Kayirici v Commissioner of Corrective Services

Judgment - eX TEMPORE (REVISED)

1. These proceedings were commenced by a summons filed on 5 July 2021. That summons sought a number of orders including an order setting aside a decision made by the defendant on 1 July 2021 refusing permission for the plaintiff to receive visits from his sister.
2. Also before the Court is a notice of motion filed by the defendant seeking an order dismissing the proceedings pursuant to rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW). The basis of that application, in essence, is that in light of the events that have transpired since their commencement, the proceedings no longer disclose any reasonable cause of action. The notice of motion is supported by an affidavit of Tom Alexander Allchurch, solicitor, of 30 July 2021. The annexures to that affidavit incorporate an affidavit of Colleen Virginia Donnelly, the plaintiff's former solicitor, of 5 July 2021 which was filed in support of the originating summons. I should note that since filing her affidavit, Ms Donnelly has ceased to act for the plaintiff. He has appeared on his own behalf today.
3. The factual background to the proceedings may be shortly stated.
4. The plaintiff is currently serving a lengthy sentence of imprisonment within the NSW correctional system. I should note that the nature of the proceedings which have been brought are such that the plaintiff does not require leave under ss 4 and/or 5 of the Felons (Civil Proceedings) Act 1981 (NSW). [1]
5. Without going into detail, it is common ground that in or about July 2020, the plaintiff was diagnosed with incurable cancer. The most recent medical report which is before me gives the plaintiff a life expectancy of between 3 and 6 months. As a consequence of his illness, the plaintiff is currently a patient at the Long Bay Hospital and has been for some considerable period of time. Given his prognosis, it can be reasonably expected that he will remain there indefinitely.
6. In correspondence of 4 June and 29 June, the plaintiff made an application to the defendant that he be permitted to receive visits from his sister. On 1 July 2021, that application was refused. In reaching that determination, the defendant advised the plaintiff's then solicitor (inter alia) as follows: I acknowledge your comments regarding Mr Kayirici's medical condition, his desire to make contact with [his sister] and willingness for AVL or non-contact (box) visits. I am also aware that the Child Protection Coordination and Support Unit (CPCSU) has received requests from Mr Kayirici and his mother for visits with his sister on compassionate grounds given his current medical condition. I am advised that a number of identified risks remain of concern relating to Mr Kayirici's offence history and volatile behaviour in custody. Given these risk factors, I am not persuaded that child visits should be approved. While I also acknowledge [the medical evidence], I note the overall prognosis is uncertain in relation to timeframes. I do not propose to allow child visits at this time.