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Supreme Court 11 March 2011

Hamzy v Commissioner of Corrective Services (NSW) and Anor

[2011] NSWSC 120

Other
ADMINISTRATIVE LAW RESTRICTION ON RESIDUAL LIBERTY WHETHER SEGREGATION ORDER REQUIRED SUMMARY DISMISSAL APPLICATION

Citation: Hamzy v Commissioner of Corrective Services (NSW) and Anor [2011] NSWSC 120
Court: Supreme Court of New South Wales
Date: 11 March 2011
Judge: Johnson J

Background

The plaintiff is a sentenced prisoner serving lengthy terms of imprisonment, including for murder and conspiracy to murder, with the earliest possible parole date in December 2023. Throughout his imprisonment, he was detained in restricted facilities within the correctional system, with significant constraints placed on his movements, associations, visits, and communications with people both inside and outside prison.

The central controversy was that this heightened restriction was imposed, in the main, without a formal segregation order under section 10 of the Crimes (Administration of Sentences) Act 1999 ("the CAS Act"). The plaintiff brought proceedings against the Commissioner of Corrective Services and the State of New South Wales, seeking injunctive, prerogative, and declaratory relief, habeas corpus, and damages for what he characterised as unlawful detention within the prison system.

The defendants filed a Notice of Motion seeking summary dismissal of a substantial portion of the plaintiff's claims. They argued that no segregation order was required to authorise the stricter confinement, and that the placement was permissible under general statutory powers of management and good order. This judgment concerned that summary dismissal application.

  • Whether a formal segregation order under section 10 of the CAS Act was required to authorise the plaintiff's placement in restricted facilities within the correctional system
  • Whether the Commissioner's general powers of management and good order under the CAS Act were sufficient to authorise detention in such facilities without a segregation order
  • Whether retrospective legislation (specifically the insertion of section 78A into the CAS Act, commencing 26 June 2009) validated the plaintiff's placement without a segregation order for the relevant periods
  • Whether the applicable legal questions were appropriate for resolution on a summary dismissal application, or whether triable issues of fact remained
  • What claims, if any, should survive the summary dismissal application and proceed to trial

Decision

Johnson J approached the application by applying the well-established principles from General Steel Industries Inc v Commissioner of Railways (NSW) and related authorities: summary dismissal requires a very clear case, the power should be sparingly employed, and the test is not whether the plaintiff would probably fail but whether the action must fail. The judge noted that the present application turned entirely on questions of law and the proper construction of statutory provisions, with no disputed facts that could affect those legal arguments.

The defendants succeeded on the principal issue. The court found that the plaintiff's placement in restricted facilities without a segregation order was authorised, and that a section 10 order was not required for that purpose. Central to this conclusion was the retrospective operation of section 78A of the CAS Act, inserted with effect from 26 June 2009. That provision retrospectively confirmed that the separation of prisoners could be effected without a segregation order under the general management and good order powers in the legislation.

As a consequence, the majority of the plaintiff's claims for relief were dismissed and significant portions of the Amended Statement of Claim were struck out. However, the court preserved certain claims, identified at paragraphs 154 of the judgment, which were permitted to continue to trial. These surviving claims related to aspects of the plaintiff's detention and treatment not disposed of by the summary dismissal.

On costs, Johnson J declined to order the plaintiff to pay the defendants' costs for the entire period. Because the defendants' success on the principal issue was directly attributable to the retrospective legislative amendment commencing 26 June 2009, it would not be appropriate to require the plaintiff to bear costs for the period before that date. Costs orders were therefore limited to the period on and after 26 June 2009.

Orders Made

  • The claims for relief in paragraphs 1, 2, 3 (except subparagraph (c)), 5, 6, 7, 8 and 9 of the "Relief Claimed" section of the Amended Statement of Claim filed 5 August 2010 were dismissed pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005
  • Paragraphs 9 to 14, 17 to 22, 25, 30 to 42, and 46 (except subparagraphs (c) and (g)) of the "Grounds" section of the Amended Statement of Claim were struck out pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005
  • The plaintiff is to pay the defendants' costs of the Notice of Motion, but only for the period on and after 26 June 2009
  • The plaintiff is to pay the defendants' costs with respect to the proceedings dismissed by the above order, but only for the period on and after 26 June 2009
  • The proceedings were listed for directions before the Registrar in four weeks to determine the future course of the litigation

Key Takeaways

  • Under the CAS Act as amended by the insertion of section 78A (commencing 26 June 2009), the separation of a prisoner into restricted facilities does not require a formal segregation order under section 10; the Commissioner's general powers of management and good order provide sufficient statutory authority.

  • Retrospective legislation can be decisive in summary dismissal applications: where retrospective provisions resolve the principal legal question against a plaintiff, that is sufficient to warrant dismissal of the affected claims, even where the plaintiff's case might otherwise have been arguable.

  • A summary dismissal application will succeed only in the clearest of cases; however, where the entire dispute turns on pure questions of law and statutory construction with no disputed facts, a court will resolve those questions and grant summary dismissal accordingly rather than deferring them to trial.

  • The costs consequences of retrospective legislation may be confined in time: Johnson J declined to order costs against the plaintiff for the period before the retrospective amendment took effect, on the basis that the plaintiff's failure was attributable to a legislative change made during the proceedings rather than to a pre-existing legal deficiency in his case.

  • Partial survival of claims is possible in summary dismissal: the judgment preserved several of the plaintiff's claims relating to specific aspects of his detention, which were not caught by the defendants' successful arguments, and these were permitted to proceed to trial.

Legislation and Cases Referenced

Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW), including ss 10 and 78A
- Crimes (Administration of Sentences) Legislative Amendment Act 2008 (NSW)
- Felons (Civil Proceedings) Act 1981 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Administration of Sentences) Regulation 2001 (NSW)
- Crimes (Administration of Sentences) Amendment Regulation 2009 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW), rr 13.4 and 14.28
- Racial Discrimination Act 1975 (Cth)
- Interpretation Act 1987 (NSW)

Cases
- Hamzy v Commissioner of Corrective Services [2007] NSWSC 1469
- Sleiman v Commissioner of Corrective Services; Hamzy v Commissioner of Corrective Services [2009] NSWSC 304
- General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; 112 CLR 125
- Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62
- Webster v Lampard [1993] HCA 57; 177 CLR 598
- Agar v Hyde [2000] HCA 41; 201 CLR 552
- Brimson v Rocla Concrete Pipes Limited (1982) 2 NSWLR 937
- Wickstead v Browne (1992) 30 NSWLR 1
- Esanda Finance Corporation Limited v Peat Marwick Hungerfords [1997] HCA 8; 188 CLR 241
- Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
- Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1
- Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566
- R v Hamzy [2002] NSWSC