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Georgiou v Commissioner for Corrective Services

Georgiou v Commissioner for Corrective Services

Case [2016] NSWSC 1337 23 September 2016

Discovery & Disclosure

Judicial Review

Compensatory Damages

Administrative Law

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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

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…

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.

Continue reading Georgiou v Commissioner for Corrective Services

Details

AGLC: Georgiou v Commissioner for Corrective Services [2016] NSWSC 1337
Case: [2016] NSWSC 1337
Decision Date: 23 September 2016

CaseChat Overview and Summary

Georgiou, a prisoner, brought an action against the Commissioner for Corrective Services seeking preliminary discovery and interrogatories. The case was heard by the Supreme Court of Queensland. The primary dispute centred on whether Georgiou was placed in a dry cell in accordance with the proper procedures. Specifically, the court had to determine if there were any documents that could substantiate the procedures followed in holding the plaintiff in a dry cell. The Commissioner for Corrective Services had refused to provide an updated manual of procedures, prompting Georgiou to seek judicial review and potential damages.

The court was required to decide whether the plaintiff had any legal redress and if the refusal to supply the updated manual meant he could not avail himself of judicial review or damages. Another critical issue was whether the plaintiff’s residual liberty had been breached, warranting damages. The court needed to establish the threshold for preliminary discovery in this context and whether the plaintiff had a valid claim under judicial review or for damages.

The Supreme Court concluded that preliminary discovery was necessary to ascertain the existence of documents that could substantiate the procedures followed in holding Georgiou in a dry cell. The court ruled that the plaintiff’s right to judicial review and/or damages hinged on these documents. The court determined that the plaintiff did have residual liberty that could be breached, potentially warranting damages. Thus, the court ordered preliminary discovery to allow Georgiou to seek the requisite documents and explore his legal options.

Orders