Abbas v NSW Commissioner of Police; Hamzy v NSW Commissioner of Police

[2019] NSWSC 1841

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Abbas v NSW Commissioner of Police; Hamzy v NSW Commissioner of Police [2019] NSWSC 1841

Hearing dates:

30 January 2019; 15 February 2019; 7 March 2019; 17 May 2019; 5 August 2019; 6 August 2019; 19 September 2019; 20 September 2019; 25 September 2019; 28 September 2019; 1 November 2019.

Date of orders:

20 December 2019

Decision date:

20 December 2019

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1)   The application made by Bassam Hamzy for an adjournment of the proceedings is refused.

 

(2)   The application made by Bassam Hamzy that I recuse myself from the further hearing of the proceedings is refused.

 

(3)   The proceedings brought by Bassam Hamzy are dismissed.

 

(4)   The question of costs in respect of the proceedings brought by Bassam Hamzy is reserved.

 

(5)   I direct the Registrar to forward a copy of this judgment to Bassam Hamzy, MIN 288121, High Risk Management Correctional Centre, Maud Street, Goulburn NSW 2580.

 

(6) The Commissioner of Police is restrained from further accessing or viewing, copying, disseminating or relying in any proceedings upon any of the following material seized pursuant to search warrants numbered 18/2461, 18/2460 and 18/2491:

 

(i)   The documents numbered 1, 15, 17, 18, 19, 48, 49 and 110 in Annexure A to the Affidavit of Ali Abbas of 4 October 2019.

 

(7)   The proceedings brought by Ali Abbas are otherwise dismissed.

 (8)   The costs of the proceedings brought by Ali Abbas are reserved.

Catchwords:

EVIDENCE – Privilege – Where one of the plaintiffs was a solicitor – Where that plaintiff has been charged with being an accessory after the fact to murder – Where police executed search warrants at the residential and business premises of the plaintiff and seized documents and electronic devices – Claims for legal professional privilege in respect of some of the material seized – Appropriate for the Court to examine the material over which claims were made - Claims determined

 

EVIDENCE – Privilege – Onus of establishing claim for privilege lies on the party who makes it – Onus renders it necessary for the party making the claim to adduce admissible evidence in support of it – Perfunctory approach adopted by the plaintiff in which there was a general failure to adduce admissible evidence in support of the claim

 

EVIDENCE – Privilege – Documents seized under search warrants – Whether claims for privilege should be determined according to common law principles or by reference to the Evidence Act 1995 (NSW)

 

PRACTICE AND PROCEDURE – Application for adjournment pending the determination of an appeal against the refusal to grant legal aid – Whether such appeal frivolous or vexations – Discretionary considerations – Protracted proceedings – Plaintiff in breach of the Court’s orders for the filing of material – Plaintiff given ample opportunity to file necessary evidence and submissions – Application refused

  PRACTICE AND PROCEDURE – Application for recusal on the grounds of apprehended bias – Test not met – Application refused

Legislation Cited:

Evidence Act 1995 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW) Legal Aid Commission Act 1979 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)

Cases Cited:

Abbas v NSW Commissioner of Police [2019] NSWSC 588
Archer Capital 4A Pty Ltd as Trustee for the Archer
Capital Trust 4A v Sage Group plc (No. 2) [2013] FCA 1098
Attorney-General for the Northern Territory v Kearney (1985) 158 CLR 500; [1985] HCA 60
Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501; [1997] HCA 3
Ebner v Official Trustee in Bankruptcy (2000) 2015 CLR 337; [2000] HCA 63
Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49; [1999] HCA 67
Gardner v Irvin (1878) LR 4 Ex D 49
Grant v Downs (1976) 135 CLR 674; [1976] HCA 63
Hancock v Rinehart (Privilege) [2016] NSWSC 12
Holmes v Deputy Commissioner of Taxation (1987) 19 ATR 1278
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Lazenby v Zammit [1987] Tas R 54
National Crime Authority v S [1991] FCA 234
Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43

Category:

Principal judgment

Parties:

Ali Abbas – Plaintiff
Bassam Hamzy – Plaintiff
NSW Commissioner of Police – Defendant

Representation:

Counsel:
F Maghami – Plaintiff (Abbas)
Z Burrows (Solicitor) – Plaintiff (Hamzy)
M Hutchings - Defendant

  Solicitors:
Zali Burrows Lawyers – Plaintiff (Hamzy)
Makinson d'Apice Lawyers – Defendant

File Number(s):

2018/376397

Publication restriction:

Nil

Judgment

INTRODUCTION

1. By a summons filed on 5 December 2018 Ali Abbas (the plaintiff) seeks orders against the New South Wales Commissioner of Police (the Commissioner) in (inter alia) the following terms:

That until further order of the court, the defendants be restrained from further accessing or viewing, copying, disseminating or relying in any proceedings, upon any of the following material seized pursuant to the search warrants numbered 18/2461, 18/2460 and 18/2491:

(a) all of the documents and electronic devices seized from 6/187 President Avenue Monterey, 4/64 Castlereagh Street Sydney and 732/661 Forest Road Bexley;

(b) all electronic devices handed in to police by the plaintiff at the time of his arrest.

2. Although the NSW Director of Public Prosecutions was also joined as a party by the plaintiff, the Commissioner has been the only active defendant.

3. Bassam Hamzy (Hamzy) has been joined as a plaintiff in the proceedings. I have addressed applications made by Hamzy later in this judgment. [1]

   1. Commencing at [10].

BACKGROUND

4. The plaintiff is a former solicitor of this Court. He was arrested by police on 30 October 2018 and charged with a number of offences, including an offence of being an accessory after the fact to murder. On the day of the plaintiff’s arrest, police executed a number of search warrants at various premises to which he was connected.

5. Those who were then acting for the plaintiff attended on his behalf at the premises at which the warrants were executed, and made what could be described as a blanket claim of legal professional privilege over each and every item which was seized. It was agreed between the police and those then acting on behalf of the plaintiff that in accordance with guidelines issued by the Law Society of New South Wales, the items which were seized would be lodged in the first instance with the Registrar of the Downing Centre Local Court, pending the commencement of proceedings asserting the claim for privilege. The items seized from the plaintiff's business premises were delivered to the Registrar on 30 October 2018, whilst those seized from the plaintiff's residential premises were delivered to the Registrar on the following day, 31 October 2018.

6. The guidelines issued by the Law Society require that any proceedings to enforce a claim of legal professional privilege be brought within three days of the seizure of the relevant material, or within such other time as might reasonably be agreed between the parties. On 6 November 2018, the solicitor for the Commissioner wrote to those then acting for the plaintiff and, having noted the terms of the guidelines, advised that in the event that proceedings were not commenced by 8 November the investigating police would retrieve the material which had been seized. No proceedings were commenced by that time.

7. On 14 November 2018 the Registrar of the Downing Centre Local Court, Mr Karam, wrote to the solicitors for each party advising that he had extended the time in which the plaintiff was to commence any proceedings until 20 November 2018. On 16 November 2018 those who were then acting for the plaintiff inspected the material which had been seized, at which time the Registrar confirmed his earlier advice as to the time within which proceedings were to be commenced. No proceedings were commenced until the filing of the summons on 5 December 2018. That occurred after the plaintiff engaged new solicitors.

8. On 17 May 2019, after the proceedings had come before me on numerous occasions, I delivered a judgment in which I set out a protocol for the purposes of having any claims for privilege identified. [2] The various steps for which provision was made under that protocol have now been taken, and the plaintiff has identified a number of documents [3] in respect of which he wishes to make a claim.

   2. Abbas v NSW Commissioner of Police [2019] NSWSC 588.

   3. The majority of the items which are the subject of a claim are documentary, although there are also a small number of telephone conversations. For ease of reference I have referred to all of the items over which a claim is made as “documents” for the purposes of this judgment.

THE EVIDENCE

9. For the purposes of enabling me to determine the plaintiff’s claim for privilege, I have been provided with the following material:

1. an affidavit of the plaintiff of 4 October 2019;

2. a USB stick and two folders compromising over 900 pages of documentary material;

3. an affidavit of Brielle Straney of 25 October 2019 provided by the Commissioner;

4. an outline of written submissions on behalf of the plaintiff; and

5. an outline of written submissions on behalf of the Commissioner.

THE JOINDER OF BASSAM HAMZY AS A PLAINITFF IN THE PROCEEDINGS

10. It is convenient at this point to address a number of issues stemming from an order which was previously made joining Hamzy as a plaintiff in these proceedings.

The application for joinder and orders for filing of evidence and submissions

11. On 28 October 2019 my Associate received an email from Ms Zali Burrows, solicitor, advising that Hamzy wished to “join the proceedings in respect of making a claim for LPP………”. Hamzy subsequently filed a motion seeking orders (inter alia) that he be joined as a plaintiff. When the motion came before me on 1 November 2019, Ms Burrows appeared for Hamzy and indicated that the Commissioner had provided her with material which had been identified as material over which Hamzy may have a claim. The Commissioner’s solicitor explained the position as follows [4] :

I want to make it clear that what Ms Burrows has been given is a small subset of information from the entirety of the review and are the only documents that (the plaintiff) has identified that Mr Hamzy might have a claim of privilege over within the full scope of data that has been seized by the police. …My understanding was the process would be he would review what is on this USB stick and either make a claim or not and that it would be discreet.

4. T3.47-T 3.50.

12. When asked how long it would take for evidence and submissions to be filed in support of any claim for privilege which was to be made by Hamzy, Ms Burrows informed me that “the 25th of November could be achievable” because “that’s another month away”. [5] I then made the following orders:

    5. T5.49-T5.50.

1. Pursuant to rule 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) Bassam Hamzy is to be joined to the plaintiff in these proceedings.

2. Bassam Hamzy is to file with my Associate any evidence and an outline of written submissions in relation to any claim for privilege by 5pm on 25 November 2019.

3. The defendant is to file and serve any further evidence in any further submissions by 5pm on 29 November 2019.

4. I otherwise reserve judgement in relation to any claims for privilege made by Bassam Hamzy.

13. I recommended to the Commissioner of Corrective Services that all reasonable steps be taken to facilitate the uploading of the material which had been provided to Ms Burrows onto a laptop computer to which Hamzy could have access.

The failure to comply with the Court’s orders

14. On 29 November 2019, five days after the date by which Hamzy was ordered to file evidence and submissions, my Associate received an email from Ms Burrows in the following terms:

Please be advised that my legal visit with Hamzy was cancelled due to lock in, in respect of instructions for submissions.

I have a scheduled visit booked next Wednesday, I respectfully seek an extension to the submission (sic) on LPP to next Friday.

15. The “next Wednesday” referred to by Ms Burrows was Wednesday 4 December. I extended the time for the filing of evidence and submissions to 9:00 am on 5 December 2019.

16. At 9:18am on the morning of 5 December 2019 my Associate received a further email from Ms Burrows stating:

My visit with Hamzy is not until today at Supermax now, can I please have until tomorrow to file his submissions.

I apologise for the delay but require the visit with him today.

17. Ms Burrows’ advice that her visit with Hamzy was on 5 December was at odds with the contents of her email of 29 November 2019 in which she advised that it was to take place on 4 December.

18. In light of the correspondence received from Ms Burrows, and in light of her repeated failure to comply with orders, I listed the proceedings for directions on 6 December 2019. Having been advised of that listing, Ms Burrows again wrote to my Associate stating:

I apologise for delay (sic) in response to your email at 10.43 am but I was in HRMCC for a legal visit with Mr Hamzy.

I cannot attend Court tomorrow because I will be at HRMCC with Mr Michael Finnane QC for a legal visit with a client, this client’s sentence hearing commences 9 December 2019 before Adamson J and the visit cannot be cancelled.

Mr Hamzy instructs that he wishes to appear at the mention himself tomorrow and to address his Honour regarding the issues and the reasons seeking the further extension on the submissions re LPP.

I can indicate that an LPP claim is on all the recording MP4 file items that contains (sic) recordings of conversations between Mr Abbas and Mr Hamzy. A LPP claim is not made upon the single document contained in the USB, being a trust account receipt.

Mr Hamzy requests a s 77 order be made so he can appear by AVL to address his Honour tomorrow.

19. The reference to a claim “on all the recording MP4 file items” was entirely meaningless in the absence of any material being filed with the Court. The reference to “a s 77 order” was a reference to an order pursuant to s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) (the Administration Act). That section confers a discretion to make an order directing the Commissioner for Corrective Services to cause an inmate to be produced before the Court. I declined to exercise my discretion in favour of making an order under that section, and Ms Burrows was advised accordingly. She responded by sending a further email to my Associate on 5 December requesting that the matter be listed for directions during the week commencing 9 December 2019. I declined to accede to that request and Ms Burrows was again advised accordingly.

20. It is appropriate at this point to make a number of observations regarding the correspondence received from Ms Burrows, and her failure to comply with the Court’s orders.

21. Firstly, Ms Burrows’ request of 29 November for an extension of time was made five days after I had ordered that material be filed. The email containing that request was bereft of any explanation of why there had been a failure to comply with the Court’s orders.

22. Secondly, Ms Burrows’ email of 29 November did not specify when her cancelled visit with Hamzy had been due to take place. One available inference is that the visit was scheduled to take place on or about the date on which she sent the email. That was, as I have noted, well after the date on which evidence and submissions were ordered to be filed. It was also almost a month after such orders were made.

23. Thirdly, Ms Burrows advised in her email of 29 November that she had made arrangements to visit Hamzy on Wednesday, 4 December 2019. It was on that basis that I extended the time for the filing of material until the following day, 5 December. Ms Burrows then advised my Associate on 5 December that her visit was “not until today”. The circumstances in which, and the reasons for which, the arrangement to visit Hamzy was apparently changed from 4 December to 5 December were not explained.

24. Fourthly, in the first of her emails of 5 December 2019, Ms Burrows sought a further extension until the following day, 6 December, to allow material to be filed. Accepting that such a request was made bona fide, it follows that the preparation of such material must have been well advanced.

25. Finally, as at 5 December 2019, Ms Burrows had had 5 weeks in which to file material on behalf of Hamzy. At no time in the course of her correspondence with the Court did she offer any explanation as to why such material had not been, or could not be, filed.

26. When the matter came before me on 6 December 2019 Mr Anderson of counsel appeared for Hamzy. I infer that he did so on the instructions of Ms Burrows. When I asked Mr Anderson to outline the position in relation to the filing of material on behalf of Mr Hamzy, he responded: [6]

They can be filed and served by 9am on Monday. My instructions are that she had a conference with Mr Hamzy yesterday in Goulburn and she is back there today with Mr Finnane. They have another matter, a two day sentence matter before Adamson J next week, but they will also be conferring with Mr Hamzy today. So my instructions are that any submissions can be filed and served by 9am on Monday.

6. T2.26-T2.31.

27. Given that response, I should again observe that if Ms Burrows was in a position to file material on the following Monday, as she apparently instructed counsel was the case, the preparation of that material must necessarily have been well advanced. Moreover, if she was in that position, her request to list the matter for directions in the week commencing 9 December was completely lacking in utility.

28. Mr Anderson also told the Court: [7]

All I can indicate, from Mr Hamzy’s point of view, is he would like this matter dealt with before Christmas.

7. T3.33-T3.34.

29. Given the entirely dilatory approach which had been adopted towards compliance with the Court’s orders, counsel’s submission might be regarded as somewhat bold. I again infer that what counsel told the Court in this respect was based on his instructions from Ms Burrows.

30. Having recounted the contents of the correspondence between my Associate and Ms Burrows which I have outlined above, I made the following orders:

1. The plaintiff Bassam Hamzy is to file with my Associate and serve on the Crown and the Commissioner of Police any evidentiary material and any outline of written submissions in relation to any claim for legal professional privilege by 9am on Monday, 9 December 2019.

2. I direct my Associate to forward a transcript of the proceedings today to the professional standards division of the Law Society of New South Wales for such action is the Law Society may see fit to take in relation to the matters that I have raised.

Hamzy’s present applications

31. Shortly before 9:00am on 9 December 2019 my Associate received an email from Timothy Price, an Intelligence Officer at the High Risk Management Correctional Centre at which Hamzy is presently held. That correspondence was sent on Hamzy’s behalf and included a large number of documents under cover of a letter dated 8 December 2019 from Hamzy in which he stated (inter alia) the following:

“I am writing to inform you that I am now self represented in the matter of Ali Abbas v Commissioner of Police and DPP ……..”

32. This was the first occasion on which the Court had been given any indication that Hamzy was acting for himself.

33. Amongst the documents accompanying the letter was a Notice of Change of Address for Service which nominated Hamzy’s address for service as care of the High Risk Management Correctional Centre, Goulburn. The document purports to bear a date of 8 December 2019. However, it is evident on the face of the document that the date which was originally inserted on the document has been altered.

32. Hamzy’s letter requested that the proceedings be re-listed in order to allow him to make an application:

1. for an adjournment, based upon s 57 of the Legal Aid Commission Act 1979 (NSW) (the LAC Act); and

2. that I recuse myself from the proceedings on the grounds of apprehended bias.

35. Hamzy has provided the Court with lengthy submissions and supporting documents. He has set out, in considerable detail, the bases of the applications, both of which are opposed by the Commissioner for reasons set out in written submissions in reply. In these circumstances I have determined that the proceedings should not be re-listed. The applications can be fairly and properly determined on the basis of the written material which has been filed.

The application for an adjournment of the proceedings

36. Hamzy has submitted that s 57 of the LAC Act “states that he is entitled to an adjournment if (he) is appealing a legal aid decision to refuse (him) legal aid”. In that respect, he has provided a copy of a letter dated 27 November 2019 from Legal Aid NSW in which he was advised that his application for a grant of legal aid in respect of these proceedings had been refused. The letter stated (inter alia):

Legal Aid is not available for your type of case under our policies and guidelines.

…

As the application has been refused on policy grounds Legal Aid NSW has not considered whether the requirements of its merit test have been satisfied.

…

You may be able to ask for our decision to be looked at again. This is called an appeal. You have 28 days from the date you get this letter to appeal.

37. Although the letter is dated 27 November 2019, Hamzy asserts that he did not receive it until 4 December 2019.

38. Hamzy has also provided the Court with part (but not the whole) of a document from which I infer that he has lodged an appeal against the refusal to grant him legal aid, and in which he has stated:

The privilage (sic) matter is a matter of significance which requires legal expertise and I am denied any facility or capacity to fund, prepare and present a case in this matter.

39. In submissions in support of his application for an adjournment of the proceedings, Hamzy further asserted that:

1. Ms Burrows “had a conference booked on 29 November 2019 so we could have a conference and this visit was cancelled without notice by corrective services”;

2. Ms Burrows “then rebooks (sic) a visit on 4+5+6 of December”;

3. he “receive (sic) (his) visit from Ms Burrows on 5 December 2019;

4. he was informed by Ms Burrows on 6 December 2019 that she would “now withdraw from my matter because Justice Bellew is refering (sic) her to the Legal Services Commissioner”.

40. Hamzy submitted that as a consequence of these matters, he had been “left unable to reply or instruct in (his) matters”.

41. Hamzy attached a number of other documents to his covering letter, two of which are worthy of particular note.

42. The first is an “Inmate Request Form” dated 29 November 2019 in which Hamzy stated (inter alia):

I would like to know why my legal visit with Zali Burrows was cancelled on the 29/11/19 without notice.

43. Under the heading “Decision/Result” the following appears on that document:

Due to the complex being locked down the visit was cancelled. Visits are not refused. The person who makes the booking is late in making the visit or visits already full for the day. PTO

44. The second is a copy of an email sent by Ms Burrows to Corrective Services NSW on 5 December 2019 in the following terms:

Please confirm if the USB upload is completed for the laptop for Bassam Hamzy at HRMCC.

As previously indicated, I anticipated receiving further material for uploading and have not received it yet from NSW Police.

45. I have considered these documents further below.

46. Section 57 of the LAC Act is in the following terms:

Adjournment of certain proceedings

57 Where it appears to a court or tribunal, on any information before it--

(a) that a party to any proceedings before the court or tribunal--

(i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or

(ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,

(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and

(c) that there are no special circumstances that prevent it from doing so,

the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.

47. I do not accept Hamzy’s submission that s 57 “entitles" him to an adjournment of the proceedings simply because he has brought an appeal against the decision to refuse to grant him legal aid. The section mandates that the proceedings be adjourned where it appears to the court that:

1. a party to the proceedings has appealed and the appeal has not been determined; and

2. the intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings; and

3. there are no special circumstances that prevent it from doing so.

48. Clearly, Hamzy is a party to these proceedings. There is no direct evidence that an appeal has actually been lodged with Legal Aid NSW, although I am prepared to infer that it has been, and that it has not been determined. It follows that the matters in [47](i) above are satisfied. However, I am not satisfied of the matters set out in [47](ii) for a number of reasons.

49. Firstly, and fundamentally, the letter from Legal Aid NSW advising Hamzy of the decision to refuse legal aid makes it plain that as a matter of policy, legal aid is not made available for proceedings of this kind. There is nothing before me which might suggest that such policy is likely to change at any time in the foreseeable future, such that the decision to refuse legal aid is likely to be reversed.

50. Secondly, part of the basis of Hamzy’s appeal is his assertion that, absent a grant of legal aid, he will be denied the “capacity to … prepare and present a case in this matter”. In my view, that assertion is, to say the least, disingenuous and lacking a proper foundation. There is no evidence before me as to when Hamzy made an application for legal aid in respect of these proceedings. However, given the date of the letter from Legal Aid NSW there is a strong inference that his application was pending during the majority, if not all, of the time during which Ms Burrows was acting for him. It has never been suggested that Ms Burrows’ retainer to act for Hamzy in these proceedings was subject to a grant of legal aid. Further, given that Ms Burrows has been acting for Hamzy in these proceedings since late October 2019, and accepting for present purposes the veracity of her correspondence with the Court, she has conferred with Hamzy and taken instructions from him to the extent necessary to prepare material, the filing of which she repeatedly told the Court, either personally or through counsel, was imminent. Ms Burrows has obviously undertaken all of that work absent legal aid being granted. Such circumstances are at odds with the proposition that the refusal to grant legal aid has resulted in Hamzy being denied the capacity to prepare and present his case. Viewed in that way, I regard Hamzy’s appeal against the refusal to grant him legal aid to be other than bona fide, frivolous and vexatious.

51. As to the matters in [47](iii) above, to the extent that there are special circumstances they tend completely against granting an application for an adjournment of the proceedings. Those circumstances include the fact that these proceedings have now been on foot for more than 12 months. Until such time as they are resolved, the preparation of the brief of evidence in the plaintiff’s criminal proceedings cannot be completed. Such circumstances also include the fact that Hamzy has been represented by a lawyer in these proceedings for more than a month and has had ample time to comply with the orders made by the Court for the filing and service of material. He has failed to do so, in circumstances where the Court was repeatedly told, as recently as 6 December, that material was about to be filed.

52. Section 57 of the LAC Act aside, Hamzy’s application for an adjournment should be refused as a matter of general discretion. Apart from the factors to which I have already referred there are additional factors bearing upon that discretion.

53. Firstly, the document provided by Hamzy regarding Ms Burrows’ cancelled visit [8] is clearly not the entire document. So much is clear from the reference to “PTO”. That part of the document which has been provided suggests that the visit may have been cancelled because Ms Burrows was late attending the correctional centre where Hamzy is held.

    8. At [42]-[43] above.

54. Secondly, Hamzy has asserted that Ms Burrows rebooked visits on 4, 5 and 6 December. That is at odds with what Ms Burrows has asserted in her correspondence with the Court.

55. Thirdly, it is entirely unclear whether Ms Burrows’ email of 5 December to Corrective Services [9] relates to these proceedings. If it does, there is an obvious question as to why, having been provided by the Commissioner with the documents the subject of a potential claim in October, the material was still being uploaded on 5 December. No explanation has been forthcoming in that respect.

    9. At [44] above.

56. For all of these reasons, Hamzy’s application for an adjournment of the proceedings is refused.

The application for recusal

57. In his correspondence to the Court, Hamzy has asserted that a purported refusal on my part to “let (him) appear, be informed of (his) proceedings, instruct (his) lawyers during proceedings or represent (himself) in proceedings and be heard is unjust, fair and oppressive to the extent that any fair minded lay observer may reasonably apprehend bias”. In addition, Hamzy has asserted a history on my part of “attacking and bullying Ms Burrows" during unrelated civil proceedings in which he is a party and in respect of which my judgment is presently reserved.

58. I am left to assume that Hamzy's assertion that I have “refused" to allow him to appear relates to the fact that I declined to make an order pursuant to s 77 of the Administration Act to have him appear before the Court on 6 December. To make an order under s 77, the Court must be satisfied, firstly that the attendance of the inmate is necessary for the purposes of proceedings, and secondly that the absence of the inmate may prejudice the rights of a party. In circumstances where the matter was listed for directions only on 6 December, and where Hamzy was represented by counsel on that day, his personal attendance was not necessary. Further, given that the Court was informed that the filing of evidence and submissions was imminent, his rights were not prejudiced by his absence. The fact that Hamzy is now representing himself did not become known to the Court until receipt of his letter of 8 December. So much is obvious from the opening paragraph. [10]

    10. At [31] above.

59. To the extent that Hamzy has asserted that Ms Burrows was “attacked and bullied" during unrelated civil proceedings to which he is a party and over which I presided, I need only observe that during the entire time over which those proceedings have been before the Court, which now spans some years, no application has been made by Hamzy, or by anyone on his behalf, that I recuse myself on that (or on any other) basis. I would also note that for the duration of recent hearing of those proceedings, which extended over a number of days, the applicant was represented by senior counsel. No application was made that I recuse myself from the hearing based upon the assertions which are now made.

60. The test for determining whether a Judge should disqualify himself or herself by reason of apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide. [11] In the circumstances, and on the basis of the matters raised, that test is not met.

    11. Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]; Ebner v Official Trustee in Bankruptcy (2000) 2015 CLR 337; [2000] HCA 63.

61. Accordingly, the application that I recuse myself on the grounds of apprehended bias is refused.

THE CLAIM FOR PRIVILEGE MADE BY THE PLAINTIFF

General observations

62. Before addressing the claim made by the plaintiff, it is necessary to make a number of general observations.

63. The parties have agreed that the appropriate course is that I examine each of the documents over which a claim is made for the purposes of determining whether any claim should be upheld. [12] In carrying out that exercise it is open to me to draw any inference(s) as might reasonably be open. However, it is not part of my function to assume responsibility for the task of formulating and establishing the plaintiff’s claim. It is not sufficient for the plaintiff to merely assert privilege. Absent the position being clear from the nature of the document itself, there is an onus on the plaintiff to make out the claim for privilege by establishing a factual basis for it. [13] In order to discharge that onus, the plaintiff must identify the circumstances in which a relevant communication was made, and the topics to which the relevant instructions or advice were directed. [14] In Hancock v Rinehart (Privilege) [15] Brereton J (as his Honour then was) expressed these obligations in this way:

To sustain a claim for privilege, the claimant must not merely assert it; but must prove the facts that establish that it is properly made. Thus a mere sworn assertion that the documents are privileged does not suffice, because it is an inadmissible assertion of law; the claimant must set out the facts from which the court can see that the assertion is rightly made, or in other words “expose …… facts from which the [court] would have been able to make an informed decision as to whether the claim was supportable. The evidence must reveal the characteristics of each document in respect of which privilege is claimed, and must do so by admissible direct evidence, not hearsay.

12. Grant v Downs (1976) 135 CLR 674; [1976] HCA 63 at 689.

13. Grant v Downs at 689.

14. Archer Capital 4A Pty Ltd as Trustee for the Archer Capital Trust 4A v Sage Group plc (No. 2) [2013] FCA 1098 at [13]-[14].

15. [2016] NSWSC 12 at [7], citing Gardner v Irvin (1878) LR 4 Ex D 49 at 53; National Crime Authority v S [1991] FCA 234; Lazenby v Zammit [1987] Tas R 54 at 56; Attorney-General for the Northern Territory v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 508; Holmes v Deputy Commissioner of Taxation (1987) 19 ATR 1278 at 1286; Commissioner of Australian Federal Police v Propend Finance Pty Limited [1997] HCA 3; (1997) 188 CLR 501 at 513-514.

64. Bearing in mind his Honour’s observations, and for the reasons that follow, the plaintiff’s approach to the prosecution of his claim for privilege has been generally perfunctory, and one which falls well short of what is required of a party in his position.

65. To begin with, the plaintiff's claim for privilege is supported by his affidavit of 4 October 2019. Annexure A to that affidavit is a spreadsheet setting out the documents in respect of which a claim is made. One of the columns in that document is headed “Privilege claimed”, under which are the following abbreviations:

1. “LPP” - meaning that the claim is one of client legal privilege pursuant to Part 3.10 of the Evidence Act 1995 (NSW) (the Act);

2. “PC” - meaning that the claim is based on a professional confidential relationship pursuant to Part 3.10 of the Act; and

3. “PI” - meaning that the claim is based on public interest pursuant to Part 3.10 of the Act.

66. Leaving aside the question of whether the Act applies at all,[16] the plaintiff’s affidavit is largely, if not completely, bereft of any admissible evidence which establishes a proper basis for his claim. His affidavit says nothing about (for example) the nature of the document in each case, or the reasons why it was brought into existence. In this respect, the plaintiff has stated the following: [17]

Due to the confidential nature of the material in annexure A, I have not set out the grounds for making the claim(s) referred to in the annexed table, however I am able to do so at a hearing where the appropriate protective orders can be put in place.

16. See the discussion at [71]-[73] below.

17. At para. 4.

67. I should make it clear that when I made orders for the parties to file the necessary evidentiary and related material to enable me to determine the plaintiff’s claim, the plaintiff was represented by counsel. It was never envisaged, at any time, that there would be some form of confidential hearing of the kind to which the plaintiff has referred in his affidavit. Such a course was never suggested by counsel who appeared on the plaintiff’s behalf. All parties proceeded on the clear and unequivocal understanding that I would view the documents by reference to the evidentiary material and submissions filed, and proceed to determine the claim in each case.

68. Annexure A to the submissions filed by the plaintiff is a second spreadsheet which incorporates a column headed “Explanation – basis for claim”. That column sets out, in the case of each document, a number of assertions as to the nature of the particular document and the circumstances in which it is said to have been brought into existence. Those assertions do not, on any view, constitute admissible evidence of the kind to which Brereton J referred as being fundamentally necessary in order to support a claim for privilege. If the plaintiff wished to make those assertions and have them taken into account in support of his claim, he should have done so on oath in his affidavit. Such assertions are deserving of no weight whatsoever and I have not had regard to them.

69. All of these difficulties are compounded by the fact that the submissions filed on behalf of the plaintiff are largely generic in nature. They completely fail to address, on an individual basis and by reference to any admissible evidence, the fundamental issue of why it is said that a claim for privilege attaches to each document.

70. It follows that the plaintiff has done little more than assert a claim. He has adduced virtually no admissible evidence in support of it. In the absence of such evidence, I am left to determine the claim based upon an assessment of each individual document, and any available inferences which can be drawn. I accept the submission of counsel for the defendant that in these circumstances, unless clear inferences can be drawn from a particular document, I should be slow to acquiesce to any claim which has been made.

The applicable law

71. The submissions filed on behalf of the plaintiff proceed on the assumption that any claim for privilege should be determined by reference to the Act. In terms of the claims for client legal privilege, it is the plaintiff’s position that any claim should be determined by reference to ss 118 and 119. The plaintiff also asserts, in some instances, that documents are privileged on the basis of a necessity to prevent disclosure of a protected confidence within the meaning of s 126B. In other instances he asserts that documents are privileged having regard to s 130 of the Act because they relate to matters of State. These various provisions of the Act make reference to evidence being “adduced”. However, their scope is extended by the provisions of s 131A of the Act which is in the following terms:

Application of Part to preliminary proceedings of courts

131A (1) If:

(a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and

(b) the person objects to giving that information or providing that document,

the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.

(2) In this section,

"disclosure requirement" means a process or order of a court that requires the disclosure of information or a document and includes the following:

(a) a summons or subpoena to produce documents or give evidence,

(b) pre-trial discovery,

(c) non-party discovery,

(d) interrogatories,

(e) a notice to produce,

(f) a request to produce a document under Division 1 of Part 4.6.

72. The documents which are the subject of the plaintiff’s claim were not obtained as a consequence of the operation of a “disclosure requirement” of a kind contemplated by s 131A of the Act. They were seized as a consequence of the execution of search warrants. In my view, it follows that the Act has no application. The plaintiff’s claim in each case must be determined according to common law principles. In the case of those documents in respect of which legal professional privilege is claimed, the plaintiff bears the onus of demonstrating that a communication was made, or a document was prepared, for the dominant purpose of providing legal advice or legal services. [18] In the case of documents said to be privileged on a public interest basis, the plaintiff must establish the disclosure would be injurious to State interest. [19] I should state however, that having viewed all of the documents, the proposition that the disclosure of any one of them would be injurious to State interest cannot be made out.

    18. Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49 at [62] per Gleeson CJ, Gaudron and Gummow JJ; at [167] per Callinan J.

    19. 14.

73. With these principles in mind, I turn to the documents, and the claims which have been made. I have done so by reference to the numbering adopted in Annexure “A” to the plaintiff’s affidavit.

Document 1 and 19 – File notes

74. Documents 1 and 19 are copies of a handwritten file note. I am prepared to infer from the face of the document that it was created for the dominant purpose of the provision of legal advice or legal services. In this regard I note, in particular, that the document contains references to the names of counsel practising at the NSW Bar.

Documents 2, 3, 4, 5, 6, 8, 9, 10, 12, 13 and 36 – Draft chronologies

75. These documents are various drafts of a chronology. There is not a scintilla of evidence which might establish the circumstances in which, or the purpose for which, they were brought into existence. I am not persuaded that any privilege attaches to them.

Documents 7, 54, 55 and 56 – Telephone conversations with “Booji”

76. Although “Booji” is not identified on the evidence it is apparent from these conversations that she was an employee of the plaintiff. Issues concerning aspects of the plaintiff’s legal practice were discussed in these conversations but I am not persuaded that they are privileged. It is necessary to emphasise that simply because there may be a discussion about clients and cases (as occurred here) that does not lead to the proposition that those discussions were conducted for the relevant dominant purpose.

Documents 11 and 14 – Calls to BM

77. Although BM is not directly identified on the evidence, I infer that it is a reference to Brad Mallinson who was a solicitor at the time. These calls were not answered and there was no communication. No privilege attaches to them.

Document 15 – File note

78. Document 15 is an undated file note which makes reference (inter alia) to “money for legal fees" and obtaining the “original brief". I am prepared to infer that the document was created for the dominant purpose of providing legal advice or legal services.

Documents 16, 40 and 45 – Calls from BM

79. In these calls the plaintiff and BM discuss their respective clients. There is nothing of a privileged nature in any of the conversations.

Document 17 – File note dated 14 January 2018

80. This document is a handwritten file note making reference to an unsuccessful bail application made in the Local Court. Following that reference, there are a number of entries which I infer constitute instructions.

Document 18 – File note dated 22 November 2017

81. This document is a file note. Given its contents, I infer that it was prepared in the course of perusing a brief of evidence for the dominant purpose of providing legal advice or legal services.

Document 20 – Screenshot of money transfer dated 28 May 2018

82. This document is a receipt for amount of $2,200.00 transferred from a “business trans acct” on 28 May 2018 for a sum of $2,200.00. There is nothing which indicates the precise purpose of the payment. I am not persuaded that any privilege attaches to it.

Documents 21 – 30 – Email correspondence to and from Martin Churchill

83. Mr Churchill was a solicitor. It is difficult in the absence of evidence to determine the purpose of these communications. There are references to clients and fees but I am unpersuaded that any privilege attaches to any of these communications.

Document 31 – Newspaper article dated 17 September 2018

84. This document is a copy of an internet article published in the Sunday Telegraph on 17 September 2018 headed “Murdered teen Brayden Dillon received menacing calls before execution". It is frankly absurd to suggest that the article could attract any form of privilege.

Documents 32 – 35 – Emails dated 21 May 2018 regarding legal visits

85. Each of these four documents is an email from the plaintiff to Corrective Services authorities seeking confirmation of dates upon which the plaintiff visited an inmate, Conrad Craig. There is nothing in terms of the documents which would support a claim for privilege.

Documents 37-39; 41-44; 57-61 – Calls to BM

86. There is no dialogue in any of these calls. No privilege attaches to them.

Documents 46 and 47 – Screenshots of money transfers dated 25 August 2016

87. The first of these documents relates to the sum of $4,000.00 transferred from a trust account to Kathryn Sebbens. The second is a duplicate of the first. Kathryn Sebbens is not identified on the evidence before me. There is no other evidence which explains the purpose of the transfer. I am unpersuaded that either document is privileged.

Documents 48 and 49 – Email exchanges with Counsel

88. There is an available inference from the content of these emails that they were generated for the purposes of the plaintiff obtaining legal advice for himself.

Document 50 – Excel spreadsheet of phone numbers

89. This document sets out the names of a number of persons with accompanying phone numbers. The persons named are not otherwise identified on the evidence. There is nothing on the face of the document which attracts any claim for privilege.

Documents 51 and 52 – Calls to phone retailers

90. In each of these conversations the plaintiff enquires as to the capability of the respective retailer to download messages from a Blackberry device. There is nothing which would suggest that the communications are privileged.

Document 53 – Call to Hilal re: BH

91. This call was made by the plaintiff to a person referred to as “Hilal” who is not otherwise identified. It is impossible in the absence of any further evidence to determine the context of what is discussed. I am not persuaded that the communication is privileged.

Documents 62 and 63 – Calls to Julian Balloott on 5 July 2017 and 20 July 2017

92. Julian Balloot is not identified on the evidence. The discussions between the plaintiff and Mr Balloot appear to be about matters within the plaintiff’s legal practice, but not of a kind which attracts privilege.

Documents 64 and 65 – Calls to and from Navid Sobhi on 21 July 2017 and 7 September 2017

93. Navid Sobhi is not identified on the evidence although I infer from the conversations that he works in the IT industry. The conversations between the plaintiff and Mr Sobhi discuss matters of that nature. There is nothing in either conversation which attracts privilege.

Document 66 – Call to Peter Lange on 26 April 2017

94. Mr Lange is a Barrister. The plaintiff’s discussions with him relate to various legal proceedings. Such discussions are in the nature of a narrative, and are not of a kind which attract legal professional privilege.

Document 67 – Call to Samantha Lewis on 7 September 2017

95. Samantha Lewis is not identified on the evidence. Notwithstanding the fact that the discussion appears to relate to affidavits and the issue of a certificate pursuant to s 128 of the Act, I am unpersuaded in the absence of further evidence that it is a discussion which was conducted for the relevant dominant purpose.

Document 68 – Contacts list

96. This document is a list of contacts which have been extracted and downloaded from a mobile telephone. There is no evidence before me as to the identity of the owner of that telephone but even if I were to accept that it is the plaintiff, there is nothing to suggest that the document is privileged.

Documents 69 to 88 – Newspaper article dated 7 October 2018 paragraph

97. This document is of the same nature as document 31. For the reasons previously advanced, any suggestion that it is privileged is untenable.

Documents 89 – 104 – Calendar entries, call logs, cell tower records, contact lists, GPS reports, SMS messages, installed applications and other notes

98. All of these documents represent hard copies of data extracted and downloaded from a mobile telephone. There is no evidence to establish the identity of the owner of that telephone. Even if I were to infer that it was the plaintiff, there is nothing in any of this material which would attract any claim for privilege.

Document 105 – Payment records

99. To the extent that they are legible, these documents appear to relate to payments made on (inter alia) credit cards held by the plaintiff. In the absence of evidence as to the purpose of the payments, I am unpersuaded that they are of a privileged nature.

Document 106 – Call from Amal Abbas on 8 September 2017

100. Amal Abbas is not identified on the evidence. The matters discussed in this call are matters personal to the plaintiff and are not privileged.

Document 107 – Call from Greg James QC on 14 September 2017

101. The matters discussed in this call are personal to the plaintiff and are not privileged.

Document 108 – Call from Hiba Abbas on 4 October 2017

102. Hiba Abbas is not identified on the evidence. The matters discussed in this call are matters personal to the plaintiff which are not privileged.

Document 109 – Call from Michael Ayache on 16 November 2017

103. I am aware from his appearances before me in these proceedings that Mr Ayache is a solicitor who has, from time to time, acted for the plaintiff. The recording of this conversation is such that the only voice that can be heard is that of Mr Ayache. The other party to the conversation cannot be identified. Even if I were to assume that it is the plaintiff, the context (and for that matter, the subject) of the conversation cannot be determined. In the absence of any further evidence, I am not persuaded that the communication is privileged.

Document 110 – Call from Greg James QC on 8 December 2017

104. In this conversation there are discussions relating to the preparation of a particular matter in which I infer that the plaintiff was acting for an accused person and had briefed Mr James QC to appear on that person's behalf. The matters discussed include matters relating to the preparation of the case. In those circumstances I am satisfied that the claim for privilege has been made out.

Document 111 – Call to Martin Churchill on 21 December 2017

105. Parts of this call are distorted but the subject matter of the conversation includes arranging a meeting. There is nothing in the conversation which supports a claim for privilege.

Document 112 – Call to Amal Abbas on 21 December 2007

106. Amal Abbas is not identified on the evidence. The content of the conversation appears to be generally social in nature and is not privileged.

Document 113 – Call to Martin Churchill on 22 December 2017

107. In this conversation there is general discussion about various cases. However, that discussion is in the nature of a narrative and is not, in my view, a discussion in which the parties engaged for the relevant dominant purpose.

Document 114 – Call from Evan James on 17 January 2018

108. In this conversation the plaintiff and Mr James (who is a Barrister) discussed relisting a matter, beyond which the conversation is social in nature. To the extent that the relisting of the matter is discussed I am not persuaded that it was conducted for the relevant dominant purpose.

Documents 115 – 116 – Calls to Hussein Mustapha on 28 January 2018

109. Hussein Mustapha is not identified on the evidence. Parts of these conversations appear to be in a foreign language and no translation has been provided. It is impossible to hear other parts of the conversations. In the absence of further evidence I am not persuaded that either call attracts privilege.

Document 117 – Call from Danielle Fox on 1 February 2018

110. Danielle Fox is not identified on the evidence. There is a discussion about a possible meeting between the plaintiff and Ms Fox but the conversation does not go beyond those discussions. There is no aspect of the discussions which attracts a claim for privilege.

Document 118 – Call from “Supermax” on 3 February 2018

111. Only one voice can be heard in this conversation. The voice is largely inaudible. In the absence of further evidence I am not persuaded that the conversation is privileged.

ORDERS

112. I make the following orders:

1. The application made by Bassam Hamzy for an adjournment of the proceedings is refused.

2. The application made by Bassam Hamzy that I recuse myself from the further hearing of the proceedings is refused.

3. The proceedings brought by Bassam Hamzy are dismissed.

4. The question of costs in respect of the proceedings brought by Bassam Hamzy is reserved.

5. I direct the Registrar to forward a copy of this judgment to Bassam Hamzy, MIN 288121, High Risk Management Correctional Centre, Maud Street, Goulburn NSW 2580.

6. The Commissioner of Police is restrained from further accessing or viewing, copying, disseminating or relying in any proceedings upon any of the following material seized pursuant to search warrants numbered 18/2461, 18/2460 and 18/2491:

1. The documents numbered 1, 15, 17, 18, 19, 48, 49 and 110 in Annexure A to the Affidavit of Ali Abbas of 4 October 2019.

7. The proceedings brought by Ali Abbas are otherwise dismissed.

8. The costs of the proceedings brought by Ali Abbas are reserved.

*********

Endnotes

Amendments

03 January 2020 - Correction to cover sheet (6)(i).

Decision last updated: 03 January 2020