Commissioner of Corrective Services v Hamzy

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] On 27 June 2023, Mr Bassam Hamzy, an inmate of Unit 8 of the High Risk Management Correctional Centre at Goulburn, filed a Second Amended Summons in proceedings commenced in the Common Law Division of the Supreme Court of New South Wales seeking declaratory relief concerning the validity and application of various provisions of the Crimes (Administration of Sentences) Regulation 2014 (NSW). The Respondent to the summons is the Commissioner of Corrective Services (the Commissioner). Mr Hamzy is representing himself in the proceedings. Orders were made for the determination of six questions separately from any other questions in the proceedings. Those separate questions have been listed for hearing on 10 and 11 December 2024 with various directions made for the preparation of the hearing. On 1 August 2024, Mr Hamzy applied, orally, for three further orders, two of which were opposed by the Commissioner. Those orders included an order that Mr Hamzy be provided with a laptop with word processing capability. Harrison CJ at CL (the Chief Judge) heard the application on 1, 9, 13 and 26 August 2024. On 13 August 2023, the Commissioner read and relied on an affidavit of Mr Malcolm Brown, General Manager of State-wide Operations of Corrective Services NSW (CSNSW) sworn on 12 August 2024. The subject matter of that affidavit was to the effect that the Acting Commissioner had decided to make a modified "blue" desktop computer with word processing facilities and access to printing in a work room to which Mr Hamzy had exclusive access during designated hours known as the day room. Reasons for judgment were published on 28 August 2024 (Hamzy v Commissioner of Corrective Services [2024] NSWSC 1090), which resulted in orders being made on 6 September 2024. Those orders included the following: "1. Direct the defendant to give the plaintiff an estimate of his reasonable costs of complying with order 2 by 18 September 2024. 2. Direct that, within 8 weeks of receiving payment from the plaintiff for his reasonable costs notified under order 1, the defendant is to provide the plaintiff with a laptop computer, which … may be modified by means of such software and/or hardware modifications as the defendant sees fit, but not so as to remove the following functionality from the computer: a. a working internal storage drive; b. word processing software, including the ability to save a document to the internal storage drive; and c. the ability to connect to a printer. 3. Direct the defendant to continue to make the computer provided to the plaintiff under order 2 available to the plaintiff for use in his cell until further order or, if no further order is made, the conclusion of the final hearing of these proceedings. 4. Order 3 does not apply to the extent that circumstances become known to the defendant, not presently known to him, which provide a basis for concluding on reasonable grounds that the plaintiff's ongoing possession of the computer poses a serious risk to security or good order, provided that: a. the risk of harm is sufficiently imminent that there is not time to approach this Court for variation of these orders before depriving the plaintiff of possession of the computer; and b. the defendant takes reasonable steps for the proceedings to be relisted promptly after depriving the plaintiff of possession of the computer." The Commissioner sought leave to appeal from the orders made by the Chief Judge. The first ground of appeal was that the Chief Judge erred in (a) failing to consider the evidence as to the arrangements made between 9 and 28 August 2024 to make facilities available to Mr Hamzy, especially those arrangements described in Mr Brown's affidavit, and/or (b) making a decision that went beyond the real controversy between the parties as at the time his Honour decided the application. The second ground of appeal was that the Chief Judge erred in (a) mistaking the scope of the Court's powers to make orders for the purpose of ensuring effective access to the Court and/or (b) concluding that the orders made were necessary to ensure effective access to the Court. The Court held (Bell CJ, Payne JA and Stern JA agreeing), granting leave to appeal (on the undertaking proffered by the Commissioner to the Court) and allowing the appeal: 1. Mr Brown's evidence was not referred to in terms or in substance in the primary judgment. That evidence was highly material and reflected the Commissioner's considered position as to how to facilitate Mr Hamzy's ability to participate in his forthcoming litigation. The failure to have regard to Mr Brown's evidence was an error which vitiated the Chief Judge's decision and, subject to the question of leave, provided a basis for setting aside his Honour's orders: [61]-[64]. 2. There was no real controversy between the parties as at the time the Chief Judge decided the application: Mr Hamzy had effectively secured what he had sought: [65]. 3. In circumstances where Mr Hamzy had been provided with the ability to hold and read his accumulated legal materials on an e-brief laptop, and was to be given daily access to the modified "blue" computer with word processing functionality together with the ability to print documents and store work product on a USB, Mr Hamzy's access to the Court could not be viewed as being in some way "denied". Even without that technological support, Mr Hamzy had taken numerous steps in the civil proceedings: [68]-[70]. Davies v The Queen [2018] VSCA 315, Patsalis v The State of New South Wales [2012] NSWSC 267, applied. Raymond v Honey [1983] 1 AC 1, R v Secretary of State for the Home Department, Ex parte Anderson [1984] QB 778, R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, distinguished. 1. In applications of the kind that was made by Mr Hamzy, the source of power to make the orders sought must be identified carefully, and the statutory context of the lawful regulation of a prisoner's circumstances of incarceration must be recognised and given proper deference. Any excess of executive authority is most appropriately dealt with in the Court's supervisory jurisdiction and by reference to public law remedies: [77]-[89], [97]. Patsalis v The State of New South Wales [2012] NSWSC 267, JMR v Department of Juvenile Justice [1999] NSWSC 169, Middleton v Commissioner for Corrective Services (NSW) [2004] NSWSC 136, Knight v Wise [2014] VSC 76, Clark v Commissioner for Corrective Services [2016] NSWCA 186, Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113, Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317, Dietrich v The Queen (1992) 177 CLR 292, McGuirk v University of New South Wales [2010] NSWCA 104, Barton v The Queen (1980) 147 CLR 75, Jago v District Court of New South Wales (1989) 168 CLR 23, referred to. 1. Any discretion to make directions in the context of extant proceedings should not start with the "equality of arms" concept, which is rooted in European human rights jurisprudence, but focus on what is required for a fair trial. That focus must take into account the context of the particular case, including the applicable statutory context which confers discretions and power on corrections authorities who are far better placed than courts to assess what is required for the safe and secure management of corrections facilities and the very different contexts of a prisoner who is in some way impeded in preparing and presenting a defence in criminal proceedings as opposed to civil litigation where the prisoner is the moving party: [90]-[93], [97]. Rich v Magistrates' Court of Victoria [2007] VSC 65, Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113, R v Rich (No 2) [2008] VSC 141; (2008) 184 A Crim R 161, Rich v Groningen (1997) 95 A Crim R 272, applied.

JUDGMENT

1. BELL CJ: The Respondent to this application for leave to appeal, Mr Bassam Hamzy, is an inmate of Unit 8 of the High Risk Management Correctional Centre (HRMCC) at Goulburn, referred to as the High Risk Management Unit (HRMU). He has been classified as a "Category A1" inmate pursuant to cl 12(1) of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (the CAS Regulation) and designated as an "extreme high risk restricted inmate" pursuant to cl 17 of the CAS Regulation. The power to make the CAS Regulation is conferred by s 271 of the Crimes (Administration of Sentences) Act 1999 (NSW) (CAS Act).
2. On 27 June 2023, Mr Hamzy filed a Second Amended Summons (the summons) in proceedings commenced in the Common Law Division of this Court seeking declaratory relief concerning the validity and application of various provisions of the CAS Regulation. The Respondent to the summons is the Commissioner of Corrective Services (the Commissioner). Mr Hamzy is representing himself in the proceedings.
3. On 18 March 2024, Meagher JA, sitting at first instance, ordered that the Commissioner draft questions arising from the summons for separate determination: Hamzy v Commissioner of Corrective Services NSW [2024] NSWSC 264. Orders were thereafter made on 7 June 2024 pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) for the determination of six questions separately from any other questions in the proceedings. Those separate questions have been listed for hearing on 10 and 11 December 2024 with various directions made for the preparation of the hearing.
4. On 1 August 2024, the Respondent applied, orally, for three further orders which Harrison CJ at CL (the Chief Judge) described as: 1. an order that the Respondent be permitted to have access to all of his tubs of legal materials in his cell; 2. an order that the Respondent be provided with a laptop with word processing capability; and 3. a variation to the order made pursuant to s 77 of the CAS Act to permit the Respondent to attend the hearing of the separate questions on 10 and 11 December 2024 in person. The Commissioner opposed the making of orders (1) and (2), but not order (3).
5. The reference to "all of his tubs of legal materials in his cell" was to plastic tubs of hard copy legal materials which Mr Hamzy had accumulated and which, up until approximately 27 June 2024, he had been keeping in his cell. There was a difference in the evidence as to whether there were 8 or 12 such tubs but nothing ultimately turned on this. The materials stored in the tubs were resources and other documents relevant to various legal proceedings, including the proceedings set down for hearing on 10 and 11 December 2024.
6. The Chief Judge heard the application over a number of days on 1, 9, 13 and 26 August 2024. There was some urgency because, apart from the December 2024 hearing, Mr Hamzy was also due to defend himself in the District Court in early September on certain criminal charges in proceedings that the Court was informed were estimated to run for some 4-6 weeks. These charges were withdrawn at some time between 26 August and 1 September 2024.
7. The interlocutory relief sought by Mr Hamzy was also designed to accommodate him appearing in the District Court proceedings.
8. The Chief Judge published reasons for judgment on 28 August 2024 (Hamzy v Commissioner of Corrective Services [2024] NSWSC 1090 (the primary judgment or PJ)), which resulted in orders being made on 6 September 2024. Those orders included the following: "1. Direct the defendant to give the plaintiff an estimate of his reasonable costs of complying with order 2 by 18 September 2024. 2. Direct that, within 8 weeks of receiving payment from the plaintiff for his reasonable costs notified under order 1, the defendant is to provide the plaintiff with a laptop computer, which … may be modified by means of such software and/or hardware modifications as the defendant sees fit, but not so as to remove the following functionality from the computer: a. a working internal storage drive; b. word processing software, including the ability to save a document to the internal storage drive; and c. the ability to connect to a printer. 3. Direct the defendant to continue to make the computer provided to the plaintiff under order 2 available to the plaintiff for use in his cell until further order or, if no further order is made, the conclusion of the final hearing of these proceedings. 4. Order 3 does not apply to the extent that circumstances become known to the defendant, not presently known to him, which provide a basis for concluding on reasonable grounds that the plaintiff's ongoing possession of the computer poses a serious risk to security or good order, provided that: a. the risk of harm is sufficiently imminent that there is not time to approach this Court for variation of these orders before depriving the plaintiff of possession of the computer; and b. the defendant takes reasonable steps for the proceedings to be relisted promptly after depriving the plaintiff of possession of the computer."
9. The Commissioner now seeks leave to appeal from those orders. The leave application and the appeal were heard concurrently.
10. The first ground of appeal was that the Chief Judge erred in: 1. failing to consider the evidence as to the arrangements made between 9 and 28 August 2024 to make facilities available to Mr Hamzy; and/or 2. making a decision that went beyond the real controversy between the parties as at the time his Honour decided the application.
11. In particular, the Commissioner complains that the Chief Judge did not have regard to an affidavit of Mr Malcolm Brown, General Manager of State-wide Operations of Corrective Services NSW (CSNSW), sworn on 12 August 2024 and read without objection when the matter was in Court the following day. His Honour did not refer to that affidavit in the section of his judgment headed "Evidence" nor did he refer to the subject matter of that affidavit in his reasons. That subject matter was to the effect that the Acting Commissioner had decided to make a modified "blue" computer with word processing capabilities and access to printing available to Mr Hamzy in a work room to which he had exclusive access known as the day room. It will be necessary to return to Mr Brown's evidence and its significance in due course.
12. The second ground of appeal was that the Chief Judge erred in: 1. mistaking the scope of the Court's powers to make orders for the purpose of ensuring effective access to the Court; and/or 2. concluding that the orders made were necessary to ensure effective access to the Court.
13. It was common ground that leave to appeal was required, the decision under appeal being interlocutory in nature.

The procedural history

1. Before turning to consider the judgment, the grounds of appeal and the question of leave, it is first necessary to refer chronologically to what occurred on each of the days the matter was before the Court leading to the delivery of judgment on 28 August 2024. Both sides agreed with the description of the hearing as "fluid": this is not said critically but reflects in part the matters referred to in [6] above, and the evolving evidentiary position including the filing and reading of Mr Brown's affidavit on 13 August 2024.
2. On 1 August 2024, the Respondent, upon the primary judge's invitation, gave the following oral evidence in support of his application: "I have been in the HRMU for approximately 22 years. For the last four years I have had eight legal tubs in my cell tucked in the corner, and approximately four to five weeks ago I was told that it has now become a security risk and they need to be removed from my cell. I think last week I was told that the tubs that are currently in my day room will be removed from the day room because the manager of security doesn't want them even in my day room. … I have also identified an injury to my thumb … which will delay my ability to write submissions because I have arthritis in the thumbs. That was with regard to the laptop that I also requested, so I could type up the submissions and have them in proper form, and type up the evidence so I could have it in proper form for the Court. As it currently stands, for an example, I do not have access to the tubs when we are locked in for the last two days we have been locked in our cells for 24 hours. That gives me no access. Today, for example, I have to move cells, I have to move all my tubs and all my property and everything from my cell, which is another day which I can't even prepare. So there are other issues which impact my ability to prepare. I'm in the cell from 2 o'clock in the afternoon until 9 o'clock the next morning before I can have access, and it has caused anxiety, because I do have a sentencing proceedings, [I do] have a trial coming up on 1 September, and I also have this matter in which I am self-represented, and a matter coming up in February next year, and all of this is building up and I'm just trying to have that ability and capacity to run my case as smoothly as possible your Honour."
3. The Respondent's application was then adjourned until 9 August 2024.
4. Prior to that, on 7 August 2024, the Commissioner filed affidavits of Mr Scott Bramble (Manager of Security at the HRMCC) and Ms Susan Michell (Manager Sentence Management Business and Operational Support at CSNSW).
5. Mr Bramble deposed to the fact that Mr Hamzy is ordinarily housed in a unit comprised of a single cell and one day room to which, consistent with the Custodial Operations Policy and Procedure (COPP), he has exclusive access between approximately 8.00am and 10.00am or 10.30am each day, and then again from 12.00pm until 1.30pm but would not have access to during a "lockdown", which occurs when staffing arrangements are insufficient to permit inmates to leave their cells with adequate supervision.
6. Mr Bramble also gave evidence that Mr Hamzy's legal materials were stored in "12 standard issue storage tubs … as well as one archive box and two canvas bags" and that all of those materials, save for the single tub kept in his cell, were stored in his day room. He further deposed to the fact that Mr Hamzy was able to exchange the tub in his cell for a new tub and to rearrange the materials between the tubs. Mr Bramble additionally gave the following evidence: "Prior to 27 June 2024, I understand that the Plaintiff was permitted to keep many more tubs of legal materials in his cell. This arrangement was contrary to the requirements of the COPP, which limits inmates to a single tub of legal materials in their cell at one time. To my knowledge, the circumstance that legal materials were permitted to accumulate and be kept in the Plaintiff's cell occurred over time, and was not based on any specific decision to allow additional material to be stored in the Plaintiff's cell. In retrospect, it appears to have resulted from some complacency in enforcing the requirements of the COPP."
7. Mr Bramble's evidence was that the reason for the limitations on the amount of material permitted to be kept in inmates' cells was that the accumulation of property in the cells of inmates gives rise to several "issues and risks", including but not limited to cell fires. He also gave evidence that he was not aware that the tubs of legal materials presently stored in Mr Hamzy's day room would be removed or that Mr Hamzy had been told anything to this effect.
8. Mr Bramble additionally deposed to the fact that Mr Hamzy was provided with an "e-brief" laptop, being a laptop "provided for the purpose of viewing preloaded legal materials" but which "is not capable of typing or otherwise creating new documents." In effect, this was a "read only" device. As will be seen, by 13 August 2024, it was agreed that the material in Mr Hamzy's tubs could be uploaded on to the e-brief laptop.
9. Ms Mitchell deposed to the following in relation to the computers issued to inmates: "Computers are managed by installing an 'image' onto a standard computer before they are issued. The word 'image' is used to refer to a specifically developed version of the operating system, and other programs, that is set up to permit only certain functionality on the computer. An image can be set up so that certain programs ordinarily installed on the computer are not available (such as word processing or other text writing programs). It can also be set up to disable hardware features on the computer (such as networking or a USB drive). … Computers that are not imaged (or otherwise modified) in this way are open to a number of security risks or concerns. … It is my understanding that 'green' computers, which are desktop computers, are generally installed in common areas of correctional centres, such as libraries. 'Green' computers have the most functionality of the computers issued by CSNSW. They are not issued to inmates in their cells… It is possible for inmates to type and save documents on 'green' computers. However, inmates are not able to print or send documents. Accordingly, correctional officers are required to facilitate printing or sending of any documents…"
10. Ms Mitchell's evidence was that "blue" computers are able to view documents and that the same was true of laptop e-brief computers "which are similar to 'blue' computers but are portable and can be used in inmates' cells."
11. Ms Mitchell also gave the following evidence: "Recently, the Australian Federal Police (AFP), in consultation with CSNSW, developed a specific image for laptops that permitted access to additional kinds of documents… That new type of image was developed to permit the viewing of documents contained in AFP briefs relating to a particular investigation in circumstances where those documents could not previously be opened on a laptop e-brief computer. These computers have Microsoft Word installed, and can therefore have a word processing capability. However, because the USB port on the laptops is disabled when the laptop is provided to the inmate, documents created on the computer cannot be taken off the computer once created, so they cannot be printed. The new kind of laptop developed by the AFP is not available to CSNSW to issue to the general inmate population, and is only provided to inmates approved and identified by the AFP … Other inmates can only access the existing version of the laptop e-brief computers with the limited functionality I have described… CSNSW has begun the process of itself developing a fresh 'image' so it can provided an updated version of the laptop e-brief to inmates. That development work is ongoing … I anticipate that it will be some time before CSNSW is able to roll out the new computers. In addition to the technical work required to develop a new image for use of CSNSW computers, any new functionality that is created (including word processing) would need to be approved by the Commissioner, or on his behalf, and would likely require revisions to the COPP."
12. Following the 9 August 2024 hearing, the matter was adjourned until 13 August 2024 to enable the Commissioner to obtain information about a number of matters raised by Mr Hamzy during the hearing on 9 August 2024. Those matters were that the HRMCC had been in lockdown for seven of the previous 11 days during which time Mr Hamzy had not been given access to the legal materials stored in his day room, that he had previously in October 2021 had a laptop with word processing capabilities in his cell, that access to the day room was only from 9.00am until 10.30am (rather than from 8.00am to 10.30am, contrary to Mr Bramble's evidence), and that Mr Hamzy had not been able to see a doctor for over three months.
13. In particular, the following exchange occurred between the primary judge and Mr Emmett SC, who appeared on behalf of the Commissioner: "HIS HONOUR: It may be necessary to come back to that because in the light of the material, particularly in the cases which I think your side adopts about making idiosyncratic or unique arrangements for a particular prisoner, in the light of the good order and governance of the prison if special treatment got out I'd be very interested to know what arrangements could electronically and physically be made for a special arrangement for Mr Hamzy to be provided with a laptop. EMMETT: Of course, your Honour. And at the moment I simply cannot assist the Court with what the position was, whether in fact Mr Hamzy did have a laptop to type with in October 2021. It may be that he did or it may be that the arrangement was different. I don't know and I need to find out. We're making those enquiries."
14. On 13 August 2024, as already noted, the Commissioner read the affidavit of Mr Brown: see [11] above. The Chief Judge, having read Mr Brown's affidavit, said that "it appears some considerable progress has been made".
15. Mr Brown deposed to the fact that, as a result of the issues raised by the Respondent, the Acting Commissioner had approved changes to be made to the "blue" computer image to enable the use of Microsoft Office applications, including Word, on the "blue" desktop computers and to enable printing to a standalone, non-networked printer and that these changes were expected to be ready by 31 August 2024. Mr Brown's evidence was that "blue" computers do not allow for the storage of files on the computer itself, but that inmates are able to use removal storage devices like USB drives to save files that are prepared on a "blue" computer for future use and reference. Further, Mr Brown deposed to the fact that it is possible for the contents of a removal storage device to be copied to a laptop e-brief computer.
16. In relation to Mr Hamzy's use of the "blue" computer, Mr Brown's evidence was that: "Once the 'blue' computer has been updated, as explained above, the Acting Commissioner has approved there being a 'blue' computer placed in the Plaintiff's day room. … Although this decision involves some additional accommodation for the Plaintiff, as compared to other inmates, I am informed that the Acting Commissioner considers it to be appropriate given his classification and designation (and, therefore, limited access to other computer resources managed by CSNSW) and because of his numerous ongoing legal matters. I understand that the Plaintiff has given evidence in these proceedings about limitations on his access to his day room because of lockdowns of the HRMCC. The Acting Commissioner has approved the preparation of a Local Operating Procedure that formalises the times of access by the Plaintiff to his day room. The intention of the Local Operating Procedure is to ensure that the Plaintiff has adequate access even if there are lockdowns in the HRMCC. The Local Operating Procedure will allow for the Plaintiff sometimes to have access to the day room even while the HRMCC is locked down, depending on the reason for the lockdown, the resources available and the other circumstances of the lockdown. The provision of the 'blue' computer in the Plaintiff's day room would not affect his access to his legal tubs, which are intended to be kept in his day room. It would also not affect his access to his laptop e-brief computer…"
17. Mr Brown's evidence was that the Acting Commissioner would not support the provision of an AFP computer of the kind discussed in Ms Mitchell's affidavit to Mr Hamzy.
18. At the hearing on 13 August 2024, the following exchange occurred in respect of the matters arising out of Mr Brown's affidavit: "EMMETT: First, your Honour will have seen the arrangements have been made in relation to a blue computer, being a special accommodation to reflect the number of current matters, including, in particular, the overlap of these proceedings, the pending criminal trial and the pending sentencing proceedings. For the avoidance of doubt, I need to stress that the arrangements are being made specifically to accommodate the present circumstances. I am not instructed that that will be revisited before December, but it may be revisited or the position considered after that… HIS HONOUR: You mean it will stay in place until December? EMMETT: Yes, that's right, because your Honour would appreciate the blue computer being there means it's not available to other inmates. … EMMETT: In relation to e-briefs, the position has been explained that the documents can be placed on the laptop, which the plaintiff is able to keep in his cell. The defendant submits that that addresses the concern in relation to having documents, and in those circumstances the Court would not make orders requiring more than one tub in the cell at a time because arrangements can be made for electronic records to be available in his laptop at all times."
19. When asked by the primary judge whether "the proposed alterations to [his] access to a computer met [his] concerns", the Respondent said the following: "… I am not requesting access to the tubs as a form of convenience; it is a form of necessity. I do have these current proceedings on foot with orders and timetables which must be met… I will be in trial on 1 September. I must manage my sentencing proceedings. And if I could get all of this stuff onto the computer in a very short period of time and have the facility to do that, your Honour, I'm happy with that." (Emphasis added.)
20. Thereafter, the following exchange occurred: "HIS HONOUR: I'm just trying to think aloud, Mr Hamzy. It seems to me - but you should tell me if you think this is not a good idea, and Mr Emmett will tell me as well - if there's an expectation that (1) you'll be provided with this new computer with the extra facilities Mr Brown refers to and (2) if, not too long after it's provided to you, we can assume or anticipate that all of the material in hard copy will be successfully uploaded to it or put on thumb drives or the equivalent so that you can have access to it in your cell; would it be a good idea, until that happens, if I simply adjourn these proceedings to await what happens so that you can restore it before me at any time or indeed Mr Emmett could restore it before me at sometime to give me an update when that occurs?… PLAINTIFF: Your Honour, I'm hoping we can resolve this issue between the parties. If a compromise can be made in the interim where I could have at least four tubs in my cell, then that should eliminate a lot of issues. Hopefully common sense can prevail and we can deal with this between the parties, since it is a very big step that access to the laptop and uploading the material is going to take place or we hope is going to take place. If that's a compromise that can settle this issue, then I'm content with that. HIS HONOUR: Well, when you say a 'compromise that can settle it' are you saying you'd like, as an interim measure, to have up to four tubs in your cell until such time as all of the material will have been uploaded, by which time you won't need to have them in your cell at all? PLAINTIFF: Yes, your Honour. HIS HONOUR: All right. EMMETT: Your Honour, just to be clear about one matter. The computer to be set up by 31 August, that's the write-enabled computer, as it were. HIS HONOUR: Yes. EMMETT: Mr Hamzy currently has a laptop, and it's that laptop onto which the e-brief or the electronic materials would be transferred. That process doesn't need to wait till 31 August. That process can start now. So Mr Brown is talking about two different processes. One, getting the blue computer, which will take until 31 August. The next step - that is, following the existing procedures to have electronic records put onto the laptop that Mr Hamzy is able to have in his cell - that doesn't need to wait until 31 August before it starts. … HIS HONOUR: So your proposition is that, if you like, as a counter-submission to what Mr Hamzy said, subject to the process taking place, the computer that he has or laptop that he has at the moment can effectively hold all of the hard copy documents if transferred, so that, on your submission, that would obviate the need to have any tubs in his cell because he'd have dual access to it: electronically and in his day room if necessary. And by the 31st of the month, roughly, he'll also have the blue computer, which gives him other document producing functions to satisfy his concern about preparation? … I suppose if that's in place and Mr Hamzy accepts for the moment that it's a regime that is going to take place - again, I'm thinking aloud - might it be appropriate to stand these proceedings over until, say, nominally, 1 September but granting either party or both parties liberty to restore, if necessary, for further submissions or directions?"
21. Importantly for present purposes, Mr Emmett submitted that "the arrangements as set out in Mr Brown's affidavit would give the Court comfort that [Mr Hamzy] is not being precluded from effective access to this Court."
22. The matter was then stood over until 29 August 2024, under the proviso that "on the evidence, the [modified] blue computer may not be ready by then".
23. The Commissioner submitted on appeal that a local operating procedure in relation to Mr Hamzy's access to the modified "blue" computer was in force from at least 28 August 2024. Mr Emmett indicated that, pursuant to that procedure, Mr Hamzy's access to the "blue" computer between 28 August 2024 and 15 September 2024 usually commenced between about 8.00am and 8.30am and continued until around about 1.45pm, although on at least one occasion only until 11.20am. However, Mr Emmett indicated that Mr Hamzy's access was interrupted by a lunch period, the length of which he did not have information about. Mr Emmett also indicated that there were only three days within this period that Mr Hamzy's access to the "blue" computer was restricted due to a lockdown.
24. On 21 August 2024, Mr Hamzy applied to restore the proceedings and the proceedings came before the Chief Judge on 26 August 2024. At this time, Mr Hamzy complained that he was required to relinquish his e-brief laptop for a period of four to six days to enable the e-brief laptop to be transported from Goulburn to Sydney for the additional materials that had been prepared to be uploaded onto it and then returned to Goulburn. He submitted that this would impact his ability to prepare for his District Court trial which was due to commence the following week. This was the trial in which the charges were subsequently withdrawn: see [6] above.
25. Mr Hamzy sought an interim measure that he be permitted access to four legal tubs in his cell until such time as the additional materials were uploaded onto the e-brief laptop. That measure was opposed by the Commissioner on the basis of the risks associated with allowing inmates to have more than one tub of legal materials in their cells.
26. At this time, the following exchange occurred: "PLAINTIFF: … If I can suggest another way, your Honour. Previously and according to [Corrective] Services decisions you're allowed more than one laptop. I can request a second laptop for all the Corrective Services matter. If that is possible your Honour, then I can give all my documents to a solicitor maybe on the first day of the trial, ask them to scan documents, put them on a USB and have them given to Corrective Services which will eliminate a major issue of my parting with my laptop during this period here, your Honour. Previously I have had two laptops. So I don't see an issue with it, but again that's a decision for Corrective Services, your Honour. … EMMETT: Your Honour can see behind me I'm sure instructions are being sought in relation to that. Can I address a number of matters? As your Honour has heard, the CSO has prepared a USB in the hope that may assist but as your Honour heard from Mr Hamzy and as your Honour identified, Mr Hamzy has a lawyer, Ross Hill, who has apparently been asked to prepare documents but we have no information. There's no explanation, for example, from him for why now two weeks after one assumes he was asked there's no USB that's been brought forward. The other thing your Honour would bear in mind is Mr Hamzy will obviously be seeing a great deal of Mr Hill and those from Mr Hill's firm, and your Honour will recall at least a paralegal at that firm is a person who Mr Hamzy says is assisting him in these Supreme Court proceedings. That's the person who's to be in Court as we apprehend it in December. So that's one set of matters to take into account. The other matter your Honour would bear in mind is the evidence your Honour had about the blue computer that's being set up which is able to read USBs if, for instance, Mr Hill sends Mr Hamzy the USB which could have been sent earlier, we don't know why it hasn't been sent already. But if it were sent on the evidence Mr Hamzy would be able to use that USB in the blue computer. Yes he doesn't have access to the blue computer in his cell all the time but he does have access to that USB whenever he has access to the blue computer. And what that means is during the day he does have access to two computers which is write-enabled, but also is able to bring up anything that Mr Hill sends in the USB, and none of those steps have taken place. And, of course, the Court needs to take care about the distinction between what Mr Hamzy says he would like and indeed in respect of which Mr Hamzy may perceive it as being in his interests to move slowly on obtaining material from some other source. So the Court needs to take care to ensure it is satisfied that Mr Hamzy needs more than one tub in this full context in order to have effective access to this Court. And that's where, as I say, the current timetable, the ability of the solicitor to prepare the USB, the fact that we know he'll be seeing a lot of his lawyers over the next few weeks and that there is within that firm a paralegal assisting him in these proceedings and he will have the blue computer on non-Court days. I should say, my instructions are it's not just Saturday and Sunday. It's non-Court days. Now, that may be no more than Saturday or Sunday."
27. The primary judge then raised a number of issues as to the "blue" computer which are captured in the following exchange: "HIS HONOUR: What's the rationale for non-Court days? … EMMETT: Well, your Honour would be mindful that the arrangements will be materially different because he won't necessarily have a day room that's right next to his cell. No doubt steps need to be taken, and I need to stress I don't have instructions about the detail of those steps, but no doubt steps will need to be taken to ensure that Mr Hamzy can be taken securely to wherever the location is where the blue computer is and that appropriate security or supervision arrangements are in place in relation to that blue computer. I don't know what those arrangements are, but it would not be surprising if those arrangements are much harder before 7am or after 5 or 6pm. HIS HONOUR: It may be apparent from the affidavit evidence that I've seen, but Mr Hamzy is fairly closely monitored at all times. Just in general terms, what's the problem with him having access to the blue computer 24 hours a day? EMMETT: … I can only take it this far now and this is because the evidence that your Honour received on the last occasion in relation to the special arrangements that were being made in Goulburn were special arrangements for the computer to be in the day room and the day room is able to be monitored by cameras. It is not difficult to see why security considerations become more acute if there is access to a blue computer 24 hours a day. HIS HONOUR: I may be a bit dense. What are they? He doesn't have internet access to this computer, does he? EMMETT: No. HIS HONOUR: So the access he has isn't stored in the computer hard drive or to which he gets access via a thumb drive. EMMETT: Nothing is stored in the computer. It all stays on the thumb drive which is provided to him and then taken back from him. Again, it is not difficult to see security risks with allowing inmates to take the thumb drive back to their cell overnight. HIS HONOUR: What are they? EMMETT: The risk, among others, of swapping that thumb drive for other thumb drives. Thumb drives are readily concealable. They are a harder item to monitor than something as large as a computer. HIS HONOUR: Why would the solution to that not be then to permit the material on the hard drive to be - on the thumb drive to be downloaded on to the computer? EMMETT: On the evidence the blue computers are not set up to permit material to be saved to them. And, again, your Honour has evidence that the security process by which - there is a security process in place by which material is uploaded onto a computer to ensure that it's not something that can be done in a manner that is unsupervised."
28. Mr Emmett added that the risks of providing "blue" computers with word processing capabilities included, as addressed by Ms Mitchell's affidavit, the "risk of misuse" of "the ability to write and save notes to "blue" computers".
29. Later, Mr Hamzy intervened, saying: "I did propose - I did propose to turn the blue computer into a laptop because what the blue computer simply means is a computer you can't save anything on and you simply have access to the thumb drive facility. So that's what a blue computer means, your Honour."
30. At the conclusion of the hearing on 26 August 2024, the primary judge said the following: "Now, in the event that anything happens that obviates the need for me to decide the access issue in general terms or any specific portion of it in particular that arises in the next day or few days, could each of you make sure I'm notified?"
31. On 27 August 2024, Mr Christopher Frommer from the Crown Solicitor's Office wrote to the Chief Judge's Associate in the following terms: "Hamzy B v Commissioner of Corrective Services - Supreme Court of NSW proceedings no. 2023/39910 I refer to the mention of the above matter before Harrison CJ at CL on 26 August 2024. In particular, I refer to his Honour's direction that the parties notify him if there was any variation to the arrangements that formed the basis of the parties' submissions at that mention. In accordance with that direction, I am instructed to inform his Honour of a variation that arises out of the parties' submissions yesterday. One of the requests made by the Plaintiff in Court yesterday was that he be granted access to a second laptop e-brief computer. While the Plaintiff has previously had access to more than one laptop, his request in Court yesterday was the first time he had raised that possibility to resolve the present dispute between the parties. Having now considered the Plaintiff's request, the Commissioner proposes to make available to the Plaintiff a second laptop for, at least, the duration of the trial that commences on Monday, 2 September 2024. The effect of that decision is that the Plaintiff would retain uninterrupted access to his existing laptop, with the trial materials, while the e-brief prepared on behalf of my client in these proceedings, as well as any additional e-briefs that might be prepared for the Plaintiff by Mr Hill in relation to these or other proceedings, could be loaded on the second laptop and provided separately. My client considers that this issue adequately deals with the concerns raised by the Plaintiff: 1. that he would have to be deprived of his trial materials for a number of days in order to obtain the e-brief prepared in these proceedings; and 2. that he would be unable to effectively use the time outside the hours of his upcoming trial to prepare for these proceedings. My client proposes to reconsider his decision to make available a second laptop once the Plaintiff's trial comes to an end. My client does not propose to reconsider his decision as to making a single tub of legal materials available to the Plaintiff in his cell, whether at the High Risk Management Correctional Centre currently or at the Metropolitan Remand and Reception Centre from next week. I confirm that I intend to provide a copy of this letter to the Plaintiff. I would, of course, be pleased to convey any further directions that his Honour considers appropriate to make to permit the Plaintiff to respond to the new matters raised." (Emphasis in original.)
32. To summarise the evidentiary position immediately before the delivery of reasons for judgment on 28 August 2024:

• The Commissioner had agreed to provide Mr Hamzy access to a "blue" computer in his day room that had word processing capabilities and from which documents could be printed and from which any documents created by Mr Hamzy could be saved on USBs (as opposed to being saved in the computer itself);
• Such material from his legal tubs could be uploaded on his e-brief laptop; and
• He would be supplied with a second e-brief laptop so that material relating to his then forthcoming District Court trial could be uploaded to it such that Mr Hamzy would not suffer any temporary lack of access to his existing e-brief laptop while the other material was being uploaded.

The primary judgment

1. The Chief Judge noted the orders sought by Mr Hamzy (referred to at [4] above) and that the Commissioner opposed the making of orders 1 and 2. While that was originally correct, and indeed remained literally correct, the Commissioner had, as has been explained above, led evidence and communicated with the Court as to how Mr Hamzy's concerns as reflected in the two orders sought could be accommodated. That position was as summarized in [45] above.
2. His Honour then set out between PJ [7] and [10] the evidence but, as also noted above, made no reference in that summary to Mr Brown's evidence or to the proposal to make available by 31 August 2024 the "blue" computer (with word processing facilities) to Mr Hamzy in his day room.
3. His Honour next summarised (at PJ [11]-[18]) Mr Hamzy's submissions, referring to Rich v Groningen (1997) 95 A Crim R 272 (Rich v Groningen) at 287, Patsalis v The State of New South Wales [2012] NSWSC 267 (Patsalis) at [53], Miles v R [2012] NSWCCA 88 and Clark v Commissioner for Corrective Services [2016] NSWCA 186 (Clark). At PJ [18], his Honour referred to Mr Hamzy's submission that: "whatever may be the limitations upon the Commissioner's ability to provide access to a laptop with adequate functions, the suggestion that he should be expected to hand-write everything is unrealistic in the modern digital era, and falls well short of 'what an outsider would regard as reasonable facilities for someone such as the applicant in the circumstances that he is in', to adopt Hulme J's description in Miles at [4]." (Emphasis added.)
4. The purpose of the added emphasis in the above passage is to highlight that, whether the suggestion referred to was once made, it was not the Commissioner's position as communicated to the Court at the time the matter was reserved.
5. Reference was then made (at PJ [19]-[38]) to the Commissioner's submissions which drew heavily on this Court's decision in Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143 (Liristis) to which it will be necessary to return. That case was cited for at least the following propositions:

• even in criminal proceedings, the inherent power of the Court or a power arising under s 23 of the Supreme Court Act 1970 (NSW), may not extend to "making some kind of positive or mandatory order on parties or non-parties … in order to prevent an 'abuse of process'": at [34];
• it is generally not "a proper function of the Supreme Court to weigh the demands of a prisoner for access to equipment which was not permitted in the gaol according to ordinary operating procedures against the gaoler's concern for security": at [104]; and
• the rights and privileges of a litigant who is incarcerated may be "qualified in substantial respects, particularly by the need for enforcement of security in a custodial environment": at [69].

1. At PJ [36], the Chief Judge recorded the following submission of the Commissioner: "that Mr Hamzy to date has been able to prosecute the proceedings by means of handwritten documents. This includes the preparation of his evidence in chief in relation to the separate questions. The Commissioner's solicitors have agreed to arrange and provide such handwritten documents to the Court. No order of the Court is therefore necessary to protect against an abuse of process or to ensure fair access to the Court."
2. Again, it may be noted that this submission had been rather overtaken at the time of delivery of judgment by the evidence of Mr Brown in relation to the making available of a "blue" computer to Mr Hamzy which gave him the ability to do his own typing and printing in his day room. The same observation may be made in respect of what the Chief Judge stated at PJ [42] in the section of his judgment headed "Disposition": "It is also important to consider the setting in 2024 in which the current dispute arises. One would hope that the days are, or should be, long gone in which prisoners were restricted to pen and paper, or the vicissitudes of the postal service, when communicating or corresponding with the Court." (Emphasis added.)
3. In this section of the judgment, the Chief Judge referred to the Victorian decision of Ragg v Magistrates' Court (Vic) (2008) 18 VR 300; [2008] VSC 1 (Ragg) at [46]-[48], [50], R v Rich (No 2) [2008] VSC 141; (2008) 184 A Crim R 161 (Rich (No 2)) and Brazel v Westin [2013] VSC 527 (Brazel) at [21]-[23] before holding at PJ [45] that the "legal principles are … not in dispute". The statement of legal principles which his Honour adopted from Brazel was as follows: "[21] The plaintiff, in effect, is seeking relief from this Court, by way of interlocutory injunction, to enable him to present his case to court. The principles, which are applicable to such an application, have been referred to in a number of recent authorities. They may be summarised, briefly, as follows: (1) Each individual has an established common law right to unimpeded access to the courts of the State, as part of the basic right to a fair trial. (2) A prisoner, such as the plaintiff, has the same civil rights and privileges as any other citizen, including the right of access to the courts. That right inheres in each individual in both civil and criminal litigation. (3) That right may be infringed where, in the case of a prisoner, the prison authorities take steps which effectively prevent the prisoner properly presenting his or her case to court. (4) The court will only intervene to protect that right if the action, or inaction, of the prison authority, would have the effect of preventing a person from effectively accessing the court. As Lasry J stated in R v Rich (Ruling No 2): 'In my opinion it would obviously be very convenient for the accused to have a laptop computer but that is not the test. The question is whether such a facility is integral to the fair trial of the accused or, put in other words, whether without a laptop computer his trial will be unfair such as to justify a stay.' [22] In considering an application such as the present, it is important to bear in mind that the question is not whether the court agrees, or disagrees, with the action, or lack of action, by the particular prison authority. Rather, and importantly, the question is whether the action, or inaction, of the defendants and the prison authority, would preclude the plaintiff from having effective access to the court in this case. The reasons for that approach are set out, in a slightly different context by Kyrou J in Knight v Deputy Commissioner, Corrections Victoria [[2012] VSC 506, [50]], as follows: 'There are sound constitutional and practical reasons why this Court cannot substitute its own view for the view of Corrections Victoria. Under our Constitution, it is the executive - acting through Corrections Victoria - rather than the judiciary that administers the laws relating to prisoners. As a result, Corrections Victoria is far more knowledgeable and experienced than this Court can ever be about issues concerning the management of prisoners - including education, welfare and security - that inform the framework within which decisions affecting prisoners are made.' [23] In similar terms, in Fyfe v State of South Australia [[2000] SASC 84], Curtin J [sic. Martin J] stated: 'There can be no question that it is the duty of this Court to conduct a careful review and to closely scrutinise the reasons advanced for the decision. Prisoners are in a position of particular disadvantage. Any abuse of power by prison authorities is unacceptable and can often have serious ramifications. At the same time, however, the limits of the court's jurisdiction must be carefully observed and the court must avoid becoming enmeshed in the merits of particular decisions. The management of prisons is a particularly difficult and sensitive task involving complex practical considerations and security implications with which the court is not familiar and which it is difficult for the court to understand or fully appreciate from the comfort of the court's surroundings'."

Ground 1

1. At the heart of the first ground of appeal is the complaint that the Chief Judge erred in failing to consider the evidence as to the arrangements made between 9 and 28 August 2024 to make facilities available to Mr Hamzy. Critically, this included the evidence contained in Mr Brown's affidavit.
2. In my view, this ground is made out.
3. Mr Hamzy contended that the Chief Judge could not be taken to have failed to consider the evidence in relation to the modified "blue" computer because he referred to it in the course of the hearings on both 13 August and 26 August 2024 in the passages which have been extracted at [31], [33] and [40] above.
4. It is uncontroversial that Mr Brown's evidence was not referred to either in terms or in substance in his Honour's reasons for judgment. That, for whatever reason, it was not taken into account is reinforced by his Honour's references to Mr Hamzy being limited to the use of pen and paper: see the passages extracted at [48] and [52] above. These references were quite inconsistent with his Honour having considered Mr Brown's evidence and Mr Emmett's submissions to the effect that the Acting Commissioner had approved the use by Mr Hamzy of the modified "blue" computer with word processing functionality and the ability to print from it. In other words, by the time his Honour reserved his judgment, the position was not that Mr Hamzy was, or would be, confined to the use of pen and paper.
5. Further, his Honour's more general statements that without access to a laptop with word processing functionality, Mr Hamzy would be denied access to justice are very difficult, if not impossible, to support if his Honour was proceeding on the basis that Mr Hamzy was to be provided with exclusive use of a modified desktop "blue" computer with such functionality.
6. As to Mr Frommer's letter referred to at [44] above, his Honour did extract it at PJ [37] but then went on to state that "[h]aving regard to the conclusions I have reached, it is unnecessary to reconvene the Court in order to elicit Mr Hamzy's response." This letter was not concerned with the provision of a modified "blue" computer to Mr Hamzy, and Mr Hamzy's request in prayer 1 of his application, namely that he be permitted to have access to all of his tubs of legal materials in his cell, was not the subject of any order and was effectively overtaken by the offer to provide two e-brief laptops.
7. The evidence of Mr Brown was highly material to the application and its significance was emphasised by Mr Emmett on 13 August 2024 when he submitted that "the arrangements as set out in Mr Brown's affidavit would give the Court comfort that [Mr Hamzy] is not being precluded from effective access to the Court".
8. Mr Brown's evidence reflected the Commissioner's considered position, together with what was conveyed in Mr Frommer's letter, as to how to facilitate Mr Hamzy's ability to participate in his forthcoming litigation in a way consistent with the Commissioner's discretion to make arrangements for prisoners' custody. Mr Hamzy had expressed a degree of satisfaction with the proposal set forth in Mr Brown's evidence, as the passage from the hearing on 13 August 2024 bears out. Indeed, the only difficulty which Mr Hamzy raised was the risk of his being without his e-brief laptop leading into his District Court trial whilst it was being sent from Goulburn to Sydney for the uploading of material. This was the issue resolved by Mr Frommer's letter, giving effect to a solution Mr Hamzy had in fact proposed.
9. The Chief Judge's failure to have regard in his reasons for judgment to Mr Brown's evidence was an error which vitiated his decision and, subject to the question of leave, provides a basis for setting aside his Honour's orders.
10. In truth, to adopt the language of the second limb of the first ground of appeal, there was no real controversy between the parties as at the time his Honour decided the application: Mr Hamzy had effectively secured what he had sought. First, he had permanent access in his cell to the material in his storage tubs which was or was imminently to be uploaded to his e-brief laptop which he was permitted to have with him in his cell. Secondly, he had access in his day room to a "blue" computer with word processing functionality, enabled to permit the copying of work product onto a USB and the ability to print to a printer in his day room.

Ground 2

1. The second ground of appeal was that the Chief Judge erred in: "(a) mistaking the scope of the Court's powers to make orders for the purpose of ensuring effective access to the Court; and/or (b) concluding that the orders made were necessary to ensure effective access to the Court."
2. It is convenient to deal with the second limb of this appeal ground first. I take that ground to be referring to the Chief Judge's statements that:

• "In my opinion, Mr Hamzy's access to this Court is relevantly denied for as long as he is not provided with a laptop with word processing capability": PJ [46]; and
• "without the technology that I have described, Mr Hamzy's access to this Court will be denied to him": PJ [51].

1. In circumstances where Mr Hamzy had been provided with the ability to hold and read his accumulated legal materials on an e-brief laptop, and was to be given daily access to the modified "blue" computer with word processing functionality together with the ability to print documents and store work product on a USB, it is difficult to see how Mr Hamzy's access to the Court could be viewed as being in some way "denied". Indeed, even without that technological support, in respect of the civil proceedings in respect of which the separate questions are to be heard on 10 and 11 December 2024, Mr Hamzy had:

• commenced those proceedings by summons;
• twice amended his summons;
• participated in the hearing of the separate question application;
• complied with orders to file and serve his evidence in chief;
• agreed to a statement of agreed facts (which has been filed); and
• made and argued the application the subject of this application for leave to appeal.

1. Subsequent to being provided with word processing facilities, Mr Hamzy has also prepared a typed, single spaced set of written submissions running to some 17 pages for the purposes of this application for leave to appeal in circumstances where the Chief Judge's orders in relation to the provision of a laptop with word processing and storage functionality have not been complied with. This was quite inconsistent with Mr Hamzy being denied access to justice.
2. In the course of argument before this Court, the following exchange with Mr Hamzy occurred: "BELL CJ: Order 3 was not opposed. Is it correct that order 1 has in substance been secured by the uploading onto one of the laptops material from the tubs that you wish to be uploaded? RESPONDENT: Yes, your Honour. BELL CJ: In relation to order 2 on the top of page 41, is your complaint that although you've been provided with two laptops, they don't have word processing facilities? RESPONDENT: Yes, your Honour. That was the whole issue about the word processing ability to type up submissions for the Court. BELL CJ: Yes, but that is essentially the only continuing matter of competition, is that right, as between you and the Commissioner in terms of the facilities and assistance you're being provided with? RESPONDENT: Yes, your Honour, that's the only issue. BELL CJ: But you do have access to word processing on the blue computer? RESPONDENT: Yes, your Honour." This exchange militates strongly against the Chief Judge's conclusion that Mr Hamzy was being denied access to justice.
3. In Davies v The Queen [2018] VSCA 315, the Victorian Court of Appeal rejected an application made by Mr Davies against Corrections Victoria for access to a number of resources and facilities which the applicant contended were necessary for him to be able to prosecute his appeal. At [50], the Court observed that: "the written cases, prepared and filed by the applicant in support of his application for leave to appeal against conviction, and his application for leave to appeal against sentence, are particularly detailed and thorough. They each contain references to a number of legal authorities, to specific pages of the transcript, and to particular exhibits. As part of his application for leave to appeal against conviction, the applicant has filed a detailed 35 page schedule of evidence, setting out ― with transcript references ― the evidence, that he will contend is relevant to each of the grounds of appeal, upon which he seeks to rely. It might fairly be observed that, whatever difficulties have been experienced by the applicant by reason of his position as a prisoner in protective custody, nevertheless he has managed, quite commendably, to be able to compile such detailed and referenced written submissions in support of each of the two substantive applications."
4. This was evidence drawn from the circumstances of the very case that the Applicant was not relevantly impaired or impeded in terms of his access to the Court so as to deny him a fair trial or preclude him "from being able to properly and effectively present oral submissions in support of his applications for leave to appeal against conviction and sentence": at [49]. See also the observations of Basten JA in Liristis at [79].
5. The present case is far removed from the facts of many of the cases relied upon and referred to in the primary judgment and by Mr Hamzy in his submissions. For example, in Raymond v Honey [1983] 1 AC 1 (Raymond v Honey), the issue concerned the action of a prison governor who blocked the prisoner's application to a court. R v Secretary of State for the Home Department, Ex parte Anderson [1984] QB 778 (Anderson) involved a challenge to a standing order which restricted visits by a legal adviser to a prisoner contemplating proceedings concerning his treatment in prison. R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 (Daly) concerned the impairment of a prisoner's right to communicate confidentially with a legal adviser.
6. Apart from their very different factual context, English decisions in this area cannot automatically be translated to the Australian legal landscape given the operation of the European Convention on Human Rights which influenced the reasoning in such cases, and the doctrine of proportionality as understood and applied in England: see, for example, Raymond v Honey at 10, 15; Anderson at 790; Daly at [23], [27], [30] This point was made by Beech-Jones J in Patsalis at [92].
7. I agree that the Chief Judge erred in his conclusion that the orders made were necessary to ensure effective access to the Court. The second limb of ground 2 of the appeal is made out.
8. In relation to the first limb of the second ground of appeal, concerning the scope of the Court's powers to make orders for the purpose of ensuring effective access to the Court, it is imperative to understand the source of this power as that necessarily informs its scope. In Patsalis at [51]-[53], Beech-Jones J identified at least two different jurisdictions the Court exercises when determining claims of the kind made by Mr Patsalis (in that case) and Mr Hamzy in the present case. His Honour relevantly said: "First, there is the supervisory jurisdiction of the Court that is confirmed by s 69 of the Supreme Court Act 1970. The Court has the power to grant the various public law remedies if it can be established that a relevant body conferred with power or functions under the [CAS] Act has exceeded their authority, failed to perform some duty imposed by law upon them or threatens to do so. These remedies extend beyond those provided for in s 69 and include habeas corpus (see for example Kelleher v Corrective Services Commissioner of New South Wales & Anor (1987) 8 NSWLR 423). … [O]ne limit on these powers is certain. They can go no further than declaring and enforcing the law. They are not a means of reviewing the merits of administrative action, to the extent that they can be distinguished from its legality, as they are matters for the 'repository of the relevant power ... and that repository alone' (see Attorney General (NSW) v Quinn [1990] HCA 21; (1990) 170 CLR 1 at 34 to 41 per Brennan J especially at 36.2). Second, the Court has a narrower but potentially deeper jurisdiction that flows from its power to control its own processes. In Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 there was an attempt to seek declaratory relief to the effect that the conditions at Long Bay Gaol under which the plaintiff was able to communicate with his legal advisors were 'not adequate or sufficient to enable proper consultation to be held between himself and his legal representatives'. The plaintiff was facing serious criminal charges. The Court of Appeal held that, as a matter of discretion, such a suit should not be entertained and the plaintiff's complaint should be left to the criminal courts 'to determine questions which arise before them in accordance with their own procedures' (per Moffiitt P at 322B, see also Hutley JA at 329 to 330; with whom Glass JA agreed at 331). The Court emphasised the powers of the judge or magistrate hearing the criminal proceedings 'to obtain assistance in the provision of proper facilities' (per Hutley JA at 326G) and, failing their being provided, it was open for the accused to be admitted to bail or 'as an ultimate sanction, a judge could actually discharge the accused, if the authorities had so misconducted themselves as to prevent the proper presentation of a defence' (per Hutley JA at 327A) (see for example R v Rich [2008] VSC 141; (2008) 184 A Crim R 161). Further if the prisoner's defence was impeded and they were convicted, then it was also open for the conviction to be set aside and a new trial obtained on the basis that the trial had miscarried (per Hutley JA at 326D). The remedies of bail, stay, discharge and overturning a conviction have no direct application to civil proceedings in which a prisoner is a plaintiff. There is obvious room for the extension of the reasoning in Smith to civil proceedings at least where the State is the defendant and thus can be the subject of directions designed to facilitate the conduct of the proceedings. If so directed, the State can exercise its powers in respect of the prisoner's custody to ensure that any such directions are complied with. It is unnecessary for me to consider further whether and, if so to what extent, the Court's power to control its own processes enable it to make orders affecting the circumstances of the incarceration of a prisoner who is a litigant in civil proceedings or contemplating civil proceedings against the State or its agencies." (Emphasis added.)
9. The application made in the present case was not an application for judicial review in the Court's supervisory jurisdiction, a form of action that may be pursued when a prisoner seeks to challenge various administrative decisions or actions that have been taken by prison authorities: Daly and Anderson were such cases as was Patsalis itself. See also, JMR v Department of Juvenile Justice [1999] NSWSC 169, Middleton v Commissioner for Corrective Services (NSW) [2004] NSWSC 136; (2003) 143 A Crim R 364 and Knight v Wise [2014] VSC 76 at [89] ff.
10. Nor was the application made one by which relief was sought by way of habeas corpus or by way of allegation of a breach of a duty of care or contempt of court: cf Clark at [5], Patsalis at [53].
11. In Liristis, a majority of the Court of Appeal upheld a challenge to a decision of the primary judge who had made orders directed to the Commissioner of Corrective Services requiring that Mr Liristis be given access to a printer/scanner and personal laptop while on remand in custody and that he be permitted to use his personal laptop in his cell, to facilitate the preparation and conduct of his case.
12. Beazley P identified that the matter had not been easy to resolve "because there was no clear identification before the primary judge of the jurisdiction that she was being asked to exercise": at [1]. The President agreed with the analysis of Basten JA as to the nature and extent of the Court's powers (at [9]), and with his conclusion that "[a]s a matter of law, the orders made by the primary judge are not supportable and must be set aside": at [110].
13. The President's judgment involved a close analysis of the ambit of the inherent jurisdiction of the Supreme Court and, as her Honour held, the inability of that jurisdiction to source a power "to make positive binding orders against a third party to criminal proceedings of the kind made by the primary judge", noting that "[t]his is all the more so where the order made directly affected the operations of a correctional facility": at [36]. The President noted that the "Supreme Court's inherent and/or s 23 jurisdiction is essentially preventative" and was not unlimited but could extend to the staying of proceedings to prevent injustice, or an abuse of process: Liristis [33], [35], citing Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48 and Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46.
14. Earlier in her reasons (at [18]), the President cited the decision of Sackville AJA in McGuirk v University of New South Wales [2010] NSWCA 104 at [176] where his Honour said that it was: "well-established that the inherent jurisdiction and powers of superior courts exist because they are necessary in the interests of justice: Wentworth v New South Wales Bar Association [1992] HCA 24; 176 CLR 239, at 252, per Deane, Dawson, Toohey and Gaudron JJ. As was said by Deane and Gaudron JJ in Hamilton v Oades [1989] HCA 21; 166 CLR 486, at 502: 'The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice: see Cocker v Tempest [(1841) 7 M & W 502, at 503-504; 15 ER 864, at 865].'"
15. In the context of both criminal and civil proceedings, the power to prevent an abuse of process, including by any denial of access to justice or a fair trial, has typically been exercised through the grant of a stay of proceedings pending the removal of the impediment to the obtaining of justice. This is best illustrated by Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 (Dietrich) where the denial of access to justice was ameliorated not by a positive order for legal representation but by a stay of proceedings for so long as Mr Dietrich remained without representation in his criminal proceedings. Basten JA observed in Liristis at [78]: "As Mason CJ and McHugh J noted [in Dietrich], implicit in the claim was the principle that 'absence of representation necessarily means that a criminal trial is unfair.' The asserted right [viz. that an impecunious person charged with a serious indictable offence was entitled to counsel provided at public expense] was not recognised, although it was accepted that the power to grant a stay was engaged in circumstances where a trial without representation would be unfair and, where a trial has proved to be unfair, the conviction could be quashed on appeal. Dietrich denied the right of a person accused of serious criminal offences to have legal representation supplied at public expense. There was no directly enforceable 'right' to counsel." (Footnote omitted.)
16. Basten JA (at [81]) referred to this Court's decision in Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 (Smith) in which Moffitt P had noted the availability of various sanctions capable of being imposed to prevent an unfair trial such as the ability to "postpone or interrupt the trial until that which is fair is done for the accused": at 319. Basten JA went on to quote the following passage from Moffitt P's decision (at 320): "In practice it is not necessary to resort to these sanctions. Upon a complaint being made, it has been traditional for the judge or magistrate, at or prior to a trial or other proceeding, to give directions, and at times merely to make suggestions, which will ensure that the accused person has adequate opportunities to communicate with his legal advisers and, in other ways, that the conduct of his defence is facilitated, subject to any reasonable requirements concerning security. It is a discretion exercised, not according to strict right, but in relation to the particular problems that may face an accused person, so that matters such as psychiatric problems, language difficulties and the extensive nature of the evidence or documents are matters taken into consideration in determining what facilities ought to be afforded to the particular accused and his legal advisers. It has been the practice of the authorities to obey such directions, or implement such suggestions, without question or the need to resort to sanctions." (Emphasis added.)
17. Basten JA's conclusions in Liristis included that: 1. the enforcement of any right to a trial which will not be unfair must be indirect because a person in custody "has no legal, equitable or statutory right to enforce": at [79]; 2. "The proposition that the Supreme Court has power to order a gaoler to take steps to provide a prisoner with resources to run his criminal defence goes a step further than any authority to which the Court was directed and is untenable": at [104]; and 3. "no authority suggested that it was a proper function of the Supreme Court to weigh the demands of a prisoner for access to equipment which was not permitted in the gaol according to ordinary operating procedures against the gaoler's concern for security": at [104].
18. It is not possible to build out of the Court's inherent jurisdiction and right to control its own processes to prevent an abuse of process a free standing unitary "right" to a fair trial. That is necessarily imprecise: Liristis at [68]. The dictates of justice and the necessity of securing a fair trial may be secured in the context of criminal proceedings by the remedies of bail or temporary stay of proceedings. Those remedies or sanctions have no application to civil proceedings which was the reason why, in Clark, Simpson JA expressed the view that the observations in Smith had "no relevance to litigation other than criminal litigation": at [44].
19. In civil proceedings in New South Wales, the Court has broad power to make directions in respect of any proceedings: Civil Procedure Act 2005 (NSW), ss 61 and 62. Liristis did not deny that power: its immediate concern was whether the Supreme Court could in its inherent jurisdiction make the orders sought in respect of a trial to take place in the District Court. That having been said, the observations made by Basten JA in Liristis are, in my view, apposite, as was the observation of the Chief Judge in the present case (at PJ [46]) that "it is no part of the role or function of this Court to second-guess the Commissioner's considerable and unchallenged expertise about security within the gaol."
20. The Court's concern is to guard against the denial of access to justice and to use its powers in this regard as a "safety net": Clark at [12]. In this context, I respectfully disagree with what is implicit in the Chief Judge's observation that "I am still left wondering how a fair balance can be struck if the laptop required by Mr Hamzy is not provided to him": at PJ [50] (extracted at [55] above). If the proper concern of the Court is with guarding against any denial of a party's access to justice, that involves a quite different inquiry to one which involves the effecting and consideration of how "a fair balance" between the parties "can be struck". Such an approach is inconsistent with the observations made by Basten JA in Liristis identified at [86] above.
21. I respectfully also do not agree with the Chief Judge that the concept of "equality of arms" invoked by Mr Hamzy provided a "suitable and relevant starting point": see [54] above. That concept is rooted in European human rights jurisprudence, as Bell J's decision in Ragg at [45]-[66] makes clear. It may or may not be apposite in Victoria given that State's Charter of Human Rights and Responsibilities Act 2006 (Vic): see, for example, B A v Attorney-General (Cth) [2017] VSC 259 at [24]. It does not, however, readily translate to New South Wales or align with authorities such as Clark, Patsalis and Liristis which have been cited above.
22. In very few pieces of litigation will there be equality of resources, be they financial or human resources, and it is not the role of the courts to endeavour to achieve or bring about a circumstance of "equality of arms". A citizen's effective access to the courts, whether he or she is in custody or not, is not to be denied but that is a very different proposition to one that requires some broad or approximate equalisation of resources. In this sense, the expression "equality of arms" is apt to confuse.
23. The Chief Judge's embrace of the "equality of arms" concept as the proper starting point of the analysis in my respectful opinion involved a mistake as to the scope of the Court's powers to make orders for the purpose of ensuring effective access to the Court.
24. The role of the Court is to ensure a fair trial and it may be accepted that an "irreducible minimum" of resources may be required to achieve that (Rich v Magistrates' Court of Victoria [2007] VSC 65 at [44]) but that, too, is different from an equalisation or an approximate equalisation of resources. Further, any irreducible minimum requirement must be assessed in the context of the particular case, including the applicable statutory context which confers discretions and power on corrections authorities who are far better placed than courts to assess what is required for the safe and secure management of corrections facilities. In the context of corrections facilities in New South Wales, see the CAS Act (ss 72, 75, 79, 232-233) and the CAS Regulation (cll 45, 122A, 122B, 122J and 122L). The decision of Gillard J in Rich v Groningen at 286-289 is a good example of the interplay of a prisoner's rights of access to the courts and the applicable legislative regime.
25. A key plank of Mr Hamzy's argument on appeal was to emphasise statements in various authorities to the effect that no citizen should have their right of access to the courts "impeded" or, to put it conversely, all citizens including prisoners are entitled to have unimpeded access to the courts.
26. Rich v Groningen illustrates that the fact that custody may present various impediments to a prisoner litigant does not mean that he or she is being illegitimately "impeded" in the presentation of his or her case or must be relieved of all impediment in order to have effective access to the courts and a fair trial. This point was also made by Basten JA in Liristis at [106] and by Lasry J in Rich (No 2) at [51]: "The accused being in custody necessarily means that there are significant restrictions on him. That, in turn, must necessarily affect his lawyers and no doubt makes the preparation of the trial more difficult, but does not necessarily make such a trial unfair. This is not a novel problem - there are a large number of people in custody awaiting trial and no doubt in several of those cases the trials are complex. It would of course be much easier in each case if the accused was on bail and at the disposal of his or her lawyers when it was required, but that is simply not the situation. I therefore do not accept that an accused in custody is entitled to be placed in exactly the same position as an accused at liberty in order for that person to have a fair trial. Such an approach would not be practical."
27. Rich (No 2) did not involve the making of any coercive orders in relation to Corrections Victoria in relation to the requirements of the accused. As in the present case, practical arrangements which had evolved and been refined in the course of argument were noted by his Honour and judicial expectations about them being honoured were recorded: see at [85]-[97].
28. In applications of the kind that was made by Mr Hamzy in the present case, the source of power to make the orders sought must be identified carefully, and the statutory context of the lawful regulation of a prisoner's circumstances of incarceration must be recognised and given proper deference. Any excess of executive authority is most appropriately dealt with in the Court's supervisory jurisdiction and by reference to public law remedies. Any discretion to make directions in the context of extant proceedings should not start with the "equality of arms" concept but focus on what is required for a fair trial. The focus must necessarily take into account the very different contexts of a prisoner who is in some way impeded in preparing and presenting a defence in criminal proceedings as opposed to civil litigation where the prisoner is the moving party.

Ground 3

1. In light of the conclusions I have reached in respect of Grounds 1 and 2, it is not necessary to deal with Ground 3 which was that: "The learned primary judge erred in finding, or proceeding on the basis, that there were not significant difficulties in monitoring laptops of the kind the subject of the Court's orders and that any difficulties may be overcome by the Commissioner 'vet[ting] the device'."

Leave and orders

1. The Commissioner recognised the need to obtain leave to appeal.
2. I would grant leave to appeal but recognise that, as a consequence of Mr Hamzy securing the concessions he did as the case at first instance evolved, the setting aside of the orders made would leave him without any certainty in terms of what he had achieved. For this reason, I raised with Mr Emmett the willingness of the Commissioner to prove certain undertakings as the price of granting leave to appeal. That course was not opposed, and the grant of leave to appeal will be made on the condition of the undertakings set out in Annexure A.
3. I would propose the following orders: 1. On the undertaking proffered to the Court and forming Annexure A to these reasons, grant leave to appeal. 2. Allow the appeal. 3. Set aside the orders of 6 September 2024 and, in lieu thereof, dismiss the application made by Mr Hamzy.
4. I would not make any order as to the costs of the proceedings at first instance or on appeal reflecting the fact that, as a matter of substance, both the Commissioner and Mr Hamzy have enjoyed measures of success in respect of what was originally sought.
5. PAYNE JA: I agree with Bell CJ.
6. STERN JA: I agree with Bell CJ.

Annexure A (109160, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 October 2024