Hamzy v Commissioner of Corrective Services (No 2)

Category: Costs

Parties: Bassam Hamzy (Plaintiff) (self-represented)
Commissioner of Corrective Services (Defendant)

Representation: Counsel:
Mr J Emmett SC / Ms E Jones (Defendant)
Solicitors:
Crown Solicitor’s Office (Defendant)

File Number(s): 2023/039910

Publication restriction: N/A

JUDGMENT

1. HIS HONOUR: On 9 September 2025, the Court issued orders answering separate questions as to reserved costs. Pursuant to the reservation of costs, Mr Hamzy initially sought a hearing in relation to costs and applied for an order that the defendant pay his costs.

2. By email dated 8 September 2025, the Court suggested that the application in relation to costs might be dealt with by written submissions to which, by email dated 13 October 2025, the parties signified their consent. Orders were made for the filing of submissions and the timetable expired on 19 November 2025.

3. The order for separate questions to be decided was entered by the Principal Registrar on 12 June 2024, pursuant to the provisions of Uniform Civil Procedure Rules (“UCPR”) r 28.2. This followed orders made by Meagher JA on 7 June 2024, ultimately by consent, on the application of the defendant.

4. While the determination of separate questions in accordance with the orders of the Court is formally interlocutory in nature, the questions have been finally answered and may determine the whole of the proceedings. As such, even though the proceedings were interlocutory, the Court will apply the principles in relation to costs as if the proceedings were final in nature.

Principles

5. The Court was created in 1824 as a court of common law and equity. As such, the Court has inherent jurisdiction to award costs. However, like all other courts exercising the civil jurisdiction in this State, the Court is subject to the provisions of s 98 of the Civil Procedure Act 2005 (NSW) by which the Court is granted, additionally, a statutory broad discretion to award costs.

6. The provisions of s 98 of the Civil Procedure Act permit the Court to award costs and to determine by whom, to whom and to what extent costs should be paid. The discretion afforded to the Court by the provisions of s 98 must be exercised judicially, [1] and must take into account the overriding purpose of the Civil Procedure Act to facilitate the just, quick and cheap resolution of the real issues between the parties. [2]

7. The principles to be applied in exercising the discretion to award costs have been oft stated, are well-known and have been rehearsed many times. An award of costs is intended to be compensatory, not punitive. [3]

8. Ordinarily, courts award costs on the basis that a successful party is entitled to be compensated for the cost of enforcing or defending its rights and/or alleged liability. While the conduct of a party may impact upon the exercise of the discretion to pay costs, or the basis upon which such costs should be assessed, in order to depart from the general rule that costs follow the event, [4] such conduct should be of a kind that takes the proceedings out of the ordinary.

9. Notwithstanding that a successful party should have a reasonable expectation of being compensated for the costs associated with the litigation [5] and that, as a matter of fairness, the unsuccessful party should typically bear the liability for costs, [6] the usual rule that costs follow the event does not create an absolute rule binding the Court in the exercise of its discretion. There is no right conferred on a party or possessed by a party to an order for costs notwithstanding its success in the proceeding. [7]

10. Despite the non-existence of a right in the successful party to obtain costs, the capacity of the Court to award costs otherwise than to the successful party should be confined to the unusual or special case. Further, the usual rule that costs follow the event refers to the ultimate outcome of the proceedings. [8]

11. In Avopiling, supra, the Court of Appeal said:

“172 Section 98 of the Civil Procedure Act 2005 (NSW) confers on the Court a wide discretion with respect to costs. Under rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) the general rule is that the Court is to order that costs follow the event. The ‘event’ may be characterised in more than one way. Generally the ‘event’ refers to the result of the claim or counterclaim, as the case may be, and may be understood as referring to the practical result of a particular claim: Doppstadt Australia Pty Ltd v Lovick & Sons Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15] per Ward, Emmett and Gleeson JJA. Where there has been a mixed outcome in the proceedings, and it is appropriate to entertain the process of apportioning costs as between different issues in the proceedings, in general such an exercise will be carried out on a relatively broad brush basis, and largely as a matter of impression and evaluation by the Court: Doppstadt at [19]; James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [36]; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22.

173 The relevant principles for the determination of costs on an issue-by-issue basis were stated in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] per Beazley, Ipp and Basten JJA:

‘Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported).

In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal.

If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 at [27].’

Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed).

A severable issue can relate to ‘any disputed question of fact or law’ before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34].

Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272.”

Submissions of the defendant

12. After helpfully setting out the principles applicable to the awarding of costs, the defendant submitted that the questions that fell for consideration by the Court fell into two categories:

(a) questions 1, 2, 3, 5 and 6 concerning questions of statutory construction and the validity and/or construction of specific clauses of the Regulations; and (b) question 4 which was judicial review of a decision by the Commissioner or his delegate.

13. The submissions of the defendant correctly summarised that the questions are all related and arise out of the complaints by the plaintiff about his communications with legal professionals. Further, there was a degree of overlap in the questions asked.

14. Notwithstanding the overlap, it was the defendant who crafted the questions ultimately ordered by the Court. The defendant submits that the Court should make no order as to costs on the separate questions. It does so for five fundamental reasons:

(a) the plaintiff was granted relief in relation to only four of the six questions, two of which were no longer in contest; (b) as a consequence, the parties achieved an even measure of success on the issues that remained in contest; (c) the time spent on the preparation and hearing of the questions were roughly equal, although it is unclear as to the basis upon which the defendant is aware of the time spent by Mr Hamzy on the preparation of the issues; (d) the plaintiff served a significant volume of evidentiary material, which necessitated review by the defendant, and significant parts of which were the subject of a successful objection to that evidence on the basis of relevance; and (e) the circumstance, accepted by the defendant, that the answers to the questions have broader impact for the administration of correctional centres is not a reason to award the plaintiff his costs or a portion of them. There is no “special exception” to the general rule as to costs in respect of actions commenced by prisoners against prison authorities. [9]

Consideration

15. Dealing initially with the factual basis upon which the submission of the defendant relies, the Court accepts that at the hearing of the proceedings, the defendant accepted that the answers to questions (5) and (6) should be in accordance with that agitated by the plaintiff. Nevertheless, the basis for the proceedings and the questions posed were circumstances that were applying to the plaintiff in prison and were inconsistent with the proposition agitated by the plaintiff.

16. The Commissioner of Corrective Services accepted, during the course of the litigation, that clauses 115 and 116 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) neither permitted the opening, inspection, reading or copying of letters or parcels sent by an inmate to her or his legal practitioner nor by a legal practitioner to a prisoner. The regulations, on their face, apply broadly and do not exempt letters and parcels to and from legal practitioners and inmates.

17. There are procedures, where an appropriate officer is concerned as to contraband or prohibited material being sent to a prisoner, but those procedures do not, in the absence of discovered contraband, permit the officer to open, read or copy such documents. The manner of discovering the existence of such contraband is explained in the principal judgment. The application for a declaration was appropriate and the costs of agitating those two issues ought not diminish the compensation payable to the successful party otherwise.

18. Looking at the proceedings in broadbrush, as one is required to do, the plaintiff was successful in four of the six questions for which he applied. One of the questions on which the plaintiff was unsuccessful was the constitutional question associated with interference with political communication between an inmate and a legal practitioner, which, ultimately, may have been strictly unnecessary, given the answer to the questions associated with all correspondence between inmates and legal practitioners. The other question related to the use of computer tablets to make telephone calls, which in the scheme of the litigation, occupied very little time.

19. While self-represented persons are entitled to costs, here, the costs would probably relate only to the actual cost of photocopying or printing, if expended by the plaintiff, and the costs of filing documents in the Court. It is certainly difficult to conceive that the prisoner has lost income as a consequence of agitating the proceedings and being involved in them, either by way of preparation or hearing.

20. In all of the circumstances, I do not consider that there is a basis for departing from the ordinary rule and I do not consider it appropriate to divide the costs on the basis of separate issue determination. The plaintiff is entitled to compensation for the costs of enforcing his rights.

21. The Court makes the following orders:

22. Vacate Order (6) of the orders issued by the Court in these proceedings on 9 September 2025.

23. The defendant shall pay the plaintiff’s costs of and incidental to the proceedings thus far.

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Endnotes

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11.

Civil Procedure Act 2005 (NSW), s 56.

Oshlack, supra.

Uniform Civil Procedure Rules 2005 (NSW), r 42.1.

Latoudis v Casey (1990) 170 CLR 534 at 569; [1990] HCA 59 (McHugh J).

Oshlack, supra at [67].

Oshlack, supra at [134].

Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 at [172] (Payne JA, with whom McColl and White JJA agreed).

Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 at [102] (Basten JA, with whom Allsop P and Sackville AJA agreed).