Hamzy v Commissioner of Corrective Services

[2024] NSWSC 1175

Supreme Court

New South Wales

Medium Neutral Citation:	Hamzy v Commissioner of Corrective Services [2024] NSWSC 1175
Hearing dates:	17 September 2024
Date of orders:	17 September 2024
Decision date:	17 September 2024
Jurisdiction:	Common Law
Before:	Harrison CJ at CL
Decision:	Decline to extend the stay on orders (2) to (4) made on 6 September 2024.
Catchwords:	INTERLOCUTORY APPLICATION – application for stay of orders pending appeal to Court of Appeal
Cases Cited:	Hamzy v Commissioner of Corrective Services [2024] NSWSC 1090
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: On 6 September 2024, I made orders that the Commissioner provide Mr Hamzy with a laptop computer: Hamzy v Commissioner of Corrective Services [2024] NSWSC 1090. On the same day, I stayed the operation of certain of the orders until 4pm today or further order. The Commissioner has since then filed a summons seeking leave to appeal to the Court of Appeal and a draft notice of appeal. That application and the appeal are listed for hearing in the Court of Appeal on Monday 30 September 2024. The Commissioner now seeks an order that the stay be extended until at least 4pm on 30 September 2024, in the anticipation that its further extension should be reconsidered by the Court of Appeal at the conclusion of the proceedings on that day.

2. The Commissioner relies upon the affidavits of Susan Mitchell sworn on 12 September 2024 and Malcolm Brown sworn on 13 September 2024. Mr Hamzy objects to these affidavits. In the light of the conclusion I have reached on this application, it becomes unnecessary to consider those objections in detail or at all.

3. Mr Brown is the General Manager, State-wide Operations, within the Corrective Services Department. His role involves reporting to the Deputy Commissioner on matters of security and custody within New South Wales prisons. He has given evidence about the perceived security concerns and risks associated with the provision to Mr Hamzy of the laptop computer that I ordered he should be given. The Commissioner relies upon the existence of these risks as a basis for extending the stay.

4. However, the Commissioner’s concerns can be immediately put to one side. By reason of the orders that I made on 6 September 2024, the Commissioner is not required to furnish Mr Hamzy with the laptop until a date that is well after 30 September 2024. Indeed, he is not required to do so until he provides Mr Hamzy with an estimate of his reasonable costs of providing the laptop. The Commissioner then has 8 weeks after the receipt of the payment of these costs from Mr Hamzy within which to comply with the order. That will obviously not happen before 30 September 2024, so that the stated risks associated with Mr Hamzy having the laptop in his possession will not arise for some time and certainly not before then.

5. Susan Mitchell is the Manager of Sentence Management Business and Operational Support with Corrective Services NSW. Ms Mitchell’s affidavit deals, relevantly for present purposes, with what she says will be the considerable disruptions and impositions upon the Department if the Commissioner is required to comply with my orders now. This issue was described and referred to during argument before me today as the diversion issue. In short, Ms Mitchell maintains that the work required to provide Mr Hamzy with his laptop will be so extensive and so onerous that it will divert staff from other IT and related tasks that they are required to carry out in the course of their work for all inmates within the Commissioner’s responsibilities.

6. Ms Mitchell’s concerns are encapsulated in the following paragraphs:

“Constraints on IDS [Information and Digital Services]

54. IDS, including the teams referred to above, have general responsibility for maintaining and supporting the IT systems for DCJ, including CSNSW, as well as associated agencies and entities such as Courts and Tribunals, the Office of the Director of Public Prosecutions and Legal Aid NSW. DCJ is a very large Department, with tens of thousands of employees, and for that reason IDS has significant competing pressures for the time of its employees.

55. Because the teams involved are all small, they can be significantly affected by relatively minor staffing issues, such as unexpected sick leave. They can also be significantly affected when some unexpected IT critical issue arises for resolution. For example, the recent worldwide CrowdStrike bug affected computers across DCJ, and required immediate remedial work to be undertaken by large numbers of staff across IDS.

56. Given the time estimates that Mr Pilon has given me, as set out above, the size of the relevant teams, and based on my own knowledge of the teams in question and their work, I believe that the work required to deliver the new computer would constitute a real and noticeable diversion of staff time in those teams over the period in question.”

7. Several matters need to be considered in the light of these concerns.

8. First, there is no reason to doubt that the provision of Mr Hamzy’s new laptop will require some effort on the part of the Commissioner and IDS. Without being intentionally or overly critical, however, Ms Mitchell’s affidavit does not provide much, if any, comprehensible information concerning what is thought to be involved, except in generic terms. I am able readily to accept that the work concerned is described in paragraphs 33 to 47 of her affidavit, under the heading “Implementing Court orders” and that it is anticipated that it will take several people with appropriate skills many weeks to complete. I regret that the description of what is involved does not readily permit an understanding of whether the work could or might take less time or involve fewer people. For present purposes I am prepared to accept that the task will be significant and potentially onerous. That is so in the context of an interlocutory application where an impressionistic analysis often becomes necessary having regard to the urgency of the decision that is called for in the circumstances. I have no means of assessing or verifying Ms Mitchell’s estimates by reference to any basic understanding I might have of what is involved. However, Ms Mitchell’s evidence is the only evidence and must be accepted at face value on this application.

9. However, including the paragraphs quoted above, the evidence does no more than express a concern that large numbers of staff across IDS may need to be reallocated and that this would constitute a real and noticeable diversion of staff in various teams over the period in question. Although I am asked to assume that this will have some detrimental effect in fact, that proposition remains only in the realm of possibilities rather than probabilities. In terms of the balance of convenience, I accept that the diversion of staff to commence compliance with my orders will be inconvenient. The evidence rises no higher than that.

10. Secondly, the period between now and 30 September consists of 8 working days, excluding today. The IDS staff do not work on weekends. The period of any disruption is therefore small in relative terms. Moreover, that may be an overstatement of the relevant period inasmuch the obligation to commence work on the provision of a suitably modified laptop does not arise until the Commissioner receives payment of his reasonable costs of doing so and that has not yet occurred.

11. Thirdly, the original imperative for the provision of the laptop was to ensure that Mr Hamzy was able to prepare his case for final hearing in December this year in a way that ensured that he would have proper access to justice. In the context of complicated litigation, that is a very short period for Mr Hamzy to do justice to his presentation and preparation without legal representation. Every day that compliance with my orders is delayed places more and more pressure on Mr Hamzy and increases the risk that the scheduled hearing will be lost. That outcome is to be avoided if it is at all reasonably possible.

12. Doing the best I can, I consider that the balance of convenience favours a rejection of the Commissioner’s application for an extension of the stay. In realistic terms little, if anything, will be required of the Commissioner between now and when the Court of Appeal addresses the challenge to my orders. The anticipated disruption to the Commissioner by the diversion of resources is correspondingly limited. The imperative of ensuring as far as possible that the hearing dates not be lost is entitled to be given paramountcy. The ability to prepare and to be prepared for that hearing with the benefit of an appropriate laptop is in a real sense the manifestation of the fruits of my orders which any further delays would potentially imperil or diminish. A final resolution of the underlying dispute between the parties is in any event likely by the end of this month.

13. In the circumstances I decline to extend the stay on orders (2) to (4) made by me on 6 September 2024.

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Decision last updated: 17 September 2024