Hamzy v NSW Commissioner of Police

1. [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:

2. [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. [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. [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. [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. [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. [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:

8. [8]

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

9. [9]

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

10. [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. [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. [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:

13. [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

1. [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:

2. [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.

3. [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:

4. [17]

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

The adjournment application – background and consideration

1. [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.

2. [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:

3. [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:

4. [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.

5. [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.

6. [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.

7. [24]

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

8. [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:

9. [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.

10. [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:

11. [28]

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

12. [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.

13. [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.

14. [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.

15. [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.

16. [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].

17. [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.

18. [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.

19. [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.

20. [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.

21. [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.

22. [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].

23. [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.

24. [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.

25. [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.

26. [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.

27. [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

1. [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.

2. [46]

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

3. [47]

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

A final issue

1. [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.

2. [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.

3. [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.

4. [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.

5. [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.

6. [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.

7. [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.

8. [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.