Supreme Court New South Wales Medium Neutral Citation: Georgiou v Commissioner for Corrective Services NSW [2016] NSWSC 1337 Hearing dates: 13 September 2016 Date of orders: 23 September 2016 Decision date: 23 September 2016 Jurisdiction: Common Law Before: Davies J Decision: (1) Pursuant to rule 5.3 of the Uniform Civil Procedure Rules the Defendant is to give discovery to the Plaintiff of the following documents: a. Any document authorising the Plaintiff's detention in a dry cell or under special administrative arrangements on or about 10 February 2016 and thereafter; b. Any document recording the reasons for detaining the Plaintiff in a dry cell or under special administrative arrangements from about 10 February 2016; c. Any document relied upon in deciding to detain the Plaintiff in a dry cell or under special administrative arrangements on or about 10 February 2016 and thereafter; and d. A copy of the: i. Corrective Services NSW Operations Manual, including but not limited to, section 12.20 entitled 'Dry Cells'; or, ii. If applicable, the Corrective Services NSW Operations Manual in operation as at 10 February 2016 until present, or equivalent, with the operative provisions relating to the Plaintiff's detention in a dry cell or under special administrative arrangements. Catchwords: DISCOVERY AND INTERROGATORIES – preliminary discovery – nature of the test – prisoner placed in dry cell – whether held in dry cell in accordance with proper procedures – prior request for documents providing basis for holding prisoner in dry cell – refusal to supply updated manual of procedures – whether prisoner would have any legal redress – prisoner's right to judicial review and/or damages – residual liberty – whether damages for breach – preliminary discovery ordered Legislation Cited: Civil Procedure Act 2005 (NSW). Crimes (Administration of Sentences) Regulation 2014 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Clark v Commissioner of Corrective Services [2016] NSWCA 186 Monteiro v State of New South Wales (No 2) [2015] NSWSC 1901 Morton v Nylex Ltd [2007] NSWSC 562 Panasonic Australia Pty Ltd v Ngage Pty Ltd [2006] NSWSC 399; (2006) 69 IPR 595 Papaconstuntinos v Holmes a Court [2006] NSWSC 945 Patsalis v State of NSW (2012) 81 NSWLR 742; [2012] NSWCA 307 Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728 Sleiman v Commissioner of Corrective Services; Hamzy v Commissioner of Corrective Services [2009] NSWSC 304 SU v Commonwealth of Australia; BS v Commonwealth of Australia [2016] NSWSC 8; (2016) 307 FLR 357 Category: Procedural and other rulings Parties: Konstantinos Georgiou (Plaintiff) Commissioner for Corrective Services NSW (Defendant) Representation: Counsel: M Neil QC & P Lange (Plaintiff) B Thomson (Defendant) Solicitors: Birchgrove Legal (Plaintiff) Crown Solicitors Office (Defendant) File Number(s): 2016/58415 Judgment 1. The Plaintiff is an inmate at the Goulburn Correctional Centre. He is serving a total sentence of 37 years with a non-parole period of 32 years and three months commencing 3 February 1998. The sentence includes terms of imprisonment for 33 years for three convictions for murder. 2. On 13 February 2016 the Plaintiff's solicitor received instructions indicating that the Plaintiff had been confined to a dry cell at the Correctional Centre since 10 February 2016. The solicitor understood that a dry cell was one which permitted constant monitoring of the inmate and was a cell containing no plumbing. An urgent application was made to Campbell J in late February 2016 for preliminary discovery of documents concerning the power and authority of Corrective Services to detain a prisoner in a dry cell, and for documents from Justice Health concerning the Plaintiff's health including his mental health. 3. By the time the matter was returned to his Honour as Duty Judge on 24 February 2016 the urgency had passed in that it appeared the Plaintiff was no longer detained in the dry cell. Moreover, Justice Health had voluntarily produced documents that had been sought from them in the Summons for which Campbell J had given leave to file. 4. At the time of the application before Campbell J the solicitor for the Plaintiff had obtained a copy of part of the 1995 NSW Corrective Services Procedures Manual that dealt with dry cells. That document relevantly provided: 12.21 DRY CELLS … A dry cell is a secure cell used only for the short term containment of inmates unable to provide a urine sample (no longer than two hours) and to confine inmates who are suspected of having concealed contraband within their bodies. Placement in a dry cell is not a punishment and should not be seen to be. A dry cell has no drainage system, thus ensuring that an inmate cannot dispose of any concealed contraband through the sewerage system. … 12.21.4 Procedure The inmate is to be strip searched prior to placement in a dry cell. The inmate is then to be provided with normal clothing and if detained for more than 12 hours, is to be showered, fed, provided with a change of clothing and exercised according to the prevailing local conditions. Whilst in a dry cell, the inmate is to be checked regularly at such intervals as directed in writing by the governor or deputy governor. … An inmate is not to be held in a dry cell for longer than 24 hours. Holding an inmate in a dry cell is not a punishment but an administrative decision. 1. By the time the Amended Summons came on for hearing by me Corrective Services had provided a number of documents associated with placing the Plaintiff in the cell said to be a dry cell but about which there was some doubt. Justice Health was removed as a defendant and preliminary discovery was sought only against Corrective Services. 2. A lengthy affidavit had been sworn by Angela West, the General Manager of the Corrections Intelligence Group (the CIG), Security and Intelligence Branch of Corrective Services NSW. That affidavit detailed a number of custodial offences with which the Plaintiff had been charged since the beginning of 2014. A number of these charges related to having prohibited items such as mobile phones and associated equipment. 3. On 10 February 2016 the Plaintiff was charged with two counts of supply prohibited drugs and one count of participate in a criminal group due to his alleged involvement in directing and organising drug introduction into Goulburn Correctional Centre through the use of illicit mobile phones. By reason of that information the Commissioner of Corrective Services on 11 February 2016 provided approval for the Plaintiff to be placed in the High Risk Management Correctional Centre (HRMCC). On that day prior to being escorted from the main centre to the HRMCC the Plaintiff was subject to a routine metal detection search using the Body Orifice Security Scanner BOSS 11 chair. A positive indication to metal was detected in the back seat and the Plaintiff was placed in an observation cell due to suspicions that he had secreted a metal object. Ms West's affidavit said that per section 12.1.24 of the Corrective Services NSW Custodial Corrections Operations Procedures Manual, an inmate suspected of internally secreting contraband may be held in a dry cell pending a clinical assessment by Justice Health and Forensic Mental Health Network. 4. On 18 February 2016 the Plaintiff was, after refusing a request, forcibly placed on the BOSS chair which gave a positive indication in the back and seat area. Nil contraband was located and the Plaintiff was placed in an observation cell. 5. On 25 February 2016 the BOSS chair again gave a positive indication to the middle section of the Plaintiff's body. No contraband was located and the Plaintiff was placed in an observation cell after the search. 6. The Plaintiff was transferred from Goulburn Correctional Centre to the HRMCC on 11 February 2016 where he was housed on the assessment stage until 22 March 2016. Inmates are placed on segregation during the HRMCC assessment stage. Whilst there he was placed in an observation cell on four occasions as follows: 11 - 14 February 2016; 14 - 23 February 2016; 25 February - 2 March 2016; and 9 – 13 March 2016. On each occasion he was transferred to an observation cell due to concerns that he internally secreted contraband and required a closer level of observation. 1. While the Plaintiff was housed in the assessment cell on all four occasions he refused meals. An inmate is considered to have commenced a hunger strike after he has missed three meals and has indicated in any way his intention to refuse further sustenance. During a hunger strike Justice Health will assess the inmate's physical and mental health daily and if Justice Health considers that an inmate is physically and/or mentally unable to continue functioning in the normal correctional centre routine he is to be transferred to the Long Bay Hospital or other appropriate medical facility. 2. An inmate who undertakes a hunger strike and is non-compliant with Justice Health's mandatory monitoring requirements or who refuses liquids is at a higher risk of physical harm and is immediately referred to a Risk Intervention Team (RIT). Due to non-compliance with Justice Health's mandatory monitoring requirements, the Plaintiff was placed on RIT protocol from 18 – 23 February 2016 and again from 27 February to 2 March 2016. 3. Ms West annexed to her affidavit a number of documents relating to the various transfers referred to above concerning the Plaintiff as well as his case note reports from 11 February to 22 March 2016. 4. Preliminary discovery of the documents is sought to enable a decision to be made by the Plaintiff whether to commence proceedings against the Commissioner of Corrective Services NSW pursuant to s 69 Supreme Court Act 1970 (NSW) challenging the reasonableness of the Plaintiff's detention in a dry cell, and with a view to seeing if an action for damages, perhaps for negligence or perhaps for wrongful imprisonment, is available to the Plaintiff. Submissions 1. The Plaintiff pointed to the five matters that need to be shown to justify an order for preliminary discovery set out by Simpson J (as her Honour then was) in Papaconstuntinos v Holmes a Court [2006] NSWSC 945 at [14]. The Plaintiff submitted that it was not necessary for an applicant to show a prima facie or pleadable case and that the test was an undemanding one. 2. The Plaintiff submitted that authorities such as Patsalis v State of NSW (2012) 81 NSWLR 742 and Clark v Commissioner of Corrective Services [2016] NSWCA 186 make clear that prerogative relief is, in certain cases, available to a prisoner. The Plaintiff pointed to other authorities which show that a claim for damages may in certain cases be available where there is a breach of the duty of care owed by the custodian or for the tort of false imprisonment based on what is known as the concept of residual liberty. Finally, the Plaintiff submitted that he had made reasonable enquiries before bringing the application. 3. The Defendant submitted that the Plaintiff had failed to establish the threshold requirement that he was entitled to make a claim. The Defendant submitted that the exercise of powers related to prisoner classification and separation, and the transfer of a prisoner from one part of a prison to another are examples of administrative and managerial decisions that are not amenable to judicial review. 4. The Defendant submitted that a distinction must be drawn between complaints as to the merits of a particular decision on the one hand and a complaint that a decision went beyond what was open under the relevant legislation on the other. Reference was made to Clark. 5. The Defendant submitted that in the present case, taking into account the extensive criminal history of the Plaintiff and the previous discovery of contraband, the placement and the management decisions made by prison authorities were entirely reasonable and were exercised for a proper purpose.The Defendant submitted that the decisions were properly made with the statutory powers conferred under cl 16 of the Crimes (Administration of Sentences) Regulation 2014 (NSW). 6. Finally, the Defendant submitted that there was a dearth of material which would support any evidence of injury capable of supporting a claim in tort for injury. The Plaintiff's claim in that regard rose no higher than an assertion or a possibility, and was therefore insufficient to satisfy the threshold provisions of r 5.3 Uniform Civil Procedure Rules 2005 (NSW) Consideration 1. Rule 5.3 UCPR provides: 5.3 Discovery of documents from prospective defendant (cf Federal Court Rules, Order 15A, rules 6, 7 and 9) (1) If it appears to the court that: (a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and (b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and (c) inspection of such a document would assist the applicant to make the decision concerned, the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief. (2) An order under this rule with respect to any document held by a corporation may be addressed to any officer or former officer of the corporation. (3) Unless the court orders otherwise, an application for an order under this rule: (a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and (b) must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed. (4) This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to decide whether or not to claim or cross-claim against a person who is not a party to the proceedings. 1. In Papaconstuntinos Simpson J said at [14]: [14] Analysis of the UCP rule shows that an order may not be made against either defendant unless, in relation to that defendant, the court is satisfied of five separate matters. They are: (i) that the plaintiff may be entitled to make a claim against that defendant; (ii) that the plaintiff has made reasonable enquiries; (iii) that, notwithstanding that the plaintiff has made reasonable enquiries, he/she is unable to obtain sufficient information to decide whether or not to commence proceedings against that defendant; (iv) that that defendant may have, or may have had, possession of a document or thing that could assist in determining whether or not the plaintiff is entitled to make such a claim for relief; (v) that inspection of that document would assist the plaintiff to make a decision (whether to commence proceedings). 1. As to the first matter White J in Morton v Nylex Ltd [2007] NSWSC 562 described the test as undemanding at [26], and said: [25] The first of the requirements in r 5.3(1)(a) is that it appear to the Court that the applicant may be entitled to make a claim for relief against the prospective defendant. In order for it to "appear" to the Court that the applicant "may be entitled" to make a claim for relief, it is not necessary for the applicant to show a prima facie or pleadable case. On the other hand, the mere assertion of a case is insufficient. It will be sufficient if there is reasonable cause to believe that the applicant may have a right of action against the respondent resting on some recognised legal ground (Panasonic Australia Pty Ltd v Ngage Pty Ltd (2006) 69 IPR 595 per Young CJ in Eq at 589 [20] and 599 [27]). 1. To understand the width of the Rule it is significant what Burchett J said in Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728 (at 733): It is no answer to the applicant's application under r 6 to say that the proceeding is in the nature of a fishing expedition: cf Meth v Norbert Steinhardt & Son Ltd (1959) 33 ALJR 78 at 81. Rule 6 is designed to enable an applicant, in a situation where his proof can rise no higher than the level the rule describes, to ascertain whether he has a case against the prospective respondent — that is, to "fish" in the old sense: see Caltex Refining Co Pty Ltd v Amalgamated Metal Workers Union (Federal Court (Full Court), 6 December 1990, unreported); Williams, Civil Procedure Victoria (1987) vol 1, 3,928–9; cf Richardson Pacific Ltd v Fielding (Federal Court (Burchett J), 22 August 1990, unreported) which was concerned with another rule in O 15A. It would be unfortunate if a rule designed to amplify the court's power to penetrate obscurities and uncertainties in the interests of justice were to be weakened by restrictive and unnecessary glosses. I think the rule is of a beneficial kind within the meaning of the well known principle of interpretation, and should be given the fullest scope its language will reasonably allow. The proper brake on any excesses in its use is the discretion of the court, which is required to be exercised in the particular circumstances of each case. One guide for that discretion is provided by the reference in r 6(b) to "all reasonable inquiries", as to which see W R Pateman Pty Ltd v Walker Corp Pty Ltd (1990) ATPR 41-016 at 51,299. 1. It is significant in that regard that the Federal Court Rule which gave rise to those remarks is more restrictively worded than r 5.3. The Federal Court Rule (Order 15A, Rule 6) provides: Where – (a) There is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained; (b) After making all reasonable enquiries, the applicant has not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain the relief; and (c) There is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had possession of any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the Applicant would assist in making the decision – the Court may order that that person should make discovery to the applicant of any document of the kind described in paragraph (c). 1. In Panasonic Australia Pty Ltd v Ngage Pty Ltd [2006] NSWSC 399; (2006) 69 IPR 595 Young CJ in Eq (as his Honour then was) observed at [22] that the UCP Rule was in wider terms than the Federal Court Rule. That was because in both Rule 6(a) and (c) reasonable cause needed to be demonstrated. There is no such restriction in the equivalent provisions in paragraphs (a) and (b) of r 5.3. 2. As to the rights of a prisoner to make a claim or seek judicial review, in Clark v Commissioner of Corrective Services [2016] NSWCA 186 Basten JA said at [5]: It is neither necessary nor appropriate to rehearse the history of the judicial control of conditions of imprisonment. Suffice it to say that the remedies available to prisoners in the past derived from three broad principles. First, if the imprisonment were allegedly invalid and unlawful, a prisoner could seek relief by way of habeas corpus. Secondly, if the conditions of imprisonment led to injury to the prisoner, he or she could sue in negligence for breach of the duty of care owed by the custodian. Thirdly, and more recently, if the conditions were thought to interfere unreasonably with the ability of a prisoner to obtain access to the courts, or to conduct litigation, relief was available from the trial judge before whom such a complaint might be brought. 1. Further, Basten JA at [11] and Emmett AJA (with whom Simpson JA agreed) at [84] considered that judicial review of certain decisions taken with respect to prisoners was available. However, Emmett AJA said at [77]: [T]he exercise of powers related to prisoner classification and separation, the transfer from one part of a prison to another, transfer between prisons, conditions on visits or access to certain facilities, such as education, recreation, and supply of condoms; are examples of administrative and managerial decisions that are not amenable to review. His Honour said that there was an exception to that principle where decisions relating to individual prisoners were made in bad faith or for an improper purpose. His Honour also said at [84] that whilst a distinction must be drawn between complaints as to the merits of a particular decision on the one hand and a complaint that the decision went beyond what was open under the relevant legislation on the other, that distinction did not deny the applicability of judicial review and that the ambit of legitimate discretion of prison authorities was a matter of statutory construction. 1. In Patsalis v State of NSW (2012) 81 NSWLR 742; [2012] NSWCA 307 Basten JA at [91] and Sackville AJA at [117] allowed for judicial review with respect to certain decisions made concerning prisoners. Where judicial review may be available to quash a particular decision, equally a declaration may be made in respect of a past decision where no utility is served by quashing it: Monteiro v State of New South Wales (No 2) [2015] NSWSC 1901 at [112] and [113]. 2. A prisoner may have a right to damages for wrongful imprisonment under the principle of residual liberty referred to by Adams J in Sleiman v Commissioner of Corrective Services; Hamzy v Commissioner of Corrective Services [2009] NSWSC 304 at [63] and by Hamill J in SU v Commonwealth of Australia; BS v Commonwealth of Australia [2016] NSWSC 8; (2016) 307 FLR 357 at [32] – [40]. 3. In the present case, the precise reason for the Plaintiff's incarceration in the dry cell or the observation cell at any given time is unclear. There are two available inferences, and both may be correct for varying periods of time. The first is that the Plaintiff was placed in the particular cell because he was believed to have ingested contraband which needed to be passed in what has been called a dry cell. The second inference is that he was kept in that cell or something similar because he may have been on a hunger strike and needed close observation particularly by Justice Health for his own welfare. The two issues appear to be related on the basis of the notes already obtained both from Justice Health and Corrective Services. 4. What is unclear is the precise basis upon which he was held during the stated periods and for what reason, and whether the period he was held exceeded the times that were permissible under the appropriate manual. What is contained in the 1995 Manual suggests that, if he was held for the reasons set out in clause 12.21 of the Manual for a period longer than was allowed, the Plaintiff may have the right to bring proceedings either for judicial review, a declaration or for damages. 5. It does not appear that the 1995 Manual is the governing document at the present time and it may be that the procedures in the current manual differ from those in the 1995 Manual. Further, until the basis for holding the Plaintiff in the cell can be seen from contemporaneous documents, whatever the cell designation is, the Plaintiff cannot know whether or not to commence proceedings for redress. 6. The Defendant points to the discretion and width of power provided by clauses 15 and 16 of the Crimes (Administration of Sentences) Regulation 2014 (NSW). It is not necessary to set out those provisions but simply to note that they concern the designation of high security, extreme high security and extreme high risk inmates amongst others and deals with the management of those inmates including their placement, movement and any particular security arrangements for them. 7. It may be accepted that the discretion under those provisions is wide. It may also be accepted, as Emmett AJA referred to in Clark, that ordinarily the placement of prisoners and their movements are administrative matters not amenable to judicial review. The question is, however, whether, having regard to that wide discretion but also to the terms of any manual that inform the exercise of that discretion, the Defendant may have acted outside the powers given or acted unreasonably in the exercise of them. 8. Until and unless the Plaintiff has access to the relevant manual and the documents authorising the Plaintiff's form of detention in the periods mentioned and the reasons therefor, the Plaintiff will not be able to determine if he has any right to legal redress. 9. In circumstances where, on one view of the facts, the Plaintiff has been held contrary to the provisions of the 1995 Manual, I do not consider that it is fanciful or merely speculative to think that he may have some legal rights. I consider that he has passed the undemanding threshold for showing that he may be entitled to claim against Corrective Services for the purposes of r 5.3(1)(a). 10. I am further satisfied that the Plaintiff through his solicitors has made reasonable enquiries but is still unable to determine if he has any rights of redress. There can be little doubt that the Defendant has in its possession documents, particularly the current Manual, that would assist the Plaintiff to make the decision concerned. 11. Counsel for the Defendant raised the possibility that if preliminary discovery was ordered a claim for public interest immunity would be made in respect of the Manual. Whilst it may be accepted that ordinarily issues of discovery and a right to have material produced to the Court pursuant to a subpoena or Notice to Produce are dealt with first, and issues of privilege and immunities are argued subsequently, in the present case the Summons specifically identified the current version of the Manual as a document sought. In those circumstances, to have two separate applications argued at different times is not consistent with the requirements of s 56 Civil Procedure Act 2005 (NSW). The Defendant should have raised public interest immunity in response to the Summons. 12. Accordingly, I make the following order: (1) Pursuant to rule 5.3 of the Uniform Civil Procedure Rules the Defendant is to give discovery to the Plaintiff of the following documents: a. Any document authorising the Plaintiff's detention in a dry cell or under special administrative arrangements on or about 10 February 2016 and thereafter; b. Any document recording the reasons for detaining the Plaintiff in a dry cell or under special administrative arrangements from about 10 February 2016; c. Any document relied upon in deciding to detain the Plaintiff in a dry cell or under special administrative arrangements on or about 10 February 2016 and thereafter; and d. A copy of the: i. Corrective Services NSW Operations Manual, including but not limited to, section 12.20 entitled 'Dry Cells'; or, ii. If applicable, the Corrective Services NSW Operations Manual in operation as at 10 February 2016 until present, or equivalent, with the operative provisions relating to the Plaintiff's detention in a dry cell or under special administrative arrangements. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 September 2016