72A number of matters should be noted concerning these parts of the Manual and Mr Patsalis' challenge to their "validity".
73First, Mr Warwick explained the size of a "storage tub" as being approximately 70cm in length, 60cm in width and about 40cm in depth. Mr Patsalis' description of the size of tubs was consistent with that evidence.
74Second, it was accepted by Mr Hutton that the meaning of the two tables extracted above is unclear. In particular, it is not clear whether the tables in 9.3.1.1 and 9.3.3 only refer to the entitlements of prisoners to keep legal documents in their cells or their overall entitlements to keep legal documents at the correctional facility. The text in 9.1.1.1 appears to suggest that prisoners who are not involved in legal proceedings which affect their custody are entitled to keep papers in property storage tubs in their cells but those who are involved in proceedings affecting their custody may only have one standard storage tub in their cell and must negotiate "additional storage" with local management. Further it is not clear whether that "additional storage" is in their cell or elsewhere in the correctional centre. If the reference to "additional storage" by negotiation is to only storage that can take place outside of their cell then it does not seem consistent with the words I have emphasised in paragraph 9.3.1.1 which appear to contemplate an entitlement to have additional storage tubs.
75It was ultimately common ground that, in Mr Patsalis' case, he has access to one storage tub of documents in his cell, and maintains five storage tubs in a facility at Dawn de Loas that he accesses from to time. Allowing for the uncertainties I have described, I interpret the above parts of the Manual as establishing a standard position consistent with Mr Patsalis' position; ie prisoners may maintain a single storage tub within their cell and a number of storage tubs elsewhere which they can access through the arrangements noted in paragraph 9.3.1.1. I also interpret these parts of the Manual as enabling "negotiation" with "local management" as to the possibility of having additional storage tubs in their cells as well as negotiation over the number of storage tubs that will be held elsewhere at the gaol. It may be that the parameters for negotiation over whether additional tubs can be kept in their cell are very narrow. No doubt issues such as health and safety and the position of other occupants in the cell will be very significant. There is also the wider goal of maintaining consistency throughout the correctional centre that is no doubt part of the process of ensuring that grievances about differential treatment do not fester. However a fixed rule that never permitted a prisoner to have more than one storage tub in their cell under any circumstances would in my view be in real jeopardy of successful challenge via at least one of the mechanisms that I have described above. An obvious example, where such a rule would be at risk of successful challenge, is a prisoner representing him or herself on a serious criminal charge who must soon address the jury in a document intensive trial. If they were (say) the sole occupant of a cell it would be very difficult to justify refusing the prisoner the ability to have access to more than one storage tub in that cell. I do no read these parts of the Manual as preventing "local management" from allowing that to occur.
76Third, on the morning of the second day of the hearing Mr Patsalis made an application for leave to file further evidence and further submissions in support of Prayer 9. He explained that the evidence that he proposed to file would address two distinct periods of time when he was denied access to "all my legal appeal documents" (transcript 13 March 2012, p 40, line 29), how the various arrangements have in practice impaired his practical preparation (transcript 13 March 2012, p 41, lines 35-45) and that he may be able to obtain other inmates to provide affidavits to similar effect (transcript 13 March 2012, p. 41, line 43). In his submissions in reply he indicated that the evidence he would obtain would show that the prison authorities "do not follow policy and that is why it is unlawful" (transcript 13 March 2012, p 55, lines 5-6).
77Mr Hutton opposed the application for leave to give further evidence on the basis that it was irrelevant to the challenge that was being made to the relevant parts of the Manual. He conceded that some of this evidence might become relevant to the claim for relief in Prayer 8 of the Amended Summons if Mr Patsalis was ultimately allowed to pursue it by the Court of Appeal (transcript 13 March 2012, p 41, line 46 to p 42, line 9). I refused Mr Patsalis leave to file further evidence on the basis outlined by Mr Hutton. I considered that the material foreshadowed was not relevant to his challenge to the validity of the parts of the Manual that I have set out above at [70] to [71]. The fact that in the past the Manual may have been ignored or departed from was, and is, in my view irrelevant to his challenge to its validity. To the extent that Mr Patsalis is seeking to explain how, in his case, the application of the approach in the Manual has hampered his preparation, then I formed the view that he could address that as a hypothetical circumstance that could be used to test the approach outlined in the Manual without the need for further evidence. I consider that below at [80] - [81].
78I allowed Mr Patsalis to file further submissions addressing Prayer 9. Mr Patsalis filed further submissions on 14 March 2012. On 16 March 2012 he sent to my chambers some further submissions that were outside the time by which I had directed that they should be provided. I extended time to allow that to occur and have also considered those submissions.
79Enclosed with the submissions dated 14 March 2012 was an affidavit sworn by Mr Patsalis on 8 November 2011. Consistent with my ruling I have not had regard to that affidavit and it is not to be taken as read in the proceedings. One part of those submissions also contended that the written portion of 9.3.1.1 of the Manual that I have set out above at [70] was only added recently and that, prior to its inclusion, Departmental officers regularly refused prisoners access to their legal documents. Whether or not this is so is irrelevant to my decision. I am only considering the existing form of the Manual. It is that form of the Manual that is challenged by Prayer 9 of the Amended Summons. The balance of Mr Patsalis' 14 March 2012 and 16 March 2012 submissions restates and refines the arguments he made orally, which are addressed below.
80Fourth, as noted above, it was common ground that Mr Patsalis had six tubs of legal documents, one tub which was maintained in his cell and five tubs that were kept in a storage area that he was able to access. He explained that this has caused practical difficulties in cross-referring between documents because of the delay in obtaining access to the storage tubs outside his cell. The Manual contemplates this occurring via a request to the "the officer in charge of the inmate property store through the officer-in-charge of their accommodation unit." Mr Patsalis explained that this could be a slow process, depending on the availability of the officers in charge of the storeroom.
81The difficulty in cross referencing between documents in different storage tubs and the potential for delay strikes me as the most obvious problem that can be occasioned by an approach that seeks to limit the amount of documents that prisoners have in their cells. However, it will not affect all prisoners engaged in legal proceedings, as often a single storage tub will be sufficient. Moreover this difficulty will always exists to varying degrees with any restriction on the amount of documents that can be retained in their cells. Even if there were no restriction, the problem still exists for document intensive cases when the cells are not large enough to house all the documents.
82Fifth, the status of the Manual is unclear. Section 235B of the Administration Act provides:
"235B Commissioners Instructions
The Commissioner may issue (and from time to time amend or revoke) instructions, not inconsistent with this Act or the regulations, or with the [Public Sector Employment and Management Act 2002 or the regulations made under that Act] , to the staff of Corrective Services NSW (including correctional officers) with respect to the management and control of Corrective Services NSW."
In addition I have extracted above ss 233(2) and 235(2) of the Administration Act. They provide a mechanism by which the Commissioner may direct and control general managers of correctional centres and correctional officers.
83It may be that the Manual is either a set of a series of instructions issued under sub-section 235B or a set of directions made under ss 233(2) or 235(2) of the Administration Act or both. If that were the case, then it would be open to challenge the validity of the Manual on the basis that, inter alia, it is inconsistent with or exceeds the authority conferred by the Administration Act. If the Manual cannot be so characterised, then it would appear to only have the status of a set of departmental guidelines with no force of law. In that event the Manual would not be open to be challenged in a factual vacuum. Instead it may be evidence that might be relied on to challenge a particular decision or exercise of power under the Administration Act that occurred following a relevant officer applying the Manual. However, any such challenge must await the relevant decision being made. If this were the correct position in relation to the Manual then Mr Patsalis' challenge would have to be dismissed in limine.
84I do not make any criticism of Mr Hutton, but he was unable to assist me as to whether or not the Manual could be characterised as a set of instructions under s 235B or directions under ss 233(2) or 235(2). In his post hearing submissions Mr Patsalis submitted that the Manual was a set of instructions under s 235B. I would feel distinctly uneasy dismissing Mr Patsalis' challenge on the basis that it had not been established that it had the force of law when the repository of power does not indicate what its status is. For an abundance of caution I am considering the matter on the basis that it is a set of instructions issued under s 235B. The conclusions I have reached below are equally apposite to the Manual being characterised as a set of directions under ss 233(2) or 235(2) of the Administration Act.
85 It is important to bear in mind that whatever the terms of the Manual it is also subject to the jurisdiction of this Court that I have referred to in [52] to [53] above. One can well understand the need for those responsible for administering correctional centres to lay down workable and potentially strict guidelines as to the amount of legal documents that can be made available to prisoners in their cells and that can be stored elsewhere. However the multitude of cases that the prisoners may be involved in and their potential complexity means that some flexibility needs to be retained in relation to the ability of prisoners to have access to their legal documents in their cells and elsewhere. As I have stated above, I consider that the Manual accommodates some flexibility. This flexibility is reinforced by the powers of at least the criminal courts as discussed in Smith.
86The basis of Mr Patsalis' challenge to the validity of these parts of the Manual is that the prison authorities "use the policy to deny inmates access to all our legal/appeal documents." He claims that the policy "infringes to an unnecessary and impermissible extent a basic right of inmates recognised at common law, namely, the right of unimpeded access to the courts and that s 235B of the [Administration] Act does not authorise such infringement, either expressly or impliedly". Mr Patsalis placed particular reliance on the decision of the House of Lords in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532. He also cited passages from a number of authorities emphasising the right of persons, including prisoners, to have unimpeded access to the courts, namely Kelleher v Department of Corrective Services at [15] to [16]; and Rich v Groningen & Ors at [287] to [288]. He further contended that the jurisdiction to which I have referred above at [52] is not a complete answer to concerns about access to documents as it does not address civil proceedings and, in particular, the position of prisoners who are contemplating but have not commenced proceedings and who thereby do not have access to any Court for relief.
87In Coco v R [1994] HCA 15; (1994) 179 CLR 427 at 436 Mason CJ, Brennan, Gaudron and McHugh JJ referred with apparent approval to a statement by Lord Bridge of Harwich in Raymond v Honey [1983] 1 AC 1 at 14 that "a citizen's right to unimpeded access to the courts can only be taken away by express enactment". I agree with Mr Patsalis that any instructions made under s 235B of the Act could only remove a right of unimpeded access to the courts if the Administration Act clearly authorised it (see NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; (2008) 72 NSWLR 456 at [97] to [103], per Spigelman CJ). The same applies to directions under ss 233(2) and 235(5). I also agree that nothing in the Administration Act amounts to such an authorisation. However, I also consider that, in light of how I have construed the Manual, nothing in paragraphs 9.3.1.1 and 9.3.3 has that effect.
88In Rich, Gillard J considered, inter alia, an attempt by a prisoner to seek an injunction restraining the Victorian Commissioner for Corrective Services from "frustrating and impeding his preparations for an appeal" and a mandatory order requiring the release to him of various documentation, legal text and computers. At the time the plaintiff was pursuing an appeal from his conviction in the Court of Appeal. He complained that his preparation had been interfered with by various decisions that had been made concerning his access to what Gillard J described as his "appeal documents" (at 286.7). By the time the matter was heard Mr Rich had obtained access to his "appeal documents" and no longer sought any injunctive relief but only sought declaratory relief as to his treatment in the past (278.3).
89Gillard J accepted that Mr Rich had a right of "unimpeded access to the courts, subject to the provisions of any legislation ..... which applied to him" (at 287.8). His Honour further accepted (at 287.8 to 287.10) that "legislation would have to expressly or impliedly and in clear terms give the authorities the power to interfere with his property in such a way as to hinder or interfere with this basic right [of access to the courts]". However, Gillard J did not accept that this carried with it any absolute right to have immediate possession of all of his legal documents as was asserted by Mr Rich (at 288):
"I do not accept the contention of the plaintiff that he has an absolute right to all legal documents being in his possession at all times wherever he may be and irrespective of quantity. There are, first of all, physical constraints because of the size of the cell. The quantity may be so great it cannot be physically accommodated. There has to be a limit of what property can be held in a cell. Further, the quantity may be so great that there may be security and/or fire risk. Further a prisoner cannot be expected to have unlimited access to all his legal documents if they cannot be located in his cell. He would have to organise his preparation in such a way that he can have in his possession at any one time the documents he needs for the task in hand.
On the other hand, I do not accept the submissions of Mr Shepherd [counsel for the defendants] that the plaintiff has no rights to his appeal documents and that what he is given is merely a permissive right of possession. He does have an unimpeded right to the courts and in so far as is necessary for him to have access to his appeal documents to properly exercise that right, he is entitled to have reasonable access. If that quantity is so great that all cannot be located in his cell, then the property should be housed in a place where he has access upon reasonable notice. I re-iterate, the plaintiff has to organise his preparation to fit in with the prison officers' duties, but by the same token the prison officers should accord him ease of access and not place any obstacles in his way. In stating these rights and obligations they would be subject to security considerations reasonably and bona fide considered and any overriding power found in legislation. The Act, Regulations and Director's Instructions make it clear that a decision to permit a prisoner to possess property in a prison is a question of discretion." (emphasis added)
90This extract reveals the competing considerations that the authorities in correctional centres must bear in mind when considering the form of access to be granted to prisoners to their legal documents. On my construction of the Manual, it accommodates "local management" at correctional centres undertaking such a process or consideration. Mr Patsalis' challenge is based on the premise that he has an absolute right to have all his legal documents with him at any one time. I do not accept that. His right of access to the courts does not carry with it a concomitant right to immediate physical possession of all of his legal documents in his cell. It does, or at least may, carry a right of reasonable access. The Manual does not infringe that right.
91Mr Patsalis also relied upon the decision in Daly. In Daly there was a challenge to certain instructions that had been issued to prison governors by the UK Secretary of State. The Secretary was conferred with a power under s 47(1) of the Prisons Act 1952 (UK) to make rules for, inter alia, the regulation and control of prisoners. Rule 17.69 to 17.74 concerned the search of living accommodation in closed prisons. Rule 17.73 purported to authorise prison staff to examine legal correspondence thoroughly in the absence of a prisoner during a cell search. Lord Bingham concluded that the policy instructions provided "for a degree of intrusion into the privileged legal correspondence of prisoners which is greater than is justified by the objectives the policy is intended to serve, and so violates the common law rights of prisoners" (at 545C). As s 47(1) of the Prisons Act did not authorise such an excessive intrusion it was found that the Home Secretary did not have power to issue the instruction (at 545D). Each of Lord Steyn (at 546C), Lord Cook (at 548D), Lord Hutton (549D) and Lord Scott (549E) agreed with Lord Bingham.
92Three matters should be noted about Daly. First Lord Bingham stated that his conclusion had been derived from the "orthodox application of common law principles" but noted the same result would be achieved by reliance upon the European Convention of Human Rights (545G). References to the European Convention of Human Rights are to be found in the reasoning of Lord Steyn (547G). The Convention has no equivalent in this country. Second, in stating that the result was derived from the "orthodox application of common law principles", Lord Bingham's approach (and that of all of their Lordships) reflects the application of the principle of "proportionality" that is utilised in the United Kingdom and was strengthened after the passage of the Human Rights Act 1998 (UK). The judgment of Lord Steyn at 546-548 analyses the differences in approach between the application of that principle and established grounds of judicial review (see also R v Shayler [2003] 1 AC 247 at [61] per Lord Hope). This principle has not been adopted as a basis for reviewing administrative action in this country (see Bruce v Cole (1998) 45 NSWLR 163 at [185]; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [72], per McHugh and Gummow JJ). To the extent that "proportionality" is utilised in reviewing the validity of subordinate legislation in this country it bears a different meaning to the concept applied in the United Kingdom (see M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action, 4th ed (2009) Law Book Co at [6.240]). Third, in any event, the relevant interference with the prisoner's rights in Daly was the scrutiny of legally privileged communications in the absence of the prisoner. That is qualitatively different to the suggested interference that is said to be occasioned by the Manual. In my view, Daly does not provide any support for Mr Patsalis' submission.
93The claim for relief in Prayer 9 of the Amended Summons is refused.