Hamzy v Commissioner of Corrective Services

[2007] NSWSC 1469

CITATION:	Hamzy v Commissioner of Corrective Services [2007] NSWSC 1469
HEARING DATE(S):	11 December 2007
JUDGMENT DATE :	11 December 2007
JUDGMENT OF:	Bell J at 1
EX TEMPORE JUDGMENT DATE:	11 December 2007
DECISION:	Grant leave to the applicant under s 4 of the Felons (Civil Proceedings) Act 1981 to institute and maintain proceedings
LEGISLATION CITED:	Crimes (Administration of Sentences) Act 1999 Felons (Civil Proceedings) Act 1981 Freedom of Information Act 1999
CASES CITED:	Commissioner of Police v Ryan 2007 NSWCA 196 Jol v State of New South Wales (1998) 45 NSWLR 283 Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562 148 A Crim R 74 Vezitis v McGeechan [1974] 1 NSWLR 718
PARTIES:	Bassam Hamzy (Plaintiff) Commissioner of Corrective Services (1st Defendant) The General Manager Lithgow Correctional Centre (2nd Defendant)
COUNSEL:	N Perram SC / S O'Brien (Plaintiff) No appearance (Defendants)
SOLICITORS:	M J Woods & Co (Plaintiff) I V Knight (1st Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Tuesday 11 December 2007

030110/07 - BASSAM HAMZY v COMMISSIONER OF CORRECTIVE SERVICES & ANOR

JUDGMENT

JUDGMENT (On application for leave to institute proceedings)

1 HER HONOUR: On 16 November 2007 Bassam Hamzy, who is presently in custody serving a sentence for serious criminal offences including murder and conspiracy to murder, filed a summons claiming orders including, the grant of leave pursuant to section 4 of the Felons (Civil Proceedings) Act 1981 to commence the proceedings and setting aside the order made by the Commissioner of Corrective Services (the first defendant) or the General Manager of the Lithgow Corrections Centre (the second defendant) on or about 22 April 2007 under s10 of the Crimes (Administration of Sentences) Act 1999 (the Act) directing that the plaintiff be held in segregated custody.

2 The plaintiff also seeks to set aside the order made on 23 July 2007 that his segregated custody continue and further orders made by or on behalf of the first defendant pursuant to s16(4) of the Act. Injunctive relief is sought restraining the first defendant and his delegates from the issue of further orders arising out of the order purportedly made on 22 April 2007.

3 The grounds articulated in the summons include (i) that the order of 22 April 2007 was made for an improper purpose, and (ii) that the plaintiff was denied natural justice in that at no time prior to the making it was he informed of the reasons why the order was proposed to be made, or of the existence and content of the material adverse to the plaintiff which was relevant to the decision. It is asserted that contrary to the terms of s 13 of the Act, the order was neither in writing nor did it contain the grounds upon which it was made. The applicant contends that the order is void.

4 The proceedings were listed before me today to determine the leave application. Section 4 of the Felons (Civil Proceedings Act) 1981 provides:

A person who is in custody as a result of having been convicted of or found to have committed a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.

Section 5 of the Act provides:

A Court shall not under section 4 grant leave to a person to institute proceedings unless the Court is satisfied that the proceedings are not an abuse of process and that there is prima facie grounds for the proceedings.

5 In Jol v State of New South Wales (1998) 45 NSWLR 283 it was held that leave under section 4 may be obtained after the proceedings have been instituted.

6 Each of the defendants have filed appearances. Neither appeared on the hearing of the application. Mr Perram SC with Mr O'Brien appeared on the applicant's behalf. Mr Perram informed me of discussions that he had with those acting for the defendants. It appears that the view was taken that the occasion did not arise for the defendants to be heard on the leave application.

7 In support of the application Mr Perram read an affidavit affirmed by the applicant on 30 November 2007, together with the affidavit of the applicant's solicitor, Martin John Woods, affirmed on 5 December 2007. Exhibited to this affidavit are documents obtained by Mr Woods on behalf of the applicant pursuant to an application made under the Freedom of Information Act 1999 (Exhibit A).

8 Also in evidence are copies of articles appearing on the website of the Daily Telegraph and the Sydney Morning Herald respectively on 23 April 2007 which purport to contain quotations from the first defendant. The article appearing on the Daily Telegraph's website stated:

Hamzy jailed for 21 years for murder has been separated from the gang and sent to Lithgow Gaol where he is in isolation indefinitely. Corrective Services Commissioner Ron Woodham said the prisoner would be allowed to practice Islam.

There follows what purports to be a quotation by the first defendant. The article appearing on the Sydney Morning Herald 's website states:

This is not the first time he has organised things in gaol. He was involved in corrupting staff who have been charged for corruption. At one stage he got convicted for conspiring to murder a witness against him in his trial by using a mobile phone from inside another gaol. So, he is an extreme high risk prisoner and a danger not only in the SuperMax but to people on the outside, Mr Woodham said since last week Hamzy has been held in indefinite segregation at Lithgow Maximum Security Prison.

9 Division 2 of Part 2 of the Act makes provision for the segregated custody of prisoners pursuant to a segregated custody direction. This is a regime that is distinct from the provisions in the regulations to the Act for the punishment of inmates for disciplinary infractions.

10 Section 10(1) provides that the Commissioner may direct that an inmate be held in segregated custody if he is of the opinion that the association of the inmate with other inmates constitutes or is likely to constitute a threat to (a) the personal safety of any other person, (b) the security of a correctional centre or, (c) good order and discipline within a correctional centre. The general manager of a correctional centre may exercise the Commissioner's functions under s 10(1) in relation to the correctional centre and must notify the Commissioner of that fact and of the grounds on which the segregated custody direction was given.

11 Section 12(1) provides that an inmate, subject to a segregated custody direction, is to be detained in isolation from all other inmates or in association only with such other inmates as the Commissioner (or General Manager of the correctional centre in the exercise of the Commissioner's functions under sections 10 or 11) may determine.

12 A regime for the review of segregated custody directions is provided by

s 16 of the Act. The General Manager of a correctional centre where an inmate is held in segregated custody must submit a report about the segregated custody direction to the Commissioner within 14 days after the date is given. Within 7 days after receipt of the report the Commissioner is required to review the segregated custody direction and either made or confirm it. In the event that the Commissioner confirms the order he may amend its terms .

13 If the direction is confirmed the General Manager of the correctional centre in which the inmate is held subject to the direction must submit a further report about the direction to the Commissioner within three months and within each subsequent period of three months after this period. Within 7 days after each occasion on which the Commissioner receives any further report he must review the segregated custody direction.

14 In the event leave is granted, it is proposed to amend the summons to confine the scope of the injunctive relief sought and to seek a declaration that no order was made under s10(1) on or about 22 April 2007.

15 I am concerned with whether the applicant has established that the proceedings are not an abuse and that there exist prima facie grounds for them. As Mr Perram submits, there is a measure of overlap between the two.

16 The significance of Exhibit A, the applicant’s correctional file, is the absence of any evidence of an order under s10(1) made on or about 22 April 2007. The only documents touching on the applicant's segregated custody are at pp 145-147 and are a review carried out on 18 July 2007 recommending that the applicant’s segregated custody continue. The review contains a recommendation that the segregated custody direction which commenced on 22 April 2007 continue. On the material produced under the Freedom of Information Act this is the sole record of the existence of any order made on 22 April.

17 The challenge to the order as outside the purposes for which the Act allows depends upon inferences that the applicant seeks to have drawn from the newspaper articles to which I have referred. The applicant contends that the first defendant issued a press release or held a press conference in which he announced that the applicant was being held in segregated custody indefinitely. The regime of segregated custody provided for in Division 2 of Part 2 of the Act is circumscribed and would not admit of such a determination.

18 The natural justice challenge is one which Mr Perram submits derives support from the judgment of the Court in Commissioner of Police v Ryan 2007 NSWCA 196 per Basten JA at [28]. He has also drawn my attention to the judgment of the High Court in Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 225 CLR 88 at 95.

19 Mr Perram noted that the issue of the extent to which determinations made by the first defendant under the Act are susceptible of challenge on an Administrative Law grounds is discussed in the judgment of Smart AJ in Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562 148 A Crim R 74 in which his Honour discuss the relevant authorities. The Commissioner’s contention in that case, relying on the authority of Vezitis v McGeechan [1974] 1 NSWLR 718, that a decision made by him under cl 120 of the Regulations to the Act was of a managerial nature and not susceptible of judicial review was rejected.

20 I am satisfied having regard to the evidence and the submissions of Senior Counsel that the proceedings are not an abuse of process and that there are prima facie grounds for them. For these reasons I grant leave to the applicant under section 4 of the Felons (Civil Proceedings) Act 1981 to institute the proceedings.

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