Hamzy v Commissioner of Corrective Services

1. [1]

   On 31 May 2023, Bassam Hamzy (“Mr Hamzy”) filed and served a Second Amended Summons (“the Summons”) seeking declaratory relief and other orders from this Court. The defendant to those proceedings was specified as “The Commissioner of Corrective Services” (“the defendant” or “the Commissioner”).

2. [2]

   Mr Hamzy is an inmate designated “Extreme High Risk Restricted” (“EHRR”) and housed in the High Risk Management Correctional Centre (“HRMCC”), formerly known as the High Risk Management Unit (“HRMU”) in the Goulburn Correctional Centre operated by Corrective Services New South Wales (“CSNSW”).

3. [3]

   There were 7 prayers for relief in the Summons. Justice Rothman determined all prayers for relief save for prayer 6 in Hamzy v Commissioner of Corrective Services [2025] NSWSC 1023 (“Hamzy 2025”).

4. [4]

   In his judgment, Rothman J mentioned that issues between Mr Hamzy and the defendant were the subject of significant litigation resulting in judgments of this Court having dealt with a variety of issues raised by Mr Hamzy concerning the conditions imposed upon him as a result of his incarceration. For example, the NSW Court of Appeal dealt with issues, not dissimilar to those adjudicated by Rothman J, in a judgment delivered on 23 February 2022: Hamzy v Commissioner of Corrective Services NSW (2022) 107 NSWLR 544; [2022] NSWCA 16 (per Bathurst CJ, Basten and Leeming JA).

5. [5]

   The remaining prayer of relief in the Summons is prayer 6. By that prayer, Mr Hamzy sought the following relief:

6. [6]

   It was common ground that the remaining prayer sought a declaration that the defendant had contravened cll 164(1)(b)(iii) and (iv) and 164(1)(c) of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (“the CAS Regulation”) and, as was submitted by the Commissioner, prayer 6 also sought relief which appeared to be in the nature of injunctive relief or prohibition or mandamus, namely, that the HRMU be “shut down or brought into compliance with the law”.

7. [7]

   Within the Summons, there appears under the heading “Pleadings & Particulars”, a number of particulars. Particular 4 is apposite to the present proceedings, which is in the following terms:

8. [8]

   Clause 164 of the CAS Regulation is in the following terms:

9. [9]

   By Notice of Motion filed on 9 May 2025 (“the Motion”), the defendant sought that the Court give advance rulings as to the admissibility and/or use of Mr Hamzy’s evidence in chief in support of prayer 6, and that central questions concerning the construction of cl 164 of the CAS Regulation be determined separately to, and in advance of, the hearing of prayer 6. The orders sought in the Motion were as follows:

   1. (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 Mr Hamzy.

   2. (2)

      Pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), order that the following questions be determined separately, and before, the balance of the proceedings:

10. [10]

    This judgment concerns the determination of the Motion.

PROCEDURAL BACKGROUND

1. [11]

   Various procedural rulings were made by Harrison CJ at CL on 19 May 2025: Hamzy v Commissioner of Corrective Services [2025] NSWSC 485. His Honour made, inter alia, the following order:

2. [12]

   As a result, Mr Hamzy filed on 10 June 2025 a document titled “DOCUMENT CONTAINING NUMBERED LIST SPECIFYING THE PARTICULAR ACTS, PRACTICES, OR CONDUCT WHICH CONTRAVENES CL 164” (“the Allegations”).

3. [13]

   The Allegations provided particulars over 16 pages, and made reference to solitary confinement (cl 164(1)(b)(i) of the CAS Regulation); torture (cl 164 (1)(b)(iii) of the CAS Regulation); cruel, inhumane and degrading treatment (cl 164(1)(b)(iv) of the CAS Regulation); and any other punishment or treatment that may reasonably be expected to adversely affect an inmates physical or mental health (cl 164(1)(c) of the CAS Regulation). There were sub-particulars for each of those central issues.

4. [14]

   It may be observed that the particulars given by Mr Hamzy extend beyond the scope of the declaratory relief sought, which is confined to cll 164(1)(b)(iii) and (iv) and 164(1)(c) of the CAS Regulation. However, no issue was raised, in that respect, in these proceedings.

5. [15]

   What is evident is that the sub-particulars of the Allegations are extensive. The sub-particulars as to cl 164(1)(b)(iv) contains 61 particulars, and cl 164(1)(c) contains 108 sub-particulars.

6. [16]

   I do not propose to canvas all of the sub-particulars of the Allegations in this judgment. It is sufficient to give the flavour of the sub-particulars referred to in respect of prayer 6 of the Summons by reference to the following sub-particulars that were given in relation to cl 164(1)(c):

   1. (1)

      “Placement in HRMU for political or punitive purposes: (ii). This practice still continues. I was originally sent here for a fight with Cristopher Bins and have been kept there for political, and punitive purposes. Other inmates were sent here for political reasons, others for assaulting officers, assaulting inmates, or other “punishable” incidents in system. It is relevant to my case because watching inmates being oppressed for political purposes or personal agendas affects me psychologically and emotionally. The inconsistency, purpose and hypocrisy of the placement impacts me psychologically and emotionally.”

   2. (2)

      “Revoking or refusing communications with family: (i). This continues till today.”

   3. (3)

      “Excessive use of force on inmates: (ii). This still occurs: This is relevant to my case because this conduct has caused me mental anguish, fear, rage, distress, trauma, pain and suffering.”

   4. (4)

      “No window of natural light which meets the international standards: (ii). This still occurs: This is relevant to my case because this conduct has caused me mental anguish, distress, trauma, pain and suffering. Hearing inmates complain, stress and have panic attacks has the same effect.”

   5. (5)

      “Forced to eat with hands because I wouldn’t say please when I wanted to exchange my broken cutlery: (i) 2002-20012 (sic).”

7. [17]

   In support of the Motion the defendant relied upon the Affidavit of Christopher Frommer affirmed on 21 August 2025. Mr Frommer is the solicitor employed in the office of the Crown Solicitor.

8. [18]

   The evidence relied upon by Mr Hamzy on the Motion was his own Affidavit affirmed on 3 September 2025. It may be noted, in that respect, both on the Motion and more generally, that Mr Hamzy is a self-represented litigant who is not legally trained.

RELEVANT PRINCIPLES: DECLARATORY RELIEF

1. [19]

   Before turning to the particular elements of the Motion, it is useful to discuss, as the defendant did, the relevant principles governing the determination of an application for declaratory relief, as sought in prayer 6 of the Summons. In this respect, it is noted that the Summons does not purport to be an application for judicial review of an administrative action by the Commissioner pursuant to s 69 of the Supreme Court Act 1970 (NSW), or an action in tort for damages based upon historical mistreatment.

2. [20]

   The following submissions by the defendant may be accepted as being relevant to the grant of declaratory relief:

   1. (1)

      The Court’s ability to grant declaratory relief is not unlimited. It is “confined by the considerations which mark out the boundaries of judicial power” and must be directed to the determination of legal controversies as opposed to answering questions that are “abstract, hypothetical or moot”: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 at 581-582 (per Mason CJ, Dawson, Toohey and Gaudron JJ) (“Ainsworth”); Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41 at [102] (per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

   2. (2)

      In that regard, the Court of Appeal has recognised that there is an overlap between the requirement that there be a “matter” for the purposes of federal jurisdiction and “the need for there to be a controversy for declaratory relief to issue”: Zurich v Australian Insurance Limited v CIMIC Group Limited (2024) 115 NSWLR 297; [2024] NSWCA 229 at [516] (per White and Stern JJA, Griffiths AJA); Fonterra Brands (Australia) Pty Ltd v Bega Cheese Ltd [2025] NSWSC 395 at [81] (per Peden J).

   3. (3)

      As such, the power to grant a declaration will not be exercised where it “will produce no foreseeable consequences for the parties”: Ainsworth at 581-582 (per Mason CJ, Dawson, Toohey and Gaudron JJ); Edenden v Bignell [2007] NSWSC 1122 at [24]-[25] (per Barrett J).

   4. (4)

      Thus, Mr Hamzy does not have standing to seek a declaration as to a breach of cl 164 of the CAS Regulation in connection with any inmate other than himself, as it would produce no foreseeable consequences for him.

   5. (5)

      Nonetheless, Mr Hamzy’s evidence as to the treatment of other inmates may be relevant, because it illustrates that Mr Hamzy witnessed or experienced events which affected him for the purpose of cl 164(1)(c) of the CAS Regulation.

   6. (6)

      It will rarely be appropriate to make a “bare declaration” which is not declaratory of any present right and amounts only to an acknowledgement of a past infringement of a right.

   7. (7)

      There are contextual considerations that might limit the scope of the Court’s inquiry in a matter. Courts should exercise care in determining what is necessary or appropriate in the interests of custodial management: Hamzy v Commissioner of Corrective Services [2022] NSWCA 16; 107 NSWLR 544 at [182] (per Leeming JA); Clark v Commissioner for Corrective Services [2016] NSWCA 186 (“Clark”) at [6] (per Basten JA), citing Flynn v The King (1949) 79 CLR 1; [1949] ALR 850 at 7 (per Dixon J); Clark at [84]-[85] (per Emmett AJA); Davies v The Queen [2018] VSCA 315 at [49] (per Kaye, McLeish and Forrest JJA); McKane v Commissioner of Corrective Services of New South Wales (No 3) [2018] NSWSC 1060 at [42]-[45] (per Davies J), citing Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82 at 87; Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 at [7]-[11] (per McInerney J).

SEPERATE QUESTIONS

1. [21]

   Consistently with the approach taken in the oral hearing of the Motion, I shall deal with the orders sought in the Motion out of order from the sequence in which they appear in the Motion, by firstly dealing with the second order sought, that pursuant to r 28.2 of the UCPR, the Court order that the construction of cl 164 of the CAS Regulation be determined separately, and in advance of, the balance of the proceedings.

Rule 28.2 of the UCPR

1. [22]

   Rule 28.2 of the UCPR is in the following terms:

Relevant principles

1. [23]

   In Southwell v Bennett [2010] NSWSC 1372 (“Southwell”), Hallen AsJ stipulated the principles appropriate to the making of a determination as to a separate question under r 28.2 of the UCPR, with which, with respect, I agree. His Honour stated at [15] as follows:

2. [24]

   Reference should also be made, as Hallen AsJ did, to the judgments of Lords Wilberforce and Roskill in Allen v Gulf Oil Refining Ltd [1981] AC 1001 at 1010:

3. [25]

   At 1022, Lord Roskill stated:

Submissions for the Commissioner

1. [26]

   In his written and oral submissions on this aspect of the Motion, Mr J Emmett SC (as he then was) with whom Ms L Dargan appeared for the defendant, fairly made some concessions relevant to the determination of this issue, particularly having regard to Mr Hamzy’s self-represented status, as follows:

   1. (1)

      In other States and Territories, where Charters of Rights have been enacted, it has been said that a lack of intention is relevant to, but not determinative of, whether there has been a breach of human rights: Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33 at [92]-[93] (“Islam”) (per McWilliam AsJ); Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children (2016) 51 VR 473; [2016] VSC 796 at [163] (per Garde J). The High Court has also observed that there is no requirement that acts be intentionally inflicted in order to constitute a contravention of Article 7 of the International Covenant on Civil and Political Rights (“ICCPR”). Those arguments potentially weigh against the Commissioner's position as to the construction of cl 164 of the CAS Regulation.

   2. (2)

      While the Commissioner does not accept that the Court would need to receive and assess all of the evidence to address the Separate Questions, the Commissioner acknowledged that the extent of overlapping issues of fact is an appropriate consideration in the exercise of the Court’s discretion under r 28.2 of the UCPR. The Commissioner accepted that questions of construction cannot be resolved in a vacuum, divorced from the underlying facts.

2. [27]

   Furthermore, Mr Emmett acknowledged the following, in common with Mr Hamzy:

   1. (1)

      The proceedings should be managed with a view to determining the issues as expeditiously as possible.

   2. (2)

      The Court should exercise real caution in ordering the hearing of the Separate Questions, including considering what is ‘just and convenient’.

   3. (3)

      There was no prospect of the Separate Questions being determined on the basis of an agreed statement of facts. The Commissioner submitted, however, that the Court may determine the Separate Questions having taken Mr Hamzy’s allegations at their “highest”.

3. [28]

   Nonetheless, the Commissioner pressed the second prayer for relief in the Motion upon the bases of the following submissions:

   1. (1)

      There are countervailing efficiency considerations in this case.

   2. (2)

      Two key concerns include the breadth of the proceedings, and needing to place some sort of bounds on what the Court will be asked to inquire into, in circumstances where the Commissioner submitted that the fact of incarceration, and everything that follows from that fact, including incarceration in a high security context, cannot be enough to engage cl 164 of the CAS Regulation.

   3. (3)

      If the Separate Questions were determined in advance of the hearing, and the construction contended for by the Commissioner was accepted, much of the evidence upon which Mr Hamzy sought to rely would be irrelevant. That is because many of the allegations made by Mr Hamzy appear to concern: (a) acts, practices or conduct undertaken in the course of custodial management and pertaining to systemic issues of custodial management, (b) incidents involving other inmates, or (c) historical decisions related to security. They do not appear to concern punishments or treatment imposed for a punitive purpose.

   4. (4)

      The discretion to order separate questions pursuant to r 28.2 of the UCPR is by reference to the overarching purpose in s 56 of the Civil Procedure Act 2005 (NSW).The saving of time and cost by narrowing the issues for trial is a factor that supports the exercise of the Court’s discretion to order separate questions: Southwell at [15] (per Hallen AsJ); Cruden v Sae-Ung [2021] NSWSC 1070 at [41] (per Hallen J). It was submitted that the hearing of the Separate Questions could be dealt with in a day, even if there were some legal complexities.

   5. (5)

      Given the nature of the allegations made by Mr Hamzy, and the particular case management issues that confront a court in proceedings involving a self-represented litigant, if the questions concerning the construction of cll 164(1)(b) and (c) of the CAS Regulation are not determined separately to, and in advance of, the substantive hearing, significantly more time would be required in order for the Commissioner to investigate and (if appropriate) respond to the numerous matters contained in Mr Hamzy’s evidence. That is itself a matter that could extend the timetable for the final hearing.

   6. (6)

      The Commissioner accepted that the determination did not, and should not, require a deliberation of the merits, although Mr Emmett accepted that a “relationship” with some aspects of the merits was “unavoidable”.

4. [29]

   As a result of an order by the Court on 2 October 2025, the Commissioner prepared a note (“the Defendant’s Note”) illustrating the aspects of Mr Hamzy’s claim that would potentially be impacted by the determination of the Separate Question. In part, this document assisted in examining the utility of determining the Separate Questions.

5. [30]

   The table helpfully prepared by the legal representatives for the Commissioner did not fix upon Mr Hamzy’s evidence as such, but undertook an analysis of the Allegations, separated into various categories designated by the Commissioner, to demonstrate the impact that a determination of the Separate Questions (in favour of the Commissioner) may have.

6. [31]

   For example, category 1 consisted of the following:

   1. (1)

      Mr Hamzy’s classification, designation and placement, or particular security measures applicable to him as a result of his classification or designation; or

   2. (2)

      other decisions or measures imposed by the Commissioner or his officers in the operation and management of the HRMCC or other correctional centres, as opposed to punishments imposed for a punitive purpose.

7. [32]

   In the submissions accompanying the Defendant’s Note, the Commissioner introduced a number of qualifications to the note. I extract the first, third and fourth qualification below:

8. [33]

   The Commissioner also gave an overview of the Commissioner’s contentions as to the merits of the Separate Questions per se, which was, in substantial measure, in reply to Mr Hamzy’s submissions. Those submissions were as follows:

   1. (1)

      The construction of “punishment” and “treatment” in cll 164 (1)(b) and (c) of the CAS Regulation should be understood as “punishment” or “treatment” deliberately imposed and for a punitive purpose.

   2. (2)

      In support of this construction, the Commissioner relied on the following propositions:

   3. (3)

      In assessing the utility of human rights jurisprudence from other jurisdictions, it is important to bear in mind the different legislative contexts informing those decisions. The legislature in this jurisdiction has not elected to enact a Charter of Rights providing for general protections against cruel, inhumane or degrading treatment, or broader rights in relation to persons in custody (such as the Human Rights Act 2004 (ACT), ss 10(1)(b), 19(1); Charter of Human Rights and Responsibilities Act 2006 (Vic), ss10(b), 22(1); ICCPR, Art 7; European Convention on Human Rights, Art 3). Nor has the legislature chosen to impose positive duties on public authorities with respect to such rights as enacted. While the language of cl 164 of the CAS Regulation resembles Article 7 of the ICCPR, cl 164 is not a free-standing right or protection. It does not regulate conditions of custody generally. Rather, it concerns the narrower proscription of “prohibited punishments”.

   4. (4)

      Those decisions are, however, of limited assistance in assessing the position under New South Wales law, and, in this particular context. There are countervailing contextual and purposive considerations that support the Commissioner’s construction of “punishment” and “treatment” in this case:

   5. (5)

      Even in the context of considering a contravention of s 19(1) of the Human Rights Act 2004 (ACT), the fact of detention is not, in and of itself, sufficient to constitute an infringement of that right. That is significant in circumstances where s 19(1) provides that “[a]nyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person”. That is a higher standard than is required by s 10(1) of the Human Rights Act 2004 (ACT), which provides that no one may be tortured or treated or punished in a cruel, inhuman or degrading way. There is no positive obligation comparable to s 19(1) in cl 164 of the CAS Regulation, or otherwise as applicable to prisoners detained pursuant to the CAS Act. In considering an alleged contravention of the higher standard in s 19(1) of the Human Rights Act, Kennett J observed in Islam v Director-General, Justice and Community Safety Directorate [2022] ACTSC 124 (“Islam 2022”) (at [75]):

   6. (6)

      Mr Hamzy’s reliance on s 2A(1) of the CAS Act is misplaced as it is advanced as determinative of the question of construction. While it is to be taken into account, statutory construction will not normally turn on ‘general purpose’ provisions where there are multiple purposes in tension. The construction should turn on the text of the provisions, in context and in accordance with settled principles. In any event, s 2A(3) of the CAS Act is not dispositive.

   7. (7)

      The title of the Division in which cl 164 of the CAS Regulation is located and the heading to the clause itself both refer to punishment as distinct from conduct more broadly. The use of the phrase “subjected to” in cl 164 itself also indicates a positive and intentional act. The clause ought not to be construed such that it extends to an inmate being “exposed to” conditions of custody generally, including through exposure to the conduct of other inmates.

Submissions of Mr Hamzy

1. [34]

   A significant portion of Mr Hamzy’s submissions were directed to the construction of the provisions of cl 164 of the CAS Regulation. I do not propose to traverse the entirety of those submissions, but I will, as was undertaken in the case of the Commissioner’s submissions, provide a brief summary of some of the main points of argument.

2. [35]

   In summary, Mr Hamzy’s submissions as to the Motion, were as follows:

   1. (1)

      The Motion seeking separate questions and advance rulings is opposed.

   2. (2)

      The proceedings should not be delayed because:

   3. (3)

      The defendants have the “power, money, manpower, freedom, time, technology, tools and resources of the State behind them”. It should not be accepted that it would be unfair or burdensome to require them to answer the Allegations. Any further specification or clarification the Commissioner may require can be answered by an exchange between the parties.

   4. (4)

      The Commissioner cannot complain about the difficulties of meeting the evidence as “[t]he exceptional situation of this matter is that the defendant has in his possession all the information relating to the evidence [filed by Mr Hamzy]. I do not expect the Commissioner to deny them or deceive the court”.

   5. (5)

      The scope of the words “be subjected to any other punishment or treatment” in cl 164(1)(c) of the CAS Regulation should be assessed with “the benefit of contextualising all the facts and evidence alongside the law”.

   6. (6)

      The granting of the Motion would cause significant delay and increase costs.

   7. (7)

      There is nothing exceptional about this matter which would necessitate an advance ruling.

   8. (8)

      Section 79(1) of the CAS Act provides that regulations may be made for “the punishment or treatment of inmates, including punishments and treatments that are prohibited” (see s 79(1)(q1) of the CAS Act).

   9. (9)

      The Governor may not make regulations inconsistent with the CAS Act.

   10. (10)

       To prescribe a regulation that only prohibits torture or other cruel, inhumane, degrading treatment or punishment when it is deliberately imposed, or when it is imposed as a punishment, would render it inconsistent with the regulation making power under the CAS Act.

   11. (11)

       It cannot be doubted that the decision to place an inmate in the HRMCC must involve a deliberate act on the part of the Commissioner. Nor can it be doubted that inmates who are sent to the HRMCC are subjected to “policies, practices, procedures, privations, deprivations, restrictions, conditions, treatment and punishments” that are deliberately imposed on inmates in the HRMCC.

   12. (12)

       If the Commissioner is prohibited from imposing torture or cruel, inhumane, or degrading treatment or punishment then the Commissioner cannot impose those conditions under the protection or guise of “management arrangements”.

   13. (13)

       The statute cannot only be directed to acts which are deliberate, as if the Commissioner carried out torture, cruel, inhumane or degrading treatment deliberately, that would amount to a criminal offence, tort, abuse of power, or misconduct. If an inmate did suffer, the Commissioner would have failed in his duty of care.

   14. (14)

       There is nothing in cll 164 (1)(b)(i) to (iv) of the CAS Regulation that requires the prohibited conduct to be deliberately imposed. There is simply “no legal authority to engage in such conduct”. If it were otherwise, the Commissioner could easily circumvent the prohibition by simply claiming that it was not his intention to inflict “cruel, inhumane, degrading treatment or punishment” (referred to by Mr Hamzy as “CIDT”).

   15. (15)

       The Commissioner’s construction of cl 164 of the CAS Regulation must be rejected as it involves the Commissioner “seeking to establish that it is not CIDT and torture” if the purpose is only to “manage” an inmate in HRMU, even if those conditions may amount to CIDT and torture.

   16. (16)

       It was submitted:

   17. (17)

       It was also submitted:

   18. (18)

       In a further submission, Mr Hamzy submitted that:

   19. (19)

       The Commissioner’s approach is inconsistent with the objects in s 2A of the CAS Act.

   20. (20)

       In [37] of his written submissions, Mr Hamzy submitted:

   21. (21)

       Nowhere in the permissible punishments set out in ss 53, 56 and 56A of the CAS Act, or the “withdrawable privileges” as identified in cl 163 of the CAS Regulation, is there permission to engage in torture or cruel, inhumane, degrading treatment or punishment as a penalty or punishment.

   22. (22)

       It would be “repugnant” or “absurd” to allow torture so long as it was not deliberately imposed as a punishment, or alternatively, if it was only prohibited when it was deliberately imposed as a punishment.

   23. (23)

       In making an assessment whether an act engaged in is in breach of s 164(1) of the CAS Regulation, it is necessary to understand what treatment or punishments were afforded to inmates, and the severity of those punishments. This cannot be done without a full appreciation of the evidence, including “historical mistreatment and punishment and its connection to today’s treatment and punishment”.

   24. (24)

       The Court is required to assess all of the circumstances of the case, including duration of the treatment, its mental or physical effects, and the sex, age and state of health of the alleged victim.

   25. (25)

       International authority suggests that the prohibition on torture, or other cruel, inhumane or degrading treatment or punishment protects against acts that cause both physical and mental suffering.

   26. (26)

       The legal controversy in this matter is “whether [Mr Hamzy’s] treatment and punishment in the HRMCC is in breach of the prohibited treatments and punishments in cl 164 [of the CAS Regulation]. Any matter or thing relevant to that determination is admissible.” Furthermore, “there is nothing ‘abstract, hypothetical or moot’ about that controversy”.

   27. (27)

       The position of other inmates is relevant. Experts have opined that the conditions experienced by Mr Hamzy have had an adverse impact on his mental health, and those impacts cannot be separated from what he has seen other inmates go through. The treatment of others is directly connected to his conditions, treatment, punishment and mental health.

   28. (28)

       The duration, severity and cumulative effect of the treatment or punishment is relevant to the assessment of whether cl 164(1) of the CAS Regulation has been breached.

   29. (29)

       Whether or not courts are well qualified to determine what is appropriate in the interests of custodial management is beside the point, as courts are well qualified to apply the law to the facts. The Commissioner does not have an unfettered power to manage the correctional system.

Consideration

1. [36]

   It was appropriate for Mr Emmett to concede that the Court should exercise real caution in the consideration of the application for a hearing of separate questions under r 28.2 of the UCPR. As was observed by Kirby and Callinan JJ in Tepko Pty Ltd v Waterboard (2001) 206 CLR 1; [2001] HCA 19 at [55], the “attractions of trials of issues rather than cases in their totality, are often more chimerical than real”. Their Honours referred to common experience demonstrating that savings of time and expense involved in such approaches are often illusory.

2. [37]

   It is for this reason that judges of this Court have expressed significant caution in the consideration of applications under r 28.2 of the UCPR. Hence, in Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors [2007] NSWSC 697, Brereton J opined that the consideration of separate questions rather than the “ordinary course of deciding a case in its totality” was an exceptional course.

3. [38]

   Hallen AsJ in Southwell stated that, as a general rule, the discretionary power to order a separate determination of a question should be approached with caution (at [15(e)]).

4. [39]

   The Separate Questions in this matter essentially concern questions of statutory construction of the provisions of cl 164 of the CAS Regulation. The Commissioner accepted that the Separate Questions should be approached on the ordinary principles of statutory construction.

5. [40]

   A recent exposition of the principles of statutory construction is found in The King v Jacobs Group (Australia) Pty Ltd (2023) 280 CLR 170; [2023] HCA 23 at [23] (per Kiefel CJ, Gageler, Gordon, Steward, Gleeson, Jagot JJ applying Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at 381 [69]) as follows:

6. [41]

   A more recent exposition of the same principles can be found in DZY (A Pseudonym) v Trustees of Christian Brothers (2025) 422 ALR 372; [2025] HCA 16 at [23] (per Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ):

7. [42]

   The issues of construction raised by the Commissioner, for which answers to separate questions are sought, concerned cl 164(1)(b) and (c) of the CAS Regulation. In short form, the Commissioner contended that the words “punishment” and “treatment”, when appearing in cl 164(1), should be read as being confined to a punishment or a treatment that was deliberately imposed and for a punitive purpose. Further, the Commissioner contended that the proper construction of cl 164(1)(c) would require, for that subclause to operate, something more than “the unavoidable features of incarceration (including in particular for an inmate with a EHRR designation)”.

8. [43]

   In the submissions advanced by the Commissioner as to those questions of construction, it was emphasised that the most significant considerations in the present case were textual, although it was also recognised, in that respect, that the terms “punishment” and “treatment” have to be considered contextually within the CAS Regulation. Elsewhere the Commissioner referred to a purposive construction of the provisions.

9. [44]

   As Hallen AsJ pointed out in Southwell, the provisions of r 28.2 of the UCPR speak of “questions” and not “issues”, and do not differentiate between questions of fact or law. However, a judicial determination of a question must involve a conclusive or final decision based on concrete and established or agreed facts for the purpose of “quelling the controversy between the parties” (at [15(b)]).

10. [45]

    A fundamental difficulty with the Commissioner’s application with respect to the Separate Questions is that, at its base, the Commissioner invited the Court to separately determine the aforementioned questions of construction divorced from the factual context in which they arise for determination.

11. [46]

    The determination of the construction of the terms “punishment” and “treatment” not only needs to be undertaken in the context of the whole of cl 164 of the CAS Regulation and surrounding provisions within the CAS Regulation (such as cll 15(3) and 16), and the CAS Act itself (see ss 79(1)(viii), 232 and 271), but must have regard to the fact that the construction of such terms will inevitably invite the consideration of questions of fact and degree and, in my view, must be resolved in the circumstances of this matter: Kvelde v State of New South Wales [2023] NSWSC 1560 at [170] (per Walton J); see also Lees v State of New South Wales [2025] NSWSC 1209 at [91]-[92] (per Mitchelmore J).

12. [47]

    So much is illustrated by the Commissioner’s submission, where it is contended that concepts such as “punishment” and “treatment” in cl 164 of the CAS Regulation “fall to be considered in light of the regrettable fact that there are likely to be many inmates for whom incarceration, or the unavoidable features of incarceration, may reasonably be expected to adversely affect the inmates physical or mental health”. The Commissioner went further, without specific reference to Mr Hamzy’s situation, to submit that cl 164 cannot be intended to capture “the adverse experiences of inmates generally, nor conditions of custody more generally, nor to the behaviour of inmates towards each other”.

13. [48]

    The position becomes even more stark when the Commissioner referred to the inevitable curtailment of the rights and freedoms that a person who is at liberty may enjoy. The Commissioner noted that that consideration is particularly acute in Mr Hamzy’s case, because he is designated an EHRR inmate and placed in the HRMCC. It was no doubt appropriate to point to the regulations governing inmates of that type, but a delineation needs to be made between the management of such persons and the particular steps taken with respect to Mr Hamzy and other inmates in their management in those settings.

14. [49]

    Reference was made by the Commissioner to the judgment of Campbell J in Ford to support the Commissioner’s construction of the terms “punishment” and “treatment” as being limited to acts or conditions deliberately imposed on an inmate or for a punitive purpose. However, the analysis undertaken by Campbell J at [51]-[53] of Ford demonstrates the need, in this case, for consideration of the specific circumstances underpinning the question of construction. The question may be asked: What is the extent of the deliberateness or punitive nature of the Commissioner’s management decisions, which would bring a particular act or omission within the scope of, or out of the scope of, cll 164(1)(b) and (c) of the CAS Regulation having regarding to the particular circumstances of such decisions made in the case of Mr Hamzy?

15. [50]

    The difficulties for the Commissioner’s case do not end at that point. As was properly conceded by the Commissioner, there will be overlapping issues of fact arising in the present case. In my view, there is likely to be a significant overlap between evidence adduced on the hearing of the Separate Questions and the declaratory proceedings proper. Those considerations will be complicated by the prospect of appeals from interlocutory steps.

16. [51]

    These factors weigh even more heavily when it is common ground that the proceedings ought to be managed with a view to determining the issues as expeditiously as possible.

17. [52]

    Mr Emmett sought to meet these difficulties by a submission that the Court may approach the question of construction based upon taking Mr Hamzy’s case at its “highest”, by reason of the Court substituting an agreed statement of facts (which does not, and will not, exist in this case), with the particulars provided by Mr Hamzy in consequence of the orders made by Harrison CJ at CL. However, superficially attractive that approach may be, in my view, it cannot be a satisfactory basis for answering separate questions.

18. [53]

    The Allegations are often replete with ambiguity and, in some respects, are not fully stated or developed. They are a far cry from providing a concrete and established factual foundation for resolving the controversy between the parties, as to the construction of cll 164(1)(b) and (c) of the CAS Regulation.

19. [54]

    The Commissioner conceded, in the Defendant’s Note, that “the allegations are not sufficiently particularised, or the Commissioner is not presently in a position to respond to them, given they have not yet been investigated”. Further, the Commissioner’s contention also erroneously assumes that the particulars set out by Mr Hamzy would be easily delineated in the manner set in the Defendant’s Note.

20. [55]

    Further, this is not a case where Mr Hamzy’s pleadings may be taken at their highest for determining, for example, a strike out application: General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69.

21. [56]

    It may be readily acknowledged that the basis for the Commissioner’s application derives from countervailing efficiency considerations, particularly in the light of the significant volume of evidence relied upon by Mr Hamzy, assuming that Mr Hamzy will rely upon all of his affidavits served in the proceedings thus far.

22. [57]

    It may also be acknowledged that the Court is required to consider, in the exercise of its discretion under r 28.2 of the UCPR, the overarching purpose of s 56 of the Civil Procedure Act. It is important to consider whether a saving of time or cost might be achieved by the narrowing of issues for trial.

23. [58]

    However, even these propositions need to be treated with some caution in the present context.

24. [59]

    I have already observed that there are overlapping issues of fact. That consideration may be extended further if consideration is given to the likely course of the proceedings. If the Commissioner’s construction were to be accepted, then it is most likely that Mr Hamzy would wish to dispute whether or not a particular act or omission by the Commissioner fell within the constraints upon the operation of cll 164(1)(b) and (c) that the Commissioner contends should be adopted in this case. Thus, it may be expected that there would be an evidentiary dispute as to whether or not a particular act or omission by the Commissioner with respect to an inmate was deliberately imposed and for a punitive purpose. Yet, this is the very evidentiary issue the Commissioner’s application is seeking to avoid.

25. [60]

    A further consideration is that the Commissioner’s approach to the overriding purpose in s 56 of the Civil Procedure Act proceeds upon the premise that the Court would accept the Commissioner’s construction. However, if that construction is unsuccessful, then a significant additional layer would be added to the proceedings, thus, adding to the time and cost of the proceedings. That impact may be even greater if the Commissioner were to appeal any adverse decision on the question of construction. This is not a case where Mr Hamzy’s submissions on the construction of cll 164(1)(b) and (c), are devoid of merit.

26. [61]

    Lastly, it is necessary to consider the fact that Mr Hamzy is self-represented, and the approach sought by the Commissioner is not an orthodox way of approaching a hearing. The Court has a duty to give persons who represent themselves a fair hearing: Reisner v Bratt [2004] NSWCA 22 at [4] (per Hodgson JA, with whom Ipp JA agreed). Hence, while not itself determinative of the Court’s decision, this is a factor weighing against the orders sought by the Commissioner, in that there is a risk that Mr Hamzy may be denied a fair hearing if the proceedings were to proceed with a separate determination of the Separate Questions.

27. [62]

    In all the circumstances, the Commissioner has not satisfied the Court that it would be ‘just and convenient’ for the Separate Questions to be determined separately, and before, the balance of the proceedings.

ADVANCE RULINGS

1. [63]

   I turn now to the first order sought on the Motion, that the Court give advance rulings as to the admissibility and/or use of the evidence in chief served by Mr Hamzy.

Section 192A of the Evidence Act

1. [64]

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

Relevant principles

1. [65]

   The discretion conferred on the Court pursuant to s 192A of the Evidence Act is wide, in that, the Court has the power to make advance rulings on the admissibility of evidence “if it considers it to be appropriate to do so”.

2. [66]

   As was noted by Garling J in Zheng v Australian International Aviation College Pty Ltd [2024] NSWSC 1622 at [79]:

3. [67]

   In Searle v Commonwealth of Australia (No 5) [2022] NSWSC 119 (“Searle”), Garling J set out the following principles with respect to how the Court should determine whether or not to exercise the discretion which it has in accordance with s 192A (at [39] – [41]):

4. [68]

   Garling J further considered that an advance ruling pursuant to s 192 of the Evidence Act may be appropriate where it would result in “cost and efficiency benefits”, for example, where it would be cheaper, would save a significant number of witnesses from having to give evidence and, importantly where it would save a considerable number of days of hearing: Searle at [48] (per Garling J).

5. [69]

   The considerations which inform the exercise of the discretion in s 192A of the Evidence Act are varied and are likely to depend upon the circumstances of the particular case.

6. [70]

   In Gondarra v Minister for Families, Housing, Community Services & Indigenous Affairs (2012) 127 ALD 288; [2012] FCA 185 (“Gondarra”) at [25]-[26], Kenny J stated:

7. [71]

   However, in Gondarra, Kenny J ultimately found that the Court was not in a position to determine the relevance and admissibility of evidence ahead of the final hearing. In that case, her Honour found the process of determining relevance was “not as straightforward as may initially appear” (at [32]). As her Honour noted, “[m]uch will depend on the way the case unfolds at trial, including the construction that the Court is persuaded should be given [to] the relevant provisions of the [Aboriginal Land Rights (Northern Territory) Act 1976]” (at [41]). For that reason alone, it was not appropriate to make an advance ruling (at [41]).

8. [72]

   Lastly, in Bailey v Director-General, Department of Natural Resources [2013] NSWSC 515 (per Garling J), an order was refused where there was a risk that assumptions made about evidence might prove to be incorrect in light of the manner in which the case was to be conducted. Garling J stated (at [55] to [60]):

Submissions for the Commissioner

1. [73]

   In summary, the Commissioner submitted that:

   1. (1)

      The evidence served by Mr Hamzy in chief, in support of prayer 6 of the Summons, is extensive. It included Mr Hamzy’s affidavit dated 14 March 2025 and 14 other affidavits of Mr Hamzy of various dates between 2017 and 2024. The affidavits detail approximately 600 incidents or allegations and include a substantial volume of documents.

   2. (2)

      The Commissioner sought to raise four overarching objections to Mr Hamzy’s evidence, which could appropriately be the subject of advance rulings pursuant to s 192A of the Evidence Act. In summary, the objections to Mr Hamzy’s evidence relate to:

   3. (3)

      The manner in which Mr Hamzy has framed his prayer for relief in the Summons, and upon which the Commissioner has conducted these proceedings to date, is relevant to the assessment of the evidence that he may properly lead in evidence of his claim.

   4. (4)

      Prayer 6 of the Summons seeks declaratory relief regarding the Commissioner’s compliance with cl 164 of the CAS Regulation, as opposed to being an application for judicial review, or an action in tort for damages. The nature of the relief sought is relevant to the utility of advance rulings for the following reasons:

   5. (5)

      Many of the matters to which Mr Hamzy refers, in his affidavits, are not matters that are relevant to the declaration that Mr Hamzy seeks in prayer 6, and hence, are matters which are “ripe for advanced rulings”. For example, Mr Hamzy asks the Court to receive evidence regarding:

   6. (6)

      Insofar as Mr Hamzy contends that it is necessary to consider his conditions of custody historically and the “duration” of the alleged conduct, the relevant inquiry for considering whether there has been a breach of cll 164(1)(b) or (c) is whether a particular act, practice or policy contravenes the clause. It does not call for an assessment of the totality of Mr Hamzy’s detention. Even if such evidence were relevant to that assessment, the probative value of the evidence would be outweighed by the undue waste of court and party time, and by the prejudice that the Commissioner would face if he were required to interrogate and respond to allegations of more than 600 matters in Mr Hamzy’s own affidavits.

   7. (7)

      An advance ruling on evidence would aid the efficiency of these proceedings by clarifying the scope of the factual dispute and, thereby, helping to focus the evidence before the Court. That would be beneficial to both parties in terms of knowing the case to be advanced and to be met.

   8. (8)

      If advance rulings are not made, responding to Mr Hamzy’s evidence will place a considerable burden on the Commissioner and be productive of unfairness. Given the breadth of the allegations, the fact that they are made against unidentified officers of CSNSW and the effluxion of time, the task of verifying and, if necessary, disputing and/or contextualising the various allegations in the evidence filed by Mr Hamzy will be onerous. It would likely involve the Commissioner making inquiries of and, potentially, considering leading evidence from a range of CSNSW officers, including those who may have worked at the HRMCC or other correctional centres at various points in the past.

   9. (9)

      Responding to Mr Hamzy’s allegations would also principally require review of paper records held by CSNSW, which are voluminous, and the burden of searches would be exacerbated by the fact that Mr Hamzy has not identified when many of the incidents he described are alleged to have occurred.

   10. (10)

       If advance rulings are not made to exclude or limit the use of Mr Hamzy’s evidence, it will also place a considerable burden on the Court, because it would significantly extend the estimate of any hearing.

   11. (11)

       Those considerations ought to be weighed against the fact that there is real doubt as to the forensic benefit of such evidence in view of the type of relief that Mr Hamzy seeks and that, in the absence of advance rulings on the evidence, responding to that evidence will result in an undue waste of time (of the Court and the parties).

2. [74]

   In oral submissions, Mr Emmett made the following concessions:

   1. (1)

      In addition to declaratory relief, prayer 6 of the Summons also seeks relief which appears to be in the nature of injunctive relief or prohibition or mandamus, that is, to shut down the HRMCC or bring it into compliance with the law. Hence, the Commissioner conceded that the relief sought in prayer 6 does go beyond declaratory relief.

   2. (2)

      That the Court may need to form a view about certain things, including the nature of its jurisdiction and the scope of matters that may permissibly be raised before this Court, in the course of deciding whether or not particular evidence should be admitted or not.

3. [75]

   However, Mr Emmett maintained the position that there was a sound basis for dealing with the objections to evidence in advance of the hearing (rather than the eve of the hearing or at the beginning of the hearing), because many pieces of evidence are either not relevant, or are, at most, peripherally relevant (such that the relevance is outweighed by the undue waste of time). It was submitted that this is particularly so in proceedings where the Court’s focus is on the lawfulness of particular administrative action.

Submissions of Mr Hamzy

1. [76]

   In summary, Mr Hamzy submitted that:

   1. (1)

      An advance ruling would not result in any cost and efficacy benefits, nor would it aid the efficiency of the proceedings. The scope of the matter, and the factual dispute is clear. The case that has been advanced, and the case that the Commissioner needs to answer is also clear.

   2. (2)

      The burden which the Commissioner complaints of must be contrasted with the burden of having to suffer 23 years of what Mr Hamzy alleges is cruel, inhumane and degrading treatment and torture, and the burdens he has overcome to prepare and pursue the matter. If there is any unfairness in the proceedings, then on balance, Mr Hamzy submitted that it was he who is undergoing it.

   3. (3)

      The Commissioner’s complaint about the “effluxion of time” only fortifies Mr Hamzy’s case and illuminates the length of time he has been subjected to this form of treatment. The Commissioner has the resources of the State behind him and the freedom to defend the matter, which are benefits Mr Hamzy does not have.

   4. (4)

      Mr Hamzy had complied with the orders made on 19 May 2025 and is willing to give any extra assistance he can to the Commissioner to narrow the timeline, if possible.

   5. (5)

      There would be no saving in court time or expenditure, and no foreseeable benefit to the Court by having advance rulings. The hearing of advance rulings would only delay the matter further, as the process that would occur before a trial judge is the same process that would need to occur if the Court was to make advance rulings.

   6. (6)

      The evidence Mr Hamzy relies on is relevant, admissible and has a forensic benefit that will support the determination of the case.

2. [77]

   Further, in response to the Commissioner’s submission that he raises his conditions of custody in other correctional centres, which are not relevant to the declaration sought in prayer 6 of the Summons, Mr Hamzy submitted that, as a HRMU inmate, the HRMU policy follows him to other correctional facilities.

Consideration

1. [78]

   In my view, the Commissioner has not demonstrated 'some good reason' why the Court should exercise its discretion to order advance rulings on the admissibility and/or use of Mr Hamzy's evidence in chief.

2. [79]

   It was accepted, at the hearing of this matter, that Mr Hamzy's evidence in chief has been served in full and no further evidence was foreshadowed.

3. [80]

   The Commissioner submitted that the evidence in chief served by Mr Hamzy, in support of prayer 6 of the Summons, is extensive. It was said to include 15 affidavits of Mr Hamzy, which detail approximately 600 incidents or allegations.

4. [81]

   On the basis of that submission, there is, at least, a superficial attraction to ordering advance rulings. It is understandable why the Commissioner may have sought to limit Mr Hamzy's evidence in chief in advance of the trial. If the objections to Mr Hamzy's evidence were upheld, then the evidence which the Commissioner would need to put on in answer to Mr Hamzy's extensive allegations would significantly reduce. However, a closer review of the circumstances of this aspect of the application makes the propositions advanced by the Commissioner as having far less force. My reasons for this conclusion appear below.

5. [82]

   First, the Court is asked to determine whether advance rulings may be ordered on the broad and undefined basis that the Court should “give advance rulings as to the admissibility and/or use of the evidence in chief served by Mr Hamzy”. As a result of an objection taken by Mr Hamzy, there is no specification of the precise form of the objections or potential objections as to the evidence sought to be relied upon by Mr Hamzy.

6. [83]

   Secondly, it should be noted that the only new evidence in support of prayer 6, is an affidavit of Mr Hamzy dated 14 March 2025 (“the 14 March affidavit”). The 14 other affidavits which the Commissioner refers to in support of its submission that the evidence in chief is “extensive”, are materials which were served by Mr Hamzy for the hearing of prayers 1 to 5 by Rothman J.

7. [84]

   Hence, the saving of any time and resources must necessarily be limited by the fact that prayers 1 to 5 have already been heard and determined, meaning that the Commissioner is already familiar with the evidence and allegations served in those proceedings, and presumably, has already prepared and put on evidence in answer to that material.

8. [85]

   The only affidavit served solely in support of prayer 6 is the 14 March affidavit, which is 27 pages in length. It should also be noted that, on the evidence before this Court, it is not clear that Mr Hamzy will seek to rely on the 14 prior affidavits in support of prayer 6. When Mr Hamzy’s evidence in chief is exposed in this light, the Commissioner’s complaint as to the sheer volume of evidence which it needs to answer should be approached with caution.

9. [86]

   Thirdly, while the evidence served by My Hamzy may be described as ungainly or messy, that is not uncharacteristic of matters in which a party is self-represented. However, the fact that the evidence may not be presented in a form that might be expected in the case of a legally represented litigant does not, in my view, constitute a proper basis, in and of itself, to warrant the Court ordering that advance rulings ought to be made.

10. [87]

    Fourthly, it is not clear that an advance ruling, in this matter, would save a considerable amount of time, or facilitate the just, quick and cheap resolution of the proceedings. For the reasons which I will detail below, the relevance and use of Mr Hamzy's evidence may well depend on the way the case unfolds at trial. Hence, it is not clear that the number of days of hearing would be reduced, nor that a significant number of witnesses would be saved from having to give evidence.

11. [88]

    In my view, the most compelling argument in favour of the order sought for advance rulings, was the Commissioner’s submission as to the relevance of Mr Hamzy’s evidence in the face of the nature of the relief sought by Mr Hamzy. While this Court is not concerned with a determination of the actual objections to evidence, it is nonetheless appropriate, albeit with significant limitations, to consider the nature and scope of those objections in order to pass upon the utility of any advance ruling.

12. [89]

    The following factors, when taken together, militate against a finding that advance rulings would facilitate the overriding objective in s 56 of the Civil Procedure Act in that context:

    1. (1)

       The potential rulings on relevance sought by the Commissioner, would require the Court to deliberate on the scope of declaratory relief, which itself is discretionary in nature, ahead of the actual trial of the issues in this matter. It may be difficult to pass upon, at a preliminary stage, the scope of declaratory relief in proceedings such as this, thereby making the rulings complicated and potentially unproductive. The issues may need to be reventilated at the trial, and it is conceivable that a Court may be inclined to make provisional rulings on relevance pursuant to s 57 of the Evidence Act.

    2. (2)

       A counterpart consideration is that revisiting questions of relevance and the scope of declaratory relief itself (ahead of the trial and then again at the trial) may give rise to the prospect of embarrassment if different judges are required to rule upon the advance rulings and the evidence led at trial.

    3. (3)

       These concerns may be added to by a further consideration. As was accepted by Mr Emmett, the nature of the relief sought by Mr Hamzy is not immediately clear on the face of the Summons but may well be wider than mere declaratory relief. Hence, given that the question of relevance and the nature of the relief sought are significantly intertwined, if advance rulings were ordered, the question as to the nature of the relief sought by Mr Hamzy, may also need to be determined on multiple occasions.

    4. (4)

       Mr Emmett accepted that the nature of the relief sought by Mr Hamzy does, in fact, go beyond declaratory relief. In the face of this concession, many of the more compelling arguments as to why advance rulings may have utility (namely, on the basis that a significant proportion of Mr Hamzy’s evidence would not be relevant to the seeking of declaratory relief), have less force.

    5. (5)

       The questions of admissibility may depend on the way the case unfolds at trial, including the construction that the Court is persuaded should be given to s 164(1) of the CAS Regulation. In my view, it would be premature to rule on the admissibility of evidence in advance of the issue of construction.

    6. (6)

       It is true that some particular matters raised in Mr Hamzy’s evidence may typically be ripe for advanced rulings, such as matters the subject of past litigation. However, it is difficult to declare in advance that those matters are wholly irrelevant, when there is at least the potential that they connect to the issues raised by Mr Hamzy with respect to other inmates, and how his observations of their treatment may give rise to issues of the kind described in cl 164(1)(c) of the CAS Regulation. While it may be ultimately found that the connection is too remote, it is difficult to see how that determination may be made in advance of the trial. Furthermore, an issue was taken as to the relevance of evidence as to Mr Hamzy’s conditions of custody in other correctional centres. However, as Mr Hamzy submitted, his conditions of custody were not the result of a specific location or institution, but rather, attached to him by reason of his status as EHRR, or the circumstances of his prior incarceration. This is not to say that it is inconceivable that this evidence may ultimately be, when the evidence is later considered, irrelevant. But there is at least a provisional basis upon which the evidence may be found relevant and admissible at this stage.

13. [90]

    These matters also undermine the Commissioner’s case for advance rulings, particularly from a case management perspective.

14. [91]

    For the aforementioned reasons, Mr Hamzy’s evidence should not be subject to advance rulings on admissibility at this juncture of the proceedings. The grant of the Commissioner’s application would add a relatively significant and additional burden of time and cost, for the parties and the Court, with very limited benefit.

CONCLUSION

1. [92]

   In all the circumstances, the Motion should be dismissed.

2. [93]

   That conclusion gives rise to a consideration as to whether the Commissioner should pay Mr Hamzy’s cost of the Motion. While legal costs may only be recovered in relation to the costs of legal practitioners, I accept that a litigant in person may nonetheless recover reasonably incurred disbursements or witness expenses.

3. [94]

   I agree with the finding of Rothman J in Hamzy v Commissioner of Corrective Services (No 2) [2025] NSWSC 1403 at [19], that:

4. [95]

   Ultimately, those considerations involve questions of quantification on assessment. However, as to liability for costs, the general rule is that costs follow the event: r 42.1 of the UCPR. There can be no question that Mr Hamzy was successful on the Motion and should therefore be entitled to any costs which he may reasonably be entitled to recover as a self-represented litigant.

ORDERS

1. [96]

   The Court makes the following orders:

   1. (1)

      The Notice of Motion filed by the Commissioner of Corrective Services on 9 May 2025 is dismissed.

   2. (2)

      The defendant shall pay Mr Hamzy’s costs of the Notice of Motion.