custody directions made under s 11 of the Act. That direction is due to be reviewed on 13 January 2012. Otherwise, Mr Patsalis is managed as a 'Special Management Area Placement' ('SMAP') inmate. The SMAP area is an area where inmates who are vulnerable, fearful and have similar needs are housed. Inmates such as fomer police officers, paedophiles and other sex offenders and transsexual inmates are housed in that area. SMAP inmates may choose whether to remain in the area at all times, or to associate with other inmates. Mr Patsalis explained that he in fact preferred to be housed as a SMAP inmate at Junee, rather than as a PRNA inmate.

14Mr Patsalis' classification is also due to be reviewed by the Commissioner. The Serious Offender's Review Council has recommended his reclassification to C1. Such a reclassification would permit Mr Patsalis to be transferred to the to Dawn de Laos Centre. That is a matter to be determined by the Commissioner.

15The Crown submitted that it is apparent that Mr Patsalis has already achieved part of the relief which he seeks by his summons, which I described in the July judgment as:

"2. Amongst other relief, orders in the nature of mandatory injunctions and mandamus to compel the defendant to house him in a facility which houses inmates who are ex-police officers, ex-prison officers, ex-lawyers and the like, at an identified correctional facility are sought. In the alternative, orders compelling the defendant to give him 'Protections Restriction Non Association' inmate status is sought."

16It was urged that the Court would accept that Mr Patsalis' safety is a matter of ongoing concern and that steps would not be taken by the Commissioner, which would jeopardise his safety. In the circumstances, the onus falling on Mr Patsalis, to permit the grant of the interlocutory order sought, had not been met.

The order must be refused

17The test which Mr Patsalis must satisfy is concerned both with the question of whether there is a serious question to be tried, and the balance of convenience. Given his changed circumstances, that there remains a serious question to be tried, is questionable, but in any event, the balance of convenience does not favour the grant of the relief sought.

18On the evidence, Mr Patsalis achieved aspects of the final relief which he pursues, in practical terms, by application of the statutory regime to which I have referred. Also to be considered is that s 23 of the Act gives the Commissioner the power to order the transfer of prisoners for reasons there specified. The case put for the Crown is that if Mr Patsalis is reclassified as C1, consideration will then be given by the Commissioner as to his transfer to the Dawn de Laos Centre, as he seeks. Otherwise there is no present intention to transfer him away from Junee, prior to the hearing of these proceedings. It follows that his concerns about transfer and the risks which would follow, cannot now sensibly be accepted as a proper basis for the relief sought.

19Section 263, on which Mr Patsalis relies, provides:

"263 Exclusion of personal liability

(1) An act or omission:

(a) by a body constituted by this Act, or

(b) by a person who is a member of such a body or a member of staff of such a body, or

(c) by a correctional officer or by any other person on whom functions are conferred or imposed by or under this Act, or

(d) by any person acting under the direction of a body or person referred to in paragraph (a), (b) or (c),

does not subject a person referred to in paragraph (b), (c) or (d) personally to any action, liability, claim or demand if the act or omission was done or omitted to be done in good faith in the administration or execution of this Act or of any other Act that confers or imposes any functions on a correctional officer.

(2) In particular, such a person is not personally liable in respect of:

(a) anything properly and necessarily done by the person in the course of carrying out a medical examination or medical test if the person believed on reasonable grounds that the examination or test was authorised or required to be carried out by this Act or the regulations, or

(b) the disclosure, in accordance with the regulations, of information obtained in the course of any such examination or test.

(3) In this section:

correctional officer includes a person holding an authority under section 240 to perform custodial duties."

20I cannot see that this provision provides a basis for the interlocutory relief sought.

21On the evidence, I am not able to conclude that the order sought in respect of his placement should be made. At the moment Mr Patsalis may imminently achieve the final relief sought in his summons, namely transfer to the Dawn de Laos Centre. That his safety is at risk in the meantime, has not been established. Mr Patsalis has the concerns he has explained, but it seems to me that the evidence shows that at Junee those concerns have been addressed, given his current placement. That is presumably why he presses for an order requiring that he not be transferred from Junee, if he is not relocated to the Dawn de Laos Centre, pending hearing of his application. Such a transfer will shortly come under active consideration and there is no intention otherwise to transfer him away from Junee.

22In those circumstances, it must be concluded that the onus falling upon Mr Patsalis in respect of the order sought has not been met and should be refused.

Access to documents

23Mr Patsalis' evidence was that from 23 May to 14 October, he was given access to his legal documents in his cell, with which he was satisfied. That position appears to be different to that put earlier, prior to the June judgment. Presumably he was given access to those documents when making his application to the Attorney-General. On his evidence, it seems that his documents were then able to be stored under his bed, without difficulty. That evidence was not disputed.

24That position altered when he was relocated on 14 October and despite a written inmate request he made on 17 October, asking that the documents which were then located in the reception room, be provided to him for the purpose of his current proceedings, he was not given such access. A further request was made on 20 October. On 24 October, Mr Patsalis sent his motion to be filed in Court. It was received on 27 October. On 2 November, Mr Patsalis was notified that he was to be afforded the opportunity to access his stored legal documents each day, subject to daily operational requirements.

25Mr Patsalis complains that his ability to undertake necessary legal work in his civil proceedings was impaired, as a result. As it happens, light was shed on his complaints, when the matter came on for hearing on 14 December. It transpired that Mr Patsalis had not been given Mr Bartil's affidavit, which had been served upon him by the Crown, by fax sent to the Correctional Centre on 12 December. That necessitated the adjournment of the hearing, so that he could be sent a copy of the affidavit and given an opportunity to read and respond to it.

26It was observed that the proceedings were in a curious procedural position, given the basis of the leave to appeal which has been granted, which also postulates a review of the operation of the Felons (Civil Proceedings) Act . In that context, Mr Patsalis explained that the access to his legal documents which he sought by order 2 of his motion, was not confined to the documents concerning these proceedings, but encompassed also the documents the subject of his appeal.

27As to those documents, Mr Patsalis explained why he referred to them as concerning 'his criminal proceedings'. Mr Patsalis explained that as Basten JA had observed at [6] of his judgment, he currently has no criminal proceedings on foot. What he has pursued by way of an application to the Attorney-General, is a petition to the Governor for review of his conviction and sentence, pursuant to s 76 of the Crimes (Appeal and Review) Act 2001 . Mr Patsalis explained that contrary to Basten J's understanding, that was an application which was on foot before his Honour's judgment was given. It is that application to which Mr Patsalis is refering, when he refers to 'his criminal proceedings'.

Relief must be granted

28In the circumstances, I am satisfied that an order should be made, as a matter of justice, so far as access to Mr Patsalis' legal documents concerning the civil proceedings in which he is presently involved, are concerned. The access which he has recently been given has been demonstrated to be inadequate, delaying as it did the orderly hearing of the motion in a way which was unquestionably unfair to Mr Patsalis. The circumstances which arose clearly demonstrate that it is unjust that Mr Patsalis not be given access in his cell to all legal documents which he requires for his ongoing proceedings.

29That conclusion does not encompass the documents which Mr Patsalis required in order to prepare his application to the Attorney-General for the Governor's review of his conviction and sentence . Those documents are the subject of his appeal. It now appears that this application has been made some months ago and that material does not, as far as I can tell, appear to relate to the matters the subject of these proceedings. In the circumtances, I can see no basis for the order sought in these proceedings in relation to the documents Mr Patsalis described as relating to 'his criminal proceedings.

Expedition

30Given the nature of the application; the history of these proceedings; Mr Patsalis' imminent reclassification; Mr Patsalis' concerns; and the issues lying between the parties, it seems to me that this is an appropriate case for some expedition to be granted. It is of no benefit to either party for this application to languish in the list, as it has on some occasions, as the result, it seems, of Mr Patsalis' difficulty in communicating efficiently with the Court.

31Accordingly, I propose to case manage the matter; to give directions for preparation of the matter for hearing; and in due course to fix a hearing date for the matters to which the present leave relates.

32The usual order as to the costs is that they follow the event. I will hear the parties in relation to an order for costs of the motion in Mr Patsalis' favour, if any.

Orders

33For the reasons given, I order that Mr Patsalis be given access to his legal documents which relate to his civil proceedings in his cell.

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