Clark v State of New South Wales; The Commissioner of Corrective Services v Clark

[2016] NSWSC 157

Supreme Court

New South Wales

Medium Neutral Citation:

Clark v State of New South Wales; The Commissioner of Corrective Services v Clark [2016] NSWSC 157

Hearing dates:

4 February 2016

Decision date:

04 February 2016

Jurisdiction:

Common Law

Before:

Adams J

Decision:

Orders made by Adams J in the following terms:

 

1. Leave to amend summons granted.

 

2. Paragraphs 1 to 8 of the amended summons claiming relief struck out.

 

3. The relief sought in paragraph 9 of the amended summons to be treated as a particular in a statement of a claim.

 

4. The Commissioner of Corrective Services NSW to seek further and better particulars on or before 25 February 2016.

 

5. The plaintiff to answer the request for further and better particulars on or before 10 March 2016.

 

6. The Commissioner of Corrective Services NSW to file a defence on or before 24 March 2016.

 

7. The matter is listed before the Registrar for directions on 29 March 2016 and a section 77 order for the plaintiff to appear by telephone.

 

8. Leave to apply on 3 days’ notice.

 9. The plaintiff to pay the costs of the motion of the third defendant.

Legislation Cited:

Felons (Civil Proceedings) Act 1981 (NSW)

Category:

Procedural and other rulings

Parties:

Peter Frederick Clark (Plaintiff)
State of New South Wales (first defendant)
Attorney General of New South Wales (second defendant)
Commissioner of Corrective Services NSW (third defendant)
Department of Corrective Services NSW (fourth defendant)

Representation:

Counsel:
Self-represented (plaintiff)
A N Williams (third defendant)

  Solicitors:
Self-represented (plaintiff)
Crown Solicitor NSW (third defendant)

File Number(s):

2015/150219

Judgment

1. This is an application by Peter Frederick Clark who is currently a prisoner in the care and control of the Commissioner of Corrective Services and hence subject to the legislative and regulatory regime applying to prisoners. As one would expect, that regime gives prisoners certain rights in relation to having access to the courts in respect of various matters effecting them, including grievances about the way they are treated as prisoners, as well, of course, as other proceedings effecting their legal rights of one kind or another.

2. It is a fundamental rule that authorities, including the Commissioner, do not unreasonably impede the ability of prisoners to participate in and undertake the relevant judicial proceedings. There is, of course, a balance to be struck between the rights of the prisoners, which cannot in the nature of things be uncontrolled as if they were at liberty, and the responsibilities of the Commissioner to order manage and appropriately control the prison and the conduct of prisoners. Of necessity, the legislative and regulatory framework must be in general terms, the position of each prisoner being individual and necessarily affected by the day-to-day decisions made by the officers responsible for the care and control of that individual. It is not disputed that those decisions are most often administrative in kind and subject to the supervisory jurisdiction of this court in relation to administrative decisions which effect the rights and interests of the subject.

3. Mr Clark complains about various actions of officers which he says have the effect of inappropriately and unnecessarily impeding his ability to participate in and undertake the litigation in which he is involved, including proceedings seeking administrative relief, proceedings in the Court of Appeal and in the High Court of Australia. He also alleges that decisions effecting him which might not have a result of substantially impeding his involvement in the litigation have been made to dissuade him from either undertaking or continuing complaints in the judicial context or punishing him for so doing, in this way also calculated to prevent or control his ability to vindicate his legal rights.

4. The present matter is based upon an amended summons of 14 December 2015. The relief sought is stated in 10 paragraphs. I should mention at the outset that the relief sought in paragraphs 1, 4, 5, 7 and 8 is no longer pressed. It is not necessary therefore to say any more about it. A number of the other matters of relief sought are similar to matters presently being litigated in case 2015/00173356. That is an application by Mr Clark pursuant to the Felons (Civil Proceedings) Act 1981 (NSW) seeking leave to commence proceedings for relief of various kinds as specified in the orders sought in the amended notice of motion to which I have referred. It is necessary for him to show, without being technical about the matter, that the matters which he wishes to litigate are firstly within the jurisdiction of the court to determine, and secondly, there is a proper basis for litigating them, though, of course, it is not necessary for him to prove the facts relied on for the purpose of obtaining the relief sought.

5. There is a striking resemblance between some of the allegations made and relief sought in what I will call the felons proceedings and the current proceedings. Thus in the current proceedings in paragraph 2 of the relief claimed Mr Clark seeks –

“The administrative decisions of Correctional Officers, Superintendent Mr Michael HOVEY, Superintendent Mr Glen PIAZZA and Acting Superintendent Karl COLEMAN to charge the Plaintiff for the printing, photocopying and for second hand folders to prepare his leave application to the High Court (criminal matters) and for other legal documents needed for Court is set aside.”

This is, in substance, the same matter being litigated in the felons proceedings –

“The administrative decisions of Correctional Officers Superintendent Mr Michael HOVEY and Director Mr Glen PIAZZA to charge the applicant for printing, photocopying and for second hand folders to prepare his leave application to the High Court and for other legal documents needed for Court is hereby set aside.”

Paragraph 3 in the present proceedings states –

“The Defendants are hereby ordered to reimburse the Plaintiff’s gaol account with all ‘said’ costs and are further ordered not to charge the Plaintiff in the future for any printing and/or photocopy of legal documents needed by him to put before any Court.”

whilst paragraph 8, though obversely in substance, makes the same claim. Paragraph 6 in the present proceedings states –

“The Court further orders that the penalty imposed in relation to the ‘said’ offence is set aside and the defendants are ordered to reinstate the plaintiff’s daily access to the computer classroom on Deck B1 of the MPU unit of the Goulburn Correctional Centre that the Plaintiff had prior to the ‘said’ offence being commenced.”

which may be compared to paragraph 9 of the felons proceedings –

“The administrative decision of Director Glen PIAZZA and/or other Correctional Officers to rescind the applicant’s daily access to the computer classroom on Deck B1 of the MPU of Goulburn Correctional Centre where the applicant is domiciled is hereby set aside.”

6. The felons proceedings are part heard and indeed it is intended to resume the hearing tomorrow for the purpose of making submissions on the issues raised. Although the felons proceedings are of a different kind to those before me and the issues are not precisely the same, it seems to me that they are so closely related and so substantially identical that to permit those matters also to be litigated by the summons which I am considering would amount to an abuse of process. There is no significant difference in the material relied upon in support of the claim in those proceedings as distinct from that relied on in support of the claims in this proceeding. It follows that the duplicate paragraphs which I have enumerated above must be struck out.

7. That leaves one issue concerning the use by the plaintiff of the shower in his cell, which has been limited to times inimical he claims to the requirements of his health having regard to a medical condition from which he suffers and which it is not necessary for present purposes to detail. His claim in this respect again is that the time has been limited by way of either punishing him for taking proceedings or making complaints against officers or the Commissioner and, as it were, to warn him that he should not press those present claims or make claims in the future for fear of repercussions.

8. The evidence upon which he relies is, to say the least of it, exiguous. But in the end, Mr Williams does not, if I may say so candidly, go so far as to say that that should be struck out as having no appropriate prospects and should be left to trial so that the question can be adequately litigated. Although the factual basis for the relief is not clearly articulated in the factual material relied on by Mr Clark, which is repetitious, tendentious and unnecessarily in some respects offensive. But its thrust I think is clear enough for present purposes and hence requires the relief sought by the Commissioner in relation to that claim to be refused.

9. It seems to me, though, that it will be necessary and, I think, desirable that the Commissioner seek particulars of the facts, matters and things relied on so that the issues can be clear. I also think that it is desirable that the matter proceed by treating the summons as a statement of claim particularised in accordance with the answers to the questions that the Commissioner needs to pose and then the Commissioner should file a defence. This will have the additional advantage of clarifying the issues so that their relation to the other litigation currently before the court can be more easily understood.

10. The Commissioner has had substantial success and it seems to me that the usual order should apply. Accordingly, I order that the plaintiff pay the costs of the third defendant.

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Decision last updated: 03 June 2016