Harrison v Commissioner of Corrective Services NSW (No 3)

1. [1]

   This judgment is about whether a notice to produce should be set aside.

2. [2]

   By way of brief background, Mr Harrison, the plaintiff and respondent on the Notice of Motion, is a prison inmate. He is currently serving a sentence for multiple serious offences which expires on 20 March 2049, with the non-parole period expiring on 19 March 2040. Mr Harrison has been designated as an “Extreme High Security” (EHS) inmate since a decision of the Commissioner of Corrective Services NSW (the defendant and applicant on the Notice of Motion), was first made on 5 December 2017 pursuant to cl 15 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (the CAS Regulation). This designation has been continued several times since then.

3. [3]

   By way of amended summons filed on 17 March 2025 (further amended, in certain respects, pursuant to leave granted by me on 14 October 2025) Mr Harrison seeks judicial review of a decision made by the Acting Commissioner, Mr Leon Taylor on 12 December 2024 in relation to continuing the EHS designation (the impugned decision). He also seeks certain declarations including in relation to decisions (dated 8 March 2024 and 26 November 2024) (the banning decisions) made by the Governor of the prison to ban certain persons from visiting the plaintiff.

4. [4]

   Before me is an Amended Notice of Motion filed by the Commissioner on 26 September 2025, by which he seeks to set aside a notice to produce issued by Mr Harrison, addressed to the Commissioner, dated 6 May 2025, (the second notice to produce), with costs.

5. [5]

   The Commissioner further seeks leave to produce in response to an earlier notice to produce dated 24 January 2025 (the first notice to produce) as well as in relation to the second notice to produce, redacted versions of certain documents. These documents are listed in Annexure A to the Amended Notice of Motion. I note that an amended version of Annexure A (amended Annexure A) was handed up at the hearing (marked as part of Exhibit B). As I understand the position, there remains a contest in relation to only a small number of the redactions in the documents set out in the amended Annexure A, being three documents produced in response to the first notice to produce (documents 5, 6 and 7 in the amended Annexure A).

6. [6]

   I note that some other documents accepted by the Commissioner to be relevant, as they were before the decision maker, have already been produced in response to the second notice to produce.

The Evidence

1. [7]

   The hearing took place before me on 14 October 2025. Mr Harrison was self-represented, appearing by video link from custody. Further correspondence between the parties concerning issues as to what was precisely pressed by Mr Harrison in relation to the second notice to produce continued after the hearing, and the final position was communicated to my chambers on 19 December 2025.

2. [8]

   The Commissioner relied upon the affidavits of Nicholas da Costa, Manager of Security at Goulburn Correctional Centre, sworn 17 March 2025; and three affidavits of Brendan Timothy Sinha, a solicitor with the Crown Solicitor’s office, affirmed 23 May 2025, 2 July 2025 and 25 September 2025 respectively. I also received into evidence a letter authored by Mr Sinha dated 9 October 2025 with annexures, which was marked Exhibit B. I have also had regard to an email chain with my Chambers with the last email dated 19 December 2025.

3. [9]

   Mr Harrison relied upon two affidavits, affirmed 23 September 2025 and 10 October 2025 respectively.

4. [10]

   Both parties supplied written and oral submissions.

5. [11]

   I note there have been other interlocutory applications in relation to other issues dealt with by this Court: see Harrison v Commissioner of Corrective Services [2025] NSWSC 390 (Garling J) and Harrison v Commissioner of Corrective Services NSW (No 2) [2025] NSWSC 570 (Dhanji J).

The second notice to produce

1. [12]

   The second notice to produce was issued under r 21.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Mr Harrison seeks 34 categories of documents (some of which have subcategories). These are as follows:

   1. (1)

      A copy of this Notice.

   2. (1)

      Copy (unredacted) of all current, and all iterating versions since July 2017 of:

   3. (2)

      By reference to the Defendant’s Statement of Reasons dated 26 March 2025

   4. (3)

      Complete copies of the following:

   5. (4)

      Other HSIMC and SORC records

   6. (5)

      List of all SORC meeting dates (e.g. annual review, out of schedule, case plan reviews, or any other kind) from 21 March 2013 to date.

   7. (6)

      List of all HSIMC meeting or any other review or meetings related to the plaintiff from 21 March 2013 to date.

   8. (7)

      Complete copies of all minutes (and any attachments) and recommendations of each of the above SORC and HSIMC meetings referred to in (3) and (4) above and including all Designation or other reports and other material provided by MRRC [Metropolitan Remand and Reception Centre] and [GCC] or other sources for consideration corresponding to each meeting event.

   9. (8)

      If not captured above, the HSIMC minutes and recommendations for 6 May 2021 and 2 December 2021, and any other related SORC minutes with all reports and other material provided by Goulburn CC or other sources for consideration at these two meeting events.

   10. (9)

       All report requests to the [CIG] and reports relevant to the plaintiff’s EHS designation and continuance to date.

   11. (10)

       All relevant OIMS Intelligence Screens – Management Programs documents.

   12. (11)

       Copies of all emails or other communications between GCC and the SORC/HSIMC in relation to the Plaintiff between 2017 to date.

   13. (12)

       Phone records

   14. (13)

       The OTS Call History Report [3] for all calls to all numbers (including common CADL [Common Auto Dial List] numbers) from 1 June 2017 to date.

   15. (14)

       All phone call recordings for calls from the OTS account of inmate HARRISON […] for the following numbers:

   16. (15)

       The OTS call number allocation list (name, number and other details) for all current and prior numbers applied for (active/inactive/approved or otherwise).

   17. (16)

       List report of all phone numbers applied for and existing on the OTS for inmate HARRISON […].

   18. (17)

       Corrective Services Support Line records

   19. (18)

       Copy of the CCSL [Corrective Services Support Line] enquiry history and response reports between 1/1/2017 to date.

   20. (19)

       Visits records

   21. (20)

       Visits History (all possible information panels/fields) for inmate HARRISON […] from 21 March 2013 to date.

   22. (21)

       Copy of all EHS visits applications/renewal applications (with attached documents) and results of Criminal Records check reports, for every visitor and for each individual application/renewal application submitted (including all related correspondences, emails, notes of conversations, staff or other reports, all letters of notification of outcome of application, and all material relied on to assess such applications).

   23. (22)

       Copy of any record or report generated in relation to (if any) adverse visit or visitor incidents or significant interactions taking place during or in relation to EHS or other visits occurring for inmate HARRISON […] at Goulburn (in-person or AVL) between October 2017 to date.

   24. (23)

       Other records

   25. (24)

       Copy of the Inmate Request/Application reference number 017/2/25 of 24/1/26 (lodged 27/1/25) seeking internal review of the change of placement and issues regarding placement at Lithgow.

   26. (25)

       Copy of OIMS record of Plaintiff’s current Next of Kin / Emergency Contact details.

   27. (26)

       List of all OIMS screen/sections, and relevant TRIM [Electronic Document and Records Management System] folders and entries.

   28. (27)

       All OIMS Case Notes relating to:

   29. (28)

       The Offence in Custody charge reports and history, for inmate [B] ([…]) for in-custody misconduct offences occurring since 11 November 2024.

   30. (29)

       Inmate [S] ([…]) related

   31. (30)

       All OIMS Case Notes between 1 November 2024 to date.

   32. (31)

       The Offence in Custody reports and history for inmate [S] including but not limited to those of or about 26 November 2024.

   33. (32)

       Any and all other records pertaining to inmate [S] involvement in his unauthorised taking and dissemination of CSNSW [Corrective Services NSW] documents.

   34. (33)

       EHS inmates [4]

   35. (34)

       List of all currently existing EHS designated and HSIMC managed inmates (name/MIN [Master Index Number] only) and date of designation.

   36. (35)

       List of all EHS inmates in Clarence Correctional Centre between 1/1/2021 to date.

   37. (36)

       List of all EHS inmates placed in [GCC] between 1/1/2021 to date.

   38. (37)

       Copy of gaol of classification and housing location (cell) history for each EHS inmate identified from the lists for the period 1/1/2024 to date.

   39. (38)

       Emails

   40. (39)

       Where not captured by (10) above, all email correspondence related to inmate HARRISON […] between solicitor [RH] and [PM]; [JD]; Glbintel; MOSC; or other GCC email (including reply chains) between 1/1/2024 to date.

   41. (40)

       All emails or other internal correspondences from SAS Amie Croft to the governor or other management (between 1/8/24 to date) in relation to any issues, complaints and allegations involving the B Wing sweepers (including about television rental extortions, contraband, drugs, standover or other illicit activities).

   42. (41)

       Official Visitor

   43. (42)

       Copy of any communications between the GCC governor (or her delegates) and Official Visitor(s) and Custodial Inspector in relation to the November 2024 Official Visitor raising of the ‘documents’ issue on or about 11 November; and otherwise in relation to the Plaintiff between 1/11/2024 to date.

   44. (43)

       Computer access records

   45. (44)

       The complete spread sheet maintained for all Goulburn B-wing inmates access to the computer room (including but not limited to inmates [K] ([…]); [W] ([…]); and HARRISON ([…])) from first entry to date.

Legal principles

1. [13]

   Rule 21.10 of the UCPR reads:

2. [14]

   A document is “relevant to a fact in issue” if, as defined in r 21.1(2) of the UCPR:

3. [15]

   Brereton J in Norris v Kandiah [2007] NSWSC 1296 at [4]-[5] noted the following:

4. [16]

   See also Patonga Beach Holdings v Lyons [2009] NSWSC 869 at [11] where Barrett J stated:

5. [17]

   In Norris, counsel for the party who had issued the notice to produce, indicated that he would seek an order for discovery of documents in the same classes. Counsel for the resisting party in that case submitted that the notice should be set aside on the alternative basis that the documents for which it calls do not related to a fact in issue in the proceedings, and that submission, if sustained, would be an answer to any such application for discovery. In relation to this contention, his Honour further noted at [7] of Norris that, where the sustainability on grounds of relevance of a notice to produce is called into question, the issuer bears at least a forensic onus of identifying how the documents called for by the notice are said to relate to a fact in issue in the case. As noted above, a document relates to a fact in issue if it bears upon the probability of that fact.

6. [18]

   I note that Beech-Jones J treated disputed notices to produce as though they were an application for discovery pursuant to r 59.7 of the UCPR in Webber v Racing New South Wales [2017] NSWSC 687 at [2]. Such an application requires the leave of the court: r 59.7(4).

The Commissioner’s submissions

1. [19]

   The Commissioner contended that save for a very few sub-categories, the second notice to produce fails to comply with the requirements for specificity under r 21.10(1)(b) of the UCPR, and argued that it is also liable to be set aside on grounds including that it is oppressive, calls for documents which have no apparent relevance to the issues in the proceedings, and is an abuse of process.

2. [20]

   The Commissioner submitted that the second notice to produce is more akin to a request for discovery, for which leave would be required under UCPR r 59.7 (and which leave the Court should refuse to grant).

3. [21]

   The Commissioner contended that that leave should only be granted to treat the second notice to produce as an application for discovery if discovery were reasonably required for the fair disposition of the proceedings: Cummeragunja Local Aboriginal Land Council v Nicholson (No 202) [2017] NSWSC 1248 at [61].

4. [22]

   The Commissioner further submitted that Part 59 of the UCPR lays out a scheme, designed to bring judicial review proceedings on for hearing expeditiously, and with as little evidence as is necessary to determine the issues. Part of that scheme is the rule requiring that evidence be given by affidavit, unless the court otherwise directs, with cross-examination only permitted with leave (UCPR r 59.7 subrr (1) and (3)). The Commissioner submitted that in a proceeding like this, the Court would be particularly alert to fishing expeditions and oppressive requests for immaterial documents.

5. [23]

   The Commissioner submitted that because these proceedings are judicial review proceedings, it would ordinarily only be the documents that were before the decision maker at the time of the impugned decision that could be relevant.

6. [24]

   The Commissioner relied upon the evidence of Mr Sinha in his affidavit of 2 July 2025 at [11], which was not challenged:

7. [25]

   At the hearing, counsel for the Commissioner informed the Court that although he was yet to serve formally any evidence in response to the final relief sought in the Summons (given orders for service of evidence had yet to be made), all of the material before the decision maker of the impugned decision had now been informally produced. It was also submitted that discovery was not usually sought until the pleadings were finalised and all affidavit evidence was filed and served.

8. [26]

   The Commissioner contended that the second notice to produce seeks a “wide swathe of categories of documents” which were of no conceivable relevance to the issues in dispute in the proceedings, and it should be set aside.

Mr Harrison’s submissions

1. [27]

   In written submissions, Mr Harrison contended that he was disadvantaged by being both in custody and self-represented and that if leave for discovery was required, he sought that leave. In summary, he submitted that the grounds relating to the impugned decision involved broader jurisdictional issues and he wished to have access to documents going back to 2017. He wanted the various categories of documents as he was seeking to have the court infer that there had been maladministration including the misapplication of policies which infected each of the decisions leading to, and including, the impugned decision.

2. [28]

   He further indicated that his Legal Aid grant was currently limited to obtaining a formal opinion advice from Counsel with respect to representation for the substantive matter and that “production of documents is critical to that process, and to this case generally”, contending, “[y]ou can’t fire a gun when the bullets are locked in the safe”. Mr Harrison further stated that he needed “all possible production to gain an adequate brief for Counsel to consider”.

3. [29]

   Mr Harrison also offered more detailed justification for each of the categories of documents sought.

Consideration

1. [30]

   It is immediately clear from the terms of most of the categories of the second notice to produce that they fail to comply with r 21.10(1)(b) of the UCPR. In the circumstances, however, it is appropriate to give leave to Mr Harrison to treat the second notice to produce as if it were seeking an order for discovery on the basis that he is currently self-represented and it will save time.

2. [31]

   However, even treating it as an application for discovery it is still necessary, pursuant to r 21.2 of the UCPR, for Mr Harrison to specify a class of documents in no more general terms than the court considers to be justified in the circumstances (subr (2)). Further, and importantly, an order for discovery “may not be made in respect of a document unless the document is relevant to a fact in issue” (subr (4)).

3. [32]

   The substantive proceedings are judicial review proceedings. They do not involve a review on the merits. As noted in Joseph v Spencer [2025] NSWCA 80 at [44] by Kirk JA:

4. [33]

   I accept that Mr Harrison, by way of production relating to the first notice to produce, or by way of informal discovery, has or will have the documents which were before the decision maker of the impugned decision. To the extent that the amended summons challenges the banning decisions, I note that so far no particulars have been supplied despite such a request having been made.

5. [34]

   I also accept that informal discovery of certain parts of unredacted policy documents has occurred since the hearing, as sought, in part, in category 2 of the second notice to produce, namely, Parts 17.2 and 17.5 of COPP 3.5, and Part 5.4 of the Serious Offenders Review Council and Subcommittee Managed Inmates Policy. Despite that informal production, Mr Harrison still presses that category (that is, category 2) of the second notice to produce. I note that the Commissioner has declined to provide the previous and superseding iterations of policies that have been produced as those iterations did not apply at the time the Commissioner made the subject decision of 12 December 2024 to continue Mr Harrison’s designation as an EHS inmate.

6. [35]

   I agree with the Commissioner’s submission that the documents sought by Mr Harrison appear to extend far beyond documents which will be “relevant to a fact in issue”, as least as I currently understand the position. As noted by the Commissioner, Mr Harrison’s submissions indicate that he seeks to go behind the material which was before the decision makers at the time they made the relevant decision and conduct a broader inquiry as to “maladministration” and similar matters. I agree that such an approach misconceives the nature of judicial review.

7. [36]

   As the Commissioner submitted, the Commissioner’s power to designate an inmate as an EHS inmate pursuant to cl 15 of the CAS Regulation is engaged where the Commissioner is “of the opinion” set out in that clause. I agree that a challenge to that decision on judicial review grounds does not permit a wide-ranging inquiry as to whether the material upon which the Commissioner relied in forming that opinion was accurate: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 340. In seeking to “demonstrate a pattern of behaviour” across a period of years that links all of the decisions, and in seeking to interrogate the facts underlying the recommendations made to the decision maker, Mr Harrison is attempting to undertake a type of factual scrutiny not generally enlivened in judicial review matters: Bond at 355-359. Further, as noted by the Commissioner, orders for service of evidence have not yet been made and discovery is usually not sought until pleadings are finalised and all affidavit evidence is filed and served.

8. [37]

   With those observations in mind, noting that a number of documents have already been made available informally, having carefully considered Mr Harrison’s written and oral submissions, and even treating the second notice to produce as an application for discovery, Mr Harrison has failed to persuade me that the documents he seeks are relevant to a fact in issue (except for those documents which were before the decision maker of the impugned decision and in relation to which I am satisfied either have been or will be produced by the Commissioner).

9. [38]

   I am of the view that Mr Harrison plainly has ample material for the purposes of seeking legal advice in relation to judicial review.

10. [39]

    In my opinion, the second notice to produce should be set aside.

11. [40]

    If, at a later stage, Mr Harrison can point to his need for specific documents which are relevant to a fact in issue, this judgment does not preclude such an application.

12. [41]

    As to the three documents produced in response to the first notice to produce (documents 5, 6 and 7 in the amended Annexure A), I have examined those in unredacted form and am satisfied that the redactions are appropriate on the basis of stated operational concerns in the prison (given they include information such as names and other details of staff), and in any event, have no relevance to Mr Harrison’s application for judicial review.

13. [42]

    As to costs, given the circumstances where a limited number of documents have been given to Mr Harrison informally, and Mr Harrison will not be in the community until at least 2040, each party should bear their own costs.

Orders

1. [43]

   I make the following orders:

   1. (1)

      Order that the notice to produce dated 6 May 2025 addressed to the defendant (“this Notice”) be set aside.

   2. (2)

      Make no order as to costs with the intention that parties are to bear their own costs of the Amended Notice of Motion.

   3. (3)

      The defendant is granted leave to produce in response to the notice to produce dated 24 January 2025 and this Notice redacted versions of the documents numbered 5, 6 and 7 listed in Amended Annexure A.