Michael Patsalis v State Of New South Wales

[2013] HCASL 24

MICHAEL PATSALIS

v

STATE OF NEW SOUTH WALES

[2013] HCASL 24
S325/2012

1. The applicant is currently serving a significant term of imprisonment for murder.  He was assaulted in his cell by his cellmate on 8 August 2010 and since then has sought to be housed in a "one out" cell.  By an amended summons filed in the Supreme Court of New South Wales on 21 February 2012, the applicant sought a mandatory injunction compelling the respondent or the Commissioner of Corrective Services NSW ("the Commissioner") to detain him in a one out cell for the balance of his incarceration.  He also challenged the validity of the Operations Procedure Manual ("the Manual") adopted by Corrective Services NSW on the basis that the limit it set on the quantity of documents able to be stored in an inmate's cell infringed the applicant's right to access the courts.

2. On 23 March 2012, the Supreme Court (Beech-Jones J) dismissed the amended summons, holding that there was no basis upon which the relief sought could be granted. 

3. On 25 September 2012, the Court of Appeal of the Supreme Court of New South Wales granted leave to appeal from Beech-Jones J's judgment but unanimously dismissed the appeal.  Basten JA, with whom Allsop P and Sackville AJA agreed, held that in order to obtain the mandatory injunctive relief sought, the applicant must show that the Commissioner was in breach of a legal duty by housing him with another inmate.  The applicant could not do so.  The Commissioner's duty, properly described, was to take reasonable care to avoid harm being caused to persons and this required a number of matters to be taken into account, including the availability of accommodation.  The decision could not be said to be an unreasonable exercise of power. 

4. So far as concerned the Manual, the Court of Appeal held that the Manual was merely a set of guidelines.  Any challenge to its validity was therefore dependent upon conduct in applying those guidelines.  None was identified by the applicant. 

5. The application for special leave to appeal continues to advance the invalidity of the Manual and the applicant's ongoing entitlement to a one out cell.  There is no reason to doubt the correctness of the Court of Appeal's conclusion on those grounds.  An appeal to this Court would enjoy no prospects of success.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. 

S.M. Kiefel
13 March 2013 S.J. Gageler