Hamzy v New South Wales Police Force

Cases Cited: Cran v State of New South Wales (2004) 62 NSWLR 95; [2004] NSWCA 92
Fuller-Wilson v State of New South Wales [2018] NSWCA 218
Golovanov v McGrath Property Management Pty Ltd [2022] NSWSC 177
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54
Hill v Chief Constable of West Yorkshire [1989] AC 53
Jol v New South Wales (1998) 45 NSWLR 283
Patsalis v State of New South Wales [2012] NSWCA 307
State of NSW v Tyszyk [2008] NSWCA 107
Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59

Category: Principal judgment

Parties: Bassam Hamzy (Plaintiff)
New South Wales Police Force (First Defendant)
New South Wales Crime Commission (Second Defendant)
Law Enforcement Conduct Commission (Third Defendant)
State of New South Wales (Fourth Defendant)

Representation: Counsel:
Self-represented (Plaintiff)
A N Williams (Defendants)
Solicitors:
Crown Solicitor’s Office (Defendants)

File Number(s): 2024/449204

JUDGMENT

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. 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. 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

The plaintiff’s statement of claim

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.

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).

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”.

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:

“… he had just receivd [sic] intelligence from a source that a contract was put out for the murder of [the deceased] and he was to be murdered shortly.

This phone call was lawfully intercepted by [the LECC] and was listend [sic] to live.”

8. It is further alleged that the defendants

“… failed in their duty of Care and were criminally negligent when they failed in their duty of care to take steps to warn [the deceased] of the threat on his lie and prevent the Crime.”

The plaintiff’s notice of motion

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:

“4 Leave to sue required for persons convicted of serious indictable offences

A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.”

10. I note that s 5 of the Felons Act provides:

“5 Grant of Leave

A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.”

11. Ms Koch concluded by stating:

“Assuming the above matters are addressed, there remain a number of deficiencies in the pleading of the Statement of Claim which, in the defendants’ view, require the Statement of Claim to be struck out and/or the proceedings dismissed. I will write to you separately in that regard.”

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.

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

“Seeking leave of the court under section 4 of the Felons Civil Proceedings Act if required to institute proceedings.”

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.

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.

The defendants’ notice of motion

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

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.

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.

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.

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.

The proposed amended statement of claim

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:

“PTSD, Emotional distress, Nervous shock, Prolonged grief disorder, rage disorder, anxiety, paranoia and panic attacks being suffered by the plaintiff.”

22. The declarations sought are as follows.

“1. A Declaration that the NSW Police are under a legal duty to take reasonable steps to prevent injury and death and prevent a foreseeable crime.

2. A Declaration that Grant Taylor of the NSW police was negligent and failed in his legal duty to prevent crime, injury and death of person by not informing [the deceased] of the imminent threat to his life.

3. A Declaration that Grant Taylor was negligent and failed to take reasonable (or any) precautions to prevent the known plan to murder of [the deceased].

4. A Declaration that Gant [sic] Taylor of the NSW Police was negligent and failed in his duty of care to [the deceased].

5. A Declaration that the State of NSW is liable for the negligent acts of Grant Taylor a member of the NSW Police Force.

6. A Declaration that the NSW Crime Commission has a duty to investigate and prevent serious crime.

7. A Declaration that Tim O’Conner [sic] an employee of the NSW Crime Commission has a duty to prevent serious organised crime and save life.

8. A Declaration that Tim O’Conner [sic] of the NSWCC was negligent and failed in his duty to prevent serious crime which resulted in the death of [the deceased].

9. A Declaration that Tim O’Conner [sic] failed in his duty of care to [the deceased].

10. A Declaration that the NSW Crime Commission is vicariously liable for the negligent acts of its employees where those negligent acts result in foreseeable and preventable harm or death.

11. A Declaration that the Law Enforcement Conduct Commission has a duty to prevent Crime, and save life.

12. A Declaration that the LECC has a duty to ensure police uphold their legal duties / obligations without fear or favour.

13. A Declaration that the LECC was negligent and failed to take reasonable steps to prevent crime and save life.

14. A Declaration that the LECC failed to take reasonable steps to investigate police negligence and nonfeasance in relation to the murder of [the deceased].” (emphasis in original)

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

“All the facts, matters and circumstances relied upon to give rise to a duty of care are that in late October 2021 [the deceased] was murdered in Condell Park NSW.”

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:

“The indifference and inactions of the defendants was not reasonable or excusable. Making a call and informing [the deceased] of the threat was not a burdensome or difficult task. The defendant’s [sic] negligence caused the significant injury to the plaintiff.

A duty of care to protect member[s] of the community is imposed on the defendants by the law (common and statutory law). The defendants had a legal duty to take reasonable steps to inform [the deceased] of the immediate threat to his life. They could have prevented his murder. At the minimum a phone call to warn him of the threat to his life would have been reasonable and required by law.

…

5D: Injury caused: Psychiatric and emotional distress, nervous shock, depression, prolonged grief disorder, PTSD, panic attacks, paranoia, rage disorder, anxiety of the plaintiff. These injuries are a recognised psychiatric injury.

Causation in terms of the Civil Liability Act 2002. The harm that is alleged is the psychological harm listed above under the heading injury. The negligence alleged was a necessary condition and material contribution of the occurrence of the harm that resulted. The defendant’s [sic] reckless indifference, failure to fulfil a statutory duty and inaction resulted/contributed to the death of [the deceased]. This negligence/indifference and failure in duty caused the harm/injury to the plaintiff.

It is appropriate for the scope of the negligent person’s/defendants liability to extend to the inactions/omissions which resulted in the harm so caused. If it were not for the defendant's indifference, inaction and failure to uphold their statutory and common-law duty [the deceased] would not be dead and the plaintiff would not have suffered the injury/harm. But for the breach/negligence of the defendants the harm would not have occurred. The harm and death could have been easily avoided with a single phone call.

STATE LIABILITY: The State of NSW is liable via section 8 of the law reform (Vicarious Liabilities) Act 1983 for the negligent acts of any person who is in service of the Crown. Police officers are in service of the Crown and s6(3)(b) provides that one of their duties is ‘the protection of persons from injury or death’ a duty which Mr Grant Taylor negligently failed to fulfil which materially contributed to the death of [the deceased] and the injury suffered by the plaintiff.

NSW CC LIABILITY: The NSW CC is statutory corporation constituted by the NSW Crime Commission Act 2012 as a body corporate with the name of NSW Crime Commission s4(1). The NSWCC has an independent legal status and is separate from the government department structure. By s7(1) the NSWCC Act has its own constitutions and is constituted as the NSW Crime Commission.

The object of the NSWCC Act is to reduce/prevent the incidence of organised and other serious crime. A duty which they negligently failed to fulfil in relation to the planned death of [the deceased]. Their negligence materially contributing to his death. The NSWCC is vicariously liable for the negligent Acts of its employees. It should have been foreseen that when knowledge of the NSWCC negligence was discovered that it would have caused psychiatric or psychological injury to the plaintiff. The result of their negligence materially contributed to the plaintiff's injury.

In the alternative I rely on s5D(2) [of the Civil Liability Act 2002 (NSW)] and ask the court to find that this matter would amount to an exceptional case. Liability for the harm caused should be imposed on the negligent defendants due to their statutory and common law duties/functions. The fact that the person/defendants have voluntarily undertaken employment which touches upon public safety attract a duty of care and thereby the liability. If the defendants were not negligently indifferent to the risk, and did fulfil their statutory duty/function to prevent crime and protect the community [the deceased] could have taken precautions in relation to his safety, would not have been killed, and I would not have suffered the harm knowing that the defendants were negligent/ indifferent to the life of [the deceased]. The only circumstance that the defendants would not have foreseen the harm caused to the plaintiff by their negligence would have been the belief that the defendants negligence/indifference/failure in duty would not be discovered. The defendants all knew of the planned execution and took no reasonable precautions/steps to prevent it.” (emphasis in original)

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].”

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

The parties’ submissions

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:

“There is utility in the declarations being sought so that the community, estate and children of the deceased know what the law is and what legal remedies and actions that may be available to them. The declarations are a crucial step in establishing the negligence claim.”

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].

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.

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.

Consideration

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.

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:

“5 … The notion of an ‘action for a civil wrong’ is aptly understood as a claim for a private remedy to redress an injury from wrongful conduct. Its form may be at common law, in equity or in statute. Whether or not damages or some form of compensation is necessary to be sought need not be decided.

6 In contradistinction to such a private action to redress a wrong, is a complaint about the exercise of public power. A person in custody is at all times under the control of public power. The challenge to the exercise of public power (at least insofar as it concerns the conviction, sentencing and incarceration of the person covered by the Act) is not easily conformable with the expression of an action for a civil wrong.

7 It is unnecessary to chart the metes and bounds of the phrase ‘civil proceedings’ in ss 3, 4 and 5. It is sufficient to recognise that the State’s concession was properly made. The precise limits of the phrase can await a case where the answer to the question is decisive.”

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

“… It is not necessary for present purposes to decide whether s 4 of the Felons Act can never apply to proceedings seeking judicial review. However, in my opinion, proceedings in which a prisoner seeks judicial review on the ground that the prison authorities have acted unlawfully or exceeded their powers, but makes no claim for damages, does not fall foul of s 4.”

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.

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.

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

Introduction

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.

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.

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:

“13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

…

14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.”

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.

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:

“41 The test applied to determine whether no reasonable cause of action is disclosed, which is well known, is derived from the principles set out by Barwick CJ in General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 128-130 (‘General Steel Industries’). The Court is to consider whether ‘the case of the plaintiff is so clearly untenable that it cannot possibly succeed’: See at 130.

42 In General Steel Industries, Barwick CJ, at 128, emphasised the need for a court to be clearly satisfied that there is no reasonable cause of action disclosed.

‘The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion … the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action—if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal—is clearly demonstrated.’

43 Rule 13.4(1)(b) of the UCPR was considered by the Court of Appeal In Ugur v Attorney General for New South Wales [2019] NSWCA 86. White JA, at [70], considered the purposes of the power in r 13.4 of the UCPR:

‘One of the purposes of the power in r 13.4 of the UCPR to dismiss a proceeding summarily as frivolous or vexatious or as disclosing no reasonable cause of action or as being an abuse of the process of the court, is to save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings which raise no real question of fact or law. Another purpose is the protection of the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications.’

44 In Leerdam & Anor v Noori & Ors (2009) 227 FLR 210; [2009] NSWCA 90, Macfarlan JA observed that the General Steel Industries principles may more frequently be satisfied where questions of law are in issue. His Honour, at [75], stated that:

‘Such a course should only be taken in a clear case. Descriptions of the test to be applied have included such phrases as ‘so obviously untenable that it cannot possibly succeed’ and ‘manifestly groundless’ (General Steel Industries … at 129). Particular caution is required where factual questions are involved as it is difficult to predict in advance of a final hearing the precise manner in which the evidence will unfold. Whilst caution is also required where, as here, the application turns on questions of law and there is no reasonable prospect that deficiencies in what is pleaded will be able to be cured by amendment, opportunities to summarily dismiss or strike out claims will arise more frequently.’

45 In Seidler v Carrol & O’Dea [2013] NSWSC 338, McCallum J (as her Honour then was) set out a summary of the relevant principles in relation to a strike out application under r 14.28 of the UCPR. As part of this summary, her Honour, at [6]a, alluded to the need to consider such applications in light of s 56 of the Civil Procedure Act 2005 (NSW):

‘… the position must be considered in light of the requirements of s.56 Civil Procedure Act which obliges the court to exercise its powers to ‘facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings: Gangi v Boral Resources (NSW) Pty Ltd [2012] NSWSC 398 per [Schmidt J] at [30]; Pacanowski & Anor v Wakerman & Ors [2009] NSWCA 402 per Tobias JA at [19] …’”

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

“47 As Seidler v Carrol & O’Dea concerned pleadings provided by a self-represented litigant, McCallum J also discussed the specific considerations which must be balanced in such a case:

‘8 Since Ms Seidler represents herself in the proceedings, it may be assumed that she has had to draft the proposed amended pleading either without any, or any substantial, assistance from a lawyer. Views may differ as to the extent to which that is a relevant consideration in determining whether a pleading should be allowed to stand. Access to justice is a fundamental aspect of the administration of justice. The court should be vigilant to guard against the rigid application of principle at the expense of facilitating the just resolution of matters properly brought forward for judicial determination. To that end, a degree of flexibility and even indulgence might appropriately be afforded to a self-represented litigant in a proper case. So much is recognised in the remarks of Kirby J in Attorney-General, Re*; Ex* parte Skyring [1996] HCA 4; (1996) 135 ALR 29, where his Honour referred to the need for ‘vigilance, and not impatience’ in the case of an applicant who is not legally represented.

9 The fundamental importance of facilitating equal access to justice warrants the giving of close consideration to the terms of a pleading in order to discern, with an open mind, whether there is a reasonable cause of action nestling within obscure or difficult language used by a self-represented litigant.

10 Conversely, however, a misconceived or poorly-pleaded claim imposes considerable stress on the due administration of justice and ought equally to be guarded against. The same vigilance must accordingly be exercised not to suffer the court to become a forum for the agitation of grievances which lack any juridical foundation.’”

The defendants’ submissions

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.

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]:

“Legislatures often vest discretionary powers in public authorities for the specific purpose of protecting the community. Some powers may be vested in the authorities for the protection of a specific class of persons who may be exposed to risks of harm that they are powerless to avoid and sometimes unable to identify. But the legislature has made these powers exercisable at the discretion of the authorities, and the common law does not seek to convert the statutory discretion into a positive common law duty to exercise it for the benefit of the public or one of its members.”

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”).

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.

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:

“[56] How may a duty of the kind for which the appellants contend rationally be related to the functions, powers and responsibilities of the various persons and authorities who are alleged to owe that duty? A similar problem has arisen in other cases. The response to the problem in those cases, although not determinative, is instructive.

[57] In Hill v Chief Constable of West Yorkshire, the House of Lords held that police officers did not owe a duty to individual members of the public who might suffer injury through their careless failure to apprehend a dangerous criminal. Lord Keith of Kinkel pointed out that the conduct of a police investigation involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the deployment of resources. To subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action in tort, was inappropriate.

…

[60] … Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.

…

[62] The statutory scheme that formed the background to the activities of the present respondents was, relevantly, a scheme for the protection of children. It required the respondents to treat the interests of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered, and were under threat of, serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm. The duty for which the appellants contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the respondents, or with their statutory obligation to treat the interests of the children as paramount. As to the former, the functions of examination, and reporting, require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences for people in the position of the appellants or legal liability to such persons. As to the latter, the interests of the children, and those suspected of causing their harm, are diverse, and irreconcilable. That they are irreconcilable is evident when regard is had to the case in which examination of a child alleged to be a victim of abuse does not allow the examiner to form a definite opinion about whether the child has been abused, only a suspicion that it may have happened. The interests of the child, in such a case, would favour reporting that the suspicion of abuse has not been dispelled; the interests of a person suspected of the abuse would be to the opposite effect.” (footnotes omitted)

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).

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:

“63 … on present authority, the greater public interest accorded unimpeded investigation by Police and, so far as relevant, the DPP in carrying out its prosecutorial function, precludes any duty of care to the appellant. The current state of the law, and the policy which underlies it, gives paramount weight to those considerations even overriding the factors of vulnerability and entire dependency …

64 The precise formulation of the asserted duty of care varied in the course of argument. But, however it is formulated, it is inconsistent with authority. It would create tensions in the law if not impair its coherence. The law recognises custodial liability to a prisoner on the gaoler’s part as well as the distinct tort of false imprisonment. But it steadfastly denies civil remedy in relation to the police investigative function, save where there is an assumption of responsibility. …”

50. The defendants further submit that the plaintiff is statute-barred by s 18A of the Limitation Act 1**969 (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.

The plaintiff’s submissions

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.

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”.

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

“74 … Whether there is a reasonable cause of action available to the appellants must turn upon an understanding of the circumstances in which duties of care have and have not been imposed with respect to the conduct of police in past cases.

75 An important factor in determining whether a duty of care is owed is the need to maintain coherence in the law and to avoid the imposition of a duty which may be inconsistent with, or incompatible with the public duties imposed by statute or the common law.

…

78 The appellants contended that there was no inconsistency or incompatibility between the public interest in the collection and retention of human remains and a duty of care owed to relatives to carry out that function with due care and diligence. Nor could it be said that the imposition of a duty of care would interfere in any practical sense with the public interest in the collection of such remains.

79 There is no doubt that the appellants have an arguable case that the duty of care they proposed involved no actual inconsistency, nor a tendency to interfere, with the proper exercise of the public function being exercised. If that were an essential element in refusing to accept the existence of a duty of care, the claim should go to trial.”

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

“86 … the reliance placed on the UK decision of Hill was not in terms determinative. If the references to the Hill principle were properly to be understood as reliance upon the potential for inconsistency or incompatibility between the public function exercised by police and the duty of care allegedly owed to individual members of the public, that principle required further analysis. …”

Consideration

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.

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:

“… was one of a vast number of the female general public who might be at risk from his activities but was at no special distinctive risk in relation to them …”

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:

“118 The factors identified as going to that public policy were:

- The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of a tort liability ‘so far as concerns their function in the investigation and suppression of crime’;

- Not only would imposition of a duty of care be unlikely to which improve the efficiency of police operations, it could impede it by leading to the exercise of some police functions ‘being carried on in detrimentally defensive frame of mind’;

- Imposition of liability for failure to catch a criminal as soon as the police might have done would make actions for breach of that duty ‘not uncommon’;

- Litigation of questions involving the formation of police policies and exercise of police discretions within the framework of available resources involves examination of matters that ‘would not be regarded by the courts as appropriate to be called in question’;

- Investigation of such matters would be time-consuming and costly, and would involve diversion of significant police resources from the primary task of the police.”

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.

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.

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:

“80 Despite this general rule, however, cases often arise where the failure to exercise a power will constitute a breach of a common law duty of care that a public authority independently owes to an individual. …

81 Ordinarily, the common law does not impose a duty of care on a person to protect another from the risk of harm unless that person has created the risk. And public authorities are in no different position. A public authority has no duty to take reasonable care to protect other persons merely because the legislature has invested it with a power whose exercise could prevent harm to those persons. …

82 The likelihood of the common law imposing an affirmative duty of care whose content may require the exercise of a statutory power increases where the power is invested to protect the community from a particular risk and the authority is aware of a specific risk to a specific individual. If the legislature has invested the power for the purpose of protecting the community, it obviously intends that the power should be exercised in appropriate circumstances. If the authority is aware of a situation that calls for the protection of an individual from a particular risk, the common law may impose a duty of care. In that situation, failure to exercise the power may constitute negligence.” (footnotes omitted)

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.

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.

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.

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.

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.

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.

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.

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

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

70. I make the following orders:

(1) In relation to the plaintiff’s notice of motion, pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW):

(a) I refuse leave to the plaintiff to commence an action seeking declaratory relief or relief by way of damages arising from negligence against the New South Wales Crime Commission or the Law Enforcement Conduct Commission, arising from the circumstances of the death of Mejid Hamzy;

(b) I grant leave to the plaintiff to file a fresh statement of claim against the State of New South Wales seeking damages in negligence on or before Tuesday 31 March 2026; and

(c) I make no order as to costs.

(2) In relation to the defendants’ notice of motion:

(a) Pursuant to r 14.28 of the Uniform Civil Procedure Rules (2005) (NSW), the statement of claim filed by the plaintiff on 27 November 2024 is struck out; and

(b) The plaintiff is to pay the costs of the defendants.

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