Ford v Commissioner for Corrective Services

[2021] NSWSC 602

Supreme Court

New South Wales

Medium Neutral Citation:

Ford v Commissioner for Corrective Services [2021] NSWSC 602

Hearing dates:

19 May 2021

Date of orders:

19 May 2021

Decision date:

19 May 2021

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

The application for an adjournment is refused

Catchwords:

PRACTICE AND PROCEDURE – Application for adjournment to obtain further evidence – Where evidence goes to point conceded by defendant – Nothing to be gained from adjournment – Application refused

Legislation Cited:

Crimes (Administration of Sentences) Act 1999 (NSW)

Crimes (Administration of Sentences) Regulation 2014 (NSW)

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Cases Cited:

N/A

Texts Cited:

N/A

Category:

Procedural rulings

Parties:

Bruce William Ford (Plaintiff)
Commissioner for Corrective Services (Defendant)

Representation:

Counsel:
Bruce William Ford (self-represented)
K.N. Pham (Defendant)

Solicitors:
Crown Solicitor’s Office

File Number(s):

2020/129343

Publication restriction:

N/A

EX TEMPORE JUDGMENT

1. The plaintiff has commenced proceedings for judicial review of the administrative action of the Commissioner for Corrective Services requiring him as an inmate to provide urine samples for drug analysis.

2. The plaintiff concedes that the Commissioner has the power to conduct periodic and random drug testing of inmates. His case is that because of his particular circumstances, which he says are known to the Commissioner, an alternative form of non-invasive drug testing should be utilised.

3. I need not at this stage concern myself with the categorisation of the type of administrative error which may possibly be involved in the Commissioner's refusal to adopt other means of testing.

4. The plaintiff has put material before the Court indicating that other non-invasive methods are reasonably available to the Commissioner to check inmates for drug consumption, and he wishes to obtain other evidence, in particular, from the New South Wales Police in relation to the methods they use.

5. For instance, during argument about the adjournment the plaintiff has directed my attention to what is commonly known, I suppose, that when conducting random drug tests on drivers police employ a buccal swab method to obtain a sample. I interpolate at his present correctional centre at Grafton, the plaintiff has undergone such testing by the private operators of that prison.

6. The plaintiff accepts that those buccal swabs at the roadside are used as indicative tests and if a positive result is obtained more accurate and comprehensive testing is carried out back at the police station.

7. He accepts that when he was tested last year, by way of buccal swab, he was informed that if the result was positive he would still be required to provide a urine sample for more comprehensive and accurate testing.

8. The plaintiff submits that his case would be strengthened if there was evidence before the Court explaining why the police adopt the methods they do, which might assist him to persuade the Court that such methods could likewise be adopted in a correctional setting.

9. It is important to understand that the Commissioner concedes that there are alternatives available. And so much is made clear by the definition of non-invasive of testing in the relevant statutory regime. As I have said, an express and formal concession or admission in that regard is made by Ms Pham of learned counsel for the Commissioner in the proceedings.

10. The Commissioner therefore submits that there is nothing to be gained by an adjournment because the Court can proceed on the basis that there are alternatives reasonably available.

11. Moreover, Ms Pham submits that the New South Wales Police operate under a very different legislative regime from the Commissioner of Corrective Services, and given that the primary object of these proceedings is to determine whether the Commissioner's action in relation to the plaintiff conforms to the law, the case is not advanced by showing that a different administrative officer adopts a different approach for different purposes under a different legislative regime.

12. I am persuaded by the arguments of Ms Pham, in light of the concession and in light of what is made clear under the Crimes (Administration of Sentences) Legislation and Regulations, I am satisfied that the case of the plaintiff is not advanced by the opportunity to demonstrate that the police operate differently under their legislation.

13. In the circumstances the application for adjournment is refused.

Addendum

Mr Ford applied for a suppression order or non-publication order under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) on the ground specified in s 8(1)(c). He says that he is the person whose safety needs protection. Mr Ford argues that if his challenge to the Commissioner’s procedures becomes widely publicised, he may be subject to vilification, victimisation or even assault in custody. The Commissioner opposes the order and argues that there is no evidence that there is risk to Mr Ford relevant to the proceedings having been brought. Counsel argues that Mr Ford’s argument does not displace the consideration mandated by s 6 of the Act that a primary object of the administration of justice is safeguarding the public interest in open justice. I agree for reasons that I will more fully express in my final judgment. The application for the order is refused.

**********

Decision last updated: 28 May 2021