CITATION: Reed v Commissioner of Corrective Services [2008] NSWSC 161 HEARING DATE(S): 29 January 2008
JUDGMENT DATE :
29 February 2008JUDGMENT OF: Fullerton J DECISION: (1) The decisions of the delegate of the defendant of 20 August 2007 and 10 September 2007 denying the plaintiff access to all New South Wales correctional centres were not a valid exercise of the powers of the defendant under clause 105 of the Crimes (Administration of Sentences) Regulation 2001.
(2) The decisions of the delegate of the defendant and the decisions of the Assistant Commissioner (Office of the Commissioner and Human Resources) of 17 October 2007 confirming those decisions are quashed.
(3) The defendant is to pay the plaintiff’s costs.CATCHWORDS: Clause 105(1)(a) of the Crimes (Administration of Sentences) Regulation - Commissioner prohibited solicitor from visiting correctional centres - Whether conduct would prejudice the good security of NSW correctional centres - Finding of deceitful conduct - Whether sufficient material for that finding LEGISLATION CITED: Crimes (Administration of Sentences) Act 1999
Crimes (Administration of Sentences) RegulationCASES CITED: Anderson v Pavic [2005] VSCA 244
Avon Downs Pty Ltd v FACT (1949) 78 CLR 353
Barac v Mood [2006] NSWSC 738
Herald Weekly Times Ltd v Correctional Services Commissioner [2001] VSC 329
Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 25
Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562; 148 A Crim R 74
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59PARTIES: Isabel Reed (Plaintiff)
Commissioner of Corrective Services (Defendant)FILE NUMBER(S): SC 2007/15580 COUNSEL: PD Rosser (Plaintiff)
MA Izzo (Defendant)SOLICITORS: Nicolas Moir and Associates (Plaintiff)
Crown Solicitor of New South Wales (Defendant)
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LISTFULLERTON J
29 FEBRUARY 2008
JUDGMENT2007/15580 ISABEL REED v COMMISSIONER OF CORRECTIVE SERVICES
HER HONOUR:
Introduction
1 On 29 August 2007, Superintendent Mood, a delegate of the Commissioner of Corrective Services, purported to exercise a power pursuant to clause 105 of the Crimes (Administration of Sentences) Regulation (“the relevant Regulation”) refusing the plaintiff access to any correctional centre within New South Wales until 13 August 2008, a date after which she may make an application to be considered for future access to the prison system.
2 On 17 October 2007, the Assistant Commissioner (Office of the Commissioner & Human Resources), also a delegate of the Commissioner of Corrective Services, notified the plaintiff of his agreement with Superintendent Mood’s decision.
3 The plaintiff was admitted to practice in April 2005. Although she holds a current practising certificate under the Legal Profession Act 2004, she is not in practice as a solicitor or barrister. It is not clear from the evidence whether this is as a result of the delegate’s decision or for other reasons.
4 The evidence relied upon in support of the plaintiff’s claim for an order quashing Superintendent…
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- Case
- [2008] NSWSC 161
- Decision Date
CaseChat Overview and Summary
The Court emphasised that the Commissioner's decision-making process was not arbitrary or capricious but rather was based on a legitimate concern for the good security of the correctional centres. The Commissioner had to balance the respondent's right to legal representation with the need to maintain security within the correctional facilities. The Court held that the Commissioner's decision was proportionate to the identified security concerns and was a legitimate exercise of the power granted under the Regulation. The Court found that the Commissioner's decision was based on a reasonable apprehension of a risk to the good security of the correctional centres, and that the Commissioner was entitled to rely on the evidence of deceitful conduct by Mr Reed in reaching this conclusion. The Court concluded that the Commissioner's decision was not an unreasonable exercise of power and was therefore upheld.
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