Supreme Court New South Wales Medium Neutral Citation: Clark v The State of New South Wales [2015] NSWSC 246 Hearing dates: 13 February 2015 Date of orders: 20 March 2015 Decision date: 20 March 2015 Before: Hamill J Decision: The summons is dismissed. No order as to costs. Catchwords: ADMINISTRATIVE LAW – judicial review – prisoner seeks review of decision made by governor of gaol – diligent litigant – natural justice – content determined by statute – whether plaintiff provided with copy of disciplinary charge – whether plaintiff denied opportunity to cross-examine – allegations of malice and improper purpose – where allegations not directed to decision maker – interference with administration of correctional institution Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Administration of Sentences) Regulation 2008 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Attorney General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 37 Clark v Robards (Supreme Court (NSW), Hidden J, 19 October 2007, unrep); Clark v Robards and ors (Supreme Court (NSW), Harrison J, 26 November 2009, unrep) Clark v State of New South Wales & Ors [2014] NSWSC 801 Clark v State of New South Wales (Supreme Court (NSW), Latham J, 30 August 2010, unrep) Clark v State of New South Wales; Clark v Robards & Ors [2014] NSWSC 742 Clark v State of NSW [2012] NSWCA 139 Eastman v DPP (ACT) [2003] HCA 28; 214 CLR 318 Fox v Percy [2003] HCA 22; 214 CLR 118 Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 1996 185 CLR 259 Nguyen v R [2008] NSWCCA 322 Raymond v Honey (1982) 1 All ER 756 RCB v The Honourable Justice Forrest [2012] HCA 47 Category: Principal judgment Parties: Peter Frederick Clark (Plaintiff) State of New South Wales (First Defendant) Attorney General of New South Wales (Second Defendant) Commissioner of Corrective Services (Third Defendant) Department of Corrective Services (Fourth Defendant) The GEO Group Australia Pty Ltd (Parklea Correctional Centre (Fifth Defendant) Representation: Counsel: Plaintiff – In person Third Defendant – A N Williams Solicitors: Plaintiff – In person Third Defendant – Crown Solicitors Office of New South Wales File Number(s): 2013/348662 Publication restriction: Nil Judgment 1. The plaintiff is a prisoner. The third defendant is the government department charged with the responsibility of the managing the prison(s) in which the plaintiff is serving his sentence. On 17 June 2014 Hidden J published a judgment in relation to a summons commenced by the plaintiff against the third defendant: Clark v The State of New South Wales & Ors [2014] NSWSC 801. The summons sought various orders in the nature of mandamus and certiorari, the details of which are not necessary to consider in detail on this application. The relief was predominantly aimed at compelling the third defendant to provide the plaintiff with particular items required by the plaintiff to pursue and prepare for a number of court cases in which he is, or was, involved. An example of the relief sought was an order that the third defendant provide the plaintiff with a chair, desk and table of particular dimensions and provide him with (or re-issue to him) a laptop computer and "11 tubs of legal files". There were many other forms of relief sought. With one exception Hidden J determined that the summons should be dismissed. The reasons for his Honour's decision are disclosed in his judgment and it is not necessary to revisit those reasons here. 2. The one exception to the dismissal of the plaintiff's summons concerned the relief sought as order 5. That was in the following terms: "5. The defendant's charge, conviction and sentence alleging the plaintiff downloaded a "Department of Corrections inmate request form" are hereby set aside." 1. Hidden J determined that the plaintiff may have an arguable case in relation to a possible denial of procedural fairness based on the plaintiff's assertion that he was not provided with a copy of the charge sheet and was not permitted to put his case in answer to the charge. "Upon reflection", Hidden J determined that the plaintiff should be permitted to "draw an amended summons seeking appropriate relief by way of judicial review, meeting the requirements of part 59 of the Rules". His Honour granted the plaintiff an extension of time in which to file the amended summons. 2. On 28 July 2014 a further amended summons was filed in the court registry. That document sought four specific orders as well as costs and any further relief and orders deemed fit and proper by the Court. It is that summons that is currently before me. 3. The matter came back before Hidden J on 8 August 2014 for directions. His Honour determined that the material filed by the plaintiff in support of the original summons constituted sufficient evidence for the purpose of the further amended summons. His Honour also directed the third defendant to put on further evidence as it considered appropriate. 4. Hidden J struck out paragraph 1 of the further amended summons in its entirety as well as the concluding words of paragraph 2. Following those orders, the further amended summons is in the following terms: "2. The plaintiff hereby seeks judicial review into the following decision made by the defendants, namely that; the decision of the Governor (General manager) Mr Mac La'ulu of the Metropolitan Remand and Reception Centre not to conduct a proper appeal hearing into the charge referred to above on 19 November 2012 and to confirm the conviction, defer the penalty of 5 days self-confinement subject to the plaintiff being of good behaviour for 28 days. 3. In the alternative to 2 above, remit the matter back to the defendants for determination and or redetermination according to law. 4. In the alternative to 2 and 3 above; that a verdict of acquittal is hereby entered and the conviction referred to above be expunged from the plaintiff's correctional record. 5. Costs 6. Any further relief and/or orders this Court deems fit and proper." 1. When the matter came on for hearing, the plaintiff indicated that he may seek adjournment or an order vacating the hearing date. After some discussion, that application was not pressed. I received into evidence the following documents on behalf of the plaintiff: * Exhibit A – a copy of a letter from the Plaintiff to the General Manager of Parklea Correctional Centre entitled "Inmate request to access to all my legal files". * Exhibit B - the plaintiff's opening argument. * Exhibit C - a document entitled affidavit of Peter Frederick Clark. * Exhibit D - the relevant part of the original appeal book being the part relevant to relief number 5, i.e. paragraphs 179 through to paragraph 237. 1. A good deal of that material is argumentative. A significantly larger amount of the material was peripherally relevant (if it was relevant at all) by way of background to the circumstances giving rise to the "conviction" at the centre of the litigation. Counsel for the third defendant identified those parts of the material to which objection might properly be taken but did not press an objection in view of the fact that the plaintiff appears without the benefit of legal representation. I commend Mr Williams' sensible approach. 2. The third defendant read an affidavit of Mac La'ulu. Mr La'ulu was the Governor (or, more correctly, the General Manager) of the Metropolitan Remand and Reception Centre ("MRRC") at Silverwater at the relevant time. Mr La'ulu made the impugned decision. 3. The plaintiff sought leave to cross-examine Mr La'ulu and I heard argument from the third defendant who opposed the grant of leave. I determined that a number of areas of proposed cross examination were not relevant to the decision that I had to make. In particular, some went to the merits of the decision. That is not a matter with which I am necessarily concerned. However, when it came to evidence concerning the nature of the hearing itself, I formed the view that the plaintiff was entitled to cross-examine the decision maker. Similarly, I formed the view that the third defendant was entitled to cross-examine the plaintiff in relation to the matters to which he had deposed in his affidavit. 4. As I have said, the relevance of a large part of the plaintiff's affidavit was to establish the background to the disciplinary charge to which the summons relates. It is unnecessary and undesirable to detail that material. Much of what is contained has been subject to earlier decisions of this Court, the plaintiff being a diligent litigant who pursues the rights that he has whilst in custody by means of applications to this Court: see, for example, Clark v Robards (Supreme Court (NSW), Hidden J, 19 October 2007, unrep); Clark v Robards and ors (Supreme Court (NSW), Harrison J, 26 November 2009, unrep); Clark v State of New South Wales (Supreme Court (NSW), Latham J, 30 August 2010, unrep); Clark v State of NSW [2012] NSWCA 139; Clark v State of New South Wales & Ors [2014] NSWSC 801; Clark v State of New South Wales; Clark v Robards & Ors [2014] NSWSC 742. 5. In the course of preparing for one or other or more of his court cases, the plaintiff needed to make various requests. As a matter of prison routine, such requests are made on a form provided by the Department. Rather than obtaining such a form, the plaintiff created his own version of that form. He says that he did this by means of a word processing programme on his computer and arranged for prison officers to print the form for him. The plaintiff says that he had done this before without incident. He denies that he created the document by downloading the form from the Department's website and says that he did not have the technical capacity to do so - he did not have access to the internet. 6. It appears to be common ground that on the relevant occasion one (or more) of the prison officers took exception and made an allegation that in creating the form the plaintiff breached or failed to comply with the correctional centre's routine. There is a Misconduct Report by Officer Wilson dated 17 November 2012 that asserts: "At approximately 2:00 pm on 16 November 2012 I was performing my duties as SCO 16 at Hamden when the following incident occurred: CLARK approached the officers station with a document that he requested be faxed. After looking at the document I realised that CLARK had copied a Departmental document on the laptop issued to him and had also introduced certain changes to the said document. The laptop has been secured pending the outcome of this misconduct report. At no time did I give CLARK permission to produce false copies of official Departmental documents. I submit this report for your attention and consideration." 1. An offence of failing to comply with correctional centre routine is created by clause 36 of the Crimes (Administration of Sentences) Regulation 2008 (NSW). The precise content of such a charge and the circumstances in which it might be alleged are not known to me but the General Manager gave evidence that that it involved doing something that was "outside of normal practice". 2. On 17 November 2012, the Area Manager, Corrections Officer Al Khatib, determined or recommended that the plaintiff should be confined to his cell for 5 days. The General Manager reviewed that decision on 19 November 2012. The penalty was suspended or deferred upon the plaintiff being of good behaviour for 28 days. 3. It is the General Manager's decision of 19 November 2012 that is the subject of the current application. Neither the decision of Officer Wilson to initiate disciplinary action nor the penalty recommended by Officer Al Khatib is subject to this application for judicial review. 4. The plaintiff makes a very strong point based on the fact that the Inmate Discipline Action form asserts that he "admitted to downloading the form onto his computer/Laptop" (my emphasis). The plaintiff contends, and it is not seriously disputed, that it was not possible for him to do this because he did not have access to the Internet in his cell. 5. I proceed on the assumption that this is the true situation and, accordingly, that it is extremely unlikely that the plaintiff made the admission that he "downloaded" the form. However, to engage in that level of detail is to do that which is prohibited to me on such an application. That is, I would be considering the merits of the disciplinary charge that was preferred against the plaintiff rather than determining whether the decision-maker exceeded his jurisdiction or fell into the kind of error that is amenable to judicial review. In any event, the charge was not that the plaintiff downloaded the form but that he failed to comply with correctional centre routine. It was not the manner in which he created the form but the fact that the official form was reproduced without authorisation that is said to have constituted a breach. In evidence, Mr La'ulu said: "I am unsure how he made it to be honest. I understand he had made a copy somehow" 1. Essentially, the question for me is whether the plaintiff was denied procedural fairness or natural justice in the course of the General Manager's review. 2. The requirements for, and content of, procedural fairness vary depending on the circumstances of the case (see, for example, RCB v The Honourable Justice Forrest [2012] HCA 47 at [42]). In the present case the relevant legislation provides for the content of the hearing to which the plaintiff was entitled. Section 52 of the Crimes (Administration of Sentences) Act 1999 (NSW) is in the following terms: "52. Hearing of charges by general manager (1) If it is alleged that an inmate of a correctional centre has committed a correctional centre offence, the general manager of the correctional centre may charge the inmate with the offence and conduct an inquiry into the allegation. (2) The following provisions apply to any such inquiry: (a) the inquiry must be conducted with as little formality and technicality, and with as much expedition, as fairness to the inmate charged, the requirements of this Act and the regulations and the proper consideration of the charge permit, (b) the general manager is not bound by the rules of evidence, but may inform himself or herself of any matter in such manner as the general manager thinks fit, (c) the inmate is entitled to be heard at any hearing during the inquiry and to examine and cross-examine witnesses, (d) except as provided by paragraph (e), the inmate is not entitled to be represented by an Australian legal practitioner or by any other person, (e) the general manager must allow a person (other than an Australian legal practitioner) to represent or assist the inmate if the general manager is satisfied: (i) that the inmate does not sufficiently understand the nature of the inquiry, or (ii) that the inmate does not understand English or is otherwise unable to properly represent himself or herself during the inquiry, (f) if the inmate refuses or fails to attend at any hearing during the inquiry, the general manager may hear and determine the matter in the inmate's absence, (g) evidence is not to be given on oath or by affidavit at any hearing during the inquiry, (h) the general manager may allow any correctional officer or other person to be present, and to be heard, at any hearing during the inquiry, (i) the general manager may transfer the conduct of an inquiry to the general manager of another correctional centre to which the inmate has been transferred. (3) The regulations may make further provision for or with respect to the making of any such charge and the conduct of any such inquiry." 1. The plaintiff complains that he was not provided with the opportunity to be heard or to cross-examine witnesses. He says that all that happened was that the General Manager came to his area of the prison (his "pod") and had a conversation with him. Further, the plaintiff asserts that he was not given a copy of the charge sheet. 2. A potentially important document is the Inmate Discipline Action form to which I have already made reference (above, at [17]). Page 1 of that document is signed by the plaintiff under the item "How do you plead to the charge?" The words "not guilty" are circled and the plaintiff's signature appears immediately below. The charge is described as "fail to comply with correctional centre routine" and the word "Yes" is circled next to the question "Do you understand the charge?" In my opinion those entries on the document, along with the plaintiff's signature, is sufficient to dispose of the complaint that the plaintiff was not provided with a copy of the charge sheet. Whether there is any such formal document (ie a "charge sheet") in the circumstances is not known to me. However, I am not satisfied that the plaintiff was not made aware of what was alleged against him. 3. Page 2 of the Inmate Discipline Action Form commences with the entry by Officer Al Khatib to which I have already referred. Below that entry, there is a note "to the inmate" which sets out the form of the inquiry and invites the inmate to indicate whether he wishes to ask the officer any question about the evidence that has been given. That part of the form is blank. The plaintiff says that he was not shown that part of the document. The third defendant submits that his signature on page 2 is sufficient for me to draw the inference that he saw the whole document. While that may be correct, the problem with the third defendant's submission is that the part of the form where the relevant officer should be nominated is blank. 4. There is no evidence that the plaintiff told the General Manager that he wanted to examine witnesses. However, the plaintiff says that he did not know that he had that right. When provided with the opportunity in Court to cross-examine the General Manager as to whether he was denied the opportunity to cross-examine witnesses, the plaintiff did not avail himself of that opportunity. As counsel for the third defendant pointed out, the assertion that the plaintiff was denied the opportunity to cross-examine witnesses was, in the circumstances, without content. In other words, neither the General Manager at the time nor this Court in determining this summons was provided with any evidence or material that would suggest that the plaintiff - at the time of the hearing - wanted to cross-examine any particular witness. He did nominate such witnesses in the course of his oral submissions in this Court. 5. The provisions of s 52 make it clear that the inquiry required by s 52 is to be an informal one and that the rules of evidence do not apply. It empowers the General Manager to inform himself or herself of any matter in such a manner that they see fit. 6. As counsel for the third defendant submitted, such an enquiry may well take the form of a conversation as deposed to by the plaintiff and the General Manager himself. 7. The plaintiff put to the General Manager that there was, in effect, no real conversation about the Inmate Request Form that the plaintiff created. He put that the General Manager simply said that he was prepared to waive the five days confinement and referred the plaintiff's request for a copy of the charge sheet to Mr Al Khatib. The General Manager denied this. In response to the questioning he said: "What you are inferring is indicating that we didn't have a conversation. I did question you as to the charge and why you made the document, which you explained to me why you made the document, and then we discussed the recommendation of Mr Al Khatib before I made that decision." 1. Earlier he said: "My recollection is we had a discussion of the charge and what you gave was the reason why you had made a copy and after we had our discussion I made that decision". 1. When pressed as to whether he had read the charge sheet and put the charge to the plaintiff Mr La'ulu said: "I discussed the matter with him. I did discuss why he had made that document" 1. I was satisfied that the General Manager was doing his best to recall the conversation that occurred back in 2012. He gave direct answers and did not hesitate or prevaricate. Of course, there are limits to a Judge's ability to determine whether a witness is telling the truth. In Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] Gleeson CJ, Gummow and Kirby JJ said: "Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events." 1. There is very little by way of "contemporary materials" that supports either version of events. However, the objectively established fact that the General Manager decided to reduce the penalty after conducting the review (or conversation) suggests that there was a hearing and that the General Manager heard the explanation provided by the plaintiff. Further it seems inherently unlikely that he would not have asked about the form at the centre of the matter having gone to the trouble of attending the plaintiff's pod and calling him out for the purpose of conducting the review. In view of the fact that the General Manager elected to suspend the penalty that had been imposed by his colleague, it is improbable that the subject matter of the present dispute was not discussed. 2. I am not satisfied that the plaintiff was denied the right to be heard. As informal as the process may have been I have come to the conclusion that the General Manager conducted an inquiry in accordance with s 52 of the Act and that the plaintiff was afforded the opportunity to put his side of the case. The fact that the General Manager intervened favourably to the plaintiff and suspended the five-day confinement order is strong evidence that the plaintiff's arguments were heard. 3. The fact is that the plaintiff did make the document but that he was, and remains, of the view that his conduct was justified by the background and circumstances. While I have some sympathy with that position and while the matter seems to be a trivial one, it is not for me to enter into the merits of the case or to make findings as to the nature of the routine established by those managing the gaol. The Court should be cautious in interfering with the administration and conduct of correctional institutions: see, for example, the authorities collected by McInerney J in Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 at [7], [11]. 4. Once it is accepted that the plaintiff at all times admitted that he created the document, albeit by a different method to that asserted in some of the documentation, the substance and utility of any complaint that he did not have the opportunity to cross-examine the witnesses falls away. The most that might have happened is that the plaintiff may have established that he did not produce the document in the manner asserted by some of the witnesses (ie by downloading it from the internet). Cross-examination would not have established that he did not make or copy a departmental document or that this did not constitute a breach of the prison's routine. The failure of the General Manager to inquire as to whether the plaintiff required witnesses to attend does not, in the circumstances of this case, amount to a failure to afford him procedural fairness. 5. Most of the other complaints made by the plaintiff were matters going to the merit of the decision, rather than to the question of whether it was open to the General Manager to make the decision that he did as a matter of law and jurisdiction. In particular, the distinction that the plaintiff draws between downloading the form onto his computer and creating the form using a word processing programme is not a matter which vitiates the decision as a matter of power. The offence was not "downloading" but failing to comply with the correctional centre routine. The evidence does not permit me to come to any conclusion one way or another as to whether the plaintiff had committed such a transgression and the nature of this review would not enable me to give effect to any view that I formed should it be favourable to the plaintiff. This is not an appeal from the decision of the General Manager. The statute casts upon the General Manager, not on this Court, the responsibility to conduct the review. In an application for judicial review, it is not the Court's role to "cure administrative injustice or error" or to review the merits, as distinct from the legality, of the decision: see, for example, Attorney General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 37 (Brennan J); Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [31] (Brennan CJ, Toohey, McHugh and Gummow JJ) 6. Whether or not an assertion of "double jeopardy" is a matter that falls within the concept of a denial of natural justice, I am not satisfied that the accused was twice exposed to punishment or prosecution. Again, the evidence before me is insufficient to come to such a conclusion. What the plaintiff asserts is that an officer had earlier determined not to impose any penalty for his transgression. Even if that is what the plaintiff believed, I am not satisfied that the evidence establishes that principles of double jeopardy were infringed. 7. Another complaint is that the officer (or officers) who first reported the alleged transgression, and commenced the disciplinary action, was (or were) motivated by mala fides. It is alleged that the officers brought the charges "maliciously" and were motivated by a desire to cover up their own illegal activity and to intimidate the plaintiff into withdrawing his court action against them based around a breach of duty of care owed to the plaintiff. While such an improper purpose might found a legitimate complaint within the principles of natural justice (i.e. the right to an unbiased tribunal), there is no allegation of mala fides or malice against the relevant decision maker, that is the General Manager. Even if it were accepted that the officers brought the charge out of malice, that would not lead to a conclusion that the plaintiff was denied natural justice in the review hearing before the General Manager. 8. In a similar vein, the plaintiff asserts that the actions of the third defendant and its officers were calculated to deny him access to the courts or to interfere with the administration of justice in his case. He relies on the decision in Raymond v Honey (1982) 1 All ER 756. Again, there is nothing in the material that allows me to conclude that the General Manager – that is, the relevant decision maker – had any such intention. 9. For the foregoing reasons, I am not satisfied that the plaintiff was denied procedural fairness and I would not intervene to grant the relief sought in the further amended summons. Discretionary considerations 1. Further, if there was substance in any of the plaintiff's complaints, the kinds of orders sought are discretionary. As Mr Williams submitted, there are strong discretionary grounds for the Court to decline to intervene. As I have said, the General Manager made an order that the penalty of five days confinement be deferred on the condition that the inmate was of good behaviour for a period of 28 days. The General Manager had the power to defer imposition of a penalty pursuant to the provision in s 53 (2) which is in the following terms: "(2) If, after conducting an inquiry, the general manager is satisfied beyond reasonable doubt that the inmate is guilty of a correctional centre offence, but is of the opinion that a penalty should not be imposed: (a) the general manager may dismiss the charge, or (b) the general manager may defer imposing a penalty on condition that the inmate be of good behaviour for a specified period (not exceeding 2 months) and, if the condition is complied with, dismiss the charge after the end of that period." 1. The section allows the General Manager to defer imposing a penalty on condition that the inmate be of good behaviour for a specified period (not exceeding 2 months) and, if the condition is complied with, dismiss the charge after the end of that period. The evidence at the hearing was silent on the issue of whether the General Manager had in fact dismissed the charge. I was told by counsel for the third defendant (and I accept) that the General Manager's opinion is that the dismissal of the charge takes effect by operation of the section. As I said in argument, I have some difficulty in accepting that that is the proper interpretation of the provision. However, it is common ground that the plaintiff was of good behaviour for the 28 day period and that he was entitled to have the charge dismissed. The plaintiff asserted, and counsel for the third defendant did not dispute, that his prison record does not indicate that the charge was dismissed. 2. After the conclusion of the hearing, further submissions were received from the plaintiff. In forwarding those on to the third defendant, I asked for further submissions and, if necessary, evidence to clarify the position as to whether the charge had been dismissed. The third defendant provided me with a copy of the relevant part of the plaintiff's prison file. It is a document referred to as Offence in Custody Penalty and includes the following notation: Inmate received 5 days cell deferred subject to good behaviour for a period of 28 days, commencing 13/11/12. As per section 53(2)(b) of the Crimes (Administration of Sentences) Act – charge dismissed. 1. It is clear that no penalty was imposed and that the plaintiff was entitled to have the charge dismissed pursuant to the provision. The charge has now been dismissed. Obviously, a dismissal under 53(2)(b) is not the same as an acquittal or finding that the offence was not committed. Nevertheless, it is factor militating against intervention by this Court either by way of quashing the order made by the General Manager, remitting the matter to the General Manager to be heard according to law or entering a verdict of acquittal. "Application to Re Open the Hearing (In chambers)" 1. After the conclusion of the hearing, the plaintiff wrote a letter to my Associate dated 15 February 2015. The letter was marked 'URGENT" and, on its face, was an application to re-open the hearing. Ordinarily, a party is required to put its submission at the hearing and courts are reluctant to receive further submissions unless there is some agreement between the parties and/or the Court has granted leave or similar: see, for example, Nguyen v R [2008] NSWCCA 322 at [27]-[32] (Tobias J), Eastman v DPP (ACT) [2003] HCA 28; 214 CLR 318 at [27]-[31] (McHugh J) and [143] (Heydon J). However, in view of the difficulties that Mr Clark has described and his status as an unrepresented litigant, I decided that I would simply call on the third defendant to respond in writing. 2. The application to re-open the case put a submission that the third defendant's witness (Mr Mac La'ulu) committed perjury. This was said to be established by a document within the Court Bundle (p 47) "OFFENCE IN CUSTODY RECORD". A copy of the document was annexed to the letter. The document indicated the report date as 21/11/2012 and provided a summary of the offence in the following terms: "Inmate downloaded departmental form onto his issued personal laptop and altered it." 1. According to the plaintiff, this proves that Mr La'ulu's evidence that he did not know how the plaintiff copied the form was a lie. The plaintiff relies on the fact that the review hearing was conducted on 19 November 2012 and the document upon which he now relies was dated 2 days later. 2. The third defendant responded, briefly, in written submission dated 27 February 2015. It is submitted that there is nothing in the document that supports the allegation of perjury and nothing on the face of the document that proves when the details recorded were entered into the system. More fundamentally, the third defendant says that "the date of entry of the decision into the computer system maintained by the third defendant has no bearing on his claim that he was not afforded procedural fairness." It is also put that nothing in the evidence of Mr La'ulu makes any assertion as to when the relevant entry was made. The third defendant also says that the document "can have no bearing on the credibility of any witness in the proceedings". 3. I accept the bulk of the third defendant's submission. However, contrary to the third defendant's final submission as recounted in the preceding paragraph, I accept that the evidence is capable of bearing upon the credibility of Mr La'ulu. If it were established that Mr La'ulu made the entry on 21 November 2012, that may support an inference that he had knowledge of the reporting officer's allegation that the plaintiff downloaded the document from the Internet. That, in turn, would undermine his evidence that two days earlier (and even now) he had no idea how the plaintiff had copied or made the document. 4. However, the fundamental flaw in this argument is that there is no evidence as to who made the entry. This is tacitly acknowledged in the plaintiff's submission where it is asserted: "2 days after the alleged hearing on 21/11/2012 the Governor Mr La'ulu he himself or delegated the matter be entered on the computer management system!" [My emphasis] 1. There is no evidence that Mr La'ulu made the entry and no evidence that he delegated that task to anybody else. If he did delegate the task there is no evidence that he knew the precise terms of the entry that was made. 2. For those reasons, I do not accept the plaintiff's contention that the document establishes that Mr La'ulu gave perjured evidence on this issue. 3. The application to re-open also "reiterated" the plaintiff's opening and final addresses and repeated the assertion that "…the charge was always MALICIOUS an abuse of process set in place by a few vindictive correctional officers including verballing me" And "…the defendant's one and only purpose was to obstruct my abilities to prepare, prosecute, delay my claim against them for failing in the duty of care re inter alia the fire hose nozzle assault and obstruct my access to the courts!" 1. Again, reliance was placed on Raymond v Honey and Patsalis v State of NSW. I have dealt with these contentions above. Even on the doubtful assumption that these submissions fall within the ambit of the matter left unresolved by the decision of Hidden J, there is nothing to suggest that the decision maker (Mr La'ulu) was motivated by malice. Accordingly, there can be no substance to that contention. 2. After the third defendant filed its reply, the plaintiff took the opportunity to file two further documents dated respectively 3 March 2015 (2 pages) and 7 March 2015 (5 pages). These submissions are not really responsive to the third defendant's submission dated 27 February 2015. The documents include a discursive repetition of many of the arguments made before me and before Hidden J. There is an attempt to agitate an action in trespass which is said to continue and to restate the allegations of corrupt and malicious conduct. There is a re-statement of the basic allegations made in support of the case and further elucidation of the allegation of perjury. There is a submission on the Court's jurisdiction based around s 23 of the Supreme Court Act 1970 (NSW). There is an allegation that the plaintiff was "subjected to 11 days solitary confinement" and "denied my television and sandwich maker!" It is said that "the days of Rex Jackson, officers TAHERA, HEINZ and WILSON are over and abuses of processes will not be tolerated by this Court." It is submitted that the disciplinary charge was "frivolous and/or an abuse of process": "I submit that the taxpayers of New South Wales and I and every other inmate deserve better. The defendants could and should have nipped this matter in the bud and quashed it when I first raised it rather than wasting tens of thousands of dollars defending the indefensible." 1. Whatever sympathy one may have with the sentiments at the heart of these propositions, three things must be emphasised. First, it is not in any sense responsive to the third defendant's submissions which, themselves, were a response to an allegation of perjury raised by the plaintiff after the hearing. Second, they are largely not relevant to the particular matter before me on the summons. That is a relatively confined assertion of a denial of procedural fairness. Third, large parts of these final submissions constitute an invitation to interfere with the administration of the prison system in circumstances where such interference has been repeatedly eschewed by the courts and where I have insufficient information upon which to base any relevant finding. 2. My duty to provide reasons for my decision does not encompass responding to, or detailing, each and every one of the plaintiff's assertions and I do not propose to go further than noting that I have read the additional submissions and taken them into account. They do not advance the plaintiff's cause of action. Decision 1. The summons is dismissed. I make no order as to costs. ********** Amendments 23 March 2015 - Removal of reference to Clarke v State of New South Wales [2015] NSWCA 27 25 March 2015 - Format 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: 25 March 2015