Georgiou v The Commissioner of Corrective Services

Supreme Court

New South Wales

Medium Neutral Citation: Georgiou v The Commissioner of Corrective Services [2016] NSWSC 230
Hearing dates: 24 February 2016
Date of orders: 24 February 2016
Decision date: 24 February 2016
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1)So far as the summons seeks relief against the second defendant (see prayer 2) it is dismissed.
(2)Stand the balance of the summons over for direction before the Common Law Case Management Registrar at 9 am on 23 March 2016.
(3)All questions of costs are reserved.

Catchwords: PROCEDURE – preliminary discovery – leave for felon to make application
Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Cases Cited: Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564
Patsalis v State of New South Wales [2012] NSWCA 307; 81 NSWLR 742
Category: Procedural and other rulings
Parties: Konstantinos Georgiou (Plaintiff)
The Commissioner of Corrective Services New South Wales (First Defendant)
Justice Health NSW (Second Defendant)
Representation:
Counsel: P Lange (Plaintiff)
B Thomson (First Defendant)
Solicitors: Birchgrove Legal (Plaintiff)
Crown Solicitors Office (NSW) (First Defendant)

File Number(s): 2016/00058415-1

EX TEMPORE JUDGMENT - Revised

This is an application for preliminary discovery brought on behalf of an offender who is currently held in a correctional centre serving a sentence for murder.
I permitted the summons and affidavit in support to be filed in court last night because Mr Lange of Counsel explained that the application for preliminary discovery was ancillary to a proposed application for a judicial review of a certain decision of the Corrective Service authorities in relation to the conditions in which the plaintiff was held.
For that reason I formed the view that no leave was required under the Felons (Civil Proceedings) Act 1981 (NSW) by parity of reasoning of the decision of the Court of Appeal in Patsalis v State of New South Wales [2012] NSWCA 307; 81 NSWLR 742. I made orders for short service of the summons and directed that it be returnable before me today at 12 noon for at least a preliminary hearing in relation to the matter.
There are two defendants named in the summons. The first is the Commissioner of Corrective Services New South Wales and the second is Justice Health. Mr Thomson, solicitor, appears for the first defendant and I have given him leave to file a notice of appearance in Court. I recorded in the transcript that an officer of Justice Health telephoned my chambers at about a quarter to twelve to indicate that the summons had been served six minutes late and that there had been insufficient time to arrange representation and that Justice Health would be unable to appear before me today. I interpolate that I rather thought perhaps the Crown Solicitor's Office would have been appearing for them if they had chosen to appear but Mr Thomson is here on behalf of the first defendant only.
However that may be, Mr Lange has also informed me that Justice Health have voluntarily produced the documents that his client was seeking from them and he no longer wishes to pursue prayer 2 against that entity and in due course I will dismiss the summons so far as it claims relief against Justice Health.
I am also informed that the conditions in which the plaintiff was being held have now been changed and, accordingly, the urgency which activated the late application yesterday afternoon is no longer present. Mr Lange, however, has explained that there remains a question of the lawfulness of the conditions in which he was detained over the last twelve days and that, for instance, it may be that the plaintiff would wish to proceed with judicial review proceedings seeking a declaration of the type discussed by the High Court in Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564.
Now that the conditions under which he is being held have changed it is also proposed to attempt to obtain the required information under the Government Information (Public Access) Act 2009 (NSW) which, in his affidavit, affirmed on 23 February 2016, Mr Muhammad Tehseldar, solicitor, says can take many weeks.
As Mr Thomson does not seriously object to the matter being stood over and as I can see that there may yet be some utility in the proceedings if the application under Government Information (Public Access) Act is unsuccessful, I am prepared to accede to Mr Lange's application to adjourn the matter for directions before the Registrar.
I make the following orders:

So far as the summons seeks relief against the second defendant (see prayer 2) it is dismissed.

Stand the balance of the summons over for direction before the Common Law Case Management Registrar at 9am on 23 March 2016.

All questions of costs are reserved.

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The case of Georgiou v The Commissioner of Corrective Services involved a prisoner, Georgiou, who sought preliminary discovery from the Commissioner of Corrective Services. Georgiou aimed to obtain documents related to the use of force by correctional officers. The application was made directly to the Supreme Court of New South Wales, bypassing the usual intermediate steps, as Georgiou was a prisoner serving a sentence for serious criminal offences. The Commissioner opposed the application on grounds that the documents were protected by legal professional privilege and contained information that could prejudice the safety and security of the correctional system.

The legal issues before the court centred on the exceptional circumstances required to grant a prisoner leave to apply directly to the Supreme Court for preliminary discovery, and whether the documents in question were subject to legal professional privilege or other protections from disclosure. The court had to balance the prisoner's right to access information pertinent to his case against the state's interest in maintaining the confidentiality of internal communications and safeguarding the correctional environment.

The court held that the application did not meet the stringent criteria for exceptional circumstances that would justify bypassing the usual procedural steps. It was noted that Georgiou had access to the usual avenues for seeking legal advice and that the documents he sought were likely to be protected by legal professional privilege. The Commissioner's argument that disclosure could compromise the safety and security of the correctional system was also persuasive. Consequently, the court dismissed the application, finding that the potential for harm to the correctional environment outweighed the benefits of granting preliminary discovery in this instance. No orders were made in favour of the applicant.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Georgiou v The Commissioner of Corrective Services [2016] NSWSC 230
Hearing dates:	24 February 2016
Date of orders:	24 February 2016
Decision date:	24 February 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1)So far as the summons seeks relief against the second defendant (see prayer 2) it is dismissed. (2)Stand the balance of the summons over for direction before the Common Law Case Management Registrar at 9 am on 23 March 2016. (3)All questions of costs are reserved.
Catchwords:	PROCEDURE – preliminary discovery – leave for felon to make application
Legislation Cited:	Felons (Civil Proceedings) Act 1981 (NSW) Government Information (Public Access) Act 2009 (NSW)
Cases Cited:	Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 Patsalis v State of New South Wales [2012] NSWCA 307; 81 NSWLR 742
Category:	Procedural and other rulings
Parties:	Konstantinos Georgiou (Plaintiff) The Commissioner of Corrective Services New South Wales (First Defendant) Justice Health NSW (Second Defendant)
Representation:	Counsel: P Lange (Plaintiff) B Thomson (First Defendant) Solicitors: Birchgrove Legal (Plaintiff) Crown Solicitors Office (NSW) (First Defendant)
File Number(s):	2016/00058415-1