Supreme Court New South Wales Medium Neutral Citation: Lawrence v Commissioner of Corrective Services [2024] NSWSC 855 Hearing dates: 26 June 2024 Date of orders: 15 July 2024 Decision date: 15 July 2024 Jurisdiction: Common Law Before: Davies J Decision: (1) Pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) I vary the order of the Registrar made 23 March 2024 by setting aside the subpoena issued by the plaintiff on1 December 2023 except as to paragraphs 6 and 9c. (2) The Proper Officer, DCJ Legal, Department of Communities and Justice is to produce documents (if any) referred to in paragraphs 6 and 9c subject to any claim for client legal privilege and public immunity by 22 July 2024. (3) In lieu of the costs order made by the Registrar, the plaintiff is to pay 80% of the defendants' costs of the application before the Registrar. (4) The plaintiff is to pay 80% of the defendants' costs of the present notice of motion. Catchwords: CIVIL PROCEDURE – subpoenas – review of Registrar's decision to set aside – subpoena issued in administrative law proceedings – review of decisions to place plaintiff in protective and segregated custody whilst on remand – legal unreasonableness – where decision-makers provided statements of reasons – where subpoena sought documents relating to the preparation of those reasons – where plaintiff seeks to challenge credit of decision-makers through cross-examination – misapprehension of administrative law proceedings – credibility not in issue – not a merits-based inquiry – except in two instances decisions-makers have appropriately annexed documents they relied on – legitimate forensic purpose in seeking documents referred to but not annexed – remainder of subpoena goes beyond what is needed for proper conduct of proceedings – subpoena set aside except for two paragraphs Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW) ss 10, 11, 72A Crimes (Administration of Sentences) Regulation 2014 (NSW) Supreme Court Act 1970 (NSW) ss 23, 69, 75A Uniform Civil Procedure Rules 2005 (NSW) rr 2.1, 33.6, 49.19, 59.7, 59.9 Cases Cited: Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935 One Tel (in liq) – SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491 Park Oh Ho and Ors v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637; [1989] HCA 54 Portal Software v Bodsworth [2005] NSWSC 1115 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Thomas v SMP (International) (No 2) [2010] NSWSC 870 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Trade Practices Commission v Arnotts (Limited) No 2 (1989) 103 ALR 90; [1989] FCA 340 Texts Cited: Nil Category: Procedural rulings Parties: Tukiterangi Lawrence (Plaintiff) Commissioner of Corrective Services (First Defendant) Governor of Long Bay Hospital Correctional Centre (Second Defendant) Justice Health and Forensic Mental Health Network (Third Defendant) Representation: Counsel: N Funnell (Plaintiff) H Ryan (Defendants) Solicitors: O'Brien Criminal and Civil Solicitors (Plaintiff) Crown Solicitor's Office (NSW) (Defendants) File Number(s): 2023/275298 Publication restriction: Nil JUDGMENT 1. The plaintiff seeks a review of the decision of Registrar Jones made on 23 March 2024 setting aside a subpoena issued by the plaintiff on 1 December 2023. 2. The notice of motion filed by the plaintiff on 8 April 2024 seeks that the order made by the Registrar be set aside and that an order be made pursuant to s 23 of the Supreme Court Act 1970 (NSW) and rr 2.1 and 33.6(4) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") that the subpoena is to be complied with. 3. The notice of motion also seeks an order that the defendants pay the plaintiff's costs of the motion, that they pay the plaintiff's costs thrown away by non-compliance with the subpoena and an order that the Registrar is to refrain from making orders as to costs in the proceedings until the present notice of motion is determined. The last order arises because the Registrar granted the parties liberty to restore the matter within 14 days to make submissions on costs but went on to provide that in the absence of the matter being restored during that period, the plaintiff was to pay the defendant's costs of the notice of motion. Since it does not appear that the matter was restored to the Registrar's list within 14 days, the effect of what the Registrar provided must be that an order has been made for the plaintiff to pay the defendant's costs of the notice of motion that brought the matter before the Registrar. 4. The application was heard on 26 June 2024. Counsel for the plaintiff sought leave to file supplementary submissions on the question concerning the futility of making an order in the nature of certiorari or a declaration where each of the challenged decisions was no longer in force for one reason or another. Those submissions were filed on 5 July 2024. The defendant's submissions in reply were filed 9 July 2024. The proceedings are listed for final hearing on 30 and 31 July 2024. Background 1. On 18 February 2021, the plaintiff was charged with terrorism-related offences with the intended target of the terrorism plot being employees of the Department of Corrective Services. On 27 November 2021, whilst on remand for the offences, the plaintiff suffered catastrophic injuries during the use of force in an incident at the High Risk Management Correctional Centre at Goulburn. He is now a tetraplegic. 2. Between 27 November 2021 and 27 January 2023 he was an in-patient at the spinal injuries unit at Prince of Wales Hospital while he was on bail relating to his treatment. On 28 January 2023, his bail was revoked and he was detained at Long Bay Correctional Centre. Whilst he was held at that facility, three decisions were made under ss 10 and 11 of the Crimes (Administration of Sentences) Act 1999 (NSW) with respect to the plaintiff as follows: (a) decision dated 12 May 2023, that the plaintiff be placed in protective custody at Long Bay Hospital Correctional Centre under a Protective Non-Association Classification; (b) decision dated 30 June 2023 (direction number LBH1221789), that the plaintiff be held in segregated custody at Long Bay Hospital Correctional Centre for 14 days commencing on 30 June 2023; and (c) decision dated 12 July 2023, that the initial segregation decision be continued for a further three months commencing on 30 June 2023. 1. On 30 May 2023, the protective custody decision of 12 May 2023 was revoked. The decision made 30 June 2023 expired after 14 days and the decision made 12 July 2023 was revoked on 14 September 2023. 2. The plaintiff commenced the present proceedings on 29 August 2023 challenging those decisions. The proceedings are administrative law review proceedings under Part 59 of the UCPR. The present form of the summons is a further amended summons filed 30 October 2023. That was the form of the summons that was before the Registrar. 3. The further amended summons seeks an order in the nature of certiorari quashing the decisions. The summons also seeks an order in the nature of mandamus that the second defendant supply the plaintiff with necessary medical attendance, treatment and medicine pursuant to s 72A of the Crimes (Administration of Sentences) Act 1999 (NSW). In the alternative, the summons seeks habeus corpus that the plaintiff's current medical treatment at Long Bay Hospital Correctional Centre be amended to provide him with medical treatment necessary for the preservation of his health, including by adequate daily carers assistance, adequate monitoring and treatment of the plaintiff for episodes of autonomic dysreflexia and adequate physiotherapy and/or otherwise providing him with medical treatment in compliance with the provisions of the Crimes (Administration of Sentences) Act and the Crimes (Administration of Sentences) Regulation 2014 (NSW). The summons also seeks declaratory relief that the plaintiff's placement in protective custody on 12 May 2023, that his segregation commencing 30 June 2023 and its continuation on 12 July 2023 was unlawful and that his medical treatment in Long Bay Hospital Correctional Centre from 27 January 2023 to the present has been contrary to the Act, the Regulations and is unlawful. 4. On the day the original summons was filed, the plaintiff's solicitor also filed and served a notice of motion seeking discovery, without seeking or having sought the leave of the Court pursuant to r 59.7(4) of the UCPR. 5. On 15 September 2023, the solicitor from the Crown Solicitor's Office, acting for the defendants, advised the plaintiff's solicitor that the segregation order (being the decisions of 30 June and 12 July 2023), had been revoked on 14 September 2023. On 18 September 2023, the plaintiff's solicitor forwarded an amended summons together with a request for "statements of reasons" pursuant to r 59.9 of the UCPR, and advised that the plaintiff intended to press his application for relief in respect of the three decisions notwithstanding their revocation. 6. On 20 October 2023, statements of reasons were served by the defendants. The statements of reasons attached documents referred to in the reasons. 7. On 30 October 2023, the further amended summons was filed and served. 8. On 23 November 2023, the plaintiff was sentenced by Ierace J in respect of the terrorism-related offences. He is first eligible for parole on 22 November 2025. 9. On 1 December 2023, the solicitor for the plaintiff advised that the plaintiff did not intend to press his notice of motion for discovery, and enclosed the subpoena filed on 1 December 2023, the subject of the present motion. The subpoena is attached as an annexure to this judgment. The Registrar's Decision 1. The plaintiff had argued before the Registrar that the credit of the decision- makers was a significant matter to be tested and determined at the final hearing. It was chiefly for that reason that the plaintiff required the documents identified in the subpoena. 2. The Registrar held that the material sought in the subpoena must have the capacity to throw light on the issues of the main case. The Registrar relied on what was said in Trade Practices Commission v Arnotts (Limited) No 2 (1989) 103 ALR 90; [1989] FCA 340, Portal Software v Bodsworth [2005] NSWSC 1115 and One Tel (in liq) – SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491 at [31]. 3. The Registrar held that no issue was identified in the pleadings in relation to the credit of the relevant persons. The Registrar did not accept the plaintiff's submission that the fact that statements of reasons were drafted some months after the decisions somehow put into question the credibility of the decision- makers due to a purported potential for them to tailor their reasons to justify their decisions. In that regard, the Registrar relied on what was said in Thomas v SMP (International) (No 2) [2010] NSWSC 870 at [19]. 4. The Registrar did not accept the plaintiff's submissions that the decision in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 ("Blacktown City Council;") gave support for the issuing of a subpoena to obtain documents going to credit. 5. The Registrar also considered the subpoena was too broad and oppressive because it would require a manual review of a large number of documents to establish whether they related to such things as the plaintiff's conduct. It would also require the officials to search and produce records from their personal devices in relation to a wide range of subject matters and covering the relevant period. 6. The Registrar said it was not the role of the Court to re-draft subpoenas that are an abuse of process, relying on Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303 at [25]. 7. For those reasons, the Registrar held that the subpoena should be set aside. Review of a Registrar's Decision 1. The power to review a Registrar's decision is contained in r 49.19 of the UCPR which relevantly provides: 49.19 Review of registrar's directions, certificates, orders, decisions and other acts (1) Subject to subrule (2), if in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit. 1. The proper approach to exercising the review power contained in that rule is set out in Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369, where Basten JA (Ipp JA agreeing and Hodgson JA agreeing with additional reasons) said: [43] The term "review" may be said to have "a quite amorphous meaning" as noted by Burchett J in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 63-64. The meaning will often depend upon the statutory context. In Re Greenhill; Ex parte Pook (1988) 83 ALR 295, Gummow J thought that the term had been deliberately used in the Bankruptcy Act 1966 (Cth) rather than the term appeal "with an eye to the complex history that has attended the question of the exercise of the judicial power of the Commonwealth other than by judges": at 296(50) referring to Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49 at 63-64, to which may now be added reference to Harris v Calladine (1991) 172 CLR 84. In federal jurisdiction, a review is taken to mean a re-examination of a matter afresh, not limited to reconsideration of the material before the primary decision-maker: see Re Brindle; Ex parte FB & FA McMahon Pty Ltd (1992) 35 FCR 506 at 509 (Hill J). It may be found to have a similar meaning in an administrative context: see, eg, SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at [199] (Hayne J). [44] In Comalco Aluminium Ltd v Ohtsu Tyre & Rubber Co (Aust) Pty Ltd (1983) 8 ACLR 330, McLelland J held that a review of a registrar's decision to dismiss a summons for the winding up of a company, could be by way of a hearing de novo, on evidence a substantial part of which had not been before the registrar. McLelland J referred to his earlier decision of 12 September 1983 (unreported) in which he considered the principles on which an application to review the decision of a registrar should be approached. However, that decision was largely limited to the question whether the review was a form of appeal subject to s 75A of the Supreme Court Act, or whether it should be treated as a de novo hearing, not subject to such constraints. His Honour considered that a review under Part 61, r 3 was not an "appeal" and therefore approached the matter in the way described in the reported judgment. [45] A similar approach has been generally adopted in the Divisions in this Court: see particularly the judgment of Hall J in Lawteal Pty Ltd v Ofo [2006] NSWSC 365 at [57]-[60]. The views expressed in a number of the unreported decisions referred to by his Honour are succinctly summarised by Santow JA in Wentworth v Graham (2002) 55 NSWLR 638 at [9] stating, after referring to his own earlier decision in Westpac Banking Corporation v Abemond Pty Ltd (NSWSC, 3 November 1994, unrep): "… [T]he consideration that the registrar's decision involves a matter of practice and procedure remains a relevant consideration in the exercise of the power of review. Accordingly, it is proper for the court to exhibit a natural inhibition against the unrestrained substitution of the reviewing court's views in a matter of practice and procedure for those of the original tribunal." [46] That a "review" of the decision of the registrar pursuant to r 49.19 is not an appeal means that principles of restraint expressly adopted in relation to appeals do not, in terms, apply: c.f. Wentworth v Wentworth at [41] above. Further, the requirement to demonstrate error, which is an essential part of the appellate process, is also not applicable: see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14] and CDJ v VAJ (1998) 197 CLR 172 at [111]. To introduce those constraints as applicable in the case of a procedure identified expressly as a "review" would be to impose constraints inconsistent with the language of the rule. [47] Nevertheless, the policy identified by Jordan CJ in In Re the Will of FB Gilbert (dec'd) (1946) 46 SR (NSW) 318 at 323 has force. In referring to appeals in respect of points of practice or procedure, his Honour stated: "… [I]f a tight reign were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal." [48] That is no doubt a factor which may be taken into account on a review, but it must bear a good deal less weight than on an appeal if the process of review is not to be subverted. Even in relation to an appeal, as Jordan CJ noted in Gilbert, a distinction should be drawn between "an exercise of so-called discretion which is determinative of legal rights" and a simple matter of practice and procedure, a distinction approved in Ellis v Leeder (1951) 82 CLR 645 at 653 (Dixon, Williams and Kitto JJ). 1. Justice Hodgson (with whose additional remarks Ipp JA agreed) said: [5] I agree that the view expressed by Basten JA in Pioneer Park Pty. Limited (In Liquidation) v. Australia & New Zealand Banking Group Limited [2007] NSWCA 344, on the basis of limited argument, that the review of a registrar's decision with respect to an order for security for costs is constrained by the principles stated in House v. The King (1936) 55 CLR 499, is not strictly correct. [6] I agree that a review of a decision of a registrar is not an appeal, subject to s 75A of the Supreme Court Act; and that in such a review a court must exercise its own discretion. [7] In my opinion, this discretion extends to a discretion as to whether, and if so how, to intervene; and in my opinion, there is an onus on a person seeking to have a court set aside or vary a registrar's decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so. [8] In the case of a decision on practice or procedure, this will normally require at least demonstration of an error of law, or a House v. The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one. [9] In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v. The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing. [10] In my opinion, this approach is consistent with the position that such reviews are not appeals and involve the exercise of discretion by the reviewing body; and with the policy considerations referred to by Jordan CJ in In Re the Will of Gilbert (1946) 46 SR (NSW) 318 at 323. It is also consistent with the general principles concerning interlocutory applications: they do not finally decide matters, and successive applications can be brought for the same orders; but generally, a later application for orders that have previously been refused will be summarily dismissed unless a change of circumstances is shown or there is evidence satisfying the strict requirements for fresh evidence. 1. In Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndam Chemicals [2012] NSWSC 935, Hallen AsJ (as his Honour then was) set out relevant principles from various authorities relating to the nature of a review of a Registrar's decision as follows: [39] … (a) The review power conferred is not an appeal and, accordingly, is not subject to the limitations that apply to proceedings by way of appeal: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [6], [10], [50], [52]; Al-Shennag v Statewide Roads Pty Limited [2009] NSWSC 210 per Hall J at [44]-[46]; it is "not restricted" to a reconsideration of the primary material before the Registrar: Lollback v Brakepower Pty Ltd [2010] NSWSC 1457 at [10]. (b) It is unnecessary for the applicant for review to demonstrate any material error of fact, or principle, in the order under review. On the review, the court may exercise its powers regardless of error. However, review, in the relevant sense, involves discretionary intervention: Tomko v Palasty (No 2) at [52]; Lollback v Brakepower Pty Ltd at [13]; the discretion extends to a discretion whether, and if so, how, to intervene. (c) The conduct of the review is at large and in the discretion of the Court. Notwithstanding the foregoing, the review is not accurately described as a hearing de novo: Perpetual Ltd v Barghachoun [2010] NSWSC 108 at [3], although it involves many of the features of a hearing de novo. (d) There is an onus on a person seeking to have a court set aside, or vary, a registrar's decision to make out a case that the court conducting the review, in the interests of justice, should exercise its discretion to do so: Tomko v Palasty (No 2) per Hodgson JA at [7]. In other words, there must be a basis shown for setting aside, or varying, the decision or orders of the registrar. (e) Although on review, the Court should consider the matter afresh, it does not follow that the reasoning of the registrar should be ignored, or that variations in the material presented to her, or him, and the evidence that was adduced are irrelevant. The starting point is, therefore, the decision that is to be reviewed. The court does not merely cast that decision to one side and proceed as if it had never been made. The court will have regard to the basis on which the decision was made and the material placed before the court itself on the application for review: Wily re LED (South Coast) Pty Ltd [2009] NSWSC 946 at [24] - [26]. The real question is whether there are any grounds, or any reasons, which would warrant a review of the orders that have been made by the registrar: Al-Shennag v Statewide Roads Pty Limited at [47]. (f) What will be required to make out a case for intervention will vary depending upon the nature of the registrar's decision under review: Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260, per Preston CJ at [12]. However, the court should inform itself of the material before the registrar at the time when he, or she, made the decision, should consider the reasons for the decision, and then should make its own decision based on the material before it after having the benefit of the submissions of each party. (g) It is proper for the Court to exhibit a natural inhibition against the unrestrained substitution of the reviewing Court's views for those of the registrar: Westpac Banking Corp v Abemond Pty Ltd; Westpac Banking Corp v Cameron (NSWSC, 3 November 1994, unreported). (h) When it comes to matters of practice and procedure, there should be a natural inhibition against overturning a registrar's decision: Wentworth v Graham [2002] NSWSC 397; (2002) 55 NSWLR 638 at 640-641. However, where substantive error is established, then the Court would consider reviewing the registrar's decision and would make such other order as it is authorised to make: Al-Shennag v Statewide Roads Pty Limited at [46]. (i) In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a Court may be more willing to intervene. It may permit further evidence to be led that does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v R (1936) 55 CLR 499 error is shown, again if it is satisfied that the interests of justice require this: Tomko v Palasty (No 2) at [5]-[9], [50], and [52]. (j) If fresh, or additional, evidence, is produced, it may be received by the court and taken into account (Fenwick v Wambo Coal Pty Limited [2011] NSWSC 176, per White J, at [46]), or the court may refer the matter back to the Registrar for consideration as a fresh application: Portal Software v Bodsworth [2005] NSWSC 1115 at [17]. The court may be more inclined to intervene on a review based on fresh evidence, changed circumstances, or where error is demonstrated in the decision under review: Tomko v Palasty (No 2) at [52]. (k) The decision of the registrar stands until it is set aside: Lawteal Pty Limited v Ofo [2005] NSWSC 984, per Malpass AsJ at [19]. (l) The registrar must give sufficient reasons for his, or her, decision: Thompson v New South Wales Land and Housing Corporation [2008] NSWSC 74 per Malpass AsJ at [9] - [16]. Submissions 1. The plaintiff submitted that the statements of reasons by the decision-makers were prepared after the substantive proceedings were commenced by the filing of the summons on 29 August 2023 and in response to orders made by the Court pursuant to r 59.9 UCPR. The plaintiff submitted that most of the documents requested by the subpoena relate to the circumstances surrounding the preparation of those statements of reasons and the reasonableness of the decision-making processes to which they attest. The plaintiff submitted that, in seeking the documents, he is attempting both to establish that the statements do not correspond with the true reasons or processes according to which the three decisions were made and, perhaps in the alternative, to establish that the processes adopted by the relevant decision-makers were unreasonable. 2. In his written submissions, the plaintiff has classified the documents he seeks into seven categories. The submissions describe them in this way: a. Category 1: documents referred to in the statements of reasons. These documents, including intelligence reports, records of complaint and notes taken during briefings, can be taken as material relied on by the respective decision-makers for the purposes of their decisions. In seeking access to these documents, the plaintiff seeks to establish that the processes adopted by the decision-makers were unreasonable. b. Category 2: documents referred to or otherwise related to matters raised in the statements of reasons' annexures, including information notes and local intelligence holdings. In seeking access to these documents, the plaintiff once again seeks to establish the relevant decision-making processes were unreasonable, and perhaps also that they reflected a failure to make necessary factual inquiries. c. Category 3: documents, mainly comprised of correspondence between the defendants' staff members but also including documents received by Kent Dalton, the Senior Assistant Superintendent at Long Bay, concerned with the processes actually adopted at the times of the three decisions. The need for these documents arises in part because of the preparation of the statements of reasons so long after the decisions were made, and in circumstances where proceedings had already been commenced by the plaintiff. The plaintiff seeks to establish whether the statements correspond with the "true reasons" for which the decisions were made and with the processes that were actually adopted in making them. d. Category 4: documents consisting of correspondence involving the three decision-makers, correspondence involving Mr Dalton and draft versions of the statement of reasons. The plaintiff seeks these documents to challenge the credibility of the decision-makers with respect to the matters discussed in their statements of reasons, with a particular view to cross-examining the decision-makers at trial. e. Category 5: documents consisting mainly of relevant correspondence, concerning the revocation of the 3-month segregation decision and the plaintiff's subsequent release from segregation at Long Bay within a fortnight of the commencement of the substantive proceedings. The plaintiff seeks these documents to establish that the segregation decision was legally unreasonable in the first place. f. Category 6: other, miscellaneous documents concerning the general processes in place for the making of protective custody and segregated custody orders at the relevant times. The plaintiff seeks these documents to establish whether the making of the three decisions complied with these processes or policies. g. Category 7: documents concerning the plaintiff's medical care at Long Bay, including during his periods of protective and segregated custody." 1. The plaintiff submitted that the Registrar was in error in relying on what was said in Thomas for her conclusion that the plaintiff could not seek the production of documents concerning the decision-makers' credibility. The plaintiff submitted that it was not required to plead issues of credibility. He submitted that where the credibility of a witness is or is likely to be a material issue in a proceeding, a subpoena will likely have a legitimate forensic purpose. The plaintiffs submitted that only some of the documents in the subpoena concern "only" the issue of the decision makers' credibility. 2. The plaintiff submitted that credibility is relevant to the issues of the decisions being legally unreasonable or affected by legal error. That is because the credibility issues will have significance for the underlying factual issues in the proceedings. 3. The plaintiff submitted that the vast preponderance of the documents requested in the subpoena go to establishing the decision-making processes the subject of judicial review. 4. The plaintiff submitted that the Registrar was in error in determining that the subpoena was too broad and oppressive because it would require a manual review of a large number of documents to establish whether they related to such things as the plaintiff's conduct. The plaintiff submitted that the fundamental basis of oppression is that the recipient of a subpoena is unclear as to the documents they are to search for and produce in response to the subpoena. If a subpoena calls for a large number of documents it will be unduly burdensome only if it requires production of many documents that are insufficiently relevant to the litigation. 5. The defendant submitted that the invocation of the Court's power in administrative review proceedings was exceptional, and attention was drawn to r 59.7 UCPR. 6. The defendant submitted that the plaintiff has made no real attempt to demonstrate that the documents will materially assist on the issues to be decided. The defendant submitted that there is no reason to think that seeking the further swathe of documents is likely to shed any further light on the decision-making process. 7. The defendant submitted that the subpoena is oppressive for the amount and type of documents sought, and compliance would be unduly onerous. In any event, it is being used as a substitute for discovery, with the notice of motion filed for discovery with he summons attesting to that. Consideration 1. The plaintiff's arguments are ultimately based on a misapprehension of how administrative law proceedings are conducted. The Court's power derives from s 69 of the Supreme Court Act 1970 (NSW), and subs (3) provides that for an order in the nature of certiorari, an error of law that appears on the face of the record must be shown. The "face of the record" includes, by subs (4) the reasons expressed by the decision-maker. 2. The plaintiff intends to challenge the decisions on the basis of legal unreasonableness. What constitutes legal unreasonableness is discussed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [65]-[76]. As the judgment of Hayne, Kiefel and Bell JJ says at [66]: [T]here is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. 1. They also said at [75]: In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that "guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion". House v R holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent. 1. In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Kiefel CJ said: [10] In the joint judgment in Minister for Immigration & Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal's decision in the present case. [11] Statements such as that made in the Wednesbury case,that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies. 1. The plaintiff made clear that he wants the documents identified in the subpoena to show that the decisions were legally unreasonable. He intends to do that by cross-examining the three decision makers. Some of the challenges will go to the credibility of the decision-makers as categories 3 and 4 make clear. 2. Administrative law proceedings are not dealt with by cross-examining the decision makers. They are determined on an analysis of the reasons provided for the decision. Error of law is the key to the enquiry. Whether the decisions are legally unreasonable will be determined having regard to the statutory basis for the decisions (ss 10 and 11 of the Crimes (Administration of Sentences) Act) and the reasons provided by the decision makers. The fact that the reasons were provided after the decisions were made pursuant to a requirement made under r 59.9 of the UCPR does not change the way the proceedings are conducted. 3. An investigation into whether the reasons put forward by the decision makers were the "true reasons", as the plaintiff asserts, is to engage in a merits enquiry about the decisions themselves. For that reason, for example, expert evidence is not ordinarily admissible in judicial review proceedings: North East Forest Alliance Incorporated (INC 1601738) v Forestry Corporation of NSW [2023] NSWLEC 124 at [160]. 4. Affidavits have not been filed by the decision-makers, nor would that be expected. Their credibility will not be in issue. Their decisions will be determined to be proper and valid decisions unless an error of law is shown, including a finding that the decisions were legally unreasonable. Any declaration made will be made on the same basis because any other basis would amount to a merits-based enquiry. 5. Except in two instances, to which I will come, the decision-makers have appropriately annexed to their reasons the documents on which they rely. Legal unreasonableness will be determined on the basis of those documents, the reasons provided and the statutory framework under which the decisions were made. 6. Whether a subpoena should be set aside because it involves or amounts to an abuse of process has been comprehensively dealt with in Blacktown City Council. In that case Bell P (as the Chief Justice then was) said: [65] It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are "apparently relevant" or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent. … [69] If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside. To that extent, the statement in Chidgey at [59] that mere relevance is "not sufficient", and a similar statement in Carroll at 182 that "mere relevance is not enough" may, with respect, be apt to mislead or confuse. In the latter case, Mahoney AP said at 182 that a party issuing the subpoena: "must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: 'I wish to see the document to see if it may assist my case.' That, in my opinion, is not sufficient." There is a very subtle distinction at play in this passage which, in my view, is undesirable, is inconsistent with many of the authorities referred to above, and has the potential to lead to the unwarranted setting aside of subpoenas or refusals to inspect documents. Where apparent relevance of the documents subpoenaed to the issues in the case or to the cross-examination of a witness or witnesses is established, this should not generally lead to the setting aside of a subpoena. As King CJ put it in Carter at 453, where a document or documents sought by subpoena by their nature have a "bearing on the issues in the case and may well have evidentiary value", a subpoena seeking such a document or documents will not amount to fishing. … [70]… Provided, however, that the documents sought are apparently relevant to the issues that have or are likely to arise in the proceedings or have some evidential value (which may extend to value for the purposes of cross-examination, including testing the credit of witnesses including expert witnesses), to the extent it may be necessary to establish a legitimate forensic purpose, such a purpose may be presumed. 1. Significantly, Bell P also said at [59]: Another important matter informing the Court's consideration of what is required for the interests of justice in a case such as the present will be the nature of the proceedings and any legislative guidance as to the procedure to be followed in particular classes of proceedings, such as s 38 of the Land and Environment Court Act, extracted at [4] above, which arguably favours a more generous approach to the scrutiny of subpoenas than in ordinary, adversarial civil litigation. The importance of the procedural context in which a subpoena is issued has been identified by Benjamin Coles in "The Confetti of the Justice System – Subpoenas, Justice and Third Parties" (2016) 42(3) Australian Bar Review 385 at 396-398, 407-408. 1. The proceedings in Blacktown City Council were Class 3 proceedings in the Land and Environment Court where the Court was not bound by the rules of evidence. That is why the importance of what was said by Bell P at [59] can be seen. 2. On the other hand, r 59.7 UCPR provides: 59.7 Procedure—evidence generally (1) Evidence is to be given by way of affidavit, unless the court directs otherwise. (2) Affidavits are to be served on the other parties in accordance with any timetable fixed by the court. (3) Cross-examination is permitted only by leave of the court. Leave should, if practicable, be sought prior to the hearing. (4) A party may not, without the leave of the court, seek discovery from, or interrogate, another party to the proceedings. An application for leave is to include a draft list of categories of documents to be discovered or draft interrogatories. 1. This rule is a regulatory enactment largely reflecting the way administrative law proceedings have historically been conducted. As a matter of practice, the affidavits to which r 59.7(1) refer will simply contain the decision or decisions challenged, the reasons for the decisions and documents relied upon by the decision makers. 2. Administrative law proceedings, like appeals confined to a question of law, are conducted in a wholly different way procedurally, from cases where the parties adduce evidence. In that way, in the ordinary conduct of administrative law proceedings, a party will have considerable difficulty in establishing some legitimate forensic purpose for the documents sought in a subpoena. The fact that a declaration is sought to similar effect as an order in the nature of certiorari does not change that. The form of the declarations sought makes that clear; the decisions are said to be unlawful, not wrong. 3. In relation to the decision of Glen Piazza of 12 May 2023, the documents relevant to his decision are annexed to the reasons. The documents sought in paras 1 to 4 of the Subpoena are documents which are only relevant to either or the merits of the decision made or to Mr Piazza's credibility, or both. In that way, no legitimate forensic purpose is demonstrated. 4. In relation to the decision of John Harrison of 30 June 2023, the documents sought in paras 5 and 7 are similarly only relevant to the merits of the decision or the credibility of Mr Harrison. In my opinion, the documents sought in para 6 are in a different category. In paras 15 and 19 of the reasons, Mr Harrison refers to reports he relied on which, except for Annexure B, are not identified. Ordinarily, such documents should be available for scrutiny. In paras 10 and 11 he refers to briefings he received from various people. The subpoena seeks copies of any notes taken during such briefings. If such notes exist, they are relevant to the decision made in circumstances where he clearly relied on those briefings in reaching his decision. The documents sought in para 6d may involve issues of public immunity. 5. In relation to the decision of Michael Williams of 12 July 2023, the documents sought in paras 8 and 10 are only relevant to the merits of the decision or to the credibility of Mr Williams. 6. The delegation to Mr Williams sought in para 9a is not challenged in the Summons. The OIMS modules sought in 9b are not relevant to the challenges to the decision , but the Case Note reports sought in paras 9c are relevant since they are referred to by him but not annexed. 7. The subpoena seeks what are referred to as Kent Dalton documents. Mr Dalton was a Senior Assistant Superintendent at Long Bay Correctional Centre and is referred to in Mr Harrison's reasons as having provided briefings including a briefing note. He was not a decision maker being challenged. Material sought from him in paragraph 11 only goes to the merits of the decision, or decisions as to matters of credit as the plaintiff's counsel acknowledged. 8. The documents sought in paras 12 to 17 only go to the merits of the decisions or to the credibility of the decision-makers. 9. There is, however, a further issue. The three decisions being challenged are no longer in place, two because they have been revoked, and one because it was self-limiting in time. That raises the issue about whether an order in the nature of certiorari is likely to be made because such an order would be futile. Similarly, as a matter of discretion, will a declaration to the same extent be made? 10. In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 the Court said at [25]: The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an "apparent legal effect". An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable. (citation omitted) 1. The plaintiff submitted that what was said by the High Court in Park Oh Ho and Ors v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637; [1989] HCA 54 at least justified the granting of a declaration about the unlawfulness of the decisions. It was submitted further that such a declaration in the present matter would avoid unnecessary litigation on the same issue in subsequent proceedings by the plaintiff for damages. 2. If, as the plaintiff submits, the decisions were unlawful and he wishes to claim damages for some form of false imprisonment notwithstanding he is otherwise lawfully imprisoned, it is not at all clear why he needs to undertake the present proceedings in advance of the damages proceedings to have a finding of unlawfulness made. Whether someone's detention is unlawful is an essential element in a claim for false imprisonment. 3. However, I do not consider that it is part of my role to anticipate what the Court hearing the present judicial review proceedings might determine about the futility of granting certiorari or how the discretion might be exercised in granting or refusing a declaration. 4. It is true that the Registrar's decision was one concerning practice and procedure and was one that did not involve the determination of final rights. However, it would normally be expected that those acting for the decision makers would place before the court all relevant documents referred to in the reasons of those decision makers. In relation to Mr Piazza, that has occurred. In relation to Mr Harrison and Mr Williams the subpoena demonstrates a legitimate forensic purpose in seeking documents actually referred to in the reasons but not annexed, and also in seeking contemporaneous notes (if they exist) of what are said to be oral briefings which formed part of the decision-making process. 5. The remainder of the documents sought go well beyond what are needed for the proper conduct of the proceedings. No legitimate forensic purpose is demonstrated in respect of the balance of the documents sought. Conclusion 1. The Registrar's decision should be varied so that the subpoena should be set aside, except in relation to the documents sought in paragraphs 6 and 9c. 2. In relation to costs, the plaintiff has been largely unsuccessful. In my opinion, the plaintiff should be ordered to pay 80% of the defendant's costs both before the Registrar and of the present notice of motion. 3. I make the following orders: 1. Pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) I vary the order of the Registrar made 23 March 2024 by setting aside the subpoena issued by the plaintiff on1 December 2023 except as to paragraphs 6 and 9c. 2. The Proper Officer, DCJ Legal, Department of Communities and Justice is to produce documents (if any) referred to in paragraphs 6 and 9c subject to any claim for client legal privilege and public immunity by 22 July 2024. 3. In lieu of the costs order made by the Registrar, the plaintiff is to pay 80% of the defendants' costs of the application before the Registrar. 4. The plaintiff is to pay 80% of the defendants' costs of the present notice of motion. ********** ANNEXURE A The documents or things you must produce are as follows: 1. A copy of this subpoena. Glen Piazza Documents 1. Correspondence in the form of emails (and their attachments), text messages and letters sent and received by Glen Piazza in the period 27 January 2023 – date of this subpoena ('the relevant period') referring to the following: 1. The Plaintiff, including: 1. Medical requirements and treatment of the Plaintiff during the relevant period, including while the Plaintiff was in protective and/or segregated custody during the relevant period. 2. Placing the Plaintiff in protective custody (aka on a 'non-association order') and/or segregated custody, including reasons for placing the Plaintiff in protective and/or segregated custody. 3. The Plaintiffs conduct while in protective and/or segregated custody. 1. The proceedings Lawrence v Commissioner of Corrective Services & Ors [formerly Lawrence v State of New South Wales] (Proceedings # 2023/00275298) (i.e. 'the proceedings'). 2. The Statement of Reasons of Glen Piazza dated 17 October 2023 furnished in the proceedings pursuant to r 59.9 of the Uniform Civil Procedure Rules 2005 (NSW) ('the Piazza Statement of Reasons'). 3. The following conduct of or relating to the Plaintiff referred to in the Piazza Statement of Reasons: 1. Complaints made by nurses and other staff in the Medical Subacute Unit ('MSU') about the Plaintiffs behaviour and its impact on their ability to provide him with adequate treatment, and to provide treatment to other inmates, referred to at paragraph [8] of the Piazza Statement of Reasons. 2. The Plaintiff enlisting other inmates to perform duties relating to his care that should properly be performed by qualified nursing staff at Long Bay Hospital Correctional Centre ('LBHCC'), referred to at paragraph [12] of the Piazza Statement of Reasons. 3. The concerns of nursing staff regarding further incidents whereby the Plaintiff may enlist other inmates to perform duties relating to his care, which could cause further injury to the plaintiff, and could also distract the nursing staff from providing proper medical care to other inmates, referred to at paragraph [12] of the Piazza Statement of Reasons. 4. The Plaintiff engaging in inappropriate behaviour toward staff at LBHCC causing concerns for the safety of the staff, as referred to at paragraph [16] of the Piazza Statement of Reasons. 5. The Plaintiff engaging in manipulative behaviour toward inmates and staff at LBHCC, as referred to at paragraph [17] of the Piazza Statement of Reasons. 6. The Plaintiff engaging in manipulative behaviour toward staff members at Prince of Wales Hospital, as referred to at paragraph [17] of the Piazza Statement of Reasons. 7. Staff members breaking protocols for the Plaintiff, as referred to at paragraph [20] of the Piazza Statement of Reasons. 8. Staff members sympathising with or engaging in violent extremism because of the Plaintiff, as referred to at paragraph [20] of the Piazza Statement of Reasons. 9. Glen Piazza's direction on or around 12 May 2023; that staff at LBHCC were not to interact with the Plaintiff one-on-one, and that two staff members are to be present during all interactions with the Plaintiffs, as referred to at paragraph [22] of the Piazza Statement of Reasons. 1. The following incidents referred to in the Piazza Statement of Reasons: 1. Incident occurring in LBHCC on 3 April 2023, involving the Plaintiff having been found to use another inmate's phone account to contact non-approved external phone numbers ('the 3 April 2023 incident'), referred to at paragraph [19] of the Piazza Statement of Reasons. 2. Incident occurring in LBHCC on 26 April 2023, involving the Plaintiff asking a female staff member for her phone number ('the 26 April 2023 incident), referred to at paragraph [16] of the Piazza Statement of Reasons. 3. Incident occurring in LBHCC on 3 May 2023, regarding materials found in a search of the Plaintiff's cell ('the 3 May 2023 incident), referred to at paragraph [20] of the Piazza Statement of Reasons. 4. Incident occurring in LBHCC on 7 May 2023, regarding the Plaintiff making comments to Corrective Services NSW ('CSNSW') and Justice Health and Forensic Mental Health Network ('JHFMHN') staff that he'd give them $ 20,000.00 in exchange for extra food ('the 7 May 2023 incident), referred to at paragraph [18] of the Piazza Statement of Reasons. 5. Incident occurring in LBHCC on 11 May 2023, involving JHFMHN staff locating the Plaintiff in Cell 16 at LBHCC, having found that other inmates helped move the Plaintiff out of his bed and into his shower ('the 11 May 2023 incident), referred to at paragraph [11] of the Piazza Statement of Reasons. 1. Functional Manager Briefing Note by Sue Krishnan, dated 12 May 2023 ('the Krishan Briefing Note'). 2. Complaint regarding the Plaintiff's placement in protective and/or segregated custody, including those made by: 1. The Plaintiff. 2. The Plaintiff's legal practitioners. 3. CSNSW staff members. 4. JHFMHN staff members. 1. Complaints regarding the Plaintiff's medical care (including while the Plaintiff was in protective and/or segregated custody), including those made by: 1. The Plaintiff. 2. The Plaintiff's legal practitioners. 3. CSNSW staff members. 4. JHFMHN staff members. 1. The following documents referred to in, or otherwise related to, the Piazza Statement of Reasons: 1. Intelligence reports provided by the Corrections Intelligence Group ('C/G'), referred to at paragraph [7c.] of the Piazza Statement of Reasons. 2. Complaints (either the written complaints themselves, or documents outlining the complaints) made by nurses and other staff in the Medical Subacute Unit at LBHCC, referred to at paragraph [8] of the Piazza Statement of Reasons. 3. Intelligence holdings reviewed by Glen Piazza in relation to the 3 May 2023 incident, referred to at paragraph [20] of the Piazza Statement of Reasons. 1. The following documents referred to in, or otherwise related to, the Krishnan Briefing Note, being "Annexure B" of the Piazza Statement of Reasons: 1. CIG Information reports generated regarding the 26 April 2023 incident. 2. CIG Information reports generated regarding the 4 May 2023 incident. 3. Information Note generated regarding the 3 April 2023 incident. 4. Documents outlining the intelligence from staff working at the MSU regarding the Plaintiff. 5. Documents outlining the Plaintiff's bearings on the multiple inmate assaults that happened in the MSU during April 2023. John Harrison Documents 1. Correspondence in the form of emails (and their attachments), text messages and letters sent and received by John Harrison in the relevant period referring to the following: 1. The Plaintiff, including: 1. Medical requirements and treatment of the Plaintiff during the relevant period, including that while the Plaintiff was in protective and/or segregated custody during the relevant period. 2. Placing the Plaintiff in protective custody (aka on a 'non-association order') and/or segregated custody, including reasons for placing the Plaintiff in protective and/or segregated custody. 3. Removing the Plaintiff from protective custody, including by revoking the Plaintiffs protective custody direction dated 12 May 2023. 4. The Plaintiff's conduct while in protective and/or segregated custody. 1. The Statement of Reasons of John Harrison dated 20 October 2023 furnished in these proceeding pursuant to r 59.9 of the Uniform Civil Procedure Rules 2005 (NSW) ('the Harrison Statement of Reasons'). 2. The following conduct of or relating to the Plaintiff referred to in the Harrison Statement of Reasons: 1. The Plaintiff engaging in manipulative behaviour towards staff and inmates at LBHCC, including JHFMHN staff, referred to at paragraph [15] of the Harrison Statement of Reasons. 2. The Plaintiff holding significant influence over inmates at LBHCC, referred to at paragraph [17] of the Harrison Statement of Reasons. 1. The following incidents referred to in the Harrison Statement of Reasons: 1. Incident occurring on 11 March 2023 in LBHCC, involving the Plaintiff making a comment to nurses at LBHCC regarding another inmate to "pack his bags'' and "go to the boneyard as he is not liked in mains", referred to at paragraph [18] of the Harrison Statement of Reasons ('the 11 March 2023 incident'). 2. Misconduct investigation conducted in late-May 2023 concerning the Plaintiff's misuse of the LBHCC phone system, referred to at paragraph [11] of the Harrison Statement of Reasons. 3. The 26 April 2023 incident, as referred to at paragraph [16] of the Harrison Statement of Reasons. 4. Search of an inmate's cell on 30 June 2023 that revealed that the inmate had a mobile phone number (written on a piece of paper), for the Plaintiff, as referred to at paragraph [21] of the Harrison Statement of Reasons ('the 30 June 2023 incident). 1. Briefing Note of Kent Dalton dated 30 June 2023 to the Governor, being "Annexure B" of the Harrison Statement of Reasons ('the June Dalton Briefing Note'). 2. Complaints regarding the Plaintiff's placement in protective and/or segregated custody, including those made by: 1. The Plaintiff. 2. The Plaintiffs legal practitioners. 3. CSNSW staff members. 4. JHFMHN staff members. 1. Complaints regarding the Plaintiff's medical care (including while the Plaintiff was in protective and/or segregated custody), including those made by: 1. The Plaintiff. 2. The Plaintiff's legal practitioners. 3. CSNSW staff members. 4. JHFMHN staff members. 1. The following documents referred to in, or otherwise related to, the Harrison Statement of Reasons: 1. Notes taken during the verbal briefings between John Harrison, Glen Piazza and the intelligence officer at the LBHCC, referred to at paragraph [10] of the Harrison Statement of Reasons. 2. Notes taken during the briefings between John Harrison, Kent Dalton, Sumitha Krishnan and the intelligence officer at LBHCC, referred to at paragraph [11] of the Harrison Statement of Reasons. 3. Reports that the Plaintiff was engaging in manipulative and inappropriate behaviour towards custodial and non-custodial LBHCC staff, referred to at paragraph [15] of the Harrison Statement of Reasons. 4. Intelligence briefings, referred to at paragraph [19] of the Harrison Statement of Reasons. 1. The following documents referred to in the June Dalton Briefing Note: 1. The documents comprising the local intelligence holdings regarding inappropriate behaviour of the Plaintiff towards CSNSW and JHFMHN staff via way of grooming and attempting to bribe. 2. Documents outlining the findings of the 1 April 2023 local investigation into the Plaintiff regarding concerning behaviour with a JH&FMHN member of staff. Michael Williams Documents 1. Correspondence in the form of emails (and their attachments), text messages and letters sent and received by Michael Williams in the relevant period referring to the following: 1. The Plaintiff, including: 1. Medical requirements of the Plaintiff during the relevant period, including those while the Plaintiff was in protective and/or segregated custody during the relevant period. 2. Placing the Plaintiff in protective custody (aka on a 'non-association order') and/or segregated custody, including reasons for placing the Plaintiff in protective and/or segregated custody. 3. Extending the segregation of the Plaintiff (that commenced 30 June 2023), including reasons of extending the Plaintiff's segregation. 4. The Plaintiff's conduct while in protective and/or segregated custody. 1. The proceedings. 2. The Statement of Reasons of Michael Williams dated 20 October 2023 furnished in the proceedings pursuant to r 59.9 of the Uniform Civil Procedure Rules 2005 (NSW) ('the Williams Statement of Reasons'). 3. "Review of segregated custody direction'' Form (for Direction No. LBH1221789), being "Annexure A" of the Williams Statement of Reasons ('the segregation review form'). 4. The Briefing Note of Kent Dalton to the Governor dated 7 July 2023, being "Annexure B" of the Williams Statement of Reasons (the July Dalton Briefing Note'). 5. The June Dalton Briefing Note. 6. Complaints regarding the Plaintiff's placement in protective and/or segregated custody, including those made by: 1. The Plaintiff. 2. The Plaintiff's legal practitioners. 3. CSNSW staff members. 4. JHFMHN staff members. 1. Complaints regarding the Plaintiff's medical care (including while the Plaintiff was in protective and/or segregated custody), including those made by: 1. The Plaintiff. 2. The Plaintiffs legal practitioners. 3. CSNSW staff members. 4. JHFMHN staff members. 1. The following documents referred to in, or otherwise related to, the Williams Statement of Reasons: 1. Instrument of delegation for the delegation allowing Michael Williams to perform powers under the Crimes (Administration of Sentences) Act 1999 (NSW) (as in-force at 12 July 2023), as referred to at paragraph [3] of the Williams Statement of Reasons. 2. The following OIMS 'modules' for the Plaintiff as at 12 July 2023, referred to at paragraphs [8] — [13] of the Williams Statement of Reasons (collectively 'the relevant OIMS modules'). 1. 'Care in Placement' module. 2. 'General Alerts' module. 3. 'Offences in Custody' module. 1. The Case Note reports reviewed by Michael Williams in making his decision on 12 July 2023 to extend the segregation of the Plaintiff, as referred to at the following paragraphs of the Williams Statement of Reasons (the Williams Case Note Reports'): 1. Paragraph [18], being Case Note Reports relevant to the Dalton Briefing Note. 2. Paragraph [21], being Case Note Reports 'suggesting that the plaintiff had attempted to bribe staff members at LBHCC and had made inappropriate advances towards a female staff member'. 1. The following documents referred to in, or otherwise relating to, the July Dalton Briefing Note: 1. Interview recordings and/or transcripts from the 6 July 2023 interview of the Plaintiff by the Countering Violence Extremism ('CVE') team ('the 6 July 2023 interview'). 2. Notes (handwritten or digital) or reports generated by the CVE team regarding the 6 July 2023. Ken Dalton Documents 1. Correspondence in the form of emails (and their attachments), text messages and letters sent and received by Kent Dalton in the relevant period referring to the following: 1. The Plaintiff, including: 1. Medical requirements of the Plaintiff during the relevant period, including those while the Plaintiff was in protective and/or segregated custody during the relevant period. 2. Placing the Plaintiff in protective custody (aka on a 'non-association order') and/or segregated custody, including reasons for placing the Plaintiff in protective and/or segregated custody. 3. Removing the Plaintiff from protective custody, including by revoking the Plaintiff's protective custody direction dated 12 May 2023. 4. Extending the segregation of the Plaintiff that commenced 30 June 2023, including the reasons for extending the Plaintiff's segregation. 5. The Plaintiff's conduct while in protective and/or segregated custody. 1. The following incidents referred to in the June and July Dalton Briefing Notes: 1. Inappropriate behaviour of the Plaintiff towards CSNSW and JHFMHN staff via way of grooming and attempting to bribe. 2. The Plaintiff manipulating inmates while housed at the MSU. 3. Investigation on 1 April 2023 suggesting the Plaintiff was engaging in concerning behaviour with a JHFMHN staff member. 4. The 26 April 2023 incident. 5. On 29 May 2023, the Plaintiff initiating a three-way telephone exchange with unauthorised parties via the Offender Telephone System platform. 6. The 30 June 2023 incident. 7. The 6 July 2023 interview. 1. The proceedings. 2. The June Dalton Briefing Note. 3. The July Dalton Briefing Note. 4. Complaints regarding the Plaintiff's placement in protective and/or segregated custody, including those made by: 1. The Plaintiff. 2. The Plaintiff's legal practitioners. 3. CSNSW staff members. 4. JHFMHN Staff members. 1. Complaints regarding the Plaintiff's medical care (including while the Plaintiff was in protective and/or segregated custody), including those made by: 1. The Plaintiff. 2. The Plaintiff's legal practitioners. 3. CSNSW staff members. 4. JHFMHN Staff members. Additional Documents 1. The following Case Note Reports: 1. Case Note Report for the 3 May 2023 incident ('the 3 May 2023 incident Case Note Report). 2. Case Note Reports referring to the following: 1. The Plaintiff's placement in protective custody (aka on a 'non-association order') commencing 12 May 2023, including: 1. Case Note Reports regarding the Plaintiff while he was in protective custody, including those outlining medical treatment rendered to the Plaintiff while in protective custody. 2. Complaints regarding the Plaintiff's placement in protective custody, including those complaints made by the Plaintiff; his legal practitioners; CSNSW staff and/or JHFMHN Staff Members. 3. Complaints regarding the Plaintiff's medical care while in protective custody by the Plaintiff; his legal practitioners; CSNSW staff members and/or JHFMHN Staff Members. 4. The Plaintiff's conduct while in protective custody. 1. The Plaintiff's placement in segregated custody commencing 30 June 2023, including: 1. Case Note Reports regarding the Plaintiff while he was in segregated custody, including those outlining medical treatment rendered to the Plaintiff while in protective custody. 2. Complaints regarding the Plaintiff's placement in segregated custody by the Plaintiff; his legal practitioners; CSNSW staff members and/or JHFMHN Staff Members. 3. Complaints regarding the Plaintiff's medical care while in segregated custody by the Plaintiff; his legal practitioners; CSNSW staff members and/or JHFMHN Staff Members. 4. The Plaintiff's conduct while in segregated custody. 1. Metadata (including that metadata disclosing access by users and printing by users) of the following documents: 1. Case Note Report regarding the 11 March 2023 incident [dated 11 March 2023], authored by Areana Apimaera and being in "Annexure B" of the Harrison Statement of Reasons. 2. Case Note Report regarding the 3 April 2023 incident [dated 3 April 2023], authored by Susmitha Krishnan and being Annexure "G" of the Piazza Statement of Reasons. 3. Case Note Report regarding the 26 April 2023 incident [dated 26 April 2023], authored by Sofia Inic and being Annexure "E" of the Piazza Statement of Reasons. 4. The 3 May 2023 Case Note Report. 5. Case Note Report regarding the 7 May 2023 incident [dated 7 May 2023], authored by Rhiannon Jeffree and being Annexure "F" of the Piazza Statement of Reasons; and Annexure "E" of the Williams Statement of Reasons. 6. Case Note Report regarding the 11 May 2023 incident [dated 11 May 2023], authored by Cameron Hemphill and being "Annexure C" of the Piazza Statement of Reasons. 7. The relevant OIMS modules. 8. The Williams Case Note Reports. 9. The June Dalton Briefing Note. 10. The July Dalton Briefing Note. 11. The segregation review form. 1. Draft versions of the following documents: 1. The Piazza Statement of Reasons. 2. The Harrison Statement of Reasons. 3. The Williams Statement of Reasons. 1. The following documents related to revocation of the Plaintiffs segregated custody Direction LBHT221789 (Revocation direction no. on REVLBH1154691) on 14 September 2023 ('the segregation revocation'): 1. Correspondence in the form of emails (and their attachments), letters and text messages sent or received by the following individuals regarding the segregation revocation (including reasons for the segregation revocation): 1. Glen Piazza. 2. John Harrison. 3. Michael Williams. 4. Kent Dalton. 1. The following documents reviewed by Glen Piazza when considering whether to make the segregation revocation: 1. Hard copy documents before Glen Piazza. 2. Digital documents accessed by Glen Piazza. 1. The following documents that relate to cell alarms (i.e. "knock ups") of the Plaintiff for the relevant period (collectively 'the relevant knock ups'): 1. Knock Up Register (Major Incidents). 2. Audio recordings of the relevant knock ups. 3. Case Note Reports referring to cell alarms or knock ups of the Plaintiff. 1. Department policies in-force for the relevant period regarding the following: 1. Record keeping requirements for the cell alarm/knock up system, including audio recordings and paper logs of knock ups. 2. Responding to knock ups of inmates. 3. Protective custody and non-association orders, including policies as to when to order an inmate be placed in protective custody and the process required when a decision-maker is considering whether to place an innhate (sic) in protective custody. 4. Segregated custody, including policies as to when to order an inmate be placed in segregated custody and the process required when a decision­maker is considering whether to place an inmate in segregated custody. 5. Provision of medical treatment to individuals in segregated or protective custody. 6. Provision of exercise to individuals in segregated or protective custody. 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: 15 July 2024