Karnauchow v Commissioner of Corrective Services NSW

[2025] NSWSC 781

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Karnauchow v Commissioner of Corrective Services NSW [2025] NSWSC 781

Hearing dates:

9 July 2025

Date of orders:

18 July 2025

Decision date:

18 July 2025

Jurisdiction:

Common Law

Before:

McGuire J

Decision:

(1)   Disability adjustment request prayer for relief 2 in the Further Amended Summons is dismissed;

(2)   Interim and procedural prayers for relief 3 and 4 in the Further Amended Summons are dismissed;

(3)   The Notice of Motion is dismissed;

(4)   I refer the plaintiff to the Registrar for referral to a barrister on the Pro Bono Panel for legal assistance;

(5)   That assistance is to be as follows:

(a)   To advise in respect of the proceedings;

(b)   To settle any further evidence to be relied upon in respect of the proceedings;

(c)   To settle any written submissions in respect of the proceedings; and

(d)   To appear at and conduct the proceedings.

(6)   Costs of and associated with the interim hearing are costs in the cause.

Catchwords:

CIVIL PROCEDURE – Administrative law – Judicial review – Interim relief – Whether orders sought are necessary to ensure the plaintiff’s effective access to the courts in civil proceedings – Whether the plaintiff has access to an “irreducible minimum” of resources required in order to ensure effective access to the courts – Courts are not to second guess the defendant’s expertise about the safe and secure management of correctional facilities – Suppression and non-publication orders – Amicus curiae – Referral to Pro Bono Panel for legal assistance

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Court Information Act 2010 (NSW)

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

Crimes (Administration of Sentences) Act 1999 (NSW)

Disability Inclusion Act 2014 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Mental Health Act 2007 (NSW)

Crimes (Administration of Sentences) Regulation 2014 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10

Breen v Williams (1994) 35 NSWLR 522

Bropho v Tickner (1993) 40 FCR 165; [1993] FCA 24

Commissioner of Corrective Services v Hamzy [2024] NSWCA 240

Harrison v Commissioner of Corrective Services [2025] NSWSC 390

Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 133; [2018] NSWCA 143

Corporate Affairs Commission v Bradley (1974) 1 NSWLR 391

Dobree v Hoffman (1996) 18 WAR 36

Hamzy v Commissioner of Corrective Services NSW (2022) 107 NSWLR 544; [2022] NSWCA 16

Kabushiki Kaisha Sony Computer Entertainment v Stevens (2001) 116 FCR 490; [2001] FCA 1379

Karnauchow v Commissioner of Corrective Services [2025] NSWCATAP 99

Karnauchow v State of NSW (Corrective Services NSW) [2024] NSWCATAD 294

Karnauchow v State of NSW, NSW Department of Communities and Justice (Corrective Services) [2023] NSWCATAD 326

Levy v The State of Victoria (1997) 189 CLR 579; [1997] HCA 31

Middleton v Commissioner of Corrective Services (NSW) [2004] NSWSC 136; (2003) 143 A Crim R 364

New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231

Patsalis v The State of New South Wales [2012] NSWSC 267

R v Rich (No 2) [2008] VSC 141; (2008) 184 A Crim R 161

Raymond v Honey [1983] 1 AC 1

Re Medical Assessment Panel; Ex parte Symons (2003) 27 WAR 242; [2003] WASC 154

Roadshow Films Pty Ltd v iiNet Limited (2011) 248 CLR 37; [2011] HCA 54

Texts Cited:

Australian Law Reform Commission, Traditional Rights and Freedoms— Encroachments by Commonwealth Laws, (Report No 129, December 2015)

Judicial Commission of New South Wales, Equality Before the Law Bench Book, (2006, Judicial Commission of NSW, Sydney)

New South Wales, Department of Communities and Justice, Disability Inclusion Action Plan 2020-2024, (September 2021)

New South Wales, Department of Communities and Justice, NSW Disability Inclusion Plan 2021-2025, (November 2021)

Category:

Procedural rulings

Parties:

Andreas Karnauchow (Plaintiff)
Commissioner of Corrective Services NSW (Defendant)

Representation:

Counsel:
Plaintiff (Self-represented)
L Dargan (Defendant)

Solicitors:
Crown Solicitor’s Office (Defendant)

File Number(s):

2025/11706

Publication restriction:

Nil

JUDGMENT

1. The plaintiff, Andreas Karnauchow, who is a maximum security inmate at Goulburn Correctional Centre (GCC), seeks various orders by way of interlocutory relief pending the hearing of his application for judicial review of a decision of the NSW Civil and Administrative Tribunal (NCAT).

Background

2. The background to these proceedings has been canvassed in Karnauchow v State of NSW (Corrective Services NSW) [2024] NSWCATAD 294 and Karnauchow v Commissioner of Corrective Services [2025] NSWCATAP 99.

3. On 1 September 2022, the plaintiff made a complaint to the NSW Anti-Discrimination Board (the board) alleging discrimination by Corrective Services NSW on the grounds of disability and homosexuality in the provision of goods and services. The complaint also alleged victimisation. The matter was dismissed in Karnauchow v State of NSW, NSW Department of Communities and Justice (Corrective Services) [2023] NSWCATAD 326 (the 2023 decision). On 9 February 2024, the plaintiff appealed the decision of NCAT. The appeal is listed for hearing before the NCAT Appeal Panel on 10 October 2025.

4. On 28 February 2024, the plaintiff made another complaint to the board with respect to Corrective Services NSW, on the same grounds. On 5 May 2024, the board declined the complaint. On 16 May 2024, the plaintiff requested the complaint be amended and in the alternative that the matter to be referred to NCAT. The matter was subsequently referred to NCAT. On 3 October 2024, NCAT refused the plaintiff leave to commence proceedings: Karnauchow v State of NSW (Corrective Services NSW) (the 2024 decision). This was on the basis that the “fair and just” decision was to refuse leave and that the complaint involved the same factual matters dealt with in the 2023 decision of NCAT presently the subject of appeal.

5. On 10 January 2025, the plaintiff filed a summons in this Court for judicial review of the 2024 decision made by NCAT in Karnauchow v State of NSW (Corrective Services NSW). Subsequently, the plaintiff filed an amended summons on 14 April 2025 and a further amended summons on 19 June 2025. At the hearing of the interlocutory relief, the Commissioner did not oppose leave being granted to the plaintiff for the summons to be amended and the further amended summons filed 19 June 2025 was filed and moved on in court.

6. By way of other proceedings in which the plaintiff is involved, the plaintiff was recently before NCAT in relation to a release of information application under the Government Information (Public Access) Act 2009 (NSW), which appears to have been finalised on 5 April 2024. The plaintiff has also filed a notice of intention to appeal in relation to his conviction and sentence for offences occasioning his current period of incarceration. Although that notice of intention was filed on 8 July 2019, no notice of appeal has been filed.

The relief sought

7. By his further amended summons, the plaintiff brings proceedings against the Commissioner of Corrective Services NSW (the Commissioner) seeking judicial review of the 2024 decision made by NCAT to refuse leave to commence proceedings under s 50 of the Anti-Discrimination Act 1977 (NSW). The final orders sought by the plaintiff are in the following terms:

“1.   To set aside the previous NCAT orders decision that had been made on 3 October 2024 refusing leave for the plaintiff to commence proceedings with NCAT.

2.   And in its place thereof to be granted leave to commence NCAT mediation proceedings.”

8. The plaintiff seeks the following orders (under the heading “Disability Adjustments”) in order to conduct the proceedings efficiently:

“1.   The plaintiff seeks short breaks during any hearings owing to his arthritis conditions causing pain and suffering that will [a]ffect concentration when sitting for long periods.

2.   Seeking disability adjustments with an in-cell access to a ‘modified blue laptop’ or a similar device with word edit & save capabilities pursuant to the NSW Governments Disability Inclusion Plan 2021-2025 and within the NSW Department of Communities and Justice (Corrective Services) Disability Inclusion Action Plan. And with the abilities to transfer data from a provided device to an Offender Access Computer (“OAC”) when printing requests is required.

3.   The plaintiff has difficulties in note taking during any hearings and seeks disability adjustments with the use of another inmate to assist and scribe notes for the plaintiff during any AVL hearings and would allow the plaintiff to concentrate without pain and suffering when handwriting.”

9. Also in the further amended summons, the plaintiff seeks the following interlocutory orders (under the heading “Interim and Procedural Orders”):

“1.   The plaintiff seeks leave with several extensions of times due to various resource issues that will contribute to substantial delays and is expected to occur.

2.   The plaintiff has restricted access to a printer and seeks by consent, that the Respondent please assists the plaintiff in obtaining photocopied documents and other material evidence for these proceedings to improve efficiency of the Court.

3.   The plaintiff seeks access to the current online links on the Legal Aid website.

4.   The plaintiff seeks independent email account with pre-approved email addresses to improve time in receiving current emails from 6 to 10 days down to instant information in obtaining Court Orders and Directions.

5. The plaintiff seeks the defendant[‘]s reasons to their decisions, pursuant to UCPR 59.9”

10. Filed with the further amended summons on 19 June 2025 was a notice of motion in which the plaintiff sought orders in the following terms:

“1.   The Interim Relief hearing is listed for 9th July 2025 be adjourned.

2.   Extension of time to conclude two affidavits for filing that details the remaining evidence for the Interim Relief Hearing.

3.   Sought for a Suppression Order to not publish the plaintiff’s criminal record.

4.   Extension of time to prepare an Order to Produce application.

5.   An application to sought for these proceedings with an Amicus Curiae.

6.   Such further or other orders and directions as this Honourable Court thinks fit.”

11. This judgment concerns the interlocutory orders sought by the plaintiff in his further amended summons under the headings “Interim and Procedural Orders” and “Disability Adjustments” and the further interlocutory relief sought in his notice of motion.

12. The plaintiff indicated that prayers 1, 2 and 4 of the notice of motion and prayers 1, 2 and 5 (Interim and Procedural Orders) of the further amended summons were no longer pressed. The plaintiff did not elaborate on prayer 6 of the notice of motion in written and oral submissions.

13. The Commissioner, in written submissions filed 3 June 2025 (prior to the further amended summons), averred that some of the relief sought in the amended summons filed 14 April 2025 was not opposed, or not opposed in principle. This comprised prayer 1 and 3 (Disability Adjustments) and prayer 1 (Interim and Procedural Orders), each of which were drafted in the same terms as the further amended summons.

14. At the hearing of the application, the Commissioner further indicated that the Commissioner neither consented to nor opposed prayers 3 and 5 of the notice of motion.

15. As a result, with respect to interlocutory relief, only prayer 2 (Disability Adjustments) and prayers 3 and 4 (Interim and Procedural Orders) of the amended summons are the subject of dispute and prayers 3 and 5 of the notice of motion are pressed but not opposed.

The evidence

16. A joint court book comprising the summons filed 10 January 2025, the amended summons filed 14 April 2025, the further amended summons filed 19 June 2025, the notice of motion filed 19 June 2025, the submissions of both parties, correspondence between the parties and the Court and various affidavits later read onto the record, became Exhibit A.

17. The plaintiff read four of his own affidavits sworn and affirmed 8 January 2025, 12 June 2025, 18 June 2025 and 2 July 2025, the latter of which exhibited various documents. The defendant relied on the affidavit of Timothy Peek affirmed 29 May 2025, which exhibited Exhibit TM-1. The plaintiff objected to the references to his current and historical convictions in Exhibit TM-1.

Applicable Legal Principles

18. The issue of an inmate’s access to computer technology for the purposes of preparing for court proceedings was recently considered in Commissioner of Corrective Services v Hamzy [2024] NSWCA 240. There the Court held that the Court’s concern is to guard against the denial of access to justice and to use its powers in that regard as a “safety net”. That concern does not involve ensuring an equality of arms, equality of resources, nor striking a fair balance between the parties: Commissioner of Corrective Services v Hamzy at [89]-[90]. Rather, the role of the Court is to ensure that an inmate has access to an “irreducible minimum” of resources required in order to ensure effective access to the courts and a fair trial: Commissioner of Corrective Services v Hamzy at [93].

19. Garling J in Harrison v Commissioner of Corrective Services [2025] NSWSC 390 affirmed the outcome in Commissioner of Corrective Services v Hamzy and found that the correct approach was to “determine whether there has, in substance, been a denial of access to the Court to conduct the litigation”, with the nature of that litigation being a relevant consideration.

20. Any irreducible minimum is to be assessed in the context of the particular case, including the statutory context which, through the Crimes (Administration of Sentences) Act 1999 (NSW) and the Crimes (Administration of Sentences) Regulation 2014 (NSW), confers powers and discretions on Corrective Services NSW to assess and manage the safe and secure management of correctional facilities.

21. The accused being in custody necessarily means that there are significant restrictions placed on him. The rights and privileges of a litigant who is incarcerated may be qualified in substantial respects, particularly by the need for enforcement of security in a custodial environment. However, the fact of imprisonment and its consequent impediments to an inmate litigant do not mean that the inmate is being illegitimately impeded in the presentation of his or her case, or must be relieved of all impediments, in order to have effective access to the courts and a fair trial: Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 133; [2018] NSWCA 143 at [106]; R v Rich (No 2) [2008] VSC 141; (2008) 184 A Crim R 161 at [51]. A litigant in custody is not entitled to be placed in exactly the same position as a litigant at liberty in order for that person to have a fair trial. Such an approach would not be practical.

22. It is no part of the role or functions of the Court to second guess the Commissioner for Corrective Services’ considerable and unchallenged expertise about security within a gaol: Commissioner of Corrective Services v Hamzy at [88]; Commissioner of Corrective Services v Liristis at [104].

The Plaintiff’s Submissions

23. The thrust of the plaintiff’s submission is that he has been denied procedural fairness and does not have a reasonable opportunity to present a successful case due to inadequate access to computer facilities, legal information on online websites and an independent email address.

24. The plaintiff submits that his case is distinguishable from Commissioner of Corrective Services v Hamzy and Harrison v Commissioner of Corrective Services because he has substantial disabilities, both mental and physical, including arthritis throughout his body and his panic disorder, which impede his ability to prepare for his court proceedings. He submits that Mr Hamzy’s disabilities were significantly less severe, namely arthritis only in the thumb on one hand.

Prayer 2 (Disability Adjustments) – In-cell access to a ‘modified blue laptop’ or similar device

25. The plaintiff submits that the Commissioner’s decision to deny him access to a “modified” blue computer, or a similar e-brief device with word processing capabilities, is invalid because there is no support for it in the Custodial Operations and Policy Procedures (COPP). He submits that COPP policy 8.3, relating to inmate computers, does not prohibit an e-brief laptop from having word processing capabilities and, further, that it provides that “blue computers are non‑network and are for the purpose of viewing and preparing legal documents”. He submits that his argument is further supported by COPP 4.2 “Property kept in-cell”, which stipulates that “wherever possible inmates should have electronic access to their legal documents, negating the need of paper copies.” Regardless, the plaintiff submits, policies cannot curtail fundamental common law rights without express implication, according to the principle of legality.

26. The plaintiff relies on Middleton v Commissioner of Corrective Services (NSW) [2004] NSWSC 136; (2003) 143 A Crim R 364 at [54], in which the Commissioner’s discretionary power was found to have miscarried on the basis that it was an inflexible application of a policy and did not, as the plaintiff puts it, “take into account the needs of the inmate’s education”.

27. The plaintiff submits that he has limited access to the computer cell housing the blue and green computers and that the access fluctuates, which then impacts timetabling. First, the maximum time allowed in the “morning session” is two hours, while the maximum time allowed in the “afternoon session” is 1 hour and 45 minutes. Secondly, out of a total of 144 days, the plaintiff records that he has been granted access to the computer cell on only 70 or 75 of those days. The plaintiff says that his access is curtailed by lock-ins and a lack of available officers and administrative staff. Further, he says that when the computer cell is available, he is not guaranteed access because the computers are shared with other inmates. The plaintiff also submits that his access to word processing capabilities via the green computers is “not workable”, because the computer logs the user out after two minutes of use. The plaintiff indicates that while he has access to a virtual drive stored on the cloud, the USB and DVD drives on the green computers are unable to be accessed.

28. The plaintiff submits that while he has access to hardcopies of material required for the proceedings in which he is involved, he has difficulty handwriting documents as a result of his arthritis and that the denial of access to a modified blue laptop effects a denial of access to the Court. In this regard, he says that he has also been denied access to voice to text conversion software.

29. The plaintiff also submits that he has inadequate access to online legal resources because he “cannot research case law under the current system”, and further, that he cannot effectively ask the library to conduct research for him because in order to do so he first needs to know the names of the authorities he wishes to research. Although he has access to legal textbooks, he says that they only contain snippets of particular cases, and that he cannot know whether those cases have been overturned.

30. The plaintiff points to authorities which he says support his submissions, including, inter alia, the Disability Inclusion Act 2014 (NSW), the Anti-Discrimination Act, the Mental Health Act 2007 (NSW), the Crimes (Administration of Sentences) Regulation, the NSW Government Disability Inclusion Plan 2021-2025, the NSW Department of Communities and Justice, Disability Inclusion Action Plan 2020-2024 and the Australian Law Reform Commission (ALRC) report, Traditional Rights and Freedoms— Encroachments by Commonwealth Laws, (Report No 129, December 2015). The plaintiff also contends that his argument is supported by COPP 3.10 “Aged and frail inmates”, COPP 6.9 “Inmates with disabilities”, COPP 8.3 “Inmate computers” and COPP 20.8 “Inmate access to legal resources”. The plaintiff, referring to the Equality Before the Law Bench Book issued by the Judicial Commission of NSW, submits that he is at a particular disadvantage and is vulnerable, which requires a fair and just balancing exercise in order to achieve equality.

25. In response to the Commissioner’s assertion that the functionality requested (referred to as an “image”) cannot quickly be provided to the plaintiff, the plaintiff submits that an image was provided in the case of Hamzy v Commissioner of Corrective Services (2022) 107 NSWLR 544; [2022] NSWCA 16 within a matter of weeks.

Prayer 3 (Interim and Procedural Orders) – Access to Legal Aid Website Links

32. The plaintiff submits that the restrictions on inmates accessing links to external websites from the Legal Aid website are inconsistent with COPP 20.8 “Inmate access to resources”, which stipulates that the Governor or Manager of Security of a correctional centre must ensure inmates have access to legal resources, including Legal Aid NSW. Under this prayer, the plaintiff also indicates that further online legal resources should be available to inmates, including the NSW Caselaw website, and that the Law Portal available to inmates largely consists of “out-of-date legal handbook information” without “persuasive authorities” and material that is “far too general”. The plaintiff submits that legal resources can be made accessible to inmates who are preparing for legal proceedings without posing a security risk.

33. The plaintiff submits that “regulations should not infringe on … common law rights” including access to the courts, referring to Hamzy v Commissioner of Corrective Services NSW. Further, referring to Commissioner of Corrective Services v Hamzy, the plaintiff submits that the “irreducible minimum” should be “extended as wide as possible for the plaintiff in the interests of justice” and be determined by his individual circumstances, being his disabilities and the requirement to prepare for several proceedings before the courts in which he is representing himself.

34. The plaintiff contends that his submissions are supported by authority including ss 3 and 5 of the Court Information Act 2010 (NSW), Australia’s “international law obligations” and the ALRC report Traditional Rights and Freedoms— Encroachments by Commonwealth Laws. He submits that “the executive fully controls all of the plaintiff’s abilities in preparing legal cases and obtain[ing] various forms of legal information to assist with” the proceedings.

Prayer 4 (Interim and Procedural Orders) – Independent email account

35. The plaintiff seeks access to an independent email account with pre-approved email addresses in accordance with cl 122I of the Crimes Administration of Sentences Regulation.

36. The plaintiff suggests that his legal correspondence is monitored by correctional officers and referred to a scenario in which his mail to and from the board was opened by correctional officers, which he asserts, given his treatment in custody by correctional officers was the subject of the correspondence, caused him to be victimised. While the board is an exempt body under cl 3 of the Crimes Administration of Sentences Regulation, the plaintiff says that this occurred in the context of him not enclosing the correspondence within a letter indicating it should not be opened.

37. The plaintiff also submits that his mail is being “stopped” by Corrective Services NSW because the “current system is subject to abuse” by some correctional officers who do not act according to the functions of the Commissioner. The plaintiff submits that he has evidence of this, as he has not received replies to a substantial amount of his correspondence. The plaintiff exhibited to his affidavit an “audit on prepaid envelopes” from 10 March 2021 to 6 January 2025, which noted 48 instances of outgoing mail in relation to which he had not received any response. The plaintiff indicates that some mail has not departed the correctional centre, as some of the mail capable of being tracked is being monitored by his brother, who has said that some mail shows as “pending” on the Australia Post website.

38. The plaintiff submits that the potential security issues involved with his access to an independent email account can be resolved with a computer program that indicates certain correspondence is “not to be inspected” when sent to exempt email addresses, while other correspondence can be inspected.

39. The plaintiff supports his contention by reference to Raymond v Honey [1983] 1 AC 1, which concerns the right of access to courts, being that “under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication”.

Prayer 3 (Notice of Motion) – Suppression Orders

40. The plaintiff seeks a suppression order in relation to his criminal record. He submits that ss 8(1)(a), (c) and (d) of the Court Suppression and Non-publication Orders Act 2010 (NSW) apply. He submits, pursuant to s 8(1)(a), that the proper administration of justice will be prejudiced in the current proceedings should his criminal record be released. He points to his mental health and the impacts of the prison environment, and submits that the publication of information will cause delays as a result of him needing to recover. He also submits that the release of his criminal record would cause him to be assaulted or killed in prison, in particular because he is a vulnerable inmate who, because of his arthritis, cannot defend himself. Although the plaintiff is designated a Special Management Area Placement (SMAP) inmate, he submits that this classification does not guarantee his protection, unlike the Protected Non-Association (PRNA) classification.

41. The plaintiff also submits that he has been subject to either a suppression order or a non-publication order in previous criminal proceedings and in his previous NCAT matters.

Prayer 5 (Notice of Motion) – Amicus Curiae

42. The plaintiff submits that he has difficulties accessing the Court as a result of his “physical” and “mental” disabilities and that he requires an amicus curiae to assist with his participation in the final hearing. As at the time of the hearing, the plaintiff had not planned for a particular person to represent him as amicus curiae. The plaintiff concedes that although he is not incapacitated, he has arthritis and an anxiety disorder, which he characterises as episodic. He also notes that he is not legally qualified. For these reasons, the plaintiff argues that an amicus curiae would improve the efficiency of the Court, and that it is in the public interest because he is the first person with his kind of physical disabilities to have brought a similar application. He reasons that an amicus curiae was provided in Hamzy v Commissioner of Corrective Services NSW.

43. The plaintiff also submits that an amicus curiae would send letters and engage in correspondence for him, as a result of his difficulties sending mail from within GCC.

44. In relation to whether the plaintiff had sought alternatives to self-representation or amicus curiae, the plaintiff said that he had “lost a lot of faith with Legal Aid” and that they “don’t really assist inmates in civil cases”.

Costs

45. The plaintiff submits that a costs order should be made against the Commissioner because it is a test case, it is a matter of public interest, he is not at fault and the Commissioner has failed to fulfil his duty to provide for the needs of inmates in accordance with New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [102].

The Defendant’s Submissions

46. The Commissioner submits that the balance of the interim relief sought should not be made in view of the plaintiff’s present arrangements, and that this case “falls well short of any denial of access to the Court.”

47. The Commissioner submits that this case is not a case that falls into the category of supervisory jurisdiction of the Court power in relation to functions under the relevant officers having exceeded their authority or failed to perform some duty imposed upon them, referring to Commissioner of Corrective Services v Hamzy (at pars [77], [87]–[88]):

77   … it is imperative to understand the source of this power as that necessarily informs its scope.

…

87   It is not possible to build out of the Court’s inherent jurisdiction and right to control its own processes to prevent an abuse of process a free standing unitary “right” to a fair trial. That is necessarily imprecise. …

88   In civil proceedings in New South Wales, the Court has broad power to make directions in respect of any proceedings: Civil Procedure Act 2005 (NSW), ss 61 and 62.

48. The Commissioner submits that the nature of the present proceedings is judicial review of a decision of the NCAT, described as the second category of case identified by Beech-Jones J in Patsalis v The State of New South Wales [2012] NSWSC 267 which involves “a narrower but potentially deeper jurisdiction that flows from the power of the Court to control its own processes”. The Commissioner also highlights the context of these proceedings in terms of the substantive matter in respect of which the interim relief is sought being a civil proceedings in which the plaintiff is the moving party and submits that is obviously of a different nature and quality to a criminal proceeding in which he would be defending in a self-represented capacity.

Prayer 2 (Disability Adjustments) – Access to a blue modified computer

49. The Commissioner submits that the plaintiff’s lack of access to the computer sought, being a computer with internet functionality as well as word progressing functionality inside his cell, does not amount to a denial of access to the Court.

50. The Commissioner, referring to the COPP, says that inmates have access to the following computers in a “computer access cell”, which is partitioned, lockable, and through GCC staff access is facilitated between the hours of 7:30am-10:45am and 11:30am-2:00pm:

“a)   Green computers, which are connected to the Offender Access to Computer (OAC) network, and which are for education, programs and employment purposes. Green computers have word processing functionality, and may be used for preparing legal documents.

b)   Blue computers, which are non-networked and are for the purpose of viewing and preparing legal documents. Blue computers do not have word processing functionality.”

51. In GCC, there are currently two green computers and two blue computers available. In addition to the green and blue computers, inmates may be provided with laptop e-brief computers, which are issued to some inmates to view pre-loaded legal materials, and an “offender tablet” with access to the Legal Aid website.

52. The Commissioner drew attention to the plaintiff’s recorded access times to the available computers which established that during the period 23 December 2024 to 13 April 2025 his weekly screen time ranged from 2 hours and 30 minutes to 17 hours and 50 minutes; averaging at 10 hours and 50 minutes each week. In addition, the evidence established that the plaintiff had some, albeit limited access to a PC during lock ins. Daily records between 19 December 2024 and 30 January 2025 established that during that period the plaintiff had PC access in the mornings on average for 2 hours and 30 minutes and in the afternoons for about 1 hour and 30 minutes; giving a daily average of 4 hours PC access a day during that period.

53. Having regard to the plaintiff’s access to green and blue computers in the computer-access cell, together with the plaintiff’s e-brief laptop, offender tablet and access to current legislation and case-law through library services, the Commissioner submits that the plaintiff has the ability to prepare the documents required to litigate his claim. The Commissioner points to the plaintiff having, at the date of submissions, filed or served typed materials, including 48 pages of typed submissions which include detailed reference to legal authorities, typed summonses and notice of motion, typed and detailed affidavits and over a hundred pages of typed or handwritten exhibits.

54. With respect to this submission, the Commissioner also contends that, given the nature of the judicial review proceedings, the dispute ought to be relatively confined, which informs the assessment of the “irreducible minimum of resources” required. Further, the Commissioner points to other mechanisms to accommodate the disadvantages the plaintiff may suffer as a result of being incarcerated, including appropriate accommodations to the matter’s timetabling and the opportunity to make oral submissions.

55. Finally, the Commissioner notes that the device sought by the plaintiff cannot presently be provided by Corrective Services NSW, and that should modifications be made to the computers, those computers would then be subject to security concerns, including that blue computers have been used in the past to share covert messages between inmates and to create covert recordings of interactions.

56. In relation to the plaintiff’s access to the library, the Commissioner says that while inmates do not have physical access to the library, they are able to submit five requests per week for materials, including legal materials either through the tablets, through the green computers, or on paper.

Prayer 3 (Interim and Procedural orders) – Access to Legal Aid links

57. The Commissioner submits that by a combination of the plaintiff’s access to his offender tablet and library resources and requests, canvassed above, he is able to access to current legislation and case law. While the plaintiff may be impeded in his ability to conduct legal research, the Commissioner submits that this is a “necessary incident” of his custody and does not mean that his access to the Court has been denied.

Prayer 4 (Interim and Procedural Orders) – Independent email account

58. The Commissioner submits that it is not Corrective Services NSW policy to provide inmates with independent email addresses and that doing so would require additional resourcing to monitor correspondence for appropriate usage. In this regard, the Commissioner points to an existing GCC email account through which legal correspondence can be sent, and indeed, which has been used by the plaintiff in these proceedings. It is worth noting that that existing email account is one of two contact email addresses nominated by the plaintiff in the summons and the only email address nominated by him in the notice of motion as his relevant email contact details.

59. In relation to the plaintiff’s submission that his mail is being “stopped”, the Commissioner submits that there is no evidence that the letters referred to in the plaintiff’s “audit” were blocked or impermissibly dealt with. The Commissioner submits that it may be inferred, particularly because of the identity of many of the addressees, that the mail was delivered and that there was simply no response, and in relation to the plaintiff’s evidence that some mail is marked “pending”, that perhaps those letters were lost, or not posted or received. As to the plaintiff’s contention that the volume of letters to which he has received no response is indicative of a fact that they were not sent, the Commissioner says that has to be assessed in the context of the volume of correspondence that has been sent by the plaintiff generally. The Commissioner points to the plaintiff’s evidence that he has sent and received letters, and the lack of response to a particular letter does not indicate that it was not received.

Prayer 3 (Notice of Motion) – Suppression Orders

Prayer 5 (Notice of Motion) – Amicus Curiae

60. The Commissioner neither consents to nor opposes the suppression orders and the appointment of an amicus curiae as sought by the plaintiff.

Costs

61. The Commissioner submits that costs should follow the event.

Consideration

62. The question to be determined in relation to the majority of the orders sought by the plaintiff is, having regard to the resources currently available to him, including computer resources and library resources, and in light of the circumstances of the case, whether the plaintiff has been denied effective access to the courts.

63. The additional resources sought by the plaintiff are in effect the provision of a modified blue computer, with word processing functionality, an ability to save documents to a USB and an ability to access the current online links on the Legal Aid website and an independent email address for the purpose of sending and receiving emails relating to his legal proceedings.

64. The plaintiff currently has access in the computer access cell to computers, known as green and blue computers and in-cell access to an e-brief laptop computer and an offender tablet.

65. The evidence established that the green computers to which the plaintiff has access have word processing functionality and can be used for the preparation of legal documents. The blue computer to which the plaintiff has access is not networked and does not have word processing functionality and is primarily for the purpose of viewing legal documents.

66. The evidence contained in the affidavit of Tim Peek, established that green and blue computers are specifically adapted for use in correctional facilities in that only certain computer functionalities are enabled and certain hardware features, including USB drives, are disabled. In addition, the computers may have independent physical modifications. Mr Peek’s affidavit established that modifications of those types to the green and blue computers were necessary for the safe and secure management of correctional facilities. In particular the evidence established that without the present modifications computers would create a number of security concerns within a custodial setting. Those concerns include inmates having access to unauthorised materials and inmates using the computers to engage in an unauthorised communications. Additionally, inmate access to computers without these modifications would create difficulties for the defendant in monitoring their use. Such security concerns were, on the evidence, more than theoretic. Mr Peek refers in his affidavit to past examples of computers being misused by inmates to share covert messages between inmates, to create covert recordings of interactions between inmates and to create covert recordings of interactions with staff.

67. In accordance with the defendant’s policy the green and blue computers are located, not an inmate’s cell, but rather in a computer access cell which is partitioned off and lockable in which inmates may have access to the computers facilitated by staff. The evidence established that the plaintiff had such access to the green and blue computers in the computer access cell at GCC. There presently are two blue computers and two green computers available in Unit 2 at GCC, the unit in which the plaintiff is currently held. Although there are 88 inmates currently housed in Unit 2 who are able to request computer access, there are generally fewer than five active computers users in Unit 2. The plaintiff’s hours of possible access of the computers in the computer access cell total five and three-quarter hours a day. That access is subject to a number of factors including operational requirements, staffing capacity logins and the need to share resources with other inmates. As noted at [52] the plaintiff’s average weekly screen time during the period 23 December 2024 to 13 April 2025 is 10 hours and 50 minutes each week.

68. The laptop e-brief computer which the plaintiff has been issued has the same functionality as the blue computers, in that it is not networked and can be used for the purposes of viewing legal documents but does not have word processing functionality. The plaintiff was approved and was provided with an in-cell e-brief laptop between June 2022 and November 2023, following which he elected to return that computer. The plaintiff subsequently reapplied for a laptop e-brief computer, which was provided on 20 March 2025. He has had access to that laptop in his cell since that date. Additionally, the plaintiff has in-cell access to an offender tablet, which can be used to make library requests and allows access to the Legal Aid website but has links to external websites blocked for security reasons. The plaintiff submitted that although he accepted that such functionality was available in the tablet issued to him, he said that the tablet was ineffective and timed out after a short period. He accepted however that he was able to make library requests using the green computers or in paper form and that he is able to request Legal Aid’s telephone number to be added to his approved list for outgoing calls but had not yet done so.

62. Mr Peek’s affidavit established the library facilities available at GCC and the access to such facilities available to the plaintiff. The plaintiff does not have physical access to the library but is able to make up to 5 requests for library materials each week. He can do so either through his offender tablet, if that is working effectively, or through one of the green computers. The evidence established that on making a request the library can either upload the requested material electronically for the inmate to access on the computer network accessible on the green computers, or if a specific hard copy book or piece of legislation is requested the hard copy is loaned to the inmate. The library collection available at GCC includes legal reference books, self guides, pamphlets and up-to-date copies of legislation.

63. The evidence also established that the plaintiff is able to print documents. Printing of legal documents occurs by request to the Library Liaison Officer. For non-legal documents printing occurs by request of staff at the GCC who are to save the document onto USB and then print from a computer connected to a printer accessible only to staff. Inmates at GCC are entitled to make up to two requests for printing each week for a total of 100 pages per week.

64. The plaintiff has a generic “Goulburninmateemail” email address which he has used as the relevant contact email in his originating process and notice of motion. However, the evidence established that it is contrary to the defendant’s policy to provide independent email addresses for inmates and that doing so would create security concerns and would require additional resourcing to monitor correspondence passing through such an address to ensure appropriate use.

65. Although the plaintiff has sought an order that he be provided with an independent email account with preapproved email addresses, the evidence in Mr Peek’s affidavit established that none of the computers available to the plaintiff had functionality that would allow for the plaintiff to access emails. The “image” installed on the computers available to the plaintiff does not allow for email access.

66. I am not satisfied that the plaintiff has established that his mail is being “stopped” by the defendant. The 48 instances of outgoing mail in relation to which the plaintiff has not received any response must be considered in the context of the named addressees, which include the then Prime Minister Scott Morrison, the Minister for Corrective Services, the Premier of New South Wales, opposition ministers, members of parliament, academics at various universities and the secretary for the Department of Communities and Justice. It is also relevant that these 48 instances were over a period of almost four years. The most likely explanation for the lack of responses is not that his mail is being stopped, rather that the recipients elected to not reply. In any event, the absence of responses is not a sufficient basis for the plaintiff to have access to a computer with email functionality.

67. As a result of his access to green and blue computers in the computer access cell, to the e-brief laptop and the offender tablet in his cell the plaintiff has an ability to type, prepare and view legal documents and request for those documents to be printed. The plaintiff has demonstrated an admirable ability to create detailed typed documents, with reference to legal principles, legislation and legal authority, to prepare schedules and annexures and to arrange for those documents to be printed to be deployed by him in these proceedings. The documents that he has been able to prepare in these proceedings include his summons, proposed further amended summons, four affidavits and a 48 page legal submission. Even allowing for the restrictions and difficulties in creating such documents because of his incarceration, the documents display a significant degree of detail and fulsomeness.

68. The plaintiff has an entitlement to effective access to the courts. However, that entitlement does not mean that he is entitled to an equality of resources with the defendant or with a litigant who is at liberty. The role of the Court is to ensure that the plaintiff, as a maximum security inmate and subject to the necessary restrictions that status involves, has access to an “irreducible minimum” of resources required in order to ensure effective access to the courts.

69. I am required to recognise and give deference to the lawful regulation of the plaintiff’s circumstances of incarceration. The Crimes (Administration of Sentences) Act 1999 (NSW) confers powers and discretions on the Commissioner of Corrective Services NSW to assess and manage the safe and secure management of correctional facilities. Clause 122B of the Crimes (Administration of Sentences) Regulation empowers the Commissioner to give an approval to an inmate, or class of inmates, to use provided devices and allows for such approval to be subject to conditions, including conditions about the times at which the device may be used. Pursuant to that power the Commissioner has authorised the COPP to deal with aspects of the management of offenders and correctional centres including access to computer facilities.

70. In determining whether there has been a denial of access to the Court to conduct the litigation, the nature of the litigation is a relevant consideration. Here the litigation in issue is administrative proceedings for judicial review of a decision of NCAT in respect of his complaint to Corrective Services NSW. The issues involved in that matter are, unlike a criminal trial or a conviction appeal, relatively limited.

71. The amount of detailed paperwork relied on by the plaintiff in his application for interim relief is quite inconsistent with his claim of being denied effective access to justice. To the contrary he has availed himself, very effectively, of access to the courts. The plaintiff has not been relevantly impaired or impeded in terms of his access to the court and is not being denied an ability to have the hearing or precluded from being able to properly and effectively present written oral submissions in support of his summons or notice of motion. Although, in his oral submissions, the plaintiff submitted that his physical disabilities, namely the full body pain he experiences from arthritis, may soon result in him being unable to type, there is no evidence to establish that proposition or his prognosis.

72. In all of the circumstances, including the nature of the litigation and taking into account the statutory powers and discretions conferred on the defendant to ensure the safe and secure management of correctional facilities, I am of the view that the plaintiff has access to sufficient resources required in order to ensure effective access to the courts and a fair hearing. Denial of access to the Court to conduct the litigation has not been made out.

73. Turing to the relief sought in the notice of motion, the only orders pressed relate to the making of a suppression order over the plaintiff’s criminal record and the appointment of an amicus curiae. The defendant neither consented to nor opposed the making of those orders.

74. The plaintiff submitted that a suppression order or non-publication order should be made on the grounds in s 8(1)(a), (c) or (d) of the Court Suppression and Non-publication Orders Act 2010 (NSW). He submitted that the proper administration of justice would be prejudiced in the current proceedings, because he says that if his criminal record is released his mental health would suffer and the need for him to recover would result in delays to the proceedings. He also submitted that the release of his criminal record would cause him to be assaulted or killed in prison, in particular because he cannot defend himself because of his arthritis.

75. The evidence established that plaintiff is designated a Special Management Area Placement (SMAP) inmate. As a result of that classification, he is housed in a designated area within the correctional centre which is used to house inmates who are assessed as vulnerable or at risk from other inmates in the general population. Consequently, he is provided a degree of protection from other inmates by virtue of that classification. None of the plaintiff’s affidavits establish that he has a basis for concerns for his safety which are not catered for by his classification.

76. Further, the ground in s 8(1)(d) is limited to orders necessary to avoid undue distress or embarrassment to parties or witnesses in criminal proceedings involving an offence of a specified nature. Pursuant to s 8(3) such an order can only be made to avoid undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a specified nature, if exceptional circumstances are established. Neither s 8(1)(d) or s 8(3) apply to proceedings such as the present which are of an administrative nature.

77. I am not satisfied that any of the grounds in s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW) are made out. Further, the plaintiff’s objections to the references to his current and historical convictions in Exhibit TM-1 are not made out. Those convictions are admissible and relevant to the application of the COPP policies to the plaintiff in the particular circumstances of his incarceration.

78. The plaintiff’s application for an amicus curiae is so that he might have assistance with his preparation for and participation in the final hearing. The plaintiff had not identified any particular person to represent him as an amicus curiae and has not approached anyone in that regard. I note that in his oral submissions the plaintiff said that he had lost a lot of faith with Legal Aid.

79. An amicus curiae is not a party to the proceedings. By definition, it, he or she, is a stranger to the litigation and does not have any rights, or interests, affected by the litigation.

80. The power of courts to permit amicus curiae appearances is well established: Breen v Williams (1994) 35 NSWLR 522 at 533 (Kirby P). There is no prescription of the circumstances in which it may, or may not, be proper for a Court to hear an amicus. It is well-established that if it is in the interests of justice to do so, the Court may permit an amicus curiae to participate in the proceedings: Kabushiki Kaisha Sony Computer Entertainment v Stevens (2001) 116 FCR 490; [2001] FCA 1379 at [11] (Sackville J).

81. A further consideration is one of utility. The Court should be satisfied that it would be significantly assisted by the submissions of the amicus and that any costs to the parties, or any delay consequent upon agreeing to hear the amicus, is not likely to be disproportionate to the expected assistance: Roadshow Films Pty Ltd v iiNet Limited (2011) 248 CLR 37; [2011] HCA 54 at [4].

82. The principal role of an amicus curiae was explained by Brennan CJ in Levy v The State of Victoria (1997) 189 CLR 579 at 604-605; [1997] HCA 31. It is to provide assistance to the Court:

“The hearing of an amicus curiae is entirely in the Court’s discretion. That discretion is exercised on a different basis from that which governs the allowance of intervention. The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted. In Kruger v The Commonwealth, … the Court … said in refusing counsel’s application to appear for a person as amicus curiae:

‘As to his application to be heard as amicus curiae, he fails to show that the parties whose cause he would support are unable or unwilling adequately to protect their own interests or to assist the Court in arriving at the correct determination of the case. The Court must be cautious in considering applications to be heard by persons who would be amicus curiae lest the efficient operation of the Court be prejudiced. Where the Court has parties before it who are willing and able to provide adequate assistance to the Court it is inappropriate to grant the application.’

It is not possible to identify in advance the situations in which the Court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance. All that can be said is that an amicus will be heard when the Court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected.” (Omitting citations)

90. The role of an amicus is to assist the court by ensuring that the court is properly informed of matters which should be taken into account in reaching its decision which may be of assistance to the court where the litigation involves an important question of law affecting persons other than the parties, especially disadvantaged persons: Re Medical Assessment Panel; Ex parte Symons (2003) 27 WAR 242; [2003] WASC 154 at [18] .

91. It is often a convenient course to allow an address by an amicus curiae where one of the parties to the litigation or appeal is unable or unwilling to arrange for legal representation, or where they may be no contradictor to ensure that opposing arguments are brought to the attention of the court: Dobree v Hoffman (1996) 18 WAR 36.

92. As there is no right of appearance it is entirely for the court to decide whether or not an amicus curiae should be heard and, if so, to what extent and on what aspects of the case: Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 258; [1995] HCA 10.

93. In the present circumstances, including that there is no identification of any proposed amicus and no particularisation of aspects of the case with which the amicus might be able to assist the court, I am not satisfied that the order sought should be made.

94. However, it would seem that in reality the plaintiff is seeking the assistance of a pro-bono lawyer rather than the appointment of an amicus.

95. The court has the power to make a referral under rule 7.36(1) of the Uniform Civil Procedure Rules 2005 (NSW). Rule 7.36(2) provides that the purposes of sub-rule (1) the court may take into account the means of the litigant, the capacity of the litigant to obtain legal assistance outside the scheme, the nature and complexity of the proceedings and any other matter considered appropriate.

96. The plaintiff has been in full-time custody since August 2015. Although there is no evidence of the plaintiff’s financial means, I take into account that for the last 10 years he has not been in position to earn any income through employment. In relation to his capacity to obtain legal assistance outside the referral scheme I take into account that the plaintiff has consistently for the last several years appeared self-represented without the assistance of any lawyers and that he has expressed that he has lost faith with Legal Aid. In that light I accept that his capacity to obtain legal assistance outside the scheme is significantly reduced. The proceedings in relation which the plaintiff requires assistance are administrative proceedings which, on one view relate to a relatively confined and simple issue. However, given the material filed to date by the plaintiff there are a number of topics upon which he requires assistance, and which may bear on the ultimate issue. Other matters I take into account include the plaintiff’s mental health, his physical restrictions due to his arthritis and pain and his plea for legal assistance to help him finalise the proceedings.

97. Taking all those matters into account it will in my view be of assistance not only to the plaintiff but the administration of justice for a barrister to be engaged. A barrister acting on the plaintiff's behalf can be expected to bring some focus to the proceedings, to assist in the efficient conduct of the litigation and is likely to assist the Court in arriving at a just result.

98. In those circumstances, having formed the view that it is in the interests of the administration of justice to do so, I propose to order that the plaintiff be referred to the registrar for referral to a barrister on the pro bono panel for legal assistance. That assistance will be with respect to the settling of any further evidence, advice with respect to the conduct of the proceedings, preparing written submissions and the conduct of and appearance at the final hearing.

Orders

99. Accordingly, I make the following orders:

1. Disability adjustment request prayer for relief 2 in the Further Amended Summons is dismissed;

2. Interim and procedural prayers for relief 3 and 4 in the Further Amended Summons are dismissed;

3. The Notice of Motion is dismissed;

4. I refer the plaintiff to the Registrar for referral to a barrister on the Pro Bono Panel for legal assistance;

5. That assistance is to be as follows:

1. To advise in respect of the proceedings;

2. To settle any further evidence to be relied upon in respect of the proceedings;

3. To settle any written submissions in respect of the proceedings; and

4. To appear at and conduct the proceedings.

6. Costs of and associated with the interim hearing are costs in the cause.

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Amendments

18 July 2025 - Amendment to representation details in coversheet

01 September 2025 - Typographical error corrected at [84]: 'polies' amended to 'policies'.

Amendment to 'decision under appeal' section of coversheet.

Decision last updated: 01 September 2025