Harrison v Commissioner of Corrective Services NSW (No 2)

1. [1]

   This judgment concerns an application brought by Graham Loughlan Harrison (“the plaintiff”) for interim relief pending hearing of the final relief sought by his amended summons.

2. [2]

   The plaintiff is a prisoner currently serving a sentence of 36 years with a non-parole period of 27 years. That sentence relates to a range of offences.

3. [3]

   The plaintiff’s sentence expires on 20 March 2049. The non-parole period expires on 20 March 2040. Since 5 December 2017, the plaintiff has been designated by the defendant as an “Extreme High Security” (“EHS”) inmate. This designation has implications for the plaintiff’s management within the correctional centre.

The relief sought

1. [4]

   By his amended summons, the plaintiff brings proceedings against the Commissioner of Corrective Services NSW (“the Commissioner”) seeking judicial review of the decision to continue his EHS designation.

2. [5]

   The final orders sought by the plaintiff are:

3. [6]

   The plaintiff also sought various orders by way of interim relief. As set out in the amended summons the orders sought were as follows:

4. [7]

   Prior to the filing of the plaintiff’s amended summons (but after the plaintiff’s original summons), on 22 January 2025, the Deputy Commissioner, Community, Industry and Capacity, Corrective Services NSW made a decision concerning the plaintiff which included that there should be a change of placement for the plaintiff from Goulburn Correctional Centre (“Goulburn”) to Lithgow Correctional Centre (“Lithgow”). As can be seen from the above, prayer 5 of the plaintiff’s claim for interim relief sought to stay this decision. Due to the extant determination, prayer 5 was set down for hearing on an urgent basis. That matter came before Garling J on 16 April 2025. On 24 April 2025, his Honour dismissed the plaintiff’s application insofar as it related to prayer 5: Harrison v Commissioner of Corrective Services [2025] NSWSC 390.

5. [8]

   The remainder of the interim relief sought was set for hearing on 26 May 2025, on which date it came before me. At the outset of the hearing, the plaintiff indicated that prayers 1 and 2 were no longer pressed. Prayer 4, which seeks only “Leave, if or as required” was not elaborated. As a result, only prayer 3 was pressed.

6. [9]

   Whilst set down as a separate hearing, it emerged that the relief sought with respect to prayer 3 is closely related to prayer 5. As noted above, the plaintiff, by prayer 5, sought to remain at Goulburn. He was still at Goulburn at the time of the hearing before Garling J. That was on the basis of a decision made by the Commissioner not to effect the transfer prior to the hearing of the plaintiff’s challenge to the underlying decision. As it happens, the plaintiff was, at the time of the hearing before me, still at Goulburn. Counsel for the Commissioner, however, made plain that whilst the plaintiff had remained at Goulburn, the decision to place him at Lithgow remained current, and that, while no date could be disclosed, his transfer was imminent.

7. [10]

   As elaborated by the plaintiff, the relief sought by prayer 3 was based not on a complaint as to his access to appropriate computing facilities at Goulburn, but rather the inadequacy of what it was anticipated he would have access to at Lithgow.

The evidence

1. [11]

   The evidence and written submissions relied on before me was the same as that which had been filed and subsequently relied on at the hearing before Garling J. The plaintiff read his own affidavits affirmed on 3 March 2025 and 15 April 2025, respectively. The defendant relied on the affidavits of Nicholas da Costa, Manager of Security at Goulburn, sworn 17 March 2025, Susan Mitchell, Acting Director of Sentence Management at Corrective Services NSW, sworn 17 March 2025, and Raylene Thompson, Governor of Lithgow, affirmed 25 March 2025. The plaintiff relied on his submissions and contentions filed 15 April 2025. While much of this material was focussed on prayer 5, the plaintiff’s submissions and contentions explicitly so, there is much overlap in the issues.

2. [12]

   In addition to the above material, I was also provided with the complete undertaking given by the Commissioner in the proceedings before Garling J which was tendered by the defendant with the consent of the plaintiff.

The nature of the proceedings

1. [13]

   It is to be remembered that what is presently being sought is interim relief. That interim relief is sought in order that the plaintiff may obtain access to justice in bringing his claim for final relief.

2. [14]

   The relevant principles applicable to the granting of interim relief sought by the plaintiff, a prisoner engaging the Court in an action against his gaoler, were traversed by Garling J at [18]-[22] of his Honour’s reasons. His Honour made particular reference to the reasons of the Court of Appeal in Commissioner of Corrective Services v Hamzy [2024] NSWCA 240 (“Hamzy”). It is not necessary to repeat those principles here. His Honour noted the Chief Justice’s observation in Hamzy at [97] that:

3. [15]

   Garling J set out the following statement of principle from Hamzy (per Bell CJ at [93], see Garling J at [20]):

4. [16]

   It is necessary to consider the matter in the light of these principles.

The present application

1. [17]

   On the matter coming before me, the plaintiff indicated he was not ready to proceed, or at least to proceed to finality. He indicated that he had been in the process of preparing a document for the purposes of the hearing. He said that document was almost complete, or “about 80% prepared” and later that it was “90% complete”, but was not in a form in which it could be usefully provided to the Court. The plaintiff provided a number of reasons as to why he had not been able to prepare the document. It is not necessary to examine those reasons further, other than to note that the plaintiff’s access to appropriate computing equipment was not among them. I am, for the purposes of the present matter, prepared to accept that a combination of circumstances not fully in the plaintiff’s control impacted his ability to prepare the document on which he wished to rely. This does not, however, of itself, answer the question of whether the proceedings should be delayed to allow the finalisation of that document.

2. [18]

   The plaintiff was invited by me to explain why it was necessary to adjourn the proceedings in order to allow him to finalise his written document. While there was a significant amount of discussion around the issue, central to his point was the plaintiff’s submission that he could not hope to articulate his arguments orally as clearly as he could in writing. In the circumstances, I considered the best way forward was for the plaintiff to make submissions as to his claim for interim relief and, in the course of doing so, to elaborate on why it was that his submissions were negatively impacted by them being made orally rather than in writing. In the course of this process, there was significant discussion between the plaintiff and myself directed to understanding the plaintiff’s claim.

3. [19]

   In the course of the discussion referred to above, the following matters became clear. Firstly, the plaintiff makes no complaint with respect to the computing facilities made available to him at Goulburn. Whilst there was, at one point, reference made to a difficulty in undertaking research, the plaintiff was explicit in stating that, were he to remain at Goulburn with his current access to computing facilities, the adequacy of those facilities was such that he would not press his claim for relief.

4. [20]

   Related to the above, the plaintiff’s concern is not based on his present circumstances but rather his anticipated circumstances at Lithgow. In that regard, it can be accepted that the plaintiff will soon be moved to Lithgow. Further, it can be accepted that there is evidence of significant restrictions in relation to access to computers at Lithgow, certainly compared with the access the plaintiff presently enjoys at Goulburn. That evidence is in the affidavit of Ms Thompson, the Governor of Lithgow. That affidavit sets out what appear to be significant issues at that prison as a result of, primarily, staff shortages. The affidavit states that it is anticipated that such staffing issues will be resolved “in the next four months, following focused recruitment action”. I note that some two months have passed since the date of that affidavit.

5. [21]

   The plaintiff’s concerns, particularly given the affidavit of Ms Thompson, were a significant focus of his application challenging his transfer to Lithgow. In the light of the evidence, the plaintiff’s concerns are understandable. However, in the course of the hearing before Garling J, the Commissioner gave an undertaking with respect to the facilities that would be provided to the plaintiff. His Honour set out the central aspect of the undertaking in his reasons (at [26]). It is convenient to set out the undertaking in full:

6. [22]

   Based on the evidence before him, together with the defendant’s undertaking, Garling J dismissed the plaintiff’s claim for relief. His Honour’s reasons for doing so are relevant to the present application. His Honour said (at [47]-[49] and [53]-[55]):

7. [23]

   As can be seen, his Honour was of the view that the access to computers it is anticipated the plaintiff will receive at Lithgow will be at least adequate to satisfy the minimum requirements to ensure the plaintiff has access to justice. That conclusion is inconsistent with the need for order 3 as sought by the plaintiff before me.

8. [24]

   The plaintiff, nonetheless, maintained that the hearing should be at least adjourned to allow him to re-agitate his claim in the event that the facilities at Lithgow fall short of that which was anticipated by Garling J in refusing to stay the order transferring the plaintiff to Lithgow. In addition, the plaintiff submitted, an adjournment would allow him to finish the document upon which he wishes to rely on and with respect to which he has invested significant time and effort.

9. [25]

   The short answer to the plaintiff’s submissions is that it is not in the interests of justice to adjourn proceedings in order to allow a party to complete a document which, by the time of the adjournment, may no longer be relevant. Nor is it in the interests of justice for the application to remain on foot simply to ascertain whether the relief sought is required.

10. [26]

    In making the above observations, I do not ignore the difficulties faced by a person such as the plaintiff in seeking to bring proceedings whilst incarcerated. Nor am I ignorant of the many vicissitudes that befall members of the prison population, as a result of matters outside their control, with the potential result that what is expected does not eventuate. It is apparent, however, that Garling J was also alive to the potential that the priorities concerned with the management of the correctional centre would negatively impact the plaintiff’s access to computing facilities with the result that it may fall short of his expectations.

11. [27]

    As can be seen from the full form of the defendant’s undertaking set out above, in the event that “circumstances become known to the Governor … which provide a reasonable basis for concluding that the Plaintiff’s ongoing access to the facilities … poses a serious risk to security or good order” of the correctional centre, the defendant is excused from providing the access set out in the first part of the undertaking. However, in such a case, unless the “risk is sufficiently imminent that there is not time to approach this Court” to seek a variation of the undertaking, it is incumbent on the defendant to have the matter brought back before Garling J, or in his Honour’s absence, the Common Law Duty Judge, in order to apply to vary the undertaking. In the case where the risk is sufficiently imminent such that prior recourse to this Court is not possible, it is incumbent on the defendant to relist the proceedings “promptly after depriving the Plaintiff of possession of the facilities”.

12. [28]

    It is clear from the full terms of the undertaking accepted by the Court, that Garling J determined the matter on the basis that there is a regime in place which, as far as is reasonably practicable, holds the defendant to his undertaking. That undertaking, as discussed above, was found by his Honour to be sufficient to ensure the plaintiff’s access to justice. To be completely clear, I agree with his Honour’s assessment in this regard. That being the case, there is no utility in adjourning the proceedings. The defendant has not established that order 3 should be made. The application for interim relief must be dismissed.

    1. (1)

       The plaintiff’s application for interim relief as set out in prayers 1, 2, 3 and 4 of his amended summons filed on 17 March 2025 is dismissed.