Clark v Commissioner for Corrective Services

Preliminary procedural issue

1. There has been a degree of confusion as to the appropriate procedural course by which matters relating to conditions of imprisonment can be raised before the Court. In 2007, Mr Clark was bashed whilst held in custody. That led to a range of significant physical and psychological disabilities. By a notice of motion filed in his 2005 civil proceedings, Mr Clark raised his inability to access documents. Simpson J heard the motion on 24 April 2008; [1] no relief was granted at that stage. Further motions were filed in the substantive civil proceedings, but in giving judgment on 12 June 2014 in the civil proceedings, Hidden J noted that a fresh application had been made in separate proceedings with respect to "his conditions of custody", which was listed for hearing on the day on which that judgment was delivered. [2] On 17 June 2014, Hidden J dismissed the judicial review proceedings. [3] Mr Clark sought leave to appeal from that judgment.
2. It is neither necessary nor appropriate to rehearse the history of the judicial control of conditions of imprisonment. Suffice it to say that the remedies available to prisoners in the past derived from three broad principles. First, if the imprisonment were allegedly invalid and unlawful, a prisoner could seek relief by way of habeas corpus. Secondly, if the conditions of imprisonment led to injury to the prisoner, he or she could sue in negligence for breach of the duty of care owed by the custodian. [4] Thirdly, and more recently, if the conditions were thought to interfere unreasonably with the ability of a prisoner to obtain access to the courts, or to conduct litigation, relief was available from the trial judge before whom such a complaint might be brought. [5]
3. These forms of relief were separate and apart from the potential exercise of the Court's supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW) and, before that legislative provision, by means of the prerogative writs. Broadly for two reasons, until about 40 years ago the supervisory jurisdiction was rarely engaged. The first was that the legislative and regulatory provisions governing the custody of prisoners were, by modern standards, sparse and imprecise in their effect. The second was that the courts were inclined to read regulations as conferring privileges or indulgences rather than rights, even where the continued liability to imprisonment was in issue. [6] In Flynn v The King, Dixon J stated that statutory provisions providing for remission of sentence (and forfeiture of remission for misconduct) were concerned "only with the management and discipline of the gaols". [7] The judgment continued: [8] "… if prisoners could resort to legal remedies to enforce gaol regulations responsibility for the discipline and control of prisoners in gaol would be in some measure transferred to the courts administering justice. … Such a construction of the regulation-making power was plainly never intended by the legislature and should be avoided."
4. Over the last 40 years, social and judicial attitudes have changed. Both administrative efficiency and transparency have resulted in the regulation of prisons being defined in far greater detail, as may readily be seen by comparing the length and content of the Prisons Act 1952 (NSW) and the regulations thereunder, with the Crimes (Administration of Sentences) Act 1999 (NSW) ("Administration Act") and the regulations under that Act.
5. Nor was it only at the level of detail that the regulation of prisons and prisoners changed. The Administration Act reflects the principle that the punishment was being sent to gaol; offenders were not sent to gaol to be punished. Thus, s 2A of the Administration Act, setting out the objects of the Act, state the first object as being "to ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment". [9] Although s 2A(3) provides that nothing in the section "can be taken into account in any civil proceedings", it can properly be used to identify the underlying philosophy of the legislation.
6. The principled basis underlying the modern approach to judicial review of decisions affecting prisoners was discussed by Lord Reed speaking for the UK Supreme Court in Osborn v The Parole Board. [10] (Osborn concerned the circumstances in which the common law accorded a prisoner a right to an oral hearing in relation to key decisions regarding release.)
7. Further, there has been a notable expansion in the scope of judicial review of administrative action. Limits on review are now defined by reference to the scope of the discretion given to the decision-maker, rather than by declaring particular areas of administrative action to be beyond judicial control. The focus is on the scope and exercise of the statutory power, rather than identifying the legal "right" which has allegedly been infringed. There is also an expectation that decisions which may infringe on rights or interests be justifiable.
8. Bearing those factors in mind, the availability of judicial review of the conditions of custody must flow from a careful analysis of the statutory and regulatory scheme to which prisoners are subject.
9. While there is no reason to deny the power of a trial judge to give directions and make orders with respect to the conditions of custody of a prisoner involved in litigation for the purpose of ensuring a fair trial, that jurisdiction should be seen as providing a safety net, rather than a generally appropriate mechanism for control of the conditions of custody.
10. There are pragmatic reasons supporting that conclusion. First, if there are no proceedings on foot, there will be no designated trial judge; secondly, even where proceedings have been commenced, the State courts do not operate a "docket system" with each case assigned to one judge. Thirdly, where, as here, a prisoner has various proceedings on foot, each requiring attendance on a different timetable and probably involving different elements of complexity, there may be no trial judge who has an overview of the situation.
11. A fourth, equally pragmatic, reason is that it will generally be a distraction for a judge seeking to give directions or make orders with respect to the conduct of the trial, to have to consider a satellite application with respect to the conditions of imprisonment. There have been a number of similar applications in recent years which, in the interests of the efficient management of the prisons, should be disposed of on a consistent basis and not by reference to the exigencies of particular litigation or trial management directions.

Proper parties

1. A further procedural element concerns the proper parties to the judicial review application. The proceedings in the Court below nominated six defendants, including the Department of Corrective Services and Justice Health New South Wales, neither of which are legal entities. It also nominated the Attorney General, who was neither a necessary nor an appropriate party. At the time the proceedings commenced, Mr Clark was held in Parklea Correctional Centre and therefore nominated a private company which was, presumably, responsible for custodial services at Parklea at the relevant time. It had no role to play in the present proceedings.
2. That left the question as to whether the other two parties, being the Commissioner and the State were appropriate and necessary parties. The State itself was not a relevant decision-maker under the Administration Act. As will be noted shortly, the only relevant decision-makers were the Commissioner and the general manager of the relevant correctional centre. Counsel for the State noted that the summons for leave to appeal and the draft notice of appeal named only the State as a respondent. They submitted that "all of the defendants at first instance should be named as respondents, but in the expectation that only the Commissioner will appear to contradict the relief sought." However, there is no need, nor is it appropriate, to join a party against whom no relief is sought and who was not properly joined below.
3. Counsel's statement set out above impliedly accepted that the Commissioner was the appropriate party. Counsel also submitted that the matter could be dealt with by an order under the Uniform Civil Procedure Rules 2005 (NSW), r 51.4(3). That course should be taken, directing that the State be removed as a party and the Commissioner for Corrective Services be added as the respondent. Given the submission that the Commissioner (amongst others) should have been joined and should now be joined, it may be inferred that the Commissioner has adequate notice of the proceedings and would adopt the submissions of the State. As the appeal should be dismissed, there is no need to give the Commissioner further notice.

Statutory control of property

1. The area of regulation of present relevance focuses on the control of what material a prisoner may keep in his or her cell. The statutory scheme regulating these matters was considered in some detail by Beech-Jones J in Patsalis v State of New South Wales [11] and by this Court on appeal. [12]
2. The structure of custodial responsibility is bifurcated, as it has been for many decades in this State. Thus, the Commissioner is given the "care, direction, control and management of all … correctional centres" and the "care, control and management of all offenders who are held in custody". [13] The Commissioner also has a power of delegation with respect to any functions. [14] A similar power of care, direction, control and management is conferred in respect of each correctional centre on the general manager of the centre. [15] The general manager also has a power of delegation. [16] Section 72 provides that, while held in custody in a correctional centre, "an inmate is taken to be in the custody of the general manager of the correctional centre to which the inmate has been committed".
3. For present purposes, it is not necessary to trouble with the differences (if any) between an "inmate" and an "offender". [17] It should be accepted that, Mr Clark, being a convicted offender at all relevant times, was in the custody of the general manager of the correctional centre to which he had been committed or transferred pursuant to an order under s 23 of the Administration Act.
4. There is a general power under s 271 to make regulations not inconsistent with the Act "for or with respect to any matter that by this Act is required or permitted to be prescribed". That section comes within Pt 14, "General". At the end of Pt 2, entitled "Imprisonment by way of full-time detention", there is a separate and detailed provision for regulations with respect to more than 25 specified topics. That provision includes the following: "79 Regulations The regulations may make provision for or with respect to the following matters: (a) the management, control, administration, supervision and inspection of correctional centres …, … (c) the classification of inmates into different categories and the separation of inmates by reference to the categories into which they have been classified, … (h) the circumstances in which an inmate may lawfully acquire or retain possession of property (including money) within a correctional centre, … (p) the provision to inmates of medical, surgical and dental treatment, …"
5. The Crimes (Administration of Sentences) Regulation 2008 (NSW) made the following provision with respect to occupation of cells, presumably pursuant to s 79(a): "33 Accommodation (1) Each inmate must be housed in and occupy a cell by himself or herself, unless for medical or other sufficient reason it is necessary for inmates to be associated. (2) If it is necessary for inmates to be associated, the inmates required to be associated (whether in a cell or in dormitory accommodation) must be carefully selected."
6. Although it appears that this was the regulation in force at the time Mr Clark first raised the issue of accommodation, and was the regulation in force and discussed in Patsalis, the current equivalent provision is to be found in the Crimes (Administration of Sentences) Regulation 2014 (NSW) and is in the following terms: "36 Accommodation (1) Each inmate of a correctional centre is to be housed in a cell or dormitory, by himself or herself or with one or more other inmates, as the general manager or an authorised officer considers appropriate."
7. Pursuant to the 2008 Regulation, the following provision was made with respect to property: "44 Property to be kept in a tidy and orderly manner (1) An inmate must keep his or her property in a tidy and orderly manner and so as not to impede a search of the inmate's cell. Note. Failure by an inmate to comply with the requirements of this subclause is a correctional centre offence. (2) The quantity of property that an inmate keeps in his or her cell is not to exceed such quantity as the general manager may determine and, if it does, the general manager may confiscate such of the property as is necessary to reduce the excess."
8. This provision became cl 47 in the 2014 Regulation, but was otherwise unchanged. In addition, cl 48 gave a degree of control to the general manager over books and records purchased by an inmate and provides power to the general manger to confiscate "any electronic device of an inmate if of the opinion that it contains … anything that, in the opinion of a nominated officer, is likely to prejudice the good order and security of the correctional centre." [18]
9. Although the regulations contain some 325 clauses and six schedules, and deal in passing with legal matters and communications with lawyers, there does not appear to be express provision for the facilities to be made available to inmates who are self-represented litigants. However, Corrective Services New South Wales has an "Operations Procedures Manual" which deals, in section 8, with legal and administration matters. Section 8 is detailed and makes express provision for inmates' access to legal resources and access to their legal documents. This document should be treated as a set of policy directions which do not of themselves confer legal rights on prisoners, nor necessarily validate actions by officers in conformity with their provisions.
10. Because there appear to be no issues left to be resolved in respect of classification or accommodation, it is not necessary to address the circumstances in which the Court might intervene in respect of such decisions made by the general manager of a correctional centre. [19] It is sufficient to focus on the complaints with respect to the failure of the general manager to allow Mr Clark more than three tubs of legal documents in his cell at one time and the limited access available with respect to his computer and the size of the permitted screen.
11. The evidence relied upon by the State in this regard included affidavits of Mr Michael Hovey, General Manager, Investigations Branch, in Corrective Services New South Wales, dated 28 February 2013 and 15 April 2014. The former affidavit addressed his circumstances in Goulburn Correctional Centre where he was then being held.
12. In relation to the tubs of papers permitted within the cell, Mr Hovey stated: "Many inmates have current ongoing legal matters that require them to access a large amount of legal paperwork. There is a restriction on the volume of paperwork allowed to be kept in a cell as the paper presents a fire risk and creates problems during the security searching of cells."
13. That evidence was not explicitly challenged: nor is it inherently implausible. It sets out factors which must be taken into account by the general manager of a correctional centre in exercising control over property kept within a prisoner's cell.
14. There is a second issue which arises in this context. That is the importance for the good order of the prison in not having arbitrary arrangements, pursuant to which some prisoners may be perceived to receive preferential treatment. That is, within the custodial setting, rules of general application can properly be applied with limited scope to take account of individual circumstances.
15. The matters put forward by Mr Clark and the amicus supported a conclusion that his requests for access to additional documents were not unreasonable requests. However, that did not establish that the refusal was either unlawful or manifestly unreasonable. In these circumstances, the requirement limiting the number of tubs of documents to be held in a cell at one time was not shown to be unlawful or manifestly unreasonable. Mr Clark's challenge with respect to that aspect of the proceedings must be rejected.
16. The second aspect concerned access to a computer and the size of the screen. Mr Hovey explained the arrangements operating generally in correctional centres with respect to access to computers. Mr Hovey stated: "I am aware that Mr Clark is representing himself in a current legal matter. He has previously accessed what is known in the NSW Correctional System as a 'green computer'. This is a stand-alone desktop computer that has been adjusted so that inmates can use it for word processing capability only. Such computers are available in most centres. Each inmate has a separate account on the network servicing green computers which is password-protected for each inmate's personal use. Documents saved to an inmate's account cannot be accessed by other inmates. … Mr Clark could only access a green computer during periods that he was not secured in his cell and the onus would be on Mr Clark to use the computer, not for CS NSW to direct him to do so. Records are not specifically maintained of inmate's use of green computers."
17. Mr Hovey also stated that Mr Clark had been issued with a laptop under the authority of the Commissioner on 26 October 2012. Mr Hovey further stated: "Mr Clark requested to be allowed to purchase a large screen LCD monitor to use in his cell and to also function as a television. The use of such a monitor creates a number of security concerns for CS NSW and subsequently Mr Clark's request was denied. For example, electrical equipment may be used to conceal prohibited items such as drugs and weapons. In addition, CS NSW attempts to standardise the items that inmates are able to access for their own safety in custody."
18. The circumstances surrounding access to and use of computers, as explained by Mr Hovey, was again not shown to involve a breach of any specific legal obligation, nor was it shown to be manifestly unreasonable. Accordingly, Mr Clark's judicial review challenge must fail in this respect.
19. Finally, Mr Clark sought an order that the Commissioner provide him with a comprehensive medical assessment as to his state of health. The precise purpose of such an exercise was not explained. It was no doubt hoped that a medical report would provide support for the maintenance of the long delayed civil proceedings; however, Mr Clark did not demonstrate any illegality or manifest unreasonableness in the failure of the Commissioner to arrange such a medical examination. Accordingly that element of the claim must also be rejected.

Conclusion

1. It follows that, Mr Clark having failed to establish any grounds for judicial review, the summons was properly dismissed. I would grant leave to appeal, but would dismiss the appeal.
2. The Court should make the following orders: 1. Remove the State of New South Wales as a party to the proceedings and join the Commissioner for Corrective Services as the respondent. 2. Grant the applicant leave to appeal from the judgment of Hidden J delivered on 17 June 2014 in the Common Law Division. 3. Direct that the draft notice of appeal in the white folder be deemed to be filed as the notice of appeal. 4. Dismiss the appeal. 5. Order the applicant to pay the costs of the State of New South Wales in this Court.
3. SIMPSON JA: I have read in draft the judgments of Emmett AJA and Basten JA. I agree with the orders proposed by Basten JA, for the reasons given by Emmett AJA. I wish to add the following observations.
4. The applicant seeks orders as to the conditions of his custody for the purpose of facilitating his preparation of civil litigation, as well as appeals arising out of his criminal convictions. The defendants in the civil proceedings are either the State of NSW, or an emanation of the State of NSW (the Commissioner of Corrective Services), and two private individuals. In opposition to those orders, the respondent placed reliance upon the judgments of Moffitt P and Hutley JA in Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317. Those judgments were similarly invoked in Patsalis v State of NSW [2012] NSWSC 267 (see [52]). (On appeal, the respondent was named as "The Attorney-General for NSW": see Patsalis v Attorney-General for NSW [2013] NSWCA 343.) No mention is made of Smith in the appeal judgments. Nevertheless, the continued reliance on the judgments in Smith by respondents to applications such as the present calls for some consideration of their continued relevance.
5. In order to explain that, it is necessary to set out the circumstances that appertained in Smith. Smith was a prisoner held on remand, charged with serious criminal offences (armed robbery and attempted murder). By proceedings commenced in the Common Law Division of the Supreme Court, he sought a variety of orders concerning the conditions of his custody. Some, but not all, were directly related to the conditions he claimed were necessary to enable him to prepare his defence to the criminal charges. Others concerned compliance with statutory provisions of the Prisons Act 1952 (NSW), and are not here material. Lee J dismissed the summons: Smith v Commissioner of Corrective Services (NSWSC, 20 December 1977, unreported). This Court dismissed an appeal. Both Moffitt P and Hutley JA (with whom Glass JA agreed) considered that any judicial oversight of the conditions of custody relevant to the preparation of the defence of criminal charges lay with the trial judge (or, as Moffitt P said, any other judge or magistrate exercising criminal jurisdiction). Moffitt P considered that "directions" could be given (p 321B); he did not say to whom the directions would be given; nor is it apparent that he envisaged that any authorities in control of custodial conditions would be party to the proceedings. Hutley JA envisaged either "directions" or "orders", but, again, did not specify to whom such directions or orders would be given. Hutley JA said: "… it is only a judge or magistrate who is engaged or about to be engaged in the case who can make orders and give directions with sufficient particularity to ensure that the accused can properly prepare his case." (at p 327) Moffitt P, similarly, said: "… It has often been pointed out that the criminal courts have been provided with their own procedures, original and appellate, appropriate to resolve contested questions which arise prior to, during committal proceedings, and at the trial; and that, where in this way a remedy is so provided, it is usually inappropriate that the discretionary civil jurisdictions of this Court be resorted to or exercised. Interposed between the committal proceedings and trial on indictment lie the special powers exercised by and on the responsibility of the Attorney-General. The procedures of the criminal law worked out over a long period provide their own checks, safeguards and appeals …" (at pp 321-322)
6. Both Moffitt P and Hutley JA considered the "sanctions" available in the event that prison authorities failed to comply with any directions or orders of the court. Moffitt P referred to adjournment or interruption of the trial; the power to grant bail; and, ultimately, the power to discharge an accused person (p 320-321). Hutley JA referred to the prospect of the order of a new trial after conviction and appeal (p 326D), to the power to grant bail, and to the ultimate sanction of discharge of the accused (p 326-327).
7. The reasoning in Smith makes it clear that an underlying assumption is an identity of the custodial authority with the prosecuting authority, or, at least, that the custodial authority and the prosecuting authority share a common interest in the finalisation of criminal proceedings. If that were not so, the sanctions available would have no necessary influence on the custodial authority, by whom any "direction" or "order" must necessarily be obeyed. Such a direction or order would, no doubt, move the prosecuting authority to exercise any persuasive power it might have had on the custodial authority.
8. These circumstances alone make it plain that the observations in Smith have no relevance to litigation other than criminal litigation, initiated by a State entity. The sanctions envisaged are inapt when the litigation is civil litigation, the more so when State entities are the defendants, to whom a threat of adjournment, for example, would hold no terror. Questions of bail and discharge are, of course, immaterial. That is especially so in the present case where the prisoner seeking relief has been convicted and is serving a sentence. In Smith, it was pending criminal proceedings that prompted the application for orders, and that provided the basis for the "sanctions" mentioned. The sanctions identified by Moffitt P and Hutley JA as available to ensure compliance with any order or direction are simply unavailable in civil cases, and unavailable in cases of pending criminal appeals.
9. Moreover, the judgments in Smith were delivered at a time when the processes of government were very different to those of today. Prosecutorial decisions lay in the realm of the Attorney-General. That may explain reference, in the passage extracted above, of Moffitt P to the powers and responsibilities of the Attorney-General. The office of the Director of Public Prosecutions, assigning to the Director principal (but not sole) prosecutorial decision making, was not created until 1986: Director of Public Prosecutions Act 1986 (NSW). It may well have been that prior to 1986, a threat of adjournment of criminal proceedings, or release of an alleged offender on bail, or, more drastically, of discharge of an alleged offender from criminal charges, might have caused some negotiation, some exercise of persuasion, by those officers of government engaged in the prosecutorial process on those engaged in the custodial arrangements. 38 years later, processes have changed. As Basten JA has pointed out, custodial arrangements are now precisely regulated, with power to determine custodial conditions and arrangements assigned to nominated office holders. Some prisons are conducted by private providers.
10. That raises the question: to whom would an order or direction as envisaged in 1978 by Moffitt P and Hutley JA be directed? Nor is the source of power identified in the judgments. The majority of criminal trials take place in the District Court; determination of summary offences in the Local Court. It is not at all clear to me that these courts have power to give (enforceable) directions or orders concerning custodial arrangements. Three years after the decision in Smith, Street CJ appeared to take a different view of the power of the courts to give directions concerning custodial arrangements: R v Vachalec [1981] 1 NSWLR 351. In that case (in the Court of Criminal Appeal) a convicted offender sought a reduction in sentence by reason of the special dietary needs of the offender (which, it may be inferred, were not being or could not be, met by the prison authorities). Street CJ said (at 353G) that it was not the function of the Court of Criminal Appeal "to fulfil a continuing supervisory role over the effect of imprisonment upon an individual". His Honour went on: "Such a matter involves essentially administrative considerations and remedial action involves essentially an exercise of administrative power that this Court does not possess. This Court exercises judicial power; it has no power or authority to give administrative directions regarding the treatment of prisoners. Nor has it power or authority by administrative order to change the character or concomitants of sentences or to bring about total or qualified release of persons in custody. That power and authority resides in the hands of the Executive Government." The remarks are equally apposite to other courts exercising criminal jurisdiction.
11. Administrative action is subject to judicial supervision in limited ways, such as permitted by s 69 of the Supreme Court Act 1970 (NSW).
12. In my opinion, Smith cannot be regarded as authority for a proposition that, where the litigation in question is civil, any application for orders concerning conditions of custody should be made to the proposed trial judge, or to the court in which the proceedings have been commenced, and in which the proceedings are to be tried (although I accept that, if power exists, that court would be better placed to understand and determine the issues on their merits).
13. Because the litigation here in question is primarily civil litigation, it is neither necessary nor appropriate to decide whether Smith continues to be authority for the proposition that, where the litigation is criminal prosecution, the sole power to make orders with respect to the custodial conditions of an accused person relevant to his/her defence preparation, lies with the proposed trial judge or the court in which the proceedings are to be tried (although I harbour considerable doubts about that proposition).
14. EMMETT AJA: Mr Peter Clark is in custody in the Goulburn Correctional Centre (the Goulburn Centre), having been found guilty on various charges after trial in the District Court. He commenced proceedings in the Common Law Division (the Conditions of Custody Proceedings) seeking various orders in relation to the conditions of his custody at the Goulburn Centre. There were six defendants named in the Conditions of Custody Proceedings, including the Department of Corrective Services New South Wales and Justice Health New South Wales, neither of which is a legal entity. The Attorney General of New South Wales and a private company that was apparently responsible for custodial services where Mr Clark was in custody at the relevant time were also joined. Neither was either a necessary or a proper party. The other two parties were the Commissioner of Corrective Services of New South Wales (the Commissioner) and the State of New South Wales (the State).
15. The only relevant decision-makers under the Crimes (Administration of Sentences) Act 1999 (NSW) (the Administration Act) were the Commissioner and the general manager of the relevant correctional centre. The State was not a relevant decision-maker. Only the Commissioner appeared to oppose the grant of relief sought by Mr Clark.
16. On 17 June 2014, a judge of the Common Law Division (the primary judge) ordered that Mr Clark's second further amended summons filed on 27 January 2014 in the Conditions of Custody Proceedings (the Originating Summons) be dismissed. [20] By summons dated 20 July 2014, which was filed on 8 August 2014, Mr Clark applied for leave to appeal to this Court from the order of 17 June 2014. On 5 May 2015, this Court ordered that the summons for leave to appeal be heard concurrently with the hearing of the proposed appeal.
17. The summons for leave to appeal and the draft notice of appeal named only the State as a respondent. However, the Commissioner was the only appropriate party. Accordingly, the State should be removed as a party and the Commissioner should be added as the respondent. As the appeal should be dismissed, there is no need to give the Commissioner further notice.

Mr Clark's Claims

1. In the Originating Summons, Mr Clark made a number of claims concerning the conditions of his custody at the Goulburn Centre. The claims arose out of the difficulties Mr Clark said he was experiencing in connection with the preparation of litigation in which he was involved, being the following proceedings: 1. Proceedings 20233 of 2002 in the Common Law Division against the State of New South Wales (the 2002 Proceedings); 2. Proceedings 20185 of 2005 in the Common Law Division against TNR and his father and the State of New South Wales (the 2005 Proceedings); 3. Proceedings in the Common Law Division and in this Court in which Mr Clark sought judicial review in respect of disciplinary action taken against him while in custody (the Disciplinary Proceedings); and 4. Proceedings in the Court of Criminal Appeal and in the High Court of Australia, in which Mr Clark sought to challenge his convictions in the District Court (the Criminal Proceedings). The 2002 Proceedings and the 2005 Proceedings are presently the subject of proceedings in this Court, on appeal from orders that they be dismissed summarily for want of due despatch. [21] The Disciplinary Proceedings have now been resolved in favour of Mr Clark by consent. The Criminal Proceedings are still on foot in the High Court.
2. In the Originating Summons, Mr Clark sought the following orders: 1. his classification to the Goulburn Centre be temporarily set aside, so that he could be held at a correctional centre located in Sydney; 2. he be kept in a cell alone; 3. he be entitled to have with him in his cell his laptop computer and 11 tubs containing his legal documents; 4. he be able to purchase a monitor of a particular size to be used in his cell, together with a table and a chair to facilitate the use of his computer; and 5. he be examined by a suitably qualified psychiatrist as to the impact or effect of his conditions of custody and whether they are exacerbating any of his medically diagnosed conditions. Those claims were first raised by Mr Clark by notices of motion filed in the 2005 Proceedings. When the primary judge suggested that it was inappropriate to raise those matters in the 2005 Proceedings, Mr Clark commenced the Conditions of Custody Proceedings.
3. In support of the Originating Summons before the primary judge, Mr Clark relied on a document entitled "Combination of Pleadings - Evidence and Submissions" dated 27 January 2014, which consists of 247 paragraphs covering 30 pages, plus several annexures (the Clark Submission). The Clark Submission dealt with each of the five prayers for relief referred to above.
4. The thrust of Mr Clark's claim to have his classification to the Goulburn Centre temporarily set aside and to be detained in a cell alone was that the Court should intervene so that he and his documents can be held as safe as possible and he can have unencumbered access to his documents and his laptop computer in this cell, in order that he can prepare documents in connection with the litigation referred to above. Mr Clark complained that, while he remained in a cell with another inmate, he could not do any work on the Criminal Proceedings or on redrafting statements of claim in the 2002 Proceedings and 2005 Proceedings.
5. Mr Clark cited instances of other inmates who, he said, have been treated differently from him. He also referred to the fact that he had been convicted of paedophile offences and asserted that other inmates openly express their hatred for such people or anyone accused of that type of offence. He also adverted to the difficulty of sharing a cell with another person who might be violent. Finally, he asserted that, because of injuries he suffered when assaulted in prison, he snores and that causes difficulty with any other inmate.
6. In relation to his claim to have his laptop computer in the cell with him, Mr Clark asserted that he was denied access to his laptop and his legal files after he "enlivened" his statement of claim against the Commissioner for failing in his duty of care in relation to the serious assault that he suffered. He asserted that there were other inmates who had been permitted to have equipment in their cells.
7. Mr Clark asserted that he needed a larger monitor because of eyesight difficulties resulting from the assault that he suffered while in prison. He said that, as a result of the assault, he has titanium implants in his skull and one under his left eye socket and that, as a consequence, if he uses a small monitor, his left eye seizes up in the eye socket because of the implant, causing extreme pain and migraine. He asserted that, with a larger monitor, the problem would be significantly prevented or delayed. Mr Clark said that his request for the right to have a larger screen was reasonable because the Commissioner failed in his duty of care to protect him from the assault, which has interfered with his vision.
8. Mr Clark claimed that all inmates are entitled to have a chair unless they abuse that right. He asserted that, while his cell has a bed and a bench, it is not practicable to work at the bench while sitting on the bed.
9. The Clark Submission dealt somewhat scantily with Mr Clark's claim to be medically examined. He simply asserted that an up to date report from a particular psychiatrist, whom he named and who saw him in 1999, would benefit the court and the parties in addressing what effect all of the matters complained of have had on his person. Thus, Mr Clark seemed to be suggesting that a psychiatric report would confirm that the sharing of a cell, the lack of access to his laptop computer and tubs of legal documents, as well as the absence of a large monitor and table and chairs, were having a psychological effect on him that impeded his ability to prepare documents in connection with the Criminal Proceedings, the 2002 Proceedings and the 2005 Proceedings.

The Reasons of the Primary Judge

1. The primary judge did not refer to the Clark Submission as such in his reasons. The Clark Submission is difficult to follow and his Honour might be excused for not having obtained a great deal of benefit from it. Mr Heath made very little reference to the Clark Submission in his written and oral submissions to this Court.
2. In relation to the classification question, the primary judge observed that, at the time of the hearing, Mr Clark was held at Parklea Correctional Facility, Sydney, and was currently in a cell alone. His Honour referred to evidence given by Mr Michael Hovey, an officer of the Commissioner, that, for operational and security reasons, there must be a discretion as to the correctional centre where a prisoner is housed and as to whether the prisoner should be confined in a cell alone.
3. The Commissioner contended before the primary judge that the decisions complained of had been superseded by events and that the relief claimed lacked any utility. The Commissioner informed this Court that Mr Clark is now held at the Goulburn Centre, where he is accommodated in a single cell, and that he no longer seeks to be moved from the Goulburn Centre.
4. In dealing with Mr Clark's claim to be allowed to buy a larger monitor, a desk and a chair, the primary judge referred to evidence by Mr Hovey that there are security concerns about the issue of a large screen monitor, which could be used to conceal prohibited items such as drugs or weapons. He said that attempts are made to standardise the items that inmates are able to access, for their own safety in custody. His Honour observed that Mr Clark's complaints about matters of that kind were longstanding.
5. In dealing with Mr Clark's claim to have his laptop computer and tubs of legal documents in his cell, the primary judge referred to evidence given by Mr Hovey that the tubs of documents and laptop computer are kept in a locked storage room. Mr Hovey said that there was a restriction on the volume of paperwork allowed to be kept in a cell because of fire risks and the difficulties created during security searches. Mr Clark was permitted to have three tubs in his cell at any one time and the remaining tubs can be rotated at his request. Mr Hovey said that Mr Clark could gain access to his computer but it was to be used in a specified computer access room to which he could not be guaranteed access on a daily basis, because of the demand for that room by other prisoners.
6. The primary judge observed that the basis upon which Mr Clark sought an order for psychiatric examination evaluation and report was not at all clear. His Honour considered that the material relied on by Mr Clark suggested that he had medical or psychiatric conditions and that it was desirable that he be housed in a cell alone because of those conditions. His Honour did not consider that there was anything in the material relied upon by Mr Clark that could justify the court making such an order.
7. The primary judge observed that, while the orders sought by Mr Clark appeared to be expressed in terms of judicial review under s 69 of the Supreme Court Act 1970 (NSW) (Supreme Court Act), he had failed to establish any basis for a remedy of that kind. His Honour referred to the reluctance of courts to intervene in prison administration and management. His Honour accepted that decisions relating to individual prisoners may be subject to judicial review if the decisions are made in bad faith or for improper purposes and referred to allegations by Mr Clark that some of the matters complained of were the product of improper motives on the part of officers of the Commissioner because of proceedings for damages that he had brought against the Commissioner. However, his Honour considered that the allegations made by Mr Clark did not rise above a bare assertion, which was unsupported by any evidence.
8. The primary judge dealt with all of Mr Clark's claims, other than the claim for a medical examination, on the basis that Mr Clark's complaint was that his right to a fair trial in the litigation in which he was involved was being impaired. His Honour considered that Mr Clark's complaints about the problems he faced with access to facilities for preparation of legal documents amounted to no more than the criticism of the merits of various departmental directions and that Mr Clark was seeking assurance of optimal conditions for the purpose of his litigation. His Honour considered that the Commissioner was under no obligation to provide optimal conditions and that there was nothing in the material relied on by Mr Clark to suggest that he was subject to anything other than the routine arrangements and discipline characteristic of imprisonment.
9. The primary judge then referred to the principle relied upon by Mr Clark that a convicted prisoner retains all civil rights that are not taken away expressly or by necessary implication and in particular the right of unimpeded access to the courts. However, his Honour considered that nothing in Mr Clark's case conveyed a denial of his right of access to the courts. His Honour observed that prison discipline and the particular circumstances of Mr Clark's present custodial situation no doubt made it difficult for him to conduct the litigation in which he was involved. Nevertheless, his Honour said, Mr Clark is capable of generating a large amount of documentation when the occasion requires. His Honour said that, while reasonable latitude should be, and in the past has been, allowed to Mr Clark because he is not at liberty, that it is not a matter for the court to dictate to the Commissioner how Mr Clark should be managed within the prison system.
10. The primary judge considered that, in so far as Mr Clark asserted that the matters of which he complained impaired his right to a fair trial in other litigation, the proper remedy was to make his complaints known to the trial judge in the particular proceedings and to have those matters addressed by the trial judge. [22] His Honour considered that the principle had no application in the present case.

The Appeal

1. On the hearing of the application for leave to appeal, Mr Michael Heath of Counsel appeared, with the leave of the Court, as amicus curiae. There is no formal description of the circumstances in which it may or may not be proper for a court to hear from an amicus curiae and no strict rules have been developed concerning the function of amicus curiae, probably because no person has the right to address a court in that capacity. On the other hand, a court has the discretion to give leave to a person to appear in that capacity in a particular case. An amicus curiae ordinarily appears where the interests of a disadvantaged person might not otherwise be protected. However, there is no clear line to differentiate that which can never be included as part of the role of an amicus curiae from that which, in a given case, and as a permissible exercise of discretion, the court may permit or require of an amicus curiae. [23]
2. The Commissioner did not oppose the appearance of Mr Heath and the Court has been assisted by his contribution. In his capacity as amicus curiae, Mr Heath provided the Court with a form of notice of appeal on behalf of Mr Clark, as well as written submissions. Mr Clark accepted the assistance proffered by Mr Heath, although he also exercised his right to address the Court as a party appearing in person.
3. In the draft notice of appeal prepared by Mr Heath, the following grounds are relied on: 1. The primary judge erred in concluding that there was no basis for judicial review of decisions affecting the conditions of Mr Clark's incarceration; 2. The primary judge erred in concluding that there was no basis for the Court to make the orders sought by Mr Clark pursuant to the power of the Court to exercise control over its own processes; and 3. The primary judge erred in fact and in law in concluding that Mr Clark's claims constituted interference in prison administration and management and were therefore a discretionary reason for refusing Mr Clark's claims.
4. In written submissions on behalf of Mr Clark, Mr Heath argued that there were several bases of jurisdiction that Mr Clark was entitled to invoke, given the nature of the claims that he made. Those bases included:

• Judicial review under s 69 of the Supreme Court Act;
• The power of the Court to control its own processes; and
• An extension of the power of the Court to control its own processes in circumstances where the State is a party, as in the 2002 Proceedings and the 2005 Proceedings. Mr Heath submitted that, on a fair reading of the primary judge's reasons, his Honour did not accept that Mr Clark had demonstrated any basis for judicial review, or the exercise of the Court's power to control its own processes, in respect of decisions affecting the conditions of Mr Clark's custody. Mr Heath contended that Mr Clark had the right to invoke the supervisory jurisdiction of the Court under s 69 of the Supreme Court Act and that the Supreme Court has power to grant the various remedies provided by s 69 if it is shown that a person or an authority exercising powers or functions under the Crimes (Administration of Sentences) Act 1999 (NSW) exceeded authority or power, or failed (or threatened to fail) to perform some duty. [24]

1. Mr Heath accepted that the exercise of powers that are characterised as managerial in nature, rather than punitive and judicial, are not amenable to judicial review. Thus, the exercise of powers related to prisoner classification and separation, the transfer from one part of a prison to another, transfer between prisons, conditions on visits or access to certain facilities, such as education, recreation, and supply of condoms, are examples of administrative and managerial decisions that are not amenable to review. [25] However, he contended, there is an exception to that principle where decisions relating to individual prisoners are made in bad faith or for an improper purpose. [26] He did not, on the other hand, suggest that any decision in respect of Mr Clark had been made in bad faith or for an improper purpose.
2. Mr Heath also submitted that there was a further exception where administrative and managerial decisions unreasonably impeded or frustrated a prisoner's entitlement to have access to the courts. For example, a fixed rule that never permitted a prisoner to have more than one storage tub containing documents in his cell under any circumstances would be open to challenge if a prisoner was representing himself on a serious criminal charge. In such circumstances, if a prisoner were the sole occupant of a cell, it would be difficult to justify refusing the prisoner the ability to have access to more than one storage tub in that cell. [27]
3. Mr Heath submitted, specifically, that the Court has power to control its own processes, such that proceedings can be brought before either a civil court or a criminal court in respect of conditions of custody that have the potential to interfere with a fair trial. He submitted that that power extends to civil proceedings, at least where the State is a defendant and can thereby be the subject of directions designed to facilitate the proceedings. He submitted that there is a proper exception to the court's general reluctance to intervene in prison administration or management decisions where such decisions affect the circumstances of a prisoner's custody to such an extent that capacity to access the courts is unreasonably frustrated or impeded. He also submitted that a court's power to control its own processes extends to a power to make orders affecting the circumstances of the custody of a prisoner who is a litigant in civil proceedings against the State or its agencies, to ensure that the prisoner's entitlement to have access to the courts is not unreasonably frustrated or impeded.
4. Mr Heath submitted that there was no dispute that the matters advanced by Mr Clark and considered by the primary judge were directed to, and were for the purposes of, his litigation, as opposed to complaints about general administration or managerial matters relating to his custody. He referred to the interlocutory applications heard by the primary judge in relation to the 2005 Proceedings and the 2002 Proceedings, following which, on 17 June 2014, his Honour extended the time within which Mr Clark was required to file a Second Further Amended Statement of Claim in the 2002 Proceedings, and ordered that the 2005 Proceedings be dismissed for want of due despatch. Leave to appeal to this Court was granted in respect of those orders, [28] and the appeal was heard by this Court immediately before the hearing of the present application for leave and appeal.

Conclusion

1. In all of the circumstances, I consider that the Conditions of Custody Proceedings cannot succeed. I agree with the orders proposed by Basten JA.

Endnotes

1. Peter Frederick Clark v TNR [2008] NSWSC 828.
2. Clark v State of New South Wales [2014] NSWSC 742 at [102].
3. Clark v State of New South Wales [2014] NSWSC 801.
4. Howard v Jarvis (1958) 98 CLR 177.
5. Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317.
6. Horwitz v Connor (1908) 6 CLR 38; Flynn v The King (1949) 79 CLR 1.
7. Flynn at p 7.
8. Flynn at p 8.
9. Administration Act, s 2A(1)(a).
10. [2014] AC 1115; [2013] UKSC 61 at [66]-[68] and [70] (Lord Neuberger, Lady Hale, Lord Kerr and Lord Clarke agreeing).
11. [2012] NSWSC 267.
12. Patsalis v State of New South Wales [2012] NSWCA 307.
13. Administration Act, s 232(1)(a) and (a1).
14. Administration Act, s 232(3).
15. Administration Act, s 233(1).
16. Administration Act, s 233(3).
17. Administration Act, s 3(1), inmate, offender and s 4(3).
18. Clause 48(3)(a).
19. See generally Patsalis [2012] NSWCA 307 at [66]-[92].
20. See Clark v State of New South Wales & Ors [2014] NSWSC 801.
21. See New South Wales Court of Appeal proceedings 2014/164527.
22. See Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317.
23. See United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 at 535-536.
24. See Kelleher v Corrective Services Commission (NSW) (1987) 8 NSWLR 423.
25. See Kelleher v Commissioner of Department of Corrective Services [1999] NSWSC 86 at [11].
26. See Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82 at 87.
27. See Patsalis v State of New South Wales [2012] NSWSC 267 at [75].
28. See Clark v New South Wales [2014] NSWSC 801.
29. See Anderson v Pavic [2005] VSCA 244 at [32].
30. See Flynn v The King (1949) 79 CLR 1 at 8.
31. See Patsalis v State of New South Wales [2012] NSWSC 267 at [51]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2018