There follows what purports to be a quotation by the first defendant. The article appearing on the Sydney Morning Herald 's website states:
This is not the first time he has organised things in gaol. He was involved in corrupting staff who have been charged for corruption. At one stage he got convicted for conspiring to murder a witness against him in his trial by using a mobile phone from inside another gaol. So, he is an extreme high risk prisoner and a danger not only in the SuperMax but to people on the outside, Mr Woodham said since last week Hamzy has been held in indefinite segregation at Lithgow Maximum Security Prison.
9 Division 2 of Part 2 of the Act makes provision for the segregated custody of prisoners pursuant to a segregated custody direction. This is a regime that is distinct from the provisions in the regulations to the Act for the punishment of inmates for disciplinary infractions.
10 Section 10(1) provides that the Commissioner may direct that an inmate be held in segregated custody if he is 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, (b) the security of a correctional centre or, (c) good order and discipline within a correctional centre. The general manager of a correctional centre may exercise the Commissioner's functions under s 10(1) in relation to the correctional centre and must notify the Commissioner of that fact and of the grounds on which the segregated custody direction was given.
11 Section 12(1) provides that an inmate, subject to a segregated custody direction, is to be detained in isolation from all other inmates or in association only with such other inmates as the Commissioner (or General Manager of the correctional centre in the exercise of the Commissioner's functions under sections 10 or 11) may determine.
12 A regime for the review of segregated custody directions is provided by
s 16 of the Act. The General Manager of a correctional centre where an inmate is held in segregated custody must submit a report about the segregated custody direction to the Commissioner within 14 days after the date is given. Within 7 days after receipt of the report the Commissioner is required to review the segregated custody direction and either made or confirm it. In the event that the Commissioner confirms the order he may amend its terms .
13 If the direction is confirmed the General Manager of the correctional centre in which the inmate is held subject to the direction must submit a further report about the direction to the Commissioner within three months and within each subsequent period of three months after this period. Within 7 days after each occasion on which the Commissioner receives any further report he must review the segregated custody direction.
14 In the event leave is granted, it is proposed to amend the summons to confine the scope of the injunctive relief sought and to seek a declaration that no order was made under s10(1) on or about 22 April 2007.
15 I am concerned with whether the applicant has established that the proceedings are not an abuse and that there exist prima facie grounds for them. As Mr Perram submits, there is a measure of overlap between the two.
16 The significance of Exhibit A, the applicant's correctional file, is the absence of any evidence of an order under s10(1) made on or about 22 April 2007. The only documents touching on the applicant's segregated custody are at pp 145-147 and are a review carried out on 18 July 2007 recommending that the applicant's segregated custody continue. The review contains a recommendation that the segregated custody direction which commenced on 22 April 2007 continue. On the material produced under the Freedom of Information Act this is the sole record of the existence of any order made on 22 April.
17 The challenge to the order as outside the purposes for which the Act allows depends upon inferences that the applicant seeks to have drawn from the newspaper articles to which I have referred. The applicant contends that the first defendant issued a press release or held a press conference in which he announced that the applicant was being held in segregated custody indefinitely. The regime of segregated custody provided for in Division 2 of Part 2 of the Act is circumscribed and would not admit of such a determination.
18 The natural justice challenge is one which Mr Perram submits derives support from the judgment of the Court in Commissioner of Police v Ryan 2007 NSWCA 196 per Basten JA at [28]. He has also drawn my attention to the judgment of the High Court in Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 225 CLR 88 at 95.
19 Mr Perram noted that the issue of the extent to which determinations made by the first defendant under the Act are susceptible of challenge on an Administrative Law grounds is discussed in the judgment of Smart AJ in Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562 148 A Crim R 74 in which his Honour discuss the relevant authorities. The Commissioner's contention in that case, relying on the authority of Vezitis v McGeechan [1974] 1 NSWLR 718, that a decision made by him under cl 120 of the Regulations to the Act was of a managerial nature and not susceptible of judicial review was rejected.
20 I am satisfied having regard to the evidence and the submissions of Senior Counsel that the proceedings are not an abuse of process and that there are prima facie grounds for them. For these reasons I grant leave to the applicant under section 4 of the Felons (Civil Proceedings) Act 1981 to institute the proceedings.
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