Hamzy v Commissioner of Corrective Services

[2025] NSWSC 485

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hamzy v Commissioner of Corrective Services [2025] NSWSC 485

Hearing dates:

12 May 2025

Date of orders:

19 May 2025

Decision date:

19 May 2025

Jurisdiction:

Common Law

Before:

Harrison CJ at CL

Decision:

See paragraph [8] of judgment.

Catchwords:

CIVIL PROCEDURE – advance rulings and findings – notice of motion filed by defendant seeking advance rulings and determination of separate questions before the balance of proceedings – where plaintiff opposes application – where plaintiff submits trial judge should make any final determination – directions and orders made with a view to addressing issues

Legislation Cited:

Evidence Act 1995 (NSW), s 192A

Uniform Civil Procedure Rules 2005 (NSW), r 28.2

Category:

Procedural rulings

Parties:

Bassam Hamzy (Plaintiff)
Commissioner of Corrective Services (Defendant)

Representation:

Counsel:
J Emmett SC with L Dargan (Defendant)

Solicitors:
Crown Solicitor’s Office (Defendant)

File Number(s):

2023/39910

Publication restriction:

Nil

JUDGMENT

1. HIS HONOUR: By notice of motion filed on 9 May 2025, the Commissioner of Corrective Services seeks the following relief:

“1. Pursuant to s 192A of the Evidence Act 1995 (NSW), the Court give advance rulings as to the admissibility and / or use of the evidence in chief served by the Plaintiff.

2. Pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005, order that the following questions be determined separately, and before, the balance of the proceedings:

(a) Whether, to fall within the words ‘subjected to … treatment’ and ‘subjected to … punishment or treatment’ where they are used in cl 164(1)(b) or (c) of the Crimes (Administration of Sentence) Regulation 2014, the punishment or treatment referred to must be deliberately imposed upon an inmate by the Defendant or his officers, and must involve more than the necessary consequences of incarceration in the High Risk Management Correctional Centre of an inmate who has been designated as ‘extreme high risk restricted’ pursuant to cl 15(3) of the Crimes (Administration of Sentence) Regulation 2014; and

(b) Whether, to fall within the word ‘punishment’ where it is used in cl 164(1)(b) or (c) of the Crimes (Administration of Sentence) Regulation 2014, the punishment referred to must be imposed upon an inmate for a punitive purpose.”

2. The parties are agreed upon the orders that should be made with respect to the preparation for the hearing of the motion and the further conduct of the proceedings, even though they are not agreed upon what the outcome of the orders sought by the Commissioner should be.

3. For example, Mr Hamzy opposes the suggestion that there should be advance rulings on his evidence pursuant to s 192A and also opposes any order pursuant to UCPR 28.2 for the separate determination of the nominated questions. Mr Hamzy considers that any final determination upon either his evidence or the two separate questions may well be illuminated by material that becomes available to the trial judge, including examination and cross-examination of witnesses for both sides. That is necessarily something that would not be available to a judge only hearing the application in advance of the final hearing.

4. The Commissioner’s position is that advance rulings would be productive of significant efficiencies, particularly having regard to the amount of material upon which Mr Hamzy wishes to rely and that the proposed separate questions essentially raise issues of bare statutory construction, so that the anticipated evidence at the trial will not have any significant impact upon the outcome of the motion or assist the Court in its determination.

5. Section 192A of the Evidence Act 1995 is in the following terms:

192A Advance rulings and findings

Where a question arises in any proceedings, being a question about—

(a) the admissibility or use of evidence proposed to be adduced, or

(b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or

(c) the giving of leave, permission or direction under section 192,

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.

6. UCPR 28.2 is in these terms:

28.2 Order for decision

The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.

7. It is neither possible nor appropriate to express a view upon either the utility or outcome of the Commissioner’s motion. It is, however, convenient to make the directions and orders sought with a view to assessing the issues as soon as possible.   

8. Accordingly, subject to what I have noted above, I make the following orders by consent:

1. Extend the time for the plaintiff to comply with order 9 made on 7 June 2024 to 31 July 2025.

2. In respect of the defendant’s notice of motion filed on 9 May 2025, order that:

1. the defendant file and serve evidence and submissions in support of the motion by 21 August 2025;

2. the plaintiff file and serve any evidence and submissions in response to the motion by 11 September 2025;

3. the defendant file and serve any evidence and submissions in reply by 25 September 2025.

4. list the motion for hearing on 2 October 2025 with an estimate of 2 hours.

3. In respect of prayer 6 of the second amended summons, order that by 10 June 2025, the plaintiff file and serve a document containing a numbered list specifying the particular acts, practices or conduct of the defendant that the plaintiff alleges contravenes cl 164(1)(b)(iii), 164(1)(b)(iv) or 164(1)(c) of the Crimes (Administration of Sentences) Regulation 2014, and identifying in respect of each numbered item in the list:

1. whether the plaintiff asserts that it constitutes punishment or treatment of the plaintiff or of another inmate;

2. if the plaintiff asserts that a particular act, practice or conduct constitutes punishment or treatment of another inmate and not punishment or treatment of the plaintiff, the basis on which the plaintiff contends that it is relevant to the plaintiff’s case;

3. so far as the plaintiff is able, when it is alleged that the act, practice or conduct occurred (including in respect of any alleged practice whether the plaintiff alleges that the practice is ongoing).

**********

Amendments

21 May 2025 - Typographical error in catchwords corrected

Decision last updated: 21 May 2025