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Nicopoulos v Commissioner for Corrective Services

Nicopoulos v Commissioner for Corrective Services

Case [2004] NSWSC 562 29 June 2004

Judicial Review

Natural Justice & Procedural Fairness

Breach of Contract

Administrative Law

Criminal Law

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Reported Decision:
148 A Crim R 74

Supreme Court

CITATION: Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562

HEARING DATE(S): 21, 26, 27 & 28 May 2004

JUDGMENT DATE:
29 June 2004

JUDGMENT OF: Smart AJ at 1

DECISION: See para 117

CATCHWORDS: Commissioner exercising power under cl 105 of Crimes (Administration of Sentences) Regulation to prevent solicitor entering gaols for legal visits for alleged breach of cl 97 and on intelligence information - non-disclosure of that information yet taken into account - eliding rules of procedural fairness to virtually nothing in circumstances - Commisioner's decision subject to judicial review - Operation of s 130 of Evidence Act 1995 - reputation and livelihood of solicitor at stake and interests of client inmate likely to be affected.

LEGISLATION CITED: Australian Law Reform Commission, Evidence, Vol 1
British Nationality Act 1981
Crimes (Administration of Sentences) Regulation 2001
Crimes (Administration of Sentences) Act 1999
Evidence Act 1995
Prisons Act 1952
Summary Offences Act s 27E
Supreme Court Act 1970

CASES CITED: A-G v Ryan [1980] AC 718
Alister v The Queen (1983) 50 ALR 41 at 44-45
Amer v Minister for Immigration and Ethnic Affairs unrep 18 December 1989
Applicant Veal of 2002 v Minister for Immigration [2003] FCA 4
Ball v Minister for Immigration [2003] FCA 699
Bromley v Dawes (1983) 34 SASR 73
Doody v Secretary of State for the Home Dept [1994] 1 AC 531 at 560
Flynn v The King (1949) 79 CLR 1
Gilson v Minister for Immoigration 21 July 1997 Lehane J, BC9703148
Johns v Australian Securities Commission (1993) 178 CLR 408 at 472
Kioa v West (1985) 159 CLR 550 at 615
Leech v Deputy Governor of Parkhurst Prison [1988] AC 533
McEvoy v Lobban [1990] 2 Qd R 235
O'Reilly v Mackman [1983] 2 AC 237 at 279
Ousley v The Queen (1997) 192 CLR 69 at 79-80
Palmer v Kizon (1997) 72 FCR 409
R v Secretary of State for the Home Department ex parte Fayed & Anor [1997] 1 All ER 228
Russell v Duke of Norfolk [1949] 1 All ER 109 at 11
Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 at 328
The Queen v Forbes, ex parte Bevan (1972) 127 CLR 1 at 7
Vezitis v McGeechan [1974] 1 NSWLR 718
WAFG v Minister for Immigratin [2003] FCA 3

PARTIES :
James Nicopoulos v Commissioner for Corrective Services

FILE NUMBER(S): SC 30036/04

COUNSEL: (P) C Steirn SC & F Santisi
(D) N Perram & N Bilinski

SOLICITORS: (P) Spanko Soulos & Co
(D) I V Knight

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

SMART AJ

Tuesday, 29 June, 2004

JUDGMENT

1. James Nicopoulos is a solicitor with a current practising certificate in New South Wales who had a substantial practice in the criminal law. Some of his clients were charged with serious offences and designated by the Corrective Services Department as "extreme high security inmates", the highest risk categories…

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 Nicopoulos v Commissioner for Corrective Services

Details

AGLC: Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562
Case: [2004] NSWSC 562
Decision Date: 29 June 2004

CaseChat Overview and Summary

The case of Nicopoulos v Commissioner for Corrective Services involved a dispute where the Commissioner exercised a power under clause 105 of the Crimes (Administration of Sentences) Regulation to prevent a solicitor from entering gaols for legal visits. The basis for this action was an alleged breach of clause 97, as well as information obtained through intelligence. The non-disclosure of this intelligence, despite it being considered in the decision-making process, raised significant concerns. The court had to determine whether the Commissioner's decision was subject to judicial review and how the operation of section 130 of the Evidence Act 1995 applied in this context. The case also addressed the potential impact on the solicitor's reputation and livelihood, as well as the interests of the client, the inmate.

The central legal issues revolved around the application of procedural fairness in the Commissioner's decision-making process. The court had to consider whether the Commissioner's reliance on undisclosed intelligence information, while making a decision that affected the solicitor's ability to provide legal services, complied with the principles of natural justice and procedural fairness. Additionally, the court examined the scope of judicial review available in such cases and the relevance of section 130 of the Evidence Act 1995. The potential harm to the solicitor's professional reputation and livelihood, along with the possible consequences for the client, also formed part of the legal considerations.

The court found that the Commissioner's decision was subject to judicial review and that the principles of procedural fairness were not adequately observed in this instance. The non-disclosure of intelligence information, despite its use in the decision-making process, was seen as a significant breach of natural justice. The court held that the Commissioner's actions effectively eliminated the rules of procedural fairness, rendering them virtually meaningless in these circumstances. The court further determined that the operation of section 130 of the Evidence Act 1995 did not absolve the Commissioner from the obligation to adhere to procedural fairness. The potential harm to the solicitor's reputation and livelihood, as well as the implications for the client, were also acknowledged as important factors in the decision.

The final orders of the court included a declaration that the Commissioner's decision was subject to judicial review and that it was invalid due to a breach of procedural fairness. The court also mandated that the Commissioner provide appropriate redress to the solicitor, considering the harm caused to their reputation and livelihood. The decision emphasised the importance of adhering to procedural fairness in administrative decision-making processes, particularly when the interests of individuals, such as legal practitioners and their clients, are at stake.

Orders