Hamzy v NSW Commissioner of Police

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The Applicant, Mr Bassam Hamzy (Mr Hamzy) was joined as a plaintiff to proceedings brought by a former solicitor of the Court, Mr Ali Abbas (Mr Abbas) against the NSW Commissioner of Police (the Commissioner). In those proceedings, Mr Abbas sought orders that the Commissioner be restrained from further accessing or viewing, copying, disseminating or relying in any proceedings upon certain material that had been seized pursuant to various search warrants. Mr Hamzy had been joined as a plaintiff to the proceedings in order to facilitate a potential claim for legal professional privilege that he may have had in respect of some of the material that had been seized, and which was the subject of Mr Abbas' application. At all material times, Mr Hamzy had been incarcerated. Up until about 8 December 2019, he was represented by a solicitor, Ms Burrows, and on one occasion at a directions hearing by counsel, Mr Anderson. Notwithstanding directions having been made on 1 November 2019 for evidence and outline of submissions in support of any claim for legal professional privilege to be filed by 25 November 2019, no evidence or submissions in support of a claim for legal professional privilege by Mr Hamzy were ever filed. On 9 December 2019, the primary judge's Associate received correspondence and submissions from Mr Hamzy, noting that he was now self-represented, and was seeking to have the matter listed so that he could make two applications. The first application was for an adjournment, based on s 57 of the Legal Commission Act 1979 (NSW) pending an appeal from a refusal to grant legal aid (the adjournment application). The second application was that the primary judge recuse himself for alleged bias (the recusal application). Accompanying his correspondence were submissions prepared by Mr Hamzy dated 8 December 2019, in which he noted that he had still not received a USB stick that had been handed to his solicitor by the Commissioner at a directions hearing on 1 November 2019 containing potentially privileged communications. The primary judge had noted on 1 November 2019 that it was "obviously necessary" for Mr Hamzy to view the material on the USB stick, and to provide any necessary instructions to his lawyers. The primary judge refused Mr Hamzy's application for an adjournment, holding that the appeal from the refusal to grant legal aid was not bona fide as required under s 57 of the Legal Aid Commission Act. Further, his Honour noted that Mr Hamzy had been represented by a lawyer in the proceedings for more than a month, and had ample time to comply with the orders made by the Court for the filing and service of material. His Honour had been led to believe by Mr Hamzy's legal representatives that submissions and evidence in relation to the claim for privilege would be shortly forthcoming, and thus must have believed that Mr Hamzy had received, reviewed and had an opportunity to give instructions in relation to any potential claim for privilege. It was not until Mr Hamzy's communication with the Court on 8 December 2019 that there was any suggestion that this was not the case. The primary judge also refused to recuse himself for bias. Following the delivery of the primary judgment on 20 December 2019, on 13 January 2020, the Police served all of the "unrestrained material" on the legal representatives of some six separately represented persons, and on the Office of the Director of Public Prosecutions. The consequence of this was that the unrestrained material, a subset of which was potentially subject to a claim for legal professional privilege by Mr Hamzy, had lost any confidentiality by reason of its dissemination to third parties. The Court held (Bell P, Emmett AJA agreeing), dismissing the application for leave to appeal with costs: 1. In relation to the primary judge's failure to grant an adjournment and his Honour's consequent dismissal of proceedings, a grant of leave to appeal would wholly lack utility because the relevant material potentially the subject of a valid claim for legal professional privilege had been in the public domain for over six months: [44] (Bell P); [53] (Emmett AJA). Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia (2019) 265 CLR 646; [2019] HCA 26, considered and applied. 1. In relation to the primary's judge refusal to recuse himself for bias, Mr Hamzy failed to demonstrate that there was any error of principle or injustice in the primary judge's reasoning with respect to this aspect of the application for leave to appeal. A grant of leave to appeal on this basis would also lack utility: [45], [47] (Bell P); [54] (Emmett AJA).