Karnauchow v Commissioner of Corrective Services

1. This Decision is to be read with and uses the same abbreviations as in my decision on 3 February 2025: Karnauchow v State of NSW [2025] NSWCATAP 24 (the 3 February 2025 decision). The factual background, the proceedings in the Administrative and Equal Opportunity Division, the history of the appeal up to 3 February 2025 and the issues for determination together with two additional issues are set out in the 3 February 2025 decision at [1] to [20].
2. Upon the further consideration of issue 2 in the 3 February 2025 decision at [20(2)], having regard to the judgment of the New South Wales Court of Appeal in Commissioner of Corrective Services v Hamzy [2024] NSWCA 240 (Hamzy CA), other than the provision of two documents to Mr Karnauchow I have decided to otherwise dismiss the 16 December 2024 Application. I have also decided to list the appeal for hearing and make procedural orders for the hearing of the appeal.
3. Before further considering issue 2, I have summarised the further history of the appeal, and the relevant evidence and submissions of the parties, and set out the other applicable statutory provisions.

1. On 10 February 2025 at 11.37 AM, Monica Naumovski, the Solicitor of the Commissioner of Corrective Services (the Commissioner or the CCS), sent an email to the Appeal Registry (the 10 February 2025 at 11.37 AM Naumovski email) attaching documents provided by Mr Karnauchow.
2. On 12 February 2025, the Commissioner lodged Submissions of the Respondent dated 11 February 2025 (the 11 February 2025 CCS Submissions).
3. On 12 February 2025, the Appeal Panel constituted by myself made orders for the amendment of the name of the Respondent from State of NSW (Corrective Services NSW) to Commissioner of Corrective Services, for the non-publication of evidence of Mr Karnauchow's offences, and for the hearing of the 16 December 2024 Application.
4. On 25 February 2025, the Commissioner lodged evidence and Further Submissions of the Respondent dated 24 February 2025 (the 24 February 2025 CCS Submissions) in opposition to the 16 December 2024 Application:
5. On 28 February 2025, the Appeal Panel constituted by myself listed the 16 December 2024 Application for further hearing on 25 March 2025.
6. On 25 March 2025, the further hearing of the 16 December 2024 Application took place.
7. At the commencement of the hearing, I made an order by consent revoking order 1 made on 3 February 2025 so far as the further hearing of the 16 December 2024 Application.
8. Mr Karnauchow relied on the following evidence which was admitted into evidence without objection:

(1) the documents attached to the 10 February 2025 at 11.37 AM Naumovski email which were marked as exhibit A1;

(2) Custodial Operations Policy and Procedures, Corrective Services NSW (COPP), section 8.3, version 1.4, which was marked as exhibit A2 (COPP [8.3]).

1. The Commissioner relied on the following evidence which was admitted into evidence without objection:

(1) Affidavit of Timothy Peek (Mr Peek), who is a Senior Assistant Superintendent employed by CSNSW, affirmed on 24 February 2025 which was marked as exhibit R1 (the 24 February 2025 Peek Affidavit);

(2) Affidavit of Mr Peek affirmed on 26 July 2023 which was marked as exhibit R2 (the 26 July 2023 Peek Affidavit);

(3) Department of Communities and Justice - Disability Inclusion Action Plan 2020 - 2024 which was marked as exhibit R3 (the DCJ Disability Inclusion Action Plan).

1. Mr Karnauchow and counsel for the Commissioner each made oral submissions.
2. At the conclusion of the hearing, I reserved my decision and made the following procedural orders for the lodgement and service of further documents by the parties (the 25 March 2025 orders):

"2. The Appellant is to lodge with the Appeal Registry and serve on the Respondent the following documents by 1 April 2025:

(1) a list of authorities with references on which he relies;

(2) a list of up to 20 authorities on which he relies in the Appeal for which he is requesting copies.

3. The Respondent is to lodge with the Appeal Registry and serve on the Appellant the following documents by 8 April 2025:

(1) any response as to the relevance of the authorities on which the Appellant relies referred to in order 2(1) above;

(2) whether, and if so when, he can provide the Appellant with copies of the authorities referred to in order 2(2) above."

1. On 4 April 2025, I made the following procedural orders (the 4 April 2025 orders):

(1) that on 3 February 2025 that the Tribunal relevantly made the following order (which was subsequently varied as to the time for compliance on 12 February 2025):

"3 In the absence of the agreement of the parties as to the form of order or orders:

...

b. the Respondent is to lodge with the Appeal Registry and serve on the Appellant by 11 February 2025:

i. evidence as to what arrangements can be made to provide the Appellant with additional out-of-cell computer access including during lock-ins;

..."

(2) that at the hearing on 25 March 2025 the evidence of the Respondent included the Affidavit of Timothy Peek (Mr Peek), who is a Senior Assistant Superintendent employed by Corrective Services NSW, affirmed on 24 February 2025 which was marked as exhibit R1 (the 24 February 2025 Peek Affidavit). The evidence of Mr Peek in the 24 February 2025 Peek Affidavit relevantly includes the following:

"19. In summary, computers available for use by inmates in Unit 2 at GCC are identified as:

...

b. Blue computers - which are non-networked computers and can only be used to view documents (such as PDFs) as well as watch videos and listen to audio. They do not currently have word processing capabilities.

..."

"31. On 29 January 2025, the Appellant applied for a laptop e-brief computer. On 13 February 2025, the Appellant's application was received by Access to Justice who facilitate laptop e-brief computers for inmates. On 14 February 2025, the Appellant's application was sent for review and recommendation by the Access to Justice e-brief committee. The Access to Justice e-brief committee is made up of stakeholders outside of CSNSW who meet to review and provide recommendations for outstanding applications. As at the date of affirming this affidavit, the laptop e-brief computer has not been provided."

(3) that the New South Wales Court of Appeal in Commissioner of Corrective Services v Hamzy [2024] NSWCA 240 (Hamzy CA) at [66] (Bell CJ, with Payne JA and Stern JA agreeing) relevantly stated:

"[66] In truth, to adopt the language of the second limb of the first ground of appeal, there was no real controversy between the parties as at the time his Honour decided the application: Mr Hamzy had effectively secured what he had sought. First, he had permanent access in his cell to the material in his storage tubs which was or was imminently to be uploaded to his e-brief laptop which he was permitted to have with him in his cell. Secondly, he had access in his day room to a "blue" computer with word processing functionality, enabled to permit the copying of work product onto a USB and the ability to print to a printer in his day room."

2 The Tribunal further notes the following matters:

(1) that there appears to be a contradiction between the evidence of Mr Peek in the 24 February 2025 Peek Affidavit at [19b] and the arrangements for the inmate referred to in Hamzy CA at [66] as to the functionality of the blue computer;

(2) that over 5 weeks has elapsed since Mr Peek made the 24 February 2025 Peek Affidavit.

3 In the light of these matters, the Tribunal makes the following order:

1. The Respondent is to lodge with the Appeal Registry and serve on the Appellant by 17 April 2025 evidence as to the following matters:

(a) whether it is possible to make arrangements for the Appellant to have access to a blue computer with the same functionality as that provided to the inmate referred to in Hamzy CA at [66];

(b) whether a decision, and if so what decision, has made been made in relation to the application of the Appellant referred to in the 24 February 2025 Peek Affidavit at [31], and if not when it is anticipated that a decision will be made."

1. On 11 April 2025, the Commissioner lodged the following documents on behalf of Mr Karnauchow:

(1) a typed one page covering letter dated 2 April 2025 addressed to the Registrar;

(2) a typed two page document entitled "Citations and case law search list to assist the Appellants difficulties in accessing legal information" which has been was marked as exhibit A3 (the 2 April 2025 Karnauchow List);

(3) a typed 14 page document entitled "Additional Submissions of the Appellant" (the 2 April 2025 Karnauchow Submissions).

1. On 17 April 2025, the Commissioner lodged the Affidavit of Mr Peek affirmed on 17 April 2025 which has been marked as exhibit R4 (the 17 April 2025 Peek Affidavit).
2. On 22 April 2025, the Commissioner lodged the document entitled "Response of the Commissioner to the materials provided by Mr Karnauchow" dated 22 April 2025 (the 22 April 2025 CCS Submissions).

1. The evidence of Mr Karnauchow in exhibit A1 comprised a document of nine typed pages entitled "Submissions of the Appellant" dated 10 February 2025 (the 10 February 2025 Karnauchow Submissions) (which are a mixture of evidence and submissions) together with nine annexures marked "A" to "I":

(1) letter dated 3 October 2023 from the Acting Director Parliamentary and Executive Services of CSNSW to Mr Karnauchow which is annexure "A" (the 3 October 2023 CSNSW Letter);

(2) letter dated 3 September 2024 from the Acting Director Parliamentary and Executive Services of CSNSW to Mr Karnauchow which is annexure "B" (the 3 September 2024 CSNSW Letter);

(3) CSNSW form entitled "inmate access to tablet/laptop" completed by Mr Karnauchow and dated 15 January 2025 which is annexure "C" (the 15 January 2025 Karnauchow Request);

(4) letter dated 16 January 2025 from Mr Karnauchow to CSNSW Executives which is annexure "D" (the 16 January 2025 Karnauchow Letter);

(5) letter dated 4 October 2024 from the General Manager Primary Care of Justice Health to the Assessment Officer of the Health Care Complaints Commission (HCCC) which is annexure "E" (the 4 October 2024 Justice Health Letter);

(6) letter dated 18 November 2024 from the Assessment Officer of the HCCC to Mr Karnauchow which is annexure "F" (the 18 November 2024 HCCC Letter);

(7) letter dated 4 August 2024 from Mr Karnauchow to the Governor of the Goulburn Correctional Centre (GCC) regarding access to civil cases which is annexure "G" (the first 4 August 2024 Karnauchow Letter);

(8) letter dated 4 August 2024 from Mr Karnauchow to the Governor of the GCC regarding weekend access to a computer which is annexure "H" (the second 4 August 2024 Karnauchow Letter);

(9) table of requests for legal information by Mr Karnauchow to the GCC MRRC Law Library and Education Officer dated 9 February 2025 which is annexure "I" (the 9 February 2025 Karnauchow Table of Requests).

1. I have not summarised the 3 October 2023 CSNSW Letter as it not relevant to the appeal because it predates its commencement.

1. In the 10 February 2025 Karnauchow Submissions, Mr Karnauchow has provided the following evidence:

(1) the anticipated time of between 3 months and 3 years required to complete the Appeal submissions that is based on 4 key factors including "reasonable access to the required facilities and reasonable access to obtaining persuasive authorities" ([1]-[2]);

(2) the Commissioner's evidence that he receives an average of 35 hours per week of OAC (Offender Access to Computers) access is incorrect. This period is the maximum duration that an inmate is out of a cell at GCC, and does not take into account the shared access limitations that produces days with no or partial computer access. The average OAC access time is 18 hours per week, when there are no lock-ins, or other operational constraints. In the 6-week period between 23 December 2024 and 2 February 2025 his OAC access time ranged between 3 hours 55 minutes (2 days lock-in with no PC access) and 16 hours 40 minutes (no lock ins) ([3]-[6]);

(3) he had submitted well over 6 formal and 55 informal requests over the last 3 years, all seeking disability aids and still having to suffer without them. This alone is a major causational factor that is contributing to substantial delays ([11]);

(4) access to the three computers in units 2 and 3 was reduced by the destruction of one computer and shared bookings among 160 inmates ([12]);

(5) the current entitlement for each inmate for legal information and case law requests is only five per week to the MRRC Law Library. The actual response times to receive five citations can take up to 2 or 4 months to arrive and causes substantial delays ([15]);

(6) the absence of an independent and on-demand control to be able to search for legal information also is a contributing factor causing delays. He has 80 outstanding requests ([16], [18]);

(7) he is entitled to access to legal resources under COPP at [20.8]. However, all inmates have to undergo highly regulated, restricted and limited access. Links to the Legal Aid NSW, NCAT and other important legal websites are blocked ([22]-[23], [25]);

(8) he has an outstanding request to purchase his own disability aids under cl 177 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (CAS Regulation) ([32]).

1. in the 3 September 2024 CSNSW Letter, the Acting Director Parliamentary and Executive Services of CSNSW informed Mr Karnauchow that there was no charge for printing from the Library at the GCC with a limit of 100 pages per week. A decision about the issue of a laptop containing a Word program and USB access may take some time because careful consideration must be given to security issues.

1. In the 15 January 2025 Karnauchow Request, Mr Karnauchow requested a device to view pre-loaded legal material for the following five civil proceedings:

(1) Supreme Court proceedings 2025/00011706;

(2) Supreme Court proceedings filed on 9 January 2025;

(3) NCAT proceedings 2024/00179483 (which is an appeal by Mr Karnauchow against the decision made on 5 April 2024 in favour of the Commissioner of Police, NSW Police Force on an administrative review application under the Government Information (Public Access) Act 2009 (NSW), which was lodged on 15 May 2024, is listed for hearing on 26 September 2025, and with Mr Karnauchow required to lodge his material including written submissions in support of the appeal and any written submissions in reply by 30 July 2025 and 24 September 2025 respectively);

(4) NCAT proceedings 2024/00051179 (which is this appeal);

(5) NCAT proceedings 2024/00437684 (which is an administrative review application by Mr Karnauchow against the Commissioner of Victims Rights which was lodged on 25 November 2024 and finalised on 21 March 2025).

1. In the 16 January 2025 Karnauchow Letter, Mr Karnauchow requested the ability to work in his cell on a provided device with the facility to transfer data on OAC to allow for printing due to his disability, namely arthritis in his hands, wrists, arms and shoulders, causing pain and suffering. There have been extensive delays in three proceedings in the Tribunal including the appeal.

1. In the 4 October 2024 Network Letter, the General Manager Primary Care of Justice Health informed the Assessment Officer of the HCCC that Mr Karnauchow requested medication for sleep deprivation and a speech to text program be provided by CSNSW State Disability Service.

1. In the 18 November 2024 HCCC Letter, the Assessment Officer of the HCCC informed Mr Karnauchow that in order to progress his request for a speech to text facility he had been referred to Justice Health's NSW National Disability Insurance Scheme Coordinator.

1. In the first 4 August 2024 Karnauchow Letter, Mr Karnauchow requested access to civil cases on OAC be unblocked and his inmate tablet would greatly assist in the preparation of six cases including four NCAT cases.

1. In the second 4 August 2024 Karnauchow Letter, Mr Karnauchow requested online access to civil cases, and access to the unit 3 OAC when available.

1. In the 9 February 2025 Karnauchow Table of Requests, Mr Karnauchow has recorded 43 requests for legal information made to the MRRC Library between 8 January 2024 and 1 February 2025 and whether they are outstanding or the time taken for their provision.

1. In the 2 April 2025 Karnauchow List, Mr Karnauchow has requested:

(1) a request to "provide 3 Citations that discusses any Civil cases" on a specified topic (the first request);

(2) a request to "search on various Case law websites" on three specified topics (the second request);

(3) a request for eight specified cases (the third request);

(4) a request for the following extrinsic materials (the fourth request):

(a) Judicial Commission of NSW, Equality before the Law Bench Book, 2006;

(b) Australian Law Reform Commission, Traditional Rights and Freedoms - Encroachments by Commonwealth Law, ALRC Report 129, 2016.

1. Paragraphs [9]-[13] of the 26 July 2023 Peek Affidavit, which contain a summary of COPP [8.3], are set out in full in the 3 February 2025 decision at [35].
2. I have not summarised the balance of the 26 July 2023 Peek Affidavit m as it not relevant to the appeal because it predates its commencement.

1. The DCJ Disability Inclusion Action Plan is summarised in the 3 February 2025 decision at [36].

1. In the 24 February 2025 Peek Affidavit, Mr Peek gave the following evidence:

(1) he set out introductory matters ([1]-[6]);

(2) he provided information about the classification of Mr Karnauchow as an A2 maximum security inmate on the Special Management Area Program (SMAP) at his own request on the basis that he is a vulnerable and fearful inmate, and his housing in Unit 2 at the GCC which currently has 88 inmates residing in Unit 2 and 82 inmates in Unit 3 ([7]-[10]);

(3) the summary of the sections of the COPP in the 26 July 2023 Peek Affidavit remained accurate ([11]-[12]);

(4) he annexed Mr Karnauchow's case notes from 16 December 2024 to 18 February 2025 ([13]) which:

(a) generally record days on which computer access was facilitated or refused but do not record the number of hours per day that access was facilitated;

(b) indicate that, between 16 December 2024 and 18 February 2025, computer access was made available to Mr Karnauchow on 37 days, and that he requested but was refused access on 3 days;

(c) do not record that any request for computer access was made or that any access was provided on 25 days;

(5) he explained the ordinary routine whereby Mr Karnauchow can access a computer, at his request, from approximately 7:30am until 10:45am and 11:30am to 2pm. During those periods, he has access to a green and a blue computer subject to availability, arising from the need to share the computer resources in the GCC among all of the inmates who require access, and by operational requirements arising on particular days, including any lock-in, and from security and staffing logistics that must be considered due to him being a SMAP inmate. On weekends, inmates who are employed during the week are given priority access to computers if they so request ([14]-[18]);

(6) he described the kinds of computers which are available ([19]-[21]):

"19. In summary, computers available for use by inmates in Unit 2 at GCC are identified as:

a. Green computers - which are network-connected and are for education, programs and employment purposes. It is possible for an inmate to type and save documents on green computers, although correctional officers are required to facilitate the printing or sending of any documents.

b. Blue computers - which are non-networked computers and can only be used to view documents (such as PDFs) as well as watch videos and listen to audio. They do not currently have word processing capabilities.

c. Laptop e-brief computers, which may be provided to some inmates to view preloaded legal materials, in accordance with COPP 2.4. They do not have word processing capabilities.

d. Laptop e-brief computers, which have been provided by a prosecuting authority which include the pre-loaded legal materials from the prosecuting authority, in accordance with COPP 2.5. They do not have word processing capabilities.

20. Computers are managed by installing an "image" onto a computer with standardised and approved hardware before it is issued. The word "image" is used to refer to a specifically developed version of the operating system, and other programs, that is set up to permit only certain functionality on the computer. An image can be set up so that certain programs ordinarily installed on the computer are not available (such as word processing or other text writing programs). It can also be set up to disable hardware features on the computer (such as networking or a USB drive).

21. Computers can also be the subject of physical modifications. In particular, computers may be physically modified to prevent the use of a USB port. These physical modifications can be independent of, but additional to, software modifications contained in the image that is installed."

(7) the limitations in the kinds of computers CSNSW can provide to inmates arise from the security risks for computers that are not imaged or use different hardware from that which has been tested and approved ([22]-[23]):

"22. Computers that are not imaged or that use different hardware from that which has been tested and approved are open to a number of security risks or concerns. These include:

a. Access to unauthorised materials;

b. Unauthorised communications between inmates (by one inmate saving a document for viewing by another inmate, either on a computer or on a USB);

c. Unauthorised communications outside the correctional system (including in conjunction with other contraband devices, such as mobile phones); and

d. An inability of officers to monitor (fully and/or in real time) inmate computer use (which can occur remotely on green computers, which are networked computers).

23. For those reasons, CSNSW is limited in the kinds of computers it can provide to inmates and cannot provide computers which do not have the image developed for CSNSW installed. The images which have been developed have different kinds of functionality and limitations. It is not possible to develop a new image quickly to permit specific inmates to access specific functionality outside the approved images that are referred to above."

(8) Unit 2 ordinarily has one blue computer and two green computers available in the computer access cell, which is able to be partitioned into separate lockable sections to allow for multiple inmates to use computers at the same time. Unit 2 currently has one blue computer and one green computer. It is not CSNSW policy for a green computer to be provided to an inmate in-cell nor is there any network connection available in-cell which would permit the installation of a green computer ([24]-[27]);

(9) CSNSW has begun the process of developing an updated version of blue computers to inmates ([28]-[29]);

(10) Mr Karnauchow between June 2022 and November 2023 had in-cell access to a laptop e-brief computer. On 29 January 2025, he applied for a laptop e-brief computer. The application is outstanding ([30]-[31]);

(11) he explained the procedures that operate during a "lock-in" when inmates in a unit are locked in their cells and are not able to access other parts of the unit, such as the yard or the computer access cell, due to there being insufficient GCC staff to supervise out-of-cell activities. Where a lock-in is required for an unexpected reason, it is not possible to guarantee an inmate's computer access will be able to be facilitated. Sometimes it may be possible to facilitate computer access notwithstanding a lock-in. On 17 February 2025, computer access was facilitated for Mr Karnauchow during a lock-in ([32]-[35]);

(12) he has summarised the arrangements CSNSW has made since November 2024 for Mr Karnauchow to have additional computer access ([36]-[39]).

1. In the 17 April 2025 Peek Affidavit, Mr Peek gave the following evidence:

(1) he set out introductory matters ([1]-[7]);

(2) he stated that Mr Karnauchow was provided with a laptop e-brief computer on 20 March 2025 ([8]-[11]);

(3) as to the different computer access afforded to Mr Hamzy and Mr Karnauchow:

(a) Mr Hamzy is classified as an A1 inmate, designated "extreme high risk restricted" and an inmate at the High Risk Management Correctional Centre (HRMCC), whereas Mr Karnauchow is classified as an A2 inmate and an inmate at Goulburn Correctional Centre (GCC). The HRMCC and GCC are distinct correctional centres, which are staffed, operated and managed differently, within the Goulburn Correctional Complex. Mr Hamzy's contact (or possible contact, including through messages or similar) with other inmates is controlled and his communications are monitored. The restrictions on A1 inmates in the HRMCC, such as Mr Hamzy, as to their freedom to mix with other inmates precludes them from being permitted access to the kinds of spaces where Green Computers would be located in the HRMCC ([12]-[16]);

(b) Mr Hamzy has access to an e-brief laptop with pre-loaded legal materials and has out-of-cell access, in a day room, to a Blue Computer with a modified image to enable the following functionality: word processing; saving of materials to a USB; and printing to a printer located in the day room. Mr Hamzy's modified Blue Computer is a bespoke arrangement to facilitate his access to word processing functionality in circumstances where inmates would usually access word processing functionality through a Green Computer, which Mr Hamzy does not have access by virtue of his A1 classification in the HRMCC. Due to his restrictive custody arrangements, Mr Hamzy is the only inmate with access to the day room and the only inmate with access to the modified Blue Computer and the associated printing arrangements ([17], [20]-[21]);

(c) Mr Karnauchow has in-cell access to an e-brief laptop with pre-loaded legal materials and has out-of-cell access in the modified computer access cell to a Green Computer with the following functionality: word processing; saving of materials to a USB; connectivity to the Offenders Access to Computer (OAC) network; and printing upon request, by uploading documents from a USB onto the OAC network for printing. He also has out-of-cell access to a Blue Computer on which he can view documents, watch videos and listen to audio ([18]-[19]);

(d) a printer is not physically present in the modified computer access cell of Unit 2 of GCC due to increased security concerns and likelihood of damage ([22]);

(e) in circumstances where inmates in Unit 2 of GCC have access to all of the computer functionality that could be provided for by a modified Blue Computer, CSNSW is not able to allocate the additional resources to arrange for modified Blue Computers to be provided to Unit 2 at this time. CSNSW has begun the process of developing a fresh "image", so that it can provide an updated version of Blue Computers to inmates ([23]-[24]).

1. In the 10 February 2025 Karnauchow Submissions, Mr Karnauchow made the following submissions:

(1) the submission in the CSNSW Submissions referred to in the 3 February 2025 decision that he receives on average 35 hours of computer time per week does not take into account the shared access limitations that produces days with no or partial computer access and that non-workers must prioritise OAC access for workers on the weekends;

(2) the Commissioner is failing to perform a mandatory duty or power under cl 60(1)(c) and (2)(b) and (f) of the CAS Regulation ([9]-[10]);

(3) the decisions by CSNSW to restrict him without adequate access to suitable disability aids with speak to text capabilities and also exclude him from all of the necessary online legal resources is contrary to the parliamentary set guiding principles in s 7 of the Government Sector Employment Act 2013 (NSW) (GSE Act);

(4) the unfair exercise of discretionary powers by the Commissioner has a major impact and is procedurally imbalanced:

"34. The Respondent is not used their discretionary powers fairly by refusing to approve the appellant with a provided device with the use other policy provisions to justify an inflexible and unjust discretionary power.

35. The refused decision by CSNSW in restricting access to online legal resources has a major impact on the plaintiff's abilities in self-determination. Including, in preparing successful legal submissions.

36. The present case facts and circumstances substantiate an appellant with limited access to law that is procedurally imbalanced within a court arena. Whereby, the Respondent has far greater access to the law that would provide the upper hand, with the entire legal arsenal available to them. Compared to the appellant that is currently equipped with over regulated legal tools and clearly is at disadvantage, without any chances to win a legal battle. And, legal baffle for a court arena is with an opposing party that also 'controls the plaintiff' and is unfairly restricting the plaintiff's legal arsenal for discernible reasons."

"1. Pursuant to 32(2)(a) of the NCAT Act, that the tribunal should made the following, by agreement orders:

a. That the Respondent consults with the Governor of Goulburn Correctional Centre to improve out-of-cell access to an offender access computer (OAC) and the below listed agreement consent orders.

b. That the Respondent also includes OAC access to the education rooms.

c. The Respondent offer OAC access in Unit 3 when available.

d. The Respondent offer relief to the appellant and provide out-of-cell access to online Case Law and Legislation websites on the Tablet Devices.

e. The Respondent offer relief to the appellant, and provide the appellant out-of-cell access to online Case Law and Legislation websites on the OAC.

f. The Respondent offer relief to the appellant, and provide in-cell access to online Case Law and Legislation websites on the Tablet Devices.

g. The Respondent offer relief to the appellant, to be able to purchase a computer under the provisions of 177 of the Crimes (Administration of Sentences) Regulation 2014.

h. The Respondent offer relief to the appellant by consulting with Justice Access to make recommendations with the latest application for a provided device with word capabilities and speak to text capabilities."

1. In his oral submissions, Mr Karnauchow made the following submissions:

(1) he disputed parts of the 24 February 2025 Peek Affidavit including that the ordinary routine for access to a computer from approximately 7:30am until 10:45am and 11:30am to 2pm ever happened. Access begins from approximately 8.00am. Officers are at lunch at 11:30am. Access resumes from approximately 12.00pm to 12.30pm. If he asks an officer for access, he gets "charged";

(2) he rejected the evidence of security concerns if there was increased access to computers;

(3) he disputed that access to a computer cannot be guaranteed during a lock-in;

(4) he disputed some of the 24 February 2025 CCS Submissions;

(5) the Tribunal has inherent power to control its own practice and procedure;

(6) the irreducible minimum of resources provided by the Commissioner does not accommodate his disability;

(7) he made reference to several authorities as to the jurisdiction of the Tribunal, the interpretation of the A-D Act, and the relevance of international law, as well as to s 34 of the Interpretation Act 1987 (NSW).

1. In the 2 April 2025 Karnauchow Submissions, Mr Karnauchow has articulated various principles of statutory construction by reference to many authorities in a great variety of legislative contexts. As they do not address the existence and exercise of any power of the Tribunal to ensure a fair hearing of the appeal, it is unnecessary to summarise these submissions.

1. In the 11 February 2025 CCS Submissions, the Commissioner relevantly submitted that consistent with Hamzy CA the appropriate form of order in respect of the 16 December 2024 Application is that there be no order for the Commissioner to provide Mr Karnauchow with additional out-of-cell computer access. The appropriate order is for the 16 December 2024 Application to be dismissed.

1. In the 24 February 2025 CCS Submissions, the Commissioner made the following submissions:

(1) he summarises the evidence of Mr Peek in the 24 February 2025 Peek Affidavit;

(2) he does not concede that the Tribunal has power to order relief of the kind proposed by Mr Karnauchow. There is at least real doubt about that. The Tribunal does not possess inherent jurisdiction. Nor does it enjoy a power of the kind reposed in the Supreme Court by s 23 of the Supreme Court Act 1970 (NSW) to give directions or orders to prevent an abuse of its processes;

(3) he draws attention to Hamzy CA at [86]-[88], [90]-[97];

(4) there is real doubt as to whether the Tribunal has power pursuant to ss 3(c), 38(5) and 32 of the NCAT Act to make orders regarding an inmate's computer access for the purposes of preparing a proceeding of this kind before the Tribunal. Neither s 3(c) nor s 38(5) are sources of power. The power pursuant to s 32(2)(a) to make an ancillary decision or an interlocutory decision in the exercise of its internal appeal jurisdiction is not available in this case. However, it is not necessary to decide the question because even if it were the position that the Tribunal could make an order in respect of an inmate's computer access in order to prepare an appeal, the limited circumstances in which such a power could be engaged do not arise in this case;

(5) even if the Tribunal has an implied statutory power to make orders controlling the conditions of custody of an inmate, analogous to the powers exercisable by the Supreme Court, that power must be limited to what is strictly required to ensure a fair trial (or hearing) in the context of a particular case. Any such power is not engaged for the following reasons:

(a) the context in this case includes:

(i) Mr Karnauchow is in custody and is not entitled to be placed in the same position as a person who is not incarcerated;

(ii) the Commissioner has the care, direction, control and management of all correctional complexes and centres, and the care, control and management of offenders in custody pursuant to s 232(1) of the Crimes (Administration of Sentences) Act 1999 (NSW) (CAS Act);

(iii) the Commissioner is empowered to give an approval to an inmate or a class of inmates to use provided devices, and such approval may be subject to conditions, including conditions about the times at which the device may be used pursuant to cl 122B of the CAS Regulation;

(iv) the Commissioner's evidence is that it is not operationally possible to guarantee an inmate's computer access during a lock-in, or to provide an inmate with access to a networked green computer for use within an inmate's cell, or with a computer of a kind which has not been specifically imaged and modified for use in correctional centres. Those matters weigh strongly against the exercise of any discretion by the Tribunal to order that Mr Karnauchow be guaranteed access to a computer or provided with a computer with functionality which is not available in correctional centres;

(b) the scope of the dispute is (or at least ought to be) relatively confined, which informs any assessment of the adequacy of Mr Karnauchow's computer access;

(c) Mr Karnauchow's estimates of the time required to prepare the appeal are unreasonable;

(d) the recent changes to access arrangements render additional access unnecessary;

(e) on any reasonable view, the evidence does not demonstrate that Mr Karnauchow requires additional access in order to pursue the appeal with expedition (let alone that he does not have the irreducible minimum of resources). He was able to (and did) file typed materials on this application within 7 days;

(6) the Commissioner does not oppose Mr Karnauchow being granted a reasonable extension of time to file his materials in support of the appeal;

(7) the 16 December 2024 Application should be dismissed.

1. Counsel for the Commissioner in her oral submissions in substance repeated and emphasised the 24 February 2025 CCS Submissions. It is unnecessary to summarise her oral submissions.

1. In the 22 April 2025 CCS Submissions, the Commissioner made the following submissions:

(1) as to the 2 April 2025 Karnauchow List, the Commissioner:

(a) as to the first and second requests, does not agree to undertake legal research for, or on behalf of Mr Karnauchow as it is beyond the scope of order 2(2) of the 25 March 2025 orders;

(b) as to the third request, will provide Mr Karnauchow with hard copies of the eight requested authorities;

(c) as to the fourth request, does not agree to providing Mr Karnauchow with a printed copy of the two specified extrinsic materials, noting that they are not within the scope of order 2(2) of the 25 March 2025 orders and are in excess of 1,100 pages, but is investigating whether they can be uploaded to his legal e-brief laptop;

(2) the controlling authority is Hamzy CA. Phrases such as "unimpeded access and equality before law" and references to rights contained in international treaties are inconsistent with Hamzy CA;

(3) the authorities and propositions cited by Mr Karnauchow are either irrelevant or do not support his claim for relief because they contain statements of principle that are either inapplicable or are not a basis for orders of the kind sought by Mr Karnauchow being made in light of Hamzy CA;

(4) it is inappropriate to draw a comparison between Mr Karnauchow's current computer access arrangements and Mr Hamzy's access arrangements, because the circumstances of custody of each is very different. Mr Karnauchow has access to a green computer, which has word processing capabilities and is networked. He has access to all of the functionalities to which Mr Hamzy has been provided access by the modified blue computer and day room set up, through a combination of his access to green computers, blue computers, the ability to submit printing requests and the provision of an e-brief laptop.

1. Part 11 Div 3 (ss 231-236) contains provisions dealing with staff. Section 232 deals with the Commissioner, and relevantly provides:

...

(a1) has the care, control and management of all offenders who are held in custody in accordance with Part 2 or 3, and

...

1. Part 4 Div 5 (cll 60-62) contains provisions dealing with inmate services and programs. Clause 60 deals with Inmate services and programs, and relevantly provides:

60 Inmate services and programs

(1) The Commissioner may provide an inmate with services and programs that -

...

(c) promote the health, safety and well-being of the inmate.

(2) Without limiting subclause (1), the services and programs may include any of the following -

...

(b) services for inmates who have disabilities,

...

(f) educational and vocational training programs, including the provision of libraries,

...

1. Part 5 Div 7A Subdiv 1 (cll 122A-122B) contains preliminary provisions dealing with the use of devices by inmates. Clause 122B deals with the approval of inmates to use provided devices, and relevantly provides:

122B Approval of inmates to use provided devices

(1) The Commissioner may give an approval to -

(a) an inmate to use a provided device, or

(b) a class of inmates who may use provided devices.

...

(3) The approval may be subject to conditions, including a condition -

(a) limiting the purposes for which the provided device may be used, or

(b) about the times or intervals the device may be used.

1. Part 9 (cll 174-184) contains miscellaneous provisions relating to full-time imprisonment. Clause 177 deals with the purchasing and renting of goods, and relevantly provides:

177 Purchasing and renting goods

(1) The governor of a correctional centre may permit an inmate to purchase or rent any goods that Corrective Services NSW, or the Commissioner, is not required to provide to the inmate under the Act or this Regulation if -

(a) the inmate asks the governor to provide the goods, and

(b) the goods are of a type approved by the Commissioner, and

(c) the governor considers that permitting the purchase or rental of the goods would not prejudice the good order and security of the correctional centre.

(2) The inmate must pay an amount that is the cost of purchasing or renting the goods to the Commissioner.

...

1. I note that there is no longer any issue about the 16 December 2024 Application to the extent that Mr Karnauchow seeks in-cell access to a laptop e-brief computer. I accept the evidence of Mr Peek in the 17 April 2025 Peek Affidavit that a laptop e-brief computer was provided to Mr Karnauchow on 20 March 2025.
2. I accept the evidence of Mr Karnauchow that the average OAC network access time is 18 hours per week, when there is no lock-ins, or other operational constraints as to his access to computers in the six-week period between 23 December 2024 and 2 February 2025. I do not consider that the evidence of Mr Peek in the 24 February 2025 Peek Affidavit as to the ordinary routine at GCC for access to computers is inconsistent with this evidence as it does not account for departures from the ordinary routine. Further, as acknowledged by Mr Peek, Mr Karnauchow's case notes from 16 December 2024 to 18 February 2025 do not record the number of hours per day that access was facilitated.
3. I accept the evidence of Mr Peek in the 24 February 2025 Peek Affidavit as to the security risks for computers that are not imaged or use different hardware from that which has been tested and approved. I do not accept the assertions of Mr Karnauchow in his oral submissions in which he rejected these security concerns as they were unsupported by any evidence.
4. I accept the evidence of Mr Peek in the 24 February 2025 Peek Affidavit as to the lock-in arrangements, and in particular that it is not possible to guarantee an inmate's computer access will be able to be facilitated when a lock-in is required for an unexpected reason. I do not accept the assertions of Mr Karnauchow in his oral submissions in which he explained how computer access could be guaranteed during a lock-in as they were unsupported by any evidence as to the feasibility of the proposed arrangements.
5. I do not accept the evidence of Mr Karnauchow as to the anticipated time of between 3 months and 3 years required to complete the appeal submissions. Mr Karnauchow has provided no explanation as why it necessary to read over 80 cases to prepare for the appeal in the light of Hamzy CA. Notwithstanding the extensive grounds of appeal in the notice of appeal, I am not satisfied that the appeal will require consideration of more than a few issues. The preparation of each of the 10 February 2025 Karnauchow Submissions and the 2 April 2025 Karnauchow Submissions in a period of seven days indicate Mr Karnauchow has the capacity to prepare his material in support of the appeal in a much shorter timeframe than his anticipated time.
6. I accept the evidence of Mr Peek in the 17 April 2025 Peek Affidavit as to the reasons for different computer access afforded to Mr Hamzy (described in Hamzy CA at [66] which is set out in order 1(3) of the 4 April 2025 orders) and Mr Karnauchow stems from their different classification and security arrangements within the Goulburn Correctional Complex. I also accept the submission of the Commissioner that Mr Karnauchow has access to all of the functionalities to which Mr Hamzy has been provided access by the modified blue computer and day room set up, through a combination of his access to green computers, blue computers, the ability to submit printing requests and the provision of an e-brief laptop. However, I acknowledge that Mr Karnauchow's access to computer facilities, unlike that of Mr Hamzy, is dependent on the availability of green computers and blue computers, and CSNSW attending to his printing requests.
7. The 10 February 2025 Karnauchow Submissions and the 2 April 2025 Karnauchow Submissions prepared by Mr Karnauchow and comprising 23 typed pages are particularly detailed and thorough. They each contain references to a number of legal authorities and the evidence on which relies. I am satisfied that, whatever difficulties have been experienced by Mr Karnauchow by reason of his position as a prisoner in protective custody and disabilities, he has nevertheless managed, quite commendably, to be able to compile such detailed and referenced written submissions in support of the 16 December 2024 Application.
8. In Hamzy CA, the New South Wales Court of Appeal (Bell CJ, Payne and Stern JJA) on an undertaking of the appellant granted leave to appeal, allowed the appeal, set aside the orders at first instance and dismissed the application of the plaintiff. The citation, facts and [39]-[52] of the reasons for judgment at first instance (which in this decision is referred to as Hamzy SC) are set out in the 3 February 2025 decision at [44], [51]-[52].
9. The Court of Appeal considered the first two of the three grounds of appeal. On the first ground of appeal, the Court of Appeal found that the primary judge erred in failing to consider the evidence as to the arrangements made between 9 and 28 August 2024 to make facilities available to Mr Hamzy, and/or making a decision that went beyond the real controversy between the parties as at the time he decided the application: [57]-[66].
10. The second ground of appeal consisted of two limbs: [67]. On the second limb, the Court of Appeal found that the primary judge erred in finding that the orders made were necessary to ensure effective access to the Court: [68]-[76]. On the first limb, the Court of Appeal considered the scope of the Court's powers to make orders for the purpose of ensuring effective access to the Court: [77]-[97]. Bell CJ (with Payne JA at [103] and Stern JA at [104] agreeing) made the following observations ([93], [97]):

"[93] The role of the Court is to ensure a fair trial and it may be accepted that an "irreducible minimum" of resources may be required to achieve that but that, too, is different from an equalisation or an approximate equalisation of resources. Further, any irreducible minimum requirement must be assessed in the context of the particular case, including the applicable statutory context which confers discretions and power on corrections authorities who are far better placed than courts to assess what is required for the safe and secure management of corrections facilities. In the context of corrections facilities in New South Wales, see the CAS Act (ss 72, 75, 79, 232-233) and the CAS Regulation (cll 45, 122A, 122B, 122J and 122L). ..." (citation omitted)

"[97] In applications of the kind that was made by Mr Hamzy in the present case, the source of power to make the orders sought must be identified carefully, and the statutory context of the lawful regulation of a prisoner's circumstances of incarceration must be recognised and given proper deference. Any excess of executive authority is most appropriately dealt with in the Court's supervisory jurisdiction and by reference to public law remedies. Any discretion to make directions in the context of extant proceedings should not start with the "equality of arms" concept but focus on what is required for a fair trial. The focus must necessarily take into account the very different contexts of a prisoner who is in some way impeded in preparing and presenting a defence in criminal proceedings as opposed to civil litigation where the prisoner is the moving party."

1. To the extent that Mr Karnauchow complains that the Commissioner has breached cll 60(1)(c) and (2)(b) and (f), and 177 of the CAS Regulation, and s 7 of the GSE Act, the Tribunal has no jurisdiction to address those complaints. As explained in Hamzy CA at [97], any excess of executive authority by the Commissioner is most appropriately dealt with in the Supreme Court's supervisory jurisdiction and by reference to public law remedies.
2. I am satisfied that the Tribunal has an implied power to make orders to ensure a fair hearing of the appeal. Where a litigant is an offender who is held in custody, as recognised in Hamzy CA at [93] and [97] this power must be exercised with proper deference is given to the lawful regulation of a prisoner's circumstances of incarceration and in circumstances where corrections authorities are far better placed than courts to assess what is required for the safe and secure management of corrections facilities. With respect to the 16 December 2024 Application, this statutory context includes s 232(1)(a1) of the CAS Act and cl 122B of the CAS Regulation.
3. I am satisfied that it is appropriate to treat the 16 December 2024 Application as including an application for an order for the provision of the information specified in the 2 April 2025 Karnauchow List produced by pursuant to order 2(2) of the 25 March 2025 orders. As to the specified information:

(1) in the first and second requests, I am satisfied that I should not make an order for provision of the information to Mr Karnauchow as it is not the responsibility of the Commissioner to undertake legal research for Mr Karnauchow;

(2) in the third request, I am satisfied that it is unnecessary to make any order in view of the undertaking of the Commissioner to provide the eight specified cases to Mr Karnauchow;

(3) in the fourth request, I am satisfied from my own research that the two specified extrinsic materials are publicly available in pdf form. I will make an order that the Commissioner upload these documents to the laptop e-brief computer or alternatively provide hard copies within three weeks.

1. Having regard to my findings, I am not satisfied that it is necessary make any order to ensure that Mr Karnauchow has a fair hearing in respect of the appeal, and that the 16 December 2024 Application should otherwise be dismissed. This dismissal applies to the order sought by Mr Karnauchow in the 10 February 2025 Karnauchow Submissions.
2. I have decided to make procedural orders for the hearing of the appeal and list the appeal for hearing. However, in recognition that Mr Karnauchow's access to computer facilities is dependent on the availability of green computers and blue computers, and CSNSW attending to his printing requests, I have allowed an extended period for Mr Karnauchow to lodge his material in support of the appeal. I have taken into account the dates for compliance with procedural orders by Mr Karnauchow and the hearing date in NCAT proceedings 2024/00179483.

(1) The Respondent is to provide to the Appellant the two documents identified as extrinsic materials in the letter of the Appellant dated 2 April 2025 to the Registrar lodged on 11 April 2025 by uploading pdf files on the laptop e-brief computer to which he has access or in hard copy within three weeks of the making of this order.

(2) The Application for miscellaneous matters lodged by the Appellant on 16 December 2024 is otherwise dismissed.

(3) Time is extended for the Appellant to comply with order 1 made on 23 February 2024 to 15 July 2025.

(4) Time is extended for the Respondent to comply with order 1 made on 23 February 2024 to 15 August 2025.

(5) Time is extended for the Appellant to comply with order 1 made on 23 February 2024 to 15 September 2025.

(6) The appeal is listed for hearing on 10 October 2025 for one day.

(7) Orders 6 and 7 made on 23 February 2024 remain in force.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.