Hamzy v Commissioner of Corrective Services [2025] NSWSC 1487 | Case summary

Medium Neutral Citation: Hamzy v Commissioner of Corrective Services [2025] NSWSC 1487

Hearing dates: 02 October 2025

Date of orders: 12 December 2025

Decision date: 12 December 2025

Jurisdiction: Common Law

Before: Walton J

Decision: (1) The Notice of Motion filed by the Commissioner of Corrective Services on 9 May 2025 is dismissed.
(2) The defendant shall pay Mr Hamzy’s costs of the Notice of Motion.

Catchwords: CIVIL PROCEDURE – Separate determination of questions – Whether a construction of statute argument should be heard separately – Where the construction of statute would be determinative of evidence led at trial – Consideration of countervailing efficiency considerations – Where the construction of statute cannot be separated from facts of the case – Where there are overlapping factual issues – Where the separate determination of questions would not facilitate the overriding purpose – Separate determination of questions refused
EVIDENCE – Advance rulings – Whether an order should be made for the Court to give advance rulings as to the admissibility and use of evidence in chief – Whether overriding purpose facilitated by advance rulings – Where admissibility and use of evidence will depend on the way the case unfolds at trial – Where no significant benefit to the advance rulings

Legislation Cited: Charter of Human Rights and Responsibilities Act 2006 (Vic)
Civil Procedure Act 2005 (NSW)
Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Administration of Sentences) Regulation 2014 (NSW)
European Convention on Human Rights
Evidence Act 1995 (NSW)
Human Rights Act 2004 (ACT)
International Covenant on Civil and Political Rights
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
Allen v Gulf Oil Refining Ltd [1981] AC 1001
Bailey v Director-General, Department of Natural Resources [2013] NSWSC 515
Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children (2016) 51 VR 473; [2016] VSC 796
Clark v Commissioner for Corrective Services [2016] NSWCA 186
Cruden v Sae-Ung [2021] NSWSC 1070
Davies v The Queen [2018] VSCA 315
DZY (A Pseudonym) v Trustees of Christian Brothers (2025) 422 ALR 372; [2025] HCA 16
Edenden v Bignell [2007] NSWSC 1122
Flynn v The King (1949) 79 CLR 1; [1949] ALR 850
Fonterra Brands (Australia) Pty Ltd v Bega Cheese Ltd [2025] NSWSC 395
Ford v Commissioner of Corrective Services of New South Wales [2021] NSWSC 1541
General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69.
Gondarra v Minister for Families, Housing, Community Services & Indigenous Affairs (2012) 127 ALD 288; [2012] FCA 185
Hamzy v Commissioner of Corrective Services [2025] NSWSC 1023
Hamzy v Commissioner of Corrective Services [2025] NSWSC 485
Hamzy v Commissioner of Corrective Services (2022) 107 NSWLR 544; [2022] NSWCA 16
Hamzy v Commissioner of Corrective Services (No 2) [2025] NSWSC 1403
Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33
Islam v Director-General, Justice and Community Safety Directorate [2022] ACTSC 124
Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86
Kvelde v State of New South Wales [2023] NSWSC 1560
McKane v Commissioner of Corrective Services of New South Wales (No 3) [2018] NSWSC 1060
Modica v Commissioner for Corrective Services (1994) 77 A Crim R 82
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41
Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355
Reisner v Bratt [2004] NSWCA 22
Searle v Commonwealth of Australia (No. 5) [2022] NSWSC 119
Southwell v Bennett [2010] NSWSC 1372
Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors [2007] NSWSC 697
SZTAL v Minister for Immigration and Border Protection; SZTGM v Same (2017) 262 CLR 362; [2017] HCA 34
Tepko Pty Ltd v Waterboard (2001) 206 CLR 1; [2001] HCA 19
The King v Jacobs Group (Australia) Pty Ltd (2023) 280 CLR 170; [2023] HCA 23
Zheng v Australian International Aviation College Pty Ltd [2024] NSWSC 1622
Zurich v Australian Insurance Limited v CIMIC Group Limited (2024) 115 NSWLR 297; [2024] NSWCA 229

Texts Cited: Nil

Category: Principal judgment

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

Representation: Counsel:
Self-Represented (Plaintiff)
J Emmett SC and L Dargan (Defendant)
Solicitors:
Self-Represented (Plaintiff)
Crown Solicitor's Office (Defendant)

File Number(s): 2023/39910

Publication restriction: Nil

JUDGMENT

On 31 May 2023, Bassam Hamzy (“Mr Hamzy”) filed and served a Second Amended Summons (“the Summons”) seeking declaratory relief and other orders from this Court. The defendant to those proceedings was specified as “The Commissioner of Corrective Services” (“the defendant” or “the Commissioner”).
Mr Hamzy is an inmate designated “Extreme High Risk Restricted” (“EHRR”) and housed in the High Risk Management Correctional Centre (“HRMCC”), formerly known as the High Risk Management Unit (“HRMU”) in the Goulburn Correctional Centre operated by Corrective Services New South Wales (“CSNSW”).
There were 7 prayers for relief in the Summons. Justice Rothman determined all prayers for relief save for prayer 6 in Hamzy v Commissioner of Corrective Services [2025] NSWSC 1023 (“Hamzy 2025”).
In his judgment, Rothman J mentioned that issues between Mr Hamzy and the defendant were the subject of significant litigation resulting in judgments of this Court having dealt with a variety of issues raised by Mr Hamzy concerning the conditions imposed upon him as a result of his incarceration. For example, the NSW Court of Appeal dealt with issues, not dissimilar to those adjudicated by Rothman J, in a judgment delivered on 23 February 2022: Hamzy v Commissioner of Corrective Services NSW (2022) 107 NSWLR 544; [2022] NSWCA 16 (per Bathurst CJ, Basten and Leeming JA).
The remaining prayer of relief in the Summons is prayer 6. By that prayer, Mr Hamzy sought the following relief:

“A declaration that the HRMU is in breach of 164 1(b)(iii) and (iv) and 1 (c) and it should be shut down or brought into compliance with the law.”

It was common ground that the remaining prayer sought a declaration that the defendant had contravened cll 164(1)(b)(iii) and (iv) and 164(1)(c) of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (“the CAS Regulation”) and, as was submitted by the Commissioner, prayer 6 also sought relief which appeared to be in the nature of injunctive relief or prohibition or mandamus, namely, that the HRMU be “shut down or brought into compliance with the law”.
Within the Summons, there appears under the heading “Pleadings & Particulars”, a number of particulars. Particular 4 is apposite to the present proceedings, which is in the following terms:

“the conditions in the HRMU have become so mentally, emotionally [and] physically harsh that they are now clearly in breach

of sections 164 – 1(b) iii & iv

– 1 (c)

& has lead to mental, physical [and] emotional harm [and] damage.”

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

164 Prohibited punishments

(1) An inmate must not—

(a) be put in a dark cell, or under mechanical restraint, as a punishment, or

(b) be subjected to—

(i) solitary confinement, or

(ii) corporal punishment, or

(iii) torture, or

(iv) cruel, inhumane or degrading treatment, or

(c) be subjected to any other punishment or treatment that may reasonably be expected to adversely affect the inmate’s physical or mental health.

(2) For the purposes of subclause (1)(b)(i), the following are not solitary confinement—

(a) segregating an inmate from other inmates under section 10 of the Act,

(b) confining an inmate to cell in accordance with an order under section 53 or 56 of the Act,

(c) keeping an inmate separate from other inmates under this Regulation,

(d) keeping an inmate alone in a cell, if a nursing officer considers that it is desirable in the interest of the inmate’s health to do so.

By Notice of Motion filed on 9 May 2025 (“the Motion”), the defendant sought that the Court give advance rulings as to the admissibility and/or use of Mr Hamzy’s evidence in chief in support of prayer 6, and that central questions concerning the construction of cl 164 of the CAS Regulation be determined separately to, and in advance of, the hearing of prayer 6. The orders sought in the Motion were as follows:
Pursuant to s 192A of the Evidence Act 1995 (NSW), the Court give advance rulings as to the admissibility and/or use of the evidence in chief served by Mr Hamzy.
Pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), order that the following questions be determined separately, and before, the balance of the proceedings:

(a) whether, to fall within the words “subjected to … treatment” and “subjected to … punishment or treatment” where they are used in cl 164(1)(b) or (c) of the CAS Regulation, the punishment or treatment referred to must be deliberately imposed upon an inmate by the defendant or his officers, and must involve more than the necessary consequences of incarceration in the HRMCC of an inmate who has been designated as “extreme high risk restricted” pursuant to cl 15(3) of the CAS Regulation; and (b) whether, to fall within the word “punishment” where it is used in cl 164(1)(b) or (c) of the CAS Regulation, the punishment referred to must be imposed upon an inmate for a punitive purpose,

(these questions shall herein after be referred to as the “Separate Questions”).

This judgment concerns the determination of the Motion.

PROCEDURAL BACKGROUND

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

“(3) In respect of prayer 6 of the second amended summons, order that by 10 June 2025, the plaintiff file and serve a document containing a numbered list specifying the particular acts, practices or conduct of the defendant that the plaintiff alleges contravenes cl 164(1)(b)(iii), 164(1)(b)(iv) or 164(1)(c) of the Crimes (Administration of Sentences) Regulation 2014, and identifying in respect of each numbered item in the list:

(a) whether the plaintiff asserts that it constitutes punishment or treatment of the plaintiff or of another inmate;

(b) the plaintiff asserts that a particular act, practice or conduct constitutes punishment or treatment of another inmate and not punishment or treatment of the plaintiff, the basis on which the plaintiff contends that it is relevant to the plaintiff’s case;

(c) so far as the plaintiff is able, when it is alleged that the act, practice or conduct occurred (including in respect of any alleged practice whether the plaintiff alleges that the practice is ongoing).”

As a result, Mr Hamzy filed on 10 June 2025 a document titled “DOCUMENT CONTAINING NUMBERED LIST SPECIFYING THE PARTICULAR ACTS, PRACTICES, OR CONDUCT WHICH CONTRAVENES CL 164” (“the Allegations”).
The Allegations provided particulars over 16 pages, and made reference to solitary confinement (cl 164(1)(b)(i) of the CAS Regulation); torture (cl 164 (1)(b)(iii) of the CAS Regulation); cruel, inhumane and degrading treatment (cl 164(1)(b)(iv) of the CAS Regulation); and any other punishment or treatment that may reasonably be expected to adversely affect an inmates physical or mental health (cl 164(1)(c) of the CAS Regulation). There were sub-particulars for each of those central issues.
It may be observed that the particulars given by Mr Hamzy extend beyond the scope of the declaratory relief sought, which is confined to cll 164(1)(b)(iii) and (iv) and 164(1)(c) of the CAS Regulation. However, no issue was raised, in that respect, in these proceedings.
What is evident is that the sub-particulars of the Allegations are extensive. The sub-particulars as to cl 164(1)(b)(iv) contains 61 particulars, and cl 164(1)(c) contains 108 sub-particulars.
I do not propose to canvas all of the sub-particulars of the Allegations in this judgment. It is sufficient to give the flavour of the sub-particulars referred to in respect of prayer 6 of the Summons by reference to the following sub-particulars that were given in relation to cl 164(1)(c):
“Placement in HRMU for political or punitive purposes: (ii). This practice still continues. I was originally sent here for a fight with Cristopher Bins and have been kept there for political, and punitive purposes. Other inmates were sent here for political reasons, others for assaulting officers, assaulting inmates, or other “punishable” incidents in system. It is relevant to my case because watching inmates being oppressed for political purposes or personal agendas affects me psychologically and emotionally. The inconsistency, purpose and hypocrisy of the placement impacts me psychologically and emotionally.”
“Revoking or refusing communications with family: (i). This continues till today.”
“Excessive use of force on inmates: (ii). This still occurs: This is relevant to my case because this conduct has caused me mental anguish, fear, rage, distress, trauma, pain and suffering.”
“No window of natural light which meets the international standards: (ii). This still occurs: This is relevant to my case because this conduct has caused me mental anguish, distress, trauma, pain and suffering. Hearing inmates complain, stress and have panic attacks has the same effect.”

RELEVANT PRINCIPLES: DECLARATORY RELIEF

Before turning to the particular elements of the Motion, it is useful to discuss, as the defendant did, the relevant principles governing the determination of an application for declaratory relief, as sought in prayer 6 of the Summons. In this respect, it is noted that the Summons does not purport to be an application for judicial review of an administrative action by the Commissioner pursuant to s 69 of the Supreme Court Act 1970 (NSW), or an action in tort for damages based upon historical mistreatment.
The following submissions by the defendant may be accepted as being relevant to the grant of declaratory relief:
The Court’s ability to grant declaratory relief is not unlimited. It is “confined by the considerations which mark out the boundaries of judicial power” and must be directed to the determination of legal controversies as opposed to answering questions that are “abstract, hypothetical or moot”: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 at 581-582 (per Mason CJ, Dawson, Toohey and Gaudron JJ) (“Ainsworth”); Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41 at [102] (per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
In that regard, the Court of Appeal has recognised that there is an overlap between the requirement that there be a “matter” for the purposes of federal jurisdiction and “the need for there to be a controversy for declaratory relief to issue”: Zurich v Australian Insurance Limited v CIMIC Group Limited (2024) 115 NSWLR 297; [2024] NSWCA 229 at [516] (per White and Stern JJA, Griffiths AJA); Fonterra Brands (Australia) Pty Ltd v Bega Cheese Ltd [2025] NSWSC 395 at [81] (per Peden J).
As such, the power to grant a declaration will not be exercised where it “will produce no foreseeable consequences for the parties”: Ainsworth at 581-582 (per Mason CJ, Dawson, Toohey and Gaudron JJ); Edenden v Bignell [2007] NSWSC 1122 at [24]-[25] (per Barrett J).
Thus, Mr Hamzy does not have standing to seek a declaration as to a breach of cl 164 of the CAS Regulation in connection with any inmate other than himself, as it would produce no foreseeable consequences for him.
Nonetheless, Mr Hamzy’s evidence as to the treatment of other inmates may be relevant, because it illustrates that Mr Hamzy witnessed or experienced events which affected him for the purpose of cl 164(1)(c) of the CAS Regulation.
It will rarely be appropriate to make a “bare declaration” which is not declaratory of any present right and amounts only to an acknowledgement of a past infringement of a right.
There are contextual considerations that might limit the scope of the Court’s inquiry in a matter. Courts should exercise care in determining what is necessary or appropriate in the interests of custodial management: [2022] NSWCA 16; 107 NSWLR 544 at [182] (per Leeming JA); [2016] NSWCA 186 (“”) at [6] (per Basten JA), citing (1949) 79 CLR 1; [1949] ALR 850 at 7 (per Dixon J); at [84]-[85] (per Emmett AJA); [2018] VSCA 315 at [49] (per Kaye, McLeish and Forrest JJA); [2018] NSWSC 1060 at [42]-[45] (per Davies J), citing (1994) 77 A Crim R 82 at 87; [1999] NSWSC 86 at [7]-[11] (per McInerney J).

SEPERATE QUESTIONS

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

Rule 28.2 of the UCPR

Rule 28.2 of the UCPR is in the following terms:

28.2 Order for decision

The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.

Relevant principles

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

“[15] I take the principles that apply in determining whether to make an order for the separate determination of a question under the rule to be:

(a) The rule speaks of “questions” and not “issues” and does not differentiate between questions of fact, or law, or partly of fact and partly of law.

(b) The judicial determination of a “question” must involve a conclusive, or final, decision based on concrete and established, or agreed, facts, for the purpose of quelling a controversy between the parties: Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334, at [45] and [51].

(c) The rule permits the Court to hear and determine the separate question at any point before, at, or after, any trial or further trial in the proceedings, rather than only as a preliminary question.

(d) Whether such an order should be made is a matter for the court’s discretion, which discretion must be exercised judicially, but cannot otherwise be fettered: Dunstan v Simmie & Co Pty Ltd [1978] VR 669, at 670; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7].

(e) As a general rule, the discretionary power to order separate determination of a question should be approached with caution: Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at [436], per Callinan J; Tepko Pty Limited v The Water Board [2001] HCA 19; (2001) 206 CLR 1, at [168]–[170] per Kirby and Callinan JJ: Commonwealth Bank v Clune [2008] NSWSC 1125 at [6], per Johnson J; Bailey and Bailey v Director-General Department of Energy Climate Change and Water and Ors [2010] NSWSC 979 at [4] per Studdert AJ.

(f) In exercising its discretion, the overriding purpose of the Civil Procedure Act 2005, namely the just, quick and cheap resolution of the real issues in the proceedings (s 56) must be given effect.

(g) Generally, all questions of fact and law should be determined at the one time: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-42; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14. If the Court is to depart from that position, the party seeking the separate determination of a question must satisfy the Court that it would be ‘just and convenient’ for that order to be made: Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [8]-[9], see also Energy Australia v Australian Energy Limited [2001] FCA 1049.

(h) While it may appear attractive, superficially, to order the trial of a separate question, experience often shows that it will not be so, for example, because of the complications that can arise in relation to appeals, or to overlapping factual issues, or to questions of credit, if the same witnesses have to give evidence in relation to a question that is separated and those questions that are not: Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7(6)] per Einstein J.; Owners Corporation Sp 70672 v Trustees of Roman Catholic Church [2010] NSWSC 946 at [16] per Ball J.

(i) The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings, but often has the reverse effect. It sometimes happens that it turns out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which it is intended to avoid: Idoport Pty Ltd v National Australia Bank Ltd; Tepko Pty Limited v The Water Board at [168].

(j) Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings: Tallglen v Pay TV Pty Ltd at 142, per Giles CJ in Comm D; Parramatta Stadium Trust v Civil and Civic Pty Ltd; Century Medical v THLD (NSWSC, 27 August 1996, unreported).

(k) Where findings as to the credit of a witness is, or of witnesses are, or may be, involved in the consideration of the evidence relevant to the question, it is inappropriate to order a separate trial: ABB v Freight Rail [1999] NSWSC 1037.

(l) Often, a separate question is heard on the basis of:

(i) agreed statements of fact;

(ii) a narrow point to be determined; and

(iii) a hearing that is able to be conducted within a short time (or a short time relative to the total length if the hearing of the separate question were not to be dealt with).

(m) Factors that tend to support the making of an order, include that the separate determination of the question may:

(i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the proceedings: Tallglen v Pay TV Holdings;

(ii) contribute to the settlement of the litigation (CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 602 per Kirby P at 607).

(n) It may be appropriate to determine a separate question, even if it will not resolve all the issues, provided that there is a strong prospect that the parties will agree upon the result when the core of the dispute has been decided, or if the decision will obviate unnecessary and expensive hearings of other questions: City of Swan v Lehman Brothers Australia Ltd [2009] FCA 784; (2009) 73 ACSR 86 at [27] per Rares J. The determination of the one question should enable a sensible reassessment of litigation risks, which is generally likely to encourage some form of settlement discussions.

(o) Relevantly, one factor that may tell against the making of an order would be where there is likely to be a significant overlap between the evidence adduced on the hearing of the separate question and at trial — possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding: Reading Australia Pty Ltd v Australian Mutual Provident Society at [8]. There is always a risk of inconsistent findings arising from determination of separate questions.

(p) Whilst the decision is ultimately one for the court to determine, it will have regard to the attitude of the parties: TVW Enterprises Limited v Duffy (Federal Court of Australia, 28 March 1985, unreported) Toohey J.

(q) It is a relevant consideration to weigh the time likely to be taken in the hearing of a separate question and the availability of hearing dates for that purpose, against the time and expense of a substantive hearing and the length of time likely to elapse before such a hearing will take place: TVW Enterprises Limited v Duffy at pp 4-5.

(r) Each case will have its own dynamics that dictate the relative importance of various factors to be considered in exercising the discretion conferred.

(s) It is necessary that there be precision, both in formulating the question, and in specifying the facts upon which it is to be decided: Jacobson v Ross [1995] 1 VR 337 at 341”

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

"... My Lords, I and other of your Lordships have often protested against the procedure of bringing, except in clear and simple cases, points of law for preliminary decision. The procedure indeed exists and is sometimes useful. In other cases, and this is frequently so where they reach this House, they do not serve the cause of justice. The present is such an example. The question as originally framed was clearly inept. It was recast by Kerr J. into an improved form. But both judges in the Court of Appeal found it either unintelligible or unanswerable: so I believe do some at least of your Lordships. The fact is that the result of the case must depend upon the impact of detailed and complex findings of fact upon principles of law which are themselves flexible. There are too many variables to admit of a clear-cut solution in advance."

At 1022, Lord Roskill stated:

" ...The preliminary point procedure can in certain classes of case be invoked to achieve the desirable aim both of economy and simplicity. But cases in which such invocation is desirable are few. Sometimes a single issue of law can be isolated from the other issues in a particular case whether of fact or of law, and its decision may be finally determinative of the case as a whole. Sometimes facts can be agreed and the sole issue is one of law. But the present is not a case in which this procedure ought ever to have been adopted for the reasons stated by my noble and learned friend ...

... But I hope that your Lordships' agreement so to treat it will not encourage others to invoke the preliminary point procedure in unsuitable cases, or lead those whose task it is to decide whether or not the trial of preliminary points should be ordered, to be other than extremely cautious before acceding to pleas for the making of such orders as a result of attractively advanced submissions founded upon pleas of supposed economy."

Submissions for the Commissioner

General

In his written and oral submissions on this aspect of the Motion, Mr J Emmett SC (as he then was) with whom Ms L Dargan appeared for the defendant, fairly made some concessions relevant to the determination of this issue, particularly having regard to Mr Hamzy’s self-represented status, as follows:
In other States and Territories, where Charters of Rights have been enacted, it has been said that a lack of intention is relevant to, but not determinative of, whether there has been a breach of human rights: Islam v Director-General, Justice and Community Safety Directorate [2021] ACTSC 33 at [92]-[93] (“Islam”) (per McWilliam AsJ); Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children (2016) 51 VR 473; [2016] VSC 796 at [163] (per Garde J). The High Court has also observed that there is no requirement that acts be intentionally inflicted in order to constitute a contravention of Article 7 of the International Covenant on Civil and Political Rights (“ICCPR”). Those arguments potentially weigh against the Commissioner's position as to the construction of cl 164 of the CAS Regulation.
While the Commissioner does not accept that the Court would need to receive and assess all of the evidence to address the Separate Questions, the Commissioner acknowledged that the extent of overlapping issues of fact is an appropriate consideration in the exercise of the Court’s discretion under r 28.2 of the UCPR. The Commissioner accepted that questions of construction cannot be resolved in a vacuum, divorced from the underlying facts.
Furthermore, Mr Emmett acknowledged the following, in common with Mr Hamzy:
The proceedings should be managed with a view to determining the issues as expeditiously as possible.
The Court should exercise real caution in ordering the hearing of the Separate Questions, including considering what is ‘just and convenient’.
There was no prospect of the Separate Questions being determined on the basis of an agreed statement of facts. The Commissioner submitted, however, that the Court may determine the Separate Questions having taken Mr Hamzy’s allegations at their “highest”.

Particular submissions for the Commissioner

Nonetheless, the Commissioner pressed the second prayer for relief in the Motion upon the bases of the following submissions:
There are countervailing efficiency considerations in this case.
Two key concerns include the breadth of the proceedings, and needing to place some sort of bounds on what the Court will be asked to inquire into, in circumstances where the Commissioner submitted that the fact of incarceration, and everything that follows from that fact, including incarceration in a high security context, cannot be enough to engage cl 164 of the CAS Regulation.
If the Separate Questions were determined in advance of the hearing, and the construction contended for by the Commissioner was accepted, much of the evidence upon which Mr Hamzy sought to rely would be irrelevant. That is because many of the allegations made by Mr Hamzy appear to concern: (a) acts, practices or conduct undertaken in the course of custodial management and pertaining to systemic issues of custodial management, (b) incidents involving other inmates, or (c) historical decisions related to security. They do not appear to concern punishments or treatment imposed for a punitive purpose.
The discretion to order separate questions pursuant to r 28.2 of the UCPR is by reference to the overarching purpose in s 56 of the Civil Procedure Act 2005 (NSW).The saving of time and cost by narrowing the issues for trial is a factor that supports the exercise of the Court’s discretion to order separate questions: Southwell at [15] (per Hallen AsJ); Cruden v Sae-Ung [2021] NSWSC 1070 at [41] (per Hallen J). It was submitted that the hearing of the Separate Questions could be dealt with in a day, even if there were some legal complexities.
Given the nature of the allegations made by Mr Hamzy, and the particular case management issues that confront a court in proceedings involving a self-represented litigant, if the questions concerning the construction of cll 164(1)(b) and (c) of the CAS Regulation are not determined separately to, and in advance of, the substantive hearing, significantly more time would be required in order for the Commissioner to investigate and (if appropriate) respond to the numerous matters contained in Mr Hamzy’s evidence. That is itself a matter that could extend the timetable for the final hearing.
The Commissioner accepted that the determination did not, and should not, require a deliberation of the merits, although Mr Emmett accepted that a “relationship” with some aspects of the merits was “unavoidable”.
As a result of an order by the Court on 2 October 2025, the Commissioner prepared a note (“the Defendant’s Note”) illustrating the aspects of Mr Hamzy’s claim that would potentially be impacted by the determination of the Separate Question. In part, this document assisted in examining the utility of determining the Separate Questions.

“First, the Commissioner has categorised the evidence by reference to the Particulars and has not separately identified the paragraphs of Mr Hamzy’s affidavits or parts of the expert reports or proposed documentary tender to which the submissions would apply (nor identified if further allegations not particularised would be impacted). The Commissioner has done so in order to illustrate the scope of the allegations that would be impacted and in circumstances where only parts of Mr Hamzy’s documentary tender and only two of his affidavits are formally before the Court.

…

Third, the Commissioner acknowledges that, insofar as the Commissioner contends in prayer 2(b) that to fall within the word “punishment”, the punishment referred to must be imposed on an inmate for a punitive purpose, Mr Hamzy may dispute the purpose for which measures have been imposed. Notwithstanding that fact, the determination of that question would focus the evidence required to respond to such allegations.

Fourth, the Commissioner makes these submissions in circumstances where the Commissioner has only formed preliminary views on some of the allegations, has not filed evidence in response to them and has not yet commenced investigations to answer Mr Hamzy’s documentary evidence. The Commissioner does not, by this note, admit to any of the allegations made by Mr Hamzy. Nor does the fact that particulars are not identified as falling within the categories identified above constitute an admission that the allegations to which they refer in fact occurred or, if they occurred, were imposed for a punitive purpose. In some instances the allegations are not sufficiently particularised or the Commissioner is not presently in a position to respond to them given they have not yet been investigated.”

The Commissioner also gave an overview of the Commissioner’s contentions as to the merits of the Separate Questions per se, which was, in substantial measure, in reply to Mr Hamzy’s submissions. Those submissions were as follows:
The construction of “punishment” and “treatment” in cll 164 (1)(b) and (c) of the CAS Regulation should be understood as “punishment” or “treatment” deliberately imposed and for a punitive purpose.
In support of this construction, the Commissioner relied on the following propositions:

“… in approaching the question of the construction of cl 164, the starting point is that the fact of incarceration carries with it an inevitable curtailment of the rights and freedoms that a person who is at liberty may enjoy. That may be particularly acute in the case of an inmate who, like Mr Hamzy, is designated an Extreme High Risk Restricted (EHRR) inmate and placed in the HRMCC. That designation is reserved for inmates who, in the Commissioner’s opinion, constitute an extreme danger to other people or an extreme threat to good order and security, where the Commissioner considers there is a risk that the inmate may engage in, or incite other persons to engage in, activities that constitute a serious threat to the peace, order or good government of the State or any other place: Regulation, cl 15(3). That the designation itself may lead to additional restrictions being placed upon an inmate is expressly contemplated in the Crimes (Administration of Sentences) Act 1999 (NSW) (CAS Act), ss 271 and 79(1)(viii), and EHRR inmates are subject to further controls in the Regulation. The Commissioner is empowered under s 232 of the CAS Act and cl 16 of the Regulation to make determinations regarding the placement of an EHRR inmate in correctional centres, their movements, additional security measures, to implement “case plans” in respect of EHRR inmates and regarding any other matter relevant to their management.”

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

(a) The ordinary meaning of “punish” includes “to inflict a penalty for (an offence, fault etc)”**: SZTAL v Minister for Immigration and Border Protection; SZTGM v Same (2017) 262 CLR 362; [2017] HCA 34at [4]-[5], [52]-[53] (per Kiefel CJ, Nettle and Gordon JJ); [78] (per Edelman J). That supports the Commissioner’s construction of “punishment” as something that is deliberately imposed. (b) The terms “punishment” and “treatment” have to be considered contextually. Clause 164 is contained within Division 5 of the CAS Regulation which is titled “Punishments”. The heading to cl 164 is “prohibited punishments”. Clause 164(1)(a) expressly refers to the prohibition on certain acts “as a punishment”. Clause 164(1)(b) prohibits a person from being “subjected to”, inter alia, torture or cruel, inhumane or degrading treatment. All of those matters tend in favour of a construction of “punishment” and “treatment” as limited to acts or conditions deliberately imposed on an inmate, and for a punitive purpose. That is also consistent with Campbell J’s consideration of cl 164 of the CAS Regulation in Ford v Commissioner of Corrective Services of New South Wales [2021] NSWSC 1541 at [52] and [54] (“Ford”), although the Commissioner observed that [53] of his Honour’s reasons may support a broader interpretation. (c) The scope of the concepts of “punishment” and “treatment” in cl 164 of the CAS Regulation fall to be considered in light of the regrettable fact that there are likely to be many inmates for whom incarceration, or the unavoidable features of incarceration, may reasonably be expected to adversely affect the inmate’s physical or mental health. Clause 164 of the CAS Regulation cannot have been intended to capture the adverse experiences of inmates or conditions of custody more generally, nor to the behaviour of inmates towards each other. If that were sufficient to constitute a contravention of cl 164(1)(c) of the CAS Regulation, it would have far-reaching and likely unintended consequences for the Commissioner’s management and control of correctional centres, pursuant to s 232 of the Crimes (Administration of Sentences) Act 1999 (NSW) (“CAS Act”)**.

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

“… because detention (i.e. deprivation of liberty) is the starting point, detention per se will not constitute an infringement. Nor, in my view, will circumstances or particular acts that go hand-in-hand with being detained, such as being subject to direction and discipline by the detaining authority. Such direction or discipline would need to be excessively strict, or imposed without proper regard for the humanity or dignity of the detainee, in order to infringe s 19(1).”

Mr Hamzy’s reliance on s 2A(1) of the CAS Act is misplaced as it is advanced as determinative of the question of construction. While it is to be taken into account, statutory construction will not normally turn on ‘general purpose’ provisions where there are multiple purposes in tension. The construction should turn on the text of the provisions, in context and in accordance with settled principles. In any event, s 2A(3) of the CAS Act is not dispositive.
The title of the Division in which cl 164 of the CAS Regulation is located and the heading to the clause itself both refer to punishment as distinct from conduct more broadly. The use of the phrase “subjected to” in cl 164 itself also indicates a positive and intentional act. The clause ought not to be construed such that it extends to an inmate being “exposed to” conditions of custody generally, including through exposure to the conduct of other inmates.

Submissions of Mr Hamzy

A significant portion of Mr Hamzy’s submissions were directed to the construction of the provisions of cl 164 of the CAS Regulation. I do not propose to traverse the entirety of those submissions, but I will, as was undertaken in the case of the Commissioner’s submissions, provide a brief summary of some of the main points of argument.
In summary, Mr Hamzy’s submissions as to the Motion, were as follows:
The Motion seeking separate questions and advance rulings is opposed.
The proceedings should not be delayed because:

“a) Two highly qualified experts have opined that my current conditions and treatment amount to torture, cruel, inhumane and degrading treatment.

b) Two highly qualified experts have opined that my conditions, punishment and treatment has and does adversely impact my mental health.

c) Two highly qualified experts have opined that my conditions amount to solitary confinement.

d) The restricted construction the defendants are seeking to advance is bound to fail and the motion if granted would only delay the proceedings further.

e) The motion would require contextualisation with the evidence in any event.”

The defendants have the “power, money, manpower, freedom, time, technology, tools and resources of the State behind them”. It should not be accepted that it would be unfair or burdensome to require them to answer the Allegations. Any further specification or clarification the Commissioner may require can be answered by an exchange between the parties.
The Commissioner cannot complain about the difficulties of meeting the evidence as “[t]he exceptional situation of this matter is that the defendant has in his possession all the information relating to the evidence [filed by Mr Hamzy]. I do not expect the Commissioner to deny them or deceive the court”.
The scope of the words “be subjected to any other punishment or treatment” in cl 164(1)(c) of the CAS Regulation should be assessed with “the benefit of contextualising all the facts and evidence alongside the law”.
The granting of the Motion would cause significant delay and increase costs.
There is nothing exceptional about this matter which would necessitate an advance ruling.
Section 79(1) of the CAS Act provides that regulations may be made for “the punishment or treatment of inmates, including punishments and treatments that are prohibited” (see s 79(1)(q1) of the C**AS Act).
The Governor may not make regulations inconsistent with the CAS Act.
To prescribe a regulation that only prohibits torture or other cruel, inhumane, degrading treatment or punishment when it is deliberately imposed, or when it is imposed as a punishment, would render it inconsistent with the regulation making power under the CAS Act.
It cannot be doubted that the decision to place an inmate in the HRMCC must involve a deliberate act on the part of the Commissioner. Nor can it be doubted that inmates who are sent to the HRMCC are subjected to “policies, practices, procedures, privations, deprivations, restrictions, conditions, treatment and punishments” that are deliberately imposed on inmates in the HRMCC.
If the Commissioner is prohibited from imposing torture or cruel, inhumane, or degrading treatment or punishment then the Commissioner cannot impose those conditions under the protection or guise of “management arrangements”.
The statute cannot only be directed to acts which are deliberate, as if the Commissioner carried out torture, cruel, inhumane or degrading treatment deliberately, that would amount to a criminal offence, tort, abuse of power, or misconduct. If an inmate did suffer, the Commissioner would have failed in his duty of care.
There is nothing in cll 164 (1)(b)(i) to (iv) of the CAS Regulation that requires the prohibited conduct to be deliberately imposed. There is simply “no legal authority to engage in such conduct”. If it were otherwise, the Commissioner could easily circumvent the prohibition by simply claiming that it was not his intention to inflict “cruel, inhumane, degrading treatment or punishment” (referred to by Mr Hamzy as “CIDT”).

“…According to the Commissioners Construction cl164 the punishment under the BMP would not be engaged because the stated intent was not to punish the inmate. Substituting labels and titles does not change the nature or character of a thing. I respectfully submit the Court should not engage in semantics and label torture discipline, or CIDT and conditions "management." [1]

It was also submitted:

“The Commissioner is seeking to establish that conditions amounting to cruel, inhumane, degrading treatment/punishment or torture must involve more than conditions of solitary confinement, sensory deprivation, isolation, cruel and inhumane treatment…”

In a further submission, Mr Hamzy submitted that:

“Prisons have been shut down due to inhumane condition.

…

That Commissioners construction would exclude what officers and inmates call "therapy", extra curial punishment, extra judicial punishment, and punishments which are given the colour of law but for all intent and purposes are designed to "punish", “crush", “isolate" or "break" an inmate.”

The Commissioner’s approach is inconsistent with the objects in s 2A of the CAS Act.
In [37] of his written submissions, Mr Hamzy submitted:

“I submit the language, intent and purpose of the regulation is clear and unambiguous. The drafter and the Governor are subject to the normal and natural limitations of the English language. There is no ambiguity, uncertainty, vagueness or generality in the language, purpose or intent of the Regulations. There is no lexical, syntactic or contextual ambiguity.”

Nowhere in the permissible punishments set out in ss 53, 56 and 56A of the CAS Act*,* or the “withdrawable privileges” as identified in cl 163 of the CAS Regulation, is there permission to engage in torture or cruel, inhumane, degrading treatment or punishment as a penalty or punishment.
It would be “repugnant” or “absurd” to allow torture so long as it was not deliberately imposed as a punishment, or alternatively, if it was only prohibited when it was deliberately imposed as a punishment.
In making an assessment whether an act engaged in is in breach of s 164(1) of the CAS Regulation, it is necessary to understand what treatment or punishments were afforded to inmates, and the severity of those punishments. This cannot be done without a full appreciation of the evidence, including “historical mistreatment and punishment and its connection to today’s treatment and punishment”.
The Court is required to assess all of the circumstances of the case, including duration of the treatment, its mental or physical effects, and the sex, age and state of health of the alleged victim.
International authority suggests that the prohibition on torture, or other cruel, inhumane or degrading treatment or punishment protects against acts that cause both physical and mental suffering.
The legal controversy in this matter is “whether [Mr Hamzy’s] treatment and punishment in the HRMCC is in breach of the prohibited treatments and punishments in cl 164 [of the CAS Regulation]. Any matter or thing relevant to that determination is admissible.” Furthermore, “there is nothing ‘abstract, hypothetical or moot’ about that controversy”.
The position of other inmates is relevant. Experts have opined that the conditions experienced by Mr Hamzy have had an adverse impact on his mental health, and those impacts cannot be separated from what he has seen other inmates go through. The treatment of others is directly connected to his conditions, treatment, punishment and mental health.
The duration, severity and cumulative effect of the treatment or punishment is relevant to the assessment of whether cl 164(1) of the CAS Regulation has been breached.
Whether or not courts are well qualified to determine what is appropriate in the interests of custodial management is beside the point, as courts are well qualified to apply the law to the facts. The Commissioner does not have an unfettered power to manage the correctional system.

Consideration

It was appropriate for Mr Emmett to concede that the Court should exercise real caution in the consideration of the application for a hearing of separate questions under r 28.2 of the UCPR. As was observed by Kirby and Callinan JJ in Tepko Pty Ltd v Waterboard (2001) 206 CLR 1; [2001] HCA 19 at [55], the “attractions of trials of issues rather than cases in their totality, are often more chimerical than real”. Their Honours referred to common experience demonstrating that savings of time and expense involved in such approaches are often illusory.
It is for this reason that judges of this Court have expressed significant caution in the consideration of applications under r 28.2 of the UCPR. Hence, in Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors [2007] NSWSC 697, Brereton J opined that the consideration of separate questions rather than the “ordinary course of deciding a case in its totality” was an exceptional course.
Hallen AsJ in Southwell stated that, as a general rule, the discretionary power to order a separate determination of a question should be approached with caution (at [15(e)]).
The Separate Questions in this matter essentially concern questions of statutory construction of the provisions of cl 164 of the CAS Regulation. The Commissioner accepted that the Separate Questions should be approached on the ordinary principles of statutory construction.
A recent exposition of the principles of statutory construction is found in The King v Jacobs Group (Australia) Pty Ltd (2023) 280 CLR 170; [2023] HCA 23 at [23] (per Kiefel CJ, Gageler, Gordon, Steward, Gleeson, Jagot JJ applying Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at 381 [69]) as follows:

“[23] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole' ... 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.”

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

“[23] The principles of statutory construction are well established. The language which has actually been used in the text, in light of its context and purpose, is the surest guide to legislative intention. One reason that the context and purpose of a provision are important to its proper construction is that an object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. Or, as was explained in Project Blue Sky Inc v Australian Broadcasting Authority, statutory construction requires deciding what the legal meaning of the relevant provision is “by reference to the language of the instrument viewed as a whole”. Further, the purpose of the legislation is not to be derived from any a priori assumption about the desired reach or operation of the relevant provisions.” (Footnotes omitted.)

The issues of construction raised by the Commissioner, for which answers to separate questions are sought, concerned cl 164(1)(b) and (c) of the CAS Regulation. In short form, the Commissioner contended that the words “punishment” and “treatment”, when appearing in cl 164(1), should be read as being confined to a punishment or a treatment that was deliberately imposed and for a punitive purpose. Further, the Commissioner contended that the proper construction of cl 164(1)(c) would require, for that subclause to operate, something more than “the unavoidable features of incarceration (including in particular for an inmate with a EHRR designation)”.
In the submissions advanced by the Commissioner as to those questions of construction, it was emphasised that the most significant considerations in the present case were textual, although it was also recognised, in that respect, that the terms “punishment” and “treatment” have to be considered contextually within the CAS Regulation. Elsewhere the Commissioner referred to a purposive construction of the provisions.
As Hallen AsJ pointed out in Southwell, the provisions of r 28.2 of the UCPR speak of “questions” and not “issues”, and do not differentiate between questions of fact or law. However, a judicial determination of a question must involve a conclusive or final decision based on concrete and established or agreed facts for the purpose of “quelling the controversy between the parties” (at [15(b)]).
A fundamental difficulty with the Commissioner’s application with respect to the Separate Questions is that, at its base, the Commissioner invited the Court to separately determine the aforementioned questions of construction divorced from the factual context in which they arise for determination.
The determination of the construction of the terms “punishment” and “treatment” not only needs to be undertaken in the context of the whole of cl 164 of the CAS Regulation and surrounding provisions within the CAS Regulation (such as cll 15(3) and 16), and the CAS Act itself (see ss 79(1)(viii), 232 and 271), but must have regard to the fact that the construction of such terms will inevitably invite the consideration of questions of fact and degree and, in my view, must be resolved in the circumstances of this matter: Kvelde v State of New South Wales [2023] NSWSC 1560 at [170] (per Walton J); see also Lees v State of New South Wales [2025] NSWSC 1209 at [91]-[92] (per Mitchelmore J).
So much is illustrated by the Commissioner’s submission, where it is contended that concepts such as “punishment” and “treatment” in cl 164 of the CAS Regulation “fall to be considered in light of the regrettable fact that there are likely to be many inmates for whom incarceration, or the unavoidable features of incarceration, may reasonably be expected to adversely affect the inmates physical or mental health”. The Commissioner went further, without specific reference to Mr Hamzy’s situation, to submit that cl 164 cannot be intended to capture “the adverse experiences of inmates generally, nor conditions of custody more generally, nor to the behaviour of inmates towards each other”.

ADVANCE RULINGS

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

Section 192A of the Evidence Act

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

Where a question arises in any proceedings, being a question about--

(a) the admissibility or use of evidence proposed to be adduced, or

(b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or

(c) the giving of leave, permission or direction under section 192,

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.

Relevant principles

The discretion conferred on the Court pursuant to s 192A of the Evidence Act is wide, in that, the Court has the power to make advance rulings on the admissibility of evidence “if it considers it to be appropriate to do so”.
As was noted by Garling J in Zheng v Australian International Aviation College Pty Ltd [2024] NSWSC 1622 at [79]:

“…Section 192A has an important role in the facilitation of efficient case management. The use of s 192A is a discretionary case management decision. As with other case management decisions, the question for the Court is whether a decision of the kind sought would accord with the overriding purpose set out in s 56 of the Civil Procedure Act 2005 of facilitating the just, quick and cheap resolution of the real issues in dispute.”

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

[39] In Australian Securities and Investments Commission, in the matter of Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd [2017] FCA 324, Gleeson J said at [21] ff:

“21. Section 192A permits but, does not compel, advance rulings to be given on the admissibility of evidence: Bailey v Director-General, Department of Natural Resources [2013] NSWSC 515 at [55]. Whether the Court should make an advance ruling is a ‘discretionary case management decision’: NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000 (No 4) [2012] NSWLEC 120 AT [40]; Beslic v MLC Ltd [2015] NSWSC 908 at [33]. …

The authorities indicate that ‘some good reason should be advanced in order that the court exercise jurisdiction under s 192A’: … It may, for example, be appropriate to give an advance ruling ‘if all matters relevant to the issue have been or can then be ascertained and if it is clear that a ruling will inevitably be required’: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [42] (Gaudron J). Further, the giving of a ruling, or the making of a finding, under s 192A may be appropriate where ‘a considerable amount of time, effort and money might be saved if the documents were ruled to be admissible now’: …”

…

24. A sound reason to refuse to give a ruling under s 192A may exist where the proceeding is in its infancy, the issues have not yet been joined because the pleadings have not closed and it is uncertain whether the evidence sought to be the subject of the advance ruling will be relied upon at final hearing …”

[40] As Middleton J said in Davaria Pty Limited v 7-Eleven Stores Pty Ltd (No 9) [2021] FCA 473, at [9]:

“… However, there is no specific test to apply in order for the Court to make an advance ruling under s 192A of the Act. It will be a matter of discretion, having regard to the circumstances before the Court and implementing the purpose of s 192A, having regard to good case management principles.”

[41] In this Court, s 56 of the Civil Procedure Act provides that the overriding purpose of the Act and the rules of Court in civil proceedings is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”. Section 57 draws specific attention to one of the objects of case management, being the timely disposal of proceedings “… at a cost affordable by the respective parties”.”

Garling J further considered that an advance ruling pursuant to s 192 of the Evidence Act may be appropriate where it would result in “cost and efficiency benefits”, for example, where it would be cheaper, would save a significant number of witnesses from having to give evidence and, importantly where it would save a considerable number of days of hearing: Searle at [48] (per Garling J).
The considerations which inform the exercise of the discretion in s 192A of the Evidence Act are varied and are likely to depend upon the circumstances of the particular case.
In Gondarra v Minister for Families, Housing, Community Services & Indigenous Affairs (2012) 127 ALD 288; [2012] FCA 185 (“Gondarra”) at [25]-[26], Kenny J stated:

“[25] In the ordinary case, the court deals with objections to evidence, even evidence by way of affidavit filed before trial, at or shortly before the hearing. In some cases, however, trial preparation may be assisted by an evidentiary ruling in advance of the trial. The enactment of s 192A of the Evidence Act gave effect to a recommendation by the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission to permit a court, if it thought fit, to give an advance ruling on an evidentiary issue: see ALRC Report 102, at pp 34, 579–582; and Explanatory Memorandum, Evidence Amendment Bill 2008 (Cth), at p 39, [240]. Section 192A is intended to empower the court to make such a ruling in the interests of efficient trial management: see Southern Cross Airports v Commissioner of State Revenue [2011] NSWSC 349 at [14]. In substance, the NLC and the Land Trust relied on the interest in efficient trial management as justifying an advance ruling as to the admissibility of Dr Gondarra’s affidavit.

[26] The NLC and the Land Trust argued that, in this case, an advance ruling against the admissibility of Dr Gondarra’s affidavit would promote trial efficiency, since such a ruling would diminish the possibility of unnecessary delay and expenditure. They contended that Dr Gondarra’s affidavit was not relevant to any issue arising on the applicant’s originating application, as amended, and would therefore be inadmissible at trial. They sought to have the affidavit ruled inadmissible in advance of the trial because, so they said, they wanted to avoid the need “to put on (extensive) answering affidavit evidence”…”

However, in Gondarra*,* Kenny J ultimately found that the Court was not in a position to determine the relevance and admissibility of evidence ahead of the final hearing. In that case, her Honour found the process of determining relevance was “not as straightforward as may initially appear” (at [32]). As her Honour noted, “[m]uch will depend on the way the case unfolds at trial, including the construction that the Court is persuaded should be given [to] the relevant provisions of the [Aboriginal Land Rights (Northern Territory) Act 1976]” (at [41]). For that reason alone, it was not appropriate to make an advance ruling (at [41]).
Lastly, in Bailey v Director-General, Department of Natural Resources [2013] NSWSC 515 (per Garling J), an order was refused where there was a risk that assumptions made about evidence might prove to be incorrect in light of the manner in which the case was to be conducted. Garling J stated (at [55] to [60]):

“[55] Section 192A of the Evidence Act permits, but does not compel, advance rulings to be given on the admissibility of evidence. There may be various sound discretionary considerations that lead a court to make or decline to make an advance ruling under s 192A of the Evidence Act: see Australian Competition & Consumer Commission v Allphones Retail Pty Ltd (No.3) [2009] FCA 1075 at [12]; Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185 at [23].

[56] One of the discretionary considerations to be taken into account where relevant, is whether there is a risk that assumptions which are made about evidence to be given in a case prove ultimately not to be correct in light of the way in which a case is in fact presented. These decisions are usually made during the course of the case.

[57] In particular in this case, although the affidavit of Mr Smith has been served, there is no certainty that Mr Smith will be called to give evidence by the defendants. That is because they may choose not to call any evidence. They may choose to rest their case on the documents or else they may take the view, as the case is running, that such evidence as they have called is sufficient.

[58] Alternatively, particularly if Mr Smith is not called as the first witness, and there is no necessary reason why he would be, it may be that evidence which has been given in the course of the hearing, either during the plaintiffs' case, or else by other witnesses called by the defendant, may cast a different light on these words which are included.

[59] In particular, in this case, the words in both paragraphs do not by their terms suggest obvious inadmissibility. Rather, whether they are, or are not, admitted into evidence will depend upon the dynamic unfolding of the issues at the trial.

[60] Although I accept that the power under s 192A is available to me, I do not think in the exercise of my discretion that it is appropriate to give a ruling based upon such power with respect to the evidence which the plaintiff seeks to challenge. I am persuaded that there are sound discretionary reasons not to, and that no real benefit is to be gained by ruling upon them in advance.”

Submissions for the Commissioner

In summary, the Commissioner submitted that:
The evidence served by Mr Hamzy in chief, in support of prayer 6 of the Summons, is extensive. It included Mr Hamzy’s affidavit dated 14 March 2025 and 14 other affidavits of Mr Hamzy of various dates between 2017 and 2024. The affidavits detail approximately 600 incidents or allegations and include a substantial volume of documents.
The Commissioner sought to raise four overarching objections to Mr Hamzy’s evidence, which could appropriately be the subject of advance rulings pursuant to s 192A of the Evidence Act. In summary, the objections to Mr Hamzy’s evidence relate to:

(a) Acts, practices or conduct which are historical and not continuing. (b) Allegations against unidentified officers of CSNSW, including as to the state of mind of unidentified persons. (c) Allegations about acts, conduct or practices to which other inmates are alleged to have been subjected. (d) The fact that Mr Hamzy has not served statements prepared in these proceedings from any other inmates about whose conditions of custody Mr Hamzy complaints, such that the evidence is hearsay.

The manner in which Mr Hamzy has framed his prayer for relief in the Summons, and upon which the Commissioner has conducted these proceedings to date, is relevant to the assessment of the evidence that he may properly lead in evidence of his claim.
Prayer 6 of the Summons seeks declaratory relief regarding the Commissioner’s compliance with cl 164 of the CAS Regulation, as opposed to being an application for judicial review, or an action in tort for damages. The nature of the relief sought is relevant to the utility of advance rulings for the following reasons:

(a) The ability to grant declaratory relief is not unlimited and must be directed to the determination of legal controversies as opposed to answering questions that are “abstract, hypothetical or moot”: Ainsworth at 581-582 (Mason CJ, Dawson, Toohey and Gaudron JJ). As such, the power to grant a declaration will not be exercised where “it will produce no foreseeable consequences for the parties”: Ainsworth at 581-582. Hence, to the extent that Mr Hamzy sought to adduce evidence as to the treatment of other inmates, that evidence is unlikely to assist the claim which Mr Hamzy may legitimately pursue. Mr Hamzy does not have standing to seek a declaration as to a breach of cl 164 in connection with any inmate other than himself, as it would produce no foreseeable consequences for him. It is also clear from the terms of cl 164 that any breach arises in relation to “[a]n inmate”. However, the Commissioner accepts, as a general proposition, that Mr Hamzy’s evidence as to the treatment of other inmates could be relevant, by way of example, to the extent it is used to establish that Mr Hamzy witnessed events and how those events have affected him, for the purpose of cl 164(1)(c) of the CAS Regulation. That may inform the Court’s approach to the exclusion or, alternatively, limitation of such evidence. (b) It will rarely be appropriate to make a “bare declaration”, which is not declaratory of any present right, but amounts only to an acknowledgement of a past infringement of a right. That is significant because Mr Hamzy’s evidence is, in large part, directed to policies that are no longer operative, or practices that are no longer continuing. Additionally, such conduct could not be brought to bear with respect to Mr Hamzy’s claim for relief as he has framed it, which is (properly) limited to “a declaration that the [HRMCC] is in breach of [cll] 164(1)(b)(iii) and (iv) and 1(c)…”, being a declaration in respect of the current state of affairs. (c) There are contextual considerations that ought to limit the scope of the Court’s inquiry in a matter such as this. It is well recognised that courts are not necessarily well qualified to determine what is necessary or appropriate in the interests of custodial management and should be slow to interfere with the Commissioner’s judgment in that regard. Those considerations tell against the appropriateness of a roving inquiry by the Court which is what would be required if Mr Hamzy’s evidence were admitted in its current form. If that were the function of the Court in considering whether to grant orders for declaratory relief in respect of cl 164 of the CAS Regulation, it would constitute a means for any inmate to institute proceedings seeking relief regarding the conditions of custody generally, whether or not such conditions currently exist.

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

(a) The “behaviour management program”, which has previously been the subject of litigation by him and has not operated since 2019. (b) Interception of his telephone calls to a lawyer, which was the subject of prior proceedings by him, and which is conduct that no longer occurs. (c) His conditions of custody in other correctional centres, including Lithgow Correctional Centre and the Metropolitan Remand and Reception Centre.

Insofar as Mr Hamzy contends that it is necessary to consider his conditions of custody historically and the “duration” of the alleged conduct, the relevant inquiry for considering whether there has been a breach of cll 164(1)(b) or (c) is whether a particular act, practice or policy contravenes the clause. It does not call for an assessment of the totality of Mr Hamzy’s detention. Even if such evidence were relevant to that assessment, the probative value of the evidence would be outweighed by the undue waste of court and party time, and by the prejudice that the Commissioner would face if he were required to interrogate and respond to allegations of more than 600 matters in Mr Hamzy’s own affidavits.
An advance ruling on evidence would aid the efficiency of these proceedings by clarifying the scope of the factual dispute and, thereby, helping to focus the evidence before the Court. That would be beneficial to both parties in terms of knowing the case to be advanced and to be met.
If advance rulings are not made, responding to Mr Hamzy’s evidence will place a considerable burden on the Commissioner and be productive of unfairness. Given the breadth of the allegations, the fact that they are made against unidentified officers of CSNSW and the effluxion of time, the task of verifying and, if necessary, disputing and/or contextualising the various allegations in the evidence filed by Mr Hamzy will be onerous. It would likely involve the Commissioner making inquiries of and, potentially, considering leading evidence from a range of CSNSW officers, including those who may have worked at the HRMCC or other correctional centres at various points in the past.
Responding to Mr Hamzy’s allegations would also principally require review of paper records held by CSNSW, which are voluminous, and the burden of searches would be exacerbated by the fact that Mr Hamzy has not identified when many of the incidents he described are alleged to have occurred.
If advance rulings are not made to exclude or limit the use of Mr Hamzy’s evidence, it will also place a considerable burden on the Court, because it would significantly extend the estimate of any hearing.
Those considerations ought to be weighed against the fact that there is real doubt as to the forensic benefit of such evidence in view of the type of relief that Mr Hamzy seeks and that, in the absence of advance rulings on the evidence, responding to that evidence will result in an undue waste of time (of the Court and the parties).
In oral submissions, Mr Emmett made the following concessions:
In addition to declaratory relief, prayer 6 of the Summons also seeks relief which appears to be in the nature of injunctive relief or prohibition or mandamus, that is, to shut down the HRMCC or bring it into compliance with the law. Hence, the Commissioner conceded that the relief sought in prayer 6 does go beyond declaratory relief.

Submissions of Mr Hamzy

In summary, Mr Hamzy submitted that:
An advance ruling would not result in any cost and efficacy benefits, nor would it aid the efficiency of the proceedings. The scope of the matter, and the factual dispute is clear. The case that has been advanced, and the case that the Commissioner needs to answer is also clear.
The burden which the Commissioner complaints of must be contrasted with the burden of having to suffer 23 years of what Mr Hamzy alleges is cruel, inhumane and degrading treatment and torture, and the burdens he has overcome to prepare and pursue the matter. If there is any unfairness in the proceedings, then on balance, Mr Hamzy submitted that it was he who is undergoing it.
The Commissioner’s complaint about the “effluxion of time” only fortifies Mr Hamzy’s case and illuminates the length of time he has been subjected to this form of treatment. The Commissioner has the resources of the State behind him and the freedom to defend the matter, which are benefits Mr Hamzy does not have.
Mr Hamzy had complied with the orders made on 19 May 2025 and is willing to give any extra assistance he can to the Commissioner to narrow the timeline, if possible.
There would be no saving in court time or expenditure, and no foreseeable benefit to the Court by having advance rulings. The hearing of advance rulings would only delay the matter further, as the process that would occur before a trial judge is the same process that would need to occur if the Court was to make advance rulings.
The evidence Mr Hamzy relies on is relevant, admissible and has a forensic benefit that will support the determination of the case.
Further, in response to the Commissioner’s submission that he raises his conditions of custody in other correctional centres, which are not relevant to the declaration sought in prayer 6 of the Summons, Mr Hamzy submitted that, as a HRMU inmate, the HRMU policy follows him to other correctional facilities.

Consideration

In my view, the Commissioner has not demonstrated 'some good reason' why the Court should exercise its discretion to order advance rulings on the admissibility and/or use of Mr Hamzy's evidence in chief.
It was accepted, at the hearing of this matter, that Mr Hamzy's evidence in chief has been served in full and no further evidence was foreshadowed.
The Commissioner submitted that the evidence in chief served by Mr Hamzy, in support of prayer 6 of the Summons, is extensive. It was said to include 15 affidavits of Mr Hamzy, which detail approximately 600 incidents or allegations.
On the basis of that submission, there is, at least, a superficial attraction to ordering advance rulings. It is understandable why the Commissioner may have sought to limit Mr Hamzy's evidence in chief in advance of the trial. If the objections to Mr Hamzy's evidence were upheld, then the evidence which the Commissioner would need to put on in answer to Mr Hamzy's extensive allegations would significantly reduce. However, a closer review of the circumstances of this aspect of the application makes the propositions advanced by the Commissioner as having far less force. My reasons for this conclusion appear below.
First, the Court is asked to determine whether advance rulings may be ordered on the broad and undefined basis that the Court should “give advance rulings as to the admissibility and/or use of the evidence in chief served by Mr Hamzy”. As a result of an objection taken by Mr Hamzy, there is no specification of the precise form of the objections or potential objections as to the evidence sought to be relied upon by Mr Hamzy.
Secondly, it should be noted that the only new evidence in support of prayer 6, is an affidavit of Mr Hamzy dated 14 March 2025 (“the 14 March affidavit”). The 14 other affidavits which the Commissioner refers to in support of its submission that the evidence in chief is “extensive”, are materials which were served by Mr Hamzy for the hearing of prayers 1 to 5 by Rothman J.
Hence, the saving of any time and resources must necessarily be limited by the fact that prayers 1 to 5 have already been heard and determined, meaning that the Commissioner is already familiar with the evidence and allegations served in those proceedings, and presumably, has already prepared and put on evidence in answer to that material.
The only affidavit served solely in support of prayer 6 is the 14 March affidavit, which is 27 pages in length. It should also be noted that, on the evidence before this Court, it is not clear that Mr Hamzy will seek to rely on the 14 prior affidavits in support of prayer 6. When Mr Hamzy’s evidence in chief is exposed in this light, the Commissioner’s complaint as to the sheer volume of evidence which it needs to answer should be approached with caution.

CONCLUSION

In all the circumstances, the Motion should be dismissed.
That conclusion gives rise to a consideration as to whether the Commissioner should pay Mr Hamzy’s cost of the Motion. While legal costs may only be recovered in relation to the costs of legal practitioners, I accept that a litigant in person may nonetheless recover reasonably incurred disbursements or witness expenses.
I agree with the finding of Rothman J in Hamzy v Commissioner of Corrective Services (No 2) [2025] NSWSC 1403 at [19], that:

“…while self-represented persons are entitled to costs, here, the costs would probably relate only to the actual costs of photocopying or printing, if expended by the plaintiff, and the costs of filing documents in the Court.”

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

ORDERS

The Court makes the following orders:
The Notice of Motion filed by the Commissioner of Corrective Services on 9 May 2025 is dismissed.
The defendant shall pay Mr Hamzy’s costs of the Notice of Motion.

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Endnote

BMP refers to Behaviour Management Program.

Hamzy v Commissioner of Corrective Services

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English brief of this case

Catchwords

Judgment

JUDGMENT

PROCEDURAL BACKGROUND

RELEVANT PRINCIPLES: DECLARATORY RELIEF

SEPERATE QUESTIONS

Rule 28.2 of the UCPR

Relevant principles

Submissions for the Commissioner

General

Particular submissions for the Commissioner

Submissions of Mr Hamzy

Consideration

ADVANCE RULINGS

Section 192A of the Evidence Act

Relevant principles

Submissions for the Commissioner

Submissions of Mr Hamzy

Consideration

CONCLUSION

ORDERS

Endnote

Parties

Legislation Cited (18)

Cases Cited (16)