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.
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.
The factual background to the proceedings may be shortly stated.
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]
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.
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.
Shortly after receiving that letter, the current proceedings were commenced. Discussions then took place between the legal representatives of the parties, following which the defendant's solicitor indicated, in correspondence of 6 July 2021, that that defendant was minded to revisit the issue in light of the deterioration in the plaintiff's medical condition.
On 14 July the defendant wrote to the plaintiff's solicitor in (inter alia) the following terms:
"I am advised that the previously identified risks associated with visits between Mr Kayirici and [his sister] remain. However, based on the new information, on compassionate grounds, and considering the interests of Mr Kayirici's sister, visits between Mr Kayirici and his sister are approved.
Given the deteriorating health and acute medical needs of Mr Kayirici, and the suspension of in-person visits until further notice due to COVID-19, AVL visits are approved at this time. The frequency of visits will need to be determined in consultation with medical and custodial staff."
As I understand it, in the period which has elapsed since the defendant's correspondence, the plaintiff has had the benefit of visits from his sister via AVL.
Since 24 June 2021, all in-person visits to inmates in correctional centres in NSW have been suspended. The decision to suspend those visits was made in response to the increasing effects of the pandemic. However, visits via AVL have continued to be available. There is no evidence before me which would suggest that these arrangements will be altered in the immediate future. I have no doubt that the issue will be revisited when the defendant considers that it is safe to do so.
In all of these circumstances, it is the defendant's position that the proceedings brought by the plaintiff disclose no reasonable cause of action. Counsel for the defendant pointed to the fact that the decision which was the subject of the originating summons has been overtaken by the subsequent decision to allow the plaintiff's sister to visit him by AVL, that arrangement being consistent with those which are available to all inmates at the present time.
Having regard to the exchanges which took place during the course of the hearing, I am satisfied that the plaintiff understood the defendant's position in the circumstances which have arisen. However, he sought a further order to the effect that the defendant be required to make a determination in relation to personal visits, as it were, in advance, so that those arrangements could be immediately implemented as soon as it was safe to do so. There are a number of difficulties associated with that course, not the least of which is that such an order would effectively force the defendant to make a decision now, based on circumstances which may have changed by the time any such decision can be implemented. There are other difficulties as well, on which I do not need to elaborate.
In the circumstances which have arisen, the proceedings brought by the plaintiff no longer disclose a cause of action. The decision of which judicial review was sought was revised by the defendant, and a further decision was made, the effect of which is to give the plaintiff the same entitlements as any inmate. In those circumstances, the appropriate order is that the proceedings by dismissed.
However, before making any formal orders, there are two further matters to which I should refer.
The first is that there is an outstanding issue as to the waiver of any fee or fees associated with the filing of the summons. Clause 11 of the Civil Procedure Regulation 2017 (NSW) confers a general power on the Registrar of the Court to waive any fee wholly or partly. It seems to me that the Court has an inherent power to make that order in addition to any power which is conferred on the Registrar by the Regulation. I propose to exercise that power in favour of the waiver of the fee. Counsel for the defendant did not argue against taking that course.
The second is in the nature of a recommendation. Nothing that I am about to say should be taken, in any way, as seeking to bind the defendant in relation to any decision that he might make in the future in relation to the plaintiff having in person visits from members of his family, including his sister. However, it is clear that the plaintiff has a limited life expectancy. I accept that it is impossible to predict when the defendant may be in a position to consider reinstating personal visits to inmates. However, I recommend, in the strongest possible terms, that any application which may be made by the plaintiff for the reinstatement of in-person visits from any member of his family, including his sister, be dealt with by the defendant as expeditiously as possible. That, in my view, is only fair and reasonable given the circumstances.
I make the following orders:
1. The proceedings are dismissed.
2. I make no order as to costs.
3. I waive any fee payable to the Registrar or to the Court which might otherwise have been payable by the plaintiff in relation to the commencement of these proceedings.
4. I direct the solicitor for the Defendant to send a copy of this judgment to the plaintiff.
[2]
Endnote
Patsalis v State of NSW (2012) 81 NSWLR 742; [2012] NSWCA 307; Whiteoak v State Parole Authority and the Attorney-General of NSW [2020] NSWSC 185.
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Decision last updated: 09 August 2021