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

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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWSC 1175
Decision Date: 17 September 2024

CaseChat Overview and Summary

The matter before the Court was an application by the appellant, Hamzy, for a stay of the orders of the first respondent, the Commissioner of Corrective Services, pending an appeal to the Court of Appeal. Hamzy, a prisoner, sought to stay the orders made by the Commissioner that he be returned to prison following a period of temporary release. The Commissioner opposed the application on the grounds that the appeal had no reasonable prospect of success and that the delay in returning Hamzy to prison would cause significant prejudice to the Commissioner.

The primary issue before the Court was whether the appeal had a reasonable prospect of success. In determining this, the Court considered the merits of the appeal and the likelihood of success on the points of law raised. The Court also considered the potential prejudice that would be caused to the Commissioner if the appeal were to proceed without a stay of the orders. Additionally, the Court examined the balance of convenience, weighing the interests of both parties in the context of the appeal.

The Court held that the appeal had a reasonable prospect of success, primarily on the basis that the orders made by the Commissioner were not in accordance with the relevant statutory provisions. The Court found that the Commissioner had not properly considered the factors that should have been taken into account when making the decision to return Hamzy to prison. The Court also found that the delay in returning Hamzy to prison would cause significant prejudice to the appellant. Accordingly, the Court granted the application for a stay of the orders pending the appeal to the Court of Appeal.

The Court ordered that the appellant be allowed to remain at liberty pending the outcome of the appeal to the Court of Appeal. The Court also directed that the Commissioner bear the costs of the application.

Orders