Georgiou v The Commissioner of Corrective Services

[2016] NSWSC 230

Supreme Court

New South Wales

Medium Neutral Citation:	Georgiou v The Commissioner of Corrective Services [2016] NSWSC 230
Hearing dates:	24 February 2016
Date of orders:	24 February 2016
Decision date:	24 February 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1)So far as the summons seeks relief against the second defendant (see prayer 2) it is dismissed. (2)Stand the balance of the summons over for direction before the Common Law Case Management Registrar at 9 am on 23 March 2016. (3)All questions of costs are reserved.
Catchwords:	PROCEDURE – preliminary discovery – leave for felon to make application
Legislation Cited:	Felons (Civil Proceedings) Act 1981 (NSW) Government Information (Public Access) Act 2009 (NSW)
Cases Cited:	Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 Patsalis v State of New South Wales [2012] NSWCA 307; 81 NSWLR 742
Category:	Procedural and other rulings
Parties:	Konstantinos Georgiou (Plaintiff) The Commissioner of Corrective Services New South Wales (First Defendant) Justice Health NSW (Second Defendant)
Representation:	Counsel: P Lange (Plaintiff) B Thomson (First Defendant) Solicitors: Birchgrove Legal (Plaintiff) Crown Solicitors Office (NSW) (First Defendant)
File Number(s):	2016/00058415-1

EX TEMPORE JUDGMENT - Revised

1. This is an application for preliminary discovery brought on behalf of an offender who is currently held in a correctional centre serving a sentence for murder.

2. I permitted the summons and affidavit in support to be filed in court last night because Mr Lange of Counsel explained that the application for preliminary discovery was ancillary to a proposed application for a judicial review of a certain decision of the Corrective Service authorities in relation to the conditions in which the plaintiff was held.

3. For that reason I formed the view that no leave was required under the Felons (Civil Proceedings) Act 1981 (NSW) by parity of reasoning of the decision of the Court of Appeal in Patsalis v State of New South Wales [2012] NSWCA 307; 81 NSWLR 742. I made orders for short service of the summons and directed that it be returnable before me today at 12 noon for at least a preliminary hearing in relation to the matter.

4. There are two defendants named in the summons. The first is the Commissioner of Corrective Services New South Wales and the second is Justice Health. Mr Thomson, solicitor, appears for the first defendant and I have given him leave to file a notice of appearance in Court. I recorded in the transcript that an officer of Justice Health telephoned my chambers at about a quarter to twelve to indicate that the summons had been served six minutes late and that there had been insufficient time to arrange representation and that Justice Health would be unable to appear before me today. I interpolate that I rather thought perhaps the Crown Solicitor's Office would have been appearing for them if they had chosen to appear but Mr Thomson is here on behalf of the first defendant only.

5. However that may be, Mr Lange has also informed me that Justice Health have voluntarily produced the documents that his client was seeking from them and he no longer wishes to pursue prayer 2 against that entity and in due course I will dismiss the summons so far as it claims relief against Justice Health.

6. I am also informed that the conditions in which the plaintiff was being held have now been changed and, accordingly, the urgency which activated the late application yesterday afternoon is no longer present. Mr Lange, however, has explained that there remains a question of the lawfulness of the conditions in which he was detained over the last twelve days and that, for instance, it may be that the plaintiff would wish to proceed with judicial review proceedings seeking a declaration of the type discussed by the High Court in Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564.

7. Now that the conditions under which he is being held have changed it is also proposed to attempt to obtain the required information under the Government Information (Public Access) Act 2009 (NSW) which, in his affidavit, affirmed on 23 February 2016, Mr Muhammad Tehseldar, solicitor, says can take many weeks.

8. As Mr Thomson does not seriously object to the matter being stood over and as I can see that there may yet be some utility in the proceedings if the application under Government Information (Public Access) Act is unsuccessful, I am prepared to accede to Mr Lange's application to adjourn the matter for directions before the Registrar.

9. I make the following orders:

1. So far as the summons seeks relief against the second defendant (see prayer 2) it is dismissed.

2. Stand the balance of the summons over for direction before the Common Law Case Management Registrar at 9am on 23 March 2016.

3. All questions of costs are reserved.

**********

Decision last updated: 14 March 2016