Supreme Court New South Wales Medium Neutral Citation: Patsalis v State of New South Wales [2012] NSWSC 178 Hearing dates: 9 February 2012, 2 March 2012 Decision date: 07 March 2012 Jurisdiction: Common Law Before: Schmidt J Decision: Motion dismissed Catchwords: PROCEDURE - notice of motion - interlocutory order sought for prisoner to be housed in a one out cell - seeking mandamus order and mandatory injunction - onus not met - motion dismissed - costs Legislation Cited: Crimes (Administration of Sentences) Act 1999 Supreme Court Act 1970 Cases Cited: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Howard v Jarvis [1958] HCA 19; (1958) 98 CLR 177 Impact Traders Pty Ltd v Australia and New Zealand Banking Group Limited [2003] NSWSC 964 Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82 Murdesk Investments Pty Ltd v Roads Corporation [2005] VSC 39 The King v War Pensions Entitlement Appeal Tribunal & Anor; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 Category: Procedural and other rulings Parties: Michael Patsalis (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: Mr J Hutton (Defendant) Solicitors: Mr Patsalis, unrepresented (Plaintiff) IV Knight, Crown Solicitor (Defendant) File Number(s): 2011/151237 Judgment 1By motion filed on 9 February 2012, Mr Patsalis sought interlocutory relief in the following terms: "Court order in the nature of mandatory injunction and in the nature of mandamus to compel and command The State of New South Wales ("the defendant") or the Commissioner of Corrective Services, to always house the plaintiff in a one out cell, at all correctional centres and complexes which house the plaintiff from time to time; and for an appropriate entry be made in the Department of Corrective Services computer system and in the plaintiffs case management file that he be housed in a one out cell at all correctional centres and complexes that house him from time to time." 2The motion was supported by affidavits sworn by Mr Patsalis on 30 January and 7 February 2012. The relief sought was opposed, the defendant relying on affidavits sworn by Mr Aaron Baril, a solicitor employed in the office of the Crown Solicitor with day-to-day carriage of the matter, on 24 January and 8 February. The matter was listed for hearing on 9 February. That day the defendant relied on extensive written submissions. Directions were made to give Mr Patsalis an opportunity to respond to those submissions. 3He later filed a number of further affidavits on which he relied, as well as written submissions. At a directions hearing on 2 March, Mr Patsalis asked that I make an interim order, pending determination of his application for interlocutory relief. I declined that application but gave directions so that his application could be dealt with urgently. 4Mr Patsalis originally deposed to his understanding of the Department's practice, that when prisoners had legitimate reasons for being housed in a one out cell, that appropriate action was taken to ensure that they had such housing. Legitimate reasons for such a need included physical or sexual assault by other inmates, which had resulted in a phobia of being housed with other inmates, or which had resulted in other physical or psychological injuries. 5Mr Patsalis explained the basis for his application that the defendant should be compelled always to house him in a one out cell, namely the consequences of a vicious assault which he had suffered in August 2010. This had occurred when he had continued working on his legal matters, with the light on, after he and the inmate with whom he occupied a two out cell, were locked into their cell together at approximately 10pm. 6Mr Patsalis outlined the phobia and physical and psychological injuries which he claims he suffered as the result of this assault and the steps he has since taken to draw his resulting need for housing in a one out cell, to the attention of the relevant authorities, including by correspondence sent by his solicitor to the Commissioner of Corrective Services. No response was received to that correspondence. 7Mr Patsalis also explained the circumstances and times at which he had been housed in a one out cell while housed at Junee Correctional Centre; how since his transfer to the Dawn de Laos Centre, he had been housed in a two out cell; and the problems that had caused him and his fears, when so housed. They related both to his health and safety and his ability to deal with the work he had to undertake, in respect of various legal matters in which he is engaged. 8Mr Patsalis understood that he required a medical certificate in relation to his injuries, in order to ensure that he would be housed in a one out cell, under the applicable policy. He explained the steps he had taken, unsuccessfully to the time of the hearing, to obtain such a certificate. 9Mr Patsalis saw a psychologist on 23 December 2011 at the Dawn de Laos Centre, shortly after his arrival there, with the result that he completed an inmate request form, seeking that he be placed in a one out cell. The request was not approved, but Mr Patsalis pursued his request in various ways, which he described in detail. He also described the prisoner with whom he shared a cell for a period and his understanding of current housing arrangements at the Centre. He also described his pursuit of doctors' appointments, which he first sought on 22 December 2011; advice which he received from a psychologist on 16 January 2012, that he should be housed in a one out cell, but who was unable to issue him with a medical certificate; his pursuit of a psychiatrist's appointment; the advice he received from the general practitioner who he saw on 3 February, that he would need to see a psychiatrist, in order to obtain a medical certificate in relation to his condition; and the steps he had taken to pursue such an appointment. 10Mr Baril deposed to instructions which he had received as to Mr Patsalis' current status at the Dawn de Laos Centre. On 14 December 2011, the Commissioner of Corrective Services, Mr Woodham, approved a recomendation made by the Serious Offenders Review Council that Mr Patsalis be transferred to the Dawn De Laos Correctional Centre. This transfer took place on 22 December 2011. There Mr Patsalis is classified as a 'class C1 inmate' housed in an SMAP area, but not in a one out cell. He was then housed in a two out cell, but without a cell mate. He was being given access in his cell to the legal documents which relate to his civil proceedings. If possible, it was intended that he would continue to occupy the cell without a cell mate, but that would depend on resources available and the potential need to take in more category C1 inmates at the Centre. 11Mr Baril also explained that in the Centre there was only one 'one out' cell appropriate to Mr Patsalis' current classification, which was then occupied by another inmate, who is also involved in legal proceedings, and is doing his own work in respect of those proceedings. This inmate had been on a waiting list for such a cell for longer than Mr Patsalis. It was explained that the system under which cells are allocated at the Centre is operated in order that inmates may perceive that it is fair and equitable. There was a concern that preferential treatment afforded to Mr Patsalis could result in him being harassed by other inmates. 12Mr Baril also explained that inmates with a medical certificate which indicates that a one out cell is appropriate to assist with their condition or recovery, are given first priority for a one out cell, irrespective of the waiting list. Neither Mr Patsalis nor the inmate currently occupying that cell had such a medical certificate. If Mr Patsalis obtained a relevant medical certificate, he would be given first priority for the one out cell, provided no other inmate had a greater medical need for such a cell. It transpired that arrangements had been made for Mr Patsalis to be seen by a psychiatrist on 16 or 23 February. 13After the hearing Mr Patsalis saw a psychiatrist Dr Hany Samir on 23 February 2012. He understood that Dr Samir had issued a medical certificate indicating that his psychiatric condition required that he be housed one out cell. In the result he was moved to a one out cell, displacing another prisoner of a similar classification, who had recently been placed in a one out cell because like Mr Patsalis, he is also preparing for legal proceedings. 14Mr Patsalis understands that this prisoner intends to seek an order from Latham J requiring the defendant to house him in a one out cell. Mr Patsalis fears that if such an order is made, he will, again, be placed in a two out cell, at risk of his health. Mr Patsalis' case 15Mr Patsalis explained in his written submissions that he seeks interlocutory relief in the nature of mandatory injunctions and mandamus. He also seeks final relief in identical terms, relying on the provisions of s 232, s 233 and s 235 of the Crimes (Administration of Sentences) Act 1999 ('the Act') which provide: "232 Commissioner (1) The Commissioner: (a) has the care, direction, control and management of all correctional complexes, correctional centres and residential facilities, and (a1) has the care, control and management of all offenders who are held in custody in accordance with Part 2, 3 or 4, and (b) has all other functions conferred or imposed on the Commissioner by or under this or any other Act or law. (2) In the exercise of the functions referred to in subsection (1) (a), (a1) and (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. 233 General 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." 16Mr Patsalis claims that these sections impose mandatory legal duties on the Commissioner and his delegates to abide by all statutory provisions in that Act and any other legislation which apply to him, when exercising their powers and functions. His claim is that the defendant's failure to ensure that he is always housed in a one out cell, including at the Dawn de Laos Centre where he is presently located, puts him at serious risk of further physical and psychiatric injury, of a kind for which an order of damages could not compensate him, given that he is at risk of being killed. In the circumstances, given their special relationship of gaoler and prisoner, the Commissioner has a positive duty to act, to protect him from others causing him loss or damage. 17Mr Patsalis' case is that his circumstances are such that the Commissioner has no discretion to house him in a two out cell, given the risk of psychiatric and physical injury, including death, to which he is exposed when housed when in a two out cell, particularly having in mind the nature of some of the inmates with whom he has been and might in future might be housed from time to time. He submits that the medical certificate issued by Dr Samir of Justice Health on 26 February, which determined that he suffered a psychiatric condition which required that he be housed in a one out cell, established that he had good prospects of obtaining the final relief which he seeks at trial. Under the applicable policy, that is a certificate to which the Commissioner and his delegates will have regard in housing him, but it is not binding upon them. The relief sought must be refused 18Despite the nature of the risk to which Mr Patsalis claims that he is exposed when housed in a two out cell, including at the Dawn de Laos Centre, I am not able to conclude that the onus which falls on Mr Patsalis has been met. 19Mandatory injunctions of the kind here sought must be approached with some care, because they do not seek to preserve the status quo, as interlocutory injunctions ordinarily do, but rather require a defendant to take steps which are opposed. As Einstein J discussed in Impact Traders Pty Ltd v Australia and New Zealand Banking Group Limited [2003] NSWSC 964 : "24 It is further appropriate in dealing with the principles to deal with the principles applicable to the grant of mandatory injunctions. Meagher, Gummow and Lehane, Equity Doctrines and Remedies , 4th Edition by Meagher, Heydon and Leeming at [21-395] comment as follows: "Seventhly, mandatory injunctions are comparatively rare. There are even dicta suggesting they should issue only in the most exceptional circumstances, and that this applies to final injunctions. The interlocutory mandatory injunction is a particularly rara avis . This is partly because a mandatory injunction is usually more onerous for a defendant to comply with than a prohibitory one; moreover, the usual purpose of an interlocutory injunction is to preserve the status quo, a consideration inapplicable to mandatory injunctions. But there is nothing to prevent a court from issuing an interlocutory mandatory injunction... In truth, a judge hearing an application for an interlocutory mandatory injunction must apply exactly the same tests as he would in the case of an application for an interlocutory prohibitory injunction, not some different or more exacting test; nor is the fact that the relief sought is mandatory, a ground for refusing relief; but in the application of the normal tests, often but not always, the fact that the relief sought is mandatory will tilt the balance of convenience in the defendant's favour". 25 Ultimately, as it seems to me, the jurisdiction to make mandatory interlocutory orders: "may be one not fit to be exercised without particular caution, but certainly it is one fit and necessary, under certain circumstances, to be exercised. Under what circumstances it should be exercised must be a matter for judicial discretion, in each several case." [per Knight VC in North of England Junction Railway Co v Clarence Railway Co (1844) 63 ER 520 at 526-7; Cf Business World Computers Pty Ltd v Australian Telecommunications Commission 82 ALR 499 where Gummow J properly described the proper approach in administering interlocutory mandatory relief]" 20In this case, it must be considered that while the Commissioner and his delegates unquestionably have a duty of care to Mr Patsalis, given their relationship, that duty is not of the kind which Mr Patsalis claims it to be. The duty requires that reasonable care for Mr Patsalis' safety be exercised (see Howard v Jarvis [1958] HCA 19; (1958) 98 CLR 177 at [8]). He must be protected from reasonably foreseeable risk of injury. That duty must be met in circumstances where the Commissioner and his delegates are granted wide discretions under the Crimes (Administration of Sentences) Act , in relation to the care, direction, control and management of offenders and correctional centres. 21In considering the parties' competing cases, what was observed in Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82 must not be overlooked. There it was held that generally the Court will be reluctant to interfere in the discipline, administration or management of prisoners, but that decisions relating to individual prisoners are subject to judicial review, if made in bad faith or for improper purposes. 22An onus falls on Mr Patsalis to establish that he has a prima facie case in respect of the final relief which he seeks. He must also establish that he will suffer irreparable injury, for which damages will not be an adequate compensation, if the relief is not granted. The balance of convenience must also be found to favour the grant of the injunction. As Gummow and Hayne JJ discussed in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57: "[65] The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [(1968) 118 CLR 618]. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued [(1968) 118 CLR 618 at 622-623]: "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument [(1968) 118 CLR 618 at 620]. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal [(1968) 118 CLR 618 at 622]: "How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks." ...." 23At [71] it was further observed that 'the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.' Gleeson CJ and Crennan J indicated their agreement with these observations at [19]. 24For its part the defendant disputes that the mandatory order sought is interlocutory relief of a kind which the Court may grant, notwithstanding the wide discretionary powers given by s 66(4) of the Supreme Court Act 1970, which empowered the Court to grant an interlocutory injunction when the Court considers it 'just or convenient to do so'. 25The defendant's case is that the onus falling on Mr Patsalis cannot be met, given the nature of the relief which he seeks, a mandatory interlocutory injunction, requiring the Commissioner to exercise statutory discretions in a particular way. It seems to me that submission has some force. That Mr Patsalis has a significant prospect of ultimate success in the proceedings, sufficient to warrant the grant of the interlocutory relief which he seeks, is difficult to see, notwithstanding his concerns. 26It is settled that a mandamus type order will ordinarily not be made to compel a public official who has a discretion, to exercise it in a particular way (see The King v War Pensions Entitlement Appeal Tribunal & Anor; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 242.) For his part Mr Patsalis relied on what was observed in Murdesk Investments Pty Ltd v Roads Corporation [2005] VSC 39 at [23]: "A mandamus-type order is available to compel the lawful exercise of a duty or discretion conferred upon a statutory body. Depending upon the nature of the statutory provisions, a public authority may be under a duty to do something or may be entrusted with the exercise of a discretionary power or a combination of both. If a statutory body unlawfully declines to perform its duty or power or misunderstands the nature of it, a mandamus-type order may be granted to command it to exercise its statutory obligations and powers in accordance with the law. In addition, the court can make a mandamus-type order where there has been an abuse of the exercise of discretionary power. Mandamus-type orders will be made if an authority, in the exercise of its discretion, does so for an improper purpose or has regard to irrelevant considerations or fails to take into account relevant matters. A statutory authority may purport to exercise its powers but the court may conclude that it has not properly exercised its powers in accordance with the law. In those circumstances a mandamus-type order can be made to compel the statutory authority to perform its powers in accordance with the law." 27Mr Patsalis argues that s 332(1)(b), s 333(1)(b) and s 235(4) of the Act requires that the Commissioner and his delegates must always house him in a one out cell. That submission may not be accepted. Those provisions do not in their terms impose the claimed duty. 28Unless Mr Patsalis establishes that the prisoner housing policy which has been explained in the evidence, has been applied to him in bad faith or for improper purposes, it is unlikely that the Court would make the final order sought. Compelling the Commissioner 'always' to house Mr Patsalis in a one out cell, irrespective of his condition from time to time, or any consideration of competing priorities which may arise from time to time, as between differing inmates in relation to accommodation resources which must be allocated in order to meet competing needs, would be a most unusual order. 29The Act gives the Commissioner and his delegates broad discretionary powers in relation to the housing of prisoners. There is no statutory or legal duty to house Mr Patsalis in a one out cell. On the evidence, such accommodation is limited and access to it is dealt with on the basis of the application of policies designed to allocate available resources amongst prisoners, having regard to their competing needs. The discretion must be exercised in the light of the duty of care owed to Mr Patsalis. That this will always require that he be housed in a one out cell is difficult to see. 30On the evidence, Mr Patsalis has now been medically assessed as requiring accommodation in a one out cell and as a result, is housed in such a cell. Beforehand, it was intended to house him in a two out cell, but without a cellmate, if that could be accommodated. He did receive such housing for a time, but for a certain period had to share a cell. On his evidence that caused him serious concern and put him at risk of further injury, but it is a situation in which he is no longer placed. Under the applicable policy, unless another inmate is also medically assessed as requiring a one out cell and whose needs are assessed to be even greater than or those of Mr Patsalis, he will remain in a one out cell. This circumstance is relevant, not only to the likelihood of the relief sought being granted at final hearing, but also to an assessment of the balance of convenience in the meantime. 31Mr Patsalis is concerned about the possibility that as the result of an order which this Court might make in favour of another inmate, who lost his access to a one out cell, as the result of Mr Patsalis being granted access to a one out cell in accordance with the applicable policy, he might lose his recently acquired one out cell. That concern does not appear to me to provide a proper basis for the interlocutory relief here sought. 32The decisions here in question must be made by the Commissioner and his delegates, in the light of the duty of care which is owed to Mr Patsalis and other inmates. Such decisions are made in the context of the allocation of finite resources and competing inmate needs. The resolution of the competing demands which arise for determination from time to time involves inherently discretionary matters. The evidence as it stands does not establish that decisions have been made about Mr Patsalis' housing on account of bad faith or for improper purposes. 33In my view it has not been established that the balance of convenience favours the grant of the interlocutory relief sought, given that Mr Patsalis is presently housed in a one out cell. It is intended that he will remain in that cell, unless another inmate with greater medical needs than his requires such housing. If such a cell is not available to him, it is intended to house him in a two out cell without a cell mate. If the need to so house Mr Patsalis arises, the housing decision will have to be made in the context of the duty of care which he is owed, given his now established medical condition. 34I am not satisfied, in all of those circumstances, that Mr Patsalis has met the onus falling on him to permit the interlocutory relief which he seeks to be granted. Orders 35For the reasons given, the motion must be dismissed with the usual order as to costs, as agreed or assessed, in favour of the defendant. ********** 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: 07 March 2012