HER HONOUR: On 21 September 2021 the plaintiff, Rickie Eggleton, filed a summons in the Registry of this Court in which he seeks relief against certain decisions of the Commissioner, New South Wales Corrective Services ("NSWCS") affecting, he contends, his access to justice.
The context of the complaint is the plaintiff's role as a litigant in various actions before the New South Wales Civil and Administrative Tribunal ("NCAT") and his wish to submit information to the Independent Commission Against Corruption ("ICAC") in New South Wales for investigation.
Filed with the summons on 21 September 2021 was a Notice of Motion in which the plaintiff asks that three orders be made by the Court prior to the hearing of the summons. Those orders are:
"1. An order that the Plaintiff not be hindered, prevented, interfered with, or obstructed in carrying out preparations for this Supreme Court matter, NCAT matters and any other intended legal matter of the Plaintiff;
2. An order that the second Defendant return to the plaintiff the inmate laptop and all the Plaintiff's legal files contained on it, which the Plaintiff had been using for legal matters, in cell, since 7th January 2021 until its removal & retention by the second Defendant on 6th August 2021;
3. An order that electronic submissions & evidence prepared by the Plaintiff for consideration by the Independent Commission Against Corruption be loaded to USB drive by the defendant, the contents of the USB drive to be verified by the Plaintiff & the Plaintiff not to be hindered or obstructed in dispatching USB to the Commission."
In support of his application for those orders to be made the plaintiff relies upon two affidavits, each of which were affirmed by him on 24 August 2021, evidently in preparation for the filing of the summons rather than specifically directed to the notice of motion alone.
The first defendant, the Commissioner for New South Wales Corrective Services, appears before the Court in opposition to the orders sought by the plaintiff. There is no appearance by the second defendant nominated in the commencing process, the General Manager for Clarence Correctional Centre, but that is perhaps unsurprising since that officer appears to be wholly unconnected to the issues which are presently before the Court, and it seems that the second defendant has been joined without proper basis. In my opinion, the second defendant should be removed as a party to these proceedings.
Eggleton v Commissioner of Corrective Services NSW [2021] NSWSC 1605 | Case summary | Zoe
The evidence that is being filed by the plaintiff in support of his notice of motion, as I have indicated, addresses matters relevant to the summons, as well as the notice of motion.
In summary form, the evidence from the plaintiff is that he is presently an inmate at the Mid-North Coast Correctional Centre, having been transferred to that centre on 6 August 2021 from the Clarence Correctional Centre. The Mid-North Coast Correctional Centre, as the Court understands it, is operated by the Commissioner for NSWCS, whilst the Clarence Correctional Centre is operated by a private contractor. Presently, the plaintiff is housed in the Multi-Purpose Unit on a non-association protection directive order which limits his association with other prisoners, due to concerns for the plaintiff's safety.
The plaintiff deposes that he appears for himself in four pieces of litigation before the NCAT, and is further endeavouring to submit evidence and submissions to the ICAC and to a solicitor. He deposes that in the process of preparing for the litigation before the Tribunal and the submissions made to the ICAC, he has been obstructed and hindered by the Commissioner, such that he has not been able to gain access to legal facilities and materials, including computers with a Word processing function, necessary legislation, relevant case law, and printing of material which, he says in his first affidavit of 24 August 2021, is contrary to custodial policy and procedures.
The plaintiff deposes that when he was housed at the Clarence Correctional facility he had access to an inmate laptop which was provided to him on 7 January 2021 which he could use in his cell to prepare submissions, and to collect and store data and other material. He says that he had unrestricted access to the inmate laptop at that facility and spent many hours using it to prepare for the litigation which he has in train.
Since his removal to the Mid-North Coast Correctional facility, the plaintiff deposes that his access to computer support and access to legal resources has been consistently denied or obstructed, and his requests both orally and in writing for such access have either been left without any action taken upon them or, in effect, refused.
The plaintiff has provided copies of some of the documentary material relevant to the litigation in which he is engaged, together with the submissions he is seeking to make to the ICAC, and I have had regard to the contents of the annexures to his first affidavit.
The plaintiff's second affidavit, also of 24 August 2021, repeats some of the material in the first affidavit and gives some further detail concerning his transfer from the Clarence Correctional Centre to the Mid-North Coast, and his inability at the latter prison to gain access to appropriate legal resources and Word processing-type resources necessary for him to comply with the orders of the Tribunal, and to prepare his various matters for hearing. He relies upon that evidence to submit that the Court should make the orders sought by him in the notice of motion.
The defendant has read and relies upon the affidavit of Matthew Pike affirmed on 26 November 2021. Mr Pike is the manager of security at the Mid-North Coast Correctional Centre, a centre which I have observed is managed by CSNSW. Mr Pike has the supervision and oversight of staff operating the Multi-Purpose Unit in which the plaintiff is presently accommodated. He deposes that the unit is staffed by special unit staff and he directly supervises those staff and inmates.
Mr Pike deposes that the plaintiff is presently serving a sentence which was imposed upon him with respect to serious child sexual assault offences. The sentence is one of 17 years imprisonment with a non-parole period of 12 years, the overall sentence expiring in 2033.
Because of the nature of the offences of which the plaintiff has been convicted, the plaintiff identified risks to his safety posed by other inmates and, as a consequence of a request from the plaintiff, he has been designated with the status of a protection non-association prisoner. A directive to that effect was issued. The plaintiff's status as a protection prisoner has consequences for his safety and security. He is not able to associate with other inmates in circumstances where there could be a threat to his safety, he must be housed in single accommodation cells, and contact with others must be minimised.
Mr Pike in his affidavit set out the policies relating to access to legal materials and relevant facilities which guides the management of inmates at the Mid-North Coast centre, and other correctional centres which are operated by the Commissioner for NSWCS.
I will return to his evidence in a little more detail later but, in short, he provides a summary of the policies contained in a policy document referred to as the 'Custodial Operation Policy and Procedures' which encompasses the provision to prisoners of things such as computers, access to libraries and access to legal resources.
He has provided the Court with information as to issues with allowing access to the plaintiff to such facilities and materials, most significantly, because of his status as a protection non-association prisoner and the need to protect him from other prisoners. Mr Pike has set out in his affidavit the steps taken to-date to facilitate the plaintiff's access to legal resources and administrative resources such that he is enabled to pursue the litigation in which he is involved. Again, I will return to that evidence in a little more detail shortly.
The plaintiff relies upon his affidavit to submit to the Court that his access to justice is severely hindered by decisions taken by the Commissioner for NSWCS and, should the Court not make the orders which he seeks in his notice of motion, he would be prevented from properly preparing for both the hearing of the summons filed in this Court in September and also the other litigation and investigative matter in which he is involved.
Responding to a degree to the evidence of Mr Pike, the plaintiff submits that resources that are available in the prisons and those resources given to other prisoners are, at least to some extent, not relevant because of the obligation upon the Commissioner to the plaintiff to ensure that he has appropriate access to legal resources. It is the plaintiff's submission that he has not been provided with such facilities to date and even those measures taken in the interim, between the filing of his summons and notice of motion in September and the hearing of the notice of motion today, are inadequate to permit him to prepare for litigation.
For the first time today the plaintiff identified the basis upon which he seeks the orders, pointing to s 66 of the Supreme Court Act 1970 (NSW) and contending that it is appropriate, in the circumstances of his case, for the Court to intervene and offer injunctive relief requiring the Commissioner to provide appropriate access to legal resources.
The defendant relies upon the affidavit of Mr Pike to submit that, firstly, many of the complaints raised by the plaintiff have already been addressed and he has been provided with such resources as are available to him in the context of a prisoner serving a sentence on protection status. The defendant argues that the resources are limited to a degree and the Commissioner has a responsibility to ensure that all inmates at Mid-North Coast have equitable access to such resources as exist, both as a matter of fairness to all prisoners, but also as a necessary step in ensuring that there are no breaches of the peace within the prison system because of perceived inequity of distribution of resources to prisoners.
It is contended for the Commissioner that reasonable access has been granted to the plaintiff. Such measures as can be taken have been taken to ensure that he has access to legal research and other administrative support and that it is not for this Court, in the present context, to intervene and grant injunctive relief. The Court is referred to a number of authorities which, in summary, highlight the general reluctance of the courts to intervene in decisions made by the Commissioner which are made as part of the Commissioner's obligation to ensure the safety and security of prisoners.
The context in which this notice of motion falls to be determined is important.
The plaintiff is a prisoner serving a lengthy sentence for very serious child sexual assault offences and his sentence is administered pursuant to the Crimes (Administration of Sentences) Act 1999 (NSW) by the New South Wales Commissioner for Corrective Services and his delegates.
That Act and the corresponding regulations confer both wide powers and a broad discretion on the Commissioner and his delegates to manage prisoners, for the safety and security of prisoners and those members of staff who work within the Correction's system.
The plaintiff is a prisoner who is presently held - at his own request on non-association protection - at a regional correctional facility which is operated by the Commissioner for Corrective Services. He is one of over 1,000 prisoners at that particular facility and the Commissioner for Corrective Services is responsible for the safety and security of all of those people as well as staff.
It must be accepted that prisoners do not have the same ready access to facilities for legal research and case preparation as do people in the community. The evidence of Mr Pike explains why that is.
Referring to the plaintiff's self-identified risk and his status as a protection non-association prisoner, Mr Pike explains that the plaintiff cannot be permitted to associate with other inmates in the general prison population because such association is likely to constitute a threat to the safety of the plaintiff. Particular measures have to be taken because of his status as a protection non-association prisoner. The section in which the plaintiff is housed does not have the same facilities and resources available to it as does the broader section of the prison and which prisoners who are not on strict protection can access.
The policy that the staff of the Mid-North Coast Correctional Centre apply, in circumstances such as the plaintiff's, governs his access to legal materials, including his access to computers, library facilities and other resources.
Mr Pike deposes that there are practical limitations on the extent to which legal resources and other support can be made available to the plaintiff without endangering either his safety or the safety of custodial staff or other inmates.
Custodial staff are also obliged to take into account the equitable distribution of available resources amongst the prison population so that fair treatment is afforded to all with no individual inmate receiving greater access to resources and facilities than do others with the same needs.
Mr Pike has expressed his concerns, based upon his experience, that if a particular inmate is perceived by others to receive special treatment and better access to resources and facilities than is available to others, disharmony can follow and there can be real hostility between inmates and custodial staff, leading potentially to breaches of the peace.
For the plaintiff to access some of the resources which are housed in the broader prison, outside the unit in which he is presently accommodated, Mr Pike deposes that there would be a high likelihood that he would be recognised by other inmates as a person convicted of having committed child sexual assault offences and placed in some jeopardy as a consequence. As the plaintiff would be under escort, that risk extends to the custodial officers who would be accompanying him whilst moving him about the prison so as to facilitate his access. Accordingly, Mr Pike deposes that it is very difficult to facilitate the plaintiff's movement around the Mid-North Coast Correctional Centre without creating significant security risks that could place others in jeopardy.
It is not possible, in Mr Pike's experience and opinion, for regular direct access to be provided to the plaintiff to some of the prison facilities and resources which are available to the broader inmate population in the general stream of the prison.
Mr Pike also deposes that it is not possible or appropriate to provide the plaintiff with some of the resources he seeks in his cell, including typing, printing, scanning and photocopying facilities.
Firstly, Mr Pike says that such facilities provided to one prisoner alone would constitute an unfair and inequitable use of the resources available to the Department and, perhaps even more significantly from the point of view of security, it would not be seen by other inmates to be fair and equitable, resulting in security concerns because of the perceived better access to facilities granted to the plaintiff.
As I understand Mr Pike's evidence, no inmate at Mid-North Coast Correctional Centre has in-cell access to photocopiers, scanners and the like and to provide those facilities to the plaintiff, even were they were available, would be to risk significant security concerns. The same is true of the provision a standalone chair, which has the capacity to be used as a makeshift weapon, and, indeed, even computer equipment can be modified and used as a weapon in certain circumstances. Those are all features which have informed the access to facilities which have been provided to the plaintiff to date.
Despite those limitations, Mr Pike deposes that considerable assistance has been provided to the plaintiff in respect of his outstanding litigation already. Indeed, Mr Pike assesses the access to such facilities provided to the plaintiff as being greater than that provided to other prisoners at the present time, which has already led to some adverse comment within the prison system from other prisoners.
Mr Pike sets out the nature of the assistance provided to the plaintiff, which includes printing and photocopying on a daily basis, including documents which are up to 300 pages in length, and regular attendances by an education officer to assist the plaintiff with his requests for legal information, there having been eight such attendances between 6 August and 18 November 2021 (to be seen in the context where 3 education officers attend to all 1,005 inmates).
The plaintiff has been provided with assistance to make requests for legal documents from the Corrective Services central library which is housed at the Metropolitan Remand and Reception Centre in Sydney, and he is able to request and receive five legal documents per week printed for him by staff at Mid-North Coast at no charge to him.
He has had access to an in-cell tablet to review legal documents, and a USB stick, which will contain the documents that the plaintiff had saved to the laptop allocated to him at the Clarence Correctional Centre, is in the process of being prepared and provided. The plaintiff can also access the library, which is a circulating library for high protection prisoners, upon him making a request to do so.
There are computers which are available to prisoners held within the unit that houses the plaintiff, upon request, and the plaintiff has already been given access to what is referred to as a blue desktop computer on a number of occasions.
The laptop computer that the plaintiff had access to at Clarence Correctional Centre cannot be made available to him for the simple reason that it is the property of the private contractor who runs the Clarence Centre; it is not a piece of property which can be made available through New South Wales Corrective Services.
However, insofar as access to a computer can be made available to the plaintiff, Mr Pike deposes that it has been made available to him. He has also had access to and can have access to what is referred to as a green computer, that being a computer which can access a secure internal website providing access to Australian legislation and other resources. Green computers are presently not in the unit in which the plaintiff is accommodated and there has been some restriction because of the security designation of the plaintiff but what can be done has been done.
The plaintiff has been assisted to access both printing and photocopying facilities to date without cost, although Mr Pike advises in his affidavit that there is ordinarily a cost associated with the use of such facilities and it cannot be guaranteed that these facilities will continue to be provided to the plaintiff without charge.
Against the restrictions that Mr Pike has set out in his evidence, the plaintiff has, since he prepared his affidavits in August, been given access to many of the facilities and resource to which his complaint relates and others, as I have indicated, are in the process of being made available, notably the USB drive with the plaintiff's saved documents.
To some extent therefore, the notice of motion filed in September has been overtaken by events in the last two and a half months or so.
The relief which the plaintiff seeks was identified this morning as injunctive relief. Section 66(4) of the Supreme Court Act empowers the Court at any stage of the proceedings to grant an interlocutory injunction, in any case in which it appears to the Court to be just or convenient to do so. If the Court is to grant such interlocutory injunction the plaintiff must identify the legal or equitable rights which are to be determined at the hearing of his summons and in respect of which the final relief sought in the summons has been enumerated.
The Court is to consider where the balance of convenience lies. In ascertaining the balance of convenience, the Court must consider whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction is refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.
The granting of a mandatory injunction, that being the type of injunction which the plaintiff is seeking by his notice of motion, is more likely to have a greater impact upon the defendant. Accordingly, the plaintiff should establish those principles to which I have just referred, as well as placing the Court within a high degree of assurance that, at the hearing of the summons, it is likely it would appear that the injunction was properly granted.
The Court will not grant an injunction to prevent an alleged infringement of a right unless it is established that the right claimed is some recognised legal or equitable right and that the act complained of as infringing it is an unlawful act. It is not the function of a court to enforce or to give effect to moral obligations which do not carry with them legal or equitable rights.
Those basic principles relevant to injunctive relief inform the decision of the Court as do some of those decisions to which the Court was referred by the defendant. They are Hamzy v the Commissioner of Corrective Services and the State of New South Wales [2020] NSWSC 414; Bernard-Ross v the State of New South Wales [2018] NSWSC 182 and the Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143.
On the evidence of Mr Pike, which I accept, I am satisfied that the assistance already provided to the plaintiff to some extent exceeds that provided to other persons at the Mid-North Coast Correctional Centre, which I have already observed, on the evidence of Mr Pike, has given rise to some hostility and complaint from other inmates at that facility.
Whilst the plaintiff submits that the Commissioner owes him a duty to facilitate his access to legal resources relevant to the litigation in which he is engaged, I do not accept that any such duty, if it exists, is owed over and above that which is owed to all inmates of the prison.
The plaintiff referred in submissions to the inequity of access to resources, in that those inmates held without protective status have better access to legal resources than do those held on protection. He submits that that is an inequity which the Court should take steps to correct. I am not persuaded that that is so. Firstly, it must be observed that, as unfortunate as it is and as much to be regretted as it is, there is inequity in access to justice for people in all parts of the community, whether they be prisoners in correctional facilities or people in the community. Access to legal resources is dictated to a very considerable extent by an individual's wealth in the community and, in correctional facilities, it is dictated, at least to some extent, by the nature of the prison in which the individual is housed; status as a protection prisoner or unrestricted prisoner; and the location of the prison, with Sydney prisons having better access to facilities than do some of the smaller regional facilities. Those inequities, as I have said, are to be regretted, but they are inequities which the Court has no role in seeking to redress in the way in which the plaintiff argues.
Equitable access to resources is but one of the matters that the Commissioner must balance in determining what resources will be provided to the plaintiff.
The second important feature is the importance of the Commissioner's function in ensuring the safety and security of all of those who are housed or work in the State's prisons.
I have referred already to the wide powers and broad discretions that the Crimes (Administration of Sentences) Act and Crimes (Administration of Sentences) Regulation 2014 (NSW) confers on the Commissioner and his delegates.
The Courts have historically been very reluctant to interfere in the latitude granted to the Commissioner by the Act and the regulations.
The discipline and administration of the management of prisoners is very much a matter for the Commissioner, it being a particularly complex issue, and one which must take into account a multitude of factors. These factors are not always known or obvious to a court, and may not be able to be fully appreciated by a court, even with the benefit of evidence and submissions.
Review of the decisions of the Commissioner or his delegates is certainly available but all of the authorities point to a conclusion that the Commissioner must be given a broad discretion to administer the Act and manage prisoners. The difficult task of balancing the competing needs of prisoners and of custodial staff must all be weighed into the balance.
There is nothing in the evidence which causes me to conclude that the plaintiff has been given any lesser access to resources than is generally available to prisoners with his protection status at the Mid-North Coast Correctional Centre. To the contrary, I have already concluded that his access to date seems to be rather better than that granted to most. Neither can the Court conclude that there has been any sort of impropriety or malfeasance in the decisions taken by the Commissioner and his delegates. These are the matters that inform the assessment of the need for the Court to intervene and grant the injunctive relief that the plaintiff seeks.
There is no obligation on the Commissioner to provide optimal access to legal resources and facilities. Such access as can be granted must take into account the resources available to individual facilities, the number of prisoners who need access to such facilities, the importance of the litigation, whether it relates, for example, to an upcoming criminal trial or something of perhaps less significance, and the question of the security of prisoners when they access facilities. All of these matters have to be considered by the Commissioner in making decisions concerning access to resources.
On the evidence that has been placed before the Court, I am not able to conclude and do not conclude that the plaintiff has been given any less favourable treatment than any other prisoner or that decisions have been made about his access to resources which are motivated by anything other than proper considerations directed to the peaceable conduct of a gaol.
Of the orders which the plaintiff seeks, I agree with and accept the submission of the defendant that Order 3 is beyond the scope of an interlocutory order. Order 3 really reproduces, simply using slightly different language, the final orders which are sought in the summons and in that sense it is not an interlocutory order that is sought by Order 3. I am not prepared to determine that order because it is a matter for determination by the Court hearing the summons.
Orders 1 and 2 could be characterised as interlocutory if the Court were satisfied that some right owed to the plaintiff had been wrongly breached or that there was some malfeasance on the part of the Commissioner directed at hindering the plaintiff's access to legal resources. I am not satisfied of those matters.
As I have observed, it seems on the evidence that the plaintiff has been given access to legal resources over and above that granted to other prisoners. Whilst I accept completely that it is very difficult to prepare for litigation from prison, that the resources the plaintiff has been given access to are not optimal, or that they are not as good as could be made available to a person in the community who could visit a law library in person, make photocopies at equipment without supervision by custodial staff and do all of those things without being under threat of injury from other persons in the near vicinity, is not determinative. Regard must be had to the context in which these resources are being provided by the Commissioner and the overriding obligation of the Commissioner to ensure the safety and security of the plaintiff and all other prisoners and custodial staff.
I am not satisfied that these orders should be made. It seems to me that they would be a significant impost upon the defendant in circumstances where I am not persuaded that the Court ultimately hearing this summons would be likely to find that the orders were required or appropriate.
The orders the Court makes are these:
1. Direct that the second defendant, the General Manager of the Clarence Correctional Centre, be removed as second defendant from these proceedings.
2. The Notice of Motion filed on 21 September 2021 is dismissed.
3. Costs will be in the cause.
[2]
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: 14 December 2021