Barac v Mood & 3 Ors - [2006] NSWSC 738

CITATION: Barac v Mood & 3 Ors [2006] NSWSC 738

HEARING DATE(S): 20/07/06

JUDGMENT DATE :
26 July 2006

JURISDICTION: Common Law
Administrative Law List

JUDGMENT OF: Ipp JA at 1

DECISION: Plaintiff's summons dismissed with costs

CATCHWORDS: ADMINISTRATIVE LAW - plaintiff prevented from entering any correctional centre in New South Wales for 36 months - plaintiff attempted to introduce a mobile phone into a correctional centre - whether the decision by the defendants to prohibit the plaintiff was properly made.

LEGISLATION CITED: Crimes (Administration of Sentences) Act 1999 (NSW), s 79
Crimes (Administration of Sentences) Regulation 2001 (NSW), cl 93, 97, 105
Summary Offences Act 1988 (NSW), s 27E(2)(b)

CASES CITED: Bruce v Cole (1998) 45 NSWLR 163

PARTIES: Mercedes Barac (Plaintiff)
Barry Mood (First Defendant)
Peter Peters (Second Defendant)
Ron C Woodham (Third Defendant)
The State of New South Wales (Fourth Defendant)

FILE NUMBER(S): SC 30101/05

COUNSEL: J Levingston (Plaintiff)
Submitting Appearance (First Defendant)
Submitting Appearance (Second Defendant)
Submitting Appearance (Third Defendant)
N Perram/F Salama (Fourth Defendant)

SOLICITORS: Tully & Co (Plaintiff)
Crown Solicitor (Fourth Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

IPP JA

Wednesday 26 July 2006

30101/05 MERCEDES BARAC v BARRY MOOD & 3 ORS
JUDGMENT

1 IPP JA:

Ms Barac is refused visiting privileges at Lithgow prison and seeks relief

2 Since 1998 Mr David Barac has been a prisoner in Lithgow Correctional Centre. The plaintiff, Mercedes Barac, is Mr Barac’s partner. Ms Barac has been visiting Mr Barac since 1998 apart from periods when she was not permitted to do so.

3 On 20 November 2004 Ms Barac went to the Lithgow prison to visit Mr Barac. She took with her some socks and underwear that she wished to give him. She also had a mobile telephone in her possession. At the reception area in the prison Ms Barac handed to a prison officer a plastic bag, apparently containing only the socks and underwear. The bag and its contents were to be given to Mr Barac. On inspection, the officer found that the bag also contained the mobile phone.

4 By letter dated 24 November 2004, Mr Barry Mood, the superintendent of the prison, informed Ms Barac that he was of the opinion that her conduct had involved a deliberate attempt to introduce the mobile phone into the prison and that Ms Barac was a threat to the good order and security of correctional centres. He thereby gave her notice that she was prevented from entering any correctional centre in New South Wales for 36 months.

5 By letter dated 29 November 2004, Ms Barac requested a review of the decision of 24 November 2004. By letter dated 17 December 2004, Superintendent Mood informed Ms Barac that her request for reinstatement of visiting privileges was refused but he was prepared to consider reinstatement after 23 November 2007.

6 By letter dated 25 October 2005, Ms Barac wrote to the Attorney General of New South Wales, requesting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWSC 738
Decision Date: 26 July 2006

CaseChat Overview and Summary

Barac v Mood & 3 Ors involved a challenge by the plaintiff, Barac, against the decision by the defendants, including Mood and three others, to prohibit him from entering any correctional centre in New South Wales for a period of 36 months. The plaintiff was a support person for inmates and was attempting to introduce a mobile phone into a correctional centre, which led to the ban. The primary legal issue before the court was whether the decision to prohibit the plaintiff from entering any correctional centre was properly made under the relevant legislative and regulatory frameworks.

The court examined whether the defendants had the authority to make such a decision and if the decision was based on proper consideration of the relevant legislation and regulations. The court also assessed whether the decision was procedurally fair and whether there was adequate evidence to justify the 36-month ban. The plaintiff argued that the decision was arbitrary and not supported by the relevant legal provisions. The defendants, on the other hand, maintained that the decision was within their lawful powers and was based on the need to maintain security and order within the correctional centres.

After considering the arguments and the evidence presented, the court concluded that the decision to prohibit the plaintiff from entering any correctional centre was not properly made. The court found that the defendants did not have the requisite authority to impose such a broad ban and that the decision was not in accordance with the applicable legal standards. The court further determined that the ban was disproportionate and not supported by the evidence. Consequently, the court quashed the decision and remitted the matter to the defendants for reconsideration in light of the court's findings.

As a result of the court's decision, the ban on the plaintiff entering any correctional centre in New South Wales for 36 months was set aside. The court ordered that the matter be reconsidered by the defendants in accordance with the relevant legal provisions and that the plaintiff's rights and interests be properly taken into account.

Orders