Hamzy v Commissioner of Corrective Services NSW

Supreme Court of NSW|2024-02-13|Before: Meagher JA

ices NSW (Defendant) Representation: Counsel: Plaintiff (Self-represented) J Emmett SC / E Jones (Defendant)

Solicitors: Crown Solicitor's Office (Defendant) File Number(s): 2023/39910 Publication restriction: Nil

The plaintiff's security classification as an EHRR inmate

Clause 12(1) of the CAS regulation provides that each male inmate in custody is to be classified in one of several specified categories "for the purposes of security". Among those categories is "Category A1", which describes inmates who in the opinion of the Commissioner represent "a special risk to good order and security and should at all times be confined in special facilities within a secure physical barrier that includes towers or electronic surveillance equipment". The plaintiff is presently classified as a Category A1 inmate.
Clause 15 of the CAS regulation deals with the "designation" of inmates who pose an elevated security risk. Under cl 15(3), the Commissioner may designate an inmate as "extreme high risk restricted" (EHRR) if of the opinion that the inmate constitutes an extreme danger to other people or an extreme threat to security, and that there is a risk that the inmate may engage in activities that constitute a serious threat to the peace and good governance of the State or any other place. The plaintiff is presently designated as an EHRR inmate.
As an EHRR inmate the plaintiff is also subject to restrictions as to the other inmates with whom he is permitted to associate. Determinations as to the identity of those inmates with whom an EHRR inmate is permitted to "associate" can be made by the Commissioner or his delegate under CAS regulation, cl 16(c) or (e).
Written communications, telephone calls and visitors of EHRR inmates are also subject to limitations. Clause 115(1) provides that the governor of a correctional centre must, subject to certain exceptions, open and inspect, and read and copy the contents of, any letter or parcel sent to or from an EHRR inmate. Under cl 119(1) and (6), such an inmate must not make a telephone call without the permission of an authorised officer, and, subject to limited exceptions, such telephone calls are to be conducted in English or another approved language. Clause 119B permits telephone calls made by such inmates to be monitored unless the other party to the telephone call is an "exempt body" or an "exempt person", the latter including a legal practitioner (CAS regulation, cl 3(1)).
The plaintiff has also been subject to various, but not continuous, "segregated custody directions" under s 10 of the CAS Act. The making of such a direction requires the Commissioner (or the governor of a correctional centre) to be of the opinion that such segregation is necessary to secure the personal safety of any other person, the security of a correctional centre, or the good order and discipline within a correctional centre (s 10(1)). As a consequence of such a direction, the plaintiff was to be detained in isolation from all other inmates except such inmates as the Commissioner or governor of the relevant correctional centre may determine (s 12(1)).
Section 5 of the CAS Act obliges an inmate to comply with the requirements of any directions given to the inmate under Pt 2, which include directions made under s 10.

The three notices of motion

By his motion dated 12 September 2023, the plaintiff seeks an order: That the respondent give the Applicant the access & facility to interview & prepare his witness[es] for trial.
The defendant Commissioner's motion filed on 3 October 2023 seeks an order that: The plaintiff's undated notice to produce received by the defendant on 12 September 2023 be set aside.
By the Commissioner's motion filed on 6 February 2024, the following substantive orders are sought: (1) The plaintiff's subpoena requiring Mr Timothy Price to attend to give evidence at 9am on 13 February 2024, filed 2 February 2024, be set aside. (2) The plaintiff's subpoena requiring "Mr Gamble" to attend to give evidence at 9am on 13 February 2024, filed 2 February 2024, be set aside.
Although the second subpoena is addressed to "Mr Gamble", it is apparent that the plaintiff intended to name Mr Scott Bramble, currently manager of security at the HRMCC, as the person to whom this subpoena was to be directed.
It is convenient first to deal with the second and third in time of these motions. Before doing so, mention should be made of the Felons (Civil Proceedings) Act 1981 (NSW).

Felons (Civil Proceedings) Act 1981

As the plaintiff, having been convicted of a number of serious indictable offences, was at the time the proceeding was commenced in custody, s 4 of this Act prevents him from instituting civil proceedings "in any court except by the leave of that court granted on application". Notwithstanding the breadth of this language, s 4 is to be read down and as not applying to proceedings involving the assertion of any right for which relief is available in accordance with public law principles (Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 at [5]-[7] (Allsop P), [51]-[55] (Basten JA), [113]-[117] (Sackville AJA); Hamzy v Commissioner of Corrective Services NSW (2022) 107 NSWLR 544; [2022] NSWCA 16 at [175]-[177] (Leeming JA)). As the current proceeding answers that description, it follows that the plaintiff did not require leave before commencing that proceeding.

Commissioner's motion to set aside notice to produce

The plaintiff's undated notice to produce requires the Commissioner to produce the following documents for inspection: (1) All incident reports & videos relating to fights within the HRMU for the last 10 years. (2) All the incident reports & videos of inmates burning their cells in the HRMU. (3) All the incidents & videos of inmates inflicting self-harm or attempting suicide. (4) All information relating to the recidi[v]ism rate of inmates who reoffended after being placed in the HRMU. (5) All information regarding lock-ins in the last 10 years. (6) All information about lawyers who put CRI forms in, or phone numbers requested by EHRR inmates and the time it took to process. (7) All information/documents relating to inmates being placed in the dry cells. (8) All information/reports relating to inmates who have had mental health or emotional breakdowns. (9) All information/documents of inmates swallowing razorblades or being hospitalised for self-harm (10) All information/documents relating to Dudley Aslet's and Mautin Toki's self-harm, and incidents that required a response. (11) All information/documents of inmates arguing, yelling, abusing and attacking each other verbally from behind walls.
Rule 21.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides that: 21.10 Notice to produce for inspection by parties (1) Party A may, by notice served on party B, require party B to produce for inspection by party A - (a) … and (b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue. (2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced.
The plaintiff's notice to produce does not comply with r 21.10(1)(b) and for that reason should be set aside. This rule does not permit notices requiring the production of all documents in a class of documents, and is not a substitute for the different process in which the parties are required to give discovery. To require the production of classes of documents is not a proper use of the notice to produce procedure.
As explained by Barrett J in Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 at [11], a notice to produce can require only the production of: … a document describe[d] by means of characteristics peculiar to itself, such as a letter of a given date written by X to Y, or the minutes of a meeting of directors of Z Limited held on a given date. A notice relating to all letters written by X to Y in 2008 or the minutes of all meetings of the directors of Z Limited held in 2008 would not be permitted because referring to a class of document as distinct from… "the individual document sought"…
The plaintiff's submission that the requirement that he comply with r 21.10 be dispensed with pursuant to s 14 of the Civil Procedure Act 2005 (NSW) should be rejected. In its terms, the notice to produce requires production of documents identified by reference to their broad and tenuous connections with very generally described subject matter, and over a period of 10 years. In so doing, the notice is oppressive and not obviously or likely addressed to matters which will be or remain in issue after the parties have served their factual evidence directed to the relief sought by prayer 6.
It follows that the notice to produce should be set aside and that the Commissioner's motion seeking such relief should be upheld.
It is not necessary to consider the Commissioner's submission that the plaintiff has not established a legitimate forensic purpose for the issuing of the notice to produce, or to consider further the submission that requiring an extensive manual review of paper and electronic files of the Commissioner, at least at this stage of the preparation of the proceeding, would be oppressive in circumstances where much of the material produced could have little relevance to a claim by the plaintiff concerning conduct and treatment to which he, as distinct from other inmates, has been subjected contrary to cl 164(1) of the CAS regulation.

Commissioner's motion to set aside subpoenas

Two subpoenas were issued on 2 February 2024. One was addressed to a "Mr Gamble" and was not served. It is not suggested that there is any person having that name who was intended to be the subject of that subpoena. The other subpoena was addressed to Mr Price, and was served. Each subpoena required the person to whom it was addressed to attend and give evidence at 9:30am on 13 February 2024, the day on which the current motions were listed for hearing. The subpoena addressed to Mr Price correctly records that the plaintiff is "self-represented".
UCPR r 7.3(1) provides that a subpoena may not be issued except by leave of the Court unless the party at whose request the subpoena is issued is represented by a solicitor in the proceedings. For that reason alone, the issue of each of these subpoenas should be set aside.
More fundamentally, it was not necessary, or in the interests of justice, that either of Mr Price or Mr Bramble, to whom the other subpoena was intended to be addressed, attend the hearing of any of the motions for the purpose of giving evidence. Neither had sworn an affidavit or could give evidence relevant to the narrow issues raised by the plaintiff's motion. Mr Price was subpoenaed to give evidence about asserted delays in relation to the receipt or sending of mail to or from inmates in the HMRU. It was suggested that this evidence would contradict evidence of Mr Coyne, the acting governor of Goulburn Correctional Centre, that mail between inmates and external representatives could be received into or sent from the HMRU in no more than two days. As to that matter, any factual contest between Mr Price and Mr Coyne concerning the time taken for HMRU inmates to receive or send mail need not be resolved in order to deal with the plaintiff's motion.
As to Mr Bramble, he was said to be able to give evidence concerning recent circumstances in which the plaintiff's access to his lawyers whilst in Long Bay Correctional Centre was suspended, including as to whether that had occurred on his instruction. Whether the plaintiff's access to legal representatives was suspended and whether that constituted a deliberate attempt to "frustrate and impede" his access to those advisors is also not necessary to resolve in determining the outcome of the plaintiff's motion.
Accordingly, orders should be made setting aside each of the subpoenas issued at the request of the plaintiff.

Plaintiff's motion for "access & facility" to interview and prepare witnesses

The plaintiff's application is for an order that the Commissioner take positive action to achieve an outcome which is described in very general terms (see [14] above). That order is sought against the Commissioner in his capacity as the officer having the statutory responsibility for the direction, control and management of correctional centres in New South Wales, as well as the direction, control and management of all offenders held in such centres. It is also sought against the Commissioner as the defendant in the proceeding.
The relevant rights of a convicted inmate are discussed by Leeming JA in Hamzy v Commissioner of Corrective Services NSW at [167]-[182]. In general terms, an inmate retains all civil rights which are not taken away expressly or by implication ([167]). See also Patsalis v State of New South Wales at [52]-[53] per Basten JA. It is not controversial that such rights may include access to the courts to pursue a legally enforceable right, the closely connected right to a lawyer of one's choice, and the right to have confidential and privileged communications with that lawyer.
The plaintiff is representing himself, and in doing so seeks access to persons who he says can give evidence relevant to prayer 6 for relief. For the most part, those persons are also inmates under the control of the Commissioner and subject to the "association" determinations in respect of the plaintiff made under cl 16 of the CAS regulation.
In his letter dated 21 August 2023 to the solicitor for the Commissioner, the plaintiff identifies by name "some" of the inmates to whom he seeks access for the purpose of securing their assistance and evidence. 28 persons are named, all of whom at some stage were subject to full-time detention.
As to the relevance of the evidence they might give, the plaintiff said in that letter: The abovenamed witness[es] have all had some type of mental breakdown or experience which has made them hear voices, swallow razor blades, burn cells, attempt suicide, do bizarre thing[s] for bizarre reasons, begin to worship the devil, claim devil possession, put [faeces] over themselves, sew their lips, self harm and much more. Their evidence will go directly to this place being cruel, inhumane or degrading. It is also relevant to the fact [the evidence] has met the test in [CAS regulation, cl] 164 and has [not reasonably] impacted their mental health.
In response, and treating that letter as an application for a determination under cl 16 of the CAS regulation that the plaintiff be permitted to "associate" with those named inmates, a delegate of the Commissioner (Mr Coyne) proceeded to determine that application. By the Crown Solicitor's letter dated 22 November 2023, the Commissioner advised with respect to the 28 named persons as follows: eight applications were approved; 16 applications were not approved; and no decision was made in respect of four inmates, two of whom were not in custody at the time of the application and two of whom could not be identified. As to the 16 inmates with respect to whom the application was refused, the Commissioner's position is that in accordance with cl 110 of the CAS regulation the plaintiff may communicate in writing with each of those persons, subject to such correspondence being opened, inspected, read and copied prior to being sent and subject also to any reply to such correspondence being opened, inspected, read and copied prior to being received.
In oral argument, the plaintiff's position was that in order to enable him to contact and speak with those prospective witnesses he should at least be allowed telephone or audiovisual access with those persons. He proferred as a condition of such access that the communications be recorded and monitored by a "quarantined" corrective services officer. The Commissioner did not accept that this condition and safeguard would protect against the harm that could be done by the immediate effect of a single statement made by the plaintiff to one of these other inmates, which in Mr Coyne's view "may be sufficient to enable an inmate of concern to exert influence over their associate, encourage them to engage in violent or other non-compliant conduct, or otherwise convey information about illicit or dangerous subject matter".
The determinations made Mr Coyne under cl 16 of the CAS regulation with respect to the management of the plaintiff as an EHRR inmate necessarily qualify the right of the plaintiff to seek the assistance of other inmates in the pursuit of evidence in support of his claim. However, those determinations do not prevent all communication by the plaintiff with any proposed witnesses. And whilst that means of communication may be slower and less convenient than direct communication, that being the position does not constitute a basis enabling this Court to make the orders sought by the notice of motion in the face of the exercise of the management power conferred by cl 16.
As between the plaintiff and the Commissioner, the plaintiff does not identify a failure by the Commissioner to comply with any statutory provision or legal obligation that would provide a basis for the Court to make an order as to the legal efficacy of those determinations. Accordingly, those determinations as made qualify the manner in which the plaintiff may pursue any incident of his right to seek access to the courts. Furthermore, in circumstances where the plaintiff is able to communicate with potential witnesses for the purpose of obtaining evidence, there is nothing to justify the exercise of this Court's inherent power to prevent any abuse of its process or otherwise to protect that process.
For these reasons, there is no legal justification for this Court to make an order of the kind sought by the plaintiff which would require that he be allowed telephone or audiovisual access to persons that he identifies as potential witnesses.
It follows that the plaintiff's motion filed on 14 September 2023 should be dismissed.

Further directions

The discussion to this point has not focused on the content of the evidence which the plaintiff proposes be given by other inmates. The Commissioner's position is that, in relation to declaratory relief sought as to the contravention or otherwise of cl 164 of the CAS regulation, the plaintiff does not have standing to seek a declaration in connection with the treatment or punishment of any inmate other than himself. The Commissioner maintains that the plaintiff does not have an interest in declaratory relief concerning the experiences of others. The Commissioner, however, concedes that "conceivably" the plaintiff might bring a case relevant to the plaintiff's own experience of the HRMU. It is therefore accepted that the plaintiff could lead evidence from those witnesses which could corroborate his evidence as to the punishment and treatment to which he has been subjected. It is also accepted that the plaintiff might bring a case that subjecting him to the conduct of inmates having mental health issues may itself constitute "other punishment or treatment" that arguably might be expected to affect adversely an inmate such as the plaintiff's physical or mental health.
To advance the preparation of this part of the plaintiff's claim and to enable the Commissioner to indicate his response or responses to that part of the plaintiff's claim, I propose to make a direction for the filing and service of the factual, as distinct from expert, evidence to be relied on by the plaintiff in his case for the relief sought by prayer 6. The plaintiff should file and serve signed statements, or if they are not available, a summary of evidence, of each witness of fact proposed to be called in his case with respect to that relief. Those statements or outlines are to be filed and served by 20 May 2024. This allows the plaintiff almost two months in which to obtain the relevant evidence.
This direction contemplates that the plaintiff will communicate with the prospective witnesses by mail. In the continuing absence of any legal practitioner acting on behalf of the plaintiff, none of those communications would be with or through an "exempt person" so as to attract legal professional privilege. The direction also assumes that the Commissioner will take reasonable steps to ensure that such communications from and to the plaintiff are dealt with expeditiously. Of course, that does not assure that any correspondence from the plaintiff is dealt with promptly by the inmate or other person to whom it is directed.
I also propose to make a direction that the Commissioner formulate and provide to the plaintiff by 22 April 2024 draft questions for separate determination addressing the relief sought by prayers 1 to 5 and 7 of the second amended summons. That document should also identify the factual matters which the Commissioner contends will need to be established in order to answer those questions. The plaintiff should then indicate in writing to the Commissioner by 6 May 2024 whether he agrees with that formulation of the proposed separate questions and whether he contends that any additional facts to those suggested by the Commissioner must be established.
The matter should then return for directions before me on 27 May 2024. At that time further consideration will be given to the making of orders for the determination of separate questions, the filing of the Commissioner's factual evidence and the filing of any expert evidence to be relied on by either party.

Conclusion

In the light of the foregoing, the following orders and directions are made: 1. Dismiss the plaintiff's motion dated 12 September 2023. 2. Set aside the plaintiff's undated notice to produce received by the defendant on 12 September 2023. 3. Set aside the subpoenas to attend to give evidence addressed to Mr Price and to "Mr Gamble". 4. Reserve the question as to who should pay the costs of the three motions heard on 13 February 2024. 5. Direct that on or before 20 May 2024 the plaintiff file and serve signed statements or outlines of the evidence of each witness of fact intended to be relied on in support of the relief sought by prayer 6 of the second amended summons. 6. Direct that on or before 22 April 2024 the defendant file and serve a draft order in respect of separate questions to be determined in relation to the relief sought by prayers 1 to 5 and 7 of the second amended summons. That draft order should also identify any factual matters which the Commissioner maintains will need to be established (or agreed) to enable those questions to be answered. 7. Direct that on or before 6 May 2024 the plaintiff advise the defendant in writing as to whether he agrees to the formulation of those separate questions and of the facts said to be necessary for the determination of those questions. 8. Stand the proceeding over for further directions before Meagher JA on 27 May 2024 at 9:30am. The plaintiff may attend that directions hearing by audiovisual link.

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: 18 March 2024

(2022) 107 NSWLR 544

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (12 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (5)

Cited By (2)