Hamzy v New South Wales Police Force

1. [1]

   HIS HONOUR: By way of a notice of motion dated 2 March 2025, the plaintiff seeks leave of the Court to institute civil proceedings pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (the Felons Act) (the plaintiff’s notice of motion). The plaintiff, Bassam Hamzy, is serving a lengthy sentence of imprisonment, presently in the Goulburn High Risk Management Correctional Centre, for serious indictable offences. Although not expressed as such, the application is that leave, if granted, be extended nunc pro tunc to overcome a disability that would otherwise render nugatory a statement of claim filed by the plaintiff on 27 November 2024.

2. [2]

   There is another notice of motion before the Court for hearing, filed on 19 March 2025 by the defendants named in the statement of claim seeking that it be either struck out or dismissed (the defendants’ notice of motion).

3. [3]

   The plaintiff, who is legally unrepresented, served a proposed amended statement of claim (PASOC) on the defendants on 21 July 2025, in which he purports to address shortcomings of the statement of claim that were identified to him by the defendants. The defendants oppose the granting of leave to the plaintiff to file the PASOC; alternatively, they maintain their same application in respect of it.

The parties’ filings

1. [4]

   The plaintiff’s handwritten statement of claim named seven members of his family as co-plaintiffs, who he claimed to represent. The statement of claim was dismissed by Faulkner J in respect of the seven co-plaintiffs on 9 May 2025. It is unnecessary for the purposes of the resolution of the two notices of motion before this Court to canvass that aspect of the procedural history of the matter.

2. [5]

   There are four defendants to the statement of claim: the New South Wales Police Force (the NSW Police Force) (the first defendant); the New South Wales Crime Commission (the NSWCC) (the second defendant); the Law Enforcement Conduct Commission (the LECC) (the third defendant); and the State of New South Wales (the State) (the fourth defendant).

3. [6]

   In his statement of claim, the plaintiff seeks two “declarations”; that the defendants failed in “their legal and Statutory Duty to protect life, Prevent Crime, Keep the peace and protect property”, as a result of which a brother of the plaintiff, Mejid Hamzy (the deceased), was murdered; “and a [declaration] that the defendants failed in their duty of Care and were negligent”. The plaintiff seeks an order for compensation in an amount to be determined. I understand that the deceased was shot and fatally wounded on 19 October 2020, although in the statement of claim and the PASOC the plaintiff refers to the death occurring in “late October 2021”.

4. [7]

   Under the heading “Pleadings and Particulars” and in a supporting affidavit the plaintiff stated that approximately 10 days prior to the killing, Grant Taylor of the Homicide Squad of the NSW Police Force received a phone call from Tim O’Connor of the NSWCC, who informed him that:

5. [8]

   It is further alleged that the defendants

6. [9]

   By a letter dated 28 February 2025, Stephanie Koch, who is the solicitor in the Crown Solicitor’s Office who has the carriage of the matter, wrote to the plaintiff, stating that she acted for “the defendants”. Amongst other matters, Ms Koch suggested that the appropriate defendant with respect to the allegations against members of the NSW Police Force is the State. She also alerted the plaintiff to s 4 of the Felons Act, which is in the following terms:

7. [10]

   I note that s 5 of the Felons Act provides:

8. [11]

   Ms Koch concluded by stating:

9. [12]

   On 15 February 2025, Ms Koch received a letter in reply from the plaintiff in which he stated that he believed that he did not require leave pursuant to the Felons Act to initiate proceedings but for an abundance of caution he would file the notice of motion that is presently before the Court.

10. [13]

    The plaintiff’s notice of motion seeks the following order:

11. [14]

    In a brief supporting “affidavit”, Mr Hamzy essentially re-stated the parts of the statement of claim that are summarised above at [6]–[8]. Although the document does not accord with the requirements of an affidavit, I grant leave for it to be read despite its irregularity in form, pursuant to r 35.1 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR). The plaintiff also served the defendants with written submissions on the issue of leave.

12. [15]

    It is open to the Court to grant leave pursuant to s 4 of the Felons Act nunc pro tunc: Jol v New South Wales (1998) 45 NSWLR 283.

13. [16]

    The defendants initially sought eight orders, some of which related to the issues since resolved by Faulkner J. The substantive orders sought that remain for consideration are that, pursuant to s 7(b) of the Felons Act, the defendants be granted leave to appear on the plaintiff’s application for leave to commence proceedings; pursuant to r 14.28(1)(a), (b) and/or (c) of the UCPR, the statement of claim be struck out; and further and/or in the alternative, the proceedings be dismissed pursuant to r 13.4(1)(a), (b) and/or (c) of the UCPR.

The hearing of the plaintiff’s and defendants’ notices of motion

1. [17]

   The hearing of the notices of motion commenced before me on 27 May 2025. Section 7 of the Felons Act provides that neither the applicant nor prospective defendants have a right of appearance on an application. In view of the novel nature of the alleged duty of care, I granted leave to the plaintiff and defendants to appear and make oral as well as written submissions on the question of whether leave should be granted to the plaintiff.

2. [18]

   The parties identified the material they relied upon and their written submissions, and the matter then moved to oral submissions. It became apparent that the plaintiff was labouring under considerable difficulty in putting his case as to the basis of liability that he alleged in the statement of claim and the obvious deficiencies in his pleadings, which doubtless reflected the few resources available to him, in particular, professional legal advice. With the benefit of such assistance, he may also have been able to redraft his statement of claim so as to correct fundamental strike-out points. In view of those concerns, I directed that the plaintiff be referred to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel, pursuant to r 7.36 of the UCPR. That determination, appropriately in my view, was not opposed by the defendants.

3. [19]

   The matter returned before me for mention on 23 July 2025. There had been no offer of assistance by a legal practitioner on the Pro Bono Panel. The plaintiff informed the Court that he wished to file the PASOC, which he had served on the defendants two days before. On the application of the defendants, I determined that the application for leave to file the PASOC be heard at the same time as the two part-heard notices of motion and set a timetable for further written submissions by the parties. The hearing resumed on 10 September 2025. Still no offer of assistance having been made to the plaintiff pursuant to the pro bono scheme, the hearing resumed.

4. [20]

   The parties relied upon the correspondence between them which had been filed pursuant to the timetable orders as, effectively, written submissions. It included a letter from the defendants to the plaintiff dated 31 July 2025 that highlighted alleged continuing deficiencies in the PASOC; a reply from the plaintiff dated 15 August 2025 and filed on 18 August 2025; and a further letter from the defendants to the plaintiff dated 27 August 2025 and filed on 28 August 2025. The defendants also noted that the plaintiff relied upon written submissions dated 19 March 2025 that had not been included in the material provided to the Court in the form of a court book.

5. [21]

   Mr Hamzy is the sole plaintiff in the PASOC. There are three defendants: the first being the State, the second the NSWCC and the third the LECC. By way of relief, it seeks 14 “declarations”, and damages in an amount to be determined by the Court, for injury occasioned to the plaintiff by the defendants’ “negligence, in relation to the preventable death of his brother which they knew about and could and should have prevented with a phone call to the deceased”. The nature of the injuries suffered are pleaded as:

6. [22]

   The declarations sought are as follows.

7. [23]

   The section in the PASOC titled “Pleadings and Particulars” commences with this sentence:

8. [24]

   That sentence is followed by three paragraphs which are an amplified version of the allegation in the statement of claim summarised at [7]–[8] above and then, effectively, a mixture of pleadings and submissions. As to what could be construed as pleadings, it is alleged that the defendants breached “a statutory and common law duty to prevent serious crime, injury and death” by not informing the deceased of the “impending threat/risk to his life” or taking action to prevent the crime of murder; that “[t]he risk of harm/ injury to [the deceased] was foreseen, real, probable and significant”. The plaintiff continued:

9. [25]

   In oral submissions on 23 July 2025 concerning the PASOC, the plaintiff clarified that: “Specifically, in this document, I’ve removed any liability damages sought from the [LECC].”

10. [26]

    In a section titled “Particulars”, the plaintiff essentially re-states earlier parts of the PASOC.

Whether leave is required pursuant to s 4 of the Felons Act

1. [27]

   The plaintiff’s position as to whether he requires leave to commence his civil action varied over the course of the hearing. Initially he maintained that leave was not required. However, in his PASOC he conceded that it is necessary for his action seeking damages for injury suffered by negligence, but maintained it is not required for the relief he is seeking by way of declarations. In his letter to the defendants dated 15 August 2025, he stated:

2. [28]

   The plaintiff’s reasoning for his proposition that declarations were not “civil proceedings” for the purposes of s 4 of the Felons Act was primarily based upon his understanding of what was said in Patsalis v State of New South Wales [2012] NSWCA 307 (“Patsalis”) by Basten JA, Allsop P and Sackville AJA agreeing, at [55].

3. [29]

   In Patsalis, the Court considered the meaning in s 4 of the Felons Act of “any civil proceedings”, in particular, whether that reference included proceedings by way of judicial review in the supervisory jurisdiction of the Supreme Court. The plaintiff, who was in custody following his conviction for a serious indictable offence, sought to commence two actions against the State. Firstly, by way of a statement of claim for damages in negligence for failing to protect him from an assault by a fellow prisoner and provide him with access to his legal documents, and secondly, by way of a summons, judicial review of his conditions of incarceration and access to legal documents, pursuant to s 69 of the Supreme Court Act 1970 (NSW). Leave was refused at first instance in respect of part of the summons. On the plaintiff’s appeal, the defendant conceded that leave was not required for proceedings for judicial review; that is, the action commenced by summons. The Court reviewed that concession and determined that it was correct; that s 4 of the Felons Act did not impose a leave requirement in respect of proceedings that sought to assert a right for which relief was available in accordance with public law principles.

4. [30]

   Here, the defendants in reply submitted that, while part of the relief sought by the plaintiff was declaratory in form, “the necessity of a declaration is questionable”, and in substance, it was so closely aligned with his pursuit of damages arising from the defendants’ alleged negligence that in its essence, all of the statement of claim (and the PASOC) was a personal claim for damages arising from negligence.

5. [31]

   The PASOC does not conform with the requirement of r 19.5(2) of the UCPR to indicate variations in a proposed amended statement of claim from the original by striking through, underlining or by other means. However, that non-compliance and its late service have not occasioned unfairness to the defendants in view of the timetable that permitted ample time for them to consider and respond to it. I proceed on the basis that the question of leave pursuant to s 4 of the Felons Act is in respect of the statement of claim and the PASOC, for two reasons. It is a more efficient use of the resources of the Court and of the parties to deal with the proceedings proposed by the plaintiff in both documents, and it is appropriate for the Court to exercise a degree of latitude in relation to any non-conformity with court rules of procedure by a legally unrepresented plaintiff in assessing whether he has an actionable cause. The parties’ correspondence/submissions pursuant to the timetable set on 23 July 2025 covered the strike-out and/or dismissal applications of the PASOC as well, so the defendants’ notice of motion will also be considered in respect of both the statement of claim and the PASOC.

6. [32]

   In Patsalis, Basten JA at [55] confined the non-application of s 4 “to the extent that the applicant sought to assert a right for which relief was available in accordance with public law principles”. The judgments of Allsop P and Sackville AJA acknowledged the nexus between the nature of the declaratory relief sought and the plaintiff’s subservience as an inmate subject to the power of the State, as exercised through prison authorities, as central to their determinations. Allsop P said:

7. [33]

   Sackville AJA qualified that determination with the following, at [117]:

8. [34]

   Unlike Patsalis, in which the declarations sought had direct practical utility to the applicant’s situation, the purpose of the declarations sought by the plaintiff, other than to establish intermediate findings of fact in his prosecution of his claim for damages for negligence in respect of the first two defendants, is not apparent; the opportunity for protective measures by all defendants, including the alerting of the deceased to the asserted intelligence of a contract to kill him, has regrettably passed.

9. [35]

   The plaintiff’s “relief claimed” in the PASOC considered as a whole, properly understood, is a claim for damages arising from breaches by the State and the NSWCC of alleged duties of care by those defendants through their employees’ negligence; it is a private claim made pursuant to the tort of negligence. The reference in the pleadings to “criminal negligence” was not further developed. Seeking “declarations” as to each of the necessary intermediate findings of fact in prosecuting that claim does not detract from that status.

10. [36]

    I conclude, therefore, that all of the statement of claim and of the PASOC is a “civil proceeding” for the purposes of s 4 of the Felons Act and that the plaintiff requires leave to commence his action.

Whether the there is a prima facie ground for the proceedings; whether they disclose no reasonable cause of action and/or are an abuse of process

1. [37]

   For the purposes of the determination of both notices of motion, I proceed on the assumption that the plaintiff is able to prove the central allegations of fact; namely, the phone call by Tim O’Connor to Grant Taylor (see [7] above), its timing and content and that officers of the LECC listened to it in real time.

2. [38]

   There is overlap in the issues pertinent to each notice of motion, in that a prerequisite for the leave sought by the plaintiff is that the Court is satisfied that the proposed proceedings are not an abuse of process and that there is “prima facie ground for the proceedings”: s 5 of the Felons Act. Unlike the discretionary powers enabled by rr 13.4(1) and 14.28(1) of the UCPR, the Court is obliged to refuse leave pursuant to s 5 of the Felons Act if it is not so satisfied.

3. [39]

   As noted above at [16], the defendants initially moved for the proceedings to be struck out pursuant to r 14.28(1)(a), (b) and/or (c) of the UCPR, and/or dismissed pursuant to r 13.4(1)(a), (b) and/or (c) of the UCPR. Those provisions are as follows:

4. [40]

   The defendants later clarified that they do not rely upon r 13.4(1)(a), that is, they do not submit that the proceedings are frivolous or vexatious but maintain that no reasonable cause of action is disclosed and that the proceeding is an abuse of process.

5. [41]

   In Golovanov v McGrath Property Management Pty Ltd [2022] NSWSC 177, I referred to authority as to the approach to be taken generally to an exercise of the discretionary powers to dismiss proceedings pursuant to rr 13.4(1) and 14.28(1) as follows:

6. [42]

   I also referred to applicable considerations when the plaintiff is not legally represented:

7. [43]

   For the same reasoning that applied to the issue of leave concerning the declarations sought, the defendants submit that the seeking of declarations and the proceedings against the third defendant in the PASOC (the LECC) in which no other remedy is sought are an abuse of process. To the extent that the claim is brought in negligence, the defendants submit that the statement of claim and PASOC do not plead the matters that are necessary pursuant to ss 5B, 5C and 5D of the Civil Liability Act 2002 (NSW), particularly since the duty of care that is alleged is a novel basis for a negligence claim. Consequently, the proceedings are prejudicial in that they do not put the defendants in a position to know the claim they are to meet, and embarrassing both in form and in their insufficiency as a means of stating a claim alleging a novel duty.

8. [44]

   As to whether the defendants had a duty to protect the deceased in the manner pleaded by the plaintiff, it was submitted that the legislature had vested in it discretionary power to protect the community, which the common law could not convert into an affirmative duty to exercise that power: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54. That case concerned the alleged failure of a local council to warn its community of harm to oyster consumers by reason of the faecal contamination of oysters, following a period of rain. McHugh J said, at [79]:

9. [45]

   ln the context of actions against the State (that is, the NSW Police Force), the defendants submitted that “police do not owe a duty of care in negligence in cases of this nature”. In support of that proposition, the defendants cited, amongst other cases, Hill v Chief Constable of West Yorkshire [1989] AC 53 (“Hill”), Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59, Cran v State of New South Wales (2004) 62 NSWLR 95; [2004] NSWCA 92 (“Cran”).

10. [46]

    In Hill, the House of Lords held that police were not liable for failing to detain a suspect who murdered the daughter of the plaintiff. The suspect, whose identity was at the time unknown (but was later established to be the notorious serial killer, Peter Sutcliffe), was alleged to have committed a series of murders and attempted murders of young women before murdering the plaintiff’s 20-year-old daughter. It was held that there was no duty of care owed by police to the plaintiff’s daughter and, in any event, as a matter of public policy, police are immune from an action of that kind.

11. [47]

    In Sullivan v Moody, the Full Court considered whether child sexual assault workers, and officers of the relevant State government department, owed a duty of care in examining children for signs of sexual abuse, to persons who would likely be accused of perpetrating that child abuse, and determined that they did not. The Full Court noted, referring to Hill:

12. [48]

    In Cran, the salient facts were that the appellant was arrested and found to possess what was presumed by police to be a prohibited drug, contrary to the appellant’s protestations to the contrary. He was charged with deemed supply and held on remand. Court orders were made the following day for a brief of evidence, including an analyst’s certificate, to be served within three weeks. It was not served by then, nor by two further dates set by the court for its service. The certificate was not sought by police until almost two months after the appellant’s arrest. The certificate, which confirmed that the material in question did not contain a prohibited drug, was provided to the Court two months and three days after his arrest, and he was released. The appellant was known by police to be a suicide risk when he was remanded in custody. He sought damages for false imprisonment and psychological injury (a post-traumatic stress disorder) consequent to traumatic experiences he suffered and witnessed on remand, due to breaches of duties of care which he submitted were owed to him in the circumstances by the State, represented by the NSW Police Force and the Office of the Director of Public Prosecutions (the DPP).

13. [49]

    The Court of Appeal held that a civil remedy did not lie in relation to the DPP or the police investigative function, except where there is an assumption of responsibility. Santow JA (Ipp and McColl JJA agreeing) said:

14. [50]

    The defendants further submit that the plaintiff is statute-barred by s 18A of the Limitation Act 1969 (NSW) (the Limitation Act), since the action that seeks damages arising from negligence was commenced more than three years after the cause of action first accrued to the plaintiff.

15. [51]

    As to whether a statutory authority may in some circumstances owe a duty of care to others in carrying out their functions, the plaintiff relied upon Fuller-Wilson v State of New South Wales [2018] NSWCA 218, in which Basten JA (White JA and Emmett AJA agreeing) held that the question turns upon a close examination of the terms, scope and purpose of the relevant statutory regime. In that case, the question was whether police officers who were tasked with removing body parts of a deceased victim from the scene of a motor vehicle accident, or arranging such removal, owed a duty to take reasonable care to protect members of the deceased’s family from psychological harm. Some eight months after the accident, three members of the deceased’s family visited the scene of the accident and discovered a body part, other remains, and clothing of the deceased. Each of them commenced separate proceedings in the District Court against the State seeking damages for psychological harm consequent to what they found.

16. [52]

    At first instance, the plaintiffs’ summons was summarily dismissed. The Court of Appeal set aside that order, since it was arguable that a duty of care might turn upon factual issues not revealed by the pleadings, even though the pleadings were clearly deficient in a number of respects, as observed by Emmett AJA at [101]: “particularly in failing to identify any act of negligence on the part of any police officer”.

17. [53]

    Basten JA noted the “novel” nature of the claim, stating:

18. [54]

    The defendant had placed some reliance at first instance on Hill, to which Basten JA responded:

19. [55]

    The first question to consider is whether the Court is satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings.

20. [56]

    As to whether it is arguable that a duty of care lay on the part of the State to the plaintiff, I note that in Hill, Lord Keith of Kinkel found against the plaintiff for two reasons. The first was that the circumstances of the case were incapable of establishing a duty of care owed towards the plaintiff’s daughter by the police force. His Lordship noted (at 62C) that the plaintiff’s daughter:

21. [57]

    The second reason was that, as a matter of public policy, police should not be liable in negligence arising from their investigation and suppression of crime. In State of NSW v Tyszyk [2008] NSWCA 107, Campbell JA conveniently summarised the factors identified by Lord Keith of Kinkel in Hill that led to this finding:

22. [58]

    The first reason may readily be distinguished from the instant case. The information that was provided to the officer of the Homicide Squad of the NSW Police Force concerned a named individual, presumably known to police and therefore easily contactable, who was said to be in imminent danger of execution by a person who had been contracted for that purpose. The information came from a respected source.

23. [59]

    The application of the second reason to the circumstances of the instant case is not an exercise that can be adequately undertaken on the material before the Court. However, there would appear to be no issue that the appropriate action to be taken by police would involve little in the way of expenditure of police resources; namely, warning the deceased of the receipt of intelligence that he was in imminent serious danger, in order to avoid him becoming the victim of the commission of the most serious of criminal offences. I take judicial notice of the fact that NSW Police have publicly disclosed in recent years that on some occasions, following the receipt of credible intelligence, they have warned intended targets of contract killings by organised criminal gangs, so that they might take precautionary measures. The prospect of the plaintiff establishing that a duty of care by the State to the deceased existed, that is, by police once they became aware of the intelligence, cannot be excluded.

24. [60]

    The passage relied upon the by the defendants, from Graham Barclay Oysters Pty Ltd v Ryan (McHugh J at [79]) is followed by consideration of exceptions to the general rule. McHugh J said:

25. [61]

    The situation contemplated in Graham Barclay Oysters at [82] arguably has application to the position of the NSW Police Force once Grant Taylor received the phone call from Tim O’Connor.

26. [62]

    The defendants’ reliance upon the Limitation Act is a matter that the plaintiff has not addressed. There is no evidence or information before the Court as to when the plaintiff allegedly first became aware of the telephone call between persons A and B, and its contents. It cannot be assumed at this stage that the plaintiff would not have an answer to the contention that he is statute-barred, perhaps arising from Div 6 of the Limitation Act, although it may well transpire to be so.

27. [63]

    Pursuant to ss 4 and 5 of the Felons Act, I am satisfied that the proceedings, in so far as they relate to a claim for damages against the State for breach of a duty of care in negligence, are not an abuse of process. I am also satisfied that there is a prima facie ground for proceedings of that nature.

28. [64]

    As to the proceedings against the second defendant, the plaintiff has not articulated in precise terms the nature of the alleged duty of care that the NSWCC owed to the plaintiff or what further action it should have carried out in furtherance of that duty. Assuming hypothetically that there was a duty of care owed by the NSWCC to the plaintiff, it is not apparent how that duty was conceivably breached. The plaintiff’s pleadings in the statement of claim and in the PASOC acknowledge that Tim O’Connor passed on their intelligence to the appropriate section of the NSW Police Force. It is not suggested that he did not do so in a timely fashion.

29. [65]

    As to the third defendant, the statement of claim did not articulate an arguable basis for a duty of care being owed by the LECC to the plaintiff and the PASOC sought only declaratory relief, which was a remedy without any relevance to the plaintiff.

30. [66]

    Accordingly, I am not satisfied that the current or proposed proceedings against the NSWCC and the LECC are not an abuse of process nor that there is a prima facie case for proceedings against them.

31. [67]

    Leave having been granted to the plaintiff to proceed only against the State, I turn to consider whether, on the defendants’ notice of motion, the statement of claim and/or the PASOC should be struck out and/or dismissed. For the reasons already provided, leave to file the PASOC should be refused; the statement of claim should be struck out; and leave should be granted to the plaintiff to file a fresh statement of claim within a reasonable period of time.

32. [68]

    In drafting his fresh statement of claim, the plaintiff is expected to have regard to this judgment. It is only permissible for him to proceed against the State and only to seek damages in negligence for an alleged breach of a duty of care resulting in injury to him. In a supporting affidavit, he is expected to address the anticipated submission that he is statute-barred by s 18A of the Limitation Act.

Costs

1. [69]

   The defendants seek an order for costs. It is appropriate for the plaintiff to pay the costs of the defendants in respect of their notice of motion. As the plaintiff’s notice of motion was partly successful, I make no order as to costs in respect of the plaintiff’s notice of motion.

Orders

1. [70]

   I make the following orders: