Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Commissioner of Corrective Services v Hamzy [2024] NSWCA 240 Hearing dates: 30 September 2024 Date of orders: 10 October 2024 Decision date: 10 October 2024 Before: Bell CJ at [1];
Payne JA at [103];
Stern JA at [104]Decision: 1. Order that, on the undertaking proffered to the Court and forming Annexure A to these reasons, grant leave to appeal.
2. Allow the appeal.
3. Set aside the orders of 6 September 2024 and, in lieu thereof, dismiss the application made by Mr Hamzy.
Catchwords: APPEALS – failure to consider evidence – whether the primary judge failed to consider affidavit evidence filed by the Commissioner of Corrective Services as to arrangements made for the Respondent to access word processing and printing facilities – where orders were made by the primary judge requiring the Commissioner to provide the Respondent with a laptop with such facilities – whether there was a real controversy between the parties at the time the primary judge made those orders
CIVIL PROCEDURE – court administration – court powers – control of proceedings – scope of the court’s powers to make orders to ensure effective access to civil proceedings – whether orders made by the primary judge were necessary to ensure the Respondent’s effective access to civil proceedings – where arrangements had been made for the Respondent to access a desktop computer with word processing and printing facilities – where the orders made by the primary judge would affect the operations of a correctional facility
Legislation Cited: Charter of Human Rights and Responsibilities Act 2006 (Vic)
Civil Procedure Act 2005 (NSW) ss 61 and 62
Crimes (Administration of Sentences) Act 1999 (NSW) ss 72, 75, 77, 79, 232-233, 271
Supreme Court Act 1970 (NSW) s 23
Uniform Civil Procedure Rules 2005 (NSW) r 28.2
Crimes (Administration of Sentences) Regulation 2014 (NSW) cll 12, 17, 45, 122A, 122B, 122J and 122L
Cases Cited: B A v Attorney-General (Cth) [2017] VSC 259
Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48
Brazel v Westin [2013] VSC 527
Clark v Commissioner for Corrective Services [2016] NSWCA 186
Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143
Davies v The Queen [2018] VSCA 315
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
Hamzy v Commissioner of Corrective Services NSW [2024] NSWSC 264
Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46
JMR v Department of Juvenile Justice [1999] NSWSC 169
McGuirk v University of New South Wales [2010] NSWCA 104
Middleton v Commissioner for Corrective Services (NSW) [2004] NSWSC 136; (2003) 143 A Crim R 364
Miles v R [2012] NSWCCA 88
Patsalis v The State of New South Wales [2012] NSWSC 267
R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532
R v Rich (No 2) [2008]…
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- Case
- [2024] NSWCA 240
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the primary judge had failed to consider relevant evidence concerning the arrangements for Mr Hamzy's access to word processing and printing facilities, and whether the orders made were necessary to ensure Mr Hamzy's effective access to civil proceedings, particularly in light of the potential impact on correctional facility operations. The Court was required to determine the scope of the court's powers to make orders for effective access to proceedings and whether the primary judge had exercised those powers appropriately.
The Court of Appeal found that the primary judge had indeed failed to consider the affidavit evidence presented by the Commissioner, which demonstrated that adequate arrangements were already in place for Mr Hamzy to access the necessary facilities. The Court reasoned that the primary judge's orders were not justified as they were made without regard to the existing provisions and that the existence of a real controversy had not been established. Consequently, the appeal was allowed, the primary judge's orders were set aside, and Mr Hamzy's application was dismissed.
Orders
Orders of the court
1. Order that, on the undertaking proffered to the Court and forming Annexure A to these reasons, grant leave to appeal.
2. Allow the appeal.
3. Set aside the orders of 6 September 2024 and, in lieu thereof, dismiss the application made by Mr Hamzy.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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