Harrison v Commissioner of Corrective Services NSW (No 2)

[2025] NSWSC 570

Supreme Court

New South Wales

Medium Neutral Citation:

Harrison v Commissioner of Corrective Services NSW (No 2) [2025] NSWSC 570

Hearing dates:

26 May 2025

Date of orders:

5 June 2025

Decision date:

05 June 2025

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

(1)   The plaintiff’s application for interim relief as set out in prayers 1, 2, 3 and 4 of his amended summons filed on 17 March 2025 is dismissed.

Catchwords:

CIVIL PROCEDURE – Administrative law – Judicial review – Interim relief – Request for adjournment – Discretion to make directions in context of extant proceedings concerned with what is required for a fair trial – Deference to Commissioner in terms of managing safety and security of inmates and correctional centres generally – Where prayer based on anticipated inadequacy of computing facilities at Lithgow – Difficulties in seeking to bring proceedings whilst incarcerated – Where Commissioner gave undertaking with respect to facilities to be provided to plaintiff – Undertaking sufficient to ensure plaintiff’s access to justice – No utility in adjourning proceedings – Application dismissed

Cases Cited:

Commissioner of Corrective Services v Hamzy [2024] NSWCA 240

Harrison v Commissioner of Corrective Services [2025] NSWSC 390

Category:

Procedural rulings

Parties:

Graham Loughlan Harrison (Plaintiff)
Commissioner of Corrective Services NSW (Defendant)

Representation:

Counsel:
D Birch (Defendant)

Solicitors:
Self-represented (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s):

2025/17167

Publication restriction:

Nil

JUDGMENT

1. This judgment concerns an application brought by Graham Loughlan Harrison (“the plaintiff”) for interim relief pending hearing of the final relief sought by his amended summons.

2. The plaintiff is a prisoner currently serving a sentence of 36 years with a non-parole period of 27 years. That sentence relates to a range of offences.

3. The plaintiff’s sentence expires on 20 March 2049. The non-parole period expires on 20 March 2040. Since 5 December 2017, the plaintiff has been designated by the defendant as an “Extreme High Security” (“EHS”) inmate. This designation has implications for the plaintiff’s management within the correctional centre.

The relief sought

4. By his amended summons, the plaintiff brings proceedings against the Commissioner of Corrective Services NSW (“the Commissioner”) seeking judicial review of the decision to continue his EHS designation.

5. The final orders sought by the plaintiff are:

“1.   The decision(s) viz the continuation of the designation of Extreme High Security be quashed by way of certiorari.

2.   The Commissioner to revoke the EHS designation by way of mandamus.

3.   A Declaration that following the 12 June 2019 Burwood court outcome the basis for the designation being imposed no longer exists.”

6. The plaintiff also sought various orders by way of interim relief. As set out in the amended summons the orders sought were as follows:

“1.   The policy of cell moves every 28 days be suspended pending outcome of the substantive matters.

2.   The EHS related restrictions and conditions relating to visits be suspended pending outcome of the substantive matters.

3.   The applicant be permitted in-cell access to an [sic] laptop or similar device capable of typing and editing MS WORD files, accessing USB, printer, and full access to the Legal Aid NSW website to facilitate the preparation of material for these proceedings.

4.   Leave, if or as required.

5.   The decision of the defendant made 22 January 2025 to change the placement of the plaintiff be stayed or otherwise suspended with the current hold to continue pending the outcome of the substantive proceedings.”

7. Prior to the filing of the plaintiff’s amended summons (but after the plaintiff’s original summons), on 22 January 2025, the Deputy Commissioner, Community, Industry and Capacity, Corrective Services NSW made a decision concerning the plaintiff which included that there should be a change of placement for the plaintiff from Goulburn Correctional Centre (“Goulburn”) to Lithgow Correctional Centre (“Lithgow”). As can be seen from the above, prayer 5 of the plaintiff’s claim for interim relief sought to stay this decision. Due to the extant determination, prayer 5 was set down for hearing on an urgent basis. That matter came before Garling J on 16 April 2025. On 24 April 2025, his Honour dismissed the plaintiff’s application insofar as it related to prayer 5: Harrison v Commissioner of Corrective Services [2025] NSWSC 390.

8. The remainder of the interim relief sought was set for hearing on 26 May 2025, on which date it came before me. At the outset of the hearing, the plaintiff indicated that prayers 1 and 2 were no longer pressed. Prayer 4, which seeks only “Leave, if or as required” was not elaborated. As a result, only prayer 3 was pressed.

9. Whilst set down as a separate hearing, it emerged that the relief sought with respect to prayer 3 is closely related to prayer 5. As noted above, the plaintiff, by prayer 5, sought to remain at Goulburn. He was still at Goulburn at the time of the hearing before Garling J. That was on the basis of a decision made by the Commissioner not to effect the transfer prior to the hearing of the plaintiff’s challenge to the underlying decision. As it happens, the plaintiff was, at the time of the hearing before me, still at Goulburn. Counsel for the Commissioner, however, made plain that whilst the plaintiff had remained at Goulburn, the decision to place him at Lithgow remained current, and that, while no date could be disclosed, his transfer was imminent.

10. As elaborated by the plaintiff, the relief sought by prayer 3 was based not on a complaint as to his access to appropriate computing facilities at Goulburn, but rather the inadequacy of what it was anticipated he would have access to at Lithgow.

The evidence

11. The evidence and written submissions relied on before me was the same as that which had been filed and subsequently relied on at the hearing before Garling J. The plaintiff read his own affidavits affirmed on 3 March 2025 and 15 April 2025, respectively. The defendant relied on the affidavits of Nicholas da Costa, Manager of Security at Goulburn, sworn 17 March 2025, Susan Mitchell, Acting Director of Sentence Management at Corrective Services NSW, sworn 17 March 2025, and Raylene Thompson, Governor of Lithgow, affirmed 25 March 2025. The plaintiff relied on his submissions and contentions filed 15 April 2025. While much of this material was focussed on prayer 5, the plaintiff’s submissions and contentions explicitly so, there is much overlap in the issues.

12. In addition to the above material, I was also provided with the complete undertaking given by the Commissioner in the proceedings before Garling J which was tendered by the defendant with the consent of the plaintiff.

The nature of the proceedings

13. It is to be remembered that what is presently being sought is interim relief. That interim relief is sought in order that the plaintiff may obtain access to justice in bringing his claim for final relief.

14. The relevant principles applicable to the granting of interim relief sought by the plaintiff, a prisoner engaging the Court in an action against his gaoler, were traversed by Garling J at [18]-[22] of his Honour’s reasons. His Honour made particular reference to the reasons of the Court of Appeal in Commissioner of Corrective Services v Hamzy [2024] NSWCA 240 (“Hamzy”). It is not necessary to repeat those principles here. His Honour noted the Chief Justice’s observation in Hamzy at [97] that:

“Any discretion to make directions in the context of extant proceedings should … focus on what is required for a fair trial. The focus must necessarily take into account the very different contexts of a prisoner who is in some way impeded in preparing and presenting a defence in criminal proceedings as opposed to civil litigation where the prisoner is the moving party.”

15. Garling J set out the following statement of principle from Hamzy (per Bell CJ at [93], see Garling J at [20]):

“The role of the court is to ensure a fair trial and it may be accepted that an ‘irreducible minimum’ of resources may be required to achieve that (Rich v Magistrates’ Court of Victoria [2007] VSC 65 at [44]), but that, too, is different from an equalisation or an approximate equalisation of resources. Further, any irreducible minimum requirement must be assessed in the context of the particular case, including the applicable statutory context which confers discretions and power on corrections authorities who are far better placed than courts to assess what is required for the safe and secure management of corrections facilities.”

16. It is necessary to consider the matter in the light of these principles.

The present application

17. On the matter coming before me, the plaintiff indicated he was not ready to proceed, or at least to proceed to finality. He indicated that he had been in the process of preparing a document for the purposes of the hearing. He said that document was almost complete, or “about 80% prepared” and later that it was “90% complete”, but was not in a form in which it could be usefully provided to the Court. The plaintiff provided a number of reasons as to why he had not been able to prepare the document. It is not necessary to examine those reasons further, other than to note that the plaintiff’s access to appropriate computing equipment was not among them. I am, for the purposes of the present matter, prepared to accept that a combination of circumstances not fully in the plaintiff’s control impacted his ability to prepare the document on which he wished to rely. This does not, however, of itself, answer the question of whether the proceedings should be delayed to allow the finalisation of that document.

18. The plaintiff was invited by me to explain why it was necessary to adjourn the proceedings in order to allow him to finalise his written document. While there was a significant amount of discussion around the issue, central to his point was the plaintiff’s submission that he could not hope to articulate his arguments orally as clearly as he could in writing. In the circumstances, I considered the best way forward was for the plaintiff to make submissions as to his claim for interim relief and, in the course of doing so, to elaborate on why it was that his submissions were negatively impacted by them being made orally rather than in writing. In the course of this process, there was significant discussion between the plaintiff and myself directed to understanding the plaintiff’s claim.

19. In the course of the discussion referred to above, the following matters became clear. Firstly, the plaintiff makes no complaint with respect to the computing facilities made available to him at Goulburn. Whilst there was, at one point, reference made to a difficulty in undertaking research, the plaintiff was explicit in stating that, were he to remain at Goulburn with his current access to computing facilities, the adequacy of those facilities was such that he would not press his claim for relief.

20. Related to the above, the plaintiff’s concern is not based on his present circumstances but rather his anticipated circumstances at Lithgow. In that regard, it can be accepted that the plaintiff will soon be moved to Lithgow. Further, it can be accepted that there is evidence of significant restrictions in relation to access to computers at Lithgow, certainly compared with the access the plaintiff presently enjoys at Goulburn. That evidence is in the affidavit of Ms Thompson, the Governor of Lithgow. That affidavit sets out what appear to be significant issues at that prison as a result of, primarily, staff shortages. The affidavit states that it is anticipated that such staffing issues will be resolved “in the next four months, following focused recruitment action”. I note that some two months have passed since the date of that affidavit.

21. The plaintiff’s concerns, particularly given the affidavit of Ms Thompson, were a significant focus of his application challenging his transfer to Lithgow. In the light of the evidence, the plaintiff’s concerns are understandable. However, in the course of the hearing before Garling J, the Commissioner gave an undertaking with respect to the facilities that would be provided to the plaintiff. His Honour set out the central aspect of the undertaking in his reasons (at [26]). It is convenient to set out the undertaking in full:

“The Defendant, by his solicitor, undertakes to the Court:

a.   Subject to paragraphs (b) to (d) below, to put in place the following arrangements upon the Plaintiff’s transfer to Lithgow Correctional Centre (LCC):

i.   that the Plaintiff will be provided reasonable access, in the same room, to one "blue computer" and one "green computer" (as described in the affidavit of Susan Mitchell sworn on 17 March 2025), during the scheduled time out of his cell (being, between the hours of 8:30AM to 3:30PM), subject to any operational matters, including lock down(s), the availability of rostered correctional officers and the temporary removal of the computers for repair; and

ii.   that the Plaintiff have access, in his cell, to one "e-brief' read-only laptop (as described in the affidavit of Susan Mitchell sworn on 17 March 2025), subject to the removal of the "e-brief” laptop for the purposes of uploading additional materials onto the laptop for the Plaintiff’s use.

b.   Paragraph (a) does not apply to the extent that circumstances become known to the Governor of LCC (at the time), being circumstances not presently known to him/her, which provide a reasonable basis for concluding that the Plaintiff’s ongoing access to the facilities described in paragraph (a) poses a serious risk to security or good order of LCC, provided that:

i.   the risk is sufficiently imminent that there is not time to approach this Court for variation of this Undertaking before depriving the Plaintiff of the facilities described in paragraph (a); and

ii.   the Defendant takes reasonable steps for the proceedings to be relisted promptly after depriving the Plaintiff of possession of the facilities described in paragraph (a).

c.   Liberty to apply, including to vary this Undertaking, on three days' notice to the Associate to Justice Garling, or in his Honour's absence, Associate to the Common Law Duty Judge.

d.   This Undertaking expires at the conclusion of these proceedings.”

22. Based on the evidence before him, together with the defendant’s undertaking, Garling J dismissed the plaintiff’s claim for relief. His Honour’s reasons for doing so are relevant to the present application. His Honour said (at [47]-[49] and [53]-[55]):

“47   To the extent that the process of judicial review requires evidence, then there is no reason to think that, given appropriate time, the plaintiff will not be able to ensure the provision of that affidavit evidence either of himself or of another prisoner whom the plaintiff regards as a material witness. I note, with respect to that other prisoner, that a statutory declaration has already been completed and filed for the purpose of these interlocutory proceedings.

48   As well, it will be necessary for the plaintiff to prepare and file written submissions. I see no difficulty in that occurring with such access as is to be provided at Lithgow. That preparation may take longer at Lithgow than in Goulburn. It may be less efficient, and perhaps, more challenging for the plaintiff, but these potential difficulties arise in the course of the plaintiff exercising his access to justice. They cannot be regarded as constituting, in substance or effect, a denial of his access to justice.

49   Finally, the conduct of the proceedings will be facilitated by use of the AVL facilities to which the plaintiff will have access, as will the Court. There is no reason to think that the plaintiff cannot present his arguments orally and fully to the Court, as he has been able to do for this interlocutory hearing.

…

53   In my view, the plaintiff has not demonstrated that his change of placement from Goulburn to Lithgow will result in either a denial, or an effective denial, of his access to justice.

54   Having regard to the fact that the Court must pay deference to the Commissioner in terms of managing the safety and security of inmates and correctional centres generally, I am wholly unpersuaded that the decision to change the placement of the plaintiff is one with which this Court ought interfere by granting a stay until the resolution of the substantive proceedings.

55   Reasonable access to a blue and green computer for up to seven hours a day in accordance with the Centre’s operational routine and requirements cannot be regarded as a denial of access to justice, either in whole or in substantial part.”

23. As can be seen, his Honour was of the view that the access to computers it is anticipated the plaintiff will receive at Lithgow will be at least adequate to satisfy the minimum requirements to ensure the plaintiff has access to justice. That conclusion is inconsistent with the need for order 3 as sought by the plaintiff before me.

24. The plaintiff, nonetheless, maintained that the hearing should be at least adjourned to allow him to re-agitate his claim in the event that the facilities at Lithgow fall short of that which was anticipated by Garling J in refusing to stay the order transferring the plaintiff to Lithgow. In addition, the plaintiff submitted, an adjournment would allow him to finish the document upon which he wishes to rely on and with respect to which he has invested significant time and effort.

25. The short answer to the plaintiff’s submissions is that it is not in the interests of justice to adjourn proceedings in order to allow a party to complete a document which, by the time of the adjournment, may no longer be relevant. Nor is it in the interests of justice for the application to remain on foot simply to ascertain whether the relief sought is required.

26. In making the above observations, I do not ignore the difficulties faced by a person such as the plaintiff in seeking to bring proceedings whilst incarcerated. Nor am I ignorant of the many vicissitudes that befall members of the prison population, as a result of matters outside their control, with the potential result that what is expected does not eventuate. It is apparent, however, that Garling J was also alive to the potential that the priorities concerned with the management of the correctional centre would negatively impact the plaintiff’s access to computing facilities with the result that it may fall short of his expectations.

27. As can be seen from the full form of the defendant’s undertaking set out above, in the event that “circumstances become known to the Governor … which provide a reasonable basis for concluding that the Plaintiff’s ongoing access to the facilities … poses a serious risk to security or good order” of the correctional centre, the defendant is excused from providing the access set out in the first part of the undertaking. However, in such a case, unless the “risk is sufficiently imminent that there is not time to approach this Court” to seek a variation of the undertaking, it is incumbent on the defendant to have the matter brought back before Garling J, or in his Honour’s absence, the Common Law Duty Judge, in order to apply to vary the undertaking. In the case where the risk is sufficiently imminent such that prior recourse to this Court is not possible, it is incumbent on the defendant to relist the proceedings “promptly after depriving the Plaintiff of possession of the facilities”.

28. It is clear from the full terms of the undertaking accepted by the Court, that Garling J determined the matter on the basis that there is a regime in place which, as far as is reasonably practicable, holds the defendant to his undertaking. That undertaking, as discussed above, was found by his Honour to be sufficient to ensure the plaintiff’s access to justice. To be completely clear, I agree with his Honour’s assessment in this regard. That being the case, there is no utility in adjourning the proceedings. The defendant has not established that order 3 should be made. The application for interim relief must be dismissed.

Orders

1. The plaintiff’s application for interim relief as set out in prayers 1, 2, 3 and 4 of his amended summons filed on 17 March 2025 is dismissed.

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Decision last updated: 05 June 2025