Sleiman v Commissioner, NSW Department of Corrective Services

[2008] NSWSC 617

CITATION:	SLEIMAN v COMMISSIONER, NSW DEPARTMENT OF CORRECTIVE SERVICES [2008] NSWSC 617
HEARING DATE(S):	Tuesday 1 July 2008
JUDGMENT DATE :	1 July 2008
JURISDICTION:	Administrative Law
JUDGMENT OF:	Hall J at 1
EX TEMPORE JUDGMENT DATE:	1 July 2008
DECISION:	Leave granted to the plaintiff/applicant under s.4 of the Felons (Civil Proceedings) Act 1981 to initiate the proceedings.
CATCHWORDS:	PRACTICE AND PROCEDURE – PRISONERS – application by prisoner for leave to commence civil proceedings – whether the proceedings are an abuse or process – whether there is prima facie ground for the proceedings – prisoner seeks declaratory relief – conditions of custody said to amount to segregated custody
LEGISLATION CITED:	Crimes (Administration of Sentences) Act 1999 Crimes (Administration of Sentences) Regulation 2001 Felons (Civil Proceedings) Act 1981 Freedom of Information Act Supreme Court Act 1970
CASES CITED:	Hamzy v Commissioner of Corrective Services [2007] NSWSC 1469
PARTIES:	Emad SLEIMAN v COMMISSIONER, NSW DEPARTMENT OF CORRECTIVE SERVICES
FILE NUMBER(S):	SC No 30061 of 2008
COUNSEL:	P: M A Robinson
SOLICITORS:	P: Yazbek Lawyers

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

HALL J

TUESDAY 1 JULY 2008

No 30061 of 2008

EMAD SLEIMAN v THE COMMISSIONER, NEW SOUTH WALES DEPARTMENT OF CORRECTIVE SERVICES

JUDGMENT
(Application for leave under s.4 of the Felons (Civil Proceedings) Act 1981

1 HIS HONOUR: This is an application under s.4 of the Felons (Civil Proceedings) Act 1981.

2 The plaintiff/applicant seeks a declaration and a number of orders in a summons filed on 21 May 2008. The relief claimed in paragraph 1 of the summons is in the following terms:-

“1. A declaration that the plaintiff is held in 'segregated custody' within the meaning of that expression in s.10 of the Crimes (Administration of Sentences) Act 1999 (NSW).”

3 The plaintiff's summons is supported by his own affidavit sworn on 1 May 2008 and the affidavit of his solicitor, Ms N Yazbek, sworn on 9 May 2008. Those affidavits were read on this application for leave.

4 On 26 May 2008, a notice of appearance was filed on behalf of the Commissioner New South Wales Department of Corrective Services. On the hearing today Mr M A Robinson of counsel appeared on behalf of the plaintiff.

5 Ms K Mattes, solicitor of the Crown Solicitor's office, appeared as a matter of courtesy to the court in relation to the application but indicated that she did not seek leave of the court to appear on the hearing of the application.

The plaintiff's case

6 The plaintiff, in essence, claims that he has been placed in a unit of the Goulburn Correctional Centre known as the High Risk Management Unit. According to the evidence he is currently classified, pursuant to Regulation 22 of the Crimes (Administration of Sentences) Regulation 2001, as classification A1. That is:-

“The category of inmates who, in the opinion of the Commissioner, represent a special risk to good order and security and should at all times be confined in special facilities within a secure physical barrier that includes towers or electronic surveillance equipment.”

7 According to the plaintiff's affidavit, he was convicted and sentenced in 1999 in respect of the offence of murder and another offence and he was sentenced to a term of 21 years imprisonment with a non-parole period of 16 years and three months.

8 In December 2001, he was transferred to the High Risk Management Unit at the Goulburn Correctional Centre. This had the effect that he was removed from the general prison population. In more recent years, on 7 February 2006, he was returned to the main prison population and according to his affidavit, it was on 25 or 26 March 2006 that he was removed to what he terms the Segregation Unit under a purported segregation custody direction.

9 The plaintiff provided in his affidavit a lengthy account of the conditions in the High Risk Management Unit. He also refers to what he terms "HRMU associations" and to the practical consequences of what is said to be his segregation.

10 In Mr Robinson's written summary submissions on leave, it is contended that the evidence establishes, prima facie, four factual matters. Firstly, that the plaintiff is presently being held in the High Risk Management Unit at Goulburn Correctional Centre and that his present classification, pursuant to Regulation 22 of the Crimes (Administration of Sentences) Act 1999, is A1. Secondly, that no current s.10 segregation direction exists in relation to the plaintiff. Thirdly, that the plaintiff is plainly held in isolation from most other inmates within the Goulburn Correctional Centre and within the New South Wales prison population generally. Fourthly, that the plaintiff is permitted to associate only with such prisoners or inmates as the Commissioner or the General Manager or delegate of the correctional centre permits. It is further submitted that the plaintiff is sometimes permitted no association whatsoever.

11 The submission was that these facts together constitute what is termed "segregated custody" under the Crimes (Administration of Sentences) Act.

Felons (Civil Proceedings) Act 1981

12 By virtue of s.4 of this Act:-

“A person who is in custody as a result of having been convicted of or found to have committed a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.”

13 Section 5 of the Act provides that:-

“A court shall not under s.4 grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.”

14 By virtue of s.7 of the Act, there is no right of appearance except by leave of the court.

15 Leave under s.4 to institute proceedings may be obtained following the commencement of proceedings. In this respect, Mr Robinson referred in his written submissions to the decision of the Court of Appeal in Jol v State of New South Wales (1998) 45 NSWLR 283, in particular at 290C.

The Crimes (Administration of Sentences) Act 1999

16 Mr Robinson submitted, in paragraph 6 of his written submissions on the leave application, that the application and the substantive public law case is similar to that sought to be agitated in Hamzy v Commissioner of Corrective Services [2007] NSWSC 1469, a judgment in which Bell J granted leave under the Felons (Civil Proceedings) Act. Her Honour in the judgment given in that case set out the relevant provisions of the Act in the scheme as prescribed by the Act.

17 There are a number of provisions in the Act that are relevant to the matters that have been raised during the course of the hearing. It is sufficient to refer to the relevant provisions in Division 2 Part 2 of the Act which is concerned with what is termed "segregated and protective custody". Section 9 contains a definition of "segregated custody direction" as meaning a direction referred to in s.10.

18 As already indicated, it is the plaintiff's contention that no such direction exists. Under s.10:-

“(1) The Commissioner may direct that an inmate be held in segregated custody if of the opinion that the association of the inmate with other inmates constitutes or is likely to constitute a threat to:

(a) the personal safety of any other person, or

(b) the security of a correctional centre, or

(c) good order and discipline within a correctional centre."

19 By s.10(2):-

“The general manager of a correctional centre may exercise the Commissioner’s functions under this section in relation to the correctional centre and, on each occasion he or she does so, must notify the Commissioner of that fact and of the grounds on which the segregated custody direction was given."

20 Section 12 deals with the effect of segregated or protective custody directions. Section 12(1) provides that:-

“An inmate subject to a segregated or protective custody direction is to be detained:-
(a) in isolation from all other inmates, or
(b) in association only with such other inmates as the Commissioner (or the general manager of the correctional centre in the exercise of the Commissioner’s functions under s.10 or s.11) may determine."

21 By s.13:-

“A segregated or protective custody direction must be in writing and must include the grounds on which it is given."

22 It is contended in the present application that the plaintiff's present position falls within the circumstances described in s.12(1)(b) of the Act.

23 Section 17(1) provides that a segregated custody direction remains in force until it is revoked.

24 My attention has also been drawn to the provisions set out in ss.16 to 19. It is sufficient here to advert to the fact that s.16 imposes requirements for reports to be made, amongst other things, about segregated custody directions, such reports being made to the Commissioner within the time specified. And s.19 is concerned with the process of review available to the Review Council of segregated custody orders, amongst other matters.

25 In the course of his submissions, Mr Robinson drew my attention to the provisions of Regulation 26 of the Crimes (Administration of Sentences) Regulation 2001 which empowers the Commissioner to make certain determinations as set out in subparagraphs (a) to (e). The submission was that the Regulation cannot authorise determinations by the Commissioner that effectively override the provisions of Division 2 of Part 2 of the Act. He indicated that, should leave be granted, that however may become an issue for determination at a final hearing.

Jurisdiction

26 Relief sought in the summons relies upon the court's jurisdiction conferred upon it by ss.65, 69 and 71 of the Supreme Court Act 1970. The declaratory relief sought relies upon the provisions of the Crimes (Administration of Sentences) Act as providing for and conditioning the power to hold the plaintiff in what is asserted to be segregated custody as an inmate of the High Risk Management Unit on a restricted association basis. That falls within s.12(1)(b) of the Act.

27 In determining this application for leave under s.4 of the Felons (Civil Proceedings) Act, I am required by the Act to consider whether, on the evidence, I am satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings. I have, in this respect, considered the evidence that establishes, at least on a prima facie basis, the absence of an operative segregated custody direction under s.10(1) of the Act.

28 Amongst the evidence relied upon is page 28 in Exhibit 3 to the affidavit of Ms Yazbek. It is a document entitled, "Detailed Care in Placement" which sets out the position concerning the plaintiff as at 31 May 2007 and records the making of directions, that is, segregated custody directions in respect of the plaintiff. The direction number GLB1071752 is recorded as having been revoked, the effective date of the revocation being 12 June 2006. That is the last revocation in time recorded in respect of the plaintiff, all other entries relating to earlier years of his custody at the Goulburn Correctional Centre.

29 I accept that the evidence as a whole does, prima facie, establish the factual matters that are referred to as the four factual matters in the written submissions of the plaintiff in paragraph 11. In particular, I rely upon the assurance that has been given by Mr Robinson that a full review of all documentation that has been produced under the Freedom of Information Act establishes that there is no record of any operative segregated custody direction in respect of the plaintiff under s.10(1) as having been made.

30 I am satisfied that, having regard to the evidence and the matters raised in Mr Robinson's submissions, that the proceedings are not an abuse of process and there are prima facie grounds for them.

31 I accordingly, for these reasons, grant leave to the plaintiff, under s.4 of the Felons (Civil Proceedings) Act 1981 to initiate the proceedings.

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