Hamzy v Commissioner of Corrective Services [2007] NSWSC 1469

New South Wales Supreme Court

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

Crimes (Administration of Sentences) Act 1999 LEGISLATION CITED : Felons (Civil Proceedings) Act 1981 Freedom of Information Act 1999

Commissioner of Police v Ryan 2007 NSWCA 196 CASES CITED : 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

Bassam Hamzy (Plaintiff) PARTIES : 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.