Patsalis v The State of New South Wales

Final Form of Claimed Relief 19Mr Patsalis' prisoner classification, place of incarceration and circumstances of incarceration have changed since he sought leave to proceed under the Felons Act. At the hearing Mr Patsalis confirmed that he pressed Prayer 1 of the Amended Summons but only so far as it referred to an order that he always be "housed in a one out cell". He also stated that he was pressing prayers 9(a) - (d) of the Amended Summons which I have extracted above. He did not press any other claims for relief. To clarify his position he sought leave to amend Prayer 1 to clarify that the relief sought is a command that Mr Patsalis be housed in a "one out cell at all correctional centres and complexes" which house him from time to time. The defendant did not oppose the application and I allowed the amendment.

One Out Cell: The Evidence 20The plaintiff read six of his affidavits which were dated 30 January 2012, 7 February 2012, 17 February 2012, 26 February 2012, 28 February 2012 and 29 February 2012 respectively. The defendant did not object to any part of these affidavits. Mr Patsalis also gave oral evidence by way of reply to the affidavit of Mr Warwick. He was briefly cross-examined on that evidence by Mr Hutton of counsel for the defendant. 21The defendant read an affidavit of James Warwick sworn 9 March 2012. Mr Warwick has been employed as a Senior Assistant Superintendent for Corrective Services NSW for approximately twenty years and has been based at Dawn de Loas for approximately six months. He is not the "general manager" of Dawn de Loas within the meaning of s 233(1) of the Administration Act. However, on the basis of his position and experience, he described the practices and procedures adopted at Dawn de Loas in relation to the housing of inmates and, so far as it is known, the process that would be adopted in the future at Dawn de Loas should it be necessary to reconsider Mr Patsalis' continued occupation of the one out cell in F block. Mr Warwick was briefly cross-examined and I asked him some questions arising out of the oral evidence given by Mr Patsalis. 22There was much discussion in the evidence of the concepts of one out cells and two out cells however they were not described in any detail. It was implicit in the discussion that a one out cell is, as its name implies, a cell designed for one inmate and a two out cell is for two inmates. It was not stated whether a two out cell is larger than a one out cell. In submissions Mr Patsalis asserted that they were the same size. In his affidavit, Mr Warwick incorrectly stated that there was only one one-out cell at Dawn de Loas and all the other cells were two out. In his oral evidence he clarified that there was a single one out cell in each of the cell blocks at Dawn de Loas. 23In August 2010 Mr Patsalis was being detained at Wellington Correctional Centre. On 8 August 2010 his cellmate assaulted him. He stated that the assault occurred at 10.00pm after they were locked in their cell and that it occurred "because I had the light on so that I could do my legal work". In his affidavit sworn 29 January 2012 (at [9]) he recites his belief that the assault had caused him psychological and psychiatric injuries. He states that he suffered from phobias, anxiety, post traumatic stress disorder and nightmares. Although I would not make a finding that he suffered any phobias or post traumatic stress disorder based on his belief, I accept his evidence that he was assaulted in the circumstances that he stated and that he has suffered the symptoms he described. 24At some point not disclosed by the evidence, Mr Patsalis was transferred to Junee Correctional Centre ("Junee"). In his affidavit sworn 29 January 2011 (at [11]) Mr Patsalis states that in November 2010 he advised the Operations Manager and Manager of Security at Junee of the assault and its effect on him. He stated that the Operations Manager arranged for him to be placed in a one out cell in place of another prisoner. 25On 18 March 2011 Mr Patsalis again spoke to the Operations Manager at Junee. The officer arranged for a two out cell to be converted into a one out cell and occupied by him alone as a one out cell. Sometime in early April 2011 he moved into that cell. 26It is not clear from Mr Patsalis' affidavits whether between November 2010 and March 2011 he continually occupied a cell by himself and whether that was also the case from April 2011 to December 2011. It does not matter. From the latter part of November 2011 to 20 December 2011, his solicitor corresponded with the Commissioner and other parts of the Department seeking confirmation that the departmental records would be annotated to record that he should be housed in a one out cell at all correctional centres where he might be detained from time to time. There is no evidence suggesting that any response to this correspondence was sent. 27On 14 December 2011 the Commissioner approved a recommendation by the Serious Offenders Review Council to reduce Mr Patsalis' classification from category B to category C1 and to transfer him to Dawn de Loas. Dawn de Loas is a medium security correctional centre for male inmates. 28On 22 December 2011 Mr Patsalis was transferred to Dawn de Loas. He has remained there since then. 29Upon his arrival at Dawn de Loas, Mr Patsalis requested that he be placed in a one out cell. Due to the late hour of his arrival he was advised that his request could not be considered then but he could follow his request up in the morning if he so chose. He was housed in F block which houses inmates classified "C1". He was placed in a two out cell with another inmate ("Inmate J"). 30On 23 December 2011 Mr Patsalis attended a meeting with a senior correctional officer and a psychologist. He advised them that he needed to be placed in a one out cell. He showed the senior correctional officer copies of the correspondence from his solicitors. He later submitted an "inmate request form" with copies of the correspondence annexed. 31On 24 December 2011 he was advised that his request was not approved. He repeated his request and sought to make representations to Ms Nicholson, the Manager of Security and Acting General Manager of Dawn de Loas. 32On 8 January 2012 he handed what he described as a "hastily written three page letter" dated 7 January 2012 to a correctional office at Dawn de Loas. It was addressed to the officer and Ms Nicholson and restated his request that he occupy a one out cell. 33On 14 January 2012 Inmate J vacated the two out cell that Mr Patsalis was occupying. Inmate J was moved to the one out cell in F block. From that time until 1 February 2012 Mr Patsalis was the sole occupant of a two out cell. 34In his affidavit of 29 January 2012 Mr Patsalis describes how he avoided sharing the cell space with Inmate J in the period from 22 December 2011 to 14 January 2011. He stated that it was his practice to sit on a verandah attached to the cell from the time that prisoners were locked in, being sometime between 7.30pm and 8.30pm. He stayed on the verandah until Inmate J went to sleep, which was usually around 11.30pm. Mr Patsalis stated that he woke up around 5.00am and would sit on the verandah prior to Inmate J waking. He claims he suffered severe sleep deprivation and exhaustion, headaches and anxiety amongst other complaints during this period. 35On 16 January 2012 Mr Patsalis spoke to a psychologist about the difficulties that he had experienced in occupying a cell with Inmate J and complained that he had not been seen by a general practitioner. He sought a medical certificate to assist in his efforts to obtain a one out cell on a permanent basis. He states that the psychologist advised him that he should be placed in a one out cell but stated that he could not provide any appropriate medical certificate and he would have to wait until he saw a doctor. 36On 17 January 2012 Mr Patsalis saw a nurse and made an appointment to see a psychiatrist. 37On 18 January 2012 he met with Ms Nicholson. He advised her of the existence of these proceedings and of the difficulties he had experienced while sharing a cell with Inmate J. 38On 1 February 2012 another inmate ("Inmate K") was placed into the two out cell with Mr Patsalis. On the next day Mr Patsalis' solicitors wrote to Ms Nicholson and the Commissioner complaining about this and re-iterating his request for a one out cell. 39On 3 February 2012 a general practitioner saw Mr Patsalis. No medical certificate was issued. He was advised that he would have to wait until he saw a psychiatrist before he could obtain a certificate. 40On 7 February 2012 Inmate K was removed from the two out cell he occupied with Mr Patsalis and from F block entirely. Mr Patsalis claims that was a result of Inmate K having suffered a psychotic episode. 41On 10 February 2012 another cellmate ("Inmate D"), was placed in the two out cell with Mr Patsalis. 42On 11 February 2012 Mr Patsalis attempted to contact Ms Nicholson and was advised she was not working on weekends. 43On 23 February 2012 Mr Patsalis saw a psychiatrist. A "NSW Health Problem Notification Form" for inmates in correctional centres was completed on his behalf. It referred to him as suffering "mental health issues". In his affidavit of 26 February 2012 Mr Patsalis sought to demonstrate that a correctional services officer unsuccessfully attempted to have the certificate withdrawn. These parts of his affidavit were read without objection but I do not accept that his observations as recorded in the affidavit establish that fact. He also recounts that the officer then removed the then occupant of the one out cell in F block ("Inmate M"). Mr Patsalis has been in that one out cell since that time. 44A review of Mr Patsalis' affidavits reveal that, from time to time, the prison authorities have had to consider the competing claims of various inmates when addressing who would occupy a two out cell and who would occupy a one out cell. At times Mr Patsalis has been able to occupy a two out cell with no other inmate and on other occasions he has had a cellmate. When medical certification as to his mental health issues was obtained on 23 February 2012 a determination was made that his need for the only one out cell in F block outweighed that of the then occupant. 45This was confirmed by Mr Warwick's evidence. He described the process by which Mr Patsalis was moved into the one out cell on 23 February 2012 and Inmate M was moved out. He stated that Inmate M had been on a waiting list for the one out cell for longer than Mr Patsalis and that he also wished to use it for the purpose of working on his legal proceedings. He stated that, in the absence of a medical certificate for Mr Patsalis, the one out cell would be allocated on the basis of which inmate has been on the waiting list longer. He stated that, if inmates did not perceive the system of allocation of one out cells as fair and equitable then there was a "risk of Mr Patsalis being harassed by other inmates in the wing for receiving preferential treatment". He confirmed that, as a result of the completion of the certificate at the direction of the psychiatrist on 23 February 2001, Mr Patsalis was assessed as the "category C1 inmate with the greatest medical need for a one out cell". 46As to the future position of Mr Patsalis, Mr Warwick stated that if another category C1 inmate at Dawn de Loas obtained a medical certificate indicating a greater medical need for a one out cell then Mr Patsalis would be removed from the one out cell in place of that inmate. In that event, accommodation would be found for Mr Patsalis that was "suitable, having regard to corrective services policies and procedures". 47I accept Mr Warwick's evidence.

Statutory Context and The Court's Jurisdiction 48Sections 232, 233 and 235 of the Act relevantly provide: "232 The Commissioner (1) The Commissioner: (a)has the care, direction, control of management at all correctional complexes, correctional centres and residential facilities, (a1)has the care, control and management of all offenders who are held in custody in accordance with part 2, 3 or 4, (b)has all other functions conferred or imposed on the Commissioner by or under this Act or any other Act or law. (2)In the exercise of the functions referred to in sub section (1)(a)(a1)(b), the Commissioner is subject to the direction and control of the Minister. (3)The Commissioner may delegate to any person any of the commissioner's functions, other than this power of delegation. (4)Sections 10(2), 11(3), 12 and 17(4) do not limit the power of the Commissioner to delegate functions under those sections. 233General Managers of correctional centres (1)The general manager of a correctional centre: (a)has the care, direction, control and management of the correctional centre; and (b)has all other functions conferred or imposed on the general manager by or under this or any other Act or law. (2)In the exercise of the functions referred to in subsection (1)(a) and (b) the general manager is subject to the direction and control of the Commissioner. (3)The general manager of a correctional centre may delegate to any person any of the general manager's functions, other than this power of delegation and other than any function delegated to the general manager by the Commissioner.' 235 Functions of correctional officers (1)The functions of the various ranks and classes of correctional officers are to be as determined from time to time by the Commissioner. (2)Commissioned correctional officers must at all times exercise their functions in connection with the administration and management of correctional complexes and correctional centres in such manner as the Commissioner, having regard to current circumstances, may from time to time direct. (3)The Commissioner may, by order in writing, authorise any person to exercise such functions of a correctional officer as are specified in the order, subject to such conditions as are so specified. (4)The functions so specified may include not only functions under this Act but also functions under any other Act or law. (5)In the exercise of any such function, a person so authorised is taken to be, for all purposes, a correctional officer". 49Further, I was referred in argument to regulation 33 of the Crimes (Administration of Sentences) Regulation which provides: "33 Accommodation (1)Each inmate must be housed in and occupy a cell by himself or herself, unless for medical or other sufficient reason it is necessary for inmates to be associated. (2)If it is necessary for inmates to be associated, the inmates required to be associated (whether in a cell or in dormitory accommodation) must be carefully selected. (3)Each inmate must be provided with a separate bed and sufficient clean bedding to suit the climatic conditions." 50There are at least two different jurisdictions the Court exercises when determining claims of the kind made by Mr Patsalis. 51First, there is the supervisory jurisdiction of the Court that is confirmed by s 69 of the Supreme Court Act 1970. The Court has the power to grant the various public law remedies if it can be established that a relevant body conferred with power or functions under the Administration Act has exceeded their authority, failed to perform some duty imposed by law upon them or threatens to do so. These remedies extend beyond those provided for in s 69 and include habeas corpus (see for example Kelleher v Corrective Services Commissioner of New South Wales & Anor (1987) 8 NSWLR 423). The judgment of Basten JA in R v Patsalis [2011] NSWCA 364 at [13] to [15] reveals that there is doubt as to whether persons placed in custody as a result of having committed a "serious indictable offence" can only invoke this jurisdiction if they obtain leave under s 4 of the Felons Act. Upon that I express no view. However, one limit on these powers is certain. They can go no further than declaring and enforcing the law. They are not a means of reviewing the merits of administrative action, to the extent that they can be distinguished from its legality, as they are matters for the "repository of the relevant power ... and that repository alone" (see Attorney General (NSW) v Quinn [1990] HCA 21; (1990) 170 CLR 1 at 34 to 41 per Brennan J especially at 36.2). 52Second, the Court has a narrower but potentially deeper jurisdiction that flows from its power to control its own processes. In Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 there was an attempt to seek declaratory relief to the effect that the conditions at Long Bay Gaol under which the plaintiff was able to communicate with his legal advisors were "not adequate or sufficient to enable proper consultation to be held between himself and his legal representatives". The plaintiff was facing serious criminal charges. The Court of Appeal held that, as a matter of discretion, such a suit should not be entertained and the plaintiff's complaint should be left to the criminal courts "to determine questions which arise before them in accordance with their own procedures" (per Moffiitt P at 322B, see also Hutley JA at 329 to 330; with whom Glass JA agreed at 331). The Court emphasised the powers of the judge or magistrate hearing the criminal proceedings "to obtain assistance in the provision of proper facilities" (per Hutley JA at 326G) and, failing their being provided, it was open for the accused to be admitted to bail or "as an ultimate sanction, a judge could actually discharge the accused, if the authorities had so misconducted themselves as to prevent the proper presentation of a defence" (per Hutley JA at 327A) (see for example R v Rich (2008) 184 A Crim R 161). Further if the prisoner's defence was impeded and they were convicted, then it was also open for the conviction to be set aside and a new trial obtained on the basis that the trial had miscarried (per Hutley JA at 326D). 53The remedies of bail, stay, discharge and overturning a conviction have no direct application to civil proceedings in which a prisoner is a plaintiff. There is obvious room for the extension of the reasoning in Smith to civil proceedings at least where the State is the defendant and thus can be the subject of directions designed to facilitate the conduct of the proceedings. If so directed, the State can exercise its powers in respect of the prisoner's custody to ensure that any such directions are complied with. It is unnecessary for me to consider further whether and, if so to what extent, the Court's power to control its own processes enable it to make orders affecting the circumstances of the incarceration of a prisoner who is a litigant in civil proceedings or contemplating civil proceedings against the State or its agencies. I note that this appears to be the basis upon which Schmidt J made the orders on 19 December 2011 noted above at [11]. 54One other potential source of power to grant relief in the form of Prayer 1 arose during argument. Consistent with the approach often adopted by those who appear for the Crown, Mr Hutton suggested that Mr Patsalis' claim could be characterised as an application for quia timet relief to restrain a threatened tort (negligence) in the event that there was an attempt to remove him from a one out cell. He drew my attention to the decision of Dunford J in Prisoners A to XX Inclusive v State of New South Wales (1994) 75 A Crim R 205 at 213.7 where his Honour appeared to accept that an injunction could be granted to restrain an act of negligence prior to any damage having been suffered (see also s 66(2) of the Supreme Court Act and R P Meagher, J D Heydon, M Leeming, Meagher, Gummow and Lehane's, Equity Doctrines and Remedies, 4th ed, (2002), Butterworths at [21]-[105]). 55An illustration of the exercise of both the jurisdictions referred to in [51] and [54] is JMR v Department of Juvenile Justice & Anor [1999] NSWSC 169 in which Studdert J rejected an application to restrain a proposed transfer of a prisoner from one correctional centre to another. At [23] to [48] his Honour considered and rejected a submission that the decision to transfer was "manifestly unreasonable" that being the ground of judicial review discussed in the judgement of Lord Greene in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229. Later at [57] to [84] his Honour considered and rejected a claim for quia timet relief to restrain the transfer on the basis that His Honour was not satisfied that the implementation of the transfer would breach a duty of care owed to the prisoner. 56Three matters should be noted about JMR. First, in JMR, although the transfer had not been effected, the decision to make it and the reasons for it were known. In this case no decision to remove Mr Patsalis from a one out cell has been made or appears to even be in contemplation. Second since JMR was decided ss 43(2) and 43A(2) of the Civil Liability Act 2002 have been enacted. In broad terms, they provide that no tortious liability can arise in respect of an exercise or failure to exercise a "function" or a "special statutory power" of a public body unless the relevant act or omission was 'in the circumstances so unreasonable that no authority having the [function or special statutory power] of the authority in question could properly consider the act or omission to be a reasonable exercise" of that function or power. Subject to the next point, that test has obvious similarities with Wednesbury unreasonableness (bearing in mind that it only applies to discretionary decisions: see Re Minister for Immigration and Multicultural Affairs; ex parte Applicant s20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [67], per Gummow J; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (HCA 16; (2010) 240 CLR 611 at [39] per Gummow ACJ and Kiefel J). Third one area of difference between the two approaches is the process of determining the facts upon which the relevant test is to be applied. With quia timet relief the Court will determine the facts. With judicial review of a discretionary decision and where no question of jurisdiction is involved, the facts will be those found or acted upon by the decision maker and the Court will only subject them to the standard of factual scrutiny discussed by Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355 to 359 (see SZMDS at [38] per Gummow ACJ and Kiefel J). 57I should also note that it maybe that the appropriate defendant(s) to these proceedings was the Commissioner and the relevant officers exercising duties and functions pursuant to the Administration Act. However Mr Hutton raised no point concerning this. He conducted the matter on the basis that his client was legally responsible for all such officers who exercised such functions and duties in relation to Mr Patsalis from time to time.

Amended Prayer 1 of the Amended Summons 58By the time the matter was heard before me Mr Patsalis had secured his transfer to Dawn de Loas and was residing in a one out cell. His amended Prayer 1 seeks to, in effect, permanently preserve this position "at all correctional centres and complexes that house him from time to time". 59The grounds specified in the Amended Summons contend that any failure to transfer Mr Patsalis to a one out cell would be manifestly unreasonable in the Wednesbury sense. His written and oral submissions moved to an approach that invoked negligence principles (and hence could be characterised as an application for quia timet relief). He pointed to each of ss 232(1)(b), 233(1)(b) and 235(4) of the Administration Act which repose in the Commissioner, general managers and correctional officers a responsibility to exercise such functions as may be specified "under any other act or law" (my emphasis). Next he contended that, by operation of the "law of negligence", an obligation arose, notwithstanding the terms of ss 232(1)(a) and 233(1)(a), to keep him in a one out cell at all times at all correctional centres that may house him. I do not accept that the "law" referred to in those provisions picks up the "law of negligence". However the possibility of quia timet relief of the kind considered in JMR may assist Mr Patsalis to overcome that difficulty. Mr Patsalis contended that a decision to move him would breach the duty of care that is owed to him. He submitted that there was a foreseeable risk of harm to him posed by other inmates especially inmates who might share a cell with him. It was said that a lack of care in the selection of inmates, taken together with his mental health issues made him especially vulnerable because of the increased likelihood that his behaviour might provoke a cell mate to assault him. 60Mr Hutton for the defendant disputes the grant of Prayer 1 on a number of bases. First, he relies on a number of decisions expressing caution about Courts interfering in prison management decisions (see for example Brazel v Acting Commissioner of Prisons (Vic) & Ors [2002] VSC 213; (2002) 130 A Crim R 142 at [26]). Second, he contended that, as a matter of principle, it is not open to seek mandatory relief to compel the exercise of discretionary power in a particular manner. Third, it was contended that the claim must be refused as hypothetical, dependent as it is upon future facts and circumstances. Fourth, he contends that that no reviewable error had been demonstrated. Fifth, insofar as Prayer 1 might be characterised as a claim for quia temit relief, he submits that it is not open for the Court to presently conclude that the removal of the Plaintiff from a one out cell at any time in the future would necessarily involve a breach of the duty of care at that time. 61In my view, there is no possible basis upon which the Court could grant the relief claimed in Prayer 1. 62First, I am not satisfied that the treatment of Mr Patsalis and his placement or failure to be placed in either a one out cell or two out cell involved any conduct on the part of those charged with the care and control of Dawn de Loas or any other correctional centre that could be characterised as either manifestly unreasonable or as a breach of any relevant duty of care. At Junee Mr Patsalis was assaulted. In response to that assault those in charge of that centre took action to house him in a one out cell. From the time he has been detained at Dawn de Loas the authorities have considered his circumstances and compared them with those of other detainees who also might have a need to occupy the one out cell. The evidence before me suggests that the decisions taken at Dawn de Loas since December 2011 were reasonable. Certainly the contrary has not been shown. 63Second, in my view there is no basis upon which I could find that to transfer Mr Patsalis out of a one out cell in Dawn de Loas or another correctional centre at some point in the future would necessarily be unreasonable, much less manifestly unreasonable or a breach of any relevant duty of care. Past experience at Dawn de Loas does not support any such finding. Whether or not it would be appropriate to remove him from a one out cell in the future will depend upon a number of future contingencies which would include, but not be limited to: Mr Patsalis' future classification, his future medical condition, the availability at some point in the future of a one out cell or a two out cell that only need have one occupant, the competing needs of other detainees at the relevant correctional centre and the suitability of other detainees to be placed in a cell with Mr Patsalis. 64Mr Patsalis seeks to confine the approach of determining whether a transfer could involve a breach of the duty of care owed to him to a contention that it would necessarily be a breach of that duty for the authorities to take any step that may increase the risk of harm to him. He seeks to thereby exclude the other considerations that inform any analysis of whether there is a breach of such a duty, such as the competing demands of other prisoners compared with the degree of increased risk flowing from such a decision. How can it be determined now that Mr Patsalis will always have the best claim to a one out cell? In contrast to the position in JMR, Mr Patsalis seeks to restrain a proposed act of negligence when the "act" has neither occurred nor is imminent and nothing is known about the context of, much less the reason for, any such "act" being taken. In these circumstances, one cannot embark upon the first stage of any inquiry necessary to determine whether there is a threatened excess of power or breach of duty of care. 65This demonstrates the force of Mr Hutton's submissions. Mr Patsalis' contention not only suffers from the vice that it effectively seeks to engage in a form of merits review of the exercise of discretionary powers conferred by the Administration Act, it suffers from the further vice that it seeks to conduct a hypothetical merits review in relation to a decision that has not yet been made. This is doubly objectionable. 66In so far as these proceedings involve an attempt to seek relief in respect of future events, I was referred to and adopt the following statement of Gillard J in Rich v Groningen & Ors (1997) 95 A Crim R 272 at 278: "Some of the issues raised by the plaintiff involve hypothetical situations. Further, they involve facts that are not in dispute between him and any of the defendants. Finally the exercise of powers and duties by prison authorities depends on factual situations which arise at a particular point in time and which are the subject of decisions made by officers in the day to day management and operation of a prison. The facts will change. The weight attached to such factors such as security, fire risk and good administration in management of the prison will vary considerably depending on the circumstances. Mr Shepherd submitted that in no circumstances a court should not make a declaration in relation to the exercise of discretion made in the course of making decisions except in circumstances where there is a dispute, facts are established and a finding is made. I agree". 67I have referred above to the terms of regulation 33. The regulation creates some form of obligation for inmates to be housed and occupy a cell "by himself or herself". It appears to only allow a departure from that position if an appropriate determination is made "for medical or other sufficient reason [that] it is necessary for inmates to be associated". On its face, this would appear to allow an inmate to obtain at least seek some form of relief enforcing the terms of regulation 33. This would also appear to enable a challenge to any determination as to whether "for medical or other sufficient reason" it was necessary for them to be "associated" with another inmate in their cell. I do not propose to further explore the various types of judicial review proceedings that might be taken in relation to this sub regulation. It is suffice to note that sub regulation 33(1) allows for an exception to the requirement that an inmate "be housed in and occupy a cell by himself or herself". This re-enforces my conclusion that the Court could not grant an injunction in the form sought by Mr Patsalis. Such an injunction would prevent that exception being invoked. 68The claim for relief in amended Prayer 1 of the Amended Summons is refused.

Prayer 9 of the Amended Summons 69Prayer 9 of the Amended Summons seeks to challenge the validity of part of the Manual used by the Department. It was not contended by Mr Hutton that this aspect of the relief sought by Mr Patsalis was precluded by the order made by Schmidt J on 26 July 2011. The order only prevented Mr Patsalis from pursuing relief in relation to "his documents". I did not interpret that order as precluding him from making a general challenge to the "validity" of parts of the Manual. Further, no issue was taken as to Mr Patsalis' standing to pursue Prayer 9. 70Part 9 of the Manual is headed "Inmate Private Property". Its purpose is stated as being to define "what property inmates may keep, store and receive, when in any place of detention, and establishes procedures to enable the manager/OIC of the inmate property store/reception room to manage inmate property". Part 9.3.1 sets out a list of personal items that inmates may possess, although not necessarily in their cells. Paragraph 9.3.1.1 provides as follows: "Inmates who wish to access their legal documents (printed versions) to prepare for their current court case or a future appeal are to be provided access to these documents in their cell. In the latter case, it is not necessary for an inmate to formally lodge an appeal to be granted such access. However, inmates will only be permitted to have one tub of documents in their cell at any one time. When the inmate has completed their review of the documents in a tub, it may be exchanged for other tubs containing legal documents. The officer-in-charge of the inmate property store is to manage this access. Inmates wishing access to their legal documents will be required to submit an application to the officer in charge of the inmate property store through the officer-in-charge of their accommodation unit." All inmates Quantity Legal proceedings affecting custody Standard storage tub (additional storage by negotiation with local management) All other legal proceedings Paper is to be kept in property storage tubs Additional storage may be available by negotiation with local management Storage tubs must be safe to handle

(emphasis added) 71Paragraph 9.3.3 provides: "Unsentenced Inmates and Appellants" All inmates Quantity Documents for current legal proceedings One standard storage tub Additional storage may be available by negotiation with local management Storage tubs must be safe to handle

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.

Transcript 94At the hearing, Mr Patsalis made a request for me to make a recommendation to the court reporting service to provide him with copies of the transcript of proceedings dated 27 January 2012 and all subsequent proceedings. As I understood it Mr Patsalis, in effect, requested that I exercise such power as I have to arrange for him to have copies of the transcript free of charge. 95I am not aware of any impediment to Mr Patsalis applying for copies of the transcript. The question of fee waiver and postponement is dealt with by the Registrar pursuant to cl 11 of the Civil Procedure Regulation. Mr Patsalis should pursue his request with the Registrar. Orders 96Consistent with my findings I will dismiss the Amended Summons. During the hearing I raised the question of costs with Mr Hutton. He accepted that if Mr Patsalis was successful in obtaining relief then he should have an order for his costs, but submitted that if the defendant succeeded then it sought costs. Mr Patsalis did not respond to this in his submissions in reply. I did not raise the matter specifically with him. 97My present view is that as Mr Patsalis has been unsuccessful he should pay the defendant's costs. However in the event that Mr Patsalis wishes to make any submission to the contrary I will defer making an order as to costs for seven days to enable him to make any submission in writing on that issue which should not exceed five pages. If no such submission is received then I will proceed to make a costs order in favour of the defendant. If the defendant wishes to respond to any submission that Mr Patsalis may make then it should do so within two working days. 98Accordingly the orders of the Court are: 1.The Amended Summons be dismissed. 2.Direct that any submission of the plaintiff concerning costs be filed and served within seven days and that it not exceed 5 pages in length. 3.Direct that any submission of the defendant in reply to the plaintiff's submissions be filed within two working days of the plaintiff's submissions and not exceed three pages in length. 4. There be liberty to apply in respect of the directions concerning costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 March 2012