Hamzy v NSW Commissioner of Police

[2020] NSWCA 184

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Hamzy v NSW Commissioner of Police [2020] NSWCA 184

Hearing dates:

6 August 2020

Date of orders:

20 August 2020

Decision date:

20 August 2020

Before:

Bell P at [1]; Emmett AJA at [51]

Decision:

1.        Application for leave to appeal refused with costs.

2.        Direct the Registrar to forward a copy of this judgment to Bassam Hamzy, High Risk Management Correctional Centre, Maud Street, Goulburn NSW 2580.

Catchwords:

CIVIL PROCEDURE – leave to appeal – where refusal to grant adjournment in order to allow prisoner to review potentially privileged communications – where court orders for filing of submissions and evidence breached – where judge given impression that submissions in support of claim for privilege well advanced but submissions were never filed – where judge may have assumed that prisoner had reviewed materials – where this assumption was apparently incorrect and prisoner had filed material to this effect – where potentially privileged material had entered public domain as a result of dismissal of application following refusal of adjournment – where no utility in granting leave in light of this matter.

CIVIL PROCEDURE – refusal to recuse for alleged bias – no issue or error of principle.

LEGAL PROFESSIONAL PRIVILEGE – where potentially privileged documents enter the public domain as a result or following refusal of adjournment application and dismissal of claim – no utility in a grant of leave to appeal.

Legislation Cited:

Legal Aid Commission Act 1979 (NSW) s 57

Uniform Civil Procedure Rules 2005 (NSW) r 2.1

Cases Cited:

Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46

Federal Commissioner of Taxation v Donoghue (2015) 237 FCR 316; [2015] FCAFC 183

Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia (2019) 265 CLR 646; [2019] HCA 26

Jaycar Pty Limited v Lombardo [2011] NSWCA 284

PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26

Category:

Principal judgment

Parties:

Bassam Hamzy (Applicant)
NSW Commissioner of Police (Respondent)

Representation:

Counsel:

N D Oreb (Respondent)

Solicitors:

Bassam Hamzy (Applicant) (Self Represented)
Makinson d’Apice Lawyers (Respondent)

File Number(s):

2020/000132645

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2019] NSWSC 1841

Date of Decision:

20 December 2019

Before:

Bellew J

File Number(s):

2018/000376397

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Applicant, Mr Bassam Hamzy (Mr Hamzy) was joined as a plaintiff to proceedings brought by a former solicitor of the Court, Mr Ali Abbas (Mr Abbas) against the NSW Commissioner of Police (the Commissioner). In those proceedings, Mr Abbas sought orders that the Commissioner be restrained from further accessing or viewing, copying, disseminating or relying in any proceedings upon certain material that had been seized pursuant to various search warrants. Mr Hamzy had been joined as a plaintiff to the proceedings in order to facilitate a potential claim for legal professional privilege that he may have had in respect of some of the material that had been seized, and which was the subject of Mr Abbas’ application.

At all material times, Mr Hamzy had been incarcerated. Up until about 8 December 2019, he was represented by a solicitor, Ms Burrows, and on one occasion at a directions hearing by counsel, Mr Anderson.

Notwithstanding directions having been made on 1 November 2019 for evidence and outline of submissions in support of any claim for legal professional privilege to be filed by 25 November 2019, no evidence or submissions in support of a claim for legal professional privilege by Mr Hamzy were ever filed.

On 9 December 2019, the primary judge’s Associate received correspondence and submissions from Mr Hamzy, noting that he was now self-represented, and was seeking to have the matter listed so that he could make two applications. The first application was for an adjournment, based on s 57 of the Legal Commission Act 1979 (NSW) pending an appeal from a refusal to grant legal aid (the adjournment application). The second application was that the primary judge recuse himself for alleged bias (the recusal application).

Accompanying his correspondence were submissions prepared by Mr Hamzy dated 8 December 2019, in which he noted that he had still not received a USB stick that had been handed to his solicitor by the Commissioner at a directions hearing on 1 November 2019 containing potentially privileged communications. The primary judge had noted on 1 November 2019 that it was “obviously necessary” for Mr Hamzy to view the material on the USB stick, and to provide any necessary instructions to his lawyers.

The primary judge refused Mr Hamzy’s application for an adjournment, holding that the appeal from the refusal to grant legal aid was not bona fide as required under s 57 of the Legal Aid Commission Act. Further, his Honour noted that Mr Hamzy had been represented by a lawyer in the proceedings for more than a month, and had ample time to comply with the orders made by the Court for the filing and service of material. His Honour had been led to believe by Mr Hamzy’s legal representatives that submissions and evidence in relation to the claim for privilege would be shortly forthcoming, and thus must have believed that Mr Hamzy had received, reviewed and had an opportunity to give instructions in relation to any potential claim for privilege. It was not until Mr Hamzy’s communication with the Court on 8 December 2019 that there was any suggestion that this was not the case.

The primary judge also refused to recuse himself for bias.

Following the delivery of the primary judgment on 20 December 2019, on 13 January 2020, the Police served all of the “unrestrained material” on the legal representatives of some six separately represented persons, and on the Office of the Director of Public Prosecutions. The consequence of this was that the unrestrained material, a subset of which was potentially subject to a claim for legal professional privilege by Mr Hamzy, had lost any confidentiality by reason of its dissemination to third parties.

The Court held (Bell P, Emmett AJA agreeing), dismissing the application for leave to appeal with costs:

1. In relation to the primary judge’s failure to grant an adjournment and his Honour’s consequent dismissal of proceedings, a grant of leave to appeal would wholly lack utility because the relevant material potentially the subject of a valid claim for legal professional privilege had been in the public domain for over six months: [44] (Bell P); [53] (Emmett AJA).

Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia (2019) 265 CLR 646; [2019] HCA 26, considered and applied.

2. In relation to the primary’s judge refusal to recuse himself for bias, Mr Hamzy failed to demonstrate that there was any error of principle or injustice in the primary judge’s reasoning with respect to this aspect of the application for leave to appeal. A grant of leave to appeal on this basis would also lack utility: [45], [47] (Bell P); [54] (Emmett AJA).

Judgment

1. BELL P: This is an application by Mr Bassam Hamzy (Mr Hamzy) for leave to appeal from a decision of Bellew J (the primary judge) delivered on 20 December 2019: Abbas v NSW Commissioner of Police; Hamzy v NSW Commissioner of Police [2019] NSWSC 1841. In that decision, the primary judge relevantly made 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.”

2. Mr Hamzy had been joined as a plaintiff to proceedings brought by a former solicitor of the Court, Mr Ali Abbas (Mr Abbas) against the NSW Commissioner of Police (the Commissioner) in which Mr Abbas sought orders that the Commissioner be restrained from further accessing or viewing, copying, disseminating or relying in any proceedings upon certain material that had been seized pursuant to various search warrants.

3. Mr Hamzy was joined as a plaintiff to the proceedings in order to facilitate a potential claim for legal professional privilege that he may have had in respect of some of the material that had been seized and that was the subject of Mr Abbas’ application.

4. At all material times Mr Hamzy has been incarcerated. Up until about 8 December 2019, he was represented by a solicitor, Ms Zali Burrows (Ms Burrows) and, on one occasion, namely at a directions hearing on 6 December 2019, by Mr Anderson of counsel who was evidently retained on short notice on that occasion by Ms Burrows.

5. Notwithstanding directions having been made on 1 November 2019 for evidence and an outline of submissions in support of any claim for legal professional privilege to be filed by 25 November 2019 (a time period Ms Burrows had indicated to the Court was manageable) and subsequent short extensions having been granted, no evidence or submissions in support of a claim for legal professional privilege by Mr Hamzy were ever filed.

6. On 9 December 2019, the primary judge’s Associate received an email from an Intelligence Officer at the High Risk Management Correctional Centre where Mr Hamzy was being held which enclosed correspondence and submissions from Mr Hamzy noting that he was “now self represented” and was seeking to have the matter listed so that he could make two applications.

7. The first application was for an adjournment based on s 57 of the Legal Aid Commission Act 1979 (NSW) (the adjournment application). That section relevantly provides:

“57    Adjournment of certain proceedings

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.”

8. The second application referred to in Mr Hamzy’s correspondence was that the primary judge recuse himself for bias (the recusal application).

9. In the course of Mr Hamzy’s submissions dated 8 December 2019 accompanying his correspondence, under the heading “Current position”, Mr Hamzy said:

“Current position

4.   I still have not rec[ei]ved my laptop with the material from corrective services.

5.   I am now aware it contains MP4 files and a Trust Document of Kathreen Sebbens.

6.   I have waived my privil[e]ge on the Kathreen Sebbens trust rec[e]ipt.

7.   I maintain my privil[e]ge on the MP4 files & will also challenge the validity of the warr[a]nt authorising the Telephone Intercepts.”

10. The background to the reference to “my laptop with the material from corrective services” referred to in this passage from Mr Hamzy’s submissions was that, on 1 November 2019, when the matter had been before the primary judge for directions, the legal representatives of the Commissioner had provided Ms Burrows with a USB stick with files downloaded from the documents which had been seized.

11. The USB stick contained materials, including audio files, of conversations between Mr Abbas and Mr Hamzy, which Mr Abbas had indicated were potentially privileged and may be subject to a claim for legal professional privilege by Mr Hamzy. In order for Mr Hamzy to review and listen to the material contained on the USB stick, it was necessary for it to be uploaded on to his laptop which needed to be sent from Goulburn to Sydney by the Department of Corrective Services, and then for the laptop to be returned to Mr Hamzy in the correctional facility in Goulburn.

12. At the directions hearing on 1 November 2019, there was discussion as to how long this process would take. The following exchange occurred between Ms Burrows and the primary judge:

“HIS HONOUR:   What orders are you asking me to make, Ms Burrows?

BURROWS:        Firstly I would ask if you could make a recommendation to Corrective Services to facilitate Mr Hamzy's laptop to Sydney quite quickly so I can get this USB uploaded.

HIS HONOUR:    You know and I know that that's not going to happen. You know and I know that the logistical problems of somehow getting an inmate's laptop from Goulburn SuperMax to Sydney for the purposes of having something uploaded and returned is going to be difficult, if not impossible. Why would it not be sufficient for your purposes, if I were minded to do so, for me to make a recommendation that every effort be made to allow this material to be uploaded so that he can examine it.

BURROWS:        Your Honour, in my experience they do listen to your recommendations and follow them promptly.

HIS HONOUR:    I am surprised at that. I will make it …

…

HIS HONOUR:   … How long do you want for the purpose of examining any material or your client examining any material that's on this USB stick and obtaining instructions?

BURROWS:        Your Honour, in being practical, it could be one to two weeks for the laptop to get to Sydney and then returned back. The upload process is pretty quick and then one week for Mr Hamzy to review the material carefully.

HIS HONOUR:    I should make it clear, I am not going to make a recommendation that a laptop be brought to Sydney. I am prepared to make a recommendation, unless Mr Regener has any objection to it, that Correctives Services authorities take every step to expeditiously allow this material to be uploaded. Then it will be up to you and them to negotiate the quickest way of acting on that recommendation if they choose to act on it.

BURROWS:        Unless - they might make an exception of me taking the USB to Goulburn and then we can upload it there and that might save some time.

HIS HONOUR:    They might. Assuming that is done, but what is the timetable I have set. I allowed two weeks.

REGENER:         11 November for filing of submissions by Mr Abbas and I think 25 November for the filing of submissions by the Commissioner and judgment reserved which is eminently sensible.

HIS HONOUR:    Are you going to be in a position do anything within that timetable?

BURROWS:        I think the 25th of November could be achievable. That's another month away.” (emphasis added).

13. The primary judge also observed at the end of the directions hearing of 1 November 2019 that “it is obviously necessary for Mr Hamzy to view the material which is on that USB stick and provide any necessary instructions to his lawyers”.

Disposition of the applications

14. The primary judge dealt with Mr Hamzy’s applications for an adjournment and for disqualification for bias on the papers. At [35] of his reasons, the primary judge said that:

“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.”

15. It was open to the primary judge, notwithstanding Mr Hamzy’s request, not to relist the matter for oral argument, but to determine the informal applications which Mr Hamzy had foreshadowed on the papers given (a) the nature of the applications; and (b) the fact that, as his Honour recorded, lengthy submissions and supporting documents had been filed in support of them.

16. To do so was within the power of the court conferred by the Uniform Civil Procedure Rules 2005 (NSW) r 2.1, which provides that:

“[t]he court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings.”

17. No complaint may be made about the mode in which the applications were dealt with.

The adjournment application – background and consideration

18. The primary judge’s reasoning in relation to the adjournment application was set out at [36]–[56] of the primary judgment. In short, his Honour held that, although accepting for the purposes of the adjournment application that an appeal against the refusal to grant legal aid had been lodged, s 57 of the Legal Aid Commission Act was not engaged because his Honour did not think that the appeal had been made bona fide and that the adjournment that that section otherwise mandated was not required in the circumstances of this case.

19. His Honour also pointed to discretionary reasons against the grant of an adjournment. Most pertinently for present purposes was his Honour’s observation at [51] that:

“…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.”

20. His Honour was correct to observe that he had been led to believe by representations from Ms Burrows and impliedly by Mr Anderson, in the context of seeking extensions of time for the service of material, that the submissions and any evidence in relation to the claim for privilege would be shortly forthcoming. This may be seen in the following narrative of communications taken from [14]-[26] of the primary judge’s reasons:

“[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:

‘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.’” (footnote omitted).

21. It may be observed that none of the communications referred to in these passages suggested that Mr Hamzy had not received the uploaded USB file with the materials to review and give instructions in relation to, at the time the communications were made. This was a matter that the primary judge had observed on 1 November 2019 “obviously” needed to occur: see [13] above.

22. Rather, the exchanges with Ms Burrows and Mr Anderson, especially that noted in [24] of his Honour’s reasons extracted at [20] above, plainly led the primary judge to believe that preparation of material in support of a privilege claim was well advanced. Implicit in such a belief must have been an understanding that Mr Hamzy had received, reviewed and had an opportunity to give instructions in relation to any potential claim for privilege.

23. It was not until Mr Hamzy’s communication with the Court on 8 December 2019 referred to at [9] above that there was any suggestion that this was not the case.

24. At [39] of his reasons, the primary judge said, in the course of his consideration of the adjournment application, that:

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

(i)   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’;

(ii)   Ms Burrows ‘then rebooks (sic) a visit on 4+5+6 of December’;

(iii)   he ‘receive (sic) (his) visit from Ms Burrows on 5 December 2019[’];

(iv)   he was informed by Ms Burrows on 6 December 2019 that she would ‘now withdraw from my matter because Justice Bellew is refe[r]ring (sic) her to the Legal Services Commissioner”.

25. The summary did not refer to the matters put by Mr Hamzy which have been set out at [9] above and, in particular, that Mr Hamzy had still not received his laptop “with the material” i.e. the potentially privileged material, from the Corrective Services NSW. Mr Hamzy made the same point in a hand written affidavit dated 11 December 2019 which was also before the primary judge and which was in these terms:

“I swear everything I say in this stat[e]ment is true.

Ms Burrows has delivered the USB given by the CoP solicitor to DCS for uploading to a computer in early November.

As of 11/12/19 I have not rec[e]ived the computer or material.

As of 11/12/19 I still have not heard the material seized.

I have appealed to Legal Aid for their refusal to grant me legal aid in these proceedings.

I have appealed to the Commissioner of Corrective Services to grant me the facilities to fund these proceedings myself.

All my emailing is subject to approval & discretion of DCS.”

26. It may be that Mr Hamzy’s claim not to have received the uploaded computer or the potentially privileged material was overlooked or not fully appreciated given the earlier communications to the Court by Mr Hamzy’s lawyers and the detailed handwritten submissions Mr Hamzy made which did not give particular prominence to his non-receipt of the material.

27. The primary judge did refer at [44] of his reasons to a copy of an email sent by Ms Burrows to Corrective Services NSW on 5 December 2019 in these terms:

“Dear Officer,

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

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

Yours faithfully,

Zali Burrows

Lawyer”

28. At [55] of his reasons, referring to this email, the primary judge said:

“Thirdly, it is entirely unclear whether Ms Burrows’ email of 5 December to Corrective Services 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.” (footnote omitted).

29. It is, at face value, a little difficult to know why or how Ms Burrows, still less Mr Hamzy, could have been expected to explain the reasons for the delay in the uploading of material given that the timing of the movement of the computer, the uploading of the material and the return of the laptop were all in and under the control of Corrective Services NSW. That is perhaps all the more so given the exchange which had occurred between Ms Burrows and the primary judge in relation to logistical arrangements, and the likely difficulty and delay in uploading the material at the directions hearing on 1 November 2019: see [13] above.

30. It may also be thought, with great respect to the primary judge, that in light of what had passed at the directions hearing of 1 November 2019, his Honour’s statement at [55] that “it is entirely unclear whether Ms Burrows’ email of 5 December 2019 to Corrective Services relates to these proceedings” was not entirely apposite. Whilst the email may potentially have related to some other set of proceedings, the timing strongly suggested that it related to the proceedings concerning the claim for privilege.

31. Before turning to a consideration of Mr Hamzy’s challenge to the decision to refuse an adjournment, it is necessary to note that, as a consequence of the refusal to grant that application and the refusal to recuse, the primary judge went on to dismiss Mr Hamzy’s proceedings given that no evidence or submissions had been filed in support of any claim for privilege. The primary judge made certain orders on Mr Abbas’ application restraining the Commissioner from further accessing, viewing, copying, disseminating or relying in any proceedings upon certain material, but that material was separate to and did not include that which had been identified by Mr Abbas as material in relation to which Mr Hamzy may have a potential claim for legal professional privilege.

32. In an affidavit of Detective Senior Constable Hayton sworn 27 July 2020, the Court was informed that, on 13 January 2020, the police had served all of the “unrestrained material” (that is to say, the material that had been seized but had not been made the subject of any restraining orders by the primary judge) on the legal representatives of some six separately represented persons who had been charged with offences in connection with the murder of one Brayden Dillon. The material had also been served on the Office of the Director of Public Prosecutions.

33. The consequence of this evidence was that the unrestrained material, a subset of which was potentially subject to a claim for legal professional privilege by Mr Hamzy, had lost any confidentiality by reason of its dissemination to third parties. In these circumstances, no equity existed, and no cause of action lay as a result of which that material could be recovered or its future use restrained. That this was the legal consequence of the dissemination of the material is made plain by the High Court’s recent decision in Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia (2019) 265 CLR 646; [2019] HCA 26 (Glencore); see also Federal Commissioner of Taxation v Donoghue (2015) 237 FCR 316; [2015] FCAFC 183 at [57].

34. In Glencore at [12], the Court relevantly observed that it was an “incorrect premise” that “legal professional privilege is a legal right which is capable of being enforced, which is to say that it may found a cause of action. The privilege is only an immunity from the exercise of powers which would otherwise compel the disclosure of privileged communications” (footnote omitted). Glencore’s argument was dismissed as one that sought to “to transform the nature of the privilege from an immunity into an ill-defined cause of action which may be brought against anyone with respect to documents which may be in the public domain”: at [13]. The result of the demurrer was that, once in the public domain, no remedy was available to restrain the use of the material.

35. Ms Oreb of counsel, who appeared on behalf of the Commissioner on Mr Hamzy’s application, made reference to Glencore in aid of a submission (in relation to the entirety of the leave application) that, whatever other merits the application may have, a grant of leave would wholly lack utility because the relevant material potentially the subject of a valid claim for legal professional privilege had been in the public domain for over 6 months, and there was, in light of Glencore, nothing that could be done to reverse this circumstance cf. the position in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46, where the inadvertently disclosed privileged material was still in the possession of the legal representatives for other parties to the litigation who could, as a matter of case management, be ordered to return the documents to the solicitors for the party responsible for the inadvertent disclosure.

36. Mr Hamzy candidly accepted the force of the utility argument made by Ms Oreb. That is to say, he accepted, consistent with Glencore, that any documents to which legal professional privilege may have attached had lost their confidentiality and, accordingly, any application made by Mr Hamzy to restrain their use or further dissemination would fail.

37. Mr Hamzy’s real grievance seemed to lie with the fact that he never received the MP4 file to listen to and review in order to give instructions as to privilege, even though his solicitor, Ms Burrows, had had this material since 1 November 2019.

38. A decision whether or not to grant an adjournment application is, perhaps par excellence, a decision on a matter of practice and procedure generally involving discretionary considerations. As Simpson AJA and I observed in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [5], “a ‘heavy burden’ lies on an applicant seeking leave to appeal from a discretionary judgment on a question of practice or procedure”, and an application for leave to appeal will rarely be granted in such circumstances.

39. It is also well established that leave applications in this Court attract a general obligation on the applicant for leave to establish that there is an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].

40. Were it not for the lack of utility pointed out by Ms Oreb and accepted by Mr Hamzy, and notwithstanding the heavy burden or high hurdle that needs to be overcome to secure a grant of leave to appeal on a matter of practice and procedure, I would have been inclined to grant leave to appeal in relation to the challenge to the adjournment application.

41. Given the status of legal professional privilege, described as fundamental to our legal system (Baker v Campbell (1983) 153 CLR 52 at 64, 106, 113 and 122; [1983] HCA 39) and the importance of which was acknowledged in Glencore at [21], and given the practical necessity for Mr Hamzy to have reviewed the USB materials, as recognised by the primary judge on 1 November 2019 (see [13] above), there was a powerful case for an adjournment if Mr Hamzy had not received the materials to review and provide instructions or made submissions in light of that review.

42. It is understandable how the primary judge may have reached or at least been influenced in reaching his decision to refuse the adjournment in light of the representations which had been made to him regarding the imminence of the filing of evidence and submissions in support of any claim. His Honour almost certainly made the not unreasonable assumption, based on these representations, that Mr Hamzy had had an opportunity to review the material (see [21]-[22] above). However, if it be the case, as Mr Hamzy submitted on at least two occasions prior to the adjournment being refused, that the uploaded materials had not in fact been received by him for review because the material had not been provided to him by Corrective Services NSW, that was a highly material matter and not his fault.

43. Further, as I have observed at [29] above, the delay of Corrective Services NSW in delivering that material was not a matter for Mr Hamzy to explain to the Court.

44. It is unfortunate that, in her communications with the Court in early December 2019, assuming she knew it to be the case, Ms Burrows did not make it plain to the Court that Mr Hamzy had not himself received the material for review and instructions at that time. In all of the circumstances, however, given the accepted lack of utility of leave being granted in light of the dissemination of the potentially privileged material, leave to appeal in relation to the primary judge’s failure to grant an adjournment and his Honour’s consequent dismissal of proceedings must be refused.

Recusal application

45. The same consequence must follow in relation to the application for leave to appeal in relation to the primary judge’s refusal to recuse himself for apprehended or actual bias. On that issue, however, I should make it plain that I would not have granted leave to appeal, even if there were otherwise practical utility in taking that course.

46. The primary judge’s reasoning in relation to recusal was set out at [57]–[61] as follows:

“[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.

[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. In the circumstances, and on the basis of the matters raised, that test is not met.

[61]   Accordingly, the application that I recuse myself on the grounds of apprehended bias is refused.” (footnotes omitted).

47. The primary judge’s reasoning is cogent and persuasive, and discloses no error of principle or injustice.

A final issue

48. For completeness, I should also note a further complaint raised by Mr Hamzy in his written submissions and supplementary submissions which have been filed in support of his application for leave, and which the Court has considered. He complains that he was not notified that the judgment was being delivered and thus did not have an opportunity to attend (presumably remotely) the handing down of the judgment. There is, in my opinion, no merit in this point.

49. Nothing relevantly occurred on 20 December 2019 when the judgment was handed down, other than the making of orders from which Mr Hamzy has sought leave to appeal. The question of costs was reserved and there was no occasion for any further argument. Moreover, by Order 5 (see [1] above), the primary judge directed the Registrar to forward a copy of the judgment to Mr Hamzy at the High Risk Management Correctional Centre. This direction was complied with.

50. For all of the above reasons, the application for leave to appeal is dismissed with costs. I will also direct the Registrar to forward a copy of this judgment to Bassam Hamzy, High Risk Management Correctional Centre, Maud Street, Goulburn NSW 2580.

51. EMMETT AJA: Mr Bassam Hamzy seeks leave to appeal from orders made by a Judge of the Common Law Division on 20 December 2019. The substance of the orders is that his Honour dismissed a claim to legal professional privilege in respect of materials seized by the police from Mr Ali Abbas. His Honour refused an adjournment sought by Mr Hamzy to enable him to examine the materials in order to make submissions as to whether they were subject to legal professional privilege.

52. The procedure adopted before the primary charge was unusual in so far as Mr Hamzy was joined as a plaintiff in proceedings brought by Mr Abbas against the Commissioner of Police seeking orders that the Commissioner be restrained from dealing with the material in various ways. Mr Hamzy was represented at certain stages in the proceedings by a solicitor whose conduct was somewhat less than perfect.

53. I have had the advantage of reading in draft form the proposed reasons of the President for concluding that leave to appeal should be refused. I would have been disposed to grant leave to appeal in relation to Mr Hamzy’s challenge to the refusal of an adjournment by the primary judge. However, I agree with the President that leave must be refused in circumstances where Mr Hamzy accepted that there was no utility in granting leave to appeal since all the material has now been made available to other parties and can no longer be characterised as confidential. Accordingly, I agree with the reasons proposed by the President that leave to appeal in relation to the refusal of the primary judge to grant an adjournment must be refused.

54. I also agree with the President that there was no error on the part of the primary judge in rejecting Mr Hamzy’s application that he recuse himself.

55. Finally, I agree with the President’s observations that Mr Hamzy’s complaint about not being notified when judgment was given by the primary judge has no merit.

**********

Decision last updated: 20 August 2020