Commissioner of Corrective Services v Hamzy

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Case Copied 68 min read

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

Knight v Wise [2014] VSC 76

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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Details
Case
[2024] NSWCA 240
Decision Date

CaseChat Overview and Summary

The Commissioner of Corrective Services appealed to the Court of Appeal of New South Wales against orders made by a primary judge requiring the Commissioner to provide a prisoner, Mr Hamzy, with a laptop and associated word processing and printing facilities. The Commissioner contended that the primary judge failed to consider affidavit evidence detailing existing arrangements for Mr Hamzy to access a desktop computer with such facilities, and that there was no real controversy between the parties regarding access to these resources at the time the orders were made.

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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