Patsalis v State of New South Wales

Judgment 1By motion filed on 9 February 2012, Mr Patsalis sought interlocutory relief in the following terms: "Court order in the nature of mandatory injunction and in the nature of mandamus to compel and command The State of New South Wales ("the defendant") or the Commissioner of Corrective Services, to always house the plaintiff in a one out cell, at all correctional centres and complexes which house the plaintiff from time to time; and for an appropriate entry be made in the Department of Corrective Services computer system and in the plaintiffs case management file that he be housed in a one out cell at all correctional centres and complexes that house him from time to time." 2The motion was supported by affidavits sworn by Mr Patsalis on 30 January and 7 February 2012. The relief sought was opposed, the defendant relying on affidavits sworn by Mr Aaron Baril, a solicitor employed in the office of the Crown Solicitor with day-to-day carriage of the matter, on 24 January and 8 February. The matter was listed for hearing on 9 February. That day the defendant relied on extensive written submissions. Directions were made to give Mr Patsalis an opportunity to respond to those submissions. 3He later filed a number of further affidavits on which he relied, as well as written submissions. At a directions hearing on 2 March, Mr Patsalis asked that I make an interim order, pending determination of his application for interlocutory relief. I declined that application but gave directions so that his application could be dealt with urgently. 4Mr Patsalis originally deposed to his understanding of the Department's practice, that when prisoners had legitimate reasons for being housed in a one out cell, that appropriate action was taken to ensure that they had such housing. Legitimate reasons for such a need included physical or sexual assault by other inmates, which had resulted in a phobia of being housed with other inmates, or which had resulted in other physical or psychological injuries. 5Mr Patsalis explained the basis for his application that the defendant should be compelled always to house him in a one out cell, namely the consequences of a vicious assault which he had suffered in August 2010. This had occurred when he had continued working on his legal matters, with the light on, after he and the inmate with whom he occupied a two out cell, were locked into their cell together at approximately 10pm. 6Mr Patsalis outlined the phobia and physical and psychological injuries which he claims he suffered as the result of this assault and the steps he has since taken to draw his resulting need for housing in a one out cell, to the attention of the relevant authorities, including by correspondence sent by his solicitor to the Commissioner of Corrective Services. No response was received to that correspondence. 7Mr Patsalis also explained the circumstances and times at which he had been housed in a one out cell while housed at Junee Correctional Centre; how since his transfer to the Dawn de Laos Centre, he had been housed in a two out cell; and the problems that had caused him and his fears, when so housed. They related both to his health and safety and his ability to deal with the work he had to undertake, in respect of various legal matters in which he is engaged. 8Mr Patsalis understood that he required a medical certificate in relation to his injuries, in order to ensure that he would be housed in a one out cell, under the applicable policy. He explained the steps he had taken, unsuccessfully to the time of the hearing, to obtain such a certificate. 9Mr Patsalis saw a psychologist on 23 December 2011 at the Dawn de Laos Centre, shortly after his arrival there, with the result that he completed an inmate request form, seeking that he be placed in a one out cell. The request was not approved, but Mr Patsalis pursued his request in various ways, which he described in detail. He also described the prisoner with whom he shared a cell for a period and his understanding of current housing arrangements at the Centre. He also described his pursuit of doctors' appointments, which he first sought on 22 December 2011; advice which he received from a psychologist on 16 January 2012, that he should be housed in a one out cell, but who was unable to issue him with a medical certificate; his pursuit of a psychiatrist's appointment; the advice he received from the general practitioner who he saw on 3 February, that he would need to see a psychiatrist, in order to obtain a medical certificate in relation to his condition; and the steps he had taken to pursue such an appointment. 10Mr Baril deposed to instructions which he had received as to Mr Patsalis' current status at the Dawn de Laos Centre. On 14 December 2011, the Commissioner of Corrective Services, Mr Woodham, approved a recomendation made by the Serious Offenders Review Council that Mr Patsalis be transferred to the Dawn De Laos Correctional Centre. This transfer took place on 22 December 2011. There Mr Patsalis is classified as a 'class C1 inmate' housed in an SMAP area, but not in a one out cell. He was then housed in a two out cell, but without a cell mate. He was being given access in his cell to the legal documents which relate to his civil proceedings. If possible, it was intended that he would continue to occupy the cell without a cell mate, but that would depend on resources available and the potential need to take in more category C1 inmates at the Centre. 11Mr Baril also explained that in the Centre there was only one 'one out' cell appropriate to Mr Patsalis' current classification, which was then occupied by another inmate, who is also involved in legal proceedings, and is doing his own work in respect of those proceedings. This inmate had been on a waiting list for such a cell for longer than Mr Patsalis. It was explained that the system under which cells are allocated at the Centre is operated in order that inmates may perceive that it is fair and equitable. There was a concern that preferential treatment afforded to Mr Patsalis could result in him being harassed by other inmates. 12Mr Baril also explained that inmates with a medical certificate which indicates that a one out cell is appropriate to assist with their condition or recovery, are given first priority for a one out cell, irrespective of the waiting list. Neither Mr Patsalis nor the inmate currently occupying that cell had such a medical certificate. If Mr Patsalis obtained a relevant medical certificate, he would be given first priority for the one out cell, provided no other inmate had a greater medical need for such a cell. It transpired that arrangements had been made for Mr Patsalis to be seen by a psychiatrist on 16 or 23 February. 13After the hearing Mr Patsalis saw a psychiatrist Dr Hany Samir on 23 February 2012. He understood that Dr Samir had issued a medical certificate indicating that his psychiatric condition required that he be housed one out cell. In the result he was moved to a one out cell, displacing another prisoner of a similar classification, who had recently been placed in a one out cell because like Mr Patsalis, he is also preparing for legal proceedings. 14Mr Patsalis understands that this prisoner intends to seek an order from Latham J requiring the defendant to house him in a one out cell. Mr Patsalis fears that if such an order is made, he will, again, be placed in a two out cell, at risk of his health.